CPC and Law of Limitation

The Code of Civil Procedure, 5th ed
MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / The Code of Civil Procedure
Currency Date: 28 April 2020
© 2020 LexisNexis
The Code of Civil Procedure
(Act No V of 1908)1
[21 March 1908]
An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature.
WHEREAS it is expedient to consolidate and amend the laws relating to the procedure
of the Courts of Civil Judicature; it is hereby enacted as follows:
1 For Statement of Objects and Reasons, see Gazette of India, 1907, Pt V, p. 179; for Report of
Select Committee, see ibid, 1908, Pt V, p 35 and for Proceedings in Council see ibid, 1907, Pt VI,
p 135 and ibid, 1908, pp 8 and 212.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 1. Short title,
commencement and extent.
© 2020 LexisNexis
Preliminary
S. 1. Short title, commencement and extent.
(1) This Act may be cited as the Code of Civil Procedure, 1908.
(2) It shall come into force on the first day of January, 1909.
2
[(3) It extends to the whole of India except—
(a) the State of Jammu and Kashmir;
(b) the State of Nagaland and the tribal areas:
Provided that the State Government concerned may, by notification in

the Official Gazette, extend the provisions of this Code or any of them
to the whole or part of the State of Nagaland or such tribal areas, as
the case may be, with such supplemental, incidental or consequential
modifications as may be specified in the notification.
Explanation. —In this clause, "tribal areas" means the territories which,
immediately before the 21st day of January, 1972, were included in the
tribal areas of Assam as referred to in paragraph 20 of the Sixth
Schedule to the Constitution.
(4) In relation to the Amindivi Islands, and the East Godavari, West Godavari and
Visakhapatnam Agencies in the State of Andhra Pradesh and the Union
Territory of Lakshadweep, the application of this Code shall be without
prejudice to the application of any rule or regulation for the time being in force
in such Islands, Agencies or such Union territory, as the case may be, relating
to the application of this Code.]
COMMENT—
General Introduction.—
Rights and obligations of the members of a civilised society would be meaningless

unless they are determined and enforced. This is possible by two sets of laws, namely
Substantive Laws (Indian Penal Code, 1860; Contract Act, 1872; Partnership Act, 1932;
Sale of Goods Act, 1930, etc.) and Procedural Laws (Code of Civil Procedure, 1908;
Criminal Procedure Code, 1973; Evidence Act, 1872, etc.). The former determines the
rights and obligations of the members of the society whereas the latter prescribes the
procedure for their enforcement.
There is no doubt regarding the fact that substantive laws are more important than the
procedural laws, but the efficacy of substantive laws mainly depends upon the quality
of the procedural laws. Unless the procedure for enforcing a right is simple, effective,
expeditious and inexpensive, substantive laws, however well they have been made,
would fail in their purpose and object. It has rightly been remarked that "Procedure
should always be indeed the handmaid of justice".
A procedural law is always in aid of justice, not in contradiction or to defeat the very
object which is sought to be achieved. A procedural law is always subservient to the
substantive law. Nothing can be given by procedural law what is not sought to be given
by the substantive law and nothing can by the substantive law.3
History of the Code.—
There was no uniform law of Procedure for Civil Courts in India prior to the Act of 1859.
Very often, different systems of procedure prevailed in the same region. Thus, for
example, there were as many as nine different systems of procedure in Bengal alone
which were in force simultaneously. The procedure of the Mofussil Courts was
regulated by special Acts and Regulations which were repealed in 1861.4 The first Civil
Procedure Code was enacted and passed in 1859,5 which applied to Mofussil Courts
only. In 1862, on the abolition of the Supreme Court and Saddar Diwani Adalat, the
Code was made applicable to High Courts as well. The next Code was passed in the
year 1877,6 which repealed that of 1859. Several amendments were made in it and
third Code was passed in 1882.7 It was further superseded by the present Code of
1908,8 after several amendments. The present Code of 1908 was amended several
times. Necessity was felt then to make some other changes in the present Code.
Scheme of the Code.—
The Code of Civil Procedure, 1908 has been divided into two parts; the first part
consists of 158 sections and the second part consists of the First Schedule wherein
there are 51 Orders and every order contains rules. The first part i.e., the sections lay
down the provisions of a substantive nature and the principles regarding jurisdiction of
the courts. The second part i.e., the First Schedule deals with the procedure and the
mode and the method of which is to be followed by the courts while exercising
jurisdiction bestowed by the code. The sections under the code can be amended only
by the legislature. But the orders and rules provided in the First Schedule of the code
can be amended by the High Court. The sections and the rules, therefore, must be read
together and harmoniously construed. However, if the rules are inconsistent with the
sections, the sections will prevail.
The sections create jurisdiction while the rules indicate the manner in which the
jurisdiction is to be exercised, the inherent power of the court to do justice is in
additions to and complementary to the powers conferred under the Code.9
Statement of objects and reasons.—
(1) The law relating to the procedure in suits and civil proceedings in India (except
those in the State of Jammu and Kashmir and Nagaland and the Tribal Areas of Assam
and certain other areas) is contained in the Code of Civil Procedure, 1908. The Code
has been amended from time to time by various Acts of the Central and State
Legislatures. The Code is mainly divided into two parts, namely, Sections and Orders.
While the main principles are contained in the sections, the detailed procedure with
regard to the matters dealt with by the sections are specified in the orders. Under
section 122, the High Courts have powers to amend, by rules, the procedure laid down
in the orders. In exercise of these powers, various amendments have been made in the
orders by the different High Courts.
(2) The Law Commission, in its Fourteenth Report on the "Reform of Judicial
Administration," indicated broad lines on which the code should be revised but left
more detailed examination of the revision to be undertaken separately. A detailed and
comprehensive examination of the question of the revision of the Code of Civil
Procedure, 1908, was undertaken by the Commission in its Twenty-seventh Report.
While making these recommendations, the Law Commission took into consideration
the recommendations made by it in its Fourteenth Report, the amendments made by
the various State Legislatures in the body of the Code, the amendments made in the
Orders by the various High Courts, and the rules of Procedure in the United Kingdom. A
Bill, incorporating the recommendations made by the Law Commission in its Twenty-
seventh Report, was introduced in Parliament in 1968. That Bill was referred to a Joint
Committee of both Houses of Parliament. While the Bill, as reported by the Joint
Committee, was pending before the Lok Sabha, it lapsed owing to dissolution of that
House.
(3) Before re-introducing the said Bill, the Law Commission was requested to further
examine the Code from the basic angle of minimising costs, avoiding delay in litigation,
implementing the directive principles and resolving divergence of judicial opinions with
regard to certain provisions of the Code. The Law Commission submitted its Fifty-
fourth Report on the Code of Civil Procedure in February 1973. In this Report, the
recommendations made by the Law Commission in its Fourteenth and Twenty-seventh
Reports have also been considered.
(4) The Law Commission had also recommended, in its Fourteenth Report, the
insertion of a new Order, namely, O XVI-A, in the Code of Civil Procedure, 1908, with
regard to the attendance of prisoners in Courts for the purposes of giving evidence.
The Law Commission, in its Fifty-fifth Report made recommendations with regard to
the rate of interest for the period after decree and interest on costs under sections 34
and 35 of the Code of Civil Procedure, 1908.
(5) After carefully considering the recommendations made by the Law Commission in
its Twenty-seventh, Fortieth, Fifty-fourth and Fifty-fifth Reports, the Government have
decided to bring forward the present Bill for the amendment of the Code of Civil
Procedure, 1908, keeping in view, among others, the following basic considerations,
namely:—
(i) that a litigant should get a fair trial in accordance with the accepted principles of
natural justice;
(ii) that every effort should be made to expedite the disposal of civil suits and
proceedings, so that justice may not be delayed;
(iii) that the procedure should not be complicated and should, to the utmost extent
possible, ensure fair deal to the poorer sections of the community who do not
have the means to engage a pleader to defend their cases.
The Bill of 1974 was again referred to the Joint Committee which made a number of
important changes in it. The Joint Committee submitted its report on 1 April 1976.
After the receipt of the Bill from the Joint Committee, it was considered by the Lok
Sabha on 11 and 12 August 1976 which passed it with some variations. The Rajya
Sabha then gave its approval on 3 August 1976 to the Bill as passed by the Lok Sabha
without making any change.
The Amending Act which received the assent of the President of India on the 9
September 1976, "shall come into force on such date as the Central Government may
by notification in the official Gazette, appoint and different dates may be appointed for
different provisions of this Act and any reference in any provision to the
commencement of this Act or to the commencement of the Code of Civil Procedure
(Amendment) Act, 1976, as the case may be, shall be construed as a reference to the
coming into force of that provision."
Changes made by the Amending Act of 1976.—
Some of the important changes, made by the Amending Act, 1976, are as follows:
(1) The doctrine of res judicata has been made more effective,
(i) Explanation VIII was added in order to ensure that the decisions of the
Courts of limited jurisdiction must operate as res judicata in subsequent
suit.
(ii) The doctrine of res judicata has been extended to independent

proceedings and also to execution proceedings.
(2) The power to transfer proceedings from a High Court in a State to any other
High Court, which now vests in the State Government has been conferred on the
Supreme Court.
(3) Interest for the post-decretal period in respect of liabilities arising out of
commercial transactions has been increased, in the cases of decrees for sums
exceeding Rs. 10,000 to the contractual rate, or where there is no contractual
rate, to the rate at which moneys are lent by nationalised banks for commercial
transactions.
(4) The freedom from attachment of a portion of salary is now available to a

Government servant or a servant of a railway company or local authority. This
protection has been extended to all salaried employees.
(5) The right to prefer an appeal against a decree passed in a suit of the nature
cognizable by a Court of Small Causes is being restricted in respect of cases in
which the amount or value of the subject-matter of the original suit does not
exceed three thousand rupees. In such cases, appeals are allowed only on
questions of law.
(6) Second appeals are allowed only on such questions as are certified by the High
Court to be substantial questions of law.
(7) It has been provided that there will be no further appeal against the decision of a
single Judge of a High Court in a second appeal.
(8) Section 132 provides that women, who, according to the customs and manners
of the country, ought not to be compelled to appear in public, shall be exempt
from personal appearance in Courts. The seclusion of women being
inconsistent with the social philosophy on which Constitution of India is
founded and having regard to customs and manners prevailing at the present
day, this section is being omitted.
(9) The period during which a member of a Legislature cannot be arrested and
detained under a civil process has been increased from fourteen to forty days.
(10) Provisions have been made to ensure that written statements and documents
are filed without delay.
(11) New O XVI-A has been inserted to provide for the attendance of prisoners in
Courts for the purpose of giving evidence.
(12) New O XXXII-A has been inserted to provide a special procedure in litigation
concerning the affairs of a family.
(13) The practice of passing preliminary and final decrees in mortgage suits and
other suits has been abolished. In such suits, there will be only one decree, so
that there may not be more than one appeal in a suit.
(14) The scope of summary trials has been substantially widened.
(15) Some of the more important changes, intended to provide relief to the poor
sections of the community, are:
(i) provisions for awarding compensatory costs against a party for delaying
any stage of the litigation;
(ii) a petty decree, that is to say, a decree the amount of which does not
exceed two hundred rupees, will not be executable by the arrest and
detention of the judgment debtor;
(iii) the non-attachable portion of the salary of the judgment-debtor has

been increased to the first two hundred and fifty rupees and to two-
thirds of the remainder, so that only one-third of the remainder of the
salary will be liable to attachment in execution of a decree;
(iv) the list of non-attachable properties has been enlarged by providing that
the following properties will not also be attachable in execution of a
decree, namely:
(a) house and other buildings of a labourer or a domestic servant;
(b) moneys payable under a policy of insurance on the life of the

judgment debtor;
(c) the interest of a lessee of a residential building, to which the

provisions of law relating to control of rents and accommodation
apply;
(v) while pronouncing judgment in an appealable case, it would be the duty

of the Judge to inform the party, who is not represented by a pleader, as
to the Court to which an appeal would lie against the judgment or
decree and the period of limitation for such appeal;
(vi) for the purpose of enabling a person to sue as an indigent person, the
test of the means of the applicant is being substantially liberalised and
it is being provided that a person will be regarded as an indigent person
if he is not entitled to properties worth one thousand rupees other than
the properties exempt from attachment in execution of a decree and the
subject-matter of the suit;
(vii) where a person is permitted to sue as an indigent person, a duty has

been imposed on the Court to assign a pleader to him, if he is not
represented by a pleader; and the High Courts are being empowered to
make rules as to the modes of selection of such pleaders and the
facilities which are to be provided to them.
Preamble.—
The Preamble to the Code shows that the object of the present code is to amend as
well as consolidate the procedure of Civil Courts. It has been held by the Supreme
Court that its provisions should be interpreted as forming a complete code by itself,
exhaustive of the matters dealt with by it.10
Extent.—
The Code has been extended to the Union territories of:
(i) Goa, Daman and Diu.11
(ii) Laccadive, Minicoy and Amindivi Islands.12
(iii) Pondicherry.13
(iv) Dadra and Nagar Haveli.14
The existing sub-section (3) was substituted by two new sub-sections (3) and (4) by the
Amendment Act of 1976. As a result of this, there is no area in the erstwhile State of
Madras to which the Code of Civil Procedure does not extend.
Scope of applicability.—
It was held by a full bench of Allahabad High Court15 that the Code consolidates and
amends the laws relating to the procedure in India. The Code applies to the procedure
of all Courts of Civil Judicature. But it does not affect any special or local law.16 In case
of conflict between Civil Procedure Code and a Special law, the latter prevails over the
former.17 The code is a code conferring powers on Courts and is not a code restricting
and delimiting its unlimited powers.18
Foreigners are not exempted from the operation of the Code.19 The Code cannot of
itself establish a right which does not exist under the ordinary law of the land.20
General principles of pleading in suits including the maxim—"Secundum Allegata et non

probata" applies to writ proceedings.21
The Code is not retrospective so as to affect vested rights.22 However, it has been held
as well settled that all procedural laws are retrospective unless the Legislature
expressly states to the contrary, that the procedural laws in force must be applied at
the date when the suit or proceeding comes on for trial or disposal, and that a Court is
bound to take notice of the change in the law and is bound to administer the law as it
was when the suit came up for hearing.23
The right of appeal is a vested right coming into existence at the very inception of suit
and would not be affected by subsequent amendments of section providing for appeal
unless the amendment is retrospective in operation.24
Sub-section (1) of section 97 of the Amending Act of 1976 provides that any
amendment made or any provision inserted in the Code of Civil Procedure, 1908 by a
State Legislature or a High Court before the commencement of the Amending Act of
1976 shall, except in so far as such amendment or provision is inconsistent with the
provisions of the Code as amended by the Amending Act of 1976, stand repealed.
Code is not made applicable to Courts continued by authority of Central Government
outside India.25 It has been held that the Code of Civil Procedure, 1908 deals with the
procedural matters that is, with matters relating to the machinery for the enforcement
of substantive rights, as contra-distinguished from the substantive rights themselves.
As to the latter rights, one must look elsewhere, that is, to the statute law or the general
principles of law.26
Suit under Article 131 between two states or union and states cannot and ought not to
be decided with very technical approach in so far as pleadings and procedure are
concerned. A suit filed in original jurisdiction of Apex Court is not governed by the
procedure prescribed in Code of Civil Procedure, save and except the procedure which
has been expressly made applicable by the Supreme Court rules.27
Applicability of Code of Civil Procedure.—
The domain of Code of Civil Procedure, 1908 becomes active as soon as an application
under section 34 of the Arbitration and Conciliation Act of 1996 is made. This is further
fortified by the fact that Arbitral award has to be enforced under the Code of Civil
Procedure, 1908 in the same manner as if it were a decree of the court.28
Whether the Code exhaustive?—
As regards the matters which are specifically dealt with in the Code, it is exhaustive,
and thus binds all the Courts.29 In spite of its exhaustiveness, it cannot be said to deal
with all the matters that may come up for decision in the Courts. Thus, it is not
exhaustive of all forms of procedure necessary to be used in the administration of
justice.30 It is well-settled that the Code is not exhaustive for the simple reason that the
Legislature is incapable of contemplating all the possible circumstances which may
arise in the future litigations and subsequently for providing the procedure for them.31
The Code not being exhaustive, should be construed liberally and as far as possible
merely technical objections should not be allowed to defeat the substantial justice.32
Peacock, CJ, observed: "Since laws are general rules, they cannot regulate for all times
to come, so as to make express provisions against all the cases."
Thus, where on a particular matter, the code is silent, the Court should decide the
matter on the principles of equity, justice and good conscience.
Interpretation of the Code.—
The object of the code is not only to amend but also to consolidate the law of civil
procedure for the whole of India. The Supreme Court in Sangram Singh v Election
Tribunal, AIR 1955 SC 425 (429) : (1955) 2 SCR 1 : (1955) 2 MLJ (SC) 3 observed as: "A
code of procedure is designed to facilitate justice and further its ends; not a penal
enactment for punishment and penalties; not a thing designed to trig people up. Too
technical a construction of section that leaves no room for reasonable elasticity of
interpretation should be guarded against."
It has been held that the headings prefixed to sections are regarded as preambles to
those sections and cannot control the plain words of the statute, but they can be
referred to for resolving doubts when the words of the enactments are ambiguous.33
Marginal notes to the sections of an Act are not to be referred to for the purpose of
construing the Act.34 All procedural laws are based on the principles of natural justice.
There may, of course, be some exceptions, and where they are defined, those may be
specifically given effect to.35 It has been held that procedure is a handmaid and not
mistress of law and rules of procedure should only sub-serve and not govern.
Procedure is only channel to administer law and thus it should not be instrumental in
impleading or obstructing justice.36 In case of conflict between Civil Procedure Code,
1908 and its Schedule, the code must prevail.37 Law of Civil Procedure Code is based
on the principle that, as far as possible, no proceedings in a court of law should be
allowed to be defeated on grounds of mere technicalities. The provisions of the code,
therefore, must be interpreted in a manner so as to sub-serve and advance the cause of
justice rather than to defeat it.38 Further the provisions of Civil Procedure Code are
subject to the provisions of Limitation Act. Both Acts are general Acts and are in pari
materia. The Acts must, therefore, be read together and must be treated as
complementary to each other.39
Discretion of Courts.—
It has been held that the Code in many of the sections leaves certain matters to the
discretion of the Court.40 However, the discretion must not be exercised in an arbitrary,
vague or fanciful manner but on judicial principle.41 The term "judicial discretion"
means that in certain proved or admitted circumstances the Court has been given
power to act or not to act in a particular way and such discretion must be exercised
within the limits to which an honest man competent to the discharge of his office ought
to confine himself.42
Conflicting Bench decisions.—
In case of conflict among Bench decisions of the same Court, the better course for the
Bench hearing the case is to refer the question to a Full Bench.43
2 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 2, for sub-section (3)
(w.e.f. 1-2-1977).
3 Sudhir G Angur v M Sanjeev, AIR 2006 SC 351 .
4 Act XXIII of 1861.
5 Act VIII of 1859.
6 Act X of 1877.
7 Act XIV of 1882.
8 Act V of 1908.
9 Vareed Jacob v Sosamma Geevarghese, AIR 2004 SC 3992 .
10 See Ravula Sobba Rao v CIT, AIR 1956 SC 604 : 1956 SCR 577 : (1956) 30 ITR 163 .
11 By the Act 30 of 1965, section 3, w.e.f. 15th June, 1966. [Now Goa is no longer a Union
Territory and is a State by the Constitution (Amendment Act) 1987.]
12 See Regulation 8 of 1965, section 3 (i) and Schedule, w.e.f. 1st October, 1967.
13 By Act 28 of 1968, section 3 (i) and Schedule, w.e.f. 5th September, 1968.
14 By Regulation 6 of 1966, w.e.f. 1st July, 1965.
15 Shanthanand v Basudevanand, AIR 1930 All 225 (FB).
16 Savitri Thakurain v Savi, AIR 1921 PC 80 .
17 Mohd Azim Khan v Mumtaz Ali Khan, AIR 1932 Oudh 163 (DB).
18 Algasundaram v Pichuvier, AIR 1929 Mad 757 (FB).
19 Smith v Indian Textile Company, AIR 1927 All 413 (DB).
20 Macha Kondan v Kottora Kounden, AIR 1936 Mad 50 (FB).
21 ILR (1968) 2 Punj 318 .
22 Venkata Narsinha v Lakshmi Venkayamma, 1910 Ind Cases 102 (FB) Madras. See also AIR
1914 PC 66 .
23 Sudhir G Angur v M Sanjeev AIR 2006 SC 351 .
24 Chhabildas v Luhar Kohan, AIR 1967 Guj 7 .
25 ILR (1966) 2 Mad 522 .
26 Thakar Lal v Nathu Lal, AIR 1964 Raj 140 (DB).
27 State of Tamil Nadu v State of Kerala, AIR 2014 SC 2413 .
28 Mahanagar Telephone Nigam Ltd v Applied Electronics Ltd, AIR 2014 Del 182 .
29 Permunand v Firm Jawahar Singh, AIR 1952 Punj 381 ; See also Gulab Chand v Kudil Lal, AIR
1951 MB 1 (5) (FB).
30 AIR 1917 Pat 375 (DB).
31 Manohar Lal v Hiralal, AIR 1962 SC 527 : 1962 Supp (1) SCR 450 : 1963 All LJ 169.
32 Devaraju v Prabhuviah, AIR 1953 Mys 57 (DB).
33 Bhinka v Charan Singh, AIR 1959 SC 960 : 1960 SCJ 892 .
34 WI Theatres v Municipal Corporation, Poona, AIR 1959 SC 586 : 1959 Supp (2) SCR 71 .
35 Sangram Singh v Election Tribunal, AIR 1955 SC 425 : (1955) 2 SCR 1 . See also Binda Prasad
v United Bank of India, AIR 1961 Pat 152 .
36 Punjab Co-operative Bank v Lala Bikram Lal, AIR 1959 Punj 71 .
37 Ram Dayal v Sheo Dayal, AIR 1939 Nag 186 (FB).
38 State of AP v Pioneer Builders, AP AIR 2007 SC 113 .
39 Duragpal Singh v Pancham Singh, AIR 1939 All 403 (FB).
40 Abdul Bari Chowdhry v CIT, AIR 1931 Rang 194 (FB).
41 V Shree Ramamurthy v Income Tax Officer, AIR 1957 AP 114 (DB).
42 Abdul Bari Chowdhry v CIT, AIR 1931 Rang 194 (FB).
43 Jaisri Sahu v Rajdewan, AIR 1962 SC 83 (88) : (1962) 2 SCR 558 : (1962) 1 MLJ (SC) 258.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 2. Definitions.
© 2020 LexisNexis
Preliminary
S. 2. Definitions.
In this Act, unless there is anything repugnant in the subject or context,—
(1) "Code" includes rules;
HIGH COURT AMENDMENT
Calcutta.—In clause (1) after the words "includes rules" add the words "and, in its
application to Courts other than the Court of Small Causes of Calcutta, means the
Code of Civil Procedure, 1908; and, in its application to that Court, means the
provisions of the Code of Civil Procedure, 1908, as adapted, modified and extended by
the provisions of notifications issued from time to time under the provisions of Section
8 of that Code" vide Cal. Gaz. Pt I dated April 20, 1967.
(2) "decree" means the formal expression of an adjudication which, so far as

regards the Court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to include the rejection of
a plaint and the determination of any question within44 [* * *] Section 144, but
shall not include—
(a) any adjudication from which an appeal lies as an appeal from an order,
or
(b) any order of dismissal for default.
Explanation.— A decree is preliminary when further proceedings have to

be taken before the suit can be completely disposed of. It is final when
such adjudication completely disposes of the suit. It may be partly
preliminary and partly final;
Calcutta.—In clause (2) insert a fullstop after "matters in controversy in the suit";
substitute "In Courts other than the Court of Small Causes of Calcutta it" for
"and" after "matters in controversy in the suit"; insert a semi-colon and the word
"and" in place of the fullstop after "preliminary or final" vide Cal. Gaz. Pt I, dated
April 20, 1967.
(3) "decree-holder" means any person in whose favour a decree has been passed
or an order capable of execution has been made;
(4) "district" means the local limits of the jurisdiction of a principal Civil Court of
original jurisdiction (hereinafter called a "District Court"), and includes the local
limits of the ordinary original civil jurisdiction of a High Court;
(5) 45["foreign Court" means a Court situate outside India and not established or
continued by the authority of the Central Government;]
(6) "Foreign judgment" means the judgment of a foreign Court;
(7) "Government Pleader" includes any officer appointed by the 46[State

Government] to perform all or any of the functions expressly imposed by this
Code on the Government Pleader and also any pleader acting under the
directions of the Government Pleader;
47
[(7A) "High Court", in relation to the Andaman and Nicobar Islands, means the
High Court in Calcutta;
(7B) "India", except in Sections 1, 29, 43, 44, 48[44A], 78, 79, 82, 83 and 87A,
means the territory of India excluding the State of Jammu & Kashmir;]
(8) "Judge" means the presiding officer of a Civil Court;
(9) "Judgment" means the statement given by the Judge on the grounds of a
decree or order;
(10) "judgment-debtor" means any person against whom a decree has been
passed or an order capable of execution has been made;
(11) "legal representative" means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate
of the deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party
so suing or sued;
(12) " mesne profits" of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest on such profits but
shall not include profits due to improvements made by the person, in wrongful
possession;
(13) "moveable property" includes growing crops;
Calcutta.—In clause (13) insert the words "except in suits or proceedings in the Court
of Small Causes of Calcutta" after the words "growing crops" vide Cal. Gaz. Pt I, dated
April 20, 1967.
(14) "order" means the formal expression of any decision of a Civil Court which is
not a decree;
(15) "pleader" means any person entitled to appear and plead for another in Court,
and includes an advocate, a vakil and an attorney of a High Court;
(16) "prescribed" means prescribed by rules;
(17) "public officer" means a person falling under any of the following
descriptions, namely:—
(a) every Judge;
(b) every member of 49[an All India Service];
(c) every commissioned or gazetted officer in the military, 50[naval or air]

forces of 51[the Union], 52[* * *] while serving under the Government;
(d) every officer of a Court of Justice whose duty it is, as such officer, to
investigate or report on any matter of law or fact, or to make,
authenticate or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath,
or to interpret, or to preserve order, in the Court, and every person
especially authorised by a Court of Justice to perform any of such
duties;
(e) every person who holds any office by virtue of which he is empowered
to place or keep any person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to
prevent offences, to give information of offences, to bring offenders to
justice, or to protect the public health, safety or convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or
expend any property on behalf of the Government, or to make any
survey, assessment or contract on behalf of the Government, or to
execute any revenue-process, or to investigate, or to report on, any
matter affecting the pecuniary interests of the Government or to make,
authenticate or keep any document relating to the pecuniary interests
of the Government or to prevent the infraction of any law for the
protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated

by fees or commission for the performance of any public duty;
(18) "rules" means rules and forms contained in the First Schedule or made under
Section 122 or Section 125;
Calcutta.—In clause (18) insert the words "in its application to Courts other than the
Court of Small Causes of Calcutta" after the word "rules" and before the words "means
rules and forms"; and the words "of the Code of Civil Procedure, 1908, and, in its
application to that Court means the rules of Practice and Procedure of that Court made
under Section 9 of the Presidency Small Cause Courts Act, 1882, and includes the rules
and forms contained in the First Schedule of that Code which are made applicable to
that Court by virtue of the provisions of Order LI of that schedule" after the words
"Section 122 or Section 125" vide Cal. Gaz. Pt I, dated April 20, 1967.
(19) "share in a corporation" shall be deemed to include stock, debenture stock,

debentures or bonds; and
(20) "signed", save in the case of a judgment or decree, includes stamped.53[* * *]

COMMENT.—
Various expressions have been used in section 2 of the Code. The definition given to
various terms apply unless there is anything repugnant in the subject or context. The
effect of these reservation clauses is that though a definition may be exhaustive and
the word defined may point out to a certain thing, yet it is possible for the word to have
a somewhat different meaning in different sections. It has been held by the Supreme
Court in Vanguard Fire and General Assurance v Fraser and Ross, AIR 1960 SC 171 :
(1960) 3 SCR 857 : (1960) 30 Com Cas (I) 13 that the Court has always to look to the
context, the collocation and the subject of such words relating to such matters and
interpret the meaning intended to be conveyed by the use of the word. Thus, the
meaning of a word is to be judged from the company it keeps.
Generally, all statutes contain a section in the beginning wherein words or expressions
used in the statute are defined. The definition clause is like a dictionary to understand
the meaning of the words or terms used in the statute. The section defining the various
words is also called interpretation clause.
While interpreting a definition, the interpretation should not be repugnant to context

and also it should be such as would aid the achievement of purpose of the Act. A
construction which would defeat the purpose of the Act should be ignored.54
While defining a term when word "means" is used indicates that such definition is prima
facie restrictive or exhaustive in nature and does not permit addition of anything else to
the given definition. When in the definition clause given in any statute, the word
"means" is used, what follows is intended speak exhaustively. When the word "means"
is used in the definition, it is "hard and fast" definition and no meaning other than that
which is put in the definition can be assigned to the same.
The expression "includes" in the definition clause indicates that it enlarges the meaning
of the expression defined. When the word "includes" is used in the definition, the
legislature does not intend to restrict the definition, it makes the definition enumerative
but not exhaustive. That is to say meaning but its scope would be extended to bring
within it matters which in its ordinary meaning may or may not comprise.55
For example, section 2(1) of Code of Civil Procedure defines the expression "code" as
follows "code" includes rules. Here the definition of the term "code is enumerative in
nature".
Code.—
The code creates jurisdiction and is unalterable except by the Legislature, whereas the
rules indicate the mode in which jurisdiction is to be exercised and can be altered or
amended by the High Courts.56 The division between the body of the Code and the
rules was introduced "to enable variations to be introduced in procedure to meet the
requirements of different localities as well as to enable defects to be remedied as they
are discovered without resort to the tardy process of legislation".57
It has been held by the Supreme Court in State of UP v CB Misra, AIR 1980 SC 591 :
(1980) 1 SCC 198 : 1980 ALJ 246 that the word "Code" includes not only sections, but
also rules in First Schedule and rules made by the High Courts amending the rules in
First Schedule.
Thus, the chief feature of the Code is the distinction between what is termed the body
of the Code and the rules. The body of the Code creates jurisdiction and is unalterable
except by the Legislature. But the rules, which indicate the mode in which such
jurisdiction is to be exercised, can be altered or amended by a High Court. Such
alteration or amendments have the force and effect only within the local limits of the
jurisdiction of the High Court.
The rules are deemed to be enacted in the body of the Code itself. Therefore, that
construction is to be adopted, which would reconcile the Code and the rules. However,
if there is a clear conflict between the two, the provisions of the Code will prevail.
Decree.—
It is very important to know the definition of "decree" because the right of first appeal
and second appeal is determined by reference to it only. Every adjudication of a Court
of law would be either "decree" or "order" but it cannot be both.58 Whether the
adjudication in any case is a decree or order must be tested not by reference to general
principles but by the expression of the Code, construed in its plain and obvious
sense.59
Decree Defined.—
Section 2(2) of the Code defines "decree". Unless there is anything repugnant in this
subject or context "decree" means the "formal expression of an adjudication which so
far as regards the Court expressing it, conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint and
determination of any question within section 47 or section 144."60
Definition of decree includes preliminary decree and final decree. There can be more
than one preliminary/final decree in a suit.61
Essentials of "Decree".—
A decree must satisfy the following tests:
— There must be an adjudication,
— Such adjudication must have been given in suit,
— It must have determined the rights of the parties with regard to all or any of the
matters in controversy in the suit,
— Such determination must be of a conclusive nature and
— There must be a formal expression of such adjudication.62
The expression "decree" does not include, inter alia, "any order of dismissal in default."
Thus, it encompasses within itself the formal expression of the adjudication when it
allows the suit, as well as when the suit is disallowed, or dismissed. However, only
limitation is that it should not be an order of dismissal for default.63
Where the real question was whether by reason of restoration of execution petition, the
attachment affected in earlier execution petition stood revived or not, it has been held
by the Andhra Pradesh High Court in Sarnapudi Appanna v Rapanti Narsinga Rao, AIR
1975 AP 304 , relying on a Supreme Court decision64 that if the questions that arise
relate to execution, discharge or satisfaction of the decree then it does not matter
whether such question arises before or after the decree had been executed. The
question involved is covered by the definition of the decree contained in section 2(2),
Civil Procedure Code.
A change has been made by omitting the words "section 47" from sub-section (2) of
section 2 so that the determination of question under this section may not amount to a
decree. This provision of the Code was mainly found responsible for the delay in the
execution decrees.
It has been held by the Rajasthan High Court in Mohan Das v Kamla Devi, AIR 1978 Raj
127 that the definition of "decree" having been amended by omitting the words "section
47 or," any order passed under section 47, Code of Civil Procedure which otherwise
treated as decree is no more a decree and as such first appeal and second appeal
which were provided earlier against the order passed under section 47 are no more
there.
Reference may also be made to Ram Nivas v Mithan Lal, AIR 1979 P&H 262 ; Jagat Ram
v Jagjit Singh, AIR 1984 P&H 281 .
Reference may also be made to a full bench decision of Allahabad High Court in Pratap
Narain Agarwal v Ram Narain, AIR 1980 All 42 (FB).
Regarding the question as to whether the award of the learned arbitrator tantamounts
to decree or not, the language used in section 36 of the Arbitration Act, 1996 makes it
clear that such an award has to be enforced under the Code of Civil Procedure in the
same manner as it were a decree of the court. The said language leaves no room for
doubt as to the manner in which the award of the Arbitrator was to be accepted.65
Decree and order—Distinction.—As the words "formal expression" appear in the

definitions both of decree and order in this section, the presence or absence of formal
expression cannot be the true criterion of the difference between the two. The essence
of the distinction lies in the nature of the decision—whether it is an adjudication of a
particular kind or not—rather than in the manner of its expression.66
(1) Every decree is appealable except a consent decree whereas every order is not
appealable except as specified in section 104(1) and O XLIV, rule I of Code of Civil
Procedure, 1908.
(2) There is a provision of a second appeal from the decree passed in the first appeal
on certain grounds, whereas no second appeal lies even in case of appealable orders.
(3) A decree adjudicates and conclusively determines the rights of the parties with
regard to all or any of the matters in controversy, whereas an order may or may not
finally determine the rights of the parties.
(4) A decree may be either preliminary or final or both, whereas an order cannot be
preliminary.
(5) In a suit only one decree is passed, whereas orders may be passed more than one
in the same proceedings.
(1) An adjudication.—In order to see whether a decision of Court is a decree there must
be an adjudication i.e., a judicial finding to the matter in controversy. The judicial finding
must be by a "Court." An order passed by an officer who is not a Court is not a
decree.67
Abatement of appeal for non-substitution does not imply adjudication on merits. When
an appeal abates there is no decree under section 2(2) of Code of Civil Procedure, 1908
and a second appeal against such an order is therefore, incompetent.68
A decision on a matter of administration is not a decree. Thus, order by which an

appeal is dismissed for want of prosecution is not a decree as it does not deal
judicially with the matter in the suit. Similarly, when a case is dismissed for default of
appearance of the parties, there is no adjudication and hence not a decree. The
dismissal of suit against minors who are not properly represented is not decree.
Furthermore, where the officer passing a judgment is not a "Court", the judgment or
order is not a decree.
(2) Adjudication in a suit.—The term "suit" has not been defined. The Privy Council in
Hans Raj v Dehradun Mussoorie Electric Tramways Co Ltd, AIR 1935 PC 63 laid down the
definition of "suit" as follows:
The word "suit" ordinarily means and apart from some context must be taken to mean, a
civil proceeding instituted by the presentation of a plaint.
Thus, suit means a civil proceeding which is instituted by means of a plaint. A

proceeding which does not commence with a plaint is not a suit. As such an
application for leave to sue by an indigent person is not a suit. The application
becomes a suit only after the leave is granted and an order passed on such
applications is not a decree.
There are certain proceedings under other Acts, which according to specific provisions
in such Acts, are to be regarded as suits under this code. Thus, the proceedings under
the Indian Succession Act; Guardians and Wards Act and Provincial Insolvency Act are
statutory suits and therefore, the decisions therein are decrees.
It has been held by Madras and Bombay High Courts that when there is no civil suit,
there will be no decree.69
It has been held that the denial of primary relief would amount to a decree.70 Where an
application is made for modification of a scheme under section 92 of the Code which
has been made a part of the decree, the order passed on such an application modifying
the scheme, would be an amended decree.71
(3) Right of parties and matters in controversy.—The word "right" should be taken to
mean only substantive rights of the parties relating to the subject-matter of the suit.72
It means general rights such as rights relating to statutes or jurisdiction.73 So far as
partition suits are concerned, if an event transpires after the preliminary decree which
necessitates a change in shares, and if there is a dispute in that behalf, the order of the
Court deciding that dispute and making variation in shares specified in the preliminary
decree already passed is a decree in itself.74
The "matters in controversy" are those which are of vital importance between the
parties. But such matter should arise at a subsequent stage of a suit. The expression
does not include proceedings preliminary to the institution of suits.
(4) Right must be conclusively determined.—The decision of the Court must be

conclusive and final. An order which does not decide a suit finally cannot be a decree.
An order rejecting application for modification of scheme is a decree.75 But a
conditional decree is not proper. Thus, where the decree is passed ordering that
defendant would be liable for the full amount if plaintiff produced document showing
payment of income-tax within two months of the date of decree, it would not be proper
decree.76 A remand under inherent power not deciding any point conclusively and
leaving the decision to trial Court has been held to be not a decree.77A preliminary
decree passed whether it is in a mortgage suit or a partition suit, is not a tentative
decree but must be regarded as conclusive.78
(5) Formal expression of adjudication.—It is essential for a decree that there should be a
formal expression of the adjudication.79 The term "formal expression of an
adjudication" does not cover interlocutory order which is insufficient for the decision of
the suit. In other words, it is now well settled that nothing will operate as a decree
unless formally drawn up.80
Dismissal of suit as withdrawn by the plaintiff under O XXXIII, rule 1, is not a decree
within section 2 of the Code.81
It has been held that the following would not fall under the term decree:
(i) An order directing stay of a suit;
(ii) An order remanding a suit for fresh disposal and
(iii) An order returning the plaint for presentation to the proper Court.
The expression "decree" encompasses within itself not only the formal expression of
the adjudication when it allows the suit but also when the suit is disallowed or
dismissed. The only limitation is that it should not be an order of dismissal for
default.82 Rejection of delay condonation application and consequent dismissal of
appeal, such order tentamounts to "decree" and second appeal against such order is
maintainable.83
Report of Commission, not decree.—
The report of the Special Commission could not per se operate as a decree. It had that
force after the sanction of the Nizam which was given to it by the fireman dated 26
June 1947. The result was that a decree capable of execution was brought into
existence by the firman dated 26 June 1947.84
A decision of the Tribunal under sections 3 & 6 of the Inter State Water Disputes Act,
1956 is not a decree of a civil suit.85
An order passed in appeal under section 299 of Succession Act, 1925 is judgment if
not a decree.86
A decree obtained by fraud is nullity.—
A litigant is bound to produce all the documents, relevant to the litigation. If he

withholds a vital document in order to gain advantage on the other side then he would
be guilty of playing fraud on the Court as well as on the opposite party. A decree
obtained by fraud is a nullity. It can be challenged even in collateral proceedings.87
Dismissal of appeal as time barred is not decree.—

Rejection of an application for condonation of delay does not amount to a decree.
Dismissal of an appeal as time barred is also not a decree.88
Order Admitting Appeal is not a decree.—
An order admitting appeal is not a judgment, decree, determination, sentence or even

order.89
What is not a composite decree.—
Decree for possession and for computation of mesne profit is not composite decree.90
Determination under section 49 of Land Acquisition Act is not decree.—
A determination under section 49 of the Land Acquisition Act is not a decree within this
section and an appeal against it under section 96 Code of Civil Procedure, 1908 will not
lie.91
No decree can be passed granting a higher right to the plaintiff than what was available
to him under the agreement which he had entered into with the owners of the land.92
It is only where a court adjudicating a case, conclusively determines rights of parties

with regard to any one or more or all matters in controversy, that it qualifies as "decree".
Procedural irregularity of not framing issue was inconsequential.93
Classes of decrees.—The decrees recognised in the Code are (i) preliminary decree (ii)
order rejecting the plaint, (iii) final order is decree, (iv) amendment decree, (v) decree
partly preliminary and partly final, and (vi) final decree, (vii) determination of a question
within section 144.
(i) Preliminary Decree.—An adjudication which finally decides the rights of parties, but
does not completely dispose of the suit is a preliminary decree.94 A preliminary decree
is only a stage in working out the rights of the parties which are finally adjudicated by
the final decree.95 Whereas final decree completely disposes of the rights of the
parties in respect of all or any of the matters in controversy.
In other words, a preliminary decree is one which declares the rights and liabilities of
the parties, leaving the actual result to be worked out in further proceedings. It may be
noted that where any party aggrieved by a preliminary decree does not appeal from
such decree, he is precluded by section 97 from disputing its correctness in any appeal
which may be preferred from the final decree.
Whether there can be more than one preliminary or final decree in the same suit? There
has been a conflict of judicial view on this matter. The Allahabad High Court has held
that there can be only one preliminary decree and one final decree in a suit. Whereas
the Calcutta and Madras High Courts have held that there is nothing in the Code of Civil
Procedure prohibiting the passing of more than one preliminary or final decree.
The following are the instances of a preliminary decree:

(i) A decree for possession and mesne profits (O XX, rule 12).
(ii) A decree in administration suit (O XX, rule 13).
(iii) A decree in pre-emption suit (O XX, rule 14).
(iv) A decree in suit for dissolution of partnership (O XX, rule 15).
(v) A decree in suit for account between principal and agent (O XX, rule 16).
(vi) Decree in suit for partition of property or separate possession of a share therein
(O XX rule 18).
(vii) A decree when set-off is allowed (O XX, rule 19).
(viii) A preliminary decree in foreclosure suit (O XXXIV, rule 2).
(ix) Final decree in foreclosure suit (O XXXIV, rule 3).
(x) A preliminary decree in suit for sale (O XXXIV, rule 4).
(xi) A final decree in suit for sale (O XXXIV, rule 5).
(xii) A preliminary decree in redemption suit (O XXXIV, rule 7).
(xiii) A final decree in redemption suit (O XXXIV, rule 8).
Fundamentally, the distinction between preliminary and final decree is that, a

preliminary decree declares rights and shares of the parties and leaves room for some
further inquiry to be held and conducted pursuant to directions made in preliminary
decree, pursuant to which a final decree is drawn up. Pendency of appeal against final
decree cannot take away finality of preliminary decree not having been appealed
against, which has already declared rights, title and interest of the parties. In such a
case, there is no proceeding "pending" before any court in respect of rights and
interests adjudicated by the preliminary decree that has attained finality. Hence,
statutory abatement will not apply and thus cannot wipe out adjudication of rights and
interests contained in such preliminary decree.
Furthermore, even pendency of appeal against final decree (when no appeal was
preferred against preliminary decree), will not change the above proposition. On the
other hand, if appeal against preliminary decree is pending then, statutory abatement
will apply and entire proceedings from their inception will be wiped out, and any
declaration/adjudication contained in such preliminary decree shall also wiped out and
become non est.96
(ii) Order rejecting the plaint.—It has been held by the Supreme Court that an order
rejecting a plaint under O VII, rule 11, Civil Procedure Code, 1908, for non-payment of
additional Court fee demanded, is a decree and is appealable.97
An order of rejection of plaint under O VII rule 11 Code of Civil Procedure, 1908 results
as if nothing is ending before the court and the definition of decree under section 2(2)
of the Code of Civil Procedure, 1908 specifically says that it shall include rejection of a
plaint as a result thereof, it cannot be doubted that rejection of plaint under O VII rule
11 Code of Civil Procedure, 1908 would give a right of appeal under rection 96 of Code
of Civil Procedure, 1908.98
(iii) Final Order is Decree.—An order setting aside sale as nullity is a final order and not
an interlocutory order and falls within the definition of decree under section 2(2) read
with section 47.99
A final order passed by single judge between the parties adjudicating upon the rights
and obligations which are building between the parties thereto and are unfavourable,
may not be, stricts sensu a decree within the meaning of section 2(2) of the Code. It is
beyond any cavil that the same would be a judgment within the meaning of section 2(9)
thereof.100
In Sandhya Rani Sarkar v Sudha Rani, AIR 1978 SC 537 (540) : (1978) 2 SCC 116 : (1978)
2 SCR 839 the Supreme Court has held that a decree passed in a suit for specific
performance of contract for sale of immovable property calling upon the purchaser to
deposit the balance of consideration within the time stipulated in decree with
superadded condition that in the event of default the suit would stand dismissed, is not
a preliminary decree.
In suits which contemplate the making of two decrees—a preliminary and a final decree
—the decree which would be executable would be the final decree. But again, it has
been held by the Supreme Court that the finality of a decree or decision does not
necessarily depend upon its being executable.101
Whether more than one decree could be passed under the Code or not, there existed a
conflict of judicial opinion. The conflict has now been set at rest with regard to partition
suits. It has been held by the Supreme Court that there is nothing in the Code of Civil
Procedure which prohibits the passing of more than one preliminary decrees, if
circumstances justify the same and that it may be necessary to do so, particularly in
partition suits when after the preliminary decrees some parties die and the shares of
other parties are thereby augmented."102
(iv) Amendment Decree.—An order modifying a scheme under section 92 of the Code
which is part of a decree, constitutes an amendment decree against which an appeal
would lie.103
(v) Decree partly preliminary and partly final.—It has been held that the Code of Civil
Procedure itself contemplates the possibility of a decree partly preliminary and partly
final.104 Thus, for example, in a suit for possession and mesne profits a decree for
possession and for mesne profits is passed. The decree for possession is final but the
decree for mesne profits is only preliminary because the final decree for mesne profits
can be drawn only after the amount due is ascertained after further enquiry. In such a
case, although there is one decree, it is partly preliminary and partly final.
Similarly, if a suit is filed by one partner against another for dissolution of the
partnership and for taking accounts, the Court may pass a preliminary decree declaring
the proportionate shares of the parties and directing accounts to be taken. It may then
pass a final decree later on, directing payment of debts due by the partnership and
directing payment to the parties of the amount due to them on the taking of the
accounts.
(vi) Final decree.—A final decree is one when no appeal is filed from the decree and the
period also prescribed for appeal has expired. A decree becomes final in a case where
it completely disposes of the suit. The final decree merely carries into fulfilment the
preliminary decree.105
Thus, a decree may be said to become final in two ways:
(1) When the time for appeal has expired without any appeal being filed, or the
matter has been decided by the decree of the highest Court.
(2) When the decree, so far as regards the Court passing it, completely disposes of
the suit.
It is in the latter sense that the words "final decree" are used in section 2 clause (2).
The final decree merely carries into fulfilment the preliminary decree. If an appeal from
the preliminary decree succeeds, the final decree automatically falls to the ground.
A decree to which a condition is attached, upon the fulfilment of which the decree
holder is to enjoy the fruits of his decree, does not because of that, become a
preliminary decree, it is nevertheless a final decree. The definition of a decree includes
preliminary and final decree. These can be more than one preliminary/final decrees in a
suit. A decree may be partly preliminary and partly final.106 Thus, for example:
A files a suit for pre-emption against B. A decree is passed in A's favour but with the
condition that unless the purchase-money is paid within two months from the date of
the decree, the suit shall stand dismissed. The decree is a final one, inasmuch as the
Court having passed such a decree has no further judicial function to perform in
respect of the complete disposal of the suit.
A compromise decree was passed in partition suit. In determination of, whether it is

partly preliminary or partly final, reference has to be made to decree itself and
compromise application. Intention of party was to finally settle the suit. The parties
mutually agreed to keep some of properties joint. Since partition in meters and bounds
was not possible in respect of those properties and compromise application contained
no clause regarding future course of action, decree could not be said to be partly
preliminary or partly final, but final decree.107
(vii) Determination of a question within section 144.—When a plaint is rejected, the order
rejecting it is not an order but a decree and as such is appealable. However, there is no
decree where the rejection of a plaint is not under the Code of Civil Procedure. When
the Court determines any question on an application for restitution (under section 144)
the same is deemed to be decree. Thus, when the Court passes an order for restitution
of costs, it amounts to a decree.
The definition of decree under section 2(2) of the Code takes in both an order made
under section 47 and that made under section 144 of the Code. The two sections are
included for the purpose of giving a right of appeal.108
It has been held by a full bench of Andhra Pradesh High Court in Guntupalli Rama
Subbayya v Guntupalli Rajamma, AIR 1988 AP 226 (FB) that an order passed in
execution proceedings does not amount to a decree. Execution proceedings cannot be
regarded as continuation of the suit in the sense in which the proceedings in appeal are
treated.109
Binding nature of a decree.—
A decree may be partly preliminary and partly final, but a decree, whether preliminary or
final, is binding on the parties.110
Partition decree, evidentiary value of early partition deed.—
Where earlier partition deed is available on record, no further proof thereof would be
required, more so, when the plaintiff himself rely on the same. That can be shown as
proof of schedule of properties to be partitioned.111
Not an appeal against decree.—
Appeal against judgment and order of family court cannot be treated as appeal against
decree having been made in exercise of original civil jurisdiction.112
Ex parte Decree.—
Decree passed under O VIII rule 10 of the Code of Civil Procedure is an ex parte decree
and merely because it is an ex parte decree the same113
does not cease to have the force of the decree as it is a valid decree for all purposes.
Consent Decree.—
During the course of litigation, the parties to the suit may reconcile and enter into
certain terms of settlement. The parties then submit these terms of settlement on
terms of compromise to the court, praying the court to pass a decree as per the terms
and conditions of mutual settlement. A decree which court passes in such cases is
called as consent decree or compromise decree.
In passing the decree by consent, the court adds its mandate to the consent. A consent
decree is composed of both a command and a contract. A consent decree is a contract
with the imprimatur of the court. Imprimatur means authorised or approved.114
Decree-holder.—
Under the old Code the transferee from the decree-holder was included in the definition
of the term "decree-holder". This was considered to be too general so as to include
even oral assignments. Then the words "and includes any person to whom such decree
or order is transferred" were omitted. As a result of this, a decree-holder under the
present definition must be a person in whose favour a decree is passed and whose
name is on the record in suit. Thus, if a decree is passed in favour of a manager of a
joint Hindu family, it cannot be executed by partnership consisting of the members of
the same joint family.115
Even a defendant can be a decree-holder. Thus, where a decree for specific

performance is passed, such decree is capable of execution both by the plaintiff and
the defendant.116
A decree-holder need not be a party to the suit. If the decree confers upon someone,
some enforceable right, he is entitled to execute the same.117
The term decree holder denotes a person (i) in whose favour a decree has been
passed, (ii) in whose favour an order capable of execution has been passed, (iii) whose
name appears in the decree either as plaintiff or defendant and the following
conditions are satisfied:
(a) The decree must be one capable of execution and
(b) The said person, by the terms of the decree itself or from its nature should be
legally entitled to seek its execution.
Similarly, the term "holder of decree" takes in not only "decree holder", but other rightful
persons like transferee of a decree, legal representative, etc.118
Decree Holder and Holder of Decree-Distinction.—
There is a marked difference in the expressions used by the Code of Civil Procedure in
section 2(3) and O XXI rule 10. The term decree holder is defined in section 2(3) of
Code of Civil Procedure. The expression used is holder of decree in O XXI rule 10 of the
Code of Civil Procedure. Though the expressions may appear to be synonymous, there
is a legal distinction between these two expressions. The expression, holder of a
decree occurring in O XXI rule 10 of the Code of Civil Procedure takes in a transferee of
a decree and a legal representative of the decree holder also. Order XXI of rule 16 the
Code of Civil Procedure deals with an application for execution by transferee of a
decree. Such a person also comes within the expression "holder of a decree". The
Supreme Court in the case of Dhani Ram Gupta v Sri Ram Gupta, AIR 1980 SC 157
answering the question as to whether the property in a decree passes as intended in
the deed of assignment, without the recognition of transfer by the court as a
precondition, the Supreme Court held that the property in a decree must pass to the
transferee under a Deed of Assignment when the parties to the deed intend such
property to pass and it does not depend on the court's recognition of the transfer. It
goes without saying that such a transferee is also entitled to execute the decree.
Therefore, the expression holder of a decree in O XXI rule 10 of the Code of Civil
Procedure, 1908 takes in parties other than whose name appear on the decree.
Likewise, a legal representative of a decree holder, though his name may not be
inscribed in the decree, can execute it as provided in the Code of Civil Procedure. The
term "decree holder" defined in section 2(3) of the Code of Civil Procedure, 1908 takes
in persons in whose favour the decree was made. It includes persons who have been
recognised by the court by order as the decree holder from the original plaintiff or his
representative.
Whereas the expression "holder of a decree" includes the transferee of a decree as well
as the legal representative of a decree holder.119
District.—
District means the local limits of the jurisdiction of a principal Civil Court of original
jurisdiction and includes the local limits of the ordinary original civil jurisdiction of a
High Court. By "jurisdiction" is meant the extent of the power which is conferred upon
the Court by its constitution to try a proceeding; its exercise cannot be enlarged by
assuming to itself jurisdiction, which it does not otherwise possess. Thus, it has been
held by the Supreme Court that during vacation of Mysore District Court, Mysore High
Court cannot assume jurisdiction to receive a plaint and issue an order of temporary
injunction.120
Foreign Court.—
Two conditions must be satisfied in order to bring a Court within the definition of a
"foreign Court",121 viz.:
(i) it must situate outside India, and

(ii) it must not have been established or constituted by the Central Government.122
Foreign Decree.—
A decree passed by Bankura Court in West Bengal in 1949 cannot be considered a

foreign decree. Bankura Court is neither a foreign Court nor its judgment a foreign
judgment. A decree passed by the Court at Morena in the former Madhya Bharat State
cannot be considered as a foreign decree for the purpose of the Code.123
Foreign Judgment.—
See sections 13 and 14 for details.
Government Pleader.—
An Advocate appointed to act as a special government pleader in a particular case

does not hold any office and hence not disqualified under Article 191 of the
Constitution.124
This section vests no sole control on one Government Pleader over others. The
Government is perfectly free to put a particular Government pleader in charge of
particular cases. Each one of them is a Government Pleader and may depute other
lawyers and exercise control over such surrogates. Thus, a Government can appoint as
many Government Pleaders as it likes. Not to provide more Government counsel when
the volume of work demands it, would clog the dockets in Court and help our Pleader to
corner all the briefs, without recourse to expeditious or efficient disposal.125
An Assistant Government Advocate is included in the term "Government Pleader".126
India.—
Since the word "India" does not occur in section 80, the provision need not be
interpreted in the light of the definition of India. Suit against State of Jammu and
Kashmir is not maintainable without giving notice to that Government.127
Judge.—
Judge means the presiding officer of a Civil Court. The term Court has not been defined
in the Code. But for the purpose of this Code, it has been held to mean "a place where
justice is judicially administered". Thus, it has been held that an Additional District
Judge acting under section 9 of Punjab Premises (Eviction of Unauthorised
Occupation) Act of 1958 is not a Court, but is persona designate, hence he cannot make
a reference under section 113 of Civil Procedure Code, 1908.128
A judge primarily determines all matters of disputes and pronounces what is law now,
as well as what will be the law for the future. The Family Court is a court and the
presiding officer that is, judge of the Family Court is a "judge" though of limited
jurisdiction.129
A judgment is a statement of grounds of a decree or order given by judge. The

members of Administrative Tribunal cannot be considered to be judges and so their
statements cannot be treated as decree. They may be construed to be only orders.130
Judgment.—
The essential element of a judgment is that there should be a statement of the grounds
of the decisions. It need not, however, be a decision on all the issues in a case. It has
been held by the Supreme Court that an order of Election Tribunal under section 98,
Representation of the People Act, containing reasons for the decisions is a judgment
within section 12 of Limitation Act.131
An order passed in appeal under section 299 of Succession Act, 1925 is judgment if
not a decree.132
An interlocutory order would be a judgment if it has quality of finality attached to it.133
Single Judge order under section 17B of Industrial Disputes Act, 1947 is not
judgment.—
An order of single judge passed on application under section 17B of Industrial Disputes
Act is judgment within the meaning of clause 10 of the Letters Patent of Patna and is
appealable. Definition of judgment in Code of Civil Procedure will not apply.134
A judgment of Court cannot be construed as statute since the judges interpret the
words of statutes, their words cannot be interpreted as statutes.135
A final order passed by single judge between the parties adjudicating upon the rights
and obligations which are binding between the parties thereto and are enforceable,
may not be, stricto sensu a decree within the meaning of section 2(2) of the code. It is
beyond any cavil that the same would be judgment within the meaning of section 2(9)
thereof.136
It has been held that section 2(9) defines the word "judgment" as defined in the Code
and not elsewhere.137 Thus, the meaning of the word "judgment" in Civil Procedure
Code is not helpful in ascertaining meaning of the word in section 10 of Delhi High
Court Act.138 Likewise this definition does not apply to the word as occurring in the
Letters Patent.139 "Judgment" in Article 133, Constitution of India also does not carry
the sense in which it is defined under this section.140 Order rejecting application to
appeal as pauper is not a judgment.141
Judgment, ratio decidendi of.—
The ratio decidendi of a judgment has to be found out only on reading entire judgments,
and not by reading a line here and there in the judgment. The answers given to the
questions framed, as set out at the end of judgment, is only brief summation of the
ratio laid down. The answers are to be read in context of what is set out in judgment to
ascertain ratio decidendi of judgment.142
The notes or jottings by the judges or their draft judgments cannot be treated their final
views expressed by them on the case and hence cannot be a part of a record held by
the public authority.143
Judgment must contain concise statement of case, points of decision, reasons for
decision after discussion but if no reason is assigned, such judgment will be liable to
be set aside.144.
Judgment-debtor.—
The term "judgment-debtor" does not include the assignee of the judgment-debtor.145
Party to the suit but against whom no decree has been passed is not a judgment-
debtor.146 However, pro forma defendant against whom no decree has been passed in
partition suit, is a judgment-debtor.147
Legal representative.—
The term "legal representative" means a person who in law represents the estate of a
deceased person and includes any person who intermeddles with the estate of a
deceased. In cases where a party sues or is sued in a representative character, the
term "legal representative" also covers the person on whom the estate devolves on the
death of the party so suing or sued.
A legal representative is "a person who in law represents the estate of a deceased
person". The estate does not mean the whole of the estate. Even a legatee who obtains
only a part of the estate of the deceased under the will can be said to represent the
estate and therefore, a legal representative under section 2(11).148
The legal representative includes heirs as well as persons who represent the estate
even without title either as executors or administrators in possession of the estate of
the deceased. All such persons are covered by the expression "legal representative".149
Definition of "legal representative" in section 2(11) includes intermediaries. They can

represent deceased in appeal.150
In its strictest sense, the term legal representative is limited to the executors and
administrators only. Its meaning has been extended in the Civil Procedure Code. Thus,
a universal legatee under a will executed by the deceased is his legal representative.
Like-wise, a person on whom the estate of the deceased devolves would be his legal
representative, even if he does not have any actual possession of the estate.
If during the pendency of execution proceedings against a director of a company, the

director dies, then the proceedings can be continued against his legal representative
whose liability would be limited to the value of deceased's estate in his hand.151
It has been held by the Supreme Court that a legatee who obtains only a part of the
estate of the deceased under a will can be said to represent his estate and is therefore,
a legal representative under section 2(11).152 The estate of a deceased person can be
sufficiently represented even by a wrong person, who is not legal representative.
Therefore, where the suit was instituted against a wrong person, the decree so passed
would be binding on the correct legal representatives.153
Restricted meaning toward "legal representative" would be against legislative intent

which is to award compensation to family to meet hardship which falls due to death of
earning member. Brother of deceased can be considered as legal representative and is
entitled to seek compensation.154
The claimants representing estate of deceased and intermeddling with the estate of
deceased are legal representatives of deseased and her in-law.155
Under the enlarged definition of "legal representative" a person in possession of the

estate belonging to the deceased must be deemed to be competent to represent the
deceased.156
After death of her husband, widow continues to represent his estate irrespective of her
re-marriage. Thus, such widow being the legal representative can maintain petition
under section 166 of the Motor Vehicles Act, 1988 even after her remarriage.157
It is held that the legal representative for the purpose of one proceeding in a suit is not
necessarily the same as for another proceeding in the same suit, and the Court must
determine who the legal representative is for the proceeding.158
One who intermeddles with the estate of a deceased person, or even with a part of his
estate, would be a legal representative within the meaning of this definition and would
be liable to the extent of the property taken possession of by him. However, he cannot
be considered to be a legal representative as regards the property not in his
possession. A mere trespasser is not a legal representative as he does not intermeddle
with the estate with the intention of representing the estate as held in Nagendra v
Haran, (1933) 37 CWN 758 .
Sister as Intermeddler.—Where during the pendency of the appeal against a decree of

divorce, the respondent husband died intestate sister of the husband could be brought
on record as legal representative of the deceased.159
Just because the claimant had been looking after the deceased or his property during
his lifetime, he cannot be said to be intermeddler.160
Minor as legal representative.—A minor can be a legal representative of a deceased

person. But in any proceedings, such a minor must be represented by his next
friend.161
"Legal representative"—Applicability to Motor Vehicles Act, 1988.—The "legal

representative" as defined in the code does not in terms apply to claim petition under
Motor Vehicles Act.162
Legal Representative means a person who represents the estate of the deceased
whether as an heir or as intermeddler; and in case of representative suits, the person
on whom the estate of the deceased person devolves.163
The expression "legal representative" under the Mizoram Motor Accident Claims
Tribunal rules 1988 defines the term "legal representative" as having the same meaning
as assigned to it in section 2(11) of the Code of Civil Procedure, 1908. Thus, in case of
death of a person in a motor vehicle accident, right is available to a legal representative
of the deceased or the agent of the legal representative to lodge a claim for
compensation.164
Mesne profits.—The expression has the same meaning in sections 2(12) and 144 of the
Code.165 It means those profits to which a person is entitled but from which he has
been kept out by the defendant.166 Mesne profits can be claimed only regarding
immovable property and not in regard to such property which cannot be deemed to be
immovable property.167
Mesne profits of property also include those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits. The expression, however,
does not include the profits due to improvements made by the person in wrongful
possession.
Object of awarding such profits—The main object is to compensate the person entitled
to be in possession of the property. A person who is entitled to actual possession can
claim mesne profits. The very foundation of the cause of action for mesne profits is
wrongful possession of the defendant. Thus, for example, the possession of a
mortgagor after the date of a foreclosure decree against him is a wrongful possession.
Similarly, the possession of a vendee under a conveyance which is voidable for fraud or
undue influence is a wrongful possession.
Measure of mesne profits—The measure of mesne profits is not what the plaintiff has
lost. The measure would be, what the defendant has gained by his wrongful
possession, or what he might reasonably have gained by such possession. Thus, if the
person charged has let the land to another, the rent which he has actually received
would be the mesne profits for which he would be liable, unless it is proved that a
higher rent could have been obtained with due diligence.
The possession of one co-sharer is, in law, the possession of another co-sharer also,
and, therefore, there can be no suit for mesne profits amongst co-sharers. If a co-
sharer is excluded from the share to which he is entitled, he can claim an account of
the profits.
The principles which would guide a Court in determining whether mesne profits be
allowed or not, are as follows:
(1) a wrongful possessor should not profit by his possession.
(2) restoration of status before dispossession of the rightful owner; and
(3) use to which the rightful owner would have put the land if he was himself in
possession.
But a decree for mesne profits cannot be passed against a person who is not in
possession of the property at all. Same would be the case of a person who is in rightful
possession of the property. Such a person is not liable for the mesne profits.168
It has been held by the Supreme Court that wrongful possession of the defendant is the
very essence of a claim for mesne profits and the very foundation of the defendant's
liability therefore.169
It was further held in this very case that possession through another person, such as a
tenant, may be sufficient to create liability for mesne profits, if such possession is
unlawful.
Reference may be made to Nandita Bose v Ratan Lal Nahata, AIR 1987 SC 1947 :
(1987) 3 SCC 705 wherein, it has been held as follows:

The claim for mesne profits damages is neither palpably absurd not imaginary. It needs
judicial consideration. The acceptance of the view put forward by the respondent (tenant)
may lead to encouraging a tenant who has forfeited his right to the tenancy to carry on a
dilatory litigation without compensating the land lady (land lord) suitably for loss suffered
by him on account of the unreasonable deprivation of the possession of his premises for a
long period until he is able to get possession of the premises through the Court.170
Rules for assessing the mesne profits.—The mesne profits necessarily should be the net
profits, i.e. the profit derived after making deduction towards the necessary expenditure
for earning the mesne profits. The real test is not what a person has lost by his
exclusion, but what the trespasser has or might reasonably have made by his wrongful
possession.171 The criterion for calculation of mesne profits cannot be what the
person out of possession might have got had he been on the land. Mesne profits could
only consist of what the person in wrongful possession of such property actually
received or might with ordinary diligence have received therefrom.172
Where the claim for mesne profits is against several trespassers who continued to keep
the plaintiff out of possession, the Court may adopt anyone of the two courses. It may
hold all such trespassers jointly and severally liable for mesne profits, leaving them to
have their respective rights adjusted in a separate suit for contribution. Or it may, if
there is proper material before it, ascertain and apportion the liability of each of them
on a proper application made by the defendant during the same proceeding.173
The claim in a suit for mesne profits is only a rough estimate even if a precise amount
is stated and it is for the Court to ascertain the true amount and this can be sometimes
in excess of amount claimed also.174
Interest on such profits.—A person claiming mesne profits will also be entitled to
interest on the mesne profits up to the date of plaint as part of mesne profits.175 It has
been held that interest is an integral part of mesne profits and has therefore to be
allowed in computation of mesne profits itself.176 What rate of interest shall be
allowed, that always depends on the discretionary powers of the Court as there is no
question of any contractual rate or any particular rate fixed by statute.177
Under section 2(12) of the Code which contains the definition of "mesne profits",
interest is an integral part of mesne profits and has, therefore, to be allowed in the
computation of mesne profits itself. That proceeds on the theory that the person in
wrongful possession appropriating income from the property himself gets the benefit
of interest on such income.178
Deductions.—As stated earlier, while awarding mesne profits the Court should allow
deductions to be made from the gross profit of the defendant in possession of the
property. In other words that should be only net profit. The following deduction may be
made from the gross profits of the defendant:
(i) the charge for collecting rent, etc., which may be to the extent of 10%.
(ii) the costs of cultivation and reaping the crops, and
(iii) public charges made from the preservation of the property, e.g. Government
Revenue, etc.
Movable property.—
This definition is confined in the Code only. Standing timber intended to be cut down179
and the standing crops180 have been held to be movable properties.
Order.—
Order in section 2(14) is used to mean what is popularly known to legal public as
formal order in contradiction to decree and judgment.181 Order usually passed in
contempt proceedings is judgment and not an order. Order written by a clerk and
signed by the Court is a proper order.
Pleader.—
The term pleader here is used in a much wider sense than its ordinary significance. The
term includes all those persons who are entitled to plead for others in the Courts. An
advocate whose name has been removed from the rolls is not an advocate.182
Appointment of Pleaders.—See O III, rule 4 Code of Civil Procedure, 1908.
Public Officer.—
A Minister of a State is a public officer.183 Similarly, an officer whose duty is to make

any survey of Government property is also a public officer.184 An Income Tax Officer is
a public officer.185 The Commissioner of the Calcutta Municipal Corporation is a public
officer but he is not a Government servant for purposes of section 80 of the Code of
Civil Procedure .186 An extra-departmental branch post-master who is an agent of the
Government and receives a monthly allowance for doing the postal work is a public
officer.187 Custodian under Administration of Evacuee Property is a public officer.188
Coal Mines Provident Fund Commissioner is a "Public Servant" within the meaning of
section 2(17) of the Code of Civil Procedure.189
"Service".—
The word "service" in section 2(17)(h) must necessarily mean something more than
being merely subject to the orders of Government or control of the Government. To
serve means "to perform function, do what is required for". The commissioner
appointed by the Government performs the functions as envisaged in the Act and the
scheme thereunder. When he is actually acting in the capacity of Provident Fund
Commissioner, he does not cease to be an officer in the service of the Government.190
Signed.—
The definition of word "signed" in section 2(20) cannot be extended to acts which are
required to be done, under the special Acts like Public Demands Recovery Act.191
44 The words and figures "Section 47 or" omitted by Code of Civil Procedure (Amendment) Act
104 of 1976, section 3(i) (w.e.f. 1-2-1977).
45 Subs. by section 4 of Code of Civil Procedure (Amendment) Act 2 of 1951 for the original
clause (5) (w.e.f. 1-4-1951).
46 Subs. for "Provincial Government" by IAO 1950.
47 Ins. by section 4 Act 2 of 1951 (w.e.f. 1-4-1951).
48 Ins. by the Repealing and Amending Act 42 of 1953, Sch III and section 4 (w.e.f. 23-12-1953).
49 Subs. for "the Indian Civil Service" by section 3 Act 104 of 1976 (w.e.f. 1-2-1977).
50 Subs. for "or naval" by section 2 and Sch. by Act 35 of 1934.
51 Subs. for "His Majesty" by IAO 1950.
52 The words "including His Majesty's Indian Marine Service", omitted by section 2 Act 35 of
1934.
53 Cl. (21) ins. by IAO 1950, omitted by Act 2 of 1951, section 4 (w.e.f. 1-4-1951).
54 KV Muthu v Anga Muthu Ammal, AIR 1997 SC 628 : (1997) 2 SCC 53 .
55 Bharat Co-operative Bank (Mumbai) Ltd v Co-operative Bank employees Union, (2007) 4 SCC
685 .
56 Satya Narain v Venkata, AIR 1957 AP 172 (FB) at p181.
57 See Statement of Objects and Reasons.
58 AIR 1915 PC 116 .
59 (1971) 1 Mys LJ 367 (DB).
60 Shakuntala Devi v Kuntal Kumari, AIR 1969 SC 575 (577) : (1969) 1 SCR 1006 : 1969 Cur LJ
69 .
61 Rachakonda V Rao v R Satya Bai, AIR 2003 SC 3322 (3325).
62 S Satnam Singh v Surender Kaur, AIR 2009 SC 1089 (1091) : (2009) 2 SCC 562 .
63 Rekha Mathur v Manish Khanna, AIR 2015 Delhi 197 .
64 Harnandrai Badridas v Debidutt Bhagwati Prasad, AIR 1973 SC 2423 : (1973) 2 SCC 467 .
65 Leela Hotels Ltd v Housing and Urban Development Corporation Ltd, AIR 2012 SC 903 .
66 Amer Batate v Saleh, AIR 1966 AP 239 (FB).
67 Amarsangji v Deep Sangji, AIR 1925 Bom 241 (FB).
68 Madan Naik v Hansubala, AIR 1983 SC 676 (679) : (1983) 3 SCC 15 .
69 Minakshi v Subramanya, (1838) 11 Mad 26; See also Dattu Apparao v DG Shendge, AIR 1908
Bom 361 .
70 Gopalan Nair v Madhyan, AIR 1964 Ker 153 . See also (1971) 1 Mys LJ 397 .
71 Rama Rao v Commr Board of HRE, AIR 1965 SC 231 : (1964) 5 SCR 270 ; See also Shree
Kalimata Thakurani v RC Chatterji, AIR 1970 Cal 373 .
72 Dundappa v SG Motor Transport Company, AIR 1916 Mys 150 .
73 AIR 1914 Bom 149 .
74 Phool Chand v Gopal Lal, AIR 1967 SC 1470 : (1967) 3 SCR 153 ; overruling, TN Sawami &
Co's case, AIR 1951 Punj 120 and unpholding; Parashuram v Hirabai, AIR 1957 Bom 59 .
75 AIR 1920 Cal 373 .
76 Central United Bank v Venkatarama, AIR 1963 Mad 302 .
77 Registrar Trade Mark v Kumar Ranjan, AIR 1966 Cal 310 .
78 Venkata Reddy v Pethi Reddy, AIR 1963 SC 992 (994).
79 Sangna v Bichinta, AIR 1966 Ori 225 .
80 Joti Prasad v Ganeshi Lal, AIR 1961 Punj 120 ; See also Chanli v Reghoo, AIR 1945 All (FB)
and; Bali Ram Ganpatrao v Manohar Damodhar, AIR 1963 Nag 204 (FB); Vasanti v Surya Prasad,
AIR 1969 Guj 152 .
81 Devassi v Anthoni, AIR 1969 Ker 78 .
82 Rekha Mathur v Manish Khanna, AIR 2015 Del 197 .
83 Maran Chandra Shil v Laxmi Rani Chowdhary, AIR 2014 Tri 36 .
84 Ameer-un-Nissa Begum v Mehboob Begum, AIR 1955 SC 352 (359).
85 State of Andhra Pradesh v State of Karnataka, AIR 2001 SC 1560 (1615) : (2000) 9 SCC 572 .
86 Subal Paul v Malina Paul, AIR 2003 SC 1928 (1933) : (2003) 10 SCC 1928 : (2003) 3 CHN 51 .
87 SP Chengalvaraya Naidu v Jagannath, AIR 1994 SC 853 (855) : (1994) 1 SCC 1 .
88 Ratan Singh v Vijay Singh, AIR 2001 SC 279 (281) : (2000) 1 SCC 469 .
89 SB Minerals v MSPL Ltd, AIR 2010 SC 1137 .
90 Manohar S Nale v Jaipalsing S Rajput, AIR 2008 SC 429 (DB).
91 Deep Chand v Land Acquisition Officer, AIR 1994 SC 1901 (1904) : (1994) 4 SCC 99 : (1994) 2
Punj LR 197 .
92 State of Gujarat v Biharilal, AIR 1999 SC 1999 (2000) : (1999) 3 SCC 294 .
93 Rishabh Chand Jain v Ginesh Chandra Jain, AIR 2016 SC 2143 : 2016 (4) SCALE 616 : 2016
(7) SCJ 258 .
94 Venkata Reddy v Pethi Reddy, AIR 1963 SC 992 : 1963 Supp (2) SCR 616 : (1963) 2 MLJ (SC)
126.
95 (1859) Mad LJ 165.
96 Paras Nath Rai v State of Bihar, AIR 2013 SC 1010 .
97 Shamsher Singh v Rajinder Prasad, AIR 1973 SC 2384 : (1973) 2 SCC 524 : (1974) 1 SCR 322 .
98 Al-Habib Food Processing v Punjab National Bank, AIR 2013 All 204 .
99 Ram Chand Spg & Wvg Mills v Bijli Cotton Mills, AIR 1967 SC 1344 : (1967) 2 SCR 301 .
100 Subal Paul v Malina Paul, AIR 2003 SC 1928 (1933) : (2003) 10 SCC 361 .
101 AIR 1963 SC 992 (Supra).
102 Phool Chand v Gopal Lal, AIR 1967 SC 1470 : (1967) 3 SCR 153 .
103 Bhogaraju VJ Ramarao v Board of Commrs, AIR 1965 SC 231 (237).
104 (1967) 2 Mad LJ 342.
105 ILR (1967) 1 Mad 136 .
106 Rachakonda V Rao v R Satya Bai, AIR 2003 SC 3322 (3325) : (2003) 7 SCC 452 .
107 Rachakonda V Rao v R Satya Bai, AIR 2003 SC 3322 (3327) : (2003) 7 SCC 452 .
108 Mahijibhai v Manibhai, AIR 1965 SC 1477 (1485) : (1965) 2 SCR 436 : 1965 BLJR 542 .
109 AIR 1988 AP 226 at p 232 (FB).
110 Bikoba D Gaikwad v Hirabari M Ghorgare, (2008) 8 SCC 198 (201, 203).
111 R Mahalakshmi v AV Anantharaman, (2009) 9 SCC 52 (58).
112 Sunita Kumari v Prem Kumar, AIR 2009 Pat 183 (FB).
113 Rajinder Kumar v Kuldeep Singh, AIR 2014 SC 1155
114 Rama Narang v Ramesh Narang, AIR 2006 SC 1883 (2006) 11 SC 114 .
115 UOI v Lalji Bhimji, AIR 1969 Guj 55 (58).
116 (1970) 74 Cal WN 647 (DB); See also Uchab v Brundaban, AIR 1969 Ori 142 .
117 Raja Soap Factory v Santharaj, AIR 1965 SC 1449 : (1965) 2 SCR 800 .
118 Somavally v Prasanna Kumar, AIR 2015 Ker 286 .
119 Somavally v Prasanna Kumar, AIR 2015 Kerala 286 .
120 Raja Soap Factory v Santharaj, AIR 1965 SC 1449 : (1965) 2 SCR 800 .
121 Lalji Raja and Sons v Hansraj Nathuram, AIR 1971 SC 974 : (1971) 1 SCC 721 .
122 See sections 43 and 44 CPC.
123 Lalji Raja & Sons v Hansraj Nathuram, AIR 1971 SC 974 (976) : (1971) 1 SCC 721 .
124 Kanta Kathuria v Manak Chand, AIR 1970 SC 694 , (702) : (1969) 3 SCC 268 .
125 Mundrika Prasad Sinha v State of Bihar, AIR 1979 SC 1871 (1873) : (1979) 4 SCC 701 .
126 1967 Raj LW 297 (301).
127 State of J&K v Lucky Glass Works, AIR 1969 Cal 11 .
128 Nanak Chand v Estate Officer, AIR 1969 Punj 304 .
129 SD Joshi v High Court of Judicature at Bombay, AIR 2011 SC 848 (860).
130 State of Tamil Nadu v Thangaval, AIR 1997 SC 2283 : (1997) 2 SCC 349 : 1997 SCC (L&S)
518 .
131 Vidyacharan v Khub Chan, AIR 1964 SC 1099 : (1964) 6 SCR 129 .
133 Kavita Vyas v Deepak Ram Dave, (FB), AIR 2018 Raj 72 : 2018 (1) RCR (Civil) 806 . Followed
Shah Babulal Khimji v Jayaben D Kavia, AIR 1981 SC 1786 .
134 Employer in Relation to MC Mine P&D Institute v UOI, AIR 2001 SC 883 (886) : (2001) 2 SCC
588 : (2001) 2 LLN 122 .
135 Ashwani Kumar Singh v UPPSC, AIR 2003 SC 2661 (2664) : (2003) 11 SCC 584 : (2003) 4
LLN 18 ; see also London Graving Dock Co v Horton, 1951 AC 737 (761) : (1951) 2 All ER 1 (HL).
136 Subal Paul v Malina Paul, AIR 2003 SC 1928 (1933) : (2003) 10 SCC 361 .
137 The Printers (Mysore) Pvt Ltd v P Joseph, AIR 1961 Mys 8 (DB).
138 Begum Aftab Zamani v Shri Lal Chand Khanna, AIR 1969 Del 85 (FB).
139 Shorab Modi v Mansata Film Distributors, AIR 1957 Cal 727 .
140 Inda Devi v Revenue Board, AIR 1957 All 116 (DB).
141 Kailashnath v Nagar Mahapalika, Lucknow, AIR 1963 All 241 .
142 Islamic Academy of Education v State of Karnataka, AIR 2003 SC 3724 (3737).
143 Secretary General, Supreme Court of India v Subhash Chandra Agrawal, AIR 2010 Del 159
(176) (FB).
144 Cellular Operators Association of India v UOI, AIR 2003 SC 899 : 2003 (3) SCC 186 .
145 (1912) 13 Ind Cas 659 (Mad-DB).
146 Janki Arma v Meerayana, AIR 1954 Trav. Co 223.
147 Uma Orasad v Mrityunjay, AIR 1968 Cal 547 .
148 Andhra Bank v R Srinivasan, AIR 1962 SC 232 (239) : (1962) 3 SCR 391 .
149 Custodian, Branches of BANCO National Ultramarino v Nalini Bai Naiqui, AIR 1989 SC 1589
(1591,1592) : 1989 Supp (2) SCC 275 .
150 Yogendra Bhagata v Pritlal Yadava, AIR 2009 Pat 168 (FB) : 2009 AIHC 3325 (3332) (Pat)
(FB); Sudama Devi v Yogendra Chaudhary, AIR 1987 Pat 239 FB and Sardar AS Kalra v Pramode
Gupta, AIR 2003 SC 2588 relied on.
151 Official Liquidator v Parthasarathi Sinha, AIR 1983 SC 188 (194) : (1983) 1 SCC 538 : 1983
Tax LR 2401 .
152 Andhra Bank v Srinivasan, AIR 1962 SC 232 : (1962) 3 SCR 391 . See also Jaggernath v
Narayan Sarogi, AIR 1965 Pat 300 .
153 Hardeya Devi v Fiddan, AIR 1962 All 125 .
154 Amna v Royal Transport Services, AIR 2008 MP 213 (DB).
155 Durgaram v Yadavram, AIR 2011 Chh 84 (85) (DB).
156 Malokdas v Sahib Ram, AIR 1964 Punj 532 .
157 National Insurance Company v Nidhi Goel, AIR 2018 P&H 161 : 2018 ACJ 2732 .
158 Venkataramana v Kumaraya, (1957) 2 Andh WR 152.
159 Anjali Ghosh v Subodh K Ghosh, 2008 (2) Cal HN 838 (840) (DB).
160 Jagdish Chander v Rahul Sharma, AIR 2016 J&K 38 .
161 Mohd Yunus v Johan Sultan, AIR 1942 Pesh 9 (Lah).
162 PN Unni v Baby John, 2008 AIHC (NOC) 522 (Ker) : AIR 2008 Ker 157 (DB); MFA Nos 442,
353, 398, 774 & 562 of 1997, dt 15 February 2008.
163 Custodian of Branches BANCO National Ultra Marino v Nalini Bai Naique, AIR 1989 SC 1589 .
164 Montford Brothers of St, Gabriel v United India Insurance etc, AIR 2014 SC 1550 .
165 Bhagwant Singh v Sri Kishan Dass, AIR 1953 SC 136 : 1953 SCR 559 : 1953 ALJ 249 . See
also Ranga Rao v Ramadass, AIR 1969 AP 182 .
166 D Satyanarayanan Murthy v Bhavanna, AIR 1957 AP 766 .
167 KB Singh v MDU Co-op Association, AIR 1957 Manip 9 .
168 Madhavan Nair v Ankan, AIR 1962 Ker 55 .
169 Lucky Kochuvareed v P Mariappa Gounder, AIR 1979 SC 1214 : (1979) 3 SCC 150 .
170 AIR 1987 SC 1947 (1949) : (1987) 3 SCC 705 .
171 Harry Kumpson Gray v Bhagu Main, AIR 1930 PC 82 : (1929-30) 57 IA 105 .
172 Fateh Chand v Bal Krishan Das, AIR 1963 SC 1405 : (1964) 1 SCR 515 : (1964) 1 MLJ (SC)
60.
173 Lucy Kochuvareed v P Mariappa Gounder, AIR 1979 SC 1214 (1219) : (1979) 3 SCC 150 .
174 Ibid.
175 Narayana Dassjee v Board of Trustees, AIR 1959 AP 64 .
176 N Dajee v Tirupathi Devasthanam, AIR 1965 SC 1231 .
177 N Dajee v Tirupathi Devasthanam, AIR 1965 SC 1231 .
178 N Dajee v Tirupathi Devasthanam, AIR 1965 SC 1231 (1234).
179 Re Mahant Raj Balamgir, AIR 1931 All 392 (FB).
180 CV Kutumba Rao v Govardhanam, AIR 1957 AP 349 .
181 Shyam Sunder v Davi Dayal, AIR 1956 All 79 (DB).
182 Jethannand v Judges of Punjab High Court, AIR 1962 SC 742 : 1962 Supp (1) SCR 961 :
(1962) 1 Ker LT 407 .
183 Bakshi Gulam v GM Sadiq, AIR 1963 J&K 98 .
184 Ningombam v Chief Commissioner, AIR 1969 Manip 79 .
185 (1970) 2 ITJ 562 (Cal).
186 Gowardhandas v Calcutta Municipality, AIR 1970 Cal 539 .
187 Venkataswamy v Supdt Post Offices, AIR 1957 Ori 112 .
188 Ram Charan v Custodian Evacuee Property, AIR 1964 Pat 275 (DB).
189 Coal Mines Provident Fund Commissioner, Thr, Board of Trustee v Ramesh Chandra Jha, AIR
2012 SC 408
190 Coal Mines Provident Fund Commr v Ramesh Chandra Jha, AIR 1990 SC 648 : (1990) 1 SCC
589 : 1990 SCC (L&S) 185 .
191 Abanindra Kumar v AK Biswas, AIR 1954 Cal 355 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 3. Subordination of Courts.
© 2020 LexisNexis
Preliminary
S. 3. Subordination of Courts.
For the purposes of this Code, the District Court is subordinate to the High Court, and
every Civil Court of a grade inferior to that of a District Court and every Court of Small
Causes is subordinate to the High Court and District Court.
Calcutta.—Insert the words "and the Court of Small Causes of Calcutta" after the words
"District Court" and before the words "are subordinate to"; and the words "other than the
Court of Small Causes of Calcutta" after the words "Court of Small Causes" and before
the words "is subordinate"; substitute "are" for the word "is" before the words
"subordinate to the High Court, and every Civil Court", vide Cal Gaz Pt I, dated April 4,
1967.
COMMENT.—
The enumeration of Subordinate Courts in this section is not exhaustive and does not
exclude other Courts from being subordinate to the High Court. Thus, a Tribunal under
the Displaced Persons (Debts Adjustment) Act, 1951,192 or the Motor Accident Claims
Tribunal under the Motor Vehicles Act193 is a Civil Court subordinate to High Court for
the purposes of this Code.
With reference to provisions of section 41(b) of Specific Relief Act, 1963, Small Causes
Court constituted under Presidency Small Causes Court Act, 1882 is subordinate to
Bombay High Court in its original side.194
There is a well-recognised distinction between a District Court and a District Judge.

The former would mean the District Court as a Court of law and the latter term would
mean the District Judge as a persona designata.195
192 Bal Gopal Dass v Mohan Singh, AIR 1964 All 504 (FB).
193 K Venkaiah v Satyanarayana, AIR 1972 AP 123 .
194 Export Credit Guarantee Corpn of India Ltd v Annamma Philips, 2010 (5) Bom CR 823 (832)
(FB) : 2010 (5) Mah LJ 659 .
195 Jagmohan Das v Jamna Das, AIR 1965 Guj 181 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 4. Savings.
© 2020 LexisNexis
Preliminary
S. 4. Savings.
(1) In the absence of any specific provision to the contrary, nothing in this Code
shall be deemed to limit or otherwise affect any special or local law now in
force or any special jurisdiction or power conferred, or any special form of
procedure prescribed, by or under any other law for the time being in force.
(2) In particular and without prejudice to the generality of the proposition

contained in sub-section ( 1 ), nothing in this Code shall be deemed to limit or
otherwise affect any remedy which a landholder or landlord may have under
any law for the time being in force for the recovery of rent of agricultural land
from the produce of such land.
COMMENT.—
Scope of the section.—
Section 4 does not bar the applicability of the Code where the special or local law is
silent.196 When anything in the Code of Civil Procedure is in conflict with anything in
special or local law or with any special jurisdiction or power conferred for any special
form of procedure prescribed by or under any other law, the Code will not (in the
absence of any specific provision to the contrary) prevail so as to override such
inconsistent provisions.197 A party relying on special law must establish it.198 When
there is no such conflict, the Code will apply. In respect of writ proceedings under
Article 226 of the Constitution a special procedure has been prescribed by rules, and
therefore, by virtue of this section the provisions of this Code will not in terms apply to
such proceedings. But writ proceedings would, nonetheless, be governed by the
principle analogous to those contained in the Code so far as they are not inconsistent
with the rules made by the Court on the subject.199
Even if the Letters Patent be deemed to be a special law, the provisions for appeal
under the Letters Patent are not inconsistent with, nor they exclude, nor override the
application of section 104 read with O LXIII, rule 1. Therefore, the test contained in
section 4 is not applicable.200
Words "specific provision" in section 4 means that particular provision in code must
clearly indicate in itself and not merely be implication that the special law in question is
to be affected. It is in this primary sense that the expression "specific provision" is used
in section 4(1) of the Code of Civil Procedure because, it carves out an exception to
special, local or other laws which deal with the same subject matter as the Code of
Civil Procedure but get overridden by the Code of Civil Procedure.201
196 Sahadat Khan v Mohd Hussain, AIR 1954 Cal 347 .
197 Laxmi Narayanan v Chhotu, AIR 1957 MB 63 . See also Shailajee Kanta v State of WB, AIR
1971 Cal 137 and AIR 1975 (Guj-FB).
198 Girdhari Lal v Kishan Datt, AIR 1960 Punj 575 .
199 Ram Singh v State, AIR 1969 Raj 41 .
200 Shah Babulal v Jayaben D Kania, AIR 1981 SC 1786 : (1981) 4 SCC 8 .
201 Pankajakshi v Chandrika, AIR 2016 SC 1213 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 5. Application of the Code
to Revenue Courts.
© 2020 LexisNexis
Preliminary
S. 5. Application of the Code to Revenue Courts.
(1) Where any Revenue Courts are governed by the provisions of this Code in
those matters of procedure upon which any special enactment applicable to
them is silent, the State Government 202[* * *] may, by notification in the official
Gazette, declare that any portions of those provisions which are not expressly
made applicable by this Code shall not apply to those Courts, or shall only
apply to them with such modifications as the State Government 203[* * *] may
prescribe.
(2) "Revenue Court" in sub-section ( 1 ) means a Court having jurisdiction under

any local law to entertain suits or other proceedings relating to the rent,
revenue or profits of land used for agricultural purposes, but does not include a
Civil Court having original jurisdiction under this Code to try such suits or
proceedings as being suits or proceedings of a Civil nature.
COMMENT.—
When local Revenue or Rent Acts are silent on any particular matter of procedure the
provisions of the Code would apply.204 It has been held by the Allahabad High Court
that the authorities constituted under the U.P. Consolidation of Holdings Act, 1954 are
not Revenue Courts.205 Further the Settlement Officer, under E.P. Holdings
(Consolidation and Prevention of Fragmentation) Act, 1948, convicting person under
section 228 of Indian Penal Code, 1860 exercising power under section 480, Code of
Criminal Procedure, 1973 is neither a civil nor criminal or Revenue Court.206
202 The words "with the previous sanction of the G.G. in C.", omitted by Act 38 of 1920, section
2 and Sch. I, Pt. I.
203 The words "with the sanction aforesaid" omitted by Act 38 of 1920, section 2 and sch. I.
204 Mumtazuddin v Fatima Begum, AIR 1956 Hyd 164 .
205 Bijai Narain v State, AIR 1970 All 241 .
206 TS Kaushal v State of Punjab, AIR 1965 Punj 454 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 6. Pecuniary jurisdiction.
© 2020 LexisNexis
Preliminary
S. 6. Pecuniary jurisdiction.
Save in so far as is otherwise expressly provided, nothing herein contained shall

operate to give any Court jurisdiction over suits the amount or value of the subject-
matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
COMMENT.—
Meaning of "Jurisdiction" and its kinds.—
Jurisdiction means the extent of the authority of a Court to administer justice. It may
be of three kinds: (1) Pecuniary Jurisdiction; (2) Territorial Jurisdiction and (3)
Jurisdiction as regards the nature of the suit. The bar on a Small Causes Court from
trying suits, the value whereof exceeds a given monetary limit is an example of
pecuniary jurisdiction. The rule that a Court cannot try a suit for immovable property
situated beyond certain local limits relates to the territorial jurisdiction of the Court.
The exemption of certain types of suits for example partnership suits from the
cognizance of Small Causes Courts relates to the jurisdiction of a Court with regard to
the nature of the suit. Then the jurisdiction may be original or appellate. In the exercise
of its original jurisdiction a Court entertains original suits i.e. suits filed in that Court.
When exercising its appellate jurisdiction a Court hears appeal from decrees passed by
Subordinate Courts. Section 6 refers to the pecuniary jurisdiction of the Courts. The
expression "subject-matter" refers not to the property involved in the suit but the relief
claimed and it is that which determines the jurisdiction. When a Court has no
jurisdiction in a particular suit, the parties cannot by mutual consent, confer such
jurisdiction on the Court. No amount of consent or waiver can create jurisdiction.
Furthermore, section 6 refers only to the Court's power to entertain a suit.
This section does not apply to proceedings which are not suits or continuation of
suits.207 If any suit is transferred to Small Causes Court wrongly, the decree so passed
in that suit shall be a nullity.208 It has been held by some High Courts that the word
"suit" in section 6 cannot be interpreted to include "execution proceedings."209 Whereas
some others have not shared the aforesaid view.210
Court can try incidentally an issue as to property the value of which is beyond its
jurisdiction.211 However, the Rajasthan High Court has taken a different view.212
Where a decree is transferred for execution to another Court under section 39(1) read
with O XXI, rules 5 to 8 the jurisdiction of transferee Court to deal with the execution
application does not depend upon either the valuation of the suit, in which the decree
had been passed, or the amount of the original decree, but on that actual amount under
execution.213
As per section 6, the valuation of the suit must be within the pecuniary jurisdiction of
the suit.214
A suit for renditions of accounts had been filed. It was held that a court can pass a final
decree for a sum which exceeds its limits of pecuniary jurisdiction. So also, where
damages awarded by the court is beyond its pecuniary jurisdiction, executing court
cannot refuse to execute decree on the ground that decree is passed without
jurisdiction.215
207 Bodh Narain v Deo Narain, AIR 1958 Pat 308 (DB). See also Ram Lakhan v Raghu Nath, AIR
1969 Ass 81 and AIR 1971 Raj 254 .
208 Bhaskar v Lilabli, AIR 1957 MP 70 (FB).
209 Chandravathi v Payapattillath, AIR 1966 Ker 318 .
210 Anchahi v Firm Brij Mohan Lal, AIR 1936 Pat 177 .
211 Ram Lakhan Rai Choudhry v Raghunath Choudhry, AIR 1969 Ass 81 .
212 AIR 1968 Raj 368 .
213 Kedar Nath Jai Prakash v Chhajju Mal Sumer Chand, AIR 1962 All 586 .
214 Mohan Meakin Ltd v Internations Trade, AIR 2004 HP 11 (14).
215 Anup Kumar Mukherjee v Regional Institute of Printing Technology, AIR 2003 Cal 40 (41).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 7. Provincial Small Cause
Courts.
© 2020 LexisNexis
Preliminary
S. 7. Provincial Small Cause Courts.
The following provisions shall not extend to Courts constituted under the Provincial
Small Cause Courts Act, 1887 (9 of 1887), 216[or under the Berar Small Cause Courts
Law, 1905], or to Courts exercising the jurisdiction of a Court of Small Causes
217[under the said Act or Law] 218[or to Courts in 219[any part of India to which the
said Act does not extend] exercising a corresponding jurisdiction], that is to say,—
(a) so much of the body of the Code as relates to—
(i) suits excepted from the cognizance of a Court of Small Causes;
(ii) the execution of decrees in such suits;
(iii) the execution of decrees against immovable property; and
(b) the following sections, that is to say,— Section 9, Sections 91 and 92, Sections
94 and 95 220[so far as they authorise or relate to—
(i) orders for the attachment of immovable property,
(ii) injunctions,
(iii) the appointment of a receiver of immovable property, or
(iv) the interlocutory orders referred to in clause (e) of Section 94] and
Sections 96 to 112 and 115.
COMMENT.—
The section is intended to apply to Small Causes Courts established with exclusive
jurisdiction to try small cause suits and also other Civil Courts of ordinary original
jurisdiction specially empowered to exercise small causes jurisdiction in respect of
specified classes of suits.221 To see whether a particular suit is excepted from the
cognizance of a Court of Small Causes, the nature of the plaint and the reliefs sought
are to be considered.222 Thus, where a compromise decree between A and B required B
to build wall according to certain specification, and the wall was not built according to
specification, but A after completing the wall filed suit for recovery of expenses of Rs.
190 such a suit is cognizable by Small Causes Court.223
The Rent Controller under the Delhi Rent Control Act has to, as far as may be, follow the
practice and procedure of a Court of Small Causes. A suit for possession of immovable
property or for recovery of an interest in such property is excepted from the cognizance
of Court of Small Causes. Application under proviso to section 14 of the Rent Control
Act being in the nature of a suit for possession of immovable property, provision
contained in O XXIII, rule 3, does not and cannot apply to that application.224
Order L lays down a list of various provisions of the Orders and Rules which do not
apply to Small Causes Courts. Thus, for example O II rule I (Frame of suit) O X rule 3 L
(record of examination of parties), etc.
216 Ins. by Code of Civil Procedure (Amendment) Act, 4 of 1941, section 2 and sch, III.
217 Subs. by Act 4 of 1941, section 2 and sch. III, for "under that Act".
218 Ins. by section 5, Code of Civil Procedure (Amendment) Act 2 of 1951.
219 Subs. for "Part B States" by ALO No 2 of 1956.
220 Subs. by Code of Civil Procedure (Amendment) Act 1 of 1926, section 3 for certain words.
221 Mathai Esthppan v Mathai Anna, AIR 1953 Trav Co 41 (DB).
222 Chairman of the Commissioner of Chakradharpur Municipality v Murlidhar Marwari, AIR 1937
Pat 25 .
223 Panna Lal v Mahachandi Sawaldas, AIR 1961 MP 107 .
224 Springdales School, New Delhi v Sati Tahilramani N. Delhi, AIR 1969 Del 7 (10).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 8. Presidency Small Cause
Courts.
© 2020 LexisNexis
Preliminary
S. 8. Presidency Small Cause Courts.
Save as provided in Sections 24, 38 to 41, 75, clauses ( a ), ( b ) and ( c ), 76, 225[77,
157 and 158], and by the Presidency Small Cause Courts Act, 1882 (15 of 1882), the
provisions in the body of this Code shall not extend to any suit or proceeding in any
Court of Small Causes established in the towns of Calcutta, Madras and Bombay:
226[ Provided that—
(1) the High Courts of Judicature at Fort William, Madras and Bombay, as the case
may be, may from time to time, by notification in the [official Gazette, direct]227
that any such provisions not inconsistent with the express provisions of the
Presidency Small Cause Courts Act, 1882 (15 of 1882) and with such
modifications and adaptations as may be specified in the notification, shall
extend to suits or proceedings or any class of suits or proceedings in such
Court;
(2) all rules heretofore made by any of the said High Courts under Section 9 of the
Presidency Small Cause Courts Act, 1882 (15 of 1882), shall be deemed to
have been validly made.]
STATE AMENDMENT
Gujarat.—In S. 8 in the first para after the words "Calcutta, Madras and Bombay" insert
"and in the city of Ahmedabad" (Gujarat Act 19 of 1961 as amended by Gujarat Act 32
of 1961).
COMMENT.—
The word suit in the section includes decree passed therein. Hence, Section 48 does
not apply to a decree passed by a Presidency Small Causes Court and it can be
executed even after 12 years.228
Proviso.—
First proviso is intended to be supplementary to the rules of procedure prescribed by

the High Court under Section 9 of the Presidency Small Causes Courts Act, 1882.229
Presidency Small Causes Courts are not governed by Section 104 of the Code, nor by
Order XXXIX, rule 2.230
It may be pointed out that power is given to the High Courts of Bombay, Calcutta and
Madras to direct that any such provisions as are not inconsistent with the express
provisions of the Presidency Small Causes Courts Act, 1882, shall extend to suits and
proceedings in such Courts.
Order LI then provides that subject to certain exceptions stated therein, the various
Orders and rules of the Code are not to apply to suits and proceedings in Small Causes
Courts in Bombay, Calcutta and Madras.
225 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976 (w.e.f. 1-2-1977), for "77
and 155 to 158".
226 Ins. by Code of Civil Procedure (Amendment) Act 1 of 1914, section 2.
227 For instance of such direction, see Cal Gaz. 1910, Pt 1, p. 814.
228 Bava C. Goplaswami Mudaliar v Abhisheka Kattalai, AIR 1950 Mad 504 (FB).
229 Girija Nandan v Balram Chatterjee, AIR 1952 Cal 671 (DB).
230 Rameshwar Dubey v Jogindra Lal, AIR 1968 Cal 234 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 9. Courts to try all civil suits
unless barred.
© 2020 LexisNexis
PART I Suits in General
Jurisdiction of the Courts and Res Judicata
S. 9. Courts to try all civil suits unless barred.
The Courts shall (subject to the provisions herein contained) have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is either expressly
or impliedly barred.
1[ Explanation I. ]—A suit in which the right to property or to an office is contested is a

suit of a civil nature, notwithstanding that such right may depend entirely on the
decision of questions as to religious rites or ceremonies.
2[ Explanation II.— For the purposes of this section, it is immaterial whether or not any
fees are attached to the office referred to in Explanation I or whether or not such office
is attached to a particular place.]
STATE AMENDMENT
Maharashtra.—The following amendment were made by Maharashtra Act No LXXII OF

2018 w.e.f. 15 December 2018 : An Act to amend the Code of Civil Procedure
(Maharashtra Amendment) Act, 2018.
WHEREAS it is expedient to amend Code of Civil Procedure (Maharashtra Amendment)
Act, 2018, for the purposes hereinafter appearing; it is hereby enacted in the Sixty-ninth
Year of the Republic of India as follows :—
1. This Act may be called the Code of Civil Procedure (Maharashtra Amendment)
(Amendment) Act, 2018.
2. In section 3 of the Code of Civil Procedure (Maharashtra Amendment) Act, 2018, for
clause (1), the following clause shall be substituted and shall be deemed to have been
substituted with effect from the 27th June 2018, being the date of commencement of
the said Act, namely :—
(1) where consideration of a preliminary issue framed under section 9A is pending on

the date of commencement of the Code of Civil Procedure (Maharashtra Amendment)
Act, 2018 (hereinafter, in this section, referred to as "the Amendment Act"), the said
issue shall be decided and disposed of by the Court under section 9A, as if the said
section 9A has not been deleted;
3. Nothing in this Act shall affect the decrees passed by a Civil Court during the period
commencing from the 27th June 2018 being the date of commencement of the Code
of Civil Procedure (Maharashtra Amendment) Act, 2018 and ending on the date of
publication of this Act in the Maharashtra Government Gazette.
COMMENT.—
Jurisdiction.—
Jurisdiction means authority to decide.3 Jurisdiction in a technical sense means the

extent of the authority of a Court to administer justice not only with reference to the
subject-matter of the suit but also to the local and pecuniary limits of its jurisdiction.4
Jurisdiction consists in taking cognizance of a case involving determination of some
jural relations, in ascertaining the essential point of it and in pronouncing upon them.5
Thus, when it is said that a Court has jurisdiction to try a suit it means that it is
competent to try it. The competence of a Court and jurisdiction of the Court are
synonymous terms and both of them mean the right of the Court to adjudicate in a
given matter. Jurisdiction implies two things:6 (i) jurisdiction over the subject-matter of
the suit, and (ii) a power to make an order.
If a Court does not have jurisdiction then it does not have jurisdiction, irrespective of
the fact that one of the parties involved is a Gram Panchayat or the period involved is
very short or the amount involved is very small.7
It is not correct to say that whatever is good for Article 226 of the Constitution of India
is good for a suit as well.
The provision under section 9 of the code enables a person to file a suit of civil mature
excepting those, the cognizance whereof is expressly or by necessary implication
barred.8
Civil Court's jurisdiction to adjudicate civil disputes is unlimited, subject only to

limitations imposed by law either expressly or by necessary implications.9
The jurisdiction of Civil Court arises from this section and the bar arising from an
express provision or arising by necessary intendment can be overridden only in cases
and situations pointed out in Dhulabhai case.10
Hidayatullah, C.J., had stated the relevant principles in this case in the following words:
(1) Where the statute gives a finality to the orders of the special tribunals the Civil
Court's 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.
(2) 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 on the efficiency 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 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
remedies normally associated with actions in Civil Courts are prescribed by the
said statute or not.
(3) 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.
(4) 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.
(5) Where the particular Act contains no machinery for refund of tax collected in
excess of constitutional limits or illegally collected a suit lies.
(6) 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 relevant enquiry.
(7) An exclusion of the jurisdiction of the Civil Court is not readily to be inferred
unless the conditions above set down apply.
Exclusion of jurisdiction is not total even if exclusive jurisdiction is conferred on special

tribunal. An objection as to jurisdiction should be raised at the earliest stage. It cannot
be raised in special leave petition. The question of jurisdiction should be determined
primarily on the averments made in the plaint.11
The plea of absence of jurisdiction can be raised and entertained at any stage, since
our order or decree passed without jurisdiction is non est in law. The jurisdiction of Civil
Court is of expansive nature. The content of this section has been widened by the use
of words "civil nature" which are wider than the words "civil proceedings". This
provision is available in every case where the dispute has the characteristics of
affecting one's right which are not only civil but of Civil nature. (Per R.M. Sahai, J.
Minority view).12
Departmental Proceedings' validity challenged.—
A suit challenging the validity of departmental proceedings will lie if the question raised
is of such a nature that it goes to the root of jurisdiction and the conduct of the
departmental trial and vitiates the result. It is only if the departmental proceeding is null
and void that the plaintiff can obtain the relies. Such a suit cannot be treated as an
appeal from the finding in the departmental proceedings or punishment inflicted upon
the Government servant even if these are erroneous.13
Principles Relating to Industrial Disputes.—
The Supreme Court has laid down the following four principles applicable to the
jurisdiction of the Civil Court in relation to an industrial dispute: (1) If the dispute is not
an industrial dispute, nor does it relate to enforcement of any other right under the
Industrial Disputes Act, 1947, the remedy lies in the Civil Court; (2) if the dispute is an
industrial dispute arising out of a right or liability under the general common law and
not under the Act, the jurisdiction of the Civil Court is alternative, leaving it to the
election of the suitor concerned to choose his remedy for the relief which is competent
to be granted in a particular remedy; (3) if the industrial dispute relates to the
enforcement of a right or an obligation created under the Act, the only remedy available
to the suitor is to get an adjudication under the Act; (4) if the right which is sought to be
enforced is a right created under the Act such as Chapter V-A then the remedy for its
enforcement is either section 33-C or the raising of an industrial dispute, as the case
may be.14
Essential conditions for a Court.—
To constitute a Court, an essential condition is that the Court should have power to
give a decision or a definite judgment which has finality and authoritativeness, apart
from having some of the trapping of a judicial tribunal.15
Railway claims tribunal is not Civil Court.—
The "Railway Claims Tribunal" is not a Civil Court. A tribunal is the creation of the
statute. Therefore, it is not a Civil Court nor the Limitation Act has application even
though it may be held that the petitioner discovered the mistake committed in paying
"over charges" and the limitation is not saved by operation of section 17(1)(c) of the
Limitation Act.16
Civil Court can decide question of its own jurisdiction.—
A Civil Court has inherent power to decide the question of its own jurisdiction. As a
result of enquiry it may turn out that it has no jurisdiction over the suit. Thus, a Civil
Court has jurisdiction to decide whether it has jurisdiction to entertain a suit for
possession of premises brought by a landlord against a tenant in view of section 28 of
Bombay Rents, Hotels and Lodging Houses Rates Control Act, 1947.17
Statute can bar Civil Court's jurisdiction.—
Under section 9 of Code of Civil Procedure the Court shall have jurisdiction to try all
suits of civil nature excepting suits of which cognizance is either expressly or impliedly
barred. A statute, therefore, expressly or by necessary implication can bar the
jurisdiction of Civil Courts in respect of a particular matter.18
Jurisdiction of Tribunals under Orissa Tenants Protection Act, 1948.—
In dealing with the scope and effect of the jurisdiction of such tribunals the relevant
words used in section 7(1) of Orissa Tenants Protection Act, 1948 should receive
liberal construction but not a narrow one.19
Domestic Tribunals.—
The Court can set aside the order of domestic tribunal if it acts without jurisdiction or
does not act in good faith or acts in violation of the principles of natural justice.20
Court distinguished from tribunal.—
A Tribunal may be termed as a court if it has all trappings of a court. Every court may
be a tribunal, but every tribunal necessarily may not be a court.21
Decree passed without jurisdiction is nullity.—
It is a fundamental principle that a decree passed by a Court without jurisdiction is a

nullity. Its invalidity could be set up whenever and wherever, it is sought to be enforced
or relied upon, even at the stage of execution and even in collateral proceedings. A
defect of jurisdiction, whether it is pecuniary or territorial, or whether it is in respect of
the subject-matter of the action, strikes at the very authority of the Court to pass any
decree. Such a defect cannot be cured even by the consent of parties.22
Exclusion of Civil Court's Jurisdiction—Tests.—
It is well settled principle of law that mentioning of a wrong provision or non-

mentioning of any provision of law would by itself, be not sufficient to take away the
jurisdiction of a court if it is otherwise vested in it in law. While exercising its power, the
court would merely consider whether it has the source to exercise such power or not.23
The jurisdiction of the Civil Court to deal with civil causes can be excluded by the
legislature by special Acts to deal with special subject matters. The statutory provision
must expressly provide for such exclusion or must necessarily and inevitably lead to
that inference. One test is whether the special statute which excludes such jurisdiction
has used clear and unambiguous words indicating that intention. Another test is: Does
the said statute provide for an adequate and satisfactory alternative remedy to a party
that may be aggrieved by the relevant order under its material provision?24
The Civil Courts have the jurisdiction to try all the suits of civil nature except those
entertainment whereof is expressly or impliedly barred. Any statute which excludes
such jurisdiction is an exception to general rule that all disputes shall be triable by a
Civil Court. Any such exception cannot be readily inferred by the courts.25
The question in regard to the jurisdiction of the Civil Court must be addressed having
regard to the fact as to which rights or obligations are sought to be enforced for the
purpose of invoking or excluding the jurisdiction of a civil court.26
The exclusion of Civil Court's Jurisdiction should not be readily inferred. The statute
ousting jurisdiction of Civil Court must do so in express terms or by use of such terms
as would necessarily lead to such inference.27
The exclusion of the jurisdiction of Civil Court cannot be readily inferred but must either
be explicitly expressed or clearly implied. Even in cases of such exclusion Civil Court
can examine cases where statutory provisions have not been complied with or
statutory tribunal has not acted in conformity with fundamental principles of judicial
procedure.28
An existence of special remedy under special statute does not necessarily oust the
jurisdiction of civil Court to entertain the suit.29
A party seeking to oust jurisdiction of ordinary Civil Court must establish its right to do
so.30
The principle for determining such an ouster is that the scheme and object of Act
should be considered. A question of ouster of jurisdiction should not be divided only
having regard to reliefs claimed.31
Provisions relating to exclusion of Civil Court's jurisdiction must be construed strictly.32

Provision excluding jurisdiction of civil court should be construed strictly and the
burden to prove such exclusion lies on party who raises such contention.33
Jurisdiction of civil court is plenary in nature, unless the same is ousted expressly or by
necessary implication, it will have jurisdiction to try all types of suits.34
Where there are express provisions in the statute they must be strictly construed. It
must be confined to matters covered thereby or connected therewith. Grievance
adjudicatory forum provided therein must be competent to resolve the dispute.35
Option of competent Court by Parties.—
Where there are two or more competent Courts to entertain a suit, the parties to a
contract agree to vest jurisdiction in one of such Courts, ousting of jurisdiction of the
other Court, the contract is clear, unambiguous and explicit and not vague. It is not hit
by sections 23 and 28 of the Contract Act. Mercantile law and practice permit such
agreements and they are valid.36
A workman in LIC has choice of seeking remedy from Civil Court or Industrial Court.37
In case of overlapping jurisdictions of two courts in service matters, the employee has
option to choose forum when right accrues under statute or common law.38
Displacement of Civil Court's Jurisdiction.—
A party is defeated on the merits of the dispute. It secured an order from another Court
to displace the jurisdiction of the Civil Court during pendency of the suit. It cannot be
permitted to such displacement of Civil Court's Jurisdiction to try the case which was
within its competence when the suit was filed.39
Parties' choice as to jurisdiction.—
It is open for the parties to choose any one of two competent Courts for deciding their
dispute but once parties have bound themselves as such, it is not open for them to
choose a different jurisdiction.40
The jurisdiction of the Civil Court is all embracing except to the extent it is excluded by
an express provision of law or by clear intendment arising from such law. This is the
purpose of this section.41
The allegations made in the plaint decide the forum. The jurisdiction does not depend
upon the defence taken by the defendants in the written statement.42
An agreement as to choice of forum is not opposed to public policy.43
English Court's Jurisdiction not Barred.—

The fact that the matrimonial home of the spouses was in England, established
sufficient contacts or ties with that state, in order to make it reasonable and just for the
Courts of that State, to assume jurisdiction to enforce obligations which were incurred
therein by the spouses. The jurisdiction of English Court is not barred.44
Civil Court cannot decide question on merits.—
A Civil Court having no jurisdiction over subject matter of a suit, cannot decide any
question on merits. It can simply decide question of jurisdiction and order return of
plaint for presentation to proper Court if it comes to conclusion that it has no
jurisdiction.45
The jurisdiction of Civil Court to take cognizance of the suits of civil nature covered
under the land reform laws stands excluded. Therefore, the Civil Court has no
jurisdiction to unsettle patta which has become final in decree.46
Jurisdiction of Election Tribunal is not affected.—
It is always to be borne in mind that though the election of a successful candidate is

not to be lightly interfered with, one of the essentials of that law is also to safeguard
the purity of the election process. Also, to see that people do not get elected by flagrant
breaches of that law or by corrupt practices. In cases where the election law does not
prescribe the consequences or does not lay down penalty for non-compliance with
certain procedural requirements of that law, the jurisdiction of the tribunal entrusted
with the trial of the case is not affected.47
Civil Court's Jurisdiction where Family Courts established.—
The Family court has been established and has become functional in the district of
Mysore with effect from 25 May 1998. The jurisdiction of the civil court was excluded
by section 8 of the Family Courts Act, 1984. Thus, decree passed by the civil court is
without jurisdiction, is a nullity.48
It is trite that in matrimonial relationships locus standi to challenge the factum of

marriage or a relief for its annulment can only be claimed by one of the spouses and no
other person can seek the relief about annulment of the matrimonial relationship. Filing
of such suit per se amounts to abusing the process of the court.49
Civil Court's Jurisdiction and Muslim Women (Protection of Rights in Divorce)

Act, 1986.—
There is no express exclusion of the jurisdiction of the civil court under section 9 of the
Code of Civil Procedure, 1908. Significantly there are no indications suggesting an
implied exclusion also. In these circumstances one can conclude that both the rights
under section 9 of Code of Civil Procedure, 1908 as also the right to claim under
section 3 of the Muslim Women Act can harmoniously co-exist. The claimant has the
option. Hence, it cannot be said that the jurisdiction of the civil court or the Family
court stands ousted.50
Meaning of Suit of "Civil Nature".—
The word "Civil" simply means pertaining to private rights and remedies of a citizen.51
Civil suits are suits between subject and subjects dealing with civil rights.52 It ordinarily
means a suit in which any valuable right is sought to be enforced.53 As a matter of fact
it is not the status of the parties to the suit but the subject-matter of the suit which
determines whether or not the suit is one of civil nature.54
There is an inherent right to every person to bring a suit of civil nature and unless the
suit is barred by statute, one may, at his peril, bring a suit of his choice. A suit for its
maintainability requires no authority of law and it is enough that no statute bars the
suit. Whereas the right to appeal inheres in no one and, therefore, an appeal for its
maintainability must have a clear authority of law. That explains why the right of appeal
is described as a statute.55
The explanation to section 9 implies two things, namely, (i) a suit for an office is a suit
of a civil nature and (ii) it does not cease to be one even if the said right depends
entirely upon a decision of a question as to the religious rites or ceremonies.
Broadly speaking if the proceedings taken establish or negative a man's office or status
or would affect his right to property of any kind it will be a civil proceeding.56
It has been held that Directive Principles of State Policy are not enforceable in a Civil
Court. The matter is entirely an administrative one.57 Similarly, political questions like
that of Rajpramukh of former Part B State recognised as heir and claimant to the gaddi
of a deceased Jagirdar cannot be adjudicated by a Civil Court.58
Explanation II in this section was inserted by the Amending Act of 1976 in order to get
over the divergence of judicial opinion. The Bombay High Court had recognised a
distinction between two sets of offices "attached to sacred spot" and "not attached to
sacred spot" and majority of the decisions of that Court allowed a suit for an office
which was attached to a sacred spot, but not for an office which was not so attached.
On the other hand, the other High Courts did not recognise this distinction. The
distinction between two sets of offices has now been over-ridden by this explanation.
Suits of "Civil Nature".—
Suits may be divided into two classes (1) those which are of civil nature, and (2) those
which are not of a civil nature.
The following are some of the instances of suits of civil nature:
(1) Suit by Government servant for arrears of salary.—A suit for recovery of arrears by a
civil servant for the period he was actually in office is maintainable in a Civil Court.59
(2) Right to worship.—A right to worship is a civil right.60 Accordingly a suit to establish
a right of worship is a suit of civil nature.61
The word episcopal means "of or pertaining to bishops", having a government, vested in
bishop. A suit for declaration of such a right would be maintainable, not only because it
is a claim to an office but also because there is no other forum were such dispute can
be resolved. (Per R.M. Sahai, J.—Minority view).62
A right to worship is a civil right. Interference with such a right raises a dispute of civil
nature. The disputes which are in respect of rituals or ceremonies alone, cannot be
adjudicated by Civil Courts if they are not essentially connected with civil rights of
individuals or a section on behalf of whom the suit is filed.63
The right to worship in a temple includes right to take assistance of a panda or other
persons, even if such assistance is given for consideration. The temple authorities are
at liberty to make proper regulation regarding the exercise of these rights.64
(3) Right relating to religious and other processions.—A suit for a declaration to a right to
take out a religious procession lies in a Civil Court.65
The Supreme Court has laid down certain principles deciding the question as to
whether a right to a religious office would be a right of civil nature or not? These are:
(i) A suit for a declaration with respect to religious honours and privileges
simpliciter will not lie in a Civil Court:
(ii) However, a suit to establish one's right to an office in a temple and to honours,
privileges, remuneration or requisites, attached to such an office will be
maintainable in a Civil Court.
(iii) The condition for the existence of an office is that the holder of the alleged
office should be under a legal obligation to discharge the duties attached to the
said office, for non-observance of which penalties can be inflicted on him.66
(4) Right of burial.—The right of burial is a civil right and an interference with the right
with such burial is an invasion of the civil right in respect of which a civil suit lies.67
An interference with the rights of a Mohammedan to receive prayers over a body before
burial in front of a particular mosque is an invasion of a civil right which can be
enforced by a suit as held in Kooni Meera v Mahomed, (1907) 30 Mad 15.
(5) Right of persons elected as Director or Chairman as such.—The right of a person

elected as a director of a company to act in that capacity is a civil right and a suit will
lie for an injunction for restraining other directors.68
Similarly, a suit will lie for a declaration that the removal by the State Government of a
person from the Chairmanship of the District Board was illegal and for an injunction
restraining interference with his work as a Chairman.69
(6) Right of franchise.—A right to vote is a civil right, and a suit, therefore, for a
declaration that the plaintiff is a qualified voter would lie. Similarly, a suit for an
injunction against the Chairman of a Municipality for his refusal to insert a person's
name in the register of voters is also maintainable.70
(7) Suit for dissolution of marriage.—A suit by a Hindu woman for a declaration that the
second marriage between her husband and another woman is void under Hindu
Marriage Act of 1955 is a suit of civil nature and is maintainable in a Civil Court.71
(8) Right of person as a member of club.—A suit is maintainable in respect of the

wrongful expulsion of a member from a social club.72
(9) Rights under contract.—Where a suit has been filed for a declaration of civil rights in
respect of certain contracts, such a suit will be of civil nature.73
(10) Suit for rent.—A suit for recovery of arrears of rent is a suit of civil nature.74 Where
in a suit for title and possession the defendant claimed title by adverse possession and
denied relationship of landlord and tenant, a plea of protection under the Rajasthan
Premises (Control of Rent and Eviction) Act, 1950 cannot be allowed to be raised
before Supreme Court in appeal by special leave.75
Civil court's jurisdiction is not ousted when the suit is for title and not for eviction of
Mundkar under the Mundkar's Act, 1975. The executing court therefore erred in
refusing to execute decree on the ground of lack of jurisdiction of Civil Court.76
(11) Suit for office.—Where some duties are attached to some office either by custom or
by usage, the right to hold such an office is of civil nature.77 However, where no duties
are attached to the office, no suit will lie in a Civil Court.78
(12) Suit for administration.—The power to entertain an administration suit is given by

section 9 of the Code of Civil Procedure, 1908.79
(13) Other or summary remedy.—It has been held by the Supreme Court that the mere
fact that an enactment provides another remedy or a summary remedy will not
constitute a bar to a suit in a Civil Court.80
(14) Suit for recovery of Agricultural Income-Tax.—A suit for recovery of Agricultural
Income Tax by the State due from an assessee is a suit of civil nature.81
(15) Suit for a declaration.—It has been held by the Supreme Court in Anne Besant
National Girls High School v Deputy Director of Public Instruction, AIR 1983 SC 526 :
(1983) 1 SCC 200 : 1983 Mah LJ 806 that a suit for declaration is a civil suit. In this
case one Smt. Jalajakshi was appointed as temporary acting Headmistress in the leave
vacancy by the Management of a Society running girls High School. But subsequently,
she was relieved of her duties on account of her unsatisfactory work, and in her place
Smt. Manorma Rao was asked to take charge as Headmistress. The Management
intimated the change to the Deputy Director of Public instruction and Smt. Jalajakshi
filed an appeal to the same authority (D.D.P.I.) against her reversion. The D.D.P.I.
directed the Management to re-instate Smt. Jalajakshi to her original position. An
appeal by the Management to the D.P.I. also was dismissed. Then the Management
filed a civil suit for a declaration that the order of D.D.P.I. and D.P.I. were illegal, wrongful
and without jurisdiction. It was held by the Supreme Court that since those orders were
likely to affect the Management adversely, such a suit would be clearly maintainable.
Accordingly, the decision of Mysore High Court was reversed.
A suit for declaration that the plaintiff who was born to Christian parents who claims to
have converted to Hindu, is an adidravida scheduled caste is not maintainable in a Civil
Court.82
(16) Suit for Damages.—When a seaman is terminated or discharged his service book
should be returned to him immediately. Otherwise the damages cannot be awarded to
him under Article 32 of the Constitution of India as a Civil suit can be filed for that
purpose.83
Where public functionaries are involved and the matter relates to the violation of
fundamental rights or enforcement of public duties, the remedy would still be available
under the public law, notwithstanding that a suit can be filed for damages under private
law.84
(17) Question of voidability of the sale of minor's undivided share.—The question of

voidability of the sale of minor's undivided share in the Joint Family property could only
be decided by the civil court and not by the Consolidation Authorities.85
(18) Suit for deciding illegitimacy of Child.—Family Court has jurisdiction exclusively to
declare legitimacy of offspring of valid marriage where marriage is denied, it cannot
have jurisdiction to deal with issues of illegitimacy. Only civil court has jurisdiction to
entertain suit and decide the question of legitimacy of child.86
(19) Suit for recovery of EMD by Auction Purchaser.—Civil Suit for recovery of EMD by
auction purchaser is not barred. Auction purchaser being third party does not come in
the category of either the borrower or the creditor and hence, cannot be driven to file
appeal under section 17 of Securitisation and Reconstruction of financial Assets and
Enforcement of Security Interest Act, (54 of 2002).87
(20) Suit for Cancellation of Document.—The power of cancellation of written

document/Sale Deed evidently not vested in Chattisgarh Co-operative Societies Act,
1961, thus Civil Court's jurisdiction to entertain such a suit is not ousted.88
Express bar to civil suits.—
The jurisdiction of Civil Courts can be expressly barred by any enactment for the time
being in force.89 The jurisdiction of Civil Court is barred under section 46 of
Administration of Evacuee Property Act, 1950. The section 46 or section 28 of the Act,
however, cannot bar jurisdiction of High Court under Article 226 of the Constitution.90 It
has been held by the Punjab and Haryana High Court that on the facts of the case the
suit for mesne profits was not barred by sections 14 and 77(3)(n) of the Punjab
Tenancy Act, 1887.91
Cases of reinstatement and back wages, where relief available under Industrial Dispute
Act, 1947.—
Where the relief of reinstatement and back wages is available only under Industrial
Disputes Act, it cannot be granted by the Civil Court. The provisions of the Industrial
Dispute Act impliedly exclude jurisdiction of Civil Court as regard such relief.92
Political questions and Incidents of sovereignty.—
The power to recognise an heir to the gaddi is political in character and is an incident of
sovereignty. It cannot be subject-matter of a suit in civil Court.93
The decision as to what properties belonged to the ex-ruler as his private property was
arrived at on mutual agreement of the parties. The fact that the letter of the
Government of India labelled it as "decision" did not take the same out of the purview of
agreement simpliciter. Therefore, any suit in Civil Court arising of the agreement was
not maintainable.94
Rival claims for Tenancy Rights.—
Where rival claims for tenancy rights or the nature of tenancy are made, only the
tribunal appointed under Karnataka Land Reforms Act, 1962 can decide it and the Civil
Court has no jurisdiction to decide the same.95
Acquisition proceedings.—
A Civil suit relating to acquisition proceedings is not maintainable and by implication

cognizance under this section is barred.96
Civil Court jurisdiction to declare acquisition bad and injunct authorities from taking
forcible possession is not barred.97
The jurisdiction of a Civil Court to take cognizance of the cases arising under Land
Acquisition Act is barred.98
A Civil Court has no jurisdiction to go into the question of the validity or legality of the
notification under section 4 and a declaration under section 6 of Land Acquisition Act
except by a High Court in a proceeding under Article 226 of the Constitution.99
Proceedings governed by SARFAESI Act, 2002.—
In view of the Securitisation and Reconstruction of Financial Assets and Enforcement

of Security Interest Act, (54 of 2002), Civil Court shall have no jurisdiction to entertain
any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the
Appellate Tribunal is empowered by or under this Act.100
Question if persons who succeeded recorded tenants were rightly recorded as tenants.—
A Civil Court has no jurisdiction to decide the question whether the persons who
succeeded the recorded tenants were rightly recorded as tenants. Such a question can
be decided by revenue authorities alone. Suit to set aside the sale deed by transferees
is to be rejected.101
A relief of actual possession from the defendant who claimed to be protected tenants
can be granted only by the revenue Court and not by the Civil Court.102
Suits under section 50 of Bombay Public Trusts Act, 1950.—Where the main purpose of
the suit by followers of a particular suit is to establish the superiority of their suit and
impose their way of thinking and worship in the management of the temple.
Consequently, in the administration of the trust, the suit will be covered by section 50 of
the Bombay Public Trusts Act, 1950 and the Civil Court's jurisdiction is barred.103
Eviction Suit.—Where the dominant intention is to let out a building to run a cinema
theatre and lease was not in respect of the fittings, furniture and equipment, the letting
of building playing a subsidiary role only, the suit for eviction was not maintainable in a
Civil Court.104
A Civil Court's jurisdiction stands ousted, in the suit for eviction of tenants from land
used for growing coconut trees, by section 58(2) of Goa, Daman and Diu Agricultural
A Civil Court which has no jurisdiction to certain a suit for eviction on a ground
envisaged under section 10(2)(vi) of AP Buildings (Lease, Rent and Eviction) Control
Act, 1960 cannot entertain the counter claim regarding extension of Civil Court
jurisdiction by A.P. Act.106
Suits under section 41(1) of Presidency Small Cause Courts Act, 1882.— The suit under
section 41(1) of the Presidency Small Cause Courts Act, 1882 would lie within
exclusive jurisdiction of Small Cause Court and not the City Civil Court.107
Determination of Citizenship.—A Civil Court has no jurisdiction to decide an issue

arising in a suit for the determination of citizenship, instituted before the
commencement of the Citizenship Act, 1955. The Central Government alone has been
constituted the exclusive forum for the same.108
Question as to who is Lawful Ryot?—A Civil Court has no jurisdiction to decide a
question as to who is lawful ryot in respect of holding under section 56 of AP (Andhra
Area) Estate Abolition and Conversion into Ryotwari Act, 1948. Such a question can be
decided only by the Settlement Officer.10
The Punjab Village Common Lands (Regulation) Act, 1961 bars a civil suit on the
question whether any land is or is not shamlat deh.110
Under section 45(2) of MP Accommodation Control Act, 1961.—The Civil Court's

jurisdiction to entertain a suit is barred under section 45(2) of MP Accommodation
Control Act, 1961.111
Possession of Agricultural Land against Tenant.—The Civil Court has no jurisdiction to

entertain and try a suit for possession of an agricultural land against a tenant. It has
jurisdiction to entertain a suit by a land holder for recovery of possession of agricultural
land from a trespasser or from a mortgagee on redemption of a mortgage. This
position is a combined effect of sections 29, 70, 85 and 85-A of Bombay Tenancy and
Agricultural Lands Act, 1948.112
Determination of Question if Property is Evacuee Property.—A Civil Court is barred from

determining a question whether any property is evacuee property.113
Section 46 of the Administration of Evacuee Property Act, 1950 bars the jurisdiction of
any Civil Court or revenue Court to adjudicate upon any question whether any property
is or is not evacuee property.114
Suit challenging Assessment Order.—A suit challenging assessment order on the ground
that it was made in contravention of Article 286 of the Constitution is not
maintainable.115
Administration & Management of Religious and Charitable Trusts.—The suits relating to

the administration or management of a religious and charitable trust are barred by
sections 93 and 57 of the Madras Religious and Charitable Endowments Act, 1951.116
Regarding Property of Religious Endowment.—A suit regarding the property of a religious

endowment under sections 5 & 108 of TN Hindu Religious and Charitable Endowment
Act, 1959 is not maintainable before a Civil Court.117
Suit against State of UP by public servant.—The jurisdiction of the Civil Court to entertain
a suit against the State of Uttar Pradesh and certain other authorities by a person who
is or has been a public servant has been barred by section 6 of the UP Public Services
(Tribunal) Act, 1976.118
Question if an inam village is a inam Estate?—The question as to whether an inam

village is an "inam estate" is exclusively within the jurisdiction of the settlement officer
and of the tribunal on appeal. The Civil Courts have no jurisdiction to determine it or
retry it.119
Exclusion jurisdiction of revenue Courts bars Civil Court's jurisdiction.120
Questions of International Law.—The disputes as to boundaries as between two

independent States cannot be the subject of inquiry of municipal Courts exercising
jurisdiction in either State. The municipal Courts should be slow to interfere.121
If injunction granted was illegal, suit is barred.—A principal of college was suspended by
the Managing Committee. The order of suspension was confirmed by the authority
under Intermediate Education Act, 1921. The grant of injunction by the Court to the
plaintiff Principal was illegal. The suit was also barred.122
If special remedy is provided, suit is barred.—Where special remedy is provided, the

general remedy of suit is barred. In the suits by the partners of a firm challenging the
validity of assessment of profession tax on individual partners, the special remedy
under section 86 of Punjab Municipal Act, 1911, excluded the jurisdiction of Civil
Court.123
A Civil Court has no jurisdiction to entertain suits restraining bank from alienating suit
property, from making recovery under section 13(4) of the Securitisation and
Reconstruction of Financial Assets and Enforcement of Security Interest Act, (54 of
2002).124
Question as to suit land, cannot be determined.—In a suit for ejectment and possession
of land, the question whether suit land is or is not used for purposes connected with
agriculture, horticulture or animal husbandry, cannot be determined by Civil Court. It is
to be determined under the provisions of sections 143, 144 and 331-A of UPZA and LR
Act, 1951.125
Industrial Disputes.—Where the dispute between the employee and employer arises
from general law of contract i.e. where reliefs are claimed on the basis of the general
law of contract, a suit filed in Civil Court cannot be said to be not maintainable, even
though such a dispute may also constitute an "industrial dispute" within the meaning of
section 2(k) or 2-A of the Industrial Dispute Act, 1947. Where, however, the dispute
involves recognition, observance or enforcement of any of the rights or obligations
created by that Act the only remedy is to approach the forum created by the said
Act.126
With regard to labour dispute, the jurisdiction of civil court is barred, when right is
claimed under the Industrial Disputes Act, 1947 or sister laws.127
Where dispute fell under the premise of Industrial Disputes Act, jurisdiction of Civil
Court was barred.128
Suits under section 49 of UP Consolidation of Holdings Act, 1954.—The declaration and

adjudication of rights of tenure-holders in respect of land lying in the area covered by
the notification under section 4(2) of the UP Consolidation of Holdings Act, 1954 is
barred under section 49 of the Act.129
Suits which are not of "Civil Nature".—
The following are some of the instances which are not suits of civil nature.
(1) Right of privacy.—Right of privacy is not recognised by law, hence no suit lies to
enforce such right.130 However, where purdah system is prevailing, its infringement
gives rise to a cause of action.131
(2) Suits involving principally caste questions.—A caste may be defined as comprising
any well-defined native community governed for certain internal purposes by its own
rules and regulations.
A suit in which the principal question is one relating to caste is not a suit of a civil
nature.
(3) Suit for merely upholding dignity or honour.—A claim to establish a mere dignity or
honour even though connected with an office is not a civil suit.132
(4) Suit relating purely to religious rites or ceremonies.—It is not the province or the duty
of a Civil Court to pronounce on the truth of religious tenets and to regulate religious
rites or ceremonies.133
(5) Matters to be determined by special Tribunal or under the authority of an Act of

Legislature are expressly barred.
(6) A tenant who is dispossessed otherwise than in due course of law has his remedy
under section 56 of the Tenancy Act alone and no civil suit can be filed for that
purpose.134
It may be noted that it is always open to a State Legislature to bar the jurisdiction of
Civil Court with respect to a particular class of suits of civil nature provided that it does
not contravene any provision of the Constitution of India.135
If there is any doubt about the ousting of the jurisdiction of an existing Court, the Court
will lean to an interpretation which would maintain the existing jurisdiction.136
Suits impliedly barred.—
The cognizance of a suit is impliedly barred whether by general principles of law or on

grounds of public policy.137 Thus, where a special Act set up a special set or hierarchy
of Tribunals specially empowered to adjudicate upon the rights and obligations created
by the special Act the jurisdiction of the Civil Court is impliedly barred, even if no
express bar is stated in the Act.138
Where a right, not pre-existing in common law, is created by a statute which itself
provided a machinery for enforcement of that right and a finality of such statutory
provision is intended then, even in the absence of an exclusionary provision the Civil
Court's jurisdiction is impliedly barred. If, however, a right, pre-existing in common law,
is recognised by the statute and a new statutory remedy for its enforcement provided,
without expressly excluding the Civil Court's jurisdiction, then both the common law
and the statutory remedies might become concurrent remedies. Thus, the ouster of
Civil Court's jurisdiction would depend on whether the right was preexisting in common
law or not.139
A Civil Court's jurisdiction to issue injunction restraining the Hearing Authority from
proceeding under section 68-D of the Motor Vehicles Act, 1939 is implied barred.140
The jurisdiction of Civil Court is impliedly barred where provisions of section 86 of

Punjab Municipal Act, 1911 restrains party from challenging assessment and levy of
tax in any manner other than provided under the Act.141
The jurisdiction of the Civil Court may be excluded expressly or by clear implication
arising from the scheme of the Act. Where the legislature sets up a special tribunal to
determine questions relating to rights and liabilities which are the creation of a statute,
the jurisdiction of the Civil Court would be deemed excluded by implication.142
The jurisdiction of the Civil Court to declare the title to the inam land by necessary
implication stood excluded by section 15 of A.P. Inam Abolition and conversion into
Ryotwari Act, 1956.143
An exclusion of jurisdiction of Civil Court is not to be readily inferred. Where a statute
gives finality to the orders of the special tribunals, jurisdiction of the Civil Court stands
excluded, if there is adequate remedy to do what the Civil Courts would normally do in
a suit.144
The exclusion of jurisdiction of a Civil Court is not to be readily inferred, Such exclusion
must be either explicitly expressed or clearly implied.145
Where the suit arises out of breach of covenant of the Partnership Deed which as on
date stands dissolved then such a suit is not maintainable and is required to be
referred to the Arbitrator in view of arbitration clause as the arbitration clause of the
deed would survive for the purpose of resolution of dispute. Allegations that case
involves issues like fraud and misrepresentation therefore cannot be adjudicated by
arbitrator and only by civil court, not tenable.146
The declaration of the President of India with respect to the list of Scheduled Caste and
Tribe is conclusive. By necessary implication the jurisdiction of Civil Court to declare
that a particular caste is Scheduled Caste or Tribe stands prohibited.147
Suits are impliedly barred on the following two grounds:
(A) Barred by general principles of law; and (B) Barred on grounds of public policy.
(A) By general principles of law (Act of State).—A Civil Court has no jurisdiction to
entertain suits in respect of act of State. An act of State may generally be defined as an
act done or adopted by a State in its sovereign capacity and injurious to the person or
property of some person who is not at the time of that act, a subject of that State.148
Act of State also includes all acquisitions of territories by a sovereign State for the first
time whether by conquest, treaty or by cession or otherwise.149
An annexation of territory is an act of State. It is right of previous rulers. Any inhabitant

of the territory so annexed can make good in the municipal Courts established by the
new sovereign only such rights that sovereign has recognised.150
An act of State is an exercise of sovereign power against an alien and is neither

intended nor purports to be legally founded. The orders of resumption made by the
administrator arose out of and during an act of State and were not justiciable in the
municipal Courts. Therefore, the suits were not maintainable.151
These acts may conveniently be grouped under two heads, namely—
(i) acts done in pursuance of ventures which a private individual may as well
undertake, for example, mercantile operations and the like. Such acts are plainly
justiciable in the Municipal Courts of the country and the State is always
answerable for their consequences. Its primary and vicarious liability in respect
of such acts is absolute, in the sense that it is governed by the same principle as
governed by private individuals in similar matters.
(ii) acts done in the exercise of governmental powers which cannot lawfully be
done except under sovereign authority or delegation thereunder. Such acts
further fall under two distinct sub-heads: (a) Comprising sovereign act or acts of
State, properly so called, not professing or seeking to justify themselves under
the municipal law and (b) acts done or purported to be done under the sanction
of some municipal law or statute and in the exercise of powers conferred
thereby, Acts of State, properly so called are never justiciable in Courts of law or
Municipal Courts of the country. These are absolutely immuned.
The aforesaid view has been supported by the Supreme Court. Thus, where the police
had seized gold suspected to be stolen and subsequently it was lost by the police, it
was held that for tortious acts committed by public servant in course of employment
and in exercise of statutory functions delegated to them by Government, State will be
immuned from liability.152
On the other hand, the Mysore High Court is of the opinion that the postal service of
Government of India is not a sovereign function of State and hence Union of India is
liable for torts of the servants of postal department.153 Delhi High Court has held that
if the act is not in the exercise of sovereign power, State is liable.154
Claim on the basis of Grant of erstwhile ruler.—A claim made on the basis of grant by
erstwhile ruler is not enforceable when it has not been accepted by the successor
Government after merger.155
Reference may be made to a Supreme Court decision in Bata Shoe Co Ltd v City of
Jabalpur Corporation, (1977) 2 SCC 472 : AIR 1977 SC 955 (958). See also The Premier
Automobiles Ltd v Kamlekar Shantaram-Wadke, (1976) 1 SCC 496 . The Supreme Court
held that the suit was barred from cognizance of the Civil Court, because both the Act
and the rules contained provisions enabling the aggrieved party to effectively challenge
an illegal assessment or levy for double duty. By reason of the existence and
availability of those special remedies, the ordinary remedy by way of a suit would be
excluded on a true interpretation of section 84(3) of the Act.
In an execution of a partition decree the actual possession was sought. The

respondent claimed that he was a tenant of the property and he could not be evicted. It
was held that the issue could be decided by the authorities under the Karnataka Land
Reforms Act, 1962 and the Civil Court's jurisdiction was barred.156
(B) Barred on grounds of public policy.—The principle is that a Court ought not to
countenance matters which are injurious to and against the public weal.157
Accordingly, it has been held by the Supreme Court that a suit for damages on account
of breach of contract which is illegal is not maintainable.158 Similarly, judges are
protected for acts done in course of their duties.159
Reference may be made to a Supreme Court decision in Sitaram Kashiram Konda v

Pigment Cakes and Chemical Mfg Co, AIR 1980 SC 16 : (1979) 4 SCC 12 : 1979 SCC
(L&S) 351 : 1979 Lab IC 1378 . In this case the appellant was wrongfully dismissed
from service. He filed a suit in the Trial Court alleging certain unjustifiable and illegal
actions on the part of the respondent, his employer, but the same was dismissed. His
appeal to the High Court also met the same fate. On further appeal before the Supreme
Court, it was held that the main reliefs asked for by him were such that when granted
they would amount to specific performance of the contract of service and therefore,
they could not be granted. But when in the alternative, the appellant had also prayed for
awarding compensation to him and he had made out a case, that he was wrongfully
dismissed from service, this relief could be granted by the Civil Court. To this limited
extent, the matter could be examined by the Civil Court.
Civil Suits not Barred.—
Suit for Damages.—In a suit for damages against Electricity Board for laying high power
transmission lines through construction of the plaintiff without his consent, civil suit is
not barred.160
Refund of Advance Sales-tax paid under mistake of law.—A suit for the refund of advance
sales tax paid under mistake of law is not barred expressly by section 20 or impliedly
by section 13 of Bombay Sales-tax Act, 1946.161
For possession and mesne profits.—A suit for possession and mesne profits against the
defendant who claimed to be occupancy tenant, but his such claim is denied by the
plaintiff, is not barred from the cognizance of Civil Court under section 73(3) of Punjab
Suits under Consumer Protection Law.—The Consumer Redressal Fora established

under Consumer Protection Act, 1986 do not strike at the independence of the
judiciary. The Act supplements and not supplants the jurisdiction of the Civil Courts or
other statutory authorities.163
Suit for correction of date of birth.—The law is settled that matters which come within
the purview of section 9 of the Code are maintainable in the Civil Court. Where the suit
for correction of date of birth is filed, before an employee is superannuated on basis of
the date of birth on record, the suit was not barred by section 2A of ID Act. Ancillary
relief of correction of record can also be granted by the Civil Court. The claim for
backwages after the employee stands superannuated cannot be granted.164
The civil court can declare the correct date of birth of a party before it.165
Question if a grant is a Personal Inam?—A Civil Court has jurisdiction to decide the
question whether a grant, in a case, is a personal inam or not. It is not correct to say
that the Government alone is competent to decide the question and that the jurisdiction
of Civil Court is executed.166
Powers of Mines Commissioner.—
The Mines Commissioner cannot go into the question of ownership and possession of
the property in question as the Mines Commissioner cannot assume the role of a civil
court. Once there is a registered sale deed in favour of the petitioner, it is beyond the
power, authority and jurisdiction of the Mines Commissioner to pass any order
regarding ownership and possession of the property, purchased by the petitioner. A civil
dispute ought to have been raised by the respondent under section 9 of the Code of
Civil Procedure and should get relief from the civil court.167
Pre-emptive suit, injunction no ground for ouster.—The debtor may file pre emptive suits
and obtain orders of injunction but the same alone by itself cannot be held to be a
ground to completely oust the jurisdiction of Civil Court in the teeth of section 9 of the
code.168
Right of pre-emption is enforceable under section 9.169
Suit for refund of wharfage and demurrage charges.—A civil suit, for refund of wharfage
and demurrage charges collected by railway, challenging the vires of rules empowering
the railway to collect such amounts and alleging excess realisation than legally leviable
under section 26 of Railways Act, 1890, is no bar.170
In a case, consignment was booked and loaded at private siding belonging to B.R.P.L.
Railway accepted the goods to be carried from private siding. Accident occurred at
private siding, the Railway Tribunal does not have jurisdiction. The proper course would
have been to approach the Civil Court under the common law making railway as
defendant.171
Suits for Declaration for no liability to Pay Revenue in case of ferries Resumed by
Government.—A Civil Court is not barred from entertaining a suit for declaration that the
plaintiff is not liable to pay revenue in respect of ferries which were resumed by the
Government.172
Exercise of equity jurisdiction.—Courts in India exercise jurisdiction both in equity as

well as in law. But exercise of equity jurisdiction is always subject to the provisions of
law.173
Failures other than in complianer of requirement of "Sixth Schedule" on the Part of

Licensee.—In view of the failure on the part of the licensee in complying with the
requirements of the "Sixth Schedule", there are some "failures" in regard to which the
jurisdiction of Civil Court is not barred.174
Suits not in jurisdiction of the Small Cause Courts.—A suit not within exclusive
jurisdiction of the Court of Small Causes can be entertained by Bombay City Civil
Court.175
Suits for Recovery.—The right of a creditor of a Nationalised textile undertaking to

proceed before the Commissioner and to file a suit to recover the amount due to him
cannot be taken away though he would not be entitled to recover any amount at both
the ends. The amount paid by the commissioner would stand reduced to the extent of
payment by the Commissioner. The filing of the civil suit for recovery thus is not
barred.176
No suit would be maintainable against order of attachment and sale of property for the
recovery of amount due of the Debt Recovery Tribunal or against consequential order
passed by the Recovery Officer.177
Suit for a declaration that orders of DDPI & DPI were illegal.—In a case a teacher was
appointed as temporary acting Headmistress by the Management of Girls High School.
Subsequently, she was relieved of her duties and another one was given the charge as
such. The Management also intimated this change to the Dy. Director of Public
Instructions while the aggrieved teacher filed an appeal to the same Dy. Director
against her reversion. The DDPI directed the Management to reinstate her. The
Management preferred an appeal to the DPI which was dismissed. Then it filed a civil
suit for declaration that the order of DDPI and DPI were illegal wrongful and without
jurisdiction. Since those orders were to affect the Management adversely, such a suit
would be a civil suit and clearly maintainable.178
Suit for declaration of title and possession.—The statute ousting the jurisdiction of a
Civil Court must be strictly construed. It is for the party who seeks to oust the
jurisdiction of Civil Court to establish his contention.
The jurisdiction of Civil Court is to be determined having regard to the averments

contained in the plaint. The issue as regards title over a property can be decided only
by a Civil Court.179
The power of cancellation of written document (sale deed) evidently not vested in
Chattisgarh Co-operative Societies Act, 1961, thus Civil Court's jurisdiction to entertain
such a suit is not ousted.180
Suit whether maintainable before civil court.—

The law is well settled to the effect that competency of the jurisdiction or lack of the
same in a particular court cannot be determined by either of the parties through their
pleadings or admissions made thereof. The question whether land is agricultural land
or abadi land can only be adjudicated by revenue court, so also, possession of
agricultural land can be adjudicated by the revenue court.181
In a dispute as to nature of land the Board of Revenue in appeal held it to be grove and
its possession was given to the claimant. It affected the rights of village people.
Subsequently, the villagers, in representative capacity, filed a suit for declaration of title,
permanent injunction and possession, on ground that the land was grazing land and
not grove. That suit would be maintainable since it was only remedy available to the
villagers and not barred by section 257 of MP Land Revenue Code.182
Suit for declaration that retrenchment of service was illegal.—A suit for declaration by the
employee that retrenchment of his services by the society constituted under UP Co-
operative Societies Act, 1966, is illegal, is not barred.183
Suit against Termination of Service.—Where the services of a bus conductor were

terminated and the conductor filed a suit against his termination order in the Civil
Court. The Civil Court can entertain and try the suit.184
Suit for demarcating boundary of property.—A suit for demarcating boundary of property
is maintainable. English law on the subject cannot be applied in India. A dispute
regarding identification of boundary between two adjacent land owners is certainly a
dispute of civil nature and it is not barred either expressly or impliedly.185
Suits under section 32 of Arbitration Act, 1940.—Every person has a right to bring a suit
which is of civil nature and the Court has jurisdiction to try all suits of civil nature under
this section. It is not taken away by section 32 of the Arbitration Act, 1940. Such a right
can only be taken away by express terms or by necessary implication.186
Determination of rent by mamlatdar.—The jurisdiction of Civil Court to determine rent by

Mamlatdar is not barred by Bombay Tenancy and Agricultural Lands Act, 1948.187
Eviction of persons in unauthorised occupation of premises.—The eviction of persons in

unauthorised occupation of the premises can be ordered only by the Civil Court. Such
matter lies exclusively in the jurisdiction of Civil Court.188
Suits under section 20(6) of Minimum Wages Act, 1948.—Section 20 of the Minimum
Wages Act, 1948 is not aimed at putting a seal on the adjudication if any, under it,
section 20(6) of the Act does not exclude the jurisdiction of the Civil Court when the
challenge is as to the applicability of the Act to a certain class of workers.189
Ejectment Suit against the Tenant.—A building which was originally evacuee property
was put to auction. The bid of an auction purchaser was accepted but no certificate
was immediately issued. The managing officer gave provisional possession to the
purchaser with direction to the tenant occupying the building to attorn to him. The
purchaser realised the rent accordingly. He filed a suit for ejectment of the tenant in
Civil Court. The Civil Court was barred from entertaining the suit.190
Suit for permanent injunction against landlord and tenant by sub-tenant.—A decree for
eviction was passed against the tenant before commencement of Delhi Rent Control
Act, 1958. Sub-tenancy was not determined by the decree. A suit by the sub-tenant for
permanent injunction against the landlord and the tenant was not barred by section 50
of the Act. He can file a suit in a Civil Court for declaration of his right as section 50
does not apply to him.191
Provision, if ultra vires, no bar to maintainability.—A suit was filed for refund of sales tax
assessed under the provisions of section 18A of Madras General Sales Tax Act, 1939
which were declared to be ultra vires. The suit is maintainable section 18A of the Act is
not a bar to the maintainability of the suit.192
Suit by State for Debt Recovery.—A suit by the State of UP for recovery of Agricultural
Income-tax due from an assessee under the UP Agricultural Income-tax Act, 1948 is
maintainable. The failure of the assessee to make payment of tax within time on
receipt of notice of demand creates a debt in favour of the State. This debt can be
recovered by the State in any of the modes under the general law.193
Suit Relating to Removal of Trustee.—If there is a breach of private trust or

mismanagement on the part of the trustee, then a suit can be brought in a Civil Court,
by any person interested for the removal of the trustee and for the proper
administration of the endowment.194
Determination of Genuineness of documents.—The jurisdiction of Civil Court is not

barred in determination of genuineness of Ryotwari Patta of land where decision of
Tahsildar, Revenue Court or Collector granting patta is fraudulent or spurious
document.195
Suits relating to auction sale by executive Court.—Where the Tax Recovery Officer is not
proceeding to recover tax by invoking provisions of the Income Tax Act, an auction sale
of property by the Executive Court is not barred under rule 9 of Income Tax rules.196
Leave to file suit.—A Civil Court does not grant leave to file another suit. If the law
permits, plaintiff may file another suit but not on the basis of observations made by a
superior court.197
Suit for Compensation.—In a suit for wrongful dismissal from service, a prayer for
reinstatement is not maintainable but alternative prayer for compensation is
maintainable.198
Suit for declaration of legal character of marriage.—Where a suit is filed for declaration
of title including declaration as to the legal character of alleged marriage between the
parties to the suit and the suit is filed under Specific Relief Act and not under Hindu
Marriage Act or Special Marriage Act, then Jurisdiction of civil court not barred.199
Suits relating to mutation proceedings to decide Kinship.—Illegal orders of the Governor,

on question of succession of certain zamindari and that of revenue authorities in
mutation proceedings, do not exclude jurisdiction of Civil Court, to decide questions of
Kinship.200
Suits Relating to Scheme for Management of Private Trust.—The Civil Courts have
jurisdiction to frame a scheme for the management of a temple which is a private trust
not a public trust.201
The Civil Court's jurisdiction is not ousted by sections 60 & 93 of the Delhi Cooperative
Societies Act regarding dispute between the society and a contractor to whom a
construction work was allotted by the society.202
Suit challenging decree of collusive.—A suit was filed by the landlord against lessee for
ejectment after serving valid notice to quit. The sub-lessee was not impleaded as
defendant. An ex parte decree was passed without contest by the lessee. The sub-
lessee thereupon, brought a suit against the landlord and the lessee for a declaration
that he was not bound by the decree which had been obtained by collusion. This suit
was dismissed as the plaintiff failed to establish collusion. The mere fact that the
defendant agrees with the plaintiff that if the suit is brought he would not defend it,
would not necessarily prove collusion.203
Consignor can sue.—A consignor can bring a suit for damage to goods by fire on the
railway platform, if the title to goods was not passed to consignee. The property in the
goods was with the factory when the fire broke out on the railway platform, the ordinary
rule that it is the consignor who can sue, prevailed.204
Where a matter is litigated in a Civil Court for more than five years, an order holding
that the Civil Court has no jurisdiction at the time of hearing of second appeal, will not
be proper.205
Decree in time barred suit, not nullity.—Where a Court, having jurisdiction over the
subject-matter and the party, passes a decree, it cannot be treated as a nullity and
ignored in subsequent litigation even if the suit was barred by the time.206
The Civil Court's jurisdiction is not ousted where special officer could have been moved
for the grant of ancillary relief.207
Suit relating to specific performance of agreement of sale.—Where plaintiffs claimed that

pursuant to an agreement of sale, they were put in possession, but there was no
material to substantiate such claim. It was held that on facts suit was not one for
protection of possession, but for specific performance of agreement of sale.208
In a suit for specific performance plaintiff must give specific description of the property
in question.209
Civil and complaint case.—Simultaneous civil suit and complaint case under section
138 of Negotiable Instrument Act, 1881 for the same cause of action are
maintainable.210
Jurisdiction of special court.—In the light of conflicting views expressed by two earlier
benches, matter is referred to a larger Bench.211
Suit for recovery of possession.—A suit for recovery of possession by a tenant is neither
expressly nor impliedly barred by section 13A of the Kerala Land Reforms Act, 1964.
The Civil Court consequently would have jurisdiction to entertain such suits.212
Suits for declaration of Pujariki rights.—The bar of jurisdiction of Civil Court created by
section 80 of Bombay Public Trust Act, 1950 would not apply where a suit was for
Pujariki rights of performing puja and for consequential decree for injunction
restraining respondents. The question which required adjudication did not expressly
come within purview of the Act. Exclusion of the Civil Court's jurisdiction must be either
explicitly expressed or clearly implied.213
Under Companies Act, 1956.—The Civil Court's jurisdiction is not completely ousted
under the Companies Act, 1956. A provision seeking to bar jurisdiction of Civil Court
requires strict interpretation. The Court would normally ban in favour of construction
which would uphold retention of jurisdiction of Civil Court. Burden to prove ouster is on
the party alleging it.214
Civil Courts' jurisdiction ousted.—Suit for the ejectment of tenant from wakf property is
maintainable before wakf tribunal and not Civil Court.215
Where show casue notice was issued under Rajasthan Excise Act (2 of 1950) for the
cancellation of licence, the civil suit for injunction was held to be not maintainable.216
The procedure contained in Code of Civil Procedure, 1908 in regard to territorial
jurisdiction is not applicable to writ petition presented before the High Court under
Article 226 of the Constitution.217
The Civil Court's jurisdiction gets barred only if special statute provides for adequate
alternate remedy to party aggrieved by order made under its provisions.218
Special Courts and tribunals are not substitutes for Civil Courts.219
In a suit for declaration and injunction and for other incidental relief, where High Court
found that section 185 of Delhi Land Reforms Act could not be applied in view of
nature of relief claimed in suit and therefore suit be heard on merits on other issues.220
Where agreement provides for arbitration in case of any dispute, once it is held that the
matter can be determined finally by the arbitrator then the Civil Court will be debarred
from entertaining the suit or granting the interim injunction.221
For the ouster of Civil Court's jurisdiction, heavy burden lies on the person asserting the
ouster and vesting of jurisdiction in some other court, tribunal or authority.222
Clause 9 of the Facilitation Deed provided that the courts in Singapore or any other
court having jurisdiction over the parties can be approached for equitable relief. Thus,
this clause does not oust the jurisdiction of the appropriate civil court conferred by
section 9 of the Code of Civil Procedure.223
In a dispute regarding dismissal from service the Civil Court has no jurisdiction to
entertain suit challenging order of dismissal. The standing orders have no statutory
force and are not in the nature of delegated subordinate legislation.224
Recovery of debt due to Bank & Financial Institutions Act, 1973, not a bar.
The enactment of the Recovery of Debt due to Bank and Financial Institutions Act, 1993
is not a bar for the Civil Court to apply to other relief such as under section 56 of
TPA.225
Dismissal of suit.—
The dismissal of suit as barred by limitation by deciding issue of limitation as

preliminary issue is not proper.226
Where the High Court while deciding writ petition transferred suits and appeal involving
similar issues to itself and dismissed the suits on ground that issues raised in them
were being examined in writ petition, without passing any order on application of recall,
the procedure adopted by the High Court was not known to law. One of the
fundamental norms of judicial process is that arguable question either legal or factual,
should not be summarily dismissed without recording a reasoned order.227
Where entire part of cause of action has not arisen at Nagpur, but has arisen within the
jurisdiction of Mumbai where principal seat of respondents MSETC is situated, the suit
is not maintainable at Nagpur.228
1 Re-numbered as Explanation I thereof by Act 104 of 1976, section 5 (w.e.f. 1-2-1977).
2 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 5 (w.e.f. 1-2-1977).
3 Ujjan Bai v State of UP, AIR 1962 SC 1621 : (1963) 1 SCR 778 .
4 Official Trustee, WB v Sachindra, AIR 1969 SC 823 : (1969) 3 SCR 92 ; See also Raja Soap
Factory v Shanatharaj, AIR 1965 SC 1449 : (1965) 2 SCR 800 .
5 Addl Collector of Customs v Best and Co, AIR 1966 SC 1713 .
6 Kalyan Biswas v Bahadur Khan, AIR 1925 Cal 1258 .
7 State of Gujarat v Rajesh Kumar Chimanlal Barot, AIR 1996 SC 2664 : (1996) 5 SCC 477 .
8 Vishnu Dutta Sharma v Daya Sapra, (2009) 13 SCC 729 (736), See also Jagnarayan Singh v
Shubharaji Devi, 2010 (3) Pat LR 452 (DB); Anil Nanda v Escorts Ltd, 2009 (156) DLT 697 (DB);
Abdul Gafur v State of Uttrakhand, (2008) 10 SCC 97 .
9 Margaret Almeida v Bombay Catholic Cooperative Housing Society Ltd, (2012) 5 SCC 642 .
10 Srikant Kashinath Jituri v Corpn. of Belgaum, AIR 1995 SC 288 (292) : (1994) 6 SCC 572 ; see
also Dhulabhai v State of MP, AIR 1969 SC 78 ; see also Shiv Kumar Chadha v Municipal Corpn of
Delhi, (1993) 3 SCC 161 (Principles reviewed and reaffirmed).
11 Ramesh Chand Ardawatiya v Anil Panjwani, AIR 2003 SC 2508 (2514, 2515) : (2003) 7 SCC
350 ; see also Dhulabhai v State of MP, AIR 1969 SC 78 : (1968) 3 SCR 662 : 1969 Mah LJ 1 .
12 PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001 (2022) : 1995 Supp (4) SCC
286 .
13 RC Sharma v UOI, AIR 1976 SC 2037 (2040) : (1976) 3 SCC 574 .
14 Premier Automobiles v V Kamlakar, AIR 1975 SC 2238 (2251) : (1976) 1 SCC 496 : 1976 SCC
(L&S) 70 : (1975) 2 LLJ 445 .
15 P Sarathy v State Bank of India, AIR 2000 SC 2023 (2025) : (2000) 5 SCC 355 : (2000) 4 SLR
512 .
16 Birla Cement Works v GM Western Railways, AIR 1995 SC 1111 .
17 Bhatia Coop Housing Society v DC Patel, AIR 1953 SC 16 (18) : 1953 SCR 185 .
18 Radhakishan v Ludhiana Municipality, AIR 1963 SC 1547 (1550) : (1964) 2 SCR 273 : 50 ITR
187.
19 Magiti Sasamal v Pandav Bissoi, AIR 1962 SC 547 (549) : (1962) 3 SCR 673 : 1962 Ker LT
(SC) 119 .
20 TP Daver v Lodge Victoria, AIR 1963 SC 1144 (1147) : (1964) 1 SCR 1 : 1963 Mys LJ 58 .
21 SD Joshi v High Court of Judicature at Bombay, AIR 2011 SC 848 (860).
22 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 (342) : (1955) 1 SCR 117 : 1954 ALJ 551 .
23 J Kumardasan Nair v IRIC Sohan, AIR 2009 SC 1333 (1336).
24 Ram Swarup v Shikarchand, AIR 1966 SC 893 : (1966) 2 SCR 553 : 1966 ALJ 360 ; Kamla Mills
Ltd v State of Bombay, AIR 1965 SC 1942 : (1966) 1 SCR 64 ; Lala S Bhagwan v Ram Chandra, AIR
1965 SC 1767 ; Secy of State v Mask & Co, AIR 1940 PC 105 ; Secy of State v Jatindra Nath
Chaudhry, AIR 1924 PC 175 (relied on).
25 Ramesh Govindram v Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 (2900).
26 Rajasthan SRTC v Bal Mukund Baiswa (2), (2009) 4 SCC 299 (317).
27 Musamian Imam HB Razvi v RG Ratnabhai, AIR 1969 SC 439 (446) : (1969) 1 SCR 785 ;
Secretary of State v Mask & Co, AIR 1940 PC 105 (relied on).
28 State of WB v Indian Iron & Steel Co, AIR 1970 SC 1298 (1301); Sec of State v Mask & Co, AIR
1940 PC 105 (relied on).
29 Firm of Illury Subbayya Chetty v State of AP, AIR 1964 SC 322 (324) : (1964) 1 SCR 752 .
30 Vedagiri LNS Temple v I Pattabhirami, AIR 1967 SC 781 (785).
31 Church of North India v Lavajibhai Ratanjibhai, AIR 2005 SC 2544 (2555).
32 Sulochana v Rajinder Singh, (2008) 15 SCC 538 (593, 547); see also United India Insurance Co
Ltd v Ajai Sinha, (2008) 7 SCC 454 (467).
33 Unichem Laboratories Ltd v Rani Devi, AIR 2017 SC 2050 : 2017 3 AWC 2200 SC : 2017 (5)
Scale 14 .
34 Robust Hotels (P) Ltd v EIH Ltd, LNIND 2016 SC 588 , decided on 6 December 2016, Supreme
Court of India, CIVIL APPEAL Nos 11886-11887 OF 2016 (ARISING OUT OF SLP(C) NO 23410-
23411 of 2011).
35 N Padmamma v S Ramakrishna Reddy, (2008) 15 SCC 517 (523).
36 Angile Insulations v Davy Ashmore India Ltd, AIR 1995 SC 1766 : (1995) 4 SCC 153 .
37 LIC v R Suresh, (2008) 11 SCC 319 (324-25).
38 Rajasthan SRTC v Mohar Singh, (2008) 5 SCC 542 (545-46).
39 Sonawati v Sri Ram, AIR 1968 SC 466 (470) : (1968) 1 SCR 617 .
40 Shriram City Union Finance Corpn Ltd v Rama Misra, AIR 2002 SC 2402 : (2002) 9 SCC 613 .
41 Sankaranarayanan Potti v K Sreedevi, AIR 1998 SC 1808 : (1998) 3 SCC 751 .
42 Abdulla Bin Ali v Galappa, AIR 1985 SC 577 (579) : (1985) 2 SCC 54 .
43 Man Roland Druckimachinen AG v Muthicolour Offset Ltd, AIR 2004 SC, Rajendra Sethea v
Punjab National Bank, AIR 1991 Del 285 (overruled).
44 Surinder Kaur v Harbux Singh, AIR 1984 SC 1224 (1226) : (1984) 3 SCC 698 .
45 Athmanathaswami Devasthanam v K Gopalaswami, AIR 1965 SC 338 (342) : (1964) 3 SCR
763 .
46 Vankamamidi Venkata Subba Rao v Chatlapalli Seetharamaratha Ranganayakamma, AIR 1997
SC 3082 (3085, 3086) : (1997) 5 SCC 460 .
47 Jagan Nath v Jaswant Singh, AIR 1954 SC 210 (212) : 1954 SCR 892 .
48 S Leelavathi and Another v MS Shivashankar, AIR 2012 Kar 6 .
49 Dilip v Ravi, AIR 2014 Raj 89 .
50 Sheeba Pulikkal v Shoukath Ali, AIR 2012 Ker 60 .
51 Jiban Krishan v ST Authority, AIR 1969 Cal 607 (FB).
52 Bishan Dayal v Keso Prasad, AIR 1937 All 176 .
53 Maharani Devi v Ram Adhar, AIR 1962 All 23 .
54 Municipal Board, Benaras v Jokhun, AIR 1939 All 394 ; See also Inder Sain v UOI, AIR 1969 Del
220 .
55 Ganga Bai v Vijai Kumar, AIR 1974 SC 1126 (1129) : (1974) 2 SCC 393 : (1974) 3 SCR 882 .
56 Guru Gobinda v Sankari Prasad, AIR 1963 Cal 364 (DB) : 67 CWN 558.
57 State of MP v Balbhadra Singh, AIR 1964 MP 231 (LB).
58 Umrao Singh v Bhagwati Singh, AIR 1956 SC 15 .
59 State of Bihar v Abdul Majid, AIR 1954 SC 245 : 1954 SCR 786 : (1954) 2 LLJ 678 ; See also
1963 All LJ 292.
60 P Majilissae Islamia v Sheik Muhammad, AIR 1963 Ker 49 .
61 Nar Hari v BN Temple Committee, AIR 1952 SC 245 : 1952 SCR 849 .
62 PMA Metropolitan v Moran Mar Marthorma, AIR 1995 SC 2001 (2025) : 1995 Supp (4) SCC
286 .
63 Ugam Singh v Kesrimal, AIR 1971 SC 2540 (2545) : (1970) 3 SCC 831 ; Seth Hukam Chand v
M Bahadur Singh, AIR 1933 PC 193 ; Nar Hari Sastri v SB Temple Committee, AIR 1952 SC 245 :
1952 SCR 849 (relied on).
64 Narhari v Badrinath Temple Committee, AIR 1952 SC 245 (252) : 1952 SCR 849 .
65 Shaik Piru v Kalandi Pati, AIR 1964 Ori 18 . See also Syed Farzand Ali v Nasim Beg, AIR 1983
All 342 .
66 Sinha Ramanuja v Ranga Ramanuja, AIR 1961 SC 1720 : (1962) 2 SCR 509 .
67 Jang Bahadur v Wazir Khan, AIR 1930 Oudh 54 .
68 Sarat Chandra Chakravati v Tarak Chandra Chatterjee, AIR 1924 Cal 982 (DB).
69 Moulvi Lutfur Rahaman v Moulvi Waliur Rahaman, AIR 1943 Cal 59 (DB).
70 Sailendra Nath Mitra v Ram Chander, AIR 1921 Cal 85 (DB).
71 (1964) 2 Andh WR 142.
72 Amba Lal Sarabhai v Phiroz H Anita, AIR 1939 Bom 35 : 40 Bom LR 1213; See also Ram
Charan v Shridhar, AIR 1962 All 619 (DB).
73 Pratabmull v KC Sethia, AIR 1960 Cal 702 .
74 RYS Mani v Balkrishna Nanakram, AIR 1953 Nag 302 .
75 Sultan v Ganesh, AIR 1988 SC 716 (718) : (1988) 1 SCC 664 .
76 Jacinta De Silva v Rosarinho Costa, AIR 2014 SC 1691 .
77 Sinha Ramanuja v Ranga Ramanuja, AIR 1961 SC 1720 : (1962) 2 SCR 509 : (1962) 1 MLJ
(SC) 1.
78 Rama Swami Goundan v Lakshmana Reddi, AIR 1939 Mad 886 .
79 (1964) 2 Andh WR 455.
80 Illuri Sukbayya Chetty and Sons v State of AP, AIR 1964 SC 322 : (1964) 1 SCR 752 . See also
AIR 1973 SC 1059 : (1973) 3 SCC 815 .
81 Raja Jagdish Pratap Sahi v State of UP, AIR 1973 SC 1059 : (1973) 3 SCC 815 .
82 S Swnigaradoss v Zonal Manager, FCI, AIR 1996 SC 1182 (1184) : (1996) 3 SCC 100 .
83 Kamal Kumar Puri v BM Engineering Works, AIR 1982 SC 1173 : (1982) 1 SCC 500 : (1982) 2
LLJ 182 .
84 Chairman, Railway Board v Chandrima Das, AIR 2000 SC 988 : (2000) 2 SCC 465 : 2000 CrLJ
1473 .
85 Kanhei Charan Das v Ramakanta Das, AIR 2014 Ori 193 .
86 Davu Gopal Lunani v Siva Gopal Lunani, AIR 2014 AP 29 .
87 R Venkatapathy v Bank of India, Zonal Office, Bangalore, AIR 2014 Kar 33 .
88 PK Kumra v President, Smriti Grih Nirman Sahakari Maryadit, AIR 2014 Chh 152 .
89 Ohene Moore v Akesseh Tayee, AIR 1935 PC 5 .
90 Custodian, Evacuee Property, Punjab v Jafran Begum, AIR 1968 SC 169 : (1967) 3 SCR 736 .
91 (1971) Punj LJ 146.
92 Jitendra Nath Biswas v Empire of India & Ceylone Tea Co, AIR 1990 SC 255 (259) : (1989) 3
SCC 582 .
93 Umrao v Bhagwati, AIR 1956 SC 15 .
94 Sawai Tej Singhji v UOI, AIR 1979 SC 126 (131).
95 Mudakappa v Rudrappa, AIR 1994 SC 1190 (1194) : (1994) 2 SCC 57 .
96 SP Subramanya Shetty v Karnataka State Road Transport Corpn, AIR 1997 SC 2076 : (1997)
11 SCC 250 .
97 Madhya Pradesh Housing Board v State of MP, AIR 2014 MP 1 .
98 Laxmi Chand v Gram Panchayat, Kararia, AIR 1996 SC 523 : (1996) 7 SCC 218 .
99 State of Bihar v Dhirendra Kumar, AIR 1995 SC 1955 : (1995) 4 SCC 229 : (1995) 2 Mah LJ
340 .
100 Bhaiyalal Tiwari v Central Bank of India, AIR 2014 MP 57 .
101 Azhar Hasan v Distt Judge, AIR 1998 SC 2960 : (1998) 3 SCC 246 .
102 AA Shirdone v Saheb H Tejbhokari, AIR 1985 SC 836 (840) : (1985) 2 SCC 447 .
103 Kanbi Manji Abji v Kanbi Vaghji Mavji, AIR 1993 SC 1163 : 1993 Supp (4) SCC 351 .
104 BG Kumaravelu v KR Kanakarathnam, AIR 1996 SC 982 (986) : (1996) 1 SCC 673 .
105 Judith Fernandas v Concercao Antonio Fernandes, AIR 1996 SC 2821 (2823) : (1996) 10 SCC
401 .
106 Deva Sahayam v P Savithriamma, AIR 2006 SC 779 (782, 784).
107 Mansukhlal Danraj Jain v Eknath Vithal Ogale, AIR 1995 SC 1102 (1105, 1108) : (1995) 2
SCC 665 .
108 State of UP v Mohd Din, AIR 1984 SC 1714 (1716) : 1984 Supp SCC 346 : 1984 SCC (Cri)
456 .
10 Srikant Kashinath Jituri v Corpn. of Belgaum, AIR 1995 SC 288 (292) : (1994) 6 SCC 572 ; see
also Dhulabhai v State of MP, AIR 1969 SC 78 ; see also Shiv Kumar Chadha v Municipal Corpn of
Delhi, (1993) 3 SCC 161 (Principles reviewed and reaffirmed).
110 Ram Singh v Gram Panchayat, AIR 1986 SC 2197 (2199) : (1986) 4 SCC 364 .
111 Mohd Mahmood v Tikam Das, AIR 1966 SC 210 : (1966) 1 SCR 128 .
112 Bhimaji S Kulkarni v Dundappa V Udapudi, AIR 1966 SC 166 (168).
113 Haji Siddik Haji Umar v UOI, AIR 1983 SC 259 : (1983) 1 SCC 408 .
114 Ram Gopal Reddy v Addl Custodian, AIR 1966 SC 1438 (1440).
115 Kamla Mills v State of Bombay, AIR 1965 SC 1942 : (1966) 1 SCR 64 .
116 State of Madras v K Melamatam, AIR 1965 SC 1570 (1573) : (1966) 2 MLJ (SC) 13.
117 AVGP Chettiar & Sons v T Palanisamy Gounder, AIR 2002 SC 2171 (2177) : (2002) 5 SCC 337
.
118 Prathama Bank, Head Office Moradabad, Chairman v Vijay Kr Goel, AIR 1989 SC 1977 (1979)
: (1989) 4 SCC 441 : 1989 Lab IC 2016 .
119 ATT Dasika Charyulu v State of AP, AIR 1964 SC 807 (814); Gurbax Singh v Financial
Commnr., AIR 1991 SC 435 : 1991 Supp (1) SCC 167 (followed in).
120 Gundaji v Ramchandra, AIR 1979 SC 653 (657); see also Hatti v Suinder Singh, AIR 1971 SC
2320 (2324) : (1970) 2 SCC 841 .
121 Maganbhai I Patel v UOI, AIR 1969 SC 783 (795).
122 Shyam Lal Yadav v Kusum Dhawan, AIR 1979 SC 1247 .
123 Munshi Ram v Municipal Committee, AIR 1979 SC 1250 (1252).
124 Neerendra Kumar v Rishika, AIR 2014 Chh 157 .
125 Chandrika Singh v Raja VP Singh, AIR 1992 SC 1318 (1322, 1323) : (1992) 3 SCC 90 : 1992
RD 258.
126 Rajasthan State Road Transport Corporation v Krishan Kant, AIR 1995 SC 1715 (1726) :
(1995) 5 SCC 75 .
127 Rajasthan SRTC v Mohar Singh, (2008) 5 SCC 542 (545-46).
128 Chief Engineer, Hydel Project v Ravinder Nath, AIR 2008 SC 1315 .
129 Sita Ram v Chhota Bhondey, AIR 1991 SC 249 (251) : (1991) 1 SCC 249 : (1991) 1 SLR 147 .
130 (1895) 18 Mad 163 (DB).
131 (1907) 29 All 582 .
132 Sinha Ramanuja v Ranga Ramanuja, AIR 1961 SC 1720 : (1962) 2 SCR 509 : (1962) 1 MLJ
(SC) I.
133 Narayana Mudali v Peria Kalathi Mudali, AIR 1939 Mad 494 .
134 AIR 1973 J&K 17 (FB).
135 State of Vindhya Pradesh (MP) v Morodhwaj Singh, AIR 1960 SC 796 : (1960) 3 SCR 106 :
1960 Jab LJ 793 .
136 Pabbo Jan Tea Co Ltd v Deputy Commissioner, Lakhimpur, AIR 1968 SC 271 : (1968) 1 SCR
260 : 1968 Lab IC 224 .
137 Mohd Ishaq v Mohd Bashir, AIR 1961 Punj 8 .
138 FM Subbayra v Venkataramana, AIR 1959 Mys 145 .
139 Raja Ram Kumar Bhagawa v UOI, AIR 1988 SC 752 (755) : (1988) 1 SCC 681 : (1988) 171
ITR 254 .
140 Anwar v IADJ, Bulandshahr, AIR 1986 SC 1785 (1788) : (1986) 4 SCC 21 .
141 NDMC v Satish Chand, AIR 2003 SC 3187 (3190) : (2003) 10 SCC 38 : (2003) 106 DLT 417 .
142 State of Kerala v N Ramaswami Iyer, AIR 1966 SC 1738 (1740); Raleigh Invest Co v Governor
General-in-Council, AIR 1947 PC 78 ; KS Venkaraman v State of Madras, AIR 1966 SC 1089 ;
Kamla Mills v State of Bombay, AIR 1965 SC 1942 (relied on).
143 Pushpagiri Math v Kapparaju Veerabhadra Rao, AIR 1996 SC 2225 : (1996) 9 SCC 202 .
144 State of AP v Manjeti Laxmi Kantha Rao, AIR 2000 SC 2220 (2221) : (2000) 3 SCC 689 .
145 Mario Cotta Pereira v State of Goa, 2010 (6) Mah LJ 115 (122) (DB).
146 Sukhwinder Singh v Kusum Sharma, AIR 2016 HP 1 .
147 State of TN v A Guruswamy, AIR 1997 SC 1199 (1200) : (1997) 3 SCC 542 .
148 Bhavani Shankar v Soma Sundara, AIR 1965 SC 316 : (1963) 2 SCR 421 .
149 State of Gujarat v Vora Fiddali, AIR 1964 SC 1043 .
150 Rajinder Chand v Sukhi, AIR 1957 SC 286 (290).
151 State of Saurashtra v Mohd Abdulla, AIR 1962 SC 445 (454, 456) : (1962) 3 SCR 970 .
152 Kasturi Lal Ralia Ram Jain v State of UP, AIR 1965 SC 1039 : (1965) 1 SCR 375 : (1965) 2
LLJ 583 .
153 Government of India, Post and Telegraph Department v Jeevaraj Alva, AIR 1970 Mys 13 .
154 Satya Wati Devi v UOI, AIR 1957 Del 98 .
155 Jiwan Nath Zutshi v State of MP, AIR 1971 SC 744 : (1972) 4 SCC 75 ; see also State of
Gujarat v Vora FB Mithibarwala, AIR 1964 SC 1043 : (1964) 6 SCR 461 ; State of Assam v BK
Bhandar, AIR 1967 SC 1766 (1770) : (1967) 3 SCR 490 .
156 Noor Mohd Khan v Fakirappa, AIR 1978 SC 1217 (1225, 1227) : (1978) 3 SCC 188 .
157 (1873) 17 Suth WR 283 (PC).
158 Koteshwar Vittal Kamath v Rangappa Baliga and Co, AIR 1969 SC 504 : (1969) 1 SCC 255 .
159 (1900) 10 Mad LJ 232 (DB).
160 MP Electricity Board, Jabalpur v Vijaya Timber Co, AIR 1997 SC 2364 (2366) : (1997) 1 SCC
68 .
161 State of Bombay v Jagmohandas, AIR 1966 SC 1412 : (1966) 2 SCR 279 : (1966) 17 STC
529 .
162 Durga Singh v Tholu, AIR 1963 SC 361 (363).
163 State of Karnataka v Vishwabarathi House Building Coop Society, AIR 2003 SC 1043 (1054) :
(2003) 2 SCC 412 : (2003) 113 Com Cas 536 .
164 Ishar Singh v National Fertilizers, AIR 1991 SC 1546 : 1991 Supp (2) SCC 649 .
165 Bata Krishna Samal v State of Orissa, (2009) 108 Cut LT 919 (922) (DB).
166 Sayed Mohd. Baquir El Edroos v State of Gujarat, AIR 1981 SC 2016 (2020) : (1981) 4 SCC
383 .
167 Shankar Yadav v State of Jharkhand, AIR 2012 Jhar 21 .
168 Nahar Industrial Enterprises Ltd v Hong Kong & Shanghai Banking Corpn, (2009) 8 SCC 646
(699).
169 Arati Das v Bharati Sarkar, 2008 (4) CHN 20 : AIR 2009 Cal 8 (DB) : 2008 (2) Cal LJ 782 .
170 Raichand A Shah v UOI, AIR 1964 SC 1268 (1271) : (1964) 5 SCR 148 .
171 UOI v Bharat Petroleum Corporation Ltd, AIR 2012 Cal 214 .
172 Ranendra N Sinha v State of WB, AIR 1971 SC 1245 (1253) : (1971) 3 SCC 109 .
173 Shiv Kr Sharma v Santosh Kumari, AIR 2008 SC 171 .
174 Amalgamated Electricity Co v NS Bathena, AIR 1964 SC 1598 (1616) : (1964) 7 SCR 503 .
175 Topandas Raizada v G Gokalchand, AIR 1964 SC 1348 (1353) : (1964) 3 SCR 214 .
176 IFCI Ltd v Cannanore Spg & Wvg Mills Ltd, AIR 2002 SC 1841 (1856) : (2002) 5 SCC 54 :
(2002) 110 Com Cas 685 .
177 Naliniben R Patel v Rashmikant M Amin, AIR 2010 Guj 130 (DB) : 2010 (3) Guj LR 2608
(2616).
178 Anne Besant NG High School v DDPI, AIR 1983 SC 526 (528) : (1983) 1 SCC 200 : 1983 Mah
LJ 806 .
179 Sulochana v Rajendra Singh, AIR 2008 SC 2611 (2615).
180 PK Kumra v President, Smriti Grih Nirman Sahakari Maryadit, AIR 2014 Chh 152 .
181 Bhim Bahadur v Vikram Singh, AIR 2016 Utr 8 .
182 Madho Singh v Moni Singh, AIR 2004 SC 4316 .
183 Allahabad Distt Co-op Ltd v Hanuman, AIR 1982 SC 120 : (1981) 4 SCC 431 : 1981 SCC
(L&S) 649 .
184 Ram Kumar v State of Haryana, AIR 1987 SC 2043 .
185 E Achuthan Nair v P Narayan Nair, AIR 1987 SC 2137 : (1987) 4 SCC 71 .
186 Orient Transport Co v Jai Bharat C & I Co Ltd, AIR 1987 SC 2289 : (1987) 4 SCC 421 .
187 Paravati v Fatehsinghrao P Gaekward, AIR 1986 SC 2204 (2207) : (1986) 4 SCC 319 .
188 Ram Singh v Ajai Chawala, AIR 1988 SC 514 : (1988) 1 SCC 364 .
189 Pabbojan Tea Co v DyCommr Lakhimpur, AIR 1968 SC 271 (278) : (1968) 1 SCR 260 : 1968
Lab IC 224 .
190 Sangat Singh v Perma Nand, AIR 1970 SC 812 .
191 Nand Kishore v Ram Kishan, AIR 1967 SC 1196 (1198).
192 Venkataraman & Co v State of Madras, AIR 1966 SC 1089 (1100) : (1966) 2 SCR 229 .
193 Jagdish Pratap v State of UP, AIR 1973 SC 1059 : (1973) 3 SCC 815 : (1973) 88 ITR 443 .
194 Thenappa Chettiar v Karuppan Chettiar, AIR 1968 SC 915 (918) : (1968) 2 SCR 897 ; see also
Pramatha Nath Mullick's case, AIR 1925 PC 139 .
195 Commr of Survey Settlements & Land Records, AP v K Saranarayana, AIR 1997 SC 3867 :
(1997) 8 SCC 34 .
196 Janaki S Menon v VRS Krishnan, AIR 1997 SC 1894 : (1997) 2 SCC 623 .
197 Shiv Kr Sharma v Santosh Kumari, (2007) 8 SCC 600 .
198 Sitaram Kashiram v Pigment Cakes & Chemicals Mfg. Co., AIR 1980 SC 16 .
199 Samar Kumar Roy v Jharna Bera, AIR 2018 SC 334 : 2018 (2) ALD 67 .
200 Dayaram v Dawalatshah, AIR 1971 SC 681 (689) : (1971) 1 SCC 358 .
201 Ramchand v Janki, AIR 1970 SC 532 (534); Pramatha Nath Mullick v PK Mullick, AIR 1925 PC
139 (relied on).
202 Supreme Cooperative Group Housing Society v HS Nag & Associates (P) Ltd, AIR 1996 SC
2443 : (1996) 9 SCC 492 .
203 Rupchand Gupta v Raghuvanshi, AIR 1964 SC 1889 (1891, 1892); Nagubai Ammal v Shama
Rao, AIR 1956 SC 593 : 1956 SCR 451 : 1957 BLJR 264 (relied on) see also Scot v Scot, 82 LJ p.
39.
204 UOI v West Punjab Factories, AIR 1966 SC 395 (398) : (1966) 1 SCR 580 .
205 Ramendra Kishore Biswas v State of Tripura, AIR 1999 SC 294 : (1999) 1 SCC 472 : 1999
SCC (L&S) 295 .
206 Ittyavira Mathai v Varkey Varkey, AIR 1964 SC 907 (910) : (1964) 1 SCR 495 : 1963 Ker LJ
952 .
207 Kalipindi A Narasamma v Alla N Rao, (2008) 10 SCC 107 (109).
208 Kishorebhai K Gohil v Manubhai P Patel, 2010 (3) Guj LR 1839 (1842, 1846) (DB).
209 Sports & Leisure Apparel Ltd v Bansi Mall Management Co Pvt Ltd, 2010 (4) Mah LJ 152
(154) (DB).
210 D Purushotama Reddy v K Sateesh, (2008) 8 SCC 505 (508–09).
211 V Laxminarasamma v A Yadaiah, (2008) 4 SCC 526 (527–28).
212 Amina Bibu v Thachi, AIR 2011 SC 244 (248).
213 Sahebgouda v Ogeppa, AIR 2003 SC 2743 (2747) : (2003) 6 SCC 151 ; see also Musamian I
Haider v RG Ratrabhai, AIR 1969 SC 439 ; Dewaji v Ganpatlal, AIR 1969 SC 560 : (1969) 1 SCR 573
.
214 Dwarka Prasad Agarwal v RC Agrawal, AIR 2003 SC 2696 (2701) : (2003) 6 SCC 220 .
215 Wakf Imambara Imlipura v Khursheeda Bai, AIR 2009 MP 238 (DB) : AIR 2003 Ker 366 , relied
on.
216 Distt Excise Officer v Kishore Singh, AIR 2011 Raj 70 (71).
217 Minerals Metal Trading Corpn of India v Agarwal General Engg Works Pvt Ltd, 2008 (2) Raj LW
1598 (1600) (DB).
218 R Gopalakrishna v Kant State Financial Corpn, 2008 (5) Kar LJ 327 (335–36) (DB).
219 Om Prakash Singh v M Lingamaiah, AIR 2009 SC 3091 .
220 Rajender Singh v Vijay Pal, AIR 2008 SC 1691 .
221 Century Textile Industries Ltd v Manju, 2009 (2) MPLJ 71 (73) (DB).
222 Mahant Dooj Das v Udasin Panchayati Bara Akhara, (2008) 12 SCC 181 .
223 World Sport Group (Mauritius) Ltd v MSM Satellite (Singapore) Pte Ltd, AIR 2014 SC 968 .
224 RSRTC v Deen Dayal Sharma, AIR 2010 SC 2662 , See also State of WB v Kamla Prasad,
(2010) 4 SCC 568 .
225 JP Builders v Ramadas Rao, (2011) 1 SCC 429 (453).
226 Gunwantbhai v Anton Elis Farel, AIR 2006 SC 1556 (1559-61).
227 Abdul Gafur v State of Uttrakhand, AIR 2009 SC 413 (417).
228 VSP Acqua Mist Fire Pvt Ltd v MSET Co Ltd, 2010 (6) Bom CR 414 (416-418) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 10. Stay of suit.
© 2020 LexisNexis
S. 10. Stay of suit.
No Court shall proceed with the trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously instituted suit between the same
parties, or between parties under whom they or any of them claim litigating under the
same title where such suit is pending in the same or any other Court in 229 [India]
having jurisdiction to grant the relief claimed, or in any Court beyond the limits of 230
[India] established or continued by the 231 [Central Government] and having like
jurisdiction, or before 232 [the Supreme Court].
Explanation. — The pendency of a suit in a foreign Court does not preclude the Courts
in India from trying a suit founded on the same cause of action.
COMMENT—
Object of the section.—
The object of section 10 is to prevent Courts of concurrent jurisdiction from

simultaneously entertaining and adjudicating upon two parallel litigations in respect of
same cause of action, same subject-matter and same relief.233 What is contemplated
by this section is that institution of the second suit is not barred, though the trial
thereof may not be proceeded with.234 Furthermore, section 10 authorises only stay of
the proceedings and not dismissal of the proceedings.235
Section 10 of the code provides for stay of subsequently instituted suit only at trial
stage.236
The stay of suit as envisaged under section 10 relates to the trial and not the
proceedings. The court which has stayed the suit would not lose its control over the
suit/proceedings and it continues to administer the said suit including the proceedings
except to the extent of laying its hands for conducting the trial.
Amendment of pleading and doctrine of relation back application for amendment was
filed after 14 years from the date of filing of the suit and the stay of the suit is not a bar
for filing such application.237
Section 10 of the Code applies for staying the subsequent suit only when the whole of
the subject matter in both the suits is identical.238
Stay of suit as envisaged under section 10 of the Code of Civil Procedure, 1908 relates
to trial and not proceedings. Court which had stayed suit would not lose its control over
the suit/proceedings. It continues to administer said suit including proceedings except
to the extent of laying its hands for conducting trial.239
Conditions for attracting the section.—
For attracting the provisions of section 10, the following conditions must be fulfilled:
(i) the suits must be between the same parties or their successors;
(ii) the matter in issue in the later suit must be directly and substantially the same
as in the previous suit;
(iii) both the suits must be pending in a Court of law;
(iv) the parties must be litigating under the same title in both the suits.
As soon as the above conditions are fulfilled, the Courts shall not proceed with the
subsequently instituted suit. The provisions contained in section 10 of the Code are
mandatory and no discretion is left with the Court.240 The word "trial" in this section
has not been used in its widest sense. The concept is not applicable to subsequently
instituted summary suits.241 The order staying proceedings in the subsequent suits
can be made at any stage.242
"Directly and substantially in issue" means whole of subject matter in both the
proceedings is identical. The fundamental test for applicability of section 10 is whether
the decision in previous suit operates as res judicata in subsequent suit. The section
applies to the suit instituted in Civil Court It cannot apply to proceedings of other nature
instituted under any other statute.243
ILLUSTRATIONS
B, residing in Calcutta, has an agent A at Calicut employed to sell his goods there. A
sues B in Calicut claiming a balance due upon an account in respect of dealings
between him and B. During the pendency of the suit in the Calicut Court, B institutes a
suit against A in Calcutta for an account and for damages caused by A's alleged
negligence. In this illustration, all the conditions of this section are there namely the
matter in issue in B's suit is directly and substantially the same as in A's suit; further
both the suits are between the same parties, therefore, if the Court at Calicut is a Court
of jurisdiction competent to grant the relief claimed in B's suit, the Calcutta Court must
not proceed with the trial of B's suit and the suit in Calicut Court being the one
instituted prior in point of time should alone be proceeded with.
But if A was B's agent at Colombo instead of at Calicut and the suit was brought by him
in a Colombo Court, the Calcutta Court would not be precluded from proceeding with
the trial of B's suit, the Colombo Court being a foreign Court. (See MULLA'S Code of
Civil Procedure).
(i) Same parties.—For application of section 10 identity of parties is enough.244 Parties

in two suits need not be the same. It is enough if previously instituted suit is between
parties under whom they or any of them claim litigating under the same title.245 Facts
that some parties are not parties in both suits will not stand in the way of the
application of this section.246
(ii) Matter in issue must be same.—Subject-matter in dispute and matter in issue in two
suits need not be identical in every particular. It is enough if the matter in controversy in
two suits are substantially the same.247 Identity of reliefs too is not necessary for the
applicability of this section.248
The orders in matter in issue in section 10 of the Code mean the entire matter under
controversy and not merely one of several issues in suit.249 The expression is not
equivalent "to any of the questions in issue".250 Consequently whether the entire matter
is not directly or substantially in issue in the previously instituted suit and it can be
disposed of on one of the two points raised in subsequently instituted suit, the
provisions of section 10 of the Code will not apply.251 It is not, however, necessary for
the applicability of this section that all the issues in the prior instituted suit should also
be issued in the later suit.252
The Gujarat High Court has however held in Sohal Engg Works v Rustain Jehangir Vakil
Mills, AIR 1981 Guj 110 , that section 10 would apply only if the whole of the subject-
matter in both the suits is identical, and not merely where only one of many issues in
the two suits is identical.
For section 10 to be attracted, it is essential that entire subject matter in controversy

must be the same between previous suit and subsequent suit. Mere common grounds
in previous suit and subsequent suit would not attract section 10.253
(iii) Suit must be pending.—Section 10 applies only when previously instituted suit is
pending.254 The onus to prove that the previously instituted suit is pending lies upon
the defendant in the later suit.255 However, if a prior suit is pending in a foreign Court,
section 10 does not apply.256 If there are two cross suits by two parties one for the
nullity of marriage and other for the dissolution of marriage, the suit relating to nullity
of marriage should be tried first.257
(iv) Title must be the same.—The parties must be litigating under the same title in both
the suits. It is not, however, necessary that the subject-matter and the causes of action
in the two suits should be the same.25
Ejectment suit is not liable to be stayed where question of title in suit for ejectment is
not directly and substantially in issue but is incidental and collateral.259
Provisions regarding appeal.—
It has been held by the Punjab High Court that no appeal lies from an order passed
under this section.260
Provisions regarding Letters Patent Appeal.—
The view taken by the High Court of Bombay261 and Calcutta262 is that an order
staying or refusing to stay a suit under section 10 is a judgment, within the meaning of
clause 15 of the Letters Patent and hence is appealable under that clause. However,
the High Court of Madras263 and Andhra Pradesh264 have taken a contrary view.
"Determination".—
A decision rendered by the High Court under section 19(1)(f) of Defence of India Act, is
a "determination". It is within competence of the Supreme Court to grant special leave
under Article 136 of the Constitution.265
Other provisions regarding stay of suits.—
Other provisions regarding stay of suits in the Code are as follows: The Court has
inherent power to stay (i) a suit which is an abuse of its process, (ii) cross-suits on the
ground of convenience, (iii) any suit, even if it does not come under section 10. A High
Court has the power to stay a suit pending in another Court. (Section 151)
An application for fixation of fair rent was made by the tenant under Karnataka Rent
Control Act, 1961. Subsequently the landlord filed an eviction suit against the tenant
alleging that the protection of the Act was not available to him. Then the tenant made
an application for stay of suit pending disposal. It was rejected by High Court. In appeal
the Supreme Court held that the application of tenant if allowed, and fair rent, if fixed,
he would be entitled to the protection of the Act. Disposal of application thus had
impact on the suit. In the circumstances stay was granted.266
Simultaneous prosecution of criminal and civil proceedings against same persons

pertaining to the same cause whether civil proceedings (filed subsequently in this
case) should be stayed and the court held that mere possibility of conflicting decisions
in civil and criminal proceedings cannot be a ground to stay civil proceedings as such a
possibility is envisaged by the law. Furthermore, where the outcome and or findings
that might be arrived that by civil court would not prejudice the defence/s in criminal
proceedings then, staying of civil proceedings till the decision of criminal case is not
justified.267
If the suit which is sought to be stayed is for seeking the relief of specific performance
and the subsequent suit is for seeking partition, and an incidental question has been
raised regarding the rights of the petitioner over one item of the property then merely
because one of the issues answered in subsequent suit has some bearing on the
former suit court cannot expand the scope of section 10 by importing explanation I
appended to section 11 of Code of Civil Procedure, 1908 with regard to meaning
attached to the expression "former suit" such a suit is not liable to be stayed.268
Application for grant of succession certificate and suit for declaration of title.
—
The nature of both the cases is different but the jurisdiction of the courts are also
different. In such circumstances the provision prescribed under section 10 of the Code
of Civil Procedure would not be attracted so as to stay the proceedings initiated under
the Act 1925.269
Stay of trial does not bar interlocutory reliefs.—
Inspite of the trial of the suit having been stayed under section 10 of the Code, the
applications for interlocutory reliefs can be considered and order can be passed, as
such order cannot be taken to be a step in the trial of a suit.270
Reference may also be made to O XXX rule 2; O XXXII rule 10 & O XXXV rule 3.
Propriety of stay of suit.—
An application for the stay of suit was rightly dismissed by the trial Court as there was
no question of any embarrassment to the petitioner who had already pleaded material
facts in the plaint.271
The matrimonial suits were instituted by husband and wife in different Courts. The civil
suit subsequently filed at Indore by the wife deserved to be stayed by giving preference
to the one earlier filed by the husband i.e. at Jaipur.272
229 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951 for words "the States' (w.e.f.
1-4-1951).
230 Ibid.
231 Subs. by A.O. 1937 for "the G.G. in C".
232 Subs. for the words "His Majesty in Council" by A.O. 1950.
233 Karnal Distillery Co Ltd v LP Jaswal, AIR 1951 Punj (Simla) 275; See also Ram Narain v Ram
Swarup, AIR 1962 All 108 .
234 SPA Annamalay Chetty v BA Thronill, AIR 1931 PC 263 .
235 Asharfi Lal Ramdeo v Ganeshi Ram Jagarnath, AIR 1952 All 546 .
236 Ranju Ram v Nand Lal, AIR 2011 HP 35 (37).
237 Nagananda v Gowramma, AIR 2013 Kar 137 .
238 Rajesh Singh v Manoj Kumar, AIR 2010 MP 16 (DB) : 2009 (4) MPLJ 458 .
239 Ravindra Kumar v State, AIR 2013 Kar 126 .
240 Manohar Lal Chopra v Rai Bahadur Rao Raja Seth Hira Lal, AIR 1962 SC 527 : 1962 Supp (1)
SCR 450 : 1963 ALJ 169 .
241 Indian Bank v MS Co-op Marketing Fedn Ltd, AIR 1998 SC 1952 : (1998) 5 SCC 69 : (1998) 93
Comp Cas 120 ; see also Harish Chandra v Triloki Singh, AIR 1957 SC 444 : 1957 SCR 370 : 12
ELR 461.
242 Durga Prasad v Kanti Chandra Mukerji, AIR 1935 Cal 1 .
243 National Institute of Mental Health & Neuro Science v C Parmeshwara, AIR 2005 SC 242
(244).
244 Laisram Ramson Singh v Hidangmayum Davijamani Sharma, AIR 1964 Manip 2 .
245 (1967) 2 Andh WR 442 : 1957 SCR 270 : 12 ELR 461.
246 Abdul Razak Makai v Samad Kuchary, AIR 1964 J&K 65 .
247 Kolli Eranna v Beliamkonda Thimmaiah, AIR 1967 AP 184 .
248 Radhey Shyam Agarwal v Kashinath Vaish, AIR 1960 MP 169 .
249 Ch Modh Afzal v Sardar Begum, AIR 1949 Lah 69 .
250 Roshan Din v Malan Bai, AIR 1938 Lah 502 .
251 Nasiban v Iqbal, AIR 1935 Lah 816 .
252 AIR 1920 All 70 (DB). See also 1971 Punj LJ 75.
253 Aspi Jal v Khushroo Rustom Dadyburjor, AIR 2013 SC 1712 .
254 Banta v Shrimati Udham Kaur, (1961) 63 Punj LR 777 .
255 AIR 1917 Pat 196 .
256 Ladli Parshad v Karnal Distillery Co Ltd, AIR 1954 Punj 94 .
257 ILR (1959) 1 Cal 84 .
25 Ramesh Govindram v Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 (2900).
259 Rajesh Singh v Manoj Kumar, 2010 AIHC (NOC) 284 (MP) : AIR 2010 MP 16 : WP No 2751 of
2009, dt 21 August 2009 (DB), see also Ravi Singh v State of UP, (2009) 1 SCC 754 .
260 PC Jairath v Amrit Jairath, AIR 1967 Punj 148 .
261 Jai Hind Iron Mart v Tulsiram Bhagwandas, AIR 1958 Bom 117 .
262 Shorab Merwanji Modi v Mansata Film Distributors, AIR 1957 Cal 727 .
263 Central Brokers v Ramanarayana, AIR 1954 Mad 1057 .
264 Srirama Chandra Murthi v Maha Lakshmamma, AIR 1957 AP 491 .
265 Collector, Varanasi v Gauri Shankar, AIR 1968 SC 384 (387) : (1968) 1 SCR 372 : 1968 ALJ
139 .
266 PV Shetty v BC Giridhar, AIR 1982 SC 83 : (1982) 3 SCC 403 .
267 Guru Granth Saheb Sthan Meerghat Vanaras v Vedh Prakash, AIR 2013 SC 2024 .
268 Somashekar Mahalingappa Wali v Shri Shaial Mahadevappa Bommanahalli, AIR 2013 Kar
123 .
269 Hirman Bai v Divisional Forest Officer, Koriya, Forest Division, Baikunthpen, AIR 2017 Chh 117
: 2017 (3) CGLJ 159 .
270 Surendra Sawhney v Murlidhar, 2008 (2) Raj LW 929 (933–34) (DB).
271 Vandana Tiwari v Ajay Pande, 2009 (4) MPLJ 512 (513) (DB); MS Sheriff v State of Madras,
AIR 1954 SC 397 , relied on.
272 Sanjay v Rachna, 2009 (4) MPLJ 136 (138–139) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 11. Res Judicata.
© 2020 LexisNexis
S. 11. Res Judicata.
No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by such
Court.
Explanation I.— The expression "former suit" shall denote a suit which has been
decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.— For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of
such Court.
Explanation III.— The matter above referred to must in the former suit have been
alleged by one party and either denied or admitted, expressly or impliedly, by the
other.
Explanation IV.— Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a matter directly
and substantially in issue in such suit.
Explanation V.— Any relief claimed in the plaint, which is not expressly granted by the
decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI.— Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all persons interested in
such right shall, for the purposes of this section, be deemed to claim under the
persons so litigating.
273[Explanation VII.—The provisions of this section shall apply to a proceeding for the
execution of a decree and references in this section to any suit, issue or former suit
shall be construed as references, respectively, to a proceeding for the execution of
the decree, question arising in such proceeding and a former proceeding for the
execution of that decree.
Explanation VIII.—An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in a subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been subsequently raised.]
COMMENT.—

Section 11 embodies the doctrine of res judicata which means that a final judgment of
a competent Court of law may not be disputed on the issue it has finally settled by the
parties or their successors in any subsequent legal proceedings.274 In other words, it
enacts the rule of conclusiveness of judgments as to the points decided, in every
subsequent suit between the same parties.275
Interpretation of law in previous case will not operate as res judicata in case there is a
fresh cause of action.276
A decision of a competent Court on a matter in issue may be res judicata in another

proceeding between the same parties, irrespective of the fact whether the matter in
issue may be an issue of fact, and issue of law or one of mixed question of law and
fact. An issue of fact or an issue of mixed law and fact decided by a competent Court
is finally determined between the parties and cannot be reopened between them in
another proceeding.277
Res judicata, nature of.—
The principles of res judicata are of universal application as it is based on two age old
principles, namely, "interest reipublicaent sit finis litium" which means that it is in the
interest of the State that there should be an end to the litigation, and the other principle
is "nemo debet his ve ari, se constet curiae quod sit pro un act eademn cause" meaning
thereby that no one ought to be vexed twice in a litigation if it appears to the Court that
it is for one and the same cause. The plea of res judicata is not a technical doctrine but
a fundamental principle which means the rule of law in ensuring finality in litigation.
Thus, principle seeks to promote honestly and fair administration of justice and to
prevent abuse in the matter of accessing Court for agitating on issues which have
become final between the parties.278
The principle of res judicata is founded on three principles which are nonnegotiable in
any civilised version of jurisprudence, namely:
(1) no man should be vexed twice for the same cause,
(2) it is in the interest of State that there should be an end to a litigation,
(3) a judicial decision must be accepted as correct.279
As was observed by Sir Lawrence Jenkins in Sheoprasad Singh v Ramanandan Prasad

Singh, AIR 1916 PC 78 , "the rule... while founded on ancient precedent is dictated by a
wisdom which is for all time." But for this rule there would be no end to litigation and no
security for any person; the rights of persons would be involved in endless confusion
and great injustice done under cover of the law.280 The rule is intended not only to
prevent a new decision but also to prevent a new investigation so that the same person
cannot be harassed again and again in various proceedings upon the same
question.281 This doctrine is therefore, based on pubic policy and even the parties
cannot waive it by consent.282
The principle of res judicata under section 11 is attracted where issues directly and
substantially involved between the same parties in the previous and subsequent suit,
are the same. If it may be that in the previous suit only part of property was involved
whereas in the subsequent suit, the whole property is involved.283
The principle of finality or res judicata is a matter of public policy. Once a judgment
becomes conclusive, the matter in issue covered thereby cannot be reopened unless
fraud or mistake or lack of jurisdiction is cited to challenge it directly at a later stage. It
is rooted to the rationale that the issues decided may not be reopened, and has little to
do with the merit of the decision. The principles of res judicata and constructive res
judicata apply equally to proceedings under Article 226 of Constitution of India.284
The Supreme Court in Daryao Singh v State of UP, AIR 1961 SC 1457 : (1962) 1 SCR 574
: (1962) 2 MLJ (SC).,
It is a settled position of law that "a litigant does not have a right to approach the court
time and again for the same cause of action by only changing grounds each time. All
possible grounds ought to have been raised or challenged at the first instance. The
litigant not doing so would not be permitted to re-agitate the same cause of action
repeatedly by only changing grounds each time. The issue which has been challenged
once and which stands decided should not be allowed to reopen and re-agitate only on
the ground that the petitioner at the first instance could not take or raise certain
grounds which he has now done in the subsequent writ petition. If such a system and
principle is to be permitted then there will be no end to litigation and the judicial
pronouncement passed earlier would have no binding effect and it is precisely for this
reason the principle of Res Judicata was adopted and is applied".285
Res judicata, meaning of.—
Res judicata means "a thing adjudicated" that is, an issue that is finally settled by
judicial decision. The plea of res judicata is a restraint on the right of a plaintiff to have
an adjudication of his claim. The plea must be clearly established, more particularly
where the bar sought is on the basis of constructive res judicata. The plaintiff who is
sought to be prevented by the bar of constructive res judicata should have notice about
the plea and have an opportunity to put forth his contentions against the same.286
The doctrine of res judicata means an issue attaining finality, should not be allowed to
be reagitated.287
An order passed without jurisdiction is nullity. It would not attract principle of res
judicata.288
Plea of res judicata—Essentials.—
Before a plea of res judicata can be given effect, the following conditions must be
proved: (1) that the litigating parties must be the same, (2) that the subject-matter of
the suit also must be identical, (3) that the matter must be finally decided between the
parties and (4) that the suit must be decided by a Court of competent jurisdiction.289
A status of control of premises under the Rent Control Acts cannot be acquired either
by estoppel or by res judicata. The principle is that neither estoppel nor res judicata can
give the Court jurisdiction under the Acts which those Acts say it is not to have.290
An earlier writ petition impugning the petitioner's detention was dismissed and his
contentions challenging validity of detention were rejected. In a subsequent writ
petition the petitioner cannot be permitted to re-agitate same contentions while no new
circumstances have arisen justifying their re-agitation.291
The Supreme Court had the opportunity to explain the principle of res judicata in Lal
Chand v Radha Krishna, AIR 1977 SC 789 : (1977) 2 SCC 88 : (1977) 2 SCR 522 .
Chandrachud, J, observed as follows:
Section 11, it is long since settled, is not exhaustive and the principle which motivates that
section can be extended to cases which do not fall strictly within the letter of the law.
The principle of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than later, come to an end. The principle is also found on equity,
justice and good conscience which require that a party which has once succeeded on an
issue should not be permitted to be harassed by a multiplicity of proceedings involving
determination of the same issue.292
The Supreme Court in Workmen CP Trust v Board of Trustees, AIR 1978 SC 1283 :
(1978) 3 SCC 119 : (1978) 2 LLJ 161 , has held that dismissal of a special leave petition
under Article 136 need not necessarily bar the entertainment of a writ petition under
Article 226 on the same grounds. It was further held that from the order dismissing the
special leave petition in limine it cannot be inferred that all the matters agitated in the
said writ petition were either explicitly or implicitly decided.
No application of res judicata Principles for conferring jurisdiction.—
The rule of res judicata is not applicable to decisions on pure question of law such as
one are jurisdiction of the Court.293
It is well-settled that in order to decide whether a decision in an earlier litigation

operates as res judicata, the Court must look at the nature of the litigation, what were
the issues raised therein, and what was decided in it.294
The provision of section 11 is not exhaustive of the doctrine of res judicata. When res
judicata is founded upon general principle, the condition as to the jurisdiction of the
former Court to try the subsequent suit which is a limitation engrafted in general rule of
res judicata by section 11, is not applicable, nor need the former proceedings and the
subsequent suit have the same subject-matter. What is conclusive between the parties
is the decision of the Court and the reasoning of the Court is not the same thing as its
decision.295
The scope of res judicata is not exhaustive. It is ever-growing. A decision in

proceedings for grant of succession certificate, not being final adjudication of rights of
parties, cannot operate as res judicata in subsequent proceedings.296
The Principle of res judicata applies as between two stages in the same litigation so
that if an issue has been decided at an earlier stage against a party, it cannot be
allowed to be reagitated by him at the subsequent stage.297
The principle of res judicata applies also between two stages in the same litigation,
when the order of abatement had attained finality then re-agitation of question of
abatement in subsequent stage of same proceedings would be impermissible in view
of bar of res judicata under section 11 of the Code of Civil Procedure.298
The principle of res judicata belongs to the domain of procedure it is not attracted when
decision involves question of jurisdiction.299
Plea of res judicata differs from that under O II, rule 2.—
Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in
support of his claim, whereas O II, rule 2 of the Code requires the plaintiff to claim all
reliefs flowing from the same cause of action as a single suit. The two pleas are
different and one will not include the other.300
Res Judicata—Non framing of issues.—
If the parties went to the trial knowing fully well the real issues involved and adduced
evidence in such a case without establishing prejudice, there it would not be open to a
party to raise the question of non-framing of particular issue.301
Where no issue was formally framed but it was material and essential for the decision
of case in earlier proceedings which has attained finality, it would operate as res
judicata between the parties.302
On Issues of law.—
Where there was a change in law by statute and the causes of action were different the
rights must be worked afresh.303
In Public Interest Litigations.—
The doctrine of res judicata and constructive res judicata very much apply even to PIL
cases, provided the previous litigation was initiated by a bona fide person in public
interest with common community interest.304
In Arbitration and Awards.—
The principles of res judicata are applicable to arbitration as well as awards.305
In execution of arbitration award the Supreme Court or Division Bench of High Court
had not divided a question regarding applicability of Arbitration Act, 1940 or Arbitration
and conciliation Act, 1996. An order of Supreme Court directing that concerned
arbitration award should be enforced in terms of provisions of 1996 Act made
inadvertently would not be a bar for appellant to approach Supreme Court again.306
In connected suits.—
Where an appeal arising out of connected suit is dismissed on merits the other cannot
be heard and has to be dismissed. Where no appeal is filed from the decree in
connected suit it has the same effect of non-filing of appeal against a judgment or
decree. Thus, the finality of finding recorded in the connected suit due to non-filing of
appeal precluded the Court from proceeding with appeal in other suit.307
In Income-tax Proceedings.—
The principles of res judicata do not apply to income-tax proceedings. Each

assessment year being a unit, what is decided in one year may not apply in the
following year.308
The doctrine of res judicata does not apply so as to make a decision on a question of
fact or law in a proceeding for assessment in one year binding in another year.309
It is true that neither the principle of res judicata nor the rule of estoppel is applicable to
assessment proceedings. But where an assessee included in his return the income for
several years, that after objecting, to the inclusion of the income in his total income in
the year 1942-43, in the absence of any satisfactory explanation, is undoubtedly a
circumstances to be taken into consideration by the authorities.310
The decision given for one assessment year does not operate as res judicata in the
subsequent year.311
In Industrial Disputes.—
Although the rule of res judicata enacted in section 11 is in terms inapplicable to

industrial Tribunals, the principle underlying it, is applicable to their decisions.312
The principles of res judicata do not apply to industrial disputes. However, the
principles analogous to res judicata would apply.313
The order reversing findings of the labour Court and setting aside reinstatement was
hit by the principle of res judicata as that issue was already concluded in earlier writ
appeal.314
Applicability of res judicata to Industrial Adjudication—
A dispute raised about termination of services of temporary workman by way of writ

petition. The High Court passed a reasoned order on merits and after contested
hearing. That order became final. The same issue was reagitated before labour Court.
It was barred by res judicata.315
Finding of Arbitrator, attaining finality operates as res judicata—
A finding was arrived at by the Arbitrator that appellant had committed breach of
contract. The damages on the basis of said finding were granted to the respondent.
Further finding of Arbitrator granting amount in favour of appellant towards excess
expenditure involved to complete items of incomplete work left by defaulting
respondent is inconsistent and self contradictory. The appellant accepted finding of
award made in favour of contractor respondent. An appeal filed against the award by
appellant was dismissed. The said finding attained finality and operate as res
judicata.316
Res judicata in execution cases.—
The decree holder's first execution petition was dismissed in default. The same was
not adjudicated on merits. Therefore, second execution petition is maintainable and the
same is not barred by principles of res judicata.317
In rent control cases.—
Where a suit for eviction from premises on the ground of bona fide need was
dismissed, the second suit on the same ground would be competent. The bona fide
need must be considered with reference to the time when a suit for eviction is filed. It
cannot be assumed that once the question of necessity is decided against a landlord,
he will not have a bona fide and genuine necessity ever in future.318
An issue which has been finally determined at the highest level by the Privy Council,
cannot be re-examined.319
The grant of Letters of Administration is res judicata as regards aminus testandi.320
When a decision is taken in appeal, the rule is that it is the appellate decision and not
the decision of the trial Court that operate as res judicata (Per R.M. Sahai, J. Minority
view).321
An erroneous refusal of the High Court to grant certificate to appeal does not prevent
the decision from operating as res judicata. The bar of res judicata applies to the
decision of the High Court in the earlier writ petition on all questions which have been
expressly decided and the questions which must be deemed to have been decided by
necessary implication, even if certificate to appeal to Supreme Court was erroneously
refused.322
The decision rendered in writ petition operates as res judicata in subsequent judicial
proceedings.323
When there is a subsisting award, binding on the parties, the tribunal will have no
jurisdiction to consider the same points in a fresh reference.324
The principles of res judicata as contained in section 11 of Code of Civil Procedure,

1908 are applicable, where possible, to industrial adjudication.325
Conditions of res judicata.—
In order to constitute a matter as res judicata, the following conditions must be there:
(i) There must be two suits one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the
subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually
or constructively in both the suits;
(iv) The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim
must be the same in both the suits;
(vi) The parties in both the suits must have litigated under the same title. We would
make an attempt here to explain all the above conditions.
(i) Former suit.—The term "former suit" means previously decided suit though in fact
that is instituted subsequent.326 Explanation I attached to the section confirms the
aforesaid view. Expression "former suit" distinctly shows that there must be two suits
or proceedings.327 Even when there are two suits a decision given simultaneously
cannot be a decision in the former suit.328
The word "suit" means a valid suit. Thus, a suit against a dead man is not a valid suit at
all and cannot be regarded for the purposes of this section.329 Further the word "suit"
means proceedings in action in Courts of first instance as distinguished from
proceedings in Appellate Courts.330
Thus, rule of res judicata refers not to the date of the commencement of the litigation
but to the date when the judge is called upon to decide the issue.331
Where two appeals arising out of two cross-suits are filed by same party, one is
dismissed and the other is allowed and subsequently an appeal is filed by special leave
in latter appeal, it has been held by the Supreme Court in Ram Prakash v Mohammad Ali,
AIR 1973 SC 1269 : (1973) 2 SCC 163 : (1973) 3 SCR 893 that the decision in former
appeal would not operate as res judicata when question in issue in latter appeal could
not be and was not in fact considered in former appeal.
Affirming its earlier decision in Lonankutty v Thomman, AIR 1976 SC 1645 : (1976) 3
SCC 528 the Supreme Court has held in Venkataswara Prabhu v Krishna Prabhu, AIR
1977 SC 1268 : (1977) 2 SCC 181 that "The expression "former suit", according to
Explanation I of section 11, Civil Procedure Code, 1908, makes it clear that if a decision
is given before the institution of the proceeding which is sought to be barred by res
judicata, and that decision is allowed to become final or becomes final by operation of
law, a bar of res judicata would emerge".332
The effect and relevance of any proceedings which have attained finality shall be duly
considered in the pending suit.333
It has, however, been held by the Supreme Court in AB Abdul Kadir v State of Kerala, AIR
1976 SC 182 : (1976) 3 SCC 219 : 1976 Tax LR 1293 that any decision between the
same parties earlier to the passing of the Act, invalidating a previous levy will not
operate as res judicata.
(ii) Competency of Court trying former suit.—Under section 11, it is necessary that the
Court trying the former suit should have been competent to try the subsequent suit
itself.334 The plain and grammatical meaning of the word "suit" occurring in clause "in a
Court competent to try such subsequent suit or the suit in which such issue has been
subsequently raised" of section 11 of Code of Civil Procedure, 1908 includes the whole
of the suit and not a part of the suit. It is whole of the suit which should be within the
competence of the Court at the earlier time and not a part of it.335 It is the Court which
decides the former suit, whose jurisdiction to try the subsequent suit has to be
considered and not the Court in which the former suit may have been filed.336
In conclusion, we may say that in order that a decision in a former suit may operate as
res judicata, the Court which decided that suit must have been either:
(a) a Court of exclusive jurisdiction, or
(b) a Court of concurrent jurisdiction "competent to try subsequent suit" at the time
when the first suit was instituted.337
Explanation VIII was inserted by the Amending Act of 1976 in order to ensure that the
decisions of the Courts of limited jurisdiction, in so far such decisions are within the
competence of the Courts of limited jurisdiction, must operate as res judicata in a
subsequent suit, although the Courts of limited jurisdiction may not be competent to try
such subsequent suit.
(c) Res judicata operates on judgments of Courts of Exclusion Jurisdiction.— A plea of

res judicata on general principles can be successfully taken in respect of judgments of
Courts of exclusive jurisdiction. These Courts are not entitled to try a regular suit and
they only exercise special jurisdiction conferred on them by the statute.338
(d) Expression "the Court of Limited Jurisdiction" is wide enough.—The expression "the
Court of limited jurisdiction" in Explanation VIII is wide enough to include a Court
whose jurisdiction is subject to pecuniary limitation and other cognate expressions
analogous thereto. An order or an issue which had arisen directly and substantially
between the parties or their privies and decided finally by a competent Court or tribunal,
though of limited or special jurisdiction, which includes pecuniary jurisdiction, will
operate as res judicata in a subsequent suit or proceeding.339
The Explanation VIII to this rule has retrospective application and applies to all the suits
pending on the date of its enforcement.340
Where in a suit filed by the bank against a firm for recovery of balance on cash credit
account, the firm had contended that it was entitled to the adjustment of the amount
received by the Bank from the insurer in respect of the goods pledged by the firm with
the bank and that claim was put in issue and decided in favour of the firm, it has been
held by the Supreme Court in Gurbax Rai v Punjab National Bank, AIR 1984 SC 1012 :
LPA 168 of 1978 (Punj) reversed that the finding inter parties become res judicata.
(iii) Matter directly and substantially in issue.—According to Mulla, the matters in issue
may be classified in two broad heads—(1) matters directly and substantially in issue
and (2) matters collaterally or incidentally in issue.
(a) Matters directly and substantially in issue.—Matters directly and substantially in

issue have further been sub-divided into: (A) Actually in issue and (B) Constructively in
issue.
(A) Actually in issue.—The question whether a matter was directly and substantially in
issue in the former suit has to be decided (a) on the pleadings in the former suit; (b) the
issue struck therein and; (c) the decision in the suit.
The question whether a matter was directly and substantially in issue in the former suit
has to be decided (a) on the pleadings in the former suit, (b) the issue struck therein,
and (c) the decision in the suit. Further, it depends upon whether a decision on such an
issue will materially affect the decision of the suit.341
If an issue was "necessary" to be decided for adjudicating on the principal issue and
was decided. Then it would have to be treated as directly and substantially in issue and
if it is clear that the judgment was in fact based upon that decision then it would be res
judicata in a latter case. The expression "Collaterally and incidentally" in issue implies
that there is another matter which is "directly and substantially" in issue.342
If parties and the Court have dealt with the matter as if it formed a direct and principal
issue, it must be taken to have been directly and substantially in issue though in the
first instance it was not raised properly or was raised only as an ancillary or incidental
issue.343 Questions raised and decided at the express request of the parties must be
taken to have been directly and substantially in issue.344 The "matter cannot be directly
in issue" unless it has been alleged by one party and either denied or admitted
expressly or impliedly by the other (Explanation III). It is not enough that the matter was
alleged by one party. At the same time it is not necessary that a distinct issue should
have actually been framed.345 A matter must be held to be directly and substantially in
issue if the Court considers the adjudication of the issue to be material and essential
for its decision.346 In case of alternative findings, each would be res judicata, if the
decision rests on all of them.347
Decisions are rendered by courts on the basis of facts pleaded before them and issues
arising out of those pleaded facts. The issue whether respondent's private company
had committed breach of contractual obligations/fraud was not an issue in former
proceedings. Hence, the later issue was not foreclosed. Hence, no res judicata.348
Where the subject matter of two proceedings that is interpleader suit and appeals
arising there from and writ petitions filed, not directly and substantially same then,
principle of res judicata not attracted.349
A wrong decision by a Court having jurisdiction is as much binding between the parties
as a right one. Such a decision may be superseded only by appeals to higher tribunals
or other procedure like review which the law provides.350
Again, a decision on a mixed question of law and fact is as much res judicata as one on
a question of fact.351 A finding on an issue of law which was directly and substantially
in issue in the former suit would be res judicata between the same parties in a
subsequent suit, however erroneous it may be.352
Erroneous Decision.—
Even an erroneous decision on a question of law operates as res judicata between the
parties to it. The correctness or otherwise of a judicial decision has no bearing upon
the question whether or not it operates as res judicata. A decision in the previous
execution case between the parties that the matter was not within the competence of
the executing Court even though erroneous, is binding on the parties.353
Decision of court on question of law which attain finality would operate as res judicata
even if the same is erroneous. The correctness or otherwise of a judicial decision has
no bearing upon the question whether or not it operates as res judicata.354
A decision on an abstract question of law unrelated to facts which give rise to a right
cannot operate as res judicata. Nor also can a decision on the question of jurisdiction
be res judicata in a subsequent suit or proceeding. But if the question of law is related
to the fact in issue, an erroneous decision on such a question of law may operate as
res judicata between the parties in a subsequent suit or proceeding, if the cause of
action is the same.355
It follows that the rule of res judicata does not depend on the identity of subject-matter
but on the identity of issue.356 Matter in issue thus is distinct from the subject-matter
and the object of the suit and also from the relief that may be asked for in the suit and
the cause of action on which the suit is based and therefore, even if in a case where a
subject-matter, the object, the relief claimed and the cause of action are different, the
rule of res judicata can apply.357 It has been held by the Supreme Court that if Court
bases its decision on more than one point each of which would be sufficient for the
ultimate decision, its decisions on all these points would be res judicata.358
The matter in issue may be one of act of law or one of mixed law and fact,359 whether
a party is entitled to lead evidence or put question in cross-examination cannot form
subject-matter of an issue.360
No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties and has been heard and finally decided. Explanation I to the section provides
that the expression "former suit" shall denote a suit which has been decided prior to the
suit in question, whether or not it was instituted prior thereto. Then, a matter cannot be
said to have been "directly and substantially" in issue in a suit unless it was alleged by
one party and denied or admitted either expressly or necessary implication by the
other.361
Res judicata in Writ Proceedings.—
Where a writ petition is dismissed in limine without a speaking order, such a dismissal
would not constitute a bar of res judicata to a subsequent petition on the same cause
of action.362
The constructive res judicata is applicable to writ proceedings under Articles 32 and
226 of the Constitution.363
A writ petition under Article 226 was dismissed by High Court after hearing on merits.
A subsequent petition under Article 32 by the same parties and for same reliefs is
barred by the principle of res judicata.364
The general principle of res judicata applies to writ petitions filed under Article 32 or
Article 226. Such an application of the doctrine of res judicata does not in any way
impair or affect the content of fundamental rights. It only seeks to regulate the manner
in which the said rights could be successfully asserted and indicated in Courts of law.
The constructive res judicata is a special and artificial form of res judicata enacted by
section 11. It should not generally be applied to writ petitions. It would be applied in
cases where Courts are dealing with cases where the impugned tax liability is for
different years.365
The doctrine of res judicata does not stricto sensu apply to proceedings under Article
226 of the constitution of India.366
Where the apex court in SLP has nor recorded any finding about concluding the sale
nor considered any question of right of redemption it was dismissed by refusing to
exercise its discretion, the writ petition would not be barred.367
A writ petition was filed challenging termination of services on grounds of infringement

of Article 311 and the competence of authority ordering termination. The appeal was
disposed of on the former ground without any express finding on the latter. The
dismissal operated as an express decision and a rejection of both the grounds
although the latter ground had been accepted in the Court of first instance.368
The rule of res judicata also applies to the writ petitions under Article 32 of the
Constitution.369
Where workman withdrew the writ petition without permission to file fresh petition with
the object to pursue alternative efficacious remedy before the labour Court, the
withdrawal would not operate as res judicata as the writ petition was not adjudicated
on merits.370
The principle of res judicata is applicable to writ petitions. This section in terms,
however, does not apply to any proceeding under Article 226 of the Constitution.371
The dismissal of a writ petition in limine may inhibit the discretion but not the
jurisdiction of the Court in entertaining a second writ petition.372
The dismissal of earlier petition under Article 226 by a High Court does not operate as
res judicata so as to bar subsequent petition under Article 32 of the Supreme Court.373
The question whether the respondent was a workman or not within the meaning of the
Industrial Disputes Act, 1947 was decided by a competent Labour Court. The trial of
the same issue in proceedings under section 33-C(2) between the same parties, held,
barred by res judicata.374
(B) Constructively in issue (Explanation IV)—(Constructive Res Judicata).—The principle

underlying Explanation IV is that where the parties have had an opportunity of
controverting a matter, that should be taken to be the same thing as if the matter had
been actually controverted and decided.375 An adjudication is conclusive and final not
only as to the actual matters determined but as to every other matter which the parties
might have litigated and have had decided as incidental to or essentially connected
with the subject-matter of the litigation.376 Accordingly, any matter which might and
ought to have been made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue in such suits. In order
to bring a case within the rule of constructive res judicata it is not only necessary that
the defendant could have raised the defence in reply to the former suit, but he was
bound to do so.377 It must be shown that the ground of attack or defence taken therein
was such as could conveniently have been raised in the former suit, without leading to
any confusion at the trial and without the risk of destroying the evidence led in support
of the main allegation and the determination of the question that it ought to have been
raised depending upon particular facts of each case. It is not sufficient that the ground
of attack or defence might have been raised. It must also be established that it should
have been raised and that the title in both the former and subsequent suits was the
same.378
Explanation V to section 11 of the Code provides that any relief claimed in the plaint
which is not expressly granted by the decree, shall be deemed to have been refused.379
Even though a particular ground of defence or attack was not actually taken in the
earlier suit, if it was capable of being taken in the earlier suit, it became a bar in regard
to the said issue being taken in the second suit in view of the principle of res judicata.
Constructive res judicata deals with the grounds of attack and defence which ought to
have been raised, but not raised.380
If there is an issue between the parties that is decided, the same operate as a res
judicata between the same parties in the subsequent proceedings.381
A writ petition challenging validity of notice for eviction given by the Government was
filed. The title of Government to land in question was disputed by the plaintiff. The High
Court gave liberty to Government to establish its title in a competent Civil Court. The
fact that A.P. Land Grabbing (Prohibition) Act, 1982 had come into force before
disposal of writ petition by the High Court, under which Special Court was framed, was
not brought to the notice of the High Court. The Civil suit filed by the Government was
transferred to the Special Court under AP Act. The proceeding before Special Court
was not barred by res judicata on the principle of "might and ought".382
With regard to the rule of constructive res judicata, the Supreme Court observed in Devi
Lal Modi v Sales Tax Officer, AIR 1965 SC 1150 : (1965) 1 SCR 686 : (1965) 1 ITJ 508
that if a plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take that plea against the same party, in a
subsequent proceeding with reference to the same matter. Applying this principle to
writ-petitions, the Supreme Court held that a petition challenging the validity of a sales
tax assessment in a writ petition could not be allowed to raise two pleas which had not
been put forward in a previous writ petition relating to the same matter.
Similarly, there is no good reason to preclude decisions on matter of controversy in writ

proceedings under Article 226 of the Constitution of India from operating as res
judicata in subsequent regular suits on the same matters in controversy between the
same parties.383
A sues B to recover certain property belonging to the estate of C alleging that his father
had been adopted by C's brother D to whom the property descended on C's death. The
suit is dismissed on the ground that the adoption is not proved. A then sues B to
recover the same property claiming it as C's Bandhu. The suit is barred as res judicata.
A ought to have claimed the property in the first suit in the alternative as C's Bandhu.
A former suit by "M" husband and his mortgagee was filed seeking permanent
injunction for restraining wife from interfering with the possession of suit house, the
suit was dismissed and was not appealed against and hence attained finality later on
suit was filed for the declaration of title and possession from the wife and her children,
but it was barred by constructive res judicata.384
The principle of res judicata apply to the election proceedings. The knowledge about
the ground of attack obtained from a witness during the course of trial is enough and
failure to pursue the point in cross-examination would bring it within this
explanation.385
The Supreme Court while reversing a decision of Allahabad High Court386 has held in
State of UP v Nawab Hussain, AIR 1977 SC 1680 : (1977) 2 SCC 806 that if a plea is not
raised in the petition under Article 226 which could well be raised and then petition is
dismissed, any subsequent suit raising that plea is barred by constructive res judicata.
In this case the petitioner was dismissed from service. He filed a writ petition for
quashing the disciplinary proceedings on the ground that he was not afforded a
reasonable opportunity to meet the allegations against him and the action taken
against him was mala fide. The petition was dismissed. Thereafter, he filed a suit in
which he challenged the order of dismissal on the ground inter alia that he had been
appointed by the I.G.P. and that Dy. I.G.P. was not competent to dismiss him by virtue of
Article 311 of the Constitution. It was held that the suit was barred by constructive res
judicata.
Relevant Pleas must be raised in Suit otherwise they would be deemed waived.
—
It would be fair and just that the parties raise all available relevant pleas in the suits or
proceedings when the action is initiated. The omission thereof does constitute
constructive res judicata to prevent raising of the same at a later point of time. It must
be deemed that they are waived.
Where an appellant had not raised the plea of bar of limitation in the first writ petition,
the doctrine of "might and ought" engrafted in Explanation IV to section 11 of Code of
Civil Procedure will come into play. The appellant cannot raise that plea.
The doctrine of constructive res judicata puts an embargo on his right to raise the plea
of bar of limitation.387
Application of constructive res judicata to execution proceedings.—
As regards the applicability of the doctrine of res judicata to execution proceedings,

earlier it did not apply. Explanation VII was inserted by the Amending Act of 1976 in
order to ensure that the principles of res judicata may apply to a proceeding in
execution also.
An application for restitution of possession was dismissed by the Board of Revenue in

revision. A writ petition challenging order of the Board was also dismissed. No appeal
was filed against the decision of the High Court. Subsequently an appeal against the
Board was filed to the Supreme Court. It was barred by res judicata.388
The principle of res judicata applies to the execution proceedings. Where the judgment
debtor did not raise any objection as to limitation in regard to execution of decree, but
asking for setting aside sale on the basis of revival of execution proceedings, he was
barred by the principle of res judicata from questioning the order reviving execution
proceedings.389
A decree for possession was executed by three persons as legal representatives of the
deceased decree-holder. In the revision only two of them were impleaded. Since the
third person was not impleaded the order has become final so far as he is concerned.
The revisional Court cannot set aside the order of the executing Court.390
The doctrine of constructive res judicata embodied in Explanation IV will apply to

execution proceedings.391 The doctrine of constructive res judicata will apply to
execution proceedings to the extent where a judgment-debtor fails to raise all his
objections to the application for execution of the decree made by the decree-holder
which he might and ought to have raised and the application has been ordered to
proceed, then all such objections will be deemed to have been impliedly decided
against the judgment-debtor and the judgment-debtor thereafter cannot raise the same
objections in a subsequent execution of the same decree.392
It has been held by Full Bench of Punjab & Haryana High Court in Harnam Singh v Sujit
Singh, AIR 1984 P&H 126 (FB). That where an earlier application for eviction on ground
of arrears of rent is dismissed, a subsequent application on ground of bona fide
requirement of the premises by the landlord is not barred on the principle of
constructive res judicata.
The principle of constructive res judicata is applicable to execution proceedings is no

longer open to doubt.. The failure to raise an objection goes to the root of the matter. It
precludes judgment-debtor from raising the plea of jurisdiction on the principle of
constructive res judicata after the property has been sold to the auction purchaser who
has entered into possession.393
Similarly, where in an eviction proceedings the tenant tendered an amount of rent which
was according to him, in excess of the actual rate of rent agreed upon with the landlord,
the civil suit for the recovery of such excess amount would not be barred by the
principle of constructive res judicata when the question about the rate of rent was
neither raised nor decided before the Rent Controller as held in Hari Shanker v Kailasho
Devi, AIR 1987 P&H 47 (DB).
Reference may also be made to Surajmal v Radheshyam, AIR 1988 SC 1345 . In this
case it was argued that in substance the case of the plaintiff-respondent in the earlier
eviction suit and in the present suit was same and since the earlier suit was dismissed,
the present suit also should be dismissed. Rejecting the above arguments, the
Supreme Court held as under:
.... the bona fide need must be considered with reference to the time when a suit for eviction
is filed and it cannot be assumed that once the question of necessity is decided against the
plaintiff it has to be assumed that he will not have a bona fide and genuine necessity ever in
future.
Accordingly, the decision of the High Court was upheld by the Supreme Court.
Reference may also be made to Ammal Chandra Dutt v IInd Addl District Judge, AIR
1989 SC 255 : (1989) 1 SCC 1 : 1988 ALR 794 .
(b) Matters collaterally or incidentally in issue.—Decisions on matters not alleged and

denied or admitted within the meaning of Explanation III are decisions on matters
incidental and collateral to the main issue in the case and will not operate as res
judicata in a subsequent suit.394
ILLUSTRATIONS
(a) A and her mother brought a suit against her father's brother for partition and
delivery of one-fifth share of the family property to the mother and for a marriage
provision for herself. The question of A's marriage expenses was not directly and
substantially in issue in the former suit and was raised only incidentally in connection
with the partition claim by her mother. The claim for partition was disallowed because
the properties were found to be ancestral and since the claim for partition was
dismissed, the incidental claim for the marriage expenses of A was also dismissed. A
then brought a suit against her father's brothers for providing the marriage expenses. In
this case, it was held that in the former suit the Court did not go into the question of
marriage expenses of A and therefore, the former suit did not operate as a res judicata
on this point.395
(b) A sues B for rent. B pleads abatement of rent on the ground that the area is less
than that entered in the lease. The Court finds that the area is greater than that shown
in the lease. The findings as to the excess area is not res judicata for it is only ancillary
to the direct and substantial issue whether the area is equal to that shown in the lease
or less.396
Distinction between matters "directly and substantially" in issue, and matters "collaterally
or incidentally" in issue.
Every suit must involve a matter or matters in respect of which, relief is claimed by the
plaintiff. It may also involve matters which, though there is no relief claimed in respect
of them, are brought in issue for the purpose of deciding matters in respect of which
relief is claimed. Thus, for example—
A matter in respect of which no relief is claimed, but which is put in issue for the
purpose of enabling the Court to adjudicate on a matter in respect of which relief is
claimed may be "directly and substantially" in issue or it may be in issue "collaterally or
incidentally". It would be a matter "directly and substantially" in issue "if it was
necessary to decide it in order to adjudicate on the principal issue and if it was in fact
decided, and if the judgment was in fact based upon that decision"; otherwise it would
be a matter "collaterally or incidentally" in issue. A matter cannot be directly and
substantially in issue if the judgment would be correct whether that matter exists or
not.397
It has been held by a majority of Full Bench of P&H High Court in Amar Singh v Dalip,
AIR 1981 P&H 237 (FB) that the decision of the Revenue Court under section 77 of the
Punjab Tenancy Act upon the relationship of landlord and tenant between the parties
would not operate as res judicata and would be open to challenge in a subsequent
proceeding between the parties. (S.S. Sandhawalia C.J., did not agree with the other
judges and held that it would be binding between the parties on general principles of
res judicata or principles analogous to the general principles of res judicata).
It has been held by the Supreme Court in Gangabai v Chhabubai that a finding as to title
by Small Cause Court does not operate as res judicata in subsequent suit for
determination of interest in immovable property. A question of title in a Small Cause
suit can be regarded as incidental only to the substantial issue in a suit and cannot
operate as res judicata in a subsequent suit in which the question of title is directly
raised.
(iv) Finally heard and decided.—In order to support a plea of res judicata it is not enough
that the parties are the same and that the matter is in issue; it must also be shown that
the matter was heard and finally decided. The section requires that there should be a
final decision. Thus, where in the judgment and decree in the former suit it is stated
that it is to be subject to a decision of Higher Court, the decision is not a final one.
Similarly, when the former suit is dismissed on the ground of limitation the question of
title raised therein cannot be said to have been finally decided.398
It has been held by the Supreme Court in Kewal Singh v Lajwanti, AIR 1980 SC 161 :
(1980) 1 SCC 290 as follows: It is well settled that one of the essential conditions of res
judicata is that there must be a formal adjudication between the parties after full
hearing. In other words, the matter must be finally decided between the parties. Here
also at a time when the plaintiff relinquished her first cause of action the defendant
was nowhere in the picture, and there being no adjudication between the parties, the
doctrine of res judicata does not apply.399
In Remand Orders.—
In an appeal against the High Court's finding, the Supreme Court is not bound by what
the High Court might have held in its remand order. It is true that a subordinate Court is
bound by the direction of the High Court. It is equally true, that the same High Court,
hearing the matter on a second occasion, or any other Court of co-ordinate authority
hearing the matter, cannot discard the earlier holding. But a finding in a remand order
cannot bind a higher Court when it comes up in appeal before it, this is so, because a
remand order by the High Court is a finding in an intermediate stage of the same
litigation. When it came to the trial Court and escalated to the High Court, it remained
the same litigation. The appeal before the Supreme Court is from the suit as a whole
and, therefore, the entire subject matter is available for adjudication before the
Supreme Court. If, on any other principle of res judicata attracted by a decision in an
allied litigation, the matter is concluded, the Supreme Court too is bound. Otherwise,
the whole lis, for the first time, comes before the Supreme Court and the High Court's
finding at an intermediate stage does not prevent an examination of the position of law
by the Supreme Court. Intermediate stages of the litigation and orders passed at those
stages have only a provisional finality.400
"Final and conclusive".—
A point was decided by a High Court in previous appeal. No appeal was filed against it.
The decision is final and conclusive in respect of subsequent stages of litigation
between the same parties.401
The principle of res judicata is of general application and not limited by specific word of
section 11. The said principle also applies to two stages in the same litigation.402
Appeal against only a part of Decree.—
Where an appeal is preferred against only a part of the decree covering one lot of
property, the decree covering rest of the property becomes final. The fact that the
decree in respect of those properties was again incorporated in the decree passed
after disposal of the appeal, is immaterial.403
Before a plea can be held to be barred by res judicata that plea must have been heard
and determined by the Court.404
In Kushal Pal v Mohan Lal, AIR 1976 SC 688 : (1976)1 SCC 449 (457) : (1976) 2 SCR 827
the Supreme Court held that "when second appeals arising out of two suits filed by the
plaintiff are treated as connected appeals and disposed of by the High Court by a
common judgment, there is ordinarily no question of invoking the plea of res judicata
before the High Court as the findings in the earlier suit are not till then final for the
purposes of the second suit".
In dealing with questions under the present head it is important to note:
(1) that if a decree is specific, and is at variance with a statement in the judgment,
regard must be had to the decree and not to the statement in the judgment;
(2) that neither an obiter dictum nor a mere expression of opinion in a judgment has
the effect of res judicata;
(3) that when a Court merely for the purpose of preventing a remand records its
findings on an issue not necessary for the decision of the case, it does not
operate as res judicata.
It is not enough to constitute res judicata that the parties are the same and the same
matter is directly and substantially in issue in both suits but the matter must have been
heard and finally decided in the former suit. If two applications, moved one after the
other, are decided by the same order, the question of the second application being
barred by res judicata does not arise.405
The following conditions must be fulfilled before any matter is said to have been "heard
and finally decided":
(1) The decision in the former suit must have been on merits.—In order that a matter may
be said to have been "heard and finally decided", the decision in the former suit must
have been on the merits. Hence, it could not be said to be heard and finally decided, if
the former suit was dismissed:
(i) for want of jurisdiction, or
(ii) for default of plaintiff's appearance under O IX, rule 8, or

(iii) on the ground of non-joinder of parties, or misjoinder of parties, or
(iv) for failure to furnish security for costs, or
(v) for want of a cause of action, or
(vi) for want of notice, or
(vii) on the ground that it is premature, etc.
Two suits having common issues were decided by the trial Court on merits. Then two
appeals were filed therefrom. One of them was dismissed on the ground of limitation or
default in printing with the result the trial Court's decision stood confirmed. The
decision of the appeal Court would be res judicata. The appeal Court must be deemed
to have heard and finally decided the matter. In such a case the result of the decision of
the appeal Court is to confirm the decision of the trial Court, given on merits, and if that
is so, the decision of the appeal Court would be res judicata.406
Consent decree has binding force of res judicata.—
A consent decree is as binding upon the parties thereto as a decree in inviture. If the
compromise is not vitiated by fraud, misrepresentation, misunderstanding or mistake
then the parties are bound by the terms of the compromise. The decree passed thereon
has the binding force of res judicata.407
(1) The decision in the former suit must have been necessary to the determination of that
suit.—It has been held by the Privy Council that finding on an unnecessary or irrelevant
issue cannot operate as res judicata. A finding on an issue cannot be said to be
necessary to the decision of a suit unless the decision was based upon that finding.408
And a decision cannot be said to have been based upon a finding unless an appeal can
lie against that finding.
All Necessary Facts of Earlier Litigation must be placed in subsequent

proceedings.—
Where an appellant has raised an objection before the High Court, but the same was
rejected. The ground was that if an earlier judgment is said to operate as res judicata in
the subsequent proceedings then all the necessary facts including pleading of the
earlier litigation must be placed in the subsequent proceedings. This view was affirmed
by the Supreme Court.409
Question whether a matter was raised and then heard and finally decided is one of fact
to be decided upon the circumstances of each particular case.410
(v) Same parties or parties under whom any of them claim.—This condition is based on
the well-known principle that judgments and decrees bind only parties and privies.
Then who are the parties to the suit? To this question it may be said that the parties to
the suit are persons whose names are on the record at the time of the decision, and a
party may be a person who has intervened in the suit. A party who withdraws or whose
name is struck off, ceases to be a party. A party who dies during the pendency of the
suit but whose name erroneously remains on the record is not a party. If the parties are
different, there is no res judicata.
In order to sustain the plea of res judicata it is not necessary that all the parties to the
two litigations must be common. All that is necessary is that the issue should be
between the same parties or between parties under whom they or any of them claim.
The plea of res judicata may be sustained if the questions at issue and the parties are
the same, subject, of course, to the other conditions prescribed under section 11, Code
of Civil Procedure.411
If the parties in two suits are the same and the subject matter is also the same. But the
issues and cause of action are different. In such a case, in the absence of pleadings
issues and finding on those issues, the rule of res judicata cannot be invoked.412
To maintain a plea of res judicata it must appear from an inspection or record that the
person whose interest it is sought to bind was in some way a party to the suit.413
Omission of party's name in the formal order by oversight will not deprive him of his
character of a party.414 Similarly, persons whose names are introduced on record by
fraud and without their knowledge are not parties.415 Likewise, persons wrongly made
parties in execution proceedings are not parties.416 A person merely interested in
litigation is not a party.417
A petition of Union of India about the competent authority appointed under the
Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act, 1962 was
dismissed. It was held that special leave petition against such removal can be filed by
Hindustan Petroleum Corporation as the grievance was independent of that of the
Government.418
An issue already decided earlier cannot be reopened.—
An issue which is directly and substantially involved and has been decided in earlier
Special Leave Petition, cannot be reopened under the garb of employees "forum",
basically on the ground that various aspects were not considered and the employees
who were adversely affected were not made parties in the earlier petition.419
The words "between parties under whom they or any of them claim litigation under the
same title" cover a case where the latter litigant occupies by succession the same
position as the former litigant.
Parties must be same.—
For the applicability of res judicata parties to both proceedings must be same.420
Not only against Parties but also against their class or category.—
An issue decided earlier operates as res judicata not only against employees who were
parties in an earlier case but against the whole class or category to which they
belong.421
The Supreme Court also has considered the effect of Explanation VI of section 11 and
held thus: The principle of representation of the interest of a person, not impleaded by
name in a judicial proceeding, through a named party is not unknown. A karta of Joint
Hindu Family has always been recognised as a representative of the other members of
Joint Hindu Family, and so has been a trusty. In cases where the provisions of O I, rule 8
of Code of Civil Procedure are attracted a named party in a suit represents the other
persons interested in the litigation, and likewise a receiver appointed in one case
represents the interest of the litigating parties in another case against a stranger.
Similarly, the real owner is entitled to the benefits under a decree obtained by his
benamidar against a stranger and at the same time is also bound by the decision.
Examples can be multiplied. It is for this reason that we find Explanation VI in the
following words in section 11 of the Code of Civil Procedure:
Explanation VI.—Where persons litigate bona fide in respect of a public right or of a

private right claimed in common for themselves and others, all persons interested in
such right shall, for the purpose of this section, be deemed to claim under the persons
so litigating.
This, of course, is subject to the essential conditions that the interest of a person
concerned has really been represented by others; in other words, his interest has been
looked after in a bona fide manner. If there be any clash of interests between the
person concerned and his assumed representative or if the latter due to collusion or for
any other reason mala fide neglects to defend the case, he cannot be considered to be
a representative. The issue when it becomes relevant, has, therefore, to be answered
with reference to the facts and circumstances of the individual case. There may be
instances in which the position is absolutely clear beyond any reasonable doubt one
way or the other and the question can be settled without any difficulty, but in other
cases the issue may have to be decided with reference to relevant evidence to be led by
the parties.422
"Claiming a Right in Common for themselves & others".—
In a partition suit each party claiming that the property is joint, asserts a right and
litigates under a title which is common to others, who made identical claims. If that
very issue is litigated in another suit and decided, the others making the same claim
can be held to be claiming a right "in common for themselves and others". Each of
them can be deemed by reason of Explanation VI to represent all those, the nature of
whose claims and interests are common or identical. Otherwise, it would necessarily
mean that there would be two inconsistent decrees.423
Entire Body of Interested Persons, Barred.—
The Explanation VI to section 11 of the Code constructively bars res judicata the entire
body of interested persons from reagitating the matters directly and substantially in
issue in an earlier suit under section 92 of the Code.424
An entire body of persons having common interest in the trust is barred by constructive
res judicata, from reagitating matters directly and substantially in issue in earlier suit
under section 92 of the Code.425
Entire body of interested persons is barred by constructive res judicata from reagitating
matters directly and substantially in issue in an earlier suit under section 92.426
In view of Explanation VI it cannot be disputed that section 11 applies to public interest

litigation as well but it must be proved that the previous litigation was the PIL, not by
way of a private grievance. It has to be a bona fide litigation in respect of a right which
is common and is agitated in common with others.427
Where the Court is dealing with a suit the only ground on which res judicata can be
urged against such a suit can be the provisions of section 11 and no other.428
In order to operate as res judicata pleadings need not state that person is suing or
being sued as a manager. It is sufficient if the person is suing or being sued is in
capacity as a manager.429
(vi) Litigating under the same title.—The last condition for the applicability of res judicata
is that the parties to the subsequent suit must have litigated under the same title in the
former suit. The expression "title" under this head refers to the capacity or interest of a
party; it has nothing to do with the particular cause of action on which he sues or is
sued.430 Where the capacities in which the two suits are brought are altogether
different the bar of res judicata cannot come into operation.431 According to the rule of
res judicata a verdict against a man impleaded in one capacity will not affect his rights
when proceeded against in another distinct capacity.432
ILLUSTRATION
A filed a suit as owner for a declaration of title, as such the suit was dismissed. A
subsequent suit was filed by A as mortgagee for the enforcement of A's right against
the same property as mortgagee. It was held that the suit was based on different title
constituting an entirely different cause of action, therefore, a subsequent suit was not
barred by res judicata.
It has been held by the Supreme Court in Venkateswara Prabhu v Krishna Prabhu, AIR
1977 SC 1268 : (1977) 2 SCC 181 as follows: One of the tests in deciding whether the
doctrine of res judicata applies to a particular case or not is to determine whether two
inconsistent decrees will come into existence if it is not applied. We think this will be
the case here.433
Res judicata between co-defendants.—
As a matter may be res judicata between a plaintiff and defendant, so it may be res
judicata as between co-plaintiffs or as between co-defendants. As regards res judicata
between co-defendants following three conditions must exist as held by the Privy
Council in Munni Bibi v Tirloki Nath, AIR 1931 PC 114 : 58 IA 158 : 53 All 103.
(i) there is a conflict of interests between such co-defendants,
(ii) it must be necessary to adjudicate upon such conflict in order to give the relief
claimed by the plaintiff, and
(iii) the question between co-defendants is finally decided.
Where all such conditions exist the decision in the former suit will operate as res
judicata between co-defendants even if the previous suit of the plaintiff was dismissed
against all the defendants.
If a plaintiff cannot get his right without trying and deciding a case between
codefendants, the Court will try and decide the case and the co-defendants will be
bound by the decree. But if the relief given to the plaintiff does not require or involve a
decision of any case between co-defendants, the co-defendants will not be bound as
between each other. The conditions for applying res judicata between co-defendants
are: (1) there must be conflict of interest between the defendants concerned, (2) it
must be necessary to decide the conflict in order to give the plaintiff the relief he
claims, (3) The co-defendants must be necessary or proper parties to the suit, (4) the
question between defendants must have been finally decided inter se between
them.434
The question whether the suit land appertained to the village of deity became res
subjudice on filing of first appeal. Since this question was not finally decided between
deity and other contesting defendants in appeal by the High Court on merits, there was
no final decision against deity. There was therefore, no question of res judicata between
co-defendants.435
The principle of res judicata binds co-defendants if relief given or refused by earlier
decision involved a determination of an issue between co-defendants/co-
respondents.436
ILLUSTRATION
A, B and C were three reversioners. A and B brought a suit for possession of half of the
property sold by a Hindu widow D. In the suit C was made a co-defendant with the
purchaser E. The suit was decreed and it was held that the sale was not for legal
necessity. Subsequently C filed another suit against E to obtain possession of the other
half of properties on the ground that the finding in the previous suit regarding legal
necessity was not binding on E since C did not contest the previous suit. It was held
that although C was not a contesting defendant there was an issue between C and E
whether the sale was binding on the reversioners and C was equally interested in the
issue with the plaintiff in the former suit and it was necessary to decide that issue in
order to grant relief to A and B and the decision in former suit therefore, operated as res
judicata in the subsequent suit.
Res judicata between co-plaintiffs.—
As to the res judicata between co-plaintiffs, as a matter may be res judicata between co-
defendants, so it may be res judicata between co-plaintiffs, subject to the same
conditions which apply to the case of codefendants.437
The doctrine of res judicata should be interpreted and applied liberally. The application
of the rule "should be influenced by no technical consideration of form but by matter of
substance within the limits allowed by law." A decision to become res judicata between
co-plaintiffs requires the same conditions that are necessary in the case of co-
defendants. The conditions for applying res judicata between codefendants are: (1)
there must be conflict of interest between the defendants concerned, (2) it must be
necessary to decide the conflict in order to give the plaintiff the relief he claims, (3) the
co-defendants must be necessary or proper parties to the suit and (4) the question
between the defendants must have been finally decided inter se between them.438
Waiver of plea of res judicata.—
The plea of res judicata is not one which affects the jurisdiction of the Court. It is a plea
in bar which a party may waive. If a party does not raise the plea of res judicata it will be
deemed to be a matter directly and substantially in issue and decided against him. The
plea is not waived if necessary facts were present in the mind of parties and gone into
by the Court. The absence of specific plea in written statement and framing of specific
issue of waiver by the Court is immaterial.439
Res judicata in criminal law.—
The principle of res judicata is alien to criminal law. However, in certain contingencies
"issue estoppel would be available".440
Not a pure question of law.—
A question whether a petition is barred by res judicata is not a pure question of law.441
Distinction between Res judicata and Estoppel.—
Res judicata is sometimes treated as part of the doctrine of estoppel, but the two are
essentially different.442 The following are the points of distinction between the two
doctrines:
(1) Res judicata is the result of a decision of a Court of law, whereas estoppel is the
result of the act of parties;
(2) The object of the rule of res judicata is to bring an end to the litigation whereas
the object of the rule of estoppel is to prevent a person who by his conduct
induced another to alter his position to his disadvantage;
(3) The jurisdiction of the Court is ousted by res judicata, whereas estoppel is only a
rule of evidence;
(4) The plea of res judicata presupposes the truth of the decision in the former suit
whereas the rule of estoppel simply prevents a person from denying what he
has once called the truth.
The shortest way to describe the difference between the res judicata and estoppel, is to
say that while the former prohibits the Court from entering into an inquiry as to a
matter already adjudicated upon, the latter prohibits a party, after the inquiry has
already been entered upon, from providing anything which would contradict his own
previous declaration or act to the prejudice of another party, who, relying upon those
declarations or acts, has altered his position. In other words, res judicata prohibits an
inquiry in limine, whilst an estoppel is only a piece of evidence.443
A decision of a tribunal is challenged on a pure question of law depending upon the

interpretation of a constitutional provision. On being upheld it would make the decision
of the tribunal as having been given by an authority suffering from inherent lack of
jurisdiction. The decision cannot be sustained by invoking the doctrine either of res
judicata or of estoppel.444
Res Judicata creates a different kind of estoppel namely, estoppel by accord.445
The orders or judgments passed by revenue authorities or Courts on account of playing

fraud on them will not operate as res judicata and they are nullity and non-est in the
eyes of law. The plaintiffs are not estopped from raising the pleas, which were raised
earlier in view of the fraud played by the defendants.446
Distinction between Res judicata and Lis pendens.—
In case where there is a conflict between res judicata and lis pendens (which means
that a transferee during the pendency of the suit is bound by the result of litigation) lis
pendens gives way and the principle of res judicata will prevail.
Res judicata means a matter adjudicated upon or a matter on which decision has been
made, whereas lis pendens is an action pending litigation.
Distinction between Res judicata and Subjudice.—
(1) Res judicata relates to a matter already decided, i.e. a matter on which judgment
has been pronounced, whereas res subjudice (laid down in section 10) relates to matter
which is pending for judicial enquiry.
(2) Res subjudice bars the trial of a suit in which the matter directly and substantially in
issue is pending judicial decision, in a previously instituted suit by staying the trial of
the latter suit, whereas res judicata bars altogether the trial of a suit or an issue in
which the matter directly and substantially in issue has already been adjudicated upon
in a previous suit.
(3) The object of res subjudice is to prevent Courts of a concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of
same cause of action, same subject-matter and same relief whereas the object of res
judicata is that there should be an end to litigation and that no man should be taxed
twice over for the same cause.
Avoidance of Res judicata.—
Section 11 is mandatory and the ordinary litigant who claims under one of the parties
to the former suit can only avoid its provisions by taking advantage of section 44 of the
Indian Evidence Act, which provides grounds of avoidance of a decree, i.e., on fraud or
collusion. Gross negligence is different from fraud or collusion. Collusion of one of
several defendants with the plaintiff would not result in the avoidance of res
judicata.447
Cases where principle of res judicata was not applied.—
A decision in respect of a matter in issue between the parties, whether it is a question

of fact or question of law, will operate as res judicata in between the same parties in a
subsequent proceeding, provided the cause of action in the subsequent proceeding is
the same as in the previous proceeding. Even if the cause of action is different a
decision on a question of law will not operate as res judicata.448
A decision rendered on a wrong premise wherein no factual foundation was placed

would not operate as res judicata.449
The principle of res judicata was not applied where the first writ petition was filed on
the ground of apprehended bias and was dismissed as withdrawn and the second
petition was filed on the allegation of actual bias. The subject-matter was also
different.450
The principle of res judicata under section 11 is attracted where issues directly and
substantially involved between the same parties in the previous and subsequent suit,
are the same. If it may be that in the previous suit only part of property was involved
whereas in the subsequent suit, the whole property is involved.451
If a review petition is filed before High Court and during its pendency a special leave
petition against main judgment is also filed before Supreme Court. The SLP is
dismissed without assigning any reason. The main judgment of the High Court would
not get merged with this order of the Supreme Court. Subsequently if the review
petition is dismissed by the High Court then another SLP against this dismissal order
rejecting review petition will not be barred by res judicata.452
The defendant died during pendency of appeal filed by him. When appeal was placed
for hearing, an advocate addressed letter to deceased defendant the legal
representatives of the defendant appellants promptly approached advocate and filed
application for substitution. It was rejected on ground that no separate applications
were filed for substitution, sitting aside abatement of appeal and condonation of delay.
Appellants thereafter, filed three separate applications. There was no inaction or
negligence on part of appellants. The Appellate Court ought to have granted prayer for
substitution. The rejection of said applications, being barred by res judicata was illegal.
The doctrine of res judicata would not apply where Court felt. That applications were
not maintainable.453
A judgment restraining recovery of tax based on cause of action arising out of

assessment for a particular year and holding the party not liable for payment of tax
would not constitute res judicata for liability to pay tax or assessment for subsequent
years.454
The question of applicability of principle of res judicata does not arise on account of
attainment of alleged finality of adjudication by administrative authorities.455
Where the previous application had become infructuous and was not decided on
merits, the principle of res judicata would not operate.456
The principle of res judicata states that no Court shall try any issue which was directly
or substantially in issue between the same parties and which has been heard and
finally decided by a competent Court. Thus, unless an issue directly and substantially
raised in the former case, is heard and decided by the competent Court, the principle of
res judicata will not be attracted.457
The judgment/order which is without jurisdiction, or is non-speaking, does not operate

as res judicata. The principles of res judicata also do not apply in a case involving pure
question of law.458
Where a plea is raised that the decree passed in earlier proceedings was collusive, it
would not operate as res judicata.459
If earlier suit was based on lease and the subsequent suit is based on title, then res
judicata will not apply.460
The decision in a suit for injunction is not binding on a latter suit or proceeding on
question of title, where title is directly in question, even though issue on title was
framed in that suit and incidental finding on question of title was given.461
The finding given on an application for grant of succession certificate are not final and
do not operate as res judicata.462
No party can be permitted to raise an issue inter se where such an issue has been
decided in an early proceeding. Even if res judicata in its strict sense may not apply but
its principle would be applicable.463
Dismissal of earlier SLP was not by any reasoned order. Point raised before the
Supreme Court was neither raised nor decided in that SLP. As the question was likely to
come in future the Supreme Court thought it fit to decide and settle it. The plea of bar
of res judicata was not maintainable.464
Where a Civil suit for determination of status of tenancy of party between the parties is
pending on or before coming into force of an amending Act, Civil Court's jurisdiction is
not barred, the tribunal under amending Act issued purchase certificate to a party,
without jurisdiction and hence nullity, no question of res judicata arises in such
cases.465
A decision of Court or tribunal which is without jurisdiction cannot operate as res

judicata in subsequent proceedings.466
The finding in an earlier occupation of the premises will not operate as res judicata in a
subsequent eviction proceeding after the issue of notice of termination of the lease.467
The principle of res judicata will not apply where order was passed without
jurisdiction.468
Where the matter, directly and substantially in issue in the second suit, was completely
different from the matter that was directly and substantially in issue in the first suit and
the relief claimed was also different as the first suit was for a permanent injunction and
the suit was for a declaration and consequential relief the second suit would not be
barred by the principle of res judicata.469
Where first petition seeking relief for abolition of contract Labour System in operation
of canteen and for absorption of canteen workers as employees was rejected, the
second petition seeking making of reference under section 10 to decide whether
contract between principal employer and canteen contractor was sham, nominal and
mere camouflage was not barred either by res judicata or principle of estoppel.470
Where in the previous decree in respect of same property the plaintiff member was
given 5/6th share in property, it would not bind other member being collusive decree.
Mereso when other member was not party in the said proceedings.471
If a special leave petition is dismissed without speaking order, then it will not constitute
res judicata.472
Where a review petition was filed much prior to filing of special leave petition against
main judgment of High Court, leave to appeal, if granted, cannot be revoked. A SLP
against main judgment of High Court was dismissed as withdrawn then a review
petition was filed during pendency of SLP. It was also dismissed by the High Court
taking view that there was no error apparent on record. Another SLP was filed
thereafter, challenging said judgment of the High Court passed in review petition. It
would not be barred on ground of res judicata.473
The question of correctness or validity of the judgment passed on a writ petition
cannot be raised in a contempt proceedings. No question of res judicata arises in such
a case.474
Where in all four suits plaintiffs were common but defendants were not common and
properties were situated in different villages, decision in one of relevant suit attained
finality, decision in appeals relating to other two suits would not affect decision in
relevant suit, and would not operate as res judicata in subsequent proceedings as
parties were not same.475
Where plea of res judicata was not raised in the High Court, it could not be raised for
the first time before the Supreme Court.476
It is well settled that a party against whom a finding is recorded has got a right of
appeal even though the ultimate decision may be in his favour if the finding can operate
as res judicata in a subsequent suit or proceeding, if, however, it cannot operate as res
judicata then such a party has no right of appeal.477
Principle analogous to res judicata/constructive res judicata has no application to

criminal proceedings.478
Finding on merits of trial Court cannot operate as res judicata in subsequent

proceedings.479
Jagir Commissioner Order—Not res judicata.—
The claim as to land recorded in the name of jail department was laid by the appellant
a transferee from the original lessee. The plea that land in dispute is covered by the
order of Jagir Commissioner order which was in appellant is favour and had attained
finality. The Jagir Commissioner's order however not relating to land in dispute cannot
operate as res judicata.480
The principle of res judicata does not apply to bar appeal.481
If a party obtains a decree from the Court by practising fraud or collusion, he cannot be
allowed to say that the matter is res judicata and cannot be reopened. There can also
be no question of res judicata in the case where signs of fraud or collusion are
transparently pregnant or apparent from the facts on record.482
Where an earlier suit for injunction was dismissed on technical ground, the subsequent
suit for declaration of title and recovery of possession is not barred by res judicata
because the question of status of the plaintiff as lessee was not decided in earlier suit.
The subsequent suit is also not barred by rule 2(3) of O II since causes of action are
different.483
The plaintiff is the lessee of land. He starts a mill thereon which the defendant is
subsequent assignee of the mill. In a suit for possession of land and building the plea
by the defendant that he is a tenant is not barred on the ground that it was not raised in
earlier suit between parties when earlier suit was confined to mill. It was treated as
movable property independent of land and building in which mill was installed.484
Finding rendered by small cause court as regards title to immovable property would
only be incidental to substantial issue involved in small cause suit as the small cause
court cannot determine issues as to title. Hence, such finding of small cause court
would not operate as res judicata in subsequent civil suit for determination/
enforcement of any right or interest in the said property.485
An observation made off the mark which was also unnecessary would not operate as
res judicata in a subsequent proceeding.486
A writ petition was filed before maturity of the claim under the policy for directing the
LIC to make a statement on oath under section 226(3)(vi) of the Income-tax Act, 1961.
A second writ petition for the payment of policy amount with interest was withdrawn as
a result of withdrawal of notice by the ITO. The third writ petition raising question of
LICI's liability to pay interest on the principal amount is not barred by res judicata.487
An appeal by special leave filed against original order under section 33(3) of Industrial
Disputes Act can be heard as no question of res judicata arises.488
Before a plea can be held to be barred by res judicata, that plea must have been heard
and determined by the Court. The dismissal, for default of the judgment-debtor, of an
application filed by him under section 47 resisting the execution of the decree is not a
final decision of the Court. It does not operate as res judicata.489
A decree passed on compromise is not a decision by Court. It does not operate as res
judicata. Such a decree might create an estoppel by conduct between the parties. Such
an estoppel must be specifically pleaded.490
A claim proceeding under O XXI rule 58 is not a suit or a proceeding analogous to a

suit. An order in the claim proceedings does not operate as res judicata.491
The claim of privilege of document was upheld by the trial Court and affirmed on
appeal by the judicial commissioner by an interlocutory order. An appeal by special
leave to the Supreme Court against final decree in suit, on the plea that the Courts
below were in error in upholding claim of privilege, is open to appellant and is not
barred by res judicata.492
Where a writ petition is dismissed in limine or on the ground of laches or availability of

alternative remedy, such a dismissal would not operate as res judicata.493
Where it is found that there was no finding recorded in the earlier litigation on the
question of earlier partition in the family, the later suit for partition will not be barred by
the principle of res judicata.494
A direction in a preliminary decree under O XX rule 12(1)(c) does not operate as res
judicata, as such a direction is not based on a decision of any matter in controversy
between the parties.495
Where an earlier suit was for eviction on the ground of sub-letting and the second suit
was filed on a similar ground of sub-letting but after the West Bengal Premises
Tenancy Act, 1956 had been enforced. The sub-tenants concerned in the second suit
were inducted both before and after the 1956 Act. The decision in earlier suit would not
operate as res judicata since the parties were not same and the question of violation of
the WB Act was not involved in earlier suit.496
A finding as a title by small cause Court does not operate as res judicata in subsequent
suit for determination of interest in immovable property.497
In order that a matter may be said to have been heard and finally decided, the decision
in the former suit must have been on merits. The decision which is not on merits would
not operate as res judicata in a subsequent suit.498
A finding of the revisional Court on interlocutory application as to the maintainability of

the suit does not operate as res judicata.499
Dismissal of special leave petitions would not amount to res judicata.500
An order passed without jurisdiction would be a nullity. It will be a coram non judice and
non est in the eye of the law. The principle of res judicata would not apply to such
cases.501
There were two second appeals arising out of two cross-suits filed by the same party.
One was dismissed and the other allowed. The decision in former appeal did not
operate as res judicata when question in issue in latter appeal could not be and was not
in fact considered in former appeal.502
It is settled law that an appeal is a continuation of the suit. When an appeal is

preferred, the whole matter is at large before the court. Since, the right to prefer an
appeal is a right provided by a statute, hence, for a decision on any issue involved in a
suit to attain finality so as to operate as a res judicata, such issue(s) would have to be
decided on merit by the Appellate court wherein an appeal is filed. Where the court had
not decided second appeal on merit, hence the findings recorded by the appellate court
in respect of the issues involved in the suit had not attained finality in the eye of law. As
such the principles of res judicata would not be applicable to any subsequent suit
concerning same matter between same parties.503
The first suit for possession was on the basis of tenancy. The second suit was for the
possession and declaration of title. The subject-matter and the parties were the same.
The second appeals arising therefrom were disposed of by a common judgment
treating them as connected appeals. No question of res judicata arises. There was also
a third appeal from decision in second suit only. The final and conclusive finding in first
suit operates as res judicata.504
A case of customary bonus or contract bonus was not urged before the Arbitration
Board such a ground is not barred by the general principles of res judicata in later years.
An industrial litigation is no exception to the general principles underlying the doctrine
of res judicata but there is doubt about the extension of the sophisticated doctrine of
constructive res judicata to industrial law.505
If the previous petition under Article 226 of the Constitution is dismissed not on merits,
then the subsequent petition under Article 32 of the Constitution is not barred.506
In a suit for partition of joint family property, the preliminary decree on the basis of an
award by agreement of parties was passed. The Commissioner defined the shares of
parties. The suit was dismissed for failure to deposit commissioner's fee. The parties
took possession of their separate shares. Another suit was filed for partition 35 years
after. It was not maintainable as the dismissal of the previous suit for partition for
failure to deposit the commissioner's fee could not operate to wipe out the preliminary
decree.507
A decision in writ petition operates as res judicata in subsequent suit on same

matter.508
Finding on question of dam safety may not operate as res judicata in subsequent
proceedings if there is drastic change in circumstances.509
An award of a Labour Court held that the Standing Orders of a company were not
applicable to persons employed prior to certification of standing orders. The decision
was based on Supreme Court judgment and became final since special leave to appeal
was refused. Subsequent decision of the Supreme Court held that the standing orders
were applicable after certification to employees who were employed prior to such
certification. The decision of Labour Court did not act as res judicata.510
A question relating to the jurisdiction of the Court cannot be deemed to have been
finally determined by an erroneous decision of the Court. Such a decision cannot
operate as res judicata in subsequent proceedings.511
A compromise decree is not a decision of the Court, nor can it be said that a decision
of the Court, was implicit in it. It is the acceptance by the Court, of something to which
the parties agreed. Such a decree cannot operate as res judicata.512
Where the Court trying the previous suit has no pecuniary jurisdiction to try the
subsequent suit, the decision in prior suit does not operate as res judicata.513
Where the effect of a decision was only that a certain statute was in law non-existent
so long as there was a defect, it did not operate as res judicata after the defect had
been remedied.514
A suit dismissed by the trial Court for default or want of jurisdiction does not operate
as res judicata in subsequent suit.515
In a civil proceeding the decision of a Criminal Court is not res judicata (Per
Hidayatullah, CJ).516
A High Court in writ proceedings quashed the award of the Industrial Tribunal and
remanded the case for fresh disposal in accordance with the law. The order is
interlocutory and not a final order. The decision on any particular point given therein
cannot operate as res judicata in an appeal by special leave, filed against the final
award of the tribunal.517
Expression of opinion on a question which is not in issue does not operate as res
judicata.518
A question of title is decided by a Revenue Court by referring the issue to a Civil Court
under section 271 of Agra Tenancy Act. The dissatisfied party brings a civil suit for
declaration of title. It is not res judicata as the Revenue Court was not competent Court
to try the subsequent suit in which the same issue was raised.519
Where an application for letters of administration was dismissed under O XVII rule 1 for
non-appearance of the applicant, the expression of an opinion by the Court on an issue
as to estoppel with respect to the title to the properties, would not be res judicata on
the rights of the parties thereto.520
It is well settled that one of the essential conditions of res judicata is that there must be
a formal adjudication between the parties after full hearing. Where the plaintiff
relinquished her first cause of action the defendant was nowhere in the picture, and
there being no adjudication between the parties, the doctrine of res judicata would not
apply.521
In the insolvency proceedings, the matter not decided in adjudication proceedings is

not res judicata in the proceeding started for avoiding transfer.522
The question of res judicata arises only when there are two suits. If the suit is one and
two decrees are passed, they are based on same judgment and the matter decided
concerned the entire suit, then the principle of res judicata would not apply.523
When there was no issue as to the nature of tenancy in previous suit, either directly or
indirectly, the former decision is not res judicata on the question.524
A writ petition challenging detention was dismissed by a High Court. Subsequently

another writ petition was filed under Article 32 by the same petitioner, wherein he
raised certain additional points, which were not raised before the High Court. The
agitation of those points before the Supreme Court was not barred by the principle of
constructive res judicata.525
Where nature of defendant's interest in disputed plots at the time of subsequent title
suit changed from that at the time of earlier title suit, the findings in earlier suit will not
If the defendant does not appear and the Court on its own returns plaint on the ground
of lack of jurisdiction then the order in a subsequent suit may not operate as res
judicata. But if the defendant appears and an issue is decided then the decision on the
question of jurisdiction will operate as res judicata in a subsequent suit.527
A decree at an earlier stage of a suit will bind the parties at later stage of the same suit.
But it is well settled that because a matter has been decided by an interlocutory order
and no appeal has been taken therefrom or no appeal did lie, a Higher Court is not
precluded from considering the matter.528
There was an attachment of certain property in an execution. The decree-holder

himself apprised the Court that the judgment-debtor, belonged to the Scheduled Tribe.
The judgment-debtor, however, failed to take this objection. This did not debar the
judgment-debtor from rising the objection at the time of sale on actual or constructive
res judicata.529
Where an application is filed under O XXI rule 97 subsequent to dismissal of

application under O XXI rule 58 and the subordinate court had not pronounced upon
title of the objection vis-a-vis schedule property the dismissal of application under O
XXI rule 58 would not operate as res judicata for filing application under O XXI rule
97.530
An erroneous decision does not operate as res judicata. An executing Court had
refused to exercise jurisdiction and to execute a decree on the ground that it was a
nullity. It was validated subsequently. It cannot be said that the earlier decision holding
that the decree was a nullity operated as res judicata.531
Final custody order passed in first main petition under Guardians and Wards Act, 1890
does not operate as res judicata. As the question relating to interest and welfare of
children is always in state of flux, depending upon variation in parameters.532
Merely because earlier application filed by the appellant under O XXII rule 4 of the Code
of Civil Procedure, 1908 was dismissed as not maintainable, it will not prohibit the
plaintiff from filing another application under O I rule 10 (2), decision given under O XXII
rule 4 cannot act as res judicata for the subsequent application under O I rule 10.533
Where the previous judgment is based on erroneous decision without giving effect to
statutory prohibition then the said decision will not operate as res judicata.534
Where Title to property is the basis of the right possession, a decision on the question
of possession is res judicata on the question of title to the extent that adjudication of
title was essential to the judgment, but where the question of the right to possession
was the only issue actually or necessarily involved, the judgment is not conclusive on
the question of ownership or title.535
Cases where Principle of res judicata was Applied.—
If the revenue authorities had the requisite jurisdiction to determine a question then the
issues which could and ought to have been raised in the proceedings but not raised,
would be barred by the principles of constructive res judicata.536
The stand of the State in the earlier round of litigation was that the temple in question
was a Hindu temple. The Supreme Court categorically opined that it is a Jain temple.
The principles of res judicata, would came into play.537
Where a writ petition previously filed by the petitioner-appellant was dismissed as not
maintainable and the appellant again filed a writ petition praying for identical reliefs,
the writ petition was not maintainable as being barred by res judicata.538
Where revenue sale of properties of a firm was challenged through a writ petition by
one of partners on a previous occasion and such challenge was negatived on merits, in
such case principle of res judicata applied and subsequent challenge was barred.539
When a Court delivers a judgment without jurisdiction or is contrary to existing law,

earlier judgment cannot be held to be res judicata in subsequent case.540
Where two appeals were filed by the rival groups only in one suit, both the appeals were
dismissed as barred by res judicata.541
Where a levy assessment order was challenged but the appeal was dismissed and no
further appeal was filed, a subsequent Civil suit challenging the levy was held to be
barred by the principle of res judicata as the assessment order had attained finality.542
Where an issue regarding genuineness of agreement and whether there was

interpolation was settled and judicially determined finally in a suit between the parties,
and also party gave undertaking that she would not raise issue of interpolation, the
party could not be allowed to raise same issue again in different suit between same
parties and regarding the same subject matter. The principle of res judicata and
estoppel would apply.543
If the issue of future interest has been raised and decided, then the respondents are
barred by res judicata from reopening it.544
A decision in arbitration suit, holding that there is an arbitration agreement between the
parties, is binding on the parties and it would operate as res judicata in matter of
enforcement of foreign award.545
A Hindu widow in the year 1967, after the death of her husband adopted a son. In an
earlier suit in which she was a party, the Court had recorded finding that she was
entitled to maintenance only and she was not a member of the HUF of her father-in-law.
The said finding in a subsequent suit filed by her son for possession of the property will
In an execution of decree for possession the occupier of the property made an
objection which he had already raised and was dismissed by trial Court. The decision
thereon had become final, then such objection is to be dismissed on ground of res
judicata.547
A seniority list was not challenged before the tribunal on the ground that there was no
provision for carrying forward vacancies. The said plea cannot be raised before the
Supreme Court being barred by constructive res judicata.548 Where a certificate
declaring promotion of the promotees to be temporary was not produced in earlier
proceedings before tribunal, it cannot be agitated in proceedings before Supreme Court
as barred by constructive res judicata.549
Where the finding of the lower Court that the property in dispute was wakf property was
confirmed by the Supreme Court, subsequent suit by the defendants for declaration
that the appellants have no right over the property is barred by principle of res
judicata.550
The principle of constructive res judicata can be invoked even inter se respondents.
Before any plea by contesting respondents could be said to be barred by constructive
res judicata in future proceedings inter se such contesting respondents, it must be
shown that such a claim was required to be raised by the contesting respondent to
meet the claim of the appellant in such proceedings.551
The bar of constructive res judicata is to apply only if a party omits to include one of the
several causes of action arising out of the same set of facts, and not when different
and independent causes of action arise out of altogether different set of facts.552
In a suit for permanent injunction and recovery of possession, the plea of adverse
possession by plaintiff was not raised in that suit even though available to him. It was
held that plaintiff cannot be allowed to raise that plea in subsequent suit as the same is
barred by constructive res judicata.553 Where dismissal of the suit was on account of
extinguishment of the cause of action or any other similar cause, a decision made in
the suit on a vital issue involved therein would operate as res judicata in a subsequent
suit, between the same parties. If the defendant chose not to appeal against the
decision, then it would not avert the bar of res judicata.554
The party in subsequent proceedings though not a party in the former proceeding,
litigating the subsequent proceeding on the basis of the title acquired through a party
in the former proceeding, would be bound by the result of the earlier proceeding in the
subsequent proceeding. The successor-in-title would be bound to the extent the
predecessor-in-title would have been bound.555
A suit cannot be held to be barred only because the principle of estoppel subject to
requisite pleading and proof may be applied. The said principle may not be held to be
applicable only at a later stage of the suit.556
Principle of res judicata is not attracted when previous judgment was rendered by a
Court without jurisdiction, or when the matter involves pure question of law or when
favourable judgment was obtained by committing a fraud on the Court.557
Principles of res judicata do not only apply in respect of separate proceedings but also
apply at the subsequent stage of the same proceedings.558
Where an issue has been heard and finally decided by the Court, the Court cannot try
the subsequent suit or the issue in the subsequent suit.559
The plaintiff in a former suit for the declaration of title was unable to prove by the sale
deed, his claims of exclusive title and possession. The subsequent suit filed agitating
same issue but on new grounds would be hit by principles of res judicata.560
The single judge remitted the revision application in a pre-emption case to Board of
Revenue for a fresh decision in the light of direction issued by the writ Court. The
petitioner did not challenge the said remand order either in appeal before the High
Court or Apex Court, rather he accepted the remand order and participated in the
proceeding before the Revisional Authority. The petitioner having accepted the finality
of remand order cannot be permitted to reagitate the entire matter afresh as such
claim is hit by constructive res judicata.561
If any of the respondents is aggrieved by the judgment, then either they ought to apply
for review if maintainable or move the Supreme Court. Having resorted to none of the
reliefs available, it is not open to the contesting respondents to raise the contention as
raised. Once these issues are concluded the principles analogous to res judicata will
apply.562
The principle of res judicata was applied where it was established before the
Presidency Small Causes Court that the appellants were inducted as licensees in
respect of the suit property and such order attained its finality.563
The bar of res judicata applies to writ proceedings. The decision at interlocutory stage
operates as res judicata in subsequent stage of the same proceedings.564
Principle of res judicata is also attracted at interim stages of a suit.565
The ratio of a decision is binding and not an observation. Where the claim of the
plaintiff was rejected by the apex Court in earlier suit, the same would operate as res
judicata in a suit for permanent injunction based on legal entitlement of Gaddi of
Math.566
Principle of res judicata or constructive res judicata is applicable only when there is a
decision.567
Where disputes between parties to two suits were common, and issues raised therein
were also common, second appeal was held to be barred by res judicata.568
Res judicata, compensation for acquisition of land.—
On the question regarding right of claimant to receive entire amount of compensation

or right of State Government to receive compensation amount, three references were
made to the District Judge by three by three claimants. In one of the references the
finding recorded was that the claimant was entitled to entire amount of compensation.
No appeal was preferred against the said finding. However, in appeal preferred against
award, a decree, made in another reference, it was always open to authority or State
Government to contend that claimant was not entitled to receive entire amount of
compensation. There was no finding which on account of it having attained may debar
High Court to examine said question.569
In connected suits finding of appellate Court in one suit was allowed to become final.
Appeal filed against findings in other suit is barred by res judicata.570
In an earlier suit for partition the joint family status was terminated. Joint family
properties were partitioned but the parties continued to be members of joint family by
their acts even after the partition. However, there was no proof of reunion of their
respective shares in the property. Subsequent claim for partition was not
maintainable.571
Where in an earlier writ petition the question of mala fide in the issue of licence to sell
liquor was not decided by the High Court. The matter was simply remitted to lower
authority for disposal on merits, the words "might and ought" stand in the way and
operate as res judicata for raising the same question in the writ petition.572
A Civil Court cannot pass a decree for eviction holding that the defendant was not a
tenant. When this order became final, the defendant cannot file a writ petition and
contend that he is a tenant and cannot be evicted.573
An earlier decree in terms of award will operate as res judicata in a subsequent suit for
partition in respect of the very same property. Where, the plea that no notice of filing of
award was served on parties raised for the first time in second appeal the order of High
Court that earlier decree in terms of award is non est and could not operate as res
judicata is not proper.574
The judgment in a former suit would operate as res judicata if the Court which decided
the said suit was competent to try the same by virtue of its pecuniary jurisdiction and
the subject matter to try the subsequent suit. It is not necessary that the said Court
should have had territorial jurisdiction to decide the subsequent suit.575
A decree in which the issue was directly and substantially in issue and was finally
decided would operate as res judicata in a subsequent suit on title, where the same
issue directly and substantially arises between the parties.576
Where the Court has applied its mind to the question that the rent proposed by consent
is just and reasonable, the independent satisfaction of the Court changes the character
of the document from a mere contract to a Court's adjudication. It will estop the tenant
from contending otherwise in any subsequent proceeding and operate as res
judicata.577
Where a dispute in a particular service was finally adjudicated by the Supreme Court
between officers in a representative capacity and the engineers not so represented.
The same dispute cannot be allowed to be raised again under Article 32 of the
Constitution between officers in a representative capacity and engineers also in a
representative capacity.578
A compromise decree signed by the counsel and not by the parties in person operates
as res judicata even if it extends beyond subject matter of the suit.579
As long as a consent decree stands, it is not open to either party thereto to give it, the
go by. Even if it contains clauses that are bad in law.580
The findings of the Rent Controller in the application under section 44 of Delhi Rent
Control Act, 1958 that the society was tenant only in respect of open plot, right or
wrong, have attained finality as between the parties. It is not open to the society on
principles analogous to res judicata to take a contrary stand.581
Between the parties even a wrong decision can operate as res judicata. The doctrine of
res judicata was also held to be applicable even in criminal trials.582
Where no appeal is filed against the order dismissing an application to set aside the
sale, the second application for the same relief is barred by res judicata.583
A suit was filed for the declaration that the plaintiffs were the members of a larger joint
Hindu family and as such entitled to share in joint family business and properties. In an
earlier litigation between the parties and or their predecessors it was found that there
was disruption of the larger joint Hindu family. The family business was carried on by
them as partners while remaining as heads of each one's individual family. It would
operate as res judicata in such suit.584
The principle of constructive res judicata would apply to writ petitions. The non-
applicability would be an exception to be carried out in particular situations. The issues
which have already been decided by a Division Bench between the parties in an earlier
round of litigation and has been upheld by the Supreme Court, cannot be reopened for
fresh adjudication.585
It is well settled that section 11 of the Code of Civil Procedure, 1908 is not exhaustive
of the general doctrine of res judicata. Its object is to give finality to litigation and that
the individuals should not be harassed twice over the same litigation. The technicalities
like pecuniary jurisdiction cannot be invoked. The customary rights of a community
established by a decree of competent Court operates as res judicata in subsequent
proceedings.586
The principles of res judicata can be invoked not only in separate subsequent
proceedings but also in subsequent stage of the same proceedings. Once an order
made in the course of proceedings becomes final, it would be binding at the
subsequent stage of that proceeding.587
The rule of constructive res judicata applies to execution proceedings. The orders
passed in execution without jurisdiction are not res judicata but they may in proper
cases come within the principle of constructive res judicata. Where a decision given in
the first set of execution proceedings was not one of law only but of a mixed question
of law and fact. Such a decision would operate as res judicata.588
If the Court has based its final decision on more than one points, then the decision. On
each point operates as res judicata in subsequent suit between the same parties.589
If a decree of the trial Court is not appealed against by one defendant, then the decree
cannot be challenged by him as void for want of signature of the trial judge.590
Where a writ petition under Article 226 is disposed of on merits and the order of
dismissal of the petition is a speaking order, that would amount to res judicata.591
Where the reliefs asked for in writ petition to Supreme Court are similar to those asked
for in appeal before the High Court, the findings in appeal would be binding in writ
petition.592
The principle of res judicata applies to an application for restitution under section 144
which is an application for execution.593
The decision in earlier writ petition was given on merits. The subsequent suit involving
same questions and for same reliefs is barred on general principles of res judicata.594
In an insolvency proceedings, an adjudication of insolvent was done by the Bombay

High Court and also by Billary District Court. The order was made by the District Court
in proceedings to which the deposit holder was party. This order provided that if the
Bombay High Court decided that assets and effects of insolvent should be
administered from Bombay then the said assets and account books should be handed
over to the official assignee at Bombay. The order was complete and final. It was
effective and amounted to res judicata.595
Where an order of the Labour Court granting permission to lead evidence was not
challenged for the first time by the employee, the principle of res judicata will
operate.596
In a suit filed by a bank against a firm for recovery of dues on cash credit account. The
firm claimed adjustment of the amount received by the bank from insurer in respect of
pledged goods. Such a claim was put in issue and decided in favour of the firm. This
finding inter partes became res judicata.597
The President of India can ask the Supreme Court to reconsider its decision. The
decision of the Supreme Court that Water Disputes Tribunal can give interim relief.
When the grant of interim relief forms part of reference, operates as res judicata and
cannot be reopened.598
274 See Dass, Jurisprudence, Chapter III, p 29.
275 Satyadhyan Ghosal v Deorajin Devi, AIR 1960 SC 941 : (1960) 3 SCR 590 .
276 Hameeda Begum v Champa Bai Jain, AIR 2009 (NOC) 2693 (MP-DB).
277 Ram Nag v State of Orissa, (2008) 106 Cut LT 64 (66) (DB).
278 M Nagbhusana v State of Karnataka, AIR 2011 SC 1113 (1118) : 2011 AIR CC 1702 (1706)
SC : (2011) 3 SCC 408 : 2010 (6) Kar LJ 134 (DB); See also Daryao v State of UP, AIR 1961 SC
1457 : (1962) 1 SCR 574 : (1962) 2 MLJ (SC) 16. [See also Shri Bhavanarayanaswami vasi
Temple v Vedapalli Venkata Bhavanarayanacharyulu, (1971) 1 SCJ 215 ].
279 Gangai Yinayagar Temple v Meenakshi Ammal, (2009) 9 SCC 757 (769).
280 Daryao v State of UP, AIR 1961 SC 1457 : (1962) 1 SCR 574 : (1962) 2 MLJ (SC) 16.
281 ILR (1970) 1 Ker 194 (DB).
282 Re Govinda Rao, AIR 1947 Mad 5 .
283 K Ethirajan v Lakshmi, AIR 2003 SC 4295 (4300).
284 Indu Bhushan Jana v UOI, AIR 2009 Cal 24 (26), see also State of UP v Jagdish S Agrawal,
(2009) 1 SCC 689 .
285 Hitendra Borkar v State of Chattisgarh and another, AIR 2015 Chatt 165 .
286 Alka Gupta v Narendra Kr Gupta, (2010) 10 SCC 141 (149, 150).
287 Escorts Farms Ltd v Commr KD Nainital, AIR 2004 SC 2186 (2202).
288 Ashok Layland Ltd v State of TN, AIR 2004 SC 2836 (2861).
289 Syed Mohd Salie Labbai v Mohd Hanifa, AIR 1976 SC 1569 (1577) : (1976) 4 SCC 780 :
(1976) 3 SCR 721 .
290 PDM Reddy v PA Rao, AIR 1974 SC 2089 (2092).
291 PL Lakhanpal v UOI, AIR 1967 SC 908 (915) : (1967) 1 SCR 433 .
292 AIR 1977 SC 789 at p. 796 : (1977) 2 SCC 88 : (1977) 2 SCR 522 . See also Sarguja
Transport Service v S.T.A. Tribunal Gwalior, AIR 1987 SC 88 : (1987) 1 SCC 5 : 1987 SCC (Cri) 19 .
293 Isabella Johnson v MA Susai, AIR 1991 SC 993 .
294 Mysore SE Board v Bangalore WC & S Mills, AIR 1963 SC 1128 (1134) : 1963 Supp (2) SCR
127 .
295 UOI v Nanak Singh, AIR 1968 SC 1370 : (1968) 2 SCR 887 .
296 Madhvi Amma Bhawani Amma v Kunjikutty Pillai Meenakshi Pillai, AIR 2000 SC 2301 (2306) :
(2000) 6 SCC 301 : (2000) 2 LLJ 518 .
297 CV Rajendran v NM Muhammed Kunhi, AIR 2003 SC 649 : (2002) 7 SCC 447 .
298 Brijmohan Dua v Ram Bhishal Alia Ram Khilawan, AIR 2014 Chh 93 .
299 Management of Sonepat Co-op Sugar Mills Ltd v Ajit Singh, AIR 2005 SC 1050 (1054–1055),
AL Ltd v State of TN, AIR 2004 SC 2836 : 2004 AIR SCW 1001 : (2004) 3 SCC 1 (followed).
300 Alka Gupta v Narendra Kr Gupta, AIR 2011 SC 09 (13).
301 Swami Atmananda v Sri RK Tapovanam, AIR 2005 SC 2392 (2401).
302 Commission of Endowments v Vittal Rao, AIR 2005 SC 454 (465).
303 Anwar Khan v State of MP, AIR 1966 SC 1637 (1641); see also Shantabai v State of Bombay,
AIR 1958 SC 532 ; Society of Medical Officers of Health v Hope, 1960 AC 551 ; Broken Hill v
Municipal Council, 1926 AC 64 ; Mohanlal v CIT, AIR 1949 PC 311 ; Hoystead v Commr of
Taxation, 1926 AC 155 .
304 Dr Rao VBJ Chelikani v Govt of AP, 2010 (2) ALT 94 (125) (DB).
305 KV George v Secretary to Govt, AIR 1990 SC 53 (59).
306 Neeraj Munjal v Atul Grover, AIR 2005 SC 2867 (2871).
307 Premier Tyres Limited v Kerala State Road Transport, AIR 1993 SC 1202 .
308 Radhaswami SS Bagh, Agra v CIT, AIR 1992 SC 377 (382) : (1992) 1 SCC 659 .
309 MM Ipah v CIT, Madras, AIR 1968 SC 317 (325) : (1968) 1 SCR 65 .
310 CIT v Durga Prasad More, AIR 1971 SC 2439 (2443) : (1971) 82 ITR 540 .
311 BSNL v UOI, AIR 2006 SC 1383 (1390).
312 Burn & Co v Their Employees, AIR 1957 SC 38 (42) : 1957 SCR 781 : (1957) 1 LLJ 226 .
313 Workmen, Hindustan Lever Ltd v Management, AIR 1984 SC 516 (525) : (1984) 1 SCC 728 .
314 L Singh R Singh Rajput v Asst Exe Engr, AIR 2005 SC 2175 (2177).
315 Pondicherry Khadi & Village Industries Board v Kutothangan, AIR 2003 SC 4701 (4703).
316 UOI v V Pundarikakshundu, AIR 2003 SC 3209 (3216).
318 Surajmal v Radheyshyam, AIR 1988 SC 1345 : (1988) 3 SCC 18 .
319 V Shankarayya v NS Pattadadevam, AIR 1995 SC 2187 (2189).
320 Rajrani v Dwarkanath, AIR 1953 SC 205 (208) : 1953 SCR 913 .
321 PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001 : 1995 Supp (4) SCC 286 .
322 Sobhag Singh v Jai Singh, AIR 1968 SC 1328 (1331) : (1968) 2 SCR 848 .
323 Ashok Kumar Srivastava v National Insurance Co Ltd, AIR 1998 SC 2046 : (1998) 4 SCC 361 :
(1998) 2 LLN 987 .
324 Bangalore W & C Mills v Workmen, AIR 1968 SC 585 (590) : (1968) 1 SCR 581 .
325 Workman v Straw Board Mfg Co, AIR 1974 SC 1132 (1140) : (1974) 4 SCC 681 : 1974 Lab IC
730 .
326 Prabha Singh Surjit Singh v Sanka Narasimha Rao, AIR 1957 AP 992 . See also Jodhan v
Board of Revenue, UP, AIR 1967 All 442 .
327 Maganbhai v Chetan Lal, AIR 1968 Raj 81 .
328 Ibid.
329 (1907) 9 Bom LJ 274.
330 Lachhmi v Bhulli, AIR 1927 Lah 289 . See also Manohar Vinayak v Laxman Anadrao
Deshmukh, AIR 1947 Nag 248 .
331 Sheodan Singh v Daryao Kunwar, AIR 1966 SC 1332 . See also AIR 1967 All 442 .
332 AIR 1977 SC 1268 at p 1273 : (1977) 2 SCC 181 at p 188.
333 Shri Ram Chandra Mission v P Rajagopalachari, (2008) 15 SCC 533 (537).
334 Mylavarapu C Sanyasi Prasad Rao v Runku Lakshamayya, AIR 1977 AP 143 .
335 Gulab Bai v Manphool Bai, AIR 1962 SC 214 (218) : (1962) 3 SCR 483 .
336 Sheodan Singh v Daryao Kumar, AIR 1966 SC 1332 : (1966) 3 SCR 300 .
337 Mohd Khalid v Chief Commissioner, AIR 1968 Del 13 : 69 PLR (D) 279.
338 Raj Lakshmi Dasi v Banamali Sen, AIR 1953 SC 33 (40) : 1953 SCR 154 .
339 Sulochana Amma v Narayanan Nair, AIR 1994 SC 152 (155) : (1994) 2 SCC 14 .
340 Rajendra Kumar v Kalyan, AIR 2000 SC 3335 (3341) : (2000) 8 SCC 99 ; see also Jose Da
Costa v Bascora SS Narconium, AIR 1975 SC 1843 : (1976) 2 SCC 197 .
341 Isher Singh v Sarwan Singh, AIR 1965 SC 948 (949, 950).
342 Sajjadnashin Syed Md BE Edr v Musa Dadabhai Ummer, AIR 2000 SC 1238 (1243) : (2000) 3
SCC 350 .
343 Narayani v Durgalal, AIR 1968 Raj 94 .
344 Benaras Ice Factory v Amar Chand Vadnagar, AIR 1961 Cal 422 .
345 Narayani v Durgalal, AIR 1968 Raj 94 ; See also Gandhara Transport Co Ltd v State of Punjab,
AIR 1966 Punj 354 .
346 Laxman v Saraswathi, AIR 1959 Bom 125 : 60 Bom LR 382.
347 Laxman Prasad v CIT, AIR 1963 All 172 .
348 UOI v Ramesh Gandhi, (2012) 1 SCC 476 .
349 Purushottam Das Tandon v Military Estate Officer, AIR 2014 SC 3555 .
350 State of WB v Hemant Kumar, AIR 1966 SC 1061 (1066) : 1963 Supp (2) SCR 542 : 1966
CrLJ 805 .
351 Tarini Charan Bhattacharjee v Kedar Nath Haldar, AIR 1928 Cal 777 (FB).
352 Bhagwan Dass Sharma v Gaya Sah, AIR 1967 Pat 254 .
353 Mohanlal v Binoy K Mukharjee, AIR 1953 SC 65 (72, 73) : 1953 SCR 377 : (1953) 1 MLJ 449 .
354 Subramaniam Swamy v State of Tamil Nadu, (2014) 5 SCC 75 : AIR 2015 SC 460 .
355 Supreme Court Employees Welfare Assn v UOI, AIR 1990 SC 334 (345) : (1989) 4 SCC 187 .
356 Nanda Lal Roy v Pramatha Nath Roy, AIR 1933 Cal 222 .
357 Abdul Gani v Nabendra Kishore Roy, AIR 1930 Cal 47 .
358 Vithal Yashawant v Sikandar Khan, AIR 1963 SC 385 : (1963) 2 SCR 285 .
359 Lala Matadin v A Narayanan, (1970) 2 SCR 90 .
360 Baldevdas Shivlal v Filmistan Distributors (India) Pvt Ltd, AIR 1970 SC 406 : (1969) 2 SCC
201 .
361 Lonankutty v Thomman, AIR 1976 SC 1645 (1649) : (1976) 3 SCC 528 .
362 Hoshnak Singh v UOI, AIR 1979 SC 1328 (1332) : (1979) 3 SCC 135 .
363 Chanchal Kr Tiwari v Hari Shankar, 2010 (6) All WC 6000 (DB).
364 Direct Recruit clause II Engineering Officers Asson v State of Maharashtra, AIR 1990 SC 1607
(1624) : (1990) 2 SCC 715 .
365 Amalgamated Coalfields v Janapada Sabha, AIR 1964 SC 1013 (1018, 1020) : 1963 Supp (1)
SCR 172 .
366 Hari Chand v Faridabad Complex, Admn, AIR 2005 SC 2429 (2432).
367 LK Trust VEDC Ltd, AIR 2011 SC 2060 (2070).
368 UOI v Nanak Singh, AIR 1968 SC 1370 : (1968) 2 SCR 887 ; see also Abdullah Ashgar v
Ganesh Das, AIR 1917 PC 204 .
369 Raja Jagannath v State of UP, AIR 1962 SC 1563 (1567) : (1963) 1 SCR 220 : 1962 ALJ 799 .
370 Haryana State Co-op Land Development Bank v Neelam, AIR 2005 SC 1843 (1846); Sarjuja
Transport Service v STAT Gwalior, AIR 1987 SC 88 , (relied on).
371 GK Dudani v SD Sharma, AIR 1986 SC 1455 (1463) : 1986 Supp SCC 239 : 1986 Lab IC 1454
: (1986) 2 SLR 636 .
372 B Prabhakar Rao v State of AP, AIR 1986 SC 210 (227) : 1985 Supp SCC 432 : 1986 SCC
(L&S) 49 .
373 Niranjan Singh v State of MP, AIR 1972 SC 2215 : (1972) 2 SCC 542 : (1973) 1 SCR 691 ;
Ghulam Sarvar v UOI, AIR 1967 SC 1335 ; Nazul Ali Molla v State of WB, AIR 1969 NSC 182 (relied
on).
374 Punjab Coop Bank v RS Bhatia, AIR 1975 SC 1898 : (1975) 4 SCC 696 : 1975 Lab IC 1439 .
375 Alluri China Bapanna v Sri Mutangi Jaggiah, AIR 1939 Mad 818 .
376 1960 All LJ 254.
377 Chatter Singh v Roshan Singh, AIR 1946 Nag 277 .
378 Abdul Wahab v Mustafa Khan, AIR 1935 Lah 753 .
379 KSB Ali v State of AP, 2007 (6) ALT 647 (665) (DB).
380 Alka Gupta v Narendra K Gupta, AIR 2011 SC 09 (15).
381 Ramchandra Dagdu Sonavane v Vithu Hira Mahar, AIR 2010 SC 818 (828) : (2009) 10 SCC
273 .
382 Konda Lakshmana Bapuji v Govt of AP, AIR 2002 SC 1012 (1022) : (2002) 3 SCC 258 .
383 UOI v Manak Singh, AIR 1968 SC 1370 : (1968) 2 SCR 867 : (1970) 1 LLJ 10 .
384 Aanaimuthm Thevar v Alagaumal, AIR 2005 SC 4004 (4009-10).
385 Nirmal E Horo v Jahan Ara, AIR 1973 SC 1406 (1409) : (1973) 2 SCC 189 .
386 Nawab Hussain v State of UP, AIR 1969 All 466 .
387 SG Muley v State of Maharashtra, AIR 1996 SC 61 : 1995 Supp (4) SCC 702 .
388 Phool Chand Sharma v Chandra Shanker Pathak, AIR 1964 SC 782 ; India Aluminium Co v CIT,
AIR 1962 SC 1619 : (1961) 43 ITR 532 ; Daryao v State of UP, AIR 1961 SC 1457 : (1962) 1 SCR
574 (relied on).
389 Prem Lata v Lakshman Prasad, AIR 1970 SC 1525 (1529) : (1970) 3 SCC 440 .
390 Rajeshwari Amma v Joseph, AIR 1995 SC 719 : (1995) 2 SCC 159 .
391 Karnail Singh v Viru Mal, AIR 1943 Lah 189 .
392 Dulabibi v Parmanand Das, AIR 1940 Pat 251 .
393 Mohanlal v Binoy K Mukharjee, AIR 1953 SC 65 (71, 72).
394 Asrar Ahmed v Duryah Committee, Ajmer, AIR 1947 PC 1 . See also (1969) 1 MLJ 415 and
1971 Mah LJ 215 .
395 Alagam Mai v Veerappa, AIR 1956 Mad 428 : (1956) PM 428.
396 Ekram v Holodhur, (1873) 3 Cal 271 .
397 See Mulla's Code of Civil Procedure , p 26.
398 Har Swarup v Anand Swarup, AIR 1942 All 410 : (1942) All 624 ; see also Ajai Yarma v Ram
Bharosa, AIR 1951 All 704 (FB).
399 AIR 1980 SC 161 at p 164 : (1980) 1 SCC 290 .
400 Jasraj Indersingh v Hemraj Multanchand, AIR 1977 SC 1011 (1017) : (1977) 2 SCC 155 .
401 Gopal Rao v Sitharam Amma, AIR 1965 SC 1970 : (1965) 3 SCR 122 .
402 UP State Road Transport Corpn v State of UP, AIR 2005 SC 446 (451).
403 AJ Pinto v Sahebbi Kom M Saheb, AIR 1971 SC 2070 (2073) : (1972) 4 SCC 238 .
404 Shivashankar v Baikunth, AIR 1969 SC 971 (973) : (1969) 1 SCC 718 ; see also P Venkata
Subba Rao v V Jaganatha Rao, AIR 1967 SC 591 : (1964) 2 SCR 310 .
405 International Woollen Mills v Standard Wool UK Ltd, AIR 2001 SC 2134 : (2001) 5 SCC 265 .
406 Sheodan Singh v Daryao Kunwar, AIR 1966 SC 1332 (1339) : (1966) 3 SCR 300 : 1966 ALJ
578 ; see also Sheosagar Singh v Sitaram, (1897) 24 IA 50 (PC); Abdullah A Ali v Ganesh Das, AIR
1917 PC 201 .
407 Shankar v Balkrishna, AIR 1954 SC 352 (355); see also Sunderabai v Devaji, AIR 1954 SC 82 :
(1953) 2 MLJ 782 .
408 Shankar Lal Patwari v Hiralal Muraka, AIR 1950 PC 80 .
409 Darshan Prasad v Civil Judge II Gorakhpur, AIR 1992 SC 967 .
410 Naraini v Durga Lal, AIR 1968 Raj 94 .
411 Ishwardas v State of MP, AIR 1979 SC 551 (553) : (1979) 4 SCC 163 .
412 Deva Ram v Ishwar Chand, AIR 1996 SC 378 (382) : (1995) 6 SCC 733 .
413 (1968) 21 STC 263 : 1968 MgLJ 250 : 1968 MPLJ 165 (SC).
414 Kalipada De v Dwijapad Dass, AIR 1930 PC 22 : 34 CWN 201.
415 J Kotamma v Sinhachalam, AIR 1969 AP 76 (DB).
416 (1910) 8 Ind Cas 161(Mad-DB).
417 AIR 1927 PC 108 , Ibid.
418 Hindustan Petroleum Corpn v YG Joshi, AIR 1991 SC 933 : 1991 Supp (2) SCC 592 .
419 Junior Telecom Officers Forum v UOI, AIR 1993 SC 787 (796) : 1993 Supp (4) SCC 693 :
(1993) 2 LLJ 856 .
420 Narendra AM Petkar v Shahaji B Petkar, 2010 AIHC 382 (386) (Bom) : AIR 2009 Bom 165 ,
see also Payappa Sree Dharmasastha Temple Advisory Committee v AK Joseph, (2009) 14 SCC
628 .
421 Nityanand Kar v State of Orissa, AIR 1991 SC 1134 : 1991 Supp (2) SCC 516 : 1991 Lab IC
782 .
422 Surayya Begum v Mohd Usman, (1991) 3 SCC 114 : 1991 ALR 545 .
423 Venkateshwara Prabhu v Krishna Prabhu, AIR 1977 SC 1268 : (1977) 2 SCC 181 : (1977) 2
SCR 636 .
424 R Venugopala Naidu v VN Charities, AIR 1990 SC 444 (447) : 1989 Supp (2) SCC 356 .
425 Shiramani Gurudwarap Committee v Harnam Singh, AIR 2003 SC 3349 (3357) : (2003) 11
SCC 377 .
426 Shiromani GP Committee v Harnam Singh, AIR 2003 SC 3349 (3357).
427 Forward Construciton Co v Prabhat Mandal, AIR 1986 SC 391 (398) : (1986) 1 SCC 100 .
428 Janakirama v Nilakanta, AIR 1962 SC 633 (641).
429 Amrit Sagar Gupta v Sudesh Bihari Lal, AIR 1970 SC 5 : (1969) 1 SCC 810 .
430 Priombada Devi v Johuri Lal, AIR 1951 Cal 574 .
431 J Anantha v Bapanna Rao, AIR 1959 AP 448 .
432 Durga Devi v Shanti Prakash, AIR 1961 Punj 229 : (1960) 1 Punj 731.
433 AIR 1977 SC 1268 at p 1974 : (1977) 2 SCC 181 at pp 188–89.
434 Mahboob Sahab v Syed Ismail, AIR 1995 SC 1205 (1209) : (1995) 3 SCC 693 .
435 Shashibhushan Pd Misra v Babuaji Rai, AIR 1970 SC 809 (811) : (1969) 2 SCR 971 ; Munni
Bibi v Trilokinath, AIR 1931 PC 114 (relied on).
436 Makhija Constructions & CE Pvt Ltd v Indore Development Authority, AIR 2005 SC 2499
(2502), See also; Ram Babu v Ganpatia, 2005 AIHC 3201 (Bom); Atul Mahto v Jhunkibala
Mahatawain, 2005 AIHC 3814 (Jhar); Ismail v Zahir Ahmad, 2005 AIHC 4050 (All).
437 Praduman Singh v State of Punjab, AIR 1958 Punj 63 . See also Devika v Raghvan, AIR 1961
Ker 224 .
438 Iftikhar Ahmad v Syed Meharban Ali, AIR 1974 SC 749 (751) : (1974) 2 SCC 151 : (1974) 3
SCR 464 ; see also Chandu Lal v Khalilur Rahaman, AIR 1950 PC 17 .
439 State of Punjab v BD Kaushal, AIR 1971 SC 1676 : (1970) 3 SCC 656 : (1971) 1 LLJ 31 ; see
also Medapati Surayya v Tondapu BGR Reddi, AIR 1948 PC 3 .
440 Sardarji M Waghela v UOI, 2009 (2) Guj LR 1399 (DB).
441 Ramesh Ch Sankla v Vikram Cement, (2008) 14 SCC 58 (76).
442 See Mulla's Code of Civil Procedure (1972) Students Edn, p 23; see also section 115 of
Indian Evidence Act.
443 Sitaram v Amir Begum, (1886) 8 All 324 .
444 Chief Justice, AP v LVA Dikshitulu, AIR 1979 SC 193 (198) : (1979) 2 SCC 34 : 1978 Lab IC
1672 .
445 BK Jain v A Kumar, AIR 2005 SC 626 (631).
446 Tirumala Tirupati Devasthanam v T Venkata Padmavathamma, 2007 (6) ALT 472 (506) (DB).
447 Baboo v Kirpa, AIR 1950 All 488 .
448 Mohd Vijahath Hussain v Special Court, 2007 (6) ALT 667 (674) (DB).
449 Pradeep v State of Maharashtra, 2010 (5) Mah LJ 287 (793) (DB).
450 GN Nayak v Goa University, AIR 2002 SC 790 (793) : (2002) 2 SCC 712 : 2002 SCC (L&S) 350
.
452 K Rajamouli v AVKN Swamy, AIR 2001 SC 2316 : (2001) 5 SCC 37 .
453 Ganesh Prasad B Lahti v Sanjeev Prasad J Chaurasiya, AIR 2004 SC 4158 (4160).
454 Delhi Golf Club Ltd v NDMC, AIR 2001 SC 615 (619) : (2001) 2 SCC 633 .
455 Shiv Pujan Pd v State of UP, 2007 (1) ALJ 14 (All-DB).
456 Noharlal Verma v Distt Coop Central Bank Ltd, Jagalpur, AIR 2009 SC 664 (666).
457 N Suresh Nathan v UOI, AIR 2010 SC 2171 (2176), see also DK Enterprises v Employees
State Insurance Corpn, AIR 2009 (NOC) 1462 (Del).
458 UOI v Pramod Gupta, AIR 2005 SC 3708 (3716).
459 Gram Panchayat, Naulakha v Ujagar Singh, AIR 2000 SC 3272 : (2000) 7 SCC 543 .
460 Ajit Chopra v Sadhu Ram, AIR 2000 SC 212 (218) : (2000) 1 SCC 114 .
461 Gram Panchayat, Naulakha v Ujagar Singh, AIR 2000 SC 3172 (3174) : (2000) 7 SCC 543 .
462 Joginder Pal v Indian Red Cross Society, AIR 2000 SC 3279 (3282) : (2000) 8 SCC 143 .
463 Vijayabai v Sriram Tukaram, AIR 1999 SC 431 (435).
464 State of Punjab v Ram Lubhaya Bagga, AIR 1998 SC 1703 (1707) : (1998) 4 SCC 117 .
465 Sankaranarayanan Potti v K Sreedevi, AIR 1998 SC 1808 .
466 Sayyed Ali v Andhra Pradesh Wakf Board Hyderabad, AIR 1998 SC 972 (975, 977).
467 State of UP v Roop Lal Sharma, AIR 1997 SC 697 (699).
468 Chandrabhai K Bhoir v Krishna A Bhoir, AIR 2009 SC 1647 : (2009) 2 SCC 315 .
469 Haryana State Electricity Board v Hanuman Rice Mills, Dhanauri, AIR 2010 SC 3835 (3837) :
(2010) 9 SCC 145 .
470 Sarva Shramik Singh v Indian Oil Corpn Ltd, AIR 2009 SC 2355 .
471 Sher Singh v Gamdoor Singh, AIR 1997 SC 1333 : (1997) 2 SCC 485 .
472 UOI v Sher Singh, AIR 1997 SC 1796 : (1997) 3 SCC 555 .
473 Green View Tea & Industries v Collector, Golaghat, AIR 2004 SC 1738 (1740).
474 Comorin Match Industries (P) Ltd v State of Tamil Nadu, AIR 1996 SC 1916 (1924) : (1996) 4
SCC 281 .
475 Brij Narain Singh v Adya Prasad, AIR 2008 SC 1553 : (2008) 11 SCC 558 .
476 Food Corpn of India v Ashis Kr Ganguly, AIR 2009 SC 2582 .
477 Md Salahuddin Khan v Bibi Bansi Fatma, 2008 (4) Pat LJR 249 (250) (DB).
478 Fatma Bibi Ahmed Patel v State of Gujrat, (2008) 6 SCC 789 (796) : AIR 2008 SC 2392 .
479 Kaikhosrou (Chick) KFI Inhabitant v UOI, 2009 AIHC 3301 (3312) (Bom-DB) : 2010 (2) Rent
LR 545 (558) (DB).
480 Begam S Rashid v State of MP, AIR 2006 SC 1283 (1285).
481 Bajranglal S Ruta v Shashi KN Ruta, AIR 2004 SC 2546 (2554).
482 Mahboob Sahab v Syed Ismail, AIR 1995 SC 1205 (1209) : (1995) 3 SCC 693 .
483 Inacio Martins v Narain Hari Naik, AIR 1993 SC 1756 (1758, 1759).
484 PMC Kunhiraman Nair v CR Naganatha Iyer, AIR 1993 SC 307 .
485 Ramji Gupta v Gopi Krishan Agrawal, AIR 2013 SC 3099 .
486 Ramesh Chandra v Shiv Charan Dass, AIR 1991 SC 264 : 1990 Supp SCC 633 .
487 LICI v Gangadhar V Ranade, AIR 1990 SC 185 (192).
488 PD Sharma v State Bank of India, AIR 1968 SC 985 (987); see also Daryao v State of UP, AIR
1961 SC 1457 : (1962) 1 SCR 574 .
489 Shivashankar v Baikunth, AIR 1969 SC 971 (973) : (1969) 1 SCC 718 .
490 Subba Rao v Jagannadha Rao, AIR 1967 SC 591 (594).
491 Mangru Mahto v Tarakunathji, AIR 1967 SC 1390 (1392) : (1967) 3 SCR 125 .
492 Amar Chand Butail v UOI, AIR 1964 SC 1658 (1661) : 67 Punj LR 90.
493 Pujari Bai v Madan Gopal, AIR 1989 SC 1764 (1769) : (1989) 3 SCC 433 .
494 Shankarrao Dajisaheb Shinde v Vithalrao Ganpatrao Shinde, AIR 1989 SC 879 (881).
495 Subbanna v Subbanna, AIR 1965 SC 1325 (1332) : (1965) 2 SCR 661 .
496 Shantilal Rampuria v Vega Trading Corpn, AIR 1989 SC 1819 (1821).
497 Gangabai v Chhabubai, AIR 1982 SC 20 (23) : (1982) 1 SCC 4 : 1982 Mah IIJ 1.
498 State of UP v Civil Judge, Nainital, AIR 1987 SC 16 (18) : (1986) 4 SCC 558 .
499 Prahlad Singh v Sukhdeo Singh, AIR 1987 SC 1145 : (1987) 1 SCC 727 .
500 UPSRTC v O Verma, AIR 2005 SC 2250 (2256).
501 National Institute of Technology v Niraj Kumar Singh, AIR 2007 SC 115 ; UOI v Association of
Unified Telecom Service Providers of India, AIR 2012 SC 1693 (at 1713).
502 Ram Prakash v Mohd Ali Khan, AIR 1973 SC 1269 : (1973) 2 SCC 163 : (1973) 3 SCR 893 .
503 Jatindra Chandra Deb v Ashim Kumar Ghosh, AIR 2015 Gau 136 .
504 Koshal Pal v Mohan Lal, AIR 1976 SC 688 (693) : (1976) 1 SCC 449 : (1976) 2 SCR 827 ; see
also Sheosagar Singh v S Singh, (1897) 24 IA 50 (PC).
505 Mumbai Kamgar Sabha v Abdulbhai, AIR 1976 SC 1455 (1469) : (1976) 3 SCC 832 .
506 Tilokchand Motichand v HB Munshi, AIR 1970 SC 898 : (1969) 1 SCC 110 .
507 Chandra Kant Misir v Balakrishna Misir, AIR 1970 SC 1536 (1539) : (1970) 3 SCC 446 .
508 State of Punjab v BD Kaushal, AIR 1971 SC 1676 ; UOI v Nanak Singh, AIR 1968 SC 1370 :
(1968) 2 SCR 887 : (1970) 1 LLJ 10 (followed).
510 Agra Electric Supply Co v Alladin, AIR 1970 SC 512 (517) : (1969) 2 SCC 598 : (1969) 2 LLJ
540 .
511 Mathura Prasad v Dossibai NB Jeejeebhoy, AIR 1971 SC 2355 (2359) : (1970) 1 SCC 613 .
512 Baldevdas v Filmistan Distributors, AIR 1970 SC 406 (409) : (1969) 2 SCC 201 .
513 Pandurang M Kavade v Annaji B Bokil, AIR 1971 SC 2228 (2232) : (1971) 3 SCC 530 .
514 Amritsar Municipality v State of Punjab, AIR 1969 SC 1100 (1103).
515 Ram Govinda v Bhakta Bala, AIR 1971 SC 664 (670) : (1971) 1 SCC 387 .
516 Adi Pherozshah Gandhi v HM Seervai, AIR 1971 SC 385 (396) : (1970) 2 SCC 484 .
517 UP Electric Supply Co v TN Chatterjee, AIR 1972 SC 1201 (1209); see also Satyadhyan
Ghoshal v D Devi, AIR 1960 SC 941 : (1960) 3 SCR 590 (relied on).
518 Ragho Prasad Gupta v Shrikrishna Poddar, AIR 1969 SC 316 (318) : (1969) 1 SCR 834 : 1969
BLJR 426 .
519 Bhagwan Dayal v Reoti, AIR 1962 SC 287 : (1962) 3 SCR 440 .
520 Hem Nolini v Isolyne Sarojbasini, AIR 1962 SC 1471 (1475) : 1962 Supp (3) SCR 294 : 1962
ALJ 695 .
521 Kewal Singh v Lajwanti, AIR 1980 SC 161 (164) : (1980) 1 SCC 290 .
522 N Subramaniya Iyer v Official Receiver, AIR 1958 SC 1 (5) : 1958 SCR 257 .
523 Narhari v Shankar, AIR 1953 SC 419 : 1950 SCR 754 .
524 Bejoy Gopal v Pratul Chandra, AIR 1953 SC 153 (155).
525 Kirit Kumar Chamanlal Kundaliya v State of Gujarat, AIR 1981 SC 1621 (1623) : (1981) 2 SCC
436 : 1981 CrLJ 1267 .
526 Korin v Indian Cables Co Ltd, AIR 1978 SC 312 (314) : (1978) 1 SCC 98 .
527 Avtar Singh v Jagjit Singh, AIR 1979 SC 1911 : (1979) 4 SCC 83 .
528 Sukhrani v Harishankar, AIR 1979 SC 1436 (1438) : (1979) 2 SCC 463 .
529 Raghunath Pradhan v Damodar Mahapatra, AIR 1978 SC 1820 (1824) : (1979) 1 SCC 508 .
530 Dachepalli Kondalu v Peddinti Chandrasekhar, AIR 2014 AP 124 .
531 Jai Singh Jairam Tyagi v Maniram Chand, AIR 1980 SC 1201 (1205) : (1980) 3 SCC 162 .
532 Ahmed Mohiuddin v Shabana Yasmeen, AIR 2018 Hyd 150 (B) : 2018 (5) ALT 182 .
533 Pankajbhai Rameshbhai Zalavadia v Jethabhai Kalabhai Zalavadia, AIR 2018 SC 490 : 2017
(12) Scale 134 .
534 Canara Bank v NG Subbaraya Shetty, AIR 2017 SC 3395 .
535 Ti Tavi v B Chinna Narasimha, (2017) 7 SCC 342 .
536 Abdul Rahman v Prasony Bai, AIR 2003 SC 718 (723) : (2003) 1 SCC 488 .
537 Deewan Singh v Rajendra Pd Ardevi, (2007) 10 SCC 528 (544).
538 Bimala Devi Agarwal v UOI, 2008 (2) Cal LJ 716 (719-20) (DB).
539 VO Vakkan v George, 2010 (3) Bank J 1018 (1024) (DB).
540 Mamta Kumari v State of Bihar, 2010 (2) Pat LJR 666 (678) (DB).
541 K Vishwanathan v R App Rao Chettiar, 2010 (4) Civil LJ 271 (275) (DB).
542 Premier Cable Co Ltd v Govt of India, AIR 2002 SC 2418 : (2002) 10 SCC 207 .
543 Amarendra Komalam v Usha Sinha, AIR 2005 SC 2758 (2765).
544 Greater Cochin Development Authority v Leelamma Valson, AIR 2002 SC (952 (955) : (2002)
2 SCC 573 .
545 Smita Conductors Ltd v Euro Alloys Ltd, AIR 2001 SC 3730 (3735) : (2001) 2 SCC 728 .
546 Rajendra Kumar v Kalyan, AIR 2000 SC 3335 (3343) : (2000) 8 SCC 99 .
547 PV Jose v Kanickammal, AIR 2000 SC 2688 : (2000) 9 SCC 350 .
548 Maharashtra Vikrikar Karmchari Sangathan v State of Maharashtra, AIR 2000 SC 622 (630) :
(2000) 2 SCC 552 : 2000 Lab IC 681 .
549 Maharashtra Vikrikar Karmchari Sangathan v State of Maharasthra, AIR 2000 SC 622 (630) :
(2000) 2 SCC 552 : 2000 Lab IC 681 .
550 Nazim Ali v Anjuman Islamia, Chhatarpur, AIR 1999 SC 1098 (1100, 1101) : (1999) 3 SCC 91
.
551 Ferro Alloys Corpn v UOI, AIR 1999 SC 1236 (1246) : (1999) 4 SCC 149 .
552 Wali Mohammed v Rahmat Bee, AIR 1999 SC 1136 (1139); see also Nazim Ali v Anjuman
Islamia, Chhatarpur, AIR 1999 SC 1098 : (1999) 3 SCC 91 .
553 Ashok Kumar v Surjit Kaur, AIR 2014 Del 1 .
554 Pawan Kumar Gupta v Rochiram Nagdeo, AIR 1999 SC 1823 (1827) : (1999) 4 SCC 243 .
555 Saroja v Chinnusamy, (2007) 8 SCC 329 .
556 Vishnu Dutta Sharma v Daya Sapra, (2009) 13 SCC 729 (736).
557 Raju Ramsing Vasave v Mahesh Deorao Bhivapurkar, (2008) 9 SCC 54 .
558 Barkat Ali v Badrinarain, (2008) 4 SCC 615 (617-18).
559 Assocn. of the Residents of MHOW v UOI, 2010 (1) MPLJ 486 (502–04) : AIR 2010 MP 40
(DB).
560 Tumer Srihari v Tumer Padmamma, AIR 2011 AP 88 (93) (DB).
561 Kedar Mishra v State of Bihar, 2011 (1) Pat LJR 1010 (1018) (DB), see also Shyampati Devi v
State of Bihar, 2010 (3) Pat LTR 378.
562 Maharashtra RMT & GK Union v Bombay I & S Labour Board, 2010 (4) Mah LJ 946 (951) (DB).
563 Tapan Kr Mukherjee v Nirmal Kanti Guha, 2009 (1) Cal LJ 160 (165) (DB).
564 Chairman, Board of Trustees for the Port of Calcutta v Iftikhar Khan, 2008 AIHC (NOC) 430
(Cal-DB): MAT No 102 of 2007 dt 21 September 2007 : AIR 2008 (NOC) 61 (Cal-DB).
565 Emkay Exports v Madhusudan Shrikrishna, 2009 AIHC 667 (682) (Bom) (FB).
566 Dadu Dayalu Mahasabba, Jaipur v Mahant Ram Niwas, AIR 2008 SC 2187 : (2008) 11 SCC
753 (761).
567 Lalita Almal v First, Land Acquisition Collector, 2010 AIHC 2384 (2386) (Cal-DB).
568 Harbans Singh v Sant Hari Singh, AIR 2009 SC 1819 : (2009) 2 SCC 526 , see also
Ramchandra Dagolu Sonavane v Vithu Hira Mahar, (2009) 10 SCC 273 .
569 Kiran Tandon v Allahabad Development Authority, AIR 2004 SC 2006 (2010).
570 Ram Prakash v Charan Kaur, AIR 1997 SC 3760 : (1997) 9 SCC 543 .
571 Anil Kumar Mitra v Ganendra Nath Mitra, AIR 1997 SC 3767 : (1997) 9 SCC 725 .
572 State of Punjab v Surinder Kumar & Co, AIR 1997 SC 809 : (1997) 9 SCC 66 .
573 BN Kawale v DB Patil, AIR 1997 SC 122 (123) : (1996) 8 SCC 243 .
574 Nirmaljit Singh v Harnam Singh, AIR 1996 SC 2252 (2254) : (1996) 8 SCC 610 .
575 Church of South India Association v Telugu Church Council, AIR 1996 SC 987 (995) : (1996) 2
SCC 520 .
576 Sulochana Amma v Narayanan Nair, AIR 1994 SC 152 (156) : (1994) 2 SCC 14 .
577 Prithivichand Ramchand Sablok v SY Shinde, AIR 1993 SC 1929 (1933) : (1993) 3 SCC 271 .
578 Federation of Directly Appointed Officers of Indian Rly v UOI, AIR 1993 SC 2422 (2429) :
(1993) 3 SCC 364 : (1993) 2 LLJ 681 .
579 Byram Pestonji Gariwala v Union Bank of India, AIR 1991 SC 2234 (2245) : (1992) 1 SCC 31 :
(1992) 1 BLJR 1 .
580 State of Punjab v Amar Singh, AIR 1974 SC 994 (1007) : (1974) 2 SCC 70 .
581 Prabha Manufacturing Industrial Co-op Society v Banwari Lal, AIR 1989 SC 1101 (1107) :
(1989) 2 SCC 69 .
582 AR Antulay v RS Nayak, AIR 1988 SC 1531 (1544).
583 Ganpat Singh v Kailash Shankar, AIR 1987 SC 1443 (1449) : (1987) 3 SCC 146 .
584 Jai Kishan Das v Nirmala Devi, AIR 1984 SC 589 : (1984) 1 SCC 682 .
585 M Nagabhushana v State of Karnataka, 2010 (6) Kar LJ 134 (144) (DB).
586 Gulam Abbas v State of UP, AIR 1981 SC 2198 (2212) : (1982) 1 SCC 71 : (1982) 1 SCR
1077 .
587 YB Patil v YL Patil, AIR 1977 SC 392 .
588 Kani Ram v Kazani, AIR 1972 SC 1427 (1429); Mathura Pd S Jaiswal v DNB Jeejeebhoy, AIR
1971 SC 2355 : (1971) 1 SCC 613 (Followed).
589 Gangappa G. Gugwad v Rachawwa, AIR 1971 SC 442 (446); Yeshwant Jathar v SKM Khan
Sardesai, AIR 1963 SC 385 (relied on); Shankarlal v Hiralal, AIR 1950 PC 80 (Explained).
590 Jamnadas Harakchand v N Bansilal, AIR 1970 SC 1221 (1223) : (1970) 3 SCC 854 .
591 Virudhunagar Steel Rolling Mills v Madras Govt, AIR 1968 SC 1196 : (1968) 2 SCR 740 : 70
ITR 726.
592 Haji Ismail v Competent Officer, AIR 1967 SC 1244 (1249) : (1967) 3 SCR 134 .
593 Maqbool Alam v Khodaja, AIR 1966 SC 1194 : (1966) 3 SCR 479 : 1966 BLJR 566 ;
Mahijibhai v Manibhai, AIR 1965 SC 1477 : (1965) 2 SCR 436 (relied on).
594 Gulabchand C Parikh v State of Gujarat, AIR 1965 SC 1153 (1167) : (1965) 2 SCR 547 .
595 Official Assignee v Haradagiri B Gowd, AIR 1963 SC 754 (759) : 1963 Supp (1) SCR 809 .
596 Rajendra Jha v Presiding Officer, Lab Court, Dhanbad, AIR 1984 SC 1696 .
597 Gurbax Rai v Punjab National Bank, AIR 1984 SC 1012 (1014) : (1984) 3 SCC 96 .
598 In the matter of: Cauvery Water Disputes Tribunal, AIR 1992 SC 522 (553) : 1993 Supp (1)
SCC 96 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 12. Bar to further suit.
© 2020 LexisNexis
S. 12. Bar to further suit.
Where a plaintiff is precluded by rules from instituting a further suit in respect of any
particular cause of action, he shall not be entitled to institute a suit in respect of such
cause of action in any Court to which this Code applies.
COMMENT.—
The following provisions of the Civil Procedure Code bar a fresh suit in respect of the
same cause of action:
Order II, rule 2; O IX, rule 9; O XXII, rule 9 and O XXIII, rule 1, Code of Civil Procedure,
1908.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 13. When foreign judgment
not conclusive.
© 2020 LexisNexis
S. 13. When foreign judgment not conclusive.
A foreign judgment shall be conclusive as to any matter thereby directly adjudicated

upon between the same parties or between parties under whom they or any of them
claim litigating under the same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect

view of international law or a refusal to recognise the law of599 [India] in cases
in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to
natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
COMMENT.—
Meaning of Foreign judgment.—
The term "foreign judgment" has been defined in section 2(6) of Code of Civil
Procedure as "the judgment of foreign Court". The word "judgment" as used in section
2(6) has the English meaning and not the meaning given to it by section 2(9) of the
Code. In other words, the term "foreign judgment" means the decree or order of a
foreign Court as defined in section 2(5).
The rules laid down in section 13 of Code of Civil Procedure are the rules of substantive
law and not merely of procedure.600
If a violation of any order passed by a Civil Court is made the ground of issuance of a
red corner notice, the Court will enquire as to whether the same has undergone the
tests laid down under sections 13 & 44-A of the Code.601
Foreign judgment, when not conclusive.—

Before a foreign judgment can be valid cause of action for a suit upon it in India it must
be shown that, in the Court by which it was pronounced it conclusively, finally and
forever, established the existence of the right of which it is sought to be made
conclusive evidence in this country.602 In considering whether a judgment of a foreign
Court is conclusive the Courts in India will not inquire whether conclusions recorded
thereby are supported by the evidence or otherwise correct.603
The true basis of the enforcement of a foreign judgment is that the judgment imposes
an obligation upon the defendant. So, there must be a connection between him and the
forum, sufficiently close to make it his duty to perform the obligation.604
The validity of the foreign judgment cannot only be questioned in civil proceedings in
this country but in criminal ones as well.
If the judgment falls under any of the clauses in section 13 then it will cease to be
conclusive as to any matter thereby adjudicated upon and will be open to collateral
attacks on the grounds mentioned in this section.605
Foreign judgment, when conclusive.—
A foreign judgment shall be conclusive on the following six conditions:
(1) Court of competent jurisdiction.—Clause (a) provides that a judgment of a foreign

Court shall not be conclusive where it is not pronounced by a Court of competent
jurisdiction. Whether a foreign Court is of competent jurisdiction within this section has
to be determined according to International law.606 It is well recognised rule of Private
International law that a Court has no jurisdiction to entertain an action for the
determination of the title or to the right to the possession of any immovable property,
situated outside its jurisdiction.607
An award was made in New York and was confirmed by the New York Supreme Court.
Then a suit to enforce the award or judgment was filed in Bombay High Court. It was
not maintainable for (i) since the suit was based on a judgment pronounced in New
York, the cause of action must be said to have arisen at that place beyond the
jurisdiction of the Bombay High Court, and (2) the award according to New York Law
was not final and enforceable and it could not furnish a cause of action.608
In the filed of private international law, the Courts refuse to apply a rule of foreign law
or recognise a foreign judgment or a foreign arbitral award if it is found that the same
is contrary to the public policy of the country in which it is sought to be invoked or
enforced.609
Where the defendant submits to the jurisdiction of foreign Court by filing written
statement, the decree passed by it is valid and executable.610
Even a decree which is pronounced in absentem by a foreign Court is valid and

executable in the country of the forum by which it was pronounced, when authorised by
special legislation.611
A foreign judgment which has become final and conclusive between parties is not
impeachable either on facts or law except on limited grounds under section 13. Even in
regard to an interlocutory order, Indian Courts have to give due weight to such order
unless it falls under any of the exceptions under section 13 of the Code of Civil
Procedure, 1908.612
In a personal action against the defendant residing within jurisdiction, the subsequent
death of the defendant does not oust the jurisdiction of the Court to proceed against
his non-residential legal representatives.613
(2) Judgment on merits.—This Clause 6 lays down that foreign judgment in order to be
conclusive must have been given on the merits of the case. Only in the case it will
operate as res judicata. The Courts in India have the power to examine whether the
judgment has been given on merits or not. The true test for determining the question
as to whether the judgment has been given on merits is to see whether it has been
given as penalty for any conduct of the defendant or whether it is based on a
consideration of the truth or otherwise of the plaintiff's case.614
Where the evidence adduced by the plaintiff has not been considered, the judgment will
not be on merit. The burden of proof lies on the party contending the fact that a foreign
judgment is not on merit.615
(3) Judgment founded on an incorrect view of international law.—According to Clause

(c), judgment based upon an incorrect view of International law, or refusal to recognise
the law of India where such law is applicable is not conclusive. Thus, where in a suit
filed in England on the basis of a contract entered into in India, the English Court
erroneously proceeds on the view that the case is governed by English and not Indian
law, the judgment must be held to be based on an incorrect view of International
law.616
(4) Judgment opposed to natural justice.—Again a foreign judgment shall not be

conclusive within the meaning of this section, if the proceedings in which the judgment
was obtained are opposed to natural justice. Thus, a judgment obtained without giving
notice of the suit to the defendant or without giving him a reasonable opportunity of
presenting his case is contrary to the principles of natural justice.617 Bias on the part of
judge would also vitiate the proceedings on the grounds of principles of natural justice.
The burden, however, would be on the party setting up case of bias by proving the same
by cogent evidence.618
In the custody of a minor son case, the spouses, who married each other in India, made
England their home. Order of English High Court was in favour of the mother. The
father removed the son to India. The jurisdiction of English Court was not ousted.
Welfare of the son was held to be served by handling over custody to the mother. In
such matters the law of that place must govern which has the closest concern with the
well-being of the spouses and the offsprings of the marriage.619
(5) Judgment obtained by fraud.—Where any judgment has been obtained by fraud, that
shall not be conclusive. Party to an action can impeach the judgment on the ground of
fraud, for it vitiates the most solemn transactions. Fraud, to attract Clause (e), should
be one connected with the procedure in the suit. Fraud invalidating a foreign judgment
may be either fraud on the part of the party in whose favour the judgment is given or
fraud on the part of Court pronouncing the judgment.620
The fraud as to the jurisdiction of the foreign Court is a vital consideration in the
recognition of the decree passed by the Court whether in rem or in personam.621 A
foreign decree of divorce obtained by the husband from the Nevada State Court in
U.S.A. in absentum of the wife without her submitting to its jurisdiction will not be valid
and binding on a Criminal Court in proceedings for maintenance under section 488
(old), Code of Civil Procedure, 1908. When it is found from the facts on record that the
decree of divorce was obtained by fraud or by making a false representation as to a
jurisdictional fact.622
(6) Judgment founded on a breach of any law in force in India.—If by means of a foreign
judgment, a breach of any law in force in India has been committed, the judgment shall
not be conclusive. Thus, a foreign judgment, for a gambling debt would presumably not
be enforced in India.623 However, a foreign judgment on a claim which is barred
according to Indian law cannot be said to be based upon breach of Indian law.
Execution of foreign judgment.—
Where a foreign judgment is sought to be enforced in execution under sections 44 and

44-A it will be open to the judgment-debtor to raise all objections which would have
been open to him under section 13 if a suit had been filed on the judgment.624
The "comity of courts" principle ensures that foreign judgments and orders are
unconditionally conclusive of the matter in controversy. Interest and welfare of the
minor being paramount, a competent court in this country is entitled and indeed duty
bound to examine a matter independently taking the foreign judgments, if any, as an
input for its final adjudication.625
A foreign judgment-debtor had deposited money in the foreign Court and agreed that
the deposit be adjusted in pro tanto satisfaction of the decree. In pursuance of that
decree, the decree-holder applied for payment and adjustment. In the suit filed in India
by the decree-holder to enforce the decree, the Courts here will give credit to the
judgment-debtor for the amount deposited on equitable considerations. Even without
any order of adjustment of the foreign Court such a credit would be given with a
direction that only the decree holder would be able to withdraw the deposit.626
Submission to Foreign Jurisdiction.—
A defendant had submitted to the jurisdiction of a foreign Court by filling written

statement. A ex parte decree was passed by it and transferred to the foreign Court. It
was valid and the order of transfer was also valid and effective so that the decree could
be executed against him.
An ex parte decree of a foreign Court on default of depositing amount which was made
a condition of granting have seems to be are on merits.627
It has been held that a foreign judgment, if otherwise valid, must be recognised, even if
it was passed ex parte or on compromise.628
599 Subs. for words "the States" by Act 2 of 1951, section 3 (w.e.f. 1-4-1951).
600 Maloji Nar Singh Rao v Shankar Saran, AIR 1962 SC 1737 (1743) : (1963) 2 SCR 577 : (1962)
2 All 991 .
601 Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 (588).
602 KB Walker v Gladys P Walker, AIR 1935 Rang 284 (DB).
603 Vishwanathan v Abdul Mazid, AIR 1963 SC 1 .
604 Sankaran v Lakshmi, AIR 1974 SC 1764 (1777) : (1975) 3 SCC 351 : (1975) 1 SCR 57 .
605 Satya v Teja Singh, AIR 1975 SC 105 (117) : (1975) 1 SCC 120 : 1975 CrLJ 52 .
606 Ibid; See also AIR 1974 SC 1764 (1776) : (1975) 3 SCC 351 .
607 Ibid; See also Parvathi Amma v Rama Kurup, AIR 1964 Ker 4 .
608 Badat & Co v East India Trading Co, AIR 1964 SC 538 (552) : (1964) 4 SCR 19 .
609 Renusagar Power Co Ltd v General Electric Co, AIR 1994 SC 860 (885) : 1994 Supp (1) SCC
644 .
610 Narhari Shivram Shet Narvekar v Pannalal, AIR 1977 SC 164 (167) : (1976) 3 SCC 203 .
611 Lalji Raja & Sons v Hansraj Nathuram, AIR 1971 SC 974 (977).
612 Alcon Electronics (P) Ltd v Celem SA of France, AIR 2017 SC 1 (2017) 2 SCC 253 : 2017 134
RD 521 : 2017 (4) SCJ 203 .
613 Andhra Bank v R Sriniwasan, AIR 1962 SC 232 (238) : (1962) 3 SCR 391 : (1963) 1 MLJ (SC)
14.
614 I&G Investment Trust v Raja of Khalikote, AIR 1952 Cal 508 .
615 International Woollen Mills v Standard Wool (UK) Ltd, AIR 2001 SC 2134 (2138) : (2001) 5
SCC 265 .
616 Ibid.
617 I&G Investment Trust v Raja of Khalikote, AIR 1952 Cal 508 .
618 Vishwanathan v Abdul Majid, AIR 1963 SC 1 .
619 Surinder Kaur v Harbax Singh, AIR 1984 SC 1224 (1226) : (1984) 3 SCC 698 : 1984 SCC (Cri)
464 .
620 Abdul Wazid v Vishwanath, AIR 1953 Mad 261 .
621 Satya v Teja Singh, AIR 1975 SC 105 (117) : (1975) 1 SCC 120 : 1975 SCC (Cri) 50 .
622 Satya v Teja Singh, AIR 1975 SC 105 (117) : (1975) 1 SCC 120 : 1975 SCC (Cri) 50 .
623 See Mulla's Code of Civil Procedure (1972) Students Edn, p 61. See also Sankaran v
Lakshmi, AIR 1974 SC 1764 : (1975) 1 SCC 351 .
624 Gauri Lal v Jugalkishore, AIR 1959 Punj 265 (DB).
625 Ruchi Manjoo v Sanjeev Manjoo, AIR 2011 SC 1952 (1965).
626 Roshanlal v RB Mohan Singh Oberai, AIR 1975 SC 824 (837) : (1975) 4 SCC 628 : (1975) 2
SCR 491 .
627 Shalig Ram v Daulatram Kundanmal, AIR 1967 SC 739 : (1963) 2 SCR 574 : (1962) 2 Ker LR
254.
628 Ponnuswamy v Periasami Pillai, (1980) 2 MLJ 155 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 14. Presumption as to
foreign judgments.
© 2020 LexisNexis
S. 14. Presumption as to foreign judgments.
The Court shall presume, upon the production of any document purporting to be a
certified copy of a foreign judgment, that such judgment was pronounced by a Court
of competent jurisdiction, unless the contrary appears on the record; but such
presumption may be displaced by proving want of jurisdiction.
COMMENT.—
It is only on the principle of comity between the nations, reciprocity acquired rights and
obligations, international usages and customs that foreign judgments are recognised
by Private International law. Foreign Courts are recognised to be internationally of
competent jurisdiction where the party voluntarily submits to jurisdiction of the
Court.629 Production of the copy of foreign judgment duly authenticated is presumptive
evidence that the Court which pronounced it had jurisdiction.630 The Court should not
disallow the production of the copies of judicial record relating to a foreign Court in
evidence without first giving the party a sufficient opportunity either to have them
certified by the representative of the Central Government or to have them proved by any
other mode of proof.631
629 OPYerma v Gehri Lal, AIR 1962 Raj 231 .

630 Yithalbhai v Lalbhai, AIR 1942 Bom 199 : 44 BLR 380 : 202 IC 286.
631 Goverdhandas v Tikamdas, AIR 1951 Ajmer 54 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 15. Court in which suits to
be instituted.
© 2020 LexisNexis
Place of Suing
S. 15. Court in which suits to be instituted.
Every suit shall be instituted in the Court of the lowest grade competent to try it.
COMMENT.—
Place of Suing.—
Sections 15 to 20 of the Code deal with the place of suing, that is the forum for
institution of suits in India. Place means place in India and the heading refers to the
Courts of India mentioned in these sections. These sections regulate the venue within
India and apply only to those places where the Code is in force.
Scope of section.—
The object of the section is that Courts of higher grades shall not be over-crowded with
suits.632 This section is a rule of procedure, not of jurisdiction, and whilst it lays down
that a suit shall be instituted in the Court of the lowest grade, it does not oust the
jurisdiction of the Courts of higher grades which they possess under the Acts
constituting them.633 This section accordingly does not apply to High Court exercising
original civil jurisdiction.634
Competency.—
The word "competent" used in this section has reference to the jurisdiction of a Court.
Jurisdiction means the extent of the authority of a Court to administer justice not only
with reference to the subject-matter of the suit but also to the local and pecuniary
limits of its jurisdiction. In other words, a Court is said to be competent to try a civil suit
when it has (i) territorial jurisdiction; (ii) pecuniary or monetory jurisdiction; and (iii)
jurisdiction with regard to subject-matter.
Court of the lowest grade.—
The words "Courts of the lowest grade" refer only to Courts to which the Civil Procedure
Code applies. Where both a Subordinate Judge and a Munsiff have jurisdiction to try a
suit, say to recover Rs. 1,000 for rent but of these two Courts, it is the Munsiff Court,
that is, "the Court of the lowest grade", competent to try the suit. The suit, therefore,
shall be instituted in the Munsiff's Court as required by the present section..635 It is the
valuation of the suit disclosed in the plaint that determines the jurisdiction. Although
the plaintiff's valuation ordinarily determines the forum, he cannot value a suit
arbitrarily in order to institute a suit in a Court of his choice.636 But the suit cannot be
said to be properly valued if the plaintiff deliberately by fraud or misrepresentation
either overvalues or undervalues the claim for the purpose of electing his own form.637
In case of improper valuation the Court may require the plaintiff to prove that the
valuation is proper.638 It has been held by the Allahabad High Court in Radha Charan
Das v Mohini Behari, AIR 1975 All 368 that the Court-fee payable and the valuation for
the purposes of jurisdiction must be determined on the basis of allegations made and
relief claimed in the suit. Defence in the written statement have no relevance for such
determination.
An objection that court does not have jurisdiction to deal with the subject-matter of the
dispute is not akin to an objection regarding territorial or pecuniary jurisdiction. If a
party may not have raised the point that the court does not have the jurisdiction to
decide the subject-matter of the dispute and ultimately suffers an order or a decree,
such order/decree is nullity and that its invalidity may be raised wherever and whenever
it is sought to be enforced or relied upon, even at the stage of execution and even in
collateral proceedings.639
632 Bhuwaneshwari Kuer v Raghubansh, AIR 1954 Pat 34 (DB).

633 Arya Pratinidhi Sabha v Dev Raj, AIR 1963 Punj 208 (DB).
634 Srinivasa v State of Madras, AIR 1951 Mad 93 (FB).
635 Monika Das v Promode Kumar, AIR 1960 Cal 577 .
636 Nandita Bose v Ratanlal Nahta, AIR 1987 SC 1947 : (1987) 3 SCC 705 .
637 Maya Devi v Tulsa Devi, AIR 1935 Oudh 296 .
638 Raja Udairaj Singh v Secretary of State for India, AIR 1924 All 652 .
639 Hindustan Petroleum Corporation Ltd v Barun Shankar Chatterjee, AIR 2012 Cal 255 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 16. Suits to be instituted
where subject-matter situate.
© 2020 LexisNexis
Place of Suing
S. 16. Suits to be instituted where subject-matter situate.
Subject to the pecuniary or other limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon
immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the
property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to,
immovable property, held by on behalf of the defendant may, where the relief sought
can be entirely obtained through his personal obedience, be instituted either in the
Court within the local limits of whose jurisdiction the property is situate, or in the
Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally, works for gain.
Explanation.— In this section "property" means property situate in640 [India].
COMMENT—
Scope of the Section.—
This is one of the sections which refers to Courts in India and to immovable properties
situate in India. Suits for the recovery of immovable property or for the determination of
any other right to or interest in immovable property or for recovery of movable property
actually under distraint or attachment must be instituted in the Court within the local
limits of whose jurisdiction the property is situate.641 The object of the section is to
limit the territorial jurisdiction of Courts in regard to property. The explanation attached
to the section makes it clear that Courts have no power to entertain suits in respect of
properties situate outside India.642 It is not sufficient that the Court has some
jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the
power to hear and decide the particular controversy that has arisen between the
parties.643 However, Courts are not precluded from trying any question in respect of
property lying outside their territorial jurisdiction where such questions arise
incidentally.644
Immovable Property.—
Under the Code there is no definition of immovable property. However, it has been
defined under section 3(26) of the General Clauses Act, 1985 and "immovable property"
includes—
(a) land; (b) benefits to arise out of land and (c)things attached to the earth; or
permanently fastened to anything attached to the earth.
Under section 3 of the Transfer of Property Act, 1882, the term "immovable property"
does not include standing timber, growing crops and grass.
We thus find that the Transfer of Property Act excludes certain things while the General
Clauses Act, 1895 includes certain things under the head "immovable property".
Reading the definition of the General Clauses Act with the present section the term
includes the following:
(i) land;
(ii) benefits to arise out of land; and
(iii) things attached to the earth except standing timber, growing crops and grass.
There is no need to give any explanation with regard to clause (a) to (c) of this section
as these relate to immovable property directly which has been explained above.
Determination of any other right or interest—Clause (d).—
The words "determination of any right" do not only mean determination of an existing
right, these words also include the determination of a right claimed which may not be in
existence at the time the suit is brought.645
Suits in respect of the following rights fall under this clause:
(i) A right to the possession and management of a saranjam;
(ii) A right to obtain a water course through land;
(iii) A mortgage right (mortgage of a house standing on site exclusive of site).
(iv) A right to levy toll on all imports and exports from a State into British territory;
(v) A right to eject a person from land coupled with a right to recover rent;
(vi) A right to maintenance or other amount to be charged on immovable property.
Suits in respect of the following rights do not fall under this clause:
(i) A suit for declaration that a certain adoption is valid;

(ii) A suit for a declaration that a will is a forgery;
(iii) A suit for an administration of an estate which does not involve a direct
dealing with property outside jurisdiction;
(iv) A suit for the dissolution of partnership;
(v) A suit on an agreement to lease.
Where agreement for development of property was recorded in Delhi and dispute was
related to the determination of rights and interest of parties over immovable property
situated at Chandigarh, the fact that defendant does not reside or have any office in
Delhi will not clothe Courts at Delhi with territorial jurisdiction. Suit is governed by
section 16(d), section 20 and proviso of section 16 are not applicable and suit has to
be instituted in Court within local limits of whose jurisdiction the property is
situated.646
Suit for specific performance of contract and possession of Immovable property

agreed to be sold falls in clause (d) of section 16 and therefore, the provisions of
section 20 have no application and thus the suit under section 16(d) is maintainable
only before the court within the jurisdiction of which suit property is situated and the
parties cannot by agreement vest the jurisdiction in any court other than the court
within whose jurisdiction the suit property is situate.647
Wrong to immovable property—Clause (e).—
This clause applies to all wrongs of civil nature affecting immovable property such as
trespass, nuisance, infringement of an easement, etc. Such suits must be instituted in
the Court within the local limits of whose jurisdiction the property is situate.
Movable property—Clause (f).—
Under this clause a suit in respect of movable property actually under restraint or
attachment is to be filed in Court under whose jurisdiction the said movable property is
attached as it constitutes an exception to the general rule that movables follow the
person.
Proviso to the section.—
This provides that the suits to obtain relief respecting, or compensation for wrong to,
immovable property may be instituted at the option of the plaintiff either in the Court
within the local limits of whose jurisdiction, the property is situated or in the Court
within local limits of whose jurisdiction the defendant actually and voluntarily resides,
or carries on business or personally works for gains, provided the following conditions
are satisfied:
(i) that the property is held by or on behalf of the defendant; and
(ii) that the relief sought can be entirely obtained through the personal obedience of
the defendant; and
(iii) the property is situated in India.

The proviso does not apply when the property is possessed by the plaintiff himself.
This proviso is based on the well-known maxim, equity acts in personam whereby the
Court looks to the fulfilment of its decree to the person of the defendant.648
The proviso cannot be used to enlarge the scope of the principal section. It applies to
only those categories of cases provided in clauses (a) to (f) which are limited to
instances where the relief asked for, can entirely be obtained by compelling the
personal obedience of the defendant.
Personal obedience.—
The expression personal obedience must be interpreted with special reference to the
fact that the defendants reside or work within the jurisdiction of the Court whose order
is to be obeyed, the obedience must be as the defendants could render without going
beyond jurisdiction.
Lack of cause of action.—
Appeals were dismissed where averments made in the plaint did not make out any part
of the cause of action.649
Applicability of disputes over payment in relation to a works contract (highway

construction contract) in a particular district by themselves did not amount to disputes
which attract section 16.650
640 Subs. for words "the States" by Act 2 of 1951, section 3 (w.e.f. 1-4-1951).
641 (1890) 17 Cal 699 (FB). See also 12 Ind App 215 (PC).
642 Ibid See also Kondamudi Sriramulu v Myneni Pundarikshyaya, AIR 1950 FC 83 .
643 Official Trustee v Sachindra, AIR 1969 SC 823 (828) : (1969) 3 SCR 92 .
644 GT Firm v DJ Co Bombay, AIR 1935 Nag 250 (FB).
645 New Mofussil Co v Sharker Lal, AIR 1941 Bom 247 : 43 Bom LR 293.
646 Splendor Landbase Ltd v Mirage Infra Ltd, 2010 AIHC (NOC) 1030 (Del-DB) FAO (OS) No 150
of 2010, Dt 9 April 2010 : AIR 2010 (NOC) 933 (Del).
647 Ranjana Nagpal v Devi Ram, AIR 2002 HP 166 (172, 173).
648 Mulkraj v Thakatmal, AIR 1965 All 72 .
649 Salman Taiyebi v Mohd Naseer, 2011 (45) PTC 132 (Mad-DB).
650 Executive Engineer, Road Development Division No III, Panvel v Atlanta Ltd, AIR 2014 SC 1093
.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 17. Suits for immovable
property situate within jurisdiction of different Courts.
© 2020 LexisNexis
Place of Suing
S. 17. Suits for immovable property situate within jurisdiction of different

Courts.
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Courts, the suit may be instituted in
any Court within the local limits of whose jurisdiction any portion of the property is
situate:
Provided that, in respect of the value of the subject-matter of the suit, the entire claim
is cognizable by such Court.
COMMENT—
The present section is supplementary to the provision of section 18. However, this
section is not applicable so far as Clause (f) of section 16 is concerned. The section is
intended for the benefits of suitors and to prevent multiplicity of suits. It provides that
where a suit is to obtain a relief in respect of property situated in the jurisdiction of
different Courts, the suit can be brought in any one of the Courts and such Court can
deal with the whole of the property though some portion of it is situated outside its
jurisdiction. This section is applicable whether several properties are situated in
different districts or the same property extends over several districts.
However, the provisions of this section would not apply where the cause of action as to
property situate outside the local limits is different from that with regard to property
situate within its jurisdiction.651 The cause of action for recovery of properties
alienated under different instruments is the same and the suit is maintainable even
though properties are situated in different jurisdiction.652
It has been held by the Supreme Court in Madhao Deshpande v Madhav

Dharmadhikaree, AIR 1988 SC 1347 : (1988) 3 SCC 511 , that where dispute regarding
properties located within the jurisdiction of two Courts was referred to arbitration and
one of the properties was located within the jurisdiction of one of the Courts, that Court
will have jurisdiction to entertain award. Returning of award by the Court for
presentation to the Court within whose jurisdiction other properties forming subject
matter of dispute were located, was not proper.
651 Ram Dayal v Jagannath Shay, AIR 1964 Pat 79 .
652 Laxmibhai v Madhankar, AIR 1968 Mys 82 ; See also Ramdhin v Thakura Dulaiya, AIR 1952
Nag 303 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 18. Place of institution of
suit where local limits of jurisdiction of Courts are uncertain.
© 2020 LexisNexis
Place of Suing
S. 18. Place of institution of suit where local limits of jurisdiction of Courts are
uncertain.
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of
which of two or more Courts any immovable property is situate, any one of
those Courts may, if satisfied that there is ground for the alleged uncertainty,
record a statement to that effect and thereupon proceed to entertain and
dispose of any suit relating to that property, and its decree in the suit shall
have the same effect as if the property were situate within the local limits of its
jurisdiction:
Provided that the suit is one with respect to which the Court is competent as regards
the nature and value of the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and an
objection is taken before an Appellate or Revisional Court that a decree or
order in a suit relating to such property was made by a Court not having
jurisdiction where the property is situate, the Appellate or Revisional Court
shall not allow the objection unless in its opinion there was, at the time of the
institution of the suit, no reasonable ground for uncertainty as to the Court
having jurisdiction with respect thereto and there has been a consequent
failure of justice.
COMMENT.—
Where it is uncertain as to within whose jurisdiction of two or more Courts the

immovable property is situate any one of those Courts may try the suit relating to that
property after recording a statement as to uncertainty, and thereupon proceed to
entertain and dispose of the suit relating to that property and its decree in the suit shall
have the same effect as if the property were situate within the local limits of its
jurisdiction.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 19. Suits for compensation
for wrongs to person or movables.
© 2020 LexisNexis
Place of Suing
S. 19. Suits for compensation for wrongs to person or movables.
Where a suit is for compensation for wrong done to the person or to movable property,
if the wrong was done within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally works for gain, within the
local limits of the jurisdiction of another Court, the suit may be instituted at the option
of the plaintiff in either of the said Courts.
ILLUSTRATIONS
(a A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A

either in Calcutta or in Delhi.
COMMENT.—
Suits under this section for compensation for wrong done to the person or personal
property may be brought at the option of the plaintiff either where the wrong is
committed or where the defendant resides or carries on business or personally works
for gain.653 This section appears to have been enacted only for the purpose of
elucidating the position of that place where the wrong is done to the person or movable
property or the place where the cause of action arises within the meaning of section
20, clause (c) of the Code.654
Wrong to person or to movable property.—
Within the meaning of this section a wrong means the infringement of legal right and is
consequently an actionable wrong. The section applies only to actionable wrongs to
the person or to movable property. Wrong to the person refers the same thing which is
termed as trespass to the person.
According to Bombay High Court a suit for damages for malicious prosecution can be
entertained by Courts at the place where the plaintiff was served with the summons in
the criminal case as the service of summons is a part of wrong done to the person.655
However, this view has not been shared by the Mysore High Court, wherein it has been
held that suits for compensation for malicious prosecution are not necessarily
governed by this section.656
Resides.—
The word "resides" does not apply to legal entities. Where a tort was committed for
which the Secretary of State was liable, the suit could be brought only where the tort
was committed and not elsewhere on the ground that he resided there.657
Suit against Government.—
The aforesaid principle would not be applicable in case of suits to be instituted against
Government for arrears of salary and travelling allowance at a place where the
employee was residing throughout, but was employed at a place other than the place of
his residence, it was held that the suit could not lie at the place of his residence.658
653 Harelishah v Shaikh Painda, AIR 1926 PC 88 .

654 Gokaldas Mataram v Baldeodas, AIR 1961 Mys 188 .
655 Khanchand v Harumal, AIR 1965 Bom 109 : 66 Bom LR 829.
656 Gokaldas Melaram v Baldeodas, AIR 1961 Mys 188 .
657 Govinda Rajulu Naidu v Secretary of State, AIR 1927 Mad 689 (DB) : 50 Mad 449.
658 State of UP v Raja Ram, AIR 1966 All 159 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 20. Other suits to be
instituted where defendants reside or cause of action arises.
© 2020 LexisNexis
Place of Suing
S. 20. Other suits to be instituted where defendants reside or cause of action

arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the
time of the commencement of the suit, actually and voluntarily resides, or
carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
(c) the cause of action, wholly or in part, arises.659 [* * *]
660[Explanation.]—A corporation shall be deemed to carry on business at its

sole or principal office in India or, in respect of any cause of action arising at
any place where it has also a subordinate office, at such place.
ILLUSTRATIONS
(a A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in

Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway
Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the
goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B
carries on business.
(a A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benares,

B and C make a joint promissory note payable on demand, and deliver it to A. A may
sue B and C at Benares where the cause of action arose. He may also sue them at
Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases if the
non-resident defendant objects, the suit cannot proceed without the leave of the Court.
COMMENT.—
Scope and principle.—
Section 20 enacts the rule as to the forum in cases of personal actions, and has to be
read subject to the provisions of sections 15 to 19 of the Code.661 The section
designed to secure that justice might be brought as near as possible to every man's
heart-stone and that the defendant should not be put to the trouble and expense of
travelling long distances in order to defend himself.662 Principle behind the provisions
of clauses (a) and (b) of section 20 is that the suit be instituted at a place where the
defendant is able to defend the suit without undue trouble.663
It is well settled that the court will have jurisdiction where the cause of action or part of
the cause of action has arisen. It is well accepted that for the purpose of quia-timet
action it is not necessary that there should be an actual piracy or infringement Where
the defendant maybe operating or having manufacture of its product within the
territorial jurisdiction of Mumbai, but when they are launching the product and
marketing in Ahmedabad, Gujarat part of the cause of action can be set to have arisen
for the purpose of both infringement as well as passing off or piracy.664
It has been held that "A plain reading of section 20 of the Code of Civil Procedure
arguably allows the plaintiff a multitude of choices in regard to where it may institute
its lis, suit or action.. Obviously, this is also because every other place would constitute
a forum non conveniens. The Supreme Court has harmonised the various hues of the
conundrum of the place of suing in several cases and has gone to the extent laying
down that it should be court's endeavour to locate the place where the cause of action
has substantially arisen. It has even been held that if the defendant corporation has a
subordinate office in the place where the cause of action arises, litigation must be
instituted at that place alone, regardless of the amplitude of options postulated in
section 20 of Code of Civil Procedure".665
Section 20 of the Code does not apply to Chartered High Courts and they cannot invoke
section 21 to claim jurisdiction.666
Ouster of jurisdiction of Court.—
A suit for breach of contract can be filed at place where it was made. It can also be
filed at the place of performance which is also part of cause of action. Inference of
ouster of jurisdiction of Court depends on the facts of each case. Where an ouster
clause occurs, it is pertinent to see whether there is ouster of jurisdiction of other
Courts. Often the stipulation is that the contract shall be deemed to have been made at
a particular place. This would provide the connecting factor for jurisdiction to the Court
of that place in the matter of any dispute on or arising out of that contract. It would not,
however, ipso facto take away jurisdiction of other Courts.667
When ouster clause was clear, unambiguous and specific then such clause would oust
the jurisdiction of other courts. Use of words "shall alone have jurisdiction" in ouster
clause ousted jurisdiction of other courts.668
Object of.—
Object of section 20 is to secure justice to every man's hearthstone and that defendant
should not be put to any trouble and expense of travelling long distances in order to
defend himself.669
Scope.—
Jurisdiction of Bombay High Court in relation to ordinary original civil matters is
determined by clause 12 of the Letters Patent of Bombay High Court, 1865. Under
section 120 Code of Civil Procedure, sections 16, 17 and 20 do not apply to a High
Court in exercise of its original Civil jurisdiction.670
Where only one of the several properties is located within the jurisdiction of a Court,
that Court will have jurisdiction to try the dispute.671
Territorial jurisdiction, determination of.—Where part of cause of action accrued in both

places i.e. Delhi and Bombay. The clause in agreement between parties, however
conferred jurisdiction in Courts in Bombay, it was not opposed to public policy. If the
clause was not qualified by words like "alone", "only" or "exclusively" but having regard
to the fact that the purchase order was placed by the defendant at Bombay, the said
order was accepted by the branch office of the plaintiff at Bombay, the advance
payment was made by the defendant at Bombay and as per the plaintiff's cause the
final payment was to be made at Bombay. Then it could be inferred that the Courts at
Bombay had jurisdiction to the exclusion of other Courts and the event at Delhi had no
jurisdiction to try the suit.672
Relevant date for deciding jurisdiction.—
Relevant date for determining territorial jurisdiction is the date of institution of suit.673
Operation Excluded.—
The operation of section 20 of the Code and section 18 of the Presidency Small Cause
Courts Act, 1882 is excluded by Section 80 of the Railways Act, 1890 which is a
complete and self-contained, exhaustive code in regard to the place of suing respecting
suits for compensation against railways.674
According to this section, all other suits may be instituted at the option of the plaintiff
in any of the following Courts:
(i) the Court of the place where the cause of action arises either wholly or in part;
(ii) the Court of the place where the defendant resides or carries on business, or
personally works for gains;
(iii) where there are two or more defendants, the Court of the place where any one
of them resides or carries on business or personally works for gain, provided
that in such case either the leave of the Court is taken or the defendants who do
not reside, or carry on business or personally work for gain, at that place
acquiesce in such institution.
The Explanation I attached to this section was omitted by the Amending Act of 1976 as
it was not in harmony with the main provisions of this section 20, which provided for
actual and the voluntary residence.
Intendment explained.—The Explanation to section 20 consists of two parts. The first

part applies only to such corporations which has its sole or principal office at a
particular place. The later part takes care of a case where the defendant does not have
a sale office but has a principal office at one place and also has a subordinate office at
another place. The expression "at such place" appearing in the explanation and the
word "or" which is disjunctive clearly suggests that if the case falls within the later part
of the Explanation it is not the Court within whose jurisdiction the principal office of the
defendant situate but the Court within whose jurisdiction it has a subordinate office
which alone have the jurisdiction "in respect of any cause of action arising at any place
where it has also a subordinate office".675
Jurisdiction specified in agreement.—
It is settled law that any agreement between the parties to the contract cannot validly
take away the jurisdiction possessed by the Court, though ouster clause can operate as
estoppel against the parties to the contract. But if more than one Courts have
jurisdiction under the statute, it is always open to the parties to agree to the jurisdiction
of one Court to the exclusion of the other. In such cases, the plaintiff cannot insist that
one Court (whose jurisdiction is excluded) should try the suit ignoring the jurisdiction of
the Court which the parties agreed to submit.676
Where an offer is accepted at Delhi it would mean that the contract has been entered
into at Delhi and jurisdiction would be of Delhi, irrespective of the fact that formal
documentation by way of agreement was made at Jhansi.677
Territorial jurisdiction, cause of action.—
Where the respondent was working at Dehradun and was retired from service at
Dehradun, no part of cause of action arose in the State of Uttar Pradesh. An order
issued by Allahabad High Court would not be sustainable.678
The collector of stamps, Satna passed the order directing the appellants to deposit
deficit stamp duty as well as registration charges. In appeal order of collector affirmed
by Commissioner Rewa Division, Rewa. An appeal was filed challenging both the orders
dismissed by Board of Revenue at Gwalior on merits. The order of Collector as well as
that of the Commissioner was merged in the order of Board of Revenue. The part of
cause of action had arisen to the appellants at Gwalior also. The Bench of High Court
at Gwalior shall have jurisdiction to decide the writ petition.679
Loan was sanctioned by the Head office of bank situated at Shrinagar. Loan documents
executed between the parties at Jammu. Loan amount too disbursed by Branch of
bank situated at Jammu. The notice for repayment of loan though issued by Branch of
bank situated in Punjab, but the same was issued on behalf of Jammu bank, having its
head office at Shrinagar. Thus, cause of action having accrued within territorial
jurisdiction of State of Jammu and Kashmir; court of Jammu and Kashmir would have
jurisdiction to entertain suit.680
Meaning of cause of action.—
Cause of action is a bundle of facts which is necessary for plaintiff to prove his case so
that he can succeed.681
Cause of action comprises a bundle of facts which are relevant for determination of lis
between parties.682
ILLUSTRATIONS
(i) A resides at Delhi, and B at Agra, B borrows Rs. 2,000 from A at Banaras and passes
a promissory note to A payable at Banaras, B fails to repay the loan, A may sue B at
Banaras where the cause of action arose or at Agra where B resides. But A cannot sue
B at Delhi where A resides.
(ii) If in Illustration (i) the note was made payable at Amritsar a part of the cause of
action would arise at Banaras where the note was passed and a part at Amritsar where
it was made payable and A could then sue B at his option at Amritsar also.
(iii) B and C pass a joint promissory note to A at Banaras and made payable at Banaras.
B resides at Agra and C at Simla. A may sue B and C at Banaras where the cause of
action arose. He may also sue them at Agra where B resides or at Simla where C
resides but in either of these cases if the non-resident objects, the suit cannot proceed
without the leave of the Court.
Actually and voluntarily resides.—
A Court can entertain a suit, if all the defendants reside within its jurisdiction even if the
cause of action arises outside it. However, an occasional residence is not sufficient to
give jurisdiction.683 Where the minor children are residing with their father at Delhi,
custody proceedings by their mother would lie at Delhi.684
Carries on business.—
The word "business"is used in the section in a restricted sense and means commercial
business alone.685 Supreme Court in UOI v Ladulal Jain, AIR 1963 SC 1681 : (1964) 3
SCR 624 : (1964) 1 MLJ (SC) 38, it has been held that the running of Railways was a
business activity, and the suit could be instituted in the Court within whose jurisdiction
the Railways has its headquarters and that the true principle behind the section was
that the suit should be instituted at a place where the defendant would be in a position
to defend the action effectively and without trouble. A State Government Company was
given a contract to build a school in a district. A dispute arose an arbitrator passed
award. The Government filed a petition in the State Capital for setting aside the award
and the Company filed a petition for its enforcement in the district Court. It cannot be
said that the Court in the District had no jurisdiction to entertain the petition for
enforcement of the award. It cannot be always said that only one Court has
jurisdiction.686
Personally works for gain.—
To constitute work there must be some physical or mental effect. An advocate though
residing out of station where the High Court is located, works for gain within the local
limits of jurisdiction of High Court. Similarly, where A is residing at Bombay and going
constantly to Poona for making contracts, works for gain within Poona.
Territorial Jurisdiction.—
In a suit for recovery of sale price, where no place of payment being agreed upon,
payment would have been made to the creditor at the place "D" where he was residing
and working for gain. Thus, the court at place "D" would have territorial jurisdiction to
entertain suit.687
Leave of the Court.—
Leave of the Court is required when some of the defendants are within and others
outside jurisdiction. If the Court refused leave, the suit cannot proceed unless the non-
resident defendant agrees or acquiesces. Leave may be granted either after the
institution of the suit,688 or even at the stage of appeal.689
Cause of action.—
It may be defined as the fact or facts which entitles a party to seek redress in a Court of
law. The term connotes every fact which if traversed, it would be necessary for the
plaintiff to prove in order to support his right to the judgment of the Court.690
The expression "cause of action" means the bundle of facts which gives rise to a right
or liability.691
The expression "cause of action" has acquired a judicially settled meaning. In the
restricted sense "cause of action" means the circumstances forming the infraction of
the right or the immediate occasion for the action. In the wider sense it means
necessary conditions for the maintenance of suit, including not only the infraction of
right, but the infraction coupled with the right itself.. Every fact which is necessary to be
proved, as distinguished from every piece of evidence which is necessary to prove each
fact, comprises in "cause of action". It is to be left to be determined in each individual
case as to where the cause of action arises.692
The existence of registered office of a company within the territorial jurisdiction of a

Court does not ipso facto give a cause of action to that party. The fact that the
respondents carry on their business of export and import from Ahmedabad has no
bearing with the lis or the dispute involved in the case. It does not give rise to a cause
of action so as to confer territorial jurisdiction on the High Court of Gujarat. It was held
that in determination of territorial jurisdiction the considerations that apply to a
criminal case, may not always apply to civil disputes.
The registration of a trademark is a fact, but cause of action would consist of a bundle
of facts. Thus, more than one fact would have to be taken into account to determine
the location of a particular trademark which connects the trademark to the place.693
In a contract to carry logs on board to vessel under Bill of Lading from foreign port for
discharge at port of Calcutta, the logs were found to be missing a short landed at
Calcutta. The suit by plaintiff at Calcutta for recovery of value of logs and other charges
was maintainable as part of cause of action arose within jurisdiction of Calcutta
Court.694
In suits arising out of contracts, mere making of an offer does not form part of the
cause of action for damages for breach of contracts.695
A military contract was entered into in UP and the work was also executed in UP. Then
a dispute arose in regard to the execution of the contract between the contractor and
the respondent. An award was passed by the Arbitrator in favour of the contractor who,
thereafter, instituted proceedings in Delhi High Court for making the award a rule of
Court. The Delhi High Court was held to have no jurisdiction.696
Jurisdiction of Court.—
While considering the territorial jurisdiction over a suit initiated to protect the beneficial
interest, the issue qua the existence of such an interest can only be decided on the
condition that the same is amenable to such a jurisdiction. In the present case, the suit
filed for declaration by plaintiff is in nature of derivative action on behalf of foreign
company. Both plaintiff and defendants are residents of Dubai. Merely because dispute
is about those shares issued by Indian Company, it would not lead to conclusion that
cause of action arose in India.
Such a dispute can only be dealt with by competent forum in Dubai as per the law
prevailing in Dubai UAE.697
Forum in respect of some specific matters.—
(i) Suits on Contract.—The place where the cause of action arises in respect of any
contract must be determined with reference to the terms of the original contract itself
and not by subsequent negotiation.698
It has been held by the Supreme Court in Bhagwandas v Girdharilal, AIR 1966 SC 543 :
(1966) 1 SCR 656 that acceptance by phone is part of cause of action.
A suit for recovery of arrears of rent is based on a contract and is therefore, triable in
Calcutta if the parties are there in spite of the fact that the premises are in Pakistan.699
Suit for recovery of rent under agreement of leases can also be brought in the Court
within jurisdiction of which the defendant resides.700
It may be pointed out that when a contract is invalid, it cannot be relied upon as
constituting a part of cause of action.701
Revocation of a contract being also part of the cause of action in a suit for breach of
contract, the Court at the place where revocation is communicated will have the
jurisdiction to try the suit.702
The place where money is expressly or impliedly payable will be a forum of action.703
A contract by correspondence is made at the place where the letter of acceptance is

posted.704
In Bakhtawar Singh v UOI, AIR 1988 SC 1003 : (1988) 2 SCC 293 a military contract was
entered into in UP The work of that contract was also executed in UP. An award was
passed by an Arbitrator. As such proceedings were instituted in Delhi High Court. It was
held by the Supreme Court that Delhi High Court had no jurisdiction. It would lie only in
an appropriate Court in UP.
(ii) Suit between Principal and Agent.—Suits in respect of accounts against an agent can
be instituted where the contract of agency was entered into or where the accounts are
to be rendered and payment made by the agent.705 Suit by agent against principal for
recovery of loss would lie at the place of residence of the defendant.706 Suit for
accounts by principal against agent would not lie at the place where accounts were
demanded and refused.707
(iii) Suit for partnership accounts.—The place of performance in case of a contract of

partnership is the place where the business of the partnership is carried on, hence suit
will lie where the business is carried on.708
ILLUSTRATION
A contract of partnership was entered into by firm P with firm D, both of whom had their
head offices at Calcutta. P firm was to purchase jute at K in Muzaffarpur district and to
send it to Calcutta to D firm for sale. Accounts of the partnership firm were kept at
Calcutta, it was held that the Court at K had no jurisdiction to try a suit for dissolution
of the partnership.709
(iv) Suit between banker and customer.—Where a deposit is made in a Bank, the place of
repayment is to be determined from the terms of the receipt. In the absence of such
terms, the money becomes payable at the place where Bank does its business.710
In the case of current account, the obligation of the banker to repay arises on demand
and is limited to the office where the account is kept. The customer must make a
demand for payment at the branch where his current account is kept before he can
have a cause of action against the Bank. The rule is the same whether the account is a
current account or whether it is a case of deposit.711
(v) Suit on Negotiable Instruments.—A suit may be filed at a place where a promissory
note is made, or bill of exchange is drawn.712 Payee's place of residence is not to be
presumed to be the place of payment.713
(vi) Suits on Torts.—Court, within local limits of whose jurisdiction, a tortuous act is
committed, is competent to try the suit.714
(vii) Suits for Divorce.—Matrimonial suits arising under the Hindu Marriage Act, 1955,
are governed by the provisions of that Act. But in respect of a marriage, solemnised
before the partition of India (before 1955) at Karachi and where the parties were also
separated there after partition, both parties came to India separately. Husband was
employed at Delhi and wife at Nagpur. Application by the husband under section 13 of
Hindu Marriage Act, 1955 could be filed at Nagpur Court, as held by Bombay High
Court.715
(viii) Suit for infringement of copyright, trade marks etc.—A suit for infringement of
copyright, trade marks, etc., shall be brought at the place where the infringement takes
place.716
(ix) Suit against Corporation.—The word "Corporation" in Explanation II includes not only
statutory corporation but also company registered under Companies Act.717 The
residence and domicile of a trading company is its principal place of business, i.e., the
place where the administrative business of the company is conducted, which may not
be the place where its manufacturing or other business operations are carried on. Thus,
irrespective of the provisions of the Companies Act, the domicile of a trading company
will be the place of its suing. The test that has to be satisfied is: Whether the company
carried on business at the place where it has been sued at the time of commencement
of the suit.718
(x) Suits against Foreigners.—Jurisdiction over persons and property, apart from
principles of International Law, where foreign subjects are involved is governed by
legislation passed in the country where it is sought to be exercised. The Code does not
exempt foreigners from the jurisdiction of Indian Courts. As regards residence, even a
temporary residence is sufficient to give jurisdiction.719 Foreigner carrying on business
through an agent within jurisdiction will become amenable to the jurisdiction of the
Court.720 Where the cause of action against a non-resident foreigner arises within
jurisdiction, that in itself, is sufficient ground of jurisdiction.721 The presence of a
foreign defendant who appears under protest to contest jurisdiction cannot be
considered as conferring jurisdiction on the Court to take action. Unless a foreign
defendant either resides within jurisdiction or voluntarily appears or has contracted to
submit to the jurisdiction of the Court, it is not possible to hold that the Court will have
jurisdiction against a foreign defendant.722
Decree passed against non-resident foreigner is nullity.—
A decree passed in a suit against non-resident foreigners is not enforceable in foreign

Courts. An ex parte decree was passed by Gwalior Court on 18 November 1948 against
a resident of Allahabad. The decree was nullity. It was transferred to the Court at
Allahabad on 14 September 1951. The Court could not do so. Allahabad Court could
not execute the decree.723
Consent of parties cannot create jurisdiction.—
It is well-established principle of law that jurisdiction is conferred upon Courts by the

Legislatures only. The consent of parties cannot, therefore, confer jurisdiction upon a
Court, when it does not possess it.
It is well-settled principle that by agreement the parties cannot confer jurisdiction. This
principle, however, does not apply when the parties agree to submit to the exclusive or
non-exclusive jurisdiction of a foreign Court. In such cases the English Courts do
permit invoking their jurisdiction. The parties to a contract may agree to have their
disputes resolved by a foreign Court termed as a "neutral Court" or "Court of choice"
creating exclusive or non-exclusive jurisdiction in it.724
The choice of forum by an agreement is not invalid. A suit based on consignment note
providing that "Court at head office city shall only have jurisdiction". At the tope of the
note jurisdiction was also specified to be with Court at place "U". It was only the Court
at place "U" which had jurisdiction to try the suit.725
In a suit for damages against corporation, having subordinate office in place where the
cause of action arose, the Court at such place would have jurisdiction. The parties
cannot confer jurisdiction on the Court where corporation has its principal office.726
The parties cannot by agreement confer jurisdiction on Court which is not possessed
by it under the Code. An agreement that one of the Courts having such jurisdiction
alone shall try the dispute, is not contrary to public policy. It does not contravene
section 28 of the Contract Act.727
Lack of jurisdiction.—
Where no material or integral fact had taken place within the territorial limits of Trial
Court, the trial Court had no jurisdiction to entertain the suit.728
The Court can reject the application on the ground of absence of prima facie
jurisdiction of the Court.729
Exclusion of jurisdiction by contract.—
Where contract between the parties contained clause that dispute under the contract
shall be decided by the Court at Bombay and by no other Court, the Court at Calcutta
would have no, jurisdiction to try the suit.730
An award was made in London in respect of a contract with a foreign contractor. On the
question of jurisdiction for enforcement of the award, it was found that the parties have
clearly and categorically stipulated that their contract, made in India to be performed in
India, was to be governed by the "laws in force in India". The Courts in Delhi were to
have exclusive jurisdiction in all matters arising under this contract.731
659 Explanation I omitted by Code of Civil Procedure (Amendment) Act 104 of 1976, section 7(i)
(w.e.f. 1-2-1977).
660 Subs. by Act 104 of 1976, section 7(ii) for "Explanation II" (w.e.f. 1-2-1977).
661 Dalpatrai v West End Watch Co, AIR 1953 MB 38 .
662 Mohan Singh v Lajya Ram, AIR 1956 Punj 188 .
663 UOI v Ladulal Jain, AIR 1963 SC 1681 : (1964) 3 SCR 624 : (1964) 1 MLJ (SC) 38. See also
AIR 1967 Cal 24 .
664 Win Plast Ltd v Symphony Ltd, AIR 2015 Guj 151 .
665 Dashtrath Rupsingh Rathod v State of Maharashtra, AIR 2014 SC 3519 .
666 Oriental Bank of Commerce v Santosh Kr Agarwal, 2010 Cal WN 810 (819) (DB) : 2008 AIHC
(NOC) 610 (Cal-DB).
667 ABC Laminart Pvt Ltd v AP Agencies, Salem, AIR 1989 SC 1239 (1246) : (1989) 2 SCC 163 :
(1989) 44 Taxman 442 .
668 Hindusthan Construction and Commercial Corporation v UOI, AIR 2014 Cal 138 .
669 Laxman Prasad v Prodigy Electronics Ltd, AIR 2008 SC 685 (DB).
670 Food Corporation of India v Evdomen Corpn, AIR 1999 SC 2352 .
671 Madhao Deshpande v Madhao Dharmadhikaree, AIR 1988 SC 1347 : (1988) 3 SCC 511 .
672 Hamil Era Textiles Ltd v Puromatie Filter (P) Ltd, AIR 2004 SC 2432 .
673 Mohana Kumaran Nair v Vijaya Kumaran Nair, AIR 2008 SC 213 .
674 Ratanlal Adhukia v UOI, AIR 1990 SC 104 (110) : (1989) 3 SCC 537 .
675 New Mogo Transport Co v United India Insurance Co Ltd, AIR 2004 SC 2154 (2156).
676 IVR Constructions Ltd v Technocraft Industries India Ltd, 2010 (2) ALT 239 (243) (DB).
677 Magnum Builders & Developers & Chawla Construction (JV) v Ircon International Ltd, 2008 (5)
ALJ 362 : AIR 2009 (NOC) 59 (All) : 2008 AIHC 3557 (All-DB), see also State of AP v TV Krishna
Reddy, AIR 2009 (NOC) 647 (AP).
678 State Bank of Patiala v Vinesh Kr Bhasin, (2010) 4 SCC 368 (375).
679 Vishnu v State of MP, 2009 (3) MPLJ 39 (42) (DB); Kusum Ingots & Alloys Ltd v UOI, (2004) 6
SCC 259 , relied on.
680 BBF Industries Ltd v UOI, AIR 2015 J&K 1 .
681 Nawal Kishore Sharma v UOI, AIR 2014 SC 3607 .
682 AVM Sales Corporation v Anuradha Chemicals (P) Ltd (2012) SCC 315 .
683 Suraj Karan v Sita Ram, AIR 1952 Raj 31 (DB); See also Ram Narain Mehra v General Accident
Insurance Corporation Ltd, AIR 1952 Punj 113 .
684 Pooja Bahadur v Uday Bahadur, AIR 1999 SC 1741 : (1999) 4 SCC 348 .
685 Govinda Rajulu v Secretary of State, AIR 1927 Mad 689 (DB). See also PC Biswas v UOI, AIR
1956 Assam 85 .
686 Khaleel Ahmad Dakhani v Hatti Gold Mines Ltd, AIR 2000 SC 1926 (1929) : (2000) 3 SCC 755
.
687 Satyapal v Slick Auto Accessories Pvt Ltd, AIR 2014 Del 115 .
688 Jaichand Lal v Kesri Chand, AIR 1962 Raj 88 .
689 Manormabai v Ibrahim, AIR 1969 Bom 366 ; See also Dwarkadas v Hanumandas, AIR 1961
Raj 187 : (1960) Raj 1497 .
690 Ram Awalamb v Shankar, AIR 1969 All 426 : 1968 All LJ 1108; See also Ujjal Taluqdar v
Netichand, AIR 1969 Cal 224 .
691 Sonic Surgical v National Insurance Co Ltd, (2010) 1 SCC 135 (137).
692 Rajasthan High Court Advocates Association v UOI, AIR 2001 SC 416 (422) : (2001) 2 SCC
294 .
693 Duro Flex Pvt Ltd v Duroflex Sittings System 150, AIR 2015 Mad 30 .
694 Mayar (HK) Ltd v Owners & Parties, Yess MY Fortune Express, AIR 2006 SC 1828 (1840).
695 Bhagwandas v Girdharlal, AIR 1966 SC 543 : (1966) 1 SCR 656 .
696 Bakhtawar Singh Balkrishan v UOI, AIR 1988 SC 1003 (1006) : (1986) 2 SCC 293 .
697 Ahmed Abdulla Ahmed Al Ghurain v Star Health and Allied Ins. Co. Ltd, AIR 2019 SC 413 .
698 1967 ALJ 348 .
699 (1962) 44 Mys LJ 1053 .
700 Kanhaiya Lal v Kanti Lal, AIR 1962 Raj 106 . See also Court of Wards v R Dharan Devchan,
AIR 1961 Punj 143 (DB).
701 Surjit Singh v UOI, AIR 1965 Cal 191 .
702 Fertilizer Corporation of India v Surjit Kumar, AIR 1965 Punj 107 .
703 Dwarkadas v Brijmohan, AIR 1956 Punj 111 .
704 Ratan Lal v Harcharan, AIR 1947 All 337 .
705 Firm Shah Chandan Lal v Hazari Lal, AIR 1962 Raj 122 .
706 Kishan Lal v Bhanwar Lal, AIR 1954 SC 500 : (1955) 1 SCR 439 .
707 Dharam Datt v Ram Lal Suri, AIR 1961 Punj 567 .
708 Gurdiyal v Sukhanadan Lal, AIR 1929 All 236 .
709 Firm Raghunath Rai v Firm Surajmal, AIR 1936 Pat 6 (DB).
710 Allahabad Bank Ltd v Gulli Lal, AIR 1940 All 243 (DB) : (1940) All 207 .
711 Byramjee J (P) Ltd v State of Maharashtra, AIR 1965 SC 590 : (1964) 2 SCR 737 .
712 Arunachalam v Murugappa, AIR 1956 Mad 629 .
713 Jagdish Chandra v Santimoyee, AIR 1961 Cal 321 (DB).
714 Narayan Chandra v Nath Bank Ltd, AIR 1967 Pat 124 : 44 Pat 87.
715 Hariram v Jasoti, AIR 1963 Bom 176 .
716 DCS Bureau v United Concern, AIR 1967 Mad 381 .
717 Hakam Singh v Gammon (India) Ltd, AIR 1971 SC 740 : (1971) 1 SCC 286 .
718 Babulal v Caltex India Ltd, AIR 1967 Cal 204 .
719 Muthakanni v Andappa, AIR 1955 Mad 96 (FB).
720 H Ahmad & Co v Kohinoor Glass Factory, AIR 1961 AP 476 (FB).
721 Bhagwan v Rajaram, AIR 1951 Bom 125 (FB) : 53 BLR 398. See also Brijmohan v Kishori Lal,
AIR 1955 MB 1 (FB).
722 World Tanker Carrier Corpn v SNP Shipping Services Pvt Ltd, AIR 1998 SC 2330 (2339) :
(1998) 5 SCC 310 .
723 Maloji Nar Singh Rao v Shankar Sharan, AIR 1962 SC 1737 : (1963) 2 SCR 577 : (1962) 2 All
991 : 1963 Mah LJ 921 .
724 Modi Entertainment Network v WSG Cricket, AIR 2003 SC 1177 (1183) : (2003) 4 SCC 341 .
725 New Monga Transport Co v United India Insurance Co Ltd, AIR 2004 SC 2154 (2157).
726 Patel Roadways Ltd v Tropical Agro Systems Pvt Ltd, AIR 1992 SC 1514 (1517) : 1980 Supp
SCC 600 .
727 Hakam Singh v Gammon (India) Ltd, AIR 1971 SC 740 : (1991) 4 SCC 270 .
728 Adhunik Technology Pvt v Caretel Infotech Ltd, 2009 (2) Cal HN 168 : AIR 2009 (NOC) 2037
(DB).
729 Axis Bank Ltd v MPS Greenery Developers Ltd, 2010 (2) Cal LJ 561 (DB).
730 SSF Pvt Ltd v CM Baradia, AIR 2005 SC 2161 (2168).
731 National Thermal Power Corpn v Singer Co, AIR 1993 SC 998 (1007) : (1992) 3 SCC 551 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 21. Objections to
jurisdiction.
© 2020 LexisNexis
Place of Suing
S. 21. Objections to jurisdiction.
732
[(1)] No objection as to the place of suing shall be allowed by any appellate or
revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity and in all cases where issues
are settled, at or before such settlement, and unless there has been a
consequent failure of justice.
733
[(2) No objection as to the competence of a Court with reference to the
pecuniary limits of its jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity, and in all cases where issues
are settled, at or before such settlement, and unless there has been a
consequent failure of justice.
(3) No objection as to the competence of the executing Court with reference to the
local limits of its jurisdiction shall be allowed by any Appellate or Revisional
Court unless such objection was taken in the executing Court at the earliest
possible opportunity, and unless there has been a consequent failure of
justice.]
COMMENT.—
Section 21 is framed on the analogy of section 11 of the Suit Valuation Act, 1887.734
Section 21 of the Code does not apply to High Court in exercise of its original civil
jurisdiction.735
Objection at earliest possible opportunity.—
An objection as to territorial jurisdiction of Court has to be taken at earliest possible

opportunity and in any case at or before settlement of issues. Objection not taken at
the earliest cannot be allowed to be taken at subsequent stage.736
Objection to jurisdiction is a Technical Ground.—

The policy underlying section 21 and section 99 is that when a case has been tried by a
Court on the merits and judgment rendered, it should not be liable to be reversed purely
on the technical grounds, unless it has resulted in failure of justice. The policy of
legislature has been to treat objection to jurisdiction both pecuniary and territorial as
technical. It is not open to consideration by an appellate Court, unless there has been a
prejudice on the merits.737 It is a fundamental rule that a judgment of a Court without
jurisdiction is a nullity and that want of jurisdiction cannot be waived. To this rule there
are two recognised exceptions as laid down in section 21 of the Code and section 11 of
the Suits Valuation Act, 1887.738
Where there is no failure of justice, no objection as to the place of suing can be allowed
to be taken for the first time by any appellate or revisional Court.739
A matter has been decided by a Single member of an administrative tribunal, after

considering the case on merit. It is no longer open to the unsuccessful party to plead
that the member had no jurisdiction to decide the issue or that the order suffers from
initial lack of jurisdiction.740
An objection to territorial jurisdiction of a Court before Court of appeal cannot be

entertained in absence of evidence of failure of justice in consequence of trial in wrong
Court. In order that an objection to the place of suing may be entertained by an
appellate or revisional Court, following three conditions must be fulfilled, namely, (1)
The objection was taken to the Court of first instance, (2) It was taken at the earliest
possible opportunity and in cases where issues are settled, at or before such
settlement, (3) there has been a consequent failure of justice. All these three
conditions must co-exist.741
"Unless there has been a consequent failure of Justice".—
The condition "Unless there has been a consequent failure of Justice" mentioned in
section 21 implies that at the time when the objection is taken in the appellate or
revisional Court, the suit has already been tried on merits. The section does not
preclude the objection as to the place of suing, if the trial Court has not given a verdict
on the merits at the time when the objection is taken in the appellate or revisional
Court.742
Lack of Jurisdiction.—
It should be noted that there is a difference between inherent lack of jurisdiction which
goes to the root of jurisdiction or competence of a party to try a case and a mere lack
of territorial or pecuniary jurisdiction. An objection regarding lack of territorial or
pecuniary jurisdiction is merely technical and does not go to the root of the jurisdiction
of the Court to try a case. It is well settled that such objections can be waived by a
party and are capable of being cured by acquiescence, order of the Court or in other
respects as provided by law. A party subsequently be precluded from taking them,
though consent and waiver cannot cure inherent lack of jurisdiction.743
Even though the objection has been raised at the earliest opportunity and wrongly
disallowed, the judgment will not be disturbed unless the trial in the wrong Court had
led to a "failure of justice".744
Sub-section (2) was added by the Amending Act of 1976 in order to expediting the
disposal of suits. It has now been provided by this sub-section (2) that the objection
with regard to pecuniary jurisdiction must be raised at the earliest opportunity.
Similarly, sub-section (3) was added to this section to the effect that objections as to
the territorial competence of an executing Court should be disallowed unless such
objection was taken at the earliest.
A distinction must be made between a jurisdiction with regard to subject matter of the
suit and that of territorial and pecuniary jurisdiction. If the case of raising objection
falls within the former category the judgment would be nullity, in the latter it would not
be.745
732 Section 21 Re-numbered as sub-section (1) by Act 104 of 1976, section 8 (w.e.f. 1-2-1977).
733 Ins. by Code Of Civil Procedure (Amendment) Act 104 of 1976, section 8 (w.e.f. 1-2-1977).
734 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 (342) : (1955) 1 SCR 117 : (1954) 2 MLJ 60
: 1954 ALJ 551 .
735 Oriental Bank of Commerce v SK Agarwal, 2008 AIHC (NOC) 610 (Cal) : AIR 2008 Cal 148 ;
APD No 179 of 2001, Dt 15 May 2008 (DB).
736 Harsad CL Modi v DLF Universal Ltd, AIR 2005 SC 4446 .
737 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 (342) : (1955) 1 SCR 117 : (1954) 2 MLJ 60
: 1954 ALJ 551 .
738 Kunneema Umma v P Balakrishnan, AIR 1967 Ker 97 .
739 RSDV Finance Co Pvt Ltd v Shree Ballabh Glass Works Ltd, AIR 1993 SC 2094 (2098) : (1993)
2 SCC 130 : (1993) 78 CC 640 .
740 Indermani Kirtipal v UOI, AIR 1996 SC 1567 : (1996) 2 SCC 437 .
741 Pathumma v Kuntalan Kutty, AIR 1981 SC 1683 : (1981) 3 SCC 589 .
742 Bahrein Petroleum Co v PJ Pappu, AIR 1966 SC 634 (636) : (1966) 1 SCR 461 ; Kiran Singh v
Chaman Paswan, AIR 1955 SC 340 : (1955) 1 SCR 117 (relied on).
743 Hiralal v Kalinath, AIR 1962 SC 199 ; see also Kiran v Chaman, AIR 1954 SC 340 : (1955) 1
SCR 117 .
744 Petroleum Co Ltd v Pappu, AIR 1966 SC 634 : (1966) 1 SCR 461 . See also Yogeshwar Raj v
Yograj, AIR 1967 Punj 163 : 68 Punj LR 214; Abdul Azeem v Fahimunnisa, AIR 1969 Mys 226 and
Indermal v Ram Prasad, AIR 1970 MP 40 .
745 Mantoo Sarkar v Oriental Insurance Co Ltd, AIR 2009 SC 1022 (1026) : (2009) 2 SCC 244 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 21A. Bar on suit to set
aside decree on objection as to place of suing
© 2020 LexisNexis
Place of Suing
[S. 21A. Bar on suit to set aside decree on objection as to place of suing
746 No suit shall lie challenging the validity of a decree passed in a former suit
between the same parties, or between the parties under whom they or any of them
claim, litigating under the same title, on any ground based on an objection as to the
place of suing.
Explanation.—The expression "former suit" means a suit which has been decided prior
to the decision in the suit in which the validity of the decree is questioned, whether or
not the previously decided suit was instituted prior to the suit in which the validity of
such decree is questioned.]
COMMENT.—
Section 21-A was inserted in order to get over a conflict of judicial views. Now if a
decree is passed against a person without objection as to jurisdiction having been
raised, that person cannot in a subsequent suit, attack, the decree on the ground of
want of jurisdiction.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 22. Power to transfer suits
which may be instituted in more than one Court.
© 2020 LexisNexis
Place of Suing
S. 22. Power to transfer suits which may be instituted in more than one Court.
Where a suit may be instituted in any one of two or more Courts and is instituted in
one of such Courts, any defendant, after notice to the other parties, may, at the
earliest possible opportunity and in all cases where issues are settled at or before
such settlement, apply to have the suit transferred to another Court, and the Court to
which such application is made, after considering the objections of the other parties
(if any), shall determine in which of the several Courts having jurisdiction the suit
shall proceed.
COMMENT.—
The power of the transfer given by section 22 is not a general power as in section 24. It
is limited to cases in sections 16 and 20 of the Code, where the plaintiff has the option
to sue in more Courts than one.747 If the defendant pleads want of jurisdiction of Court
in which suit has been instituted, he cannot apply under this section for transfer.748 The
words "shall determine" under this section mean that the Court shall make an order of
transfer.749
A case before Family Court was ordered to be transferred to the place of residence of
the wife-respondent to her convenience.750
Where the other party agrees to bear expenditure of travel and stay of petitioner
whenever she attends the Court, the transfer of matter was held to be not
necessary.751
Ordinarily the plaintiff has the right to choose the place of his choice of the two or more
Courts in which he may properly institute a suit. But the defendant may apply in such
cases to have the suit transferred from the Court in which it is filed to another Court
which has also the jurisdiction to hear the suit. Thus, the defendant has to do after
notice to the other party at the earliest possible opportunity as in all cases where
issues are settled at or before such settlement.
Very strong reasons must be shown to deprive the plaintiff of his right to choose his
forum. Conditions in section 22 are mandatory.752
747 Khatija Bibi v Taruk, (1883) 9 Cal 980 .
748 Krishnaji Rao v Gokaldas, AIR 1955 Mys 115 .
749 David v James, AIR 1958 Ker 82 .
750 Shakuntala Modi v OP Bharuka, AIR 1991 SC 1104 : (1991) 2 SCC 706 .
751 Shiv Kumar Devendra Ojha v Ramajor Shitla Prasad Ojha, AIR 1997 SC 1036 : (1997) 2 SCC
452 .
752 Monoharlal v Seth Hira Lal, AIR 1962 SC 527 : 1962 Supp (1) SCR 450 : 1963 ALJ 169 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 23. To what Court
application lies.
© 2020 LexisNexis
Place of Suing
S. 23. To what Court application lies.
(1) Where the several Courts having jurisdiction are subordinate to the same
Appellate Court, an application under Section 22 shall be made to the Appellate
Court.
(2) Where such Courts are subordinate to different Appellate Courts but to the
same High Court, the application shall be made to the said High Court.
(3) Where such Courts are subordinate to different High Courts, the application
shall be made to the High Court within the local limits of whose jurisdiction the
Court in which the suit is brought is situate.
COMMENT.—
This section is not an independent section. It is a supplement to section 22. This

section provides the forum for making application for transfer.
Applicability of the section.—
Application for the transfer of a suit would lie (i) to the Appellate Court where the
several Courts having jurisdiction are under the same Court of Appeal; (ii) it would lie to
High Court where several Courts are under the same High Court although under
different Appellate Courts, (iii) it would lie to the High Court within the local limits of
whose jurisdiction the Court in which the suit is brought is situate where such Courts
are subordinate to different High Courts.
A High Court has no power, authority or jurisdiction to transfer a case, appeal or other
proceedings pending in a Court subordinate to it to any Court subordinate to another
High Court in purported exercise of power under section 23(3) of the Code. It is only
Supreme Court which can exercise the said authority under section 25 of the Code.753
753 Durgesh Sharma v Jayshree, AIR 2009 SC 285 (296).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 24. General power of
transfer and withdrawal.
© 2020 LexisNexis
Place of Suing
S. 24. General power of transfer and withdrawal.
(1) On the application of any of the parties and after notice to the parties and after
hearing such of them as desire to be heard, or of its own motion without such
notice, the High Court or the District Court may at any stage—
(a) transfer any suit, appeal or other proceeding pending before it for trial
or disposal to any Court subordinate to it and competent to try or
dispose of the same, or
(b) withdraw any suit, appeal or other proceeding pending in any Court
subordinate to it, and—
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any Court subordinate to
it and competent to try or dispose of the same; or
(iii) retransfer the same for trial or disposal to the Court from which
it was withdrawn.
(2) Where any suit or proceeding has been transferred or withdrawn under sub-
section (1), the Court which 754[is thereafter to try or dispose of such suit or
proceeding] may, subject to any special directions in the case of an order of
transfer, either retry it or proceed from the point at which it was transferred or
withdrawn.
755
[(3) For the purposes of this section,—
(a) Courts of Additional and Assistant Judges shall be deemed to be

subordinate to the District Court;
(b) "proceeding" includes a proceeding for the execution of a decree or

order.]
(4) The Court trying any suit transferred or withdrawn under this section from a
Court of Small Causes shall, for the purposes of such suit, be deemed to be a
Court of Small Causes.
756
[(5) A suit or proceeding may be transferred under this section from a Court
which has no jurisdiction to try it.]
COMMENT.—
This section deals with the general power of a High Court or a District Court to either
transfer or withdraw any suit etc., on the application of any of the parties. The power
may be exercised at any stage of the proceeding and even suo motu by the Court
without any application.757 A proceeding before the Civil Court arising out of the
reference under section 146(1) Code of Criminal Procedure, 1973 can be transferred
under section 24 by the District Court because it is in any case a "proceeding" as
contemplated by section 141 Code of Civil Procedure .758 However, no order for the
transfer of a suit from one Court to another would be passed under this section unless
the suit in the first instance was brought in a Court of competent jurisdiction.
Where a plaint was returned to plaintiff for presentation to proper Court on grounds of
want of jurisdiction, it would not be a case of "transfer" of suit but of lack of jurisdiction
of Court in which it was earlier filed on presentation of the plaint to proper Court it
would not be treated as continuation of proceedings. The suit could not be divided to
be tried from stage at which it has been transferred.759
Thus, apart from other provisions there is the general power of transfer and withdrawal
vested in the High Court or the District Court which on the application of any parties
and after notice to the parties, and after hearing such of them as desired to be heard, or
of its own motion without such notice, can:
(i) transfer any suit, appeal or other proceeding pending before it for trial or
disposal to any Court subordinate to it and competent to or dispose of the same;
or
(ii) withdraw any suit, appeal or other proceedings pending in any Court subordinate
to it, and try or dispose of the same or transfer the same for trial or disposal to
any Court subordinate to it and competent to try or dispose of the same or
retransfer the same for trial or disposal to the Court from which it was
withdrawn.
The purpose of section 24 of the Code is merely to confer on the Court a discretionary
power. A Court acting under section 24 of the Code may or may not in its judicial
discretion transfer a particular case. This section does not prescribe any ground for
ordering the transfer of a case. In certain cases, it may be ordered suo motu and it may
be done for administrative reasons. But when an application is made for transfer by a
party, the Court is required to issue notice to the other side and hear the party before
directing transfer.760
Grounds of transfer.—
Convenience of the parties though sufficient ground for taking action under this
section, particularly when parties are required to approach specific different forums, yet
it is not the sole criterion. As a general rule, the Court should not interfere unless the
expenses and difficulties of the trial would be so to lead injustice or the suit has been
filed in a particular Court for the purpose of working injustice.
The mere convenience of the parties may not be enough for the exercise of power, but
it must also be shown that trial in the chosen forum will result in denial of justice.761
In matrimonial proceedings initiated by husband against wife, it is convenience of wife

that must be looked at. Accordingly, the suit should be transferred to the Court at the
wife's place.762
Application for transfer of marriage petition from "Kalyan" to Jalgaon was filed. The
distance between Kalyan to Jalgaon is more than 400 kms. Apart from the distance the
applicant has a 4-year-old child. The applicant has to look after the child and if the
balance of convenience is to be weighed it is certainly in favour of applicant. There are
proceedings also pending between the parties in Jalgaon court, out of which one is
even filed by respondent. Therefore, the court allowed the application.763
In peculiar facts and circumstances a divorce petition which is pending in a Court can
be transferred to another Court.764
Where the trial court granted the transfer application without going into the merits of
allegations, the High Court held that the District court should have gone into the
contents of the application and should have satisfied himself of the case to transfer.
Therefore, the application was remanded back to consider afresh.765
Where a counsel, in pursuance of boycott call by Bar Association, abstains from a

Court and reports that he will not attend the Court in future, it cannot be a ground for
transfer of a case. A case will also not be transferred if both the parties have no
objection for change of Court.766
When a petition for transfer of suit is filed, making allegations against the Presiding
Officer, the report if and when called for, should normally be confirmed to the
allegations made against the impartiality or fairness of the Judge. It should not be with
respect of correctness or otherwise of the orders passed by him.767
The petitions for the transfer of writ petitions from High Court to the Supreme Court are
liable to be rejected. In the light of decision of the Supreme Court in a case.768 The
High Court can itself dispose of the petitions.769
Section 21A of the Hindu Marriage Act does not control the power of the High Court
under section 24 of the Code of Civil Procedure. The court has to be sensitive to the
practical difficulties faced by a woman while travelling especially when she has 31/2-
year-old-child and old parents to look after. The court can neither ignore the concept of
gender justice; nor ignore the fact that woman is entitled to seek justice as much as a
man. Thus, the marriage petition transferred from Jodhpur to Jaipur.770
Consolidation of suits was ordered to save costs, time and effort to meet the ends of
justice. Even after an order of consolidation the court was not powerless to dispose of
any suit independently. Suits always retain their independent identity.771
Duty of Court.—
Where Court feels that the plaintiff or the defendant is not likely to have a "fair trial" in
the Court from which he seeks to transfer a case, it is not only the power, but the duty
of the Court to transfer the case.772
The court should go into the contents of the transfer application and should prima facie
be satisfied that the case is made out for transfer. Only then application granting
transfer is valid.773
No case for transfer of suit was made out where parties were different, cause of action
was different and there was no commonality of issues.774
Notice.—No notice is necessary if the Court acts under this section suo motu i.e., of its
own motion. But if an application is made, notice is must and an order for transfer
made without notice will be set aside, and so will an ex parte decree made by a Court to
which a suit has been transferred without notice to the defendant.
Transfer of suit where pecuniary jurisdiction of court was raised.—
Where the suit was transferred, consequent upon issuance of a notification enhancing
the pecuniary jurisdiction of the District Courts, from original side of Delhi High Court to
the ADJ, Delhi even in transferred proceedings the parties were liable to find out likely
dates of hearing of the case.775
Application to the execution-proceedings.—
According to Madras and Patna High Courts this section also applies to the execution
proceedings.776 But Calcutta High Court does not share this view.777
The aforesaid conflict in judicial opinion was set at rest by amending sub-section (2)
which states that the word "proceeding" in section 24 includes a proceeding for the
execution of a decree or order.
As a result of addition of sub-section (5) to this section 24, it has been provided that a
suit or proceeding may also be transferred under this section from a Court which has
no jurisdiction to try it. Thus, the conflict of decision has now been set at rest.
High Court can order withdrawal of suit if process is Abused.—Phrase

"Additional Judges" interpreted.—
The phrase "Additional Judges" in section 24(3)(a) of the Code cannot be interpreted as
"Additional District Judges". Additional Judge and Assistant Judge cannot be deemed
subordinate to District Judge. The application under section 24 of the Code should be
filed before High Court and not before District Court for transferring a suit pending in
an Additional District Court to another Additional District Court.778
A High Court in a revision against an order, noticing that the plaintiff having lost twice
before revenue Court is still pursuing suit for same relief, ordered withdrawal of suit to
its file and disposed of the suit. Such an order of High Court is not without jurisdiction.
Under the concept of abuse of process the Court can refuse a party from pursuing his
remedy in law.779
High Court can suo moto withdraw any suit.—
The High Court has jurisdiction to suo motu withdraw a suit or appeal pending in any
Court subordinate to it to its file and adjudicate itself on the issues involved therein and
dispose of the same.,780
Lack of Jurisdiction alleged.—

Where a party alleges that the Court where the case is pending has no jurisdiction, he
should apply to that Court for dismissing it on this ground. There is no question of
transfer of such a case.781
No transfer of case from District Court to Special Court.—
The District Court cannot withdraw a suit pending before any other subordinate Court
and direct the transfer of the same to the special Court, since the jurisdictions of the
special Court and the District Court are mutually exclusive.782
Appealability of order passed.—
An order passed on an application under section 24 of the Code has not been made
appealable under section 104 of the Code or under any provision of the Code.783
754 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 10(i) (w.e.f. 1-2-
1977) for "thereafter tries such suit".
755 Subs. by ibid, for sub-sec. (3), section 10(ii) (w.e.f. 1-2-1977).
756 Ins. by ibid, section 10(iii) (w.e.f. 1-2-1977).
757 Seshagiri Rao v Somasundaramma, AIR 1949 Mad 65 : (1949) Mad 94. See also Allahabad
Bank v Raja Ram, (1933) 14 Lah 779.
758 Ram Chandra Agrawal v State of UP, AIR 1966 SC 1888 (1891) : 1966 Supp SCR 393 : 1966
CrLJ 1514 .
759 Harshad Chiman Lal Modi v DLF Universal Ltd, AIR 2006 SC 646 (648).
760 Jitendra Singh v Bhanu Kumari, AIR 2008 SC 2987 (2989) : (2009) 1 SCC 130 .
761 DAV Boys Sr Secondary School v DAV College Managing Committee, (2010) 8 SCC 401 (405).
762 Sumita Singh v Kumar Sanjay, AIR 2002 SC 396 : (2001) 10 SCC 41 .
763 Kalpana v Pankaj, AIR 2013 Bom 146 .
764 Renu Gautam v Vinod Gautam, AIR 2000 SC 3405 .
765 Ramesh v Jubeda Begum Abdul Kadar Kazi, AIR 2013 Bom 142 .
766 Mahabir Prasad Singh v Jacks Association Pvt Ltd, AIR 1999 SC 287 : (1999) 1 SCC 37 :
(1999) 1 KLJ 530 .
767 Pushpa Devi Saraf v Jai Narain, AIR 1992 SC 1133 .
768 Tata Tea Ltd v State of WB, AIR 1988 SC 1435 .
769 State of West Bengal v Mahurgong & Gulma Tea Estate, AIR 1988 SC 1450 : 1988 Supp SCC
340 .
770 Anshu Bhatnagar v Rajendra Bhatnagar, AIR 2013 Raj 28 .
771 Mahalaxmi Co-operative Housing Society Ltd and etc v Ashabai Atmaram Patel (D) Th LR's,
AIR 2013 SC 961 .
772 Kulwinder Kaur v Kandi Friends Education Trust, (2008) 3 SCC 659 : AIR 2008 SC 1333 .
773 Ramesh v Zubeda Begum Abdul Kadar Kazi, AIR 2013 Bom 142 .
774 Raheja Builders Pvt Ltd v Rathi Ferrous Trading P Ltd, 175 (2010) DLT 366 (367-68) (DB).
775 John Impex (P) Ltd v Athul Kapur, (2009) 15 SCC 285 (287).
776 Karuppiah v Ayya Nadar, AIR 1965 Mad 485 : (1964) 1 Mad 782 and Dashrath v Baijnath, AIR
1960 Pat 285 .
777 Ranjit Kumar v Gour Hari, AIR 1956 Cal 655 .
778 Manchukonda Venmkata Jagannathan v Chethipatlli Bullamma, AIR 2011 AP 104 .
779 Abdul Rahman v Prasony Bai, AIR 2003 SC 718 : (2003) 1 SCC 488 .
780 Abdul Gafur v State of Uttarakhand, (2008) 10 SCC 97 (103).
781 Neha Arun Jugadar v Kumari Palak Diwanji, AIR 2011 SC 1164 (1165).
782 V Rajeshwar Rao v M Yadgiri Reddy, 2007 (1) ALT 306 (309) (DB).
783 Amit Khanna v Suchi Khanna, II (2009) DMC 227 (All-DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 25. Power of Supreme
Court to transfer suits, etc.
© 2020 LexisNexis
Place of Suing
784[S. 25. Power of Supreme Court to transfer suits, etc.
(1) On the application of a party, and after notice to the parties, and after hearing
such of them as desire to be heard, the Supreme Court may, at any stage, if
satisfied that an order under this section is expedient for the ends of justice,
direct that any suit, appeal or other proceeding be transferred from a High
Court or other Civil Court in one State to a High Court or other Civil Court in
any other State.
(2) Every application under this section shall be made by a motion which shall be
supported by an affidavit.
(3) The Court to which such suit, appeal or other proceeding is transferred shall,
subject to any special directions in the order of transfer, either re-try it or
proceed from the stage at which it was transferred to it.
(4) In dismissing any application under this section, the Supreme Court may, if it is
of opinion that the application was frivolous or vexatious, order the applicant to
pay by way of compensation to any person who has opposed the application
such sum, not exceeding two thousand rupees, as it considers appropriate in
the circumstances of the case.
(5) The law applicable to any suit, appeal or other proceeding transferred under
this section shall be the law which the Court in which the suit, appeal or other
proceeding was originally instituted ought to have applied to such suit, appeal
or proceeding.]
COMMENT.—
The whole section 25 was substituted by a new section. This substituted section now
provides for the transfer to the Supreme Court the existing powers vested with the
State Government and to confer on the Supreme Court such wide powers of transfer as
it has in criminal cases under section 406 of the Code of Criminal Procedure, 1973.
Further, this section covers transfer of cases from or to the original side of a High Court
to or from any other Civil Court.
The paramount consideration in transfer of suit etcetera is that justice according to law
is done. The facts that right of dominus litis to choose forum is affected and some
inconvenience is caused to him are secondary.785
Lack of jurisdiction is no ground for transfer of a case. The petitioners may apply for
dismissal of case on the ground of lack of jurisdiction.786
Thus, the section is wider in scope than even section 406 of the Code of Criminal
Procedure, 1973.
Transfer Allowed.—
A suit for injunction was pending in Court at Delhi. It was sought to be transferred to
the city civil Court, Mumbai. The suit was in respect of a flat gifted by the father of
petitioner's wife, alleged to have been filed by respondent husband with a view to
harass the petitioner due to matrimonial disputes. The petitioner wife had to leave that
apartment at Delhi and to go to her apartments at Mumbai. Considering all the facts
and circumstances to serve the end of justice better, suit pending in Court at Delhi was
directed to be transferred to the city civil Court Mumbai.787
Merely because the plea under section 10 of the Code for stay of suit has been
rejected, the Court is not denuded of exercise of power to transfer the suit, if end of
justice call for exercise of such power.788
A matrimonial suit was filed by the husband in West Bengal. The wife, working at Delhi,
sought its transfer to Delhi as she would face difficulty in attending day to day
proceedings in West Bengal. No counter was filed by the husband. The suit was
transferred.789
In a matrimonial suit the wife alleged that she was kidnapped. Her signature was
forcibly taken before Marriage Registrar to show that she had married with respondent.
And that she had managed to run away from custody of respondent. She apprehended
threat of bodily injury/death if she visited place of marriage. Paucity of funds to engage
counsel at place of suit was also alleged. Allegations were not refuted by the
respondent. The suit was transferred.790
Two suits relating to payment to be made to discounting bank in Madras, one in District
Judge's Court in MP and another in Madras High Court, were common and taking of
evidence had not commenced. The suit in MP Court was ordered to be transferred in
Madras High Court.791
A suit for damages arising out of civil proceeding in Delhi High Court pending in
original side of Calcutta High Court, was transferred to original side of Delhi High Court
in the end of justice and for the convenience of the parties by the Supreme Court.792
Consolidation of cases before one court justified when there are identical issues,
convenience of parties and there are suits filed against petitioner at various places and
the issues are almost the same. Thus, all the cases pending against the petitioner were
transferred to the High Court of Delhi.793
Where earlier guardianship petition was transferred to the Court of District Judge in
Lucknow from Court of ADJ Tis Hazari, Delhi, the present petition which has been filed
by the mother of ex-husband of the petitioner and grandmother of the child (for whom
this guardianship petition has come up), was also transferred to the District Judge of
Lucknow.794
Comparative Hardship should not be over looked while considering transfer

application.795
Where the petitioner-wife was unemployed, had a small child, lived with her retired
parents and other four cases were already pending within jurisdiction of the Calcutta
High Court, her petition for transfer of suit to Calcutta High Court from Madras High
Court was liable to be allowed.796
Where husband and wife appearing before Lok Adalat agreed that they want divorce by
mutual consent and also agreed not to proceed in pending criminal and civil disputes,
the petition was disposed of in terms of settlement.797
Where there may be two or more Courts which can entertain a suit consequent upon a
part of cause of action having arisen there within, if the parties to the contract agree to
vest jurisdiction in one such Court to try the dispute, which might arise between them,
the agreement would be valid.798
Where the minor children are residing with their father at Delhi, custody proceedings by
their mother residing at Chandigarh, would lie at Delhi. The proceedings directed to be
transferred to Guardian and Wards Court, Delhi from Chandigarh Court.799
Where in a petition for divorce the wife seeks transfer of the case from Bokaro Court to
Delhi Court and both the parties agreeing that their marriage should be dissolved by
mutual consent, the case is to be transferred.800
Retransfer of Transferred Suit.—
Where a suit was transferred for joint trial with another suit which was decreed and an
appeal against the decree was pending, then an application was filed for retransfer of
the transferred suit, the Supreme Court instead of ordering retransfer, directed the trial
Court to frame issues and record evidence on day to day basis and to prevent
conflicting decisions transmit the records to appellate Court for disposal alongwith the
pending appeal.801
Transfer of case from one Bench of Supreme Court to another.—
Where oral hearing of a case was concluded and the Bench expressed opinion in open
Court for allowing appeal, an application for transfer of the case making mischievous
and frivolous objections was rejected. No party is entitled to get a case transferred
from one Bench to the other, unless the Bench is biased or there are some reasonable
grounds for the same. No such right can legitimately be claimed merely because the
judges express opinion on the merits of the case on the conclusion of hearing.802
Inter-state Transfer.—
It was held that Bombay High Court committed jurisdictional error by entertaining the
transfer application as it does not possess the power to transfer a case pending before
a subordinate court of another High Court. Section 25 of the Code of Civil Procedure,
1908 clearly envisages that the power relating to the inter-state transfer and transfer of
cases from one High Court to another High Court or its subordinate courts is vested
solely on this court and not on the High Courts.803
Transfer of case, exercise of discretionary jurisdiction.—
Only the consideration which is relevant is "expediency for ends of justice". The Court
would also have regard to and respect for rules enacted in section 10 of the Code.
However, departure from section 10 can be made by the Supreme Court in appropriate
cases. In the sale of "Heart-Lung Machine" to the plaintiff-hospital the performance of
machine was not found to be satisfactory. The plaintiff filed a suit in Nasik against
dealer for recovery of amount. The dealer also filed a suit in Delhi against the plaintiff
for recovery of outstanding amount by way of balance price of machine and interest
thereon. Both the suits arose out of same cause of action. The suit of Nasik was
instituted first in point of time. The Court followed ordinary rule and transferred the suit
from Delhi to Court at Nasik.804
A matrimonial suit pending in Family Court at Indore was transferred to Family Court at
Bombay on the application of the wife for such transfer on the ground of the distance
between two places and that the wife had no one in the family to escort her.805
Matrimonial suit was decreed ex parte and the application for setting it aside was also
dismissed for default. Transfer petition filed in Supreme Court after such dismissal
being infructuous was dismissed, the court held that petitioner can file fresh transfer
petition if the matrimonial suit is restored to its original file.806
Identity of cause of action.—
In a contract for supply of jute bags between the plaintiff company and defendant
company, the goods supplied were found to be defective and, therefore, returned. The
suits were filed by both the companies against each other for recovery of amount
before different Courts. The cause of action was alleged in two plaints referred to the
same period and same transaction. Issues arose were common. Almost same set of
oral and documentary evidence was required to be adduced. Possibility of conflicting
decrees was not ruled out. The suit instituted at later points of time was directed to be
transferred to Court whether earlier suit was filed.807
Transfer of case, power of Supreme Court.—
A suit sought to be transferred was associated with two matters already ordered to be
transferred by the Supreme Court. In view of this fact the suit in question was also
directed to be transferred to the same High Court. However, as already over-burdened
the High Court had another case added to its pendency, an observation was that the
judge may liberally exercise his power of recording of evidence on commission except
material witnesses as per direction of Court.808
The Supreme Court alone can order for transfer of the case where several Courts
having jurisdiction are subordinate to different High Courts.809
Infructuous transfer.—
Relying on the two decisions in Swati Verma case, (2004) 1 SCC 123 and Sanghamitra
Ghosh case, (2007) 2 SCC 220 applications for conversion of suit under section 13 of
Hindu Marriage Act to one under section 13-B for divorce by mutual consent allowed
and the marital ties between the parties dissolved. Hence, transfer petition and suit
under section 13 being infructuous were dismissed.810
Transfer of matrimonial proceedings in favour of woman.—

In a matrimonial dispute, proceedings can be transferred at a convenient place in
favour of woman with minor child.811
Transfer of case from one DRT to another.—
The transfer petitions were allowed from DRT, Jabalpur to the Debts Recovery Tribunal
at Allahabad.812
Transfer of suit on joint compromise petition.—
Where parties had filed joint compromise petition in Supreme Court for transfer of
matrimonial petition, it was remitted to the trial Court for passing necessary orders.813
Section 25 distinguished from section 23, Code of Civil Procedure .—
The section 25 of the Code contains both substantive as well as procedural law.
Section 23, on the other hand, is merely a procedural or machinery provision. No order
of transfer can be made thereunder.814
784 Subs. by Act 104 of 1976, section 11 for section 25 (w.e.f. 1-2-1977).
785 Subramanium Swamy v Ramakrishna Hegde, AIR 1990 SC 113 : (1990) 1 SCC 4 .
786 Neha Arun Jugadar v Palak Diwan Ji, AIR 2011 SC 1164 .
787 Reena Mehra v Rohit Rai Mehra, AIR 2003 SC 1002 (1004) : (2003) 2 SCC 291 .
788 Chitivalasa Jute Mills v Jaypee Rewa Cement, AIR 2004 SC 1687 .
789 Shyamli Ghos v Sumit Ghos, AIR 2000 SC 3351 ; see also Ravinder Kaur v Hitinder Singh, AIR
2000 SC 3403 ; Lalita A Ranga v Ajai C Ranga, AIR 2000 SC 3406 ; Mona Aresh Goel v Aresh S
Goel, AIR 2000 SC 3512 ; Rita Barua v Siddharth Barua, AIR 2000 SC 3514 ; Theja v Nagarjuna, AIR
2000 SC 3529 ; Munni Kumari v SK Chaudhary, AIR 2000 SC 3565 ; Raj Lakshmi Sharma v Dilip K
Sharma, AIR 2000 SC 3572 ; M Premlata v S Sivaram, AIR 2000 SC 3575 (I); Savitri v Hari Chand,
AIR 1999 SC 55 : (1998) 3 SCC 71 .
790 Priyanka Vishwas v Subrato Vishwas, AIR 2005 SC 3119 .
791 Indian Overseas Bank v Chemical Constructions, AIR 1979 SC 1514 (1516) : (1979) 3 SCC
358 .
792 Arvee Industries v Ratan Lal Sharma, AIR 1977 SC 2429 (2431).
793 Supreme Court Bar Assn (Regd) v Pankaj Kumar Mishra, (2010) 15 SCC 136 .
794 Ritu Ratam v Sukhbans Km Sirohi, (2009) 14 SCC 682 (683).
795 Vaishali Shridhar Jagtap v Shridhar Vishwanath Jagtap, AIR 2016 SC 3584 .
796 Rakhi Banerjee v Subhankar Mukherjee, AIR 2009 SC 928 (929), see also Shree Vaidyanath
Ayurved Bhawan (P) Ltd v Praveen Bhatia, (2009) 8 SCC 779 ; Purnima Sailani v Shailendra Sailani,
(2009) 1 SCC 656 .
797 Aparna Goyal v Rakesh Goyal, AIR 2009 SC 1836 .
798 Balaji Coke Industry (P) Ltd v Maa Bhagwati Coke Gujarat (P) Ltd, (2009) 9 SCC 403 (408),
see also ABC Laminart's case, (1989) 2 SCC 163 .
799 Pooja Bahadur v Uday Bahadur, AIR 1999 SC 1741 : (1999) 4 SCC 348 .
800 Seema Shrinidhi v Praveen Kumar Tiwari, AIR 1999 SC 1560 .
801 Bihar State Food & Supplies Corpn Ltd v Godrej Soaps Pvt Ltd, AIR 1997 SC 3779 : (1997) 1
SCC 748 .
802 Gujarat Electricity Board v Atmaram Sungomal Poshami, AIR 1989 SC 1433 (1435) : (1989) 2
SCC 602 : (1989) SCC (L&S) 393.
803 P Ayyarnar Pothi v Supriya Ayyarnar Pothi, AIR 2017 SC 2695 : (2018) 11 SCC 686 .
804 Gupta Cardiac Care Centre v OP Care Pvt Ltd, AIR 2004 SC 2339 .
805 Anjali Ashok Sadhwani v Ashok Kishni Chand Sadhwani, AIR 2009 SC 1374 : (2009) 16 SCC
188 , see also Vandana Sharma v Rakesh Kr Sharma, (2008) 11 SCC 768 (769).
806 Gyanmati Yadav v Ram Sagar Yadav, (2013) 14 SCC 621 .
807 Chitivalasa Jute Mills v Jaypee Rewa Cement, AIR 2004 SC 1687 (1689).
808 Mohit Kumar v Dato Mohan Swami, AIR 2004 SC 3682 .
809 Durgesh Sharma v Jayshree, 2009 (1) Mh LR (SC) 66 : 2009 (2) Bom CR (SC) 763 (D) :
(2008) 9 SCC 648 (664).
810 Ashita Pancholia v Viral M Pancholia, (2008) 15 SCC 114 (115).
811 Arti Rani v Dharmendra Kr Gupta, (2008) 9 SCC 353 (354).
812 Jai Shiva Cement (P) Ltd v Allahabad Bank, Meerut, (2009) 8 SCC 708 .
813 Pooja Bashistha v Bhupendra Bashistha, AIR 2009 SC 1673 .
814 Nahar Industrial Enterprises Ltd v Hong Kong & Shanghai Banking Corpn, (2009) 8 SCC 646
(683), see also Durgesh Sharma v Jayshree, (2008) 9 SCC 648 (666).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 26. Institution of Suits.
© 2020 LexisNexis
Institution of Suits
S. 26. Institution of Suits.
815
[(1)] Every suit shall be instituted by the presentation of a plaint or in such
other manner as may be prescribed.
816
[(2) In every plaint, facts shall be proved by affidavit ]817.
SPECIAL AMENDMENT
Commercial dispute of a Specified Value.—In its application to any suit in respect of a

commercial dispute of a Specified Value, in section 26, in sub-section (2), insert the
following proviso, namely:— "Provided that such an affidavit shall be in the form and
manner as prescribed under Order VI of rule 15A.". [Vide Act 4 of 2016), Sec. 16 and
Sch.—1 (w.r.e.f. 23-10-2015).]
COMMENT.—Important Note:
Comments, Case Law and State/High Courts Amendments hereinafter should be read
keeping in view the amendments made by the Code of Civil Procedure (Amendment)
Act, 1999 (w.e.f. 1-7-2002).
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002):—
Modification.—This section has been amended with the following modifications:
1. The existing section 26 has been renumbered as sub-section (1) and after
subsection (1), a new sub-section has been inserted.
2. New sub-section (2) provides that in every plaint facts must be proved by
affidavit. This amendment has set at rest the different rules made by different
High Courts regarding presentation of plaint and made a uniform rule of filing
affidavit to prove facts in every plaint.
Notes on Clauses.—Notes on Clauses of the Code of Civil Procedure (Amendment) Bill,

1999 stated thus:
In Section 26 of the Code, a suit is instituted by presentation of a plaint or in such other

manner as may be prescribed by rules made by High Court. Since these rules are different
with different High Courts, the requirements for institution of suit are not uniform. The rules
made by some High Courts require plaint to be supported by an affidavit stating the
genuineness of the claim of the plaintiff and of the documents on which he relies upon
while no such affidavit is required under the rules made by some High Courts. With a view to
bring uniformity and lay down simple procedure to complete the pleadings, clause 2
amends Section 26 of the Code and provides that facts must be proved by affidavit in every
plaint. [Clause 2].
No retrospective effect.—Code of Civil Procedure. (Amendment) Act, 1999, section
32(2)(a) (of the repeal and saving section) stipulates that the provisions of section
26(2) of the principal Code, as amended by section 2 of the Amendment Act, 1999 shall
not apply to or affect any suit pending immediately before the commencement of the
present amendment; and every such suit shall be tried as if the present amendment
had not come into force.
Effective date (1 July 2002).—The amendments of the provision have come into force
w.e.f. 1-7-2002 vide Notfn SO 603(E), dt 6 June 2002.
Comments on the Amendment Act, 1999.—
Affidavit for proof of facts.—The amended section prescribes a new procedure for
institution of suits in the civil Courts of original jurisdiction. Hitherto a plaint was
required among other things to state only the facts of the case. Now an affidavit in
support of the factual base of the case would have to be filed alongwith the plaint. A
plaint will not be entertained without an affidavit in proof of facts stated in the plaint. A
party becomes bound by the contents of his affidavit. He would not be able to go back
upon facts stated in the affidavit. To that extent neither any evidence, nor any
witnesses would be needed. The delaying process of taking evidence would be cut
short to that extent. (Report of the Law Commission dated Nos 27, 1978, Chapter 6, pp
20–21).
The affidavit should contain the genuineness of the claim made by the plaintiff and the
document on which he relies upon to establish his claim. If all the things are stated in
the affidavit there may not be any need to have oral evidence. The suit will have to be
decreed on the basis of the averments made in the affidavits unless they are
contradicted by the opposite party. In short, the affidavit must speak for itself.
According to this section, every suit shall be instituted by presenting a plaint to the
Court or to such officer as it appoints in that behalf. A suit is instituted when the plaint
is presented and not when it is registered.818 There is nothing in this Code to suggest
that a plaint should be presented during Court hours only or within Court premises,
hence the Judge or any other officer authorised to accept may account it outside the
office hours or the Court building.
(See also Order IV rule 1, Code of Civil Procedure, 1908)
When statute requires filing of suit, it must be instituted only in manner prescribed and
in no other manner such as by filing original petition.819
Suit.—
The word "suit" has nowhere been defined in the Code of Civil Procedure. However, their
Lordships of the Privy Council made an attempt to define the word "suit" in Hansraj v
Dehradun Mussoorie Electric Tramways Company Ltd, AIR 1933 PC 63 as under".
The word "suit" ordinarily means a civil proceeding instituted by presentation of a plaint.
This definition is not exhaustive, because it contemplates only a proceeding which is
instituted by the presentation of a plaint. (A plaint in law means "a private memorial
tendered to a Court in which the person sets forth his cause of action; the exhibition of
an action in writing"). Apart from it, any such proceeding under another enactment
which according to specific provisions contained therein should also be regarded as a
suit under the Code. As for example the proceedings under section 295 of the Indian
Succession Act, 1925 are regarded as a suit.820 Similarly, proceedings under the Hindu
Marriage Act, 1955, is a suit though these are initiated by a petition,821 and so is an
application under section 20 of the Indian Arbitration Act, 1940.822 A proceeding under
the Land Acquisition Act is not, however, a suit.823 But proceedings instituted on filing
of an application under O XXXIII rule 1, is a suit.824
An affidavit fixes an additional responsibility a deponent about truth of facts stated. A

fresh affidavit is required on amendment. Affidavit so filed is, however, not evidence at
trial.825
Application for leave to sue as a pauper—Whether a suit?.—
There is a conflict of opinion whether an application for leave to sue as a pauper can be
treated as a suit, before leave is granted and the suit is registered. One view is that as
the presentation of the plaint is only one mode of instituting a suit and a suit can be
instituted in any other manner that may be prescribed. An application for leave to sue
as a pauper may itself be treated as a suit.826 The contrary view is that it is not a
suit.827
Section 26(2)—Affidavit not as per prescribed format.—
Election Petition was filed along with affidavit. However, the same was not as per
prescribed format and was with a defective verification. It was held that these defects
are curable and that opportunity ought to be granted to cure defects.828
Particulars to be contained in the plaint.—
See O VII rule 1, Code of Civil Procedure, 1908.
Additional particulars in certain plaints.—
See O VII rules 2 to 9, Code of Civil Procedure, 1908.
Place of presentation of plaint.—
See O IV rule 1, Code of Civil Procedure, 1908.
Persons by whom and to whom to be presented.—

Time of presentation.—
Return of plaint.—
See O VII rule 10, Code of Civil Procedure.
Appeal against an order returning plaint.—
See O LXIII rule 1, Code of Civil Procedure.
Rejection of plaint.—
See O VII rules 11,12 and 13, Code of Civil Procedure, 1908.
Parties of suit.—
See O I Code of Civil Procedure, 1908.
Framing of suit.—
See O II Code of Civil Procedure, 1908.
Effect of Amendment Act, 2002.—
Where amendment to section 26 was aimed at eliminating the procedural delays in

disposal of civil matters, it being directory only, the non-compliance thereof would not
render the plaint non est.829
815 Section 26 re-numbered as sub-section (1) and sub-section (2) inserted by the Code of Civil
Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-
2002, Section 2.
816 Section 26 re-numbered as sub-section (1) and sub-section (2) inserted by the Code of Civil
2002, Section 2.
817 See Amendment for Commercial Dispute of a Specified Value vide the Commercial Courts,
Commercial Division and Commercial Appellate Division of High Courts Act, 2015 (4 of 2016),
Section 16 and the Schedule (w.r.e.f. 23-10-2015).
818 (1970) 72 Bom LR 697 . See also Kanji v Manglaben, AIR 1969 Guj 308 : 10 Guj LR 1011 and
1964 Cur LJ 449 (Punj).
819 Sinnamani v G Vettivel, AIR 2012 SC 2372 .
820 Puinbasi Majhiani v Shiba Bhue, AIR 1967 Ori 41 : (1966) Cut 213. Section 295 of the Indian
Succession Act, 1925, reads thus: "In any case before the District Judge in which there is a
contention, the proceeding shall take, as nearly as may be, the form of a regular suit according
to the provisions of Code of the Civil Procedure, 1908, in which the petitioner for probate or
letters of administration, as the case may be, shall be the plaintiff and the person who has
appeared to oppose the grant shall be the defendant."
821 Nandkishore v Parwatibai, 1967 Jab LJ 712 .
822 Consolidated Engineering Company v UOI, AIR 1966 Cal 259 .
823 Palakathumala Dewaswami v Ulahannan, AIR 1970 Ker 30 (FB).
824 Shripati Kuer v Malti Devi, AIR 1967 Pat 320 .
825 Salem Advocate Bar Association v UOI, AIR 2005 SC 3353 (3357).
826 Matuki v Kamakhya Prasad, AIR 1958 Pat 264 (FB) : 37 Pat 331. See also Shripati Kuer v
Malti Devi, AIR 1967 Pat 320 ; Narayan v Mohani Devi, AIR 1964 Raj 279 ; Kunji Mulji v Mangalben,
AIR 1969 Guj 308 .
827 Janadau v Anand Mahadeo, (1883) 7 Bom 373 (DB). See also Narayanappa v DV
Narayanamurthy, AIR 1952 Mys 76 .
828 GM Siddeshwar v Prasanna Kumar, AIR 2013 SC 1549 .
829 Vidyawati Gupta v Bhakti H Nayak, AIR 2006 SC 1194 (1204).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 27. Summons to
defendants.
© 2020 LexisNexis
Summons and Discovery
S. 27. Summons to defendants.
Where a suit has been duly instituted, a summons may be issued to the defendant to
appear and answer the claim and may be served in manner prescribed830 [ on such
day not beyond thirty days from the date of the institution of the suit ].
COMMENT—Important Note.—
Comments, Case Law and State/High Court Amendments hereinafter should be read
keeping in view the Amendments made by the Code of Civil Procedure (Amendment)
Act, 1999 (w.e.f. 1-7-2002).
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002)
Modification.—This section has been amended by insertion at the end of the section the
words "on such day not beyond thirty days from the date of the institution of the suit".
The object of amending section 27 is to fix time frame for sending summons to

defendants. It provides thirty days from the institution of suit, within which summons
should be sent to defendants.

1999 stated thus:
"Clause 3 amends section 27 of the Code with a view to lay down a fixed time frame to
send summons to defendants. It seeks to provide 30 days from the institution of suit
within which summons should be sent to defendants." [Clause 3].
No retrospective effect.—Code of Civil Procedure (Amendment) Act, 1999, section 32(2)

(b) (of the repeal and savings section) stipulates that the provisions of section 27 of
the principal Code, as amended by section 3 of the Amendment Act, 1999 shall not
apply to or affect any suit pending immediately before the commencement of section 3
thereof and every such suit shall be tried as if section 3 thereof had not come into
force.
Service of summons within 30 days.—The amendment to section 27 of the Code of Civil

Procedure provides a period of limitation for service of summons on the defendant. As
per this amendment, the summons should be served on the defendants within thirty
days from the date of the institution of the suit. This new procedure would have the
effect of eliminating delays in the service of summons and thereby mitigate evil of
prolongation of litigation [See also O V, rule 1, 9 and 9A, and O VII, rule 9].
The amendment has no retrospective effect. Where any suit is filed, after this
amendment, summons has to be served on the defendant within thirty days. The
pending proceedings shall be tried as per the provisions of the old Code and not as per
the amended provisions. The pending suits shall be tried as if the amendments to
section had not came into force.
Amendments do not suffer from constitutional infirmity.—
Amendments made by 1999 and 2002 Acts do not suffer from any constitutional
infirmity. The words "on such day not beyond thirty days from the date of the institution
of the suit" do not mean that the summons must be served within thirty days of the
date of the institution of the suit. The word added by the amendment, fix outer time
frame by providing that steps must be taken within thirty days from the institution of
the suit, to issue summons. It is quite evident that if all that is required to be done by a
party, has been performed within the period of thirty days, then no fault can be
attributed to the party.831
Summons.—
It is a document issued from the office of a Court of law calling upon the person to
whom it is issued to attend before a Judge or Officer of the Court on the day mentioned
therein.
Where a suit has been duly instituted by filing a plaint the first duty of the Court is to
issue a summons calling on the defendant to appear and answer the claims on a day
specified therein either in person or by pleader able to answer all material questions.
The summons has to mention the date of hearing and not date for filing the written
statement.832 A summons mentioning a date for appearance which is a holiday is not
proper summons. No law or procedure requires the defendant to appear on the next
following day in such cases.833
No summons when the defendant appears and admits the claim.—
When the defendant has appeared at the time of the presentation of plaint and
admitted the claim of the plaintiff, no such summons shall be issued to him.834
Essentials of summons: Every summons shall—
(i) intimate to the defendant of the date of hearing and whether he is to appear in
person or by a pleader;
(ii) contain a direction whether the date is fixed for the settlement of issues or for
final disposal of the suit;
(iii) order the defendant to produce all documents in his possession upon which he
intends to rely in support of his case.
(See also O V rule 1, Code of Civil Procedure for more details.)

Exemption from attendance.—
See O V rule 4, Code of Civil Procedure.
Manner of service.—
See O V rules 10, 17 and 20, Code of Civil Procedure.
Service of summons in particular cases.—
See O V rules 21 to 30, Code of Civil Procedure.
Duly instituted.—
Section 26 enacts that a suit shall be instituted by the presentation of a plaint or in

such other manner as may be prescribed. But a suit cannot be said to have been duly
instituted under Section 27 until after scrutinising the plaint, the Court registers it as a
suit.835
Appear and answer.—
The defendant who is served with summons has a right to answer the claim by filing a
written statement. The section lays down the general principle that no man should be
condemned unheard. O XXXVII rules 1 and 2, Code of Civil Procedure, which provide for
leave of the Court to be obtained before filing the written statement is thus not
inconsistent with this section.836
830 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 3 (w.e.f. 1-
7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
831 Salem Advocate Bar Association, Tamil Nadu v UOI, AIR 2003 SC 189 (191) : (2003) 1 SCC
49 .
832 1969 All. LJ 1144.
833 Nanda Dayaram v Rajaram, AIR 1964 MP 261 .
834 See Proviso to rule 1 O V, Code of civil Procedure.
835 Sir Wirode Borani v Mohindra Narayan, AIR 1922 Cal 234 .
836 Keshav Lal Chokshi v Manubhai, AIR 1968 Guj 223 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 28. Service of summons
where defendant resides in another State.
© 2020 LexisNexis
S. 28. Service of summons where defendant resides in another State.
(1) A summons may be sent for service in another State to such Court and in such
manner as may be prescribed by rules in force in that State.
(2) The Court to which such summons is sent shall, upon receipt thereof, proceed
as if it had been issued by such Court and shall then return the summons to the
Court of issue together with the record (if any) of its proceedings with regard
thereto.
837
[(3) Where the language of the summons sent for service in another State is
different from the language of the record referred to in sub-section (2), a
translation of the record,—
(a) in Hindi, where the language of the Court issuing the summons is
Hindi, or
(b) in Hindi or English, where the language of such record is other than
Hindi or English,
shall also be sent together with the record sent under that
subsection.]
COMMENT.—
By the addition of sub-section (3) to this section, it has been made obligatory on the
Court returning the summons to the Court of issue to send the translation of the record
of the proceedings relating to the service of the summons, in Hindi or English where the
language of such record of proceedings is other than Hindi or English. See O V rules 21
and 23 of Code of Civil Procedure, 1908.
837 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 2, (w.e.f. 1-5-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 29. Service of foreign
summonses.
© 2020 LexisNexis
[S. 29. Service of foreign summonses.
838Summonses and other processes issued by—
(a) any Civil or Revenue Court established in any part of India to which the
provisions of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the
Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central Government
has, by notification in the Official Gazette, declared the provisions of this
section to apply,839,840 may be sent to the Courts in the territories to which this
Code extends and served as if they were summonses issued by such Courts.]
838 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951, section 6, for Section 29
(w.e.f. 1-4-1951).
839 The provisions of this section shall apply to all Civil Courts in Mongolia, vide G.S.R. 622(E),
dated 1st October, 2005 as declared by Central Government.
840 The provisions of this Act shall apply to all Civil Courts in the Kingdom of Bahrain, vide
G.S.R. 644(E), dated 22nd October, 2005 as declared by Central Government.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 30. Power to order
discovery and the like.
© 2020 LexisNexis
S. 30. Power to order discovery and the like.
Subject to such conditions and limitations as may be prescribed, the Court may, at any
time, either of its own motion or on the application of any party,—
(a) make such orders as may be necessary or reasonable in all matters relating to
the delivery and answering of interrogatories, the admission of documents and
facts, and the discovery, inspection, production, impounding and return of
documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give

evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
Calcutta.—In clause (a) omit the words "delivery and answering of interrogatories, the
admission of documents and facts, and the discovery" after the words "matters relating
to" and before the word "inspection" vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
The conditions and limitations referred to in this section may be found in Os XI, XII, XIII,
XVI and XIX. Clause (c) of this section enacts an exception to the general rule that an
affidavit is not evidence within the meaning of section 3 of the Evidence Act, 1872. But
an order of the Court is necessary to prove any fact by affidavit.841
Courts must give greater emphasis to the veracity of the pleadings and documents in
order to ascertain the truth which is the foundation of justice. In civil cases adherence
to section 30 Code of Civil Procedure would also help in ascertaining the truth. It
seems that this provision which ought to be frequently used is rarely pressed in service
by our judicial officers and judges. In the administration of justice, judges and lawyers
play equal roles. Like judges, lawyers also must ensure that truth triumphs in the
administration of justice.842
Of its own motion.—

The two alternatives namely, either acting of its own motion or on the application of the
party referred to in this section cannot be read to mean that the pressing into service of
the one excludes the pressing into service of the other. The fact that the application of
the party was rejected does not disentitle the Court from passing suitable order
subsequently under this section.843
Meaning of Interrogatories.—
A party to a suit may require information from his adversary as to facts or as to

documents in the possession or power of such adversary relevant to the issue. This is
done for the purpose of maintaining one's own case or for rebutting the case of the
adversary. When information as to facts is required, the party is allowed to administer a
series of questions to his adversary. These questions are called "interrogatories". If
these questions are considered proper by the Court, the other party is compelled to
answer them on oath before the trial. This is called discovery of facts by the adversary.
Object of discovery.—
Each party to a suit has a right to know the nature of his opponent's case so as to
enable him to know beforehand what case he has to meet at the hearing. One party is
entitled to obtain admission from his opponent to facilitate the proof of his own case.
A party to a suit is bound, when so required, to make discovery i.e., to disclose all
material facts which constitute his case and all facts necessary to support his
opponent's case and all documents in his possession or power relating to matters in
question in the suit even if they be against his own case.
Form of interrogatories.—
Form No 2 of Appendix C to the Civil Procedure Code gives a specimen form of

interrogatories. All the interrogatories are to be in that form, with such variations as the
circumstances may require. (Rule 4 of O XI).
Difference between interrogatories and cross-examination.—
It is not every question which can be asked to a witness in the box, which may be put
as an interrogatory. Thus, questions which are put only to test the credibility of a
person will not be allowed as interrogatories, although they may be asked in cross-
examination.
Secondly, interrogatories can be administered only to a party to a suit and not to a

witness, whereas cross-examination can be of any person, parties and witness alike.
Reference now be made to rules 1 to 11 and 22 of O XI.
Discovery and Production of Documents.—
Rules 12 to 21 of O XI Code of Civil Procedure deal with discovery, production and

inspection of documents. Reference may please be made to the above rules of O XI.
Effect of non-compliance with order of discovery.—
See rule 21 of O XI of the Code of Civil Procedure.
Application of the rule to minors.—
Reference may be made to rule 23 of O XI of the Code of Civil Procedure.
Summoning and Attendance of witnesses (sections 31-32 and Os 16 and 16-A).
841 1962 Punj LJ 197.

842 Maria Margarida Sequeria Fernandes v Erasmo Jack de Sequeria, AIR 2012 SC 1727 .
843 (1965) 69 CWN 242 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 31. Summons to witness.
© 2020 LexisNexis
S. 31. Summons to witness.
The provisions in Sections 27, 28 and 29 shall apply to summonses to give evidence
or to produce documents or other material objects.
Calcutta.—Omit figure '27'—vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
The rules relating to the service of summons issued to the defendant and proof of
service also apply to summons to witnesses to give evidence or to produce documents
or other material objects.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 32. Penalty for default.
© 2020 LexisNexis
S. 32. Penalty for default.
The Court may compel the attendance of any person to whom a summons has been
issued under Section 30 and for that purpose may—
(a) issue a warrant for his arrest:
(b) attach and sell his property;
(c) impose a fine upon him 844[ not exceeding five thousand rupees ];
(d) order him to furnish security for his appearance and in default commit him to
the civil prison.
COMMENT.—Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Modification.—Section 32 clause (c) of the Code has been amended by which default
penalty has been enhanced from five hundred rupees to five thousand rupees for non-
attendance of any summoned person in the Court.
The object of amending clause (c) of section 32 is to compel the attendance of any
summoned person in the Court. The increase in the amount of fine from five hundred
rupees fixed at the time of enactment of the Code has been increased to five thousand
rupees taking into consideration the erosion in the money value.

1999 stated thus:
In Clause (c) of Section 32 of the Code, the Court is empowered to impose a fine not
exceeding five hundred rupees for the purpose of compelling the attendance of any person
in the Court. Clause 4 substitutes "five thousand rupees" in place of "five hundred rupees" in
the said section for the reason of decrease in the money value since the time provision was
made. [Clause 4].
Upward revision of penalty for default.—By this amendment the amount of fine that has
to be collected from a person who has been summoned to appear in the Court and
failed to appear has been increased to five thousand rupees from five hundred rupees.
This amendment seems to have been made for the purpose of compelling any
summoned person to appear in Court. Unless the penalty is heavy, the summoned
person may avoid appearing. If the penalty is too small an amount, the person
summoned may like to pay up instead of appearing. In that event the evidence required
in the case may not be available. The amendment seems to have been made with a
view to compelling a summoned person to appear in Court so as to enable the Court to
get the best evidence in the case.
The amendments of the provisions take effect from 1 July 2002.
Under section 30 of the Code, the Court is authorised to issue summonses to persons
only when their attendance is required to give evidence, etc., whereas under section 32,
the Court is empowered to enforce the attendance of such persons for that purpose by
imposing penalties as laid down by the section. Thus, a fine can only be imposed on a
person who is required to attend the Court in connection with a case and who does not
appear in obedience to the summons of the Court.845 However, a witness whose
evidence is necessary and who appears on the adjourned hearing at the instance of the
parties concerned without any fresh summons can be fined by the Court for his failure
to appear at the previous hearing.846
It has been held by the Supreme Court that an omission to appear in response to a
summons under section 27 carries no penalty in the strict sense, but disregard of a
summons under section 30 may entail punishment.847
Summoning and attendance of witnesses.—
The detailed rules regarding the summoning and attendance of witnesses are
contained in O XVI of the Code of Civil Procedure. Reference may be made to that
Order.
Attendance of witnesses confined in prison.—
Order XVI-A was added by the Amendment Act of 1976 and it makes provisions for the
attendance of witnesses confined in prison.
(For more details see O XVI, rules 10 to 13, 17 and 21).

844 Subs. for 'not exceeding five hundred rupees' by the Code of Civil Procedure (Amendment)
Act, 1999 (46 of 1999), section 4 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
845 Hirdey Narain v Emperor, AIR 1929 All. 850 (DB). See also Suryanarayanaraju v Apanna, AIR
1959 AP 645 .
846 Ramdeo Prasad v State, AIR 1951 All 415 .
847 Sangram Singh v Election Tribunal, AIR 1955 SC 425 : (1955) 2 SCR 1 : (1955) 2 MLJ (SC) 3.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 33. Judgment and Decree.
© 2020 LexisNexis
Judgment and Decree
S. 33. Judgment and Decree.
The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow.
COMMENT.—
Under this section it is imperative that a decree shall follow the judgment and as it is
the duty of the Court to comply with the provisions of the law, the Court's failure to
prepare a decree should not deprive a party of his right of appeal. The appeal should
not be dismissed and the appellant should be allowed time to move the Lower Court to
prepare a decree.848 The question was considered by the Supreme Court in Jagatdhish
v Jawaharlal, AIR 1961 SC 832 : (1961) 2 SCR 918 : (1961) 1 Ker LR 437 wherein it was
held that though the production of the certified copy of the decree was mandatory
under O LXI, rule 11, and where there was a failure on the part of the Court to draw up
the decree, the Appellate Court could pass such orders as were appropriate for the
production of the decree in the appeal presented without it. It has also been held that
an execution presented after the judgment is pronounced without a copy of the decree
was valid, as no decree had been drawn up. A decree must be taken to come into
existence on the date of the judgment.849 It is not legal for the Court merely to decree a
claim without delivering a judgment, unless the action is undefended.850
Contents of judgment.—
Judgment of Courts other than Small Causes shall contain: (a) a concise statement of
the case, (b) the points for determination; (c) the decision thereon, and (d) the reasons
for decision. Judgments of Courts of Small Causes need not contain more than (b) and
(c) above.
No prior announcement of final order.—
It is desirable that the final order which a High Court intends to pass should not be
announced until a reasoned judgment is ready for pronouncement. Serious difficulties
arise on account of the practice increasingly adopted by the High Courts of
pronouncing the final order without a reasoned judgment. The practice achieves no
useful purpose.851
It has been held by the Supreme Court that mere order deciding the matter in dispute,
unsupported by reasons is no judgment at all.852 (For details see O II rule 4 Code of
Civil Procedure, 1908).
If unscrupulous litigants file litigation to defeat orders of Court, then such tendency
should be curbed by appropriate order/direction and also by imposing exemplary
costs.853
Alteration of judgment.—
See O XX rule 3, Code of Civil Procedure, 1908
Contents of Decree.—
See O XX rules 6 and 7, Code of Civil Procedure, 1908.
A decree shall follow.—
Section 33 casts on the Court of law the duty of preparing and passing a decree. A
party or his pleader is under no obligation to move the Court to draw up a decree.854
Where a suit is dismissed, whatever may be the ground of dismissal it is the imperative
duty of the Court to draw up a decree. The failure of the Court to prepare a decree
should not deprive a party to his right of appeal. Where a judgment is pronounced the
decree must automatically follow and the Court has no power to direct that the
preparation of the decree be stopped until the payment of deficit Court-fee.855
Once the judgment is pronounced, the drawing up of the decree cannot be delayed
merely because one party does not comply with an incidental order of the Court, such
as, an order for the payment of Court-fees.856
The "decree" as defined in section 2(2) of Code of Civil Procedure, 1908. comes into
existence, as soon as the judgment is pronounced. It does not necessarily mean the
formal decree which is prepared in accordance with section 33 and O XX, rule 6, Code
of Civil Procedure, 1908.857
Mutation obtained by fraudulent means is non est just like decree obtained by fraud, is
nullity.858
Decree, binding nature of.—
Where the decree was passed not only against the State but also against the Collector
and one Sri Singh who had claimed his right, title and interest in or over the impugned
property, the respondents who acted in their official capacity, would be bound by the
said decree.859
Restoration of suit for fresh hearing.—

Judgment can be pronounced only by Judge, who has heard oral arguments. Judge
who heard oral arguments was transferred before the pronouncement of judgment.
New Judge had no option but to hear oral arguments afresh and only then pronounce
judgment. Hence, suit was restored to file of trial Court to be proceeded from the stage
of oral arguments.860
Finding of fact in civil court.—
The findings of fact recorded by the civil court do not have any bearing so far as the
criminal case is concerned and vise versa.861
(For more details in respect of section 33, see O XX).
848 Sriramareddi v Sriramareddi, AIR 1941 Mad 929 . See also Manoharlal v Nanak Chand,
(1919) SC Punjab Record 66 at p 165.
849 Bai Vasanti v Surya Prasad, AIR 1969 Guj 152 .
850 Swaranlata v Harendra Kumar, AIR 1969 SC 1167 : (1969) 1 SCC 709 .
851 State of Punjab v Jagdev Singh, AIR 1984 SC 444 (452) : (1984) 1 SCC 596 : 1984 CrLJ 177 .
852 Ibid.
853 Rajappa Hanamantha Ranoji v Mahadev Channabasappa, AIR 2000 SC 2108 : (2000) 6 SCC
120 .
854 Jagat Dhish v Jawahar Lal, AIR 1961 SC 832 : (1961) 2 SCR 918 : (1961) 1 Ker LR 437.
855 Sri Ram v Jagannath, AIR 1957 Punj 65 .
856 MSB Shaik v State of Gujarat, (1981) 22 Guj LR 72.
857 Vasanti Bai v Surya Prasad, AIR 1969 Guj 152 .
858 N Khosla v Rajlakshmi, AIR 2006 SC 1249 (1255).
859 Ramesh Dutt v State of Punjab, (2009) 15 SCC 429 (434).
860 Rukhana Associates v E Square Leisure Pvt Ltd, 2010 (4) Bom CR 489 (485-87) (DB) : 2010
(5) Mah LJ 202 .
861 Kishan Singh v Gurpal Singh, (2010) 8 SCC 775 (781).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 34. Interest.
© 2020 LexisNexis
Interest
S. 34. Interest.
(1) Where and in so far as a decree is for the payment of money, the Court may, in
the decree, order interest at such rate as the Court deems reasonable to be
paid on the principal sum adjudged, from the date of the suit to the date of the
decree, in addition to any interest adjudged on such principal sum for any
period prior to the institution of the suit,862 [with further interest at such rate
not exceeding six per cent per annum as the Court deems reasonable on such
principal sum], from the date of the decree to the date of payment, or to such
earlier date as the Court thinks fit:
863 [ Provided that where the liability in relation to the sum so adjudged had arisen out
of a commercial transaction, the rate of such further interest may exceed six per cent.
per annum, but shall not exceed the contractual rate of interest or where there is no
contractual rate, the rate at which moneys are lent or advanced by nationalised banks
in relation to commercial transactions.
Explanation I.—In this sub-section, "nationalised bank" means a cor-responding new

bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings)
Act, 1970 (5 of 1970).
Explanation II.—For the purposes of this section, a transaction is a commercial

transaction, if it is connected with the industry, trade or business of the party
incurring the liability.]
(2) Where such a decree is silent with respect to the payment of further interest
864[on such principal sum] from the date of the decree to the date of payment
or other earlier date, the Court shall be deemed to have refused such interest,
and a separate suit therefor shall not lie.
COMMENT.—
Interest.—
The term interest implies premium paid for the use of money.
Section 34 has no application to interest prior to the institution of the suit which is a
matter of substantive law.865 The award of interest after institution of the suit is purely
a matter of statutory power. It is not a part of the claim or relief as in the case of mesne
profits.
According to the provisions of section 34 of the Code interest is to be awarded at a

reasonable rate and on the principal amount. The discretion has to be exercised by the
Court properly, reasonably and on sound legal principles and not arbitrarily and while
doing so the Court is also to consider the parameters, scope and ambit of section 34 of
the Code.866
Order can be passed only at the time of passing decree.—
No order under this section can be passed in a proceeding akin to an application for
attachment of property at a stage posterior to the passing of the decree. An order
under this section can be passed only at the time of decree.867
If interest is not claimed, nor directed by Court then it is illegal, if awarded.—
In a suit by a Government servant for declaration that he was entitled to promotion,

consequent benefits, rights and privileges were also claimed. The suit was decreed.
While execution the executing Court granted interest on the amounts due. The interest
was not claimed in the suit nor were directions issued by the Court in this regard. The
grant of interest by the executing Court is illegal.868
Award of interest—Natural Justice.—
Interest is not a penalty but a normal accretion of capital. Depriving award holder of
same would be against the principle of natural justice.869
Award of interest.—
The award of interest under this section after the date of suit is entirely in the
discretion of the Court.870 The award of interest from date of suit to date of decree is
entirely discretionary.871 The discretion of the Court to grant interest is not excluded
by:
(a) an agreement to pay a certain rate of interest till rectisation.
(b) the absence of contract to pay any interest.
Award of interest, a matter of procedure.—
An award of interest under this provision is a matter of procedure and ought to be

granted in all cases when there is a decree for money unless there are strong reasons
to decline the same.872
Interest when can be awarded?—
It is well settled that the interest as damages cannot be awarded in the absence of any
usages or contract, express or implied, or of any provision of law to justify the award of
the interest.873
Whether interest should be awarded on the principal amount claimed from the date of
the suit, is within the discretion of the Court. Before instituting the suit, the plaintiff had
issued a notice to the defendant to pay the money illegally collected from it. The
defendant failed to pay back the amount. The High Court was justified in awarding
interest on the principal amount from the date of the suit.874
Interest prior to the date of suit.—
Interest prior to suit is not a matter of procedure but a brief note that, the subject will
not be out of place. The law on the subject is that if there is a stipulation for the
payment of interest at a fixed rate the Court must allow it up to the date of suit; unless
the rate is penal or excessive on account of the transaction being unfair, when the
Court may allow reasonable rate of interest. If there is no express stipulation for
payment of interest the plaintiff is not entitled to it, except in case of:
(i) mercantile usage.875
(ii) statutory right to interest,876 as under section 80 of the Negotiable Instruments

Act when no rate of interest is specified in a promissory note or bill of exchange,
the Court shall award interest at 6 per cent per annum from the date of amount
due; and
(iii) implied agreement.877
This section is not concerned with interest prior to suit. Such interest may be awarded:
(1) when there is a contract, (2) when there is usage of trade having the force of law, (3)
when it is contemplated by any provision of substantive law, or (4) under the Interest
Act. It may sometimes be awarded under a rule of equity also.878
Where the plaintiff is entitled to compensation under section 70 of Contract Act for
goods supplied, he is also entitled to interest at 6% from one month after the date of
supply till institution of suit and at the same rate till the date of payment.879
If the interest for the period of prior to the filing of the suit is not claimed by the plaintiff
in clear terms, then he cannot make a grievance if a High Court, in appeal, refuses to
award interest.880
Interest after the date of suit.—
As regards interest due from the date of the suit to the date of the decree and that due
from the date of decree till the date of realisation, that is governed by the present
section.
Where the delay in release of the decretal amount to the claimants is attributable to
their failure to furnish the security, the claimants allowed interest on decretal amount
from the date of the decree, though the compensation was quantified only from the
date of the passing of the decree, in such circumstances the order of Court is not to be
interfered with.881
An arbitrator cannot award interest after the suit on the analogy of section 34, which
does not apply. Nor does the code applies to the arbitrators, and, but for section 34
even a Court would not have the power to give interest after the suit.882
This section applies where the decree is for a definite sum of "money". The expression
"decree for the payment of money" as used in this section includes a claim to
unliquidated damages.883 In money suits, therefore, the question of interest after the
institution of the suit passes from the domain of contract into that of judgment and a
Court has discretion as to the rate of interest. That discretion, however, is a judicial
discretion to be exercised on proper judicial grounds and not arbitrarily.
Post decree interest.—
Availing loans for money lending business is a commercial transaction, for which
interest can be awarded exceeding 6 %.884
Interest, rate of.—
Interest becomes leviable under a statute or under a contract. The stipulation to pay
interest at the rate of 18% per annum cannot, by itself, be said to be unreasonable.885
Interest rate is discretionary.—
Interest is an integral part of mesne profits. Interest has to be allowed in computation

of mesne profits. The rate of interest to be allowed in regard to mesne profits or under
section 34 is discretionary, as there is no question of any contractual rate or any
particular rate fixed by statute.886
It is well settled principle of law that the use of the word "may" in section 34 of the
Code confers discretion on the Court to award or not to award interest or to award
interest at such rate as it deem fit.887
The Supreme Court would not interfere where a High Court has exercised its discretion
regarding the rate of interest.888
Interest is not recoverable under contract or usage or under the Interest Act, 1839.
If the High Court allowed pendente lite interest at a particular rate then the interest on
claim decreed should not exceed that rate.889
The award of pendente lite and future interest is in the discretion of the court and the
plaintiff cannot claim such interest as right. Court fee is also payable on the amount of
pendente lite and future interest awarded on principal amount.890
Debt Recovery Tribunal properly exercised its discretion in awarding pendente lite and
post decree interest at the rate of 14% p.a. (simple). Strong reasons should be
assigned to interfere with such an exercise of discretion. The Debt Recovery Appellate
Tribunal's interference with the same and awarding pendente lite and post decree
interest at the rate of 20% p.a. compounded with quarterly rests not justified.891
Future Interest.—
A decree was passed against the defendant. The defendant deposited amount in Court
with prayer that money should not be paid out to creditors of plaintiff insolvent's estate
during pendency of appeal. Held, the Official Assignee decree-holder had taken money
and kept it. The future interest could not be allowed for the period.892
Where appellant was holding money pursuant to Court direction and not on his own,
interest of liability could not be fastened on appellant.893
Claim for enhanced rate of interest.—
In a suit for recovery of loan by bank the claim for enhanced rate of interest was made.
The trial Court running contrary to the terms of agreement observed that there was no
record to show that the defendants had agreed to pay higher rate of interest.
Subsequent acknowledgments made by defendants also indicated that they had
acknowledged their liability of amount due. The amount was calculated on the basis of
enhanced rate of interest. There was no question of taking separate consent of the
defendants as the rate was increased as per terms of agreement. There was also no
violation of principles of natural justice for want of notice to defendants. The claim for
enhanced rate of interest could not be rejected.894
In suits for money lent, however, this section has to be applied subject to the provisions
regarding interest made in Acts regulating money-lending in different States.
Three divisions of interest.—
Interest that may be awarded to a plaintiff in a suit for money may be divided into three
heads, according to the period for which it is allowed, namely—
(1) interest accrued due prior to the institution of the suit on the principal sum
adjudged (as distinguished from the principal sum claimed);
(2) additional interest on the principal sum adjudged, from the date of the suit to
the date of the decree, "at such rate as the Court deems reasonable";
(3) further interest on the principal sum adjudged from the date of the decree to the
date of the payment or to such earlier date as the Court thinks fit, at a rate not
exceeding 6 %, per annum.
Principal sum adjudged.—
In a decree for payment of money the expression "the principal sum adjudged" includes
the amount of interest, charged on periodical rests and capitalised with the principal
sum actually advanced, so as to become an amalgam of principal in such cases where
it is permissible as per contract between parties or an established bank practice. The
principal sum so adjudged shall be treated as "principal sum" within meaning of section
34 on which interest pendente lite and future interest is awarded by the Court.895
If the payment made by the judgment debtor falls short of the decreed amount, the
decree holder will be entitled to apply the general rule of appropriation by appropriating
the amount deposited towards the interest, then towards cost and finally towards the
principal amount due under the decree.
Thereafter, no further interest would run on the sum appropriated towards the principal.
In other words, if a part of the principal amount has been paid along with interest due
thereon as on the date of issuance of notice of deposit interest on that part of the
principal sum will cease to run thereafter.
In cases where there is a shortfall in deposit of the principal amount, the decree holder
would be entitled to adjust interest and cost first and the balance towards the principal
and beyond that the decree holder cannot seek to reopen the entire transaction and
proceed to recalculate the interest on the whole of the principal amount and seek for
re-appropriation.896
Interest up to date of suit is a matter of substantive law and the section does not refer
to payment of interest under the first head.897 It applies only to the second and third
heads.
ILLUSTRATIONS
A lends Rs. 5,000 to B to be repaid with interest at the rate of 18% per annum. In a suit
by A to recover the amount of loan with interest at the rate aforesaid (it is contended on
behalf of B) that the rate of interest is penal according to the Contract Act, section 74.
The Court finds that the rate of interest is not penal nor is the transaction substantially
unfair. Hence:
(1) as regards interest on Rs. 5,000 from the date of loan to the date of the suit, the
Court must allow it at the contract rate, that is, at the rate of 18% per annum;
(2) as regards interest on Rs. 5,000 from the date of the suit to the date of the
decree, the Court may allow it at the contract rate, that is, at the rate of 18% per
annum or it may in its discretion allow it at a lower rate or may disallow it
altogether;
(3) as regards interest from the date of the decree to the date of payment on the
aggregate sum adjudged (i.e., Rs. 5,000 plus the interest adjudged under the
above two heads), the Court may allow interest at such rate as it may deem
reasonable. This rate is usually 6%.
Section 34 was amended by the Amending Act of 1976 by which it was provided that
where the liability in relation to the sum adjudged by the Court has arisen out of a
commercial transaction the rate of the further interest may exceed six per cent per
annum. However, such rate shall not exceed the contractual rate of interest, or where
there is no contractual rate, the rate at which money is lent or advanced by nationalised
banks in relation to commercial transactions.
Reduction of interest.—
Where the relationship between the parties was not merely that of lender and bank but
there was an agreement similar to the cash credit arrangement with the bank, the claim
of interest was reduced from 18% to 12% p.a. which was the bank rate of interest at
that time.898
In a suit for recovery of electricity and water consumption charges from the lessee, it
was held that the liability does not arise out of a commercial transaction. Interest
awarded at the rate of 18% was reduced to 6% per annum.899
It is also provided that where a decree for payment for money is silent with respect to
payment of further interest i.e., from the date of the decree to the date of payment, it is
to be presumed that the Court has refused such further interest and no separate suit
can be filed for such interest. It is also open to the Court to allow compound interest
from the date of the institution of the suit.
Interest in mortgage suits.—
This rule applies to simple monies decree and payment of interest pending such suits.
As regard mortgage suits the special provision under O XXXIV rule 11 alone is
applicable and not that under section 34.900
Grant of interest under Consumer Protection Act, 1986.—
Interest cannot be claimed under this section as it does not specifically apply to the
proceedings under Consumer Protection Act, 1986. However, the general provision of
this section based on justice, equity and good conscience would authorise the
Redressal Forum and Commissions to grant interest appropriately under the
circumstances of each case.901
Interest on amount not credited in account.—
Where a bank collected a cheque but failed to credit the same in the appellant's
account due to which he was deprived of the user of Rs. One lac for a period of seven
years and had to suffer other heavy losses, interest awarded @12% was not found
adequate and enhanced to 15% to serve the end of justice.902
Compound interest.—
It is in the power of the Court to allow compound interest from the date of institution of
the suit.
The compound interest can be awarded only if there is specific contract or authority
under a statute, for compounding of interest. There is no general discretion in Courts or
tribunals to award compound interest or interest upon interest.903
No interest on gratuity amount.—
The controlling authority under the Payment of Gratuity Act, 1972 is not a Court to grant
interest under section 34 Code of Civil Procedure. This provision is not applicable to
interest payable on the gratuity amount.904
Rate of Interest when agreed under a contract.—
Interest at the rate of 30% per annum on amount due charged as per terms of the
agreement between the parties. Defendant always paid bills in which same rate of
interest was charged. Therefore, the contention that rate of interest was highly
excessive cannot be accepted.905
Arbitration.—
An arbitrator is not a "Court" within the meaning of Code of Civil Procedure nor does
the Code apply to arbitrators and so he cannot allow interest after suit on the analogy
of section 34. The pendente lite interest cannot be claimed by the claimants.906 As has
been held by the Supreme Court in Seth Thawardar Pherumal v UOI, AIR 1955 SC 468
(478). See also AIR 1976 Madh Pra 127 (130) that this section has no application to the
arbitration proceedings. But where the reference provides by implication that the
arbitrator would give such relief pending the litigation as a Court, the arbitrator can
award interest pendente lite.907 Where the disputes between the parties pending
adjudication in a suit have been referred for arbitrator. The arbitrator has all the powers
which the Court itself would have in deciding the issues in the suit. Where the claims in
the suit and the claims under the deed of dissolution in a case are comprehensive
enough to include the claim of interest and its reference to the arbitrator, the arbitrator
would be within his rights in granting interest pendente lite.908
An agreement between the parties does not prohibit grant of interest. If a party claims
interest and the dispute, alongwith the claim for principal amount or independently is
referred to the arbitrator then he shall have the power to award interest pendente
lite.909
Where the arbitrators are appointed by named authority and later by Court, the interest
has to be awarded from the date of appointment by the named authority till the award
is passed.910
If the rate of interest is stipulated by the parties in contract, then section 34 of the Code
of Civil Procedure cannot be applied. Arbitrator cannot in exercise of his discretion
reduce rate of interest than agreed by the parties.911
Neither Interest Act of 1839 nor Interest Act of 1978 applies to State of Jammu &
Kashmir and as such arbitrator cannot award interest. The Court's jurisdiction, however,
to allow interest from the date on which award was made, a rule of Court, is not taken
away.912
Where in a speaking award by the Arbitrator the basis for awarding interest was not
made clear, the pendente lite interest could not be granted.913
When it is an implied term of reference in suit that the arbitrator would decide the
dispute according to law, and give such relief with regard to pendente lite interest as
Court could give if it decided the dispute, section 34 does not apply. The arbitrator can
award pendente lite interest.914
Discretionary jurisdiction of arbitrator, not to be interfered with.—
Pendente lite interest and pre reference interest was awarded by the arbitrator. There an
application was filed to make arbitral award rule of Court. The High Court deleted pre
reference interest and pendente lite interest. Thereby it interfered with discretionary
jurisdiction of arbitrator which was not proper.915
Delaying purchase of property as per Arbitration Award.—
The Union of India delayed the purchase of Nizam's properties as per arbitration award
for more than two years. Considering the fact that the Union of India had the use of
more than Rs. 180 Crores from the date of the award and since inflation is a
phenomenon of which the Court can take judicial notice, the Court ordered payment of
interest of 6% p.a. on the price of the jewellery if the Union of India exercises its option
to purchase the same.916
Power of Debt Recovery Tribunal to award Interest.—
The provisions contained under section 34 of the Code of Civil Procedure refer to
discretion for awarding interest pendente lite and the Debt Recovery Tribunal has power
to award interest pendente lite considering the fact that the provisions of section 34 of
the Code of Civil Procedure have not been specifically excluded under the provisions
contained under sections 34 and 35 of the Securitisation and Reconstruction of
Financial Assets and Enforcement Security Interest Act.917
Stalling the Proceedings for many years by several writ petitions.—
Where an assessee of excise duty repeatedly filed several writ petitions and stalled the
proceedings for many years, the Supreme Court ordered that the Excise Department
can collect interest at 18% p.a. on the duty ultimately found payable by the
assessee.918
Ceasing interest on amount from the date bank refusing receipt.—
In a suit for recovery by a bank, while the defendant was bona fide trying for settlement
of dispute, an ex parte decree was passed. In the appeal to the Supreme Court the
defendant was asked to deposit certain amount in the Court but the bank unreasonably
refused to receive the amount deposited. The approach of the bank in refusing
settlement was also found to be unreasonable. The Supreme Court set aside ex parte
decree and restored the suit on the file of the High Court but with the direction that an
amount deposited by the defendant in the Court, interest shall cease from the date its
receipt was unreasonably refused by the bank.919
No Court-fee on Interest, in appeal.—
An amount of interest was decreed for the period subsequent to institution of the suit.
The defendant appealed against the decree. The defendant would have not to pay
Court-fee on the amount of such interest.920
Adequate compensation to party, duty of Court to so.—
If the amount of earnest money was unjustifiably retained by corporation and the
contractor was driven to services of litigation then in such a case it is the duty of Court
to see that the party is adequately compensated.921
Interest for delay in payment of compensation.—
As a result of the LIC Act, 1956 the life business of the National Insurance Co stood
transferred and vested in LIC and the former became entitled to compensation. Delay
in payment of compensation entitled the former to claim interest.922
Interest at 12% p.a. on the enhanced amount of the compensation was ordered from
the date of the application. Also, the respondents were ordered to pay the costs of Rs.
5000.923
Interest on compensation amount.—
In view of section 34 of Code of Civil Procedure, 1908 discretion is vested with tribunal
to grant interest either from date of petition or from date of award on amount of
compensation, depending upon facts and circumstances of the case.924
Power of claims tribunal.—
Claims Tribunal has power to grant interest on amount of compensation by virtue of

section 34 of the Code.925
Delay in Payment of Policy Amount.—
Since the payment of policy amount was delayed the Life Insurance Corporation of
India is liable to pay interest.926
The State Government received 13 years back principal amount, under decree and
asked the party to pay interest on decretal amount at 18% p.a. from date of its payment
till date. It would be on high side and excessive.927
The special Court decreed a money suit filed by Standard Chartered Bank against Citi
Bank with interest @ 20% p.a. Another suit filed back by Citi Bank against Canbank
Financial Services Ltd was decreed with interest @ 9% p.a. An appeal was filed against
both which was allowed by Supreme Court. The Citi Bank was held entitled to
restitution/refund of total amount, it had paid to SCB with interest @12% p.a. and
CANFINA was held untitled to refund with interest @ 9% p.a. The order of Supreme
Court needed no clarification.928
Pendente lite interest.—
The pendente lite interest can be awarded from the date of remand and not from the
date of institution of suit.929
Interest is awardable pendente lite taking into consideration the facts and
circumstances of the case and not a matter of course.930
When clear and unambiguous admission for liability to pay principal amount which was
security deposit in leave and license agreement then the court has jurisdiction to pass
decree for admitted claim even if such admitted claim be part of the total claim in suit.
Pendente lite interest awarded at 9% p.a.931
Pendente lite interest cannot be awarded by the arbitrator when the agreement
expressly bars the same.932
When there is no direction to pay future interest on amount payable in the order passed
by the High Court then it is deemed that court refused such interest. Contractor cannot
claim interest on amount payable beyond date of judgment.933
862 Subs. for "with further interest at such rate as the Court deems reasonable on the
aggregate sum so adjudged" by Code of Civil Procedure (Amendment) Act, 66 of 1956, section 2
(w.e.f. 1-1-1957).
863 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 13 (w.e.f. 1-7-1977).
864 Subs. for "on such agregate sum as aforesaid" by Code of Civil Procedure (Amendment)
Act 66 of 1956, Section 2 (w.e.f.1-1-1957).
865 BN Railway v Ruttanji Ramji, AIR 1938 PC 67 . See also NV Joseph v UOI, AIR 1957 Ker 3 .
866 CK Sasankan v Dhanlakshmi Bank Ltd, (2009) 11 SCC 60 (63) : AIR 2009 SC 3171 .
867 Everest Industrial Corpn v Gujarat SF Corpn, AIR 1987 SC 1950 (1953) : (1987) 3 SCC 597 .
868 State of Punjab v Krishan Dayal Sharma, AIR 1990 SC 2177 .
869 Mainura Bibi v UOI, 2009 AIHC (NOC) 818 (Cal) : AIR 2009 Cal 214 : FMAT No 674 of 2008,
dt 26 June 2009 (DB).
870 Hakim Rai v Ganga Ram, AIR 1942 PC 61 : 47 CWN 113. See also 1963 Ker LJ 754 .
871 Soli Pestonji Majoo v Ganga Dhar, AIR 1969 SC 600 (603).
872 Jagdish Rai v UOI, AIR 1999 SC 1258 (1259) : (1999) 3 SCC 257 .
873 UOI v West Punjab Factories, AIR 1966 SC 395 (400); Thawardas v UOI, AIR 1955 SC 468 :
(1955) 2 SCR 48 ; UOI v AL Ralia Ram, AIR 1963 SC 1685 ; UOI v Watkins Mayor, AIR 1966 SC 275
; Bengal Nagpur Rly Co v Ruttanji Ramji, AIR 1938 PC 67 (relied on).
874 State of MP v ND Patel, AIR 1972 SC 1545 : (1972) 4 SCC 396 : (1972) 29 STC 104 .
875 (1861) 9 MIA 256 (PC).
876 Bengal Nagpur Rly Co Ltd v Ruttaji Ramji, AIR 1938 PC 67 : 42 CWN 985.
877 AIR 1935 Oudh 535 (PC).
878 Vithal Dass v Rup Chand, AIR 1967 SC 188 ; see also Bengal Nagpur Rly Co v Ruttanji, AIR
1938 PC 185 : 42 CWN 985; T Perumal v UOI, AIR 1955 SC 468 .
879 Pilloo D Shaw Sidhwa v Poona Municipality, AIR 1970 SC 1201 (1205).
880 NM Siddique v UOI, AIR 1978 SC 386 (389) : (1978) 2 SCC 349 .
881 Municipal Corpn of Delhi v Sushila Devi, AIR 1999 SC 1929 (1933, 1934) : (1999) 4 SCC 317 :
1999 ACJ 801 .
882 Thavardas v UOI, AIR 1955 SC 468 (478) : (1955) 2 SCR 48 .
883 Bhagwant Geunji v Gangabishan Ram, AIR 1940 Bom 369 : 42 Bom LR 750.
884 Balan v Devaki R Nayar, 2010 (1) KLT 603 (611) (DB).
885 Deepa Bhargava v Mahesh Bhargava, (2009) 2 SCC 294 (299).
886 Narain Dasji Varu v Tirupathi Devasthanam, AIR 1965 SC 1231 (1236).
887 Punjab National Bank v Sheovijoy Udyog, AIR 2011 Pat 13 (15), see also KR Subbaiah v
Indian Bank, (2010) 8 SCC 650 .
888 State of Rajasthan v Raghubir Singh, AIR 1979 SC 852 (855) : (1979) 3 SCC 102 .
889 Maula Bux v UOI, AIR 1970 SC 1955 (1960) : (1969) 2 SCC 554 .
890 National Engineering Industries Ltd v UOI, AIR 2012 Raj 179 .
891 SD Polymers v The Registrar, Debts Recovery Appellate Tribunal, AIR 2015 Mad 102 .
892 Trojan & Co v Nagappa, AIR 1953 SC 235 (241) : 1953 SCR 789 .
893 Uttar Gujarat SRV Sangh Ltd v Mehsana District, (2008) 11 SCC 492 (493, 495).
894 Syndicate Bank v R Veeranna, AIR 2003 SC 2122 (2125) : (2003) 2 SCC 15 : (2003) 2 CHN 91
.
895 Central Bank of India v Ravindra, AIR 2001 SC 3095 (3114) : (2002) 1 SCC 367 : (2002) 1 KLT
743 .
896 Bharat Heavy Electricals Ltd v RS Avtar Singh and Company, AIR 2013 SC 252 .
897 Grewdson v Ganesh, 60 IC 288.
898 Mahendra Singh Jaggi v Dataram Jagannath, AIR 1997 SC 1219 (1224) : (1998) 9 SCC 28 :
(1997) 84 Cut LT 663.
899 Rajni Kumar v Suresh Kumar Malhotra, AIR 2003 SC 1322 (1325) : (2003) 5 SCC 315 .
900 NM Beerappa v Canara Bank, AIR 1998 SC 1101 (1102) : (1998) 2 SCC 317 : (1998) 92 CC
467 .
901 Sovintorg (India) Ltd v State Bank of India, AIR 1999 SC 2963 (2965) : (1999) 6 SCC 406 .
902 Sovintorg (India) Ltd v State Bank of India, AIR 1999 SC 2963 (2965) : (1999) 6 SCC 406 .
903 State of Haryana v SL Arora & Co, AIR 2010 SC 1511 .
904 Charan Singh v Birla Textiles, AIR 1988 SC 2022 : (1988) 4 SCC 212 .
905 TVC Skyshop Ltd v Reliance Communications and Infrastructure Ltd, (2013) 11 SCC 754 .
906 Executive Engineer Irrigation, Galimala v Abnaduta Jena, AIR 1988 SC 1520 (1529).
907 UOI v Bungo Steel Furniture (P) Ltd, AIR 1967 SC 1030 : (1967) 1 SCR 324 .
908 Jugal Kishore v Vijayendra, AIR 1993 SC 864 (875, 876) : (1993) 1 SCC 114 .
909 Secretary Irrigation Deptt GOI v GC Roy, AIR 1992 SC 732 (749) : (1992) 1 SCC 508 .
910 Santokh Singh Arora v UOI, AIR 1992 SC 1809 (1812) : (1992) 1 SCC 492 .
911 H Raghavendra Rao v The Deputy Registrar of Co-operative Societies, Bangalore, AIR 2014
Kar 88 .
912 Managing Director J&K v Good Luck Carpets, AIR 1990 SC 864 : (1990) 4 SCC 740 .
913 Food Corpn of India v Surendra Devendra & Mahendra Transport Co, AIR 1988 SC 734 (739);
Executive Engineer Irrigation Galimala's case, JT 1987 (5) SC 8 , followed.
914 Madanlal v Hukumchand Jute Mills, AIR 1967 SC 877 ; Nachiappa v Subramaniam, AIR 1960
SC 307 ; Satindra Singh v Umrao Singh, AIR 1961 SC 908 (relied on); see also UOIv Bungo Steel
Furniture, AIR 1967 SC 1032 : (1967) 1 SCR 324 ; Ramanathan v CIT, Madras, AIR 1967 SC 657 :
(1967) 1 SCR 965 .
915 BL Gupta Construction (P) Ltd v Bharat Coop Grp Housing Society Ltd, AIR 2004 SC 319 , See
also : NC Budharaj Case, AIR 2001 SC 626 .
916 UOI v Muffakan Jah, AIR 1995 SC 498 (507) : 1995 Supp (1) SCC 686 .
917 State Bank of India v Patna Foundation, AIR 2014 MP 17 .
918 Natwar Textile Processors Pvt Ltd v UOI, AIR 1995 SC 2256 (2259) : (1995) 1 SCC 753 :
(1995) 76 SLT 501 .
919 Plasto Pack Mumbai v Ratnakar Bank Ltd, AIR 2001 SC 3651 (3654) : (2001) 6 SCC 683 .
920 State of Maharashtra v Mishrilal T Lodha, AIR 1964 SC 457 : (1964) 5 SCR 230 : 66 Bom LR
254 : 1964 Mah LJ 120 .
921 Aditya Mass Communications (P) Ltd v APSRTC, AIR 2003 SC 3411 .
922 National Insurance Co v LIC, AIR 1963 SC 1171 (1179) : 1963 Supp (2) SCR 971 .
923 Chameli Wati v DMC, Delhi, AIR 1986 SC 1191 .
924 UOI v Shamim, AIR 2008 Raj 99 (DB).
925 UOI v Shamim, AIR 2008 Raj 99 (DB) : 2008 (3) Raj LW 1973 (1978) (DB).
926 LICI v Gangadhar V Ranade, AIR 1990 SC 185 (192) : (1989) 4 SCC 297 : 180 ITR 3.
927 Ashutosh v State of Rajasthan, AIR 2005 SC 3434 (3439).
928 Canbank Financial Services Ltd v Standard Chartered Bank, AIR 2005 SC 94 (96).
929 State of Orissa v Balaram Das, 2011 AIR CC 1402 (1404) (Ori).
930 Central Co-op Bank Ltd v S Kamalabeni Sundaram, (2011) 1 SCC 790 (792).
931 SRL Ltd v Tech Trek India Ltd, AIR 2014 Bom 42 .
932 Union of India v M/s Ambika Construction, AIR 2016 SC 1441 .
933 Kerala State Electricity Board v Kurien E Kalathil, AIR 2018 SC 1351 : 2018 (4) Scale 405 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 35. Costs.
© 2020 LexisNexis
Costs
934S. 35. Costs.
(1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of any law for the time being in force, the costs of and incident to all
suits shall be in the discretion of the Court, and the Court shall have full power
to determine by whom or out of what property and to what extent such costs
are to be paid and to give all necessary directions for the purposes aforesaid.
The fact that the Court has no jurisdiction to try the suit shall be no bar to the
exercise of such powers.
(2) Where the Court directs that any costs shall not follow the event, the Court
shall state its reasons in writing.
935
[(3) * * *]
AMENDMENT FOR COMMERCIAL DISPUTE OF A SPECIFIED VALUE
Substitution of new section for Section 35.—For Section 35 of the Code, the following
section shall be substituted, namely:
"35. Costs.—(1) In relation to any commercial dispute, the Court, notwithstanding

anything contained in any other law for the time being in force or Rule, has the
discretion to determine:
(a) whether costs are payable by one party to another;
(b) the quantum of those costs; and
(c) when they are to be paid.
Explanation.—For the purpose of clause (a), the expression "costs" shall mean
reasonable costs relating to:
(i) the fees and expenses of the witnesses incurred;
(ii) legal fees and expenses incurred;
(iii) any other expenses incurred in connection with the proceedings.
(2) If the Court decides to make an order for payment of costs, the general rule is that
the unsuccessful party shall be ordered to pay the costs of the successful party:
Provided that the Court may make an order deviating from the general rule for reasons
to be recorded in writing.
ILLUSTRATION
The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages.
The Court holds that the Plaintiff is entitled to the money decree. However, it returns a
finding that the claim for damages is frivolous and vexatious.
In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff
being the successful party, for having raised frivolous claims for damages.
(3) In making an order for the payment of costs, the Court shall have regard to the
following circumstances, including:
(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case, even if that party has not
been wholly successful;
(c) whether the party had made a frivolous counterclaim leading to delay in the
disposal of the case;
(d) whether any reasonable offer to settle is made by a party and unreasonably
refused by the other party; and
(e) whether the party had made a frivolous claim and instituted a vexatious
proceeding wasting the time of the Court.
(4) The orders which the Court may make under this provision include an order that a
party must pay:
(a) a proportion of another party's costs;
(b) a stated amount in respect of another party's costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date."
Calcutta.—Omit sub-section (2) vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
Object of awarding costs.—
The object of awarding costs is to secure to a litigant the expenses which he has
incurred and not to punish the opposite party. The costs to be awarded under this
section are in the judicial discretion of the Court. This judicial discretion is to be
exercised on sound legal principles. Ordinarily, the successful party is entitled to his
costs. In other words, costs follow the event. When both the parties are guilty of acts of
bad faith, both may be deprived of their costs.
Section 35 lays down that the costs of an incidental to all suits shall be in the
discretion of the Court. The Court can order by whom and out of what property, the
costs are to be paid. The section clearly provides that "costs shall follow the events". It
means that the successful party is entitled to the costs, unless the Court in its
discretion orders otherwise, either because that party is guilty of misconduct, or
because there is some other good cause for not awarding costs to him. Thus,
successful party will not get his costs if he succeeds on a small part of his claim, but
fails on the most important and larger part of it or if the party has raised an
unnecessary issue, or placed a burden on the defendant which ought not to have in the
litigation, etc. The costs may be disallowed if there is vindictive nature of the
proceedings are launched by a client against his pleader for professional misconduct.
Similarly, a landlord who deliberately mis-states the areas of the land in a rent suit may
be deprived of costs, though he is successful in his suit.
When a respondent is not contesting its case, costs would not be awarded, but an
exception would be carved out and in a suitable case costs should be awarded on
persons that set the law in motion, had benefits thereof and remained obviously ex
parte.936
Where the costs were awarded not as a condition precedent to allowing the
amendment but by way of exercise of the discretionary power of the Court to award
costs to the opposite party, the plea of estopple arising from acceptance of costs so as
to preclude the party from challenging the validity of the order cannot be invoked.937
Award of costs by Court is discretionary. Where judgment is silent about incidence of

costs it shall be presumed that Court did not intend to determine costs aspect instead
intended that parties should be left to bear their own costs.938
Imposition of costs is in the discretion of Court. Appellate Court would not interfere
when Court has imposed costs in light of facts.939
Costs should be real and compensatory and not merely symbolic. Exemplary costs can
be awarded where appeal is devoid of any merit.940
The award of costs is entirely in the discretion of the Court941 subject, however, "to
such conditions and limitations as may be prescribed" and to the "provisions of any law
for the time being in force."
A High Court has discretion to award costs according to the facts and circumstances
of each case.942
Where intricate constitutional questions when decided by the Supreme Court, it should
be an exception to the conventional rule of costs unless other circumstances
warrant.943
Apart from the provisions of section 35 the High Court has wide discretion in exercise
of its inherent powers to award costs in suitable cases if it finds it necessary in the
interest of justice to do so.944
Advocate was ordered to pay costs personally.—
An advocate presented a petition under Article 32 for a writ of habeas corpus on behalf
of a lady and appeared as her next friend. The petition did not disclose that he made
any attempt to consult the person who he said was the husband of the lady nor did he
show that he made any attempt to contact either the lady or even her uncle. He had
three hearings in the Court, despite the warning he was given about costs and the
Attorney-General was also asked to appear. When the arguments were fully concluded
and he found that the Court was against him he asked for permission to withdraw the
petition. That was refused and petition dismissed. The advocate was held to pay the
costs personally.945
In Rafiq v Munshilal, AIR 1981 SC 1400 : (1981) 2 SCC 788 . The Supreme Court on
further appeal, set aside the dismissal of the appeal and further directed that the costs
be recovered from the appellant's counsel who absented himself. It was observed
further that a party should not suffer for misdemeanour or inaction of his counsel.
(Order LXI rule 17, O LXIII rule 1).
Where an ex parte decree was passed as the advocates had gone on strike, restoration
was allowed subject to payment of costs by the party. The party was held entitled to
recover costs from the advocate concerned.946
A separate suit for costs incurred but not awarded will be barred on the principle of res
judicata.
An appeal for costs lies only in two matters namely, where the order as to costs
involves a matter of principle or proceeds upon a misapprehension of fact or law and
secondly where no discretion is exercised in making such an order.
Costs—meaning explained.—
The expression "costs of any proceedings or costs incidental to any proceedings"

means costs of any proceedings such as may be determined at the conclusion of the
hearing. It does not include costs payable in advance or to be incurred in future by a
party. An order, therefore, directing the party to a proceeding to pay the travelling and
halting allowances of another party irrespective of the final decision is not warranted
by law.947
Some leading rules for awarding costs.—
(i) Normally costs shall follow the event and it is not the rule that costs should be
left to be borne by the parties.948 However, the costs may not be awarded by the
Court if it is satisfied in this respect on account of some good reasons. This
means that the successful party is entitled to costs unless he is guilty of
misconduct or there is some good cause for not awarding costs to him.
(ii) Where a party successfully enforces a legal right and in no way misconducts
himself, he is entitled to costs as a matter of right.949
(iii) If a plaintiff substantially succeeds, he is entitled to his costs though he may

not have got the precise form of relief he wanted.950 Where he sets up a false
case, he was deprived of his costs.951
(iv) If a plaintiff recovers a less amount than he claimed in the plaint his costs
should be apportioned according to the amount recovered and not according to
the sum claimed.952
(v) A person wrongfully made a party should get his costs.953

(vi) Where both the parties advanced pleas far in excess of their legal rights each
party will be made to bear his own costs.
The following parameters must be taken into consideration while imposing the costs.
These factors are illustrative in nature and not exhaustive:
(i) At what stage the amendment was sought.
(ii) While imposing the costs, it should be taken into consideration whether the
amendment has been sought at a pre-trial or post-trial stage.
(iii) The financial benefit derived by one party at the cost of other party should be
properly calculated in terms of money and the costs be awarded accordingly.
(iv) The imposition of costs should not be symbolic but realistic.
(v) The delay and inconvenience caused to the opposite side must be clearly
evaluated in terms of additional and extra Court hearing compelling the opposite
party to bear extra costs.
(vi) In case of appeal to higher Courts, the victim of the amendment is to bear
considerable additional costs.
All these aspects must be carefully taken into consideration while awarding the
costs.954
Though section 35 does not impose a ceiling on costs that could be levied and gives
discretion to court in the matter, however, in awarding costs court cannot ignore any
conditions or limitations in Code of Civil Procedure, 1908 or in any rules.955
Where the plaintiff succeeds in proving his case and the defendant does not enter
witness box, court would not be justified in not awarding the costs to the plaintiff
against the defendant.956
Where the appellant was not qualified to be appointed as lecturer and was not selected
earlier, but unnecessarily dragged the respondent to court. The Appellant was directed
to pay costs of Rs. 5,00,000 to respondents in both appeals equally.957
Realistic costs, awarding of.—
The practice developed to award no costs or award nominal costs encourages filing of
frivolous suits and defences. Realistic costs should be awarded. High Courts should
examine these aspects and whereas necessary make requisite rules, regulations or
practice directions.958
Awarding costs is a rule.—
As the transaction was not commercial, trial court awarding interest at 8% p.a. justified.
Courts should award proportionate costs in view of section 35 of the Code of Civil
Procedure. Awarding costs in a civil suit is a rule and rejection of the same needs to be
supported by good reasons.959
Heavy cost awarded.—
When the respondent, the rival candidate in an election petition committed serious
malpractice at the time of counting, he was directed to pay heavy costs which were
quantified at Rs. 10,000.960
The petitioner was a scheduled caste candidate. He had secured a good position in
merits. He was not appointed as sub-Inspector of police for several years. He had to
approach the Supreme Court. He was awarded the costs of Rs. 5,000.961
Where the respondents before the Supreme Court were compelled to come to New
Delhi again and again, and they had to spend money on boarding and lodging, the
appellants were directed to pay Rs. 1,500 to each of the respondents by way of
costs.962
In an appeal against refusal to grant affiliation to minority institution, the Government

was reluctant to perform constitutional duty. It was also disobeying orders of the
Supreme Court to produce certain documents. Heavy cost was imposed on the State
Government. Normally, the Supreme Court does not grant costs.963
Imposition of cost for misleading Court.—
The party was saddled with cash for misleading the Court by making incorrect
statements and annexing wrong document before the Court.964
Cost in perjury cases.—
The acquisition of land was challenged by the original owner and pending the
proceedings he had been stating that no construction was going on in the plot. But he
actually sold out portions of the plot and the purchaser was going on with the
construction. Though technically speaking the original owner may be right that he was
not making any construction factually, it is wrong. So, he was directed to deposit a cost
of Rs. 10,000.965
Costs in case of frivolous appeals.—
Imposition of costs quantified at Rs. 10,000 was held to be justified for filing frivolous
appeals especially the tendency of PSUs.966
Costs in cases relating to corrupt election practices.—
Where an allegation of corrupt practice against a candidate contesting election and

also persons campaigning for him was not proved, the costs were allowed only to the
candidate and persons who appeared personally as witness to rebut allegation made
against him.967
Costs in public interest litigation.—
In a writ petition filed by a voluntary organisation as a public interest litigation which

had to be fought over a period of six years the Union of India was ordered to pay cost
of Rs 50,000 as costs.968
Costs in non-payment of correct Court-fees.—
When the appellant was negligent in not paying the correct Court-fee and so the
respondent was dragged on to the Court for about ten years, while permitting the
appellants to pay the deficit Court fee for restoring the appeal, the Supreme Court
ordered him to pay the respondent a sum of rupees one thousand by way of costs.969
The above principles governing the award of costs have been applied in the appeals
before Supreme Court.970
Where the petitioner was alone and single. He fought a valiant battle against a giant
enterprise. In token of appreciation a sum of Rs. 10,000 was ordered to be paid by way
of the costs.971
Where a request of appellant for extension of time to deposit deficit Court-fees was
contested by the respondent, the respondent should be made liable to pay.972
Where the appeal involved the determination of the only question as to whether the
appellant was entitled to refund of an excise duty. This duty was paid on the price of
packing material used for packing of superfine cement which according to the
appellant was paid under protest. Whereas according to the respondent, it was not paid
under protest and, therefore, the claim of refund was barred by time. It was held that
the excise duty was paid under protest and question of limitation does not arise for
refund of the duty. Refund of the excise duty was refused. Hence, the manufacturer
was entitled to refund of amount with interest from the date of refusal of refund with
cost Rs. 10,000.973
In respect of a claim for encashment of leave increment arrears, special pay, etc. On
account of delay in payment for over 12 years, the Supreme Court directed the Union of
India to pay a sum of Rs. two lacs toward the interest, compensation, litigation
expenses, etc. in addition to the payment of the claim amount.974
Where an appellant had chosen to be a counsel of his own cause and not had the
benefit of advice from competent legal minds, no cost was awarded while dismissing
the appeal. The conduct of the appellant was deprecated. Non-granting of the costs
was also to give an opportunity to realise his mistake and feel contrive for his
reproachable conduct.975
Costs were not allowed.—
Where the successful parties were ordered to get back to the employment, the costs
were not allowed in their favour.976
Where the controversy arose because of relevant provisions were not free from
ambiguity, the parties may be directed to bear their own costs throughout.977
Where an appeal in the Supreme Court is allowed but the appellant had not appeared
before the High Court to assist the Court. There will be no order as to costs to the
appeal in Supreme Court.978
No order was passed as to costs on dismissal of application in view of personal

appearance of the applicant.979
In a suit for breach of contract where the plaintiff has also committed default then the
plaintiff would not be entitled to costs of the suit.980
Subject to such conditions and limitations as may be prescribed.—"Prescribed" means by

rules contained in, or made under the Act: See sections 2(16) and 18.
The following rules contain express provisions as to costs:
(1) Order XI, rule 3—Cost of interrogatories;
(2) Order XII, rule 2—Proof of documents;
(3) Order XXI, rule 72(3)—Application to set aside a sale;
(4) Order XXIII, rule 1(3)—Next friends and guardians;
(5) Order XXXIV, Mortgage suits;
(6) Order XXXV, rule 3—Inter-pleader suits;
(7) Order XXXV, rules 10, 11 and 16—Pauper Suits.
Review.—
A Court can, when a strong case is made out, review direction as to costs.981
Revision.—
A mistake committed by a Court on the point of costs is hardly a ground for

revision.982 However, a revision will lie when a Court having no jurisdiction makes an
order of amendment relating to costs.983
Costs awarded in appeal, being with no merits.—
The appeal being devoid of merits and substance it was dismissed and costs were
awarded.984
Letters Patent Appeal.—
An order as to costs is a judgment within the meaning of clause 15 of the Letters

Patent.985
Appeal before Supreme Court.—
Costs are essentially in the discretion of the Court. Orders disallowing costs to parties
supported by good reasons are not interfered in appeal before the Supreme Court.986
The parties were directed to bear their own costs where the claim was partly
reduced.987
Although an election petition is dismissed, prevarications of the returned candidates

precludes him from getting costs.988
Litigation costs from national exchequer.—
In the clarification of confused judicial situation by Court, if the parties are fair then the
costs of litigation must come out of national exchequer and not out of party's purse.989
Filing of false affidavit should be effectively curbed with a strong hand to preserve
purity of Judicial proceedings. Hence, imposition of exemplary costs by High Court of
Rs. 10,00,000 affirmed.990
935 Sub-s. (3) reproduced below was omitted by Code of Civil Procedure (Amendment) Act 66
of 1956 (w.e.f. 1-1-1957):
"(3) The Court may give interest on cost at any rate not exceeding six percent per annum, and
such interest shall be added to the costs and shall be recoverable as such".
936 RG Shinde v State of Maharashtra, AIR 1994 SC 1673 (1683) : (1993) 4 SCC 216 .
937 Bijendra Nath Srivastava v Mayank Srivastava, AIR 1994 SC 2562 (2573) : (1994) 6 SCC 117 .
938 Omveer Singh v District Judge, Haridwar, AIR 2009 Utr 55 , see also Oswal Fats & Oils Ltd v
Commnr, (2010) 4 SCC 728 (752).
939 Laxman Prasad v Prodigy Electronics Ltd, AIR 2008 SC 685 : (2008) 1 SCC 618 .
940 Punjab State Power Corporation Ltd v Atma Singh Garewal, (2014)5 SCC (Civ) 762 .
941 (1900) 2 Bom LR 254 .
942 SA Jais & Co v Gujarat Electricity Board, AIR 1988 SC 254 (257) : (1987) Supp SCC 617 .
943 AS Iyer v V Balasubramanyam, AIR 1980 SC 452 (470) : 1980 1 SCC 634 : 1980 Lab IC 231 .
944 A Krishna Rao v State of Orissa, AIR 1955 Ori 65 . See also Pleader of Agra v High Court
Judges, Allahabad, AIR 1930 PC 60 .
945 Vidya Verma v Shiv Narain, AIR 1956 SC 108 : (1955) 2 SCR 983 .
946 Ramon Services Pvt Ltd v Subhash Kapoor, AIR 2001 SC 207 (216) : (2001) 1 SCC 118 :
(2001) SCC (Cri) 3 : (2001) 1 KLT 34 .
947 Punjab National Bank v Sri Ram Kunwar, AIR 1957 SC 276 (278) : (1957) SCR 220 : (1957) 1
LLJ 455 .
948 Jugra Singh v Jaswant Singh, (1971) 1 SCJ 141 : (1970) 2 SCC 386 : (1971) 73 PLR 314 .
949 Laxmibhai v Radhabhai, (1918) 42 Bom. 327.
950 Ghanshyam v Moroba, (1894) 18 Bom. 474.
951 United Bank of India v Nedarlandsche Standard Bank, AIR 1962 Cal 325 . See also State of
UP v Shyam Sunder, AIR 1961 All 418 .
952 S Pestonji Manjoo v Gangadhar Khemka, AIR 1969 SC 600 : (1969) 1 SCC 220 : (1969) 3 SCR
33 .
953 Bishan Dayal v Bank of Upper India, (1891) 13 All 290 .
954 Revajeeter Builders & Developers v Narayanaswami & Sons, (2009) 10 SCC 84 (101); see also
Vinod Seth v Devinder Bajaj, (2010) 8 SCC 01 (23) (The provision does not impose only ceiling).
955 Sanjeev Kumar Jain v Raghubir Saran Charitable Trust, (2012) 1 SCC (Civ) 275 .
956 Union Bank of India v Monin Enterprises, AIR 2002 Kant 270 (272).
957 Ganapath Singh Gangaram Singh Rajput v Gulbarga University, AIR 2014 SC 77 .
958 Salem Advocate Bar Assocn v UOI, AIR 2005 SC 3353 (3364).
959 MV Prema Chandra v Sarojamma, AIR 2015 Kant 1 .
960 Ambika Prasad Dubey v DM Allahabad, AIR 1991 SC 1106 (1108).
961 Ganga Singh v Commr of Police, AIR 1987 SC 699 .
962 Comptroller & Auditor General of India, Gian Prakash v KS Jagannathan, AIR 1987 SC 537
(556) : (1986) 2 SCC 679 .
963 Managing Board MTM v State of Bihar, AIR 1984 SC 1757 (1765) : (1984) 4 SCC 500 .
964 MB Mahadik v SK Kanitkar, AIR 2005 SC 1794 (1800, 1805).
965 State of Maharashtra v Pandurang K Pangore, AIR 1995 SC 1202 (1204) : 1995 Supp (2) SCR
119 .
966 Punjab State Power Corporation v Atma Singh Grewal, (2014) 13 SCC 666 .
967 Ramchandra G Kapse v HR Singh, AIR 1996 SC 817 (826) : (1996) 1 SCC 206 .
968 Indian Council of Enviro-Legal Action v UOI, AIR 1996 SC 1446 (1469) : (1996) 3 SCC 212 .
969 Mohammed Mahibullah v Seth Chaman Lal, AIR 1993 SC 1241 (1243) : (1991) 4 SCC 529 .
970 Simrathmull v Nanjalingiah, AIR 1963 SC 1183 .
971 MC Mehta v UOI, AIR 1987 SC 965 (982) : (1986) 2 SCC 176 .
972 Prem Narain v Vishnu Exchange Charitable Trust, AIR 1984 SC 1896 : (1984) 4 SCC 375 .
973 India Cements Ltd v Collector of Central Excise, AIR 1989 SC 1496 : (1989) 2 SCC 676 .
974 SR Bhaurale v UOI, AIR 1997 SC 27 (29) : (1996) 10 SCC 172 : 1996 SCC (L&S) 1384 .
975 B Varatha Rao v State of Karnataka, AIR 1987 SC 287 (294) : (1986) 4 SCC 624 : (1986) 1
ATC 763 .
976 KI Shephard v UOI, AIR 1988 SC 686 (696) : (1987) 4 SCC 431 .
977 Santok Chand K Jain v Bhusaval B Municipality, AIR 1966 SC 1358 (1361).
978 S Sanyal v Gian Chand, AIR 1968 SC 438 (441) : (1968) 1 SCR 536 .
979 State of Punjab v Harvinder Singh, (2008) 3 SCC 394 .
980 State of AP v Singam Shetty Yellananda, AIR 2003 AP 182 (187).
981 Mahadeo Ganesh v Secretary of State, AIR 1926 Bom 367 (DB).
982 Thirukavat Chetti Karia Goundan, AIR 1930 Mad 72 . See also Catto Bai v Habizan, AIR 1951
Ajmer 98 .
983 AIR 1955 Ajmer 25 .
984 G Suryakumari v B Chandramouli, (2010) 2 SCC 254 (259), see also UOI v SICOM Ltd, (2009)
2 SCC 121 .
985 AIR 1919 Mad 678 (FB). See also Aspee (India)Ltd v ML Dahanukar and Co Ltd, AIR 1954
Bom 35 (DB) : (1954) Bom 21.
986 Chatur Bhuj Pande v Collector of Raigarh, AIR 1969 SC 255 : (1969) 1 SCR 212 : 1969 Ker LJ
212 . See also AIR 1969 SC 493 . Ibid.
987 Muthia Chettiar v Shanmugham, AIR 1969 SC 552 (555) : (1969) 1 SCR 444 .
988 Jashbhai Patil v Anverbeg, AIR 1969 SC 586 (590) : (1969) 2 SCR 97 ; see also KM
Vishwanath Pillai v Sanmugham, AIR 1969 SC 493 (496) : (1969) 1 SCC 188 .
989 CIT, Madras v RMC Pillai, AIR 1977 SC 489 (497) : (1977) 1 SCC 431 : (1977) 106 ITR 292 :
(1977) 2 SCR 111 .
990 Sciemed Overseas Inc v BOC India Ltd, AIR 2016 SC 345 : 2016 (1) SCALE 264 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S 35A. Compensatory costs
in respect of false or vexatious claims or defences.
© 2020 LexisNexis
Costs
991[S 35A. Compensatory costs in respect of false or vexatious claims or

defences.
(1) If in any suit or other proceeding, 992[including an execution proceeding but

excluding an appeal or a revision], any party objects to the claim or defence on
the ground that the claim or defence or any part of it is, as against the objector,
false or vexatious to the knowledge of the party by whom it has been put
forward, and if thereafter, as against the objector, such claim or defence is
disallowed, abandoned or withdrawn in whole or in part, the Court, 993[if it so
thinks fit], may, after recording its reasons for holding such claim or defence to
be false or vexatious, make an order for the payment to the objector, by the
party by whom such claim or defence has been put forward, of costs by way of
compensation.
994
(2) No Court shall make any such order for the payment of an amount
exceeding 995[three thousand rupees] or exceeding the limits of its
pecuniary jurisdiction, whichever amount is less:
Provided that where the pecuniary limits of the jurisdiction of any Court
exercising the jurisdiction of a Court of Small Causes under the Provincial
Small Cause Courts Act, 1887, 996[or under a corresponding law in force in
997(any part of India to which the said Act does not extend)], and not being a
Court constituted 998[under such Act or law], are less than two hundred and
fifty rupees, the High Court may empower such Court to award as costs
under this section any amount not exceeding two hundred and fifty rupees
and not exceeding those limits by more than one hundred rupees:
Provided further, that the High Court may limit the amount which any Court
or class of Courts is empowered to award as costs under this section.
(3) No person against whom an order has been made under this section shall, by
reason thereof, be exempted from any criminal liability in respect of any claim
or defence made by him.
(4) The amount of any compensation awarded under this section in respect of a
false or vexatious claim or defence shall be taken into account in any
subsequent suit for damages or compensation in respect of such claim or
defence.]
AMENDMENT OF SECTION 35A.—IN SECTION 35A OF THE CODE, SUB-SECTION (2)

SHALL BE OMITTED.
STATE AMENDMENTS
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act No 24 of
1954 S. 2 and Schedule item 5, Entry 1 (w.e.f. 30-11-1954).
(i) In Section 35A, for the existing sub-section (1) substituted as below:
"(i) if in any suit or other proceeding, including proceedings in execution, but not
being an appeal or revision, the Court finds that the claim or defence or any part
thereof is false or vexatious to the knowledge of the party by whom it has been
put forward and if such claim or defence or such part is disallowed, abandoned
or withdrawn in whole or in part, the Court may, after recording its reasons for
holding such claim or defence to be false or vexatious, make an order for the
payment to the successful party of costs by way of compensation irrespective of
the decision on other issues in the case".
Sub-sec (1A) has been inserted by Act 57 of 1976:
"(1A). The provisions of sub-section (1) shall mutatis mutandis apply to an appeal
where the appellate Court confirms the decision of the trial Court and the trial Court
has not awarded, or has awarded insufficient, compensatory cost under that sub-
section."
COMMENT.—
Section 35 deals with the costs as discussed earlier. It provides that (1) the costs of
and incident to all suits shall be in the discretion of the Court; (2) the Court shall have
power to determine by whom or out of what property as to what extent costs are to be
paid and (3) where costs are not to follow the events, the Court shall state its reasons
in writing.
The object of section 35 in awarding costs to a litigant is to secure to him the expenses
incurred by him in the litigation999 and not to enable him to make anything in the way of
gain, profit, over and above the expenses for maintaining or defending the action, nor to
give exemplary damage or smart money, by way of penalty or punishment on the
opposite party.1000
Section 35-A provides for payment of costs by way of compensation in cases of false
or vexatious claims and defences. Where costs are awarded in respect of proceedings
under section 145, Code of Criminal Procedure (wrongful attachment of property), suit
based on injury of property is maintainable.1001 Costs under this section are not
intended as punishment for unsuccessful party.1002 If claim is untenable but not false,
this section does apply.1003 This section does not apply to witnesses.1004
Section 35-A was amended by the Amending Act of 1976 to exclude its application to
revision proceedings and to enhance the maximum amount of compensation from one
thousand to three thousand.
This section is an exception to the general principle on which section 35 is based

namely, that the award of costs to a litigant is to secure to him the expenses incurred
by him in the litigation, and not to enable him to get money by way of penalty or
punishment on the opposite party. In order that this section may apply, the following
conditions must exist:
(1) The claim or defence must be false or vexatious to the knowledge of the party
raising it;
(2) Such claim or defence must have been disallowed or withdrawn or abandoned
in whole or in part;
(3) An objection must have been taken at the earliest possible opportunity.
This section applies only to suits and proceedings and not to appeals. An order for
compensatory costs under this section is appealable under section 104.
It may be pointed out that a person against whom an order for compensatory costs has
been made under section 35-A is not exempted from any criminal liability in respect of
that claim. However, the amount of any compensatory costs awarded in respect of
false or vexatious claim is to be taken into account in any subsequent suit that may be
filed for damages or compensation in respect of such claim.
If the trial Court is satisfied that the litigation was inspired by vexatious motives and
altogether groundless, then it should take deterrent action under this provision.1005
It has been held by a Full Bench of Gujarat High Court in Anandji Haridas & Co v State of
Gujarat, AIR 1977 Guj. 140 (FB) : 18 Guj LR 271 as follows: "The principle of common
law in England which has been held to be applicable even in this country in the matter
of taxing party and party costs thus, is that the costs are awarded, not as a punishment
to the defeated party, nor as a bonus to the party which receives them, but as a
recompense to the successful party in order to indemnify him, though not completely,
for legal expenses to which he has been subjected in prosecuting his suit or his
defence... It is this principle which lies at the root of the order awarding proportionate
costs in cases where the plaintiff or the appellant succeeds partly in his claim.1006
Where the Principal Secretary in the Local Government Department is responsible for
violation of the statutory provisions and weakening the concept of rule of law whereby
the President of a Municipal Council is deprived of duty to assume and discharge his
duties. The secretary is personally liable to pay the costs from his own pocket.1007
Costs to be in the discretion of the Court.—
This section provides that the costs of suits and applications shall be in the discretion
of the Court, which is very wide one. Such discretion must be a judicial discretion to be
exercised on legal principles and not otherwise. Where there are no materials before
the Court on which it can exercise its discretion, it is not justified in depriving a
successful party to his costs.
In a case of non-payment of land acquisition compensation and utter lack of legal

authority for deprivation of respondent's property by state authorities, the High Court in
writ jurisdiction directed to take steps to pay compensation with interest to claimant
but it was liberal in not imposing any exemplary costs. An appeal against said order
was filed before the Supreme Court. Even these Appellant State instead of accepting its
mistake took an intractable attitude and persisted in opposing just and reasonable
claim of respondent. The appeal was, therefore, dismissed with exemplary cost of Rs.
25,000.1008
Compensatory costs, provision needs revision.—

The provision relating to compensatory costs under section 35A of the Code in respect
of false or vexatious claims or defences has become virtually infructuous and
ineffective on account of inflation. This requires a realistic revision.1009
Under section 35A of the Code compensatory costs for vexatious claims and defences
may not exceed Rs. 3000. The primary object of levying costs is to recompense a
litigant for the expense incurred by him in litigation to vindicate or defend his right.1010
Imposition of additional cost.—
In a suit for declaration, defendants applied to extend time to make payment of costs
of Rs. 1,50,000 to the plaintiff. It would not be in the interest of justice to dismiss the
suit merely on ground that the Advocate for the petitioners could not produce the copy
of the pay order at the time of the making of the application. However, additional cost
of Rs. 25,000 was imposed on defendants to be paid to the plaintiff.1011
Exemplary costs, not to be oppressive.—
The power to levy exemplary costs should be exercised sparingly to advance justice. It
should not be threatening and oppressive.1012
Where auction sale was found to be sham and mala fide and the case was of land
grabbing, the High Court order which set aside the sale was not interfered with and
exemplary costs were levied on the purchasers.1013
In a case, the court considered the question of compensatory costs in false

claims/defences. The court held that false claims and evasive pleas are main cause for
delay in administration of justice. The same can be avoided by ordering restitution and
imposing realistic costs. Courts have to ensure that unscrupulous litigant is not
permitted to derive any benefit by abusing judicial process.1014
There is a necessity for strict enforcement of section 35(2) ceiling of compensatory

cost in respect of false or vexatious claims or defences should be at least Rs. 1,00,000.
Legislature should consider adding description of costs awardable under section 35A
as "punitive costs." There should be periodical revision and stream lining of court fees
and should have some kind of quid pro quo to cost involved. The Supreme Court also
stressed the urgency in revision of advocate's fees provided in Sch II High Court rules,
and also suggested that amendment of rules should be made to make provision for
actual realistic costs.1015
991 Section 35A inserted by Act 9 of 1922, Section 2.

992 Subs. for "not being an appeal" by Code of Civil Procedure (Amendment) Act 66 of 1956,
section 4 (w.e.f. 1-1-1957).
993 Subs. for "if the objection has been taken at the earliest opportunity and if it is satisfied of
the justice thereof" by Code of Civil Procedure (Amendment) Act 66 of 1956, section 4 (w.e.f. 1-
1-1957).
995 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 14(ii) (w.e.f. 1-2-
1977) for "one thousand rupees".
996 Ins. by section 7 of Act 2 of 1951 (w.e.f. 1-4-1951).
997 Subs. for "a Part B State" by AL No. 2 of 1956.
998 Subs. for "under that Act" by section 7 of Act 2 of 1951 (w.e.f. 1-4-1951).
999 Nand Lal Tanti v Jagdeo Singh, AIR 1962 Pat 36 ; see also Marindra Chandra v Ashwini
Kumar, AIR 1921 Cal 185 (DB).
1000 Firm of N Penddanna v KVSS Sons, AIR 1954 SC 26 .
1001 Bachha Pandey v Deosunder Devi, AIR 1968 Pat 248 .
1002 Krishnapur Mutt v Gopalakrishnayya, AIR 1967 Mys 65 .
1003 Kaza Sriramamurthy v Andhra University, AIR 1966 AP 170 .
1004 Suryanarayanamurthy v Kameshwaramma, 1960 Andh WR 307.
1005 T Arivandandam v TV Satyapal, AIR 1977 SC 2421 (2423) : (1977) 4 SCC 467 .
1006 AIR 1977 Guj 140 at p 144 (FB) : 18 Guj LR 271.
1007 State of Punjab v Bhajan Singh, AIR 2001 SC 1098 (1103) : (2001) 3 SCC 565 .
1008 State of UP v Manohar, AIR 2005 SC 488 .
1009 Vinod Seth v Devinder Bajaj, (2010) 8 SCC 01 (23), see also Salem Advocate Bar Assn II v
UOI, (2005) 6 SCC 344 .
1010 Ashok Kumar Mittal v Ram Kr Gupta, (2009) 2 SCC 656 (659).
1011 Vidyut Enterprises v Popatlal, 2010 (3) Mah LJ 134 (137) (DB).
1012 Satyapal Singh v UOI, AIR 2010 SC 1138 (1140), see also Sita Ram Bhandar Society v Govt
of NCT, Delhi, (2009) 10 SCC 501 (exemplary costs warrant in frivolous/vexatious litigation to
frustrate and delay legal process), Damodar S Prabhu v Syed Babalal H, AIR 2010 SC 1907 .
1013 Rakesh Kumar Goel v UPSIDC Ltd, AIR 2010 SC 2451 .
1014 A Shanmugam v Ariya Kshatriay Rajakula Vamsahu Madalaya Nandhavana Paripalanai
Sagam, AIR 2012 SC 2010 .
1015 Sanjeev Kumar Jain v Raghubir Saran Charitable Trust, (2012) 1 SCC (Civ) 275 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 35B. Costs for causing
delay.
© 2020 LexisNexis
Costs
1016[S. 35B. Costs for causing delay.
(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a
party to the suit—
(a) fails to take the step which he was required by or under this Code to
take on that date, or
(b) obtains an adjournment for taking such step or for producing evidence
or on any other ground,
the Court may, for reasons to be recorded, make an order requiring such
party to pay to the other party such costs as would, in the opinion of the
Court, be reasonably sufficient to reimburse the other party in respect of
the expenses incurred by him in attending the Court on that date, and
payment of such costs, on the date next following the date of such
order, shall be a condition precedent to the further prosecution of—
(a) the suit by the plaintiff, where the plaintiff was ordered to pay such
costs;
(b) the defence by the defendant, where the defendant was ordered to pay
such costs.
Explanation.— Where separate defences have been raised by the

defendants or groups of defendants, payment of such costs shall be a
condition precedent to the further prosecution of the defence by such
defendants or groups of defendants as have been ordered by the Court
to pay such costs.
(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be
included in the costs awarded in the decree passed in the suit; but, if such
costs are not paid, a separate order shall be drawn up indicating the amount of
such costs and the names and addresses of the persons by whom such costs
are payable and the order so drawn up shall be executable against such
persons.]
COMMENT.—
Section 35-B which was added by the Amending Act of 1976, gives to the Court
discretion to impose compensatory costs on parties who are responsible for delaying
any stage of the litigation and such costs would be irrespective of the ultimate
outcome of the litigation.
When an amendment is allowed on payment of costs and the costs are accepted by a
party, he cannot afterwards raise any objection.1017
By filing a petition for eviction on the ground of reconstruction, a landlady obtained

possession of the premises but she did not do it. The Court allowed the tenant to put
up the reconstruction. The Municipality and State Government geared up to stall the
reconstruction at the behest of son of landlady, a municipal councillor. The State's plea
for impleading itself as a party to the matter was rejected by the High Court. The abuse
of process of Court was established. The rejection was proper Government's officials
at the behest of whom appeal was filed directed to pay exemplary cost of Rs.
10,000.1018
Where the appointment of the chairman, vice-chairman and members of an

Administrative Tribunal was challenged by three police inspectors with a view to derive
personal benefits and not in public interest, with the idea just to paralyse working of the
tribunal, this is a glaring case of abuse of process of Court in the name of public
interest. Each petitioner was directed to pay a sum of rupees 15000 by way of cost
which may be recovered from provident fund/gratuity or any other future monetary
benefit including pension or in ordinary cause by executing the order.1019
The explanation attached to sub-section (1) of this section was added in order to avoid
delay in the disposal of suits. Accordingly, the payment of compensatory cost for
causing delay has been made a condition precedent to the further prosecution of the
suit or the defence by the plaintiff or defendant concerned.
Overruling its earlier decisions,1020 a Full Bench of Punjab and Haryana High Court has
held in Anand Prakash v Bharat Bhushan Rai, AIR 1981 P&H 269 (FB) that the provision
in section 35-B is mandatory and if a party fails to pay costs on the next date, the Court
must disallow prosecution of the suit or defence, as the case may be.
However, the provision in section 35-B is directory and not mandatory according to the
Orissa High Court as held in Kasi Biswanath v Paramananda, AIR 1982 Ori 80 .
(1) Costs in Respect of certain Items: See O XX-A.
(2) Payments into Courts: See O XXIV.
(3) Security for Costs: See O XXV.
To be invoked regularly to reduce delay.—
The provision under section 35-B of the Code providing for costs for causing delay is
seldom invoked. It should be regularly employed to reduce delay.1021
For non-appearance of counsel of defendant.—
The imposition of costs on setting aside ex parte decree is warranted in case of non-
appearance of defendant's counsel.1022
Costs, non-payment of.—
The provision under section 35B of the Code does not contemplate or require dismissal
of suit as an automatic consequence of non-payment of costs by plaintiff.1023
Condonation of delay on Payment of costs.—
Where the appellant agreed and accepted the order by receiving the costs, it would not
be open to them to subsequently challenge the order.1024
1016 Ins. By Code of Civil Procedure (Amendment) Act 104 of 1976, Section 15 (w.e.f. 1-2-
1977).
1017 Pancham Dass v SGPC Amritsar, AIR 1991 SC 511 : 1991 Supp (2) SCC 511 .
1018 State of Kerala v Thrassia, AIR 1994 SC 1488 (1490) : 1995 Supp (2) SCC 449 .
1019 Sarwan Singh Lamba v UOI, AIR 1995 SC 1729 (1737) : (1995) 4 SCC 546 : 1995 SCC (L&S)
1064 : (1995) 30 ATC 585 .
1020 Manjit Singh v State Bank of India, AIR 1980 P&H 317 and Manik Chand v Suresh Chand,
AIR 1979 P&H 229 .
1021 Vinod Seth v Devinder Bajaj, (2010) 8 SCC 01 (23).
1022 Sahara India v MC Aggarwal, HUF, (2007) 11 SCC 800 (801).
1023 Manohar Singh v DS Sharma, AIR 2010 SC 508 (510) : (2010) 1 SCC 53 .
1024 Rattan Chand v Mori, (2010) 11 SCC 768 (770).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 36. Application to orders.
© 2020 LexisNexis
PART II Execution
General
1[S. 36. Application to orders.
The provisions of this Code relating to the execution of decrees ( including provisions
relating to the payment under a decree ) shall, so far as they are applicable, be deemed
to apply to the execution of orders ( including payment under an order ).]
Calcutta.—Insert the words "and of the presidency Small Cause Courts Act, 1882", after
the words "of this Code" and before the words "relating to"; and the words "and except
as therein otherwise provided", after the words "are applicable" and before the words
"be deemed to". Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
The principle underlying the provisions of this section is that every Court has an
inherent power to have its orders carried out, failing which the orders would be a mere
fact. This section also makes it quite clear that the provisions relating to the decree
shall, so far as they are applicable be deemed to apply to the execution of orders.
The existing section has been substituted by a new section in order to clarify that the
provisions relating to execution of a decree or order include payment under a decree or
order as well.
Meaning of Execution.—
Execution is the enforcement of decrees and orders through the process of Court, so
as to enable the decree-holder to recover the fruits of the judgment. The main rules of
procedure are enacted in Pt II of the Code and minor rules are to be found in O XI of the
Code. These provisions apply to decrees which are capable of execution. There is no
question of decree which is purely declaratory.
What decrees may be executed.—
The decree to be executed is the decree of the Court of last instance where an appeal
has been preferred. The decree of the original Court is merged in the decree of the
superior Court which alone is executable. Where there is no appeal, the decree to be
executed is the decree of the Court of first instance.2
Applicability to execution of orders.—
Under section 36 of the Code the provisions relating to the execution of decree are
applicable to execution of orders.3
Modes of paying money under decree.—
See O XI rule 1 Code of Civil Procedure.
Payment out of Court to decree-holder.—
See O XXI rule 2, Code of Civil Procedure.
Commencement of execution proceedings.—
Who may apply for execution.—
See O XXI rules 11, 15, and 16 Code of Civil Procedure.
Against whom execution may be had.—
Notice before ordering execution.—
The law does not require any notice to be issued to the parties against whom execution
is applied for, except in the following cases:
(1) Where an application for execution is made more than one year after the date of
the decree or more than one year after the date of the last order made on any
previous application for execution;
(2) Where an application for execution is made against the legal representative of
the judgment-debtor;
(3) Where an application for execution is made of a decree passed by Courts of the
United Kingdom or any reciprocating territory; and
(4) Where the decree is for money and execution is sought against the person of
the judgment-debtor unless the proviso applies. (See O XXI, rule 37);
(5) Where the interest of the decree-holder has been transferred by assignment.
1 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 16 for section 36
(w.e.f. 1-2-1977).
2 SM Nagori v Babu Rao, AIR 1956 MB 229 .
3 Manikalaya v Narsinhaswami, AIR 1966 SC 470 (475) : (1966) 1 SCR 628 : (1966) 1 MLJ (SC)
29.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 37. Definition of Court
which passed a decree
© 2020 LexisNexis
PART II Execution
General
S. 37. Definition of Court which passed a decree
The expression "Court which passed a decree", or words to that effect, shall, in
relation to the execution of decrees, unless there is anything repugnant in the subject
or context, be deemed to include,—
(a) where the decree to be executed has been passed in the exercise of appellate
jurisdiction, the Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to
execute it, the Court which, if the suit wherein the decree was passed was
instituted at the time of making the application for the execution of the decree,
would have jurisdiction to try such suit.
4[ Explanation. —The Court of first instance does not cease to have jurisdiction
to execute a decree merely on the ground that after the institution of the suit
wherein the decree was passed or after the passing of the decree, any area has
been transferred from the jurisdiction of that Court to the jurisdiction of any
other Court; but, in every such case, such other Court shall also have
jurisdiction to execute the decree, if at the time of making the application for
execution of the decree it would have jurisdiction to try the said suit.]
COMMENT.—
The expression "Court which passed a decree" under this section includes the Courts
mentioned in clauses (a) and (b). Thus the following Courts fall under the definition:
(1) The Court of first instance which actually passed the decrees;
(2) The Court of first instance in the case of appellate decrees;
(3) Where the Court of first instance has ceased to exist, the Court which would
have jurisdiction to try the suit at the time of execution;
(4) Where the Court of first instance has ceased to have jurisdiction to execute the
decree, the Court which at the time of execution would have had jurisdiction to
try the suit.
The object of section 37 is to avoid the cumbersome procedure which would otherwise
result if the Court which actually passed the decree be held to be the only Court which
could execute it.
Meaning of Court of First Instance (Section 37 and 21).—
The Expression "Court of First Instance" means the court which passed the decree and
not the court in which the suit was originally filed.5
It may be pointed out that it is the Court of the first instance that is to execute the
decree. Thus, an appellate decree of the Supreme Court is to be executed by the Court
of first instance, and not by the High Court to which the decree is transmitted by the
Supreme Court.
Court which passed the decree.—
A combined reading of sections 37 and 38 indicates that the Court of first instance is
the Court which passed the decree within the meaning of section 38. Therefore, an
application for execution of the decree can be filed therein. When the Court of the first
instance is deemed to be that which passed the decree, there is no difficulty in holding
that the said Court can transfer the decree under section 39 of the Code.6
The Explanation to this section provides that, where jurisdiction over the subject-matter
of a decree is transferred to another Court, that Court is also competent to entertain an
application for execution of the decree. Thus, now both the Courts would be competent
to entertain an application for execution of the decree.
4 Ins. by Act 104 of 1976, section 17 (w.e.f. 1-2-1977).

5 Darasana Bai v C Saroja, AIR 2014 Mad 164 .
6 Mahijibhai v Manibhai, AIR 1965 SC 1477 (1484) : (1965) 2 SCR 436 : 1965 BLJR 542 : (1965)
6 Guj LR 901.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 38. Court by which decree
may be executed
© 2020 LexisNexis
PART II Execution
Courts by which Decrees may be Executed
S. 38. Court by which decree may be executed
A decree may be executed either by the Court which passed it, or by the Court to
which it is sent for execution.
COMMENT.—
Scope and object.—
A decree may be executed under this section-
(i) by the Court which passed the decree, which is defined in section 37; or
(ii) by the Court to which it is sent for execution (See section 39).
According to Mulla, the following are the leading rules relating to the jurisdiction of
Courts executing decree:—
(1) No Court can execute a decree in which the subject-matter of the suit or of the
application for execution, is properly situate "entirely" outside the local limits of its
jurisdiction i.e., territorial jurisdiction is a condition precedent to a Court executing a
decree.
Where the decree is not transferred to a Court which at the time of the transfer is
governed by the Indian Code of Civil Procedure, the transfer is ineffective for the
purpose of execution.7
However, there are three exceptions to the above-mentioned rule:—
(i) The Court which passed the decree for the enforcement of a mortgage of
immovable property has power of execution of its decree to order the sale of
such property though it may be situated beyond the local limits of its jurisdiction.
(ii) Where after the passing of a decree in a suit for enforcement of a mortgage the
whole of the immovable property included therein falls by transfer of jurisdiction
within the local limits of the jurisdiction of another Court.
(iii) The salary of a police officer or of a servant of a Railway Company or local

authority may be attached by a Court though the disbursing officer may not be
within the local limits of the Court's jurisdiction. (O XXI rule 48).
(2) Where a decree has been passed for the payment of money and the decree-holder
applies for attachment and sale of immovable property, which forms one estate or
tenure situated within the local limits of two or more Courts, any one of such Courts
may attach and sell the entire estate or tenure.
(3) There is a conflict of decision as to whether the Court of execution is restricted to
the pecuniary limits of its jurisdiction. According to Madras High Court it is not
restricted, but according to Calcutta, Bombay and Patna High Courts it is restricted.
(4) Where the decree sought to be executed is passed by a competent Court, the Court
will not be deemed to be incompetent to execute the decree, merely because by reason
of the amount of interest or mesne profits, ascertained for a period subsequent to the
institution of the suit the pecuniary limits of the jurisdiction of such Court are
exceeded.
(5) A Court to which execution of a decree is transferred has no jurisdiction to order

either the attachment or sale of immovable property in execution, if at the time of the
order such Court has no territorial jurisdiction over the property.
If pecuniary limit of the original Court which passed the decree is enhanced by law at
the time of filing an application for execution, from original pecuniary limit, the Court
which passed the decree of its own can send the decree to the subordinate Court
which is then capable of entertaining the suit if filed at that time. Similarly, in a
situation, where territorial jurisdiction of a Court has been changed by virtue of any law
for the time being in force since the passing of the decree, the original Court which
passed the decree can also send the decree for transfer to the Court which would have
been the competent court at that point of time when the original Court proposes to
transfer the decree.8
Lack of territorial jurisdiction and lack of competence of Court to try a case,

distinguished.—
Objection as to lack of territorial jurisdiction does not stand at the same footing as
objection to the competence of a Court to try a case. The latter goes to the very root of
the jurisdiction and raises a question of inherent lack of jurisdiction whereas the former
does not. The former can be waived and section 21 of the Code has given statutory
recognition to the principle.
Can the executing Court go behind the decree?—
Section 38 lays down the general rule that a decree may be executed either by the
Court which passed it or by the Court to which it is sent for execution. The executing
Court has no power to entertain any objection as to the validity of the decree or as to
the legality or correctness of the decree. If in the compromise incorporated in the
decree there is a clear admission of statutory ground for eviction, then it will be
presumed that the Court was satisfied about the existence of such statutory ground.
The executing Court is not competent to question its validity.9 The duty of an executing
Court is to give effect to the terms of the decree. It has no power to go beyond its
terms. Though it has the power to interpret the decree, it cannot make a new decree for
the parties under the guise of interpretation.10 The reason underlying the above rule is
that although a decree may not be according to law, it is binding and conclusive as
between the parties to the suit, unless it is set aside in appeal or revision. It is for the
same reason that the Court executing a decree cannot alter, vary or add to the terms of
the decree even with the consent of the parties.
It has been held by the Supreme Court in Karan Singh v Chaman Pawan, (1955) 1 SCR
117 that a decree passed by a Court without jurisdiction is a nullity, and its invalidity
can be set up whenever and wherever it is sought to be enforced or relied upon,
including the stage of its execution. This decision has set at rest the conflict of views
expressed by the Calcutta High Court and Rangoon High Court.
The rule is based on the principle that a proceeding to enforce a judgment is collateral
to the judgment, and therefore, no inquiry into its regularity or correctness can be
permitted in such proceedings.11
The executing court cannot enter into a criticism of the decree.12 Nor can it give relief
against its rigour.13 It can neither add something in the decree already passed nor alter
the decree,14 even in the light of subsequent events.15 It cannot grant a relief which is
not contemplated by the decree.16
The executing Court is not authorised to refuse to execute a decree on the ground that
it has not been properly drawn up.17
However, an executing Court can go into the question of the executability of the decree
and consider whether by any subsequent event, the decree has ceased to be
executable according to its terms.18
The principle that an executing Court cannot challenge the validity of the decree, holds
good only between the parties to the decree. When a third party against whom an order
is served moves the executing Court, the Court has inherent jurisdiction to decide the
validity of the decree.19
The executing Court is not precluded from finding out whether any decree had been
passed at all and merely because something is written on a decree form it does not
necessarily make it a decree.
Exceptions.—
There are three cases where the executing Court can go behind the decree. They are—
(1) where the decree is nullity, e.g., decree passed against a dead person,20 There is
no doubt that if a decree put in execution is shown to be a nullity, the executing
Court can refuse to execute it.21
(2) where the decree is ambiguous, e.g., a decree instead of meaning one thing may
mean two or more different things;
(3) where the decree has been passed by a Court without jurisdiction, i.e. in respect of
territorial or pecuniary jurisdiction.
Refusal to execute a decree against law.—
A decree passed by the Court in ejectment against a tenant. The Court did not satisfy
itself that one or more grounds mentioned in the Delhi and Ajmer Rent Control Act,
1952 existed or that in the terms of compromise the statutory grounds for eviction
mentioned in the Act existed. The decree is in contravention of the Act and a nullity.
The executing Court can refuse to execute it.22
The Court executing a decree is bound by the terms of the decree. It cannot go behind
the decree even if it is erroneous in law or on facts. It cannot entertain any objection
that the decree was incorrect in law or on facts. Until it is set aside by an appropriate
proceeding in appeal or revision, a decree, even if it be erroneous, is still binding
between the parties.23
It has, however, been held by the Supreme Court that an objection as to the validity of
the decree in the execution proceedings cannot be allowed to be raised before the
Supreme Court for the first time.24
Reference may be made to Sundar Dass v Ram Prakash, AIR 1977 SC 1201 : (1971) 2
SCC 662 : (1977) 3 SCR 60 a case decided by the Supreme Court and discussed under
section 47.
The combined effect of sections 37 and 38 is that—
(1) Where the decree to be executed is a decree of a Court of first instance, the
proper Court to execute it is the Court of first instance.
(2) Where the decree to be executed is a decree passed by a Court of first appeal,
the proper Court to execute it is also the Court of first instance.
(3) Where the decree to be executed is a decree passed by the High Court in second
appeal, then also the proper Court to execute it is the Court of first instance.
(4) Where the Court of first instance has ceased to exist, the only Court that can
execute the decree is the Court which at the time of making the application for
execution would have jurisdiction to try the suit in which the decree was passed.
The application for execution must be made to that Court.
Transferee Court acquires inherent jurisdiction.—
The Court to whose jurisdiction the subject-matter of the decree is transferred acquires
inherent jurisdiction over the same by reason of such transfer. If it is entertaining an
execution application with reference thereto it would at the worst be an irregular
assumption of jurisdiction and not a total absence of it. If objection to it is not taken at
the earliest opportunity, then it must be deemed to have been waived and cannot be
raised at any later stage of the proceedings.25
7 Hansraj Nathuram v Lalji Raja, AIR 1963 SC 1180 (1182) : (1963) 2 SCR 619 : (1969) 2 Ker LR
274.
8 Mechano Paper Machines Ltd v NEPC Papers and Boards Ltd, AIR 2012 Cal 26 (para 9, 10, 11,
15).
9 Nagindas v Dalpatram, AIR 1974 SC 471 (477); see also KK Chari v RM Sheshadri, AIR 1973 SC
1311 : (1973) 1 SCC 761 : (1973) 3 SCR 691 .
10 V Ramaswami v TNV Kailasha Thevar, AIR 1951 SC 189 (192) : 1951 SCR 292 : (1951) 1 MLJ
560 .
11 Basant Singh v Tirloki Nath, AIR 1960 Punj 610 (DB).
12 Krishna Raj Trading Corporation v Ram Saran, AIR 1962 All 374 (DB).
13 28 IA 27 (PC).
14 AIR 1960 SC 388 , Ibid.
15 Sukhendra Singh v Kishori Devi, AIR 1952 All 27 .
16 Topanmal v Kundomal Gangaram, AIR 1960 SC 388 .
17 Naranappa v PD Khurana, AIR 1953 Mys 153 (DB).
18 Jai Narain v Kedar Nath, AIR 1956 SC 359 : 1956 SCR 62 : 1965 ALJ 345 : 69 MLW 841.
19 Kuver Band Ltd v State of WB, AIR 1960 Cal 81 .
20 Jasraj v Kamruddin, AIR 1971 MP 184 . See also KC Manchanda v Murre Brewery Co, AIR
1968 Del 167 (DB).
21 Bombay Gas Co v Gopal, AIR 1964 SC 752 (755) : (1964) 3 SCR 709 : (1963) 2 LLJ 608 :
(1963) 7 FLR 709 .
22 Kaushalaya Devi v KL Bansal, AIR 1970 SC 838 : (1969) 1 SCC 59 : (1969) 5 DLT 481 .
23 Vasudev D Modi v RA Rehman, AIR 1970 SC 1475 : (1970) 1 SCC 670 : (1970) 2 MLJ 85 (SC).
24 KLS Cold Concern v Khancon & Co, AIR 1971 SC 437 : (1971) 3 SCC 965 .
25 Ramanna v Nallapparaju, AIR 1956 SC 87 (93) : (1955) 2 SCR 938 : (1956) 1 MLJ SC 71.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 39. Transfer of decree
© 2020 LexisNexis
PART II Execution
S. 39. Transfer of decree
(1) The Court which passed a decree may, on the application of the decree-holder,
send it for execution to another Court 26[ of competent jurisdiction ],—
(a) if the person against whom the decree is passed actually and voluntarily
resides or carries on business, or personally works for gain, within the
local limits of the jurisdiction of such other Court, or
(b) if such person has no property within the local limits of the jurisdiction
of the Court which passed the decree sufficient to satisfy such decree
and has property within the local limits of the jurisdiction of such other
Court, or
(c) if the decree directs the sale or delivery of immovable property situated
outside the local limits of the jurisdiction of the Court which passed it,
or
(d) if the Court which passed the decree considers for any other reason,
which it shall record in writing, that the decree should be executed by
such other Court.
(2) The Court which passed a decree may of its own motion send it for execution
to any subordinate Court of competent jurisdiction.
27
[(3) For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if, at the time of making the application for the
transfer of decree to it, such Court would have jurisdiction to try the suit in
which such decree was passed.]
28
[(4) Nothing in this section shall be deemed to authorise the Court which passed
a decree to execute such decree against any person or property outside the
local limits of its jurisdiction. ]
STATE AMENDMENT
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act No. 31 of
1978 S. 2, (w.e.f. 1-8-1978).
In its application to the State of Uttar Pradesh, sub-section (3) substituted as under:—
"(3) For the purpose of this section a Court shall be deemed to be a Court of competent
jurisdiction if the amount or value of the subject-matter of the suit wherein the decree
was passed does not exceed the pecuniary limits, if any, of its ordinary jurisdiction at
the time of making the application for the transfer of decree to it, notwithstanding that
it had otherwise no jurisdiction to try the suit."
Act, 2002 (w.e.f. 1-7-2002).
CPC (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002)
Modification.—In section 39 of the Code of Civil Procedure, 1908 (hereinafter referred to

as the principal Act), after sub-section (3), the following sub-section shall be inserted
namely:-
(4) Nothing in this section shall be deemed to authorise the Court which passed a decree to
execute such decree against any person or property outside the local limits of its
jurisdiction.
On the recommendations of Law Commission made in 154th Report, the present sub-
section (4) has been added to section 39 to clarify that nothing in the section shall be
construed as authorising the Court to execute a decree against a person or property
outside the local limits of its jurisdiction.
Recommendations of Law Commission made in 154th Report:-
3.3 Section 39 and Execution of Decrees outside Jurisdiction.—
3.3.1. Section 39 authorises a Court to send a decree for execution to another Court in
certain specified situations. Broadly speaking, these are situations where the property
or person or against whom, execution is sought, is outside the local limits of the
jurisdiction to the Court.
3.3.2. Question for consideration.—The section uses the word "may" and this has led to
a controversy whether the Court, which word "may", imply that sending the decree to
another Court (in the circumstances mentioned above) is discretionary?
3.3.3. The Bombay High Court has held29 that a Court cannot execute a decree in
which the subject matter of the suit or application for execution is situated entirely
outside its jurisdiction. Territorial jurisdiction is a condition precedent to a Court
executing a decree. Hence, the Court cannot attach property outside its local
jurisdiction. If it does so, and the decree is subsequently transferred to another Court, a
private purchaser who has purchased the property after attachment is void, it must
cause failure of justice. However, the Rajasthan High Court has taken a different
view.30,31 3.3.4. It appears that in 1890, the Calcutta High Court had held that a Court
could not execute a decree against property outside its jurisdiction.32
3.3.5. But in 1982, the Calcutta High Court33 has held that the word "may" in section 39
is permissive. The Court passing a decree can execute it even if the suit property is not
within its jurisdiction. The Calcutta High Court distinguished the following cases:
(i) (1912) ILR 39 Cal 104 and
(ii) AIR 1932 Cal 213 .
It is relief on the decision of AIR 1939 Cal 403 .

3.3.6. The Rajasthan High Court has also taken the view that the Court which passes
the decree can execute it directly even outside its jurisdiction.34
3.3.7. Recommendation—It is submitted that the Bombay view is the correct view. "The
use of "may" in Section 39 does not mean that the Court, which passed the decree, can
execute the decrees irrespective of territorial limitations. The word "may" is meant for
cases where there are circumstances in which execution as such is considered illegal.
Any other view would totally upset the entire scheme of the Code as to jurisdiction. It
seems desirable to clarify the position by inserting an Explanation below Section 39 to
provide that nothing in the section shall be construed as an authority to the Court to
execute a decree against a person or property outside the local limits of its jurisdiction.
We recommend accordingly.
Section 38 provides that a decree may be executed either by the Court which passed it
or by the Court to which it is sent for execution, whereas section 39 lays down the
conditions under which a decree can be so sent.
In this section clause (3) was added by the Amending Act of 1976 in order to clarify the
position that the transferee Court must have pecuniary competence to deal with the
suit in which the decree was passed.
In dealing with an application for transfer of a decree to another Court for execution
two aspects must be kept in view, first, that a decree-holder has a legal, not merely an
equitable right to have his decree transferred for execution,35 and secondly, at the
same time, that the section is not mandatory,36 but the Court is given a judicial
discretion in the matter, as is shown from the word "may" in the section.37 If the
application amounts, under the circumstances, to be an abuse of the remedy and
actuated by mala fide and collusion, the Court has power to prevent it, by suitable
orders.38
The Court cannot refuse to transfer a decree, which is not barred by limitation, merely
because it is of the opinion that the application under O XXI rule 10, which the decree-
holder may put into the transferee Court on some future date, is likely to be barred by
limitation.39 As to whether in any case a decree may be executed by a Court when the
decree has neither been passed by it nor has been transferred to it for execution, see
sections 37 and 38.
Mandatory Nature of Section 39(4).—
Sub section 4 of section 39 which has been incorporated by way of amendment of

2002 is couched in a negative form and thus, mandatory which debars a Court which
passed a decree to execute the decree against any person residing or carrying on
business or property situated beyond territorial limits of the same. After amendment of
the said provision of section 39 there is no scope of exercising jurisdiction for
execution at the instance of the original Court which passed the decree of person or
property, as the case maybe, against which the decree is sought to be enforced, is not
available within the territorial limits of the original Court at the time of execution is
subject to only two exceptions as provided in O XXI rule 3 and rule 48 of the Code of
Civil Procedure.40
The Court of Additional District Judge is of unlimited pecuniary jurisdiction.

Thus, it has the power to proceed with execution even though, otherwise, it may not in
the ordinary course have jurisdiction to try the suit.41
Test of applicability of the section.—
The test of the applicability of the section is to see whether the Code regulates the
procedure of both the transferor and the transferee Courts.42
Under this section, the decree itself is to be sent for execution to another Court. A mere
order directing the decree to be transferred for execution in another Court is not
sufficient as it has not by itself the effect of transferring the decree for execution.43
The section does not permit the transfer of a pending execution proceeding to another
Court.44
Residence outside the jurisdiction.—
Clause (a) of section 39 lays down rules for transfer of the decree if the judgment-
debtor is a resident in the jurisdiction of another Court. If the decree-holder satisfies
the Court that the judgment-debtor resides in the jurisdiction of another Court, he may
ask for transferring the decree to that Court without mentioning anything more in his
application.
Having property outside the jurisdiction.—
Clause (b) provides that if the judgment-debtor's property is situated out of the
jurisdiction, the Court which passed the decree cannot attach it, but must transfer the
same to the Court within whose local limits the property is situated.
Decree for sale or possession of property outside the jurisdiction Clause (c).—
As laid down in rule 1 under section 38, territorial jurisdiction is a condition precedent
to a Court executing a decree. If the decree directs for the sale of immovable property
within the territorial limits of another Court, it must be sent to that Court, for execution.
However, there is an exception to this rule in case of a decree for the enforcement of a
mortgage.
Court considering that execution should be in another Court— Clause (d).
Where the Court which passed the decree considers for any sufficient reasons which it
shall record in writing, that the decree should be executed by such other Court, then the
decree may be transferred to that Court.
When a decree is transferred under section 39, it is the duty of the transferee Court to
execute it by all methods provided by the Code of Civil Procedure.45
(See for more details O XXI rules 5, 6, 7, and 10).

Simultaneous execution.—
There is nothing in the Code to prevent the simultaneous execution of decrees in more
than one Court. But this power should be sparingly exercised and when exercised it
would be in many cases proper to impose terms on the decree-holder that he should
not proceed to a sale under all the attachments at once. A decree cannot be executed
against the same property in more than one Court.
(See also O XXI rule 21, Code of Civil Procedure).
Form of application under the section.—
An application for transfer of a decree for execution under this section is not an
application within the meaning of section 50 read with O XXI rule 2, Code of Civil
Procedure.46 The application is not required to be made in any particular form or
manner as under O XXI rule 11. It is sufficient if the application incorporates in it
sufficient particulars in respect of the decree to be transferred.47 The Court can suo
motu transfer the decree for execution to another Court. A mere clerical error in writing
the application will not invalidate it.48
26 Ins. by Act 104 of 1976, section 18(i) (w.e.f. 1-2-1977).

27 Ins. By Code of Civil Procedure (Amendment) Act 104 of 1976, section 18(ii) (w.e.f. 1-2-
1977).
28 Ins. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002), section 2 (w.e.f. 1-7-
2002) vide Notfn. S.O. 604(E), dt. 6-6-2002.
29 Sahaba Yeshwant Naik v Vinod Kumar, AIR 1985 Bom 79 , 81, 83 (paras 11, 13) (DB).
30 Tarachand v Misrimal, (1969) 19 Raj 412 : AIR 1970 Raj 53 , 55, 57 paras 8, 12, 13, 14, 15, 20,
22 (DB) (paras 14, 15 in particular).
31 Laxmi Narain v Firm Ram Kumar Suraj Bux, AIR 1971 Raj 30 (Jagat Narayan C & Gattani JJ)
(Dissenting from Vasireddi Srimanthur v B Benkatappaya, AIR 1947 Mad 347 : (1948) Mad 18.
32 Premchand Dey v Nikhoda Deb, (1890) ILR 17 Cal 699 (FB).
33 Arati Rani Paul v Balai Chandra Paul, AIR 1982 NOC 42 (Cal) (Monjula Bose J).
34 Laxmi Narain v Firm Ram Kumar Suraj Bux, AIR 1971 Raj 30 ; Tarachand v Misrimal, AIR 1970
Raj 53 : (1969) 19 Raj 412 .
35 Krishna Aggarwal v Bhawani Prasad Girdhari Lal, AIR 1964 All 480 .
36 Chirala Buchi Reddi v Satti Savitramma, AIR 1961 AP 305 .
37 Ibid.
38 Ibid.
39 Mohan Singh v Ali Khan, AIR 1959 All 466 (DB).
40 Mechano Paper Machines Ltd v NEPC Papers and Boards Ltd, AIR 2012 Cal 26 .
41 Zaz Fashion v Ut Worldwide (India) Pvt Ltd, AIR 2014 All 8 .
42 Moloji Nar Singh Rao v Shankar Saran, AIR 1962 SC 1737 : (1963) 2 SCR 619 : (1962) 2 Ker LR
274. See also Hansraj v Firm Lalji Raja & Sons, AIR 1963 SC 1180 .
43 (1970) 2 Andh Law Times 17. See also Abdul Sattar v Masuryadhin, AIR 1961 MP 158 .
44 (1970) 2 Andh Law Times 17. See also Ningappa v Adiverappa Shivappa, AIR 1939 Bom 468 .
45 SK Sahgal v Kishore Khanna, AIR 1959 SC 809 (812) : 1959 Supp (2) SCR 364 : 38 Pat 480.
46 Presidency Industrial Bank v HL Industries, AIR 1969 Bom 84 .
47 Mohanlal v Benoy Kishan, AIR 1953 SC 65 : 1953 SCR 377 : (1953) 1 MLJ 449 .
48 Sheikh Hafeez Uddin v Ram Chander Das, AIR 1973 All 397 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 40. Transfer of decree to
Court in another [State]
© 2020 LexisNexis
PART II Execution
S. 40. Transfer of decree to Court in another 49[State]
Where a decree is sent for execution in another 50[State], it shall be sent to such Court
and executed in such manner as may be prescribed by rules in force in that 51[State].
COMMENT.—
This section applies only when the "transferor" and the "transferee" Courts are both
regulated by the provisions of the Code of Civil Procedure.52
A decree passed by the Bombay High Court was executable in Goa and the bar of
inexecutability came to an end when the provisions of Code of Civil Procedure were
applied to Goa.53
The word "manner" used in this section refers to the procedure under which the
execution is to be made. It has no reference to the existence or otherwise of the right of
execution of the decree.54 The law of limitation for execution of a decree transferred to
another State is the law in force in the transferring Court, but for procedural rules
governing execution, the law of the State of the transferee Court applies.
A transferee Court has to execute the decree in accordance with the law obtaining in
the Court that passed the decree. The rights and liabilities of the parties are
determined in accordance with the substantive law obtaining in the State where that
Court is situated.55
The absence of rules under this section does not bar execution of decree sent for
execution.56
Mode of Transfer and Procedure.—
Reference may be made to rules 5 and 6 O XXI of the Code of Civil Procedure.
49 Subs. for "Province" by IAO 1950.
52 Lalji Raja & Sons v Hans Raj Nathu Ram, AIR 1971 SC 974 : (1971) 1 SCC 721 . Transfer of
decree on 15 February 1963 to Court of MB—Code made applicable to MB from 1 April 1951.
The transferee Court could execute the decree. See also AIR 1963 SC 1180 (1181). Transfer of
decree on 28 August 1950 to Court in MB to which the Code was made applicable from 1 April
1951. Held, transfer was ineffective for the purpose of execution.
53 Narhari Shivram Shet Narvekar v Pannalal, AIR 1977 SC 164 (169) : (1976) 3 SCC 203 : (1976)
3 SCR 149 .
54 Ramavtar v Pop Singh, AIR 1970 Ori 36 .
55 Binod Mills Co Ltd v Suresh Chandra, AIR 1987 SC 1739 (1746) : (1987) 3 SCC 99 : 1987 SCC
(L&S) 161 .
56 Indore Soap Factory v National Industries Co, AIR 1963 Madh Pra 153 (DB). See also Fagu
Ram v Panna Lal, AIR 1962 Pat 272 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 41. Result of execution
proceedings to be certified
© 2020 LexisNexis
PART II Execution
S. 41. Result of execution proceedings to be certified
The Court to which a decree is sent for execution shall certify to the Court which
passed it the fact of such execution, or where the former Court fails to execute the
same the circumstances attending such failure.
COMMENT.—
The Court to which a decree is sent for execution must certify the results of the
execution to the Court which passed the decree. The Transferee Court has no power to
certify under this section, so long as the execution suit is pending before it.57 A
certificate under this section has to be issued only when the Court to which the decree
is transferred for execution has executed the same and where it fails to execute it, it
must certify the circumstances for such failure.58
It has been held that the mere sending a copy of the order of dismissal without a non-
satisfaction report is not compliance with the section.59
Shall certify.—
The term "shall certify" refers to a formal certification by the transferee Court to the
transferor Court and the fact of certification should not be left open to inference to be
drawn from entries in the register of suits of the transferor Court.60 The provisions
regarding certification by the transferee Court under this section are mandatory and are
of a judicial nature and not administrative.
Where the transferee Court dismissed the execution case and directed that the
transferor Court should be informed of the fact of it and a copy of this order was
actually filed in the latter Court with the application of the decree-holder requesting for
a transfer to another Court, it was held that this section had been complied with.61
57 Savithri v Kamal Singh, AIR 1955 Pat 456 : 34 Pat 599.

58 Prahlad v Thakur, AIR 1961 Pat 149 ; see also Punjab Co-operative Bank Ltd v Bikram Lal, AIR
1959 Punj 71 : (1958) Punj 2430 and Ram Kumar v Hazari Mal, AIR 1961 Raj 157 : (1960) Raj
1624 .
59 Yogeshwar Singh v Jiyal Chaudhary, AIR 1969 Pat 265 .
60 AIR 1961 Pat 149 .
61 G Pannalal v Appalobhukatala, AIR 1969 Ori 147 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 42. Powers of Court in
executing transferred decree
© 2020 LexisNexis
PART II Execution
S. 42. Powers of Court in executing transferred decree
62
[(1)] The Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons
disobeying or obstructing the execution of the decree shall be punishable
by such Court in the same manner as if it had passed the decree. And its
order in executing such decree shall be subject to the same rules in respect
of appeal as if the decree had been passed by itself.
63
[(2) Without prejudice to the generality of the provisions of subsection (1), the
powers of the Court under that sub-section shall include the following
powers of the Court which passed the decree, namely:—
(a) power to send the decree for execution to another Court under
Section 39;
(b) power to execute the decree against the legal representative of the
deceased judgment-debtor under Section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section (2)
shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a
decree is sent for execution of any of the following powers, namely:—
(a) power to order execution at the instance of the transferee of the decree;
(b) in the case of a decree passed against a firm, power to grant leave to
execute such decree against any person other than such a person as is
referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order
XXI.]
STATE AMENDMENT
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act No. 14 of
1970, S. 2 (w.e.f. 18-4-1970).
"42. Power of Court in executing transferred decree.—(1) The Court executing a decree
sent to it shall have the same powers in executing such decree as if it had been passed
by itself. All persons disobeying or obstructing the execution of the decree shall be
punishable by such Court in the same manner as if it had passed the decree, and its
order in executing such decree shall be subject to the same rule in respect of appeal as
if the decree had been passed by itself.
(2) Without prejudice to the generality of the provisions of sub-section (1), the powers
of the Court under that sub-section shall include the following powers of the Court
which passed the decree, namely:—
(a) power to send the decree for execution to another Court under Section 39;
(b) power to execute the decree against the legal representative of the deceased
judgment-debtor under Section 50;
(c) power to order attachment of a decree;
(d) power to decide any question relating to the bar of limitation to the executability
of the decree;
(e) power to record payment or adjustment under rule 2 of Order XXI;
(f) power to order stay of execution under rule 29 of Order XXI;
(g) in the case of a decree passed against a firm, power to grant leave to execute
such decree against any person other than a person as is referred to in clause
(b) or clause (c) of sub-rule (1) of rule 50 of Order XXI.
(3) A Court passing an order in exercise of powers specified in sub-section (2) shall
send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a decree is
sent for execution, the power to order execution at the instance of the transferee of a
decree."
COMMENT.—
Under section 42 the Court executing a decree sent to it, shall have the same powers in
executing such decree as if it had passed itself. All persons disobeying or obstructing
the execution of the decree shall be punishable by such Court in the same manner as if
it had passed the decree. All its orders in executing such a decree shall be subject to
the same rules in respect of appeal, as if the decree had been passed by itself.64 The
transferee Court can sell properties outside its territorial jurisdiction under the same
circumstances in which the transferor Court could exercise this power. For this purpose
successive execution application must be filed before the transferee Court. The
jurisdiction of the transferee Court continues until—
(i) the execution proceeding is withdrawn from it, or
(ii) it has certified the determination of the execution under section 41.
The mere striking of or rejecting an execution application for some informality in the
application does not terminate the jurisdiction of the transferee Court to execute the
decree or render it necessary to send a certificate to the transferor Court.
If the execution application is once dismissed for non-prosecution and a certificate of

failure in this respect, is sent, the only Court that can entertain a fresh application will
be the Court which had passed the decree.
Limitations on the powers of transferee Court.—

The powers of the transferee Court are limited to the execution of decree transferred to
it and it cannot transfer the decree for execution to any other Court. In other respects
its powers are limited in the same way in which it were of its own.
The transferor Court's control.—
The fact that execution proceedings have been transferred to another Court does not
deprive the transferor Court of all control over the execution proceedings.65 The
transferor Court retains jurisdiction to execute the decree except to the extent that
jurisdiction has been given to the transferee Court. It has jurisdiction in respect of
property within its jurisdiction.66 It can also sanction an agreement for payment of the
decree in instalments and decide who are the legal representatives of the judgment-
debtor and entertain an application to execute the decree against them. It can also stay
the execution of the decree or recall the execution proceedings from the transferee
Court.67
Reference may also be made to a decision of the Supreme Court in Mahadeo Prasad v
Ram Lochan, AIR 1981 SC 416 (419) : (1980) 4 SCC 354 : 1980 ALJ 1019 : (1980) 6 ALR
548 where it was held as follows:—
Thus, for the words "as if it had been passed by itself" occurring in the first sentence of sub-
section (1) of Section 42, the Amending Act 28 of 1954 (By UP Legislature) substituted the
words "as the Court which passed it." The effect of such substitution was that the powers of
the transferee Court in executing the transferred decree became conterminous with the
powers of the Court which had passed it. The result was that if the power of the transferor
Court to execute its own decree were in any respect restricted, the same restriction would
attach to the powers of the transferee Court in executing the transferred decree;
notwithstanding the position that the powers of the transferee Court in executing its own
decree were not so restricted.
Sub-sections (2) to (4) were added to this section by the Amending Act of 1976, with a
view to avoid unnecessary delay in execution proceedings and powers have been
conferred on a Court to which a decree is transmitted for execution to exercise the
following powers where necessary, i.e, it can send the decree for execution to another
Court or it can execute the decree against the legal representatives of the judgment-
debtor or it can pass an order for attachment of a decree.
Sub-section (2) provides that the Court to which a decree is sent for execution enjoys
the following powers:
(1) power to send the decree for execution to another Court under section 39;
(2) power to execute the decree against the legal representative of the deceased
judgment-debtor under section 50; and
(3) power to order attachment of a decree.
Sub-section (4) lays down that such a Court does not have the following powers,
namely.—
(1) power to order execution at the instance of the transferee of the decree; and
(2) in the case of a decree passed against a firm, power to grant leave to execute
such decree against any person, except
(a) a person who has appeared as a partner or who had admitted that he is a
partner, or
(b) a person who has been individually served as a partner with summons
but has failed to appear.
Before the Amending Act of 1976, the Courts had taken the view that since the
jurisdiction of the transferee Courts was limited to the execution of the decree
transferred to it, it could not again transfer the decree for execution to another Court.
This view cannot hold good after the Amending Act of 1996 since section 42 now
expressly confers the power on the transferee Court to send the decree for execution to
another Court.
Special provision has been made in sub-section (4) of this section to ensure that
matters which should be determined by the Court which passed the decree, are not to
be considered by the transferee Courts.
A transferee Court has to execute the decree in accordance with the law obtaining in
the Court that passed the decree. The rights and liabilities of the parties are
determined in accordance with the substantive law obtaining in the State where that
Court is situated.68
62 Section 42 renumbered as sub-section (1) by Act 104 of 1976, section 19 (w.e.f. 1-2-1977).
64 Bhagmal v Purshottam, AIR 1963 MP 154 .
65 Radheshyam v Devendra, AIR 1952 Pat 213 (FB) : 31 Pat 56.
66 Ibid See also Panalal v Appalabhukatala, AIR 1969 Ori 147 .
67 Ram Chand v Wazir Chand, AIR 1962 Punj 293 .
68 Binod Mills Co Ltd v Suresh Chandra, AIR 1987 SC 1739 (1746) : (1987 (3) SCC 99 : 1987 SCC
(L&S) 161 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 43. Execution of decrees
passed by Civil Courts in places to which this Code does not extend
© 2020 LexisNexis
PART II Execution
69[S.43. Execution of decrees passed by Civil Courts in places to which this

Code does not extend
Any decree passed by any Civil Court established in any part of India to which the
provisions of this Code do not extend, or by any Court established or continued by the
authority of the Central Government outside India, may, if it cannot be executed within
the jurisdiction of the Court by which it was passed, be executed in the manner herein
provided within the jurisdiction of any Court in the territories to which this Code
extends.]
COMMENT.—
Transfer of decree for execution.—
Where the decree is not transferred to a Court which at the time of the transfer is
governed by the Indian Code of Civil Procedure, the transfer is ineffective for the
purpose of execution. The decree, therefore, cannot be executed under section 43 of
Code of Civil Procedure.70
(w.e.f. 1-4-1951).
70 Hansraj Nathuram v Lalji Raja, AIR 1963 SC 1180 (1182) : (1963) 2 SCR 619 : (1962) 2 Ker LR
274.

passed by Revenue Courts in places to which this Code does not extend
© 2020 LexisNexis
PART II Execution
71[S. 44. Execution of decrees passed by Revenue Courts in places to which

this Code does not extend
The State Government may, by notification in the Official Gazette, declare that the
decrees of any Revenue Court in any part of India to which the provisions of this Code
do not extend, or any class of such decrees, may be executed in the State as if they
had been passed by Courts in that State].
(w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 44A. Execution of decrees
passed by Courts in reciprocating territory
© 2020 LexisNexis
PART II Execution
[S. 44A. Execution of decrees passed by Courts in reciprocating territory
72
(1) Where a certified copy of a decree of any of the superior Courts of 73[* * *]
any reciprocating territory has been filed in a District Court, the decree may
be executed in 74[India] as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from
such superior Court stating the extent, if any, to which the decree has been
satisfied or adjusted and such certificate shall, for the purposes of
proceedings under this section, be conclusive proof of the extent of such
satisfaction or adjustment.
(3) The provisions of Section 47 shall as from the filing of the certified copy of the
decree apply to the proceedings of a District Court executing a decree under
this section, and the District Court shall refuse execution of any such decree, if
it is shown to the satisfaction of the Court that decree falls within any of the
exceptions specified in clauses ( a ) to ( f ) of Section 13.
75[ Explanation 1.— 'Reciprocating territory' means any country or territory outside
India which the Central Government may, by notification in the Official Gazette,
declare to be a reciprocating territory for the purposes of this section; and 'Superior
Courts', with reference to any such territory, means such Courts as may be specified
in the said notification.
Explanation 2.— 'Decree', with reference to a superior Court, means any decree or
judgment of such Court under which a sum of money is payable, not being a sum
payable in respect of taxes or other charges of a like nature or in respect of a fine or
other penalty, but shall in no case include an arbitration award, even if such an award
is enforceable as a decree or judgment.]]
COMMENT.—
In sections 43 to 44-A, provisions have been made for execution of the following
decrees: Thus section 43 deals with the decrees passed by any Civil Court in India to
which the Civil Procedure Code does not extend, or to any Court established by the
Central Government outside India. Section 44 deals with decrees passed by Revenue
Courts in any part of India to which the Civil Procedure Code does not extend and
section 44-A deals with decrees passed by any superior Court of a reciprocating
territory i.e, any country or territory outside India which is declared by the Central
Government to be a reciprocating territory for this purpose.
If a violation of any order passed by a Civil Court is made the ground of issuance of a
red corner notice, the Court will enquire as to whether the same has undergone the
tests laid down under sections 13 & 44-A of the Code.76
The foreign decree-holders have an independent right to enforcement of such decrees.

This right has no co-relation with jurisdictional issues. A question whether a foreign
judgment is a judgment in sum or judgment in personam is, therefore, of no
significance. The provision under this section is an enabling provision for a foreign
decree-holder to execute a foreign decree in this country. Enforcement of such a decree
is different from scheme of domestic execution.77
A decree of foreign Court on the basis of pleadings alone without any evidence to
support it and when the defendant did not choose to appear, is only an ex parte decree
and cannot be executed.78
Section 44A has been inserted to give effect to the policy contained in Foreign
Judgments (Reciprocal Enforcement) Act, 1933 by conferring an independent right on a
foreign decree-holder who obtained a decree from a court in reciprocating territory for
enforcement of said decree/order in India.79
Costs imposed on the basis of indemnity are not penalty or tax. Hence, explanation 2 to
section 44A does not refer to costs as contemplated under section 35.80
72 Subs. by Act 8 of 1937, Section 2.

73 Omitted by Act 71 of 1952, Section 2.
74 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951 for "the States" (w.e.f. 1-4-
1951).
75 Subs. for Explanations 1 to 3 by Act 71 of 1952, section 2.
76 Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 (588).
77 MVAL Quamar v Tsavliris Salvage (International) Ltd, AIR 2000 SC 2826 (2849).
78 International Woollen Mills v Standard Wool (UK) Ltd, AIR 2001 SC 2134 (2145).
79 Alcon Electronics (P) Ltd v Celem SA of France, AIR 2017 SC 1 : 2016 (12) SCALE 645 : 2017
(1) AJR 440 .
80 Alcon Electronics (P) Ltd v Celem SA of France, AIR 2017 SC 1 : 2016 (12) SCALE 645 : 2017
(1) AJR 440 .

[outside India]
© 2020 LexisNexis
PART II Execution
81[S. 45. Execution of decrees 6[outside India]
So much of the foregoing sections of this Part as empowers a Court to send a decree
for execution to another Court shall be construed as empowering a Court in any
82[State] to send a decree for execution to any Court established 83[* *] by the
authority of the Central Government 84[outside India] to which the 85[State

Government] has by notification in the official Gazette declared this section to apply.]
STATE AMENDMENT
Pondicherry.—After Section 45 the following was inserted as Section 45A by The

Pondicherry (Extension of Laws) Act, 26 of 1968:—
"45A. Execution of decrees, etc., passed or made before the commencement of the Code
in Pondicherry.—Any judgment, decree or order passed or made before the
commencement of this Code by any Civil Court in the Union Territory of Pondicherry
shall, for the purpose of execution, be deemed to have been passed or made under this
Code:
Provided that nothing contained in this section shall be construed as extending the
period of limitation to which any proceeding in respect of such judgment, decree or
order may be subject."
COMMENT.—
Execution of decrees in foreign territories.—
Section 45 is the only section which refers to the execution of decrees of Courts in
India in a foreign territory. Such decrees can only be executed in a foreign territory by a
Court established thereby the authority of the Central Government and empowered by
means of a notification under this section. It is only when the Court in a foreign territory
is a Court established under the authority of Central Government in the extraterritorial
jurisdiction; for, in a foreign territory the execution would lie pursuant to the legislative
authority of sovereign power of such State or Territory.
A combined effect of sections 43 to 45 of the Code would show that Indian Courts
have the power:—
(a) to execute the decree of those Courts to which the Code does not apply, such as
the Courts in the scheduled districts;
(b) to execute the decrees of the Civil Courts outside India which are established by
the authority of the Central Government;
(c) to execute the decrees of the Revenue Courts in any part of India to which the
provisions of the Code do not apply; and
(d) to execute the decrees of the Indian Courts in the States to which the State
Government has notified that section 45 of the Code would apply.86
6 Mahijibhai v Manibhai, AIR 1965 SC 1477 (1484) : (1965) 2 SCR 436 : 1965 BLJR 542 : (1965)
6 Guj LR 901.
81 Subs. by the A.O. 1937, for the original section 45.
83 The words "or continued" omitted by IAO 1948.
84 Subs. by IAO 1950 for "in any Indian State" which had been subs. for "or of the Crown
representative in the territories of any foreign prince or State" by IAO 1948.
86 Kishandas v Indo Carnatic Bank, AIR 1958 AP 407 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 46. Precepts
© 2020 LexisNexis
PART II Execution
S. 46. Precepts
(1) Upon the application of the decree-holder the Court which passed the decree
may, whenever it thinks fit, issue a precept to any other Court which would be
competent to execute such decree to attach any property belonging to the
judgment-debtor and specified in the precept.
(2) The Court to which a precept is sent shall proceed to attach the property in the
manner prescribed in regard to the attachment of property in execution of a
decree:
Provided that no attachment under a precept shall continue for more than two months
unless the period of attachment is extended by an order of the Court which passed
the decree or unless before the determination of such attachment the decree has
been transferred to the Court by which the attachment has been made and the
decree-holder has applied for an order for the sale of such property.
COMMENT.—
Meaning of precept.—
A precept is an order or direction given by one official person or body to another

requiring him to do some act within his Province.
No attachment under a precept would continue for more than two months—
(1) unless the period of attachment is extended by the Court which passed the
decree; or
(2) unless before the termination of such attachment the decree has been
transferred to the Court by which the attachment has been made and the
decree-holder has applied for an order for the sale of such property.
In other words, an order for permanent attachment under a precept would be illegal.
The object of the section is to enable the attachment of the property of the judgment-
debtor situated within the jurisdiction of another Court in order to prevent the
judgment-debtor from alienating or otherwise dealing with it to the detriment of the
decree-holder till proper proceedings for the sale of the property in pursuance of an
application can be taken.87
It is for this reason that the effect of the attachment in pursuance of the precept is
limited to two months and the power is given to the Court which passed the decree to
extend the time in order to meet the contingencies which may arise due to the delay in
transferring the decree to the Court to which the precept is sent.88
An attachment under this section is merely a step taken to facilitate execution; it is not
a step taken in the proceedings in execution. Section 46, therefore, enables a decree-
holder to obtain an interim attachment where there are grounds to apprehend that he
may otherwise be deprived of the fruits of his decree.
87 Kutragadda Ramayya v Kolli Nageshwar, AIR 1969 AP 250 .

88 Ibid.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 47. Questions to be
determined by the Court executing decree
© 2020 LexisNexis
PART II Execution
Questions to be Determined by Court Executing Decree
S. 47. Questions to be determined by the Court executing decree
(1) All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or
satisfaction of the decree shall be determined by the Court executing the
decree and not by a separate suit.
89[* * *]
(3) Where a question arises as to whether any person is or is not the

representative of a party, such question shall, for the purposes of this section,
be determined by the Court.
90[ Explanation I .—For the purposes of this section, a plaintiff whose suit has been
dismissed and a defendant against whom a suit has been dismissed are parties to the
suit.
Explanation II .—( a ) For the purposes of this section, a purchaser of property at a sale
in execution of a decree shall be deemed to be a party to the suit in which the decree
is passed; and
( b ) All questions relating to the delivery of possession of such property to such

purchaser or his representative shall be deemed to be questions relating to the
execution, discharge or satisfaction of the decree within the meaning of this section.]
STATE AMENDMENTS
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act No 57 of

1976, Section 3 (w.e.f. 1-1-1977).
In its application to the State of Uttar Pradesh, Explanation II as inserted by Uttar

Pradesh Act 24 of 1954 shall be omitted—UP Act 57 of 1976, Section 3 (w.e.f. 1-1-
1977).
COMMENT.—
This section and section 11 of the Code of Civil Procedure are complementary to each
other.91 This section like section 11 has been enacted with the object of checking
unnecessary litigation,92 and with a view to enable parties to obtain adjudication of
questions relating to execution without unnecessary expense or delay, which a fresh
trial might entail.93
Section 47 is not in antithesis to O XXI rule 2 of Code of Civil Procedure and as per rule
of construction section 47 of the Code of Civil Procedure has to give way to the
provision of O XXI rule 2 as the power under section 47 of the Code of Civil Procedure
is to be exercised subject to restriction imposed by O XXI rule 2 inclusive of sub rule (3)
wherein legislative mandate rules that an adjustment/payment not certified is to be
ignored.94
Res judicata applicability.—
The principle of constructive res judicata is applicable even in execution proceedings.95
The rule of res judicata deals with finality of a decision of a Court on matter actually or
constructively in issue before it and bars a fresh trial of any kind on such questions in a
subsequent proceedings between the parties, while section 47 deals with the
enforcement of such decisions and enacts that the questions specified in this section
shall be tried in the execution and not by a separate suit.96
Where earlier eviction proceedings were based on lease and a subsequent suit for
possession is based on title, neither res judicata nor section 47 will apply.97
If there is a subsequent dispossession after the decree for possession is complied with
then a suit to obtain possession is not barred under this section.98
The scope of section 47 is very wide. The executing Court has been given exclusive
jurisdiction under this section as to all matters relating to the execution of a decree and
as a general rule, a separate suit has been barred.99 However, it has been held by the
Supreme Court that where a partition suit is compromised but no decree was drawn
because of failure to produce necessary stamp-paper and the defendants were
permitted to be in possession of the property, a second suit for recovery of khas
possession is not barred.100
The executing court while passing a decree in terms of award should not go beyond
what has been given in the award. There is no scope for the executing Court to go
beyond the award and grant interest for the post award period which was not granted
in the award.101
It is unexceptionable that a Court executing a decree cannot go behind the decree, it

must take the decree according to its tenor, it has no jurisdiction to widen its scope and
is required to execute the decree as made.102
In a suit for restraining the appellant from planting any tree on land in question, the
decree holder cannot seek execution of decree by way of removal of trees. Even same
could not also be directed by the executing Court.103
An executing court cannot go behind the decree. If the relief sought for by the plaintiff
appears to have been granted, there is no reason as to why the executing Court shall
deprive him from obtaining the fruits of the decree.104
Executing Court does not have power to award interest if not mentioned in the
decree.105
A High Court is of the opinion that subsequent events should not be looked into by the
executing Court. It does not dispose the application filed under O XLI, rule 27 by the
appellant. When the lease in favour of respondent has been cancelled and the land in
question included in the municipal area, then the whole case is to be remanded to the
executing Court to decide the execution of decree.106
In the execution of a decree for possession of immovable property, if any person

claiming title to such property creates obstruction, then the executing Court is
competent to consider all questions raised by him and to pass appropriate orders.
Such an order under O XXI rule 103 is to be treated as a decree.107
Sub-section (2) of this section was omitted as the existing Explanation to this section
has been substituted by the present Explanations I and II, by the Amending Act of 1976.
There existed a conflict of judicial opinion on the point whether a claim for possession
by a purchaser in Court auction in pursuance of execution of a decree was or was not a
question relating to the execution of decree. By amending section 47, it has been now
made clear that a claim for possession by a purchaser in Court auction in pursuance of
execution of a decree is a question relating to execution of the decree. It has been held
by the Supreme Court in MC Dwivedi v State of Orissa, (1976) 7 SCC 134 that the decree
may be superseded and rendered nugatory by a statute. An auction-purchaser cannot
be held deemingly to be a party to the suit up to the stage of the preliminary decree.108
No power to modify the decree.—
An executing Court cannot go behind the decree. It has no jurisdiction to modify a

decree. It must execute a decree as it is.109
Appellate decree cannot be challenged in execution.—
In absence of any challenge to the appellate decree in further proceedings, in execution

this is not open to challenge.110
Intention to be gathered from Compromise Decree.—
A compromise decree provides for both personal remedy and a charge on property. The
question whether to allow the personal remedy to be pursued in the first instance
depends on the intention to be gathered from all the terms in the compromise
decree.111
The errors while conducting an auction sale such as not drawing up of proclamation
according to law, not giving of credit for certain payment, non-mention of tax of
attached property, etc. are mere irregularities. They fall within the scope of rule 90 of O
XXI and not under section 47 of Code of Civil Procedure.112
The judgment of the trial Court and the preliminary decree based on it, mentioned the
exclusion of certain properties from partition. In appeal the High Court did not set
aside that particular direction. It was held that the question of exclusion of that
property could not be raised at a subsequent stage before the executing Court.113
Merely because the auction-purchaser will be deemed to be a party by virtue of section

47 Explanation II(2), an application for the delivery of possession under O XXI rule 95
cannot be equated with an application for the execution of a decree for possession so
as to apply the period of limitation prescribed under Article 136 of the Limitation
Act.114
Conditions for the application of this section.—
In order that this section may apply, the following conditions must be satisfied:
(a) The question must be one arising between the parties to the suit in which the
decree was passed, or their representatives. The expression "parties to the suit
in which the decree was passed" under this section refers to the capacity in
which the individuals concerned were impleaded in the suit.115
(b) It must relate to the execution, discharge or satisfaction of the decree.116
(c) The order must be one passed by the Court executing the decree.
We would now make an attempt to explain these three conditions in detail:
Parties to the suit.—
The expression "parties to the suit" refers to de facto parties admitted rightly or wrongly
as parties on the record, except where a person sues or is sued in a representative
capacity. A person against whom no relief is claimed and no decree is passed but who
has been impleaded as a party to the suit must be deemed to be a party to the suit
within the meaning of the section.117 Where a person sues or is sued in a
representative capacity, all persons represented by the party on record must be
deemed to be parties also.118
Between the parties.—
The words "between the parties" under this section do not necessarily mean parties on
opposite sides as plaintiff and defendant, but mean parties opposed to each other in
the suit. Thus, in a partition suit parties who are co-defendants are often arrayed
against each other. In such a case a question between them relating to the execution of
a decree may fall within section 47(2). But where there is no conflict of interest
between the parties in the suit itself, a conflict arising between them in the execution
proceedings will not bring the case under section 47. One of the joint decree-holders
assigns his interest to the judgment debtor. The shares of the decree-holders are
undefined. The decree cannot be given effect to without ascertaining the rights of the
decree-holders, through a partition suit. Dispute between joint decree-holders is foreign
to the scope of this section.119 Again, question arising between parties ranging on the
same side will be covered by the section, if the opposite side should be interested in
the question. Thus, a dispute between joint decree-holders will be a dispute "between
parties" if the judgment-debtor is interested in such dispute but not otherwise.120
Similarly, a dispute between co-judgment-debtors will be a dispute between parties if
the judgment-creditor is interested in such dispute but not otherwise.121
In order to determine whether the parties to proceedings in execution are parties within
the meaning of section 47, the governing factor is not whether the disputants were
parties to the decree but whether the disputants were parties to the suit in which the
decree passed.122
There is no bar on the parties' liberty to agree to any adjustment during execution and
such compromises are recordable under section 47.123
Representatives.—
The term "representatives" within the meaning of this section includes not only legal
representatives in the sense of heirs, executors or administrators, but also
representatives in interests, i.e., any transferee of the decree-holder or judgment-
debtor's interest. The word "representatives" in section 47 is not merely limited to the
legal representatives but includes persons on whom interest has devolved by
assignment, transfer or otherwise.124
A sub-lessee is a representative of a lessee. He would be bound by a decree for

possession which was passed against the lessee. It was provided that the eviction is
based on a ground which determines the sub-lease.125
The concept of representatives in section 47 is not to be equated with that of a legal

representative. A person who claims or steps into the shoes of another is his
representative.126
On the death of one of the judgment-debtors, his daughter, being a universal legatee
under the will of the deceased, was a legal representative. The execution of decree
against her on being substituted is not defective, in the absence of substitution of sole
executor.127
The Supreme Court has now held that a benamidar represents the true owner, and that
a decree passed against the benamidar can be executed against him.128
Question must relate to execution, discharge or satisfaction.—
The expression "relating to the execution" has not been defined in the Code probably
with the intention of leaving it flexible; it is comprehensive enough to include any
question the order in respect of which furthers, hinders or effects the manner of the
carrying out of the execution of the decree.129 It would apply as well to a dispute
arising in relation to the execution of a decree after it had been executed, as it would be
a dispute relating to the execution of a decree before it had been executed.130
Where a decree imposes reciprocal and interlinked obligation on both sides, which
cannot be separated, execution will not be ordered, unless the party seeking execution
is prepared to perform his part of obligation.131 Executing Court can refuse to execute
the decree holding that it has become inexecutable on account of change in law and its
effects.132
Where an application for execution is dismissed without going into its merits, and then
the Court restores the application under its inherent powers, the order of restoration is
of a collateral character and does not relate to the execution, discharge or satisfaction
of the decree.133
The following are some of the instances of questions relating to execution, discharge or
satisfaction.
Once the decree was declared to be not binding on the plaintiff, the execution sale
would not bind them. The decree which contains direction for restriction of the plaint
scheduled is certainly executable. Considering long pendency of litigation, the Supreme
Court directed the payment of market value of the suit property by defendant instead of
restitution.134
If the decree is made by a Court which has no inherent jurisdiction to make it, then
objection to its validity may be raised in an execution proceeding if the objection
appears on the face of the record. But if the objection as to jurisdiction of the Court to
pass the decree does not appear on the face of the record, and requires examination of
the question raised and decided at the trial, or which could have been but has not been
raised, then the executing Court will have no jurisdiction to entertain an objection as to
the validity of the decree on the ground of absence of jurisdiction.135
Property wrongly taken in execution is an instance of question relating to execution etc.

and the judgment-debtor can apply under this section for the recovery of such property
and a separate suit does not lie.136 Similarly, where property is taken in execution of
decree subsequently amended, it is also an instance of question relating to
execution.137 For the same reasons when the property taken in the execution of an ex-
parte decree is set aside, questions can be raised under this very section and not by a
separate suit.138 The question whether a decree has been paid or adjusted out of the
Court is one for the executing Court to decide under this section.139 Again questions
relating to ratable liability of different mortgaged properties is within the section.140An
auction purchaser (even if a stranger) is a party. The purchaser at a sale in execution of
a decree, whether he is a decree-holder or not, is unquestionably a party to the suit for
the purpose of section 47. Hence, all questions arising between the auction purchaser
and the judgment-debtor must be determined by the executing Court and not by a
separate suit.141
Where the plaintiff's property was sold in an execution of the decree without notice to
him, the suit filed by the plaintiff that attachment and sale would not be binding on him
and recovery of possession, would not be barred by this section.142
Dismissal for Default.—
An application was filed by the judgment debtor under section 47 of Code of Civil
Procedure resisting the execution of the decree. It was dismissed for his default. It is
not a final decision of the Court after hearing the parties. It does not operate as res
judicata. He can raise that objection in a subsequent application.143
The following are the instances of question not relating to execution, etc.
Question relating to the validity of the decree is beyond the competence of an

executing Court. An objection that the decree of eviction passed by Civil Court is
without jurisdiction can be raised before the execution Court. A decree passed by a
Court having no jurisdiction over the subject-matter would be a nullity and the
judgment-debtor can object to the execution of such a decree being nullity and non
est.144 Where a Court has no jurisdiction to entertain the claim, granted decree for
certain benefits, the decree will be nullity. The nullity can be assailed at any stage
including execution or in collateral proceedings since it strikes at the very jurisdiction
and authority of the Court. The decree is to be set aside.145 This section takes it for
granted that a valid decree exists. In execution of a decree, it is not open to the
judgment-debtor to plead that he should get credit for the amount paid before the
decree. Similarly, questions between a party and his own representatives are not within
this section.146 Party added at the execution stage is also not within the section, such
as, a receiver.
Repeated Applications unwarranted.—
The opportunity to object to executability of decree could be taken only once and
repeated applications appear to be unwarranted. When the right has been negatived
and becomes final, the petitioner cannot have any higher right. He cannot raise the
contentions thereafter.147
In execution of a decree for specific performance of an agreement to sell, the tenant in

possession of the property was dispossessed. It was held that the tenant could not be
dispossessed without any due process of law against him. It was also ordered that the
tenant should be put back in possession and that he is entitled to remain in possession
till disposal of his application under O XXI rules 98, 99 of Code of Civil Procedure.148
If in the execution a judgment-debtor pleads payment or adjustment, then the question

falls within this section. Any amount determined in arbitration pending execution can
be set off against the decretal amount.149
Where by a compromise decree, a tenant was to be evicted after a period of 10 years,

the tenant claimed protection under section 5 of the Assam Non-agricultural Urban
Areas Tenancy Act, 1955, this right cannot be decided in execution proceedings.150
An objection was not raised at the preliminary decree stage or even at the stage of final
decree. If it is raised before the executing Court, then it will be liable to be rejected.151
A compromise, which has not been recorded by the executing Court under O XXI rule 2,
is not recognised by an executing Court.152
Where a person was neither a party to the suit in which the decree for eviction was
passed nor did he come forward as a representative of the decree holder, the question
of his title to the property or the question of alleged fraud in respect of creating a fresh
tenancy could not be gone into in an application under this section.153
Direction to execution Court propriety.—
Setting aside order of appointment of receiver by directing the execution Court to

decide question of tenancy is improper.154
The powers available under section 47 of the Code of Civil Procedure are quite different
and much narrower than those available in appeal/revision/review. The executing court
can neither travel behind decree nor sit in appeal over the same or pass any order
jeopardizing rights of parties there under.155
The powers of the executing Court are quite different and much narrower than its
powers of appeal, revision or review. This Court can allow objections to the
executability of the decree if it is found that the same is void ab initio and nullity, apart
from the ground that decree is not capable of execution under law.156
In Sunder Dass v Ram Prakash, AIR 1977 SC 1204 : (1977) 2 SCC 662 the Supreme
Court has held as follows:—
Now, the law is well settled that an executing Court cannot go behind the decree nor can it
question its legality or correctness. But there is one exception to this general rule and that is
that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in
the Court passing it, its invalidity can be set up in an execution proceeding. Where, there is
lack of inherent jurisdiction it goes to the root of the competence of the Court to try the case
and a decree which is nullity is void and can be declared to be void by any Court in which it
is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or
relied upon and even at the stage of execution or even in collateral proceedings. The
executing Court can, therefore, entertain an objection that the decree is a nullity and can
refuse to execute the decree. By doing so, the executing Court would not incur the reproach
that it is going behind the decree, because the decree being null and void there would really
be no decree at all.157
It was accordingly held that "it was competent to the executing Court to examine
whether the decree for eviction was a nullity on the ground that the Civil Court had no
inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If
the decree for eviction was a nullity, the executing Court could declare it to be such and
decline to execute it against the respondent".158 An executing Court has a duty to find
out the true effect of the decree for construing a decree and it can take into
consideration the pleadings and proceedings leading up to the decree. In order to find
out the meaning of the words employed in a decree, the Court after has to ascertain the
circumstances under which these words came to be used. That is the plain duty of the
executing Court. If the Court fails to discharge that duty, then it would be deemed to
have failed to exercise the jurisdiction vested in it.159
Factual inquiry cannot be undertaken by the executing Court under section 47 at the
instance of the judgment debtor for holding decree a nullity Decree once passed can be
challenged by the Judgment debtor in appeal or review.160
A decree for possession of the properties forming part of an undertaking to generate

and supply electricity was passed. When it was sought to be executed the other side
claimed that the compensation payable to him should be determined and paid to him in
that execution proceeding itself. It was held that it cannot be done in the execution
proceedings.161
The question as to whether the amount deposited by the appellant should be treated as
principal amount or towards the adjustment of interest and the executing Court has the
power to decide same.162
Executing Court cannot go behind the decree.163 When an ambiguous decree is

passed, it is the duty of the executing court to interpret the decree and for this purpose
the court is entitled to look into pleadings and judgment.164
Where in the courts compromise order the land boundary is not specified, the executing
court should have taken steps to effectively construe the ambiguous decree by
examining the pleadings of the parties to the suit.165
Section 34 of the Arbitration and Conciliation Act provides for setting aside the arbitral
award. A detail procedure is provided giving opportunity to the aggrieved party to
challenge the award. The said Act is a Special Act and learned court below has rightly
held that in view of the said provision in the Special Act and the provisions for setting
aside the award under section 34 of the said Act, an objection under section 47 of the
Code of Civil Procedure on the ground covered by the provisions under section 34 of
the Arbitration and Conciliation Act, 1996 is not maintainable.166
Inexecutablity of a decree of a Court in the face of intervening and supervening

developments is a consequence comprehended in law, however, contingent on the fact
of each case. A decree can be held inexecutable particularly when the formidable
public interest is involved.167
Where the prayer made in the suit was confined only to a declaration that the employee
remained in the service of the State Government, it was beyond the purview of the
execution proceedings to grant arrears of salary and other consequential reliefs.
Executing Court was bound to the terms of decree.168
Where a compromise of rights by parties amounting to adjustment of decree exists but

is not reported to the executing Court and where it is not certified nor recorded so by
executing Court, the Court can proceed to execute the decree.169
Judgment debtor cannot flout the compromise decree; the reasons which compelled
the opponent to enter into the compromise are irrelevant as to its enforceability, if
otherwise the compromise is validly entered into.170
In an action to recover an amount payable in a foreign currency, while reversing a

decision on Delhi High Court,171 it has been held by the Supreme Court in Forasol v Oil
and Natural Gas Commission, AIR 1984 SC 241 (264) : 1984 Supp SCC 263 that it would
be fairer to both the parties for the Court to take the date of passing the decree that is
the date of the judgment as the proper date for fixing the rate of exchange at which the
foreign currency amount should be converted.
Executing Court must execute the decree as it is. It cannot go beyond the decree and
has no jurisdiction to modify the same, where time was fixed under compromise decree
for payment of arrears of rent pursuant to the compromise agreement between the
parties concerned, then extension given by the executing Court virtually amounted to
modification of the decree. It was held that the said order of the executing Court was
without jurisdiction and therefore a nullity.172
Scope of Revisionary Power.—
All issues whether the decree has been discharged or satisfied has to be determined by
the executing court under section 47 of the Code of Civil Procedure. The executing
court must execute the decree as it stands without adding anything to it. The order of
the high court directing appointment of CA for the purpose of determining the amount
under decree is erroneous. The high court acted in excess of jurisdiction.173
Where the executing Court ignores the provisions of the Rent Control Order prohibiting
eviction of the tenants and passes an order of delivery of possession in execution of a
decree, the order can be set aside. An order of redelivery to the tenant can be passed
on an application under section 47 read with section 151 of Code of Civil Procedure.174
Order XXI of the Code of Civil Procedure does not state that premature filing of an
execution would entail its rejection. The principles that have been laid down for filing of
a premature suit, do throw certain light while dealing with an application for execution
that is filed prematurely and the same can safely be applied.175
If the composite decree is a decree which is both a personal decree as well as a

mortgage-decree, without any limitation on its execution, then the decree-holder in
principle, cannot be forced to first exhaust the remedy by way of execution of the
mortgage-decree alone. He can also not be told that only if the amount recovered is
insufficient, he can be permitted to take recourse to the execution of the personal
decree.176
An award of arbitrator was made rule of Court. A money-decree was passed. The
execution of the decree was stayed by the Supreme Court on a condition of deposit of
certain amount in terms of US Dollars. The dispute arose as to relevant date of dollar-
rupee exchange rate for the purposes of making deposit for complainer with condition.
It was held that since appeal was pending it was not necessary to go into general
principle guiding ascertainment of relevant date of exchange value. The judgment-
debtor was directed to deposit some additional amount.177
An execution Court has power to grant mesne profits. It is concomitant of its powers to
pass order of delivery of possession of mortgaged-property to mortgagor. The
mortgagee becomes liable to pay mesne profits from the date of discharge of debt by
the mortgagor.178
A decree for payment of mesne profits was held not executable unless the deficiency in
Court-fee was made good. Such a decree could not be said to have come into
operation. It was a conditional decree. The obligation on the part of the judgment-
debtor to pay the mesne profits occurs only on the satisfaction of that condition. If the
deficiency in the Court fee is not removed, then the appellant is not entitled to payment
of the mesne profits under the decree.179
As per the compromise before Lok Adalat, the husband failed to execute Gift Deed in
favour of wife. The executing Court on the basis of the said compromise passed an
order directing the husband to execute Gift Deed in favour of wife, it was held that the
order of the executing court is correct and proper.180
A compromise in execution stage may extinguish the decree and create a fresh lease
or provide a mere mode for discharge of the decree depending on the intention of the
parties.181
An application under section 47 cannot be treated as application under O XXI, rule 90

of the Code when some of the grounds of the objections set out in the application
under section 47 are not such as are covered by O XXI, rule 90. Hence, the bar
prescribed under O XXI, rule 89(2) would not come into play at all. Merely on the reason
of the pendency of the objections under section 47 it cannot be said that the
application under O XXI, rule 89 would be necessarily barred.182
In an appeal by surety contesting his liability to satisfy the decretal debt, failure to bring
one of the respondents judgment-debtors on record in time after death, does not abate
the appeal.183
Where after decree for permanent alimony and maintenance in favour of divorced wife,
her husband died, a subsequent suit for the declaration of charge on estate of the
deceased husband can be treated as an execution application as a measure of ex
debito justitiae.184
Where a party tendered a cheque for the prescribed amount on the last date for
payment and the same was encashed in due course, the payment by cheque was valid
payment.185
A plea of nullity of decree can always be set up before the executing Court. Any
judgment and order which is a nullity never acquires finality and is thus, open to
challenge in the executing proceedings.186
The executing Court on the application filed by state under section 47 cannot go into
correctness of order of reference Court amending its earlier order.187
In a suit decreed on contest, the decree holder must be allowed to secure the fruits of
the decree and when the plaintiff had not specified that the recovery should be made
from the matured amount of the LIC policies, there should have been no occasion for
the Court to direct the recovery from lapsed LIC policies pledged with the bank.188
Application, maintainability.—
An application under section 47 of the Code can be made at any stage after the decree
subject to question of limitation. It is not necessary for the appellant to wait until the
decree is sought to be put into execution against her.189
Execution petition filed beyond prescribed period of limitation is not maintainable.190
Setting aside of ex parte decree.—
The decree holder is not to be deprived of the fruits of his decree except for genuine
reasons. Where an ex parte decree was passed in eviction proceedings and the tenant
was negligent in prosecuting the application for setting aside the ex parte decree and
he succeeded in dragging on the proceedings then, in such a case, the execution
proceedings are not liable to be stayed.191
New Plea.—
A plea as to jurisdiction may be raised at any stage, even if it was not raised in trial
Court. Such a plea can be raised even in the execution proceedings on the ground that
the decree is a nullity.192
A plea not taken before passing decree, cannot be raised during execution
proceedings.—
An eviction decree was passed on the grounds of default in payment of rent. In its
execution the plea raised by the tenant, was that before passing the decree he was not
afforded opportunity of depositing arrears of rent. It was not tenable. Since it was for
the tenant to make an application to the Court seeking opportunity of making deposit,
the decree was not unexecutable as being "without jurisdiction" or "a nullity".193
Executability on failure of condition.—
If a decree does not mention its executability on failure of a condition then such non-
mention will not make the decree unexecutable. It is never a precondition of the
executability of a decree that it must provide expressly that the party entitled to a relief
under it, must file an execution application for obtaining that relief.194
Where a decree was passed directing the pre-emptor to deposit the purchase money
within time fixed by the Court, but the preemptor failed to comply and also did not
comply with O XX rule 14 of Code of Civil Procedure. In such a case the suit itself
would stand dismissed by reason of default in payment of preemption price. Hence, the
permission granted to the preemptor by the executing Court to deposit amount after
one year, would be beyond its jurisdiction and illegal.195
Where objection as to jurisdiction of the Court that passed decree is raised for the first
time before the executing Court, then such objection is not tenable and the applicant is
stopped from raising such an objection before any other Court including the executing
Court.196
When decree becomes enforceable, the decree when amended becomes enforceable
from the date it is amended and not when the original decree was passed. The period
of limitation has to be counted from the date of amended decree and not the original
decree.197
Effect of non compliance by Decree Holder.—
Ex parte decree for specific performance of agreement of sale was passed by the Court
and the said decree became final between the parties as it was not challenged by the
judgment debtors. The decree holder did not offer balance sale consideration within
the time stipulated in the decree. The decree holder did not deposit the money for a
period more than four years from the date of the decree. Specific ground was also not
made out by the decree holder for extension of time to make deposits. The decree
holder did not offer any explanation for delay in payment nor applied for any extension
of time. The judgment debtor under section 47 of Code of Civil Procedure objected that
the final decree could not be passed as the decree holder did not pay the balance sale
consideration in compliance of the preliminary decree. The said objection was upheld
by the Court.198
Construction.—
A decree was passed declaring the defendants not to be validly appointed trustees and
removing them from management of the said properties and directing them to render
accounts of their administration of said properties. The direction in the decree
requiring the defendants to render accounts of the administration of the trust
properties, was held to include a direction to render account of the income and
expenditure relating to the management and running of the school located in the
building.199
Decree of competent Court not to be allowed to be defeated.—
Where a suit as to immovable property has been decreed and the property is not
definitely identified, the defect in the Court record is capable of being cured. Resort can
be had to section 152 or section 47 of the Code of Civil Procedure depending on the
facts and circumstances of each case. A decree of a competent Court should not, as
far as practicable, be allowed to be defeated on account of an accidental slip or
omission.200
Inquiry as to who is the representative of a party.—

Clause (3)—The question whether certain persons are legal representatives of a party
is one which the execution Court is bound to decide and the decision is open to appeal.
Clause (3) must be read as ancillary to clause (1). Clause (3) comes into operation
where there is question arising between the parties to the suit or their representatives
and it does not apply where the question is between rival representatives of one party.
Clause (3) is meant for cases where both parties are claiming to be the legal
representatives of the deceased decree-holder.201
Objection to attachment or sale by parties or their representatives.—
If any objection to attachment is made by a judgment-debtor or his representatives that

must be distinguished from that made by either of them on behalf of a third person. In
the former case, the objection falls under this section, and a separate suit will not lie.
But such objections must be made before the sale is confirmed. In the latter case, the
objection is in effect under O XXI rule 58.
Objection to attachment to sale by third parties.—
When the objection to attachment is made by a third party, he may proceed either under
O XXI rule 58 or by a separate suit. The question cannot be dealt with under this
section.
Execution of decree objections.—
Where no reason for delay in filing objections was given, the refusal to recall order of
possession on ground of objections would be proper.202
An objection under section 47 of the Code cannot be ignored or rejected on the ground
that the same was filed beyond the period of limitation.203
Execution of award.—
Award cannot be executed or challenged in terms of provisions of either Arbitration

Act, 1940 or Arbitration and Conciliation Act, 1996.204
Whether Appeal lies?.—
It has been held by a Full Bench of Patna High Court in Narmada Devi v Ram Nandan
Singh,205 that no appeal would lie against an order under section 47 of the Code
whether interlocutory or otherwise after the enforcement of the Amending Act,
1976.206
An order is a decree.—
An order under section 47 is a decree and the High Court has no power to dispense
with the filing of a copy of the decree. In some Courts, the decision under section 47 is
required to be formally drawn up as a decree. But in some other Courts no separate
decree is drawn up embodying the adjudication under section 47. In such a case the
decision under section 47 is the decree and also the judgment.207
Orders are appealable.—
The orders passed under special statutes have been held to be appealable under this
section if they related to execution, discharge or satisfaction thereof. So also is the
case with the orders directing delivery of possession under section 168 of UP Tenancy
Act, 1939.208
Reference may be made to G Rama Subbayya v G Rajamma, AIR 1988 AP 226 (235) a
case decided by the Full Bench of Andhra Pradesh High Court.
89 Sub-section (2) which was omitted by Act 104 of 1976, section 20(i) (w.e.f. 1-2-1977) ran
thus:— "(2) The Court may, subject to any objection as to limitation or jurisdiction, treat a
proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order
payment of any additional Court-fees."
90 Subs. by Act 104 of 1976 for the former Explanation, section 20(ii) (w.e.f. 1-2-1977).
91 Durga Devi v Shanti Parkash, AIR 1961 Punj 229 (DB) : (1960) 1 Punj 731.
92 (1898) 22 Bom 463. see also AIR 1961 Punj 129 (DB) Ibid.
93 (1969) 2 MLJ 593 .
94 Jitendra Pal Singh v Chandrakala Jain, AIR 2015 Jhar 93 .
95 Lagan Jute Machineries Co Ltd v Candle Wood Holdings Ltd, (2007) 8 SCC 487 .
96 Venkatasheshayya v Virayya, AIR 1958 AP 1 (FB).
97 Ajit Chopra v Sadhu Ram, AIR 2000 SC 212 (217) : (2000) 1 SCC 114 .
98 Uma Shanker v Sarabjeet, AIR 1996 SC 1005 : (1996) 2 SCC 371 .
99 Hiralal v Kali Nath, AIR 1962 SC 192 ; see also AIR 1965 Pat 427 (FB).
100 Brij Kishore Prasad v Jaleshwar Prasad Singh, AIR 1973 SC 1130 : (1973) 1 SCC 672 .
101 Coal Linker v Coal India Ltd, (2009) 9 SCC 491 (494).
102 Century Textiles Industries Ltd v Deepak Jain, (2009) 5 SCC 634 (639).
103 Gurdev Singh v Narain Singh, AIR 2008 SC 630 .
104 Haryana Vidyut Prasaran Nigam Ltd v Gulshan Lal, (2009) 13 SCC 354 (360).
105 State of Punjab v Harvinder Singh, (2008) 3 SCC 394 .
106 Municipal Board, Kishangarh v Chandmal, AIR 2000 SC 3611 : (1999) 9 SCC 198 .
107 NSS Narayan Sarma v Goldstone Exports Ltd, AIR 2002 SC 251 (257) : (2002) 1 SCC 662 .
108 Sudhendu Narain Deb v Renuka Biswas, AIR 1992 SC 385 (391) : (1992) 1 SCC 206 .
109 Deepa Bhargava v Mahesh Bhargava, (2009) 2 SCC 294 (298); see also Abdul Rehman Shora
v State of J&K, (2009) 2 SCC 617 .
110 State of Punjab v Mohinder S Randhawa, AIR 1992 SC 473 : 1993 Supp (1) SCC 49 .
111 Rajes Kanta Roy v Shanti Debi, AIR 1957 SC 255 (260) : 1957 SCR 77 .
112 SA Sundarajan v APV Rajendran, AIR 1981 SC 693 : (1981) 1 SCC 719 : (1981) 3 SCR 600 .
113 Babusaheb Singh v Parsid Narain Singh, AIR 1991 SC 1731 .
115 Durga Devi v Shanti Parkash, AIR 1961 Punj 229 (DB) : (1960) 1 Punj 731.
116 Sukhdev Singh v Lekha Singh, AIR 1957 Pat 501 (DB).
117 Umaprasad v Mrityunjay, AIR 1956 Cal 547 .
118 UOI v Rasul Ahmed, AIR 1970 Ori 156 ; see also (1968) 2 Mys LJ 269 .
119 Jagdish Dutt v Dharam Pal, AIR 1999 SC 1694 (1696) : (1999) 3 SCC 644 .
120 Sansar Chand v Sham Lal, AIR 1957 Punj 307 .
121 Ibid.
122 Ibid.
123 Motilal v Mohd. Hassan, AIR 1968 SC 1087 : (1968) 3 SCR 158 : (1968) 2 Andh LT 220 .
124 Rangaswami v Rangammal, AIR 1968 Mad 271 .
125 Guru Shiddaswami v DMD Jain Sabha, AIR 1953 SC 514 : 1954 SCR 235 : (1953) 2 ALJ 819 .
126 Daulat Ram v Shrimati Bhagwanti, (1953) 65 PLR 606 ; see also AIR 1961 AP 298 (DB).
127 Parbati Devi v Mahadeo Prasad, AIR 1979 SC 1915 (1917) : (1979) 4 SCC 761 .
128 Ragho Prasad Gupta v Shrikrishna Poddar, AIR 1969 SC 316 : (1969) 1 SCR 834 : 1969 BLJR
426 .
129 1971 Kash LJ 243 (DB).
130 Ramanna v Nallaparaju, AIR 1956 SC 87 : (1955) 2 SCR 938 : (1956) 1 MLJ (SC) 71.
131 Chen Shen Ling v NK Jhajharia, AIR 1972 SC 726 (729) : (1973) 3 SCC 376 ; see also Jai
Narain RL v Kedar Nath Khetan, AIR 1956 SC 359 : 1956 SCR 62 : 1956 ALJ 345 (relied on).
132 Haji SK Subhan v Madhorao, AIR 1962 SC 1230 (1237) : 1962 MPLJ 265 .
133 Keshardeo v Radhakrishna, AIR 1953 SC 23 .
134 Bhanwarlal v Prem Lata, AIR 1990 SC 623 : (1990) 1 SCC 353 .
135 Vasudev D Modi v RA Rehman, AIR 1970 SC 1475 ; see also JM Bhaduri v RN Chakravarty,
AIR 1933 PC 61 .
136 Provita Sundari v Saroda Charan, AIR 1935 Cal 15 : 1934 CWN 996 .
137 Harnam v Mohammad, (1905) 27 All 485 .
138 Ratansia v Jay Singh, AIR 1955 Nag 29 : (1955) Nag 425.
139 Chaube Mahedera Rao v Lal Bishambar Nath, AIR 1940 All 270 (FB); see also Parmanand
Ash v Bhabhati Bai, AIR 1969 Ori 32 : 34 Cut LT 1121.
140 Pandurang Kashi Nath Patel v Subari Deorao Despande, AIR 1949 Nag 155 : (1948) Nag 595.
141 Haruandrai v Debidutt B Prasad, AIR 1973 SC 2423 : (1973) 2 SCC 467 ; see also Ganapathy
v Krishnamachariar, AIR 1917 PC 121 .
142 Ameena Bi v Kuppuswami Naidu, AIR 1993 SC 1628 (1631) : (1993) 2 SCC 405 .
143 Shivashankar v Baikunth, AIR 1969 SC 971 (973) : (1969) 1 SCC 718 .
144 Sarwan Kumar v Madan Lal Agrawal, AIR 2003 SC 1475 (1484) : (2003) 4 SCC 147 : (2003)
103 DLT 20 .
145 Urban Improvement Trust, Jodhpur v Gokul Narain, AIR 1996 SC 1819 (1824) : (1996) 4 SCC
178 .
146 Kedar Nath v Arun Chandra, AIR 1937 All (FB).
147 RPA Valliammal v R Palanichami Nadar, AIR 1997 SC 1996 : (1997) 10 SCC 209 .
148 Samir Sobhan Sanyal v Tracks Trade Pvt Ltd, AIR 1996 SC 2102 : (1996) 4 SCC 144 .
149 Lakshmichand & Balchand v State of AP, AIR 1987 SC 20 : (1987) 1 SCC 19 .
150 Bibekananda Bhowal v Satindra Mohan Dev, AIR 1996 SC 1985 (1989) : (1996) 9 SCC 292 .
151 Narinder Singh v Kishan Singh, AIR 2002 SC 2603 : (2002) 6 SCC 46 .
152 Lakshmi Narayanan v SS Pandian, AIR 2000 SC 2757 (2759, 2761) : (2000) 7 SCC 240 .
153 Devidayal Rolling Mills v Prakash Chimanlal Parikh, AIR 1993 SC 1982 (1988, 1989) : (1993)
2 SCC 470 : (1993) 1 GLH 1151 : (1993) 2 BLJR 785 .
154 TCI Finance Ltd v Calcutta Medical Centre Ltd, AIR 2005 SC 3654 (3656–57).
155 Brakewel Automotive Components (India) (P) Ltd v PR Selvam Alagappan, AIR 2017 SC 1577
: 2017 (2) AJR 702 : 2017 (3) Bom CR 439 .
156 Dhurandhar Prasad Singh v Jai Prakash University, AIR 2001 SC 2552 (2560) : (2001) 6 SCC
534 .
157 (1977) 2 SCC 662 at p 667.
158 Sunder Dass v Ram Prakash, AIR 1977 SC 1204 : (1977) 2 SCC 662 .
159 Bhawan Vaja v Solanki Hanuji, AIR 1972 SC 1371 (1374) : (1973) 2 SCC 40 .
160 PN Pharma Marketing Service Pvt Ltd Gauhati v Nicholas Piramal India Ltd, Mumbai, AIR
2014 Gau 84 .
161 Madhya Pradesh Electricity Board v Central India Electricity Supply Co Ltd, AIR 1995 SC 1456
: (1995) 1 SCC 364 .
162 Housing and Urban Development Corp Ltd v Leela Hotels Ltd, (2012) 1SCC 302.
163 ONGC Ltd v Modern Construction and Company, AIR 2014 SC 83 .
164 Topanmal Chhotamal v Kundomal Gangaram, AIR 1960 SC 388 .
165 Illiasuddin Ahmed v Hachnian Ahmed, AIR 2015 Gau 49 .
166 Gaffar Khan v Magma Shrachi Finance Ltd Kolkata, AIR 2012 Jhar 53 .
167 Sayyed Ratanbhai Sayeed v Shindi Nagar Panchayat, AIR 2016 SC 1042 .
168 State of MP v Manglal Sharma, AIR 1998 SC 743 (745, 746) : (1998) 2 SCC 510 : (1998) 1
LLJ 995 .
169 Sultana Begum v Prem Chand Jain, AIR 1997 SC 1006 (1009) : (1997) 1 SCC 373 ; Chittra
Talkies v Durga Das Mehta, AIR 1973 All 40 (overruled).
170 Shivshankar Gurgar v Dilip, AIR 2014 SC 1182 .
171 Oil and Gas Commission v Forasol, AIR 1982 Del 184 .
172 Shivshankar Gurgar v Dilip, AIR 2014 SC 1182 .
173 Kohinoor Transporters v State of UP, AIR 2018 SC 4138 : 2018 (6) ALD 77 : 2018 (10) SCALE
50 .
174 BV Patankar v CG Sastry, AIR 1961 SC 272 (275).
175 Pushpa Sahakari Avas Samiti Ltd v Gangotri Sahakari Avas S Ltd, AIR 2012 SC 1788 .
176 State Bank of India v Indexpart Registered, AIR 1992 SC 1740 (1745) : (1992) 3 SCC 159 :
(1992) 75 CC 1 .
177 Renu Sagar Power Co v General Electric Co, AIR 1991 SC 351 : 1991 Supp (1) SCC 155 .
178 Patel Naranbhai v Dhulabhai, AIR 1992 SC 2009 (2013) : (1992) 4 SCC 264 .
179 Asstt Custodian-General of Evacuee Property v Lila Devi, AIR 1980 SC 2080 : (1980) 4 SCC
224 .
180 Venugopalan AK v Pushpavally, AIR 2014 Ker 203 .
181 Kallo v Dhakadevi, AIR 1982 SC 813 : (1982) 1 SCC 633 .
182 Mangal Prasad v Krishna Kumar, AIR 1992 SC 1857 : 1992 Supp (3) SCC 31 .
183 Kanhaiyalal v Rameshwar, AIR 1983 SC 503 .
184 Nandarani Mazumdar v Indian Airlines, AIR 1983 SC 1201 : (1983) 4 SCC 461 : 1983 SCC
(Cri) 858 .
185 K Saraswathy v PSS Somasundaram Chettiar, AIR 1989 SC 1553 : (1989) 4 SCC 527 .
186 State of Haryana v Kartar Singh, (2013) 11 SCC 375 .
187 Jaya Ch Mohapatra v Land Acquisition officer, AIR 2005 SC 4165 (4168).
188 Central Bank of India, Jorhat Branch v Biharilal Srivastava, AIR 2015 Gau 86 .
189 Sushila Devi v Ranveer Singh, (2009) 16 SCC 244 (245).
190 Kanagavalliammal v R Balasubramanian, AIR 2008 SC 1991 .
191 YL Puttuthai alias Prabha v T Boram, AIR 2012 Mad 235 .
192 Chandrika Misir v Bhaiyalal, AIR 1973 SC 2391 (2393) : (1973) 2 SCC 474 : (1974) 1 SCR 290
.
193 Rafique Bibi v Sayed Waliuddin, AIR 2003 SC 3789 (3791).
194 Prakash Chand v Harnam Singh, AIR 1973 SC 2065 (2069) : (1973) 2 SCC 484 : (1973) 3
SCR 802 .
195 Rajendra Kumar Chachan v Banne Singh, AIR 2014 Raj 102 .
196 Madhya Pradesh Housing Board v State of MP, AIR 2014 MP 1 .
197 Lehri Bai v Bherulal, AIR 2013 Raj 183 .
198 Radhey Sham v Harendra Pal Rathi, AIR 2015 All 180 .
199 Mulla Alibhai v MH & C High School, AIR 1976 SC 1476 (1481).
200 Pratibha Singh v Shanti Devi Prasad, AIR 2003 SC 643 (646) : (2003) 2 SCC 330 .
201 Anant Parkash v Dharmanand, AIR 1957 Punj 64 .
202 Independent News Services Pvt Ltd v Century Communications Ltd, AIR 2010 (NOC) 846 (All)
: CR NO 10 (D) of 2010 dt 9 March 2010; see also State of WB v Kamla Prasad, AIR 2010 SC 1456
.
203 Arun Lal v UOI, AIR 2011 SC 506 (509).
204 Paradeep Phosphates Ltd v Paradeep Port Trust, 2009 AIHC (NOC) 841 (Ori) AIR 2009 Ori
139 (DB) WA No 109 of 2005, Dt 17 March 2009.
205 Narmada Devi v Ram Nandan Singh, AIR 1987 Pat 33 (FB) (after reversing two earlier
decisions of its own High Court in Parshava Properties Ltd v AK Bose, AIR 1979 Pat 308 : AIR
1984 Pat 227 .
206 Ram Niwas v Mithan Lal, AIR 1979 P&H 262 dissented.
207 Shakuntala Devi v Kuntal Kumari, AIR 1969 SC 575 (577) : (1969) 1 SCR 1006 : 1969 Cur LJ
69 .
208 Balak Singh v Waqf Alu Allah Kau Khan, AIR 1969 SC 1270 (1272) : (1969) 2 SCC 39 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 48.— Execution barred in
certain cases
© 2020 LexisNexis
PART II Execution
Limit of Time for Execution
S. 48.— Execution barred in certain cases
Rep. by the Limitation Act, 1963 (36 of 1963), (w.e.f. 1-1-1964).
COMMENT.—
This section, which enacted a rule of limitation was repealed by section 28 of the
Limitation Act (36 of 1963 w.e.f. 1st January, 1964), which laid down that "in the Code
of Civil Procedure, 1901 (5 of 1908) section 48 should be omitted". In its place a new
provision of Article 136 has been introduced in that Act, and it is that which now
governs questions of limitation of execution applications.
Substance of this section continues to be law.—
This section of Code of Civil Procedure enacted a rule of limitation and prescribed a
period of 12 years for an application for execution of decrees and orders. It has since
been repealed by section 28 of the Limitation Act, 1963. In its place a new provision as
Article 136 in the Limitation Act, 1963 has been introduced and that prescribes "for the
execution of any decree (other than a decree granting a mandatory injunction) or order
of any civil Court a period of 12 years etc." Thus, the substance of section 48 continues
to be the law and since repealed is applicable to the applications pending on the date
of its repeal.209
Original decree to be executed if the agreement fails.—
There was a mortgage decree passed in 1926. The settlement between the parties in
1953 did not altogether renovate the old decree. On failure to observe the terms of the
agreement, the original decree was to be executed.210
Period of limitation.—
The period prescribed by section 48(1) of the Code was a period of limitation and was
controlled by the provisions of Limitation Act, 1908 including section 14(2).211
Fresh application.—
The application mentioned in section 48 is a fresh substantive application and not an

application to revive or continue a substantive application already pending on the file of
the Court. Thus, subsequent application to continue previous application is not a fresh
application. An application made after 12 years from the date of the decree would be a
fresh application within the meaning of section 48 if the previous application was
finally disposed of. It would also be a fresh application if it asked for a relief against
parties or properties different from those proceeded against the previous execution
petition or asked for a relief substantially different from that asked for in the earlier
petition.212
Fraud under Section 48(2) whether effective under section 18 of Limitation

Act.—
In the cause of fraud of the judgment-debtor, a provision is made in section 48(2) for
enlarging the 12 years' period prescribed under section 48. For defeating the plea of the
bar of limitation under the Limitation Act, in the case of fraud of the judgment-debtor,
provision is found in section 18 of Limitation Act. If the particular case of fraud set up
and proved is not covered by those words, there is no protection against the same in
the Limitation Act. Read in that way the two legislative provisions are neither conflicting
nor overlapping. They are capable of operating harmoniously. They deal with different
situations and circumstances.213
209 Anandilal v Ram Narain, AIR 1984 SC 1383 (1385) : (1984) 3 SCC 561 .
210 Parbati Devi v Mahadeo Prasad, AIR 1979 SC 1915 : (1979) 4 SCC 761 .
211 Lalji Raja & Sons v Hansraj Nathuram, AIR 1971 SC 974 (981) : (1971) 1 SCC 721 .
212 Pentapati China Venkauna v P Vengararaju, AIR 1964 SC 1454 (1456, 1458) : (1964) 6 SCR
251 .
213 Yeshwant v Walchand, AIR 1951 SC 16 (22) : 1950 SCR 852 : 53 Bom LR 486.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 49. Transferee
© 2020 LexisNexis
PART II Execution
Transferees and Legal Representatives
S. 49. Transferee
Every transferee of a decree shall hold the same subject to the equities (if any) which
the judgment-debtor might have enforced against the original decree-holder.
COMMENT.—
Equity of judgment-debtor.—
This section may be compared with section 132 of the Transfer of Property Act, 1882,
which is based on the same principle,214 namely, that the assignee of a claim stands in
no better position than the assignor as regards equities existing between the assignor
and his debtor at the time of the assignment.215
This section applies to all decrees including mortgage-decrees.216 The judgment-

debtor is entitled to claim under this section only those equities which he had against
the original decree-holder, and not against his transferee and accordingly a payment
made by him to a transferee from the decree-holder whose transfer was invalid cannot
be set up against a transferee who has obtained a valid transfer.217 Where pending a
suit by the judgment-debtor is entitled to apply for stay of execution of the decree
under O XXI rule 29, even though the assignee had no notice of the claim and is not a
party to the suit.218 But it has been held by the High Court of Rajasthan that the mere
pendency of the suit is not an equity within this section and the assignee does not take
subject to it.219
ILLUSTRATIONS
(1) A holds a decree against B for Rs. 5,000. B holds a decree against A for Rs. 3,000. A
transfers his decree to C. C cannot execute the decree against B for more than Rs.
2,000.220
(2) A obtains a decree against B for Rs. 5,000. B then sues A to recover Rs. 2,000.
Pending B's suit, C obtains a transfer of decree with notice of B's suit. A decree is then
passed for B in his suit against A. C applies for execution against B of the whole decree
for Rs. 5,000. He is not entitled to execute the decree for more than Rs. 3,000 as the
transfer was taken with221 notice of B's suit.
214 Suryanarayana v Nageshwara Rao, AIR 1945 Mad 381 (DB) : (1946) Mad 30.
215 (1910) 7 Ind. Cases 55 DB. see also O XXI rule 18, Code of Civil Procedure.
216 Sheo Prasad v Lall, AIR 1925 Pat 449.
217 Harjang Singh v Gowardhandas, AIR 1952 Punj 183 : (1951) Punj 475.
218 Kottayam Oriental Bank Ltd v Moosa Rowther, AIR 1959 Raj 402 : 1958 KLT 1012 .
219 Anoopchand v Hirachand, AIR 1962 Raj 223 .
220 Karim Ali v Lakhikant, (1868) 1 Beng LR 23 (FB).
221 Kristo Ramani v Kedarnath, (1889) 16 Cal 619 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 50. Legal representative
© 2020 LexisNexis
PART II Execution
Transferees and Legal Representatives
S. 50. Legal representative
(1) Where a judgment-debtor dies before the decree has been fully satisfied, the
holder of the decree may apply to the Court which passed it to execute the
same against the legal representative of the deceased.
(2) Where the decree is executed against such legal representative, he shall be
liable only to the extent of the property of the deceased which has come to his
hands and has not been duly disposed of; and, for the purpose of ascertaining
such liability, the Court executing the decree may, of its own motion or on the
application of the decree-holder, compel such legal representative to produce
such accounts as it thinks fit.
COMMENT.—
This section and sections 52 and 53 may be usefully read together. Section 52
contemplates cases where the debtor dies before the decree and the decree itself has
been passed against the legal representative. This will also include cases where the
debtor dies before suit and the suit itself is instituted against the legal representative.
This section provides for the execution of decrees against the legal representatives of
a judgment-debtor who dies before the decree has been fully satisfied. Normally, it
applies to cases where the judgment-debtor dies after the decree. But the section is
wide enough to include the case where the judgment-debtor dies before decree,
provided the decree is valid in spite of his death; e.g., under O XXII rule 6 where death
occurs after hearing but before judgment, or in the case of Privy Council appeals.
Section 53 extends the scope of sections 50 and 52 to ancestral property in the hands
of a descendant which is liable under the Hindu Law for payment of debts of the
ancestor.222
It has been held by the Supreme Court that where there are several legal
representatives and only some of them are brought on record, the sale will be binding
on all of them.223
Section 50 is not exhaustive of the circumstances in which a decree can be executed

against the legal representative.224
Extent of liability of legal representative.—
Section 50 enables a decree-holder to execute his decree against the legal

representative of a deceased judgment-debtor, whether he is impleaded before decree
or after decree. In either case, it extends only to the extent of the property of the
deceased which has come to his hands and has not been duly disposed of.225
It is well settled that legal representatives of the Judgment debtor are liable for the
debts of their predecessors to the extent of the estate acquired by the legal
representative from their predecessors.226
Where during the pendency of execution proceedings against a director of a company

the director dies, the proceedings can be continued against his legal representative
whose liability would be limited to the value of deceased's estate in his hand.227
It is for the decree-holder to prove in the instance, that some assets belonging to the
estate of the deceased came into the hands of the legal representative.228 Then it is
for the latter to satisfy the Court as to the extent of the assets received and account for
them.229 He will be bound to account for all sorts of property that he got, such as,
money, movables, immovables accounts, papers, etc.230
Legal Representative.—
The term "legal representative" has already been explained under section 2(11) of the
Code. It has been held that where a judgment-debtor dies and a stranger takes
possession of his property the decree may be executed against the stranger, for he is a
legal representative within the meaning of this section.231 Same is the case with a
universal donee.232 (See also O XXII rule 3, Code of Civil Procedure).
Before the decree has been fully satisfied.—
The word "satisfied" was substituted in this Code for the word "executed" in the
previous Code. There existed a conflict as to the meaning of word "executed". The
effect of the alteration in the language is to supersede certain decisions in so far as
they hold that after attachment it was not necessary to bring the legal representatives
on the record; for a decree cannot be said to be fully satisfied merely because the
property was attached. Under the present section, if the judgment-debtor dies after
attachment, his legal representatives may be brought on the record. At the same time,
it has been held that omission to bring the legal representatives on the record does not
render the sale void but amounts merely to an irregularity233 and the sale will not be
set aside unless substantial injury is proved. This view has also been rejected by
almost all the High Courts and the well settled law now is that a sale held without being
on record the legal representatives of a deceased judgment-debtor is a nullity.234
Before the decree has been passed.—
A decree against a person who has died pending the suit without his legal
representatives being brought on the record is a nullity and cannot be executed against
the legal representatives.
Execution proceedings to continue even after judgment-debtor's death.—

Where the execution proceedings have once commenced against the judgment-debtor
that can be continued even after his death by instituting the legal representatives of
that judgment-debtor. A fresh application for that purpose is not necessary. If a notice
about the execution has been served upon the legal representatives, the order
substituting their names can be made ex parte.
Death of a party during the pendency of appeal.—
A suit for malicious prosecution abates on the death of the defendant but once a
decree is passed the heirs and the legal representatives may be processed again in
view of section 50.235
Effect of the death of legal representative.—
If the legal representative of a judgment-debtor against whom execution has been

taken out under this section dies before the decree has been fully executed, the decree-
holder may execute the decree against the legal representatives of the deceased to the
extent of the assets of the original judgment-debtor that may have come into his
hands.
Decree for injunction.—
An injunction does not run with the land and therefore cannot be enforced under the
provisions of this section against a purchaser of the property from the defendant or
against a person who is not his legal representative. However, under this section, a
decree for injunction against the judgment-debtor can be executed against his legal
representatives. Where the properties of the judgment-debtor are purchased during the
pendency of proceedings in execution of a decree for injunction, purchaser will be
bound by the doctrine of lis pendens and the decree can consequently be enforced
against him.
222 Bhim Singh v Sher Singh, AIR 1948 PC 1 ; see also Rajappa v Andalammal, AIR 1957 Mad
236 .
223 Mohd. Sulaiman v Mohd Ismail, AIR 1966 SC 792 : (1966) 1 SCR 937 : (1967) 1 MLJ (SC) 10.
224 L Sreenivaslu v D Muniratnan, AIR 1978 AP 173 .
225 Ram Singh v Khirodhan Devi, AIR 1968 Pat 151 . see also Gita Rani v Administrator-General
of WB, AIR 1962 Cal 513 and Chandravati Bai v Chaganlal, AIR 1960 AP 308 (DB) : (1960) 2 AP
449 .
226 Madhukar Sagun Karpe v Institute of Public Assistance, AIR 1998 Bom. 201 .
227 Official Liquidator v Parthasarathi, AIR 1983 SC 188 (194) : (1983) 1 SCC 538 : 1983 Tax LR
2401 : (1983) 53 CC 163 .
228 Mir Mohiuddin v Sayeedunnissa, AIR 1961 AP 335 (FB).
229 Ibid.
230 Chandravati Bai v Chaganlal, AIR 1962 AP 308 .
231 Lal Behari Prasad v Bindesari Misra, AIR 1934 All 249 .
232 Dayanandan v Venugopala, AIR 1964 Mad 78 .
233 See O XXI rule 90, Code of Civil Procedure.
234 Kelappa v Krishna, AIR 1962 Ker 14 . see also Shanti Devi v Khandu Baladevi, AIR 1961 Cal
336 (FB); Kanchanamalal v Shahji, AIR 1936 Mad 205 (FB) : (1936) 59 Mad 461; Mubarak Begum
v Sushil Kumar, AIR 1967 Raj 1549 .
235 Zargham Abbas v Hari Chand etc, AIR 1980 All 259 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 51. Powers of Court to
enforce execution
© 2020 LexisNexis
PART II Execution
Procedure in Execution
S. 51. Powers of Court to enforce execution
Subject to such conditions and limitations as may be prescribed, the Court may, on
the application of the decree-holder, order execution of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by sale without attachment of any property;
(c) by arrest and detention in prison 236[for such period not exceeding the period
specified in Section 58, where arrest and detention is permissible under that
section];
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require:
237 [Provided that, where the decree is for the payment of money, execution by
detention in prison shall not be ordered unless, after giving the judgment-
debtor an opportunity of showing cause why he should not be committed to
prison, the Court, for reasons recorded in writing, is satisfied—
(a) that the judgment-debtor, with the object or effect of obstructing or delaying
the execution of the decree,—
(i) is likely to abscond, or leave the local limits of the jurisdiction of the
Court, or
(ii) has, after the institution of the suit in which the decree was passed,
dishonestly transferred, concealed, or removed any part of his property,
or committed any other act of bad faith in relation to his property, or
(b) that the judgment-debtor has, or has had since the date of the decree, the
means to pay the amount of the decree or some substantial part thereof and
refuses or neglects or has refused or neglected to pay the same, or
(c) that the decree is for a sum for which the judgment-debtor was bound in a
fiduciary capacity to account.
Explanation. —In the calculation of the means of the judgment-debtor for the purposes
of clause (b), there shall be left out of account any property which, by or under any
law or custom having the force of law for the time being in force, is exempt from
attachment in execution of the decree.]
STATE AMENDMENT
UP Amendment.—After clause. (b) the following clause. (bb) was added by UP Act 24
of 1954:—
"(bb) by transfer other than sale, by attachment or without attachment of any property".
Calcutta.—In clause (b) omit the words "or by sale without attachment" between the
words "sale" and "of any".
In the proviso omit the words "for reasons recorded in writing" after the words "the
Court" and before the words "is satisfied".
Add the proviso—
"Provided also that the Court of Small Causes of Calcutta shall have no power to order
execution of a decree by attachment and sale of immovable property or by appointing a
receiver in respect of such property." vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
This section defines the jurisdiction and the power of the Court in the execution of the
decree; the manner of executing the decree is laid down by the rules in the
Schedule.238 It enumerates in general terms the various modes,239 in which the Court
may order the execution of a decree accordingly as the nature of the relief granted may
require. In the Notes on Clauses, the Select Committee observed as follows: "This
clause states generally the powers of the Court in regard to execution leaving the
details to be determined by rules. It will be observed that the power to direct immediate
execution is no longer restricted to one class of suits but that it is now general in
terms. Any limitation that may be found necessary will be imposed by rules". The
section accordingly is made to operate "subject to such conditions and limitations as
may be prescribed".
Where the executing court has exceeded its jurisdiction in directing promotion of the
respondent from a specific date which is not a part of the decree itself, the order of
executing Court would be liable to be set aside.240
It has been held by a full Bench of the Allahabad High Court,241 that the words "subject
to such conditions and limitations as may be prescribed" should not be construed as
meaning that the powers of the executing Court under this section are not subject to
other conditions and limitations enacted in other sections of the Code. Thus, for
instance, a Court cannot attach property which is not attachable under section 60 of
the Code.
A decree passed by Civil Court must be passed in terms of provisions contained in the
Code.242
The proviso to section 51 has made the enquiry into the means of the judgment debtor
mandatory prior to the issue of arrest warrant to detain him in prison in the case of
execution of money decree. So even if the judgment debtor does not appear in
response to notice under O XXI rule 37 and ex-parte order, without holding satisfaction
that the judgment debtor has willfully neglected to pay despite having means to pay, is
passed that will be against the spirit of the section 51 and such order is liable to be set
aside.243
Liability of the Surety.—
The surety who guaranteed the return of the articles has the obligation in a fiduciary
capacity and hence he is liable to be proceeded against clause (c) of the proviso to
section 51 of the Code of Civil Procedure.
Modes of Execution.—
There are several modes of execution and it is for decree-holder to choose the
particular mode of his own choice. This option of the decree-holder is however subject
to exercise by Court of a judicial discretion vested in it by O XXI rule 21.244 The Court
has no authority, except under the circumstances mentioned in the proviso, to refuse to
order execution of the decree in the mode asked for on the round that the decree-
holder should, in the first instance proceed by another mode.245 Thus, for example a
decree-holder is not bound to proceed against the assets of the firm or of partner.
Under section 51 of the Code, the Court may, on the application of the decree-holder,
order execution of the decree in any of the following five modes:
(1) by delivery of any property specifically decreed;
(2) by attachment and sale, or by sale without attachment of any property;
In the execution of an eviction decree the Court issued a notice to the tenant to remove
his machinery lying in the premises. The tenant did not comply with the notice. Then
the Court removed the machinery by an auction sale. The machinery remained in the
Court for four years. The tenant subsequently made an application for possession of
machinery. She had no right whatsoever to the machinery sold to the auction purchaser
in accordance with law. Her plea that the machinery was sold at gross undervalue
could not be entertained.246
(3) by arrest and detention in prison for such period not exceeding the period
specified in section 58;
After the date of decree, the judgment-debtor had no means to pay. There was absence
of mala fides and dishonesty. The arrest and detention would be violative of Article 11
of International Covenant on Civil and Political Rights and Article 21 of the Constitution
of India.247
The purpose of sending a person to jail to ensure compliance with a financial liability
must be understood as being a manner, procedure or device for the satisfaction of the
liability. Arrest and detention are only to coerce compliance. The liability to pay would
stand discharged only by actual payment of the amount due and remaining in jail would
not discharge the liability to pay.248
(4) by appointing a receiver; or
(5) in such other manner as the nature of the relief granted may require.
Thus section 51 in general enumerates the various modes in which the Court may order
the execution of a decree. It is for decree-holder to decide in which of the several
modes mentioned in the section he will execute the decree and the Court has generally
no authority to refuse to order execution of the decree in the mode asked for.
Reference may also be made to rules 30 to 36 of O XXI which lay down the Modes of
Execution or various types of decrees.
Simultaneous execution.—
As a matter of fact a decree may be executed simultaneously against both the person
and the property of the judgment debtor (under provisions of O XXI, rule 30), though the
Court has under O XXI, rule 21, a judicial discretion to refuse to order such
simultaneous execution in proper cases.249
It is accordingly the duty of the Court executing the decree to give assistance to the
decree-holder for realising the decretal amount in as a short time as possible.
Section 51 lays down the following five modes of execution in its clause (a) to (e)
which are:—
(1) Clause (a)—See O XXI rule 31—mode of execution of a decree for specified movable
property and See O XXI rule 35 for specific immovable property.
(2) Clause (b)—Where the decree itself directs the sale of properties, as for instance, in
case of mortgage decrees, it is clear that no attachment is necessary for bringing the
properties to sale in execution of that decree. But whether an attachment is an
essential prerequisite for the validity of sale of property in execution of money-decree.
The answer has been provided in the section itself which makes it clear that a sale
without attachment is not without jurisdiction,250 although in view of O XXI, rule 30 and
rule 64 it may amount to an irregularity.
Power of the court regarding attachment and Sale—
Clause b of section 51 provides that the Court may order execution of decree by
attachment or sale or by sale without attachment of the property, therefore sale in
execution of decree without attachment is not impeccable.251
(3) Clause (c)—Under O XXI rule 30, a decree for the payment of money including a
decree for the payment of money as an alternative to some other relief, may be
executed by the direction in civil prison of the judgment-debtor. Similarly, a decree for
specific movable property may be executed by the arrest and detention of judgment-
debtor under O XXI rule 31(1).
But there are some exceptions to this rule. Thus, a decree for money cannot be
executed by arrest and detention where the judgment-debtor is a woman (section 59)
or a minor or legal representative of a deceased person (sections 50 and 52).
This clause was amended by the Amending Act of 1976 in order to make the provisions
of this section harmonious with the provisions of section 58.
It has been held by the Madras High Court in Kultallingam Pillai v Chinnakinnu Pillai, AIR
1952 Mad 18 that a Court must record its reasons in writing regarding its being
satisfied under section 51, Civil Procedure Code, that the judgment-debtor had
rendered himself liable to be arrested and sent to civil jail on any of the grounds
mentioned therein before directing his arrests.
Mere non-payment to the decree-holder when the judgment-debtor came into

possession of means subsequent to the date of the decree would not always be
sufficient to hold that the judgment-debtor refused or neglected to pay the decree-
holder in the absence of anything to show that the decree-holder had made a request
for payment.252
(4) Clause (d)—Receiver in execution proceeding.—Execution by the appointment of a

receiver is known as equitable execution253 and is entirely within the discretion of the
Court executing the decree.254 It was also held by the Patna High Court in the
aforesaid case that this mode of execution is legal and statutory though appointment
of a receiver is to be on equitable basis.255
The above-mentioned remedy cannot be resorted to in order to circumvent a specific

legal bar. Thus the Supreme Court in UOI v Hira Devi, AIR 1952 SC 227 : 1952 SCR 765 :
(1952) 2 MLJ 265 : 90 Cal LJ 95 has held that the provident fund standing to the credit
of a retired Government servant cannot be attached in view of provisions of section
2(a) of the Provident Fund Act, 1925, nor a receiver appointed for the same.
Termination of the office of receivership.—The law on the point of the termination of the
office of receivership may briefly be stated thus: (1) If a receiver is appointed in a suit
until judgment, the appointment is brought to an end by the judgment in the action, (2)
If a receiver is appointed in a suit, without his tenure being expressly defined, he will
continue to be receiver till he is discharged, (3) But after the final disposal of the suit as
between the parties to the litigation the receiver's functions are terminated, he would
still be answerable to the Court as its officer till he is finally discharged, (4) Court has
ample power to continue the receiver even after the final decree if the exigencies of the
case so require.256
See also O XL rule 1.
(5) Clause (e)—Clause (e) is a residuary clause and would come into play only when the
decree cannot be executed in any of the modes provided in clauses (a) to (d).257
Other Modes of Execution.—
Other modes of execution than those specified in clauses (a) to (d) of section 51, are
laid down in the following section/orders of the Code of Civil Procedure. They are as
follows:—
For partition of estate or separation of share of such estate to be made by the Collector
—See section 54; for an award of compensation to the decree-holder for disobedience
of decree to deliver specific movable property—See O XXI rule 31(2); For enforcement
of a decree for specific performance; for restitution of conjugal rights—See O XXI rule
33; For execution of decree for execution of a document or endorsement of a
negotiable instrument—See O XXI rule 34; For Attachment of decrees—See O XXI rule
53; and for delivery of attached coins or currency notes to the party entitled under the
decree—See O XXI rule 56.
Reference may be made to Jolly George Varghase v Bank of Cochin, AIR 1980 SC 470 :
(1980) 2 SCC 360 : (1980) 2 SCR 913 : 1980 KLT 375 wherein it was held by the
Supreme Court that the words "or has had since the date of the decree, the means to
pay the amount of the decree" occurring in section 51, Code of Civil Procedure may
imply, if superficially read, that if at any time after the passing of an old decree the
judgment-debtor had come by some resources and had not discharged the decree, he
could be detained in prison even though at that later point of time he was found to be
penniless. This is not a sound position apart from being inhuman going by the
standards of Article 11 of the International Convenant on Civil and Political Rights and
Article 21 of the Constitution.
On restoration of a suit which was dismissed for default revival of temporary injunction
is automatic unless the Court expressly or impliedly excludes its operation. The decree
holder therefore, is prevented from executing decree during the period when the suit
remained pending on restoration and ultimately dismissed on merits. He is entitled to
exclude the period when the suit remained pending in computing period of limitation
for execution of decree.258
Order for attachment of property, unauthorised.—
An amendment of order of attachment of property was held to be unauthorised and

liable to be ignored where it was to limit the attachment period for six months, after
twenty years without notice to the plaintiff decree holder on the basis of some private
clarification.259
238 British Transport Co v Suraj Bhan, AIR 1963 All 313 .
239 Bikram Kishore v Tafazzul Hussain, AIR 1942 Cal 587 (DB).
240 Punjab SEBoard v Ramesh Kumar Gupta, (2009) 16 SCC 307 (308).
241 Ram Lochan v Mahadeo Prasad Singh, AIR 1970 All 544 (FB) : 1970 All LJ 687.
242 Swamy Atmananda v Swami Bodhananda, AIR 2005 SC 2227 .
243 Kannejanti Anjaneyulu v State of India, 1997 (2) CCC 374 (AP) : 1997 (2) CCC 684 .
244 Uma Kanta Banerjee v Renwick and Co, AIR 1953 Cal 717 (DB) : 58 CWN 683.
245 N Ranganayakulu v J Narasinha Rao, AIR 1971 AP 58 ; see also PV Ittey v Mani, AIR 1964 Ker
134 .
246 Kamlabai v Bhikchand, AIR 1982 SC 709 : (1982) 1 SCC 317 .
247 Jolly George Verghese v Bank of Cochin, AIR 1980 SC 470 (473, 475) : (1980) 2 SCC 360 :
(1980) 2 SCR 913 .
248 Subrata Roy Sahara v UOI, AIR 2014 SC 3241 .
249 AK Subramania Chettiar v Poonuswami Chettiar, AIR 1957 Mad 777 ; see also AIR 1953 Cal
717 (DB).
250 Pedda Edla Ram Kishtiah v Manne Pechiah, AIR 1967 AP 148 (FB). Attachment of property
not an essential party of Court sale nor is a necessary step in the process of transfer. But a sale
of immovable property under Travancore Revenue Recovery Act for arrears of Revenue without
attachment is without jurisdiction; see Eravi Pillai v Maluh Mohammad, AIR 1953 Tra Co 494 (FB);
see also 1970 Ker LT 949 .
251 Krishna Mukh Lal Bhagwandas Shroff v Bhagwan Kashidas, AIR 1974 Guj 1 .
252 Harpal Singh v Lala Hira Lal, AIR 1955 All 402 .
253 Saileswar Lakhaiyar v Kanti Kumar Sinha, AIR 1965 Pat 238 .
254 1970 ALJ 768 .
255 AIR 1965 Pat 238 , supra.
256 Hiralal v Loonkarau, AIR 1962 SC 21 (26) : (1962) 1 SCR 868 : (1961) 2 All 389 .
257 Murari Lal v Navalkishore, AIR 1961 Punj 547 .
258 Vareed Jacob v Sosamma Geevarghese, AIR 2004 SC 3992 (3998).
259 CS Mani v B Chinnasamy Naidu, (2010) 9 SCC 513 (523).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 52. Enforcement of decree
against legal representative
© 2020 LexisNexis
PART II Execution
S. 52. Enforcement of decree against legal representative
(1) Where a decree is passed against a party as the legal representative of a

deceased person, and the decree is for the payment of money out of the
property of the deceased, it may be executed by the attachment and sale of
any such property.
(2) Where no such property remains in the possession of the judgment-debtor and
he fails to satisfy the Court that he has duly applied such property of the
deceased as is proved to have come into his possession, the decree may be
executed against the judgment-debtor to the extent of the property in respect
of which he has failed so to satisfy the Court in the same manner as if the
decree had been against him personally.
COMMENT.—
Clause (1) of this section gives a creditor a right to proceed against the property of the
deceased in the hands of a legal representative whereas clause (2) gives the creditor
the right to proceed personally against the legal representative if the latter cannot
account for it.260 Liability of the legal representative under this section and under
section 50 are the same.261 However section 50 provides for the case where a decree
has been passed against a party and the party dies before the decree is fully satisfied,
and the decree is sought to be executed against his legal representative, whereas
section 52 provides for a case where a decree is passed against the legal
representatives of a deceased person.
If the legal representatives are found at any state of execution to be in possession of

assets of the deceased, in addition to those found at the stage of preliminary decree,
the executing Court can proceed against the additional assets.262
The section will apply in the following two cases:
(i) Where a decree has been passed against the defendant as legal representative
of a deceased person, and
(ii) Such decree is for the payment of money out of the property of the deceased, in
his hands.
This section is mandatory and not merely directory. There must be a decree against the
legal representative as such. Where though the legal representative was brought on
record on the death of the defendant, the decree was passed against the deceased
defendant, the decree cannot be executed against the legal representative. The proper
remedy of the decree-holder would be to have the decree amended.263
Under Clause (2) of this section, a decree may be executed against the legal
representative as it had been passed against him when three conditions are satisfied:—
(i) the legal representative must have received some property of the deceased;
(ii) he must no longer be in possession of it and
(iii) the Court must be satisfied that he has failed to duly apply the property to
discharge the debt of the deceased.
There is no other fetter on the decree-holder.264 This clause does not apply so long as
there are sufficient assets to meet the decree.
It has been held by the Supreme Court that the decree against a legal representative
under this section should direct the defendant to pay the decree debt out of the assets
of the deceased in his hands.265 Thus, where a suit is instituted personally against two
sons for realisation of the deceased father's debt and the widow is not impleaded as a
party, decree declaring sons' liability to the extent of the assets of deceased in their
hands cannot be repudiated by the sons of their liability to be proceeded against
shares in ancestral property and the decree cannot be enforced against widow's
property.266
Legal representative not impleaded, but estate represented.—
On account of a bona fide error, the plaintiff instituted a suit against a person who is
not representing the estate of a deceased person, against whom the plaintiff has a
claim either at all or even partially. In the absence of fraud or collusion or other ground
which taint the decree, a decree passed against the persons impleaded as heirs binds
the estate. Even though other persons interested in the estate are not brought on the
record. This principle is a law of procedure. It regulates all matters going to the remedy
and applies to all parties irrespective of their personal law.267 But the omission to
implead the legal representatives must be due to a bona fide error on the part of the
plaintiff.268
Decree against wrong person.—
Where the suit was instituted against some person/s who are not representating the
estate of the deceased in absence of fraud or collusion, decree against them would
bind the entire estate of the deceased.269
When Judgment Debtor left no property.—
Where the son had left behind, no movable or immovable property and this was the
contention raised by the legal representative i.e. the mother and the appellant bank had
full knowledge of the said plea and the said plea had remained uncontroverted. It was
held by the Court that it would not be proper to grant any decree in favour of the
appellant bank leaving the respondent to re-agitate the matter in execution
proceedings.270
260 (1938) 1 MLJ 867 .

261 Ram Singh v Khirodhan Devi, AIR 1963 Pat 151 ; see also Gita Rani v Administrator-General of
WB, AIR 1962 Cal 513 (DB) and Chandra Wati Bai v Chaganlal, AIR 1962 AP 308 (DB).
262 Mohinuddin Ali Khan v Sayeedunnissa Begum, AIR 1961 AP 335 (FB).
263 Vasudivan v VPillai, AIR 1963 Ker 263 .
264 Subrayanarayana v Rajya Lakshmi Devi Amma, (1950) 1 MLJ 192 .
265 Panna Lal v Naraini, AIR 1952 SC 170 : 1952 SCR 544 : 1952 SCJ 211 .
266 (1968) 2 MLJ 66 .
267 Mohd. Sulaiman v Mohd Ismail, AIR 1966 SC 792 (796) : (1966) 1 SCR 937 ; Dayaram v
Shyam Sundari, AIR 1965 SC 1049 (relied on).
268 M Metilda v Kunjiram, AIR 1969 Ker 149 .
269 Khaja Begum v Gulam, AIR 1976 AP 65 .
270 Oriental Bank of Commerce Gwalior v Rajrani, AIR 2005 MP 49 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 53. Liability of ancestral
property
© 2020 LexisNexis
PART II Execution
S. 53. Liability of ancestral property
For the purposes of Section 50 and Section 52, property in the hands of a son or other
descendant which is liable under Hindu law for the payment of the debt of a deceased
ancestor, in respect of which a decree has been passed, shall be deemed to be
property of the deceased which has come to the hands of the son or other descendant
as his legal representative.
COMMENT.—
The provision under section 53 gives effect to the recognised rule of Hindu law that the
members of a joint family are liable for the payment, out of the joint family property, of
any debt incurred by their father and decreed against him before his death. Such debt
should not be tainted with immorality. It makes no difference whether the decree is a
money decree or a mortgage decree.271 This section is an explanation to sections 50
and 52. The latter section provides for the remedies of a creditor against the properties
of his deceased debtor in the hands of his legal representative. This section explains
the meaning of the words "property of the deceased". It also extends the meaning of
the term "legal representative" as defined in section 2(11) by expressly making the son
or descendant of a Hindu, his legal representative in respect of the joint family property
in his hands which is liable under Hindu Law, for the satisfaction of the debt of the
deceased ancestor.272 Reading these sections together it is now clear that ancestral
property in the hands of a son or other descendant can be preceded against in
execution as assets of the deceased in the hands of such descendant.273 The
descendant can, in such proceedings, show that in fact no pious obligation exists in
view of the illegality or immorality or the non-existence of the debt.274
This section being only a rule of procedure cannot create or take away any substantive
right. It is only when the liability of the sons to pay the debts of their father in certain
circumstances exists under Hindu Law, is the operation of section attracted and not
otherwise.275
Under the Hindu law, the son, meaning thereby, a male descendant within three
degrees, is under a pious obligation to discharge the debts of his father which are
neither illegal nor immoral. They may not be for the purposes binding on the family.
They have to be discharged out of his (son's) share in the joint family properties. Being
a substantive obligation, it is not destroyed by a partition taking place subsequent to
the contracting of the debts. The Supreme Court has now reaffirmed that where the
father dies after attachment of the ancestral property, the proceeding in execution can
be continued against the sons. Having regard to the provisions of section 53 a separate
suit against the son is barred by section 47 of the Code.276
Liability of ancestral property in execution proceedings.—
The liability of ancestral property in execution proceedings can be considered under

the following four heads.277
(1) Where a money decree has been passed against the father and the father dies
before issue of execution.
(2) Where a money decree has been passed against the father and the father dies
after attachment but before sale of ancestral property.
(3) Where a mortgage decree has been passed against the father and the father
dies before sale of the mortgaged property.
(4) Where a decree has been passed against the sons in respect of their father, for
payment of the debt out of the ancestral property.
The four heads mentioned above refer to decree for the debt of a deceased ancestor,
but the section is not limited to such decrees and includes all decrees against a
deceased ancestor.
Under section 53 of Code of Civil Procedure the decree can be executed against
theancestral coparcenary property.278
271 Faqir Chand v Harnam Kaur, AIR 1967 SC 727 (730) : (1967) 1 SCR 68 .
272 AIR 1952 SC 170 (178) : 1952 SCR 544 : (1952) Punj 254 : (1952) 2 MLJ 83 .
273 AIR 1938 PC 7 (8).
274 Ibid.
275 AIR 1952 SC 170 (173) : 1952 SCR 544 : (1952) Punj 254 : (1952) 2 MLJ 83 .
276 Jakati v Barker, AIR 1959 SC 282 ; see also Rao Bhim Singh v Sher Singh, AIR 1948 PC 11 :
52 CWN 109 : 74 IA 247.
277 For details under these heads reference may be made to Mulla on Code of Civil Procedure,
(1972) Students Edn, pp 197-198.
278 AKN Murthy v B Gangaiah, AIR 2006 AP 244 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 54. Partition of estate or
separation of share
© 2020 LexisNexis
PART II Execution
S. 54. Partition of estate or separation of share
Where the decree is for the partition of an undivided estate assessed to the payment
of revenue to the Government, or for the separate possession of a share of such an
estate, the partition of the estate or the separation of the share shall be made by the
Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in
accordance with the law (if any) for the time being in force relating to the partition, or
the separate possession of shares, of such estates.
Karnataka.—For Section 54, substitute the following section:—
"Section 54. Partition of estate or separation of share.—Where the decree is for the
partition of an undivided estate assessed to the payment of revenue to the Government
or for the separate possession of a share of such an estate, the partition of the estate
or the separation of the share of such an estate shall be made by the Court in
accordance with law if any, for the time being in force relating to the partition or the
separate possession of shares and if necessary on the report of a revenue officer, not
below the rank of Tahsildar or such other person as the Court may appoint as
Commissioner in that behalf [Code of Civil Procedure Karnataka Amendment Act, 1998
(Act 36 of 1998), Section 2]
COMMENT.—
This section deals with a case in which a Civil Court can pass a decree but cannot itself
execute it. Execution has to be effected by the Collector.279 The Civil Courts has no
power to do this.280
The reason or the provision in this section restricting the ordinary powers of the Civil
Courts to execute their own decrees is two-fold; firstly, the Revenue Authorities are
more conversant, and better qualified to deal with such matters than the Civil Court281
and secondly, the interests of the Government with regard to the revenue assessed on
the assets would be better safe-guarded by the Collector executing the decree than by
the Court.282
This section applies only to a case where the decree contemplates the partition of the
whole of the estate paying revenue to Government. It does not apply where the decree
is for separate possession of a share of a portion of an undivided estate.283
Nature of.—
Section 54 of the Code is not an execution proceeding, it in effect and substance
confers a duty upon the Court. This section must be read in the context of O XXVI rule
13 Code of Civil Procedure and/or section 51, O XXI rule 11 thereof.284
If a decree is for the partition of an undivided estate assessed to the payment of

revenue to Government, the section requires that the partition should be carried by the
Collector. In a case decided by a Full Bench of Calcutta High Court there was a dictum
to the effect that the section only applies to a decree which directs distribution of
revenue as well as a division of land.285 But the observation has been dissented from
in later decisions and is no longer a good law.286
Civil Court cannot sit in judgment over partition made by the Collector287 nor can the
Collector entertain objections overruled by Civil Court.288 In proceedings before a
collector the transferees during pendency of partition suit, can appear and claim
equitable partition even though they were not parties in the civil Court suit. The
collector in suitable cases can make equitable partition. In doing so he neither violates
the decree nor transgresses any law.289
Partition & separation of Share.—
The "partition" is a redistribution or adjustment of pre-existing rights, among co-

owners/coparceners resulting in a division of land or other properties jointly held by
them into different lots or portions and delivery thereof to the respective allottees. A
partition of property can be only among those having a share or interest in it.
"Separation of Share" is a species of "partition". When all co-owners, get separated it is
a partition. The separation of share(s) refers to a division where only one or only a few
among several co-owners/coparceners get separated.290
Application to send documents to Collector not an application for execution.—
An application to the court which passed the decree to send the papers to the collector
can be considered only as reminder and it cannot be said to be an application for
execution.291
For sending such reminder no period of limitation is prescribed. In sending the papers
to the collector, the court is not performing any judicial functions, nor it is required to
pass any judicial order.292
Effect of decree transferred to Collector.—
When decree is transferred to collector after effecting the partition, the civil Court
becomes functus officio and will have no jurisdiction to act in any manner. Thereafter
the Court will have no jurisdiction to pass the final decree or to deliver the possession
according to the decree.293
279 1964 Mys LJ 400 (DB).
280 Keshao v Waman, AIR 1970 Bom 26 .
281 AIR 1918 Bom 206 (DB).
282 (1888) 15 Cal 198 (DB).
283 K V Srinivasathachiar v N Srinivasathachiar, AIR 1933 Mad 259 .
284 Bikoba D Gaikwad v Hirabai M Ghorgare, (2008) 8 SCC 198 (202).
285 Jogadeshwari v Kailash Chandra, (1897) 24 Cal 725 (FB).
286 Abdul Razak v Shreenath Ghosh, AIR 1931 Cal 93 : 58 Cal 122; see also Sewakram v Chuni
Lal, AIR 1951 Nag 359 ; and Fulchand v Vaman Rao, AIR 1951 Hyd 86 : (1951) Hyd 436.
287 Fakirappa v Goushankkan, (1968) Mys LT 491.
288 Ramchandra v Ramakrishna, AIR 1968 Mys 11 .
289 Khemchand Shankar v Vishnu Hari, AIR 1983 SC 124 (126) : (1983) 1 SCC 18 .
290 Shub Karan Bubua v Sita Saran Bubua, (2009) 9 SCC 689 (693).
291 Ramrathi Bai v Surajpal, AIR 1995 Bom 445.
292 Sanna Palaiah v Soncha Boraiah, AIR 1998 Kant 87 .
293 Bhagwan Singh v Shiv Prasad, AIR 1974 MP 12 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 55. Arrest and detention
© 2020 LexisNexis
PART II Execution
Arrest and Detention
S. 55. Arrest and detention
(1) A judgment-debtor may be arrested294 in execution of a decree at any hour

and on any day and shall, as soon as practicable, be brought before the Court,
and his detention may be in the civil prison of the district in which the Court
ordering the detention is situate, or, where such civil prison does not afford
suitable accommodation, in any other place which the 295[State Government]
may appoint for the detention of persons ordered by the Courts of such district
to be detained:
Provided, firstly, that for the purpose of making an arrest under this section, no
dwelling-house shall be entered after sunset and before sunrise:
Provided, secondly, that no outer door of a dwelling-house shall be broken open

unless such dwelling-house is in the occupancy of the judgment-debtor and he
refuses or in any way prevents access thereto, but when the officer authorised to
make the arrest has duly gained access to any dwelling-house, he may break open the
door of any room in which he has reason to believe the judgment-debtor is to be
found:
Provided, thirdly, that if the room is in the actual occupancy of a woman who is not the
judgment-debtor and who according to the customs of the country does not appear in
public, the officer authorised to make the arrest shall give notice to her that she is at
liberty to withdraw, and, after allowing a reasonable time for her to withdraw and
giving her facility for withdrawing, may enter the room for the purpose of making the
arrest:
Provided, fourthly, that, where the decree in execution of which a judgment-debtor is

arrested, is a decree for the payment of money and the judgment-debtor pays the
amount of the decree and the costs of the arrest to the officer arresting him, such
officer shall at once release him.
(2) The 296[State Government] may, by notification in the Official Gazette, declare
that any person or class of persons whose arrest might be attended with
danger or inconvenience to the public shall not be liable to arrest in execution
of a decree otherwise than in accordance with such procedure as may be
prescribed by the 52[State Government] in this behalf.
(3) Where a judgment-debtor is arrested in execution of a decree for the payment

of money and brought before the Court, the Court shall inform him that he may
apply to be declared an insolvent, and that he 297[may be discharged] if he has
not committed any act of bad faith regarding the subject of the application and
if he complies with the provisions of the law of insolvency for the time being in
force.
(4)
Where a judgment-debtor expresses his intention to apply to be declared an
insolvent and furnishes security, to the satisfaction of the Court, that he will
within one month so apply, and that he will appear, when called upon, in any
proceeding upon the application or upon the decree in execution of which he
was arrested, the Court 298[may release] him from arrest, and, if he fails so to
apply and to appear, the Court may either direct the security to be realized or
commit him to the civil prison in execution of the decree.
Calcuttta.—In clause (1) insert the words "Calcutta or" after the words "Civil prison of"
and before the words "the district in which"; and omit clauses (3) and (4), vide Cal. Gaz.
Pt. I, dated April 20, 1967.
COMMENT.—
The object of this section is to prevent vexatious forms of resistance to execution

proceedings which constantly obstruct decree-holders in the execution of their
decrees. But before a judgment-debtor can be arrested this section governs his case
and lays down certain limitations.
Thus it has been provided by this section that a judgment-debtor may be arrested in
execution of a decree at any hour of the day and on any day of the month and shall as
soon as practicable be brought before the Court subject to the following limitations:
(1) That no dwelling-house shall be entered after sunset and before sunrise.
(2) That no outer door of a dwelling house shall be broken open unless such
dwelling-house is in the occupancy of the judgment-debtor and he refuses or in
any way prevents access thereto, but when the officer authorised to make the
arrest has duly gained access to any dwelling-house, he may break open the
door of any room in which he has reason to believe that the judgment-debtor is
to be found.
(3) That if the room is in the actual occupation of a woman who is not the
judgment-debtor and who according to customs, does not appear in public the
officer authorised to make arrest shall have to give a notice to her that she is at
liberty to withdraw and allow her a reasonable opportunity to withdraw
therefrom before entering into the room for the purpose of making arrest.
(4) That if the decree is for the payment of money, no arrest shall be made if the
judgment-debtor pays the full decretal amount and the costs of the arrest to the
officer arresting him.
Exemption from arrest of certain persons.—

Clause (2) of this section is intended to cover the cases of certain persons or classes
of persons whose summary arrest might, as in the case of Railway Servants, be
attended with danger or inconvenience to the public in general. However, where a suit is
brought against such a person, the fact that he could not be arrested in execution is not
a ground for not passing a decree against him.
Court's duty after the arrest of judgment-debtor.—
Clause (3) provides that where a judgment-debtor is brought before the Court duly
arrested, it is the duty of the Court to inform him that he may apply to be declared
insolvent. This, however, is unnecessary where he has already applied in insolvency and
the said application is pending. The Court has in such cases a discretionary power not
to put the warrant in force if the judgment-debtor furnishes security for his appearance
whenever called upon to do so. When the application of a judgment-debtor to be
declared an insolvent has been dismissed and he is re-arrested, he cannot claim the
benefit of section 55(3) and (4) so long as the previous dismissal is not set aside.
When a judgment debtor is arrested in execution of a decree for the payment of money
and brought before the Court, the Court shall inform him that he may apply to be
declared an insolvent, and that he may be discharged if he has not committed any act
of bad faith regarding the subject of the application and if he complies with the
provisions of law of insolvency for the time being in force and if he expresses his
intention to apply to be declared as insolvent, he is required to furnish security. The
above situation arises only after arrest of the judgment debtor but not before that. The
judgment debtor is required to comply with the provisions of the law of insolvency and
furnish sufficient security for the decretal amount.299
Applicant to be declared an insolvent within one month.—
Clause (4)—The judgment-debtor brought under arrest must furnish a security as to—
(1) that he will apply to be declared insolvent within one month, and
(2) that he will appear whenever called upon to do so in any proceeding upon the
application or upon the decree in execution for which he was arrested.
Where a judgment-debtor fails to apply for insolvency within a period of one month of
his release, the option to commit him to prison or to realise the security lies with the
Court and not with decree-holder.300
When the judgment-debtor fails to apply or fails to appear, the Court may either direct
the security to be realised or commit the judgment-debtor to prison. But this is an
alternative remedy and not a concurrent one. It does not mean that the Court can
proceed against the surety as well as the judgment-debtor. If the Court proceeds
against the surety and the amount is recovered from him, the Court cannot proceed
against the judgment-debtor and commit him to jail in execution. If the judgment-
debtor is committed to jail the position is the same as if the surety had never come
forward.301
294 No displaced person is liable to arrest or imprisonment in execution of any decree for the
recovery of any debt: see Section 30. Displaced Persons (Debts Adjustment) Act 70 of 1951.
See also Section 29 of Army Act, 1950 and Air Force Act, 1950, Section 29 of Navy Act, 1957.
295 Subs. for "Provincial Government" by IAO, 1950.
296 Subs. for "Provincial Government" by IAO or ALO, 1950.
52 Lalji Raja & Sons v Hans Raj Nathu Ram, AIR 1971 SC 974 : (1971) 1 SCC 721 . Transfer of
decree on 15 February 1963 to Court of MB—Code made applicable to MB from 1 April 1951.
The transferee Court could execute the decree. See also AIR 1963 SC 1180 (1181). Transfer of
decree on 28 August 1950 to Court in MB to which the Code was made applicable from 1 April
1951. Held, transfer was ineffective for the purpose of execution.
297 Subs. by Code of Civil Procedure (Amendment) Act 3 of 1921, section 2, for "will be
discharged".
298 Subs. by Code of Civil Procedure (Amendment) Act 3 of 1921, section 2, for "shall release".
299 P Bhaskar Rao S/o Buchaiah v K Sreenivasa Rao, S/o Venkatasubba Rao, AIR 2013 AP 4 .
300 Satyanarain Prasad v Mahabir Prasad, AIR 1937 Pat 476 .
301 Raghubir Singh v Maharual Haque, AIR 1942 Pat 506 : (1942) 21 Pat 644; see also Makanji v
Bhukan Das, AIR 1924 Bom 428 : 48 Bom 500.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 56. Prohibition of arrest or
detention of women in execution of decree for money
© 2020 LexisNexis
PART II Execution
S. 56. Prohibition of arrest or detention of women in execution of decree for

money
Notwithstanding anything in this Part, the Court shall not order the arrest302 or
detention in the civil prison of a woman in execution of a decree for the payment of
money.
COMMENT.—
Security for costs.—
Where a decree is for the payment of money, a woman shall not be arrested in
execution of the same as per provision of this section.
But at the same time, if the plaintiff is a woman and her suit is for the payment of
money, she may be required to give security for the defendant's costs under O XXV rule
1(3).
Consumer Court bound by section 56 of the Code of Civil Procedure.—
Just like civil court the consumer forum has also to bear in mind the provisions of Code
of Civil Procedure when an application is made before it for arrest of woman in
execution of a money decree.303
302 No displaced person is liable to arrest or imprisonment in execution of any decree for the
recovery of any debt: sees. 30. Displaced Persons (Debts Adjustment) Act 70 of 1951. See also
section 29 of Army Act, 1950 and Air Force Act, 1950, section 29 of Navy Act, 1957.
303 Mary Chacko v Jancy Joseph, AIR 2005 Ker 291 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 57. Subsistence allowance
© 2020 LexisNexis
PART II Execution
S. 57. Subsistence allowance
The State Government may fix scales, graduated according to rank, race and
nationality, of monthly allowances payable for the subsistence of judgment-debtors.
Calcutta.—Substitute the words "The High Court may, subject to the approval of the
State Government" for "The State Government may". Omit the word "monthly" between
the words "of and allowances" vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
No arrest without subsistence allowance.—
A judgment-debtor shall not be arrested in execution of a decree unless and until the
decree-holder deposits into the Court, an amount fixed by the judge, sufficient for the
sake of subsistence of the judgment-debtor, from the time of his arrest until he can be
brought before the Court.
(See also O XXI rule 39).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 58. Detention and release
© 2020 LexisNexis
PART II Execution
S. 58. Detention and release
(1) Every person detained in the civil prison in execution of a decree shall be so
detained,—
(a) where the decree is for the payment of a sum of money exceeding
304[five thousand rupees], for a period not exceeding three months, and
305
[(b) where the decree is for the payment of a sum of money exceeding
two thousand rupees, but not exceeding five thousand rupees, for a
period not exceeding six weeks:]
Provided that he shall be released from such detention before the

expiration of the 306[said period of detention]—
(i) on the amount mentioned in the warrant for his detention

being paid to the officer in charge of the civil prison, or
(ii) on the decree passed against him being otherwise fully

satisfied, or
(iii) on the request of the person on whose application he has

been so detained, or
(iv) on the omission by the person, on whose application he has

been so detained, to pay subsistence allowance:
Provided also, that he shall not be released from such

detention under clause (ii) or clause (iii), without the order of
the Court.
307
[(1A) For the removal of doubts, it is hereby declared that no order for detention of
the judgment-debtor in civil prison in execution of a decree for the payment
of money shall be made, where the total amount of the decree does not
exceed 308 [two thousand rupees].]
(2) A judgment-debtor released from detention under this section shall not merely
by reason of his release be discharged from his debt, but he shall not be liable
to be re-arrested under the decree in execution of which he was detained in the
civil prison.
Calcutta.—In Section 58, sub-s. (1), substitute the words "for a period not exceeding six
months" for the words "(a) where the decree is for the payment of sum of money
exceeding fifty rupees, for a period of six months, and (b) in any other case for a period
of six weeks".
In the first proviso, substitute the words "period fixed by the court" for the words "said
period of six months or six weeks, as the case may be,". Vide Cal. Gaz. Pt. I, dated April
20, 1967.
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Modifications.—This section has made the following modifications:
(1) In clause (a) of sub-section (1) the monetary limit has been raised from one
thousand rupees to five thousand rupees.
(2) Clause (b) of sub-section (1) has been substituted by new clause. The monetary
limits have been raised from five hundred rupees and one thousand rupees to
two thousand rupees and five thousand rupees respectively.
(3) However, the period of civil imprisonment remains the same.
(4) In sub-section (1A) the monetary limit has been raised from five hundred rupees
to two thousand rupees.
The aforesaid amendments have been necessitated by the erosion in money value.

1999 stated thus:-
Section 58 of the Code provides for the detention and release of a person from civil prison
in execution of a decree. Since the time provisions of Section 58 were made, the value of
money has decreased considerably. In this view, Clause 5 seeks to amend Section 58 and it
substitutes for the words "one thousand rupees" and "five hundred rupees" the words "five
thousand rupees" and "two thousand rupees" respectively. [Clause 5].

(c) (of the repeal and savings section) stipulates that the provisions of section 58 of
the principal Code, as amended by section 5 of the Amendment Act, 1999, shall not
apply to or affect any person detained in the civil prison in execution of a decree before
the commencement of section 5 of the Amendment Act, 1999.
Revision of monetary limits.—
By this amendment, the monetary limits towards the period of detention in the civil
prison in execution of a decree have been revised. The monetary limits of decretal
amount in relation to the maximum periods of detention in civil prison have been
revised upward as follows:
Maximum period of detention Revision of monetary limit
From To
(1) Three months [Clause (a)] Above Rs. 1,000 Above Rs. 5,000
(2) Six weeks [Clause (b)] Above Rs. 500 and up to Rs. Above Rs. 2000 and up to Rs.
1000 5000
Amendment has been introduced taking into consideration the decrease in money
value.
Section 58 was amended by the Amending Act of 1976 in order to give discretion to the
Court as to the term for which a person may be detained in civil prison in execution of a
decree for the payment of money.
Further the maximum period of imprisonment has been reduced to three months where
the amount of the decree exceeds one thousand rupees and six weeks in any other
case. However, a man should not be detained in civil prison where the amount of the
decree does not exceed Rs. 500 so that the poor debtors may not be harassed.
Arrest order when can be made.—
The decree holder must prove sufficient means available with the judgment debtor to
pay the amount and also the malafide intentions of the judgment debtor. The bank
being a statutory body should act with great responsibility in realising its amount,
sending a person to the prison is not a fair means of realising the decretal amount and
the bank should pursue other modes to secure the individual interest in the immovable
property attached and sold and not to pro secute proceedings for his arrest and
detention.309
304 Subs. for 'one thousand rupees' by the Code of Civil Procedure (Amendment) Act, 1999 (46
of 1999), section 5(i)(a) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
305 Subs. for clause (b) by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
section 5(i)(b) (w.e.f. 1-7-2002). Earlier it was substituted by Act 104 of 1976, section 22(i)(b)
(w.e.f. 1-2-1977).
306 Subs. by Act 104 of 1976, section 22, for certain words (w.e.f. 1-2-1977).
308 Subs for 'five hundred rupees' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999), section 5(ii) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
309 KKarunkar Shetty v Syndicate Bank, Manipal, AIR 1990 Kant 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 59. Release on ground of
illness
© 2020 LexisNexis
PART II Execution
S. 59. Release on ground of illness
(1) At any time after a warrant for the arrest of a judgment-debtor has been issued
the Court may cancel it on the ground of his serious illness.
(2) Where a judgment-debtor has been arrested, the Court may release him if, in
its opinion, he is not in a fit state of health to be detained in the civil prison.
(3) Where a judgment-debtor has been committed to the civil prison, he may be
released therefrom—
(a) by the State Government, on the ground of the existence of any

infectious or contagious disease, or
(b) by the committing Court, or any Court to which that Court is

subordinate, on the ground of his suffering from any serious illness.
(4) A judgment-debtor released under this section may be rearrested, but the
period of his detention in the civil prison shall not in the aggregate exceed that
prescribed by Section 58.
COMMENT.—
The provisions of this section are based on humanitarian considerations and if a

judgment-debtor is suffering from serious illness, the Court would be well advised in
ordering his release so as to escape from the moral responsibility, in case anything
should happen to him on being sent to 310
Release of Judgment Debtor.—
The Court can release the judgment debtor from civil prison only on being satisfied that
the judgment debtor is suffering from serious illness.311
A summary of Sections 55-59.—
Sections 55 to 59 and rules 37 to 40 of O XXI lay down special provisions governing

arrest and detention of persons in execution of a decree and the circumstances in
which such persons may be released. These provisions may be summed as follows:
(1) A judgment-debtor may be arrested in execution of a decree at any hour and on

any day.
(2) For making such an arrest, no dwelling house can be entered into after sun set
or before sun rise.
The outer doors of a dwelling-house cannot be broken, unless the house is in

the occupancy of the judgment-debtor and he refuses, or in any way prevents
access thereto. But if the officer is already in such a house, he can break open
the door of any room in which he believes the judgment-debtor is to be found. If
a room is in the actual possession of a woman who is not the judgment-debtor
and who according to her custom does not appear in public (purda-nashin
ladies) the officer must first give her notice that she may withdraw from the
room, if she so desires. Thereafter, only after a reasonable time and after giving
her reasonable facility for withdrawing, the officer can enter the room for making
the arrest.
(3) After such arrest, he must be brought before the Court as soon as practicable
and thereafter detained in civil prison.
(4) A woman cannot be arrested or detained in civil prison in execution of a decree

for the payment of money.
(5) Detention in civil prison cannot exceed the following limits namely.—
When the decree is for payment of a sum exceeding Rs. 1000, three months and
when the decree is for payment of a sum between Rs. 500 and Rs. 1000, six
weeks.
In other words, a person cannot be detained if the total amount of the decree
does not exceed Rs. 500.
(6) If the decree is only for payment of money and the judgment-debtor pays the
sum along with costs of his arrest to the officer arresting him, such officer is
bound to release him at once.
(7) A judgment-debtor will stand released from civil prison before the expiry of his
period of detention in the following cases:
(i) if the amount mentioned in his arrest warrant has been paid;
(ii) if the decree against him is otherwise fully satisfied;
(iii) if the person on whose application he has been detained, requests for
his release or
(iv) if the subsistence allowance has not been paid;
He can also be released from civil prison
(i) by the State Government on the ground of the existence of any infectious
or contagious disease or
(ii) by the committing Court or any Court to which that Court is subordinate
on the ground of his suffering from any serious illness.
He can be released if he expresses his intention to apply to be declared as insolvent

and furnishes satisfactory security to the Court that he will so apply within a month and
that he will also appear in any proceedings when called upon to do so.
No judgment-debtor will be arrested in execution of a decree unless and until the
decree-holder pays into the Court the subsistence allowance of the judgment debtor as
fixed by the Court. It can be fixed under section 57 according to the rank, race and
nationality of the arrested person.
310 1969 Ker LT 927 .

311 2000 AIHC 2076 , 2078 (AP).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 60. Property liable to
attachment and sale in execution of decree
© 2020 LexisNexis
PART II Execution
Attachment
312S. 60. Property liable to attachment and sale in execution of decree
(1) The following property is liable to attachment313 and sale in execution of a

decree, namely, lands, houses or other buildings, goods, money, bank-notes,
cheques, bills of exchange, hundis, promissory notes, Government securities,
bonds or other securities for money, debts, shares in a corporation and, save
as hereinafter mentioned, all other saleable property, moveable or immoveable
belonging to the judgment-debtor, or over which, or the profits of which, he has
a disposing power which he may exercise for his own benefit, whether the
same be held in the name of the judgment-debtor or by another person in trust
for him or on his behalf:
Provided that the following particulars shall not be liable to such 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 materials and the sites thereof and the
land immediately appurtenant thereto and necessary for their
enjoyment) belonging to 314[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 315[or

of a local authority or of any other employer], or payable out of any
service family pension fund notified 316in the Official Gazette by 317[the
Central Government or the State Government] in this behalf, and
political pensions;
318
[(h) the wages of labourers and domestic servants, whether payable in
money or in kind 319[***];]
320
[(i) salary to the extent of 321[the first 322[323 [one thousand rupees]] and
two-thirds of the remainder] 324[in execution of any decree other than
a decree for maintenance]:
325[ 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 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];]
326
[(ia) one-third of the salary in execution of any decree for maintenance;]
327
[(l) the pay and allowances of persons to whom the Air Force Act, 1950,
or the Army Act, 1950, or the Navy Act, 1957, applies;]
(k) all compulsory deposits and other sums in or derived from any fund to
which the Provident Funds Act, 328[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;
329
[(ka) all deposits and other sums in or derived from any fund to which
the Public Provident Fund Act, 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 a 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 331[servant of

330
the Government] or of any servant of a railway company or local

authority which the 332[appropriate Government] may by notification
in the Official Gazette declare to be exempt from attachment, and any
subsistence grant or allowance made to 333[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 334[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.
335 [Explanation I.—The moneys payable in relation to the matters

mentioned in clauses (g), (h), (i), (ia), (j), (l) and (o) are exempt from
attachment or sale, whether before or after they are actually payable, and,
in the case of salary, the attachable portion thereof is liable to attachment,
whether before or after it is actually payable].
336 [Explanation II. —In clauses 337 [(i) and (ia);] 'salary' means the total
monthly emoluments, excluding any allowance declared exempt from
attachment under the provisions of clause (I), derived by a person from
his employment whether on duty or on leave.
338 [Explanation 339[III]. —In clause (I) "appropriate Government" means—
(i) as respects any 340[person] in the service of the Central

Government, or any servant of a 341[Railway Administration] or of
a cantonment authority or of the port authority of a major port, the
Central Government;
(ii) 342[***]; and
(iii) as respects any other servant of the Government or a servant of

any other 343[***] local authority, the State Government.]
344[ Explanation IV.—For the purposes of this proviso, "wages"
includes bonus, and "labourer" includes a skilled, unskilled or

semiskilled labourer.
Explanation V.—For the purposes of this proviso, the expression

"agriculturist" means a person who cultivates land personally and
who depends for his livelihood mainly on income from agricultural
land, whether as owner, tenant, partner or agricultural labourer.
Explanation VI.—For the purposes of Explanation V, an agriculturist

shall be deemed to cultivate land personally, if he cultivates land—
(a) by his own labour, or
(b) by the labour of any member of his family, or
(c) by servants or labourers on wages payable in cash or in kind (not

being as a share of the produce), or both.]
345
[(1A) Notwithstanding anything contained in any other law for the time being in
force, an agreement by which a person agrees to waive the benefit of any
exemption under this section shall be void].
(2) Nothing in this shall be deemed 346[***]to exempt houses and other buildings
(with the materials and the sites thereof and the lands immediately
appurtenant thereto and necessary for their enjoyment) from attachment or
sale in execution of decrees for rent of any such house, building, site or land
347[***].
348[***]
STATE AMENDMENTS
Andhra Pradesh.— The following amendments were made by Code of Civil Procedure
(Andhra Pradesh) (Andhra Area) Amendment Act, 1950 (34 of 1950), Section 2 (w.e.f. 2-1-
1951).
In its application to the Andhra area of the State of Andhra Pradesh in clause (g) of the
Proviso to sub-section (1) of Section 60, after the words "stipends and gratuities
allowed to pensioners of the Government" insert the words "or of a local authority".
Andhra Pradesh.— (a) In its application to the Hyderabad area of the State in the proviso
to sub-section (1):
(i) after clause (g) insert the following:—
"(gg) pension granted or continued by the Central Government, the Government

of the pre-reorganisation Hyderabad State or any other State Government on
account of past services or present infirmities or as a compassionate allowance,
and";
(ii) after Explanation 2 insert Explanation 2A which is same as below with the
addition of "clause (gg) or" after "under the provisions of [Andhra Pradesh Act 18
of 1953 (w.e.f. 2-12-1953)].
(b) In its application to the whole State in the proviso to sub-section (1).
(i) after clause (k) insert the following:—"(kk) amounts payable under policies issued in
pursuance of the rules for the Andhra Pradesh Government Life Insurance and
Provident Fund and the Hyderabad State Life Insurance and Provident Fund:"
The following amendments were made by Andhra Pradesh Act 24 of 1979, Section 2
(dated 15-9-1979)
In the proviso to Section 60(1) after clause (kk) insert as under—
"(kkk) amounts payable under the Andhra Pradesh State Employees' Family Benefit
Fund rules:
In Explanation 2A, for the expression "clause (kk)" substitute the expression "clauses
(kk) and (kkk)".
(ii) After Explanation 2 insert the following:
"Explanation 2A.—Where any sum payable to a Government servant is exempt from

attachment under the provisions of clause (kk), such sum shall remain exempt from
attachment notwithstanding the fact that owing to the death of the Government
servant it is payable to some other person".
(Andhra Pradesh Act 11 of 1953 and Act 10 of 1962).
Delhi.—As in Punjab.
Gujarat.— The following amendments were made by Code of Civil Procedure (Bombay
Amendment) Act, 1948 (Bom Act 60 of 1948), Section 2, dated 30-11-1948.
In sub-section (1) of Section 60—
(a) after clause (g) of the proviso, the following new clause shall be inserted,
namely:— "(gg) stipends and gratuities allowed to pensioners of a local
authority", and
(b) in Explanation 1, after the brackets and letter "(g)" the brackets and letters "(gg)"
shall be inserted.
Haryana.—Same as in Punjab.
Himachal Pradesh.— (1) The following amendments were made by Himachal Pradesh
Act 31 of 1978, S. 21, dated 1-4-1979.
Amendments are the same as in Punjab, with the following modifications—
(i) in sub-section (4) words "as defined in the Punjab Alienation of Land Act, 1900" not
included.
(ii) Sub-section (5) not taken.
(iii) Sub-section (6) numbered as (5).
(2) [Code of Civil Procedure (Himachal Pradesh Amendment) Act 6 of 1956].—
In sub-s (1) at the end of (c), insert the following:
"or compensation paid for such houses and buildings (including compensation for the
materials and the sites and the land referred to above) acquired for a public purpose;"
(ii) after clause (c) insert the following:
"(cc) compensation paid for agricultural lands belonging to agriculturists and acquired
for a public purpose;"
Karnataka.—In its application to the Karnataka area, in the proviso to sub-section (1)
after clause (p) insert:—
"(pp) where the judgment-debtor is a servant of the State Government who has insured
his life under the rules in force relating to the Official Branch of the Karnataka
Government Life Insurance Department,—
(1) in the case of insurance effected prior to the ninth day of May, 1911, the whole of
the bonus payable or paid thereunder to such servant, or in the event of his death to his
nominee or other person or persons entitled to such bonus under the said rules; and
(2) in the case of insurance effected on or after the ninth day of May, 1911, and such
insurance is compulsory, then the bonus in respect of the compulsory premia payable
or paid to such servant, or in the event of his death to his nominee or other person or
persons entitled to such bonus under the said rules." [Code of Civil Procedure (Mysore
Amendment) Act 14 of 1952].
Kerala.— The following amendments were made by Code of Civil Procedure (Kerala
Amendment) Act (1 of 1988), Section 2, dated 5-1-1988.
In its application to the State of Kerala including the Malabar district, in clause (g) of
the Proviso to sub-section (1), after the words "stipends and gratuities allowed to
pensioners of the Government" insert the words "or of a local authority"—Code of Civil
Procedure (Kerala Amendment) Act, 1957 (13 of 1957), Section 3 (w.e.f. 1-10-1958).
In its application to the State of Kerala, in Section 60(1), after clause (g) insert as under
—
"(gg) all moneys payable to the beneficiaries under the Family Benefit Scheme for the
employees of the Government of Kerala". [Kerala Act 1 of 1988, Section 2 (5-1-1988)].
Maharashtra.—In its application to the Hyderabad area of the State of Bombay, see the
amendment in Andhra Pradesh (vide Hyderabad Act II of 1953 adapted by Bom (H) ALO
1956 and Bom AO 1957).
[Code of Civil Procedure (Bombay Amendment) Act 60 of 1948; (Hyderabad Am) 11 of

1953 as amended by Maharashtra Act 6 of 1965].
The following amendments were made by Maharashtra Act 65 of 1977, Section 6, dated
19-12-1977.
In its application to the State of Maharashtra in Section 60, in sub-section (1), in the
proviso—
(a) after clause (g) insert clause (gg), namely:—
"(gg) in the Hyderabad area of the State of Maharashtra, any pension granted or
continued by the Central Government or the Government of the former State of
Hyderabad or any other State Government, on account of past services or present
infirmities or as a compassionate allowance, which is not covered by clause (g);"
(b) After clause (kb), clause (kbb), be inserted as under—
(kbb) the amounts payable under the policies issued in pursuance of the rules for the
Hyderabad State Life Insurance and Provident Fund, which are not covered under
clause (ka) or (kb).
Explanation.—Where any sum payable to a Government servant is exempt from

attachment under this clause or clause (gg) such sum shall remain exempt from
attachment, notwithstanding the fact that owing to the death of the Government
servant the sum is payable to some other person." [Maharashtra Act 65 of 1977,
Section 6 (19-12-1977)].
Punjab.—[Punjab Relief of Indebtedness Act, 7 of 1934 Section 35 as amended by

Punjab Acts 12 of 1940, 6 of 1942 and 14 of 1960].—
(a) In sub-section (1) in the Proviso—
(i) In clause (c), for the words "occupied by him" the following words shall be
deemed to be substituted, viz.:—"not proved by the decree-holder to have been let
out on rent or let to persons other than his father, mother, wife, son, daughter,
daughter-in-law, brother, sister or other dependants or left vacant for a period of
a year or more".
(ii) After clause (c) the following clauses shall be deemed to be inserted, viz.:—
"(cc) Milch animals, whether in milk or in calf, kids, animals used for the
purposes of transport or draught cart and open spaces or enclosures belonging
to an agriculturist and required for use in case of need for tying cattle, parking
carts, or stacking fodder or manure;
(ccc) one main residential house and other buildings attached to it (with the
material and the sites thereof and the land immediately appurtenant thereto and
necessary for their enjoyment) belonging to a judgment-debtor other than an
agriculturist and occupied by him: Provided that the protection afforded by this
clause shall not extend to any property specifically charged with the debt sought
to be recovered".
(b) After sub-section (2), the following sub-sections shall be deemed to be inserted, viz.:
—
"(3) Notwithstanding any other law for the time being in force an agreement by which a
debtor agrees to waive any benefit of any exemption under this section shall be void.
(4) For the purposes of this section the word 'agriculturist' shall include every person
whether as owner, tenant, partner or agricultural labourer who depends for his
livelihood mainly on income from agricultural land as defined in the Punjab Alienation
of Land Act, 1900.
(5) Every member of a tribe notified as agricultural under the Punjab Alienation of Land
Act, 1900, and every member of a scheduled caste shall be presumed to be an
agriculturist until the contrary is proved.
(6) No order for attachment be made unless the Court is satisfied that the property
sought to be attached is not exempt from attachment or sale".
Rajasthan.—In sub-section (1) in the Proviso—
(i) In clause (b) after the word "agriculturist" insert "his milch cattle and those likely to
calve within two years" (Rajasthan Act 19 of 1958).
(ii) after clause (k), insert the following :
"(kk) moneys payable under Life Insurance Certificates issued in pursuance of the
Rajasthan Government Servants Insurance rules, 1953";
(iii) after Explanation 3 insert the following:
"Explanation 4.—Where any money payable to a Government servant of the State is

exempt from attachment under the provision contained in clause (kk), such money
shall remain exempt from attachment notwithstanding the fact that owing to the death
of a Government servant it is payable to some other person". (Rajasthan Act 16 of
1957).
In its application to State of Tamil Nadu, in clause (g) of the proviso to sub-section (1)
the words "or of a local authority" shall be inserted after the words "stipends and
gratuities allowed to the pensioners of the Government". [Code of Civil Procedure
(Madras Amendment) Act, 34 of 1950].
Tamil Nadu.— The following amendments were made by Code of Civil Procedure
(Madras Amendment) Act, 1950 (34 of 1950), Section 2 (w.e.f. 2-1-1951) and Madras Act
No. 22 of 1957, Section 3, dated 18-12-1957 and Madras (AT) ALO, 1961 w.e.f. 1-4-1960.
In its application to the State of Madras including the Kanyakumari district and the
Schencottah taluk of the Tirunelveli district, and the added territories the amendment
made in Section 60 is the same as that of Kerala.
Union Territory (Chandigarh).— The following amendments were made by Punjab

Reorganisation Act, 1966 (31 of 1966), Section 88, dated 1-11-1966.
In its application to the Union Territory of Chandigarh, amendments in the section are
the same as in Punjab. [Punjab Reorganisation Act, 1966, Section 88].
Union Territory (Pondicherry).— The following amendments were made by Pondicherry

(Extension of Laws) Act, 1968 (26 of 1968), Section 3(i) and Schedule, Part II (w.e.f. 5-9-
1968).
In its application to the Union Territory of Chandigarh amendments in the section are
the same as in Tamil Nadu.
Uttar Pradesh.—[Code of Civil Procedure (UP Amendment) Act, 35 of 1948 S. 2].—Add

the following Explanation (1A) after Explanation 1 in sub-section (1)—
"Explanation (1A).—Particulars mentioned in clause (c) are exempt from sale in

execution of a decree whether passed before or after the commencement of the Code
of Civil Procedure (United Provinces Amendment) Act, 1948, for enforcement of a
mortgage or charge thereon".
MODIFICATIONS
Calcutta High Court.— The following modifications were made by Calcutta Gazette,
dated 27-4-1967, Part I, Section 757.
In its application to all the suits or proceedings in the Court of Small Causes, Calcutta,
in S. 60 add the provision after sub-section (1) "provided that nothing in this section
shall be taken as conferring on the Court of Small Causes of Calcutta, any jurisdiction
to attach and sell immovable property in execution of a decree"—
"Provided also that this section shall, so far as the Court mentioned in the last
preceding proviso is concerned, apply only to decrees obtained in suits instituted after
the 31st of May 1937, and the law applicable to suits instituted up to that date shall be
the law which was heretofore in force in that Court".
COMMENT.—
2002).—
Modification.—In section 60 of the principal Act, in the first proviso to subsection (1), in
clause (i), for the words "four hundred rupees", the words "one thousand rupees" shall
be substituted.
This section has made the modification that the limit of exemption from attachment of
the salary in execution of a decree has been raised from four hundred rupees to one
thousand rupees.
The object of the amendment is to increase the amounts taking into consideration the
erosion in the money value.

1999 stated thus:
"Section 60 of the Code provides for attachment and sale of properties in execution of
a decree. Clause 6 seeks to amend section 60 by substituting "one thousand rupees" in
place of "four hundred rupees" for the reason of decrease in the money value since the
time provisions were made." [Clause 6].

(d) (of the repeal and savings section) stipulates that the provisions of section 60 of
exempt salary from attachment to the extent mentioned in clause (i) of the first proviso
to sub-section (1) of section 60 before the commencement of section 6 of the
Amendment Act, 1999.

Upward revision of portion of salary exempted from attachment.—By this amendment the
limit of exemption from attachment of the salary of a judgement debtor in execution of
a decree has been raised from four hundred rupees to one thousand rupees. The
erosion in money value seems to be responsible for this revision.
Applicability of the existing State/High Court Amendments after the commencement of

Code of Civil Procedure (Amendment) Act, 1999.—Any amendment made, or any
provision inserted in the principal Code by a State Legislature or High Court before the
commencement of the Amendment Act, 1999 shall, except in so far as such
amendment or provision is consistent with the provisions of the principal Code as
amended by this Amendment Act, 1999, stands repealed [section 32(1) Code of Civil
Procedure (Amendment) Act, 1999].
Changes brought about by the Amending Act of 1976.—
The amending Act seeks to enlarge some of the exemptions, namely:
(i) house and buildings of labourers and domestic servants have been exempted;
(ii) proviso to Clause (i) has been substituted to remove the distinction between
judgment-debtors who are servants of the Government or a railway company
and other salaried judgment-debtors;
(iii) life insurance policies have been exempted from attachment;
(iv) tenancies in respect of residential building to which rent control laws are
applicable, have been exempted;
(v) "agriculturist" has been defined so as to include persons whose livelihood

depends on income derived from agriculture;
(vi) "wages" have been so defined as to include bonus.
Sub-section (1-A) was inserted with a view to provide that any agreement to waive any
exemption shall be void.
By amending Clause (i) the limit of exemption from attachment of a salary in execution
of a decree has been raised to rupees four hundred and two-third of the remainder of
the salary.
It may be stated that the attachable portion thereof is liable to attachment, whether
before or after it is actually payable.
Moreover, if any portion of attachable salary is already under attachment whether

continuously or intermittently, for a total period of twenty-four months, such portion
also becomes exempt from attachment for a further period of twelve months. If such
attachment is made in execution of one and the same decree, and if the attachment is
continued for a total period of twenty-four months, even the attachable portion of the
judgment-debtor's salary becomes exempt from attachment in execution of that
decree.
Thus for instance, if a judgment-debtor's salary is Rs. 1000 under clause (i) above, Rs.
800 will be exempt from attachment (Rs. 400 plus two-third of the remainder) and a
sum of Rs. 200 can be attached every month. If this attachment under one and the
same decree continues for twenty-four months, even two hundred rupees become free
from attachment under that decree.
This rule will apply in all cases except where the decree is not one for maintenance. As
regards maintenance decrees, the rule laid down in clause (j) above will apply.
By amending clause (k-a) it has been provided that the deposits under the Public
Provident Fund Act, 1968, are exempt from attachment so, the provisions of that Act
may not be lost sight of.
By Explanation IV, in the definition of "labourer" unskilled labourer is included.

Explanation V defines the expression agriculturist and Explanation VI clarifies as to
which agriculturist shall be deemed for the purposes of Explanation V, to cultivate land
personally.
The section does not, however, affect any special or local law under which properties
attachable under this section are declared to be not attachable in execution of decrees.
(See section 4).
The section does not apply to mortgage decrees. The word "decree" in this section
refers to money decree and not to a mortgage decree for the execution of which no
attachment is necessary.
The section again is not applicable to an attachment before judgment as it is not an

attachment in execution of a decree.349
Property liable to attachment and sale.—
Under section 60 of the Code of Civil Procedure, there are nine kinds of properties
which are liable to attachment and sale in execution of a decree. These are:
1. land;
2. Houses or other buildings;
3. goods;
4. money and bank notes;
5. cheques, bills of exchange, hundis and promissory notes;
6. Government securities, bonds and other securities for money;
7. debts;
8. shares in a corporation and;
9. all other saleable property, moveable or immoveable belonging to the judgment-

debtor or over which he has a disposing power which he can exercise for his own
benefit.
Provident Fund not attachable.—
An amount in the hands of the Government due to employees towards provident fund
and pensionary benefits is not liable to attachment. The Union of India has locus standi
to raise objection as to non-attachability.350
Contingent interest is not attachable.—
Where under a trust deed the judgment-debtor has a beneficial interest, then such
interest is attachable provided it is a vested interest and not a contingent interest. A
mere contingent interest though transferrable inter vivos is not attachable.351
Immunity from attachment.—
If a portion of the main residential house is occupied by the judgement-debtor himself

for the purpose of a shop, then that portion does not cease to be a part of such
residential house. Entire house is exempt from attachment.352
A judgment-debtor sold her house to pay off her debts. In a suit the sale was declared
null and void. The effect is that she would be the owner in possession of the property
and as such entitled to claim exemption from attachment under this clause.353
Whether the pumpset is an "implement of husbandry" belonging to an agriculturist and

exempt from attachment. This question was left open by the Supreme Court.354
Flat is attachable and saleable.—A flat in a tenant co-partnership housing society under
the Maharashtra Co-operative Societies Act, 1960 is liable to attachment and sale in
execution of a decree.355
Arrears of salary—Liability to attachment.—The salary is not attachable to the extent

provided in section 60(i) of the Code. There is no such exemption as regards arrears of
salary and allowances due to the judgment debtor. Such an amount can be proceeded
against in execution.356
It is immaterial whether such property is held by the judgment-debtor in his own name
or by any other person in trust for him or on his behalf.
RBI is an agent of Railways.—A subscriber elects to take the money in the sterling to be
deposited in a British Bank and the Railway Administration sends the cheque to the
Reserve Bank of India for conversion. The obligation is not discharged until the
direction of the subscriber is complied with. The Reserve Bank of India is an agent of
the Railways and the money in their hands is not attachable.357
It is also specifically provided by clauses (a) to (p) of section 60 as to which kinds of

properties are not liable to attachment or sale etc. There are twenty kinds of properties
listed in the above clauses which are exempt from attachment by virtue of section 60
of the Code and it is not open to a person to waive the benefit of this exemption. Thus,
even if the judgment-debtor agrees in writing that such property may be attached, the
agreement itself will be void.
In addition to above, it is open to the State Government to declare that such portion of
agriculture produce as it deems fit shall be exempt from attachment and sale in
execution of a decree, as laid down in section 61 of the Code.
The expression "a certain debt alleged now to be due" used in the prohibitory order
attaching debt under the Income Tax Act includes the rent due at present and
becoming due in future.358
Pension.— The word "pension" implies periodical payments to the pensioners. In wider
sense in which it is used in clause 2 of Article VIII of the Baroda State Merger
Agreement dated 21 March 1949, it means lump sum paid as retirement benefit to civil
servant upon his retirement.359
Where the pensionary benefits and gratuity of the appellant have been converted into
fixed deposit receipts, they cannot be attached under section 60(1) Proviso (g) of the
Code.360
All other saleable properties.—
In order to attach any property under this section, it is necessary that the said property
must be "saleable property".361 The word "saleable" within the meaning of this section
implies saleable by a Court's auction at a compulsory sale.362 For this purpose,
following conditions must be satisfied—
(i) the property must be in existence, thus future or uncertain profits will not be
saleable property;
(ii) the property must be capable of being transferred. Thus, a mere right of
residence is a personal right and is not transferable. Hence, not saleable under
this section.363
Disposing power.—
It is possible that a property may not belong to a judgment-debtor, still he may have a
disposing power over it exercisable for his own benefits.364 In such cases the property
is liable to attachment and sale subject to the proviso of this section.
Thus, a Hindu father has a disposing power over the whole of the joint family property
for the purpose of satisfying his personal debts under certain circumstances and
hence, such a property will be subject to attachment under this section.365
But where under an agreement between a contractor and a bank the bank was to
advance finances to the contractor for his business and was entitled to collect the
amount to which the contractor would become entitled for work done, and the
contractor endorsed a bill for amounts payable to the bank, it was held by the Supreme
Court in Bharat Nidhi Ltd v Takhatmal, AIR 1969 SC 313 . Lookaram Sethiva v State Bank
of Jaipur, AIR 1969 SC 73 (relied on) that this was an equitable assignment of a debt
due to the contractor, and was not liable to be attached by his creditors.
Property belonging to Judgment debtor or over profits of which he has no

disposing power.—
The amount deposited by the judgment debtor in a criminal case towards security of
another person, such amount cannot be attached, as judgment debtor had no power of
disposing of said money.366 The property in order to be attachable under this section
must be "saleable property."
Explanations 5 & 6.—

The newly inserted explanations define agriculturist for the purpose of proviso to
section 60. "Agriculturist" in clauses (b) and (c) has the same meaning. Clause (b)
suggests a person who tills the soil in order to maintain himself. Even if it is necessary
that a person must till his land with his own hands to be an "agriculturist", he must at
last show that he was really dependent for his living on tilling the soil and was unable
to maintain himself otherwise. Where a person has a substantial income from lands
other than the lands cultivated in house farm and also other sources of income, he
cannot be called an agriculturist.367
Two important questions arose and were answered by a Full Bench of MP High Court in
Narsingh v Kamandas AIR 1980 MP 37 (FB).
(1) Whether the electric motor pump belonging to the judgment-debtor who is
admittedly an agriculturist, and fitted in his well, situated in his agricultural field,
is an implement of husbandry exempted from attachment under section 60(1)
(b) of the Code?
(2) Whether the attached cart of the judgment-debtor is an implement of husbandry

and as such exempted from attachment under section 60(1)(b) of the Code?
The Full Bench answered as follows:
(1) The attached electric motor pump is an implement of husbandry of the

judgment-debtor and is liable to be released from the attachment.
(2) The attached cart is not an implement of husbandry of the judgment-debtor and
as such not liable to be released from the attachment.368
An important question for determination came up before the Supreme Court in State of
Punjab v Dina Nath, AIR 1984 SC 352 : (1984) 1 SCC 137 wherein the Supreme Court
that, the Punjab Land Revenue Act contained a complete Code providing for the modes
and machinery for recovery of arrears of revenue. There is no provision in the said Act
which makes the provision of section 60 of the Code applicable to attachment and sale
for recovery of revenue under the said Act. It was thus held that, the share of the
defaulter in an immovable property was not exempt from attachment and sale in
revenue recovery proceedings under the said Revenue Act as there was no provision in
the Act corresponding to clause (C) of the proviso to sub-section (1) of section 60 of
the Code (inserted by the Punjab and Haryana State Amendment).
Effect of Execution of Power of Attorney.—
Property for which execution was sought was originally owned by the plaintiff which
was proved by documentary evidence before the Court. In the meantime, the said
property was acquired by the State under Land Acquisition Act. The plaintiff had
executed Power of Attorney in favour of his son as the plaintiff was not residing in
India; to look after the acquisition case and to receive compensation. When the son is
not the owner of the property, execution of power of attorney cannot change the fact
and the property cannot be termed as joint family property. Property of plaintiff being
his self-acquired property cannot be attached by bank in execution of money decree
passed against son of the plaintiff369
312 For amendments to section 60, in its application to East Punjab, see the Punjab Relief of
Indebtedness Act, 1934 (Punjab Act 7 of 1934), section 35, as amended by Punjab Acts 12 of
1940 and 6 of 1942.
313 For immunity from attachment see Army Act, 1950, section 28; Air Force Act, 1950, section
28 and Navy Act, 1957, section 20.
314 Subs. by Act 104 of 1976, section 23(i)(a), for "an agriculturist" (w.e.f. 1-2-1977).
315 Ins. by Code of Civil Procedure (Amendment) Act, 104 of 1976, section 23(i)(b) (w.e.f. 1-2-
1977).
316 For such notification, see Gaz of India, 1909, Pt I, p 5.
317 Subs. by the A.O. 1937, for "the G.G. in C."
318 Subs. by Act 9 of 1937, section 2, for clauses (h) and (i). The amendments made by that
section have no effect in respect of any proceedings arising out of a suit instituted before 1
June 1937, see Act 9 of 1937, section 3.
319 The words "and salary, to the extent of the first hundred rupees and one-half the remainder
of such salary" omitted by Act 5 of 1943, section 2.
320 Subs. by Act 5 of 1943, section 2, for clause (i) and proviso.
321 Subs. by Act 26 of 1963, section 2, for "the first hundred rupees".
322 Subs. by Act 104 of 1976, section 23, for "two hundred rupees and one-half the remainder"
(w.e.f. 1-2-1977).
323 Subs. for 'four hundred rupees' by the Code of Civil Procedure (Amendment) Act, 1999 (46
of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
324 Ins. by the Code of Civil Procedure (Amendment) Act 66 of 1956, section 6 (w.e.f. 1-1-
1957).
325 Subs. for old proviso by Code of Civil Procedure (Amendment) Act 104 of 1976, section
23(i)(c)(ii) (w.e.f. 1-2-1977).
1957).
327 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 23(i)(d) (w.e.f.
1-2-1977).
328 Subs. by Act 9 of 1937, section 2, for "1897".
329 Ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 23(i)(e) (w.e.f. 1-
2-1977).
330 Subs. by Act 9 of 1937, section 2, for clause (l).
331 Subs. by Act 5 of 1943, section 2, for "public officer".
332 Subs. by the A.O. 1937, for "G.G. in C."
333 Sec. 2, for "any such officer or servant".
334 Subs. by A.O. 1937, for "any law passed under the Indian Councils Acts, 1861 and 1892".
335 Subs. by Act 104 of 1976, section 23(i)(f), for "Explanation 1" (w.e.f. 1-2-1977).
336 Subs. by Act 104 of 1976, section 23, for "Explanation 2.—In clauses (h) and (i)" (w.e.f. 1-2-
1977).
337 Subs. for '(h) and (z)' by ibid.
338 Ins. by the A.O. 1937.
339 Subs. by Act 104 of 1976, section 23, for "3" (w.e.f. 1-2-1977).
340 Subs. by Act 5 of 1943, section 2, for "public officer".
341 Subs. for "Federal Railway" by IAO, 1950.
342 Cl (ii) omitted by IAO, 1948.
343 The words "railway or" omitted by IAO, 1950.
344 Ins. by the Code of Civil Procedure (Amendment) Act, 109 of 1976, Section 23 (w.e.f.1-2-
1977).
346 The letter and brackets "(a)" rep. by Act 10 of 1914, section 3 and Sch. II.
347 The word "or" rep. by Act 10 of 1914, section 3 and Sch. II.
348 Clause (b) rep. by Act 10 of 1914, section 3 and Sch. II.
349 (1963) 65 Punj LR 459 .
350 UOI v Jyoti Chit Fund & Finance, AIR 1976 SC 1163 (1165, 1166) : (1976) 3 SCC 607 : (1976)
2 LLJ 69 : 1976 Lab IC 773 .
351 Rajes Kanta Roy v Shanti Debi, AIR 1957 SC 255 (259) : 1957 SCR 77 .
352 Ram Lal v Piara Lal, AIR 1973 SC 2124 (2126) : (1973) 2 SCC 192 .
353 Kiranbala v Surinder Kumar, AIR 1996 SC 2094 : (1996) 4 SCC 372 .
354 Shanti Devi v State of UP, AIR 1997 SC 3541 (3544) : (1997) 8 SCC 22 .
355 Ramesh H Shah v Harsukh J Joshi, AIR 1975 SC 1470 (1477) : (1975) 2 SCC 105 : 1975
Supp SCR 270.
356 UOI v Hira Devi, AIR 1952 SC 227 (230) : 1952 SCR 765 : 65 MLW 628.
357 UOI v Radha Kissen, AIR 1969 SC 762 : (1969) 1 SCC 225 : 1969 SLR 439 .
358 J Jermons v Aliammal, AIR 1999 SC 3041 (3045, 3046) : (1999) 7 SCC 382 ; reversed 1997
AIHC 2849 (Mad).
359 State of Gujarat v RB Chandrachud, AIR 1971 SC 846 (853) : (1969) 1 SCC 300 .
360 Radhey Shyam Gupta v Punjab National Bank, AIR 2009 SC 930 (934) : (2009) 1 SCC 376 .
361 1971 Ker LT 574 .
362 Dharmadevan v Kesavan, AIR 1971 Ker 221 (DB).
363 1969 Ker LT 915 .
364 Muktilal Agrawala v The Trustee of Provident Fund, AIR 1956 SC 336 (341) : 1956 SCR 100 :
(1956) 2 LLJ 215 .
365 Kanchan v Babu Bhai, AIR 1967 Raj 184 (187) : 1967 Raj LW 290 .
366 Surender Singh Bajaj v Kitty Steals Ltd, AIR 2003 AP 13 .
367 Appasaheb v Balchandra, AIR 1961 SC 589 (595) : (1961) 2 SCR 163 : 63 Bom LR 521.
368 AIR 1980 MP 37 (43) (FB) (supra).
369 State of Bihar v United Commercial Bank Ltd, Nagpur, AIR 2014 Pat 225 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 61. Partial exemption of
agricultural produce
© 2020 LexisNexis
PART II Execution
Attachment
S. 61. Partial exemption of agricultural produce
The State Government 370[* * *] may, by general or special order published in the
Official Gazette, declare that such portion of agricultural produce, or of any class of
agricultural produce, as may appear to the State Government to be necessary for the
purpose of providing until the next harvest for the due cultivation of the land and for
the support of the judgment-debtor and his family, shall, in the case of all
agriculturists or of any class of agriculturists, be exempted from liability to
attachment or sale in execution of a decree.
COMMENT.—
The object of the exemption under this section is to help an agriculturist to continue
agriculture even after execution of decree.371 The exemption of agricultural produce
from attachment under this section is only partial, that is, such portion of the
agricultural produce as may appear to the State Government to be necessary for the
purpose of providing, until the next harvest, for the due cultivation of the land and for
the support of the judgment-debtor and his family.372
As to attachment of agricultural produce, see O XXI, rules 44 and 45 and as to its sale,
see O XXI, rules 74 and 75.
370 The words "with the previous sanction of the GG in C" omitted by Act 38 of 1920, section 2
and sch I.
371 1969 ALJ 1045 .
372 Vasu v Narayanan Namboodripad, AIR 1962 Ker 261 (263).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 62. Seizure of property in
dwelling-house
© 2020 LexisNexis
PART II Execution
Attachment
S. 62. Seizure of property in dwelling-house
(1) No person executing any process under this Code directing or authorizing
seizure of moveable property shall enter any dwelling-house after sunset and
before sunrise.
(2) No outer door of a dwelling-house shall be broken open unless such dwelling-
house is in the occupancy of the judgment-debtor and he refuses or in any way
prevents access thereto, but when the person executing any such process has
duly gained access to any dwelling-house, he may break open the door of any
room in which he has reason to believe any such property to be.
(3) Where a room in a dwelling-house is in the actual occupancy of a woman who,

according to the customs of the country, does not appear in public, the person
executing the process shall give notice to such woman that she is at liberty to
withdraw; and, after allowing reasonable time for her to withdraw and giving
her reasonable facility for withdrawing, he may enter such room for the
purpose of seizing the property, using at the same time every precaution,
consistent with these provisions, to present its clandestine removal.
Calcutta.—In sub-section (2) omit the words "unless such dwelling house is in the
occupancy of the judgment-debtor and he refuses or in any way prevents access
thereto", after the words "be broken open" and before the words "but when the person".
Add the proviso after sub-section (2)—
"Provided that the Court may, after service of such notice as it thinks proper, direct the
breaking open of an outer door of a dwelling-house in possession of the judgment-
debtor who prevents access thereto" Vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
Section 55 deals with how an arrest of the judgment-debtor is to be effected. This

section deals with how movable property is to be seized in execution? Provisions 1, 2
and 3 of section 55 correspond to subsection (1), (2) and (3) of this section.
Dwelling-house.—
A shop or a godown is not a "dwelling-house" within the meaning of this section.373 A
dwelling-house is one which is used for residential purposes and includes also
Courtyard, kitchen, cowshed and the like.
373 Damodar v Ishwar, (1879) 3 Bom 89.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 63. Property attached in
execution of decrees of several Courts
© 2020 LexisNexis
PART II Execution
Attachment
S. 63. Property attached in execution of decrees of several Courts
(1) Where property not in the custody of any Court is under attachment in
execution of decrees of more Courts than one, the Court which shall receive or
realize such property and shall determine any claim thereto and any objection
to the attachment thereof shall be the Court of highest grade, or, where there is
no difference in grade between such Courts, the Court under whose decree the
property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a
Court executing one of such decrees.
374[ Explanation. —For the purposes of sub-section (2), "proceeding taken by a Court"
does not include an order allowing, to a decree-holder who has purchased property at
a sale held in execution of a decree, set-off to the extent of the purchase price
payable by him.]
Calcutta.—Add as sub-section (3)—
(3) "For the purposes of this section the Court of Small Causes of Calcutta shall be
deemed to be of the same grade as a district Court." Vide Cal. Gaz. Pt. I,. dated April 20,
1967.
COMMENT.—
The principle underlying this section is the principle of convenience, of avoiding

multiplicity of proceedings and of fair distribution and not the principle of execution.375
This section deals merely with procedure and does not effect the substantive rights of
the decree-holder inter se.376
This section applies only as between Civil Courts of different grades or as between
Revenue Courts of different grades. It does not apply where one decree is that of a Civil
Court and another that of a Revenue Court. The section does not effect the jurisdiction
of the Court.377
By the addition of the Explanation to sub-section (2) of this section, the conflict in
judicial opinion as to whether the expression "proceeding taken by Court" excludes set-
off allowed to a decree-holder auction-purchaser or not, the matter has been clarified
now.
375 Surendra Kumar v Jamini Kumar, AIR 1936 Cal 723 : (1937) 1 Cal 391 ; see also Ramchandra
v Digambar Teji Ram, AIR 1960 Bom 230 (FB) : 61 Bom LR 1665.
376 Dhirendra Rao v Virbhadrappa, AIR 1935 Bom 176 (DB) : 59 Bom 310.
377 Parachuri Veerayya v Yalavarti Veerraghavayya, AIR 1961 AP 298 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 64. Private alienation of
property after attachment to be void
© 2020 LexisNexis
PART II Execution
Attachment
S. 64. Private alienation of property after attachment to be void
378
[(1)] Where an attachment has been made, any private transfer or delivery of
the property attached or of any interest therein and any payment to the
judgment-debtor of any debt, dividend or other monies contrary to such
attachment, shall be void as against all claims enforceable under the
attachment.
379
[(2) Nothing in this section shall apply to any private transfer or delivery of the
property attached or of any interest therein, made in pursuance of any
contract for such transfer or delivery entered into and registered before the
attachment.]
Explanation.— For the purposes of this section, claims enforceable under an

attachment include claims for the rateable distribution of assets.
COMMENT—Important Note.—
Act, 2002 (w.e.f. 1-7-2002).
Code of Civil Procedure Amendment Act, 2002 (22 of 2002) (w.e.f. 1-7-2002).
—
Section 64 of the principal Act shall be renumbered as sub-section (1) of that section
and after-sub-section (1) as so renumbered, the following shall be inserted, namely:
(2) Nothing in this section shall apply to any private transfer or delivery of the property
attached or of any interest therein, made in pursuance of any contract for such transfer or
delivery entered into and registered before the attachment.
Sub-section (2) has been added on the recommendations of the Law Commission
made in 54th Report. As a result of the amendment a transfer made in pursuance of a
registered agreement shall override the attachment, if the agreement precedes the
attachment.
Recommendations of the Law Commission in 54th Report Section 64
1-E-48 Section 64 is a follows:
64. Where an attachment has been made, any private transfer or delivery of the property
attached or of any interest therein and any payment to the judgment-debtor of any debt,
dividend or other monies contrary to such attachment, shall be void as against all claims
enforceable under the attachment.
Explanation.—For the purpose of this section, claims enforceable under an attachment
include claims for the rateable distribution of assets.
There has been a conflict of decisions on the question whether a transfer made after
attendance in pursuance of an agreement entered into before attachment is void. The
Commission in its Report on the Code,380 considered this conflict; but was not
included to suggest a change. It noted that in the draft Report which had been
circulated (to State Governments, High Courts etc.) for comments, an exception was
proposed to Section 64 to the effect that "Nothing in this section applies to any private
transfer or delivery of the property attached or of any interest therein, made in
execution of any contract for such transfer or delivery entered into before the
attachment." But, after careful consideration, the Commission decided not to make any
such exception. The principal consideration, which weighed with the Commission was
thus stated—
A sweeping provision of this kind might be abused, and the practice of bringing into
existence agreements which are really executed after attachment but are antedate to an
earlier date., might be encouraged by such exception.
The Commission also added—
The decision as to how far such a transfer should be recognised as valid by the Court would
seem often to depend on the equities of each case. Some of the decisions are based on the
specific provisions of Order XXXVIII, rule 19; a few exhibit special features arising out of the
passing of a decree for specific performance. So far as other situations are concerned, the
equities of the case should it be considered be taken by the Court into account.
1-E-49. We have carefully considered the matter. We agree that a sweeping provision
saving every transfer made in pursuance of a pre-attachment agreement, might lead to
fictitious claims, as was noted by the previous Commission. But we think that a
provision of a limited character, applicable only where the agreement itself is registered
before the attachment, would be harmless. A transfer in pursuance of such agreement
should override the attachment, if the agreement precedes the attachment.
Recommendation
1-E-50.—We therefore recommend that the following exception be added below Section
64:
Exception.—Nothing in this section applies to any private transfer or delivery of the

property attached or of any interest therein, made in execution of any contract for such
transfer or delivery entered into and registered before the attachment. (Vide Law
Commission's 54th Report, pp 51, 52, paras 1-E 48 & E-49).
The object of this section is to prevent fraud on the decree-holders and to secure in
fact the rights of the attaching creditor against the attached property by prohibiting
private alienations pending attachment.381 But if the property is attached in execution
of the decree, any private transfer of the property by B contrary to such attachment
shall be void as against all claims enforceable under the attachment.
The provision of this section in fact constitutes an application of the doctrine of lis
pendens in the circumstances specified there. Where a theatre is attached in execution
of a decree against the owner of theatre a lease of theatre executed in favour of a
company during attachment is struck by the doctrine of lis pendens and also by the
provision of section 64.382
Section 64 enacts the rule that a private alienation of property after attachment is void
as against claims enforceable under the attachment.383 It is immaterial for the
application of this section whether the decree had or had not been passed before the
time when the transfer was effected.384
Where in an execution property was attached and the execution application was
dismissed for default, the sale of attached property made before the dismissal of
execution application would be void.385
Where an attachment has been made.—
The words "where an attachment has been made" show that the section has no
application to transfers made before the attachment is levied.386 For section 64 to
have effect the mere fact that an order of attachment has been made is sufficient.387
An attachment to render a subsequent alienation invalid must be made in the manner
prescribed by the Code. Thus, for example, a promissory note must be attached by
actual seizure as provided by O XI rule 51 and not by the issue of a prohibitory order.
It follows that where a transfer is made after an order of attachment but before it was
actually effected388 or where the mode prescribed in the Code is not complied with or
there is a material mis-description of the property or other defect in attachment or
where the order of attachment is ultra vires or obtained collusively, the section does not
apply.
Where transfer, subsequent to attachment of property, is in protection to sale made

pursuant to prior registered contract, there is no ambiguity in section 64(2).389
Explanation to section 64 of the Code of Civil Procedure states that claims enforceable
under an attachment include claims for the rateable distribution of assets. Therefore,
the order of attachment in favour of "B" which was admittedly, earlier to the alleged
agreement for sale, would ensure to the benefit of order of attachment granted
subsequently in favour of respondent bank.390
Attachment before judgment.—
The section makes no distinction between attachment of property before a judgment is

given and an attachment in execution of a decree.391
Effect of attachment.—
Where an attachment of property has been made under this section, it has merely the
effect of preventing all private alienations of the property. It confers on the decree-
holder no title, charge, lien or priority in the property.392 It confers only a right on the
decree-holder to have the attached property kept in custodia legis for being dealt with
by the Court in accordance with law.393 (See also O XI rules 46, 54 and 63; O XXXVIII
rule 5 of the Code of Civil Procedure).
The attachment as referred to in this section is the attachment in respect of which the
property was sold and it is that attachment alone which can be employed for the
purpose of impugning a private alienation.394 Thus, where property attached in
execution is alienated but such attachment ceases by a dismissal of the application for
execution under O XI rule 57 and the property is again brought to sale in pursuance of
the second attachment, the alienation pending the first attachment is void against the
auction-purchaser in the sale held under the second attachment.395
Waiver of benefit under this section.—
Since the section is intended for the benefit of the attaching creditor the benefit can
also be waived by him. Waiver, however, is an intentional act and a clear act showing
such an intention must be shown.396
378 Sec. renumbered as sub-section (1) and sub-section (2) inserted by Code of Civil Procedure
(Amendment) Act, 2002 (22 of 2002), section 3 (w.e.f. 1-7-2002) vide Notfn. S.O. 604(E), dt. 6-6-
2002.
379 Section renumbered as sub-section (1) and sub-section (2) inserted by Code of Civil
Procedure (Amendment) Act, 2002 (22 of 2002), section 3 (w.e.f. 1-7-2002) vide Notfn. S.O.
604(E), dt. 6-6-2002.
380 27th Report, pages 112-113, note on Section 64.
381 B Nana Rao v Arunchalam, AIR 1940 Mad 385 (FB).
382 SG Films Exchange v Brijnath Singhji, AIR 1975 SC 1810 (1814) : (1975) 2 SCC 530 ; see also
Jayaram Mudaliar v Ayyaswami, AIR 1973 SC 569 : (1972) 2 SCC 200 .
383 ILR (1965) 1 All 99 (DB).
384 AIR 1917 Cal 561 .
385 Nancy John Lyndon v Prabhati Lal, AIR 1987 SC 2061 (2063) : (1987) 4 SCC 78 .
386 ILR (1966) 1 Mad 600 (DB).
387 Ibid.
388 (1970) 2 SCWR 174 .
390 K Padma v K Ramachandra, AIR 2015 Kar 40 .
391 Manoharlal v Bengal Immunity Co Ltd, AIR 1945 Cal 308 (DB) : (1945) 1 Cal 601 .
392 Akshaya Kumar v Binod Kumar, AIR 1968 Pat 181 ; see also M Subba Rao v Official Receiver,
AIR 1966 AP 52 ; Narayan Ganesh v Fatma Daud, AIR 1952 Bom 70 (DB) and Hans Raj v
Dhanwant Singh, AIR 1961 Punj 510 (DB) : (1961) Punj 369.
393 Krishna v Travancore Bank Ltd, AIR 1956 Trav Co 34.
394 MMarutha-chalam Pillai v Padmavathi Ammal, (1970) 2 SCWR 174 .
395 Byrappa v S Mani, AIR 1970 Mys 152 : (1969) 2 Mys LJ 465 .
396 Janak Raj v Gurdial Singh, AIR 1967 SC 608 : (1967) 2 SCR 77 : 1967 ALJ 524 ; see also Ram
Chandra v Ram Chandra, AIR 1970 Ori 164 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 65. Purchaser’s title
© 2020 LexisNexis
PART II Execution
Sale
S. 65. Purchaser's title
Where immoveable property is sold in execution of a decree and such sale has
become absolute, the property shall be deemed to have vested in the purchaser from
the time when the property is sold and not from the time when the sale becomes
absolute.
COMMENT.—
Scope and object of the section.—
Sections 65 to 67 of the Code lay down the basic principles governing sale of property
in execution of a decree. This section lays down that though the property does not vest
in the auction-purchaser till the date of confirmation once the sale is confirmed and
becomes absolute, the title of the auction-purchaser shall relate back to the date of the
sale itself. (See also O XI, rules 89 to 91, Code of Civil Procedure)
Caveat emptor applies to Court-sale.—
There is no implied warranty of title in a Court-sale and the maxim caveat emptor
applies. What passes to the purchaser is only the right, title and interest of the
judgment-debtor with all risks and defect of title.397
Sale is not void if certificate is issued not in name of Highest Bidder.—
An auction sale was confirmed in the name of the highest bidder. The sale certificate,
however, issued in the name of a society. Such sale does not become void thereby.398
The procedure incorporated in the UP Zamindari Abolition and Land Reforms Act and
the rules made under it, specifically exclude the operation of section 65 Code of Civil
Procedure.399
Vesting of property to auction-purchaser.—
When the case is of a private sale of an immovable property, the property vests in the
purchaser at the time when the deed of sale is executed. The reason being that a
voluntary sale becomes absolute on execution and the delivery of the sale deed by the
vendor. However, in case of a Court sale, the property does not vest immediately in the
purchaser on the sale thereof. It vests in the auction-purchaser on the sale becoming
absolute. The sale becomes absolute only on the termination of proceedings started to
set aside the Court sale or to set aside order confirming the Court sale.400
The Court sale does not become absolute on passing of a mere order of confirmation.
It becomes absolute only on termination of proceedings stated to set aside the Court
sale or to set aside order confirming the Court sale.401
Auction-purchaser, bound to return property.—
When the decree-holder himself was the auction-purchaser in a Court auction sale held
in execution of a decree which is subsequently set aside, restitution of the property can
be ordered in favour of the judgment-debtor and the decree holder auction-purchaser is
bound to return the property.402
The provisions of section 65 read with O XI, rule 94, Civil Procedure Code make it clear
that the auction-purchaser has no absolute right of ownership or title to the immovable
property sold till the confirmation of the sale and on confirmation that is, the sale
becoming absolute, the auction-purchaser acquires title from the date of the sale. But
as a result of the sale the auction-purchaser does not acquire an interest in the
immovable property sold. In other words, that auction-purchaser is one who has, since
after the sale, a substantial right in the immovable property sold.403
Though the property sold in execution of a decree does not vest in the auction-
purchaser until it is confirmed, once the sale is confirmed and becomes absolute, the
title of the auction-purchaser relates back to the date of the auction sale.404
What passes on a Court's sale?—
When Court sale has taken place, what passes to the purchaser at such a sale is right,
title, and interest of the judgment-debtor with all risk and defect in the judgment-
debtor's title except where it is proved that the judgment-debtor had no saleable
interest at all. (See also O XI, rule 94 of the Code of Civil Procedure).
397 Ahmedabad Municipality v Haji Abdul, AIR 1971 SC 1201 : (1971) 1 SCC 757 .
398 Sagar Mahila Viddyalaya Sagar v Pt Sadashiv Rao Harshe, AIR 1991 SC 1825 (1831) : (1991)
3 SCC 588 .
399 Jagdish Sugar Mills Ltd v CIT, Lucknow, AIR 1986 SC 1742 (1745) : (1986) 3 SCC 578 : 1986
Tax LR 1137 .
400 Narayana Piliai v Damodran, AIR 1967 Ker 159 .
401 Ramkrishna v Chellayamma, AIR 1953 SC 425 : 1953 SCR 806 ; see also Chandra v Ananjan,
AIR 1934 PC 134 .
402 Woods Beach Hotels Ltd v Mapusa Urban Coop Bank of Goa Ltd, (2009) 13 SCC 748 (752).
403 Nidhpal v UOI, AIR 1966 All 360 (FB).
404 Raman v Kunjukrishanan v R Vishwanathan, AIR 1964 Ker 314 ; see also Ramchandra Bhagat
v Eva Mitra, AIR 1960 Pat 378 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 66. Suit against purchaser
not maintainable on ground of purchase being on behalf of plaintiff
© 2020 LexisNexis
PART II Execution
Sale
S. 66. Suit against purchaser not maintainable on ground of purchase being on

behalf of plaintiff
405[* * * * *]
405 Omitted by the Benami Transactions (Prohibition) Act, 1988 (Act 45 of 1988), section 7,
w.e.f. 19-5-1988, prior to its omission section 66 stood as under.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 67. Power for [State
Government] to make rules as to sales of land in execution of decrees for payment of money
© 2020 LexisNexis
PART II Execution
Sale
S. 67. Power for 406[State Government] to make rules as to sales of land in

execution of decrees for payment of money
407
[(1)] The [State Government] 408[* * *] may, by notification in the Official
Gazette, make rules for any local area imposing conditions in respect of
the sale of any class of interests in land in execution of decrees for the
payment of money, where such interests are so uncertain or undetermined
as, in the opinion of the State Government, to make it impossible to fix
their value.
409
[(2) When on the date on which this Code came into operation in any local area,
any special rules as to sale of land in execution of decrees were in force
therein, the 410[State Government] may, by notification in the Official
Gazette, declare such rules to be in force, or may, 411[* * *] by a like
notification, modify the same.
Every notification issued in the exercise of the powers conferred by this

sub-section shall set out the rules so continued or modified.]
412
[(3) Every rule made under this section shall be laid, as soon as may be after it
is made, before the State Legislature.]
406 Subs. for "Provisional Government" by IAO 1950.

407 Section 67 renumbered as sub-section (1) by Act 1 of 1914, section 3.
408 The words "with the previous sanction of the G.G. in C." omitted by Act 38 of 1920, section
2 and sch. I.
409 Added by Act I of 1914, Section 3.
410 Subs. for "Provisional Government" by IAO 1950.
411 The words "with the previous sanction of the G.G. in C." omitted by Act 38 of 1920, section
2 and sch. I.
412 Ins. by Code of Civil Procedure (Amendment) Act 20 of 1983, Section 2 and sch. (w.e.f. 15-
3-1984).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 68-72 Omitted
© 2020 LexisNexis
PART II Execution
Delegation to Collector of Power to Execute Decrees against Immovable

Property
S. 68-72 Omitted
[Omitted by CPC (Amendment) Act 66 of 1956, Section 7 (w.e.f. 1-1-1957).]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 73. Proceeds of execution
sale to be rateably distributed among decree-holders
© 2020 LexisNexis
PART II Execution
Distribution of Assets
S. 73. Proceeds of execution sale to be rateably distributed among decree-

holders
(1) Where assets are held by a Court and more persons than one have, before the
receipt of such assets, made application to the Court for the execution of
decrees for the payment of money passed against the same judgment-debtor
and have not obtained satisfaction thereof, the assets, after deducting the
costs of realization, shall be rateably distributed among all such persons:
Provided as follows:—
(a) where any property is sold subject to a mortgage or charge, the

mortgagee or incumbrancer shall not be entitled to share in any surplus
arising from such sale;
(b) where any property liable to be sold in execution of a decree is subject

to a mortgage or charge, the Court may, with the consent of the
mortgagee or incumbrancer, order that the property be sold free from
the mortgage or charge, giving to the mortgagee or incumbrancer the
same interest in the proceeds of the sale as he had in the property sold;
(c) where any immovable property is sold in execution of a decree ordering

its sale for the discharge of an incumbrance thereon, the proceeds of
sale shall be applied—
first, in defraying the expenses of the sale;
secondly, in discharging the amount due under the decree;
thirdly, in discharging the interest and principal monies due on

subsequent incumbrances (if any); and fourthly, rateably among the
holders of decrees for the payment of money against the judgment-
debtor, who have, prior to the sale of the property, applied to the Court
which passed the decree ordering such sale for execution of such
decrees, and have not obtained satisfaction thereof.
(2) Where all or any of the assets liable to be rateably distributed under this
section are paid to a person not entitled to receive the same, any person so
entitled may sue such person to compel him to refund the assets.
(3) Nothing in this section affects any right of the Government.
Calcutta.—Omit clause (c) of the proviso in sub-rule (1). Vide Cal. Gaz. Pt. I, dated April
20, 1967.
COMMENT—
The intention of the section is to secure an equitable administration of the property by

placing all the decree-holders on the same level and making the property rateable
divisible among them.413
Section 73 lays down merely a rule of procedure and not a rule of substantive law.
Neither it enlarges nor curtails the rights given to a decree-holder by his decree. As
such this section cannot be involved to enable decree-holders to satisfy his decree
from assets which he could not otherwise touch if section 73 was not on the statute
book. Conversely this section cannot be utilised to deprive a decree-holder from
satisfying his decree from assets which he would have been otherwise entitled to
follow in execution.414
All those who applied for execution before the receipt of the assets are equally entitled
to rateable distribution of the same irrespective of any priority in the matter of
attachment of the property.415 Creditors are not entitled to preferential treatment by
reason of priority of attachment. If a fund in a Court has been attached by several
creditors none can claim preferential treatment owing to the priority of attachment.416
Conditions for rateable distribution.—
According to Mulla,417 to entitle to decree-holder to participate in the assets of a

judgment-debtor the following conditions must be present:
(1) The decree-holder claiming to share in the rateable distribution should have
applied for execution of his decree to the appropriate Court;
(2) Such application should have been made prior to the receipt of the assets by the
Court;
(3) The assets of which rateable distribution is claimed must be assets held by the
Court;
(4) The attaching creditor as well as the decree-holder claiming to participate in the
assets should be holders of decrees for the payment of money;
(5) Such decrees should have been obtained against the same judgment debtor.
No rateable distribution can be claimed under this section unless all the conditions
enumerated above are fulfilled.
We would now proceed to examine these conditions:
(1) Such an application is necessary not only for the enforcement of his right to
rateable distribution but also to control similar rights of rival decree-holders. But
it is not necessary for a decree-holder to have attached the property418 or to
make a specific application for rateable distribution.419
(2) In order to claim rateable distribution under this section a decree-holder must
have applied for execution before the receipt of assets by the Court.420 The
section only requires that there must be an application still subsisting and
pending before the assets are received by the Court.
(3) The right to rateable distribution under the present section is conditional upon
there being assets held by the Court.421 Hence, where the property attached is
purchased by attaching decree-holder, no right to rateable distribution arises as
in such a case no proceeds come into the hands of the Court.422
(4) One of the essential conditions for the applicability of this section is that the
claimants for rateable distribution and the attaching decree-holder must be
holder of decrees for the payment of money.423 It is not enough if the creditor
has merely filed a suit against the judgment-debtor. Where no decree has been
passed in favour of the claimant on the date of receipt of assets, he will not be
entitled to rateable distribution nor can the Court grant him an injunction to
enable him to obtain a decree and then apply for rateable distribution.424
(5) The last condition for the applicability of the section is that the decree should
have been obtained against the same judgment-debtor.425 Thus where X
obtains a decree against A and Y obtains a decree against B, the decrees are not
against the same judgment-debtor even if A himself is a judgment-debtor of B.
It is not necessary that all the judgment-debtors in each of the several decrees should
identically be the same. It is sufficient if there is one judgment-debtor common to all
the decrees. Thus, where X gets a decree against A, Y, a decree against A and B and Z, a
decree against A, B and C, all the decrees are against the same judgment-debtor with
respect to the assets of A held by the Court. However, if the assets are realised from C
or his property, X and Y are not entitled to claim rateable distribution.
The words "same judgment-debtor" will not include a person who does not occupy the
same character in all the decrees.426 Thus a decree against A in his personal capacity
and a decree against a firm of which A is a partner are not decrees against the same
judgment-debtor.427
Sale subject to mortgage—Proviso (a)—Mortgagee cannot get a rateable

distribution.—
This clause declares the incompetence of a mortgagee or encumbrance as such to

share in any surplus proceeds when property sold subject to his mortgage or charge.
Sale free mortgage—Proviso (b)—Rights of mortgagee.—
A mortgagee or an incumbrancer has been afforded an alternative of consenting to the

property being sold free of his mortgage or charge in which case the Court may give
him the same right against proceeds as he had against the property.
Sale in execution of decree on mortgage—Proviso (c)—Mode of applying the

sale proceeds.—
This proviso refers to a sale in execution for the enforcement of an encumbrance; but
in distributing the sale proceeds the discharge of subsequent encumbrances alone is
taken into account, but no payment can be made to an incumbrancer who is a
subsequent one if the mortgagor challenges its existence or validity. Under this proviso,
the application for execution must be made prior to the sale of the property.
Under this provision the proceeds of sale, after defraying expenses on the sale, must be
applied in the first instance in discharging the amount due to decree-holders. The
balance left over should be distributed amongst the respondents. The High Court was
in error in holding that the respondents were entitled to rateable distribution of the
assets alongwith the applicant.428
Suit for refund of assets.—
Sub-section (2) enacts that a suit will lie for refund of assets wrongly distributed and an
order under this section does not constitute a conclusive judicial determination of the
rights between the parties. It has been held by the Rajasthan High Court429 that the
fact that the remedy by way of suit under section 3(2) is open does not prevent the
Court from exercising its inherent powers and passing appropriate orders by reversing
its own wrong orders to meet the ends of justice.
Priority of debts—
Sub-section (3).—It is a generally recognised principle of law that a claim of a State has
precedence over all other claims. Accordingly, judgment-debt due to the State is
entitled to priority over all other decrees,430 and this will not violate Article 16 of the
Constitution, dealing with right of equality.431
The sale proceeds of judgment-debtor's property lying in the Court may be claimed by
the State in exercise of its right to priority even without prior attachment in execution of
some other decree. If the state does not choose to apply to the Court for payment of its
dues but allows the amount to be taken away by the attaching decree-holder, then the
State cannot thereafter, claim the amount.432 It will not be out of place to mention here
that the Government need not file a separate suit to enforce its right of priority but can
simply file an application under this sub-section for payment of its dues in priority cover
the other money decree-holders.433 The application however, just be made before the
assets are paid over to the decree-holder.434
Where an order for rateable distribution has been made by the Court, the judgment-
debtor's money becomes decree-holders' money, though actual disbursement is yet to
take place. If thereafter, the State as the decree-holder lays its priority claim then it will
be of no avail as the property has gone beyond the reach of the State. It is no more the
property of the debtor against whom the State had a claim.435
Appeal or Revision.—
An order under this section is not appealable as an order.436 However it will be

appealable as a decree if the conditions of section 47 are satisfied.437
Regarding revision, the Punjab High Court438 held as a general rule, High Court will not
interfere in revision in such cases, as other remedy is available under subsection (2) of
this section.
413 (1965) 2 MLJ 499 .
414 Hoti Lal v Chatur Prasad, AIR 1941 All 110 (FB) : 1941 All LJ 187.
415 Rajmal v Lachman, AIR 1951 Ajm 58 .
416 Khatemannessa Bibi v Upendra Chandra, AIR 1928 Cal 804 .
417 See Mulla's Code of Civil Procedure. Students Edn 1972 p 170; see also Bishmbar v Aparna
Charan, AIR 1935 Cal 290 (FB).
418 Manora Bai v Sultan Bakath Begum, AIR 1968 AP 113 .
419 Rafiq Mohammad v Mangilal, AIR 1968 Raj 3 ; see also Suraj Lal Balkrishandas v Padrauna
Rajkrishna Sugar Works Ltd, AIR 1961 All 371 . See also Solomon Nahome v AE Mc Cnn, AIR 1940
Rang 201 (FB); Satyendra Nath v Bibhuti Bhushan, AIR 1963 Cal 104 : (1963) 1 CALLT 318 (HC),
and K Abdul Salam Saheb v B Birabhudra Raju, AIR 1929 Mad 703 (FB).
420 Manora Bai v Sultan Bakath Begum, AIR 1968 AP 113 .
421 Excise & Taxation Officer v Gauri Mal Butail, AIR 1961 Punj 292 : (1960) 1 Punj 809.
422 Mallappa Karabasappa v Irappa Shidlingappa, AIR 1943 Bom 261 (FB).
423 AIR 1961 Punj 292 (supra).
424 Unnamalai Achi v Umayal Achi, (1968) 2 MLJ 544 .
425 Hotilal v Chatura, AIR 1941 All 110 (FB) : 1941 All LJ 187.
426 Yayi Ramakrishnan Chettiar v Kasi Vishwanath Chettiar, AIR 1936 Mad 40 (FB).
427 Girdhari Lal v Munilal, AIR 1963 Punj 43 .
428 Abdul Jabbar v Venkata Sastri, AIR 1969 SC 1147 (1153) : (1969) 1 SCC 573 .
429 Laxmi Narain v Firm Ram Kumar, AIR 1971 Raj 30 .
430 Thanmal v IT Officer, AIR 1958 All 636 (DB).
431 Pappu Reddiar v UOI, AIR 1963 Mad 209.
432 UOI v Soma Sundaram Mills, AIR 1985 SC 407 : (1985) 2 SCC 40 .
433 (1968) 2 Andh WR 394.
434 AIR 1970 Mad 190 .
435 Kotak v State of UP, AIR 1987 SC 738 : (1987) 1 SCC 455 .
436 See section 104 and O XLIII, rule 1.
437 AIR 1963 Cal 104 .
438 Sardarni Gurdial Kaur v S Satinder Singh, AIR 1965 Punj 412 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 74. Resistance to execution
© 2020 LexisNexis
PART II Execution
Resistance to Execution
S. 74. Resistance to execution
Where the Court is satisfied that the holder of a decree for the possession of
immovable property or that the purchaser of immovable property sold in execution of
a decree has been resisted or obstructed in obtaining possession of the property by
the judgment-debtor or some person on his behalf and that such resistance or
obstruction was without any just cause, the Court may, at the instance of the decree-
holder or purchaser, order the judgment-debtor or such other person to be detained in
the civil prison for a term which may extend to thirty days and may further direct that
the decree-holder or purchaser be put into possession of the property.
Calcutta.—Omit the words "that the holder of a decree for the possession of immovable
property or" after the words "Court is satisfied"; and the word "immovable" before
"property"; insert the words "referred to in Section 28 of the Presidency Small Cause
Courts Act, 1822"; after the word "property" and before the words "sold in execution"
omit the words "decree-holder or" between the words "at the instance of the" and
"purchaser"; omit the words "decree-holder or" between the words "direct that the" and
"purchaser". Vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
The scope of the section has been widened by making it applicable to cases where a
Court auction-purchaser is resisted or obstructed in obtaining possession of the
property purchased by him.
Power of executing court.—
The executing Court is not empowered to issue a warrant and direct the imprisonment
of a police officer who was directed to render assistance but failed to render
assistance to the officers of the executing Court.439
(For details See O XXI, rules 97-103 of the Code of Civil Procedure).
439 Utpal Kr Das v Court of Munsif No 1, Kamrup, (2008) 2 Gau LR 706 (715) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 75. Power of Court to issue
commissions
© 2020 LexisNexis
PART III Incidental Proceedings
Commissions
S. 75. Power of Court to issue commissions
Subject to such conditions and limitations as may be prescribed, the Court may issue
a commission—
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
1
[(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and
which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.]
COMMENT.—
Clauses (e) to (g) have been added by the Amending Act of 1976. It was felt that the
Court should be authorised to issue commissions for technical and expert
investigation. These Clauses have been added to confer power on the Court to issue
commissions for conducting scientific inquiries as and when required for determining
any issue before the Court.
The power of the Court to issue commission is discretionary. The fact that the
witnesses examined on commission cannot be effectively cross-examined or their
examination will entail heavy costs, are not sufficient circumstances, to interfere with
discretion of Court in appeal. The question whether the witnesses would appear before
the commissioner or not is also irrelevant. It is for the party to produce the witnesses
before the commissioner.2
The Court has also been empowered to appoint commissions to hold sales otherwise
than in execution, as also to issue commissions for the performance of any ministerial
act.
For more details regarding:

1. Commissions to examine witness, reference may be made to rules 1 to 8 of O
XXVI
2. Commissions for local investigation: rules 9-10 of O XXVI
3. Commissions to examine or adjust accounts: rules 11-12 of O XXVI
4. Commissions to make partition: rules 13-14 of O XXVI
5. Commissions for Scientific investigations: rule 10-A of O XXVI
6. Commissions for sale of movable property: rule 10-C of O XXVI
7. Commissions for performance of a ministerial act: rule 10-B of O XXVI
8. General Provisions: rules 15 to 18-B of O XXVI
Auction sale pending determination of right.—
Auction sale of paddy/rice (perishable item) pending determination of the rights of the
parties in suit, was upheld.3
2 Filmistan (Pvt) Ltd, Bombay v Bhagwandas, AIR 1971 SC 61 : (1970) 3 SCC 258 .
3 Satnam Agro Industries v State of Punjab, (2008) 15 SCC 784 (785).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 76. Commission to another
Court
© 2020 LexisNexis
Commissions
S. 76. Commission to another Court
(1) A commission for the examination of any person may be issued to any Court
(not being a High Court) situate in a 4[State] other than the 4[State] in which the
Court of issue is situate and having jurisdiction in the place in which the
person to be examined resides.
(2) Every Court receiving a commission for the examination of any person under
sub-section (1) shall examine him or cause him to be examined pursuant
thereto, and the commission, when it has been duly executed, shall be returned
together with the evidence taken under it to the Court from which it was issued,
unless the order for issuing the commission has otherwise directed, in which
case the commission shall be returned in terms of such order.
4 Subs for "Province" by IAO 1950.

4 Subs for "Province" by IAO 1950.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 77. Letter of request
© 2020 LexisNexis
Commissions
S. 77. Letter of request
In lieu of issuing a commission the Court may issue a letter of request to examine a
witness residing at any place not within 5[India].
COMMENT.—
Scope of the Section.—
This section provides that the power to issue a letter of request to any person other
than a Court to examine witnesses residing at any place not within India is
discretionary power and when properly exercised, cannot be interfered with an appeal
before the Supreme Court. Further, the power under this section is not subject to the
existence of any reciprocal arrangement between the two Governments.6
5 Subs by Code of Civil Procedure (Amendment) Act 2 of 1951, section 3 for "the States".
6 Filmistan Pvt Ltd, Bombay v Bhagwandas Sant Prakash, AIR 1971 SC 61 : (1970) 3 SCC 258 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S 78. Commissions issued by
foreign courts
© 2020 LexisNexis
Commissions
7[S 78. Commissions issued by foreign courts
Subject to such conditions and limitations as may be prescribed, the provisions as to

the execution and return of commissions for the examination of witnesses shall apply
to commissions issued by or at the instance of—
(a) Courts situate in any part of India to which the provisions of this Code do not
extend; or
(b) Courts established or continued by the authority of the Central Government

outside India; or
(c) Courts of any State or country outside India.]
7 Subs. by Act 2 of 1951, section 11 (w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 79. Suits by or against
Government
© 2020 LexisNexis
PART IV Suits in Particular Cases
Suits by or against the Government or Public Officers in their Official

Capacity
1[S. 79. Suits by or against Government
In a suit by or against the Government, the authority to be named as plaintiff or

defendant, as the case may be, shall be—
(a) in the case of a suit by or against the Central Government, 2[the Union of India],
and
(b) in the case of a suit by or against a State Government, the State.]
COMMENT.—
This section simply provides the procedure where a suit is to be instituted by or against
the Government. It in no way enlarges or affects the extent of the claims or liabilities
enforceable by or against the Government. These must now be determined under
Articles 294-300 of the Constitution of India.
The Court should never extend indulgence to Government so as to give the impression
to public that it is a favoured litigant. It is equally necessary to insist that Government
does its duties efficiently so that the public interest may not suffer.3
Suits when lie against Government?—
Suits lie against the Government, when it acts under colour of legal title and not as a
sovereign authority. In order to determine in what cases a suit will lie against the
Government under the Constitution of India, reference may be made to Article 300(1).
The chief conservator of forests as the petitioner cannot be treated as the State of
Andhra Pradesh. Hence the writ-petition was not maintainable in view of the fact that
the State of Andhra Pradesh was not the petitioner.4
The Government will be liable for torts committed by its servant in the course of their
employment, provided it is not connected with the sovereign powers of the
Government.5
It has been held by the Supreme Court that the Government can, in relation to the
administration of Railways, be said to carry on business and that accordingly it can be
sued where the head office of the Railway is located.6
The provision under section 79 of the Code provides that in suits by and against the
Government, the authority to be impleaded as the plaintiff or the defendant would be
the Union of India or the Central Government or the State or the State Government.7
Impleadment of necessary party.—
Suit for the declaration of certain rights over the land belonging to State cannot be
granted without impleading it.8
Suit against part "C" State.—
A suit on a contract entered into by the Government of Vindhya Pradesh which was a
part "C" state could be filed against the State of Vindhya Pradesh. It was not needed to
be against the Union of India.9
1 Subs. by IAO 1948 for section 79.

2 Subs. by the AO 1950 for "the Dominion of India".
3 1970 Ker LJ 142 .
4 Chief Conservator of Forests v Collector, AIR 2003 SC 1805 (1811) : (2003) 3 SCC 472 .
5 State of Rajasthan v Vidyawati, AIR 1962 SC 933 : 1962 Supp (2) SCR 989 : (1963) 1 MLJ 70
(SC).
6 UOI v Ladulal Jain, AIR 1963 SC 1681 : (1964) 3 SCR 624 : (1964) 1 MLJ (SC) 38.
7 Collector v Bagathi Krishna Rao, (2010) 6 SCC 427 (429).
8 Jagtu v Suraj Mal, 2010 (3) ARC 877 (SC).
9 State of Vindhya Pradesh v Maula Bux, AIR 1962 SC 145 : (1962) 2 SCR 794 : 1962 Jab LJ 423
.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 80. Notice
© 2020 LexisNexis

Capacity
S. 80. Notice
10
[(1)] 11[Save as otherwise provided in sub-section (2)], no suit 12[shall be
instituted] against the Government 13(including the Government of the State
of Jammu and Kashmir)] or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity, until the
expiration of two months next after notice in writing has been [delivered to,
or left at the office of—
(a) in the case of a suit against the Central Government, 14[except where
it relates to a railway], a Secretary to that Government;
15 16
[ [(b)] in the case of a suit against the Central Government where it
relates to a railway, the General Manager of the railway;]
17
[(bb) in the case of a suit against the Government of the State of
Jammu and Kashmir, the Chief Secretary to that Government or
any other officer authorised by that Government in this behalf;]
(c) in the case of a suit against 18[any other State Government], a

Secretary to that Government or the Collector of the District, 19[***]
(d) 20 [***]
and, in the case if a public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place of
residence of the plaintiff and the relief which he claims; and the
plaint shall contain a statement that such notice has been so
delivered or left.
21
[(2) A suit to obtain an urgent or immediate relief against the Government
(including the Government of the State of Jammu and Kashmir) or any
public officer in respect of any act purporting to be done by such public
officer in his official capacity, may be instituted, with the leave of the Court,
without serving any notice as required by sub-section (1); but the Court shall
not grant relief in the suit, whether interim or otherwise, except after giving
to the Government or public officer, as the case may be, a reasonable
opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the Court shall, if it is satisfied, after hearing the parties, that
no urgent or immediate relief need be granted in the suit, retain the plaint for
presentation to it after complying with the requirements of sub-section (1).
(3) No suit instituted against the Government or against a public officer in respect
of any act purporting to be done by such public officer in his official capacity
shall be dismissed merely by reason of any error or defect in the notice
referred to in sub-section (1), if in such notice—
(a) the name, description and the residence of the plaintiff had been so
given as to enable the appropriate authority or the public officer to
identify the person serving the notice and such notice had been
delivered or left at the office of the appropriate authority specified in
sub-section (1), and
(b) the cause of action and the relief claimed by the plaintiff had been
substantially indicated.]
STATE AMENDMENT
Madhya Pradesh.— The following amendments were made by Madhya Pradesh Act 29 of
1984, Section 3, dated 14-8-1984.
In its application to the State of Madhya Pradesh,
(a) In Section 80(1), for the words, brackets and figures "sub-section (2)" substitute
"subsection (2) or sub-section (4)".
(b) After sub-section (3) insert as under—
"(4) Where in a suit or proceeding referred to in rule 3-B of Order I, the State is joined as
a defendant or non-applicant or where the Court orders joinder of the State as
defendant or non-applicant in exercise of the powers under sub-rule (2) or rule 10 of
Order I such suit or proceeding shall not be dismissed by reason of omission of the
plaintiff or applicant to issue notice under sub-section (1)".
COMMENT.—
The object of the section in providing for notice is to afford the public officer concerned
an opportunity to reconsider his legal position and make amends if so advised without
litigation.
Utility of the Provision.—
The provision of notice under this section is intended to alert the State to negotiate a
just settlement, or at least to have the courtesy to tell the potential outsider why the
claim is being insisted. The section has become a ritual as the administration is often
unresponsive. The central law commission has already recommended its deletion.22
Their Lordships of the Supreme Court observed as follows:-
The object of the notice contemplated by that section is to give to the concerned
Government and public officers opportunity to reconsider legal position and to make
amends or settle the claim, if so advised, without litigation. The legislative intention behind
that section in our opinion is that public money and time should not be wasted on
unnecessary litigation and the Government and public officers, should be given a reasonable
opportunity to examine the claim made against them lest they should be drawn into
avoidable litigations. The purpose of law is advancement of justice. The provisions in
Section 80, Civil Procedure Code are not intended to be used as boobytraps against ignorant
and illiterate persons. In this case we are concerned with a narrow question. Has the person
mentioned in the notice as plaintiff brought the present suit or is he some one else? This
question has to be decided by reading the notice as a whole in a reasonable manner.23
Imperative Provisions.—
In each case the Court must see whether the following four imperative provisions are
present: (1) whether the name, description and residence of the plaintiff are given for
enabling identification of the person, (2) whether the cause of action and relief are set
out with sufficient particularity, (3) whether the notice has been delivered to or left at
the office of the appropriate authority, (4) whether the suit is instituted after the expiry
of two months and the plaint contains a statement that the notice has been so
delivered or left. There is identity where notice is given by the karta of a joint family, but
a subsequent partition made it necessary for the suit to be brought by all the divided
coparceners and the notice was sufficient.24
In respect of the suits to which section 80 applies, compliance with it is mandatory. A

suit which does not satisfy its terms is liable to be dismissed.25
A decision based on applicability of section 80 as well as on merits operates as res

judicata in respect of all issues raised.26
Prior notice to Government.—The practice developed of either not replying or giving

vague replies of notice defeats the object of section 80. The Government/other
authorities are directed to nominate an officer who would be responsible for replying to
notices under section 80. The Courts should award heavy cost against the Government
if no replies or evasive replies are given despite nomination. Appropriate action should
be taken against nominated officer.27
Application of the section.—
This section must be strictly complied with. But strict construction does not mean that
is should be construed in a pedantic manner or in a manner divorced from common
sense.28
The provisions of section 80 are attracted to a suit filed under O XXI, rule 63. The period
covered by the notice can be excluded for computing the period of limitation.29
The terms of section 80, Civil Procedure Code are absolutely preemptory and admits to
exceptions or qualifications.30 A suit instituted without compliance of the provisions
under this section shall be rejected under O VII, rule 11 of the Code.31
This section applies to all suits whether they are suits for declaration of injunctions,
mandatory or prohibitory and suits for damages.32
Suit without notice not maintainable.—
The Coal Mines Provident fund Commissioner is a public officer. The suit filed against
such officer without notice under section 80 of the Code is not maintainable.33
A suit against the Government or a public officer to which the requirement of a prior
notice under section 80 Code of Civil Procedure is attracted, cannot validly be instituted
until the expiration of a period of two months next after the notice in writing. If filed
before the expiry of the said period, then the suit is to be dismissed as not
maintainable.34
This section deals with two classes of suits: (1) suits against the Government and (2)
suits against public officers. Under the first class, a notice must be given in all cases,35
while under the second class the notice is necessary only when the suit has been
instituted in respect of any act purporting to be done by such public officer in his
official capacity.36 Such acts of public officers will not cover acts which are outside the
scope of their duties or such public officers although the officer committing such acts
pretends to do the act in his official capacity.37 As for instance, if any public officer
uses defamatory language or commits an act of assault, it will not amount to be an act
within the sphere of his duties.
Exception.—
By inserting sub-section (2) to this section provision has been made for the institution
of a suit for obtaining an urgent or immediate relief against the Government or any
public officer in respect of any act purporting to have been done by such public officer
in his officer capacity without serving any notice under section 80. But it is made clear
that in such a case, the Court would not grant any relief unless the Government or the
public officer, as the case may be, has been given a reasonable opportunity of showing
cause in respect of the relief prayed for in the suit.
The Court has to hear both the parties so as to be satisfied about the existence of such
grave urgency which requires filing suit without serving notice under section 80. The
Court only on being so satisfied would pass an order on application under section
80(2) granting leave, to proceed with the suit but in case of rejection of an application
under section 80(2) as provided therein, plaint would be liable to be rejected under O VII
rule 11.38
By inserting sub-section (3) it has been ensured that the just claims of many persons
are not defeated on technical grounds merely or error in the notice or any irregularity in
the service, of the notice, if the name, description and residence of the plaintiff has
been so given in the notice as to enable the appropriate authority or public officer to
identify the person serving notice and the notice had been delivered or left at the office
of the appropriate authority, and that the cause of action and the relief claimed have
been substantially indicated in the notice.
Reference may be made to a decision of Supreme Court in Ghanshyam Das v Dominion

of India, AIR 1984 SC 1004 : (1984) 3 SCC 46 : (1984) 10 ALR 318 ; SN Dutt v UOI, AIR
1961 SC 1449 . In this case a notice under section 80 was issued by the plaintiffs
father, but his claim was denied. He died before he could institute a suit against the
Government. The sons filed a suit without issuing any fresh notice under section 80
Code of Civil Procedure. Reversing a decision of Allahabad High Court, it has been held
that no fresh notice was necessary.
The provisions of section 80 of the Code are "express, explicit and mandatory".39
It was further held that "The language of section 80 of the Code of Civil Procedure is
that a notice to be given against not only the Government but also against the public
officer in respect of any act purporting to be done in his official capacity".40
Who is a Public Officer/Public Servant.—
A Municipal council is not a public officer and no notice is necessary when a suit is
filed against a municipality. Thus, the question of sufficiency of notice under section 80
of the Code of Civil Procedure does not arise at all.41
Coal Mines Provident Fund Commissioner is a "public servant" under section 2(17) and
hence notice under section 80 is required to be given before filing suit against
CMPFC.42
Sufficiency of notice.—
Where a suit has been instituted against several defendants one of them being the
Government or a public officer and no notice under this section is given the whole suit
is not bad, but is bad only in respect of Government or the public officer.43 But where
there are two plaintiffs, notice by one to the Government or the public officer is not
sufficient within the meaning of this section, and the suit as a whole is bad.44
Notice served on the District Collector is sufficient and complete notice to Government
Middle School which was represented through the Education Officer.45
Where in a suit for injunction against the state, a Block Development Officer was
impleaded as State's agency of interference with plaintiffs possession, a notice under
section 80 of Code of Civil Procedure was issued to the State, the suit against BDO
cannot be dismissed for want of notice.46
Where in a suit by the daughter of Bhoomidhar for declaration that order passed on
surplus land by the authorities is illegal and the state has neither been impleaded nor
served notice under this section, the suit is not maintainable.47
If a plea as to want of notice has already been taken in the original written statement
then, after amendment of the plaint, it need not be raised in the additional written
statement again.48
Form of notice.—
It is not necessary that the notice under this section should be in any particular form.
But it must fulfil to a greater extent its object in informing the parties concerned about
the nature of the suit intended to be filed.49 Viewed in this respect, it is essential that
the notice should state the cause of action and the relief claimed.50
Fresh suit to be filed without fresh notice.—
The plaintiffs father, a contractor, supplied charcoal to the Government. He issued

notice under section 80 to Government but his claim for an additional amount was
denied. He died before he could institute a suit against the Government. The sons filed
a suit without issuing any fresh notice under section 80 Code of Civil Procedure. The
notice already issued would ensure to their benefit and fresh notice is not necessary.51
Waiver of notice.—
There is no reason why the notice required to be given under this section not be waived
if the authority concerned thinks it fit to do so. It is for his protection that the notice is
required. It is always for the plaintiff to prove facts constituting waiver or estoppel.
If an amendment of plaint introduces a new cause of action, then fresh notice is

necessary. The right to such a notice can be waived by the party for whose benefit it
has been provided.52
Leave of court to sue without notice.—
The suit can be instituted against the Government without complying with the
requirement of serving notice under section 80(1), only with the leave of the Court as
enjoined under section 80(2).53
Permission to sue without notice to be reasoned.—
The permission to institute a suit without notice is to be granted by a speaking and

reasoned order.54
The plaintiff takes leave of the court to file such suit by satisfying the court that
urgency is involved, therefore compliance of section 80 may be exempted or waived,
the court may allow such suit to be filed without serving prior notice to the government
respondents. In case the court is not satisfied that such facts and circumstances
necessitating waiving of the serving of prior notice does not exist, the court may return
the suit to be filed after service of notice to the government respondent. W Thanthianga
v State of Mizoram, AIR 2018 Gau 143 .
No notice under section 80 is required when suit is filed against Municipal Council/
Municip ality.55
10 Ins. by Act 104 of 1976, section 27(a) (w.e.f. 1-2-1977).

11 Subs. by Act 104 of 1976, section 27, for "No suit shall be instituted" (w.e.f. 1-2-1977).
12 Subs. by Act 26 of 1963, section 3 for "shall be instituted against the Government" (w.e.f. 5-
6-1964). The words in italics were subs. by the A.O. 1948 for "instituted against the Crown".
13 Ins. by Act 26 of 1963.
14 Ins. by Code of Civil Procedure (Amendment) Act 6 of 1948 section 2.
15 Ins. as clause (aa) by ibid.
16 Clause (aa) relettered as cl (b) and former clause (b) omitted by IAO 1948.
18 Subs. for "a State Government" by Act 26 of 1963, section 3 (w.e.f. 5-6-1964).
19 The word "and" omitted by the A.O. 1948.
20 Cl. (d) omitted by IAO 1948.
21 Ins. by Act 104 of 1976, section 27(b) (w.e.f. 1-2-1977).
22 State of Punjab v Geeta Iron & Brass Works, AIR 1978 SC 1608 : (1978) 1 SCC 68 : (1978) 1
SCR 746 .
23 Raghunath Das v Union of India, AIR 1969 SC 674 ; see also State of Madras v CP Agencies,
AIR 1960 SC 1309 ; see also State of AP. v Gundygola Venkata Suryanarayana Garu, AIR 1965 SC
11 ; Union of India v Landra Engineering and Foundary Works, AIR 1962 Punj 262 (FB).
24 BeoharR Sinha v State of MP, AIR 1969 SC 1256 (1259) : (1969) 1 SCC 796 .
25 Amar Nath Dogra v UOI, AIR 1963 SC 424 (426) : (1963) 1 SCR 657 .
26 Gangappa G Gugwad v Rachawwa, AIR 1971 SC 442 (446) : (1970) 3 SCC 716 .
28 Raghunath Das v UOI, AIR 1969 SC 674 (supra).
29 Sawai Sinzhai N Chand v UOI, AIR 1966 SC 1068 (1071) : (1966) 1 SCR 986 : 1966 Mah LJ
371 .
30 The State Of Madras v CP Agencies AIR 1960 SC 1309 ; see also (1971) 2 Cut WR 97.
31 Lakshmi Narain v UOI, AIR 1962 Pat 64 (DB).
32 Abida Begum v Rent Control and Eviction Officer Lucknow, AIR 1959 All 675 ; see also Ram
Chandra Bhagat v Eva Mitra, AIR 1960 Pat 378 .
33 Coal Mines Provident Fund Commr v Ramesh Chandra Jha, AIR 1990 SC 648 (650).
34 Bihari Chaudhary v State of Bihar, AIR 1984 SC 1043 : (1984) 1 SCC 627 ; see also Bhagchand
Dagadnsa v Secretary of State for India, AIR 1927 PC 176 : 54 IA 338 : 51 Bom 725 and Judicial
Committee in Vellayan v Madras Province, AIR 1947 PC 197 relied on.
35 Swami SNirmal Chandv UOI, AIR 1966 SC 1068 ; see also AIR 1921 Goa 22 .
36 Sukumari Gupta v Dhirendra Nath Roy, AIR 1941 Cal 643 : 73 CLJ 356.
37 Mohanta R Das v DAVNaidu, AIR 1961 Ori 31 .
38 State of Kerala v Sudhir Kumar Sharma, (2013) 10 SCC 178 (Para 19 to 22).
39 State of Maharashtra v Chander Kant, AIR 1977 SC 148 (150) : (1977) 1 SCC 257 : (1977) 1
SCR 993 .
40 (1977) 1 SCC 257 (260) supra.
41 City Municipal Council, Bhalki by its Chief Officer v Gurappa, AIR 2015 SC 3826 .
42 Coal Mines Provident Fund Commissioner, Thr, Board of Trustee v Ramesh Chandra Jha, AIR
2012 SC 408 .
43 M G Tipnis v UOI, AIR 1970 MP 5 .
44 Brijlal Ramjidas v Govindram Gordhandas, AIR 1947 PC 192 : 50 BLR 556 : 52 CWN 82.
45 Ram Kumar v State of Rajasthan, (2008) 10 SCC 73 (78) : AIR 2009 SC 4 (8, 9); see also
Gyanajeet Moharana v Binodini Pattanaik, AIR 2009 (NOC) 674 (Ori).
46 Ghulam Rasool v State of J&K, AIR 1983 SC 1188 : (1983) 4 SCC 623 .
47 Sooraj v SDO, Rehli, AIR 1995 SC 872 : (1995) 2 SCC 45 .
48 Bishandayal v State of Orissa, AIR 2001 SC 544 (549) : (2001) 1 SCC 555 .
49 State of Madras v CP Agencies, AIR 1960 SC 1309 .
50 Ibid.
51 Ghanshyam Dass v Dominion of India, AIR 1984 SC 1004 (1011) : (1984) 3 SCC 46 : (1984) 10
ALR 318 ; SN Dutt v UOI, AIR 1961 SC 1449 (1962) 1 SCR 560 overruled.
52 Bishandayal v State of Orissa, AIR 2001 SC 544 (549) : (2001) 1 SCC 555 .
53 Bajaj Hindustan Sugar & Industries Ltd v Balrampur Chini Mills Ltd, (2007) 9 SCC 43 (51).
54 Gyanajeet Moharana v Binodini Pattanaik, (2009) 107 Cut LT 132 (134-135) (DB).
55 City Municipal Council Balki v Gurappa, AIR 2015 SC 3826 : 2016 (1) AJR 565 : 2015 (4) AKR
579 : 2015 (10) SCALE 297 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 81. Exemption from arrest
and personal appearance
© 2020 LexisNexis

Capacity
S. 81. Exemption from arrest and personal appearance
In a suit instituted against a public officer in respect of any act purporting to be done
by him in his official capacity—
(a) the defendant shall not be liable to arrest nor his property to attachment
otherwise than in execution of a decree, and
(b) where the Court is satisfied that the defendant cannot absent himself from his
duty without detriment to the public service, it shall exempt him from
appearing in person.
Exemption from personal appearance.—
Where copies of the documents required by the Court were on record and assurance
was given by the Solicitor General that the originals of the same would be made
available to the Court as directed by it. In facts and circumstances, directions were
given to produce required documents through any designated officers or through their
counsel, and direction of the High Court for personal presence of officers was
stayed.56
56 Coal India Ltd v Imenk Son, AIR 2005 SC 1842 (1843).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 82. Execution of decree
© 2020 LexisNexis

Capacity
S. 82. Execution of decree
57
[(1) Where, in a suit by or against the Government, or by or against a public
officer in respect of any act purporting to be done by him in his official
capacity, a decree is passed against the Union of India or a State or, as the
case may be, the public officer, such decree shall not be executed except in
accordance with the provisions of sub-section (2)].
(2) Execution shall not be issued on any such decree unless it remains unsatisfied
for the period of three months computed from the date of 58[such decree].
59
[(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order
or award as they apply in relation to a decree, if the order or award—
(a) is passed or made against 60[the Union of India] or a State or a public

officer in respect of any such act as aforesaid, whether by a Court or
by any other authority, and
(b) is capable of being executed under the provisions of this Code or of

any other law for the time being in force as if it were a decree].
COMMENT.—
The previous sub-section (1) was substituted by the present subsection (1) and in the
sub-section (2) for the words "such report", the words "such decree" were substituted
by the Amending Act of 1976.
The previous sub-section (1) provided that where a decree is passed against the
Government or a public officer, a time shall be specified in the decree within which it
shall be satisfied and if the decree is not satisfied within the time so specified or within
three months from the date of the decree where no time is so specified, the Court shall
make a report of the case to the State Government and execution shall not be issued
on any such decree unless it remains unsatisfied for a period of three months
computed from the date of such report. The necessity of making a report to the
Government has now been dispensed with by the Amending Act of 1976.
Various rules regulating procedural matters in suits by or against the Government or

public officers in their official capacity are to be found in O XXVII of the Code.
Reference may be made to that Order for more details.
1977).
58 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 28(ii) for "such
report" (w.e.f. 1-2-1977).
59 Ins. by Act 32 of 1949, section 2.
60 Subs. by the AO 1950 for "the Dominion of India".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 83. When aliens may sue
© 2020 LexisNexis
61[Suits by Aliens and by or against Foreign Rulers, Ambassadors and

Envoys]
62[S. 83. When aliens may sue
Alien enemies residing in India with the permission of the Central Government, and
alien friends, may sue in any Court otherwise competent to try the suit, as if they were
citizens of India, but alien enemies residing in India without such permission, or
residing in a foreign country, shall not sue in any such Court.
Explanation. —Every person residing in a foreign country, the Government of which is

at war with India and carrying on business in that country without a licence in that
behalf granted by the Central Government, shall, for the purpose of this section, be
deemed to be an alien enemy residing in a foreign country.
COMMENT.—
This section deals with the matter as to when aliens may sue in the Courts otherwise
competent to try the suit. Aliens friends are treated on the same footing as if they were
citizens of India. Thus, an alien prince is competent to sue in a Court in India. An alien
enemy residing in India with the permission of the Central Government may also sue in
the Courts in India. The section does not preclude suits against aliens not so residing
or affect their right of defence in such suits.
An alien enemy who is residing in a foreign country is not permitted to sue in Indian
Courts. Thus, for example where some of the partners are residing in a hostile country,
the firm cannot maintain an action in the Indian Courts.
Suits by or against Foreign States, Foreign Rulers, Ambassadors and Envoys.
61 Subs. for former, sections 83 to 87 by C P Code (Amendment) Act 2 of 1951, section 12

(w.e.f. 1-4-1951).
62 Subs. for former sections 83 to 87 by C P Code (Amendment) Act 2 of 1951, section 12
(w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 84. When foreign states
may sue
© 2020 LexisNexis

Envoys]
63S. 84. When foreign states may sue
A foreign State may sue in any competent Court:
Provided that the object of the suit is to enforce a private right vested in the Ruler of
such State or in any officer of such State in his public capacity].
COMMENT.—
Private rights.—
The private rights spoken of in this section do not mean individual rights as opposed to
those of the body politic but those private rights of the State which must be enforced in
a Court of Justice as distinguished from its political or territorial rights which must,
from their very nature, be made the subject or arrangement between one State and
another. They are rights which may be enforced by a foreign state against private
individuals as distinguished from rights which one State in its political capacity may
have as against another State in its political capacity.64

(w.e.f. 1-4-1951).
63 Subs for former sections 83 to 87 by Code of Civil Procedure (Amendment) Act 2 of 1951.
64 Mirza Ali Akbar v United Arab Republic, AIR 1966 SC 230 : (1966) 1 SCR 319 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 85. Persons specially
appointed by Government to prosecute or defend on behalf of foreign Rulers
© 2020 LexisNexis

Envoys]
65[S.85. Persons specially appointed by Government to prosecute or defend

on behalf of foreign Rulers
(1) The Central Government may at the request of the Ruler of a foreign State, or
at the request of any person competent in the opinion of the Central
Government to act on behalf of such Ruler, by order, appoint any persons to
prosecute or defend any suit on behalf of such Ruler, and any persons so
appointed shall be deemed to be the recognised agents by whom appearances,
acts and applications under this Code may be made or done on behalf of such
Ruler.
(2) An appointment under this section may be made for the purpose of a specified
suit or of several specified suits or for the purpose of all such suits as it may
from time to time be necessary to prosecute or defend on behalf of such Ruler.
(3) A person appointed under this section may authorise or appoint any other
persons to make appearances and applications and do acts in any such suit or
suits as if he were himself a party thereto].

(w.e.f. 1-4-1951).
65 Subs. for former Sections 83 to 87 by Code of Civil Procedure (Amendment) Act 2 of 1951.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 86. Suits against foreign
Rulers, Ambassadors and Envoys
© 2020 LexisNexis

Envoys]
66[S. 86. Suits against foreign Rulers, Ambassadors and Envoys
(1) No 67[* * *] foreign State may be sued in any Court otherwise competent to try
the suit except with the consent of the Central Government certified in writing
by a Secretary to that Government:
Provided that a person may, as a tenant of immovable property, sue without such
consent as aforesaid 68[a foreign State] from whom he holds or claims to hold the
property.
(2) Such consent may be given with respect to a specified suit or to several
specified suits or with respect to all suits of any specified class or classes, and
may specify, in the case of any suits or class of suits, the Court in which the
69[foreign State] may be sued, but it shall not be given, unless it appears to the
Central Government that the 70 [foreign State]—
(a) has instituted a suit in the Court against the person desiring to sue 71[it],
or
(b) by 72[itself] or another, trades within the local limits of the jurisdiction of
the Court, or
(c) is in possession of immovable property situate within those limits and is

to be sued with reference to such property or for money charged
thereon, or
(d) has expressly or impliedly waived the privilege accorded to 73[it] by this
section.
74
[(3) Except with the consent of the Central Government, certified in writing by a
Secretary to that Government, no decree shall be executed against the
property of any foreign State.]
(4) The preceding provisions of this section shall apply in relation to—
75
[(a) any Ruler of a foreign State;]
76
[(aa)] any Ambassador or Envoy of a foreign State;
(b) any High Commissioner of a Commonwealth country; and
(c) any such member of the staff 77 [of the foreign State or the staff or
retinue of the Ambassador] or Envoy of a foreign State or of the High
Commissioner of a Commonwealth country as the Central Government
may, by general or special order, specify in this behalf,
78[as they apply in relation to a foreign State].
79
[(5) The following persons shall not be arrested under this Code, namely:—
(a) any Ruler of a foreign State;
(b) any Ambassador or Envoy of a foreign State;
(c) any High Commissioner of a Commonwealth country;
(d) any such member of the staff of the foreign State or the Staff or
retinue of the Ruler, Ambassador or Envoy of a foreign State or of the
High Commissioner of a Commonwealth country, as the Central
Government may, by general or special order, specify in this behalf.
(6) Where a request is made to the Central Government for the grant of any
consent referred to in sub-section (1), the Central Government shall, before
refusing to accede to the request in whole or in part, give to the person making
the request a reasonable opportunity of being heard].
COMMENT.—
The word "Ruler" was substituted by "Foreign State". Subsection (5) and (6) were added
newly by the Amending Act of 1976.
In view of the Supreme Court decision in Ali Akbar v UAR, AIR 1966 SC 230 (1966) 1
SCR 319 . supra the section has been amended by the Amending Act of 1976 and now
all the Foreign States are immune. The immunity for Rulers has, however, been
preserved for exceptional cases.
"Sued"—Meaning of.—
A person is sued not only when the suit is filed but also when it is continued after filing.
The word "sued" covers the entire proceedings in an action. The prohibition in section
87-B affects not only a suit instituted after the enactment of section 87-B but also one
which is pending.80
Reasons should be stated for rejecting application under section 86.—
The Central Government while considering an application under section 86 should

state clearly and intelligibly its reasons for rejecting the application.81
Except in cases where the claim appears to be frivolous patently, the Central
Government should normally accord consent or give sanction against foreign states
unless there are cogent political and other reasons. An objective evaluation and
examination by an appropriate authority of relevant and material factors, in exercising
the jurisdiction under this section should be done.82
If it appears to the Central Government that, any attempt on the part of the plaintiff, to
sue a foreign State, including any company or corporation, is just to harass or to drag
them in a frivolous litigation, then certainly the Central Government shall be justified in
rejecting any application for consent. Such motivated action on part of the plaintiff,
may strain the relations of the country with the foreign State. The object of section 86
is to save foreign States from being harassed by defending suits in which there are
hardly any merits. The bar of this section can be taken at the earliest opportunity and
the Court concerned is expected to examine the same.83
Exemption from being sued.—
No Ruler of any former Indian State may be sued in any Court otherwise competent to
try the suit, except with the consent of the Central Government. The proceedings under
section 14 read with section 17 of Arbitration Act, 1940 for passing of a judgment and
decree on an award is not a suit. Institution of this proceeding against the Ruler of a
former Indian State is not, therefore, barred by section 86(1) read with section 87B of
the Code.84

(w.e.f. 1-4-1951).
66 Subs. for former Sections 83 to 87 by Code of Civil Procedure (Amendment) Act 2 of 1951.
67 The words "Ruler of a" omitted by Act 104 of 1976, section 29(i)(a) (w.e.f. 1-2-1977).
68 The words "a Ruler" omitted by Act 104 of 1976, section 29(i)(b) (w.e.f. 1--2-1977).
69 The words "the Ruler" omitted by Act 104 of 1976, section 29(ii)(a) (w.e.f. 1-2-1977).
70 The words "the Ruler" omitted by Act 104 of 1976, section 29(ii)(a) (w.e.f. 1-2-1977).
71 Ibid, for "him", section 29(ii)(b) (w.e.f.-1-2-1977).
72 Ibid, for "himself", section 29(ii)(c)(w.e.f. 1-2-1977).
73 Ibid, for "him", section 29(ii)(d) (w.e.f. 1-2-1977).
74 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 29(iii), sub-section
3, (w.e.f. 1-2-1977).
75 Ins. by ibid, section 29(iv)(a) (w.e.f. 1-2-1977).
76 Clause (a) re-lettered as clause (aa) by Act 104 of 1976, section 29(iv)(a) (w.e.f. 1-2-1977).
77 Subs. by Act 104 of 1976 for certain words, section 29(iv)(b) (w.e.f. 1-2-1977).
78 Subs. by Act 104 of 1976 for certain words, section 29(iv)(c) (w.e.f. 1-2-1977).
79 Ins. by ibid, section 29(v) (w.e.f. 1-2-1977).
80 Mohanlal Jain v Sawai Man Singhji, AIR 1962 SC 73 (76) : (1962) 1 SCR 702 ; United Provinces
v Atiqua Begum, AIR 1941 FC 16 ; KC Mukharjee v RR Kuer, AIR 1936 PC 49 (relied on).
81 Shanti Prasad Agrawal v UOI, AIR 1991 SC 814 : 1991 Supp (2) SCC 296 .
82 Harbhajan Singh Dhalla v UOI, AIR 1987 SC 9 (14) : (1986) 4 SCC 678 .
83 VDS Rostok (DSP lines), Deptt of GDR v NC Jutemills Co Ltd, AIR 1994 SC 516 (520) : (1994) 1
SCC 682 : (1994) 1 MLJ (SC) 66.
84 Nawab Usman Ali v Sagar Mal, AIR 1965 SC 1798 (1800) : (1965) 3 SCR 201 : 1965 MPLJ
864 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 87. Style of foreign Rulers
as parties to suits
© 2020 LexisNexis

Envoys]
85[S. 87. Style of foreign Rulers as parties to suits
The Ruler of a foreign State may sue, and shall be sued, in the name of his State:
Provided that in giving the consent referred to in Section 86, the Central Government
may direct that the Ruler may be sued in the name of an agent or in any other name].
Calcutta.—Omit the words "and shall be sued", after the words "Ruling Chief may sue"
and before the words "in the name of; omit the proviso. Cal. Gaz. Pt. I, dated April 20,
1967.
COMMENT.—
Section 86 and this section relate to important matters of public policy and they cannot
be waived. It has been held by the Supreme Court in Mohanlal Jain v His Highness
Maharaja Shri Sawai, AIR 1962 SC 73 : (1962) 1 SCR 702 that section 86 applies at all
stages of action. A suit against a firm in which a Ruling Chief is a partner is not
maintainable without the requisite consent in so far as the suit is against him.86
However, the suit can be continued against other members of the firm.87 Section 86
applies only to suits and it has no application to insolvency proceedings,88 or
proceedings relating to probate matters89 or to proceedings under the Industrial
Disputes Act,90 or proceedings to pass a decree or an award.91
A State cannot be sued apart from the Ruler.92 For the purpose of section 87, a suit
against the State will be a suit against the Ruler of the State. In Ali Akbar v United Arab
Republic, AIR 1966 SC 230 : (1966) 1 SCR 319 their Lordships of the Supreme Court
observed:-
The effect of reading Sections 84, 86 and 87 is that a suit would be in the name of the State
whether it is a suit by a Foreign State under Section 84 or is a suit against the Ruler of a
Foreign State under Section 86. It would be permissible, as a matter of procedure, to draw a
sharp distinction between the Ruler of a foreign State and a foreign State of which he is the
Ruler. In every case, for the purpose of procedure the suit has to be in the name of a State.
In Harbhajan Singh v UOI, AIR 1987 SC 9 : (1986) 4 SCC 678 an Indian citizen sought
permission to sue a foreign embassy for the recovery of a huge amount due from it.
The sanction was firstly refused by the Central Government on "political grounds."
Subsequently, in an affidavit filed by Central Government before the Supreme Court, it

was stated that the Ministry was of the opinion that no prima facie case was made out
and hence sanction was refused. The order was set aside on the basis of two contra-
dictoryground.
(w.e.f. 1-4-1951).
85 Subs. for former ss. 83 to 87 by C P Code (Am) Act 2 of 1951.
86 Dulerai & Co v Pokardas Mongraj, AIR 1952 Bom 335 .
87 Maharani Mandalasa Kumari Das v Ram Narayan, AIR 1959 Bom 529 .
88 Madanlal v HHNawab Sayed, AIR 1940 Cal 244 .
89 Inderjit Singh v Rajindra Singh Ji, AIR 1956 Bom 45 .
90 Bhagwat Singhji v State of Rajasthan, AIR 1963 Raj 22 ; see also AIR 1964 SC 444 .
91 Nawab Usman Ali v Sagar Mill, AIR 1965 SC 1798 : (1965) 1 SCR 201 : 1965 MPLJ 864 .
92 Ali Akbar v United Arab Republic, AIR 1966 SC 230 : (1966) 1 SCR 319 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 87A. Definitions of “foreign
State” and “Ruler”
© 2020 LexisNexis

Envoys]
93[S. 87A. Definitions of "foreign State" and "Ruler"
(1) In this Part,—
(a) "foreign State" means any State outside India which has been
recognised by the Central Government; and
(b) "Ruler", in relation to a foreign State, means the person who is for the
time being recognised by the Central Government to be the head of that
State.
(2) Every Court shall take judicial notice of the fact—
(a) that a State has or has not been recognised by the Central Government;
(b) that a person has or has not been recognised by the Central Government
to be the head of a State].
COMMENT.—
The "Rule of a Foreign State", as defined takes in not only Rulers of Foreign States
which are governed by a monarchical form of the Government, but also the heads of
foreign State which has no monarchical form of Government as in the case of
Republics.94

(w.e.f. 1-4-1951).
93 Subs. for former sections 83 to 87 by Code of Civil Procedure (Amendment) Act 2 of 1951.
94 AIR 1966 SC 230 at p 235 : (1966) 1 SCR 319 (supra).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 87B. Application of
Sections 85 and 86 to Rulers of former Indian States
© 2020 LexisNexis
Suits against Rulers of Former Indian States
95[S. 87B. Application of Sections 85 and 86 to Rulers of former Indian States
96
[(1) In the case of any suit by State which is based wholly or in part upon a cause
of action which arose before the commencement of the Constitution or any
proceeding arising out of such suit, the provisions of Section 85 and sub-
sections (1) and (3) of Section 86 shall apply in relation to such Ruler as
they apply in relation to the Ruler of a foreign State].
(2) In this section—
(a) "former Indian State" means any such Indian State as the 97Central
Government may, by notification in the Official Gazette, specify for the
purposes of this section; 98[* * *]
99
"[(b) "commencement of the Constitution" means the 26th day of January,
1950; and
(c) "Ruler", in relation to a former Indian State, has the same meaning as in
Article 363 of the Constitution.]]
COMMENT.—
Validity.—
The provisions of section 87-B do not contravene Article 14 or Article 19(1)(f) of the
Constitution and are not invalid.100
The grant of consent under this section or refusal to grant consent is an act of State
and is not justiciable.101 But it is not the function of the Central Government to attempt
to adjudicate upon the merits of the claim in the proposed suit. Hence it is not open to
the Central Government to impose any conditions to such consent, or to accord
consent only in part or to refuse it in part. Thus, where the Government has accorded
consent to the plaintiff to file the suit, any further direction that the consent would not
operate in respect of certain properties would be invalid.102
The immunities available to the Ruler of a former Indian State under section 86 read
with this section do not extend to legal proceedings other than "suits" as defined in the
Code. Hence, in respect of reference under section 10 of the Industrial Disputes Act of
the dispute between former Indian State and his workmen, the former cannot claim
legal immunity under sections 86103 and 87-B.104
Suits By or Against Military, Naval and Air Personnel: (Order XXVIII).— Reference may
be made to rules 1 to 3 of O XXVIII, for more details.
Suits By or Against Corporations: (Order XXIX).—Reference may be made to rules 1 to
3 of O XXIX, for more details.
Suits By or Against Firms: (Order XXX).—Reference may be made to rules 1 to 10 of O

XXX, for more details.
Suits By or Against Trustees, Executors and Administrators: (Order XXXI and section
147).—Reference may be made to rules 1 to 3 of O XXXI, for more details.
Suits By or Against Minors and Persons of Unsound Mind: (Order XXXII).— Reference
may be made to rules 1 to 16 of O XXXII and also section 147 of the Code of Civil
Procedure.
Suits Relating to Family Matters: (Order XXXII-A and section 147).— Reference may be
made to rules 1 to 5 of O XXXII-A, for more details.
Suits By Indigent Persons: (Pauper Suits): (Order XXXIII).—Reference may be made to

rules 1 to 18 of O XXXIII, for more details.
Suits Involving Interpretation of the Constitution: (Order XXVII-A).— Reference may be

made to rules 1 to 4 of O XXVII-A, for more details.
Suits Relating to Mortgages of Immovable Property: (Order XXXIV).—
Reference may be made to rules 1 to 15 of O XXXIV, for more details.
95 Subs. for former Sections 83 to 87 by Code of Civil Procedure (Amendment.) Act 2 of 1951.
96 Subs. by Rulers of Indian States (Abolition of Privileges) Act 54 of 1972, section 3 (w.e.f. 9-9-
1972) for old sub-section (1) which ran thus:—
"(1) The provisions of section 85 and of sub-sections (1) and (3) of section 86 shall apply in
relation to the Rulers of any former Indian State as they apply in relation to the ruler of a foreign
State".
97 For notification specifying former Indian States, see Gaz of India, 1951, Pt II—Sec. Ext P 281.
98 The word "and" omitted by Act 54 of 1972, section 3 (w.e.f. 9-9-1972).
99 Subs. by Act 54 of 1972 for old clause (b) which ran thus:—
"(b) "Ruler" in relation to a former Indian State, means the person who, for the time being, is
recognised by the President as the Ruler of that State for the purposes of the Constitution".
100 Narottam K Deb Verman v UOI, AIR 1964 SC 1590 .

101 Jaswant Singhji v UOI, AIR 1970 Del 190.
102 Tokendra Bir Singh v Government of India, AIR 1964 SC 1663 .
103 AIR 1966 SC 230 (235) : (1966) 1 SCR 319 (supra).
104 Maharana Bhagwant Singh Ji v State of Rajasthan, AIR 1963 Raj 22 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 88. Where interpleader suit
may be instituted
© 2020 LexisNexis
Interpleader
S. 88. Where interpleader suit may be instituted
Where two or more persons claim adversely to one another the same debt, sum of
money or other property, movable or immovable, from another person, who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to
the rightful claimant, such other person may institute a suit of interpleader against all
the claimants for the purpose of obtaining a decision as to the person to whom the
payment or delivery shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties can properly
be decided, no such suit of interpleader shall be instituted.
COMMENT.—
An interpleader suit within the meaning of this section is a suit in which the real dispute
is between the defendants only and the defendants plead against each other instead of
pleading against the plaintiff as is usually done in an ordinary suit. Thus, for example A
is in possession of a jewel box but he claims no interest in the box himself, and is
willing to hand over to the rightful owner. The box is claimed by X and Y. A may file an
interpleader suit against X and Y and the Court will decide as to who is the rightful
owner of the box as between X and Y. In every interpleader suit there must be some
debt or sum of money or other property in dispute between the defendants only. The
plaintiff must be a person who claims no interest in such debt, sum of money or other
property in dispute between defendants other than for charges or costs and who is
ready to pay or deliver it to such of the defendants as may be declared by the Court to
be entitled to it. A plaint in an interpleader suit can be amended by inclusion of new
properties and joinder of new parties.105
An interpleader suit cannot be filed if any suit is pending in which the rights of all the
parties concerned can properly be decided. Where A is under a liability for any debt,
claimed adversely by X and Y and A desires protection against a wrong payment or
delivery, he can file a suit under this section. The only way in which he can protect
himself is by filing such a suit; otherwise if he litigated with each claimant separately,
he would have to pay the costs of the successful claimant.
The claims of the defendants must be bona fide. They must also claim the money or
other property adversely to one another from the plaintiff. The rival claims must be with
reference to the same debt, sum of money or other property.
In such suits, the plaintiff must be in an impartial position. If he has, in some way,
identified himself with one of the parties, in the sense that it will make a difference to
him which one of them succeeds, an interpleader suit will not lie. As such a party who
has taken an indemnity from one of the claimants is not entitled to file an interpleader
suit as held in Jugnath v Tulka, (1908) 32 Bom 592. In this case, A had a sum of Rs.
10,000 which sum was claimed from him both by X and Y, adversely to each other. A
thus instituted an interpleader suit against X and Y. It was found at the hearing that A
had entered into an agreement with X before the suit was instituted, that if X succeeded
in the suit, he would accept from A Rs. 75,000 only in full satisfaction of his claim. Here
A had an interest in the subject-matter of the suit by virtue of his agreement with X. He
was therefore not entitled to institute an interpleader suit and accordingly his suit was
dismissed.
105 Raja Bhagwati Baksh Singh v Civil Judge, AIR 1961 All 559 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 89. Settlement of disputes
outside the Court.
© 2020 LexisNexis
PART V Special Proceedings
Arbitration
*[S. 89. Settlement of disputes outside the Court.
(1) Where it appears to the Court that there exist elements of a settlement which
may be acceptable to the parties, the Court shall formulate the terms of
settlement and give them to the parties for their observations and after receiving
the observations of the parties, the Court may reformulate the terms of a
possible settlement and refer the same for—
(a) arbitration;
(b) conciliation;
(c) judicial settlement including settlement through Lok Adalat; or
(d) mediation.
(2) Where a dispute has been referred—
(a) for arbitration or conciliation, the provisions of the Arbitration and

Conciliation Act, 1996 (26 of 1996) shall apply as if the proceedings for
arbitration or conciliation were referred for settlement under the
provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in
accordance with the provisions of sub-section (1) of Section 20 of the
Legal Services Authority Act, 1987 (39 of 1987) and all other provisions of
that Act shall apply in respect of the dispute so referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitable
institution or person and such institution or person shall be deemed to be
a Lok Adalat and all the provisions of the Legal Services Authority Act,
1987 (39 of 1987) shall apply as if the
(a) dispute were referred to a Lok Adalat under the provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties
and shall follow such procedure as may be prescribed. ]
COMMENT.—Important Note:
Act, 1999 (w.e.f. 1-7-2002).
2002).—
New Provision.—This section has been introduced for the fixed time for settlement of
disputes outside the Court.
Alternative Dispute Resolution.—
Use of word "may" in later part of section 89 is not in conflict with word "shall" used in
O X, rule 1-A of the Code. The word "may" in section 89 only governs an aspect of
reformulation of terms of settlement.1
The enumeration of "suitable and unsuitable" categorisation of cases is not intended to

be exhaustive or rigid and they are illustrative which can be subject to just exceptions
or additions by the Court exercising its jurisdiction under section 89 read with rule 1A
of O X of the Code of Civil Procedure requiring the court to direct the parties to opt for
any of the five alternative dispute resolution processes.2
The rules framed for Alternative Disputes Resolution under the Code would supplement
rules framed under Family Courts Act 1984.3
1. It is now made obligatory for the Court to refer the dispute after issues are
framed for settlement either by way of:
(a) Arbitration
(b) Conciliation
(c) Judicial settlement including settlement through Lok Adalat, or
(d) Mediation.
2. Where the parties fail to get their disputes settled through any of the alternative
dispute resolution methods, the suit could proceed further in the Court in which it
was filed.
3. The procedure to be followed in matters referred for different modes of

settlement is spelt out in sub-section (2).
4. Clause (d) of sub-section (2) of section 89 empowers the Government and the
High Courts to make rules to be followed in mediation proceedings to effect the
compromise between the parties.

1999 stated thus:
No retrospective effect.—Section 89 as originally enacted in the principal Code

pertained to arbitration. It was however, repealed by the Arbitration Act, 1940. Now a
new section 89 has been inserted by section 7 of the Amendment Act, 1999 to deal
with settlement of disputes outside the Court, pursuant to the recommendations of
Law Commission and Malimath Committee.
The Code of Civil Procedure (Amendment) Act, 1999, section 32(2)(e) (of the repeal
and savings section) stipulates that the section 89 and rules 1A, 1B and 1C of O X of
the First Schedule, as inserted in the principal Code by sections 7 and 20 of the
(Amendment) Act, 1999, shall not affect any suit in which issues have been settled
before the commencement of section 7 of the (Amendment) Act, 1999; and every such
suit shall be dealt with as if sections 7 and 20 of the (Amendment) Act, 1999 had not
come into force.
Alternative modes of disputes redressal.—The Statement of Objects and Reasons

appended to the Bill states as follows:-
With a view to implement the 129th Report of the Law Commission of India and to make
conciliation scheme effective, it is proposed to make it obligatory for the Court to refer the
dispute after the issues are framed for settlement either by way of arbitration, conciliation,
mediation, judicial settlement or through Lok Adalat. It is only after the parties fail to get
their disputes settled through any one of the alternate dispute resolution methods that the
suit shall proceed further in the Court in which it was filed. [Para 3(d)].
It seems the special provision has been introduced in order to help the litigant to settle
his dispute outside the Court instead of going through the elaborate process in the
Court trial. This is a special procedure for settling the dispute outside the Courts by a
simpler and quicker method. The decision rendered by the different forums shall have
the same binding effect as if made by a Civil Court after an elaborate trial.
The litigants on the institution of the suit or proceeding may request the Court to refer
the disputes and if the Court feels that there exists element of settlement which may
be acceptable to the parties, it may refer them to any of the forums mentioned above at
any stage of the proceedings.
The following rules have been inserted in O X by the Amendment Act, 1999:
IA. After recording the admissions and denials, the Court shall direct the parties to the suit
to opt either mode of the settlement outside the Court as specified in sub-section (1) of
Section 89. On the option of the parties, the Court shall fix the date of appearance before
such forum or authority as may be opted by the parties.
IB. Where a suit is referred under rule 1A, the parties shall appear before such forum or
authority for conciliation of the suit.
IC. Where a suit is referred under rule 1A and the presiding officer of conciliation forum or
authority is satisfied that it would not be proper in the interest of justice to proceed with the
matter further, then, it shall refer the matter again to the Court and direct the parties to
appear before the Court on the date fixed by it. [See also Comments under the above rules].
Justice Malimath Committee Report
Justice Malimath Committee in its Report in Chapter VIII at p 112 and Chapter IX at pp
168, 170 and 171 recommended:—
If a law is enacted giving legal sanction to such machinery for resolution of disputes
and resort thereto is made compulsory, much of the inflow of commercial litigation in
regular civil Courts gradually moving up hierarchically would be controlled and reduced.
The committee recommends accordingly." [Para 8.70]
Committee's Recommendations
This Committee agreeing with the Law Commission recommends that Conciliation
Courts should be established all over the country with power, authority and jurisdiction
to initiate conciliation proceedings in all types of cases at all levels and that the
amendment suggested by the Law Commission should be carried out to enable the
Scheme to function effectively. The conciliation procedure should also be made
applicable to the Motor Accident Claims Tribunal [para 8.89]
Lok Adalats—Another Alternative Forum
One more alternative forum for resolution of disputes is the institution of Lok Adalats.
The movement of Lok Adalats has gained momentum throughout the country and has
produced effective results. It started initially as a voluntary organisation for informal
resolution of disputes and is mostly manned by retired members of the judicial
fraternity associated with others. It has now received the statutory recognition in the
Legal Services Authorities Act, 1987. In the 126th Report on Government and Public
Sector Undertaking Litigation—Policies and Strategies, the Law Commission has
offered its comments on the working of Lok Adalats in para 5.21 of Chapter V. It has
found that simple disputes where an approach of give and take, which is likely to result
in settlement, may be resolved in the said forum and that its utility in resolving disputes
between Government and citizen, Public Undertaking inter se and between local
authorities and other instrumentalities of the State is limited. Despite the limitation, Lok
Adalats on the whole have been successful in settling many disputes in the field of
Motor Accidents Claims and disputes relating to family and matrimonial matters. Once
the Lok Adalats are institutionalised through the machinery of law, they may produce
better and more effective results [para 8.90].
The Committee is of the view that if congestion of cases in Courts is to be relieved, the
recommendations hereinabove made should be implemented without further loss of
time. It is hoped that the authorities concerned will move swiftly in the matter so that
the problem of arrears is attacked from a different angle [para 8.91].
Object, Purpose & Background of Scheme
The main challenge with which the Judiciary in our country is faced is the huge arrears
of cases pending at different levels in the Courts. The adversary system, procedural
wrangles and multiplicity of appeals/revisions are some of the factors which leave a
litigant a bitter and frustrated man while waiting for justice for years. With a view to
provide a solution to this problem, the High Court of Himachal Pradesh has evolved a
Pre-trial, in-trial and Post-trial Conciliation Project in the State on an experimental basis.
The purpose for enacting section 89 is to encourage the parties to the dispute to settle
their dispute by adopting one of the four methods provided therein. Not only that, it
results in lessening the burden of the court, experience has shown that may cases
which come to the court can be resolved more suitably and with better outcome if the
methods of ADR prescribed in section 89 Code of Civil Procedure are resorted to.4
So far as reference on submission to arbitration under section 89, same can be done
only when parties agree for settlement of their dispute through arbitration in
contradistinction to other methods of Alternative Dispute Redressal Mechanism
stipulated in section 89.
In the absence of arbitration agreement the court can refer the parties to Arbitration
only with the written consent of parties either by way of joint memo or joint application
more so, when government or statutory body is involved.5
In light of the aforesaid new legislative policy and with a view to minimising the
pendency of old cases and ensuring that the litigation comes to an end by way of an
amicable settlement of the dispute, the Conciliation Courts are entrusted with certain
categories of cases in which there is a reasonable possibility of settlement so as to
assist the parties in arriving at a reconciliation, whether the cases are at the preliminary
stage, or ripe for hearing, or at the execution stage.
Arbitration
The whole of the Arbitration and Conciliation Act, 19963 applies when the matter is
referred to arbitration or conciliation by the trial Court. The constitution of the arbitral
tribunal and its procedure will be in accordance with that Act:
— Composition of arbitral tribunal and Sections 10 to 15 to the appointment of

challenge arbitrators
— Jurisdiction of arbitral tribunal Sections 16 and 17
— Conduct of arbitral proceedings Sections 18 to 27
— Arbitral award and terminal of arbitration Sections 28 to 33
proceedings
— Challenge to arbitral award and finality and Sections 34 to 36
enforcement of arbitral award
— Court's power to grant interim measures of Section 9
protection
Note that the Arbitral tribunal shall not be bound by the Code of Civil Procedure 1908 or
the Evidence Act, 1872 [section 19].
Conciliation
Arbitration and Conciliation Act, 1996 or Legal Services Authority Act, 1987 applies only
from the stage when the reference is made under section 89 of the Code. Procedure for
option to Alternative Disputes Resolutions is also not contemplated by 1996 Act or
1987 Act. High Court can thus, frame rules under Pt-X of the Code covering manner in
which option to one of ADRs can be made.6
The terms "arbitration" and "conciliation" have been distinguished as under in the
Halsbury's Laws of England:7
Conduct of proceedings.—Conciliation proceedings commence with the acceptance of

the invitation to conciliate a dispute. After it is agreed to settle the dispute by
conciliation, conciliators are appointed as per mutual agreement as to their number
and mode of appointment.
On the appointment of conciliators, each party will submit to them a brief written
statement describing the general nature of the dispute and the points at issue.
Either party can initiate conciliation proceedings. Conciliation proceedings are initiated
when one party invites the other in writing to conciliate, setting out in brief the subject
of the dispute.
On receipt of the invitation to conciliate, the other party can—
(i) accept the invitation; or
(ii) reject the invitation.
The acceptance or rejection is to be conveyed to the initiating party in writing within 30

days of the date of the invitation Number of Conciliators.—Section 63 provides for the
maximum number of conciliators as three.
In keeping with the objective of providing cheap and expeditious conciliatory

proceedings, section 63 envisages the appointment of one conciliator. The nature of
disputes may be such as to warrant the appointment of more than one conciliator. The
section accordingly permits the parties to appoint two but not more than three
conciliators, by mutual consent. The conciliators should act jointly.
Appointment of conciliators.—Section 64 lays down the manner of appointment of

conciliators and reflects the principle of party autonomy in this regard.
Conciliator(s) can be appointed by either of the parties or jointly. The sole conciliator is
to be appointed by mutual consent.
By way of guidance, the Act requires the institution or the third person to secure the
appointment of an independent and impartial conciliator. Further, the nationality of the
sole or third conciliator recommended or directly appointed by the institution or third
person could be other than that of the concerned parties. In international commercial
conciliation in particular, it may not be uncommon to require the sole or presiding
conciliator to be a neutral conciliator, i.e., of different nationality than the concerned
parties.
Statement of disputes.—Section 65 empowers the appointed conciliator to request the

parties to submit to him brief particulars of the disputes.
No elaborate "pleadings" are required. In order to have a wider and proper perception of
the matter, they may call from each party for further or additional information
specifying his position and the facts and grounds in support thereof together with the
requisite documents or other evidence. Each party should send to the other copies of
all particulars and documents furnished to the conciliators.
Conciliator not bound by Code of Civil Procedure or Evidence Act.—Section 66 is on the

same lines as section 19(1) relating to conduct of arbitration proceedings. A conciliator
is not bound by the procedure laid down in the Code of Civil Procedure or the Evidence
Act.
They are required to assist the parties in an independent and impartial manner and to
be guided by the principles of objectivity, fairness and justice.
Considering the conciliatory nature of the proceedings, no provision has been made as
to the law to be chosen by the parties or applicable to the proceedings.
Role of conciliators.—Section 67 deals with role of conciliators and lays down

guidelines in the conduct of conciliatory proceedings to reach a speedy settlement of
the disputes.
The main function of conciliators is to assist the parties to reach an amicable

settlement of their dispute. For achieving that purpose, they are obliged—
— to act in an independent and impartial manner;
— to abide by the principles of objectivity, fairness and justice.
The purpose of conciliation proceedings being settlement of disputes by mutual

agreement of the parties, in contrast to adversary proceeding, "a general reference is
made to the rights and obligations of the parties, in addition to more practice-oriented
considerations, such as the usages of trade concerned and the previous business
practices of the parties."8 Accordingly, rules which might be more appropriate to
adversary proceedings are not prescribed.
A party can make suggestions suo motu for settlement of the dispute. The conciliator
can also invite the parties to make suggestions for settlement. Reference to mediation
is obligatory on the part of Family Court to endeavour, on first instance to effect
reconciliation or settlement between the parties to family dispute. The order of the
Family Court in refusing to refer a matter to mediation without appreciating relevant
statutory provision, is not proper.9
A successful conciliation proceeding culminates in "settlement agreement" which

reflects the agreed terms of settlement of the dispute.
If the conciliator is satisfied that an acceptable settlement can be made, he—

(i) should formulate the terms of the possible settlement;
(ii) should submit the terms of the possible settlement to the parties for their
observations;
(iii) may reformulate the terms in the light of the observations;
(iv) may draw up or assist the parties in drawing up the settled agreement, if
requested by parties. If they accept the terms the parties themselves can draw
up and sign the written settled agreement;
An arbitral award on agreed terms is made by the arbitral tribunal if, during the arbitral
proceedings, the parties settle the dispute. The tribunal then proceeds to record the
settlement in the form of an "arbitral award on agreed terms," which has the same
status and effect as any other arbitral award [section 30]. The settlement agreement is
confidential except where its disclosure is necessary for its enforcement and
implementation [section 75].
Confidentiality.—If the conciliators receive any factual or additional information from a

party in the proceeding or otherwise subject to a specific condition that it be kept
confidential, they are obliged to keep it confidential and they cannot disclose it to the
other party.
Termination of proceedings.—Section 76 lays down four ways of terminating

conciliation proceedings, which reflect the principles of party autonomy and amicable
settlement.
The termination of the proceedings where settlement could not be effected may enable
the parties to take recourse to arbitral or judicial proceedings for settlement of their
dispute.
On termination of the proceedings, the costs of the proceedings are fixed by the
conciliator in accordance with the provisions of section 78 and have to be shared in
equal or agreed proportions.
The conciliator is empowered to terminate the proceedings by a written declaration to

that effect on the failure of both the parties to pay in full the advance of deposits called
for by him within 30 days of the call. Alternatively, he can suspend the proceedings on
the same ground. He can decide on termination or suspensions on his objective
assessment of the situation [section 79].
Sharing of costs.—The costs are to be borne equally by the parties unless the manner
of apportionment thereof is specified in the settlement agreement. Such sharing of
costs is restricted to the expenses incurred on the specific items. Other expenditure is
to be borne by the party incurring that expenditure.
The fees and expenses of conciliator(s) are to be shared by the parties whether they
are appointed by the parties themselves or with institutional assistance. But, other
expenses, e.g., the expenses incurred by a party in connection with his request to an
institution for recommending names of suitable individuals for appointment as
conciliators will have to be met by the party himself and is not shareable.
Deposits.—During the conciliation proceedings, the conciliator is empowered to call for

advance towards estimated costs of arbitration payable in equal amount by each party
[section 79].
Conciliator's role in other proceedings.—Section 80 prohibits a conciliator from acting as

arbitrator, representative or counsel or witness in any subsequent arbitral or judicial
proceedings. This is intended to prevent any prejudice that may be caused to a party by
disclosure of any information or knowledge which the conciliator might have acquired
in the course of conciliation proceedings.
Section 81 is designed to serve the same purpose as section 80, that is, to ensure
negotiations in the conciliation proceedings unimpended by any fear of later
disadvantages. It also attempts to define certain categories of information which
would be inadmissible in other proceedings. Taking into account the purpose of the
provision, it lists as "classified material" various kinds of information or statements
given for the purpose of reaching a settlement agreement. It is this common trust of
the items listed which makes them potentially prejudicial to one or the other party and
justifies their inadmissibility in other proceedings.
Lok Adalat
The procedural provisions in respect of disputes referred to Lok Adalat are contained in
sections 19 to 22 of the Legal Services Authority Act, 198710 under section 22 relating
to powers of Lok Adalat, the Lok Adalat has been conferred with the powers of a Civil
Court under the Code of Civil Procedure, 1908 in respect of the matters specified
therein.
Court Fees Act, 1870.—
Amendment to Court Fees Act.—A new section 16 has been inserted in the Court Fees
Act, 1870 by the Code of Civil Procedure (Amendment) Act, 1999 as follows:-
S. 16. Where the Court refers the parties to the suit to any one of the mode of settlement of
dispute referred to in Section 89 of the Code of Civil Procedure, 1908 the plaintiff shall be
entitled to a certificate from the Court authorising him to receive back from the collector, the
full amount of the fee paid in respect of such plaint.
Notes on Clauses.—Notes on clauses of the Code of Civil Procedure (Amendment) Bill,

1999 stated thus:-
The amendment to the Court Fees Act, 1870 is consequential to the new Section 89
(providing for alternative dispute resolutions) in the Code of Civil Procedure, 1908 inserted
by the Amendment Act, 1999 so as to enable the party to claim refund of Court-fee in case
the matter in dispute is settled outside the Court.
Settlement outside the Court.—The amendments made by the 1999 and 2002 Acts do
not suffer from any constitutional infirmity. If the parties agree to arbitration, then the
provisions of the Arbitration and Conciliation Act, 1996 will apply and that case will go
outside the stream of the Court but resorting to conciliation or judicial settlement or
mediation with a view to settle the dispute would not ipso facto take the case outside
the judicial system. The modalities have to be formulated in which section 89 and for
that, the other provisions which have been introduced by way of amendments, may
have to be in operation. For this purpose, a committee should be constituted so as to
ensure that the amendments made become effective and result in quicker dispensation
of justice. The model rules, with or without modification, formulated by the Committee,
may be adopted by the High Court concerned for giving effect to section 89(2)(d).11
The provisions of section 89 cannot be resorted to for interpreting section 8 of

Arbitration and Conciliation Act, 1996 as it stands on a different footing. It would be
applicable even in cases where there is no arbitration agreement for referring the
dispute for arbitration. For that purpose, the Court has to apply its mind to the condition
contemplated under section 89 of the Code and even if application under section 8 of
the Act is rejected the Court is required to follow the procedure under the said
section.12
ADR-Mediation, Rule of Court.—
The Court is not involved in actual mediation/conciliation. The terms are finalised by or
before mediator. The Court only passes a decree in accordance with terms of
settlement accepted by parties.13
Applicability.—
When the Arbitration and Conciliation Act, which is a special law, provides for a forum
of adjudication, section 89 of the Code cannot be resorted to refer a dispute for
arbitration unless there is a mutual consent of all parties or arbitration agreement.14
Mandatory character.—
Having a hearing after completion of pleadings to consider recourse to ADR process

under section 89 of the code is mandatory, but actual reference to ADR process in all
cases is not mandatory.15
Mediation, to be advised.—
The lawyers should advise their clients to try for mediation for resolving the disputes,
especially where relationships like family relationships and business relationships are
involved, otherwise the litigation drags on for years and decades often ruining both the
parties.16
Section 89 merely enables the Court to refer the suit to either of the following ADR
processes: (a) arbitration; (b) conciliation; (c) judicial settlement; (d) lok adalat; and (e)
mediation. Arbitration is an adjudicatory process. The four other processes are non-
adjudicatory dispute resolution processes. In a non-adjudicatory process (conciliation
or mediation or lok adalat or judicial settlement), there is no "decision" but there can
only be a settlement by mutual consent of the parties. Where there are no negotiations
for a settlement, nor parties arrive at a settlement, there cannot obviously be an order
rendering a decision in exercise of power under section 89.17
Mediation, contents of report.—The mediation proceedings are totally confidential

proceedings. If the happenings in the mediation proceedings, are disclosed, it will
destroy the confidentiality of the mediation process. If the mediation succeeds, then
the mediator should and the agreement signed by both the parties to the court without
mentioning what transpired during the mediation proceedings. If the mediation is
unsuccessful, then the mediator should only write our sentence in his report and send
to the court, stating that mediation has been unsuccessful.18
When Section 89 can be invoked.—
Section 8 of Arbitration and Conciliation Act 1996 and section 89 of the Code of Civil
Procedure are applicable only when the suit or other proceedings before the Court are
at the initial stage and the Courts are of the view that the matters can be decided
through the means of an alternative dispute redressal system. After the dispute has
been settled by the trial Court, it would be of no use to refer it for arbitration though
such a position may arise if at the Appellate stage the Court feels that there can be
mediation between the parties. Section 89 of the Code of Civil Procedure could not
have been pressed into use to set aside the judgment passed by a trial Court on merits
after the trial has been completed.19
In this case the Supreme Court stated that it is clear that a court is expected, nay,
bound to make all attempts and endeavours of reconciliation.20
Section 9 of the Family Courts Act, casts a duty on the Family Courts to assist and
persuade the parties to arrive at a settlement by referring them to alternative dispute
resolution processes of conciliation and/or mediation. The order of the Family Court in
refusing to refer a matter to mediation without appreciating about statutory provision is
not proper.21
* Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 7 (w.e.f. 1-7-
2002) vide Notfn SO 603(E), dt 6 June 2002; earlier section 89 repealed by the Arbitration Act,
1940 (10 of 1940) which had reference to arbitration, the procedure relating to which was
embodied in the second Schedule to the Code of Civil Procedure. There being now an
independent enactment relating to arbitration, the law has been consolidated in that Act.
2 Bhavana Ram Prasad v Yadunandan Parthsarthy, AIR 2015 Kant 6 .
4 Shailesh Dhairyawan v Mohan Balkrishna Lulla, (2016) 2SCC (CIV) 426.
5 Kerala State Electricity Board v Kurien E Kalathil, AIR 2018 SC1351 : 2018 (4) SCALE 405 : 2018
(3) SCJ 522 .
7 Vol 2, 4th Edn, para 502.
8 Commentary on DCR, Para 53.
9 Bhavana Ramprasad v Yadunandan Parthasarthy, AIR 2015 Kar 6 .
10 For the text of the Act, see Appendix.
11 Salem Advocate Bar Assocn TN v UOI, AIR 2003 SC 189 (192, 193) : (2003) 1 SCC 49 .
12 Sukanya Holdings Pvt Ltd v Jayesh HPandya, AIR 2003 SC 2252 (2256) : (2003) 5 SCC 531 .
13 Salem Advocate Bar Assocn. v UOI, AIR 2005 SC 3353 (3369).
14 Southern Structurals Ltd v KSEBoard, 2008 (1) KLT 105 (FB).
15 Afcons Infrastructures Ltd v Cherian Varkey Construction Co (p) Ltd, (2010) 8 SCC 24 (38).
16 BS Krishna Murthy v BS Nagaraj, AIR 2011 SC 794 (795).
17 Shyamalika Das v GRIDCO, (2010) 15 SCC 268 .
18 Moti Ram v Ashok Kumar, (2011) 1 SCC 466 (467).
19 Chanchal Ghosh v Tripura Truck Owners Syndicate, Agartala, AIR 2015 Tripura 1 .
20 Jagraj Singh v Birpal Kaur, AIR 2007 SC 2083 .
21 Bhavana Ramprasad v Yadunandan Parthasarthi, AIR 2015 Kar 6 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 90. Power to state case for
opinion of Court
© 2020 LexisNexis
Special Case
S. 90. Power to state case for opinion of Court
Where any persons agree in writing to state a case for the opinion of the Court, then
the Court shall try and determine the same in the manner prescribed.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 91. Public nuisances
© 2020 LexisNexis
22[Public Nuisances and other Wrongful Acts Affecting the Public]
S. 91. Public nuisances
23
[(1) In the case of a public nuisance or other wrongful act affecting, or likely to
affect, the public, a suit for a declaration and injunction or for such other
relief as may be appropriate in the circumstances of the case, may be
instituted,—
(a) by the Advocate General, or
(b) with the leave of the Court, by two or more persons, even though no
special damage has been caused to such persons by reason of such
public nuisance or other wrongful act.]
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of
suit which may exist independently of its provisions.
COMMENT.—
Meaning of public nuisance.—
The words "public nuisance" have not been defined in the Code. Under section 3(48) of
the General Clauses Act, 1897, the words mean a public nuisance as defined by the
Indian Penal Code. Section 268 of the Indian Penal Code defines it as an act or illegal
omission which causes any common injury, danger or annoyance to the people in
general who dwell or occupy property in the vicinity, or which must necessarily cause
injury, obstruction, danger or annoyance to persons who may have occasion to use any
public right.
By the Amending Act of 1976, this section was amended to the effect that it would be
enough if the leave of the Court is obtained by such two or more persons.
The provisions of this sub-section have also been extended to wrongful acts other than
public nuisance which effect the public.
A private person cannot maintain a suit in respect of a public nuisance, unless he is

able to show that he suffered special damage thereby. This section provides an
exception to that rule and enacts that such a suit can be maintained even without proof
of special damage, provided leave of the Court is obtained and the other conditions of
the section are satisfied. It may be noted that the section applies in the case of public
nuisance only.
Who may sue under section 91?—
A suit in respect of a Public nuisance may be instituted by any one of the following:
(1) By the Advocate-General acting ex officio; or
(2) By him at the instance of two or more persons or
(3) By two or more persons with the leave of the Court.
Remedies for a public nuisance.—
The remedies available in respect of a public nuisance are as follows:
(1) Under the Criminal Law—
(a) the person committing a nuisance is liable to a criminal prosecution

under the Indian Penal Code,
(b) certain summary powers are also conferred on Magistrates by sections

133 to 143 of the Code of Criminal Procedure for the removal of the
nuisance.
(2) Under the Civil Law—
(a) A suit will lie under this section without proof of any special damage to
the plaintiffs.
(b) A suit will also lie at the instance of private individual where he has
suffered special damage by reasons of the nuisance, as distinguished
from the damage suffered by him in common with other persons
affected by the nuisance.
These remedies are concurrent. The institution of a criminal prosecution does not bar a
suit under this section, nor does the institution of a suit under this section bar a
criminal prosecution.
Some leading Principles governing such suits.—
The following are some of the leading principles by which the Courts are guided in
granting injunction in cases of public nuisance:
(1) The injury complained of by the plaintiff must be either irreparable or in

continuance. In case the damage, in its nature, is temporary or intermittent, or is
accidental and occasions, this remedy will not be available;
(2) An apprehension of future mischief from something which in itself is lawful is

no ground for an injunction;
(3) In case an illegal act is committed which tends to cause injury to public, an
injunction will be granted without any proof of actual injury to the public;
(4) No length of time can legalise a public nuisance;
(5) A public nuisance is excused on the ground that it causes some convenience or
advantage to some persons.
(Reference may be made to section 268 of the Indian Penal Code).
1977) for the former heading.
23 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 30(ii) (w.e.f. 1-2-
1977) for sub-section (1).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 92. Public charities
© 2020 LexisNexis
24[S. 92. Public charities
(1) In the case of any alleged breach of any express or constructive trust created
for public purposes of a charitable or religious nature, or where the direction of
the Court is deemed necessary for the administration of any such trust, the
Advocate-General, or two or more persons having an interest in the trust and
having obtained the 25[leave of the Court,] may institute a suit, whether
contentious or not, in the principal Civil Court of original jurisdiction or in any
other Court empowered in that behalf by the 26[State Government] within the
local limits of whose jurisdiction the whole or any part of the subject-matter of
the trust is situate, to obtain a decree—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
27
[(cc) directing a trustee who has been removed or a person who has
ceased to be a trustee, to deliver possession of any trust property in
his possession to the person entitled to the possession of such
property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust-property or of the interest therein

shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust-property to be let, sold,
mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may
require.
(2) Save as provided by the Religious Endowments Act, 1863, 28[or by any
corresponding law in force in 29[the territories which, immediately before the
1st November, 1956, were comprised in Part B States]], no suit claiming any of
the reliefs specified in sub-section (1) shall be instituted in respect of any such
trust as is therein referred to except in conformity with the provisions of that
sub-section.
30
[(3) The Court may alter the original purposes of an express or constructive trust
created for public purposes of a charitable or religious nature and allow the
property or income of such trust or any portion thereof to be applied cypres
in one or more of the following circumstances, namely:—
(a) where the original purposes of the trust, in whole or in part,—

(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according

to the directions given in the instrument creating the trust or,
where there is no such instrument, according to the spirit of
the trust; or
(b) where the original purposes of the trust provide a use for a part only
of the property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property
applicable for similar purposes can be more effectively used in
conjunction with, and to that end can suitably be made applicable to
any other purpose, regard being had to the spirit of the trust and its
applicability to common purposes; or
(d) where the original purposes in whole or in part, were laid down by
reference to an area which then was, but has since ceased to be, a
unit for such purposes; or
(e) where the original purposes, in whole or in part, have, since they were
laid down,—
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective

method of using the property available by virtue of the trust,
regard being had to the spirit of the trust.]
STATE AMENDMENT
Uttar Pradesh.— The following amendments were made by Uttar Pradesh Act 24 of 1954,
Section 2 and Schedule, Item 5, entry 5, dated 30-11-1954.
In Section 92, in sub-section (1), after clause (b), the following shall be added as a new
clause (bb):—
"(bb) for delivery of possession of any trust property against a person, who has ceased
to be trustee or has been removed".
COMMENT.—
Section 92 was amended in order to make provisions for leave of the Court in the case
of a suit by two or more persons, and to incorporate therein the doctrine of cypres
without waiting for revision of the law relating to public trusts.
This section may be taken as intended to confer upon the Courts in this country the
same powers as the English Courts of Chancery possessed, in matters relating to the
administration of public charities, religious or otherwise. It is intended to be an
exhaustive statement of the law applicable to cases in which there has been a breach
of trust (whether express or constructive) of a charitable or religious nature. The aim of
the section is to protect the rights of the public in such trusts and to enable the public,
the Advocate-General and Courts of Justice to stop the misuse of the income of
charitable institutions. The section is intended to provide proceedings of a special
nature for the purpose of determining questions that relate to the administration of
public religious or charitable trusts and to prevent multifarious and vexatious suits
being filed by irresponsible persons against the trustees whose duty it is to administer
such trusts.31 The infringement of private rights is outside the scope of the section.
Bihar Hindu Religious Trusts Act, 1951 takes the trusts in Bihar out of the purview of
section 92. It is not bad on account of extra-territorial operation. The Act does not
apply to the private trusts.32
In deciding whether a suit falls under section 92 the Court must go beyond the reliefs
and have regard to the capacity in which the plaintiffs are suing and the purpose for
which suit was brought. A suit must be a representative one brought by individuals for
the benefit of and as representatives of the general public for the purpose mentioned in
it and not for their own interests or for vindicating the private rights of one of the
trustees. When the right to the office of a trustee is asserted or denied and relief asked
for on that basis, the suit falls under section 92.33
The real test, therefore, for the applicability of the section is to see whether the suit is
fundamentally on behalf of the public for the vindication of a public right,34 and in order
to apply the test the Court must look to the substance and not to the form of the suit.
The necessity of obtaining the sanction of the Advocate General, in a suit falling within
the section, has been imposed with a view, "to prevent an indefinite number of reckless
and harassing suits being brought against trustees by different persons interested in
the trust".
Reference may be made to a decision of Delhi High Court in Gurdwara Prabandhak

Committee v Amarjit Singh, AIR 1984 Del 39 . That order of District Judge granting or
refusing leave must be a reasoned and speaking order. Public Trust has a right to be
heard before the District Judge at the stage of granting or refusing leave.
Section 92 of the Code is a self-contained provision and conferment of jurisdiction in

regard to suits under that section does not depend upon the value of subject matter of
the suit. The pecuniary limits mentioned in section 12 of the Civil Courts Act do not
apply in suits under section 92 of the Code.35
Object of the provision.—
The main purpose of the section 92(1) is to give protection to public trusts of a
charitable or religious nature from being subjected to harassment by suits being filed
against them. That is why it provides that the suits under that section can only be filed
either by the Advocate General or two or more persons having an interest in the trust
with the consent in writing of the Advocate General.36
Conditions of a suit.—
(1) The existence of a trust for public purpose of religious or charitable nature, (2) The
suit must be of a representative character to enforce public rights i.e., it must be not
only in the interest of the plaintiff individually, but in the interest of the public, or in the
interest of the trust itself, (3) The suit must be by two or more persons having interest
in the trust, (4) The suit must be for an alleged breach of trust or circumstances
necessitating the direction of the Court for the administration of the trust, (5) The relief
must fall within one or more of clauses (a) to (h). All these conditions must be
fulfilled.37
Section 92 applies when reliefs claimed under section 92(1) are in representative
capacity for vindication of public rights.38
The real test for the applicability of the section is to see whether the suit is
fundamentally on behalf of the public for the vindication of a public right. It is beyond
the purview of section 92 to embark upon an enquiry if the trustee was validly
appointed.39
Maintainability of the suit.—
A suit under section 92 is of a special nature which presupposes the existence of a

public trust of religious or charitable character. Such suits can proceed only on the
allegation that there is a breach of such trust or that the directions from the Court are
necessary for the administration of the trust. In the suit, however, there must be prayer
for one or other of the reliefs that are specifically mentioned in the section. Only then
the suit has to be filed in conformity with the provisions of section 92.40
Suit instituted not to enforce private rights but as representatives of one of two
factions of church to gain control and administration of church i.e. a Public trust and
decree of injunction sought restraining the defendants from interfering with the
admission. It was held that such a suit squarely falls under section 92 of the Code of
Civil Procedure and suit instituted without permission under section 92 of the Code of
Civil Procedure is not maintainable.41
Case not within section 92.—
A suit on behalf of duty to protect the property of private trust temple by persons
making donations for temple maintenance is not within section 92 of Code of Civil
Procedure.42
Applicability of Hindu Law.—
In a question of interpretation of a settlement in favour of Sachidananda Matam and

Samathikoil (tomb) attached to it the Supreme Court observed that the Samadhi was a
tomb of the ancestors of the settlers of the trust and as such the settlement in favour
of the tomb was not valid in law.43
The section applies to all Courts including chartered High Courts.
The section is not hit by Article 14 of the Constitution of India.
Essential ingredients of the section.—
In order that the section may apply, the following conditions must be satisfied:
(1) There must exist a trust for public purposes of charitable or religious nature.
(2) The plaintiff must allege that there is a breach of such trust, or that the direction
of the Court is necessary for the administration of the trust.
(3) The suit must be a representative one on behalf of the public and not by
individuals for their own interests.
(4) The relief claimed in the suit must be one of the reliefs mentioned in the section.
Where all the above conditions are satisfied, the suit will be governed by the section
and cannot be instituted except in conformity with the procedure prescribed thereby.
Where any one of the conditions is absent the section has no application. Thus, where
an idol sues for possession of its property from persons who are in illegal possession
thereof, the idol is only enforcing a private right and this section does not apply. The
same principle will apply to a suit by a trustee for possession of the trust property from
strangers who are in possession of it."
Public purpose.—
Section 92 is applicable to those charities only in which the public is interested. The
Supreme Court has observed: "The distinction between a private and public trust is that
whereas in the former, the beneficiaries are specific individuals, in the latter they are the
general public or a class thereof. It was further said "while in the former the
beneficiaries are persons who are ascertained or capable of being ascertained in the
latter, they constitute a body which is incapable of ascertainment".44
Public trust when created?—
The complete cessation of ownership of founder and vesting of property for public or
religious objects is essential for the creation of a public trust. Where the owners are
maintaining complete control over the premises, mere long user as Dharamshala would
not make it a public trust. The provisions of section 92 of the Code would be attracted
only when a public trust comes into being and not otherwise.45
Secular Public Trust.—
Trust was formed for educational purpose. The founder had categorically stipulated
that funds and income is to be utilised for encouraging poor and deserving students
irrespective of caste, creed or religion. It was held by the Court that such a Trust is a
secular Public Trust and the fact that the founder was a member of minority
community and schools of trust were recognised as minority schools under the Tamil
Nadu Act will not change the character of the Trust and therefore, the High Court was
justified in framing the scheme under section 92 of the Code of Civil Procedure to see
to it that the trust is administered in a better way.46
Representative suit.—
The suit contemplated by this section is a representative one that is a suit which is
prosecuted by individual not for their own interest but as representative of the general
public.
A suit under section 92 is a representative suit and the decision binds not only the
parties to it but all persons interested in the trust.47
A representative suit binds not only the parties in the suit but also those who share
common interest and are interested in the trust. Entire body of interested persons is
barred by Constructive res judicata, from reagitating matters directly and substantially
in issue in earlier suit under section 92 of the Code.48
A suit under section 92 is a representative suit and the decision binds not only the
parties to it but all persons interested in the trust.49
Consent of the Advocate-General.—
The consent in writing required by this section must be specific a permission accorded
to two or more persons by name. A permission given under this section to one
applicant by name "and another" is not sufficient compliance of this section.
A suit against the trustee of a public trust of religious nature was filed for the
enforcement of due performance of his duties in relation to a particular object of trust.
The consent of the Advocate General was not secured. The suit was not
maintainable.50
Settlement of scheme.—
Even in case of a private trust a suit can be filed for the removal of the trustee or for the
settlement of a scheme for the purpose of effectively carrying out of objects of the
trust.51
Where there is evidence to show that the defendants (Trustees de son tort) were guilty
of grave mismanagement, it is a clear case for formulating a scheme under this
provision by a suit.52
Revision of scheme.—
Where it is discovered that the scheme framed for administration of a mosque

proceeded on an erroneous assumptions of some facts, the scheme must be revised
bearing in mind the interest of all those who are interested in the mosque.53
Modification in scheme settled by Court.—
The scheme which is settled by the Court for the administration of a temple can be
modified by the Commissioner under section 58 of Madras Hindu Religious
Endowments Act, 1951. The Court is competent to scrutinise modifying provisions.54
Where sanction is given to several persons, suit by some of them only is

incompetent.55
Whether trust property or not, cannot be decided in suit.—
Where a property included in the schedule to the plaint in a suit under section 92, had
been alienated by the defendant. He pleaded that it was not the trust property and the
alliance was not a party to the suit. Whether that property belonged to the trust, this
question could not be gone into the suit.56
"Having interest in the trust.—
The persons benefiting from a religious institution serving free food are not entitled to
file a suit under section 92. The fact that Nirmala Sadhus are lambardars cannot entitle
them to have an interest in the trust.57
Prayer for declaration that properties are trust properties.—
A suit under section 92 is a suit of special nature which presupposes the existence of a
public trust of a religious or charitable character. When the defendant denies the
existence of a trust, a declaration that the trust does not exist might be made as
ancillary to the main relief claimed under the section, if the plaintiff is held entitled to it.
If the case of the plaintiff fails for want of cause of action, then there is no warrant for
giving him declaratory relief under section 92. The finding as to the existence of a
public trust in such circumstances would be no more than an obiter dietum and cannot
constitute the final decision in the suit.58
Court is not bound to give notice to defendants.—
Although, as a rule of caution, the Court should normally give notice to the defendants
before granting leave under section 92 to institute a suit, the Court is not bound to do
so.59
Properties belonging to religious & charitable endowments.—
The sale by private negotiations which is not visible in the public eye and may, even
give rise to public suspicion should not be permitted unless there are special to justify
the same.60
A person incharge of another matter cannot be said to have no locus sandi to file an
appeal. It cannot be said that no person who is third party to an application is a person
aggrieved.61
High Court cannot allocate land in ejectment suit.—
The High Court went wrong in making an allocation of the lands between the trustees
and archakas in a suit for ejectment. The High Court had to deliver possession to the
plaintiffs who had established their title to the suit properties.62
Person in de facto possession of asthan for long time.—
A person who has been in de facto possession and management of the Asthan and its
properties for a long time. He claims to be its trustee under the decree of a Court, valid
or invalid. He has sufficient interest to maintain proceedings for the warding off of a
cloud cost by the defendant's action against the interest of the asthan63
Trustees of a trust are entitled to a wide discretion in administration of trust. A

disagreement with exercise of discretion by trustees however, does not necessarily
lead to a conclusion of maladministration in relation to a trust, unless the exercise of
discretion is perverse.64
For the grant of leave to file suit against public trust, the Court is not bound to give
notice to the defendants.65
24 Section 92 does not apply to :
(i) any religious trust in Bihar, see Bihar Act 1 of 1951.
(ii) public trusts in Maharashtra and Gujarat, see Bombay Act 29 of 1950.
(iii) public trusts in Rajasthan, see Rajasthan Act 42 of 1959. Sections 92 and 93 do not apply to
(i) Hindu Religious Institutions and Endowments in Madras, see Madras Act 22 of 1959.
(ii) Charitable institutions and Hindu religious institutions and endowments in Andhra Pradesh,
see AP Act 17 of 1966.
For institution of suits under Section 92 without obtaining prior consent of by the Wakf Board in
UP, see UP Muslim Wakfs Act, 1960, Section 64 and UP Gaz Extraordinary dated 3-9-1960.
25 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 3(i) (w.e.f. 1-2-
1977) for "consent in writing of the Advocate-General".
26 Subs. for "Provincial Government" by ALO 1950.
29 Subs. for "a part B State" by AL (No. 2) Order 1956.
30 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 31(ii) (w.e.f. 1-2-
1977).
31 Chairman Madappa v Mahanthadevaru (Protecting Public Trust from harassment by the
public by regarding section of the Advocate-General).
32 State of Bihar v Bhabapritamanand, AIR 1959 SC 1073 (1077).
33 Parmatmanand v Ramji Tripathi, AIR 1974 SC 2141 : (1974) 2 SCC 695 : (1975) 1 SCR 790 ;
see also Sugra Bibi v Hazi Kummu Mian, AIR 1969 SC 884 : (1969) 3 SCR 83 .
34 See Rajindra Rai v State of Bihar, AIR 1974 SC 2141 (2144). It was held by the Supreme Court
that there is no reason to think that whenever a suit is brought by two or more persons under
Section 92, the suit is to vindicate the right of the public.
35 Sri Jeyaram Educational Trust v AG Syed Mohiddin, AIR 2010 SC 671 : (2010) 2 SCC 513 ; see
also Hidayat khan Bismilla Khan Pathan v Vaijnath, (2009) 7 SCC 506 (When final orders relating
to public charities may be challenged or changed).
36 Chairman Madappa v MN Mahanthadevaru, AIR 1966 SC 878 (879) : (1966) 2 SCR 151 .
37 Sugra Bibi v Hazi Kummu Mian, AIR 1969 SC 884 (886) : (1969) 3 SCR 83 ; Vaidya Nath Aiyyar
v Swaminatha Ayyar, AIR 1924 PC 221 (2) (relied on).
38 Vidyodaya Trust v Mohan Pd, (2008) 4 SCC 115 (125-26) : AIR 2008 SC 1633 .
39 Duttgir Mahant v Rishi Ram, AIR 1993 P& H 231, 233.
40 Harendra Nath v Kaliram Das, AIR 1972 SC 246 (250) : (1972) 1 SCC 115 ; see also Pragdasji
v Ishwarlal Bhai, AIR 1952 SC 143 (followed).
41 Fr John Jacob v Fr NI Paulose, AIR 2014 Ker 95 .
42 Ramchand v Janki, AIR 1970 SC 532 (534) : (1969) 2 SCC 313 .
43 Nagu Reddiar v Bann Reddiar, AIR 1978 SC 1174 (1178) : (1978) 2 SCC 591 .
44 Deokinandan v Murlidahar, AIR 1957 SC 133 : 1956 SCR 756 .
45 Kuldeep Chand v Advocate-General to Govt of HP, AIR 2003 SC 1685 (1691) : (2003) 5 SCC 46
.
46 T Varghese George v Kora K George, AIR 2012 SC 144 .
48 Shiromani Gurudwara P Committee V Harnam Singh, AIR 2003 SC 3349 (3357) : (2003) 11
SCC 377 .
49 Shiromani Gurdwara Brabhandhak Committee v Harnam Singh, AIR 2003 SC 3349 (3357).
50 Charan Singh v Darshan Singh, AIR 1975 SC 371 (373); see also State of Bihar v Biseshwar
Das, AIR 1971 SC 2057 (2061).
51 Thenappa Chettiar v Karuppan Chettiar, AIR 1968 SC 915 (918) : (1968) 2 SCR 897 .
52 Syed Mohd Salie Labbai v Mohd Hanifa, AIR 1976 SC 1569 (1597) : (1976) 4 SCC 780 .
53 Ahmad Adan v Makhri, AIR 1964 SC 107 (115) : (1964) 2 SCR 647 .
54 Subramaniyan DG Pandarasanuadhi v State of Madras, AIR 1965 SC 1683 (1685) : (1965) 2
SCR 934 : (1966) 2 MLJ (SC) 1.
55 Narain Lal v Seth Sunderlal, AIR 1967 SC 1540 : (1967) 3 SCR 916 .
56 Kalimata Thakurani v Jibandhau Mukharjee, AIR 1962 SC 1329 (1332).
57 Harnam Singh v Gurdial Singh, AIR 1967 SC 1415 (1418) : (1967) 2 SCR 739 : 69 Punj LR 805;
Vaidyanatha v Swaminatha Ayyar, AIR 1924 PC 221 (2) (relied on).
58 Pragdasji v Ishwarlalbhai, AIR 1952 SC 143 : (1952) 2 MLJ 94 .
59 MR Narain Chettiar v N Lakshaman Chittiar, AIR 1991 SC 221 (225) : (1991) 1 SCC 48 : (1991)
1 KLJ 219 .
61 Swami Sankaranand v Mahant Sri Sadguru Sarnanand, AIR 2008 SC 2763 : (2008) 14 SCC 642
(644).
62 C Periaswami v Sundaresa Ayyar, AIR 1965 SC 516 (523) : (1964) 8 SCR 347 .
63 Vikrama Das v Daulat Ram, AIR 1956 SC 382 (390) : 1996 ALJ 434 : (1956) 2 All 103 : 1956
BLJR 416 .
64 Aurobindo Ashram Trust v R Ramanathan, AIR 2016 SC 237 : 2016 (1) SCALE 100 : (2016) 6
SCC 126 .
65 BS Adityan v B Ram Chandran Adityan, AIR 2004 SC 3448 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 93. Exercise of powers of
Advocate-General outside presidency-towns
© 2020 LexisNexis
66[S. 93. Exercise of powers of Advocate-General outside presidency-towns
The powers conferred by Sections 91 and 92 on the Advocate-General may, outside

the presidency-towns, be, with the previous sanction of the 67[State Government],
exercised also by the Collector or by such officer as the 68[State Government] may
appoint in this behalf.]
COMMENT.—
The Collector cannot delegate his functions to anyone else. Where the Collector
refuses to give the sanction, it may be granted by the Advocate-General. An
endorsement by the Collector on the application for sanction "case may be registered"
does not amount to a sanction.
An application by any person or authority other than the Board of Wakfs made to the
Collector for sanction to institute a suit under section 92 against the trustees of a
Muslim Wakf governed by the Wakf Act, 1954 is maintainable.
66 Section 92 does not apply to:
(i) any religious trust in Bihar, see Bihar Act 1 of 1951.
(ii) public trusts in Maharashtra and Gujarat, see Bombay Act 29 of 1950.
(iii) public trusts in Rajasthan, see Rajasthan Act 42 of 1959. Sections 92 and 93 do not apply to:
(i) Hindu Religious Institutions and Endowments in Madras, see Madras Act 22 of 1959.
(ii) Charitable institutions and Hindu religious institutions and endowments in Andhra Pradesh,
see AP Act 17 of 1966.
For institution of suits under Section 92 without obtaining prior consent of the Wakf Board in UP,
see UP Muslim Wakfs Act, 1960, Section 64 and UP Gaz Extraordinary date 3-9-1960.


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 94. Supplemental
proceedings.
© 2020 LexisNexis
PART VI Supplemental Proceedings
S. 94. Supplemental proceedings.
In order to prevent the ends of justice from being defeated the Court may, if it is so
prescribed,—
(a) issue a warrant to arrest the defendant and bring him before the Court to show
cause why he should not give security for his appearance, and if he fails to
comply with any order for security commit him to the civil prison;
(b) direct the defendant to furnish security to produce any property belonging to
him and to place the same at the disposal of the Court or order the attachment
of any property;
(c) grant a temporary injunction and in case of disobedience commit the person
guilty thereof to the civil prison and order that his property be attached and
sold;
(d) appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property;
(e) make such other interlocutory orders as may appear to the Court to be just and
convenient.
Calcutta.—Add Proviso.
Provided that the Court of Small Causes of Calcutta shall have no power to order
attachment of immovable property or to appoint a receiver of such property. Cal Gaz Pt
I dated April 20, 1967.
COMMENT.—
Provisions regarding the summing up of the general powers of the Courts in respect of
various kinds of interlocutory orders are dealt with under this section. The
supplemental proceedings enacted in this section are a means to an end and not an
end in themselves. Thus, for example a suit only for the appointment of a receiver is
not maintainable.
An order of injunction can be passed in terms of the provisions of the supplemental

proceedings contained in section 94 of the Code. An express order must be passed
while giving effect to the supplemental proceedings which is additional to the
incidental power of the Court. Distinction is fine but real.1
The application under section 94(c) and (e) for the grant of temporary injunction
without filing suit is not maintainable.2
Supplemental proceedings and Incidental proceedings.—
It has been held by the Allahabad High Court in Anand Prakash v Assistant Registrar Co-
Operative Societies, AIR 1968 All 22 as follows:
Even the Civil Courts do not possess the powers to stay or grant an injunction as an
incidental power. The Code of Civil Procedure designates such proceedings as
supplemental proceedings. That is how Part VI is headed. This part consists of Sections 94
and 95. It can, therefore, be said that the power to issue an order of a stay or an injunction is
a supplemental power of the Civil Code and not an incidental power. Part III of Code of Civil
Procedure mentions the incidental proceedings in a Court. They relate to issuance of
Commissions. They are designed to ascertain the correct position in order to enable the
Court to determine the case before it.3
Applicability of the section to matters triable under special Acts.—
Where under a special Act, for example the UP Panchayat Act of 1947 or the
Representation of the People Act, 1951, a matter is to be tried by the procedure
prescribed by the Code for the trial of suits, the trying authority cannot act under
section 94 and grant a temporary injunction under this section or section 151 which
both deal with the powers to grant injunction, and not the procedure for trying suits.4
If it so prescribed.—
Prescribed means prescribed by rules.
In Manohar Lal v Seth Hiralal, AIR 1962 SC 527 : 1962 Supp (1) SCR 450 : 1963 ALJ 169
the question arose for the decision of the Supreme Court whether a Court could issue a
temporary injunction in circumstances which are not covered by O XXXIX, Civil
Procedure Code. The Supreme Court noticed the difference of opinion between the
High Courts on this point and approving the view taken by the Allahabad and Calcutta
High Courts held that the Courts have inherent jurisdiction to issue temporary
injunctions in circumstances which are not covered by O XXXIX.
It may be pointed out that although the decision of the Supreme Court relates to the
grant of temporary injunctions, the observations of their Lordships would equally apply
to other orders referred to in section 94. In this view, the conflict which existed earlier,
must now be held to have been resolved by the above decision of the Supreme Court.
Warrant of arrest—Clause (a).—
See O XXXVIII of Code of Civil Procedure.
Order for security on attachment—Clause (b).—

An order of attachment does not by itself effect any attachment unless the procedure
prescribed by the rules for effecting attachment is followed.5
See O XXXVIII of Code of Civil Procedure in this connection.
Temporary injunction—Clause (c).—
There must be a prima facie case made out before any injunction is issued. Mere
apprehension of interference with plaintiff collection of rent and breach of the peace
does not justify the grant of an injunction.
See O XXXIX, rules 1 and 2 of Code of Civil Procedure.
Grant of Temporary Injunction.—
Temporary injunction may be granted under section 94(c) of the Code of Civil
Procedure only if a case satisfies the requirements of the rules 1 and 2 of O XXXIX of
the Code of Civil Procedure and not otherwise. Therefore, when a matter comes before
the Court, it has to examine the facts and ascertain whether the conditions of section
94 read with O XXXIX rules 1 and 2 of the Code of Civil Procedure are satisfied and only
thereafter grant appropriate relief.6
Court is empowered to grant ad-interim ex parte order of temporary injunction.

—
Relief by way of temporary injunction particularly ad-interim ex parte injunction is

granted to mitigate the risk of injury that the plaintiff may suffer during the period of
uncertainty as pleaded in the plaint is resolved. The object of granting of ex-parte ad-
interim injunction is to protect the right of the plaintiff or prevent breach of violation of
his rights if any for which the plaintiff cannot be suitably compensated thereof. The
need of such protection has to be weighed against the corresponding claim, the
defendant may raise and thereby, the interest of the defendant would be also protected.
Thus, the Court must weigh one need against the another. It is this precise exercise
that trial Court ought to carry out while exercising its discretionary power for granting
of ex-parte ad-interim order.7
Appointment of Receiver—Clause (d).—
See O XL, rule 1 and section 151.
Other interlocutory order.—
Clause (e).—In passing any interlocutory order it is the duty of the Court to keep in view
that the rights of the parties are not jeopardised and the ends of justice not defeated.8
Court will not pass interlocutory order.—
The Court will abstain from passing an interlocutory order which has an effect or tends
to be susceptible, of an inference of pre-judging some of the important and delicate
issues that require to be decided in the main matter.9
No provisional admission at interlocutory stage.—
It is a well-known rule of practice and procedure that at interlocutory stage a relief

which is asked for and is available at the disposal of the matter is not granted. Unless
there is any special reason to be indicated in clear terms in an interlocutory order, as a
rule no provisional admission should be granted and more so in technical courses.10
1 Arjan Singh v Punit Ahluwalia, (2008) 8 SCC 348 (357).

2 Surendra Rathore v Vishwanath Bhasin, 2009 (3) MPLJ 662 (667, 669) (DB).
3 Anand Prakash v Assistant Registrar, AIR 1968 All 22 (27).
4 Rameshwar Dayal v Sub-Divisional Officer, AIR 1963 All 518 .
5 Sri Krishna Gupta v Ram Babu, AIR 1967 All 136 .
6 Shakunthalamma v Kathamma, AIR 2015 Kant 13 .
7 Madhu Product, Bangalore v Sundaram Files, AIR 2012 Kar 68 .
8 Balbir Anand v Ram Jawaya, AIR 1960 Raj 192 .
9 Sub Committee of Judicial Accountability v UOI, AIR 1992 SC 63 : (1992) 4 SCC 97 .
10 UP Junior Doctor's Action Committee v B Sheelal Nandwani, AIR 1992 SC 671 (673) : 1992
Supp (1) SCC 680 : (1992) 2 SLR 94 : 1992 ALJ 224 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 95. Compensation for
obtaining arrest, attach ment or injunction on insufficient grounds
© 2020 LexisNexis
PART VI Supplemental Proceedings
S. 95. Compensation for obtaining arrest, attach ment or injunction on

insufficient grounds
(1) Where, in any suit in which an arrest or attachment has been effected or a
temporary injunction granted under the last preceding section,—
(a) it appears to the Court that such arrest, attachment or injunction was
applied for on insufficient grounds, or
(b) the suit of the plaintiff fails and it appears to the Court that there was no
reasonable or probable ground for instituting the same,
the defendant may apply to the Court, and the Court may, upon such
application, award against the plaintiff by its order such amount, 11[not
exceeding fifty thousand rupees], as it deems a reasonable
compensation to the defendant for the 12[expense or injury (including
injury to reputation) caused to him]:
Provided that a Court shall not award, under this section, an amount
exceeding the limits of its pecuniary jurisdiction.
(2) An order determining any such application shall bar any suit for compensation
in respect of such arrest, attachment or injunction.
COMMENT.—
2002).—
Modification.—This section has been amended to make the modification that the
maximum amount of compensation that the Court may award to the defendant for the
expense or injury caused to him as a result of the plaintiff obtaining his arrest or
attachment or obtaining a temporary injunction against him on insufficient or
unreasonable grounds has been raised from one thousand rupees to fifty thousand
rupees.
This amended section purports to give a benefit to the affected party by raising the
amount of compensation payable by the wrongdoer.

1999 stated thus:-
In Section 95 of the Code, the Court may award compensation not exceeding one thousand
rupees in case it appears to the Court that an arrest, attachment or injunction has been
effected and such arrest, attachment or injunction was applied for on insufficient ground or
that there was no reasonable ground for instituting the suit. Subclause (2) of the said
section bars a suit for compensation in respect of such arrest, attachment or injunction if an
order has been passed by the Court on an application for compensation under sub-section
(1). In this circumstance, clause 8 seeks to substitutes "fifty thousand rupees" in place of
"one thousand rupees" [Clause 8]
Increased fine for certain offences.—The intention behind increasing the amount of
compensation payable is to prevent the wrongdoer from committing certain offences.
This in turn will reduce the number of offences because of the fear of paying heavier
compensation.
Scope of the section.—This section provides for payment of compensation to the

following cases;
(1) When an arrest or attachment before judgment has been affected or a temporary
injunction has been granted and such arrest, attachment or injunction was applied for
on insufficient grounds; and
(2) When an arrest or attachment before judgment has been made or a temporary
injunction is issued and the plaintiff fails in the suit as also there was no reasonable or
probable ground for filing of the suit.
The section provides a summary remedy for an injured defendant and enables him to
seek compensation for the injury done to him by the plaintiff by an application to the
Court instead of a suit. But the remedy under this section is optional, and an injured
defendant may, if he so chooses, institute a regular suit against the plaintiff for
compensation for wrongful arrest, attachment or injunction.13
The remedy under this provision is an alternative remedy in cases of wrongful

obtainment of an injunction. It does not in any way interfere with the principles
regulating suits for damages for tort of malicious legal process.14
By making an amendment by the Amending Act of 1976, the conflict for judicial
opinion, whether the expression "injury" includes injury to reputation has been set at
rest by making it clear that "injury" includes injury to reputation.
Some important points.—For the purpose of this section, some more important points
may also be noted viz,
(1) The applicants have to prove affirmatively that the attachment, arrest or
injunction was applied for on insufficient grounds, i.e. without reasonable cause;
(2) It is incumbent upon the defendant to make an application under this section.
Such an application must be made only after the suit has been heard and not
before;
(3) Damages only to the extent of Rs. 1000 can be awarded by the Court and that
too not in excess of its pecuniary jurisdiction;
(4) The grant of compensation under this section is purely a matter of discretion of
the Court;
(5) A regular suit for compensation is not barred by omission to apply under this
section. However, if an application is made and disposed of under this section,
such disposal would operate as a bar to a regular suit;
(6) Compensation can be awarded under this section only by the Court by which the
arrest, attachment or temporary injunction was ordered and the application for
compensation has to be made only to that Court;
(7) An appeal lies from an order made under this section (See section 104(g)).
Amount of compensation.—The amount of compensation that may be awarded under

this section cannot exceed Rs. 1,000. Where a defendant claims a larger amount of
compensation, he must institute a regular suit.
11 Subs. for 'not exceeding one thousand rupees' by the Code of Civil Procedure (Amendment)
Act, 1999 (46 of 1999), Section 8 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
12 Subs. for 'expense or injury caused to him' by Act 104 of 1976, Section 32 (w.e.f. 1-2-1977).
13 Inder Singh v Chief Commissioner, AIR 1963 Punj 153 .
14 Bank of India v Lakshimani Dass, AIR 2000 SC 1172 : (2000) 3 SCC 640 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 96. Appeal from original
decrees
© 2020 LexisNexis
PART VII Appeals
Appeals from Original Decrees
S. 96. Appeal from original decrees
(1) where otherwise expressly provided in the body of this Code or by any other
law for the time being in force, an appeal shall lie from every decree passed by
any Court exercising original jurisdiction to the Court authorized to hear
appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of
parties.
1
[(4) No appeal shall lie, except on a question of law, from a decree in any suit of
the nature cognizable by Courts of Small Causes, when the amount or value
of the subject-matter of the original suit does not exceed 2[ten thousand
rupees].]
COMMENT.—
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7.2002)
Modification.—The amendment has made the following modification:
The minimum pecuniary limit for appeal from original decree of Courts of Small
Causes has been raised from "three thousand rupees" to "ten thousand rupees" by
section 9 of the Amendment Act, 1999.
The aforesaid amendment has been effected in view of the erosion in money value.

1999 stated thus:-
Section 96 of the Code provides for an appeal from original decree. Since the time
provisions were made the value of money has considerably decreased and the
pecuniary limits of "three thousand rupees" require to be revised. Clause 9 therefore
seeks to substitute "ten thousand rupees" in place of "three thousand rupees" in
Section 96. [Clause 9].

(f) (of the repeal and savings section) stipulates that the provisions of section 96 of the
principal Code, as amended by section 9 of the Amendment Act, 1999 shall not apply to
or affect any appeal from original decree which had been admitted before the
commencement of section 9; and every admitted appeal shall be dealt with as if
section 9 had not come into force.
Enhancement of value for appeal purposes.—The pecuniary jurisdiction for appeal from
original decree has been raised to rupees ten thousand from rupees three thousand.
This restriction applies to suits of the nature cognizable by Courts of Small Causes.
This is intended, among other things, to reduce the number of appeals being filed.
Meaning of word "Appeal".—Nowhere the word "Appeal" has been defined in the Code of
Civil Procedure. The word has been held to mean "the removal of a cause from an
inferior Court to a superior Court for the purposes of testing the soundness of the
decision of the inferior Court". It is thus a remedy provided by law for getting the decree
of the lower Court nullified. In other words, it is a complaint of the lower Court made to
a higher Court that the decree of the lower Court is unsound and wrong. An appeal
must be preferred against the decree and not against any item or items in it. An appeal
is only a continuation of the original proceedings and it is a state in the suit itself.
An appeal is the continuation of suit.—The only difference between a suit and an appeal
is that an appeal "only reviews and corrects the proceedings in a case already
constituted but does not create the cause". As it is intended to interfere with the cause
by its means, it is part of it. In connection with some matters and some statutes it is
said that an appeal is a continuation of a suit.3
The right of appeal is one of entering a superior Court and invoking its aid and
interposition to redress the error of the Court below. The principle of merger of orders
of inferior Courts would not become affected or inapplicable by making any distinction
between a petition for revision and an appeal.4
The right of appeal is a substantive right whereas the scope for making revision under
section 115 is not linked with a substantive right.5
Section 96 lays down some primary rules regarding appeals from original decrees
which are as follows:
(1) Unless otherwise provided elsewhere, an appeal lies from every decree passed
by any Court exercising original jurisdiction to the Court authorised to hear
appeals from the decisions of such a Court. An order modifying a scheme under
section 92 of the Code which is part of a decree, constitutes an amendment
decree against which an appeal would lie.6
(2) An appeal can be even from an ex-parte decree.
(3) But no appeal lies from a consent decree.
(4) No appeal lies from a decree in any suit cognizable by a Small Causes Court
except on a question of law, and the value of the subject-matter of the original
suit does not exceed Rs. 3,000.
An appeal lies under section 96 only from a decree. An appeal does not lie from a mere
finding. Section 104 of the Code deals with appeal from orders and this section deals
with appeals from orders.
The High Court while granting stay of the execution of the decree must take into
consideration the facts and circumstances of the case before it. It is not to act
arbitrarily. If a stay is granted, sufficient cause must be shown which means that the
materials on record were required to be pursued and reasons are to be assigned. Such
reasons should be cogent and adequate.7
If an ex parte decree in a suit for possession is set aside in appeal on the ground of
insufficiency of evidence, then the remand and retrial of the suit should be ordered.8 As
regards ex-parte decrees, it may be noted that there are four remedies open to a person
to question a decree passed against him ex-parte viz.,
(1) he can file an application under O IX;
(2) he can file an appeal under section 96;
(3) he can file an application for review under O XL, VII and;
(4) he can file a suit on the ground of fraud.
It is a general principle of the law that a right of appeal is not to be assumed in every
matter which comes under the consideration of a Court. Such a right must be given by
some Statute or by some authority equivalent to a Statute. It has been held by the
Allahabad High Court in Zair Hussain Khan v Khurshed Jan, (1906) 28 All 545 that,
"unless a right of appeal is clearly given by Statute, it does not exist, whereas a litigant
has independently of any Statute a right to institute any suit of civil nature in some
Court of another" provided its cognizance is not barred expressly or impliedly under
section 9 of the Code. A right of appeal is a substantive right and not a procedural
matter.9
Appeal is a continuation of a suit. As per O XX rule 18(2) of the Code on passing a

preliminary decree only share of the parties is determined and the actual partition is
effected as per final decree.10
Maintainability.—
The plaintiff can prefer appeal only from that part of the decree in respect whereof
review was not granted.11
The use of phrase "from a decree in any suit of nature cognizable by Courts of small
causes" itself signifies that if a decree is passed by Court of Small Causes without
returning plaint, there is no scope of appeal. Plaint was not returned by Court of Small
causes and suit was decided by such Court. Section 96(4) has no application.12
Right of appeal is substantive right.—
The right of appeal is not a mere matter of procedure, but is a substantive and vested
right to be governed by the law prevailing at the date of the suit and not by law that
prevails at the date of the decision or at the date of the filing of the appeal. The vested
right of appeal can be taken away only by a su-bsequent enactment if it so provided
expressly or by necessary implication.13
An order rejecting a plaint for non-payment of deficit Court fee is a decree. There is a
right of appeal open to the plaintiff. In a case in which special leave has been granted,
the question whether an appeal lies or not, does not arise.14
Though there is a right of appeal vested in the litigant at the time when the action is
brought.15 Whether an appeal in the High Court is to be heard by one or two or a large
number of judges, is merely a matter of procedure. No party has a vested right to have
his appeal heard by a specific number of judges.16 For the same reasons, parties
cannot confer a right of appeal on themselves in any matter by means of an agreement
or mutual consent.17
An appeal lies under this section only from a decree because the decree marks the
stage at which the jurisdiction of the Court which has tried the matter ends and the
jurisdiction of the Court to which the appeal is made begins.18 As such unless a decree
is drawn up, no appeal lies from a mere finding.19 But if the finding amounts to a
decree, an appeal would lie.20
No person unless he is a party to the suit is entitled to appeal under this section. But a
person who in not a party can appeal with the leave of the appellate Court, if he would
be prejudicially affected by it, and it will be binding on him as res judicata21 When order
is passed accepting the contention of a party, it is not open to him to file an appeal
against it and ask for its reversal.22
Where a preliminary decree is set aside in appeal, the final decree that might have been
passed becomes ineffective as there is no preliminary decree to support it. But where
the appellate Court confirms the preliminary decree, it is only that decree that is
superseded and merges in the appellate decree, but the final decree passed continues
to stand and needs no change and no fresh final decree need be passed.23
Under rule 19 Second Proviso of Defence of India Rules framed under section 19 of
Defence of India Act no appeal lies against the award of an arbitrator where the
compensation does not exceed Rs. 5,000.00.24
An appeal was filed against discretion for payment of huge decretal amount in
instalments. Before the decree was drawn up and requisitely stamped it was
withdrawn. Subsequent appeal against the decree on merits is not barred under this
provision or that of O II rule 2 of Code of Civil Procedure.25
Section 202(1) of the Companies Act, 1913 conferred a right of appeal against order
passed by a district judge or by a single judge of a High Court in the matters of
winding-up of a company. This right was a right independent of section 96 Code of Civil
Procedure.26
In a suit for declaration of title and perpetual injunction, State having not preferred any
appeal, it was not permissible for the first and second appellate courts to reverse the
decree in title suit in favour of the State.27
When matters are referred, the referee Court's jurisdiction is enlarged.—
This provision, very clearly, gives a right of appeal from every decree passed by any
Court exercising original jurisdiction to the Court authorised to hear appeals from the
decision of such Court. All the incidents of that jurisdiction including the right to appeal
from its decision if the decision is open to appeal under the law applicable to the Court,
remain entact.28
A plea abandoned in first appellate Court cannot be reagitated in second

appeal.—
If a party abandoned a particular plea in the first appellate Court then it cannot be
allowed to reagitate the same in the second appeal.29
A High Court cannot function as first appellate Court.—
In the first appeal the Court is free to decide all questions of law and fact which arise in
the case. A High Court cannot function as a Court of first appeal so far as the
assessment of evidence is concerned.30
The fact that the main appeals are themselves disposed of finally on merits by the High
Court, would not by itself detract from and bar the consideration of correctness of the
High Court order condoning the delay by the Supreme Court.31
An appeal was dismissed on ground of failure of appellant to file vakalatnama in spite

of Court's instruction. It amounted to non-compliance with procedural direction and
involved negligence. The appeal was ordered to be restored and the appellant was
directed to pay costs to respondents.32
Unless it is proved conclusively that the lis had commenced before the amendment of
the law relating to appeal, the rule in Hoosein Kasam Dada v State of MP, AIR 1953 SC
221 : 1953 SCR 987 cannot be applied.33
Forum of appeal.—
It is the amount or the value of the subject-matter of the suit which determines the
forum i.e. the Court in which the suit is to be filed. Similarly, it is the amount or the value
of the subject matter which determines the forum of appeal i.e. the Court in which the
appeal lies. Where on the valuation given in the plaint in a suit instituted in the
Subordinate Court an appeal will lie to the District Court, it is not open to the defendant
to prefer an appeal to High Court on the plea that the plaintiff had undervalued the
suit,34 or by giving his own valuation in the memorandum of appeal.35
Powers of appellate Court.—
An appellate Court cannot decree suit in appeal on ground of false representation and
undue influence.36
When the question turns upon oral evidence to be appreciated the appellate Court
should be slow in reversing the finding of the trial Court. The appellate Court not
setting aside the finding of the trial Court, cannot reverse the decree merely on ground
of mutation entry in favour of defendant.37
Whether an appeal is valid or competent is a question entirely for the appellate Court
before whom the appeal is filed to determine. This determination is possible only after
the appeal is heard. There is nothing to prevent a party from filing an appeal which may
ultimately be to be incompetent.38
The appellate Court has jurisdiction to construe the terms of section 96 of Code of Civil
Procedure. Even if the construction placed by the said Court be erroneous, the
appellate judgment is not a nullity. It cannot be disregarded or attacked collaterally as
passed by a Court not competent to entertain the appeal.39
The conclusions reached by the High Court cannot be endorsed and the decree passed
cannot be upheld where it has "virtually" reached a conclusion without recording
reasons in support of such conclusions.40
The finding of the trial Court was that whether there was necessity for execution of the
sale deed by Karta of the joint family property and its binding nature depends upon
various factors and circumstances and answer to that would decide the result of the
case one way or the other. The High Court in appellate powers instead of deciding the
correctness of the view of trial Court based on the material on record declined to go
into the question on the footing that there was no pleading to enable the Court to go
into that question. The order of the High Court was not proper. The matter was remitted
back for disposal in accordance with the law.41
Deficiency of Court Fee.—
The deficiency of court fee is to be made good during the pendency of suit. It cannot be
allowed at appellate stage.42
Existence of "Arbitration Clause" cannot be set up at appellate stage.—
Suit was filed for dissolution of a partnership firm, settlement of accounts and other
reliefs. After trial a preliminary decree was passed dissolving the partnership and
directing the defendants to render accounts, and defendants were also restrained from
alienating or encumbering the assets of the firm. In appeal for the first time, it was
contended that the partnership contained an arbitration clause and therefore the suit
itself was not maintainable. It was held that if at all such a challenge was available the
defendants should have raised it at the appropriate stage as provided under section 8
of the Arbitration Act, 1996. That having not been done, at the appellate stage, such
challenge cannot be entertained.43
An order of Court rejecting an application for review is not appealable but if a fresh
decree is passed in the review petition by modifying an earlier decree, an appeal as well
as cross appeal are maintainable against the fresh decree passed in the review
petition.44
Duty of Court.—
The High Court should analyse the factual position in the background of principles of
law involved and then decide the appeal.45
It is the duty of the first appellate Court and also of the High Court under section 3(1)
of the Limitation Act to go into the question of limitation and decide the same before
reversing the judgment of the trial court on the various issues framed in the suit.46
First appeal is a valuable right of appellant and all questions of fact and law decided by
the trial Court are open for reconsideration. Where the High Court (as first appellate
court) finds the trial Court judgment to be unsatisfactory and wants to set aside the
judgment it ought to carefully examine facts and law and give cogent reasons for
setting aside such judgment.47
Where in the first appeal the High Court did not deal with any of the submissions urged
by the appellants and/or Respondents nor it took note of the grounds taken by the
appellants in grounds of appeal nor took note of cross objections filed by plaintiffs
under O XLI rule 22 of the Code of Civil Procedure, nor made any attempt to appreciate
the evidence adduced by the parties so also did not consider whether the judgment of
the trial Court can be sustained or not such a decision of the High Court is liable to be
set aside. It is the duty of the first appellate Court to decide the appeal keeping in view
the scope and powers conferred on it under section 96 read with O XLI rule 31 of the
Deciding of first appeal by High Court after elaborately dealing with only one issue
raised by one of the parties, and omission to make reference to pleadings of other
parties is contrary to the requirement of O XLI rule 31.49
When substantial justice and technical considerations are pitted against each other,
cause of substantial justice deserves to be preferred and courts may in larger interests
of administration of justice excuse or overlook a mere irregularity or a trivial breach of
law for doing real and substantial justice and pass orders which will serve the interests
of justice best.50
Who can appeal.—
The section does not refer to the persons who can file the appeal. As a rule, it is only a
party to the proceedings in the primary Court or tribunal who has the right to prefer an
appeal against the order of that tribunal provided of course he is aggrieved by it and if
any other person happens to feel aggrieved by that order, and his interests are effected
thereby, he can file an appeal against it only by the leave of the Court but not
otherwise.51
An appeal may be preferred by one of the following persons under this section:
(1) Any party to the suit adversely affected by a decree; or if such party is dead, by
his legal representatives under section 146.
(2) A transferee of the interest of such party, who so far as such interest is
concerned, is bound by the decree, provided his name is entered on the record
of the suit.
(3) An auction purchaser may appeal from an order in execution setting aside the
sale on the ground of fraud.
(4) No other person, unless he is party to the suit, is entitled to appeal under this
section.
A party challenging a compromise in a suit can file a petition under proviso to rule 3 of
O XXIII or an appeal under this section, in which he can question the validity of the
compromise in view of rule 1-A of O XLIII of Code of Civil Procedure.52
Where a decree is passed in a suit for the declaration of dissolution of marriage, a third
party who has nothing to do with the relationship of parties to marriage, cannot be
permitted to intrude into their privacy by preferring an appeal against the said decree.53
In order to give a person a right of appeal under this section, following conditions must
be complied with:—
(1) The subject-matter of the appeal must be a decree.54 A determination under

section 49 of the Land Acquisition Act is not a decree within section 2(2) of
Code of Civil Procedure and an appeal against it will not lie under this section.55
In other words there must be conclusive determination of the rights of the
parties with regard to all or any of the matter in controversy in the suit,56 and
(2) The party preferring an appeal must have been adversely effected by such
determination.57
No person is entitled to file appeal unless he is prejudicially or adversely affected by the

decree. An appeal lies against the decree and not against a mere finding or
judgment.58
A person is said to be aggrieved by an order if that order directly affects or prejudices

his interest.59
If a third party establishes that he is interested in the welfare of the trust, he would be
an "aggrieved party" having locus standi to prefer an appeal.60
With the leave of the appellate Court, a person who is not a party, may prefer an appeal
from a decree or order if he is bound by it or aggrieved by it or prejudicially affected by
it.61
Effect of deletion of necessary parties on Appeal.—
When the defendants had acquired valid title over the suit property through sale deed
from the rightful owner of the suit property, then in an appeal by the plaintiff regarding
declaration of title to suit property, the defendants i.e. the rightful owners thus were
necessary parties. Deletion of their names from the appeal memo would make the
appeal memo incompetent and therefore is liable to be dismissed.62
Ex parte Judgment/Decree is original Judgment.—
As per section 96 of the Code of Civil Procedure an appeal may lie from the order or
decree passed ex-parte and as per section 19 of the Family Courts Act, an appeal shall
lie to the High Court from the Family Court both on facts and on law. Since ex-parte
judgment/decree is an original judgment, the appeal under section 19 of the Family
Courts Act is well maintainable. In any event, section 19 starts with non-obstante
clause and therefore notwithstanding the right of the appellant to file an application
under O IX rule 13 of the Code of Civil Procedure the appeal is maintainable.63
Formation of question of law.—
In a suit of permanent injunction, for the formulation of question of law in first appeal,
the High Court neither considered findings of trial Court regarding possession nor
formulating question regarding possession. Therefore, matter was remanded back for
the analysis of evidence on record with reference to question of possession.64
Term, "substantial question of law" will carry the same meaning as is commonly
understood. No distinction can be made between a substantial question of law for the
purpose of first appeal and one for second appeal.65
Death of one or the other appellant.—
On the death of one or the other appellant, an application for setting aside abatement,
condonation of delay and bringing legal representatives on record was filed. In such
circumstances order by High Court, rejecting the application of legal representatives
would result in grave injustice to remaining appellants. They would be denied of their
right to have an adjudication of their claims on merits. Such an order is liable to be set
aside.66
Appreciation of evidence by Appellate Court.—
Where the trial Court has considered entire evidence and recorded several material
findings, the first appellate Court would not reverse them on the basis of conjectures
and surmises or without analysing the relevant evidence in entirety. If the first appellate
Court is reversing the judgment of the trial court, it is bound to independently consider
the entire evidence.67
Conditional leave to defend suit granted.—
Where a conditional leave to defend suit is granted and the conditions therefor are not
complied with, a judgement in favour of the plaintiff can be passed.68
Merger of decrees.—
Any decree passed by the appellate Court is a decree in the suit.69 As a general rule,
the appellate judgment stands in the place of original judgment for all legal purposes.
To put it in other words, the decree of the lower Court merges in the decree of superior
Court.70 The presentation of an appeal puts the decree of the lower Court in jeopardy,
but until it is modified or reversed in appeal, it remains effective unless it is a nullity.71
The Supreme Court has held in State of Madras v Madurai Mills Co Ltd, AIR 1967 SC 681
: (1967) 1 SCR 732 : 1957 STC 144 ; CIT v Bhogilal & Co, AIR 1958 SC 868 : (1958) 39
ITR 130 (relied on) as follows:-
The doctrine of merger is not a doctrine of rigid and universal application and it cannot be
said that wherever there are two orders, one of the inferior tribunal and the other by a
superior tribunal passed in an appeal or revision, there is a fusion or merger of two orders,
irrespective of the subject-matter of appellate or revisional order and the scope of the
appeal or revision contemplated by the particular statute. In our opinion, the application of
the doctrine depends on the nature of the appellate or revisional order in each case and the
scope of the statutory provisions conferring the appellate or revisional jurisdiction.72
The power under Article 136(1) of the Constitution of India is unfettered. It cannot be
held that after having entertained a special leave petition against any final or
interlocutory order, the Supreme Court converts itself into a Court of Appeal, for the
hearing of the dispute involved and as such when the appeal is dismissed, the decree
passed by the High Court merges into the decree of the Supreme Court and amounts to
passing a decree for eviction.73
The trial Court's direction to refer dispute to arbitrator as per agreement within two
months, would stand merged with the order of appellate court upholding this (trial
court's) direction with the rider that the reference should be according to the arbitration
clause.74
No condonation of delay without reasonable explanation.—
The condonation of delay in filing appeal without recording satisfaction of reasonable

or satisfactory explanation for the delay is not proper and judicious. The order is to be
set aside.75
An application for condonation of 386 days delay on ground of prosecuting, under legal
advice, a remedy in another civil Court, was filed. It was dismissed. The revision against
the same was also dismissed. Then a petition by the tenant for special leave to appeal
was allowed subject to tenant fully complying with condition of depositing use and
occupation charges on specified dates. His appeal was also allowed thereby setting
aside the judgment of the Munsif Court.76
Collusive suit.—
The appellant bank for the first time raised the question about collusive suit in appeal,
since bank had no locus standi partition in the partition suit, the bank could not be
permitted to reprobate and approbate at the same time.77
Effect of unreasonable order.—
Where appeal is disposed of by unreasoned order, it is liable to be set aside.78
Consent decrees not appealable—Clause (3).—
This clause declares that no decree passed by the consent of the parties shall be
appealable. However, an appeal lies against a consent decree where the ground of
attack is that the consent decree is unlawful being in contravention of a statute or that
the counsel had no authority.79
The appeal against compromise decree would be barred under Secton 96(3) where
appellant's father had himself signed the compromise application.80
The bar to an appeal against a consent decree in this section is based on a broad
principle of estoppel. It presupposes that the parties to an action can, expressly or by
implication, waive or forgo their right of appeal by any lawful agreement or compromise
or even by conduct. Where the parties made an agreement to abide by the
determination in certain pending appeal and induced the Court to pass a decree in
terms of that agreement the principle of estoppel became operative. The decree, to the
extent of terms of the agreement, became final and binding on the parties.81
Where the decree cannot be said to be a consent decree the bar under section 96(3) of
the Code would not apply.82
Appeal against compromise decree alleged to be void being entered into without leave
of Court in representative suit would be maintainable and bar of section 96(3) would
not be applicable.83
Exceptions where consent decree is appealable.—
There are, however, three cases based upon case law in which decrees, though passed
with the consent of the parties, can be appealed against. These cases are:
(1) Where the appellant appeals on the ground that is was not a decree passed with
the consent of the parties, and that the lawyers of parties had consented
without any authority from their respective clients.
(2) Where the consent decree is passed without an order recording compromise.
The reason is that such recording is not a mere matter of form, and its absence
deprives the party of a right of appeal against the order if it had been passed.
(3) Where the appellant was not a party to the consent decree and the decree
affects him prejudicially.
An agreement whereby the parties agree not to appeal from a decree is binding upon
the parties thereto, if it is for lawful consideration and is otherwise valid. However, an
agreement not to appeal by a next friend of a minor is not binding on the minor.
A consent decree can be set aside only by means of a suit and not in an appeal or a
review or by a rule obtained on a motion.
After a compromise has been recorded, the Court concerned can entertain an
application under section 151 of the Code of Civil Procedure questioning its legality or
validity of the compromise. If such an application is filed, then the Court which passed
the decree shall consider the said application after notice to the other side.
By the addition of a new sub-section (4) to this section, it was provided that there
would be no appeal on facts from the decree passed in petty suits where the amounts
or value of the subject matter of the original suit does not exceed three thousand
rupees, if the suits in which such decrees are passed are of the nature cognizable by
Courts of small causes.
Rules 1 to 37 of O XLI Civil Procedure Code lay down the detailed rules governing
appeals from the original decrees. Reference may be made to those rules of O XLI.
Condition for admission of appeal.—

Imposing of condition of deposit for admission of appeal is not justified.84
Procedure.—
Where the High Court had erred in dismissing first appeal at the admission stage itself
without issuing notice to respondent and without looking into the evidence and other
materials on record and without considering the propriety of the findings made by the
trial Court, matter was remitted to the High Court for decision afresh.85
Where the High Court, while exercising the jurisdiction of first appellate Court,
committed a manifest error of law apparent on the face of the record, the judgment and
order passed by it was set aside and remitted back to it for fresh consideration.86
Where trial Court and High Court without giving any specific finding on Will decreed the
suit, matter was liable to be remitted to High Court for fresh consideration.87
Matter was remitted to the High Court for fresh consideration where appeal against
decree in suit for specific performance was dismissed in improper manner.88
The defendant's counsel did not appear in District Court despite instructions of
defendant to do so, due to counsel's engagement in High Court. None appeared for the
defendant before the district Court, so district Court proceeded ex parte, recording
evidence, hearing arguments and posting matters later in the same day for the delivery
of judgment. Thereafter, counsel for defendants made appearance before the district
Court and made application for recall of the order. However, the district Court passed
an ex parte order. The application under O IX rule 13 of the Code was not pressed by
the defendant. The appeal against ex parte decree before High Court was dismissed.89
Propriety of remand.—
In appeal remand of matter by High Court with direction to give opportunity to parties
to adduce further evidence is not justified.90
Propriety of stay to criminal proceedings.—
Filing of an independent criminal proceeding is not barred under any statute, hence
stay to criminal proceedings for forgery initiated on the basis of observations made in
civil suit was held to be improper.91
First appeal against ex parte decree.—
The two grounds cannot be raised in a first appeal against the ex parte decree under
section 96. In the first appeal under section 96, the defendant on the merits of the suit
can contend that the materials brought on record by the plaintiff were not sufficient for
passing a decree in his favour or that the suit was not otherwise maintainable.92
Challenge to interlocutory order.—
The interlocutory orders can always be challenged in appeal when appeal is filed
against the final orders.93
1 Ins. By Act 104 of 1976, section 33 (w.e.f. 1-2-1977).

2 Subs. for 'three thousand rupees' by the Code of Civil Procedure (Amendment) Act, 1999 (46
of 1999), Section 9 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
3 Dayawati v Inderjit, AIR 1966 SC 1423 (1426) : (1966) 3 SCR 275 : 1966 Cur LJ 477 .
4 Shankar v Krishnaji, AIR 1970 SC 1 (4) : (1969) 2 SCC 74 ; see also Nagendra Nath Dey v
Suresh C Bey, AIR 1932 PC 165 (167); Arati Paul v Registrar, Calcutta EC, AIR 1969 SC 1133 :
(1969) 2 SCC 756 .
5 Shiv Shahti Coop Housing Society, Nagpur v Swaraj Developers, AIR 2003 SC 2434 (2439) :
(2003) 6 SCC 659 : (2003) 2 KLT 503 .
6 Bhogaraju VJ Ramarao v Board of Commrs, AIR 1965 SC 231 (237) : (1964) 5 SCR 270 .
7 Malwa Strips (P) Ltd v Jyoty Ltd, (2009) 2 SCC 426 (431).
8 Sudha Devi v MP Narayanan, AIR 1988 SC 1381 : (1988) 3 SCC 366 : 1988 BBCJ 26 .
9 (1970) 72 Punj LR 491 .
10 Pravat Chandra Pattnaik v Sarat Chandra Pattnaik, (2008) 106 Cut. LT 98 (102); see also D
Purushottama Reddy v K Sateesh, (2008) 8 SCC 505 .
11 R Mukherjee v AK Das, AIR 2005 SC 1944 (1951).
12 Bankim Chandra Lohar v Sitangshu Kr Bhaiya, AIR 2009 Cal 285 (DB) : 2010 AIHC (NOC) 118
(Cal) : FAT No 3565 of 1996 with CA No 10304 of 2008 dt 29 July 2009 : 2009 (3) CHN 490 (DB).
13 Garikapati Veeraya v Subbiah Chaudhury, AIR 1957 SC 540 : 1957 SCR 488 : (1957) 2 MLJ 1 .
14 Shamsher Singh v Rajinder Prasad, AIR 1973 SC 2384 : (1973) 2 SCC 524 : (1974) 1 SCR 322 .
15 Beharilal v Keshri Nandan, AIR 1970 All 201 (FB) : 1969 All LJ 537.
16 Mohd Meera Lebbai v Thirumalaya, AIR 1966 SC 430 (432); Ittyavira Mathai v Varkey Varkey,
AIR 1964 SC 907 : (1964) 1 SCR 495 : 1963 KLT 1133 (relied on).
17 1902 Punj Re No 36 P 135 (FB).
18 District Board Muzaffarnagar v Upper India Sugar Mills Ltd, AIR 1957 All 527 .
19 Rama Shankar v Habraji, AIR 1969 All 407 .
20 Maha Prasad v Dukh Haran Nath, AIR 1941 Oudh 18.
21 Shivaraya v Siddamma, AIR 1963 Mys 127 ; see also Govinda Menon v Madhavan Nair, AIR
1964 Ker 235 .
22 UOI v Official Liquidator, AIR 1963 Cal 214 .
23 Sital Parshad v Kishori Lal, AIR 1967 SC 1236 (1242) : (1967) 3 SCR 101 ; see also Shankar
Ramchandra v Krishanji Dattaraye, AIR 1970 SC 1 . Dismissal or reversion against order—order
merges with order in revision.
24 Soorajmull v State of WE, AIR 1963 SC 393 : (1963) 2 SCR 163 .
25 M Ramnarain v STC, AIR 1983 SC 786 (797) : (1983) 3 SCC 75 : (1983) 2 Comp LJ 163 .
26 Shankarlal v Shankarlal, AIR 1965 SC 507 (514) : (1964) 1 SLR 717 : (1965) 35 Com Cas 1 .
27 Chokalingaswami Idal v Gnanapragasam, (2008) 4 SCC 219 (221).
28 National Sewing Thread Co v James Chadwick, AIR 1953 SC 357 .
29 Mahesh Chand Sharma v Raj Kumari Sharma, AIR 1996 SC 869 (881).
30 Manick Chandra Nandi v Debdas Nandi, AIR 1986 SC 446 (448) : (1986) 1 SCC 512 .
31 G Ramegowda v Spl Land Acquisition Officer, Bangalore, AIR 1988 SC 897 (899) : (1988) 2
SCC 142 .
32 Bihar State Electricity Board v Bhowra Kankance, AIR 1982 SC 60 : 1984 Supp SCC 597 .
33 Vittlhalbhai v Commr, Sales Tax, AIR 1967 SC 344 : (1961) 12 STC 219 .
34 Deonath Missir v Chandraman Missir, AIR 1958 Pat 430 : 36 Pat 1223.
35 Pyara v Shiv Shanhar, 1963 All 476 .
36 Rani v Shanta Bala, AIR 1971 SC 1028 (1030) : (1970) 3 SCC 722 .
37 Sawarni v Inder Kaur, AIR 1996 SC 2823 (2825) : (1996) 6 SCC 223 .
38 Raja Kulkarni v State of Bombay, AIR 1954 SC 73 : 1954 SCR 384 .
39 Isher Singh v Sarwan Singh, AIR 1965 SC 948 (951) : (1996) 8 SCC 661 .
40 Jagdish Singh v Madhuri Devi, AIR 2008 SC 2296 (2302); see also Nicholas Menezes v Joseph
M Menezes, (2009) 4 SCC 791 .
41 Narayana Prabhu v Janardhana Mallan, AIR 1996 SC 3276 (3278).
42 Sardar Gurpreet Singh v Additional District Judge (FTC II), AIR 2013 Utr 42 .
43 TP Muraleedharan v Mlbrahim Kutty, AIR 2014 Ker 90 .
44 Lainenmayum Rashmandal Singh v Khwairakpam Jayenta Kumar Singh, AIR 2014 Mpr 51 .
45 Brihanmumbai Mahanagar Palika v Akruti Nirman (P) Ltd, (2008) 3 SCC 78 .
46 Kamlesh Babu v Lajpat Rai Sharma, (2008) 12 SCC 577 (581).
47 BMNarayana Gowda v Shanthamma, AIR 2012 SC Supp 264.
48 Shashidhar v Ashwini Uma Mathad, AIR 2015 SC 1139 .
49 S Kesari Hanuman Goud v Anjum Jehan, (2013) 12 SCC 64 .
50 Laxmibai v Bhagwantbuva, AIR 2013 SC 1204 .
51 Jatan Kanwar v Golcha Properties, AIR 1971 SC 374 : (1970) 3 SCC 573 : (1971) 41 CC 230 .
52 Banwari Lal v Chando Devi, AIR 1993 SC 1139 (1143) : (1993) 1 SCC 581 : (1993) 1 BLJR 163
.
53 Baldev Singh v Surinder Mohan Sharma, AIR 2003 SC 225 : (2003) 1 SCC 34 .
54 SR Rajendar v MS Govindier, AIR 1962 Mad 16 (FB); see also Ram Narain v Jai Narain, AIR
1964 All 125 (DB).
55 Deep Chand v Land Acquisition Officer, AIR 1994 SC 1901 (1904) : (1994) 4 SCC 99 : (1994) 2
PLR 97 .
56 Phool Chand v Gopal Lal, AIR 1967 SC 1470 : (1967) 3 SCR 153 .
57 Ebrahim Aboobakar v Custodian General, AIR 1952 SC 319 ; see also (1970) 1 Andh LT 6 and
AIR 1953 Cal 214 .
58 Banarsi v Ram Phal, AIR 2003 SC 1989 (1994) : (2003) 9 SCC 606 .
59 1961 ALJ 473 (DB).
60 Swami Shankaranand v Mahant Sri Sadguru Sarnanand, (2008) 14 SCC 642 (644-46).
61 State of Punjab v Amar Singh, AIR 1974 SC 994 (1006) : (1974) 2 SCC 70 : (1974) 3 SCR 152 .
62 Asha Devi v Rama Nand Singh, AIR 2014 Pat 25 .
63 Mala Kumari v Vijay Kumar alias Vijay Shankar Rai, AIR 2015 Jhar 31 .
64 Thimmaiah v Shabira, (2008) 4 SCC 182 (184).
65 Om Prakash Batish v Ranjit Kaur, AIR 2008 SC 2143 (DB).
66 S Amarjit Singh Kalra v Pramod Gupta, AIR 2003 SC 2588 (2605, 2611) : (2003) 3 SCC 272 .
67 LNAswathama v P Prakash, (2009) 13 SCC 229 (234).
68 Wada Arun Asbestos (P) Ltd v Gujarat Water Supply & Sewerage Board, (2009) 2 SCC 432
(438).
69 Atchayya v Sri Seetharamachandra Rao, AIR 1915 Mad 1223 (FB).
70 Raj Singh v Board of Revenue,1967 ALJ 1054; see also Pragji Ranchhod v Bai Monghi Wd/o
Doongersi Dipchand, (1967) 8 Guj LR 986.
71 State of UP v Mohd Noor, AIR 1958 SC 86 .
72 AIR 1967 SC 681 : (1967) 1 SCR 732 : 1957 STC 144 ; CIT v Bhogilal & Co, AIR 1958 SC 868 :
(1958) 39 ITR 130 (relied on) at pp 683-84; see also State of Madras v Guruviah Naidu, AIR 1968
Mad 137.
73 L M Navakhare v KE Tapar, AIR 1993 SC 2596 (2600) : (1993) 2 SCC 270 .
74 Indian Oil Corporation Ltd v Raja Transport (P) (Ltd), (2009) 8 SCC 520 (538).
75 PKRamchandran v State of Kerala, AIR 1998 SC 2276 : (1997) 7 SCC 556 .
76 Shyamal Kanti Danda v Chunnilal Chaudhary, AIR 1984 SC 1732 : (1984) 4 SCC 345 .
77 Allahabad Bank v Arati Mishra, (2010) 110 Cut LT 493 (497) (DB).
78 Malnad Traders v New India Assurance Co Ltd, AIR 2009 SC 2084 .
79 Sagwa v Dalwa, AIR 1953 All 97 ; see also Baqridan v Ahmed Khan, AIR 1956 All 94 .
80 Gauri Shankar Pathak v Shankarnand Upadhyay, AIR 2011 Pat 66 (71-72).
81 Katikara C Dora v Annamanaidu, AIR 1974 SC 1069 (1081) : (1974) 1 SCC 567 : (1974) 2 SCR
655 ; see also Shailendra Narayan BD v State of Orissa, AIR 1956 SC 346 : 1956 SCR 72 : 32 Cut
LT 251.
82 Government of AP v MPratima Reddy, 2010 (1) ALT 256 (271) (DB).
83 Deputy Commr, Bilaspur v Jai Prakash Bhojki, AIR 2009 (NOC) 2764 (HP-DB).
84 MGMT of Devi Theatre v Vishwanath Raju, AIR 2004 SC 3325 .
85 Arundhati v Iranna, (2008) 3 SCC 181 .
86 Payappar Shree Dharmasastha Temple Advisory Committee v AK Joseph, (2009) 14 SCC 628
(638).
87 NSrihari v NPrakash, AIR 2008 SC 1548 (DB).
88 BK Sri Harsha v Bharath Heavy Electricals Ltd, AIR 2008 SC 1267 : (2008) 4 SCC 48 .
89 Lal Devi v Vaneeta Jain, (2007) 7 SCC 200 (204-06).
90 Gowrammanni v VVPatil, AIR 2009 SC 1998 .
91 P Swaroopa Rani v M Hari Narayana, AIR 2008 SC 1884 .
92 Rasiklal M Dhariwal v MSS Food Products, 2009 (2) MPLJ 329 (344) (DB).
93 Som Parkash v Karam Dass, 2008 (3) Punj LR 700 (710) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 97. Appeal from final
decree where no appeal from preliminary decree
© 2020 LexisNexis
PART VII Appeals
S. 97. Appeal from final decree where no appeal from preliminary decree
Where any party aggrieved by a preliminary decree passed after the commencement
of this Code does not appeal from such decree, he shall be precluded from disputing
its correctness in any appeal which may be preferred from the final decree.
COMMENT.—
It is enacted by this section that the failure to appeal against a preliminary decree is a
bar to raising any objection to it in the appeal against the final decree.94 This section
makes it plainly clear that as regards the matters covered by it, a preliminary decree is
deemed as embodying the final decision of the Court passing that decree.95 The object
of this section would not be achieved if it held that only the factual correctness of the
decree cannot be challenged but its legal validity can be even where an appeal against
the preliminary decree has not been preferred.96 The object of the section is that
questions which have been urged by the parties and decided by the Court at the stage
of the preliminary decree will not be open for re-agitation at the stage of preparation of
the final decree. It would be taken as finally decided, if no appeal has been preferred
against the preliminary decree.97
There is nothing in the Code which prohibits the passing of more than one preliminary
decree if the circumstances justify, particularly in partition suits.98
It has been held by the Patna High Court in Jokhi Ram v Gita Devi, AIR 1978 Pat 2 that
"clause (b) of sub-section (2) of section 97 provides that appeals which have been filed
under O XLIII and which were pending before the commencement of Amendment Act
shall be disposed of as if Amendment had not come into force".99
No appeal against preliminary decree then no appeal against final decree.—
In a suit for partition where preliminary decree has been passed and no appeal filed
therefrom, at the time of passing of the final decree it was not open to the respondent
to raise the contention that he was a tenant of the suit premises. Moreover, the "batai
patra" on the basis of which the tenancy was claimed being executed during pendency
of partition suit was hit by the doctrine of lis pendens. Under this section, where any
party aggrieved by the preliminary decree does not appeal from the said decree, he is
precluded from disputing its correctness in any appeal which may be preferred from
the final decree.100
The first appeal is a valuable right and the parties have a right to be heard both on
questions of law and on facts and the judgment on first appeal must address itself to
all the issues of law and fact and decide it giving reasons in support of the findings.101
Application for amendment of decree, not barred.—
The provision under section 97 of the code lays down for an appeal against preliminary
decree but that would not be a bar to file an application for amendment of a decree.102
Section 97 of the Code of Civil Procedure provides that "where any party aggrieved by a
preliminary decree passed after the commencement of the code does not appeal from
such decree, he shall be precluded from disputing its correctness in any appeal which
may be preferred from the final decree and it does not create any hindrance or
obstruction in the power of the Court to modify, amend or alter the preliminary decree
or pass another preliminary decree if changed circumstances so require".103
Issues which were decided and concluded in preliminary decree cannot be re-agitated
in appeal against final decree.104
94 Kolathungal Kunhiaraman v Appa Kunhi, AIR 1969 Ker 181 ; see also Kaushalya Devi v Baij
Nath, AIR 1961 SC 790 : (1961) 3 SCR 769 .
95 Venkata Reddy v Pethi Reddy, AIR 1963 SC 992 (supra).
96 AIR 1963 SC 992 (supra).
97 Subbanna v Subbanna, AIR 1965 SC 1325 (1332) : (1965) 2 SCR 661 : (1966) 1 MLJ (SC) 67.
98 Phool Chand v Gopal Lal, AIR 1967 SC 1470 (1473) : (1967) SCR 153 : 14 Law Rep 287.
99 AIR 1978 Pat 2 at p 5.
100 Venkatarao Anantdeo Joshi v Malatibai, AIR 2003 SC 267 (269) : (2003) 1 SCC 722 .
101 Madhukar v Sangram, AIR 2001 SC 2171 : (2001) 4 SCC 756 .
102 S Satnam Singh v Surendra Kaur, (2009) 2 SCC 562 (569).
103 Ganduri Koteshwaramma v Chakiri Yanadi, AIR 2012 SC 169 .
104 TRavi v B Chinna Narasimha, (2017) 3 SCC (Civ) 666 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 98. Decision where appeal
heard by two or more judges
© 2020 LexisNexis
PART VII Appeals
S. 98. Decision where appeal heard by two or more judges
(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall
be decided in accordance with the opinion of such Judges or of the majority (if
any) of such Judges.
(2) Where there is no such majority which concurs in a judgment varying or

reversing the decree appealed from, such decree shall be confirmed:
Provided that where the Bench hearing the appeal is 105[composed of two or other
even number of judges belonging to a Court consisting of more Judges than those
constituting the Bench, and the Judges composing the Bench] differ in opinion on a
point of law, they may state the point of law upon which they differ and the appeal
shall then be heard upon that point only by one or more of the other Judges, and such
point shall be decided according to the opinion of the majority (if any) of the Judges
who have heard the appeal, including those who first heard it.
106
[(3) Nothing in this section shall be deemed to alter or otherwise a ffect any
provision of the Letters Patent of any High Court].
COMMENT.—
This section deals with the question as to how a decision is to be arrived at in an

appeal which is heard by a Bench of two or more judges.
The words "consisting of used in section 98(2) shall mean and be relevant only to the
sanctioned strength. Where the sanctioned strength is of three judges and the two
judges differ in opinion and refer the matter for the opinion of the third judge, the
matter should await till the arrival of the third judge. The judgment of the lower Court
should not be confirmed.107
Difference on only part of the decree.—
According to Calcutta, Madras and Allahabad High Court, where the judges agree that a
part of the decree should be reversed but differ as to the rest, then that part as to which
the judges agree should be reversed, and rest of the part of the decree confirmed.108
The Lahore High Court, however, has held that the whole decree should be confirmed in
such cases.109
When there is no majority opinion varying or reversing the decree appealed from on
question of fact, such decree should be confirmed. The language of this section is
imperative and mandatory in terms. The object appears to be that on a question of fact
when there is difference of opinion the views expressed by the Court below, in the
absence of majority opinion, needs to be given primacy and confirmed. The Supreme
Court cannot examine the correctness of the finding of facts and decide which view of
the two is correct.110
Difference on question of law—Proviso to Clause (2).—
Under this proviso, it is discretionary for the members of the Bench hearing the appeal
to state the point of law on which they differ. The word "may" used in this proviso
cannot be read as equivalent to the word "shall". If the Judges do not choose to state
the point of law but proceed to give their judgment differing from each other, the decree
of the lower Court from which the appeal has been filed is to be confirmed.111
By amending the proviso attached to sub-section (2), reference to a third Judge is

permissible only with respect to difference as to points of law.
An appeal arising out of an order passed by the High Court to which section 98(2) of
the Code applied was referred to a larger Bench for consideration and an authoritative
pronouncement.112
Clause (3).—
of the section makes it clear that section 98 applies only to the Courts other than
chartered High Courts, such as Chief Courts or Judicial Commissioner's Courts.
Section 98 of the Code of Civil Procedure is a general provision whereas section 23 of

the Travancore-Cochin High Court Act is special provision, hence, latter would operate
to the exclusion of former in view of conflict between the two.113
105 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 34, for certain
words (w.e.f. 1-2-1977).
106 Ins. by Act 18 of 1928, Section 2 and Sch I.
107 Sikkim Subba Associates v State of Sikkim, AIR 2001 SC 2062 (2067) : (2001) 5 SCC 629 .
108 AIR 1916 Cal 582 ; Rajagopala Naidu v Subbammal, AIR 1928 Mad 180 (DB); Harakh Narain v
Babban, AIR 1933 All 473 (DB).
109 Punjab Akhbarat and Press Co Ltd v CMG Ogilvie, AIR 1926 Lah 65 (DB).
110 Tej Kumar v Kripal Singh, AIR 1995 SC 1681 (1683) : (1995) 5 SCC 119 : (1995) 2 MLJ 81
(SC).
111 Ashlbhuja Singh v Board of Revenue, AIR 1954 All 521 : 1954 All LJ 230.
112 Pankajakshi v Chandrika, (2010) 13 SCC 303 (306); see also Tej Kaur case, (1995) 5 SCC
119 and PVHemlatha case, (2002) 5 SCC 548 .
113 Pankajakshi v Chandrika, AIR 2016 SC 1213 : 2016 (2) SCALE 674 : (2016) 6 SCC 157 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 99. No decree to be
reversed or modified for error or irregularity not affecting merits or jurisdiction
© 2020 LexisNexis
PART VII Appeals
S. 99. No decree to be reversed or modified for error or irregularity not

affecting merits or jurisdiction
No decree shall be reversed or substantially varied, nor shall any case be remanded,
in appeal on account of any misjoinder 114[or non-joinder] of parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting
the merits of the case or the jurisdiction of the Court :.
115[ Provided that nothing in this section shall apply to non-joinder of a necessary
party.]
COMMENT.—
Scope and applicability.—
The provision under this section lays down that a defect which does not affect the
merits of the case or jurisdiction of the Court cannot invalidate the decision.116
Transposition of defendant as co-plaintiff.—
The failure to transpose the defendant as plaintiff by the transferee Court is a

procedural defect. Section 99 would be a bar to interfere with the High Court's decree
on such a ground.117
Effect of wrong description of party.—
There was wrong description of the party. The appellants were added as plaintiffs in
suit for eviction as heirs of their father who died during pendency of suit. The
description of appellants who are owners as heirs instead of owners in their right-such
error in any manner does not affect the merits or the jurisdiction of the Court. Such
irregularity could have been corrected by the Court under O I rule 10 and can be
corrected even at this stage unless the defendant is in any manner prejudiced. Thus,
the District Judge was not justified in reversing the decree of the trial Court on such a
technicality which did not in any manner affect the merits of the case. The High Court
also erred in upholding the orderof the District Judge.118
114 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 35(i), (w.e.f. 1-2-
1977).
115 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976 (w.e.f. 1-2-1977).
116 Virendra Singh v Vimal Kumar, AIR 1976 SC 2169 (2172) : (1977) 1 SCC 718 .
117 Maddanappa v Chandramma, AIR 1965 SC 1812 (1816) : (1965) 3 SCR 283 .
118 Kuldeep Kumar Dubey v Ramesh Chandra Goyal, AIR 2015 SC 1135 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 99A. No order under
Section 47 to be reversed or modified unless decision of the case is prejudicially affected
© 2020 LexisNexis
PART VII Appeals
119[S. 99A. No order under Section 47 to be reversed or modified unless

decision of the case is prejudicially affected
Without prejudice to the generality of the provisions of Section 99, no order under
Section 47 shall be reversed or substantially varied, on account of any error, defect or
irregularity in any proceeding relating to such order, unless such error, defect or
irregularity has prejudicially affected the decision of the case.]
COMMENT.—
Section 99 contains one of the most salutary rules of law in providing that the mere
circumstances of these being an error, defect or irregularity in any proceeding in a suit
it is not a ground for reverting or varying the decree in appeal. In other words, as held
by the Supreme Court of India, a decision which is correct on merits and is within the
jurisdiction of the Court should not be upset merely for technical and immaterial
defects.120 But if it appears that the error, defect or irregularity affected the merits of
the case or the jurisdiction of the Court, it would be a ground for reversing or varying
the decree.
The language of section 99 is unambiguous and it clearly confers discretion upon an

Appellate Court not to reverse or modify a decree for any error or irregularity not
affecting the merits of the case or the jurisdiction. A trial Court cannot assume the role
of an appellate Court and condone material faults in its own procedure with the help of
this section.121
Section 99 has been amended to include non-joinder also. Furthermore, a proviso has
been added to indicate that the non-joinder of a necessary party will not be saved by
this section.
By amendment Act 1976, a new section namely 99-A was added to provide that no
order under section 47 shall be reversed or substantially varied nor shall any case
relating to such order be remanded in appeal on account of any error, defect or
irregularity in any proceeding relating to such order, unless such error, defect or
irregularity has prejudicially affected the decision of the case.
Mis-joinder, non-joinder of parties and causes of action.—
Under this section, the appellate Court cannot dismiss an appeal for mis-joinder of
parties or causes of action, etc. unless it affected the merits of the case or the
(For details see O I, rules 1, 3 and O II rules 3, 4 and 5 of Code of Civil Procedure.).
Section 99 does not state, when, if at all, an objection to an error, misjoinder, etc.,
should be taken. The following provisions of the Code show that an objection to the
irregularities mentioned therein should be taken at the earliest possible opportunity:
An objection as to place of suing must be taken at the earliest possible opportunity and
in all cases where issues are settled, at or before such settlement and
An objection as to non-joinder or misjoinder of parties or misjoinder of cases of action

must be taken at the earliest possible opportunity.
119 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976 (w.e.f. 1-2-1977).
120 Kiran Singh v Chaman Paswan, AIR 1954 SC 340 : (1955) 1 SCR 117 : (1954) 2 MLJ 60 ; see
also Yogeshwar Raj Puri v Yog Raj Puri, AIR 1967 Punj 163 .
121 AS Metal Mart v First National Bank, Ambala, AIR 1954 Pepsu 155.
122 Satwati v Kali Shankar, AIR 1955 All 4 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 100. Second appeal
© 2020 LexisNexis
PART VII Appeals
Appeals from appellate decrees
123[S. 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 only 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 sub-section 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.]
STATE AMENDMENT
Kerala.—In sub-section (1) of section 100, after clause (c), the following new clause (d)
shall be added, namely:—
"(d) the finding of the lower appellate Court on any question of fact material to the right
decision of the case on the merits being in conflict with the finding of the Court of first
instance on such question"—Code of Civil Procedure (Kerala Amendment) Act (13 of
1957) (1-10-1958).
COMMENT.—
The provisions of section 100 are clear and unambiguous. There is no jurisdiction to
entertain a second appeal on the ground of erroneous finding of fact, however, gross
the error may seem to be. Nor does the fact that the finding of the first appellate Court
is based upon some documentary evidence make it any the less a finding of fact. The
scope of exercise of jurisdiction under section 100 is limited to substantial question of
law framed at the time of admission of appeal or to additional substantial questions of
law framed at a later date after recording reasons.124
The disposal of second appeal without formulating substantial question of law is

impermissible. Appeal was remitted back for fresh decision after formulation of
substantial question of law.125
Procedure to be followed under section 100.—
Where the High Court, instead of formulating substantial questions of law, formulated
some questions of law, after conclusion of arguments and allowed appeal, it was held
that High Court's judgment stands vitiated for noncompliance with mandatory
requirements of section 100.126
Adequacy or sufficiency of evidence to support a finding of fact is not a ground of

second appeal.127
Solely because another view is possible on the basis of evidence, the High Court would
not be entitled to exercise the jurisdiction under section 100 of the Code of Civil
Procedure. Any finding which is not supported by evidence or inferences is drawn in a
stretched and unacceptable manner can be said to be perverse.128
Whether a proceeding was collusive, being a question of fact, cannot be considered in

second appeal on which no issue was framed.129
Jurisdiction of Court is confined to substantial question of law only. Re-appreciation or

re-assessment of evidence is not permissible. Finding of fact may be interfered with
where two views are possible.130
When there is no evidence at all on which a finding of fact can be based, it raises a
question of law. An inference from facts would be a question of law when the point for
determination is one of mixed question of law and fact, but not when the point for
determination is one of question of pure fact. Intention is always a question of fact.131
After amendment in section 100 of the Code in 1976, the second appeal can only be
admitted on the substantial question of law involved therein.132
An order admitting a second appeal is neither a final order nor an interlocutory/interim

order. It does not amount to a judgment, decree, determination, sentence or even
"order" in the traditional sense.133
The proviso is applicable only when any substantive question of law has already been
formulated. The expression "on any other substantial question of law" clearly shows
that there must be some substantial question of law already formulated and then only
another substantial question of law which was not formulated earlier can be taken up
by the High Court for reasons to be recorded, if it is of view that the case involves such
question.134
The right of appeal to a particular forum is a substantive right and is not lost by
alteration in the law, unless the provision is made expressly in that behalf or a
necessary implication arises. It is true that by section 100 of Code of Civil Procedure
the power of a High Court in dealing with a second appeal has been restricted. Where
the finding of lower appellate Court as to whether the entries in revenue record were
genuine or fraudulent was in question the High Court had no jurisdiction to set aside
that finding of fact in the second appeal.135
A High Court cannot penalise the defendant by striking out his defence in second
appeal.136
Where a memorandum of appeal was presented in time, but the copy of trial Court's
judgment was filed after expiry of period of limitation, the dismissal of second appeal
on the ground of limitation was not proper.137
The scrutiny of evidence in second appeal is not totally prohibited but this power must
be exercised in very exceptional circumstances and with proper circumspection.138
The roving enquiry in factual arena is not contemplated. Where the Court decided to
look into and reappreciate evidence dispute limited scope under section 100, did not
examine entire evidence both oral and documentary but relied only a portion thereof,
and the finding recorded by the first appellate Court was set aside, the High Court
exceeded its jurisdiction.139
If a fact which was not at all in issue before the trial Court, becomes the core issue and
a High Court decides an appeal thereon, then it shall not only be in violation of the
principle of res judicata but also of justice and fair play.140
Where the trial Court and the first appellate Court have recorded a finding of fact that
the plaintiff had proved on the basis of oral evidence that it had taken 15-16 years for
the accretion to be visible and demonstrable requiring steps to be taken by the State of
Assam—defendant in the case to strengthen matters under Assam Land and Revenue
Regulation (1 of 1986), the High Court cannot upset that finding.141
Where a suit for pre-emption by co-owner is pending in appeal and the Haryana Pre-
emption Amendment Act, 1995 comes into force which takes away co-owner's right of
pre-emption, an appeal being continuation of suit, the co-owner's right lost during the
pendency of appeal, the suit is liable to be dismissed.142
On the disposal of an appeal, interim orders lose efficacy. They can even not be revived.
No order can be passed by a High Court overlooking the position that the appeal has
been disposed of and no further order reviving the interim order was passed during the
pendency of appeal. If any such order is passed, it shall be unsustainable and liable to
be set aside.143
In a second appeal against a decree passed in a suit against Railways for recovery of
excess demurrage charges. The claim was based on Goods Traffic Rules. In pleadings
such rules were not said to be ultra vires to Railways Act, 1890 and no issue was
framed by trial Court on this issue. If a High Court holds such rules to be ultra vires then
it travels beyond pleadings which is illegal.144
Where a memo of appeal was filed in the Registry of a High Court, which raised the
objection that the appeal was time barred, thereafter the advocate added a prayer for
condonation of delay to the same memo without obtaining permission of High Court,
accepting unconditional apology of advocate but dismissing the appeal for interference
with record by the High Court is not proper. A party cannot be made to suffer for fault
of his advocate.145
A High Court cannot set aside the findings of lower Courts merely on the ground that
the circumstances, which had already been considered by the lower Courts, appeared
to suggest some other conclusion from proved facts.146
Mere failure to frame a formal issue by the Court in second appeal would not invalidate
findings of binding judgment between the parties. The observations of Court on issues
not framed would not be outside the scope of second appeal and not without
jurisdiction.147
The High Court neither adverted to questions of law framed at the time of admission
nor recorded finding on them, but proceeded to re-appreciate evidence and in re-
appreciating the same, set aside the findings on facts. The High Court also did not
record conclusions that findings were perverse or formulate other substantial
questions. The interference was unjustified.148
Second appeal against order allowing objections filed against the Commissioner's
report is technically not maintainable in view of O XLIII, rule 1 of the Code.149
The first appellate Court had merely arrived at certain findings which might be relevant
for the purpose of determination of an issue by and between the appellant and the
original plaintiff, but the same were not relevant for the determination of an issue
amongst the defendants inter se. Moreover, no decree against the appellant was
preferred. Hence, second appeal was not maintainable.150
When an appeal has been withdrawn by the person who filed the appeal, it is not open
to some other parties to file an appeal challenging the withdrawal of the first appeal on
the ground that a "compromise" was illegally entered.151
The second appeal over order by District Judge in appeal under section 299 of the
Succession Act, 1925 is maintainable as per provisions of section 100 of the Code.152
The second appeal cannot be entertained in the absence of substantial question of law
involved.153
Special leave petition against an order admitting appeal would not be maintainable as
such an order is not a judgment, decree determination, sentence nor even "order". It
does not decide an issue.154
Where appellants claimed that the suit land vest in the State, the State would be a
necessary party and an appeal would not be maintainable without impleading the
State.155
Liberty to mention the matter.—
When the entire appeal stands disposed of there exists no scope of reopening the
issue on the basis of the liberty granted to mention the matter. A High Court is not
justified in interfering with the judgment and decree of the lower appellate Court in
exercise of its jurisdiction under this section.156
Disposal of second appeal by a High Court without keeping in view limited jurisdiction
conferred on it is not proper.157
If a High Court in a second appeal recorded a finding of fact on the basis of a stray
statement and without recording evidence on the point, then it will be considered as
exceeding the jurisdiction.158
Appellate power of Supreme Court is circumscribed.—
The scope of appellate power of Supreme Court is circumscribed by section 100 of the
Code i.e., to interfere only on substantial question of law which arises from the
judgment of appellate tribunal.159
Appeal to Supreme Court under section 100.—
Under section 55 of the Monopolies and Restrictive Trade Practices Act, 1969 an
appeal lies to Supreme Court on one of the grounds mentioned in section 100 of Code
of Civil Procedure. It is necessary for the counsel to clearly formulate and direct Court's
attention to only question of law.160
The finding of fact by the lower appellate Court that a sale deed executed by two of the
joint owners of the property was sham and nominal. This finding was affirmed by the
High Court. It cannot be interfered with by the Supreme Court.161
The power of a High Court to hear appeal on any other substantial question of law, not
earlier formulated by it, has not been taken away. It is, however, subjected to two
conditions. One, that the High Court feels satisfied that the case involves such question
and, two, the High Court records reason for its satisfaction.162
Appeal and revision distinguished.—
There is an essential difference between an appeal and a revision. The distinction is

based on differences implicit in two expressions. An appeal is a continuation of the
proceedings, in effect the entire proceedings are before the appellate authority. It has
power to review the evidence. But in case of a revision, whatever powers the revisional
authority may or may not have, it has not the power to review the evidence unless the
statute expressly confers on it that power.163
Difference between Appellate Jurisdiction and Revisional Jurisdiction.—
Appellate Jurisdiction confers a right upon the aggrieved person to complain in the
prescribed manner, to a higher forum whereas, supervisory/revisional power has a
different object and purpose altogether as it confers the right and responsibility upon
the higher forum to keep the subordinate tribunals within the limits of the law. It is for
this reason that revisional power can be exercised by the competent authority/Court
suo moto in order to see that subordinate tribunals do not transgress the rules of law
and are kept within the framework of powers conferred upon them. Such revisional
powers have to be exercised sparingly, only as discretion in order to prevent gross
injustice and the same cannot be claimed as a matter of right by any party.164
Infirmity in judgment under appeal.—
The procedure which has to be followed by the High Courts in dealing with such
appeals is well established. If a single judge has passed an order, without giving
reasons for reaching to the conclusions embodied in it, which read more like an award
made by an arbitrator, then it must be corrected. The High Court must be asked to deal
with the matter in a normal way in accordance with the law.165
Single Judge of HC is not a Court subordinate to HC.—
A single judge of High Court being not a Court subordinate to the High Court, the power
of the Division Bench hearing a Letters Patent appeal from his judgment in first appeal
is not limited to question of law under section 100. It has the same power which the
single judge has as a first appellate Court in respect of both questions of fact and
law.166
Appellate Court not to consider media concludendi.—
It is not open to a Court in appeal to consider media concludendi not pleaded by a party
and to give judgment on their basis.167
No prejudice would be caused to the litigants by not providing for intra-Court appeal,
even where the value is large. In such cases the High Court by Rules, can provide that
the Division Bench will hear the regular first appeal. No fault can thus, be found with the
amended provision of section 100A.168
The right of appeal is a substantive right whereas the scope for making revision under
section 115 is not linked with a substantive right.169
Cursorily disposal of appeal be First Appellate Court Improper.—
Where the High Court neither sets out the case of the parties from their pleadings
properly nor mentioned the findings recorded by the trial Court and nor of first appellate
Court. The High Court also did not examine the case in the context of legal provisions
governing the issues and nor dealt with any submissions urged by the parties much
less to record categorical finding in the question framed. Thus, the manner in which the
High Court cursorily decided the appeal, was not proper. In such circumstances the
Apex Court remanded the matter.170
Formulation of substantial question of law is a sine qua non for exercise of jurisdiction
under section 100.171
Substantial question of law, Explained.—
A "substantial question of law" must be debatable. It must not have been settled by law
or binding precedent. It must have a material bearing on the decision of the case. It will,
therefore, depend on the fact and circumstances of each case whether a question of
law is a substantial one and involved in the case or not.172
However, when appeal is dismissed at an admission stage itself then framing of

substantial question of law is not required.173
What is substantial question of law?—
Whether a particular issue is substantial question of law depends on facts and

circumstances of each case. Construction of document of title or document which is
foundation of rights of parties, necessarily raises a question of law. When execution of
law and its construction is subject of consideration, framing of said question of law
cannot be faulted.174
Essentials of question of law.—In a case involving question of law there must be first a
foundation for the question laid in pleadings, secondly, question should emerge from
the sustainable findings of fact arrived at by the Court of facts and it must be
necessary to decide that question of law for a just and proper decision between the
parties.175
A substantial question of law is that question which has to be resolved for deciding the
main issues involved in the suit. A judgment in second appeal which gives bereft of
reference to substantial question of law is to be set aside.176
Substantial question of law-what is?.—In a suit for partition, the question regarding
validity of settlement deed and genuineness of will in question is neither substantial
question of law regarding the validity of these documents framed at the time of
admission of appeal nor later by Court as an additional question of law. Where party
preferred second appeal not challenging validity of these documents, the order of
second Appellate Court setting aside findings recorded by Courts below regarding
validity of these documents was not proper.177
Substantial question of law—What constitutes.—
The "substantial question of law" must be debatable-not previously settled by law of the
land or a binding precedent and answer to the same should have a material bearing on
the rights of parties.178
Test of determination whether a question of law is substantial or not is:
i Whether it is of general importance; or
ii Whether it directly and substantially affects rights of parties and if so, whether it
is either an open question not being finally settled by highest court or is not free
from difficulty or calls for alternative views.179
i Framing of more substantial questions of law.—
Where more substantial questions of law framed at the time of hearing it was held that
the said questions cannot be framed without giving opportunity to parties to lead
evidence.180
Section 100 of the Code of Civil Procedure provides for a second appeal only on the
substantial question of law. As observed by the Supreme Court in SN Goyal, (2008) 8
SCC 92 a substantial question of law does not only refers to question of law of general
importance but refers to impact or effect of the question of law on the decision in the
lis between the parties. There may be a question, which may be "question of fact",
"question of law", "mixed question of fact and law" and "substantial question of law."
Question means anything inquired; an issue to be decided. The "question of fact" is
whether a particular factual situation exists or, not.181
Construction of document is a question of law.—
The construction of a document which is the foundation of rights of parties raises a

question of law. An inference from facts admitted or found is a question of law. If such
an inference is to be drawn on the application of proper principle of law to the facts,
then such determination is a mixed question of fact and law.182
Formulation of substantial question of law.—
Formulation of substantial question of law is mandatory for exercising second appeal

jurisdiction by a High Court.183
High Court is bound to formulate substantial question of law at initial stage itself if it is
satisfied that matter deserves to be admitted and second appeal has then to be heard
and decided on such question. At the time of hearing of second appeal, it is open to
High Court to reformulate a substantial question of law or formulate a fresh question
of law or hold that no substantial question was involved. Setting aside of judgment and
decree of first appellate Court without formulating substantial question of law is
impermissible. Hence matter needs to be remanded to the High Court for consideration
afresh.184
Substantial question of law had been framed but the same was not decided therefore,
the matter was remanded to High Court to decide the same in accordance with law
after giving opportunity of hearing to parties.185
Section 100 of the Code of Civil Procedure casts a mandate on the High Court to first
formulate substantial question of law at the time of admission of the appeal. In other
words, a duty is cast on the High Court to formulate substantial question of law before
hearing the appeal. Judgment passed without formulation of such question is vitiated
in law.186
The second appeal was disposed of by the High Court without formulating any
substantial question of law. The matter was remitted to the High Court with a direction
to formulate substantial question of law, if any, and then deal with the matter.187
The question that was formulated at the time of hearing of the second appeal cannot
be termed as a substantial question of law. Moreover, the substantial question of law
referred to by the High Court in its impugned judgment was not a substantial question
of law that could justify interference of the High Court under section 100. Hence High
Court was directed to frame substantial question of law before hearing.188
The High Court would have jurisdiction only when a substantial question of law is
formulated in the memorandum of appeal.189
The High Court under section 100 of the Code should not ordinarily frame a substantial
question of law, at a subsequent stage, without assigning any reason therefor. Where
the High Court formulates a substantial question of law while dictating the judgment in
open Court the parties should be put to notice and given an opportunity to meet the
same.190
Since forcible dispossession of appellant could not be taken as a substantial question
of law, case was remanded back to the High Court for fresh hearing on new substantial
questions of law to be formulated by the High Court.191
Where substantial question of law is not framed by High Court in second appeal on a
particular point, Supreme Court in further appeal would not formulate such a question
and remit the matter to the High Court.192
When any substantial question of law is formulated by Court, then as a necessary

consequence thereto, parties have to be apprised of said question(s) and thereafter
given an opportunity of hearing to advance arguments on said question(s). The very
purpose of such exercise is to grant opportunity to other side to come prepared to
address on that question of law.193
Substantial question of law should be formulated relying on or on the basis of findings

of fact arrived at by trial Court and first appellate Court.194
The appeal admitted without framing substantial question of law is not improper. The
Appellate Court can formulate question of law as contemplated under section 100 of
the Code at any point of time before hearing of appeal, even without amending grounds
to appeal.195
An order, dismissing second appeal, should indicate, howsoever briefly, why the
questions formulated as substantial questions of law at the earlier stage, were at the
stage of final hearing, found to be no questions of law.196
Setting aside concurrent findings in second appeal without formulating substantial

question of law is not proper.197
Proceeding to hear that appeal without formulating substantial question of law

involved in the appeal is illegal and is an abnegation or abdication of the duty cost on
Court and even after the formulation of a substantial question of law, if a fair and
proper opportunity is not afforded to the opposite side, it will amount to denial of
naturaljustice.198
Interference with perverse findings.—
No embargo on High Court to entertain second appeal on question of fact in

exceptional circumstances where factual findings are found to be perverse.199
Where a second appeal is disposed of without formulating question of law, such order
would be liable to be set aside.200
A dismissal of second appeal as not involving any substantial question of law shall
The existence of substantial question of law is sine qua non for the exercise of
jurisdiction.201
The second appeal was admitted for hearing on two questions of law. The judgment of
High Court, however, was based on some other question which has been framed during
course of writing judgment. No law was discussed by High Court. No reasons were
assigned for taking view different from one concurrently taken by Courts below. The
disposal of the second appeal was not satisfactory.202
Non-consideration of substantial question of law.—Dismissal of second appeal on the
ground that there was no substantial question of law was involved was improper.203
Parameters for constituting substantial question of law.—
The substantial question of law on which a second appeal shall be heard need not
necessarily be a substantial question of law of general importance.
Grounds stipulated for maintainability of second appeal cannot be enlarged. Equity is

not a ground.204
Perversity as substantial question of law.—
Normally in second appeal, the High Court should not interfere on the questions of fact,
but if on the scrutiny of the evidence it is found that the findings recorded by the first
appellate Court is totally perverse then High Court can interfere in the matter as it
constitutes a question of law.205
It was reiterated that no interference to be made by High Court with concurrent findings
of fact recorded by lower courts unless perverse.206
Propriety of framing of substantial question of law.—
The formulation of substantial question of law not arising out of orders of courts below
was held to be improper.207
Instances of substantive question of law.—
A finding of lower Court is perverse or not, this question comes within the ambit of
substantial question of law. Perversity of finding is a substantial question of law.208
Where it is apparent that a substantial question of law was involved in a case which
required a decision from High Court, and the second appeal was summarily dismissed
on the ground that no substantial question of law was involved, the order passed by the
High Court is to be set aside.209
Where the lower Court rejects an evidence on flimsy grounds involving substantial
question of law, a High Court can rightly interfere in the matter.210
The relief granted on incomplete pleadings by courts raises a substantial question of,
211
The date of alleged partition between the plaintiff and the defendant is not a question
of law.212
If the facts proved and found as established are sufficient to make out a case of fraud
within the meaning of section 18, Limitation Act then the objection that the plea under
section 18 was not taken in lower Courts or in the grounds of appeal is not serious. The
question of the applicability of the section will be only a question of law. Such a
question can be raised at any stage of the case and also in the final Court of,
appeal.213
Where an order rejecting a plaint under O VII rule 11 is reversed in appeal by the High
Court, a second appeal would lie under section 100. The ground being that the decision
of the appellate Court on the interpretation of section 7(iv)(c) is a question of law.214
Finding arrived at by considering irrelevant fact or by non-consideration of relevant fact

gives rise to substantial question of law.215
The point as to termination of the tenancy by a valid notice is essentially one of law. It
can be raised in second appeal and decided by the High Court without remanding the
case.216
A Court is under a duty to examine the entire relevant evidence on record. If it refuses
to consider important evidence having direct bearing on the disputed issue and the
error which arises gives birth to a substantial question of law, then the High Court is
fully authorised to set aside the finding.217
Where there is no evidence at all on which a finding of fact can be based, it raises a
question of law.218
Whether the trial Court should not have exercised its jurisdiction differently is not a
question of law, justifying interference by the High Court in second appeal.219
The subsistence of marriage if established by law, is not a substantial question of, 220
The revenue records are not documents of title and the interpretation of a document
not being a document of title is not a question of law. Interference with the finding
based on the interpretation of revenue records by a High Court is illegal.221
The Supreme Court has held in State of Punjab v Shamlal Murari, AIR 1976 SC 1177 :
(1976) 1 SCC 719 (723) : 1976 Lab IC 777 that "Discretionary exercise of power by a
Court cannot be rightly interfered with by a Court of appeal".
Effect of non-framing of question of law.—
Where the substantial question of law was not decided, the judgment and decree
passed by the courts below were set aside and quashed.222
The Court cannot entertain a second appeal unless a substantial question of law is
involved. The existence of a substantial question of law is a condition precedent for
entertaining the second appeal. It is a sine qua non for the exercise of jurisdiction under
section 100 of the Code. Thus, a second appeal is only on a substantial question of law
and it is necessary to formulate a substantial question of law before the second appeal
is decided.223
The very jurisdiction of the High Court in hearing a second appeal is founded on the
formulation of a substantial question of law. The judgment of the High Court is
rendered patently illegal if a second appeal is heard and judgment and decree appealed
against is reversed without formulating substantial question of law.
Second appellate jurisdiction of the High Court under section 100 is not akin to the
appellate jurisdiction under section 96 of the Code of Civil Procedure, it is restricted to
such substantial question or questions of law that may arise from the judgment and
decree appealed against. As a matter of law, a second appeal is entertainable by the
High Court only upon its satisfaction that a substantial question of law is involved in
the matter and its formulation thereof.224
Where High Court dismissed the second appeal without having considered the
questions raised before it and without thereafter formulating or framing the said
questions as substantial question of law by a speaking and reasoned order, the
judgment of High Court was set aside and remitted for decision afresh.225
Order passed is not always liable to be set aside due to non-formulation of substantial
question of law. Prejudice to party is necessary for order to be set aside.226
The High Court's power to hear second appeal on any other substantial question of law
not formulated by it depends upon condition precedents.227
High Court cannot interfere with discretion of lower Courts in second appeal.—
Having regard to conduct of the plaintiff discretionary relief was refused by the lower
Courts as the plaintiff was not entitled to such relief. It was obligatory on his part to
approach the Court within reasonable time for obtaining discretionary relief. The High
Court in second appeal cannot interfere with discretion of lower Courts.228
Where the lower Courts in exercise of their discretion have refused to grant relief
against forfeiture, the High Court in second appeal would be justified in refusing to
interfere with that discretion exercised in a judicial manner.229
Interference when justified.—
High Court's interference in second appeal with findings of fact of first appellate Court
is not justified if findings were arrived at by first appellate Court without ignoring any
evidence, misconstruing any document or acting perversely.230
Interim relief in second appeal.—
Interim order or interim relief can be granted only if second appeal is duly admitted
upon formulation of substantial question(s) of law.231
Finding of fact, not to be interfered with.—
In a paternity dispute of a child born during wedlock the finding reached by appellate
Court on evidence, that plaintiff-husband had no opportunity whatsoever to have liaison
with the defendant-mother, cannot be interfered with in second appeal as no
substantive question of law would have flowed out of such a finding.232
Findings of fact by expert body-interference by Court.—

Ordinarily, the Court should not interfere with order based on opinion of experts on the
subject. It would be safe for Courts to leave the decision to experts who are more
familiar with problems they face than courts generally can be. The courts should not
ignore finding of medical board for the reason that medical board is a specialised
authority composed of expert medical doctors and it is a final authority to give
opinion.233
The finding of fact of first appellate court can be interfered with by the High Court
provided it applies the right tests.234
In second appeal interference with the concurrent findings must be avoided by the High
Court unless warranted by compelling reasons. An appreciation of evidence by High
Court just to replace findings to lower Courts is not proper. Even assuming that another
view is possible on a reappreciation of the same evidence, that should not be done by
the High Court as it cannot be said that the view taken by the first appellate Court was
based on no material.235
While interfering with future facts High Court is required to show as to how those were
erroneous, and which relevant material had been lifted out of consideration and/or
which irrelevant material was taken into consideration. Stating only principles of would
not be proper.236
Where a finding, that out of two sale deeds executed in respect of a property one is
earlier in time, genuine and valid based on oral and documentary evidence, is a
concurrent finding of fact, it cannot be interfered with by reappreciating evidence in the
second appellate Court.237
In a declaratory suit, interference by High Court with questions of fact in second appeal
under section 100 of the Code was held to be impermissible.238
Interference on question of fact without framing substantial question of law is not

permissible.239
In an eviction suit the concurrent finding by the trial Court and first appellate Court was
that the respondents were sub-tenants. It is a finding of fact. No substantial question
of law arose therefrom, which could be gone into second appeal.240 A finding in favour
of certain party as to his being in sole possession of law is a finding of fact. It is not
questionable in second appeal.241
The finding of fact would not be interfered with in second appeal.242
The finding of fact arrived at by the Courts below that no effort has been made by the
plaintiff to pay the sale consideration to the defendant, are binding in second
appeal.243
In a suit for possession of land, where High Court arrived at a conclusion based on the
factual finding of the trial Court which in turn, relied on the oral and documentary
evidence as well as entries in the revenue records, there was no justifiable ground to
interfere with the conclusion of the High Court.244
If the High Court comes to conclusion that the evidence on record recorded by the
courts below are perversed being on no evidence or based on irrelevant material, an
appeal can be entertained and it is permissible for the Court to re-appreciate the
evidence.245
The finding by appellate Court with considering overwhelming evidence on record is to
be set aside.246
The findings of fact recorded by the first appellate Court cannot be scrutinised nor
evidence reappreciated by a High Court. Such finding of fact based on evidence cannot
be interfered with, that too in the absence of any substantial question of law that arises
for consideration between the parties.247
Where any material evidence having a direct impact on the decision on merits was not
ignored by the first appellate Court while arriving at the finding that the plaintiff was not
adopted by Ram Charan, it cannot be interfered with by a Court in the second
appeal.248
In an eviction suit a question whether the landlord requires the premises for personal
use and occupation is a question of fact. Such a finding of first appellate Court cannot
be interfered with by a High Court in second appeal.249
Where material or relevant evidence is not considered, which if considered, would have
led to an opposite conclusion, interference in second appeal is proper. Where a finding
has been arrived at by an appellate Court by placing reliance on inadmissible evidence,
which if it was omitted, an opposite conclusion was possible, a High Court can
interfere in the second appeal.250
The finding that entire property situated in particular survey number did not belong to
the defendant is finding of fact, and the High Court is not expected to interfere with the
same.251
Unless there are compelling reasons the High Court should be slow in reversing the
findings of fact of courts below.252
The correction of improper application of rule as to burden of proof by courts below, is

held to be a proper ground of interference.253
Where a High Court remanded matter and called for further findings after giving
opportunity to all parties, it would not be ground for rejecting findings recorded earlier
by trial Court.254
If a High Court takes upon itself the duty to determine as issue of fact, then its power
to appreciate evidence would be subject to same restraining conditions to which the
power of any Court of fact is ordinarily subject.255
A suit for declaration of title was dismissed by trial Courts. The first appellate Court
decreed the suit on finding that the plaintiff perfected title by adverse possession. The
question of law framed was also whether lower Appellate Court was justified in dealing
with issues other than those framed by trial Court. The second appeal was dismissed
on ground that there was no direct reference to issue of adverse possession. It was not
proper.256
Where in a suit the form of adoption was in dispute, the finding by first appellate Court
that adoption was not in Dwyamnshayayana form, was finding of fact. It could not be
interfered with in second appeal.257
When there is no evidence at all on which a finding of fact can be based, it raises a
question of law. The question as to mala fides of the Government or Government
having misused its powers or having acted in fraud of the statute, is a question of
fact.258
An appellate Court should be slow in disturbing findings reached by the lower Courts, if
they have taken all relevant facts into consideration.259
If a question is depending upon inference to be drawn from facts and surrounding

circumstances, then it is not purely factual. It relates to propriety of legal conclusion
that could be drawn on the basis of proved facts.260
If a High Court called for a finding of fact from trial Court by passing the first appellate
Court, then the High Court should have scrutinised such a finding even in the second
appeal.261
If the lower appellate Court in arriving at its conclusion ignored important evidence on
record, then its conclusion is not binding in second appeal.262
The crux of matter was whether in granting leave under section 92 of the Code
proposed parties had to be heard in matter or not and whether suit should have been
dismissed in limine under O VII, rule 11 of the Code. In circumstances examination of
applicability of section 141 of the Code or otherwise in the matter of this nature, by
High Court, was not necessary.263
A finding as to bona fide requirement of landlord was a finding of fact. A High Court
could not interfere in second appeal and set aside such a finding of fact so long as
there was some evidence to support it and it was not branded as arbitrary,
unreasonable or perverse.264
Whether a person is in a position to dominate the will of another and procure certain
deed by undue influence, is a question of fact. It cannot be reopened in second appeal
if decided in accordance with prescribed procedure.265
The finding whether a person is a trespasser or a tenant is a finding of fact and cannot
be decided in second appeal, unless finding has been given without any basis or by
misreading of evidence.266
Jurisdiction of Appellate Court.—
The issue of res judicata was not raised by parties and the trial Court also had not
framed the issue of res judicata. The appellate Court suo moto invoked the doctrine of
res judicata and applied the principles of res judicata. It was held that the Court has no
jurisdiction to answer the issue of res judicata as the same was not raised by the
parties.267 Where the first appellate Court failed to consider material evidence in shape
of the documents and made a good deal of assumptions of fact, the High Court can
interfere in second appeal.268
The question of jurisdiction of Court cannot be raised for the first time before the
Second Appellate Court particularly in the light of number of years that have passed
and since the question of law was never raised in any of the courts below by the
appellant.269
A question of valuation of property is one of fact and the High Court is not entitled to
go into it in second appeal.270
The question whether the owner of the property is the real owner or benami, is a
question of fact. The said question cannot be raised for the first time in second
appeal.271
The question whether there was separation among the members of the family owning
an impartible Zamindari is primarily a question of fact. If the Courts below have held
that it is not proved, then the finding cannot be disturbed in appeal unless there are
valid grounds.272
In the absence of pleadings and an opportunity to the first defendant to deny

easementary claim the High Court cannot convert a suit for title into a suit for
enforcement of easementary rights in the second appeal.273
In second appeal, the High Court set aside the order of first appellate Court and
confirmed the judgment of the trial Court. It allowed the appeal and reversed the relief
granted by first appellate Court. The order of High Court cannot be sustained.274
Re-appreciation of evidence is not the same as deciding a substantial question of, 275
The High Court should not dismiss the appeal in absence of the appellants or their
counsel. If the counsel for the appellants is not present, it would be appropriate for
High Court to grant an opportunity to the counsel for the appellant to make his
submission by adjourning the matter.276
Foreign Law is a question of fact has to be pleaded and proved.—
It is a settled principle of private international law that foreign law is always a question
of fact which is required to be pleaded and proved by the party whose rights or
obligations flow from such foreign law.277
Concurrent findings of lower Courts, not to be interfered with.—
The question of possession of suit land is essentially one of fact and this finding of
plaintiff's possession concurrently recorded by the Courts below cannot be interfered
with in second appeal.278
A High Court is justified in interfering with a concurrent finding of the lower Courts
which is reached by ignoring evidence on record.279 So also where the finding of the
lower Courts is contrary to evidence on record, the interference by High Court will be
proper.280
If lower Courts do not apply the statutory provisions to the evidence on record in its
proper perspective then the finding regarding bona fide requirement would cease to be
mere finding of fact, for such erroneous finding, illegally arrived at, would vitiate the
entire judgment. In such a case the High Court will be justified in setting aside
concurrent judgment of lower Courts.281
It is a settled principle that scope for interference with the concurrent finding of fact
while exercising jurisdiction under section 100 of the Code of Civil Procedure is very
limited. Further, re-appreciation of evidence is not permissible unless the courts below
had misdirected themselves in appreciating the facts or placed the onus on the wrong
party. The courts below being the final fact-finding courts, it is not within the domain of
this Court to investigate the grounds on which such findings were arrived at.282
In a suit for specific performance of contract there was concurrent finding that the
plaintiff was ready and willing to perform the part of his contract. In second appeal,
defendant's new plea that the vendor had claimed variation in sale consideration was
not allowed.283
In second appeal relief cannot be granted merely on equitable grounds. Even erroneous
concurrent findings cannot be interfered with. If the first appellate Court has assumed
jurisdiction which did not vest in it, the same can be adjudicated in the second appeal,
treating it as a substantial question of law.284
A High Court cannot interfere with the concurrent finding of fact that the property in
question is wakf property in a routine and casual manner.285
The concurrent findings of fact cannot be interfered with, where the trial Court and/or
first Appellate Court misdirected themselves on appreciating question of law and
placed onus on wrong party.286
Where a High Court in second appeal illegally reversed the concurrent findings of fact
and ordered remand, the aggrieved party, in an appeal to the Supreme Court, can
challenge even the first order of the High Court making the remand.287
A High Court cannot entertain second appeal on the ground of an erroneous finding of
fact. If there is some evidence that the appreciation of evidence is erroneous, a second
appeal will not lie. If a High Court does not record contrary finding, then it connotes that
concurrent finding of facts of the Courts below have been, accepted.288
An interference with the concurrent findings of Courts below, under section 100 by High
Court without formulating substantial question of law is not permissible.289
Where both lower Courts concurrently erred in not appreciating oral and documentary
evidence properly, High Court would be at liberty to reappreciate evidence and record
its own conclusion for reversing orders passed by lower Courts.290
A concurrent finding of fact that alienation of Hindu Widow is not a prudent act of
management, cannot be interfered with by the Supreme Court when the view taken by
the lower Courts on evidence was proper.291
The question whether a particular proceeding was collusive or not essentially a

question of fact. Where both the Courts below have answered it in the negative on a
careful consideration of the record, it will not be interfered with in the second appeal
before the Supreme Court.292
A finding that there was partition and separation in the joint family, had a direct impact
on main question to be decided in a case. Such a finding being finding of fact based on
evidence is binding in second appeal.293
The concurrent findings of facts are normally not set aside by the High Courts in
second appeal.294 Whether an appellant or the temple had title to property in suit, was
the question to be determined in a case. The trial Court and appellate Court had
recorded concurrent findings thereon. The High Court on assumption that property
belonged to temple, proceeded to decide second appeal. The decision thereof on the
said assumption was not proper.295
In UOI v Steel Stock Holders Syndicate, (1976) 3 SCC 108 (111) however, it was held that
where on the proved facts, some clear questions of law arise for decision, dismissal of
appeal in limine by the High Court was not justified.
Reappreciation of evidence.—Section 100(1)(c) refers to a substantial error or defect in

the procedure. The error or defect in the procedure to which the clause refers is not an
error or defect in the appreciation of evidence adduced by the parties on the merits.
When the first appellate Court discarded the evidence as inadmissible and the High
Court is satisfied that the evidence was admissible that may introduce an error or
defect in the procedure.296
Where the findings by the Court of facts are vitiated by non-consideration of relevant
evidence or by essentially wrong approach, the High Court is not precluded from
recording proper findings.297
Mere lack of details in pleadings cannot be reason to set aside concurrent finding of
facts. A High Court cannot set aside concurrent finding of facts by reappraisal of
evidence and without framing any substantial question of law. Any submission to show
that evidence of witnesses was unworthy of reliance falls within the realm of
appreciation of evidence and cannot be interfered in second appeal.298
If there is nothing unnatural about the contents of the Will then the fact that testatrix
made the will at the age of fifty cannot be considered as suspicious circumstances
reflecting on genuineness of the will. The finding in second appeal on reappreciation of
evidence that the Will was not genuine and was not proved, is illegal.299
Where a High Court goes to the root of whole case and gives no explanation for non-
examination of witness, draws adverse inference and records conclusion that the
decision of first appellate Court was based on no evidence, it does not amount to
reappreciation of evidence. Decision is not to be set aside.300
In second appeal interference with the concurrent findings of fact is not permissible on
ground that a certain document was inadmissible, where the admissibility of the
document has not been challenged before the lower Courts nor even before High
Court. A High Court is not expected to reappreciate the evidence just to replace the
findings of the lower Courts.301
Where the concurrent finding by trial Court and appellate Court that it was not proved
that predecessors-in-title of respondent were related to mortgagor, it was also found
that mere statement in documents prepared by concerned/interested parties cannot
establish proof of facts stated therein, besides, parties who could establish the
relationship were available but did not step into the witness box, reappreciation of
evidence by High Court in second appeal and arriving at contrary conclusion will not
only be error in law but also on facts.302
It is not open to the parties to demand reappraisal of the evidence by the High Court, on
the ground that the trial Court erred in its view of the evidence.303
If the trial Court and the District Court wholly ignored the weight of preponderating
circumstances on the record and allowed their judgments to be influenced by
inconsequential matters. Then the High Court would be justified in reappreciating the
evidence and in coming to its own conclusions.304
Where eviction was sought on grounds of default in payment of rent and bona fide
need, and the trial Court and appellate Court granted decree on the basis of evidence,
the High Court's interference with the concurrent findings was not justified.305
In the execution of settlement deed, the finding by appellate Court on consideration of

evidence on record was that the executor was physically healthy and of sound
disposing mind at the time of execution of deed. That she had voluntarily executed the
same, with knowledge and purport of documents. Reappreciation of evidence and
reversal of said finding of High Court in second appeal was not proper.306
Reversal of concurrent findings of fact.—The reversal of concurrent findings of fact by
the second appellate Court by recording factually incorrect findings was not proper.307
No assuming of jurisdiction by terming issues as substantive question of law.

—
In a suit for specific performance whether the plaintiff is ready and willing to perform
his part of contract, is not a substantial question of law but pure issue of fact. A High
Court in second appeal on appreciation of evidence cannot take a different view and
assume jurisdiction by terming issue as substantive question of law.308
Mixed question of law and fact.—
The question whether the suit for redemption is in respect of all the plots which had
been mortgaged or only in respect of part thereof is a mixed question of law and fact.
The question was not raised for the first time in High Court. The records of the appeal
also did not show whether this objection was raised at any earlier stage and Courts
below had gone into matter in question. The case was remitted back to High Court for
disposal in accordance with law.309
A question as to non-ancestral nature of property is a mixed question of law and fact.

When there is a concurrent finding on it of three Courts, it cannot be allowed to be
reopened in an appeal before the Supreme Court.310
Whether after the raiyat's purchase of the proprietary interest the raiyati interest
continued to subsist is a mixed question of law and fact. It is open to the High Court in
second appeal to go behind the conclusions of the Courts below.311
No test or set of tests which is or are decisive for all cases can be evolved for
determining whether a person carries on trade at a particular place. The question,
though one of mixed law and fact, must in each case be determined on the
consideration of the nature of trade. The various steps taken for carrying on the trade
and other relevant facts.312
In the determination of a question of pure fact no application of any principle of law is

required but in a mixed question of law and fact an ultimate conclusion has to be
drawn by applying principles of law to basic findings. Where there was no question of
law involved in the second appeal the High Court had erred in disturbing the concurrent
finding of facts.313
A Hindu religious endowment, whether private or public, is a mixed question of law and
fact.314
A plea of mixed question of fact and law if raised for the first time before the Supreme
Court then it will not be allowed.315
In NG Dastane (Dr) v S Dastane, AIR 1975 SC 1534 : (1975) 2 SCC 326 , it was held that
if the High Court takes upon itself the duty to determine an issue of fact, its power to
appreciate evidence would be subject to the same restraining conditions to which the
power of any Court of facts is ordinarily subject. While appreciating evidence,
inferences may and have to be drawn but Courts of facts have to remind themselves of
the line that divides an inference from guess work.
It has been held by the Supreme Court that "On the question whether the time is of the
essence of the contract or not we are satisfied that the High Court was in error in
allowing the respondents to raise this question in the absence of specific pleadings or
issues raised before the trial Court.316
The finding of fact arrived at ignoring bona fide requirement, important and relevant
evidence is bad in law. A High Court is justified in setting aside such a finding in second
appeal.317
Where in an eviction suit, eviction was sought on grounds of subletting and bona fide
need of landlord and the finding, by lower Courts, was given in favour of the landlord,
High Court's interference with the findings was not proper.318
A finding as to perpetration of fraud in consolidation proceedings by lower appellate

Court is a finding of fact. In second appeal a High Court should not interfere with it.319
The appellant who was principal respondent in second appeal before the High Court
pleaded that he was not served notice of appeal. This plea was held sufficient cause
for not appearing at hearing of second appeal. Special leave appeal was allowed and
the second appeal was remanded to the High Court for disposal according to law.320
A finding that there was no evidence that a co-sharer was not given share out of
produce is a finding of fact. It was binding on the second appeal.321
When the finding is one of fact, the fact that it is itself an inference from other basic
facts will not alter its character as one of fact. A question of benami is purely one of
fact.322
In respect of declaration made by the Government as to public purpose for acquisition

of land whether the actions of the Government can be regarded as colourable being
collusive or mala fide, is an instance of finding of fact.323
An appeal was dismissed on the ground of failure of appellant to file vakalatnama in

spite of Court's instruction. It amounted to non-compliance with procedural direction
and involved negligence. The appeal was ordered to be restored and the appellant was
directed to pay costs to respondents.324
A finding given by the lower appellate Court on the point of estoppel was eminently
reasonable. A High Court in second appeal cannot interfere with a finding of fact and
being based on good evidence.325
Where the transaction is fictitious, a second appeal would lie.326 A second appeal shall
also lie where the bona fide of the transaction is involved,327 or where the question
involved is whether the transaction is vitiated by undue influence,328 whether there was
any negligence,329 or whether there was partition or not;330 because all these are
questions of fact.
Error of law.—
Considering merits of matter by High Court after coming to conclusion in second

appeal, that Civil Court had no jurisdiction in the matter, amounts to error of law.331
Reversion of finding of lower Court.—
The reasons given by the trial Court for its finding must be considered by the appellate
Court while reversing the finding of fact.332
A High Court in second appeal discussed documentary evidence, based its findings on
admissible statements of evidences and thereafter, reversed the finding of appellate
Court. The reversal order shall not be illegal.333
Reversal of finding of fact recorded by the trial Court and the appellate Court is not
permissible in second appeal.334
The reversal of a judgment of first appellate Court is not permissible on ground that
that Court had not come to grips with reasoning of the trial Court.335
Where substantial question of law was though formulated yet the parties were not put
on notice, and the judgment of first appellate Court on question of fact was reversed
that too in absence of pleading, issue and supporting evidence, the reversal ofjudgment
was not proper.336
The trial Court gave a finding on the question of possession, but first appellate Court
gave no proper finding on that question. The High Court required the first appellate
Court to give fresh finding on such question. The High Court in doing so cannot be said
to be reversing finding of fact given by the first appellate Court.337
A suit was dismissed by lower Courts on finding that there was earlier partition in joint
family. The deed was unregistered. The taxes were paid separately and khatas were
recorded separately. The High Court set aside dismissal on ground that unregistered
partition deed could not be relied upon. Without setting aside other findings, approach
of the High Court could not be said to be correct.338
Merger, Doctrine of.—
The logic underlying the doctrine of merger is that there cannot be more than one
decree or operative orders governing the same subject-matter at a given point of time.
The doctrine is not of universal or unlimited application. The nature of jurisdiction
exercised by the superior forum and the content or subject matter of challenge laid or
while could have been laid shall have to be kept in view. The superior jurisdiction
should be capable of reversing, modifying or affirming the order put in issue before
it.339
The doctrine of merger is not attracted to order refusing SLP irrespective of being
speaking or non-speaking.340
Non-application of mind.—
Where there was practically no reason indicated as to why the High Court took the view
that the first appellate Court's order was on account of pre-conceived mind, hence the
order of High Court was deserved to be set aside, and the matter was remanded for
fresh disposal on merits.341
First appellate court judgment affirmed.—
In second appeal finding arrived at by first Appellate Court affirming judgment of trial
Court was found by High Court neither very cryptic nor based on non-consideration of
arguments advanced by parties before it. It was in compliance with O XLI and was not
liable to be set aside.342
Relief to non-appellant.—
In a suit for declaration of title decree was passed against the State Government, but
no appeal was made by the State. Decree cannot be interfered with in appeal filed by
sub-defendant-tenants.343
Effect of absence of counsel.—
High Court should not decide the appeal in the absence of appellant's counsel.344
Binding nature of decree.—
Where the Temple Board was a necessary party but was not arrayed as a party to the
suit and decree was obtained against the State, the decree at the most would be
binding only against the State and not against the Board.345
Second appeal, consideration of records.—
It is the duty of the High Court to take into consideration the record particularly the
extract of khatauni and khewat in respect of the suit property, while coming to a finding
of fact or to accept the findings of the first appellate Court.346
Fresh plea not to be allowed.—
A High Court in second appeal cannot permit the appellants to raise the plea of a
deemed tenancy for the first time as it needs investigation based on factual
foundation.347
Plea of limitation.—
Plea of limitation not raised before the lower appellate Court, would amount to waiver
on the part of the appellants. Thus the appellants now cannot raise such plea of
limitation by preferring second appeal.348
A High Court in second appeal cannot give finding on issue which is not pressed in trial
Court. A plea as to novation of contract cannot be raised for the first time in second
appeal.349
Where a suit for possession has been decided by trial and appellate Courts on question
of fact and no question of law or even mixed question of fact and law was raised,
entertaining second appeal on new plea of availability of protection under section 60(b)
of Easement Act is not proper.350
Where a party abandoned a particular plea in the first appellate Court, it cannot be
allowed to reagitate the same in the second appeal.351
A plea as to invalidity of exchange of raiyati holding under section 27 of Santhal

Parganas Settlement Regulation, 1872 was raised at the stage of arguments in second
appeal. The High Court was bound to take notice of it. It was not justified in refusing to
entertain it.352
A point not raised in written statement, cannot be allowed by the High Court to be
raised by the respondent.353
The power of attorney was transferred to the bank to execute the decree by the decree-
holder. The bank filed an application for execution. Subsequently, he objected to the
proceedings being continued, to the bank on the ground that there was no assignment
of decree in favour of the bank. The contentions being legal, the High Court was not
right in brushing them aside on the ground of not taking them in pleadings or not urging
before executing Court.354
A pure question of law not agitated or abandoned in the lower appellate Court can be
allowed to be raised in second appeal. The Court in exercise of its discretion has to
consider whether it should be permitted to be raised.
A new question of fact cannot be entertained at any appellate stage.355
The case of family settlement never set up by the party in the trial Court nor in the High
Court, cannot be allowed to be set up before the Supreme Court for the first time.356 A
party cannot raise a plea which was not raised in the trial Court or first appellate.
In a suit for specific performance of agreement of sale the defendant did not contend
that time was of the essence of the contract. No issue was framed, and parties did not
go to trial on that basis. The High Court erred in allowing the defendant to raise the
plea in appeal.357
Whether or not trees in question are immovable property or could be regarded as

standing timber is a question of fact. Such a question, which is not a pure question of
law, should not be allowed to be raised for the first time at second appellate stage.358
A new plea of limitation which was not purely one of law, but a mixed question of law
and facts should not be allowed to be raised for the first time at the stage of arguments
in the second appeal by the High Court.359
A High Court should not in second appeal make out an entirely new case not pleaded
by a party.360
A point involving mixed question of fact and law was raised before the Supreme Court
for the first time without any grounds. The appellant would not be allowed to raise the
point when he failed to do so in the Courts below.361
An approach of a High Court in second appeal shall be against the law and spirit of
section 100 Code of Civil Procedure where it decides the same on a question which is
taken neither in memorandum of appeal nor in that form before the Courts below.362
Abatement of Appeal.—
Where one of the parties representing one of the branches of claimants dies and other
claimants are already representing his estate, the appeal will not abate.363
Where a joint and inseparable decree is passed against first and second defendant,
matter in first appeal is confirmed and second appeal is filed, the appellant therein
opted not to seek any relief against second defendant, in such situation appeal against
defendant cannot be said to have abated.364
an appeal abates there is no decree under section 2(2) Code of Civil Procedure and a
second appeal against such an order is therefore, incompetent.365
The legal representatives of neither of parties brought on record in second appeal, the
decision in second appeal would be a nullity since it was passed in favour of deceased-
appellant and against a deceased-respondent.366
The substantive question of law must arise between parties for consideration and
disposal of second appeal. An order disposing of second appeal not indicating that
such question arose is liable to be set aside.367
Furthermore, in a case in which the Supreme Court has granted special leave the
question whether an appeal lies or not does not arise.
In State of WB v Fakir Mohd, AIR 1977 Cal 285 . The law is clear that unless the Judge
considers a case fit for an appeal, the litigant cannot as a matter of right or in due
course prefer an appeal. The aforesaid rules already mentioned clearly say that within
the stipulated time the aggrieved party has got to file a memorandum of appeal without
any copy of the judgment complained against before an authorised officer of the High
Court and if a certificate is granted under clause 15 of the Letters Patent by the Judge
concerned then that certificate has got to be endorsed upon memorandum of appeal
In the instant case it was held as follows:
. . . . . . . . . . when no memorandum of appeal is at all filed although a long time has passed
beyond the period of limitation prescribed by the rules before the commencement of
Section 38 of the Amendment Act of 1976, the granting of certificate under Clause 15 of the
Letters Patent is useless and it is barred by Section 100-A of the C.P.C.
Construction of Document.—
The misconstruction of document which is not merely of evidentiary value but one
upon which the claim of party is based, would be an error of law. A High Court in
second appeal is entitled to correct it.368
Where the two lower Courts arrived at a pure finding of fact as to whether a particular
khasara number concerning the house in dispute was included within a Mouza to the
whole of which the Delhi Municipal Act had been plainly extended, the High Court
commits an illegality in interfering with finding of fact.369
A construction of the documents (unless they are documents of title) produced by the
parties to prove a question of fact does not involve an issue of law, unless it can be
shown that the material evidence contained in them was misunderstood by the Court
of fact. The legal inference may, however, still raise a question of law.370
In second appeal decree was reversed by the High Court on erroneous interpretation of
rent note and overlooking certain clear admissions of the plaintiff. The High Court erred
both in law and facts in interfering with judgments of Courts below.371
Disposal of second appeal.—
Where High Court disposed of second appeal in a "slipshed manner without assigning
any independent reason", the Supreme Court in the exercise of its power under Article
142 of the Constitution of India, decreed the suit in terms of relief sought by him.372
Where the High Court while deciding second appeal did not consider the reasons for
rejection of the application under rule 27 of O XLI of the Code by the first appellate
Court, the judgment was set aside and it was directed to decide the appeal afresh on
merits and in accordance with the law alongwith application under O XLI, rule 27 of the
Code and reasons given by the first appellate Court for its rejection.373
Sustainability of mode of disposal.—
The direction made by the High Court, by proceeding on totally untenable premises and
recording findings contrary to materials and findings on record, was held to be
unsustainable.374
Dismissal of appeal.—
The High Court erred in summarily dismissing the appeal at the admission stage,
where prima facie it involved a substantial question of law.375
Appeal from appellate decree cannot be dismissed on merits in the absence of

appellant or his counsel.376
When an application for acceptance of additional evidence under O XLI, rule 27 of the
Code is filed by the appellants, the dismissal of appeal without deciding application for
additional evidence would be improper.377
Finding of fact, can be interfered with.—
The High Court can interfere with findings of facts even in second appeal in exceptional
circumstances.378
If the first appellate Court wrongly discarded the khasara entries on the solitary
statement in certain paragraphs of the plaint, then the High Court could interfere with
the finding in the second appeal.379
It is a well-settled principle of law that a second appeal cannot be entertained on the

ground of erroneous finding of fact, however, gross the error seem to be.380
In a suit for injunction against defendant by three plaintiffs the dispute was regarding
title to land subsisting among plaintiffs. The Court found the first plaintiff in
possession of land. In view of an amendment of plaint in suit this plaintiff was found to
be an agent of the third plaintiff. There was no error of law. The second appellate of
jurisdiction of High Court could not be invoked.381
A finding based on misunderstanding the real point for determination in arriving at a

finding of fact that the suit was not for the benefit of the minor, is an error of law
relating to procedure and evidence. The High Court can interfere with such finding in
second appeal.382
In an eviction suit on ground of default and commission of nuisance by tenant no

specific issue about nuisance was framed. The parties were aware of that issue and
had be evidence. The Court considered pleadings of parties on that issue as also
material brought on record and decided the issue against the tenant. Interference with
this finding by High Court in second appeal only on the ground that no issue was
framed on the point of nuisance, was not proper.383
Decision "contrary to law".—
A decision being "contrary to law" as provided in section 100(1)(a) of Code of Civil

Procedure is not the same thing as a decision being not "according to law" as
prescribed in the section 75(1) First Proviso of Provincial Insolvency Act, 1920. The
latter expression is wider in ambit than the former.384
Patent error in judgment of High Court.—
If the High Court has fallen into grave error by overlooking certain conclusions and in
allowing the second appeal, the second appeal needs to be heard afresh by the High
Court. The matter was therefore remanded to the High Court for a fresh consideration
in accordance with law.385
Decision by Appellate Court when not binding.—
Whether a particular transaction is vitiated on the ground of undue influence is

primarily a decision as a question of fact. But a decision of the first appellate Court
reached after placing the onus wrongly or based on no evidence, or where there has
been substantial error or defect in procedure, producing error or defect in the decision
of the case on merits, is not conclusive. A second appeal lies to the High Court against
that decision.386
Non compliance—Effect.—
Where mandatory requirements of sub-section (4), and (5) of section 100 are violated,
the impugned judgment is liable to be interfered with.387
123 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 37, for Section
100, (w.e.f. 1-2-1977).
124 Govindaraju v Mariamman, AIR 2005 SC 1008 (1011-13).
125 Bokka Subba Rao v Kukkala Balakrishna, (2008) 3 SCC 99 .
126 Biswanath Ghosh v Gobinda Ghosh, AIR 2014 SC 1582 .
127 Ramappa v Bojjappa, AIR 1963 SC 1633 (1637) : (1964) 2 SCR 673 : (1964) 1 Andh LT 1 .
128 Vishwanath Sitaram Agarwal v Sau Sarla Vishwanath Agarwal, AIR 2012 SC 2586 .
129 Jogendra Ram v Phullan Mian, (2011) 15 SCC 247 .
130 Sriram Jain v Manjubai Jain, AIR 2009 Ori 104 . See also PC Thomas v PMIsmail, (2009) 10
SCC 239 .
131 ICI (India) Pvt Ltd v CIT, WB, AIR 1972 SC 1524 (1529) : (1972) 3 SCC 370 : (1972) 82 ITR
710 .
132 Swaroop Devi v Murti BS Narainji, 2008 (2) Raj LW 951 (967). See also Boodireddy
Chandraiah v Arigela Laxmi, AIR 2008 SC 380 .
133 SB Minerals v MSPL Ltd, (2010) 12 SCC 24 (25).
134 Dharam Singh v Karnail Singh, AIR 2009 SC 758 (760).
135 Vishwa Vijai Bharti v Fakhrul Hassan, AIR 1976 SC 1485 (1487) : (1976) 3 SCC 642 .
136 Radha Kishan v Gopal Modi, AIR 1977 SC 1217 (1220) : (1977) 2 SCC 656 : (1977) 2 SCR
984 .
137 Dipo v Wassan Singh, AIR 1983 SC 846 : (1983) 3 SCC 376 .
138 Jai Singh v Shakuntala, AIR 2002 SC 1428 : (2002) 3 SCC 634 .
139 Thiagarajan v Venugopalaswamy B Koil, AIR 2004 SC 1913 (1919).
140 JJ Lal Pvt Ltd v M R Murali, AIR 2002 SC 1061 (1071) : (2002) 3 SCC 98 .
141 Samsuddin Rahman v Bihari Das, AIR 1996 SC 2535 (2537) : (1996) 10 SCC 84 .
142 Ramjilal v Ghisa Ram, AIR 1996 SC 3338 : (1996) 7 SCC 507 .
143 Bimlendu Kumar Chatterjee v Dipa Chatterjee, AIR 2002 SC 2528 .
144 UOI v EID Parry (India) Ltd, AIR 2000 SC 831 .
145 Prakash Seshmal Jain v Sukhmal, AIR 1999 SC 2630 : (1998) 9 SCC 718 .
146 Vidhyadhar v Mankikrao, AIR 1999 SC 1441 (1448) : (1999) 3 SCC 573 .
147 Commissioner of Endowments v Vittal Rao, AIR 2005 SC 454 (465).
148 Govindaraju v Mariamman, AIR 2005 SC 1008 (1013-14).
149 Jagjivan Mulchand Chokshi v Soni D Manilal, AIR 2008 SC 887 .
150 Krishnananda v Kattu Siva Ashram, (2007) 10 SCC 185 (186).
151 Hussainbhai Allarakhabhai Dariyaya v State of Gujarat, (2010) 8 SCC 759 (766).
152 Liladhar K Trivedi v Minaxiben B Trivedi, 2008 (1) Guj LR 75 (78-80) (DB).
153 Parmanan v P Thiagarajan, 2011 AIR CC 941 (944) (Mad); See also Nune Prasad v Nune
Ramakrishna, (2008) 8 SCC 258 (260).
154 SB Minerals v MSPL Ltd, AIR 2010 SC 1137 .
155 Distt Collector, Srikakulam v Bagathi Krishna Rao, AIR 2010 SC 2617 .
156 Shashi Kant Ruta v Indo Minerals, AIR 2000 SC 2745 (2747) : (2000) 6 SCC 604 .
157 Manorama Thampurathe v Sujatha Thampuratti, AIR 2000 SC 3400 .
158 Mahendra Singh v Jagbir Singh, AIR 1994 SC 762 : (1993) 2 SCC 34 .
159 Cellular Operators Assn of India v UOI, AIR 2003 SC 899 (913).
160 Hindustan Lever v MRTPC, AIR 1977 SC 1285 (1292) : (1977) 3 SCC 227 .
161 Arumugha Chettiar v Rahmanbee, AIR 1994 SC 651 : 1995 Supp (4) SCC 5 .
162 Santosh Hazari v Purushottam Tiwari, AIR 2001 SC 965 (967) : (2001) 3 SCC 179 .
163 State of Kerala v KMC Abdullah & Co, AIR 1965 SC 1585 (1587) : (1965) 1 SCR 601 : (1965)
16 STC 875 .
164 State of Gujarat v Gujrat Revenue Tribunal Bar Association, AIR 2013 SC 107 .
165 Balakrishna Iyer v Ariya M Ramaswami, AIR 1965 SC 195 (198) : (1964) 7 SCR 49 .
166 Asha v Dhukhi Sao, AIR 1974 SC 2048 : (1974) 2 SCC 492 : (1975) 1 SCR 611 .
167 Kedar N Motam v Pralad Rai, AIR 1960 SC 213 (216).
168 Salem Advocate Bar Assocn TN v UOI, AIR 2003 SC 189 (193) : (2003) 1 SCC 49 .
169 Shiv Shakti Coop Housing Society, Nagpur v Swaraj Developers, AIR 2003 SC 2434 (2439) :
(2003) 6 SCC 659 : (2003) 2 KLT 503 .
170 Chintaman Namde v Patil v Sukhdev Namdev Patil, AIR 2015 SC 3773 .
171 UOI v Diler Singh, AIR 2016 SC 3131 : 2016 (6) SCALE 206 : 2017 (7) SCJ 84 .
172 Santosh Hazari v Purushottam Tiwari, AIR 2001 SC 965 : (2001) 3 SCC 179 .
173 Hari Narayan Bansal v Dada Dev Mandir Prabhandak Sabha (Barah Gaon) Palam, (2015) 16
SCC 540 : (2015) 17 SCC 658 : 2016 (2) ALL MR 477.
174 MB Ramesh v KM Veeraje, AIR 2013 SC 2088 .
175 Govindaraju v Mariamman, AIR 2005 SC 1008 (1013).
176 KC Mathew v A Sulaikha Beevi, AIR 2000 SC 3408 (3409) : (2000) 9 SCC 276 .
177 MPoosali v A Ammal, AIR 2005 SC 1777 (1781).
178 Govindaraju v Mariamman, AIR 2005 SC 1008 (1013).
179 Syeda Rahimunnisa v Malan Bi, AIR 2016 SC 4653 : 2016 (119) ALR 485 : 2016 (9) SCALE
473 .
180 Jogendra Ram v Phullan Mian, (2011) 15 SCC 247 .
181 UOI v Ibrahim Uddin, (2012) 8 SCC 148 .
182 Pankaj Bhargava v Mohinder Nath, AIR 1991 SC 1233 (1236) : (1991) 1 SCC 556 .
183 K Raj v Muthamma, AIR 2001 SC 1720 : (2001) 6 SCC 279 .
184 Hardeep Kaur v Malkiat Kaur, (2012) 4 SCC 344 .
185 Satyendra Kumar v Masta Ram Uniyal, (2013) 14 SCC 367 .
187 Mahavir v Lakshmi, (2007) 9 SCC 208 (211).
188 Ciddagunta S Reddy v Namakari MReddy, (2007) 11 SCC 401 (402).
189 Dharmarajan v Valliammal, (2008) 2 SCC 741 .
190 UR Virupakshaiah v Sarvamma, AIR 2009 SC 1481 (1484) : (2009) 2 SCC 177 ; See also
Kausalyabai Akkabai v Harishchandra M Gupta, (2009) 5 SCC 129 .
191 Mahant RK Das v State of MP, (2008) 11 SCC 613 .
192 Bant Singh v Niranjan Singh, (2008) 4 SCC 75 .
193 Amar Singh v Dalip Singh, (2012) 13 SCC 405 .
194 Abdul Raheem v Karnataka Electricity Board, AIR 2008 SC 956 .
195 Malkait Kaur v Hardev Singh, AIR 2011 P&H 93 (96); Dayal Singh v Om Prakash, (2010) (4)
160 PLR 1, relied on.
196 Kichha Sugar Co Ltd v V Roofrite (P) Ltd, (2009) 16 SCC 280 (281).
197 Punjab State Civil Supplies Corpn Ltd v Sikander Singh, AIR 2006 SC 1438 (1444).
198 Kshitish Chandra Purkait v Santosh Kr Purkait, AIR 1997 SC 2517 (2521).
199 Rajasthan SRTC v Bajrang Lal, (2014) 4 SCC 693 .
200 Madan Lal v Ram Krishna, AIR 2006 SC 645 .
201 Govindaraju v Mariamman, AIR 2005 SC 1008 (1011, 1013).
202 Mahadev v Tana Bai, AIR 2004 SC 3854 .
203 State of Punjab v Mohinder Singh, AIR 2005 SC 1868 (1870-1872 ).
204 Kashmir Singh v Harnam Singh, AIR 2008 SC 1749 .
205 Maria Colaco v Alba FHD 'Souza, (2008) 5 SCC 268 (271).
206 Keshar Bai v Chhunulal, AIR 2014 SC 1394 .
207 Bakhtiyar Hussain v Hafiz Khan, (2007) 12 SCC 420 (421-23).
208 Kulwant Kaur v Gurdial Singh Mann, AIR 2001 SC 1273 (1281-83) : (2001) 4 SCC 262 .
209 Damjibhai Bijibhai Vasava v Ranchhodbhai Zinabhai, AIR 2000 SC 1000 (1002).
210 Major Singh v Rattan Singh, AIR 1997 SC 1906 : (1997) 3 SCC 546 .
211 Ganapati Madhav Sawant v Dattur Madhav Sawant, (2008) 3 SCC 183 .
212 Kartick Ch Mandal v Netai Mandal, (2009) 107 Cut LT 82 (SC).
213 Yeshwant v Walchand, AIR 1951 SC 16 (20); Connecticut Fire Insurance Co v Kavanagh,
(1982) AC 473 relied on.
214 Shamsher Singh v Rajinder Prasad, AIR 1973 SC 2384 (2386) : (1973) 2 SCC 524 : (1974) 1
SCR 322 .
215 Abdul Raheem v Karnataka Electricity Board, AIR 2008 SC 956 (DB).
216 JC Chatterjee v SKTandon, AIR 1972 SC 2526 : (1972) 2 SCC 461 : (1973) 1 SCR 850 .
217 Dilbagrai Punjabi v Sharad Chandra, AIR 1988 SC 1858 : 1988 Supp SCC 710 .
218 Gurbaksh v Nikka Singh, AIR 1963 SC 1917 .
219 Reserve Bank of India v RG Morey, AIR 1976 SC 830 : (1976) 1 SCC 803 : 1976 Lab IC 575 .
220 Bharatha Matha v R Vijya Renganathan, (2010) 11 SCC 483 (489).
221 Corporation of Bangalore City v M Papaiah, AIR 1989 SC 1809 : (1989) 3 SCC 612 .
222 R Mahalakshmi v AV Anantharaman, (2009) 9 SCC 52 (59); See also State of Gujarat v
Babubhai U Sarvaiya, AIR 2011 Guj 77 (81); Utkal Road Lines v Registrar Income Tax, (2009) 107
Cut LT 699 (702-03) (DB) : 2009(2) ILR-CUT 415; Chandrakant SMachale v Parubai BMohite,
(2008) 6 SCC 745 (749) : 2008 (4) SCALE 197 : 2008 (3) KLT 744 (SC); V Ramaswamy v
Ramachandran, (2009) 14 SCC 216 (218) : 2010 (3) ALT 4 (SC) : JT 2009 (7) SC 30 ; See also
Tarachand v Municipality Gharaunda, (2009) 13 SCC 412 : [2009] 7 SCR 794 : JT 2009 (5) SC 539
; Kamla v Gaurav Kr Gupta, (2009) 13 SCC 253 .
223 Municipal Committee Hoshiarpur v Punjab SEB, (2010) 13 SCC 216 (225, 229).
224 Umerkhan v Bismillabi alias Babulal Shaikh, AIR 2012 SC 1646 .
225 J & K Bank Ltd v Neelam Rani, (2008) 11 SCC 630 .
226 Kannan v VS Pandurangam, AIR 2008 SC 951 .
227 Mahant Dooj Das v Udasin Panchayati Bara Akhara, (2008) 12 SCC 181 .
228 Manjunath Anandappa v Tammanasa, AIR 2003 SC 1391 (1397) : (2003) 10 SCC 390 .
229 Namdeo Lokman v Narmadabai, AIR 1953 SC 228 (234) : 1953 SCR 1009 : 55 Bom LR 517.
230 SC Jindal v UHBVNL, AIR 2011 SC Supp 516.
231 Swamy Mutt v Utaradi Mutt, AIR 2016 SC 1589 : 2017 (1) AJR 691 : 2016 (3) SCALE 514 .
232 Kamti Devi v Poshi Ram, AIR 2001 SC 2226 (2229) : (2001) 5 SCC 311 .
233 UOI v Talwinder Singh, AIR 2012 SC 2725 .
234 Bant Singh v Niranjan Singh, (2008) 4 SCC 75 .
235 Navaneethammal v Arjuna Chetti, AIR 1996 SC 3521 (3525) : (1996) 6 SCC 166 .
236 Phool Pata v Vishwanath Singh, AIR 2005 SC 3079 (3081).
237 Ramanuja Naidu v Kanniah Naidu, AIR 1996 SC 3021 (3024).
238 Mahaboob v Maktumsab, (2008) 11 SCC 586 (589-90).
239 Basayya I Mathadv Rudrayya S Mathad, (2008) 3 SCC 120 .
240 Kehar Singh v Yash Pal, AIR 1990 SC 2212 .
241 Ramaswamy Kalingaryar v Mathayan Padayachi, AIR 1992 SC 115 : 1992 Supp (1) SCC 712 :
(1992) 1 MLJ 19 (SC).
242 C Barla v B Naik, AIR 2005 SC 1020 (1022).
243 Bisimillah Begum v Rahmattulah Khan, AIR 1998 SC 970 : (1998) 2 SCC 226 .
244 Bhagat v Sher Singh, (2008) 5 SCC 447 (448).
245 Dinesh Kumar v Yusuf Ali, AIR 2010 SC 2679 ; See also Bharatha Matha v Vijaya
Ranganathan, AIR 2010 SC 2685 ; SR Srinivasa v SPadmavathamma, (2010) 5 SCC 274 (existence
of suspicious circumstance); Mohd Laiquiddin v Kamla Devi Misra, (2010) 2 SCC 407 (a question
of law, not raised earlier before the courts below, cannot be permitted for the first time before
the HC); Narendra Gopal Vidyarthi v Rajat Vidyarthi, (2009) 3 SCC 287 .
246 Updesh Singh v Prithvi Singh, AIR 2001 SC 724 (706).
247 Hamida v Khalil, AIR 2001 SC 2282 : (2001) 5 SCC 30 .
248 Ram Das v Gaudia Bai, AIR 1997 SC 1563 (1567).
249 Labanya Neogi v WB Engineering Co, AIR 1999 SC 3331 (3332) : (1999) 7 SCC 431 .
250 Ishwar Dass Jain v Sohan Lal, AIR 2000 SC 426 (429).
251 Dillibabu v VSuryanarayanan, 2011 AIR CC 1417 (1419) (Mad).
252 S Appadurai Nadar v A Chokalinga Nadar, (2007) 12 SCC 774 (776).
253 Makhan Singh v Kulwant Singh, (2007) 10 SCC 602 .
254 Subramania Reddi v Venkatasubba Reddi, AIR 1999 SC 1116 (1119) : (1999) 3 SCC 240 .
255 NGDastane v SDastane, AIR 1975 SC 1534 (1539) : (1975) 2 SCC 326 .
256 Vishwanath Achari v Kanakasabepathy, AIR 2005 SC 3109 ; see also Deen Dayal v Ram Dutta
Punitha, 2005 AIHC 2565 .
257 Rajgopal v Kishan Gopal, AIR 2003 SC 4319 (4325).
258 Ganga Vishnu v Calcutta Puijrapole Society, AIR 1968 SC 615 (617) : (1968) 2 SCR 117 .
259 CK Subramania Iyer v TK Nair, AIR 1970 SC 376 (380) : (1969) 3 SCC 64 .
260 Orient Distributors v Bank of India Ltd, AIR 1979 SC 867 : (1979) 4 SCC 385 .
261 Nasirul Haque v Jitendra Nath Dey, AIR 1984 SC 1799 : (1984) 4 SCC 498 .
262 Sonawati v Sri Ram, AIR 1968 SC 466 (470).
263 BS Adityan v B Ramachandran Adityan, AIR 2004 SC 3448 (3452).
264 Mattulal v Radhey Lal, AIR 1974 SC 1596 (1603).
265 Afsar Shaikh v Soleman Bibi, AIR 1976 SC 163 (168) : (1976) 2 SCC 142 : (1976) 2 SCR 327 ;
see also Satgur Pd v Har Narain Das, AIR 1932 PC 89 .
266 Kishori Lal Sundriyal v Ram Kishan Mission, AIR 2013 Utr 100 .
267 Kalawati Kotla v Shokilal, AIR 2013 Chh 12 .
268 Radha Nath v Haripada, AIR 1971 SC 1049 .
269 Lahu v Kailash Matasaran Gupta, AIR 2014 Bom 143 .
270 PL Bapuswami v N Pattay Gounder, AIR 1966 SC 902 (904) : (1966) 2 SCR 918 : (1967) 2
MLJ (SC) 8.
271 Narinder Singh Rao v AVMMahinder Singh Rao, AIR 2013 SC 1470 .
272 Chinnathayi v Kulasekara, AIR 1952 SC 29 (37) : 1952 SCR 241 : 65 MLW 1167.
273 Bachhaj Nahar v Nilima Mandal, AIR 2009 SC 1103 (1108).
274 Nathuni Ram v Raghupat Ram, (2007) 12 SCC 438 (439-40).
275 Dharmarajan v Valliammal, (2008) 2 SCC 741 .
276 Secretary, Deptt of Horticulture, Chandigarh v Raghu Raj, AIR 2009 SC 514 (519).
277 Transport Corporation of India Ltd v Polytex Ltd, AIR 2015 SC 826 .
278 Mohan Lal v Nihal Singh, AIR 2001 SC 2942 : (2001) 8 SCC 584 .
279 Vishnu Prakash v Sheela Devi, AIR 2001 SC 1862 (1865).
280 Saraswathi v S Ganpathy, AIR 2001 SC 1844 (1847) : (2001) 4 SCC 694 .
281 Deena Nath v Pooran Lal, AIR 2001 SC 2655 (2658) : (2001) 5 SCC 705 .
282 Deenamma v Lizia, AIR 2015 Mad 83 .
283 V Pechimuthu v Gowrammal, AIR 2001 SC 2446 (2451, 2452) : (2001) 7 SCC 617 .
284 Kondiba Dagadu Kadam v Savitribai Sopan Gujar, AIR 1999 SC 2213 (2215).
285 Karnataka Board of Wakf v Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 (3069) :
(1999) 6 SCC 343 .
286 Krishna Mohan Kaul v Pratima Malty, AIR 2003 SC 4351 (4353).
287 Kshitish Chandra Bose v Commissioner of Ranchi, AIR 1981 SC 707 (709, 710, 711) : (1981)
2 SCC 103 : (1981) 2 SCR 764 .
288 Thimmaiah v Ningamma, AIR 2000 SC 3529 : (2000) 7 SCC 409 .
289 Bashir Ahmad v Abdul Rahman, AIR 2004 SC 3284 .
290 Ramlal v Phagua, AIR 2006 SC 623 (626).
291 Kalishanker Das v Dhirendra Nath, AIR 1954 SC 505 (508) : (1955) 1 SCR 467 .
292 Nagubai v Shamarao, AIR 1956 SC 593 (598, 600) : 1956 SCR 451 : 1956 Mys 152.
293 Kharbuja Kuer v Jang B Rai, AIR 1963 SC 1203 (1207).
294 Pandurang Jivaji Apte v Ramchandra Gangadhar Ashtekar, AIR 1981 SC 2235 (2238) : (1981)
4 SCC 569 .
295 RVE Venkatachala Gounder v Arulimigu V & VP Temple, AIR 2003 SC 4548 (4553) : (2003) 8
SCC 752 .
296 Hira Lal v Gajjan, AIR 1990 SC 723 (725) : (1990) 3 SCC 285 ; Madan Lal v Gopi, AIR 1980 SC
1754 relied on.
297 Jagdish Singh v Natthu Singh, AIR 1992 SC 1604 (1606) : (1992) 1 SCC 647 .
298 Hari Singh v Kanhaiya Lal, AIR 1999 SC 3325 (3330) : (1999) 7 SCC 288 .
299 VS Mane v RV Ganeshkar, AIR 1995 SC 2086 (2088) : (1995) 5 SCC 215 .
300 Rajappa Hanamantha Ranoji v Mahadev Channabasappa, AIR 2000 SC 2108 : (2000) 6 SCC
120 .
301 State of HP v Akshara Nand, AIR 2000 SC 1828 .
302 Dilboo v Dhanraji, AIR 2000 SC 3146 (3149, 3150) : (2000) 7 SCC 702 .
303 Chunilal Vithaldas v MM Patel, AIR 1967 SC 226 (228) : 1966 Supp SCR 180 : 69 Bom LR 26.
304 Madan Lal v Gopi, AIR 1980 SC 1754 : (1980) 4 SCC 255 .
305 Jahejo Devi v Moharam Ali, AIR 1988 SC 411 : (1988) 1 SCC 372 : 1988 BLJR 33 .
306 M Rangasamy v Renganwal, AIR 2003 SC 3120 (3123) : (2003) 7 SCC 683 .
307 MPoosali v A Ammal, AIR 2005 SC 1777 (1781).
308 Veerayee Ammal v Seeni Ammal, AIR 2001 SC 2920 : (2002) 1 SCC 134 .
309 Gurucharan Koeri v Bibi Shamsunnisa, AIR 1994 SC 663 : (1993) 4 SCC 68 .
310 Gopal Singh v Ujagar Singh, AIR 1954 SC 579 : (1955) 1 SCR 86 .
311 Jyotish Thakur v Tarakant Thakur, AIR 1963 SC 605 (610) : 1963 Supp (1) SCR 13 .
312 State of Punjab v Bajaj Electricals, AIR 1968 SC 739 (741) : (1968) 2 SCR 536 : 70 ITR 730.
313 Krishnawati v Hansraj, AIR 1974 SC 280 (284) : (1974) 1 SCC 289 : (1974) 2 SCR 524 ; see
also Meenakshi Mills v CIT, AIR 1957 SC 49 : 1956 SCR 691 .
314 Deokinandan v Murlidhar, AIR 1957 SC 133 (136) : (1956) SCR 756 .
315 TVV Narsimhan v State of Orissa, AIR 1963 SC 1227 (1233).
316 AIR 1975 SC 1005 : (1975) 3 SCC 30 : 1975 (1) SCR 483 Supra.
317 Damadilal v Parashram, AIR 1976 SC 2229 (2236) : (1976) 4 SCC 855 .
318 Bhairab Chandra Nandan v Randhir Chandra Dutta, AIR 1988 SC 396 (398) : (1988) 1 SCC
383 .
319 Karbalai Begum v Mohd Sayeed, AIR 1981 SC 77 (79) : (1980) 4 SCC 396 : 1980 ALJ 902 :
1980 RD 300.
320 Sourindra Mohan Hazra v State of WB, AIR 1982 SC 1193 : (1982) 2 SCC 360 .
321 Karbalai Begum v Mohd Sayeed, AIR 1981 SC 77 (79) : (1980) 4 SCC 396 : 1980 ALJ 902 :
1980 RD 300.
322 Shree Meenakshi Mills v ITC, Madras, AIR 1957 SC 49 ; Gangadara Ayyar v Subramania, AIR
1949 FC 88 ; Misrilal Nayak v Surji, AIR 1950 PC 28 relied on.
323 Valjibhai v State of Bombay, AIR 1963 SC 1890 (1892) : (1964) 3 SCR 686 .
324 Bihar State Electricity Board v Bhowra Kankanee, AIR 1982 SC 60 : 1984 Supp SCC 597 .
325 KC Kapoor v Radhika Devi, AIR 1981 SC 2128 (2134) : (1981) 4 SCC 487 .
326 Parasnath v Mohani, AIR 1959 SC 1204 : (1960) 1 SCR 271 : (1961) 1 MLJ (SC) 31.
327 Ganga Bishnu v Calcutta Pinjrapole Society, AIR 1968 SC 615 : (1968) 2 SCR 117 .
328 Laxmian v Chikkamma, (1969) 1 Mys LJ 307 .
329 Kumaran v Vallab Das, AIR 1969 Ker 9 .
330 Kharbujakuer v Jang Bahadur, AIR 1963 SC 1203 : (1963) 1 SCR 456 : 1963 BLJR 892 .
331 Madho Singh v Moni Singh, AIR 2004 SC 4316 (4318).
332 SVR Mudaliar v Rajabu F Buhari, AIR 1995 SC 1607 (1610).
333 Yadarao Dajiba Shrawane v Nanilal Harakchand Shah, AIR 2002 SC 2849 (2857) : (2002) 6
SCC 404 .
334 Parsini v Atma Ram, AIR 1996 SC 1558 : (1996) 8 SCC 321 .
335 Arumugham v Sundarambal, AIR 1999 SC 2216 (2219) : (1999) 4 SCC 350 .
336 SMMKK Thangal v BJP Dharas Committee, AIR 2004 SC 4365 (4367).
337 Uppalapati VV Satyanarayanaraju v J Hanuuayamma, AIR 1967 SC 174 : (1962) 3 SCR 910 :
(1962) 1 An LT 81.
338 KG Shivalingappa v GS Eswarappa, AIR 2004 SC 4130 (4132).
339 Kunhayammed v State of Kerala, AIR 2000 SC 2587 (2592, 2593) : (2000) 6 SCC 359 : (2000)
245 ITR 360 .
340 Kunhayammed v State of Kerala, AIR 2000 SC 2587 (2600, 2601) : (2000) 6 SCC 359 : (2000)
245 ITR 360 .
341 Janardhan NNayak v Balwant V Kulkarni, (2007) 9 SCC 658 (660).
342 Nopany Investments (P) Ltd v Santosh Singh (HUF), AIR 2008 SC 673 .
343 Chokalingaswami Idal v Gnanapragasam, AIR 2008 SC 2025 .
344 Dept of Horticulture v Raghu Raj, (2008) 13 SCC 395 (400).
345 Payappar Shree Dharmasastha Temple Advisory Board v AK Joseph, (2009) 14 SCC 628
(635).
346 Dubaria v Har Prasad, (2009) 9 SCC 346 .
347 Pathan Murtazakhan Dadamkhan v Pathan Pirkhan Amdumiyan, AIR 1993 SC 1750 : 1993
Supp (2) SCC 518 : (1993) 22 ALR 96 .
348 Dharam Rice and Oil Mills v Punjab State Civil Supplies Corporation Ltd, AIR 2014 P & H 44.
349 Babu Ram v Indra Pal Singh, AIR 1998 SC 3021 (3027) : (1998) 6 SCC 358 .
350 Panchugopal Barua v Umesh Chandra Goswami, AIR 1997 SC 1041 (1044, 1046) : (1997) 4
SCC 713 .
351 Mahesh Chand Sharma v Raj Kumari Sharma, AIR 1996 SC 869 (881).
352 Ram Kristo v Dhankristo Mandal, AIR 1969 SC 204 (207).
353 CMackertich v Steuart & Co, AIR 1970 SC 839 (841) : (1971) 3 SCC 39 .
354 Seth Loonkaran v Ivan E John, AIR 1969 SC 73 (75) : (1969) 1 SCR 122 : 38 Com Cas 760.
355 Bhagat Singh v Jaswant Singh, AIR 1966 SC 1861 (1863) : (1961) 1 Ker LR 539; Siddik
Mahomed Shah v Saran, AIR 1930 PC 57 ; relied on; see also Motabhoy Mulla v Muljibhoy, AIR
1915 PC 2 .
356 Maddanappa v Chandramma, AIR 1965 SC 1812 (1816) : (1965) 3 SCR 283 .
357 Govind Prasad v Hari Dutt, AIR 1977 SC 1005 (1008).
358 State of Gujarat v Vora Solebhai Gulamali, AIR 1977 SC 1815 : (1977) 3 SCC 225 .
359 Banarsi Das v Kanshi Ram, AIR 1963 SC 1165 (1170) : (1964) 1 SCR 316 .
360 Raruha Singh v Achal Singh, AIR 1961 SC 1097 (1099).
361 Pearey Lal v Rameshwar Das, AIR 1963 SC 1703 (1706) : 1963 Supp (2) SCR 834 .
362 Ram Khilona v Sardar, AIR 2002 SC 2548 : (2002) 6 SCC 375 .
363 Ram Bhajan Singh v Madheshwar Singh, AIR 1995 SC 1685 : 1995 Supp (2) SCC 757 .
364 Bhola Nath Misra v Rajendra Pandey, AIR 1997 SC 1281 : (1997) 9 SCC 276 .
365 Madan Naik v Hansubala, AIR 1983 SC 676 (679).
366 Kishnu v Bihari, AIR 2005 SC 3799 (3800-01).
367 Balla Ram v Phoola, AIR 2003 SC 2080 : (2003) 1 SCC 378 .
368 Bhusawal Borough Municipality v AmalgamatedE Co, AIR 1966 SC 1652 (1654) : (1969) 5
SCR 905 : (1964) 2 An LT 262 : (1964) 1 Ker LT 237 .
369 Jangbir v Mahavir Pd Gupta, AIR 1977 SC 27 : (1976) 4 SCC 682 : (1977) 1 SCR 670 .
370 Kameshwaramma v Subba Rao, AIR 1963 SC 884 (887) : (1963) 2 SCR 208 : (1963) 2 MLJ
(SC) 49.
371 Bholaram v Ameerchand, AIR 1981 SC 1209 (1212) : (1981) 2 SCC 414 .
372 Man Singh v State of Haryana, (2008) 12 SCC 331 (334, 336, 338).
373 Muzaffar Ali v Dasaram, (2009) 2 SCC 654 .
374 Ramakrishna Rao v Rai Murari, (2008) 3 SCC 175 .
375 Zamindar D & SNyas v Siddhanath, (2007) 9 SCC 9 (14).
376 Dept of Horticulture v Raghu Raj, (2008) 13 SCC 395 (405).
377 Jatinder Singh v Mehar Singh, AIR 2009 SC 354 .
378 DR Rathna Murthy v Ramappa, (2011) 1 SCC 158 (168).
379 Shikharchand Jain v DJP Karini Sabha, AIR 1974 SC 1178 (1180) : (1974) 1 SCC 675 : (1974)
3 SCR 101 .
380 State of UP v Ram Chandra, AIR 1976 SC 2547 : (1976) 4 SCC 52 : 1976 SCC (L&S) 542 :
1976 Lab IC 1647 .
381 Kishanlal Biharilal v Ramarao, AIR 1981 SC 1183 (1185) : (1981) 3 SCC 20 .
382 Kakumanu v Kakamanu, AIR 1958 SC 1042 (1045) : 1959 SCR 1249 .
383 Sayeda Akhtar v Abdul Ahad, AIR 2003 SC 2985 (2987) : (2003) 7 SCC 52 .
384 Malini Naicker v Seth Manghraj, AIR 1969 SC 1344 : (1969) 1 SCC 688 .
385 Bhagwan Swarup Nagar v Ramhishan, (2009) 2 SCC 219 (221). See also Jaganath
KYMerchant v Raj Kumar, (2008) 2 SCC 299 .
386 Ladli Prasad v Karnal Distillery, AIR 1963 SC 1279 (1288); see also Satgur Pd v Har Narain
Das, AIR 1932 PC 89 ; Durga Chaudharain v JS Chaudhari, 17 IA 122.
387 Commr Hindu Religious & Charitable Endowment v P Shanmugama, AIR 2005 SC 770 (771).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 100A. No further appeal in
certain cases
© 2020 LexisNexis
PART VII Appeals
388[S. 100A. No further appeal in certain cases
Notwithstanding anything contained in any Letters Patent for any High Court or in any
instrument having the force of law or in any other law for the time being in force, where
any appeal from an original or appellate decree or order is heard and decided, by a
Single Judge of a High Court, no further appeal shall lie from the judgment and decree
of such Single Judge.]
COMMENT.—
Code of Civil Procedure (Amendment) Act 2002 (22 of 2002) (w.e.f. 1-7-2002).
—
The present section has been substituted for the substituted section 100A, by the Code
of Civil Procedure (Amendment) Act, 2002 (22 of 2002).
As a result of the 2002 Act, appeals to division Bench of the High Courts in writs under
Articles 226 and 227 of the Constitution have been restored. Section 10 of the Code of
Civil Procedure (Amendment) Act, 1999 abolished appeals against judgments of a
single Judge of the High Court in all cases. (See Statement of Objects and Reasons to
the Bill). The net result of the 1999 Amendment and 2002 Amendment is that where
any appeal from an original or appellate decree or order is heard and decided by a single
Judge of a High Court, no further, appeal shall lie from the judgment and decree of
such single Judge; appeals to Division Bench of the High Court in such cases has been
abolished. The old section 100A ran thus:-
Section 100A. No further appeal in certain cases.—Notwithstanding anything contained in

any Letters Patent for any High Court or in any other instrument having the force of law or in
any other law for the time being in force, where any appeal from an appellate decree or
order is heard and decided by a single Judge of a High Court, no further appeal shall lie
from the judgment, decision or order of such single Judge in such appeal or from any
decree passed in such appeal.
Effective date.—The amendments of the provision have come into force w.e.f. 1-7-2002
vide Notfn SO 604(E) dt 6 June 2002.
2002).—
Modification.—The Amendment Act, 1999 substituted a new section for the old section
100A. The substituted section 100A ran thus :—
Section 100A. No further appeal in certain cases.—Notwithstanding anything contained

in any Letters Patent for any High Court or in any other instrument having the force of law
or in any other law for the time being in force,—
(a) where any appeal from an original or appellate decree or order is heard and decided,
(b) where any writ, direction or order is issued or made on an application under Article
226 or Article 227 of the Constitution,
by a Single Judge of a High Court no further appeal shall lie from the judgment, decision
or order of such Single Judge.
The Amendment Act, 1999 has substituted a new section for the old section 100A. The
amendment seeks to bar:
(a) further appeal from an original decree or order (apart from appellate decree or order
already barred) heard and decided by a Single Judge of a High Court; and
(b) appeal from any writ, direction or order issued or made on an application under
Article 226 or 227 of the Constitution by a Single Judge of a High Court.

1999 stated thus:-
Justice Malimath Committee examined the issue of further appeal against the judgment of
Single Judge exercising even a first appellate jurisdiction. The Committee recommended for
suitable amendment to Section 100A of the Code with a view to provide that further appeal
in this regard shall not lie. The Committee also recommended for suitable enactment by
Parliament for abolition of appeal to a Division Bench against the decision and order
rendered by a Single Judge of the High Court in a proceeding under Articles 226 or 227 of
the Constitution. Clause 10 seeks to substitute a new Section 100A with a view to provide
for no further appeal in the above cases. [Clause 10].

(g) (of the repeal and savings section) stipulates that the provisions of section 100A of
the principal Code, as substituted by section 10 of the Amendment Act, 1999, shall not
apply to or affect any appeal against the decision of a single Judge of a High Court
under Article 226 or Article 227 of the Constitution which had been admitted before the
commencement of section 10 of the Amendment Act, 1999 and every such admitted
appeal shall be disposed of as if section 10 had not come into force.
Effective date.—The amendments of the provision have come into force w.e.f. 1-7-2002
vide Notfn SO 603(E) dt 6 June 2002.
No further appeal in certain cases.—This section provides for abolition of further

appeals against judgments of single judges exercising even first appellate jurisdiction.
Further the appeal to a Division Bench against the decision and order rendered by a
Single Judge of the High Court in proceedings under Articles 226 or 227 of the
Constitution of India has been abolished by this provision. The decision of a Single
Judge cannot be challenged by way of further appeal to a Division Bench of the High
Court. This amendment seems to have been introduced in order to reduce the number
of cases being filed in the High Court thereby reducing the work load.
The word "original" is added in Clause (a) of section 100-A which is intended to abolish
further appeal to the High Court.
Malimath Committee Report.—The report of Justice Malimath Committee (Arrears

Committee) in Chapter II at pp 15-16 read thus:
"CHAPTER II
LETTERS PATENT APPEALS/APPEALS AGAINST JUDGMENTS OF SINGLE JUDGES
Recommendations of the Satish Chandra Committee—Broadly Agreed
The Satish Chandra Committee has in Chapter IX of its report elaborately considered
various aspects bearing upon Letter Patent Appeals and Appeals provided by the
various instruments constituting the respective High Courts against the judgments of
Single Judges to a Bench of two Judges of the High Court. The following
recommendations were made by the Committee in the light of such consideration:
Appeals Against Judgments of Single Judges in Exercise of the Ordinary Appellate

Jurisdiction
(i) Where the First Appeal is decided by a Single Judge of the High Court in exercise of
the appellate jurisdiction, a further appeal against such decision to a Division Bench of
the High Court should be abolished by suitable amending section 100A of the Code of
Civil Procedure;
(ii) Central or State Legislation should be enacted in pari materia with the provisions of
the Uttar Pradesh High Court (Abolition of Letters Appeals) Act, 1962 as amended up-
to-date which provides for abolition of appeals to a Division Bench from the judgment
or order of a Single Judge of the High Court made in exercise of the appellate
jurisdiction in a matter arising from a suit or proceeding instituted or commenced
under certain specified local law; and
(iii) Legislation should be enacted to abolish Letter Patent Appeals against the
judgment of a Single Judge of the High Court in a writ petition directed against an
appellate or revisional forum below. [para 2.1]
We have also examined the matter in great depth keeping in view, inter alia, the
observations and recommendations made in the said report. As we are broadly in
agreement with the recommendations and the reasons in support thereof, it is not
necessary to burden this report by reiterating the same. [para 2.2]
No Further Appeal Against Decrees of Single Judge exercising even the first appellate
jurisdiction, we endorse the recommendation of the Satish Chandra Committee that the
following sub-section (2) be added to section 100A of the Code of Civil Procedure:-
100A(2). Notwithstanding anything contained in any Letters Patent of any High Court or in
any other instrument having the force of law or in any other law for the time being in force,
where any first appeal has been decided by a Single Judge of a High Court, no further
appeal shall lie from the judgment, decision or order of such Single Judge in such appeal or
from any decree passed in such appeal.
Abolition of Appeals Against judgment of Single Judge of the High Court made under
specific local laws in exercise of the appellate jurisdiction in matter arising from a suit
or proceeding instituted or commenced under specified local laws, we agree with the
recommendation made in that regard by Satish Chandra Committee and are also of the
view that suitable legislation should be enacted by the appropriate legislature in that
behalf.
No Appeal Against Judgment of Single Judge in Writ Jurisdiction
In so far as abolition of appeals from judgment or order of a Single Judge of the High
Court made in exercise of the Writ Jurisdiction under Articles 226 and 227 of the
Constitution is concerned, we are of the opinion that no appeal should be permitted at
all against the decision or order of a Single Judge of the High Court rendered in any
such proceeding to a Division Bench of the High Court. A large portion of the litigation
in the High Court these days consists of Writ Petitions under Articles 226 and 227 of
the Constitution. Many of such cases are simple in nature and do not involve any points
of importance of difficulty. By and large, they do not involve questions having an effect
or impact beyond the parameters of the case. These cases can, therefore, be safely left
to be finally decided by a Single Judge. To allow a further appeal in such category of
cases would not only add to the burden of arrears since to be finally decided by a
Single Judge. To allow a further appeal in such category of cases would not only add to
the burden of arrears since such appeal would entail the attention of the High Court
twice over, once before a Single Judge and thereafter before a Division Bench. [Para
2.5]
Hearing of Specified Writ Matters By Division Bench—Discretion to Refer to Larger Bench.
We are, however, conscious of the fact that there may be certain categories of Writ
Cases which having regard to the importance and complexity of the questions therein
involved may require consideration at the hands of a Division Bench, particularly when
finality at the stage of the High Court is sought to be achieved. This problem could be
solved either by providing an appeal against such decisions or by ensuring that such
cases are heard by a Division Bench. Providing an appeal, as we have already pointed
out, would result in protraction of litigation and add to the burden of arrears. There are
other ways in which hearing of cases involving important questions can be secured
before a Division Bench. [Para 2.6]
As pointed out in the Satish Chandra Committee Report, under the Rules of all the High
Courts, if a Judge sitting singly takes the view that a case before him is one which
should be heard by a Division Bench, the case is directed by the Chief Justice to be
heard by such a Bench. This may be done by the Single Judge, either in the exercise of
his own discretion or on the application of either of the parties, if the importance or the
difficulty of the case justifies such a course. Normally, the Single Judge would not
refuse such an application, if he is satisfied that the case is of sufficient importance to
be dealt with by two Judges. Thus, cases of complexity or importance, notwithstanding
the abolition of Letter Patent Appeals, can still be heard by a Division Bench. If the
Rules of any High Court do not contain such a provision, similar provision should be
incorporated. [Para 2.7]
Besides, certain categories of cases, may be identified which deserve to be heard by a

Division Bench. The identification of such cases should be left to the discretion of each
High Court which may make suitable provision in that regard in its Rules and Orders. In
the Rules and Orders framed by some of the High Courts like Bombay and Gujarat, a
specific categorisation of cases under Articles 226 and 227 of the Constitution to be
heard by a Single Judge or a Division Bench, as the case may be, is found to have been
made. There is no reason why such a practice or procedure cannot be adopted in other
High Courts. We are, however, of the view that case like applications for issue of Writ of
Habeas Corpus and issue of appropriate writs in externment, and deportation cases,
cases arising under Fiscal Acts, Labour Legislations and Public Interest Litigations,
deserve to be heard by a Division Bench. [Para 2.8]
We find, however, that in some of the States a provision has been made by legislation
requiring that petitions under Articles 226 and/or 227 of the Constitution should be
heard by a Single Judge or by a Division Bench, as the case may be. In the face of such
a legislation, the High Court in those States cannot frame Rules and Orders, prescribing
the respective jurisdiction of the Single Judge and the Division Bench in regard to
different categories of writ cases. [Para 2.9]
Enactment of Law Recommended
Against the aforesaid background, we are of the opinion that for achieving uniformity
throughout the country, Parliament should enact a law providing for:
(i) abolition of an Appeal to a Division Bench against the decision or order rendered
by a Single Judge of the High Court in a proceeding under Article 226 or Article
227 of the Constitution; and
(ii) conferment of power on the High Courts in the matter of deciding which
category of cases under Articles 226 and 227 of the Constitution should be
heard by a Single Judge or a Division Bench, as the case may be. [Para 2.10]
The law to be enacted by the Parliament may be in the following terms:
(i) Notwithstanding anything contained in any Letters Patent of any High Court or in
any other instrument having the force of law, where any decision or order has
been rendered in a proceeding under Articles 226 and 227 of the Constitution of
India by a Single Judge of a High Court, no further appeal shall lie from such
decision, judgment or order to a Division Bench of the High Court.
(ii) Notwithstanding anything contained in any law for the time being in force, the
High Court may by its own rules or Orders specify the categories of cases under
Article 226 and Article 227 of the Constitution of India which shall be heard by a
Single Judge or a Division Bench, as the case may be. [Para 2.11]
The amendments made by 1999 and 2002 Acts do not suffer from any constitutional
infirmity.389 The jurisdiction of a High Court in second appeal is limited only to appeal
involving substantial question of law.390 By the Amendment Act of 1976 the previous
section 100 was substituted by a new section. This has been done to provide that the
right of second appeal should be confined to cases where a question of law is involved
and such question of law is a substantial one.
An appeal lies against the decree and not against a mere finding or judgment. It can be
filed only by a "person aggrieved". A "person aggrieved" is one who is prejudicially or
adversely affected by the decree.391
Section 100-A has been added by the aforesaid Amending Act, for the purpose of
minimising the delay in the finality of adjudications. It is not desirable to allow more
than two appeals. Accordingly, it has been provided that no further appeal would lie
against the decision of a single judge in a second appeal.
The object of this section is to minimise delay in the finality of a decision. Prior to
enactment of this provision, an appeal against the decision of a single Judge was, in
certain cases, held incompetent. The right of taking recourse to such appeal has now
been taken away by this section.392
Applicability.—
Intra Court appeal in High Court against order of single Judge is not maintainable in
view of section 100A of the Code notwithstanding any thing in the High Court Rules or
the Letters Patent to the contrary.393
Maintainability of Letters Patent appeal.—
After amendment of section 100A of the Code by Amendment Act of 2002, Letters
Patents appeal against judgment of Single Judge of High Court rendered in appeal
under section 173 of Motor Vehicles Act is not maintainable.394
Section 100 A of the Code of Civil Procedure substituted by Act of 96 of 1999 and Act
of 2002 expressly bars a Letters Patent Appeal from an order of a learned Single Judge
of the High Court in an appeal arising from an original or appellate decree or order. The
bar is absolute and applies to all appellate orders of the learned Single Judge of the
High Court. The appeal may arise out of civil proceedings or from the proceedings
under some special Act. The non obstante clause "Notwithstanding anything contained
in any Letters Patent for any High Court or in any instrument having the force of law or
in any other law for the time being in force" gives away the legislative intent to bar any
kind of second appeal before the Divisional Bench of the High Court arising from the
appellate decree or order of the learned single Judge.
The Letters Patent Appeal under section 173 of Motor Vehicle Act is barred by section
100 A of the Code of Civil Procedure.395
The LPA would not be maintainable against the judgment and order passed by Single
Judge of High Court in appeal.396
Special appeal not maintainable.—
The special appeals would not be maintainable irrespective of fact as to whether such
appellate jurisdiction was exercised by Single Judge under the Code or Special. Act.
The provision of section 100A of the Code takes away right of further appeal/special
appeal arising out of judgment of Single Judge exercising its appellate jurisdiction.397
Applicability of Bar.—
The use of expression "heard and decided by single Judge of High Court" in section
100A suggest that only those appeals which were heard and decided by single Judge
on and after 1 July 2002 would be hit by bar contained in section 100A.398
388 Subs. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002)
vide Notfn. S.O. 604(E), dt. 6-6-2002, Section 4 for the following:
"Section 100A. No further appeal in certain cases.—Notwithstanding anything contained in any

Letter Patent for any High Court or in any other instrument having the force of law or in any
other law for the time being in force,—
(a) where any appeal from an original or appellate decree or order is heard and decided,
(b) where any writ, direction or order is issued or made on an application under Article 226 or
Article 227 of the Constitution,
by a Single Judge of a High Court no further appeal shall lie from the judgment, decision or
order of such Single Judge."
Earlier section 100A Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)
(w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'Section 100A. No further appeal in certain cases.—Notwithstanding anything contained in any

Letters Patent for any High Court or in any other instrument having the force of law or in any
other law for the time being in force, where any appeal from an appellate decree or order is
heard and decided by a single Judge of a High Court, no further appeal shall lie from the
judgment, decision or order of such Single Judge in such appeal or from any decree passed in
such appeal.'
389 Salem Advocate Bar Association v UOI, AIR 2003 SC 189 : (2003) 1 SCC 49 .
390 Roop Singh v Ram Singh, AIR 2000 SC 1485 (1487) : (2000) 3 SCC 708 .
392 Municipal Corpn Brihanmumbai v State Bank of India, AIR 1999 SC 2000 (2002).
393 Geeta Devi v Puran Ram Raigar, (2010) 9 SCC 84 .
394 Bajaj Allianz General Insurance Co Ltd v Ambaben, 2010 AIHC (NOC) 1032 (Guj) (DB) LPA No
2174 of 2009, dt 14 May 2010 : AIR 2010 (NOC) 935 (Guj) (DB).
395 Ajit Kumar Singh v Most Rajeya Khatoon, AIR 2014 Pat 49 .
396 Mohd Saud v Shaikh Mahfooz, AIR 2011 SC 485 (488): (2010) 13 SCC 517 (520) : 2009
AIHC 1349 (Ori) (FB); See also AS Hopeson v AS Wungnang, AIR 2011 (NOC) 66 (Gau) : 2011 AIR
CC 207 209 (Gau)].
397 Kohura Finishing Centre v Regional Director, 2008 AIHC (NOC) 277 (Raj) : CSA No 1416 of
2007 dt 23 August 2007 : 2008 (1) Raj LW 27 (33) (DB).
398 Datta Ram Ramesh Kr v DIG, BSF, Rajasthan, AIR 2011 Raj 76 (78) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 101. Second appeal on no
other grounds
© 2020 LexisNexis
PART VII Appeals
S. 101. Second appeal on no other grounds
No second appeal shall lie except on the grounds mentioned in Section 100.
COMMENT.—
This section enacts that no second appeal shall lie except on the grounds mentioned in
section 100 of the Civil Procedure Code.399
If the trial Court and the District Court wholly ignored the weight of preponderating
circumstances on the record and allowed their judgments to be influenced by
inconsequential matters. Then the High Court would be justified in appreciating the
evidence and in coming to its own conclusions.400
It has been held by the Supreme Court in Muthangi v Muthangi, AIR 1977 SC 292 :
(1977) 1 SCC 241 that High Court in appeal cannot amend or go behind the preliminary
decree on a matter determined by the preliminary decree. However, it can interpret the
preliminary decree and modify it while granting the final decree. Hence, in a partition
suit the High Court did not err in extending accounting to all parties to the suit who
were impleaded both in their individual capacities and as representatives of their
branches.
Reference may be made to Rajamanicka Mathurar v Dharmaraj, AIR 1980 SC 493 . It was
an appeal by Special leave from the judgment of High Court in Second appeal
remanding the case to the first Appellate Court. In this appeal, it was found by the
Supreme Court that the High Court ignored relevant considerations taken into the
account by the first appellate Court, instead, made sweeping remarks which might
prejudice a free and fair re-consideration of the matter by the first appellate Court. It
was held that the judgment of the High Court was not liable to be maintained more so
when it was vague and indefinite. Accordingly, the case was sent back to the High
Court with a direction to decide it afresh according to law.
The grievances that the High Court ought not to have decreed the suit since the
plaintiff's right to redeem the mortgage was not adjudicated by the trial Court were
expressly left open. The Supreme Court held that the decree passed by the High Court
was plainly untenable and set aside the same.401
Reference to be also made to a decision of Supreme Court in Karbalai Begum v Mohd

Sayeed, AIR 1981 SC 77 at p 79 where there was a clear finding of fact by the lower
appellate Court that a clear fraud had been committed, it was held by the Supreme
Court that it was not open to the High Court to interfere with the finding of fact in
second appeal.
Broadly the effect of sections 100 and 101 read together, is that a second appeal is
competent only on the ground of an error in law or procedure and not merely on the
ground of an error on a question of fact.
It has been held by the Supreme Court in Dipo v Wasan Singh, AIR 1983 SC 846 : (1983)
3 SCC 376 as follows:-
We do not think that the High Court was justified in dismissing the second appeal on the
ground of limitation. The defect was technical as the second appeal itself had been
presented in time. It was only a copy of trial Court's judgment that was filed after the expiry
of the period of limitation. The delay in filing a copy of trial Court's judgment should have
been condoned and the second appeal should have been entertained and disposed of on
merit.
399 Chunilal Vithaldas v Mohanlal Motilal, AIR 1967 SC 226 : 1966 Supp SCR 180 : 69 Bom LR
26.
400 Madan Lal v Gopi, AIR 1980 SC 1754 : (1980) 4 SCC 255 : (1980) 6 ALR 545 .
401 State of Punjab v Balwant Singh, AIR 1991 SC 2301 : 1992 Supp (3) SCC 108 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 102. No second appeal in
certain cases
© 2020 LexisNexis
PART VII Appeals
402[S. 102. No second appeal in certain cases
No second appeal shall lie from any decree, when the subject-matter of the original suit
is for recovery of money not exceeding twenty-five thousand rupees].
Act, 1999 (46 of 1999) and Code of Civil Procedure (Amendment) Act, 2002 (22 of
2002) w.e.f. 1-7-2002.
Code of Civil Procedure (Amendment) Act 2002 (22 of 2002) (w.e.f. 1-7-2002).
—
For section 102 as substituted by the Code of Civil Procedure (Amendment) Act, 1999,
the present new section has been substituted by the Code of Civil Procedure
(Amendment) Act, 2002. Section 102 prior to its amendment by the Code of Civil
Procedure (Amendment) Act, 1999 and Code of Civil Procedure (Amendment) Act,
2002 barred second appeal in every suit of the nature cognizable by Courts of small
Causes, when the amount or value of the subject-matter of the original suit did not
exceed three thousand rupees. The Code of Civil Procedure (Amendment) Act 1999
abolished second appeal in all cases where the value of the subject matter in the suit
does not exceed rupees twenty-five thousand. Code of Civil Procedure (Amendment)
Act, 2002 has modified the position and now no second appeal lie in money suits where
the subject matter of the suit does not exceed rupees twenty five thousand.
2002).—
Modifications.—This section has been substituted by making the following

modifications:
1. No second appeal shall lie from any decree where the amount or value of the
subject matter of the original suit does not exceed twenty five thousand rupees.
2. This section is now made applicable to all suits instead of confining itself to suits
cognisable of the Court of Small Causes.
1999 stated thus:-
Section 102 of the Code bars second appeal when the amount or value of the subject
matter of the suit does not exceed one thousand rupees. Justice Malimath Committee
recommended the amendments in Section 102 in order to substitute a limit of twenty five
thousand rupees in place of one thousand rupees for the reason of decrease in the value of
money since the time provisions were made. Clause 11 seeks to bring in a limit of twenty
five thousand rupees to bar record appeal. [Clause 11]

(h) (of the repeal and savings section) stipulates that the provisions of section 102 of
the principal Code, as substituted by section 11 of the Amendment Act, 1999, shall not
apply to or affect any appeal which had been admitted before the commencement of
section 11 of the Amendment Act, 1999 and every such appeal shall be disposed of as
if section 11 had not come into force.
Second appeal.—The section abolishes the right of second appeal in matters where the
subject-matter does not exceed twenty-five thousand rupees in value. The section has
been made applicable to all suits and not restricted to those cognizable by the Court of
Small Causes.
There was preponderance of opinion that the right of second appeal protracts
litigation. There was the suggestion such right should be abolished. The cost of
litigation would undoubtedly be minimised and justice may become speedier, if the
right of second appeal is dispensed with altogether by giving finality to the decision to
the First Appellate Court. [Satish Chandra Committee views]
The cases to which the new section is applicable, the position would be that there
would be a trial and one appeal.
Malimath Committee Report.—
Satish Chandra Committee Views.—The Satish Chandra Committee while dealing with
the question of the right of second appeal observed that the actual working of the
amended section seems to have shown little practical effect. However, while
recommending the retention of the right of second appeal, it recommended that the
limit envisaged in section 102 of the Code of Civil Procedure, 1908, should be
enhanced to Rupees Ten thousand from the existing limit of Rupees Three thousand
and the section should be made applicable to all suits and not restricted to those
cognizable by the Court of Small Causes. In other words, the Committee suggested the
abolition of the right of second appeal in matters where value of the subject-matter
does not exceed Rupees Ten thousand. In matters where the value exceeds Rupees
Ten thousand the right of second appeal was proposed to be retained within the
limitations of section 100 of the Code of Civil Procedure that a substantial question of
laws is involved therein. [Para 4.12]
It will be seen that there has been a preponderance of opinion that the right of Second
Appeal protracts litigation and it appears to have been suggested also that such right
should be abolished altogether. The cost of litigation would undoubtedly be minimised
and justice may become speedier, if second appeal is dispensed with altogether by
giving finality to the decision of the First Appellate Court. However, as observed in the
79th Report of the Law Commission of India, the limited right of second appeal on
substantial question of law as provided by section 100 of the Code of Civil Procedure
cannot be taken away altogether since a situation may arise where, on identical
questions of law, different Courts in the State might take different and sometime
diametrically opposite views, which is certainly not a condition which could be allowed
to prevail. The important question, therefore, is whether and how far such right of
appeal can be curtailed and regulated with a view to achieving the goal of expeditious
and inexpensive justice. [Para 4.13]
No second Appeal Where The Value of Subject-matter Does not exceed Rupees Ten
thousand.—The Satish Chandra Committee observed that in matters of small and
intermediate valuation, there should be a trial and one appeal and that the said
principle was buttressed by the provisions contained in the Small Causes Courts Act in
force in various States in which no right of even First Appeal from decree passed in
suits triable by Small Causes Courts or regular Courts exercising powers of Small
Causes is provided. We agree with this view. There is no reason to believe that if right
of second appeal is abolished in matters of small valuation, injustice might result to the
litigants. By and large, the District Appellate Judges, who are senior and experienced
Judicial Officers, can be depended upon to decide questions both of fact and law with
reasonable satisfaction. We, therefore, endorse the recommendation made by the
Satish Chandra Committee that the pecuniary limit upto which no second appeal would
lie as prescribed in section 102 of the Code of Civil Procedure should be enhanced to
Rupees Ten thousand and that it should be applicable to all suits and not restricted to
those cognizable by the Courts of Small Causes. We accordingly recommend that
section 102 of the Code of Civil Procedure should be amended as follows:-
Section 102—No Second Appeal shall lie in any suit when the amount of value of the
subject-matter of the original suit does not exceed ten thousand rupees. [Para 4.14]
Decisions against which no Second Appeal lies will continue to be subject to the
revisional jurisdiction of the High Courts.—We are also of the view that limited
retrospective effect should be given to the proposed amendment so as to make it
applicable to all original suits pending in the Trial Courts on the day on which the
amendment comes into force. It follows that Second Appeals pending in the High
Courts on the date of coming into force of the amendment as also appeals that may be
pending in the First Appellate Court would not be affected. [Para 4.15]
Order XLI rule 11 to be Strictly Enforce—Caveats to be Encouraged—Insistence of

Proper Formulation of Substantial Question(s) of Law.—We further agree with the
recommendation of the Satish Chandra Committee that the provisions of O XLI rule 11
of the Code of Civil Procedure should be strictly applied to Second Appeals in
conformity with the spirit of section 100 as amended in 1976. This would prevent the
admission of frivolous Second Appeals. Besides, the procedure to file caveat by
respondent(s) should be adopted and encouraged so that he can be heard before
admission and Second Appeals not involving any substantial question of law can be
easily weeded out at that stage. A study of Second Appeals by prior circulation and
entrustment of the work of admission of those appeals to experienced Judges would
provide a great restraint against the inflow and admission of undeserving Second
Appeals. There should also be insistence upon a proper formulation of substantial
question(s) of law under a separate heading in the Memorandum of Appeal itself so
that lengthy and rambling arguments can be curtailed and Counsel can be asked to
confine his arguments to the question(s) formulated. [Para 4.16]
Second Appeals to be Heard by Single Judge.—It appears that there is no uniform

practice with regard to listing of Second Appeals for preliminary and final hearing in all
the High Courts. In the Calcutta High Court, Second Appeals exceeding Rupees Five
thousand in value are heard by a Division Bench. The luxury of hearing of Second
Appeals by a Division Bench cannot be afforded not having regard to the large
pendency of cases in the High Courts. It is, therefore, essential that appropriate
amendment be made in the relevant rules or statutes, as the case may be, so that the
hearing of Second Appeals takes place before a Single Judge. [Para 4.17]
Certified Copy of Decree Need not Accompany Memorandum of Appeal.— The

recommendations made by us in the chapter relating to Regular First Appeals that the
requirement of annexing a certified copy of the decree to the Memorandum of Appeal
should be dispensed with would cover second Appeals also. [Para 4.18]
Where a suit of a small cause nature is tried not by a Small Causes Court, but by a
Court in its ordinary jurisdiction the decree or order is not open to a second appeal,
when the value of the original suit does not exceed the value prescribed in section
102.403 Again an order passed by the executing Court in execution of a decree in a suit
of small cause nature is not open to the second appeal.404
Small Causes Suits.—
When the Court has merely issued notice to the other side in the process of admitting
the appeal, it cannot be said that the appeal was admitted.405
It is the nature of the suit and not the value of appeal that is material for the purpose of
section 102.406
vide Notfn. S.O. 604(E), dt. 6-6-2002, Section 5, for the following :
"Section 102. No second appeal in certain cases.—No second appeal shall lie from any decree,
when the amount or value of the subject-matter of the original suit does not exceed twenty-five
thousand rupees." Earlier Section 102 subs. by the Code of Civil Procedure (Amendment) Act,
1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
"Section 102. No Second appeal in certain suits.—No second appeal lie in any suit of the nature
cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees."
403 Suryarao v Venkatarao, AIR 1941 Mad 665 .

404 Kala Bechar v Mohan Bhagwan, AIR 1953 Sau 16 (FB).
405 Food Corporation of India v Munnilal Singh, AIR 2003 MP 66 .
406 Bokka v Kalipatnapu, AIR 1959 AP 92 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 103. Power of High Court
to determine issue of fact
© 2020 LexisNexis
PART VII Appeals
407[S. 103. Power of High Court to determine issue 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 by reason of a
decision on such question of law as is referred to in Section 100.]
COMMENT.—
By the Amending Act of 1976, the previous section 103 was replaced by the present
section. In view of the changes made in section 100, this section required
consequential changes. Furthermore, it was desirable to make it clear that section 103
would apply also where the failure to decide a question occurred not only in the lower
appellate Court, but in the trial Court also.
This section enables the High Court in second appeal to determine the fact, if there is
sufficient evidence on the record in the two cases mentioned therein.408 The power can
be exercised in two cases: (1) where the issues of fact have not been determined by
the lower appellate Court or (2) where they have been wrongly determined by the Court.
Additional evidence in second appeal.—
According to Madras High Court, no additional evidence can be admitted in second

appeal on a question of fact.409 Whereas according to Andhra Pradesh410 and Gujarat
High Courts,411 the language of the section is general and sufficiently wide to include
this power.
Determination of Issue of fact by High Court.—
Section 103 of the Code is not an exception to section 100 of the Code nor is it meant
to supplant it, rather it is to serve the same purpose. Even while pressing section 103 of
the code in service, the High Court has to record a finding that it had to exercise such
power, because it found that the finding(s) of fact recorded by the court(s) below stood
vitiated because of perversity. Such power can be exercised only in exceptional
circumstances and with circumspection where the core question involved in the case
has not been decided. The issue of perversity itself is a substantial question of law and
therefore, section 103 of the Code cannot be held to be supplementary to section 100
of the Code and does not supplant it altogether.412
In redetermination of finding of fact in second appeal a High Court must hear parties
fully with reference to entire evidence on records relevant to issue in question and the
conclusion cannot be prejudged.413
When as a result of amendment of pleading at the appellate stage, additional evidence

becomes necessary for resolution of disputed question of fact, the High Court cannot
record evidence, appreciate evidence and record findings of facts. The matter must be
remanded to lower Court as the situation is not covered by O XLI rule 27 of Code of
Civil Procedure. Further, if a party did not object to such recording of evidence to
appellate bench, then he is not estopped from raising it in the Supreme Court.414
Where the lower Court had not addressed the question that the compromise decree
was obtained by practicing fraud on the Court, the High Court in second appeal is
entitled to determine the question.415
In a suit for declaration that plaintiff was senior to defendants and promotion of
defendants was illegal, the question whether promotion was as per merit-cum-seniority
though vital was not decided in second appeal, hence matter was remanded for
decision of such question.416
High Court is bound to formulate substantial question of law at initial stage itself if it is
satisfied that the matter deserves to be admitted and second appeal has then to be
heard and decided on such question. At the time of hearing of second appeal, it is open
to High Court to reformulate substantial question of law, or formulate fresh question of
law or hold that no substantial question was involved. Setting aside of judgment and
decree of first appellate Court without formulating substantial question of law is
impermissible. Hence matter needs to be remanded to the High Court for consideration
afresh.417
A summary of sections 100 to 103.—
Sections 100 to 103 which deal with the Second Appeals may be summed up as under:
Section 100 of the Code deals with appeals from appellate decrees i.e. Second
Appeals. It lays down that unless expressly provided elsewhere, a second appeal lies to
the High Court from a decree passed in appeal by a Court subordinate to the High
Court if the High Court is satisfied that the case involves a substantial question of law.
Prior to the amendment, this section provided for a second appeal to the High Court on
any of the three grounds namely—(a) that the decision was contrary to law or to some
usage having the force of law; (b) that the decision had failed to determine some
material issue of law or usage have the force of law; or (c) that there was a substantial
error or defect in the procedure which might have possibly produced an error or defect
in the decision of the case upon merit. These clauses were so wide in effect that these
led to conflicting decisions. It was for this reason that section 100 was substantially
amended in 1976. It has now been provided that the right of second appeal is to be
confined to cases where a question of law is involved and such a question of law is a
substantial one.
Under section 100, a second appeal also lies from an appellate decree which is passed
ex parte.
Section 100-A provides that if any appeal from an appellate decree or order is heard
and decided by a Single Judge of High Court, no further appeal would lie from the
judgment, decision or order of such Single Judge.
A first appeal is not limited to any particular ground in section 100. The principle
underlying the restriction to the grounds taken in second appeal is that there should be
an end to litigation. A second appeal will lie to the High Court from an appellate decree
of a Court, unless precluded by some express provision of law. Thus where any section
of the Code has declared that any decision shall be final, no second appeal will lie from
such a decision. The following are the examples of such provisions of the Code—
sections 102; 104 and rule 7 of O XLII. Section 100 applies to appeal from Courts
subordinate to the High Court. Appeals within the High Court are not appeals to the
High Court from a subordinate Court.
Section 102 provides that no second appeal lies in any suit of the nature cognizable by
Courts of Small Causes when the amount or value of the subject-matter of the original
suit does not exceed three thousand rupees.
Section 103 lays down that 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 by reason of a
decision on such question of law as is referred to in section 100.
Order XLII provides that all the rules of O XLI also would apply to second appeals. In
such cases, at the time of making an order for the hearing of the second appeal, the
Court would formulate the substantial question of law as required by section 100 and
in doing so the Court may direct that the second appeal be heard on the question so
formulated and it is not open to the appellant to urge any ground in the appeal without
the leave of the Court given in accordance with the provisions of section 100.
407 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 40, for section
103 (w.e.f. 1-2-1977).
408 Govind Rao v Krishna Rao, AIR 1966 Mad 32 .
409 Subba Raja v Narayana Raja, AIR 1954 Mad 1074 .
410 Venkata Reddi v Pichi Reddi, AIR 1956 AP 250 .
411 Sumanlal Bhagwandas v Nagin Lal Bhagwandas, AIR 1967 Guj 87 ; see also Venkataramah v
Seetharama Reddy, AIR 1963 SC 1526 : (1964) 2 SCR 35 : 1963 ALJ 903 : 24 ELR 42.
412 Municipal Committee Hoshiarpur v Punjab SEB, (2010) 13 SCC 216 (228, 229).
413 Bhagwan Sharma v Bani Ghos, AIR 1993 SC 398 : 1993 Supp (3) SCC 497 .
414 Balai Chandra v Shewdhari, AIR 1978 SC 1062 (1067).
415 Jadu Gopal v Pannalal Bhaumick, AIR 1978 SC 1329 (1340) : (1978) 3 SCC 215 .
416 HSED Corpn Ltd v Seema Sharma, AIR 2009 SC 2592 : (2009) 7 SCC 311 ; See also
Hidayatkhan Bismillakhan Pathan v Vaijnath, (2009) 7 SCC 506 .
417 Hardeep Kaur v Malkiat Kaur, (2012) 4 SCC 344 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 104. Orders from which
appeal lies
© 2020 LexisNexis
PART VII Appeals
Appeals from Orders
S. 104. Orders from which appeal lies
(1) An appeal shall lie from the following orders, and save as otherwise expressly
provided in the body of this Code or by any law for the time being in force, from
no other orders:—
418
[(a) to (f) repealed by the Arbitration Act, 10 of 1940.]
419
[(ff) an order under Section 35A;]
420
[(ffa) an order under Section 91 or Section 92 refusing leave to institute
a suit of the nature referred to in Section 91 or Section 92, as the
case may be;]
(g) an order under Section 95;
(h) an order under any of the provisions of this Code imposing a fine or
directing the arrest or detention in the civil prison of any person except
where such arrest or detention is in execution of a decree;
(i) any order made under rules from which an appeal is expressly allowed
by rules:
421[ Provided that no appeal shall lie against any order specified in
clause (ff) save on the ground that no order, or an order for the payment
of a less amount, ought to have been made].
(2) No appeal shall lie from any order passed in appeal under this section.
[Clauses (a) to (f) sub-section (1) were annulled by the Arbitration Act X of 1940.]
COMMENT.—
Section 104 is restrictive in character. By sub-section (1), it limits the rights of a party to
appeal against an order to the cases specified in clauses (ff) to (i) and by sub-section
(2) that right is further restricted to only one appeal. But where an order is one not
specified in the section but it is a "decree" within the meaning of section 2(2), this
section will have no application.422 Again the order passed by District Court or by the
single Judge are appealable under section 202 of the Indian Companies Act, 1913
independently of provisions of sections 96 and 104 of Code of Civil Procedure.423
Similarly, in decrees and orders under the Hindu Marriage Act, 1955, the right of appeal
is provided by section 2(28) of the Act, and reference to Civil Procedure Code is not
necessary.424
An order of the single Judge in appeal under section 299 of Succession Act, 1925 is
not governed by section 104 of the Code. This section specifies matters which would
be appealable and no other. Under the Code appeals from orders are provided for in
section 104 and O XLIII rule 1 thereof. The said provisions contain a full list of
appealable orders. It does not contemplate orders or decrees passed under a special
statute. By reason of section 104 of the Code the bar of appeal under a special statute
is saved.425
Non-appealable orders.—
Orders not being "decrees" and not falling within Clauses (ff) to (i) of this section nor
within O XLIII, rule 1, are not appealable.426 It has been held by a Full Bench of Andhra
Pradesh High Court that order under section 24 of Hindu Marriage Act is
appealable.427 However, the Mysore High Court has held that it is not appealable.428
As per provision of section 103 of the Code of Civil Procedure in any second appeal the
High Court may, if the evidence on record is sufficient, determine any issue necessary
for the disposal of the appeal which has not been determined by the lower appellate
Court. In the instant case, suit was instituted to declare compromise decree as being
obtained by fraud. A separate issue was framed on the point of limitation and there
was sufficient evidence on the record to determine the issue, the High Court in second
appeal thus answered the issue in favour of the plaintiff. Merely on the ground that the
issue had not been dealt with by the lower appellate Court, the judgment pronounced in
favour of plaintiff cannot be said to be untenable in the eye of law.429
Order of remand not a decree.—
In terms of the provisions of section 104(1) of the code only such appeal is provided
under the order as mentioned in the aforesaid provision read with different types of
order as mentioned in O XLIII rule 1 of the Code of Civil Procedure.Order of remand
passed in appeal would not be a decree. No further Appeal against the said order is
maintainable as per section 104.430
Letters Patent Appeals.—
An appeal may lie from an order under the Letters patent, although such order may be
unappealable under this section by virtue of the saving clause.
There is no provision which permits larger Bench of District Court to suit in appeal
against order passed by smaller bench of that Court. Whereas, High Court is permitted
to suit in appeal against order of single Judge. The provision is not discriminatory. A
District Court cannot be compared to High Court which has special powers by virtue of
Letters patent as were as the Code.431
A Letters Patent appeal under Clause 10 of Letters Patent (Orissa) against appellate
order of single Judge vacating status quo order passed in injunction suit is expressly
barred under this provision.432
Provisions relating to Appeals from orders have been summed up under section 106.
418 Cls. (a) to (f) were repealed by the Arbitration Act, 10 of 1940, Section 49 and sch. III in
which they have been incorporated (see Section 39 of the Act).
419 Cl. (ff) and proviso of cl (i) were inserted by Section 3 C P Code (Am) Act 9 of 1922.
421 Cl. (ff) and proviso of cl (i) were inserted by Section 3 C P Code (Am) Act 9 of 1922.
422 TK Amma v MK Ravunni, AIR 1965 Ker 303 .
423 Shankar Lal v Shankar Lal Poddar, AIR 1965 SC 507 : (1965) 35 CC 1 : (1964) 1 SCR 717 .
424 Hiralal v Lilavati, AIR 1961 Guj 202 .
426 Keshardeo Chamria v Radha Kishan Chamria, AIR 1953 SC 23 : 1953 SCR 136 .
427 Kutumba Rao v Sesharatnamma, AIR 1967 AP 323 (FB).
428 Muniswamappa v Eramma, AIR 1968 Mys 8 .
429 Rama Chandra Sahoo v Mahendra Kumar Padhiar, AIR 2014 Ori 150 .
430 Ram Surti Devi v Rabindra Sharma, AIR 2012 Pat 72 .
431 PS Sathappan v Andhra Bank Ltd, AIR 2004 SC 5152 (5178, 5185).
432 New Kenil Worth Hotel (P) Ltd v Orissa State Finance Corporation, AIR 1997 SC 978 (979,
980) : (1997) 3 SCC 462 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 105. Other orders
© 2020 LexisNexis
PART VII Appeals
Appeals from Orders
S. 105. Other orders
(1) Save as otherwise expressly provided, no appeal shall lie from any order made
by a Court in the exercise of its original or appellate jurisdiction; but where a
decree is appealed from any error, defect or irregularity in any order, affecting
the decision of the case, may be set forth as a ground of objection in the
memorandum of appeal.
(2) Notwithstanding anything contained in sub-section (1), where any party

aggrieved by an order of remand 433[* * *] from which an appeal lies does not
appeal therefrom, he shall thereafter be precluded from disputing its
correctness.
COMMENT.—
This section only makes a negative provision and it is not meant to create a right of
appeal from orders other than those mentioned in section 104(1). It merely provides a
remedy. It cannot be said that in such cases the order in one from which an "appeal
lies" so as to preclude a revision. In view of this section no appeal lies from any order
under Code of Civil Procedure which is not covered by section 104 or O XLIII, rule 1,
Sub-section (2).—
A non-appealable order of remand can be challenged in the appeal from the final
decree.435 Where an appealable order of remand has not been appealed against the
propriety or correctness thereof or of any of the incidental findings and decisions which
are a material part of the basis of that order cannot be challenged in an appeal from
the final decree, or by the lower Court.436
An interlocutory order which had not been appealed from either because no appeal lay
or even though appeal lay, an appeal was not taken, can be challenged from the final
decree or order.437
It is not necessary under the Letters Patent to obtain a separate leave to appeal against
an interlocutory order of the single Judge. In the appeal filed against such an order the
Letters Patent Bench can decide all the points decided by the single Judge in his
interlocutory order. Section 105(2) of Code of Civil Procedure does not apply to such a
case.438
Remand by Appellate Court.—
An order of remand was appealable under O XLIII of the Code but the same was not
appealed against. Its correctness was no more open to examination in view of section
105(2) of the Code. The review of remand order in exercise of inherent power is
erroneous.439
Where no appeal has been filed against an order of remand, the correctness of the
order cannot be challenged in appeal from the final decree.440
Reference may be made to a Full Bench decision of Patna High Court in Ganesh Ram v
Ram Lakhan Devi, AIR 1981 Pat 36 (FB) and Supreme Court decision in VDhanapal
Chettiar v Yasodai Ammal, AIR 1979 SC 1745 : (1979) 4 SCC 214 .
433 Omitted by Code of Civil Procedure (Amendment) Act 104 of 1976, section 42 (w.e.f. 1-2-
1977), for certain words.
434 Keshardeo Chamria v Radha Kishan Chamria, AIR 1953 SC 23 : (1953) 1 MLJ 100 : 1953 SCR
136 .
435 Haridas v Banshidhar, AIR 1962 Raj 57 (FB); see also Asakhit v Iswar Chandra, AIR 1964 Ori
83 .
436 K Nagayya v K Hanumiah, AIR 1969 AP 45 ; see also Jagdish Chandra v Brij Nath Shaw, AIR
1966 Cal 580 (DB).
437 Kshitish Chandra Bose v Commissioner of Ranchi, AIR 1981 SC 707 (709, 710, 711) : (1981)
2 SCC 103 : (1981) 2 SCR 764 .
438 Dewaji v Ganpatlal, AIR 1969 SC 560 (563) : (1969) 1 SCR 573 : 1969 Mah LJ 495 .
439 Nainsingh v Koonwarjee, AIR 1970 SC 997 : (1970) 1 SCC 732 .
440 Sita Ram Goel v Sukhnandi Dayal, AIR 1972 SC 1612 (1617) : (1971) 3 SCC 488 : 1973 ALJ
145 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 106. What Courts to hear
appeals
© 2020 LexisNexis
PART VII Appeals
Appeals from Orders
S. 106. What Courts to hear appeals
Where an appeal from any order is allowed it shall lie to the Court to which an appeal
would lie from the decree in the suit in which such order was made, or where such
order is made by a Court (not being a High Court) in the exercise of appellate
jurisdiction, then to the High Court.
COMMENT.—
A summary of Sections 104 to 106.—
Section 104 to 106 which deal with "Appeal from Orders" may be summed up as under:
Section 104 of the Code provides for an appeal against the following five orders only
and from no other orders—
(1) an order for payment of compensatory costs under section 35-A;
(2) an order under sections 91 and 92 refusing leave to institute a suit of the nature
referred to in section 91 or section 92 as the case may be;
(3) an order under section 95;
(4) an order under any of the provisions of this code imposing a fine or directing the
arrest or detention in the civil prison of any person except where such arrest or
detention is in execution of a decree;
(5) any order made under rules from which an appeal is expressly allowed by rules.
It may be pointed out that an appeal against an order under section 35-A lies only when
the order is one awarding compensatory costs. When the order is one refusing to
award compensatory costs, no appeal will lie.
No further appeal lies form any order passed in appeal under section 104. This, of
course, does not take away the right of appeal under the Letters Patent or to the
Supreme Court nor does it interfere within a right of revision or review. It is well settled
that a litigant has no inherent right of appeal. The right of appeal is a creature of
statute. It is not to be assumed that there is a right of appeal in every matter which
comes under the consideration of a Court. Such a right must be given by a statute or by
some authority equivalent to a statute. A statute creating a new right of appeal is
prospective in the absence of a provision to the contrary.
Section 105 lays down that save as otherwise provided, no appeal will lie from any
order made by a Court in the exercise of its original or appellate jurisdiction; but where
a decree is appealed from, any error, defect or irregularity in any order, affecting the
decision of the case, may be set forth as a ground of objection in the memorandum of
appeal.
As regards appealable orders of remand (under O XLI rules 23 and O XLIII, rule 1) an
appeal lies against an order or remand if the case falls under O XLI rule 23 and O XLIII
rule 1. And regarding orders of remand which are not appealable (under O XLI rule 25)
they stand on the same footing as any other order and can be challenged in appeal
from the final decree.
Section 106 provides that where an appeal from an order is allowed, it is to be filed—
(i) in the Court to which an appeal would lie in the suit in which such order was
made; or
(ii) when such order is made by a Court (not being a High Court) in the exercise of
its appellate jurisdiction, in the High Court. Order LXIII also lays down provisions
for an appeal from eighteen orders. For details reference may be made to rule 1
of that order LXIII.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 107. Powers of Appellate
Court
© 2020 LexisNexis
PART VII Appeals
General Provisions relating to Appeals
S. 107. Powers of Appellate Court
(1) Subject to such conditions and limitations as may be prescribed, an Appellate
Court shall have power—
(a) to determine a case finally;
(b) to remand a case;
(c) to frame issues and refer them for trial;
(d) to take additional evidence or to require such evidence to be taken.
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall
perform as nearly as may be the same duties as are conferred and imposed by
this Code on Courts of original jurisdiction in respect of suits instituted therein.
COMMENT.—
The power given to an appellate Court under section 107 is only a part of its appellate
jurisdiction. It cannot be characterised as an original jurisdiction in an appellate Court.
It confers power on the appellate Judge not only to dispose of the appeal on merits but
also to pass any incidental or interlocutory orders deemed necessary in the
circumstances of the case to maintain the status quo or to preserve the subject-matter
of appeal till the disposal of the appeal.441
A High Court although has wide powers in terms of section 107 but it cannot go
outside the pleadings and make out a new case.442
Section 107 of Code of Civil Procedure empowers the Appellate Court to remand a
case, but it simultaneously empowers the Appellate Court to take additional evidence
or to require such evidence to be taken.443
Change in law and Appellate Court.—
If the new law speaks in the language which is, expressly or by clear intendment, takes
in even the pending matters, then the Court of trial as well as Court of appeal must
have regard to an intention so expressed. The Court of appeal may give effect to such a
law even after the judgment of the Court of first instance.444
Uniform practice in appreciation of evidence.—
If the trial Court has given cogent and detailed reasons for not accepting the testimony
of a witness then the appellate Court ought to consider them, before proceeding to
form a contrary opinion. It is uniform practice in the matter of appreciation of
evidence.445
A Bench dealing with a Letters Patent Appeal has all powers which can be exercised by
Single Judge in first appeal.446
It has, however, been held by the Supreme Court in Siddu Venkappa v Rangu S Devidaga,
AIR 1977 SC 890 : (1977) 3 SCC 532 that an appellate Court cannot make out a new
case which was not pleaded by the parties. Singhal J., observed as follows:-
It is well settled, having been laid down by this Court in Trojan and Co. Ltd. v Nagappa
Chettiar, and Raruha Singh v Achal Singh, that the decision of a case cannot be based on
grounds outside the plea of the parties, and that it is the case pleaded which has to be
found. The High Court, therefore, went wrong in ignoring this basic principle of law, and in
making out an entirely new case which was not pleaded and was not the subject-matter of
the trial.447
But it has been held in Shankar v Gangabai, AIR 1976 SC 2506 (2509) : (1976) 4 SCC
112 that "In matters involving construction of written instruments where rival
interpretations have more than mere possibility, the High Court ought to give a brief
statement of reasons while dismissing the appeal summarily".
A High Court in appeal brushed aside finding of trial Court without giving any reason,
without any appreciation of documents, and without any appreciation of contentions of
the parties. It gave a perfunctory judgment. The High Court failed to exercise the duties
as an appellate Court.448
Reference may be made to Madhusudan Das v Narayani Bai, AIR 1983 SC 114 : (1983) 1
SCC 35 : 1983 Mah LJ 402 wherein it has been held by the Supreme Court that it would
be right to refer to the general principle that, in an appeal against a trial Court decree,
when the appellate Court considers an issue turning an oral evidence it must bear in
mind that it does not enjoy the advantage which the trial Court had in having the
witnesses before it and of observing the manner in which they gave their testimony.
When there is a conflict of oral evidence on any matter in issue and its resolution turns
upon the credibility of the witnesses, the general rule is that the appellate Court should
permit the findings of fact rendered by the trial Court to prevail unless it clearly appears
that some special feature about the evidence of a particular witness has escaped the
notice of the trial Court or there is a sufficient balance of improbability to displace its
opinion as to where the credibility lies.
Condonation of Delay.—
A High Court should consider the question of condonation of delay and the objection of
appellants first, before proceeding with the appeal any further.449
Balance Court fee, time to be given for depositing.—
When the lower appellate Court came to hold that the memorandum of appeal has not
been sufficiently stamped, an opportunity should have been given by the Court to the
appellant to make good the balance Court-fee within a time to be indicated and if there
was failure to comply with the direction of the Court the memorandum of appeal could
have been dismissed. This opportunity having not been given, the dismissal of appeal
was not proper.450
Power to determine case finally—Clause (a).—See O XLI rules 4, 24 and 33.
It is desirable that the final order which a High Court intends to pass should not be
announced until a reasoned judgment is ready for pronouncement. Serious difficulties
arise on account of the practice increasingly adopted by the High Courts of
pronouncing the final order without a reasoned judgment. The practice achieves no
useful purposes.451
Power to remand case—Clause (b).—
See O XLI, rule 23.
When the appellate Court remands a case with direction that the finding of the lower
Courts is set aside, the direction refers to the findings considered by it and on which it
differed from the lower Court. The finding which the appellate Court was not called
upon to consider cannot be deemed to be set aside by it. All the findings of the lower
Courts are not to be necessarily set aside. The amendment which could be allowed
must relate and be consequential to the plea directed to be considered.452
Power to frame issues and refer them for trial—Clause (c).—
See O XLI, rule 25.
Power to take additional evidence—Clause (d).—
See O XLI, rules 27 and 28.
Adduction of additional evidence at appellate stage is permissible if Court requires it to

pronounce judgment in more satisfactory manner.453
Power of Appellate Court.—
A High Court can do reappraisal of evidence when a finding of fact is challenged before
it.454
Power to summon witnesses.—
See O XLI rules 27 and 28.
Clause (2).—Clause (2) of section 107 provides that an appellate Court shall have the
same powers as the original Court under this Code and thereby comprehensively
makes the relevant provisions of the Code applicable to appeals. The clause is based
on the general principle that an appellate Court has the same powers as the original
Court and can do while the appeal is pending, what the original Court could have done,
while the suit was pending.455
In a case of eviction on the ground of creating sub-tenancy without owner's permission,

the lower Courts reached to the finding that there was creation of sub-tenancy without
considering essential ingredients necessary for finding of fact as to sub-tenancy. The
High Court also refused to interfere with the finding of fact. It was held that the
Supreme Court normally does not interfere with the finding of fact but if the finding is
manifestly unjust it cannot allow to perpetuate injustice.456
Appellate Court can reverse inference of trial Judge, if not justified.—
Where the question is not of credibility based entirely on the demeanour of witnesses
observed in Court but a question of inference of one fact from proved primary facts.
The Court of Appeal is in a good position as the trial Judge and is free to reverse the
findings if it thinks that the inference made by the trial Judge is not justified.457
Appreciation of evidence by Appellate Court.—
The knowledge that another view is possible on the evidence adduced in a case, acts
as a sobering factor and leads to the use of temperate language in recording Judicial
conclusions. The Judicial approach should always be based on the consciousness that
one may make a mistake, that is why the use of unduly strong words in expressing
conclusions or the adoption of unduly strong intemperate or extravagant criticism,
against the contrary view should always be avoided. The use of such intemperate
language may, in some cases, tend to show either a lack of experience in judicial
matters or an absence of judicial poise and balance.458
The appellate Court is wrong in thinking that it would detract from the value to be
attached to a trial Judge's finding of fact if the Judge does not expressly base his
conclusions upon impressions he gathers from the demeanour of witnesses. The duty
of the appellate Court is to see whether the evidence taken as a whole can reasonably
justify the conclusion which the trial Court arrived at or whether there is an element of
improbability arising from proved circumstances, which in the opinion of the Court,
outweighs such finding.459
441 Chellappan v KP Varughese, AIR 1964 Ker 23 .

442 Ishwar Dutt v Land Acquisition collector, AIR 2005 SC 3165 (3171).
443 Zarif Ahmad (D) Thr LRs v Mohd Farooq, AIR 2015 SC 1236 .
444 Dayawati v Inderjit, AIR 1966 SC 1423 (1426) : (1966) 3 SLR 275 : 1966 CrLJ 477 : (1966) 68
Punj LR 218 .
445 TD Gopalan v Commr HRE, AIR 1972 SC 1716 (1719) : (1972) 2 SCC 329 : (1973) 1 SCR 584
; see also Raghunath v Kedarnath, AIR 1969 SC 1316 : (1969) 1 SCC 497 .
446 Salig Ram v Ayodhya Prasad, AIR 1966 Pat 61 .
447 AIR 1961 SC 1097 at p 892.
448 State of TN v S Kumaraswami, AIR 1977 SC 2026 .
449 Gagandeep Pratishthan Pvt Ltd v Mechano, AIR 2002 SC 204 (205) : (2002) 1 SCC 475 .
450 Mohammad Mahibullah v Seth Chaman Lal, AIR 1993 SC 1241 : (1991) 4 SCC 529 .
451 State of Punjab v Jagdev Singh, AIR 1984 SC 444 (452) : (1984) 1 SCC 596 : 1984 CrLJ 177 .
452 Mohan Lal v Anandi Bai, AIR 1971 SC 2177 (2183) : (1971) 1 SCC 813;AK Gupta v Damodar V
Corpn, AIR 1967 SC 96 : (1966) 1 SCR 796 : 1966 BLJR 340 relied on; see also Praduman Kumar
v Virendra Goyal, AIR 1969 SC 1349 (1351) : (1969) 1 SCC 714 .
453 North Eastern Railway Admn v Bhagwan Das, AIR 2008 SC 2139 .
454 Gomathinayagam Pillai v Palaniswami Nadar, AIR 1967 SC 868 (871).
455 AIR 1967 SC 1244 ; see also State of Madras v Madurai Mills Co, AIR 1967 SC 681 .
456 Deepak v Lilavati, AIR 1987 SC 2055 (2059) : (1987) 4 SCC 161 .
457 Radha Prasad Singh v Gajadhar Singh, AIR 1960 SC 115 (118) : (1960) 1 SCR 663 : 1960
MPLJ 1 : (1960) 1 MLJ (SC) 33 : 39 Pat 55.
458 Ishwari Pd Misra v Mohd Isa, AIR 1963 SC 1728 (1736) : (1963) 3 SCR 722 : 1963 BLJR 226 .
459 Sarju Prasad v Jwaleshwari, AIR 1951 SC 120 (123) : 1950 SCR 781 : 1951 ALJ 1 : 1951 RD
(HC) 109.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 108. Procedure in appeals
from appellate decrees and orders
© 2020 LexisNexis
PART VII Appeals
General Provisions relating to Appeals
S. 108. Procedure in appeals from appellate decrees and orders
The provisions of this Part relating to appeais from original decrees shall, so far as
may be, apply to appeals—
(a) from appellate decrees, and
(b) from orders, made under this Code or under any special or local law in which a
different procedure is not provided.
COMMENT.—
By virtue of this section and O XLII, rule 1, a Court of second appeal has indirectly all
the powers of a Court of first appeal. A Court of second appeal has the power to
entertain a ground of objection not taken in the grounds of appeal. However, no appeal
against any decree passed on the basis of consent of the parties is competent under
this section read with section 96(3).460
A High Court has no jurisdiction in second appeal to interfere with the order passed by
the trial Court in its discretion. The order of the High Court remanding the case to the
trial Court for reconsidering the amendment application was set aside by the Supreme
Court.461
460 Isac Osman v Valimohammad, AIR 1968 Guj 301 .

461 Reserve Bank of India v RGMorey, AIR 1976 SC 830 : (1976) 1 SCC 803 : 1976 Lab IC 575 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 109. When appeals lie to
the Supreme Court
© 2020 LexisNexis
PART VII Appeals
Appeals to the Supreme Court
462[S. 109. When appeals lie to the Supreme Court
Subject to the provisions in Chapter IV of part y of the Constitution and such rules as
may, from time to time, be made by the Supreme Court regarding appeals from the
Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the
Supreme Court from any judgment, decree or final order in a civil proceeding of a High
Court, if the High Court certifies—
(i) that the case involves a substantial question of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by
the Supreme Court.]
COMMENT.—
Section 109 of the Civil Procedure Code deals with the appeals to the Supreme Court of
India. The right of appeal to the Supreme Court from a judgment, decree or final order
in a civil proceeding is now expressly given by Article 133 of the Constitution of India.
The rules of procedure in appeals to the Supreme Court are laid down in O XLV of the
Civil Procedure Code.
Article 133 of the Constitution.463—Originally—
Before 30th (Constitution Amendment) Act, 1972, under this Article, an appeal could go
to the Supreme Court in civil cases from any judgment, decree or final order of the High
Court if the High Court certified,—
(a) that the amount or value of the subject-matter of the dispute both in the first
instance and also on an appeal is not less than Rs. 20,000; or
(b) that the judgment, decree or final order involves directly or indirectly some claim
or question respecting property of the like amount or value, i.e., Rs. 20,000; or
(c) that the case is a fit one for appeal to the Supreme Court.
Article 133 was again amended by the Constitution 30th (Amendment) Act 1972. The
amended Article provides that an appeal shall lie to the Supreme Court only if the High
Court certifies—
(a)
that the case involves a substantial question of law of general importance, and
(b) that in the opinion of the High Court the said question needs to be decided by
the Supreme Court.
By the Constitution (44th Amendment) Act, 1978. For the words "if the High Court
certified" the words, "if the High Court certifies under Article 134-A" have been
substituted.
Decision of arbitrators is not open to appeal under Article 133.—
Where a dispute was referred to the decision of arbitrators under Defence of India
Rules. Against their decision an appeal was taken to the Court, as provided under the
rules. It was held by the Supreme Court that this was not a judgment open to appeal
under Article 133. It was really an award with the imprimatur of the Court impressed, on
it.464
Article 134-A lays down that every High Court passing or making a judgment, decree or
final order may, if it deems fit to do so, on its own motion; and shall if an oral application
is made, by or on behalf of aggrieved party immediately after the passing or making of
such judgment determine the question whether a certificate of the nature referred to
Clause (1) of Article 133 may be given in respect of that case.
Disciplinary Proceedings.—
The Supreme Court has power under Article 136 to interfere with an order passed by
the High Court in the exercise of disciplinary Jurisdiction in proceedings against a legal
practitioner, but only in exceptional cases.465
Civil Proceedings.—
Any proceeding involving the adjudication of a right to property or any other civil right
would be a civil proceeding.466 It is then the nature of the right involved and not the
form of the proceeding that is determinative.467 There is no ground for restricting the
expression civil proceedings only to those proceedings which arise out of civil suits in
proceedings which are tried as civil suits. Accordingly, it has been held by the Supreme
Court in Narain Ram v Ishawar Lal, AIR 1965 SC 1818 : (1966) 1 SCR 190 : 68 Bom LR 85
: (1965) 2 ITJ 264 that a proceeding before a High Court under Article 226 of the
Constitution for the grant of a writ constitutes a civil proceedings.
Judgment.—
The word "judgment" in these sections means a decision which finally adjudicates on
the rights of parties and that an interlocutory judgment which decides one or more
issues without finally determining the rights of parties is not within this section.
Final order.—
An order is final if it finally disposes of the rights of the parties. The meaning of the
words "final order" has been considered by the Supreme Court in a number of cases.
The sum and substance of those decisions is that if the order amounts to a final
decision on the rights of the parties in dispute in the proceeding, it is a final order.468
But if the order finally determines the rights of parties but proceedings have to be taken
to give effect to it, it is in the nature of a preliminary decree and is a final order.469 It
has accordingly been held that an order remanding a suit for decision on the merits, is
not a final order.470
Decree.—
It has been held by a Full Bench of Allahabad High Court that the word "decree" will not
include an act of State.471
Certificate of fitness.—
This is intended to meet special cases such as those in which the point in dispute is no
measurable in money though it may be of great public or private importance.472
Substantial question of law.—
It is not enough if a mere question of law is involved. It must be a substantial question

of law.473 Proper test for determining whether a question of law is substantial would be
whether it is of general public importance or whether it directly and substantially
affects the rights of the parties. Thus, it has been held by the Supreme Court that a
construction of document of title or of document which is the foundation of rights of
the parties necessarily raises a question of law.474
Under Article 133 of the Constitution, the Supreme Court does not interfere with the
concurrent findings of fact by the lower Courts and the High Court unless it is shown
that important and relevant evidence has been overlooked or unless it is fully
unsupported by evidence on record.475 Thus the Supreme Court in Moran Mar, BC v Rev
Fr KCT, AIR 1959 SC 31 (50) : (1958) Ker 134 : 1958 KLT 721 interfered with the finding
of fact made by the High Court on the ground that the conclusions of the High Court
were based on a misleading evidence and that important material evidence was
ignored. In this case the findings of the High Court were different from those of the trial
Court.
It has been held by the Supreme Court in Gurcharan Singh v Kamal Singh, AIR 1977 SC 5
: (1976) 2 SCC 152 : (1976) 1 SCR 739 that "a pure question of law going to the root of
the case and based on undisputed or proven facts could be raised even before the
Court of last resort, provided the opposite side was not taken by surprise or otherwise
unfairly prejudiced".476
The Supreme Court will not interfere with the finding of fact by Income-tax tribunal.477
The Supreme Court will not interfere with the concurrent findings of fact based on the
appreciation of evidence.478
An order of the Supreme Court directing trial Court to continue proceedings for final
decree did not affect any order passed after preliminary decree by the trial Court.479
Reference may also be made to O XLV
462 Subs. by Code of Civil Procedure (Amendment) Act 49 of 1973, Section 2, for former
section 109 (w.e.f. 29-11-1973).
463 For a detailed study see "A Commentary on Indian Constitutional Law" by the Author.
464 Hanskumar Kishanchand v UOI, AIR 1958 SC 947 (949) : 1959 SCR 1177 .
465 Lalit Mohan v Advocate-General, AIR 1957 SC 250 : 1957 SCR 167 ; see also Manaklal v Dr
Prem Chand, AIR 1957 SC 425 : 1957 SCR 575 .
466 Dhanalakshmi Vilas Cashew Co v President, Cashew Industries Staff Association, AIR 1962
Ker 1 (FB) : (1961) 2 Ker 43 : 1961 KLT 427 : 1961 KLJ 360 ; see also Kapur Singh v UOI, AIR 1957
Punj 173 .
467 Kehar Singh v Custodian-General, AIR 1959 Punj 58 .
468 Syedna Tahar Saifuddin v State of Bombay, AIR 1958 SC 253 : 1958 SCR 1010 : (1958) 1
MLJ (SC) 127.
469 Raja Satrunji v Mohammad Azmat, AIR 1967 All 51 (FB).
470 Jethanand & Sons v State of UP, AIR 1961 SC 794 : (1961) 3 SCR 754 : (1962) 2 MLJ (SC) 5.
471 Dalel v Baroo, AIR 1967 All 59 (FB).
472 ML Dhawan v Capri Ltd, AIR 1968 Del 83 (DB).
473 Abdur Rahman Khan v Raghbir Singh, AIR 1951 Punj 313 ; see also Rudra v Mirtunjary, AIR
1957 All 28 (DB).
474 Chuni Lal VMehta v CS & M Co Ltd, AIR 1962 SC 1314 : 1962 Supp (3) SCR 549 : 65 Bom LR
267 : (1962) 1 LLJ 656 .
475 DC Works Ltd v State of Saurashtra, AIR 1957 SC 264 : 1957 SCR 152 : (1957) 1 LLJ 477 .
476 Raja Durga Singh v Tholu, AIR 1977 SC 5 : (1976) 2 SCC 152 at p. 158 : (1976) 1 SCR 739 .
477 Commr of Income-tax v Juggilal Kamlapat, AIR 1967 SC 401 (403).
478 Bishwanath v Radhaballabhji, AIR 1967 SC 1044 : (1967) 2 SCR 618 .
479 Mohinder Singh v Dataram Jaganath, AIR 1974 SC 2261 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 110. Omitted
© 2020 LexisNexis
PART VII Appeals
S. 110. Omitted
[Omitted by Civil Procedure Code (Amendment) Act 49 of 1973, section 3 (w.e.f.

2911-1973).].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 111. Bar of certain appeals
© 2020 LexisNexis
PART VII Appeals
S. 111. Bar of certain appeals
[Omitted by the Adaptation of Laws Order, 1950].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 111-A. Appeals to Federal
Court
© 2020 LexisNexis
PART VII Appeals
480[S. 111-A. Appeals to Federal Court
[Omitted by Section 2 of the Federal Court Act 21 of 194, section 2 (w.e.f. 1-9-
1942).].]
480 Ins. by the A.O. 1937.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 112. Savings
© 2020 LexisNexis
PART VII Appeals
S. 112. Savings
(1) 481[Nothing contained in this Code shall be deemed—
(a) to affect the powers of the Supreme Court under Article 136 or any
other provision of the Constitution, or
(b) to interfere with any rules made by the Supreme Court, and for the time
being in force, for the presentation of appeals to that Court, or their
conduct before that Court].
(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-
admiralty jurisdiction, or to appeals from orders and decrees of Prize Courts.
COMMENT.—
Their Lordship of the Supreme Court in Pritam Singh v State, AIR 1950 SC 169 : 1950
SCR 453 : (1950) 51 CrLJ 1270 observed that "the wide discretionary powers with
which this Court is vested under it, is to be exercised sparingly and in exceptional cases
only, and as far as possible a more or less uniform standard should be adopted in
granting special leave in the wide range of matters which might come up before us
under this Article (Article 136). By virtue of this Article we can grant special leave in a
civil case, in a criminal case, income-tax cases, in cases which may come up from
different kinds of tribunals and any variety of other cases. The only uniform standard
which, in our opinion, can be laid down in the Constitution is that the Court should grant
special leave to appeal only in those cases where special circumstances are shown to
exist".
It has been held that the Supreme Court will not ordinarily interfere with concurrent
findings on pure questions of fact and review the evidence for the third time unless
there are exceptional circumstances justifying a departure from this normal
practice.482 The calculation of the House-tax on the basis of carpet area, is a question
of fact. The Supreme Court cannot go into this question.483
The Supreme Court is usually reluctant to reinvestigate matters which have been fully
investigated by the Court below and on which there are concurrent findings. If
exceptional circumstances to induce it to depart from the sound and well-established
practice exist only then it departs from such practice.484
The question of assessment of damages primarily is a question of fact. The concurrent

findings of the Courts below on such points except in very exceptional circumstances
are not reviewed by the Supreme Court.485
Where the findings have been reached by the Court below on extraneous
considerations or by violating rules of procedure or by committing any breach of some
provision of law, the Supreme Court will interfere with the concurrent findings of fact.
The Supreme Court normally does not interfere with concurrent findings on questions
of fact and does not enter upon a re-appraisal of the evidence.486
Powers of the Supreme Court under Article 136 of the Constitution are not affected by
the Code as held by the Supreme Court in Kalayan Singh v State of UP, AIR 1962 SC
1183 : 1962 Supp (2) SCR 76 : 1962 ALJ 523 .
New case.—
A new case not being subject matter of enquiry in Courts below, could not be urged for
the first time in appeal before the Supreme Court.487
A new point regarding a question of fact cannot be raised in appeal to the Supreme
Court for the first time.488
The contentions though not specifically urged in the High Court or in the statement of
the case filed by the appellant in the Supreme Court. If they are necessarily involved in
the question which is the subject matter of appeal, then they would be allowed by the
Supreme Court to be argued.489
The contravention of legal provision is the plea of law. It can be raised for the first time
in the Supreme Court.490
The question whether any special laws or customs were prevailing in the merged
territory was one of fact. It could not be allowed to be urged for the first time before the
Supreme Court.
Whether the determination of the question raised required evidence in regard to the
same, it would not be legitimate to allow those questions to be agitated for the first
time in the Supreme Court.491
A point not raised in lower Courts cannot be allowed to be raised before the Supreme
Court.492
Where no objection was taken to the admissibility of a document either before the
arbitrator or before the High Court in the proceeding taken to set aside the award, no
objection to the admissibility could be allowed to be raised in the appeal before the
Supreme Court.493
Question of victimisation is one of fact.—
The question whether a particular workman is a protected workman or not for the
purpose of section 33 of Industrial Disputes Act, 1947 is a question of fact. The finding
of labour Court on such a question will generally be accepted by the Supreme Court in
appeal from award of the labour Court as conclusive. The finding on the question of
victimisation is generally one of fact and cannot be agitated in the Supreme Court.494
Allowing to change the stand not proper.—

Where the respondents have, at all the stages, claimed immunity from assessment on
the basis of section 8 of Bombay City Land Revenue Act, 1876, it would not be proper
to allow them in an appeal before the Supreme Court to change their front and take up
a stand wholly inconsistent with what they had taken.495
Question of fact and law.—
Where the value of the claim in the trial Court as well as the Supreme Court is more
than Rs. 20,000. The Judgment of the High Court under appeal has reversed the decree
of the trial Judge. The appellants are entitled to agitate both the questions of facts and
of law in the Supreme Court.496
481 Subs. by IAO 1950 for sub-section (1).

482 A Perumalakkal v Kumaresan Balakrishnan, AIR 1967 SC 569 ; see also CIT v KW Trust, AIR
1967 SC 844 : (1967) 2 SCR 7 : (1967) 1 ITJ 328 .
483 Century S&M Co v Ulhasnagar Municipality, AIR 1968 SC 859 : (1968) 2 SCR 211 .
484 Sukhdeo Singh v Maharaja Bahadur, AIR 1951 SC 288 (293); see also Iswar Gopal v
Pratapmul Bagaria, AIR 1951 SC 214 ; Firm Sriniwas Ram Kumar v Mahabir Prasad, AIR 1951 SC
177 : 1951 SCR 277 : 1951 MWN 337 .
485 Trojan & Co v Nagappa, AIR 1953 SC 235 (238) : 1953 SCR 789 : (1953) 1 MLJ 729 .
486 Raghubanchmani Pd N Singh v AP Singh, AIR 1971 SC 776 : (1970) 3 SCC 350 .
487 Ambika Prasad v Ram E Rai, AIR 1966 SC 605 (613) : (1966) 1 SCR 758 .
488 Karanpur Development Co v KNSingh, AIR 1956 SC 446 (455); MEMoola v Burjorju, AIR 1932
PC 118 ; Connecticut Fire Insurance Co v Kavanagh, (1892) AC 473 relied on.
489 STO, Banaras v Kanhaiya Lal, AIR 1959 SC 135 (141).
490 Badri Prasad v Nagarmal, AIR 1959 SC 559 (562) : 1959 Supp (1) SCR 769 : (1959) 29 Comp
Cas 229 ; Surajmull v Triton Insurance Co, AIR 1925 PC 83 ; Shiba Pd v SCNandi, AIR 1949 PC 297
relied on.
491 Jagannath Behera v Harihar Singh, AIR 1958 SC 239 (244) : 1958 SCR 1067 : (1959) Cut
695.
492 Mahabir Gope v Harban Narain Singh, AIR 1952 SC 205 (207) : 1952 SCR 775 .
493 Haji Mohd v State of WB, AIR 1959 SC 488 : 1959 Supp (1) SCR 922 .
494 PH Kalyani v Air France, Calcutta, AIR 1963 SC 1756 (1758) : (1964) 2 SCR 104 : (1963) 1
LLJ 679 .
495 Collector of Bombay v Nusserwanjee, AIR 1955 SC 298 (301) : (1955) 1 SCR 1311 : 57 Bom
LR 723.
496 Keshavlal v Lalbhai, AIR 1958 SC 512 (514).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 113. Reference to High
Court
© 2020 LexisNexis
PART VIII Reference, Review and Revision
S. 113. Reference to High Court
Subject to such conditions and limitations as may be prescribed, any Court may state
a case and refer the same for the opinion of the High Court, and the High Court may
make such order thereon as it thinks fit:
1[ Provided that where the Court is satisfied that a case pending before it involves a
question as to the validity of any Act, Ordinance or Regulation or of any provision
contained in an Act, Ordinance or Regulation, the determination of which is necessary
for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so declared by the High Court to
which that Court is subordinate or by the Supreme Court, the Court shall state a case
setting out its opinion and the reasons therefor, and refer the same for the opinion of
the High Court.
Explanation. —In this section, "Regulation" means any Regulation of the Bengal,
Bombay or Madras Code or Regulation as defined in the General Clauses Act, 1897
(10 of 1897), or in the General Clauses Act of a State].
STATE AMENDMENTS
Andhra Pradesh Amendment.—In the Explanation, after the words "Madras Code" the
words "or any Regulation of the Madras Code in force, in the State of Andhra as it
existed immediately before the 1st November, 1956" were inserted by Andhra A L (2nd
Amendment) Order, 1954 and Andhra Pradesh A L (Amendment) Order, 1957.
Tamil Nadu Amendment.—In the Explanation, after the words "Madras Code" the words
"or any Regulation of the Madras Code in force in the territories specified in the Second
Schedule to the Andhra Pradesh and Madras (Alteration of Boundaries) Act 56 of 1959"
were inserted by Madras (Added Territories) ALO, 1961.
COMMENT.—
A reference under section 18 of the Land Acquisition Act, 1984, cannot be equated with
a reference under section 113 of Code of Civil Procedure because the latter has to be
made by the Courts below under certain specified circumstances enumerated in that
section. Therefore, even if a reference under the Code does not abate, it would have no
relevance for deciding as to whether a reference under section 18 of Land Acquisition
Act would abate or not.
Unnecessary observations made by a High Court while disposing of a reference having

no legal effect must be treated to have been rendered infructuous and superfluous.
Reference should be decided within four corners of section 113 and O XLVI, rule 3.2
Where the requirement laid down in the proviso to section 113 of the Code of Civil
Procedure is not satisfied the reference made by the District Judge would be
incompetent.3
Reference may also be made for more details to O XLVI of the Code of Civil Procedure.
Essential elements of the section.—
In Ranadeb v Land Acquisition Judge, AIR 1971 Cal 368 it was observed by the Supreme
Court as under:-
In the first place, ordinarily this power of reference belongs to the subordinate Court.
Secondly, such power of reference is discretionary in the sense that in such a case the Court
may state a case and refer the same for the opinion of the High Court. Thirdly, the
subordinate Court has to be satisfied that a case pending before it involves a question as to
the validity of any Act. Fourthly, the subordinate Court has to be satisfied that the
determination of that question of the validity of the Act is necessary for the disposal of the
case. Fifthly, the subordinate Court has to be of the opinion that such Act is invalid or
inoperative. Sixthly, the subordinate Court has to be of the opinion that such invalidity or
inoperativeness has not been declared either by the High Court to which the Court is
subordinate or by the Supreme Court. If these conditions are satisfied then the subordinate
Court's power to refer is no longer discretionary but mandatory and the subordinate Court
shall state a case setting out its opinion and the reasons therefor. In this event the
subordinate Court will have to express its opinion whether the Act is invalid or inoperative.
Unless it comes to that conclusion, the subordinate Court is not bound to make a reference
to the High Court.
The proviso attached to this section applies only where the Court is satisfied that the
determination of the question of validity is necessary for the disposal of the case. The
question as to the validity of any provision of any Act on the ground that it offends
Article 14 of the Constitution comes within this proviso to section 113. The question,
however, is a question as to the interpretation of the Constitution, for the validity of the
provision is challenged on the ground that it contravenes an Article of the Constitution.
The question contemplated by the proviso to section 113 of the Code is as to the
validity of an Act or of a provision of it. While Article 228 of the constitution has in view
a question as to the interpretation of the Constitution.4 A reference does not lie on a
hypothetical or imaginary question or on points likely to arise in future.5
Reference to High Court.—
In an eviction suit the validity of section 3 of Maharashtra Act, 1999 was already upheld
by High Court. In such situation small causes Court could not have referred question as
to validity of section 3 of Maharashtra Act to High Court under section 113 of the
Code.6
Civil Judge to try cases.—
Where there is no Small Cause Court nor power of Small Cause Courts, Civil Judges
will try cases as ordinary civil suits within their civiljurisdiction.7
Distinction between section 113 and Article 228.—
Section 113 refers to questions regarding the validity of any "Act, Ordinance or
Regulation or of any provision", while Article 228 of the Constitution refers to question
of law as to the "interpretation of the Constitution". An interpretation of an Act does not
necessarily involve an interpretation of the Constitution. Nor does the interpretation of
the Constitution necessarily involve the interpretation of an Act or Statute. But a
question of the validity of an Act or provision may involve the interpretation of the
Constitution in some form or other.8
Further while under section 113, the Court trying the case can go into the question as
to the vires and only refer it when it finds it to be invalid or inoperative, under Article 228
of the Constitution, the Court cannot even investigate into the question as to the vires.
It is not open to it to find that the impugned provisions are valid and then proceed with
the case without making a reference to the High Court as it can do under section
113(3).
Where an enactment or regulation is attacked to be invalid as being ultra vires of the

powers of the Legislature passing it, it was held by the Andhra Pradesh High Court9
that the case fell under section 113 of this Code and not under Article 228 of the
Constitution as the attack was not on the ground of the enactment offending any of the
provisions of the Constitution.
In State Financial Corporation Ltd v Satpathy Brothers and Nanda Co (P) Ltd, AIR 1975 Ori
132 (133) (FB). The Constitutionality of section 31 of the State Financial Corporation
Act, was raised before the District Judge. He was of the opinion that the section was
hit by Article 14 of the Constitution. There was no decision of the High Court or the
Supreme Court on the point. It has been held by a Full Bench of Orissa High Court in the
aforesaid case that the District Judge, was right in making the reference.
2 Municipal Corpn of City v Shivshankar Gaurishankar Mehta, AIR 1999 SC 2874 (2876) : (1998)
9 SCC 197 .
3 State of Maharashtra v Prashant Preetam Kr Shegaonkar, AIR 2011 Bom 100 (105) (DB).
4 Ganga Pratap v Allahabad Bank, AIR 1958 SC 293 (295) : 1958 SCR 1150 : (1958) 1 MLJ (SC)
150.
5 Re District Munsiff Chittor, AIR 1970 AP 365 .
6 Central Bank of India v Brajlal Kapurchand Gandhi, AIR 2003 SC 3028 (3031) : (2003) 6 SCC
573 .
7 Radheshyam Z Chandok v District Judge, 2010 (6) Bom CR 5 (DB).
8 Ranadeb v Land Acquisition Judge, AIR 1971 Cal 368 .
9 P Textiles Ltd v Andhra Pradesh State Finance Corporation, AIR 1971 AP 339 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 114. Review
© 2020 LexisNexis
S. 114. Review
Subject as aforesaid, any person considering himself aggrieved,—
(a) by a decree or order from which an appeal is allowed by this Code, but from
which no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
(a) may apply for a review of judgment to the Court which passed the decree or
made the order, and the Court may make such order thereon as it thinks fit.
COMMENT—
Review is a remedy to be sought for an applied under special circumstances. The

jurisdiction or power to review cannot be assumed or imported in the absence of any
specific provision therefor of even indication of the conditions for the exercise of it.10
Power of review must be specifically granted by statute. The scope of review is for
review of an error apparent only and not to review judgment or order, even if parties are
in a position to satisfy the Court that order under review is erroneous.11
Nature and Object of Review.—
An application for review is not an appeal or a revision to a superior Court but a request
to the same Court to recall or reconsider its decision on the limited grounds prescribed
for review. In the interests of justice, consistency in judicial pronouncements and
maintaining good judicial traditions and efforts should always be made for review
application to be heard by the same judges, if they are in the same Court.12
It is beyond any doubt or dispute that the review Court does not sit in appeal over its
own order. A rehearing of the matter is impermissible in law.13
The High Court and the Supreme Court, in exercise of its powers of review can reopen
the case and rehear the entire matter. Whilst exercising such powers the Court cannot
be oblivious of the provisions contained in O XLVII, rule 1 of the Code of Civil Procedure
as well as the rules framed by the High Courts and the Supreme Court.14
The relief sought for in a review petition should not be beyond the scope of relief
sought for in the writ petition.15
The power of review is not to be confused with the appellate power. The review petition
has a limited purpose and cannot be permitted to act as an appeal in disguise.16
It is the duty on part of litigant to bring all the facts to notice of judge failing which he
cannot be heard to raise grievance if result of litigation goes against him.
In a review/recall of revisional order of High Court on ground that the judge hearing
revision petition was counsel for opposite party in an earlier litigation between same
parties regarding same property, a long period of more than eight years had elapsed
from date of earlier litigation. The judge could not be expected to have remembered it
unless brought to his notice. The party did not bring the said fact to notice of judge and
the judge decided revision on merits. The party applied for review/recall only after
decision went against him. It was not proper.17
For more details, see also O XLVII of the Code of Civil Procedure.
An application to set aside an ex parte decree or order is not the same thing as a
review. In the latter case the Court has to consider the propriety of the decree or order
on the merits, but in the former, the Court has merely to see, if there is sufficient cause
for the applicant for not attending the Court on the hearing date.18
Subsequent events can be considered in review.19
Applicability.—
Review in terms does not apply to an application for review in a writ petition.20
Section 114 or O XLVII, rule 1 of the Code does not apply to review in the writ
jurisdiction. The object of review by the writ Court is to prevent miscarriage of
justice.21
Maintainability.—
In the review petition the High Court held that an application for review was to be
entertained only if such ground was raised in the writ petition before the Court and if
the Court had omitted to consider the same.22
When appeal has been preferred against an order and the same is dismissed, a review
petition cannot be allowed against the same order. The decision of the lower Court and
latter's decision which subsists remains operative and is capable of enforcement.23
Interference by Supreme Court.—
The Supreme Court would not ordinarily interfere with the order admitting review
application.24
An application for review is maintainable even on account of misconception of law or

fact by the Court or an advocate. Mistake by Court in the nature of undertaking given
can also see ground for review.25
Inherent power of review.—
The provision under section 114 of the Code provides for a substantive power of review
by a Civil Court and consequently by the Appellate Courts. For the said purpose the
procedural conditions contained in O XLVII of the Code must be taken into
consideration.26
The review is not a routine procedure. Some material error manifest on the face of the
earlier order resulting in miscarriage of justice must be proved. Where the earlier
judgment of the Supreme Court upholding promotion of respondent was correct, it
needed no review.27
If a party is aggrieved by the judgment of a single Judge sitting in the second appeal
then he has to file an appeal against that judgment. A remedy by way of an application
for review is entirely misconceived. Such an application would not be maintainable. If
the single Judge entertains the application for review, then he would exceed his
jurisdiction.28
If a review petition is filed well within time and during its pendency the appellant files a
special leave petition, against the main judgment of the High Court, which is dismissed
without assigning any reason, then the appeal arising out of the SLP is maintainable.29
There was a delay of about thirty days in filing review petition. The reason for the delay
was that the lawyer used to come from Allahabad to Nainital, who after coming to
know about the judgment applied for certified copy on 4 August 2005 which was
delivered on 9 August 2005 and thereafter review petition was filed. It was held that the
High Court instead of dismissing the review petition ought to have condoned the delay
since the delay was sufficiently explained by the appellant.30 A High Court cannot
dismiss a petition for review of judgment as not maintainable merely because special
leave petition was filed against said judgment before the Supreme Court and was
pending.31
Where the question regarding concession in respect of profit and overhead charges
was concluded in the earlier writ petitions by the allottees and the special leave petition
before the Supreme Court were also dismissed, the High Court cannot reopen the
same matter by way of review petition.32
Where a tenant was defaulter in payment of rent for three years and the High Court
disentitled him from getting benefit of section 20(4) of UP Urban Buildings (Regulation
of Letting, Rent and Eviction) Act, 1972, the tenant sought reopening of the High Court's
judgment by filing review application after four years, it was rightly dismissed.33
Ground for review.—
The omission to cite an authority of law is not a ground to review the earlier judgment.
The purpose of review application cannot be "rehearing" for the purpose of saying
whether a different conclusion on merits could be adopted.34
Where error is apparent on face of record which is pointed out in review petition, then in
such a case court can correct that error.35
Doctrine of merger.—
Doctrine of merger does not apply when review petition is dismissed.36
Litigant cannot keep review petition defective.—
If review petition is defective then it is duty of counsel for petitioner to remove such
defects at the earliest. Defective matters can be placed before Judge/Bench concerned
so that pre-emptory orders can be passed for removal of defects. However, tactics of
waiting for rejection of review petition and then challenge such orders in SLP after
delay contending that petitioner was pursuing review before court cannot be adopted.
So also court registry is required to be vigilant.37
10 Jagdish Prasad v District Board, AIR 1966 All 26 .

11 Span Co Ltd v A2ZMaintenance & Engineering Services Ltd, 2010 (5) Bom CR 832 (836) (DB).
12 Malthesh Gudda Pooja v State of Karnataka, (2011) 15 SCC 330 .
13 Inderchand Jain v Motilal, (2009) 14 SCC 663 (669).
14 Usha Bharti v State of UP, AIR 2014 SC 1686 .
15 B Rama Moorthy v G Rajababu, 2010 (6) ALT 805 -809 (DB).
16 Hage Gumto v Ninya Bagra, (2010) 1 Gau LR 1174 (DB).
17 Mohan Lal Agarwal v Atinder Mohan Khosla, AIR 2004 SC 4004 .
18 Banamali Mohapatra v Bajra Nanak, AIR 1964 Ori 205 (209) (DB); see also Mukhtiar Singh v
Arjun Singh, AIR 1971 Punj 463 (DB).
19 BCCI v NC Club, AIR 2005 SC 592 (606).
20 Maruti Real Estate Pt Ltd v LIC of India, 2008 (1) Cal HN 442 (452) (DB).
21 Satyanarayan Pandey v State of WB, 2009 (2) Cal HN 860 (867) (DB).
22 SNS (Minerals) Ltd v UOI, (2007) 12 SCC 132 .
23 Anup Kumar Roy v State of Tripura, AIR 2012 Gau 163 .
24 BCCI v NC Club, AIR 2005 SC 592 (607).
25 Supra (605).
27 Avtar Singh v UOI, AIR 1980 SC 2041 (2043, 2044) : 1980 Supp SCC 562 : 1981 SCC (L&S)
381 .
28 Devaraju Pillai v Sellaya Pillai, AIR 1987 SC 1160 .
29 K Rajamanli v AVKN Swamy, AIR 2001 SC 2316 (2318) : (2001) 5 SCC 37 .
30 Jai Krishan v State of Uttarakhand, AIR 2014 SC 3758 .
31 Kapoor Chand v Ganesh Dutt, AIR 1993 SC 1145 (1149) : 1993 Supp (4) SCC 432 .
32 UP Avas Vikas Parishad v Ravi Kumar Anand, AIR 1995 SC 2076 (2078) : 1995 Supp (3) SCC
182 .
33 Sardar Narendra Singh v IV Addl Distt. Judge, AIR 1994 SC 1245 .
34 Kishan Goyal v Secty to Govt of Orissa, (2008) 106 Cut LT 92 (DB).
35 Suraj Pal v Ram Manorath, AIR 2017 SC 3825 : 2017 136 RD 621 : 2017 (8) SCALE 672 : 2017
(8) SCJ 408 .
36 Manohar S Nale v Jaipalsing, S Rajput, AIR 2008 SC 429 (DB).
37 Sasi v Aravindakshan Nair, AIR 2017 SC 1432 : 2017 (3) AJR 317 : 2017 (4) ALT 17 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 115. Revision
© 2020 LexisNexis
S. 115. Revision
38
[(1)] The High Court may call for the record of any case which has been decided
by any Court subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law, or
(b) to have failed to exercise a jurisdiction so vested, or
(c) to have acted in the exercise of its jurisdiction illegally or with

material irregularity,
the High Court may make such order in the case as it thinks fit:
39 [Provided that the High Court shall not, under this section, vary or
reverse any order made, or any order deciding an issue, in the course
of a suit or other proceeding, except where the order, if it had been
made in favour of the party applying for revision, would have finally
disposed of the suit or other proceedings.]
40
[(2) The High Court shall not, under this section, vary or reverse any decree or
order against which an appeal lies either to the High Court or to any Court
subordinate thereto.]
41
[(3) A revision shall not operate as a stay of suit or other proceeding before the
Court except where such suit or other proceeding is stayed by the High
Court.]
42 [Explanation. —In this section, the expression "any case which has been decided"
includes any order made, or any order deciding an issue in the course of a suit or
other proceeding.]
STATE AMENDMENTS
Madhya Pradesh.—The following amendments were made by Madhya Pradesh Act 4 of

1994, Section 2 (w.e.f. 15-3-1994)—
In its application to State of Madhya Pradesh for Section 115 substitute the following:—
"S. 115 Revision.—The High Court may c all for the record of any case which has been
decided by any Court Subordinate to such High Court and in which no appeal lies
thereto, and if such subordinate Court appears—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity;
the High Court may make such order in the case as it thinks fit:
Provided that the High Court shall not under this section, vary or reverse any order
made or any order deciding an issue, in the course of a suit or other proceedings,
except where—
(i) the order, if it had been made in favour of the party applying for the revision,
would have finally disposed of the suit or proceeding; or
(ii) the order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made.
(2) The High Court shall not, under this section, vary or reverse any decree or order
against which an appeal lies either to the High Court or to any Court subordinate
thereto.
Explanation.—In this section, the expression "any case which has been decided"
includes any order made, or any order deciding an issue, in the course of a suit or other
proceeding"
Orissa.— In its application to the State of Orissa, for Section 115, substitute the following:
—
"115. Revision.—The High Court, in cases arising out of original suits or other
proceedings of the value exceeding one lakh rupees, and the District Court, in any other
case, including a case arising out of an original suit or other proceedings instituted
before the commencement of the Code of Civil Procedure (Orissa Amendment) Act,
1991, may call for the record of any case which has been decided by any Court
subordinate to the High Court or the District Court, as the case may be, and in which no
appeal lies thereto, and if such subordinate Court appears:—
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction so vested; or
(c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court or the District Court, as the case may be, may make
such order in the case as it thinks fit:
Provided that in respect of cases arising out of original suits or other proceedings of
any valuation decided by the District Court, the High Court alone shall be competent to
make an order under this section:
Provided further that the High Court or the District Court shall not, under this section,
vary or reverse any order, including an order deciding an issue, made in the course of a
suit or other proceedings, except where,
(i) the order, if so varied or reversed, would finally dispose of the suit or other
proceedings; or
irreparable injury to the party against whom it was made.
Explanation.—In this section, the expression "any case which has been decided"
includes any order deciding an issue in the course of a suit or other proceeding."—
Orissa Act (26 of 1991) (w.e.f. 23-10-1991).
Section 2, (w.e.f. 1-7-2002).
In its application to the State of U.P., for Section 115 substitute the following:—
"S. 115 Revision.—(1) A superior Court may revise an order passed in a case decided in
an original suit or other proceeding by a subordinate Court where no appeal lies against
the order and where the subordinate Court has—
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.
(2) a revision application under sub-section (1), when filed in the High Court, shall
contain a certificate on the first page of such application, below the title of the case, to
the effect that no revision in the case lies to the district Court but lies only to the High
Court either because of valuation or because the order sought to be revised was
passed by the district Court.
(3) The superior Court shall not, under this section, vary or reverse any order made
except where,—
(i) the order, if it had been made in favour of the party applying for revision, would
have finally disposed of the suit or other proceeding; or
irreparable injury to the party against whom it is made.
(4) a revision shall not operate as a stay of suit or other proceeding before the Court
except where such suit or other proceeding is stayed by the superior Court.
Explanation-I.—In this section,—
(i) the expression 'superior Court' means—
(a) the district Court, where the valuation of a case decided by a Court
subordinate to it does not exceed five lakh rupees;
(b) the High Court, where the order sought to be revised was passed in a case
decided by the district Court or where the value of the original suit or other
proceedings in a case decided by a Court subordinate to the district Court
exceeds five lakh rupees;
(ii) the expression 'order' includes an order deciding an issue in any original suit or
other proceedings.
Explanation-II.—The provisions of this section shall also be applicable to order passed,

before or after the commencement of this section, in original suits or other
proceedings instituted before such commencement."
Transitory Provisions vide section 3 of UP Act 14 of 2003.—(1) Notwithstanding

anything contained in UP Act 14 of 2003 no judgment or order passed by the High
Court in a revision filed on or after 1 July 2002 shall be liable to be questioned or
reviewed on the ground that the revision ought to have been filed in the District Court.
(2) Any revision filed in the district Court in a case where the value of the original suit or
proceeding does not exceed five lakh rupees and is decided by it on the assumption
that the district Court would have jurisdiction notwithstanding the amendment of
section 115 of the principal Act, by the Code of Civil Procedure (Amendment) Act, 1999
shall be deemed to have been correctly filed in that Court and its decision thereon shall
not be liable to be questioned on this ground, and such revision, if any pending on the
date of commencement of this Act, shall be decided by that Court.
(3) if on or after 1 July 2002 an application for revision under section 115 of the
principal Act has been filed before the High Court in a case decided by a Court
subordinate to the district Court, where the value of the original suit or proceeding does
not exceed five lakh rupees and such application is pending on the date of
commencement of this Act, then such application, unless arguments thereon have
already been concluded and only judgment remains to be pronounced by the High
Court, shall stand transferred to the district Court concerned, and the same shall be
disposed of in accordance with the said section 115 as substituted by this Act.
Statement of object and Reasons of UP Act 14 of 2003.—The Code of Civil Procedure

(Uttar Pradesh Amendment) Act, 1978 (UP Act No 31 of 1978) was enacted to amend
inter-alia section 115 of the Code of Civil Procedure, 1908 in its application to Uttar
Pradesh to provide for empowering the District Judges to revise the orders of courts
subordinate to them, arising out of the original suits of the valuation up to Rupees
Twenty thousand. The section 115 of the said Code was further amended in its
application to Uttar Pradesh by the Uttar Pradesh Civil Laws (Amendment) Act, 1991
(UP Act No 17 of 1991) to raise the said valuation up to Rupees One lac. Since the said
amendments have been repealed by section 32 of the Code of Civil Procedure
(Amendment) Act, 1999 (Act No 46 of 1999), the District Judges in the state not have
no power to revise the order of the court subordinate to them arising out of original
suits with effect from the date of commencement of the said Act of 1999 i.e. 1 July
2002. Same view has been expressed by the Hon'ble High Court of Judicature
Allahabad in the matter of United Service Club v Anita Barlo (Civil Revision Number 92 of
2002) decided on 16 September 2002. Consequently a litigant has to approach the
Hon'ble High Court for filing a revision against the order of the subordinate Courts
arising out of suits of any valuation, whereas, he can file an appeal before the District
Judge against the order of the subordinate Courts passed in original suits of valuation
up to Rupees Five lacs under the provisions of Bengal, Agra and Assam Civil Courts
Act, 1887. With a view to removing the difficulties, it has been decided to amend
section 115 of the said Code in its application to Uttar Pradesh to provide for
empowering the District Judges to revise the orders of the courts subordinate to them
arising out of original suits of the valuation up to Rupees five lacs.
The Code of Civil Procedure (Uttar Pradesh Amendment) Bill, 2003 is introduced
accordingly.
West Bengal.— In its application to the State of West Bengal, after Section 115, insert the
following section, namely:—
"S. 115A District Court's powers of revision.—(1) A District Court may exercise all or
any of the powers which may be exercised by the High Court under Section 115.
(2) Where any proceeding by way of revision is commenced before a District Court in
pursuance of the provisions of sub-section (1), the provisions of Section 115 shall, so
far as may be, apply to such proceeding and references in the said section to the High
Court shall be construed as references to the District Court.
(3) Where any proceeding for revision is commenced before the District Court, the
decision of the District Court on such proceeding shall be final and no further
proceeding by way of revision shall be entertained by the High Court or any other Court.
(4) if any application for revision has been made by any party either to the High Court
under Section 115 or to the District Court under this section no further application by
the same party shall be entertained by the other of them.
(5) A Court of an Additional Judge shall have and may exercise all the powers of a
District Court under this section in respect of any proceeding which may be transferred
to it by or under any general or special order of the District Court.". [vide West Bengal
Act 15 of 1988, Section 3, (w.e.f. 1-2-1989)]
2002).—
Modifications.—This section has been amended so as to make the following

modifications:
1. Section 12 of the Amendment Act has deleted clause (b) of the proviso to
section 115(1). The said clause (b) was an exception to the bar on High Court's
power under section 115 to vary or reverse any order made, or any order deciding
an issue in the course of a suit or other proceeding. By virtue of section 115(1)(b)
the bar was not applicable and a revision petition could lie where the order if
allowed to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made. This provision, namely, section 115(1)(b)
has been omitted by the present amendment.
2. Section 12 of the Amendment Act, 1999 has also introduced a new subsection
(3) in section 115, providing that unless there is a stay of suit or proceeding by
the High Court, a revision shall not operate as a stay thereof.

1999 stated thus:-
Section 115 of the Code provides for revision by the High Court of an order or decision of
any Court subordinate to such High Court. The Malimath Committee noticed that often the
records of the lower Courts are sent to the High Court in the revisional proceedings. It is
imperative that records of proceedings pending in the subordinate Court should not be sent
unless High Court so desires and revision should not operate as stay of proceedings before
the trial Court. The Committee while agreeing in principle that scope of interference against
interlocutory orders should be restricted, felt that the object can be achieved more
effectively without denuding the High Court of the power of revision. Clause 12 seeks to
achieve the above object by suitable amendments to Section 115 [Clause 12].

(i) (of the repeal and savings section) stipulates that the provisions of section 115 of
apply to or affect any proceeding for revision which had been finally disposed of.
Curtailment of revisional jurisdiction.—The effect of the deletion of clause (b) of the

proviso is that the revisional jurisdiction in respect of an interlocutory order passed in a
trial or other proceeding is curtailed. The deleted clause (b) enabled interference in
revision on the ground that an order if allowed to stand would occasion a failure of
justice or cause irreparable injury to the party against whom it was made, which left
wide scope for the exercise of the revisional power with all types of interlocutory orders
presumably not intended.
New sub-section (3) has been inserted to the effect that mere filing of the revision
would not amount to stay of the proceeding unless so ordered by the High Court. The
effect of sub-section (3) is that the practice of sending records to the High Court as a
matter of routine in all cases of revision has been restricted to cases in which the High
Court demands the case-file.
Malimath Committee Recommendations.—
Section 12 of the Amendment Act, 1999 is based on the recommendations of Malimath

Committee.
Clause (1) of section 32(2) of the Amendment Act provides that "the provisions of
section 115 of the principal Act, as amended by section 12 of this Act, shall not apply
to or affect any proceeding for revision which had been finally disposed of".
Revision against Interlocutory Orders—Amendment of section 115 Code of Civil

Procedure Recommended
We have given anxious consideration to the question as to whether section 115 should
be amended in such a way as to debar the revisional jurisdiction in respect of an
interlocutory order passed in an appeal, trial or other proceeding, to prevent the delay in
the proceedings of the subordinate Courts caused due to the frequent filing of Revision
Petitions against all interlocutory orders. The Committee is of the opinion that the
object sought to be achieved can more effectively be achieved by deleting clause (b) to
the proviso to sub-section (1) of section 115 Code of Civil Procedure which reads:-
The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury
to the party against whom it was made. [Para 5.10]
If revision against all types of interlocutory orders is barred it will virtually denude the
High Court of the power of revision. Having regard to the constraints already placed
upon the exercise of the revisional powers by the existing provisions of sub-section (1)
of section 115 Code of Civil Procedure would, to some extent, come in conflict with the
said clause which envisages interference by the High Court even with interlocutory
orders which, if had been made in favour of the party applying for revision, would have
finally disposed of the suit or other proceeding. In fact, the retention of the existing
revisional power with the restrictions contained in clause (a) of the proviso would
enable the High Court to put an end to unsustainable and protracted litigation in
subordinate Courts. For example, in case a suit is clearly barred by limitation or by the
principles of res judicata or is not maintainable on the ground of lack of jurisdiction and
an erroneous order passed by the trial Court on an issue covering such a dispute is not
corrected in revision on the ground that the decision is of interlocutory nature, there
would be unnecessary protraction of the litigation in the subordinate Courts
contributing to increase in arrears. At the same time, clause (b) of the proviso to sub-
section (1) of section 115 Code of Civil Procedure which enables interference in
revision on the ground that an order if allowed to stand, would occasion a failure of
justice or cause irreparable injury to the party against whom it is made, leaves wide
scope for the exercise of the revisional power with all types of interlocutory orders
presumably not intended. [Para 5.11]
While the Committee agrees, in principle, that the scope of interference against
interlocutory orders should be restricted, it feels that that object can more effectively
be achieved without, at the same time, denuding the High Court of the power of
revision, by deleting clause (b) of the proviso to sub-section (1) of section 115 Code of
Civil Procedure the Committee, therefore, recommends that the only amendment which
is required to be made in sub-section (1) of section 115 of the Code of Civil Procedure
is to substitute the existing proviso to subsection (1) by the following:-
Provided that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other proceeding, except
where the order, if it had been made in favour of the party applying for revision, would
have finally disposed of the suit or other proceeding. [Para 5.12]
Statutory Provision Similar to O XLI rule 5 not Called for.—There is a proposal to enact a
provision similar to O XLI rule 5 of the Code of Civil Procedure in regard to grant of stay
in the revisional jurisdiction. This Committee is not in favour of such a proposal for the
following reasons:
(i) The High Court having been conferred with the power of revision under section
115 Code of Civil Procedure it is legitimate to expect that such power will be
exercised as the circumstances and justice of the case merit.
(ii) The nature of the revisional power being quite different from the appellate
power, enactment of a provision similar to O XLI rule 5 Code of Civil Procedure in
the matter of grant of stay in exercise of revisional jurisdiction is not called for.
(iii) The condition for the exercise of power of stay laid down in O XLI rule 5 Code of
Civil Procedure may not apply proprio vigore to all types of cases arising under
revisional jurisdiction. [para 5.13]
Records not to be Sent unless Directed.—It has been noticed that often records of the
lower Court in a pending proceeding are sent for reference in Revision Petitions. It
cannot be gainsaid that once the records are sent to the High Court, the trial of the suit,
proceeding or hearing of the appeal comes to a halt, even though no stay of
proceedings has been granted by the High Court. It is imperative that records of
proceedings pending in the subordinate Courts should not be sent unless the High
Court expressly so desires. In order to effectively implement this proposal, instead of
leaving the matter to the respective High Courts to make an appropriate provision in
their Rules or Orders, we recommend that the following shall be added as sub-section
(3) to section 115 of Code of Civil Procedure:-
In a revisional proceeding under this section against interlocutory decisions, the

subordinate Court shall not send its records unless the High Court expressly so directs.
[Para 5.14]
[Note: Sub-section (3) as inserted seeks to achieve the same objective].

amended by this Amendment Act, 1999, stands repealed. [section 32(1) Code of Civil
COMMENT.—

The inherent powers of the High Court under section 151 are wide and are not subject
to any limitation. Thus, where a meeting is held in contravention of order of stay
granted by a Court, it will be the duty of the Court as a policy to set the wrong right and
not allow the perpetuation of the wrong doing. The inherent powers are bound to be
exercised in the interest of justice.
Under section 115 of the Code the revision can be entertained in a case no appeal lies
from the decision of the subordinate Court and if such subordinate Court appears to
have exercised his jurisdiction, not vested in it by law or to have failed to exercise a
jurisdiction so vested or to have acted in the exercise of its jurisdiction illegally or with
material irregularity.43
High Court cannot reappreciate evidence and set aside concurrent findings of courts
below by taking a different view of the evidence. High Court is empowered only to
interfere with the findings of fact if they are perverse or there is non-appreciation or
non-consideration of material evidence on record.44
In a summary suit the leave was granted by the High Court to defend on condition in
exercise of discretion. There was no case of error or irregularity made out against the
order, hence no interference was required.45
Under section 115 the High Court's powers are limited to see whether in a case
decided, there has been an assumption of jurisdiction where non-existent, or refusal of
jurisdiction where it did or there has been material irregularity or illegality in the
exercise of that jurisdiction. The right is confined to jurisdiction and jurisdiction
alone.46
For the effective exercise of High Court's superintendence and visitorial powers over
subordinate Courts, this revisional jurisdiction has been conferred on the High Court by
section 115. The powers given are clearly limited to the keeping of the subordinate
Courts with the bounds of their jurisdiction.47
The provision of section 115, as amended with effect from 1 July 2002, cannot and
does not affect in any manner the jurisdiction of the High Court under Articles 226 and
227 of Constitution. The interlocutory orders passed by Courts subordinate to High
Court are open to challenge in and continue to be subject to Certiorary and supervisory
jurisdiction of High Court.48
The revisional jurisdiction is a part of the general appellate jurisdiction of the High
Court, though jurisdiction is strictly restricted by the terms of section 115 investing it. If
there are two modes of invoking of the High Court jurisdiction and one of those modes
has been chosen and exhausted, then it would not be proper to grant relief in the other
set of proceedings, in respect of same order of subordinate Court.49
Revisional power has to be exercised only in respect of the order which are final or
orders which if would have passed in favour of the party applying for the revision would
result in termination of the suit or other proceedings independent of the suit i.e. which
may have trappings of suit. Term "Other proceedings" does not include proceedings
arising during trial of suit.
Revision not maintainable as production of documents could neither terminate the

proceedings nor could be termed as other proceedings.50
Revision not to operate as stay of suit or proceeding.—

The interim orders or orders which do not finally decide lis cannot be subject matter of
revision. Mode of procedure altered by statutory change i.e. application's pending
before amendment came into force are not saved by section 32(2)(i) of Amendment
Act, 1999. Maintainability of revision applications has to be decided as per altered
mode i.e. as per amended provisions. Since no substantive right is involved, section 6
of General Clauses Act, 1897 cannot be applied.51
The scope for making revision under section 115 is not linked with a substantive right.
Whereas right of appeal is a substantive right.52
Where a question of applicability of section 13(1)(g) and section 13(1)(hh) of Bombay

Rents Hotel and Lodging House Rates Control Act, 1947 was to be decided, the
decision was within jurisdiction of the trial Court and the appellate Court. No revision
would lie to High Court, even if appellate decision was wrong on facts or law.53
The revision is a part of the general appellate jurisdiction of the High Court, though the
jurisdiction is strictly restricted by the terms of section 115 investing it. The section
115 empowers the High Court to satisfy itself on three matters: (a) that the order of the
subordinate Court is within its jurisdiction; (b) that the case is one in which the Court
ought to exercise its jurisdiction; (c) that in exercising its jurisdiction the Court has not
acted illegally, that is, in breach of some provisions of law or with material irregularity,
that is, by committing some error of procedure in the course of the trial which is
material in that it may have affected the ultimate decision.54 The points of law may
arise which are related to questions of jurisdiction. A plea of limitation or a plea of res
judicata is a plea of law which concerns the jurisdiction of the Court. A finding in these
pleas in favour of the party raising them would oust the jurisdiction of the Court and so
an erroneous decision on those pleas can be said to be concerned with the question of
jurisdiction falling within the purview of section 115. But an erroneous decision on a
question of law having no relation to question of jurisdiction cannot be corrected by the
High Court. Misconstruction of a statutory provision unrelated to the jurisdiction is no
ground for the exercise of jurisdiction under section 115. Though the construction of a
decree, like the construction of a document of title, is a point of law yet it has no
relation to the jurisdiction of the Court.
The exercise of drastic power in a mode other than the one provided, is violative of
natural justice. It is well settled that where a power is required to be exercised by a
certain authority in a certain way. It should be exercised in that manner or not at all. All
other modes of performance are necessarily forbidden.55
The revisional jurisdiction of the High Court in civil cases is derived from this section
and not from the Letters Patent,56 and is analogous to the powers of issuing a writ of
certiorari or writ of prohibition vested in the Courts in England. There is an essential
distinction between an appeal and a revision. The distinction is based upon differences
implicit in two expressions. An appeal is a continuation of the proceedings, in effect the
entire proceedings are before the appellate authority. It has power to review the
evidence. But in case of a revision, whatever powers the revisional authority may or
may not have, it has not the power to review the evidence unless the statute expressly
confers on it that power.57
The comparison of unamended and amended provisions by 1999 Amendment Act, are
operative from 1 July 2002. The changes relate to limitations on exercise of power of
superintendence of High Court over subordinate Courts.58
Curtailment made in revisional jurisdiction by Amendment Act 46 of 1999 does not

take away constitutional jurisdiction of High Court under Article 226 & 227.59
Revision open, where second appeal barred.—
The revision against dismissal of application made under section 151 is maintainable
and such order is not appealable.60
A revisional Court can come to a different conclusion but not on a reappreciation of

evidence. It must be by confirming itself to legality, regularity and propriety of the order
impugned before it.61
An application for revision before a High Court against an appellate order is

maintainable. Even if the appellate order attaches finality, it will not take away the
revisional power of the Court.62
Exercise of jurisdiction illegally or with material irregularity.—
A suit for possession, arrears of rent and mesne profits was filed by the landlord
against the tenant. In decree passed in this suit the Court directed that the landlord to
render account of over payment made to him. The Court acted illegally with material
irregularity. A High Court has full power to revise this decree under section 115 and
give such direction in the matter as it thinks fit.63
The proceedings for revision, if started suo motu, must not be based on a mere
conjecture and there should be some ground for invoking the revisional powers.64
Exercise of power is discretionary.—
While exercising its discretion High Court can take into consideration such
circumstances and facts as may disentitle the petitioner in a revision petition from
being granted any relief. One of such relevant circumstances would be whether the
order sought to be revised has occasioned a failure of justice.65
When revision barred order can be challenged under Article 227.—
When remedy of revision is expressly barred under section 115 of the Code of Civil
Procedure then under such circumstances an order which is not revisable under
section 115 of the Code of Civil Procedure cannot be challenged by way of filing a writ
petition under Articles 226 of the Constitution. The same can be challenged by filing
petition under Article 227.66
Exercise of discretion by trial Court may be questioned.—
On an application under section 115 against an order of the trial Court granting
unconditional leave of defend, the High Court held that triable issues arose for
adjudication and observed that defences were not bona fide and granted leave to
defend on payment of the amount in the Court.
Where the defence is patently dishonest or so unreasonable that it could not

reasonably be expected to succeed then the exercise of discretion by the trial Court to
grant leave unconditionally may be questioned.67
In an eviction suit the Court refused to exercise discretion, striking off the defence of
the tenant for failure to deposit the admitted rent. The refusal was based on the serious
question of jurisdiction of Civil Court involved in the case, that there was no mala fide in
non-deposit of rent in the Court as the same was deposited in bank. The refusal was
proper. The interference with the same by the High Court in exercise of revisional
jurisdiction could not be proper.68
Subsequent Events.—
A High Court in revision has power to take cognizance of subsequent events in the
proceedings under Rent Control Act by the landlord for permission to evict tenant.69
A test to refuse revisory jurisdiction to the High Court is to ascertain whether the
decision sought to be challenged is in a case arising out of a suit of the valuation of Rs.
20,000 and more. If the answer is "yes" then the High Court has revisory power. If,
however, the answer is "no" then the litigation cannot travel beyond the District Court,
except in cases where the decision is taken for the first time by the District Court itself
in a case arising out of original proceedings.70
No right of revision to defendant.—
The question of Court-fee on plaint when decided against the plaintiff is subject to
revision but not so when against the defendant.71
Conditions for the application of the section.—
The following conditions must be satisfied before the revisional powers of the High
Court can be exercised:
(1) There must have been a case decided by the Subordinate Court.
(2) The Court deciding the case must be one subordinate to the High Court.
(3) The case must be one in which no appeal lies.
(4) For the exercise of the power under section 115 a case, decided by a
subordinate Court, is not restricted to a suit in a civil Court. But includes any
proceeding in a civil Court in which jurisdiction of the Court is invoked for the
decision of some claim or right legally enforceable. The illegal assumption and
non-exercise of jurisdiction have reference usually to the initial stage of case.
But acting illegally or with material irregularity in the exercise of jurisdiction
comes after the Court has validly assumed jurisdiction.72
Scope of revisional power.—
The scope of revisional jurisdiction of a High Court under section 64B (Tamil Nadu) of
Motor Vehicles Act, 1939 is strictly limited by section 115 of Code of Civil Procedure. If
there is a jurisdictional error or illegality or material irregularity in the exercise of
jurisdiction only then the High Court can interfere under section 64B with an order
made by State Transport Appellate Tribunal.73
While exercising revisionary jurisdiction it is not open for High Court to correct errors of
facts or law unless they go to issue of jurisdiction.74
Where order passed is decree in law no revision lies under section 115 and it is only
appealable under section 96 read with O XLI.75
Revision against order of Accident Claim Tribunal.—
The orders of the accident claims tribunal are not amenable to the revisional
jurisdiction. The controversy has been settled in the judgment rendered by the Division
Bench of this Court in Abdul Gaffar Gujree v Mohammad Phaphoo, AIR 1985 J&K 26 ,
Para 26.
The para 25 of the said judgment reads as under: "25. Therefore, we have no doubt in
our mind that neither the language of the relevant provisions of the Motor Vehicle Act
nor the Rules framed thereunder suggest that the claims Tribunal was constituted as a
civil Court. In fact, it is constituted as an Administrative Authority and has no trappings
or attributes of a civil Court. It, therefore, follows that the claims tribunal is not a civil
Court subordinate to the High Court or subject to its revisional jurisdiction."
It is further clarified by the Court that even if section 115 of the Code of Civil Procedure
would be applicable still revision against such order is barred. section 115(2) of the
Code of Civil Procedure provides that High Court shall not under this section vary or
reverse any order against which appeal lies to the High Court."76
It was held that rejection of defendant's application for producing documents before
his evidence does not amount to material irregularity and it cannot be interfered with
under section 115.77
Where a revision petition is dismissed in limine without giving any reason, it is not
proper.78 Amount due and payable by debtor and rate at which interest is payable
cannot be changed by a High Court disposing of revision petition against order staying
sale of mortgaged property of debtor.79
Where a property under lease with respondent is mortgaged and a suit for redemption
has been decreed. The finding was that respondent was in possession as mortgagee
and not lessee. In revision against order of execution Court directing delivery of
possession the finding becomes final. A High Court cannot consider whether leasehold
rights of respondent continued even after execution of mortgage deed.80
An execution Court ordered the delivery of possession of property in favour of decree-

holders and the property was divided between the decree-holders. The judgment-
debtor, impleading all but one of the decree-holders, filed a revision petition. The
revisional Court cannot set aside order of execution Court which was common,
inseparable and has become final against the decree-holder who was not joined in the
revision.81
Where the main order was allowed to become final and the appellant did not challenge
the same, under such circumstances the revision order cannot have more force than
the original order. Revision filed, is to be rightly dismissed.82
Interference by a High Court in exercise of revisional jurisdiction at interim stage when
appeal was pending for final hearing, is not justified.83
Additional evidence can be taken only where the conditions and limitations laid down in
O XLI, rule 27 exist. The Court is not bound under the circumstances of this rule to
permit additional evidence. The parties are not entitled as of right to the admission of
such evidence. The matter depends on the discretion of the Court which has to
exercise the same judicially and sparingly.84
A High Court cannot in revision determine the amount of compensation.85
In a suit for specific performance an amendment seeking introduction of willingness

clause in plaint was allowed by the trial Court but in the revision the High Court
disallowed the same. The High Court in revision should not interfere with such an
order.86
Where a subordinate Court allowed amendment of plaint exercising sound discretion,

the High Court in revision should not lightly interfere.87
A plaintiff moved an application for amendment of his plaint. The trial Court granted it
for effective adjudication of dispute. Interference by the High Court in revision was held
not justified.88
A High Court cannot sit in appeal over the orders of the original and the appellate
authority in order to reappreciate the evidence in exercise of its revisional power.89
A High Court can exercise only revisional powers under this section. A concurrent
finding that a suit falls under clause (a) and not under clause (b) of section 12(3) of
Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 cannot be set aside
in revision by the High Court. An erroneous construction placed upon a statute does
not amount to exercise of jurisdiction illegally or with material irregularity.90
The revisional jurisdiction of a High Court can only be exercised for a limited purpose
with a view to satisfying itself that the decision was according to law. A High Court
cannot interfere with a finding of lower Court as to comparative hardship neither
perverse nor erroneous.91
The decision of subordinate Court on all questions of law and fact, not touching its
jurisdiction is final. It is not revisable under clauses (a) & (b), however erroneous such a
decision may be. On the other hand, if by an erroneous decision on a question of fact or
law touching its jurisdiction, the subordinate Court assumes a jurisdiction not vested in
it by law or fails to exercise its jurisdiction so vested, its decision is not final and
revisable under clauses (a) or (b).92
A concurrent finding of trial Court as well as appellate Court was that no arrears were
due. The High Court should not have interfered with such a finding of fact.93
Where an amendment of plaint was not barred by limitation, no irreparable injury or

injustice was caused to opposite party and also no jurisdictional error was involved, a
High Court in exercise of its power of revision should not have interfered with the order
allowing amendment.94
The powers under this section are intended to be exercised with a view to subserve and
not to defeat the ends of justice.95 A High Court cannot interfere with an order unless
the lower Court is shown to have committed breach of any provision of law or any error
of procedure which was material and may have affected the ultimate decision.96 The
High Court cannot, in the exercise, of its revisional powers under the section attack
findings of the subordinate Court or substitute its own appreciation of evidence for that
of the primary Court,97 or record additional evidence.98 The exercise of revisional
jurisdiction is confined to questions of jurisdiction.
The concurrent finding as to the exclusive possession of the sub-tenant was not
amenable to reversal in revision.99 These are functions of a Court exercising appellate
jurisdiction. A party cannot be allowed to obtain in revision what he will not be able to
obtain in appeal.100 It is not proper for the High Court to entertain an appeal in the
guise of a revision petition.101 Nor will he be allowed to take in revision a point which
he could have taken but did not take in the subordinate Court.102 But the High Court is
not precluded from considering such point, particularly when no fresh enquiry or further
evidence is needed for its decision.103 The High Court is not bound to allow even a
point of jurisdiction to be raised for the first time in revision104 although it can allow
such point to be raised.105
The words "illegality and with material irregularity" as used in section 115 clause (c) do
not cover either errors of fact or of law, they do not refer to the decision arrived at but
merely to the manner in which it is reached. The errors contemplated by this clause
may relate either to breach of some provision of law or to material defects of procedure
affecting the ultimate decision, and not to errors whether of fact or of law, after the
prescribed formalities have been compiled with.
Erroneous decision on a question of fact or of law have no relation to question of

jurisdiction of the subordinate officer and hence, cannot be corrected. The revisional
jurisdiction of the High Court is confined to cases of illegal or irregular exercise or non
exercise or illegal assumption of the jurisdiction by the subordinate courts. A
distinction between the appellate and the revisional jurisdictions of the Court is a real
one. The right to appeal carries with it the right to rehearing both on question of law
and fact, unless the statute conferring the right to appeal itself limits the rehearing in
some way, while the power to hear a revision is generally given to a particular case
which is decided according to law.106
A plea that the application did not contain an averment, that the applicant was ready
and willing to do necessary things for proper conduct of arbitration, cannot be raised
for the first time in revision.107
Where a revision was first filed before the District Judge under section 20 of Leave and
Rent Control Act, 1965 a further revision to High Court under section 115 against the
order of District Judge was held to be barred as held by the Supreme Court in Aundal
Ammal v Sadasivan Pillai, AIR 1987 SC 203 : (1987) 1 SCC 183 .
A revision petition cannot be converted into one under Article 227 of the
Constitution.—
A revision petition under section 115 is a separate and distinct proceeding from a
petition under Article 227 of the Constitution of India and cannot be converted into one
under Article 227. If a revision under section 115 is not maintainable then it cannot be
treated as a petition under Article 227 of the Constitution of India.108
Maintainability.—
The revision petition against order allowing objection is maintainable.109
The High Court is not justified in interfering in revision where order of trial Court setting
aside ex-parte decree is not suffering from any error of jurisdiction or material
irregularity in exercise of jurisdiction.110
Where a conditional leave to defend a suit is granted, a revision application would be

maintainable.111
Where application is an interlocutory application, the order passed rejecting it will not
amount to finally deciding final decree proceedings. Hence civil revision petition is not
maintainable.112
A plain reading of section 115 as it stands makes it clear that the stress is on the
question whether the order in favour of the party applying for revision would give
finality to the suit or other proceedings. If the answer is "yes", then the revision is
maintainable. But on the contrary, if the answer is "no", then the revision is not
maintainable. Therefore, if the impugned order is interim in nature or does not finally
decide the lis, the revision will not be maintainable.113
Once the civil revision applications were held to be not maintainable ordinarily the High
Court should not enter in to the merits of the matter.114
The trial court should not be concerned with the impact of the additional documents. It
is the duty of the court to furnish opportunity to the defendant to produce the
documents and to find the truth.115
Execution Petition- Order directing delivery of possession to Decree holder-

revision against.—
Mode prescribed for delivery of possession in case was provided under O XXII rule 36
of the Code of Civil Procedure. Thus, if the disputed order would have been in favour of
judgment debtor, proceedings would not get terminated. If at all O XXII rule 36 of the
Code of Civil Procedure would apply-same would provide for another method and
mode of execution. Therefore, revision is not maintainable.116
Conditions in detail.—
(1) Case decided.—The word "case" has a wider meaning than the word "suit" or
"appeal".117,118 It includes an issue or part of suit or proceeding. The meaning of the
expression "case" was fully considered, and it was held that it being of comprehensive
import, it includes civil proceedings other than suits. It is not restricted to the entirety of
proceedings in a civil Court. To interpret "case" as an entire proceeding and not part of
proceeding, would be to restrict the exercise of the supervisory jurisdiction of the High
Court. It would result in the perpetration of gross injustice to an aggrieved litigant. In
the view that "case" includes a part of a case there is no escape from the conclusion
that revisional jurisdiction may be exercised irrespective of the question whether an
appeal lies from the ultimate order or decree passed in the suit.119
Where by an order any right of a party has been determined and such determination
cannot be re-agitated at any other stage or in appeal, then the decision made would
amount to "case decided', within the meaning of section 115.120
An order, allowing an application for amendment of plaint seeking to bring to notice of
Court the subsequent facts, cannot be said to have finally disposed of the case. It
would not fall under clause (a) of section 115(1). If it is not even remotely causing
failure of justice nor irreparable injury to any party, then it would also not fall under
clause (b) of section 115(1). Such an order cannot be interfered with by High Court.121
An interlocutory order from which appeal lies, is not a "case decided' under this section.
But there are certain interlocutory orders made by the Court of first instance or passed
in the first appeal from which no second appeal lies under section 104 clauses (1) or
(2). In respect of these interlocutory orders, there was a conflict of opinion, which now
has been set at rest by a decision of Supreme Court in Khanna v Dillon, AIR 1964 SC
497 : (1964) 4 SCR 409 : 1963 ALJ 1068 . Ibid; see also Baldevdas v Filmistan
Distributors, AIR 1970 SC 406 : (1969) 2 SCC 201 : (1970) 1 SCJ 342 wherein it has
been held that "case" is wider than suit, and it is well settled that interlocutory orders
can be revised under this section.
Revision of interlocutory order of trial Court.—In revision of Interlocutory Order of trial

Court the High Court cannot try other issues arising in the case, even if the parties
conceded.122
If at no stage of litigation, fraud was pleaded or proved, then plea of fraud could not be
countenanced at later stage.123
In Sushila Devi v Ramanandan, AIR 1976 SC 177 : (1976) 1 SCC 361 (366) : (1976) 2
SCR 845 the Supreme Court has held that a "conditional order is not necessarily an
interlocutory order".
(2) Subordinate Court.— The expression "subordinate to such High Court" in section 115
refers to territorial jurisdiction of the High Court.124 What are and what are not Courts
Subordinate to High Court reference may be made to a decision of Madras High
Court.125 It has been held by the Supreme Court that the expression "Court subordinate
to High Court" in section 115 has a different meaning from that of the expression
"Court immediately below" in Article 133 of the Constitution of India. A Court is
subordinate to the High Court if it is subject to its superintendence while the Court
immediately below means the Court from the decision of which the appeal is filed.126
(3) No appeal lies.—The Supreme Court has held that "If an appeal lies against the
adjudication directly to the High Court, or to another Court from the decision of which
an appeal lies to the High Court, it has no power to exercise revisional jurisdiction but
where the decision itself is not appealable to the High Court directly or indirectly,
exercise of the revisional jurisdiction by the High Court would not be deemed
excluded".127
Meaning of the expression "other proceedings".—
The expression "other proceedings" used in section 115(1) and proviso is not used in
contradistinction to the expression "suit" and does not refer to the interim
matters/applications during course of the suit and decided at interim stage i.e. during
pendency of the suit. The expression "other proceedings" on the other hand is used to
bring other proceedings though having colour and character of a suit and are known by
a different nomenclature. Resultantly any order passed during pendency of the suit to
be revised has to satisfy the test laid down under section 115(1) incorporated by the
Amendment Act, 2009 i.e. the order impugned of such a nature that if passed in favour
of the party questioning the order, would have clinched the suit or other proceedings.
The instant revision petition in the said background is not maintainable as the order
passed in favour of the petitioner would not have finally decided the suit or other
proceedings within the meaning of section 115(1) proviso.128
In other words, a revision would be barred when there is an appeal to High Court
whether direct and immediate or indirect or mediate.
Where "no appeal lies thereto".—
The words "in which no appeal lies thereto", used in section 115, clearly mean that no
appeal must lie to the High Court from the order sought to be revised. Where an order
allowing a review application in a suit for possession is made by a subjudge and an
appeal against such an order lies to the District Court and not to the High Court, a
revision application filed against the said order before the High Court is maintainable. It
cannot be rejected as incompetent.129
A suit was filed by the plaintiff for permanent injunction against Municipal Corporation
of Delhi which was refused by the trial Court and the appellate Court. The High Court
interfered with the concurrent findings and granted relief. The interference by the High
Court with the concurrent findings was unjustified as the Court had overlooked the
principles governing interference under this section.130
Jurisdiction.—
The word "jurisdiction" has been used in this section in its broad legal sense as
meaning the power of administering justice according to the means which the law
provides and subject to the limitations imposed by that law upon the judicial authority.
The section is not directed against the conclusion of law or fact in which the question
ofjurisdiction is not involved.131
Revisional Court can go into jurisdictional fact.—
The fact, for what purpose the premises was let out and whether the tenant has
changed the user of the premises, is a jurisdictional fact. It is open to the revisional
Court to go into the said question.132
Exceeding jurisdiction by High Court, not proper.—
Where in a revision against an order on admissibility of unregistered document, a High

Court embarks upon an inquiry into the validity of the document, it exceeds its
jurisdiction and the order passed is to be set aside.133
No adjustment of amount of third party.—
In an execution petition, the judgment-debtor filed an application to adjust the amount

of a third party lying with the decree-holder, as against the amount due under the
decree. The High Court allowed it. The Supreme Court held that this cannot be done
under O XXII, rule 1 and the High Court committed a manifest and the gravest error of
law and exceeded its revisional jurisdiction.134
Interference with the lower Court's order.—
A lower Court made an Order wrongly interpreting relevant provision as obligatory

instead of discretionary. The High Court found the provision to be discretionary. The
High Court could interfere with the Order of the lower Court.135
Revision in case of Arbitral Award.—
It is elementary that a challenge to the arbitral award is not treated as an appeal and
the limited scope of interference does not permit the Court to correct an error within
the bounds of the arbitrators authority, unless the error is apparent on the face of the
award and results in manifest miscarriage of justice.136
Revisional jurisdiction cannot be exercised to dislodge the finding of fact done by the
courts below. Only those findings which are perverse and arbitrary can be interfered
with.137
No interference with concurrent finding of facts.—
The reappreciation of evidence and interference with the concurrent findings of the
lower Courts by the High Court can only be in case where the findings of facts are
perverse or there has been non-application of mind. Where the Courts came to
conclusion that the disputed building was old and in dilapidated condition and needed
reconstruction, the order of eviction was passed after inspection of building, the High
Court was wrong in interfering with findings of facts in its revisional jurisdiction.138
High Court should give reasons in a revision to set aside a concurrent finding of fact.
Where vague and unclear reasonings are given by the High Court for setting aside of
concurrent findings by Courts below regarding willful default by tenant is unsustainable
and therefore the eviction order was restored by Apex Court.139
When the inferences drawn by the trial Court and the appellate Court do not flow from
established facts and are not legitimate, High Court can interfere therewith in exercise
of its revisional jurisdiction.140
An interference by the High Court with the concurrent findings in the revisional
jurisdiction is justified, if the findings suffer from inherent defects.141
Where a concurrent finding is that tenant's claim to "permanent tenancy" is not bona
fide and he is liable to be evicted, the High Court exercising revisional jurisdiction
cannot interfere.142
Revisional jurisdiction should not be so liberally exercised as to convert a revision into

an appeal. The concerned authority cannot act as Court of appeal so as to
reappreciation of evidence on record.143
The power of High Court under section 50 of Karnataka Rent Control Act, 1961 extends
to correcting errors of law as well as errors of fact. The power of High Court under
section 50 of the Act is not as narrow as is section 115 of the Code of Civil Procedure,
but is wider.144
When a Court has no legal authority to decide the case at all but nevertheless under an
erroneous construction of the law or of a misapprehension of facts proceeds to do so
as if it had such authority, "exercises a jurisdiction not vested in it by law".145
Refusal to exercise jurisdiction.—
If an authority has jurisdiction to deal with a matter then it cannot, in absence of

provision in that behalf, refuse to exercise that jurisdiction. It can also not direct the
party to establish his claim in the ordinary civil Court.146
(4) Exercise of jurisdiction illegally or with material irregularity.—It is only when a Court
decides a case perversely that it can be said to act illegally or with material irregularity
in the exercise of its jurisdiction. It has been held by the Supreme Court in Hindustan
Aeronautics v Ajit Prasad, AIR 1973 SC 76 : (1972) 3 SCC 195 : 1973 Lab IC 407 that if
the order of lower appellate Court is within its jurisdiction, the High Court should not
interfere even if the order is right or wrong in accordance with law or not unless it has
exercised its jurisdiction illegally or with material irregularity. While exercising the
jurisdiction under section 115 it is not competent to the High Court to correct errors of
fact, however, gross or even errors of law unless such errors are related to the
jurisdiction of the Court to try the dispute itself. The words "illegality" and "with material
irregularity" as used in clause (c) do not cover either errors of fact or of law. They do
not refer to the decision arrived at but merely to the manner in which it is reached. The
errors contemplated relate either to breach of some provision of law or material
defects of procedure, affecting the ultimate decision and not to errors either of fact or
of law, after the prescribed formalities have been complied with.147
Where the Court failed to consider the effect of non-deposit of full consideration
required O XXII rule 85, it was held that it was a case of excise of jurisdiction illegally or
with material irregularity and interference in revision is warranted.148
When the trial Court order setting aside ex parte decree passed in a summary suit
under O XXXVIII did not suffer from any error ofjurisdiction or material irregularity, it
was held that the High Court was not justified in interfering with the same.149
Decision of the Court on the petition for pendent lite maintenance under section 24 of
the Hindu Marriage Act on affidavits, it was held that there was no irregularity of
jurisdiction and hence no interference is required.150
The following are some of the examples in which High Courts have interfered under
this clause on the ground of illegality or material irregularity in the exercise
ofjurisdiction:
(i) Where the lower Court decides a case without considering the materials placed
before it or in disregard of the evidence.151
(ii) Where it decides on evidence not illegally taken or without considering the
question of its admissibility.152
(iii) Where it decides without giving reasons for its judgment.153
(iv) Where the Court merely gives a finding and does not decide the suit in
accordance with that finding.154
(v) Where it disregards and does not apply its mind to or misapplies the provisions
of any law, or invents a fanciful rule and acts on its basis.155
Erroneous construction of law.—
An erroneous construction of a statute by the trial Court does not amount to exercising
jurisdiction illegally or with material irregularity. It would not furnish a ground for
interference under section 115 of the Code of Civil Procedure.156
Extent of revisional powers.—
Where the parties to a suit are not disputing the existence of arbitration agreement, the
rejection of reference to arbitration would amount to failure of justice. It would also
cause irreparable injury to the party seeking reference. Revision against rejection order
is maintainable.157
However, in Ajantha Transports v TVK Transports, AIR 1975 SC 123 (132) : (1975) 1 SCC
55 : (1975) 2 SCR 166 the Supreme Court has held that "Relevance or otherwise of one
or more grounds of grant or refusal of a permit could be a jurisdictional matter. A grant
or its refusal on totally irrelevant grounds would be ultra vires or a case of excess of
power. If a ground which is irrelevant is taken into account with others which are
relevant or, a relevant ground, which exists, is unjustifiably ignored, it could be said to
be case of exercise of power in a manner which suffers from a material irregularity. But
will be covered by section 115 Civil Procedure Code".
In a suit for declaration that a certain contract is void having been obtained by undue
influence. An alternative plea for specific performance of the same contract was
allowed. The decision of the trial Court was on the question of law on which its own
jurisdiction to grant relief depended. The decision could be interfered with in
revision.158
A High Court in revisional jurisdiction should consider and discuss evidence on which
the finding was based by lower authorities. Mere statement that there is evidence to
show that the bona fides of the landlord was proved is not sufficient.159
Reference may be made to a decision of Supreme Court in Jwala Prasad v Ajodhya

Prasad, AIR 1983 SC 304 : 1983 ALR 176 ; see also Shaik Aman Alli Saheb v K Venkata
Rama, AIR 1984 AP 71 , where neither the appellant nor his advocate was present at the
time when the revision application was called out for hearing and dismissed and that
the application for restoration of the revision application made by the appellant was
also dismissed without giving an opportunity to the appellant of being heard, it was
held by the Supreme Court that it was a case of denial of opportunity of being heard
and accordingly the revision was restored to its original file by the Supreme Court.
A revision application was heard and decided against non-applicant ex parte but the
counsel of the non-applicant, being occupied in another Court, had sufficient cause for
not being at the hearing. The High Court ought to have allowed re-hearing applying the
principle under O XLI rule 21 of Code of Civil Procedure.160
A revision petition once admitted is to be disposed of on merits. If it is dismissed on

the ground that the appellant had not deposited rent due, then it would be illegal.161
New Plea in Revision.—
New Plea/point not raised before trial Court and the appellate Court should not be
allowed to be raised while hearing revision under section 115.162
Judgment debtor cannot be permitted to raise plea in revision that the decree was
obtained by fraud.163
Revisional Court can examine significance of subsequent events.164
Whether Second Revision lies to the High Court against the revisional order of
District Court?—
It has been held by the Supreme Court in Jetha Bai v Sunderdas Rathenai, AIR 1988 SC
812 : (1988) 1 SCC 722 that against an order of a District Judge in revision under
section 20 Kerala Building Control Act, a further revision does not lie to the High Court
under section 115 of Code of Civil Procedure.
Finding of fact cannot be revised.—
A finding about property that has been sold in the execution of decree is finding of fact
and cannot be revised in the revisional jurisdiction by the High Court under this
section.165
A High Court cannot in exercise of its limited revisional jurisdiction revise finding of
fact arrived at by the appellate Court.166
It has been held by the Supreme Court in Rajbir Kaur v S Chokesiri and Co, (1989) 1 SCC
19 at p 37 as under:-
The scope of the revisional jurisdiction depends on the language of the statute conferring
the revisional jurisdiction. Revisional jurisdiction is only a part of the appellate jurisdiction
and cannot be equated with that of a full-fledged appeal. Though the revisional power-
depending upon the language of the provision might be wider than revisional power under
Section 115 of the Code of Civil Procedure, yet a revisional Court is not a second or first
appeal.
It was further held that "when the findings of fact recorded by the Courts below are
supportable on the evidence on record, the revisional Court must, indeed, be reluctant
to embark upon an independent reassessment of the evidence and to supplant a
conclusion of its own, so long as the evidence on record admitted of and supported the
one reached by the Courts below".
No appeal against revision order by High Court.—
A High Court, on request, treats an appeal under section 39(1)(vi) of Arbitration Act as
revision but refuses rightly to set aside order assailed, as it had not caused substantial
failure of justice. The Supreme Court will refuse to interfere with the High Court's
Order.167
Inordinate delay—Revision refused.—
Where there is a delay of five years in approaching the Court against the Order of
reference by the District Collector in a land acquisition case, the District Judge was
justified in rejecting the same and the High Court rightly refused to exercise its
discretionary jurisdiction after an inordinate delay.168
Review of writ-petitions.—
Under section 115 a High Court has inherent power to review its order under Article 226
of the Constitution. There is nothing in Article 226 of the Constitution to preclude a
High Court from exercising the power of review which inherent in every Court of plenary
jurisdiction to prevent miscarriage of justice or correct grave and palpable errors
committed by it.169
Conversion of appeal into revision.—
A High Court can convert an appeal into a revision when the Court, whose order is
appealed against, has illegally exercised its jurisdiction.170
Portion of impugned order set aside.—
Where the interim mandatory order directed that the appellant shall put the respondent
judgment-debtor in possession of the property and since the appellant decree-holder
has taken possession of the property in question in execution of the decree, the
question of redelivering possession to the judgment-debtor cannot arise at all. This can
be done only when a final order is passed by the High Court in the pending revision
petition. Hence, the impugned order to the extent that "the decree holder shall put the
judgment-debtor in possession of the property in question" was set aside.171
Revision, Petitions, directed to be heard by the Bench.—
Where the revision petitions were heard by a single Judge the Supreme Court observed
that keeping in view the importance of the issues and the far reaching implications, the
same have for the parties, it would be appropriate if the revision petitions are placed
before a Division Bench constituted by the Hon'ble Chief Justice of The High Court of
Andhra Pradesh for hearing.172
Propriety of Revision.—
Where suit is disposed of on merits, revision becomes infructuous.173
Fresh document cannot be relied.—

The documents which were never bothered to be filed in suit nor even during execution
proceedings, cannot be relied upon in revision.174
Reference, Review and Revision.—A comparison—
Reference and Review.—
In a reference, the case is referred by a Subordinate Court to the High Court, whereas in
case of review, an application is to be made by the aggrieved party.
Secondly, a reference lies and decided by only High Court, whereas Review is by the
Court which passed the decree or made the order.
Thirdly, a reference is made pending a suit, appeal or execution proceedings. An

application for review is to be made to the Court which passed the decree or made the
order.
Lastly, for a reference, some reasonable doubt on a question of law is a good ground.
The grounds of review are:
(a) the discovery of new and important matter of evidence; or
(b) some apparent mistake or error on the face of the record; or
(c) any other sufficient reason.
Reference and Revision.—
In a reference, the case is referred by a Subordinate Court to the High Court, whereas in
revision, the case comes to the High Court sends for the case.
Secondly, the ground for reference is some reasonable doubt on a question of law,
whereas the ground for revision relates to jurisdiction.
Review and Revision.—
An application for review is made to the Court which passed the decree or made the
order, whereas the power of revision is exercised by the High Court only.
Secondly, the ground of review may be (a) the discovery of new and important matter
of evidence, or (b) some apparent mistake or error on the face of the record or (c) any
other sufficient reason. The ground for revision relates to jurisdiction.
Lastly, for review, application is made by the aggrieved party. In revision, High Court
can, of its own accord, send for the case.
38 Section 115 re-numbered as sub-section (1) by Code of Civil Procedure (Amendment) Act,
104 of 1976, Section 43 (w.e.f. 1-2-1977).
39 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 12(i)
(w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following.
Provided that the High Court shall not, under this section, vary or reverse any order made, or any
order deciding an issue; in the course of a suit or other proceeding, except where—
(a) the order, if it had been made in favour of the party applying for revision, would have finally
disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made.
40 Ins. by Act 104 of 1976, Section 43(b) (w.e.f. 1-2-1977).

41 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 12(ii)
(w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
42 Ins. by Act 104 of 1976, Section 43(b) (w.e.f. 1-2-1977).
43 Rajaram Keshav Dhobi v Narain J Marathe, 2011 AIR CC 246 (249) (Bom).
44 Yunus Ali v Khursheed Akram, (2008) 7 SCC 293 (295-297).
45 Southern Sales & Services v SD & H & MBH Germany, 2009 (1) Kar LJ 322 (327-28) (SC).
46 Harishankar v Girdhari Lal, AIR 1963 SC 698 (700) : 1962 Supp (1) SCR 933 : (1962) 1 Ker LR
389.
47 SS Khanna v FJ Dillon, AIR 1964 SC 497 (502, 505) : (1964) 4 SCR 409 : 1963 ALJ 1068 .
48 Surya Dev Rai v Ram Chand Rai, AIR 2003 SC 3044 (3056) : (2003) 6 SCC 675 : (2003) 3 KLT
490 .
49 Shankar v Krishnaji, AIR 1970 SC 1 (5).
50 Mohammad Ramzan Thokur v Gh Mohammad Sheikh, AIR 2012 J&K 92 .
51 Shiv Shakti Coop Housing Society, Nagpur v Swaraj Developers, AIR 2003 SC 2434 (2442,
2443) : (2003) 2 KLT 503 : (2003) 6 SCC 659 .
(2003) 2 KLT 503 : (2003) 6 SCC 659 .
53 Ramniklal P Mehta v Indradaman A Seth, AIR 1964 SC 1676 : (1964) 8 SCR 1 : (1964) 5 Guj LR
798.
54 Per Sir John Beaumount in Venkatagiri v HREBoard, 76 IA 67 : AIR 1949 PC 156 .
55 Hukam Chandv UOI, AIR 1976 SC 789 : (1976) 2 SCC 128 : (1976) 2 SCR 1060 .
56 V Samban v Annadana Chatram, AIR 1967 Mad 306 (311). No revision when it is specifically
prohibited by the Act; see also VSamban v Annadana Chatram, 1966 Ker LJ 1156 .
57 State of Kerala v KMC Abdullah & Co, AIR 1965 SC 1585 (1587) : (1965) 1 SCR 601 : 16 STC
875.
(2003) 6 SCC 659 : (2003) 2 KLT 503 .
59 Salem Advocate Bar Assocn v UOI, AIR 2005 SC 3353 (3366); Surya Dev Rai v Ram Chander
Rai, AIR 2003 SC 3044 (followed).
60 Shipping Corpn of India Ltd v Machado Brothers, AIR 2004 SC 2093 (2097).
61 Rukmini Amma v Kallyani Sulochana, AIR 1993 SC 1616 (1620) : (1993) 1 SCC 499 .
62 Shyam Sunder Agrawal v UOI, AIR 1996 SC 1321 (1327, 1328) : (1996) 2 SCC 132 .
63 Maganlal C Desai v Chandrakant, AIR 1969 SC 37 .
64 Swastik Oil Mills v HB Munshi, AIR 1968 SC 843 (845).
65 Brij Gopal Mathur v Kishan Gopal, AIR 1973 SC 1096 : (1973) 1 SCC 635 .
66 Gujrat State Road Transport Corporation v Firoze MMogal, (F.B.), AIR 2014 Guj 33 ; see also
Jogendrasinghji Vijaysinghji v State of Gujrat, AIR 2015 SC 3623 .
67 Mechalec Eng & Manfrs v Basic Equip Corporation, AIR 1977 SC 577 (579) : (1976) 4 SCC 687
: (1977) 1 SCR 1060 .
68 Mangat Singh Trilochan Singh v Satpal, AIR 2003 SC 4300 (4303).
69 Pasupulati v Motor & General Traders, AIR 1975 SC 1409 : (1975) 1 SCC 770 : (1975) 3 SCR
958 .
70 Sri Vishnu Awatar v Shiv Autar, AIR 1980 SC 1575 (1578) : (1980) 4 SCC 81 : 1980 ALJ 751 .
71 Rathnavarmaraja v Vimla, AIR 1961 SC 1299 : (1961) 3 SCR 1015 .
72 Mohd Yakub Khan v Sirajul Haq, AIR 1949 All 771 (773) (DB).
73 KBalasubramania v NMSambandamoorthi, AIR 1975 SC 818 (824) : (1975) 1 SCC 242 :
(1975) 3 SCR 91 .
74 Ambasdas Khanduji Shinde v Ashok Sadashiv Marmurkar, AIR 2017 SC 2527 : 2017 (4) ABR
830 : 2017 (5) SCALE 271 .
75 Rishabh Chand Jain v Ginesh Chandra Jain, AIR 2016 SC 2143 : 2017 (1) AJR 20 : 2016 (4)
SCALE 616 .
76 Hans Raj Bhagat v State, AIR 2013 J&K 15 .
77 Madanlal v Shyamlal, AIR 2002 SC 100 : (2002) 1 SCC 535 : (2002) 1 CHN 38 .
78 Dev Pal Kashyap v Ranjit Singh, AIR 2000 SC 3546 : (2000) 9 SCC 420 .
79 Delhi Financial Corpn v BB Behel, AIR 1999 SC 2358 (2360) : (1999) 3 SCC 298 .
80 Narayanaru Thrivikranaru v Madhavan Polly, AIR 2000 SC 904 (906).
81 Rajeshwari Amma v Joseph, AIR 1995 SC 719 : (1995) 2 SCC 159 .
82 SK Saldi v General Manager, UP State Sugar Corpn Ltd, AIR 1997 SC 2182 : (1997) 9 SCC 661 :
1997 All LJ 1180.
83 Gurdev Singh v Mehnga Ram, AIR 1997 SC 3572 : (1997) 6 SCC 507 .
84 Mahabir Singh v Naresh Chandra, AIR 2001 SC 134 (136) : (2001) 1 SCC 309 : (2001) 1 An LT
60.
85 Indore Municipality v KNPalsikar, AIR 1969 SC 579 (588).
86 Sudama Prasad Sah v Ram Singhason, AIR 1983 SC 270 .
87 Haridas Aildas Thadani v Godrej Rustom, AIR 1983 SC 319 : (1984) 1 SCC 668 .
88 Panchdeo Narain Srivastava v Jyoti Sahay, AIR 1983 SC 462 .
89 Shaik Jaffar v Mohd Pasha, AIR 1975 SC 794 (796) : (1975) 1 SCC 25 .
90 Hiragauri v Abdul Kadar, AIR 1973 SC 1337 ; see also Ratilal v Ranchhodbhai, AIR 1966 SC 439
; Abbasbhai v Gulamnabi, AIR 1964 SC 1341 .
91 Bhaichand Ratanshi v Laxmishankar Tribhoyan, AIR 1981 SC 1690 (1692) : (1981) 3 SCC 502 :
(1981) 22 GLR 1063 .
92 Rama Iyer v Sundaresa Pounapoondar, AIR 1966 SC 1431 (1433) : (1966) 3 SCR 474 : (1966)
2 MLJ (SC) 78.
93 Hiralal Vallabhram v Kasturbhai Lalbhai, AIR 1967 SC 1853 (1857) : (1967) 3 SCR 343 : 9 Guj
LR 41.
94 Maitreyee Banerjee v Prabir Kumar, AIR 1982 SC 17 : (1982) 3 SCC 217 .
95 1971 PLJ 98 ; see also 1970 Ker LR 161 : AIR 1970 Mani 10 (12) : AIR 1969 Punj 372 (375).
96 Johri Singh v Sukh Pal Singh, AIR 1989 SC 2073 (2081) : (1989) 4 SCC 403 : 1989 ALR 703 .
97 C Rly Workshop, Jhansi v Vishwanath, AIR 1970 SC 488 (490). (Nature of work done by
persons in railway workshop); Roshanlal v Ishwar Dass, AIR 1962 SC 646 (659); see also Chandra
Dutt v Shantiram, AIR 1967 Pat 360 , 361 (FB); Bhakti Sudha v Manorama, AIR 1972 Pat 22 (26)
(Finding as to possession); Tilak Pakhira v Satish Chandra, AIR 1971 Cal 180 (DB) : AIR 1971 Cal
169 (171) : AIR 1971 Guj 214 (223); Murli Singh v State Bank Dholpur, AIR 1971 Raj 6 (8); Ashoka
Construction Co v UOI, AIR 1970 Ass 73 (75); RD Gupta v The UOI, AIR 1970 Ass 35 (38) : 1970
Ker LR 36 (44); SP Krishna Rao v Thimurshakhan, AIR 1970 Mad 135 (136); Rameshwar Lal v
Jogendra Das, AIR 1970 Ori 76 (81); (1970) 72 Punj LR 64 ; Bhomilal v Kaushila, AIR 1970 Raj 83
(85).
98 1967 AWR (HC) 239 (240).
99 Rajbir Kaur v Chokosiri & Co, AIR 1988 SC 1845 (1856) : (1989) 1 SCC 19 .
100 Harbans Singh v Punjab State, AIR 1960 Punj 182 (186); Antarigami Khadanga v Ketake Debi,
AIR 1952 Ori 173 (DB).
101 Keshardeo Chamria v Radha Kissen, AIR 1953 SC 23 (28) : 1953 SCR 136 : (1953) 1 MLJ 100
: 1953 ALJ 401 .
102 Baldevdas Shivlal v Filmistan Distributors (India) P Ltd, AIR 1970 SC 406 (409) : (1969) 2
SCC 201 ; Sailendra Nath Neogy v Purnendu Sen, AIR 1971 Cal 169 (171); K.N. Ramkrishna v C
Keral Chand, AIR 1971 Mad 150 (155).
103 Banarsi Dass v Ram Rakhi, AIR 1971 Punj 360 (361) (A technical objection as to absence of
pecuniary jurisdiction in Trial Court to hear pauper application cannot be allowed for the first
time in revision if application has been properly disposed of without prejudice to any party on
merits). UOI v Rajasthan Supplying Agencies, AIR 1968 AP 327 (328).
104 Tarsema Textile Traders v Tirlok Singh Sadhu Singh, AIR 1962 Punj 470 (472); Mula v Babu
Ram, AIR 1969 All 573 (676).
105 S Thakar Singh v Karriers Finance (Pvt) Ltd, 1969 Punj LR (D) 213 .
106 Jyoti Vaswani v Reshma Vaswani, AIR 2015 Meg 29 .
107 FCI v Yadav Engineer & Contractor, AIR 1982 SC 1302 (1314) : (1982) 2 SCC 499 : 1982 Mah
LJ 803 .
108 Vishesh Kumar v Shanti Prasad, AIR 1980 SC 892 (897) : (1980) 2 SCC 378 : 1980 ALJ 411 :
(1980) 6 ALR 233 .
109 Nari Gopal Goswami v Devendra Nath Goswami, AIR 2011 Jhar 78 .
110 Pavan Sachdeva v SMS Pharmaceuticals Ltd, (2008) 10 SCC 803 (804).
111 Wada Arm Asbestos (P) Ltd v Gujarat Water Supply & Sewerage Board, (2009) 2 SCC 432 .
112 Kashamma v Mahadevappa, 2008 (1) Kar LJ 652 (653, 655-56) (DB).
113 Shiv Shakti Co-operative Housing Society, Nagpur v Swaraj Developers, AIR 2003 SC 2434
(Para 32).
114 Nawab Shaugafath Ali Khan v Nawab Imdad Jah Bahadur, (2009) 5 SCC 162 (178).
115 Haji Idris Ali Laskar v Md Ibrahim Ali Laskar, AIR 2015 Gau 96 .
116 Ghulam Mohammad Bhat v Abdul Rahim Sheikh, AIR 2012 J&K 86 .
117 Devi Ram v Murli, AIR 1953 HP 89 ; see also Patna Municipal Corporation v Brij Rajkrishna,
AIR 1958 Pat 22 (DB).
118 Shantilal Chunilal v Shantilal Fulchand, AIR 1963 Guj 195 .
119 SS Khanna v FJDhillon, AIR 1964 SC 497 (501) : (1964) 7 SCR 409 : 1963 ALJ 1068 ; see
also Ramanata v Judge Comara Court, AIR 1966 Goa 1 (FB).
120 Chunilal v Dharamhsi, AIR 1969 Guj 213 .
121 Prem Bakshi v Dharam Dev, AIR 2002 SC 559 (561) : (2002) 2 SCC 2 .
122 Khushro S Gandhi v NA Guzder, AIR 1970 SC 1468 (1471) : (1969) 2 SCR 959 .
123 Gayatri Devi v Shashi Pal Singh, AIR 2005 SC 2342 ; Shiv Shakti CooP Housing Socieity v
Swaraj Developers, AIR 2003 SC 2434 Ravindra v Ashok, AIR 2004 SC 904 (followed).
124 Subba Rao v Koteswara Rao, AIR 1963 AP 37 .
125 Chainna Merkathian v Ayyavoo, AIR1966 Mad 327.
126 1968 SCD 374 .
127 Khanna v Dhillon, AIR 1964 SC 497 : (1964) 4 SCR 409 : 1963 ALJ 1068 .
128 Mohamad Tariq Mia v Ghulam Qadir Bhat, AIR 2012 J&K 1 .
129 Viddyavati v Devi Das, AIR 1977 SC 397 (400) : (1977) 1 SCC 293 : (1977) 2 SCR 182 .
130 Municipal Corpn of Delhi v Suresh Chandra, AIR 1976 SC 2621 (2623) : (1976) 4 SCC 719 .
131 Pandurang v Maruti, AIR 1966 SC 153 : (1966) 1 SCR 102 .
132 Bharat Lal Baranwal v Virendra Kr Agrawal, AIR 2003 SC 1056 (1759) : (2003) 2 SCC 343 .
133 Nawal Kishore Tulara v Dinesh Chandra Gupta, AIR 2001 SC 2542 : (2001) 6 SCC 110 .
134 Bank of Baroda v RMPatwa, AIR 1996 SC 1662 : (1996) 2 SCC 468 .
135 State of MP v Azad Bharat Finance Co, AIR 1967 SC 276 (278) : 1966 Supp SCR 473 : 1967
Jab LJ 153 .
136 Tongana Gaon Tea Company Pvt Ltd v Associated Tea Industries, AIR 2015 Cal 304 .
137 Shriram Engineering Company v State of Chattisgarh, AIR 2015 Chh 183
138 Masjid Kacha Tank, Nahan v T Mohd, AIR 1991 SC 455 : 1991 Supp (2) SCC 270 ; see also
Rai Chand Jain v Chandra Kanta Khosla, AIR 1991 SC 744 : (1991) 1 SCC 422 .
139 Kanchana v P Manian (2010) 15 SCC 515 .
140 SF Engineer v Metal Box India Ltd AIR 2014 SC 2189 .
141 Vinod Kumar Arora v Surjit Kaur, AIR 1987 SC 2179 (2184).
142 Chandmal v Ram Chandra, AIR 1991 SC 1594 (1597) : (1991) 3 SCC 130 .
143 Ram Autar v Ram Dhani, AIR 1997 SC 107 (109) : (1997) 2 SCC 263 .
144 Bhool Chand v Kay Pee Cee Investments, AIR 1991 SC 2053 : (1991) 1 SCC 343 .
145 Kuldip Singh v State of Punjab, AIR 1956 SC 391 : 1956 SCR 125 : 58 Punj LR 595; see also
Eastern Tea Estate v Silchar Municipality, AIR 1967 Ass and Nag 1.
146 Kasturi v N Salivateswaran, AIR 1958 SC 507 (512); see also Anand Behera v Neelkamal, AIR
1975 Ori 173 (174).
147 DLFHousing & C Co v Sarup Singh, AIR 1971 SC 2324 (2327) : (1969) 3 SCC 807 .
148 Annappa Reddy v S suresh AIR 1995 Kant 119.
149 Pavan Sachdeva v SMS Pharmaceuticals Ltd, (2008) 10 SCC 803 (804).
150 Sebanti Goswami v Sagnik Goswami, AIR 2002 Cal 48 (50, 51).
151 P Atchamma v TBavanna, AIR 1969 AP 196 (DB); see also Lajjaram v Khubiram, AIR 1969
Raj 9 .
152 A Murlidhar v Seshalamma, AIR 1956 Hyd 31 (DB); see also Labanya Debi v Govinda Malik,
AIR 1960 Ori 66 .
153 (1963) 4 Guj LR 783; see also Dund Bahadur v Lal Bahadur, AIR 1969 Pat 181.
154 Vasudev Reddy v Kankata Teddy, AIR 1963 AP 232 .
155 Bai Galal v Vrajlal, AIR 1969 Guj 159.
156 Ratilal Balabhai Nazar v Ranchhodbhai S Patil, AIR 1966 SC 439 ; Manindra L&B Corpn. v BN
Banerjee, AIR 1964 SC 1336 ; Abbasbhai v Gulamnabi, AIR 1964 SC 1341 : (1964) 5 SCR 157 :
(1964) 5 Guj LR 55; Jaswantrai M Chand v A Bapalal, AIR 1965 SC 1419 : (1964) 3 SCR 495 ;
Balkrishna Udayar v Vasudeva Aiyar, AIR 1917 PC 71 ; Joy Chand Lal v K Chaudhary, AIR 1949 PC
239 ; Panduranga D Chaugule v Maruti Hari Jadhav, AIR 1966 SC 153 : (1966) 1 SCR 102 : 1965
MPLJ 852 relied on.
157 HP Corpn Ltd v Pinkcity Midway Petroleums, AIR 2003 SC 2881 (2889) : (2003) 6 SCC 503 .
158 Prem Raj v DLFH&C Ltd, AIR 1968 SC 1355 (1358) : (1968) 3 SCR 648 .
159 K Urmila v Ram Kumar Verma, AIR 1998 SC 1188 : (1998) 3 SCC 57 .
160 Savithri Amma Seethamma v Aratha Karthy, AIR 1983 SC 318 : (1983) 1 SCC 401 .
161 Hukumchand Amolikchand Longde v Madhava Balaji Poddar, AIR 1983 SC 540 : 1984 Supp
SCC 600 .
162 Food Corporation of India v Yadav Engineer and Contractor, (1982) 2 SCC 499 .
163 Ghanshyambhai K sathwara v Sonubhai Baliram Patil, AIR 2006 Guj 109 (111).
164 Abdul Gaffar v HR Srinivas Setty, (2000) 9 SCC 367 (368).
165 P Udayani Devi v VVRajeshwara Prasad Rao, AIR 1995 SC 1357 (1359) : (1995) 3 SCC 252 .
166 Gurdial Singh v Raj Kumar Aneja, AIR 2002 SC 1003 : (2002) 2 SCC 445 .
167 Brij Gopal Mathur v Kishan Gopal, AIR 1973 SC 1096 : (1973) 1 SCC 635 ; see also SS
Khanna v FJDillon, AIR 1964 SC 497 : (1964) 4 SCR 409 .
168 Mirza Majid Hussain v State of MP, AIR 1995 SC 2243 : (1995) 2 SCC 422 .
169 Shivdeo Singh v State of Punjab, AIR 1963 SC 1909 (1911).
170 Reliable Water SS of India v UOI, AIR 1971 SC 2083 (2085) : (1972) 4 SCC 168 .
171 Inderjeet v Kulbhushan Jain, (2009) 15 SCC 79 (80).
172 Surender v Gadda Balaiah, (2011) 2 SCC 730 (733).
173 Ram Kumar v State of Rajasthan, (2008) 10 SCC 73 (80).
174 Abdul Rehman Shora v State of J&K, (2009) 2 SCC 617 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 116. Part to apply only to
certain High Courts
© 2020 LexisNexis
PART IX Special Provisions Relating to the 1[High Courts] 2[not being the
Court of a Judicial Commissioner]
S. 116. Part to apply only to certain High Courts
This Part applies only to High Courts 2 [not being the Court of a Judicial
Commissioner].
1 Substituted for "Chartered High Court" by CP Code (Amendment) Act 2 of 1951, Section 14
(w.e.f. 1-4-1951).
2 Subs for "which are, or may hereafter be constituted by His Majesty by Letters Patent"
successively by IAO 1950, Act 2 of 1951 and AL No. (2) Order 1956, Section 14 (w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 117. Application of Code to
High Courts
© 2020 LexisNexis
S. 117. Application of Code to High Courts
Save as provided in this Part or in Part X or in rules, the provisions of this Code shall
apply to such High Courts.
(w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 118. Execution of decree
before ascertainment of costs
© 2020 LexisNexis
S. 118. Execution of decree before ascertainment of costs
Where any such High Court considers it necessary that a decree passed in the
exercise of its original civil jurisdiction should be executed before the amount of the
costs incurred in the suit can be ascertained by taxation, the Court may order that the
decree shall be executed forthwith, except as to so much thereof as relates to the
costs;
and, as to so much thereof as relates to the costs, that the decree may be executed as
soon as the amount of the costs shall be ascertained by taxation.
(w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 119. Unauthorised persons
not to address Court
© 2020 LexisNexis
S. 119. Unauthorised persons not to address Court
Nothing in this Code shall be deemed to authorise any person on behalf of another to
address the Court in the exercise of its original civil jurisdiction, or to examine
witnesses, except where the Court shall have in the exercise of the power conferred
by its charter authorised him so to do, or to interfere with the power of the High Court
to make rules concerning advocates, vakils and attorneys.
(w.e.f. 1-4-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 120. Provisions not
applicable to High Court in original civil jurisdiction
© 2020 LexisNexis
S. 120. Provisions not applicable to High Court in original civil jurisdiction
(1) The following provisions shall not apply to the High Court in the exercise of its
original civil jurisdiction, namely, Sections 16, 17 and 20.
3[* * *]
COMMENT.—
Under this section, sections 16, 17 and 20 of the Code do not apply to a High Court in
the exercise of its original civil jurisdiction. Under clause 12 of Letters Patent of
Bombay High Court, 1865, a place where the defendant, or each of the defendants,
where there are more than one, at the commencement of the suit, carry on business
would be a place where the Court would have jurisdiction.4
Where the Head Office of a defendant company is at place A outside the jurisdiction of
the High Court at B but has branch office within such jurisdiction, a suit can be brought
in High Court at B and the deeming provision of section 20 inclusive of Explanation II
are not applicable.5
(w.e.f. 1-4-1951).
3 Sub-s. (2) rep. by Act 3 of 1909, section 127 and sch. III.
4 Food Corpn of India v Evdomen Corpn, AIR 1999 SC 2352 : (1999) 2 SCC 446 .
5 Babu Lall v Caltex (India) Ltd, AIR 1967 Ca1204 (209).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 121. Effect of rules, in First
Schedule
© 2020 LexisNexis
PART X Rules
S. 121. Effect of rules, in First Schedule
The rules in the First Schedule shall have effect as if enacted in the body of this Code
until annulled or altered in accordance with the provisions of this Part.
COMMENT.—
The re-arrangement of the Code into the "body of the Code" and "Rules" is for the
purpose of giving a much-needed elasticity to judicial procedure, and to enable minor
defects to be remedied, as they arise, without resort to the Legislature.1
1 See the Report of the Select Committee.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 122. Power of certain High
Courts to make rules
© 2020 LexisNexis
PART X Rules
S. 122. Power of certain High Courts to make rules
2[3High Courts [not being the Court of a judicial Commissioner]], 4[* * *] may, from
time to time after previous publication, make rules regulating their own procedure and
the procedure of the Civil Courts subject to their superintendence, and may by such
rules annul, alter or add to all or any of the rules in the First Schedule.
COMMENT.—
Sections 122 to 128 excepting section 125 empower the High Courts to frame the rules
for regulating their own procedure and the procedure of the Civil Courts subject to their
superintendence. Section 128 lays down that the rules framed by them must not be
inconsistent with the provisions in the body of the Code. (Body of Code means sections
of the Code).5
Further, they are subject to the previous approval of the authorities mentioned in
section 126. Section 129 provides for rules to be made by High Courts as to their
original Civil Procedure. These rules may be inconsistent with the provisions in the
body of the Code. But they must not be inconsistent with the Letters Patent
establishing those Courts.
Entitlement of deduction of time.—
A party which applies for leave to appeal to the Supreme Court under Article 133, is
entitled to a deduction of the time taken in obtaining copies of the judgment and the
order appealed against. Though under Chapter 33-A, rule 4 of the Calcutta High Court
Rules, it is not necessary to annex copies of the judgment or order.6
Section 122 of the Code of Civil Procedure, read with Madras High Court
original Side Rules, Or XXV rule 31.—
In this case application was made for grant of letters of administration by one or some
of next-of-kin only and there were other next-of-kin members also entitled to the letters
of administration. It was held that the applicant was required to file affidavit that notice
had been issued to the other next-of-kin.7
2 Subs. for the words "Courts which are High Courts for the purposes of the Government of
India Act, 1935" successively by IAO 1950, Code of Civil Procedure (Amendment) Act 2 of 1951
section 15 and AL (No. 2) Order 1956.
3 Subs. by the Adaptation of Laws (No. 2) Order, 1956, "for Part A States and Part B States". The
words in italics were inserted by (Amendment) Act 2 of 1951, section 15 (w.e.f. 1-4-1951).
4 The words "and the Chief Court of Lower Burma", rep by Act 11 of 1923, section 3 and sch. II.
5 Chandra Bhushan v Jayatri Devi, AIR 1969 All 142 (FB).
6 Addl Collector of Customs v Best & Co, AIR 1966 SC 1713 (1717) : 1966 Supp SCR 46; Jijibhoy
N Surty v TS Chettyar, AIR 1928 PC 103 : 6 Rang 302 relied on.
7 RV Venkatesan v D Jenbagalakshmi, AIR 2012 Mad 94 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 123. Constitution of Rule
Committees in certain [States].
© 2020 LexisNexis
PART X Rules
S. 123. Constitution of Rule Committees in certain 8[States].
(1) A Committee, to be called the Rule m Committee, shall be constituted at 9[the

town which is the usual place of sitting of each of the High Courts 10[***]
referred to in Section 122].
(2) Each such Committee shall consist of the following persons, namely:—
(a) three Judges of the High Court established at the town at which such
Committee is constituted, one of whom at least has served as a District
Judge or 11[* * *] a Divisional Judge for three years,
12
[(b) two legal practitioners enrolled in that Court],
13
[(c)] a Judge of a Civil Court subordinate to the High Court, 14[***]
13[15[***]
(3) The members of each Committee shall be appointed by the 16[High Court] who
shall also nominate one of their number to be President:
17[***]
(4) Each member of any such Committee shall hold office for such period as may
be prescribed by the 18[High Court] in this behalf; and (3) whenever any
member retires, resigns, dies or ceases to reside in the State in which the
Committee was constituted, or becomes incapable of acting as a member of
the Committee, the said 18[High Court] may appoint another person to be a
member in his stead.
(5) There shall be a Secretary to each such Committee, who shall be appointed by
the 18[High Court] and shall receive such remuneration as may be provided in
this behalf 19[by the State Government].
STATE AMENDMENTS
Assam and Nagaland.— The following amendments were made by Code of Civil
Procedure (Assam Amendment) Act, 1953 (Assam Act 8 of 1953), Section 2, dated 18-4-
1953.
For clause (a) of sub-section (2) of Section 123 substitute the following clause namely,
—
"(a) three judges of the High Court established at the town at which such committee is
constituted, provided that the Chief Justice may appoint only two Judges of the High
Court on the Committee if the number of Judges of the High Court does not exceed
three".
Tamil Nadu.— The following amendments were made by Tamil Nadu Act 15 of 1970,
Section 2, dated 10-6-1970.
(i) In sub-Section (2), in clause (b) for the words "two legal practitioners" substitute
the words "three legal practitioners".
(ii) In clause (d), omit the word "Madras"—Tamil Nadu Act (15 of 1970) (10-6-1970).
Sikkim.— The following modifications were made by Gazette of India, dated 18-10-1982,
Part II, Section 3(ii), Extra., page 2 (No. 476).
In its extension to the State of Sikkim omit Section 123.
8 Subs. for "Provinces" by IAO 1950.

9 Subs. by Act 13 of 1916, Section 2 and Sch. for "each of the towns of Calcutta, Madras,
Bombay, Allahabad, Lahore and Rangoon".
10 The words "and of the Chief Court" were omitted by IAO 1948.
11 The brackets and words "(in Burma)" rep. by Act 11 of 1923, Section 3 and Sch. II.
12 Subs. for clauses (b) and (c) by Code of Civil Procedure (Amendment) Act 2 of 1951 Section
16.
13 Clause (d) relettered as clause (c) and (d) by Act 2 of 1951, Section 16.
14 The word "and" omitted by Act 38 of 1978, section 3 and Sch. II (w.e.f. 26-11-1978).
13 Clause (d) relettered as clause (c) and (d) by Act 2 of 1951, Section 16.
15 Clause (d) omitted by Act 38 of 1978, Section 3 and Sch. II.
16 Subs. for "Chief Justice or Chief Judge" by Act 104 of 1976, section 44(i) (w.e.f. 1-2-1977).
17 Proviso omitted by Act 104 of 1976, Section 44(ii) (w.e.f. 1-2-1977).
18 Subs. for "Chief Justice or Chief Judge" by Code of Civil Procedure (Am) Act 104 of 1976,
Section 44(i) (w.e.f. 1-2-1977).
Section 44(i) (w.e.f. 1-2-1977).
Section 44(i) (w.e.f. 1-2-1977).
19 Subs. by A.O. 1937 for "by the G.G. in C. or by the L.G., as the case may be".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 124. Committee to report
to High Court
© 2020 LexisNexis
PART X Rules
S. 124. Committee to report to High Court
Every Rule Committee shall make a report to the High Court established at the town at
which it is constituted on any proposal to annul, alter or add to the rules in the First
Schedule or to make new rules, and before making any rules under Section 122 the
High Court shall take such report into consideration.
MODIFICATIONS
Sikkim.— The following modifications were made by Gazette of India, dated 18-10-1982,
Part II, Section 3(ii), Extra., page 2 (No. 476).
In its extension to the State of Sikkim, omit Section 124.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 125. Power of other High
Courts to make rules
© 2020 LexisNexis
PART X Rules
S. 125. Power of other High Courts to make rules
High Courts, other than the Courts specified in Section 122, may exercise the powers
conferred by that section in such manner and subject to such conditions [20 as, 21[the
State Government], may determine]:
Provided that any such High Court may, after previous publication, make a rule
extending within the local limits of its jurisdiction any rules which have been made by
any other High Court.
20 Subs. by CPC (Amendment) Act 38 of 1920, Section 2 and sch. I, for "as the G.G. in C. may
determine".
21 Subs. by the A.O. 1937 for "in the case of Judicial Comissr. of Coorg. the G.G. in C. and in
other cases the L.G."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 126. Rules to be subject to
approval
© 2020 LexisNexis
PART X Rules
[S. 126. Rules to be subject to approval
Rules made under the foregoing provisions shall be subject to the previous approval
of the Government of the 22[State] in which the Court whose procedure the rules
regulate is situate or, if that Court is not situate in any 23[State], to the previous
approval of the 24[Central Government].]

24 Subs. for "Governor-General" by ibid.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 127. Publication of rules
© 2020 LexisNexis
PART X Rules
S. 127. Publication of rules
Rules so made and 25[approved] shall be published in the 26[Official Gazette], and
shall from the date of publication or from such other date as may be specified have
the same force and effect, within the local limits of the jurisdiction of the High Court
which made them, as if they had been contained in the First Schedule.
COMMENT.—
Where a rule in the Schedule of the Code had been validly amended by the Punjab High
Court, and the Punjab High Court was replaced by the Delhi High Court, the rule would
continue to apply to the Courts within the jurisdiction of the Delhi High Court.27
25 Subs. by Code of Civil Procedure (Amendment) Act 24 of 1917, Section 2 and sch. 1, for
"sanctioned".
26 Subs. by the A.O. 1937, for "Gazette of India or in the local official Gazette, as the case may
be, strictly the substitution would read "Official Gazette or in the Official Gazette, as the case
may be", but the later words have been omitted as being redundant.
27 Radhey Shyam v Baba Joginder, AIR 1969 Del 142 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 128. Matters for which
rules may provide
© 2020 LexisNexis
PART X Rules
S. 128. Matters for which rules may provide
(1) Such rules shall be not inconsistent with provisions in the body of this Code,
but,
subject thereto, may provide for any matters relating to the procedure of Civil Courts.
(2) In particular, and without prejudice to the generality of the powers conferred by
sub-section (1), such rules may provide for all or any of the following matters,
namely:—
(a) the service of summons, notices and other processes by post or in any
other manner either generally or in any specified areas, and the proof of
such service;
(b) the maintenance and custody, while under attachment, of livestock and
other movable property, the fees payable for suchmaintenance and
custody, the sale of such live-stock and property, and the proceeds of
such sale;
(c) procedure in suits by way of counter-claim, and the valuation of such

suits for the purposes of jurisdiction;
(d) procedure in garnishee and charging orders either in addition to, or in

substitution for, the attachment and sale of debts;
(e) procedure where the defendant claims to be entitled to contribution or

indemnity over against any person whether a party to the suit or not;
(f) summary procedure—
(i) in suits in which the plaintiff seeks only to recover a debt or

liquidated demand in money payable by the defendant, with or
without interest, arising—
on a contract express or implied; or
on an enactment where the sum sought to be recovered is a fixed

sum of money or in the nature of a debt other than a penalty; or
on a guarantee, where the claim against the principal is in respect

of a debt or a liquidated demand only; or
on a trust; or
(ii) in suits for the recovery of immovable property, with or without a

claim for rent or mesne profits, by a landlord against a tenant
whose term has expired or has been duly determined by notice to
quit, or has become liable to forfeiture for non-payment of rent, or
against persons claiming under such tenant;
(g) procedure by way of originating summons;

(h) consolidation of suits, appeals and other proceedings;
(i) delegation to any Registrar, Prothonotary or Master or other official of

the Court of any judicial, quasi-judicial and non-judicial duties; and
(j) all forms, registers, books, entries and accounts which may be
necessary or desirable for the transaction of the business of Civil
Courts.
COMMENT.—
This section enacts that the rules framed under the provisions of this Part may provide
for any matter relating to the procedure of Civil Court and it indicates the sort of rules
that may be framed.28
A rule framed under the provisions of this part must not be inconsistent with the
provisions in the body of the Code.29 The words "inconsistent with body of the code"
mean "inconsistent with the sections of the Code" and not with the rules in the First
Schedule which can be altered by the High Court.30
28 Menkabai v Monohar Mukundrao, AIR 1971 Bom 21 : 73 Bom LR 473.

29 Dharmadevan v Kesavan, AIR 1971 Ker 221 .
30 Chander Bhusan v Gayatri, AIR 1969 All 142 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 129. Power of High Courts
to make rules as to their original civil procedure
© 2020 LexisNexis
PART X Rules
S. 129. Power of High Courts to make rules as to their original civil procedure
Notwithstanding anything in this Code, any High Court 31[not being the Court of a
Judicial Commissioner], may make such rules not inconsistent with the Letters Patent
32[or order] 33[or other law] establishing; it to regulate its own procedure in the
exercise of its original civil jurisdiction as it shall think fit, and nothing herein
contained shall affect the validity of any such rules in force at the commencement of
this Code.
COMMENTS—Precedent—
Stare decisions—Applicability.—
The rules regulating procedure of the High Court on its original side need not be
consistent with the provisions of the Code. Such view has been consistently followed
by the majority of the High Courts in the country. The principle of stare decisis therefore
squarely applies.34
31 Subs. by AL No 2 Order 1956 for "for a Part A State or a Part B State" Which were Subs. for
"constituted by His Majesty by Letters Patent" by IAO 1950 & Code of Civil Procedure
(Amendment) Act 2 of 1951.
32 Ins. by IAO 1950.
33 Ins. by Civil Procedure Code (Am) Act 2 of 1951 Section 17 (w.e.f. 1-4-1951).
34 II Telecom Ltd v Motorola IHC, AIR 2005 SC 514 (525).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 130. Power of other High
Courts to make rules as to matters other than procedure
© 2020 LexisNexis
PART X Rules
35[S.130. Power of other High Courts to make rules as to matters other than
procedure
A High Court 36[not being a High Court fo which Section m applies] may, with the
previous approval of the 37[State Government], make, with respect to any matter other
than procedure any rule which a High Court 38[for a 39[* * *] a State] might under
40[Article 227 of the Constitution] make with respect to any such matter for any part
of the territories under its jurisdiction which is not included within the limits of a
Presidency-town.]
COMMENT.—
Where defendant had disclosed good defence against eviction on the ground of non-
service of notice, he was entitled to defend suit unconditionally.41
35 Subs. by the A.O. 1937 for the former section.

36 Subs. for "not constituted by His Majesty by Letters Patent" by IAO 1950.
38 Subs. for "so constituted" by IAO 1950.
39 The words "Part A" omitted by AL (No 2) Order 1956.
40 Subs. for "Section 224 of the Government of India Act, 1935" by IAO 1950.
41 Karoria Jute & Industries Ltd v Saraf Agencies Pvt Ltd, AIR 2011 Cal 77 (80) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 131. Publication of rules
© 2020 LexisNexis
PART X Rules
S. 131. Publication of rules
Rules made in accordance with Section 129 or Section 130 shall be published in the
42[Official Gazette], and shall from the date of publication or from such other date as
may be specified have the force of law.
42 Subs. by the A.O. 1937, for "Gazette of India or in the local official Gazette, as the case may
be". Strictly the substitution would read "Official Gazette or in the Official Gazette, as the case
may be", but the later words have been omitted as being redundant.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 132. Exemption of certain
women from personal appearance
© 2020 LexisNexis
PART XI Miscellaneous
S. 132. Exemption of certain women from personal appearance
(1) Women who, according to the customs and manners of the country, ought not
to be compelled to appear in public shall be exempt from personal appearance
in Court.
(2) Nothing herein contained shall be deemed to exempt such women from arrest
in execution of civil process in any case in which the arrest of women is not
prohibited by this Code.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 133. Exemption of other
persons
© 2020 LexisNexis
S. 133. Exemption of other persons
1
[(1) The following persons shall be entitled to exemption from personal
appearance in Court, namely:—
(i) the President of India;
(ii) the Vice-President of India;
(iii) the Speaker of the House of the People;
(iv) the Ministers of the Union;
(v) the Judges of the Supreme Court;
(vi) the Governors of States and the administrators of Union territories;
(vii) the Speakers of the State Legislative Assemblies;
(viii) the Chairman of the State Legislative Councils;
(ix) the Ministers of States;
(x) the Judges of the High Courts; and
(xi) the persons to whom Section 87B applies.]
2
[(2) * * *]
(3) Where any person 3[* * *] claims the privilege of such exemption, and it is
consequently necessary to examine him by commission, he shall pay the costs
of that commission, unless the party requiring his evidence pays such costs.
1 Subs. by Code of Civil Procedure (Amendment) Act 66 of 1956, section 12 (w.e.f. 1-1-1957).
2 Sub-section (2) omitted by Code of Civil Procedure (Amendment) Act 66 of 1956, Section 12
(w.e.f. 1-1-1957).
3 The words "so exempted" omitted by Act 66 of 1956, Section 12 (w.e.f. 1-1-1957).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 134. Arrest other than in
execution of decree
© 2020 LexisNexis
S. 134. Arrest other than in execution of decree
The provisions of Sections 55, 57 and 59 shall apply, so far as may be, to all persons
arrested under this Code.
Calcutta.—Insert the words "or the Presidency Small Cause Courts Act, 1882", after the
words "under this Code". Vide Cal Gaz. Pt. I, dated April 20, 1967.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 135. Exemption from arrest
under civil process
© 2020 LexisNexis
S. 135. Exemption from arrest under civil process
(1) No Judge, Magistrate or other judicial officer shall be liable to arrest under civil
process while going to, presiding in, or returning from, his Court.
(2) Where any matter is pending before a tribunal having jurisdiction therein, or
believing in good faith that it has such jurisdiction, the parties thereto, their
pleaders, mukhtars, revenue-agents and recognised agents, and their
witnesses acting in obedience to a summons, shall be exempt from arrest
under civil process other than process issued by such tribunal for contempt of
Court while going to or attending such tribunal for the purpose of such matter,
and while returning from such tribunal.
(3) Nothing in sub-section (2) shall enable a judgment-debtor to claim exemption

from arrest under an order for immediate execution or where such judgment-
debtor attends to show cause why he should not be committed to prison in
execution of a decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 135A. Exemption of
members of legislative bodies from arrest and detention under civil process
© 2020 LexisNexis
4[S.135A. Exemption of members of legislative bodies from arrest and

detention under civil process
5
[(1) No person shall be liable to arrest or detention in prison under civil process—
(a) if he is a member of—
(i) either House of Parliament, or
(ii) the Legislative Assembly or Legislative Council of a State, or
(iii) a Legislative Assembly of a Union territory,
during the continuance of any meeting of such House of

Parliament or, as the case may be, of the Legislative Assembly
or the Legislative Council;
(b) if he is a member of any committee of—
(ii) the Legislative Assembly of a State or Union territory, or
(iii) the Legislative Council of a State,
during the continuance of any meeting of such committee;
(c) if he is a member of—
(ii) a Legislative Assembly or Legislative Council of a State having

both such Houses,
during the continuance of a joint sitting, meeting, conference or

joint committee of the Houses of Parliament or Houses of the
State Legislature, as the case may be; and during the forty days
before and after such meeting, sitting or conference.]
(2) A person released from detention under sub-section (1) shall, subject to the
provisions of the said sub-section, be liable to re-arrest and to the further
detention to which he would have been liable if he had not been released under
the provisions of sub-section (1).]
COMMENT.—
Sub-section (1) of this section was substituted by the Amending Act of 1976. The
period of 14 days has been raised to forty days in conformity with the position
prevailing in England in relation to the members of the House of Commons.
4 Ins. by Code of Civil Procedure (Amendment) Act 23 of 1925, Section 3.
5 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 45 for sub-section
(1), (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 136. Procedure where
person to be arrested or property to be attached is outside district
© 2020 LexisNexis
S. 136. Procedure where person to be arrested or property to be attached is

outside district
(1) Where an application is made that any person shall be arrested or that any
property shall be attached under any provision of this Code not relating to the
execution of decrees, and such person resides or such property is situate
outside the local limits of the jurisdiction of the Court to which the application
is made, the Court may, in its discretion, issue a warrant of arrest or make an
order of attachment, and sent to the District Court within the local limits of
whose jurisdiction such person or property resides or is situate a copy of the
warrant or order, together with the probable amount of the costs of the arrest
or attachment.
(2) The District Court shall, on receipt of such copy and amount, cause the arrest
or attachment to be made by its own officers, or by a Court subordinate to
itself, and shall inform the Court which issued or made such warrant or order
of the arrest or attachment.
(3) The Court making an arrest under this section shall send the person arrested
to the Court by which the warrant of arrest was issued, unless he shows cause
to the satisfaction of the former Court why he should not be sent to the latter
Court, or unless he furnishes sufficient security for his appearance before the
latter Court or for satisfying any decree that may be passed against him by that
Court, in either of which cases the Court making the arrest shall release him.
(4) Where a person to be arrested or movable property to be attached under this

section is within the local limits of the ordinary original civil jurisdiction of the
High Court of Judicature at Fort William in Bengal or at Madras or at Bombay
6[* * *] the copy of the warrant of arrest or of the order of attachment, and the
probable amount of the costs of the arrest or attachment, shall be sent to the
Court of Small Causes of Calcutta, Madras 7[or Bombay], as the case may be,
and that Court, on receipt of the copy and amount, shall proceed as if it were
the District Court.
Calcutta.—In sub-rule (1) insert the words "or the Presidency Small Cause Courts Act,
1882", after the words "provision of the Code" and before the words" "not relating to the
execution". Vide Cal. Gaz. Pt. I, dated April 20, 1967.
COMMENT.—
This section provides only a mode of affecting attachment of properties not within the
local limits of the jurisdiction of the Court which has seisin of the suit. It only
prescribes the procedure and does not affect the competence of a Court to levy
attachment.8
An order for arrest or attachment must be sent to the District Court within the local
limits of whose jurisdiction the person to be arrested resides or the property to be
attached is situated.9
The failure on the part of the Court issuing attachment order, in sending the attachment
order and the connected papers to the District Court does not invalidate the
attachment order as such.10
A non-compliance with procedure laid down in sub-section (1) will amount only to an
irregularity which can be waived.11
As soon as a District Court effects the attachment of property and informs the Court
who issued the order of attachment it becomes functus officio.12 The District Court,
attaching property under this section does not have the power to release the property
from attachment even if security is furnished.13
6 The words "or of the Chief Court of Lower Burma", omitted by the A.O. 1937.
7 Subs. by the A.O. 1937, for "Bombay or Rangoon".
8 Chimandas Methuram v Manager Mahadevappa Firm, AIR 1961 AP 417 .
9 Bhagwan Das v Santosh Singh, AIR 1968 Punj 461 (FB).
10 Rajendra Singh v Ramadhar Singh, AIR 2001 SC 2220 : (2001) 6 SCC 213 .
11 Mariamma v Ittoop Pouto, AIR 1952 Trav Co 109 : 1952 KLT 116 (FB); see also MO
Thomagutty v Madathie Nanu, AIR 1953 Ker 193 .
12 MG Bros v Tolchan Parswachand, AIR 1963 Mys 147.
13 MG Bros v Tolchan Parswachand, AIR 1963 Mys 147 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 137. Language of
subordinate Courts
© 2020 LexisNexis
S. 137. Language of subordinate Courts
(1) The language which, on the commencement of this Code, is the language of
any Court subordinate to a High Court shall continue to be the language of
such subordinate Court until the 14[State Government] otherwise directs.
(2) The 15[State Government] may declare what shall be the language of any such
Court and in what character applications to and proceedings in such Courts
shall be written.
(3) Where this Code requires or allows anything other than the recording of
evidence to be done in writing in any such Court, such writing may be in
English; but if any party or his pleader is unacquainted with English, a
translation into the language of the Court shall, at his request, be supplied to
him; and the Court shall make such order as it thinks fit in respect of the
payment of the costs of such translation.
STATE AMENDMENTS
Rajasthan.— The following amendments were made by Rajasthan Act 7 of 1983, Section
2, dated 16-5-1983.
In its application to State of Rajasthan, in Section 137 for sub-section (3), substitute as
follows:
"(3) Wherever this Code requires or allows anything other than the recording of
evidence to be done in writing in any such Court, such writing shall be in Hindi in
Devnagri Script with the international form of Indian numerals:
Provided that the Court may in its discretion accept such writing in English on the
undertaking of the party filing such writing, to file a Hindi translation of the same, within
such time as may be granted by the Court and the opposite party shall have a right to
have a copy of such writing in Hindi".
Uttar Pradesh.— The following amendments were made by Uttar Pradesh Act, 17 of 1970,
In Section 137, in sub-section (3) insert the following proviso:—
Provided that with effect from such date as the State Government in consultation with
the High Court may by notification in the Gazette appoint the language of every
judgment, decree, or order passed or made by such Courts or classes of Courts
subordinate to the High Court and in such classes of cases as may be specified shall
only be in Hindi in Devnagri Script with the international form of Indian numerals.
COMMENT.—
This section has come up for consideration before a number of High Courts with
regard to the enactments prescribing Hindi as the language of the Court. The question
before the Courts was whether it bars the use of English in Court? It has been held that
it does not.16 Accordingly, a plaint written in English language and filed in a Civil Courts
is valid as the proviso in the Government notification of 8 October 1947 permitted the
continued use of such language as were being used on the date of the notification.17

16 Sarshwati Bai v Allahabad Bank Ltd, AIR 1963 All 546 (DB).
17 Sarshwati Bai v Allahabad Bank Ltd, AIR 1963 All 546 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 138. Power of High Court
to require evidence to be recorded in English
© 2020 LexisNexis
18[S. 138. Power of High Court to require evidence to be recorded in English
(1) The 19[High Court] may, by notification in the Official Gazette, direct with
respect to any Judge specified in the notification, or falling under a description
set forth therein, that evidence in cases in which an appeal is allowed shall be
taken down by him in the English language and in manner prescribed.
(2) Where a Judge is prevented by any sufficient reason from complying with a
direction under sub-section (1), he shall record the reason and cause the
evidence to be taken down in writing from his dictation in open Court.]
STATE AMENDMENT
Assam, Nagaland, Meghalaya, Tripura and Manipur.— The following amendments were
made by Assam Act 2 of 1941, Section 2, dated 12 Feb 1941.
For Section 138, in its application to Assam and Nagaland the following section shall
be substituted namely:—
"138. Power of High Court to require evidence to be recorded in English.—The High

Court may, by notification in the Official Gazette, direct with respect to any Judge
specified in the notification, or falling under a description set forth therein that in cases
in which an appeal is allowed, he shall take down, or cause to be taken down, the
evidence in the English language and in the form and manner prescribed".
18 For Section 138, as applicable to Assam, see the Code of Civil Procedure (Assam
Amendment) Act, 1941, (Assam Act, 2 of 1941), section 2.
19 Subs. by Act 4 of 1914, section 2 and Sch., Pt. I for "L.G.".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 139. Oath on affidavit by
whom to be administered
© 2020 LexisNexis
S. 139. Oath on affidavit by whom to be administered
In the case of any affidavit under this Code
(a) any Court or Magistrate, or 20
[(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the 21[State Government] has
generally or specially empowered in this behalf, may administer the oath to the
deponent.
MODIFICATIONS
Calcutta High Court.— The following modifications were made by Calcutta Gazette,
dated 20-4-1967, Part 1, page 760.
In its application to all suits or proceedings in the Court of Small Causes of Calcutta, in
Section 139, after the words, "under this Code", in the first line add the words, "or under
the Presidency Small Cause Courts Act, 1882" and after the words "Courts which", in
clause (c), add the words "or by any judge whom".
STATE AMENDMENT
Uttar Pradesh.— The following amendment were made by Uttar Pradesh Act, 11 of 1981,
Section 2.
In its application to State of Uttar Pradesh, in Section 139, the clauses (b) and (c)
substituted as under and deemed always to have been so.
"(b) any person appointed in this behalf by a High Court or by a District Court; or
(c) any person appointed in this behalf by such other Court as the State Government
may, by general or special order, empower in this behalf.
COMMENT.—
The person before whom an affidavit is sworn must be acting in the capacity of a Court
of the officer authorised to administer an oath. It has been held by the Supreme Court
that an affidavit sworn before District Clerk of Court describing himself as officer for
administering oaths on affidavit, was Commissioner of Oaths and affidavit and it
complied with the provisions of rule 94-A of Conduct of Election Rules.22
This section prescribes by whom oaths are to be administered, not how affidavits may
be sworn. It was held that a notary public is not a person competent to administer the
oath to a deponent who is affirming affidavit under this section.23 Declaration before a
notary public is entirely different from a solemn affirmation on which alone an affidavit
can be made.24
Attestation of the undated affidavit is in utter disregard to the provisions of section 139
of the Code of Civil Procedure. The Supreme Court Rules 1966 under O XI rule 7 also
require adherence to the provisions of section 139 of the Code of Civil Procedure. The
Definition of Affidavit in section 3(3) of the General Clauses Act, 1897 provides that it
shall include affirmation and declaration in the case of persons by law allowed to affirm
or declare instead of swearing. Thus, it is an essential characteristic of an affidavit that
it should be made on oath or affirmation before a person having authority to administer
the oath or affirmation, and thus, duty to state on oath on the part of the deponent is
sacrosanct. Same remains the position in respect of administration of oath as required
under the Oaths Act, 1873. Affidavit not in keeping with section 139 is not worth taking
on record and being undated, renders the same to be a piece of waste paper.25
But by the addition of Clause (aa) which has been added by the amending Act of 1976,
provision is now made permitting the swearing of affidavits before the notaries.
Reference may be made to O XIX also.
22 Kamal Narain v Dwarka Prasad, AIR 1966 SC 436 , overruling AIR 1965 MP (DB).
23 Gaya Textiles Pvt Ltd, AIR 1968 Cal 388 .
24 Gaya Textiles Pvt Ltd, AIR 1968 Cal 388 .
25 Umesh Kumar v State of AP, AIR 2014 SC 1106 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 140. Assessors in causes
of salvage, etc.
© 2020 LexisNexis
S. 140. Assessors in causes of salvage, etc.
(1) In any Admiralty or Vice-Admiralty cause of salvage, towage or collision, the

Court, whether it be exercising its original or its appellate jurisdiction, may, if it
thinks fit, and shall upon request of either party to such cause, summon to its
assistance, in such manner as it may direct or as may be prescribed, two
competent assessors; and such assessors shall attend and assist accordingly.
(2) Every such assessor shall receive such fees for his attendance, to be paid by
such of the parties as the Court may direct or as may be prescribed.
COMMENT.—
The surveyors appointed for fact finding regarding the damage caused to the cable by
the foreign ship are enjoined in to assist the Court. Their report that the foreign ship
was highly probable for the breakage of the cable was accepted since they relied on
the affidavit of the captain of the ship, the helicopter's report, coast guard authorities
report and also repairing vessel's report.26
26 Videsh Sanchar Nigam Ltd v MV Captain Kud, AIR 1996 SC 516 (520) : (1996) 7 SCC 127 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 141. Miscellaneous
proceedings
© 2020 LexisNexis
S. 141. Miscellaneous proceedings
The procedure provided in this Code in regard to suits shall be followed as far as it
can be made applicable, in all proceedings in any Court of civil jurisdiction.
27 [Explanation. —In this section, the expression "proceedings" includes proceedings

under Order IX, but does not include any proceeding under Article 226 of the
Constitution.]
Calcutta.—Add the words "and in the Presidency Small Cause Courts Act, 1882", after
the words "in this Code" and before the words "in regard to suits"; add the words "and
except as therein otherwise provided", after the words, "be made applicable"; omit the
words "be followed" after "shall" and put them after the words "otherwise provided";
substitute the words "in the Court of Small Causes of Calcutta" in place of "in any Court
of civil jurisdiction" after the words "in all proceedings". Vide Cal Gaz Pt. I, dated April
20, 1967.
COMMENT.—
It has been held by the Supreme Court in Babubhai MPatel v Nandlal Khodidas Barot, AIR
1974 SC 2105 (2110) : (1975) 2 SCR 71 : (1974) 2 SCC 706 that the words "as far as it
can be made applicable in section 141, Code of Civil Procedure, made it clear that on
applying the various provisions of the Code to proceedings other than of a suit, the
Court must take into account the nature of these proceedings and the relief sought.
It has been held by a Full Bench of Punjab and Haryana High Court that section 141 of
the Code of Civil Procedure cannot be pressed into service for putting procedural
fetters in the way of High Court for exercising jurisdiction under Article 226 of the
Constitution for, the adoption of that course would practically strangulate
thisjurisdiction.28
This section extends the procedure provided in regard to suits to proceedings in civil
Courts. It makes applicable to other proceedings only those portions of the Code which
deal with procedure and not those which deal with procedure and not those which deal
with substantive rights.29
This section does not apply to proceedings in execution. Hence the procedure provided
in the Code in regard to suits does not apply to application for execution of decrees.
No application in execution proceedings.—

Section 141 does not apply to execution proceedings for two reasons: (1) the execution
proceedings are the continuation of the suit, (2) the Code in section 141 provides
specifically for the suits. Section 141 which applies only to the original proceedings
does not apply to such proceedings.30
The following provisions do not apply to the applications for the execution of decrees.
(1) The provisions of section 11 relating to res judicata in regard to suits.
(2) The provisions of O II, rule 2.
(3) The provisions of O IX.
(4) The provisions of O XVII, rules 2-3.
(5) The provisions of O XXIII, rule 1. See also O XXII, rule 12 Code of Civil Procedure.
The section has been held to be applicable to proceedings for obtaining probate and
letters of administration31 and under Displaced Persons (Debt Adjustment) Act.32 The
section is applicable to the proceedings under the Arbitration Act, 1940. Where after an
award was filed in Court, the parties entered into a compromise modifying the terms
and the compromise did not go outside the award, held, that the power to record the
agreement will follow from the application of the Code by section 41 of the Arbitration
Act, 1940 and also section 141 of Code of Civil Procedure.33
Where an ex parte decree is passed in terms of arbitration award the application lies
under O IX, rule 13 for setting aside the same.34 It also covers original matters like
divorce, insolvency, guardianships.35
According to the Punjab36 and Andhra Pradesh37 High Courts this section is applicable
to writ proceedings under Article 226 of the Constitution, but according to Calcutta38
and Madras39 High Courts it is not applicable.
The explanation to this section says that the expression "proceedings" does not include
"any proceedings under Article 226 of the Constitution" and according to some of the
Courts also the writ proceedings under Article 226 of the Constitution shall not be
deemed to be proceedings within the meaning of Article 141 of the Code. In this
background it cannot be held that the provisions contained in O XXII of the Code are
applicable per se to writ proceedings.40
Now by the addition of an explanation to this section 141, the aforesaid conflict of
judicial opinion has been set at rest and it has been clarified that this section does not
apply to proceedings under Article 226 of Constitution.
There is no bar in entering into a compromise in probate proceedings and it is open for
the parties in contested probate proceedings to settle their disputes by way of
compromise and provisions of O XXIII rule 3 of the Code of Civil Procedure would be
entirely applicable. Section 141 is applicable even to probate proceedings.41
28 Ram Kala v The Assistant Director Consolidation of Holdings, AIR 1977 P&H 87 (FB).
29 Usman Ali v Sagar Mal, AIR 1965 SC 1798 (1801) : (1965) 3 SCR 201 .
30 Dokku Bhushayya v K Ramakrishanyya, AIR 1962 SC 1386 : 1965 MPLJ 864 .
31 Ruplal v Manoharlal, AIR 1936 Lah 863 .
32 Sitaram v Bashi Ram, AIR 1962 Punj 239 : (1962) 1 Punj 190 : (1969) Punj 171.
33 Munshiram v Banwari, AIR 1962 SC 903 (910) : 1962 Supp (2) SCR 477 .
34 UOI v Manager, Jain & Associates, AIR 2001 SC 809 (812) : (2001) 3 SCC 277 .
35 RNBose v JB Ghosh, AIR 1975 Cal 377 .
36 Sona Ram v Central Government, AIR 1963 Punj 510 : 65 Punj LR 599.
37 Adinarayana v State of AP, AIR 1958 AP 16 .
38 Bharat Board Mills v The Regional Provident Fund Commissioner, AIR 1957 Cal 701 .
39 Management of Rainbow Dyeing Factory v Industrial Tribunal, AIR 1959 Mad 137 .
40 Puran Singh v State of Punjab, AIR 1996 SC 1092 (1094) : (1996) 2 SCC 205 .
41 Kamla v Mangi Bai, AIR 2013 Raj 144 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 142. Orders and notices to
be in writing
© 2020 LexisNexis
S. 142. Orders and notices to be in writing
All orders and notices served on or given to any person under the provisions of this
Code shall be in writing.
Calcutta.—Insert the words "or of the Presidency Small Cause Courts Act, 1882", after
the words "of this Code" and before the words "shall be in writing". Vide Cal. Gaz. Pt. I,
dated April 20, 1967.
COMMENT.—
If a notice is neither signed nor dated nor bearing requisite seal, then it cannot be
considered a valid notice and dismissal on the basis of such a notice cannot be
proper.42
42 Ankush Keshav Bowlekar v State of Maharashtra, AIR 2000 SC 3511 (1) : (2000) 10 SCC 607 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 143. Postage
© 2020 LexisNexis
S. 143. Postage
Postage, where chargeable on a notice, summons or letter issued under this Code and
forwarded by post, and the fee for registering the same, shall be paid within a time to
be fixed before the communication is made:
Provided that the 43[State Government] 44[* * *] may remit such postage, or fee, or
both, or may prescribe a scale of Court-fees to be levied in lieu thereof.
Calcutta.—Insert the words "or the Presidency Small Cause Courts Act, 1882", after the
words "issued under this Code" and before the words "and forwarded by post". Vide Cal.
Gaz. Pt. I, dated April 20, 1967.
43 Subs. for "Provincial Government" by IAO, 1950.

44 The words "with the previous sanction of the G.G. in C." omitted by Act 38 of 1920, Section 2
and sch. I.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 144. Application for
restitution
© 2020 LexisNexis
S. 144. Application for restitution
(1) Where and in so far as a decree 45[or an order] is 46[varied or reversed in any
appeal, revision or other proceeding or is set aside or modified in any suit
instituted for the purpose, the Court which passed the decree or order] shall, on
the application of any party entitled to any benefit by way of restitution or
otherwise, cause such restitution to be made as well, so far as may be, place
the parties in the position which they would have occupied but for such decree
47[or order] or 48[such part thereof as has been varied, reversed, set aside or
modified] and, for this purpose, the Court may make any orders, including
orders for the refund of costs and for the payment of interest, damages,
compensation and mesne profits, which are properly 49[consequential on such
variation, reversal, setting aside or modification of the decree or order].
50 [Explanation. —For the purposes of sub-section (1), the expression "Court
which passed the decree or order" shall be deemed to include,—
(a) where the decree or order has been varied or reversed in exercise of
appellate or revisional jurisdiction, the Court of first instance;
(b) where the decree or order has been set aside by a separate suit, the
Court of first instance which passed such decree or order;
(c) where the Court of first instance has ceased to exist or has ceased to
have jurisdiction to execute it, the Court which, if the suit wherein the
decree or order was passed were instituted at the time of making the
application for restitution under this section, would have jurisdiction to
try such suit.]
(2) No suit shall be instituted for the purpose of obtaining any restitution or other
relief which could be obtained by application under sub-section (1).
STATE AMENDMENT
Uttar Pradesh.— The following amendment were made by Uttar Pradesh Act 24 of 1954,
Section 2 and Schedule, Item 5, entry 7, dated 30-11-1954.
In Section 144, for sub-section (1), the following shall be substituted:—
(1) "Where and in so far a decree or an order is varied or reversed in appeal, revision or
otherwise, the Court of first instance shall, on the application of any party entitled to
any benefit by way of restitution or otherwise, cause such restitution to be made, as
will, so far as may be, place the parties in the position which they would have occupied
but for such decree or order or such part thereof as has been varied or reversed and for
this purpose, the Court may make any orders, including orders for the refund of costs
and for the payment of interest, damages, compensation and mesne profits, which are
properly consequential on such variation or reversal."
MODIFICATION
Calcutta High Court.— The following modification were made by Calcutta Gazette, dated
20-4-1967, Part 1, page 760.
Section 144 extended to all suits or proceedings in the Court of Small Causes, Calcutta.
COMMENT.—
Meaning of Restitution.—
The doctrine of restitution is that on the reversal of a judgment the law raises an
obligation on the party to the record, who received the benefit of the erroneous
judgment, to make restitution to the other party for what he had lost. It is the duty of
the Court to enforce that obligation unless it is shown that restitution would be clearly
contrary to the interests of justice.51 In this section the word "restitution" means
restoring to a party, on the variation or reversal of a decree, what has been lost to him
in execution of the decree or directly in consequence of that decree, though not
through proceedings under it. The word "restitution" in its etymological sense means
restoring to a party on the modification, variation or reversal of a decree or order, what
has been lost to him in execution of decree, or order of the Court, or in direct
consequence of a decree or order.52 This section applies only when the property was
lost in execution of the decree or directly in consequence of that decree. It necessarily
carries with it the right to restitution of all what has been done under the erroneous
decree. The Court in making restitution is bound to restore the parties so far as they
can be restored, to the same position they were in, at the time when the Court by its
erroneous action had displaced them from.53
The law on restitution under section 144 of the Code of Civil Procedure is quite well
settled. Section 144 vests expansive power in the court but such power has to be
exercised to ensure equity, fairness and justice for both the parties. It also flows from
more or less common stand of parties on the principle of law that for ascertaining the
value of the property which is no longer available for restitution on account of sale, etc,
the court should adopt a realistic and verifiable approach instead of resorting to
hypothetical and presumptive value. No unmerited injustice should be caused to any of
the parties.54
Principle of restitution enjoins duty upon courts to do complete justice to party at the
time of final decision. Doctrine of Restitution compels court to not to provide benefit to
such litigations of provision of section 24 of the Act of 2013 (Land Acquisition Act).55
An equitable principle of restitution.—
Section 144 embodying the doctrine of restitution does not confer any new substantive
right to the party not already obtaining under the general law. The section merely
regulates the power of the Court in that behalf. There is always an inherent jurisdiction
to order restitution a fortiori where a party has acted on the faith of an order of the
Court. It is the duty of the Court to ensure that no litigant goes back with a feeling that
he was prejudiced by an act which he did on the faith of the Court's order.56
The concept of restitution is founded on the idea that when a decree is reversed, law
imposes an obligation on the party who received an unjust benefit of the erroneous
decree to restitute the other party for what the other party has lost during the period the
erroneous decree was in operation. Therefore, the Court while granting restitution is
required to restore the parties as far as possible to their same position as they were in
at the time when the Court by its erroneous action displaced them.
The concept of restitution is a common law principle and it is a remedy against unjust
enrichment or unjust benefit.Restitution order can be passed only if one party has
unjustly enriched.57
Once the Court discovers falsehood, concealment, distortion, obstruction or confusion

in pleadings and documents, the Court should in addition to full restitution impose
appropriate costs. The Court must ensure that there is no incentive for the wrong doer
in the temple of justice. Truth is the foundation of justice and it has to be the common
endeavour of all to uphold the truth and no one should be permitted to pollute the
stream of justice. The Court must be cautious in granting relief to a party guilty of
deliberately introducing irrelevant and untenable pleas responsible for creating
unnecessary confusion by introducing such documents and pleas. These factors must
be taken into consideration while granting relief and or imposing the costs. It is the
bounden obligation of the Court to neutralise any unjust and/or underserved benefit or
advantage obtained by abusing the judicial process. Unless the wrong doers are denied
profit or undue benefit from frivolous litigations, it would be difficult to control frivolous
and uncalled for litigations.58
Where the judgment-debtor fails to show that the sale of his property was in substance
and truth a consequence of an error in the decree that was reversed, he cannot invoke
the aid of section 144 Code of Civil Procedure.59
Jurisdiction is not exhaustive.—
The jurisdiction to make restitution is inherent in every Court and will be exercised
whenever the justice of the case demands. It will be exercised under inherent powers
where the case does not strictly fall within the ambit of this section which incorporates
only a part of the general law of restitution. It is not exhaustive.60
In regard to the law of restoration of loss or damage caused pursuant to judicial orders,
the privy council observed as follows:-
....one of the first and highest duties of all Courts is to take care that the act of the Court
does not cause injury to any of the suitors and when the expression 'the act of the Court' is
used, it does not mean merely an act of the primary Court, or of any intermediate Court of
appeal, but the act of the Court as a whole, from the lowest Court which entertains
jurisdiction over the matter up to the highest Court which finally disposes of the case.61
The Supreme Court stated the principle as under:—
.....The principle of the doctrine of restitution is that on the reversal of a decree, the law
imposes an obligation on the party to the suit who received the benefit of the erroneous
decree to make restitution to the other party for what he has lost. This obligation arises
automatically on the reversal or modification of the decree and necessarily carries with it
the right to restitution of all that has been done under the erroneous decree, and the Court in
making restitution is bound to restore the parties, so far as they can be restored, to the
same position they were in at the time when the Court by its erroneous action had displaced
them from....62
Where a High Court had reduced the compensation and in the mean time the
appellants had recovered the award amount in execution with interest. So the
appellants are liable to restitute the excess amount realised in execution of the decree.
The State is entitled to restitute of the benefit accrued to the owner is the original
decree. The direction to restitute the amount with interest is within the powers
conferred on the Court under section 144 of the Code. The High Court rightly directed
the appellants to refund the enhanced amount with interests.63
When a party by interim order is prevented from recovering the dues, in the event of
ultimate success the party is entitled to recover the entire dues alongwith interest
thereon.64
An interest can be ordered by way of restitution if there is nothing in the decree

expressly or impliedly prohibiting the payment of interest.65 In order to apply this
section, the following conditions must be fulfilled:
(1) The restitution sought must be in respect of a decree which had been varies or
reversed or set aside or modified in any suit instituted for that purpose. Such
variation or reversal must be by a Court of competent jurisdiction. Otherwise
there would not be a legal variation or reversal. This section applies only where
a decree is varied or reversed, and it does not apply where an order is varied or
reversed. When an order is varied or reversed, the Court may order restitution
under its inherent powers on the basis of this section.
(2) The party applying for restitution must be entitled to a benefit under the
reversing decree.
(3) The relief claimed must be consequential on the reversal or variation of the
decree.
In case the above conditions are fulfilled, the Court is bound to pass an order for
restitution.
Where the original decree or order stands good as against a party, no restitution can be
had by him under this section.66
Transferee execution Court cannot cause restitution.—
A Court of first instance, meaning thereby, a Court which has passed a decree or order,
is competent to cause restitution of suit. A transferee executing Court to which a
decree is transferred to facilitate the execution thereof is not competent to entertain an
application for restitution. Such a Court is not the Court that passed the decree or order
but the decree was transmitted to facilitate execution of that decree or order. Its order
of restitution will be without jurisdiction and, therefore, nullity.67
There existed a conflict of judicial view as to whether this section 144 applied in cases
where a decree was set aside or modified otherwise than on appeal, e.g., in a separate
suit. By making an amendment in this section it has been made clear that the section
applies in the aforesaid cases also.
Who may apply for restitution?—
In order to entitle a person to apply under the section, two conditions must be satisfied:
(1) He must be a party to the decree or order varied or reversed; and

(2) He must have become entitled to any benefit by way of restitution or otherwise
under the reversing decree or order.
The word "party" would include his representative also. It also includes any beneficiary
under the final judgment be he in the technical sense a party or not in the suit or
appeal.68
Doctrine of "undue enrichment" applied.—
Where the appellants took benefit of the interim order passed by the Supreme Court,
they cannot have regard to the doctrine of "unjust enrichment" retain the undue
advantage derived by it.69
Against whom restitution can be granted?—
A right to claim restitution may be enforced against a party or his representatives or

assignee even if he is not a party to the appeal. It cannot, however, be claimed under
this section as against sureties.70
What Court can grant restitution?—
An application for restitution should be made in all cases to the Court of first instance
that is the primary Court that passed the decree.71 Where the Court of first instance
loses its territorial jurisdiction or ceases to exist the Court which gets such jurisdiction
will be the Court of first instance.72
A suit was decreed in favour of the appellant and against the surety by the trial Court
i.e. the Court of first instance. This decree has been reversed by the High Court in
exercise of its appellate jurisdiction. In such a situation clause (a) of the Explanation
would be attracted and application for restitution will have to be made to the Court of
first instance. In an appeal to the Supreme Court the reversal decree of the High Court
was affirmed as the restitution cannot be granted by the Supreme Court.73
The Court has no discretion to refuse restitution in matters falling within the section.74
It is the legal effect of a decree of reversal that a party against whom the decree
reversed was given is to have restitution of all that he had been deprived of under it.75
Nature of proceedings under the section.—
It is now well settled that an application for restitution, is an application for execution,
as held by the Supreme Court in Mahijibahi v Manibhai, AIR 1965 SC 1477 : (1965) 2 SCR
436 : 1965 BLJR 542 . Accordingly, the principle of res judicata applies to such
applications.76 The principle of res judicata and constructive res judicata applies to an
application under section 144.77
Limitation.—
An application for restitution is an application for execution of a decree and therefore,
such application is governed by Article 182 of the Limitation Act, 1963 and not by
Article 181, of the Act which is residuary article.78
Appeal.—
According to Mulla, the determination of a question under section 144 is a decree, as

expressly provided infection 2(2) and is appealable as such.79 But the High Courts of
Allahabad,80 Kerala,81 Lahore,82 Patna,83 and Punjab,84 have held that an order of
restitution made under section 151 is not appealable.
Where in an appeal against decree of restitution of possession some of the judgment-

debtors do not array, such decree, being indivisible, cannot be interfered with unless all
parties in whose favour such decree is passed, are before the Court.85
Restitution of benefit.—
Person who withdraws proceedings without seeking adjudication of same or even

when proceedings are dismissed, said person is bound to restitute benefit it has
received under interim order. Also, simpliciter withdrawal of proceedings without
restitution of benefit cannot be granted.86
No Restitution- In case of Tradable Commodity.—
The bonds are tradable commodity on the stock market and its value could be easily
ascertained on the date when the bonds were delivered to the plaintiff or where the
bonds were sold in the market. Such relevant facts should not have been lost sight of
and no presumption could be made that the bonds can be retained by the defendant till
maturity period. Therefore, it would be unjust to saddle the plaintiff with liability to
repay possible gains made by third party or subsequent purchasers of bonds. Hence,
the amount determined by the special Court for restitution and payment by plaintiff is
unjust and is a result of error in not keeping under view the relevant facts as well as in
applying the settled legal propositions for the purpose of compensating plaintiff by way
of restitution.87
45 Ins. by Code of Civil Procedure (Am) Act 66 of 1956, Section 13.

46 Subs. by the Code of Civil Procedure (Amendment) Act, 104 of 1976, Section 48, for certain
words (w.e.f. 1-2-1977).
47 Ins. by Code of Civil Procedure (Amendment) Act, 66 of 1976, Section 13 (w.e.f. 1-1-1957).
48 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 48, for certain
words (w.e.f. 1-2-1977).
words (w.e.f. 1-2-1977).
50 Ins. by ibid. (w.e.f. 1-2-1977).
51 Bhagwant Singh v Sri Kishen Das, AIR 1953 SC 136 (138) : 1953 SCR 559 : 1953 ALJ 249 :
(1953) 2 All 367 .
52 South Eastern Coalfields Ltd v State of MP, AIR 2003, SC 4482 (4491) : (2003) 8 SCC 648 ;
Zafar Khan v Board of Revenue UP, AIR 1985 SC 39 : 1984 Supp SCC 505 (relied on).
53 Binayak Swami v Ramesh C Panigrahni, AIR 1966 SC 948 : (1966) 3 SCR 24 : 32 Cut LT 609.
54 Citi Bank NA v Hiten P Dalal, (2016) 1 SCC 411 .
55 Indore Development Authority v Shailendra, AIR 2018 SC 824 .
56 Union Carbide Corpn v UOI, AIR 1992 SC 248 (295); see also Binayak v Ramesh, AIR 1966 SC
948 : (1966) 3 SCR 24 : 32 Cut LT 609.
57 State of Gujrat v Essar Oil Ltd, AIR 2012 SC 1146 .
58 A Shanmugam v Ariya Kshatriay Rajakula Vamsahu Madalaya Nandhavana Paripalanai Sagam,
AIR 2012 SC 2010 .
59 Bhagwant Singh v Sri Kishen Das, AIR 1953 SC 136 (138) : 1953 SCR 559 : 1953 ALJ 249 .
60 Kavita Trehan v Balsara Hygiene Products Ltd, AIR 1995 SC 441 (447) : (1995) 5 SCC 380 .
61 Alexander Rodger Charles Carnie v Comptoir D' Escompte De Paris, (1869-71) 3 AC 465 (475).
62 Binayak Swain v Ramesh Chandra Panigrahi, AIR 1966 SC 948 (950); see also Gangadhar v
Raghubar Dayal, AIR 1975 All 102 (FB), Woolwich Equitable Building Society v Inland Revenue
Commrs, 1993 AC 70 : (1992) 3 WLR 336 : (1992) 3 All ER 737 (HL)—The House of Lords
examined some of these principles.
63 Kartar Singh v State of Punjab, AIR 1995 SC 1726 : (1995) 4 SCC 101 .
64 ONGC v Association of Natural Gas Consuming Industries, AIR 2001 SC 2796 : (2001) 6 SCC
627 .
65 Lucy Kachuvareed v P Mariappa Gounder, AIR 1979 SC 1214 (1224) : (1979) 3 SCC 150 .
66 TS Swaminatha v Official Receiver, AIR 1957 SC 577 : 1957 SCR 757 .
67 Neelathupara v Montharapalla, AIR 1994 SC 1591 .
68 Jatindra Nath v Jugal Chandra, AIR 1966 Cal 637 .
69 KT Venkatagini v State of Karnataka, AIR 2003 SC 1819 (1824) : (2003) 9 SCC 1 .
70 AIR 1919 PC 55 .
71 Regional Food Controller v Hazari Mal, AIR 1967 All 272 : (1966) 2 All 4 .
72 Sadashiva v Anappa, AIR 1963 Mys 273 .
73 State Bank of Saurashtra v Chitranjan Rangnath, AIR 1980 SC 1528 (1534) : (1980) 4 SCC 516
: 1980 ALJ 654 .
74 Devi Ram Chand v Bastikar, AIR 1968 Bom 57 : 64 Bom LR 121 : (1967) Bom 945.
75 State v GR Rice Mill Contractors, AIR 1965 AP 398 .
76 AIR 1965 SC 1477 : (1965) 2 SCR 436 : 1965 BLJR 542 .
77 Maqbool Alam v Khadoija, AIR 1966 SC 1194 : (1966) 3 SCR 479 : 1966 BLJR 566 .
78 Mahijibhai v Manibhai, AIR 1965 SC 1477 (1483) : (1965) 2 SCR 436 : 1965 BLJR 542 .
79 See Mulla's Code of Civil Procedure (Student Edn 1972), p 290.
80 Allahabad Theatres Ltd v Ram Sajiwan, AIR 1949 All 313 .
81 Subramania Iyer v Kesavan, 1963 Ker LJ 424 .
82 Ganesh Dutt v Model Town Society, AIR 1939 Lah 508 .
83 Ramnandan v Jagar Nath, AIR 1958 Pat 547 .
84 Kaku Singh v Gobind Singh, AIR 1959 Punj 468 .
85 Tasaddug Hussain Khan v Shiv Nath Sahu, AIR 1998 SC 1976 (1978) : (1998) 9 SCC 634 .
86 DTC v International Avenues, AIR 2009 (NOC) 2760 (Del-DB).
87 City Bank NA v Hiten P Dalal, AIR 2015 SC 3523 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 145. Enforcement of
liability of surety
© 2020 LexisNexis
S. 145. Enforcement of liability of surety
Where any person 88[has furnished security or given a guarantee]—
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of a decree, or
(c) for the payment of any money, or for the fulfilment of any condition imposed on
any person, under an order of the Court in any suit or in any proceeding
consequent thereon,
89[the decree or order may be executed in the manner herein provided for the
execution of decrees, namely:—
(i) if he has rendered himself personally liable, against him to that extent;
(ii) if he has furnished any property as security, by sale of such property to

the extent of the security;
(iii) if the case falls both under clauses (i) and (ii), then to the extent
specified in those clauses,
and such person shall be deemed to be a party within the meaning of Section 47:]
Provided that such notice as the Court in each case thinks sufficient has been given to
the surety.
STATE AMENDMENT
Section 2 and Schedule, Item 5, Entry 5, dated 30-11-1954.
For the existing Section 145, the following shall be substituted:—
"145. Where any person has become liable as surety or given any property as security—
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of any decree, or
(c) for the payment of any money or for fulfilment of any condition imposed on any
person, under an order of the Court in any suit or in any proceeding consequent
thereon,
the decree or order may be executed in the manner herein provided for the execution of
decrees—
(i) if he has rendered himself personally liable, against him to that extent, and
(ii) if he has given any property as security, by sale of such property to the extent of
the security;
and such person shall, for the purposes of appeal, be deemed to be a party within the
meaning of Section 47:
Provided that such notice as the Court in each case thinks sufficient has been given to
the surety.
Explanation.—For the purposes of this section a person entrusted by a Court with

custody of any property attached in execution of any decree or order shall be deemed
to have become liable as surety for the restitution of such property within the meaning
of clause (b)".
COMMENTS.—
This section was amended by Amending Act of 1976 in order to incorporate therein an
express provision as to the power to the Court to sell the property where property has
been furnished as security.
Scope of applicability.—
This section dispenses with the necessity of a suit and enables the party for whose
benefit the security has been given to enforce the security by execution proceedings in
the same manner as if the surety was a party to the decree or order in respect of which
security has been given.90 It cannot be laid down as a general proposition that the
provisions of section 145 and O XXXII, rule 16(2) are mutually exclusive. The nature of
the bond is what really matters in determining the question whether it is one falling
under section 145 or under O XXXII, rule 16(2).91
The provisions under this section ensure the benefit of the Court as well as the
custodian to proceed against the party in enforcement of the undertaking given to the
Court.92
When the decree-holder himself had compromised with the principal debtor and had
discharged himself from the liability to the performance of the decree, in law it must be
a full satisfaction of the decree full satisfaction recorded in that behalf relieves the
guarantor or surety from the obligation with the decree-holder and the decree-holder
cannot seek any further remedy against the surety. The liability of the guarantor or
surety is co-extensive with the judgment-debtor. The compromise entered by the
decree-holder binds himself by his conduct and releases the guarantor or surety from
the liability undertaken in the guarantee or surety bond for due performance of the
decree.93
It has been held by the Punjab High Court that section 145 does not expressly bar the
suit against the surety. The procedure laid down in that section is clearly intended to be
a summary procedure without in any manner taking away or curtailing a right which a
citizen possesses under ordinary law of the land of having civil disputes adjudicated
upon by a suit under section 9. The Legislature did not intend to bar a suit for the
purposes of enforcing the liability of the surety.94
Liability of surety.—
Where a surety bond was extended in favour of the District Judge on transfer of the suit
to a subordinate Judge for disposal, the latter could enforce the bond by virtue of
section 150.95
The enforcement of surety bond against one or release of one does not operate as
discharge of others and their liability though joint and several is not distinct.96
Section 145 applies when person has become liable as surety. Where merely
prohibitory order is issued under O XXI, rule 46(1) and the attachment made in that
manner, person to whom prohibitory order is issued does not become surety for
performance of decree and this section does not apply.97
88 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 49, (w.e.f. 1-2-
1977).
89 Subs. by ibid, Section 49, for certain words (w.e.f. 1-2-1977).
90 (1968) 2 Mys LJ 124 .
91 Unnikrishna Menon v Venkata Parsurama, AIR 1957 Trav Co 151 (DB) : (1956) Tr Co 1156.
92 Western Press Pvt Ltd, Mumbai v Custodian, AIR 2001 SC 450 (456) : (2001) 10 SCC 703 :
(2001) 104 Com Cas 105 .
93 Amar Chand v Bhano, AIR 1995 SC 871 : 1995 Supp (1) SCC 550 .
94 Mohd Ishaq v Modh Basir, AIR 1961 Punj 8 .
95 Hawrah Insurance Co v Sachindra MD Gupta, AIR 1975 SC 2051 (2053) : (1975) 2 SCC 523 :
(1976) 1 SCR 356 .
96 Srichandv Jagdish, AIR 1966 SC 1427 (1431) : (1966) 3 SCR 451 : 68 PLR 291 (1).
97 Chouthi Prasad Gupta v UOI, AIR 1967 SC 1080 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 146. Proceedings by or
against representatives
© 2020 LexisNexis
S. 146. Proceedings by or against representatives
Save as otherwise provided by this Code or by any law for the time being in force,
where any proceeding may be taken or application made by or against any person,
then the proceeding may be taken or the application may be made by or against any
person claiming under him.
COMMENT.—
The object of section 146 is to facilitate the exercise of rights by persons in whom they
come to be vested by devolution or assignment. Being a beneficent provision, it should
be construed liberally and so as to advance justice and not in restricted or technical
sense.98
The right to file an appeal must be held to carry with it the right to continue an appeal
which had been filed by the persons under whom the applicant claims. The petition of
the appellant to be brought on record as an appellant in an appeal must be held to be
maintainable under section 146.99
A decree for injunction compels personal obedience and inappropriate cases, would
not be enforced against the legal representatives, this is subject to a qualification that
when the injunction relates to doing or not doing something in property, that was the
subject matter of an earlier suit and the act complained of was on the basis of
ownership of adjacent property or a right claimed in the property of the other side, then
such a decree for injunction would be binding not only against the judgment debtor
personally but also against those who claim through or under him. This is the object of
section 146, which is consistent with the principle of public policy embodied in section
11 of the Code of Civil Procedure and section 52 of the Transfer of Property Act.100
Even if stricto sensu an application would not fall under O XXII rule 10 yet section 146
would certainly enable one to maintain the application in certain circumstances.101
Execution of decree by transferee.—
A transferee of a decree can execute it either under section 146 or under O XXI rule 16
of the Code.102 The section is wide enough to entitle a person to continue a proceeding
started by another under whom he claims.103
Equitable assignment.—
The power of attorney in favour of a bank by a debtor, authorising to execute a decree
obtained by him against third party, and credit realisation in satisfaction of debt to the
bank, was equitable assignment, in favour of the bank, entitling it to execute the
decree.104
Pre-emption.—
The statutory right of pre-emption is not a mere personal right. Though not an interest
on land, it is a right attached to the land and can be enforced by the person entitled to
pre-empt. Where a pre-emptor after fulfilling the conditions of the decree sells land, the
purchaser can execute the decree.105
98 Sailabala v Nirmala Sundari, AIR 1958 SC 394 (397); see also Satyanarayna v SB Sharma, AIR
1955 AP 81 .
99 Sailabala v Nirmala Sundari, AIR 1958 SC 394 (397); see also Satyanarayna v SB Sharma, AIR
1955 AP 81 .
100 Smt Gowri v Prabhakara and Adiga, AIR 2014 Kar 170 .
101 Govindrao v Devisahai, AIR 1982 SC 989 (1005) : (1982) 1 SCC 237 (for the facts the case
may be seen).
102 Bhoop v Matadin Bhardwaj, AIR 1991 SC 373 (378) : (1991) 2 SCC 128 .
103 Ram Lohia v Manno, AIR 1955 Punj 225 ; see also AIR 1965 AP 81 .
104 Seth Loon Karan v Ivan E John, AIR 1969 SC 73 (77) : (1969) 1 SCR 122 : (1968) 2 Comp LJ
265 .
105 Zila Singh v Hazari, AIR 1979 SC 1066 (1069) : (1979) 3 SCC 265 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 147. Consent or agreement
by persons under disability
© 2020 LexisNexis
S. 147. Consent or agreement by persons under disability
In all suits to which any person under disability is a party, any consent or agreement,
as to any proceeding shall, if given or made with the express leave of the Court by the
next friend or guardian for the suit, have the same force and effect as if such person,
were under no disability and had given such consent or made such agreement.
COMMENT.—
The section enacts the substantive rule that a minor shall be bound by a compromise
entered into by his guardian in the prescribed manner. But it does not place a consent
decree obtained against a minor on a higher footing than a decree obtained after
contest and such a decree can be avoided by the minor on the ground of fraud,
collusion or gross negligence of the guardian.106
Where a next friend or guardian ad-litem of a minor enters into a compromise on his
behalf with the permission of the Court under O XXIII, rule 7, the compromise and the
decree based thereon would be as such binding on the minor as it is on the adult
parties, unless the minor can show that the next friend or his guardian ad-litem was
guilty of fraud or negligence. The onus of proving fraud or negligence on the part of the
next friend or guardian ad-litem would be upon the minor and for this purpose he has to
make clear and distinct allegations in his pleadings and to substantiate them.107
Where the stipulation in compromise decree was that the judgment debtor was
required to make payment of money within a specified period and this was a stipulation
by agreement between the parties concerned and it was not a period fixed by the Court
then section 148 of the Code of Civil Procedure could not be invoked in relation to the
said period. Therefore, the original compromise decree was restored, and eviction
directed in terms thereof.108
106 Iftikhar Hussain v Bennt Singh, AIR 1946 Lah 233 (FB).
107 Sant Bhashan Lall v Brij Bhushan Lal, AIR 1967 Del 137 (DB).
108 Hukumchand v Bansilal, AIR 1968 SC 86 ; Shivshankar Gurgar v Dilip, AIR 2014 SC 1182 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 148. Enlargement of time
© 2020 LexisNexis
S. 148. Enlargement of time
Where any period is fixed or granted by the Court for the doing of any act prescribed
or allowed by this Code, the Court may, in its discretion, from time to time, enlarge
such period, 109 [not exceeding thirty days in total,] even though the period originally
fixed or granted may have expired.
Calcutta.—Add the words "or by the Presidency Small Cause Courts Act, 1882", after
the words "allowed by this Code" and before the words "the Court may", Vide Cal. Gaz.
Pt. I, dated April 20, 1967.
Act, 1999 (w.e.f. 1-7-2002).1. Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999) (w.e.f. 1-7-2002)
2002).—
Modification.—This section has been amended for making the following modification:
Section 13 of the Amendment Act, 1999 has introduced in section 148 a period of limitation
not exceeding 30 days in total for which Courts in its discretion can enlarge time for doing
any act prescribed or allowed by the Code.

1999 stated thus:-
Section 148 of the Code provides for enlargement of time by the Court. Where any period is
fixed or granted by the Court for any act prescribed or allowed by the Code, the Court has
discretion to enlarge such period. Clause 13 seeks to put a limit on enlargement of such
period by inserting the words "not exceeding thirty days in total" in Section 148 with a view
to minimise the procedural delay at the instance of either party to a suit. [Clause 13].
Enlargement only up to thirty days.—

This section provides for enlargement of time by Court. Previously a discretion was
given to the Court to enlarge the period fixed or granted by the Court for any act
prescribed or allowed by the Code. The present amendment puts a limit of 30 days on
the enlargement of such period. The words "not exceeding thirty days in total" have
been inserted with a view to curtail procedural delay caused by any party to the suit or
proceeding. Enlargement of time, whether one-time or phased, cannot exceed 30 days.
Applicability of the existing State/High Court Amendments after the

commencement of Code of Civil Procedure (Amendment) Act, 1999.—
Any amendment made, or any provision inserted in the principal Code by a State
Legislature or High Court before the commencement of the Amendment Act, 1999
shall, except in so far as such amendment or provision is consistent with the provisions
of the principal Code as amended by this Amendment Act, 1999, stands repealed.
[Section 32(1) Code of Civil Procedure (Amendment) Act, 1999].
Scope of applicability of the section.—
The section deals with the question of enlarging the time once fixed by the Court for
the doing of a thing. Under this section, the Court is empowered to extend the time
fixed by it even after the expiry of the period originally fixed.
The two essentials for the applicability of the section are:
(i) some period must have been fixed or granted by the Court,
(ii) such period is fixed for doing an act prescribed or allowed by the Code.
The application of this section to a case further depends on the question whether the
matter has been finally disposed by the Court or the Court is seized of the matter and
has control over it. If the order is not final and the Court retains its control over and is
seized of the matter, it has full power to make any just or necessary order therein
including in appropriate cases the extension of the time under this section.
We have said above that one of the essentials for the applicability of this section is that
it applies only where a period is fixed or granted by the Court. In other words, it does
not apply when a period is fixed by law.110 Thus see for example the following
instances:
(1) Law of Limitation.—A Court cannot extend a period fixed by law of limitation,111
(2) Code of Civil Procedure.—Section 55(4) lays down a period of one month, that
cannot be extended. The Court cannot extend the period of fifteen days fixed by
O XXV, rule 85(3-A). The period of thirty days prescribed by O XXI, rule 92 cannot
be extended.
The second essential is that the section applies only where time is fixed for doing an
act prescribed or allowed by the Code. Where a period is fixed by the Court to do a
particular act under its inherent powers it is an act allowed by section 151 of this Code
and thus this section will apply to such a case.
It is obvious from the language of the section, such a power can be exercised only in a
case where a period is fixed or granted by the Court for doing any act prescribed by this
Court. In a compromise decree such as the one on hand the stipulation that the
judgment debtor is required to make the payment of the money within a specified
period is a stipulation by agreement between the parties and it is not a period fixed by
the Court. Therefore, section 148 of the Code of Civil Procedure has no application to
such a situation. Order which amounts to the modification of the decree is without
jurisdiction, therefore a nullity. Provisions of section 148 of the Code of Civil Procedure
empowering the civil Court to enlarge time has no application.112
An application for extension of time for filling return of income can be filed after expiry
of the period stipulated in notice. The principle as regard procedural law under this
section is attracted.113
In terms of section 148 of the Code of Civil Procedure the Court has the discretion to
extend the time. The words "not exceeding thirty days in total" have been inserted by
the Code of Civil Procedure (Amendment Act) 1999 observing that if the Act could not
be performed within thirty days for the reasons beyond the control of the parties the
time beyond thirty days can be extended under section 152 of the Code of Civil
Procedure.
There was a delay in payment of costs for restoration of execution petition. Application
was made for enlargement of time to deposit costs. As the High Court while declining
to enlarge time to deposit the costs neither took into consideration the sequence of
dates and the events stated by the appellant corporation nor the explanation offered for
the delay. Thus, order refusing to enlarge time was held not proper.114
A Court has power to extend time fixed by consent decree in appropriate cases. The
time will not be extended normally, nor for mere asking. It would be extended in rare
cases to prevent manifest injustice.115
Where non-deposit of only a relatively small fraction of the purchase money is due to
an inadvertent mistake, whether or not caused by any action of the Court, the Court has
discretion to extend the time for making the payment. The Court, however, must be
satisfied that the mistake is bona fide and was not indicative of negligence or inaction.
The Court will extend the time when it finds that the mistake was the result of or
induced by, an action of the Court.116
It is evident from the language employed in the provision that the power given to the
Court is discretionary and is intended to be exercised only to meet the ends of,
justice.117 The decree holder in a decree for specific performance of contract failed to
deposit amount of part consideration and additional compensation in compliance of
conditions of grant of specific performance and moved an application for extension of
time for deposit after three and a half years with vague and bald averments, then such
application cannot be allowed. Rejection of application and recession of contract by
the executing Court is proper.118
The words "not exceeding 30 days in total" have been inserted vide 1999 amendment
with a view to curtail procedural delay caused by any party to the suit or proceeding.
Hence, enlargement of time under section 148 whether one time or phased, cannot
exceed 30 days. But if the act could not be performed within 30 days for reasons
beyond control of parties, time beyond maximum 30 days can be extended under
section 151 of the Code of Civil Procedure.119
High Court's power to extend the time for compliance.—

Under section 148 of the Code, High Court has ample powers to extend the time to
comply with directions of High Court.120
No extension of time.—
Where by the consent of parties the executing Court dismissed an application of

judgement-debtor under O XXI rule 90 and allowed time to pay decretal amount and
auction purchasers commission, it was not open to the Court to extend further time
without consent of parties.121
Where by consent of parties, the executing Court dismissed an application under O XXI,
rule 90 and allowed the applicant judgment-debtor a certain time to pay the decree
amount, their Lordships of the Supreme Court held that the time so fixed cannot be
extended by the Court under this section.122
A request for extension of time to deposit deficit Court-fees if rejected by the Court,
then it would be incorrect on facts.It has been held by the Supreme Court in Mahant
Ramdas v Gangadas, AIR 1961 SC 882 : (1961) 3 SCR 763 : 1961 BLJR 495 that the
Court can extend the time if an application therefor is presented to the Court within the
period given, and that in such a case even if the order is made after the expiry of that
period, that will relate back to the date of the application, and the extension will be
valid. If the amount of costs is paid within the time fixed or extended by the Court then
the suit should be deemed to have been instituted validly on the date on which it was
presented.123
Where Revenue Divisional Officer allowed time to deposit arrears of rent under Tamil
Nadu Cultivating Tenants Protection Act, 1955, a simultaneous conditional order for
eviction on default was illegal.124
The restriction imposed by Amendment Act 46 of 1999 on enlargement of time fixed by

Court for doing any act does not take away interest powers of Court to enlarge time
beyond maximum of 30 days where sufficient cause exists.125
109 Inserted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 13
(w.e.f. 1-7-2002).
110 Kathyee Cotton Mills v RP Pillai, AIR 1958 Kar 88 (91) : 1957 Ker LJ 1167 : 1957 KLT 1175 .
111 Matrani Devi v Chhathu Prasad, AIR 1962 Pat 55 .
112 Hukumchand v Bansilal, AIR 1968 SC 86 ; Shivshankar Gurgar v Dilip, AIR 2014 SC 1182 .
113 CIT Jullendhar v Ajanta Electricals, Punjab, AIR 1995 SC 2172 (2176, 2177) : (1995) 4 SCC
182 : (1995) 215 ITR 114 .
114 Nashik Municipal Corporation v R M Bhandari, AIR 2016 SC 1090 .
115 Periyakkal v Dakshyani, AIR 1983 SC 428 (430) : (1983) 2 SCC 127 .
117 DV Paul v Manisha Lalwani, AIR 2010 SC 3356 (3361); see also Manohar Singh v DS Sharma,
(2010) 1 SCC 53 .
118 Bakhtavar v Inder Kaur, AIR 2014 Raj 110 .
119 Nashik Municipal Corporation v RM Bhandari, AIR 2016 SC 1090 : 2016 (2) SCALE 648 :
(2016) 6 SCC 245 : 2016 (3) SCJ 158 .
120 B Jagadeswar v Govt of AP, 2008 (2) ALT 515 (520) (DB).
121 Hukumchand v Bansilal, AIR 1968 SC 86 (89) : (1967) 3 SCR 695 : 70 Bom LR 114.
122 Hukam Chand v Bansi Lal, AIR 1961 SC 86 : (1961) 3 SCR 161 : (1961) 2 LLJ 86 .
123 Konkan Trading Co v Suresh, AIR 1986 SC 1009 : (1986) 2 SCC 424 : 1986 Mah LJ 512 .
124 Chinnamar Kathian v Ayyavoo, AIR 1982 SC 137 (143) : (1982) 1 SCC 159 : (1982) 1 MLJ
(SC) 17.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 148A. Right to lodge a
caveat
© 2020 LexisNexis
126[S. 148A. Right to lodge a caveat
(1) Where an application is expected to be made, or has been made, in a suit or

proceeding instituted, or about to be instituted, in a Court, any person claiming
a right to appear before the Court on the hearing of such application may lodge
a caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom
the caveat has been lodged (hereinafter referred to as the caveator) shall serve
a notice of the caveat by registered post, acknowledgment due, on the person
by whom the application has been, or is expected to be, made under sub-
section (1).
(3) Where, after a caveat has been lodged under sub-section (1), any application is
filed in any suit or proceeding, the Court shall serve a notice of the application
on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall
forthwith furnish the caveator, at the caveator's expense, with a copy of the
application made by him and also with copies of any paper or document which
has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not
remain in force after the expiry of ninety days from the date on which it was
lodged unless the application referred to in sub-section (1) has been made
before the expiry of the said period.]
COMMENT.—
The newly added section 148-A provides for a caveat. Sometimes a party used to
obtain an ex parte order on an application without informing the other party of his
intention of making such an application. Where a party, with a view to preventing such
ex parte orders, being passed intimates to the Court of his intention to have notice of
an intended application by the adverse party he may be authorised to do so by lodging
a caveat in respect thereof.
When a caveat has been lodged as above, the person lodging the caveat (caveator)
must serve a notice of the caveat by registered post, acknowledgment due, on the
person by whom the application has been, or is expected to be made. Where, after a
caveat has been lodged as above, any application is filed in any suit or proceedings, the
Court must serve a notice of the application on the caveator. When a notice of caveat
has been served on the applicant, he must forthwith furnish the caveator at the
caveator's expenses with a copy of the application made by him and also with copies
of any paper or document which has been, or may be, filed by him in support of the
application.
It has further been provided by sub-section (5) of this newly added section that where a
caveat has been lodged under sub-section (1) such caveat should not remain in force
for an indefinite period but a time limit of 90 days has been prescribed unless another
application is made before the expiry of that period.
The object of section 148-A is two-fold. First it provides an opportunity to the opposite
party to be heard before an order is passed and to show cause why the order should
not be passed. Secondly, it avoids multiplicity of proceedings, because if such a
provision was not there, the affected person would have to file a separate proceeding
to have the adverse order set aside.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 149. Power to make up
deficiency of Court-fees.
© 2020 LexisNexis
S. 149. Power to make up deficiency of Court-fees.
Where the whole or any part of any fee prescribed for any document by the law for the
time being in force relating to Court-fees has not been paid, the Court may, in its
discretion, at any stage, allow the person, by whom such fee is payable, to pay the
whole or part, as the case may be, of such Court-fee; and upon such payment the
document, in respect of which such fee is payable, shall have the same force, and
effect as if such fee had been paid in the first instance.
COMMENT.—
This section empowers the Court to allow a party to make up the deficiency of Court-
fees payable on plaints, etc., even after the expiration of the period of limitation
prescribed for the filing of these documents. In other words, this section enables a
defective document to be retrospectively validated if the insufficiency of the stamp is
subsequently made up with the leave of the Court. The power of the Court under this
section is discretionary and a party cannot claim it as a matter of right. This provision
is an enabling one. It empowers the Court to allow a party to make the deficiency of
Court-fee payable on plaints, memoranda of appeal, applications for review of
judgments and even after the expiration of period of limitation prescribed for the filing
of these documents. It mitigates the rigour of section 4 of the Court Fees Act, 1870. It
is for the Court to harmonise these provisions of both the Acts and allow the deficit to
be made good within a period of time fixed by it. If the deficit is made good, then no
possible objection can be raised on the ground of bar of limitation as the section 149
enables a defective document to be retrospectively validated.127
Discretion in favour of litigating party.—
Ordinarily discretion under section 149 is to be exercised in favour of litigating parties

unless there are manifest grounds of mala fides. Concealment of material facts while
making an application of extension of date for payment of Court fee can be a ground
for the dismissal of the plaint. The rejection of appellant's application by Court of sub
Judge for extension of time for remitting balance court fee which he was unable to pay
due to financial constraints was held to be erroneous and liable to be set aside.128
Balance Court-fee to be deposited in time given.—
When the lower appellate Court came to hold that the memorandum of appeal had not
was not proper.129
If in an appeal under section 54 of the Land Acquisition Act the Court-fee amount is
initially kept low and then depending upon the mood of the appellate Court, payment of
deficit Court-fee is sought to be made, then it would become a game of chess and a
matter of chance. Such method to pay the deficit Court-fee should not be
encouraged.130
Section 149 of the Code raises a legal fiction in terms whereof as and when such
deficit court fee is paid, the same would be deemed to have been paid in the first
instance. If the Court fee is not available in a Sub-treasury for one reason or the other
the Court would not reject the prayer of the suitor in this regard.131
At any stage.—
It has been held by the Supreme Court that the Court can also enlarge the time even
after the lapse of the period originally fixed by it.132
Deficiency in Court fee in respect of plaint can be made good during the appellate
proceedings.133
Under section 149 no amount of lapse of time fetters power of Court to direct payment
of deficit court fee. And therefore, as a logical corollary plaintiff cannot be said to be
barred from paying deficit court fee because of lapse of time. Section 149 however,
does not confer an absolute right in favour of plaintiff to pay deficit court fee as and
when it pleases him. The said provision only enables plaintiff to seek indulgence of
Court to permit payment of deficit court fee subsequent to the presentation of the
plaint. Under section 149 the power is discretionary in nature, to allow payment of
deficit court fee. The exercise of the said discretion is conditional upon satisfaction of
the Court that the plaintiff offered a legally acceptable explanation for not paying court
fee within the period of limitation. In the present case as the discretion under section
149 was not exercised by the trial Court in accordance with principles of law, hence,
High Court rightly set aside it in revision and directed the trail Court to strike off the suit
from its file.134
It has been held by the Punjab High Court that, O VII, rule 11 does not apply to appeals
and time for payment of deficit Court-fee can be granted under section 149 and not
under O VII, rule 11 read with section 107 of the Code.135
An arbitration award was returned for deficiency in stamp and absence of date of
verification. Subsequently, there was delay in filing the petition and the High Court
refused to condone the delay. The refusal was unjustified on the facts as under this
section the High Court had ample jurisdiction to allow the person by whom Court-fees
is payable at any stage. As regards the defect of the date of verification, that was a
defect not to be regarded as material one.136
It has been held by a Full Bench of Punjab and Haryana High Court in Raj Kumar v Amar
Singh, AIR 1981 P&H 1 (FB) that under O XLI, rule 3, the appellate Court is not bound to
allow the appellants an opportunity to make up the deficiency in Court-fee. But O XLI,
rule 3 of the Code, in no way, whittles down the exercise of discretion of the appellate
Court under section 149 of the Code of Civil Procedure, whereunder an opportunity can
be granted to the appellants to make up the deficiency in Court-fee.
The permission to make good deficit Court fee can be granted only if Court fee is
deficit at time of institution of suit. Where proper Court fee on suit claim was paid at
the time of institution and plaintiff's entitlement was subsequently found to be larger,
the permission to pay deficit Court for could not be granted.137
127 Mannan Lal v Chhotka Bibi, AIR 1971 SC 1374 (1379) : (1970) 1 SC 769 : 1971 ALJ 569 .
128 Manoharan v Sivarajan, (2014) 4 SCC 163 .
129 Mohammad Mahibullah v Seth Chaman Lal, AIR 1993 SC 1241 : (1991) 4 SCC 529 .
130 Buta Singh v UOI, AIR 1995 SC 1945 (1947) : (1995) 5 SCC 284 .
131 PKPalamisamy v NArumugham, (2009) 9 SCC 173 (179).
132 AIR 1961 SC 881 (Supra).
133 Tajender Singh Gambhir v Gurpreet Singh, (2014) 10 SCC 702 .
134 A Nawab John v VNSubramanium, (2012) 7 SCC 738 .
135 TC Dhanpat v Matu Ram, AIR 1970 Punj 273 .
136 Indian Statistical Institute v Associated Builders, AIR 1978 SC 335 (340) : (1978) 1 SCC 483 :
(1978) 2 SCR 338 .
137 KC Skaria v Govt of State of Kerala, AIR 2006 SC 811 (817).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 150. Transfer of business
© 2020 LexisNexis
S. 150. Transfer of business
Save as otherwise provided, where the business of any Court is transferred to any
other Court, the Court to which the business is so transferred shall have the same
powers and shall perform the same duties as those respectively conferred and
imposed by or under this Code upon the Court from which the business was so
transferred.
COMMENT.—
Transfer of business.—
Unless a business is removed from the hands of one Court and placed in the hands of
another, there cannot be a transfer of business, and that a business cannot be said to
have been removed or transferred from Court A to Court B if Court A continues to have
powers to deal with that business. It is a general principle of law that where a Court has
jurisdiction to entertain a suit or proceeding at the time of its institution, such
jurisdiction is not lost by the subsequent transfer of the area or territory with reference
to which the suit or proceeding was instituted. In other words, the suit or proceeding in
one Court at the time of the transfer of the local area is not removed or transferred to
the Court to which the area is transferred.
It follows that there is no "transfer of business" effected by the transfer of a particular

area so far as pending suits and proceedings are concerned.138
Abolition of Court.—
Where a Court is abolished, its proceedings can be continued by the Court which would
have jurisdiction to entertain the suit if it was instituted at the time when the
proceedings are sought to be continued. If a new Court is established in the place with
the same jurisdiction as the old one it can continue the proceeding unless they have
been transferred to some other Court.139
Powers and duties of transferee Court.—
The Court to which the business of other Court has been transferred has the power to
grant leave under O III, rule 4, sub-rule (2) for the determination of the appointment of a
pleader. Thus, if a suit with an order of injunction passed therein is transferred from
one Court to another, the transferee Court will have powers co-extensive with the
powers of the transferring Court. Section 150 would apply and the transferee Court
could exercise powers under O XXXIX, rule 2(3).140 Similarly, where the business of
Court A is transferred to Court B on transfer of territorial jurisdiction, Court B can set
aside an ex parte order passed by Court A141
A surety bond executed in favour of District Judge, his successors, successors-in-office
and assigns in respect of a pending suit after transfer of suit to subordinate Judge. The
latter by virtue of section 150 was entitled to exercise the same powers in the matter of
enforcement of the bond as the District Judge himself.142
138 Mehar Singh v Kasturi Lal, AIR 1962 Punj 394 : (1961) 2 Punj 445; see also P Nadar Maryaru
Nadar v M Pillai Nanu, AIR 1957 Trav Co 61 (FB).
139 Daji Saheb v Shanker Rao, AIR 1956 SC 29 : (1955) 2 SCR 872 : 56 Bom LR 496.
140 Sheobrich Singh v Basgit Singh, AIR 1957 Pat 73 (DB).
141 PN Kalathi Mudaliar v Ellamal, AIR 1964 Mad 463.
142 Howrah Insurance Co v Sachindra MD Gupta, AIR 1975 SC 2051 (2953) : (1975) 2 SCC 523 :
(1976) 1 SCR 356 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 151. Saving of inherent
powers of Court
© 2020 LexisNexis
S. 151. Saving of inherent powers of Court
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power
of the Court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court.
COMMENT.—
Inherent power.—
All such powers as may be necessary to do the right and to undo a wrong in the course
of the administration of justice constitute an inherent power of the Court.—The aim of
the Legislature in enacting the various provisions of the laws of procedure is to serve
the ends of justice.143 In so far as the matter in question in any particular case or topic
falls within the ambit of the express provisions of the statute, the inherent powers of
the Court must, to that extent, be regarded as abrogated by the Legislature. The Court
cannot have recourse in such cases, to inherent powers.144 But there will always be
cases and circumstances which are not covered by the express provisions of the
statutes wherein justice has to be done.145
Inherent powers under section 151 can be exercised by the Court to redress only such
a grievance for which no remedy is provided for under the code of Civil Procedure.
Section 151 is a mere procedural provision which enables the party to have the
proceedings of a pending suit conducted in a manner that is consistent with justice
and equity. The said inherent powers cannot be used to reopen settled matters or to
restrain the execution of a decree at the instance of one who was not party to the suit.
Consolidation of suits is not provided for in Code of Civil Procedure but can be done
under section 151 of the Code of Civil Procedure where a common question of facts
and law arises but not being a case of misjoinder of parties. However, the inherent
powers cannot be exercised in contravention of, or in conflict with or by ignoring any
express and specific provision of law.146
The mere existence of a power does not justify the exercise of the power. In the context
of the powers of the judicial bodies, all powers are required to be exercised with a view
to secure ends of justice.147
When there is a specific remedy available under the Code, it is settled law that an
application under section 151 of the Code is not maintainable.148
Object and scope of section 151 of the Code is to supplement and not to override or
evade other express provisions of the Code.149
Though an appeal lies against an order passed under O XI, rule 21 of the Code striking
out the defence of the defendant, the remedy provided by such an appeal will be
formality and the defendant may not have any relief in substance. The Court can
exercise the inherent power under section 151 of the Code.150
It is trite that the exercise of inherent power is not invoked for reviewing any order.151
Section 151 confers power upon Court if matter is not covered by rules 1 and 2 of O
XXXIX of the Code.152
The provision under section 151 of the Code does not confer any extraordinary
jurisdiction on this Court. It saves the inherent power of all the civil courts i.e. from the
trial Judge to Supreme Court. Thus, where a matter has expressly been provided for the
body of the Code, ordinarily inherent power shall not be resorted to.153
Where the prices of levy sugar were reduced by the Government, the mill owners
obtained stay of Government order and charged excessive price, the order of the
Government was upheld by the High Court, the consumers who had paid excess price,
held, must be repaid. The inherent power has its roots in necessity and its breath is co-
extensive with the necessity.154
Petitions under section 152 were filed for correction in amount of compensation were
not for the correction of any arithmetical or clerical errors but were made only for
amending award in view of change in law. Since no limitation is prescribed for such
petition, hence, such petition cannot be dismissed as barred by limitation.155
Inherent power should be resorted to in very exceptional circumstances.—
The inherent powers are to be exercised by the Court in very exceptional

circumstances, for which the Code lays no procedure.
The inherent powers must be exercised only in exceptional circumstances for which
the Code of Civil Procedure lays down no procedure. Where injunction order of the
Court is violated the Court can exercise its inherent powers to restore the order.156
Inherent powers can be exercised for the purpose of consolidation of suits.157
A High Court has jurisdiction to hold trials in camera or part of a trial in camera or to
prohibit excessive publication of a part of its proceedings. What would meet the ends
of justice will always depend upon the facts of each case and the requirement of
justice.158
The appellate Court is entitled to take into account even facts and events which have
come into existence after passing of the decree appealed against.159
The provisions of section 151 can be resorted to in the interest of justice.160
The power exercised under section 151 of the Code is ex debito justitiae. An application
invoking the inherent power of the Court under this section is not one which a party is
required to make under any provision of the Code for setting in motion the machinery
of the Court.161
Inherent powers cannot be exercised so as to nullify provisions of the Code. Where the
Code deals expressly with a particular matter, the provision should normally be
regarded as exhaustive.162
In such cases which do not fall within the ambit of the express provisions the inherent
powers of the Court to pass such orders, as may be necessary for the ends of justice,
remain. The section saves such inherent powers and it cannot be said that the Court
has no power to do the right or to undo a wrong merely because there is no express
provision dealing with the matter.163
The provision of section 151 is not applicable to implead legal representatives of a

deceased respondent when the suit has abated.164
In a land acquisition case an application for amendment of memo of appeal was

rejected by the High Court on the sole ground of delay. Such an order rejecting the
application was set aside as being illegal.165
The cardinal test to see whether the Court has not or has an inherent power to pass an
order in any particular case, is whether it falls within or without the ambit of the
provisions of the statute. In the former case, the Court cannot exercise any inherent
power, for it has none. In the latter case it would have inherent power to pass such
order as may be necessary to meet the ends of justice.
The Courts have inherent power to grant interim order even if such power is not
provided under a statute. In admission matters, however, such orders once obtained
created vested interest of avoiding final adjudication to enable the student to complete
the course and then invoke sympathy of the Court.166
If an order staying the execution is brought to the notice of the Court, then it can set
aside steps taken between the time the order was passed and the time it was brought
to the notice. It must be necessary for the Court to do in the interest of, justice.167
The purpose of remitting an award is to enable the arbitrator to reconsider the decision
where the legality was connected with the decision as contained in the award. It must
not relate to a matter which has no connection with the decision or decree.168
On the other hand, the Madhya Pradesh High Court has observed that the proper
approach is to see whether resort to inherent powers is expressly or impliedly
prohibited.169
This section does not confer any power, but only indicates that there is a power to
make such orders as may be necessary for the ends of justice and to prevent an abuse
of the process of the Court. The Supreme Court observed in Manohar Lal v Seth Hira
Lal, AIR 1962 SC 527 as under:-
The inherent power has not been conferred on the Court it is a power inherent in the Court
by virtue of its duty to do justice between the parties before it.
To permit the payment of deficit Court-fees for recovering enhanced compensation

after a lapse of almost six years by the Court under its inherent jurisdiction would
encourage the practice of not paying the Court-fees. They would hope as and when the
valuation is determined in appeal, the jurisdiction of the Court can be invoked under
section 151 of the Code. The benefit of enhanced compensation can be reaped by
making good the deficit Court-fees.170
Under section 151, a Court has no power to do that which is prohibited by the Code.
Thus, for example, a Court has no power to alter or add to a judgment after it is signed,
as it will be a direct contravention of O XX rule 3 of the Code. The Court cannot make
use of the special provisions of this section where a party has his remedy provided
elsewhere in the Code and he neglects to avail himself of the same. Further more, the
power under this section cannot be exercised as an appellate power as held in Nain
Singh v Koonwarjee, AIR 1970 SC 997 : (1970) 1 SCC 732 : (1971) 1 SCJ 252 .
The events and changes in law occurring during pendency of appeal can be taken into
consideration and decree can be moulded accordingly by the Supreme Court.171
Grant of reliefs, only if not prohibited any where.—The relief can be granted in exercise of
inherent powers only if it is not prohibited under any provision. Therefore, the Court
exercising the power under section 151 first has to consider whether exercise of such
power is expressly prohibited by any provision of the Code and if there is no such
prohibition then the Court will consider whether such power should be exercised or not
on the basis of the facts and circumstances of the case.172
Amendment of pleadings just before appellate judgment.—
Sometimes it happens that the original relief claimed becomes inappropriate or the law
changes affecting the rights of the parties. In such cases the Courts may allow an
amendment pleading the changed circumstances. Sometimes also the changed
circumstances shorten litigation and then to avoid circuitry of action the Courts allow
an amendment.173
The inherent powers of the Court under this section can be exercised as the section
itself indicates in the following two ways:—
(1) For the ends of justice and (2) To prevent the abuse of the process of the Court.
Under the former, two rules relating to the ends of justice may be noted, namely— (i) it
is in the ends of justice that an injury should be remedied and needless expense and
inconvenience to parties avoided (ii) it will not be in the ends of justice to exercise
inherent powers if it would interfere with the rights of third parties or cause mischief or
injustice.
Under the latter, the Court has no power to override the express provisions of the law.
Hence, no appeal can be allowed from a non-appealable order by invoking the aid of
this section.
We may now refer to some decisions of the Supreme Court in this regard. It was
observed in Arjun Singh v Mohindra Kumar, AIR 1964 SC 993 : (1964) 5 SCR 946 : (1964)
2 All 590 as follows:-
It is sufficient if we proceed on the accepted and admitted limitations on the existence of

such jurisdiction. It is common ground that the inherent power of the Court cannot override
the express provisions of the law.
A Full Bench of the Andhra Pradesh High Court held that interim maintenance can be
granted by family Court under this provision to wife and children in a suit for
maintenance under the Hindu Adoption and Maintenance Act against husband.174
A High Court is not competent to assume to itself jurisdiction which it does not
otherwise possess merely because an "extraordinary situation" has arisen. The power
under this section may be exercised by the Court where there is a proceeding lawfully
before the High Court. It does not, however authorise the Court to invest itself with
jurisdiction where it is not conferred by law.175
Orders can be recalled.—
No Court or tribunal can be regarded as powerless to recall its own order if it is

convinced that the order was wangled through fraud or misrepresentation of such a
dimension as would affect the very basis of the claim.176
Orders cannot be recalled.—
The fact that public notice of claim was not served in the locality is mere irregularity
and does not occasion failure of justice. It is certainly not a fact striking at the very
jurisdiction of the authority passing the order. Recalling of order on this ground is not
warranted. An order made on time barred application is not without jurisdiction but an
illegal order. It cannot be recalled.177
Creation of sub-lease is illegal, where status quo ordered.—
Where status quo has been ordered in respect of some property, the creation of sub-
lease in such property is illegal, even if it be by a tenant who was not party to the
interlocutory application for status quo.178
A Court will have a discretion in exercise of its inherent jurisdiction to grant stay of the
suit or refuse the same. Under this section the burden will be on the party seeking stay
to establish facts for exercise of discretion in favour of such party.179
Some of the instances where the Court has an inherent power:
1. to order joint trial;
2. to postpone the hearing of suits;
3. to stay cross-suits;
4. to ascertain whether proper parties are before it;
5. to entertain the application of a third person to be made a party;
6. to set aside a sale brought about by fraud practiced in the Court;
7. to restore a suit dismissed for default in cases not provided by O IX, rule 9;
8. to correct its own mistake;
9. to review an interlocutory order made in Chambers;
10. to direct the parties to deposit additional fees to a Commissioner.
In the exercise of its inherent jurisdiction, if the Court comes to the conclusion that an
order of injunction has been breached, it may bring back the parties to the same
position as if the order of injunction has not been violated.180
The power and duty of Court to set right the wrong done in disobedience of a restraint
order or an injunction and not to allow perpetuation of the wrong doing is not only
available under section 151 but is bound to be exercised in that manner in the interest
of justice and public interest.181
The Court has inherent power to grant injunction under section 151 of the Code, even if
the same is not covered by O XXXIX rules 1 and 2 of the Code.182
Both the parties after executing deed of Divorce which was notarised got remarried
acting under bonafide belief that their marriage had come to an end on execution of
deed of Divorce. No fruitful purpose could be achieved by forcing parties to wait for six
months in passing of a decree. In such a situation the Court may take recourse to its
inherent powers under section 151 of the Code of Civil Procedure to meet the ends of
justice.183
An ex parte decree can be set aside for non-appearance of the counsel of a party or
where the absence of a defendant is caused on account of the mistake of the Court or
in the event that an ex parte order has been obtained by fraud upon the Court or by
collusion. Thus, where a Court employs a procedure to do something that it never
intended to do, and there is miscarriage of justice, or an abuse of the process of Court,
the injustice so done must be remedied, in accordance with the principle of actus curiae
nemi nem gravavit- an act of the court shall prejudice no person.184
Withdrawal of application to withdraw the suit can be permitted by the Court under its
inherent power. Such power has to be exercised in accordance with law and the
purpose for which it is meant. The mere existence of a power does not justify the
exercise of the power. In the context of the powers of the judicial bodies, all powers are
required to be exercised with a view to secure ends of justice.185
It is well settled that the primary duty of the Court is to see that the truth comes out.
Therefore, although medical examination of a party is not provided in the Hindu
Marriage Act, even then, the Court has complete inherent power in an appropriate case
under section 151 of the Code of Civil Procedure to pass all orders for doing complete
justice to the parties to the suit.186
Some of the instances where the Court cannot exercise its inherent power:
Inherent powers of the Court cannot be exercised in contravention or conflict of or

ignoring express and specific provisions of law. Section 151 cannot be invoked for
transferring a case from one Court to another as exhaustive law relating to transfer of
cases is contained in sections 22 to 25 of the Code.187
Inherent power cannot be exercised in contravention to the specific provisions of the

Code. The principles and practices relating to levy of costs in administrative law
matters cannot be imported mechanically in relation to civil litigations governed by the
Code.188
Provisions of section 151 of the Code of Civil Procedure cannot be invoked to do

indirectly what is not permitted to be done directly. Application for stay of proceedings
not maintainable under section 9 of the Arbitration and Conciliation Act, 1996 could not
be entertained under section 151.189
A High Court has no inherent power to grant stay of the realisation of the income-tax in
the reference pending before it.190
The Court cannot circumvent the provisions of section 10 of the Code.191
Application filed for filing of certain documents (submission of bills) at a belated stage,
where evidence had concluded and the arguments were heard, then, even inherent
powers under section 151 cannot be used for its acceptance.192
The Court cannot grant future interest after the date of the decree if the decree is silent
on the point. [See section 34(2) of Code of Civil Procedure].
Where the Constitution of selection committee to conduct written test and interview of
candidates for recruitment of the employees in a religious trust is provided, it is not
proper for Court to nominate a judicial officer as member of the committee and thus
associate itself with the process of selection of candidates.193
Where an award was passed without error, and the Court amended it to enhance
solatium and statutory benefits as per amended law, such as amendment to the award
is not proper. A High Court has no power to amend the decree to award enhanced
statutory benefits. The decree passed by the High Court is without jurisdiction and a
nullity. Sections 151 and 152 Code of Civil Procedure cannot be invoked to award the
additional benefits under the amended law.194
When the proceedings under Article 226 of the Constitution of India stand terminated
by final disposal of writ petition, it is not open to the Court to reopen the proceedings by
means of a miscellaneous application.195
The Court cannot entertain an appeal from non-appealable order. [See sections 104
and 105].
The Court cannot alter its judgment after once it has been signed [See O XX, rule 2,
Code of Civil Procedure].
Where a decree has become final, it cannot be amended by executing Court or

reference Court by exercising powers under this section and O XLVII, rule 1. Even
entertaining an application for amendment of decree by reference Court is devoid of
power and jurisdiction.196
A High Court has no power or jurisdiction to entertain any applications under sections
151 and 152 to correct any decree which has become final or to independently pass an
award enhancing the solatium and interest. The order of the High Court granting
enhanced solatium and interest is nullity.197
Inherent power of the Court cannot be invoked to consider a claim application by a

third party before actual attachment, as held by a Full Bench of Kerala High Court.198
The Court cannot set aside an ex parte decree under its inherent powers.
An application to the High Court under section 151 read with section 141 for
clarification of revisional order was filed. The High Court passed order ex parte which
could more appropriately be passed in appeal or revision. The order is invalid.199
An application filed under the provisions of different statutes cannot be treated as a

suit or plaint unless otherwise provided in the said Act. This section cannot be applied
to such cases.200
It has been held in Cotton Corpn of India v United Industrial Bank, AIR 1983 SC 1272 :
(1983) 4 SCC 625 that inherent power of the Court cannot be invoked to nullify or
stultify a statutory provision.
Exercise of inherent powers.—
Inherent powers under section 151 of the Code should be exercised logically from legal
findings and judicial decisions must be based on these findings.201
Institution of proceedings for undue advantage to be prevented.—

Where it was found that the proceeding was instituted mala fide and it was only a sharp
practice designed to abuse of process of law and to take undue advantage, the
Supreme Court is entitled to prevent it. The payment of Rs. 50,000 was ordered by the
Supreme Court as exemplary costs.202
Permission for oral evidence.—
The oral evidence though ordinarily not permitted, can be permitted in peculiar facts
and circumstances of the case.203
Abuse of process of law is to be prevented.—
By filing a petition for eviction on the ground of reconstruction, a landlady obtained

possession of the premises but she did not do it. The Court allowed the tenant to put
up the reconstruction. The Municipality and State took all steps to stall the
reconstruction at the behest of the son of the landlady who was a municipal councillor.
When the State filed a special leave petition, the Supreme Court ordered payment of Rs.
10,000 as exemplary costs collecting the same from the officers who were responsible
to take decision to file an SLP.204
In a contract to carry logs on board the vessel from foreign port for discharge at port of
Calcutta, the logs were short landed. A suit for recovery of value of short landed logs
and other charges was filed. The material facts on basis of which decree was claimed,
were alleged in plaint. The fact that clause 3 of Bill of Lading giving exclusive
jurisdiction to foreign Court to try any dispute between parties and clause 9 of B 02
absolving earlier ship from liability in respect of loss or damage was not pleaded. The
plaintiff would not be guilty of suppression of material facts. There was no abuse of
process of Court. Stay of proceedings in suit on above said grounds was liable to be
set aside.205
Rectification of unintentional mistake.—
Applying the well-known maxim actus curiae neminem gravabit that an act of Court
should do not harm to a litigant, it was held that the mistake should be rectified by the
Court and the parties relegated to the position on the date when the mistake
occurred.206
The adverse remarks made by the appellate Court against the judicial officer with
direction to place it in service record was liable to be expunged, as it was uncalled for
being passed in absence of judicial officer.207
Correcting the order.—
An order dismissing the execution on part satisfaction was bad and the Court was
justified in correcting it under its inherent powers. The errors of law and fact which
have relation to the jurisdiction of the Court to try the dispute itself, i.e., jurisdictional
error of law and fact can be corrected.208
When there is a valid arbitration agreement, there is nothing wrong if the Court refused
to stay the arbitration proceedings.209
Whether appeal lies.—
There is a conflict of opinion on whether an appeal lies against an order made in the
inherent jurisdiction of the Court. Thus, the Madras High Court has held that an appeal
lies from an order made under section 151 whereas the Lahore High Court and Patna
High Courts have taken the view that no appeal would lie from an order passed under
the inherent jurisdiction of the Court.
Order passed, neither appealable nor revisable.—
An order passed under section 151 simpliciter is neither appealable nor revisable in
view of the provisions of sections 104 and 105 read with O XLIII, rule 1 of the Code of
Civil Procedure.210
An appeal was filed against order dismissing the application under sections 151 and
152 of the Code of Civil Procedure for correction of final decree in partition suit. The
question was whether property in dispute was subsequently leased out and whether
the lease was bound by the settlement arrived at between the parties to suit. The
question could not be gone into an appeal under Article 133 of the Constitution of
India.211
The rigor of O XVIII rule 17, does not affect the inherent powers of the court to pass the
required orders for ends of justice, to reopen the evidence for the purpose of further
examination or cross examination or even for production of fresh evidence. This power
can be exercised at any stage of the suit even after closure of evidence.212
143 P Sirajuddin v Government of Madras, AIR 1962 Mad 117 (131, 132).
144 Nain Singh v Koonwarjee, AIR 1970 SC 997 (998) : (1965) 2 SCR 186 : 67 Bom LR 779;
Ramkarandass v Bhagwan Dass, AIR 1965 SC 1144 (1145) : (1980) 1 SCC 732 ; Mahendra Munilal
Nanawati v Sushila M Nanawati, AIR 1965 SC 364 (399); Manoharlal Chopra v Raj Bahadur Rao
Raja Sethi Hiralal, AIR 1962 SC 527 (538); Padam Sen v The State of UP, AIR 1961 SC 218 : 1972
Guj 26 (30). (The Code having dealt with the functions of the Commissioner appointed under O
XXXIX, rule 7, there could be no scope for invoking inherent powers for clothing the
Commissioner with additional Powers). Surendranath v Harihar, AIR 1971 Ori 77 (80); see also
Pirubhai v Trikamal, AIR 1969 Guj 285 (290).
145 AIR 1918 Mad 580 (584) (FB). Transfer of decree for execution to Native State Courts see
also Rahim v Karim, AIR 1967 J&K 93 (95).
146 Ramji Gupta v Gopi Krishan, (2013) 11 SCC 296 .
147 Rattan Bai v Ram Dass, AIR SC 2012 SC 1476 .
148 Rameswar Sarkar v The Collector Nadia, 2009 (1) Cal LJ 303 (305) (DB).
149 State of UP v Roshan Singh, (2008) 2 SCC 488 .
150 National Bank Ltd v Dulal Kanti Chowdhury, 2010 (2) Cal LJ 360 (366) (DB).
152 Tanusree Basu v Ishani Pd Basu, AIR 2008 SC 1909 .
153 Nahar Industrial Enterprises Ltd v Hong Kong & Shenghai Banking Corpn (2009) 8 SCC 646
(703).
154 Newabganj Sugar Mills v UOI, AIR 1976 SC 1152 (1155) : (1976) 1 SCC 120 : (1976) 1 SCR
803 .
155 Spl L A Officer v DV Rangannavar, AIR 2006 SC 4099 (4100).
156 Meera Chauhan v Harsh Bishnoi, (2007) 12 SCC 201 .
157 Chitivala Jute Mills v Jaypee Rewa Cement, AIR 2004 SC 1687 (1689).
158 Naresh S Mirajkar v State of Maharashtra, AIR 1967 SC 01 (10).
159 Mithitesh Kumari v Prem Behari Khare, AIR 1989 SC 1247 (1253) : (1989) 2 SCC 95 : 177 ITR
97 : 1989 Mah LJ 210 .
160 Biswarup Banerjee v Madhukar Nowlakha, AIR 2006 SC 1260 (1263).
161 G Christhudas v Anbiah, AIR 2003 SC 1590 (1592) : (2003) 2 SCC 502 .
162 National Institute of DTH & N Sciences v C Parmeshwara, AIR 2005 SC 243 (245).
163 (1897) 19 All 155 (164); UAungya v Government of Burma, AIR 1940 Rang 162 (167); see
also (1971) 2 AP LJ 463 (467); A Nayak v KBehera, AIR 1971 Ori 192 (193); Mohan Singh v
Roshan Lal, AIR 1970 Del 88 (90).
164 UOI v Ram Charan, AIR 1964 SC 215 (218) : (1964) 3 SCR 467 .
165 Harcharan v State of Haryana, AIR 1983 SC 43 (45) : (1982) 3 SCC 408 .
166 State of Maharashtra v Admane Anita Moti, AIR 1995 SC 350 : (1994) 6 SCC 109 .
167 Mulraj v Murti Raghunathji, AIR 1967 SC 1386 : 1967 ALJ 593 : (1967) 2 All 412 .
168 Ashok Kasyap v Sudha Vasisth, AIR 1987 SC 841 : (1987) 1 SCC 717 .
169 Gulam Ali v Vishwanath, AIR 1962 MP 308 .
170 Scheduled Caste Coop Land Owing Society v UOI, AIR 1991 SC 730 (734) : (1991) 1 SCC 174
: (1991) 1 PLR 324 .
171 Bai Dosabai v Mathurdas, AIR 1980 SC 1334 (1339) : (1980) 3 SCC 545 .
172 Shipping Corpn of India Ltd v Machado Brothers, AIR 2004 SC 2093 (2098).
173 Nair Service Society v KC Alexander, AIR 1968 SC 1165 (1177) : (1968) 3 SCR 1165 ; Surinder
Kr v Gian Chand, AIR 1957 SC 875 ; LJ Leach v JS & Co, AIR 1957 SC 357 ; PH Patil v KS Patil, AIR
1957 SC 363 ; AK Gupta v Damodar v Corpn, AIR 1967 SC 96 : (1966) 1 SCR 796 : 1966 BLJR 340
(relied on).
174 P Srinivasa Rao v Indira, AIR 2002 AP 130 (140) (FB), overruling the earlier decision in G
Appanna v G Seetamma, AIR 1972 AP 62 .
175 Raja Soap Factory v SP Shantharaj, AIR 1965 SC 1449 : (1965) 2 SCR 800 .
176 United India Insurance Co Ltd v Rajender Singh, AIR 2000 SC 1165 (1167) : (2000) 3 SCC 581
: 2000 All LJ 849.
177 Budhia Swain v Gopinath Dev, AIR 1999 SC 2089 (2091, 2092).
178 Satyabrata Biswas v Kalyan Kumar Kisku, AIR 1994 SC 1837 (1843) : (1994) 2 SCC 266 .
179 Ramji Dayawala & Sons v Invest Import, AIR 1981 SC 2085 (2093) : (1981) 1 SCC 80 : (1981)
1 SCR 899 .
180 Arjan Singh v Punit Ahluwallia, (2008) 8 SCC 348 (356).
181 All Bengal Excise Licensees' Assocn v Raghabendra Singh, (2007) 11 SCC 374 (386-400).
182 Tanusree Basu v Ishani Pd Basu, (2008) 4 SCC 791 .
183 Re: Mittal Ramesh Panchal, AIR 2014 Bom 80.
184 Ramji Gupta v Gopi Krishan, (2013) 11 SCC 296 (Para 15).
185 Rattan Bai v Ram Das, AIR 2012 SC 1476 .
186 Amol Chavhan v Smt Jyoti Chavhan, AIR 2012 MP 61 .
187 Durgesh Sharma v Jayshree, (2008) 9 SCC 648 (667).
188 Ashok Kumar Mittal v Ram Kr Gupta, (2009) 2 SCC 656 (659).
189 Rameshkumar Nathal Chordiya v Learned Principle Judge, Wardha, AIR 2014 Bom 1 .
190 CIT, Delhi v Bansi Dhar, AIR 1986 SC 421 (430) : (1986) 1 SCC 523 : 157 ITR 665.
191 Manohar v Hiralal, AIR 1962 SC 527 : (1962) 1 SCR 422 : (1961) 2 LLJ 419 .
192 Bagai Construction v Gupta Building Store, AIR 2013 SC 1849 (Para 14 and 15).
193 Guruvayoor Devaswom Managing Committee v Chairman GDMC, AIR 1996 SC 3337 : (1996)
7 SCC 505 .
194 UOI v Rangila Ram, AIR 1996 SC 206 .
195 State of Haryana v Babu Singh, AIR 2009 SC 472 (476, 477); see also State of UP v Brahm
Dutt Sharma, (1987) 2 SCC 179 : AIR 1987 SC 943 .
196 Bai Shakriben v Special Land Acquisition Officer, AIR 1996 SC 3323 : (1996) 4 SCC 533 ; see
also UOI v Raghubir Singh, AIR 1989 SC 1933 : (1989) 2 SCC 754 : 178 ITR 548.
197 UOI v Swaran Singh, AIR 1997 SC 462 .
198 Marikar Motor Ltd v The Chief Enforcement Officer, AIR 1973 Ker 1 (FB) : (1955) 1 SCR 108 .
199 DLFHousing & C Co v Sarup Singh, AIR 1971 SC 2324 (2328) : (1969) 3 SCC 807 .
200 PA Ahammed Ibrahim v Food Corpn of India, AIR 1999 SC 3033 (3035).
201 State of Haryana v Babu Singh, (2008) 2 SCC 85 .
202 Municipal Corpn Delhi v Kamla Devi, AIR 1996 SC 1733 (1735) : (1996) 8 SCC 285 .
203 Meera Chauhan v Harsh Bishnoi, (2007) 12 SCC 201 .
204 State of Kerala v Thrassia, AIR 1994 SC 1488 (1490) : 1995 Supp (2) SCC 449 .
205 Mayar (HK) Ltd v Owners & Parties, Vessel MV Fortune Express, AIR 2006 SC 1828 .
206 Om Prakash Marwah v Jagdish Lal Manwah, (2009) 1 SCC 510 (513); See also Jang Singh v
Brij Lal, AIR 1966 SC 1631 ).
207 Prakash Singh Teji v NIG Transport Co Pvt Ltd, AIR 2009 SC 2304 .
208 Keshardeo v Radhakissen, AIR 1953 SC 23 (27) : 1953 SCR 136 : 1953 ALJ 101 : 1953 BLJR
70 .
209 National Agricultural Coop Marketing Federation of India Ltd v Alimenta SA, AIR 1989 SC 818
(822) : 1989 Supp (1) SCC 308 .
210 Keshardeo v Radhakissen, AIR 1953 SC 23 (27) : 1953 SCR 136 : 1953 ALJ 101 : 1953 BLJR
70 .
211 Saksena Brothers v BC Banerjee, AIR 1977 SC 1719 : (1977) 2 SCC 76 .
212 Ram Rati v Mange Ram, AIR 2016 SC 1343 : 2016 (3) SCALE 219 : (2016) 11 SCC 296 : 2016
(9) SCJ 69 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 152. Amendment of
judgments, decrees or orders
© 2020 LexisNexis
S. 152. Amendment of judgments, decrees or orders
Clerical or arithmetical mistakes in judg ments, decrees or orders or errors arising

therein from any accidental slip or omission may at any time be corrected by the
Court either of its own motion or on the application of any of the parties.
COMMENT.—
The correctional jurisdiction conferred by section 152 is limited and confined only to
the correction of mistake or omission mentioned therein. An arithmetical mistake is a
mistake of calculation, a clerical mistake is a mistake in writing or typing. An error
arising out of or occurring from an accidental slip or omission is an error due to a
careless mistake or omission unintentionally made. The accidental slip or omission is
made by the Court. The cause of such a slip or omission may be the judge's
inadvertence or the advocate's mistake.213
The power of the Court under section 152 is limited to rectification of clerical and
arithmetical errors arising from any accidental slip or omission. There cannot be
reconsideration of the merits of the matter and the sole object of the provision is based
on the maxim actus curiae neminem gravabit.214
The power of rectification of clerical errors, arithmetical errors or accidental slips in a

judgment, decree or order is confined to something initially intended by the Court but
left out or added against such intention.215
The principle behind the provision under section 152 of the Code is that no one should
suffer due to a bona fide mistake.216
The errors arising from accidental slip can be corrected subsequently not only in
decree drawn up but even in the judgment pronounced and signed by the Court, by the
ministerial officers. This rule does not affect the Court's inherent power under section
151.217
A decree confirmed, reversed or varied by the appellate Court can be amended only by
that Court.218
The power to amend a decree cannot be exercised so as to add or subtract from any
relief granted earlier. The Court cannot award pendente lite interest as it is not covered
by an accidental omission or mistake.219
Provision under section 152 should not be construed in a pedantic manner.220
Modification/Clarification of Final Order.—

When facts which were not brought before the Court at the time of judgment sought to
be brought on record by filing interim applications cannot be the legitimate basis for
modification of judgment.221
Those typographical/clerical errors which are not legal errors and which require no
review and which have crept in through inadvertence can be corrected under section
151, 152.222
Office mistake in drafting preliminary decree in suit for recovery of money, then such a
decree can be corrected under section 152.223
Mistake in calculation and accounting committed by the trial Court was rectified by the
appellate Court, even though no cross objection had been filed.224
A power to amend a decree cannot be exercised so as to add to or subtract from any

relief granted earlier.225
It has accordingly been held by the Punjab High Court that the Court must satisfy itself
that a clerical mistake, etc. has occurred before acting under this section.226
If a party thinks that the happenings in the Court have been wrongly recorded in a
judgment, then it would be incumbent upon him to call the attention of every judge who
has made the record, as the matter would be still fresh in his/her mind. It is the only
way to have the record corrected. If no such step is taken the matter must necessarily
end these. It is not open to the appellant to contend before Supreme Court to the
contrary.227
Section 29(5) of West Bengal Premises Tenancy Act, 1956 gives power to act under
sections 151 and 152 of the Code of Civil Procedure to the rent controller. But his order
dismissing application under section 16(3) of the Act while proceeding with fixation of
fair rent, is wrong. Such an order cannot be justified under section 29(5) of the Act as
the conditions necessary to exercise jurisdiction under sections 151 and 152 were
absent.228
There is no warrant for the review that the amendment petition under section 152 is a
continuation of the suit or proceedings therein, though connected with the order of
which the amendment is sought. Such a proceeding is governed by the law prevailing
on its date and not by the law prevailing on the date of that proceeding in which the
order sought to be amended was passed.229
The test to determine whether slip or omission is accidental or not is to see whether
the order as it stands represents the intention of the Judge at the time he made it and if
it does, then a mistake in it cannot be treated as an accidental slip or omission.230
Where a suit as to immovable property has been decreed and the property is not
definitely identified, the defect in the Court record is capable of being cured. Resort can
be had to section 152 or section 47 of the Code of Civil Procedure, depending on the
facts and circumstances of each case. An inadvertent error, not affecting the merits of
the case, may be corrected under section 152 by the Court which passed the decree by
supplying the omission. A decree of a competent Court should not, as far as
practicable, be allowed to be defeated on account of an accidental slip or omission.231
A High Court can correct inadvertent errors in decretal order drawn by it after an appeal
has been admitted by the Supreme Court but not disposed of, before date of
correction.
An application for claiming benefit conferred under the Land Acquisition Amendment
Act which came into force from September 1984 would not be maintainable under
section 152 of the Code. This provision can be invoked for limited purpose of
correcting clerical errors or arithmetical mistakes in judgment. The same cannot be
invoked for claiming substantive relief.232
Where a decretal order mentioned, "net profits" instead of "mesne profits", it was held by
the Supreme Court that the Court had the power to correct its decree under section
152.233
Where a Court awards only future interest despite of the prayer for grant of interest
from the date of alleged breach of contract it impliedly means that the Court rejected
the claim for pendente lite interest, and it was not an accidental omission or mistake.
Neither the trial Court nor the appellate Court has power to award pendente lite interest
under this section.234
Where an award was passed without error, and the Court amended it to enhance
solatium and stationary benefits as per amended law, such an amendment to the
award is not proper. A High Court has no power to amend the decree to award
enhanced statutory benefits. The decree passed by the High Court is without
jurisdiction and a nullity. Sections 151 and 152 of the Code of Civil Procedure cannot
be invoked to award the additional benefit under the amended law.235
Such errors arising from accidental slip can be corrected subsequently not only on the
decree drawn by the ministerial officer but even in the judgment pronounced and
signed by Court.236
Where a decree drawn up by the trial Court does not clearly specify extent and manner
of relief qua intention expressed in the judgment, the successful party can move to
High Court under this section seeking appropriate rectification of judgment.237
The use of word "may" shows that no party has a right to have a clerical or arithmetical
mistake corrected. The matter is left to the discretion of the Court. An order amending
the decree without notice to the party affected is a nullity and execution proceedings
taken pursuant thereto must be treated as void.238
A High Court has no power or jurisdiction to entertain any application under sections
151 and 152 to correct any decree which has become final. It can also not
independently pass an award enhancing the solatium and interest. The order of the
High Court granting enhanced solatium and interest is nullity.239
In a recovery suit by bank some of the reliefs claimed in the plaint were granted.
Almost after two years the decree was amended and thereby the reliefs refused earlier
were granted that too without noticing the defendant. The amended decree is liable to
be set aside as such of the prayers as were not granted by earlier decree would be
deemed to have been refused and to that extent the suit shall be deemed to have been
dismissed.240
It has been held by the Supreme Court in Saksena Brothers (P) Ltd v Bhudhar Chandra
Banerjee, AIR 1977 SC 1719 : (1977) 2 SCC 76 that where an appeal is filed against an
order dismissing the application under sections 151 and 152, the Supreme Court
cannot go into any questions of fact in such appeal.
Limitation.—
There is no time limit for an application under section 152.241

Correction of judgment by author himself.—
Where the author of the judgment himself admitted that there was a typographical
mistake, the High Court would not be right in coming to contrary conclusion.242
Court can rectify mistake.—
The Court may not have a suo moto power to amend a decree but the same would not
mean that the Court cannot rectify a mistake. If a property was subject matter of
pleadings and the Court did not frame an issue which it ought to have done, it can at a
later stage, when pointed out, may amend the decree.243
Power to correct, not be equated to power of review.—
The power to correct clerical or arithmetical errors in ajudgment cannot be equated

with power of review. An omission which goes to merits of the case cannot be
corrected.244
Validity of amendment of decree.—
Where suit for partition was decreed, amendment of decree seeking change in survey
no. of suit property, was not faulted as it was not a case of substitution of property.245
213 Master Construction & Co v State of Orissa, AIR 1966 SC 1047 (1049) : (1966) 3 SCR 99 :
(1966) 17 STC 360 .
214 Century Textiles Industries v Deepak Jain, (2009) 108 Cut LT 226 (231) (SC).
215 Jayalakshmi Coelho v Oswald Joseph Coelho, AIR 2001 SC 1084 (1089) : (2001) 4 SCC 181 .
216 Tilak Raj v Baikunthi Devi, 2009 (4) Bom CR (SC) 570 (B) : AIR 2009 SC 2136 : 2009 (3) All
MR 956 (SC). See also Shobha Ashokrao Deshmukh v Jagannath P Sinde, 2009 (4) Bom CR (AB)
575 : 2009 (5) All MR 20.
217 Samarendra v Krishna Kumar, AIR 1967 SC 1440 (1443).
218 Sital Prasad v Kishore Lal, AIR 1967 SC 1236 : (1967) 3 SCR 101 .
219 KRajamauli v AVKNSwamy, AIR 2001 SC 2316 : (2001) 5 SCC 37 .
220 Niyamat Ali Molla v Sonargon Housing Co-op Society Ltd, AIR 2008 SC 225 .
221 Satya Jain v Anis Ahmed Rushdie, (2013) 8 SCC 147 .
222 National Rubber Works v Daisy Mantosh, AIR 2003 Cal 284 (287).
223 State Bank of Hyderabad v B Rangaswamy, AIR 2004 AP 91 (92).
224 Kulamani Mohanty v Industrial Development Corporation of Orissa Ltd, Bargarh, AIR 2002 Ori
38 (42).
225 K Rajamouli v AVKN Swamy, (2001) 5 SCC 37 ; Plasto Pack, Mumbai v Ratnakar Bank Ltd,
2002 (1) Bom LR 520 (522).
226 Balwant Singh v Jagdish Singh Cheema, AIR 1971 Punj 474 .
227 Shankar KMandel v State of Bihar, AIR 2003 SC 4043 (4047).
228 AC Estates v Serajuddin, AIR 1966 SC 935 (939) : (1966) 1 SCR 235 .
229 Ganpat Rai v Chamber of Commerce, AIR 1952 SC 409 : 1953 SCR 752 : 66 MLW 1.
230 Namdeo Amrut Gohane v Narayan Shamrao, AIR 1971 Bom 121 .
232 Bijay Kumar Saraogi v State of Jharkhand, AIR 2005 SC 2435 ; State of Punjab v Darshan
Singh, AIR 2003 SC 4179 (followed); see also Managing Director, UPID Corpn v ADJ Ghaziabad,
2005 AIHC (3176) (All).
233 IL Jankirama Iyer v Nilakanta Iyer, AIR 1962 SC 633 (643) : 1962 Supp (1) SCR 206 .
234 Dwarka Das v State of Madhya Pradesh, AIR 1999 SC 1031 (1032, 1033) : (1999) 3 SCC 500 .
235 UOI v Rangila Ram, AIR 1996 SC 206 : (1995) 5 SCC 585 .
236 Gandi Ramamurthy v State of AP, AIR 1967 SC 1140 : (1967) 1 SCR 181 : (1967) 2 MLJ SC
75.
237 Lakshmi Ram Bhuyan v Hari Prasad Bhuyan, AIR 2003 SC 351 (354, 355) : (2003) 1 SCC 197
.
238 P Ankinnedu v Sri Bavaji Mutt, AIR 1962 AP 134 .
239 UOI v Swaran Singh, AIR 1997 SC 462 : (1996) 5 SCC 501 .
240 Plasto Pack, Mumbai v Ratnakar Bank Ltd, AIR 2001 SC 3651 (3653) : (2001) 6 SCC 683 ;
see also K Rajamouli v AVKN Swamy, AIR 2001 SC 2316 : (2001) 5 SCC 37 .
241 Bawa v Babu, AIR 1979 P&H 94 .
242 Union Bank of India v Naurang, (2009) 16 SCC 352 (353).
243 S Satnam Singh v Surender Kaur, (2009) 2 SCC 562 (569).
244 State of Punjab v Darshan Singh, AIR 2003 SC 4179 (4181).
245 Peethani Suryanarayana v RVR Kishore, AIR 2009 SC 2141 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 153. General power to
amend
© 2020 LexisNexis
S. 153. General power to amend
The Court may at any time, and on such terms as to costs or otherwise as it may think
fit, amend any defect or error in any proceeding in a suit; and all necessary
amendments shall be made for the purpose of determining the real question or issue
raised by or depending on such proceeding.
COMMENT.—
Section 152 deals with amendments of judgments, decrees and orders, whereas this
section confers a general power on the Court to amend any defect or error in any
proceeding in a suit and to make all necessary amendments for the purpose of
determining the real questions between the parties.
The object of the section is to minimise litigation and avoid multiplicity of proceedings
and to see that mere technicality may not be allowed to stand in the way of substantial
justice. Thus, the Court has the power to allow all necessary amendments for raising
the real question at issue between the parties provided that no injury or injustice is
caused to the opposite party or the injury, if any, is such as can be sufficiently
compensated for by costs or otherwise.246
The expression "at any time" used in section 153 means that to exercise power vested
in the Court under the said provision there is no limitation whatsoever.247
A party cannot claim amendment in the pleading as matter of right, but it is always in
the discretion of the Court. As to the principles guiding the exercise of discretion in
such matter, it has been held by the Supreme Court as follows:-
Rules of procedure are intended to be a handmaid to the administration of justice. A party

cannot be refused just relief merely because of some mistake, negligence, inadvertence or
even infraction of the rules of procedure....
A suit was filed in the name of firm by the partners doing business outside India. It was
only the misdescription of the plaintiff such a plaint can be amended by substituting
partner's names under section 153. O I, rule 10 and O VI rule 17 have no application.248
It has been held that a Court can treat an application made under a wrong provision of
law as one filed under the correct provision without dismissing it.249
A defect in the verification of an application for leave to sue as a pauper can be am

ended.250
246 ILR 1969 Del 1 ; see also Ramangouda v Firm Gonhlal Basangouda, AIR 1969 Mys 111 .
247 Punjab State Electricity Board Patiala v Kewal Singh, (2001) 2 Punj LR 285 (287) (P&H- DB).
248 Purushottam v Manilal, AIR 1961 SC 325 (327, 330) : (1961) 1 SCR 982 : (1961) 1 MLJ (SC)
38.
249 Beerav v Alli Desireddi v Yeluri Rama Rao, AIR 1972 AP 55 .
250 Anoop v Bhurilal, AIR 1975 Raj 78 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [S. 153A. Power to amend
decree or order where appeal is summarily dismissed
© 2020 LexisNexis
251[S.153A. Power to amend decree or order where appeal is summarily

dismissed
Where an Appellate Court dismisses an appeal under Rule 11 of Order XLI, the power
of the Court to amend, under Section 152, the decree or order appealed against may
be exercised by the Court which had passed the decree or order in the first instance,
notwithstanding that the dismissal of the appeal has the effect of confirming the
decree or order, as the case may be, passed by the Court of first instance.
COMMENT.—
Section 153-A empowers the Court which had passed the decree or order appealed
against, to amend the decree or order where the appeal has been summarily
dismissed.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 153B. Place of trial to be
deemed to be open Court
© 2020 LexisNexis
S. 153B. Place of trial to be deemed to be open Court
The place in which any Civil Court is held for the purpose of trying any suit shall be
deemed to be an open Court, to which the public generally may have access so far as
the same can conveniently contain them:
Provided that the presiding Judge may, if he thinks fit, order at any stage of any
inquiry into or trial of any particular case, that the public generally, or any particular
person, shall not have access to, or be or remain in, the room or building used by the
Court.]
COMMENT.—
Section 153-B contains a provision as to the holding of proceedings in open Court and
the power of the Court to hold proceedings in camera.
Live streaming of court proceedings in the prescribed digital format would be an

affirmation of the constitutional rights bestowed upon the public and the litigants in
particular. In terms of section 153B of the Code of Civil Procedure, the court directed
matters can be heard in camera and the general public can be denied access to or
remain in court building used by the court.252
252 Swapnil Tripathi v Supreme Court of India, AIR 2018 SC 4806 : 253 (2018) DLT 546 : 2018
(11) SCALE 475 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 154. Saving of present right
of appeal
© 2020 LexisNexis
S. 154. Saving of present right of appeal
Repealed by The Repealing and Amending Act 48 of 1952.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 155. Amendment of certain
Acts
© 2020 LexisNexis
S. 155. Amendment of certain Acts
Repealed by the Repealing and Amending Act 48 of 1952.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 156. Repeals
© 2020 LexisNexis
S. 156. Repeals
Repealed by S. 3 and Schedule II of the Second Repealing and Amending Act (17 of
1914).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 157. Continuance of orders
under repealed enactments
© 2020 LexisNexis
S. 157. Continuance of orders under repealed enactments
Notifications published, declarations and rules made, places appointed, agreements

filed, scales prescribed, forms framed, appointments made and powers conferred
under Act 8 of 1859 or under any Code of Civil Procedure or any Act amending the
same or under any other enactment hereby repealed shall, so far as they are
consistent with this Code, have the same force, and effect as if they had been
respectively published, made, appointed, filed, prescribed, framed and conferred
under this Code and by the authority empowered thereby in such behalf.
COMMENT.—
The expression "rules made", means rules properly and validly made. In other words,
rules made with jurisdiction by the proper authority.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / S. 158. Reference to Code of
Civil Procedure and other repealed enactments
© 2020 LexisNexis
S. 158. Reference to Code of Civil Procedure and other repealed enactments
In every enactment or notification passed or issued before the commencement of this

Code in which reference is made to or to any Chapter or section of Act 8 of 1859 or
any Code of Civil Procedure or any Act amending the same or any other enactment
hereby repealed, such reference shall, so far as may be practicable, be taken to be
made to this Code or to its corresponding Part, Order, section or rule.
COMMENT.—
When this section speaks of the "corresponding rule" of the Code of 1908, it refers to
the rule in the First Schedule as amended, supplemented or replaced by rule framed by
the High Court. The reference in section 13 of the Court-Fees Act (1870) to section 351
of the Code of 1859 must be construed as a reference to O XLI, rule 23 of the Code of
1908 as amended, supplemented or replaced by rule framed by the High Court and not
limited to those provisions only of O XLI, rule 23 which were originally enacted in the
First Schedule.253
253 Chandra Bhushan Misra v Gayatri Devi, AIR 1969 All 142 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Who may be joined as
plaintiffs
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER I Parties to Suits
1[R. 1.
Who may be joined as plaintiffs
All persons may be joined in one suit as plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist in such persons, whether
jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact
would arise.]
STATE AMENDMENTS
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Act, 1953,
(30 of 1953) (w.e.f. 1-10-1953).
Section 32 of the Andhra State Act, 1953 (30 of 1953) (w.e.f. 1-10-1953) is as follows:—
"32. Practice and procedure in Andhra High Court.—Subject to the provisions of this
Part, the law in force immediately before the prescribed day with respect to practice
and procedure in relation to the High Court at Madras shall, with the necessary
modifications apply in relation to the High Court of Andhra, and accordingly that High
Court shall have all such powers to make rules and orders with respect to practice and
procedure as are immediately before the prescribed day exercisably by the High Court
at Madras:
Provided that any rules or orders which are in force immediately before the prescribed
day with respect to practice and procedure in the High Court at Madras, shall until
varied or revoked by rules or orders made by the High Court of Andhra, apply with the
necessary modifications in relation to practice and procedure in the High Court of
Andhra as if made by that Court".
HIGH COURT AMENDMENTS—GENERAL
Assam.— The following amendments were made by clause 6 of Assam High Court Order
1948, (which came into force on 1-3-1948).
Clause 6 of Assam High Court Order, 1948 which come into force on 1-3-1988 is as
follows:—
"6. Subject to the provisions of this Order, the law in force immediately before the
prescribed day with respect to practice and procedure in the High Court in Calcutta
shall, with necessary modifications, apply in relation to the High Court of Assam, and
accordingly that High Court shall have all such powers to make rules and orders with
respect to practice and procedure as are immediately before the prescribed day
exercisable by the High Court in Calcutta:
Provided that any rules or orders which are in force immediately before the prescribed
day with respect to practice and procedure in the High Court in Calcutta, shall, until
varied or revoked by rules or orders made by the High Court of Assam, apply with the
Assam as if made by that Court".
(a) "The prescribed day" is the 5th day of April, 1948. Assam High Court for sometime
was known as Assam and Nagaland High Court (State of Nagaland Act 27 of 1962,
Section 13 dated 1-12-1963 Gazette of India, dated 9-11-1963, Part II, Section 3(i), page
2030). Section 15 of that Act says that the practice and procedure in the High Court of
Assam shall with necessary modifications, apply to the common High Court. The name
of the High Court is now changed to Gauhati High Court and is now common High
Court for the States of Assam, Nagaland, Meghalaya, Manipur and Tripura—See Section
28 of the North-Eastern Areas (Reorganisation) Act, 1971 (81 of 1971) (21-1-1972)
Gazette of India, dated 17-1-1972, Part II, (No. 14) Section 3(i), Extra., page 57.
Orissa.—By virtue of clause 6 of the Orissa High Court Order, 1948, any rules or orders
which are in force immediately before 26-7-1948 with respect to practice and
procedure in the Patna High Court shall, until varied or revoked by the Orissa High
Court, apply with necessary modifications in relation to practice and procedure in the
Orissa High Court as if made by that Court.
Oudh.— The following amendments were made by Uttar Pradesh Government Gazette,
1953, Part II, dated 17-1-1953.
"All rules framed and amendments made by the erstwhile Chief Court of Oudh in the
First Schedule of the Code of Civil Procedure, 1908, be deleted and the rules framed
and amendments made therein by the Allahabad High Court be made applicable to all
Civil Courts in the State of Uttar Pradesh ...".
HIGH COURT FOR THE NEW STATES
As to the practice and procedure that should be followed in the new or reorganised
States of Bombay, Kerala, Madhya Pradesh, Mysore, Punjab and Rajasthan, Section 54
of the States Reorganisation Act, 1956 is as follows:—
"54. Practice and Procedure.—Subject to the provisions of this Part, the law in force
immediately before the appointed day with respect to practice and procedure in the
High Court for the corresponding day with respect to practice and procedure in the
High Court for the corresponding State shall, with the necessary modifications, apply, in
relation to the High Court for a new State, and accordingly, the High Court for the new
State shall have all such powers to make rules and orders with respect to practice and
procedure as are, immediately before the appointed day exercisable by the High Court
for the corresponding State:
Provided that any rules or orders which are in force immediately before the appointed
day with respect to practice and procedure in the High Court for the corresponding
State, shall, until varied or revoked by rules or orders made by the High Court for a new
State, apply with the necessary modifications in relation to practice and procedure in
the High Court for the new State as if made by that Court".
Gujarat.—Section 32 of the Bombay Reorganisation Act, 1960 is as follows:—
"32. Subject to the provisions of this Part the law in force immediately before the
appointed day with respect to practice and procedure in the High Court of Bombay
shall, with the necessary modifications apply in relation to the High Court of Gujarat,
and accordingly, the High Court of Gujarat shall have all such powers to make rules and
orders with respect to practice and procedure as are immediately before the appointed
day exercisable by the High Court of Bombay:
Provided that any rules or orders which are in force immediately before the appointed
day with respect to practice and procedure in the High Court of Bombay shall, until
varied or revoked by rules or orders made by the High Court of Gujarat, apply with the
Gujarat as if made by that Court".
Himachal Pradesh.— The following amendments were made by Himachal Pradesh Act,
1970, (53 of 1970), Sections 21, 25.
Himachal Pradesh has now become a full-fledged State under the State of Himachal
Pradesh Act, 1970 (53 of 1970), Sections 21, 25 of that Act run thus:—
"21. High Court of Himachal Pradesh, (1) On and from the appointed day, there shall be
a separate High Court for the State of Himachal Pradesh (hereinafter referred to as the
High Court of Himachal Pradesh).
(2) The principal seat of the High Court of Himachal Pradesh shall be at Simla.
25. Practice and procedure in High Court, subject to the provisions of this Part, the law
in force immediately before the appointed day with respect to practice and procedure in
the High Court of Delhi shall, with the necessary modifications apply in relation to the
High Court of Himachal Pradesh".
Punjab, Haryana and Chandigarh.—The following amendments were made by the

Punjab Reorganisation Act 31 of 1966, Sections 29, 30 and 33, dated 1-11-1966.
Punjab has been reorganised into two States, namley, Punjab and Haryana and one
Union Territory, Chandigarh. Two districts, Lahaul and Spiti, have been transferred to
Himachal Pradesh along with some other villages on the border. But for all the three
Units, there is a common High Court known as Punjab and Haryana High Court.
Jurisdiction of this common High Court extends to Union Territory of Chandigarh as
well. Practice and procedure in the High Court of Punjab with necessary modifications
will apply to this common High Court.
Union Territories.— The following amendments were made by respective UT.
(i) Delhi has separate High Court now and it follows the practice and procedure in
the Punjab High Court with necessary modifications. This High Court has original
side as well.—Delhi High Court Act, 1966 (26 of 1966) (w.e.f. 31-10-1966).
(ii) Union Territory of Goa, Daman and Diu had a Judicial Commissioners' Court (See
Acts 15 of 1956 and 16 of 1964) but now jurisdiction of Bombay High Court is
extended to these Union Territories by High Court at Bombay (Extension of
Jurisdiction to Goa, Daman and Diu) Act, 1981, (26 of 1981), Section 4, dated 30-
12-1982.
(iii) In relation to Chandigarh, High Court is the Punjab and Haryana High Court—See
Act 31 of 1966, Section 4; Pondicherry falls within the Jurisdiction of Madras
High Court. Andaman and Nicobar Islands come under Calcutta High Court.
Laccadive, Minicoy and Amindivi Islands (now known as Lakshadweep Islands)
are governed by the Kerala High Court and Dadra and Nagar Haveli have
Bombay High Court as the High Court.
COMMENT.—
This rule 1 was amended by the Code of Civil Procedure amending Act of 1976 in order
to bring clarity.
Joinder of plaintiffs.—
Rule 1 of O I provides the conditions under which several plaintiffs may join in one suit.
The conditions are the following:
(a) Where a right to relief alleged to exist in each plaintiff arises out of the same act
or transaction or series of acts or transactions; and
(b) where, if such persons brought separate suits, any common question of law or
fact would arise.
Misjoinder of plaintiffs.—
In a case where the aforesaid two conditions do not exist, and two or more persons are
joined as plaintiffs in one suit, the result would be mis-joinder of plaintiffs. Thus, for
instance, A published a book bearing the title "The Oxford and Cambridge Publications"
thereby creating an impression that it was a publication of the Oxford and Cambridge
Universities. Both the Universities may join as plaintiffs in one suit for an injunction to
restrain A from using the title as there is a common question of fact arising out of the
same transaction.
The above rule is applicable to writ petitions also under Article 226 of Constitution of
India, as held by Andhra Pradesh High Court that where the petitioners were discharged
from service by a single order of Collector, a single application was maintainable.2
However, it should be made clear here that the rule does not provide that any person
must join as plaintiff to a suit or who are necessary parties or proper parties to a suit
for whom it may be essential or advisable to join.3
Suit by joint promisee.—If two parties contract with a third party then a suit by one of
the joint promisees making the other as co-defendant, is maintainable, even if the
plaintiff does not prove that the other joint promisee had refused to join him as co-
defendant.4
Although the rule is said to be permissive but it in no way affects the general principles
of law that all the persons jointly entitled to any relief must be made parties to the suit
either as plaintiffs or defendants.5
Impleadment of affected parties.—
The persons in whose favour plots were allotted and to whom possession was also
handed over, should have been impleaded and heard by the High Court. No order
adverse to a party should be passed without hearing it.6
Impleadment allowed.—
In a writ petition against the judgment of CAT, the appellants were not parties before
CAT. They could approach CAT for their grievances. Their application for impleadment
in the writ proceedings in High Court cannot be allowed.7
1 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 52, for the former
rule (w.e.f. 1-2-1977).
2 Gaddaneedi Poeriah v Naravana Rao, AIR 1968 AP 16 (DB).
3 Govind Prasad v Chandar Shekhar, (1887) 9 All 486 (DB).
4 Jahar Roy v Premji B Mansata, AIR 1977 SC 2439 (2443) : (1977) 4 SCC 562 .
5 35 Ind App 73 (PC).
6 Allwyn Housing Colony Welfare Association v Govt of AP, (2009) 9 SCC 489 (490).
7 Rajeev Kumar v Hemraj Singh, AIR 2010 SC 1679 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Power of Court to order
separate trials
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Power of Court to order separate trials
Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the
trial of the suit, the Court may put the plaintiffs to their election or order separate
trials or make such other order as may be expedient.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Who may be joined as
defendants
© 2020 LexisNexis
THE FIRST SCHEDULE
8[R. 3.
Who may be joined as defendants
All persons may be joined in one suit as defendants where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist against such persons, whether
jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question of
law or fact would arise.]
STATE AMENDMENT
Bihar.—(Bihar Scheduled Areas Reg 1 of 1969 Section 3 and Sch of 8-2-1969). In its
application to Scheduled Areas the following proviso was inserted:—
"Provided that in suits for declaration of title or for possession relating to immovable
properties of a member of the Scheduled Tribes as specified in Part III to the Schedule
to the Constitution (Scheduled Tribes) Order, 1950, the Deputy Commissioner
concerned shall also be joined as a defendant."(Bihar Regulation 1 of 1969, published
in Bihar Gazette, Extra, dated 9-2-1969).
COMMENT.—
This rule if read with O II rule 3 indicates that the question of joinder of parties also
involves the joinder of causes of action. In a suit for recovery of amount against two
defendants, a prayer was made that decree may be passed against both the
defendants so that decretal amount may be realised from either of defendants. The
decree was passed against only one of defendants. It is open to plaintiff to invoke
jurisdiction of the appellate Court for decreasing suit even against other defendant.9
It was amended by the Code of Civil Procedure (Amendment) Act of 1976 in order to
bring clarity.
Joinder of defendants.—
All persons may be joined in one suit if the following conditions are fulfilled:
(a) where any right relief alleged to exist against them arises out of the same act, or
transaction or series of acts or transactions; and
(b) where, separate suits were brought against such persons any common question of
law or fact would arise.
Suit not properly framed.—
In a suit for declaration that transferee from mortgagor's son is not the owner of suit
land, the son though not a necessary party yet he is a proper party. Hence the suit only
against the transferee was not properly framed.10
Mis-joinder of defendants.—
In a case where the aforesaid two conditions do not exist, and if two or more persons
are joined as defendants in one suit, the result would be a mis-joinder of defendants.
Thus, for example, where B was injured as a result of a collision between the bus
belonging to L and a cart belong to C, B sued L and C for damages for personal injury,
charging the defendants with joint negligence as also with separate negligence against
each of them. The Court held that the suit was not bad for mis-joinder of defendants as
the injury to the plaintiff was from the same transaction and it involved a common
question of fact.
The object of providing such a provision in rule 3 is to avoid multiplicity of suits and
needless expense, if it could be done without embarrassment to parties and Courts.11
For applicability of the rule both the conditions mentioned in rule 3 should exist.
However, as held by the Supreme Court of India the provisions of the rule are not
imperative and obligatory.12
Necessary parties.—
In a suit for possession the defendant derived title from auction purchaser in
liquidation proceedings of the company. The plaintiff sued for declaration that the
auction proceedings and the subsequent conveyance by auction purchaser to the
defendant were void in law under a certain act. The liquidator is a necessary party and
in his absence, the suit for declaration must fail.13
Separate trials.—
Although O I, rule 2 in terms applies only to joinder of plaintiffs, and there is no like
provision in respect of joinder of defendants, the principle of the rule is also applicable
in case of joinder of defendants.14 And where a trial is likely to be embarrassing due to
a variety of defendants the Court may make order for separate trials or such order as it
deems fit in the case.15
Decree binding upon person not impleaded.—
Ordinarily the Court does not regard a decree binding upon a person who was not
impleaded in the action.16
Sub-tenant not a necessary party.—

In a suit for eviction the sub tenant would not be a necessary party. The sub tenant may
be joined as a formal party to the proceedings so that future complications are
avoided. Once a decree is passed against a tenant then whether a sub tenant was a
party or not to the proceeding, he would be bound by the decree.17
Ex parte decree for eviction to be set aside.—
When an eviction decree is passed against the family members of the deceased tenant
without impleading one of the sons, the eviction decree obtained against other heirs of
the deceased tenant has to be set aside. The missed-out son may be impleaded as a
party and the suit can be proceeded from that stage. The mere declaration that the
decree was not binding on the left-out heirs is not sufficient.18
8 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 52 for rule 3 (w.e.f.
1-2-1977).
9 Iswar Bhai C Patel v Harihar Behera, AIR 1999 SC 1341 (1343. 1344) : (1999) 3 SCC 457 .
10 Jugraj Singh v Jaswant Singh, AIR 1971 SC 761 (765) : (1970) 2 SCC 386 : (1971) 73 PLR 314
.
11 Sharat Chandra v Sarla Bala Ghose, AIR 1928 Cal 62 (DB).
12 Deputy Commissioner v Ramakrishna, AIR 1953 SC 521 : 1954 ALJ 106 : 1954 BLJR 53 .
13 Vishnu v Rajen Textile Mills, AIR 1975 SC 2079 (2081) : (1975) 2 SCC 144 .
14 Harendra Nath v Puram Chandra, 1928 Cal 199 .
15 Ramdhin v Thakuram Dulaiya, AIR 1952 Nag 303 (FB).
16 Mohd Hussain v Gopibai, (2008) 3 SCC 233 .
17 Suresh Kumar v Baluram, 2009 (2) MPLJ 198 (199-200) (DB), see also Balvant N Viswamitra v
Yadav Sadashiv Mule, AIR 2004 SC 4377 : (2004) 8 SCC 706 .
18 Textile Assn (India) Bombay Unit v Bal Mohan Gopal Kurup, AIR 1990 SC 2053 : (1990) 4 SCC
700 ; see also HC Pandey v GC Paul, AIR 1989 SC 1470 : (1989) 3 SCC 77 : 1989 ALJ 692 ; Kunji
Manji v Trustees of Port of Bombay, AIR 1963 SC 468 : 1962 Supp (3) SCR 461 : 64 Bom LR 258.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Power to order
separate trials where joinder of defendants may embarrass or delay trial
© 2020 LexisNexis
THE FIRST SCHEDULE
19[R. 3A.
Power to order separate trials where joinder of defendants may embarrass or
delay trial
Where it appears to the Court that any joinder of defendants may embarrass or delay
the trial of the suit, the Court may order separate trials or make such other order as
may be expedient in the interests of justice.]
STATE AMENDMENTS

1984, Section 5, dated 14-8-1984.
After Rule 3A, insert the following:—
"3B. Conditions for entertainment of suits.—(1) No suit or proceeding for,—
(a) declaration of title or any right over any agricultural land, with or without any
other relief; or
(b) specific performance of any contract for transfer of any agricultural land with or
without any other relief,
shall be entertained by any Court, unless the plaintiff or applicant, as the case may be,
knowing or having reason to believe that a return under Section 9 of the Madhya
Pradesh Ceiling on Agricultural Holdings Act, 1960 (No. 20 of 1960) in relation to land
aforesaid has been or is required to be filed by him or by any other person before
competent authority appointed under that Act, has impleaded the State of Madhya
Pradesh as one of the defendants or non-applicants, as the case may be, to such suit
or proceeding.
(2) No Court shall proceed with pending suit or proceeding referred to in sub-rule (1)
unless, as soon as may be, the State Government is so impleaded as a defendant or

non-applicant.
Explanation.—The expression "suit or proceeding" used in this sub-rule shall include

appeal, reference or revision, but shall not include any proceeding for or connected with
execution of any decree or final order passed in such suit or proceeding".
COMMENT.—
Rule 3-A was added to empower the Court to order separate trials where joinder of
defendants may embarrass or delay the trial of the suit.
19 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 52, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Court may give judgment
for or against one or more of joint parties
© 2020 LexisNexis
THE FIRST SCHEDULE
Court may give Judgment for or Against One
R. 4.
Court may give judgment for or against one or more of joint parties
Judgment may be given without any amendment—
(a) for such one or more of the plaintiffs as may be found to be entitled to relief,
for such relief as he or they may be entitled to;
(b) against such one or more of the defendants as may be found to be liable,
according to their respective liabilities.
COMMENT.—
Combination of several decrees in favour of one or the other parties.—
The plaintiffs having distinct, separate and independent rights of their own, for the
purpose of convenience or otherwise, joined together in a single litigation to vindicate
their rights. The decree passed thereon should be treated as a combination of several
decrees in favour of one or the other parties and not as a joint and inseverable decree.
The position would be the same if the defendants or respondents having similar rights
contesting the claim against them.20
20 S Amarjeet Singh Kalra v Pramod Gupta, AIR 2003 SC 2588 (2611) : (2003) 3 SCC 272 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Defendant need not be
interested in all the relief claimed
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Defendant need not be interested in all the relief claimed
It shall not be necessary that every defendant shall be interested as to all the relief
claimed in any suit against him.
COMMENT.—
If all the defendants are not equally interested in the relief claimed in the suit, the suit
will not be bad for misjoinder if it is otherwise properly constituted.21
21 Purushottam Amrit v Bhagwan Rao, AIR 1938 Nag 461 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Joinder of parties liable
on same contract
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Joinder of parties liable on same contract
The plaintiff may, at his option, join as parties to the same suit all or any of the
persons severally, or jointly and severally, liable on any one contract, including parties
to bills of exchange, hundis and promissory notes.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. When plaintiff in doubt
from whom redress is to be sought
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
When plaintiff in doubt from whom redress is to be sought
Where the plaintiff is in doubt as to the person from whom he is entitled to obtain
redress, he may join two or more defendants in order that the question as to which of
the defendants is liable, and to what extent, may be determined as between all
parties.
COMMENT.—
Where there is doubt in the mind of the plaintiff as to the person from whom he is
entitled to obtain redress, this rule enables the plaintiff to bring one suit against a
number of persons in the alternative so that his conflict is resolved.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8. One person may sue or
defend on behalf of all in same interest
© 2020 LexisNexis
THE FIRST SCHEDULE
22[R. 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 persons on
whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as
the case may be.]
COMMENT.—
For filing a representative suit the permission of Court under O I rule 8 is mandatory. In
the absence of necessary material, the conclusion one way or the other as to the nature
of the suit will not be justified.23
Representative Suit.—
When a suit is filed by one or more persons under rule 8 on behalf of themselves and
others having the same interest in the suit, it is called a representative suit. A suit
whether under section 92 or O I rule 8 is by the representatives of large number of
persons who have a common interest.24 In order that rule 8 may apply, the following
conditions must be fulfilled:
(1) The parties must be numerous;
(2) They must have the same interest in the suit. An interest merely as a member of
the public is not sufficient interest for the purpose of this rule.
(3) The Court's permission must be obtained and
(4) Notice must be given to the parties whom it is proposed to represent in the suit.
When the basis of the impugned demand by the Housing Board is applicable to all the
allottees and the plea of the plaintiff is available to all of them, the plaintiff can be
permitted to proceed under O I rule 8.25
A suit filed in terms of O I, rule 8 of the Code should ordinarily be premised on the
ground that defendants represent the parties interested in the suit.26
The existing rule 8 had created a doubt as to whether the party representing others
should have the same cause of action as the persons represented by him. By the
Amending Act of 1976, this rule had been substituted by a new rule and the Explanation
also had been added to clarify that such persons need not have the same cause of
action.
The general rule is that all persons interested in a suit ought to be joined as parties to
it. This rule forms an exception to the above general rule. The rule as enacted in O I,
rule 8 is a rule of convenience and is based on reason and good policy and saves
trouble and expense which would otherwise have to be incurred in such cases.27
It has been held by the Supreme Court of India that where a person seeks to institute a
suit in a representative capacity, there is nothing in O I, rule 8, which requires him, that
he must establish that he obtained sanction of the persons interested on whose behalf
the suit is proposed to be instituted.28 Further, in this connection it has been held by a
Full Bench of the Lahore High Court that where under a substantive law a person is
entitled to represent others having the same interest and can file suit on behalf of such
persons, he can do so without following the provisions of this rule.29 Under this rule it
is necessary that the body of the persons represented by plaintiffs must be sufficiently
definite, so that the Court is able to recognise the participants in the suit.30 The
provision as laid down under this rule does not debar any member of a community
from maintaining a suit in his own right in spite of the fact that the act complained of
injures other members of the community as well.31
Non-application.—
The provisions of rule 8 will not apply to a suit or proceeding under Bhopal Gas Disaster
(Processing of Claims) Act, 1985.32
Further, it has been held by the Supreme Court of India that a decision in a case where
public right is involved is binding on all persons interested in that right, for purposes of
section 11 of the Code dealing with principle of res judicata. They will be deemed to
claim under the persons who litigated in earlier suit in respect of that public right.33
What is required very much for instituting a representative suit is the community of
interest. It is a condition precedent for bringing a representative action.34
In this case a registered society inter alia seeking cancellation of sale deed qua the suit
property made an application under O I, rule 8 of the Code of Civil Procedure before
trial court and sought permission of the court to allow them to prosecute the suit as a
representative of suit. This permission was granted to the plaintiff by the trial court
without any objection from the side of the defendants. The court held, while deciding
the said issue, the trial court was expected to decide several material questions,
namely: i) whether the plaintiff, a juristic person i.e. "society" was entitled to invoke the
provisions of O I, rule 8 of the code for filing a suit in a "representative capacity" i.e.
whether the expression "person"; ii) whether the facts pleaded and the reliefs claimed in
the paint could be said to be in the nature of representative character; and iii) if the
facts pleaded and the reliefs claimed in the plaint did not satisfy the requirements of O
I, rule 8 then whether such suit was capable of being tried as a regular suit. Hence,
case was remanded to the trial court.35
Impleadment of third party.—
Impleadment of users of pathway for purpose of examination of question as to

whether notice under O I, rule 10 was published in a news paper having wide circulation
in locality was not to be interfered with under Article 136 of the Constitution.36
A Representative suit for Damages.—
Rule 8 of O I does not entitle to bring a representative action for damages with regard
to defamation on behalf of a number of a persons.37 It has been held by Full Bench of
Punjab High Court that a claim made under Fatal Accidents Act, by an Executor or
Administrator or representative of deceased is essentially a claim on behalf of all the
heirs of the deceased.38
Permission of Court.—
This rule provides that permission of the Court is an essential condition in order to bind
the persons other than those who are actually parties to the suit. If no permission is
taken the suit will not be a representative one.39
Where a representative suit was filed by an aggrieved person whose right to use public
street of 10 ft. width was prejudicially affected, the suit could be dismissed on the
ground of alleged non-compliance of the provisions of O I, rule 8 of the Code.40
An eviction suit was filed against the R.S.S. Sangh and the eviction was ordered. The
execution of the decree could not be defeated by any member of the R.S.S. Sangh
contending that the decree is a nullity because no permission to sue in a representative
character was obtained. It is true that no permission was taken from the Court to be
sued in a representative capacity by or on behalf of the R.S.S. Sangh. But clause (b) of
O I, rule 8 indicates that it may sue or be sued, or may defend such suit, on behalf of, or
for the benefit of all persons so interested. Clause (b) clearly applied to the facts of the
case.41'
Grounds for allowing application under Order I rule 8(3).—
In a representative suit the trial Court allowed addition of defendants. The plaintiffs
challenged the same. The High Court upholding the said impleadment order held that
a) applications under O I rule 8(3) had been filed immediately after publication of public
notice; b) there was material that interest of applicants would be affected and any
adverse decision would cause prejudice to them and c) Trial Court had already
exercised its discretion in impleading them. The Apex Court also upheld the High Court
order.42
Notice of Suit.—
This rule makes a provision that notice of the institution of the suit is peremptory and
its absence cannot be cured under section 99 of the Code. Further, it is the duty of the
Court to issue such notice.43 Where the fact of the want of notice is notice by Appellate
Court, the suit may be remanded for notice being given as held by Rajasthan High
Court,44 relying on a Full Bench decision of Allahabad High Court.45 Notice
contemplated under this rule must be given after the permission to sue in a
representative capacity has been given.46
Decree in representative suit.—
Decision in a representative suit does not bind the interest that is not represented
therein. The decree in suit does not operate as res judicata against persons although
claiming interest but are not represented in the suit.47
Where the plaintiff purports to sue in the representative capacity the decision in the suit
will not create a bar of res judicata against other members of the groups whom the
plaintiff claims to represent unless the provisions of this rule are complied with.48
In a public interest litigation large number of persons appeared as special care was
taken to notify individuals. However, a few persons cannot say that they were unaware
of the proceedings and so should be heard all over again. The judgment binds all
petitioners who were not parties in the case. The principle of this rule cannot be
invoked.49
Representative suit—Compromise, Abatement, Revision.—

Once a permission under OI, rule 8 is given to a representative for litigation on behalf of
the public then that right should carry with it the right to compromise.50 In such a suit,
the representative being the dominus litis, that is master of the suit until judgment and
he can, therefore, discontinue or compromise the suit.51 With regard to abatement of
such a representative suit, it does not abate on the death of the person who sues or is
sued in a representative capacity.52 As such on the death of the plaintiff such suit can
be continued by any one whom the plaintiff represented.53 In a representative petition,
challenging promotion by direct recruits, suing two respondent promotees in
representative capacity, the law laid down by the tribunal will be binding on all
promoters similarly situated.54
Representative suit against Govt.—
A suit filed with permission to sue for and on behalf of numerous persons having the
same interest under O I, rule 8 is a suit filed by the person who is permitted to sue as
the plaintiff. The persons represented by him do not by virtue of the permission
become plaintiff in the suit. Such other persons would be bound by the decree in the
suit, but that is because they are represented by the plaintiff, not because they are
parties to the suit unless by express order of the Court they are permitted to be
impleaded.56
If a suit is filed in a representation capacity, then there shall not be abatement on the
death of any one of the plaintiffs or the appellants.56
In an appeal the relaxation granted to candidates belonging to the Scheduled Caste and
the Scheduled Tribes in regard to the minimum qualifying marks for admission into the
Medical Colleges of the State, was questioned. Without properly impleading the
candidates who have secured admission as a result of the relaxation, as parties to the
appeal and who would be affected by the decision in the appeal, such an appeal will
not be maintainable.57
As regards revision, it has been held by a Full Bench of Madhya Pradesh High Court
that a refusal to entertain an application under rule 8 without proceeding in accordance
with the law is revisable under section 115 of the Code of Civil Procedure.58
rule (w.e.f. 1-2-1977).
23 Kalyan Singh v Chhoti, AIR 1990 SC 396 (400) : (1990) 1 SCC 266 : 1990 RD 198.
24 R Venugopal Naidu v VN Charities, AIR 1990 SC 444 (447) : 1989 Supp (2) SCC 356 .
25 Chairman, TN Housing Board, Madras v TN Ganapathi, AIR 1990 SC 642 (644) : (1990) 1 SCC
608 .
26 VJ Thomas v Pathrose Abraham, (2008) 5 SCC 84 (87).
27 Kodia Goundar v Velandi Goundar, AIR 1955 Mad 281 (FB).
28 State of Andhra Pradesh v G Suryanarayana, AIR 1965 SC 11 : (1964) 4 SCR 945 : (1964) 1 Ker
LR 246.
29 Mahadeo v Ranbir Singh, AIR 1944 Lah 220 (FB).
30 Hasan Ali v Mansoor Ali, AIR 1948 PC 66 .
31 Masjid Sahib Ganj v SGP Committee, AIR 1938 Lah 369 (FB).
32 Charanlal Sahu v UOI, AIR 1990 SC 1480 (1542) : (1990) 1 SCC 613 .
33 MMB Catholics v T Paulo Avira, AIR 1959 SC 31 .
35 Travancore-Cochin Literary, Scientific and Sakhayogam v Kerala Atmavidya Sangham, (2017) 8
SCC 830 : 2017 (11) SCALE 84 : 2018 (1) PLJR 21 .
36 VJ Thomas v Pathrose Abraham, AIR 2008 SC 1503 : (2008) 5 SCC 84 .
37 Gidney v Anglo-Indian Association, AIR 1930 Rang 177 .
38 NIT Insur Co v Amrawati, AIR 1966 Punj 288 (FB).
39 State of Andhra Pradesh v G. Surya Narayana, AIR 1965 SC 11 : (1964) 4 SCR 945 : (1964) 1
Ker LR 246.
40 Hari Ram v Jyoti Prasad, (2011) 2 SCC 682 (687) : AIR 2011 SC 952 (956); Kalyan Singh v
Chhoti, AIR 1990 SC 396 relied on.
41 Singhai Lal Chand Jain v RSS Sangh, Panna, AIR 1996 SC 1211 (1213) : (1996) 3 SCC 149 .
42 Shripat Mahadu Patil v CIDCO Ltd, AIR 2012 SC Supp 514.
43 Kumaravelu v Ramaswami, AIR 1933 PC 183 .
44 ILR (1955) 5 Raj 910 .
45 Shyamlal v Lalli, AIR 1922 All 16 (FB).
46 Kumaravelu v Ramaswami, AIR 1933 PC 183 : 60 IA 278.
47 Ahmad Adam v ME Makhri, AIR 1964 SC 107 : (1964) 2 SCR 647 .
49 Gopi Aqua Farms v UOI, AIR 1997 SC 3519 : (1997) 6 SCC 577 .
50 Biram Prakash v Narendra Dass, AIR 1961 All 266 (FB).
51 LM Das v State of West Bangal, AIR 1961 Cal 456 .
52 Anand Rao v Ram Das Daduram, AIR 1921 PC 123 .
53 AIR 1915 PC 124 .
54 Maharashtra Vikrikar Karmchari Sangathan v State of Maharashtra, AIR 2000 SC 622 (631) :
(2000) 2 SCC 552 : (2000) 1 SLR 518 : (2000) 2 LLN 1 .
57 Diwakar v State of Madhya Pradesh, AIR 1984 SC 468 : 1984 Supp SCC 214 : 1984 BLJR 206 .
58 Firm Krishan Lal v UOI, AIR 1960 MP 288 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8A. Power of Court to
permit a person or body of persons to present opinion or to take part in the proceedings
© 2020 LexisNexis
THE FIRST SCHEDULE
59[R. 8A.
Power of Court to permit a person or body of persons to present opinion or to
take part in the proceedings
While trying a suit, the Court may, if satisfied that a person or body of persons is
interested in any question of law which is directly and substantially in issue in the suit
and that it is necessary in the public interest to allow that person or body of persons
to present his or its opinion on that question of law, permit that person or body of
persons to present such opinion and to take such part in the proceedings of the suit
as the Court may specify.]
COMMENT.—
Rule 8-A has been added to empower the Court to permit a person or body of persons
interested in any question of law in issue in any suit to present his or its opinion before
the Court and to take in the proceedings in the suit. An intervention application cannot
be dismissed on grounds of delay particularly when the appellant was not party to
earlier award cases.60
59 Ins. by CPC (Amendment) Act 104 of 1976, Section 52, (w.e.f. 1-2-1977).
60 Municipal Council, Hansi v Mani Raj, AIR 2001 SC 1861 (1862) : (2001) 4 SCC 173 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Misjoinder and non-
joinder
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Misjoinder and non-joinder
No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and

the Court may in every suit deal with the matter in controversy so far as regards the
rights and interests of the parties actually before it:
61[ Provided that nothing in this rule shall apply to non-joinder of a necessary party.]
COMMENT.—
Mis-joinder, Non-joinder and Multifarious Suits.—
Rule 9 of O I lays down that no suit shall be defeated by reason of mis-joinder or non-
joinder of parties. In such cases, the Court may deal with the matter in controversy as
regards the rights and interests of the parties actually before it. However, this rule does
not apply to cases where there is a non-joinder of necessary party.
As stated earlier that the joinder of any person as a party to a suit contrary to the
provisions of the Code is called mis-joinder.
Mis-joinder may be of three types:
(i) Mis-joinder of plaintiffs,
(ii) Mis-joinder of defendants and
(iii) Mis-joinder of causes of action.
We have already explained the mis-joinder of plaintiffs and mis-joinder of defendants.

Regarding mis-joinder of causes of action it may be pointed out that a mis-joinder or
causes of action may be coupled with a mis-joinder of plaintiffs or it may be coupled
with mis-joinder of defendants. There may again be a mis-joinder of claims founded on
several causes of action. This kind of mis-joinder may be considered under the
following three heads:
Mis-joinder of plaintiffs and causes of action.—Where in a suit, there are two or more
plaintiffs and two or more causes of action, the plaintiffs should be jointly interested in
all the causes of action, the case one of mis-joinder of plaintiffs and causes of action,
forbids such a mis-joinder. The objection on the ground of misjoinder of plaintiffs and
causes of action should be taken at the earliest possible opportunity.
Mis-joinder of Defendants and causes of action: Multifariousness.—
Where in a suit there are two or more defendants and two or more causes of action, the
suit will be bad for mis-joinder of defendants and causes of action, if different causes
of action are joined against different defendants separately. Such a mis-joinder is
technically called multifariousness.
All objections to the effect that the suit is multifarious must be taken at the earliest
possible opportunity and in all cases where issues are settled, at or before such
settlement, unless of course, the ground of objection has arisen subsequently, if
objection is not so taken, it will be deemed to have been waived. (Rule 13, O I).
Mis-joinder of claims founded on several causes of action.—
Reference may be made to Order II of the Code.
Non-joinder.—
Where a person who is necessary party to the suit is not joined as a party to the suit,
the case is one of non-joinder. A suit should not be dismissed on the ground of non-
joinder. The objection on this ground should be taken before the first hearing as laid
down in O I rule 13, and the plaint must be amended by addition of the omitted party
either as plaintiff or as defendant, bearing in mind that no person can be added as a
plaintiff without the consent though he may be added as a defendant without such
consent.
The proviso to rule 9 of O I of the Code provides that non-joinder of necessary party
would be fatal.62
Plea for non-joinder of necessary party was raised to object to execution of decree on
the ground that Bank Manager was a necessary party. The Court held that Bank
Manager not a necessary party as it had nothing to do with the suit for specific
performance by the decree holder. The Court further held that if no prima facie case is
made out, then the lower courts are not enjoined to mechanically number it and waste
its judicial time.63
Broad principles governing disposal of application for impleadment are:
1. The Court can at any stage of the proceedings, either on an application made by
the parties or otherwise, direct impleadment of any person as party, who ought to
have been joined as plaintiff or defendant or whose presence before the Court is
necessary for effective and complete adjudication of the issues involved in the
suit.
2. A necessary party is the person who ought to be joined as party to the suit and in
whose absence an effective decree cannot be passed by the Court.
3. A proper party is person whose presence would enable the Court to completely,
effectively and properly adjudicate upon all matters and issues, though he may
not be a person in favour of or against whom a decree is to be made.
4. If a person is not found to be a proper or necessary party, the Court does not
have the jurisdiction to order his impleadment against the wishes of the plaintiff.
5. In a suit for specific performance, the Court can order impleadment of a

purchaser whose conduct is above board, and who files application for being
joint as party within reasonable time of his acquiring knowledge about the
pending litigation.
However, if the applicant is guilty of contumacious conduct or is beneficiary of a

clandestine transaction or a transaction made by the owner of the suit property in
violation of the restraint order passed by the Court or the application is unduly delayed
then the Court will be fully justified in declining the prayer for impleadment.64
Rule 13, O I also applies in case of non-joinder also. Reference may be made to that
rule.
The non-impleadment of necessary party is fatal even in writ petition. If necessary

party is not impleaded, no order to the detriment of a person can be passed without
hearing him.65
Objection regarding, non-joinder of necessary party cannot be permitted to be raised

for the first time before the Supreme Court, especially when the same has not resulted
in failure of justice, although Supreme Court can implead a party on application
wherever necessary. Objection regarding non-joinder of necessary party as defendant
should be taken before the Trial Court in order to provide opportunity to plaintiff to
rectify the defect and only if, even then plaintiff persists in not impleading the party,
then the consequences of non-joinder may follow.66
The provision under O I, rule 9 of the Code lays down that no suit shall be defeated by
reason of misjoinder or non-joinder of parties and the Court may in every suit deal with
the matter in controversy so far as regards the rights and interests of the parties
actually before it.67
A petition was filed to challenge the promotion. The candidates higher up in the
seniority were not impleaded in the petition. Such a petition could not be adjudicated
upon in the absence of those senior candidates.68
Necessary party.—Though no suit shall be defeated for mis-joinder or non-joinder of

parties yet there can be no doubt that if the parties who are not-joined are not only
proper but also necessary parties to the suit then the infirmity of the suit is bound to be
fatal. Even in such cases the Court can under O I rule 10(2) direct the necessary parties
to be joined but all this can and should be done at the stage of trial and that too without
prejudice to the said party's plea of limitation.69
The necessary party is one without whom, no order can be made effectively and a
proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision of the question involved in the
proceedings.70
Where the plaintiffs sought declaration of certain rights on a suit land belonging to
State of Haryana, the State of Haryana was a necessary party.71
Where the policy decisions of the Railway Board regulating seniority of Railway Staff
was challenged and the relief was claimed only against the Railway, it is sufficient if the
Railway was impleaded. The non-joinder of the employees likely to be affected by the
decision is not fatal to the writ petition. Those employees were at the most proper
parties but not necessary parties.72
Where in a suit for repatriation of deputationist, the appellant has not impleaded his
employer as party, the suit is to be set aside.73
It has been held by the Supreme Court of India that where a suit or appeal abates
against one of the defendants or respondents because of his death, the principle laid
down in this rule may be applied in determining the question whether suit or appeal can
proceed against remaining defendants or respondents.74 Further, it has been held by
the Supreme Court of India that where a joint and indivisible decree has been passed in
favour of two plaintiffs and the defendant prefers an appeal, one of the plaintiffs dies,
his legal representative has not been impleaded in time, in such a case, suit against
them abates and the appeal against other plaintiffs respondent becomes
incompetent.75
Rule 9 of O I is subject to local, or special law, statutory provisions as also to any

special form of procedure prescribed by any law. Thus if any special law provides that a
certain person must be impleaded as a defendant although no relief is claimed against
him, then failure to implead him will be fatal to suit notwithstanding the provision of O I,
rule 9.76 Where there has been a failure in joining a necessary party, the suit has to be
dismissed because in his absence the Court cannot pass an effective decree at all.77
Proper Party.—In a suit for specific performance and partition, decree for partition
attained final decree for specific performance was passed by trial Court only as
regards separate shares of some of defendants. No decree for specific performance
was passed against some of defendants i.e. as regards undivided shares of minor in
property and his guardian. Such defendants however, were bound by decree passed by
trial Court. In appeal minor defendant and his guardian are proper parties though not
necessary parties.78
Suit against shebaits.—In a suit by trustees of endowed property of family diety for
possession of certain rooms against one of shebaits, all the shebaits are necessary
parties and must be impleaded. If they are not joined, then the suit must be dismissed
for non-joinder.79
By inserting a proviso to rule 9, it has been made clear that this rule will not apply in the
case of non-joinder of a necessary party.
Though the rule 9 of O I of the Code mandates that no suit shall be defeated by reason
of the misjoinder or nonjoinder of parties, yet it is important to notice that the proviso
thereto clarifies that nothing in that rule shall apply to nonjoinder of a necessary party.
Therefore, care must be taken to ensure that the necessary party is before the Court, be
it a plaintiff or a defendant, otherwise the suit or proceedings will have to fail.80
The allegation regarding non-joinder should be clear and not vague.81
The non-compliance with the provisions of the law relating to the impleading of parties
i.e. section 82 of the Representation of the People Act, 1951 is not necessarily fatal. It
can be cured.82
Names of certain persons in the title deed does not mean that they ought to be party in
a suit under section 34 of the Specific Relief Act and that non-inclusion of these
persons as party to the suit shall fail. As the point was not raised at the time of trial and
no issue was framed thereof—Dismissal of suit by appellant Court for non-joinder of
necessary parties would be contrary to provisions of O I rule 1 and 13.83
The plea of non-joinder shouldbe raised at the earliest opportunity.84

It has been held by the Supreme Court in Loonkaran Sethiya v Ivan E John, AIR 1977 SC
336 : (1977) 1 SCC 379 that where there is non-joinder of partner in a suit for the
recovery of sums due to the partnership firm, such a suit is not maintainable.
In the instant case application was filed only by one of the respondents challenging the
arbitration award and the said award was set aside by the single Judge of the High
Court. Appeal against the said order was dismissed by the division bench as not
maintainable on the ground that appellant had not impleaded all parties likely to be
affected by the said appeals. It was held that on the facts, the single Judge had set
aside the award at the instance of only the respondent and the other parties did not
challenge the said award. Therefore, the respondent was the only necessary party in
appeals before the Division Bench. Thus, it was not necessary for the appellant to
implead all other parties in appeals even though they may have been affected by the
award. Matters remanded to the High Court (Division Bench) to decide the same on
merits.85
62 Public Service Commission, Uttranchal v Mamta Bisht, AIR 2010 SC 2613 . See also Distt
Collector, Srikakulam v Bagathi Krishna Rao, AIR 2010 SC 2617 .
63 AL Helan Chritina Mary v Sivaganesh, AIR 2013 Mad 249 .
64 Yidur Impex and Traders (P) Ltd v Tosh Apartments (P) Ltd, AIR 2012 SC 2925 (Para 36).
65 Sandhyarani Sahoo v DJ Balasore, (2009) 107 Cut LT 160 (161) (DB).
66 Church of Christ Charitable Trust and Education Charitable Society v Ponniamman Educational
Trust, (2012) 8 SCC 706 .
67 Hardeva v Ismail, AIR 1970 Raj 167 (FB) referred in Somnath Banerjee v Arati Rani
Chakraborty, AIR 2010 Gau 187 (190).
68 Suresh v Yeotmal Distt Central Coop Bank Ltd, AIR 2008 SC 2432 (2435).
69 Kanakarathanammal v Loganath, AIR 1965 SC 271 (276) : (1964) 6 SCR 1 .
70 State of Assam v UOI, (2010) 10 SCC 408 (412).
71 Jagtu v Suraj Mal, AIR 2010 SC 3490 (3491) : (2010) 13 SCC 769 (770).
72 GM South Central Rly v AYR Siddhante, AIR 1974 SC 1755 (1759) : (1974) 4 SCC 335 : 1974
Lab IC 587 : (1974) 1 LLJ 312 .
73 SK Saldi v General Manager, UP State Sugar Corpn Ltd, AIR 1997 SC 2182 : (1997) 9 SCC 661 :
1997 All LJ 1180.
74 State of Punjab v Nathu Ram, AIR 1962 SC 39 .
75 UOI v Shree Ram, AIR 1965 SC 1531 .
76 Suladin v Board of Revenue, AIR 1963 All 549 (FB).
77 Gambli v Ramakrishnappa, AIR 1969 Mys 158 .
78 PC Varghese v Devaki Amma, AIR 2006 SC 145 (151).
79 Profulla Chorone v Satya Chorone, AIR 1979 SC 1682 (1690).
80 Chief Conservator of Forests v Collector, AIR 2003 SC 1805 (1810) : (2003) 3 SCC 472 .
81 Laxmishankar Harishankar Bhatt v Yashram, AIR 1993 SC 1587 (1589).
82 Jagan Nath v Jaswant Singh, AIR 1954 SC 210 (213) : 1954 SCR 892 .
83 Kusum Chandra Deb Barma v Sunil Chandra Debnath, AIR 2012 Gau 88 .
84 Sri Ram Pasricha v Jagannath, AIR 1976 SC 2335 (2337) : (1976) 4 SCC 184 : (1977) 1 SCR
395 .
85 Hindustan Yidyut Products Ltd v Delhi Power Company Ltd (2014) 13 SCC 662 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Suit in name of wrong
Plaintiff.
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Suit in name of wrong Plaintiff.
(1) Where a suit has been instituted in the name of the wrong person as plaintiff or
where it is doubtful whether it has been instituted in the name of the right
plaintiff, the Court may at any stage of the suit, if satisfied that the suit has
been instituted through a bona fide mistake, and that it is necessary for the
determination of the real matter in dispute so to do, order any other person to
be substituted or added as plaintiff upon such terms as the Court thinks just.
Court may strike out or add parties
(2) The Court may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the Court to be
just, order that the name of any party improperly joined, whether as plaintiff or
defendant, be struck out, and that the name of any person who ought to have
been joined, whether as plaintiff or defendant, or whose presence before the
Court may be necessary in order to enable the Court effectually and completely
to adjudicate upon and settle all the questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the
next friend of a plaintiff under any disability without his consent.
Where defendant added, plaint to be amended
(4) Where a defendant is added, the plaint shall, unless the Court otherwise
directs, be amended in such manner as may be necessary, and amended
copies of the summons and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 86[Indian Limitation Act, 1877], Section 22, the
proceedings as against any person added as defendant shall be deemed to
have begun only on the service of the summons.
[Sub-rule (6) added in Karnataka].
Karnataka (30-3-67). Insert the following as sub-rule (6):—
"(6) The Court may on the application of any party and after notice to the other parties
affected by the application and on such terms and conditions as it may impose
transpose a plaintiff to the position of a defendant or subject to the provision of sub-
rule (3), a defendant to the position of a plaintiff."
COMMENT.—
Addition of Parties.—
Order I, rule 10 enables a Court to substitute or add a party as plaintiff if it is satisfied

that the action was commenced in name of original plaintiff by a bona fide mistake.
Unless the Court is satisfied that the amendment has become necessary through a
bona fide mistake on the part of the original plaintiff it has no power to add a new party.
If mistake is not deliberate but one made in honesty it is a bona fide mistake.87
Order I, rule 10 does not permit addition of parties some as plaintiffs and some as
defendants. As held by the Supreme Court of India, it permits addition of parties as
plaintiff only.88 Further as held by Allahabad High Court, relying on Supreme Court
decisions that the provisions of O I, rules 9 and 10 are inapplicable to the trial of an
election petition under the Representation of Peoples Act.89 This rule enables the trial
Court to add any person at any stage of the proceedings if the presence of such a
person is found necessary to effectively/completely adjudicate upon all the
controversies involved in the case. A transferee pendente lite of an interest in
immovable property which is subject matter of the suit is necessary party. Judicial
officers who have disposed of cases should not be arrayed as party in the cases.
Avoidance of multiplicity of proceedings is also one of the objects of this rule.90
The provision under rule 10(2) of O I of the Code speaks about the judicial discretion of
the Court to strike out or add parties at any stage of proceedings. The Court can strike
out any party who is improperly joined. It can add anyone as a plaintiff or defendant if it
finds that he is necessary party or proper party. The Court under rule 10(2) of O I of the
Code will of course act according to reason and fair play and not according to whims
and caprice.91
No addition of parties, after limitation, is possible in the case of an election petition

except under the provisions of section 86(4) of the Representation of the People Act,
1951.92
Where none of the applicant is impleaded as a party to a writ petition, no order

adversely affecting such applicants can be passed and no effective relief can be
granted in favour of petitioners without impleading them.93
However, addition introducing new cause of action and altering nature of the suit of
one character into a suit of a different character will not be allowed.
Overruling a Single Bench decision in Daya Kumar's case, AIR 1972 P&H 335 it has been
held by a Full Bench of Punjab & Haryana High Court in Ajmer Singh v Shamsher Singh,
AIR 1984 P&H 58 (FB) that a co-sharer can institute and maintain a suit for possession
against a trespasser in respect of the entire property without impleading the other co-
sharers and secure a decree for the same irrespective of his own share therein.
Sub-rule (2) of rule 10 of OI is wide enough to give a Court power to add any person
that is whether already a party or not so as to enable it effectively and completely to
adjudicate upon and settle all the questions involved in the suit. In other words, it gives
a wide discretion to the Court to meet every case of the defect of the parties.94
Dismissal of application under O XXII rule 4 as not maintainable does not bar filing of
an application under OI rule 10.95
Avoiding consequence of non joinder.—
A Court cannot use O VI rule 17 or O I rule 10 to avoid the consequence of non joinder
for which a special provision is to be found in the Representation of the People Act,
1951 enjoining the penalty of dismissal of the election petition.96
The provisions of the sub rule are applicable to election-petitions also in so far non-
addition of proper parties to an election-petition can be remedied under this rule.97
Further it has been held by the Supreme Court of India that the power of the addition of
parties under this rule is generally not one of initial discretion of the Court but a
discretionary one and has to be exercised in view of all the facts and circumstances of
the case.
Direct interest, not commercial interest.—
In a suit relating to the property, in order that a person may be added as a party he
should have a direct interest as distinguished from a commercial interest in the subject
matter of the case.98 However, the power of discretion allowed to Courts under the rule
will not be exercised when such an addition involves a trial de novo.99 And Court of
Appeal has got the same powers for addition of parties as one available to Trial Court
for addition of parties to a suit.100
Where a suit was filed against a dead person and the plaintiff came to know that the
defendant was dead only from the endorsement in the returned summons, he was
permitted to implead the legal representatives of the defendant.101
The procedure prescribed under sections 18 and 30 of the Land Acquisition Act is
inconsistent with the procedure prescribed under O I, rule 10 of the Code. This rule 10
would apply to implead a necessary or proper party or effectuate complete
adjudication of all the disputes between all the necessary or proper parties who may be
bound by the decision.102
But such discretion will not be exercised in favour of a party who resisted the objection
as to non-joinder in the Lower Court.103 If the interests of parties, not impleaded in the
writ-petition, challenging the Ordinance, reducing the age of superannuation, is
sufficiently and well represented by the employees who filed the writ petition, there is
no question of any non-joinder.104
Necessary Parties.—
As regards necessary parties, it has been held that persons who ought to have been
joined as parties are called necessary parties, that is, persons in whose absence the
Court will not be able to give an effective decree at all.105
Order I rule 10 of Code of Civil Procedure 1908 enables the Court to add any person as
a party at any stage of proceeding if the person whose presence before the Court is
necessary in order to enable the Court to effectively and completely adjudicate upon
and settle all the questions involved in the suit. Avoidance of the multiplicity of
proceeding is also one of the objects of the said provision.106
In a suit for specific performance against a purchaser with notice of a prior agreement
of sale, the vendor is a necessary party.107
Purchaser is a necessary party. Therefore, the party cannot be added and deleted at the
instance of a party defendant. The Plaintiff is dominus litius.108
A transferee pendent lite is a necessary party in a suit for specific performance of

contract.109
If impleadment of parties is not germane to the proceedings and is likely to change the
complexion of litigation and raise such controversies as are beyond the scope of the
litigation, then they are neither necessary nor proper parties.110
In a suit, claiming title on basis of auction sale by Municipal corporation the trial Court
was desirous of adjudicating issues fully and completely, and therefore, proposed to
add Municipal Corporation as party to suit. However, the plaintiff vigorously opposed
and successfully persuaded the Court not to add corporation as necessary party. In
circumstances a plea raised in appeal before Supreme Court that Municipal
Corporation was necessary party, without whose presence adjudication of issues could
not have proceeded, was not tenable.111
The appellant died during the pendency of first appeal. No steps were taken to bring on
record the legal heirs during pendency of first appeal. Thereafter, the appellants in
second appeal filed an application for their impleadment under O I rule 10. Order XX of
the Code of Civil Procedure stipulates the manner in which the legal representatives of
plaintiffs or defendants ought to be brought on record. The prescribed procedure
cannot be circumvented by filing appeal under O I rule 10 of the Code of Civil Procedure
read with section 151 of the Code of Civil Procedure. It was further held by the Court
that it would be unjust to non-suit the appellants on the ground of technicalities.
Provisions of O XXII of the Code of Civil Procedure are not penal in nature. It is a rule of
procedure and substantial rights of the parties cannot be defeated by pedantic
approach by observing strict adherence to the procedural aspects of law. Hence, the
application filed under O I rule 10 of the Code of Civil Procedure be brought on
record.112
In a suit for specific performance of contract a third party/stranger claiming

independent title is neither a necessary party nor a proper party and therefore he is not
entitled to be joined as defendant. The third parties cannot come in a suit for specific
performance and enlarge the scope of the suit.113
Purchaser pendente lite should be given an opportunity to protect his right. He can be
added as proper party if his interest in subject matter of suit was substantial in nature.
Pendente lite purchaser would be entitled to or suffer same legal rights and obligations
of his vendor as may be eventually determined by the Court. His coming up with
separate suit to enforce his right would mean multiplicity of proceedings. Thus, he
would be entitled to be impleaded in title suit or proceedings where his predecessor in
interest was made party to litigation.114
In a marketing assistance scheme, there was a provision for indent for supplies of
items made by Small Scale Industries Development Corporation to small scale unit.
Items were to be supplied to State Government, which was of course the purchasing
authority. All payments from Government to units were to be channelised through
corporation. No privity of contract between purchasing authority and units existed. In a
suit for recovery of amount filed against corporation State Government would not be
necessary party but merely proper party.115
In an eviction suit for proper adjudication of the issue in the eviction petition, both the
firm and all its partners, though not necessary parties from the point of view of the
eviction petitioner, should be on the array of parties as proper parties so as to facilitate
the complete determination of the matter in dispute.116
Impleadment of persons who may be involved in some transactions or the order

concerning the estate of the deceased may become necessary for a decision in an
administration suit.117
Illustrations.—
(1) Where the property is purchased by wife with money gifted by her husband and suit
is filed by daughter to recover property from executor under will of father and the
brothers are not impleaded in suit, in such a case suit is incompetent for non-joinder of
necessary party.118
(2) When A, B, C and D are all co-sharers in an undivided Hindu family property and A
files a suit for partition, B, C and D are necessary parties.119
(3) In a writ of certiorari not only authority whose order is sought to be quashed but
also parties in whose favour the said order is passed are necessary parties.120
(4) Where there are several trustees, executors, and administrators, they shall all be
made parties to a suit against one or more of them.121
(5) In a suit for specific performance against a purchaser with the notice of a prior
agreement of sale, the vendor is a necessary party, as held by the Supreme Court of
India in Dwarka Prasad v Harikant Prasad, AIR 1973 SC 1575 : (1973) 1 SCC 179 .
(6) Where a suit for dissolution of partnership is filed, all the partners are necessary
parties and in case of death of one of the partners, his legal representatives are
necessary parties.122 However, a person indirectly and remotedly interested is not a
necessary party.123
Where the tribunal is mandatorily required to specify the amount which shall be paid by
the owner or driver of the vehicle involved in accident, the driver of the vehicle should
be impleaded.124
Impleadment of party.—
The pendente lite purchaser of suit property had no knowledge of the alleged sale
agreement between the Plaintiff and the Defendant. The Defendant/Seller had not even
warned the general public about not entering into any transaction in respect of the suit
property. Therefore, it was held that pendente lite purchaser is a necessary and proper
party and should be permitted to be impleaded as defendant in a suit for specific
performance.125
The authorities or the tribunals, who in law are entitled to defend the orders passed by
them, are necessary parties and if they are not arrayed as parties, the writ petition can
be treated to be not maintainable or the Court may grant liberty to implead them as
parties in exercise of its discretion. There are tribunals which are not at all required to
defend their own order, and in that case such tribunals need not be arrayed as parties.
In a suit for return of articles to legal heirs, widow was impleaded but she expired
during the pendency of the proceedings, her heirs and Legal Representatives were held
to be necessary party.126
Petition for divorce on the ground of adultery—Should the adulterer be a party to

the petition?.—
Presence of adulterer would enable the Court to effectually and completely adjudicate
upon and settle all questions in case as such adulterer would be proper party. Such
person thus, could be co-respondent in case, though no relief was claimed against him.
Held, order of subordinate Court directing deletion of name of alleged adulterer from
the array of parties, not proper.127
When the defendants had acquired valid title over the suit property through sale deed
from the rightful owner of the suit property, then in an appeal by the plaintiff regarding
declaration of title to suit property, the defendants i.e. the rightful owners thus, were
necessary parties. Deletion of their names from the appeal memo would make the
appeal memo incompetent and therefore is liable to be dismissed.128
Suit for eviction by Karta of HUF—Who are necessary parties.—
The suit was filed by the deceased plaintiff in his capacity as Karta of Joint Hindu
family. After the death of original plaintiff, the succeeding Karta can be brought on
record and he can pursue the suit. The other members of the family are not necessary
parties to the suit and the suit is not bad for non-joinder of those members.129
A registered society which had come into existence after the execution of proceedings
under section 278 of the Indian Succession Act, 1925, can lawfully become a party, if it
appears to be a necessary party and if it appears that its joining to the suit will help the
Court to effectually and completely adjudicate upon and settle all questions involved in
the suit.130
In a suit for eviction, the suit property was owned by several owners. It is not necessary
to implead all co-owners. Failure to implead one of the co-owners does not render
eviction petition as non-maintainable.131
Where in a case for impleading of necessary party, the question involved was relating
to charge of interest on loans granted by the bank, the rate of interest was decided on
the basis of various circulars issued by Reserve Bank of India, an application to
implead RBI as party respondent was allowed.132
Merely because the defence of the LICI was based on an act of ITO, it was not
incumbent to implead the ITO, when no relief is claimed against him.133
In an election petition a candidate who withdrew his nomination for election of Pradhan
before last date was not allotted any election symbol then such a candidate cannot be
said to be elected or unsuccessful candidate so as to be compulsorily impleaded as
party in election petition and so the petition is not bad for non-joinder of necessary
party.134
The Civil Court was justified in setting aside the award on the ground that all co-owners
of the property were not made parties to the arbitration agreement.135
If on admitted facts, only defect pointed out is of formal nature in description without,
in any manner, affecting the merits or the jurisdiction of the Court. Such irregularity
could have been corrected by the Court under O I rule 10 and can be corrected even at
the appellate stage unless the defendant is in any manner prejudiced.136
Proper Parties.—
A person is a proper party if his presence enables the Court to adjudicate upon the
question raised in a suit more effectually and completely.137 "For determining the
question who is a necessary party there are two tests: (i) There must be a right to some
relief against such party in respect of the matter involved in the proceedings in
question, and (ii) it should not be possible to pass an effective decree in the absence of
such party. An eventual interest of a party in the fruits of litigation cannot be held to be
the true test of impleading a party.138 In case an arbitration award is made and there is
allegation of misconduct against the arbitrator though not a necessary party, is a
proper party.139
If a party can show a fair semblance of title or interest, he can certainly file an
application for impleadment.140
A proper party is a party who, though not a necessary party, is a person whose
presence would enable the Court to completely, effectively and adequately adjudicate
upon all matters in disputes in the suit. Though he may not be a person in favour of or
against whom the decree is to be made.141
In cases of eviction on the ground of sub-letting or unauthorised transfer subtenant or

transferees are proper parties if not necessary parties.142
Where a suit is for perpetual injunction restraining Municipal Corporation from

demolition of demised building the landlord is proper party.143
In the absence of the beneficiary who ultimately is to bear the higher compensation, no
complete and effectual determination of binding just and proper compensation to the
acquired land would be made. So it is concomitantly a proper party if not a necessary
party to the proceedings under this rule.144
Over-ruling a Single Bench decision, it has been held by a division bench of Punjab
&Haryana High Court in Aman Behal v Aruna Kansal, AIR 1987 P&H 52 (DB) that in a suit
for specific performance of agreement of sale of the transferred property against the
Karta of Hindu Undivided Family, the coparcener is not a necessary party.
In this connection it would be pertinent to note that under Article 226 of the
Constitution of India where a petition challenging the policy decision of the Railway
Board regarding seniority has been made, and relief claimed is only against Railway, as
held by the Supreme Court of India in GM, SE Railway v VR Siddhanti, AIR 1974 SC 1755
: (1974) 4 SCC 335 : 1974 Lab IC 587 . It is sufficient if the Railway was impleaded and
non-joinder of the parties likely to be affected by the decision is not fatal to writ-
petition. Those employees were at the most proper but not necessary parties.
Reference may be made to Diwakar v State of MP AIR 1984 SC 468 : 1984 Supp SCC
214 : 1984 BLJR 206 . In this case the appellants in several appeals challenged the
relaxation granted to S.C.'s and S.T.'s candidates by the State of Madhya Pradesh, in
regard to minimum qualifying marks for admission to Medical Colleges in the State.
The persons likely to be effected (i.e. who got admission) were never impleaded as
parties.
Transferee pendente lite, right to impleadment in pending suits and amend

pleading.—
There is no absolute rule that transferee pendente lite in all cases without leave of
Court should be allowed to join and contest pending suits. Two cross suits were filed
one for redemption of mortgage and other for specific performance of contract. The
transferee purchased property during pendency of suit without leave of Court. The
action for alienation was not found bona fide. The suit was long pending since 1983.
Rejection of application for impleadment and amendment of pleading was proper.145
Transferee pendente lite—Addition of.—
Transferee pendente lite can be added as a proper party if his interest in the subject
matter of suit is substantial and not just peripheral.'146 Application was moved by
pendente lite purchaser to be joined in the suit for specific performance of sale
agreement in respect of property which he had purchased in the meantime. It was held
that such application should normally be allowed or considered liberally.147 Justice
requires that a pendente lite purchaser "should be given an opportunity to protect his
rights".148
Addition at any Stage.—
Normally a party can be added at any stage of the suit but where a final decree has
been passed and drawn up, Court cannot add any party.149
Striking out Parties.—
Under O I, rule 10(2) of Code of Civil Procedure, the Court, at any stage of the
proceedings, either upon or without the application of either party and on such terms
as may appear to the Court to be just, strike out the name of the parties, whether
plaintiff or defendant who has improperly been joined in the suit.150
Wrong Description of party.—
There was wrong description of the party. The appellants were added as plaintiffs in
suit for eviction as heirs of their father who died during pendency of suit. The
description of appellants who are owners as heirs instead of owners in their right—
such error in any manner does not affect the merits or the jurisdiction of the Court.
Such irregularity could have been corrected by the Court under O I rule 10 and can be
corrected even at this stage unless the defendant is in any manner prejudiced. Thus,
the District Judge not justified in reversing the decree of the trial Court on such a
technicality which did not in any manner affect the merits of the case. The High Court
also erred in upholding the order of the District Judge.151 A suit will not fail if original
lessees (original defendants) are dropped from array of parties.152
Transposition of Parties.—
The power to add or strike out parties conferred on the Court under O I, rule 10 of Code
of Civil Procedure includes the power for meeting the ends of substantial justice, to
transfer parties from one side to other, its refusal to do so would prejudicially affect the
applicant by driving him to another suit.153 A Court can, if necessary, take action suo
moto either under O I, rule 10 or in its inherent jurisdiction and transpose an appellant
as respondent in the appeal.154
Where a Court has pecuniary jurisdiction to try the suit, refusal of transposition of
parties by it is justified.155
Further, O I, rule 10 is applicable for transposition of defendant where leave to sue in

forma pauperis is sought. If the claim made by the applicant that he is a pauper is not
established, then the application may fail.156
A suit was filed for specific performance of contract to sell property by A to B.
The coparceners of A filed an application for impleading them as parties. It was held
that application was maintainable.157
Where it is necessary for a complete adjudication of the question involved in suit as

also to avoid multiplicity of suits, the transposition of a defendant as a co-plaintiff
should always be allowed.158
Presumption of legal heirs.—
The Court cannot presume opposite party as legal heirs.159
Amendment of Plaint.—
An amendment contemplated under sub-rule (4) of rule 10 of O I is that such

amendment as is necessitated by addition of a defendant and not such as would add
or alter the nature of suit.160
Dismissal of impleadment application.—
The application for impleadment was dismissed where lis was not such that joining of
any other party was necessary.161
Suit for specific performance cannot be turned into title suit.—

A suit for specific performance cannot be converted into a title suit and the remedy of
the petitioners was elsewhere.162
Addition of party.—
In a suit for specific performance of contract, the question of addition of a party arose.
The proposed defendants who were legal heirs of original propositus, being strangers
to the contract and who were claiming their rights over the suit schedule property as
legal heirs of deceased are not necessary parties to the suit.163
Impleadment of third party.—
In a suit for specific performance of contract for sale, the plaintiff/vendee being
dominus litus, has to decide who all are the necessary parties to the suit. When the
plaintiff has not impleaded third party, defendant/vendor cannot file any petition to
implead any third party as third defendant in suit saying that they had already entered
into an agreement of sale with said person and that third party should be impleaded as
defendant in suit.164
Impleadment of Returning officer.—
In an election petition the impleadment of parties is restricted only to the candidates to

the election and no one else. Returning officer cannot be impleaded as a party.165
Joinder of proper party cannot alter the character of suit.—
A person may be joined as the party to the suit from the beginning of the suit or at any
later stage of the suit if the Court thinks fit to do so. The joinder of such a proper party
cannot alter the character of suit.166
Beneficiary of trust property is not a stranger to a suit against respondent trustees. In a

suit for specific performance of contract against respondent trustees, the beneficiary is
not a stranger and is entitled to be impleaded as a party to the suit. However, the High
Court erred in interfering with the order of the trial Court. The Supreme Court therefore
set aside the order of the High Court and upheld the decision of the trial Court.167
Propriety of dismissal of impleadment.—
In a suit for eviction and rent other family members sought their impleadment on the
ground that the property was ancestral property. The tenant admitted that he was
paying rent to the plaintiff, there was no need for the plaintiff to array the other family
members as parties in the suit. The dismissal of application for impleadment filed by
other family members was held to be proper.168
New Point.—
A contention which was not raised in lower Court or in High Court cannot be allowed to
be raised for the first time before the Supreme Court.169
As held by Privy Council under sub-rule (5) of rule 10, O I, a person will be deemed to
have been made a part and proceedings being against him only on the service of the
summons on him.170 In case of addition of parties, section 22 of the Limitation Act,
1908, gets attracted. Provision allows addition of parties as plaintiffs only.171 Where in
a suit for possession on basis of pre-emption right one of the vendees was not
impleaded and this mistake was found to be in good faith, proviso to section 21 of the
Limitation Act would apply. The bar of limitation is thus got over by the appellant. The
left-out vendee has to be impleaded under rule 10 of O I Code of Civil Procedure to
enable the Court to effectually and completely adjudicate.172
Exception to general rule of impleadment parties.—
The plaintiff in a suit being dominus litis, may choose the persons against whom he
wishes to litigate and cannot be compelled to sue a person whom he does not seek any
relief. Consequently, a person who is not a party has no right to be impleaded against
the wishes of the plaintiff. However, rule 10(2) of O I of the Code provides for
impleadment of proper or necessary parties. If necessary party is not impleaded, the
suit itself would be liable to be dismissed. If a person is not found to be a necessary or
proper party the Court has no jurisdiction to implead him against the wishes of the
plaintiff.173
Alienee as party.—
The Court in its discretion can allow alienee to be joined as party to enable him to
protect his interest.174
Right to lis pendens transferee.—
The lis pendence transferee/purchaser has no right of impleadment, lis pendence does
not prohibit a transfer. It, however, mandates that transferee will be fully bound by
decree that may be passed against his transferor.175
Objection after impleadment.—
Objection that suit will be barred by limitation can be raised only after impleadment of
party.176
Application was made in a suit for pre-emption to implead as plaintiff, claiming therein
that the applicant has better pre-emptory rights. It was held that as the original suit was
barred by limitation, allowing the application would amount to reviving the suit which is
otherwise barred by limitation. Hence application was rejected.177
Ordinarily a transferee pendente lite without leave of the Court cannot be impleaded as
a party.178
86 See now Limitation Act 36 of 1963, Section 21.

87 Lakshmi Kumar v Krishnaram, AIR 1954 MP 156 : (1977) 1 SCR 853 .
88 Ram Prasad v Vijay Kumar, AIR 1967 SC 278 : 1966 Supp SCR 188 : 69 Bom LR 20.
89 Chaturbhuj v Election Tribunal, AIR 1958 All 809 .
90 Savitri Devi v District Judge, Gorakhpur, AIR 1999 SC 976 (977, 979) : (1999) 2 SCC 577 : 1999
All LJ 684.
91 Mumbai International Airport Pvt Ltd v Regency Convention Centre & Hotels Pvt Ltd, AIR 2010
SC 3109 (3114) : (2010) 7 SCC 417 .
92 K Venkateswara Rao v BN Reddi, AIR 1969 SC 872 : (1969) 1 SCR 679 .
93 State of Kerala v WI Services & Estates Ltd, AIR 1999 SC 562 (564) : (1998) 5 SCC 583 .
94 Re, Ibrahim Haji, AIR 1957 Mad 699 .
95 Pankajbhai Rameshbhai Zalavadia v Jethabhai Kalabhai Zalavadia, AIR 2018 SC 490 : 2017
(12) SCALE 134 : (2017) 9 SCC 700 .
96 Mohan Raj v Surendra Kumar, AIR 1969 SC 677 (681) : (1969) 1 SCR 630 .
97 Harish Chandra v Trilok Singh, AIR 1954 SC 210 : 1954 SCR 892 .
98 Razia Begum v Sahibzad, AIR 1958 SC 886 : 1959 SCR 1111 : (1958) 2 MLJ (SC) 193.
99 Naba Kumar v Radha Shyam, AIR 1981 PC 229 .
100 55 Ind App 177 (PC).
101 Karuppaswami v C Ramamurthy, AIR 1993 SC 2324 (2327) : (1983) 4 SCC 41 ; Munshi Ram v
Narsi Ram, AIR 1983 SC 271 (followed).
102 Ambey Devi v State of Bihar, AIR 1996 SC 1513 : (1996) 9 SCC 84 .
103 Narayan v Gopal, AIR 1960 SC 100 .
104 B Prabhakar Rao v State of AP, AIR 1986 SC 210 (227) : 1985 Supp SCC 432 : 1986 SCC
(L&S) 49 .
105 Chandra Bhan v Misrimal, AIR 1955 Raj 11 .
106 Atal Shrivastava v Devprasad, AIR 2012 Chh 117 .
107 Dwarka Prasad v Harikant Prasad, AIR 1973 SC 655 (657) : (1973) 1 SCC 179 ; see also Lala
Durga Pd v Lala Deepchand, AIR 1954 SC 75 ; RC Chandiok v Chunni Lal Sabharwal, AIR 1971 SC
1238 : (1970) 3 SCC 140 .
108 Kalawati Devi v Yoganti Devi, ( AIR 2012 Pat 125 ).
109 Mumbai International Airport Pvt Ltd v Regency Convention Centre and Hotel Pvt Ltd, AIR
2010 SC 3109 .
110 JJ Lal Pvt Ltd v MR Murali, AIR 2002 SC 1061 (1073) : (2002) 3 SCC 98 .
111 Bajranlal S Ruta v Shashi Kant N Ruta, AIR 2004 SC 2546 (2561).
112 Banwari Lal v Balbir Singh, AIR 2015 SC 3573 .
113 Kasthuri v Iyyamperumal, AIR 2005 SC 2813 ; Eshwari Developers, Bengaluru v
Sadashivareddy, AIR 2015 Kar 171 .
114 Bhahumani Sahu v State, AIR 2013 Ori 52 .
115 Assam SS Industries Div Corpn v JD Pharmaceuticals, AIR 2006 SC 131 (139).
116 Richard Lee v Girish Soni, AIR 2017 SC 921 .
117 Babulal Khandelwal v Balkrishan D Sanghvi, AIR 2009 SC 67 (69).
118 Kanakarathanammal v Loganatha, AIR 1965 SC 271 : (1964) 6 SCR 1 .
119 (1919) 43 Bom 575.
120 Vdit Narain Singh v Board of Revenue, AIR 1963 SC 786 : 1963 Supp (1) SCR 676 .
121 See O XXXI, rule 2.
122 Madhavji v Trikamdas, AIR 1969 Guj 205 .
123 Re the Hindu Woman's Right to Property Act, AIR 1941 FC 16 .
124 Machindranath Kernath Kasar v DS Mylarappa, AIR 2008 SC 2545 (2550).
125 TS Mahadevaiah v SV Nagaraju, AIR 2013 Kar 149 .
126 CK Prahalada v State of Karnataka, (2008) 15 SCC 577 .
127 Rajiv Shankar v Soumya Nair, AIR 2014 Kar 167 .
128 Asha Devi v Rama Nand Singh, AIR 2014 Pat 25 .
129 Jadgdish Chand Pasharija v Bal Ram Singh, AIR 2015 Chh 190 .
130 Pragatisheel Jatiya (Raigar) Samaj Seva Sansthan, Pipar City v Annantanand, AIR 2014 Raj 50
.
131 Kasthuri Radhakrishan v M Chinniyan, AIR 2016 SC 609 .
132 Canara Bank v PRN Upadhyaya, AIR 1998 SC 3000 (3005) : (1998) 6 SCC 526 : (1998) 94 CC
569 .
133 IJC v Gangadhar v V Ranade, AIR 1990 SC 185 (191) : (1989) 4 SCC 297 : (1989) 66 CC 858 .
134 Rajendra Prasad v Sub Divisional Magistrate, AIR 2014 All 150 .
135 Shanmughasundaram v D Nadar, AIR 2005 SC 1836 (1841-1842).
137 Re the Hindu Woman's Right to Property Act, AIR 1941 FC 16 .
138 Benares Bank v Bhagwan, AIR 1947 AP 18 (FB); Dy Commr v Ramakrishna, AIR 1953 SC 521
approved in.
139 (1968) 70 Punj LR 98 .
140 Sunitibai v Paras Finance Co, (2007) 10 SCC 82 (87).
141 Mumbai International Airport Pvt Ltd v Regency Convention Centre & Hotels Pvt Ltd, AIR 2010
SC 3109 (3112) : (2010) 7 SCC 417 .
142 Abdul Kareem v Hashmi, 2010 (2) Rent CR 647 (DB).
143 Aliji Monoji & Cov Lalji Mavji, AIR 1997 SC 64 : (1996) 5 SCC 379 .
144 Neyvely Lignite Corpn Ltd v Spl Tahsildar (LA), Neyvely, AIR 1995 SC 1004 (1009) : (1995) 1
SCC 221 : (1995) 1 An LT 24 (SC); Ahemadabad Municipal Corpn Case, (1971) 3 SCC 821 : 1970
SCD 298 overruled.
145 Bibi Zubaida Khatoon v Nabi Hassan, AIR 2004 SC 173 ; see also Savinder v Dalip, 1996 (5)
SCC 539 and Dhurendhar Prasad v JP University, AIR 2001 SC 2552 (relied on).
146 AK Shaw v F Khatoon, AIR 2005 SC 2209 (2213-14).
147 A Nawab John v VN Subramaniyam, (2012) 7 SCC 738 .
148 Saila Bala Dassi v Nirmala Sundari Dassi, AIR 1958 SC 394 .
149 AIR 1914 PC 129 .
150 Abdul Sac v Sundara Mudaliar, AIR 1930 Mad 817 .
152 Nirmala Anand v Advent Corpn Pvt Ltd, AIR 2002 SC 2290 : (2002) 5 SCC 481 .
153 Bhupendra v Rajeshwar, AIR 1931 PC 162 .
154 Saila Bala v Nirmala Sundari, AIR 1958 SC 394 (398) : 1958 SCR 394 : (1958) 2 MLS (SC) 99.
155 Bijoyo Kumar Pattanaik v Basanta Kumar Patnaik, AIR 2000 SC 3587 (3589) : (2000) 9 SCC
335 .
156 Yijai Pratap Singh v Dukh Haran Nath, AIR 1962 SC 941 (945) : 1962 Supp (2) SCR 675 :
(1962) 2 All 831 .
157 Atul Sharma v Gurindar Singh, AIR 1984 P&H 365 .
158 Maddanappa v Chandramma, AIR 1965 SC 1812 : (1965) 3 SCR 283 .
159 Bikali C Das v Sashimani Das, AIR 2011 Ori 74 (75).
160 Madanlal v UOI, AIR 1968 Ori 234 .
161 Mohd Shiyas v A John Kennedy, 2011 AIR CC 1121 (1123) (Ker-DB).
162 Yijai Pratap v Shambhu Saran Shinha, AIR 1996 SC 2755 : (1996) 10 SCC 53 .
163 Narayana Reddy v Manjunath, AIR 2016 Kar 1 .
164 Pappa v R Muniappan, AIR 2014 Mad 15 (para 9).
165 Mairembam Prithviraj v Pukhrem Sharatchandra Singh, AIR 2014 Mpr 45 .
166 Importers & Manufacturers Ltd v Pheroze Framroze, AIR 1953 SC 73 (75) : 1953 SCR 73 .
167 Baluram v P Chellathangam, AIR 2015 SC 1264 .
168 Ishrat Javed v Abdul Salim, 2011 AIR CC 1274 (Raj).
169 GH Grant v State of Bihar, AIR 1966 SC 237 : (1965) 3 SCR 576 .
170 AIR 1914 PC 129 .
171 Ram Prasad v Vijay Kumar, AIR 1967 SC 278 : 1966 Supp SCR 188 : 69 Bom LR 20.
172 Munshi Ram v Narsi Ram, AIR 1983 SC 271 (274) : (1983) 2 SCC 8 .
173 Mumbai International Airport v Regency Convention Centre & Hotels (P) Ltd, (2010) 7 SCC
417 (422, 423) : AIR 2010 SC 3109 .
174 Gauri Shankar Pathak v Shankaranan Upadhyay, AIR 2011 Pat 66 (69).
175 SN Arora v Brokers & Brokers Pvt Ltd, AIR 2011 Del 89 (93–96) (DB).
176 Pawan Gupta v Pritpal Singh Saluja, AIR 2008 (NOC) 63 (Del) (DB); FAO No 117/2006 Dt 6
September 2007.
177 Hari Singh v Padmawati Arts Creation Pvt Ltd, AIR 2014 Raj 186 .
178 Sunil Gupta v Kiran Girhotra, (2007) 8 SCC 506 (510).

request any pleader to address it
© 2020 LexisNexis
THE FIRST SCHEDULE
179[R. 10A.
Power of Court to request any pleader to address it
The Court may, in its discretion, request any pleader to address it as to any interest
which is likely to be affected by its decision on any matter in issue in any suit or
proceeding, if the party having the interest which is likely to be so affected is not
represented by any pleader.]
COMMENT.—
Rule 10-A to this Order was added by the Amending Act of 1976, which empowers a
Court to request any pleader to address it as to any interest which is not represented by
any pleader.
179 Ins. by CPC (Amendment) Act 104 of 1976, Section 52, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Conduct of suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Conduct of suit
The Court may give the conduct of 180[a suit] to such person as it deems proper.
180 Subs. by ibid, for "the suit", Section 52 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Appearance of one of
several plaintiffs or defendants for others
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Appearance of one of several plaintiffs or defendants for others
(1) Where there are more plaintiffs than one, any one or more of them may be
authorised by any other of them to appear, plead or act for such other in any
proceeding; and in like manner, where there are more defendants than one, any
one or more of them may be authorised by any other of them to appear, plead
or act for such other in any proceeding.
(2) The authority shall be in writing signed by the party giving it and shall be filed
in Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Objections as to non-
joinder or misjoinder
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Objections as to non-joinder or misjoinder
All objections on the ground of non-joinder or misjoinder of parties shall be taken at

the earliest possible opportunity and, in all cases where issues are settled, at or
before such settlement, unless the ground of objection has subsequently arisen, and
any such objection not so taken shall be deemed to have been waived.
COMMENT.—
Objection to non-joinder and mis-joinder.—
Rule 13 of O I provides that where an objection is to be taken to the frame of the suit on
account of defect of parties, it should be done at the earliest possible opportunity, and
before the settlement of the issues. If this is not done the objections would be deemed
to have been waived.181 This rule is applicable to suits as well as to appeals.182 As
held by the Supreme Court of India, the rule applies to election petitions under the
Representation of Peoples Act, 1951.183
Where a claim for possession is not being sought for against the Government or Mandi
Committee, they are not necessary parties. The decree for possession granted by trial
Court may not bind the Government on that ground. But the Omission to implead the
Government or Mandi Committee as a co-defendant is not vitiated by this rule. The suit
need not be dismissed on the ground of their non-joinder.184
Impleadment permitted even after ex parte decree was passed.—
The Supreme Court has permitted impleadment in a case even after an ex parte decree
was passed, without impleading the necessary party.185
181 Jagdish Chandra v Kameshwar Singh, AIR 1953 Pat 178 .

182 Kanna Kurup v Tahamasikum Verma Raja, AIR 1921 Mad 2431 .
183 Harish Chandra v Triloki Singh, AIR 1957 SC 444 : 12 ELR 461 : 1957 SCR 370 ; Jagan Nath v
Jaswant Singh, 1954 SCR 89 .
184 Biharilal v Bhuri Devi, AIR 1997 SC 1879 (1883) : (1997) 2 SCC 279 .
185 Textiles Assn (India) Bombay Unit v Balmohan Gopal Kurup, AIR 1990 SC 2053 : (1990) 4
SCC 700 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Frame of suit
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER II Frame of Suit
R. 1.
Frame of suit
Every suit shall as far as practicable be framed so as to afford ground for final
decision upon the subject in dispute and to prevent further litigation concerning them.
COMMENT.—
Order II, rule 1, Code of Civil Procedure lays down rules for framing a suit. Accordingly,
it requires that every suit should as far as practicable, be so framed as to afford
grounds for final decision upon the subject in dispute and to prevent further litigation
concerning it. It is, moreover, neither necessary nor advisable that the plaintiff should
be obliged to file a separate suit where in those suits common question of law and fact
would arise.1 The plaintiff is the dominus litis and is free to frame his case on any basis
he likes.2 But he must always bear in mind the consequences that will ensue in case
the suit is not properly framed.
The object of this rule is to give effect to the maxim interest republicae ut sit finis litium,
that is, it is in the interest of the State that there should be an end to a litigation.3 The
intention of the Legislature is that all matters in dispute should be dispose of in the
same suit.
The penalty for non-compliance with the rule is provided partly by section 11
Explanation IV and partly by O II, rule 2. Explanation IV of section 11 lays down that any
matter which might and ought to have been made a ground of attack or of defence in a
former suit will be deemed to have been a matter directly and substantially in issue in
such suit and will not be allowed to be re-opened in a subsequent suit, between the
same parties, although it was not actually adjudicated upon in the former suit. Order II,
rule 2 lays down that every suit should include the whole of the claim which the plaintiff
is entitled to make in respect of the same cause of action and that if he omits to
include any portion of such claim he shall not be entitled to sue again in respect of it.
1 ILR (1947) Nag 288 .

2 ILR (1951) Cal 443 .
3 9 CWN 498.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Suit to include the whole
claim
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Suit to include the whole claim
(1) Every suit shall include the whole of the claim which the plaintiff is entitled to
make in respect of the cause of action; but a plaintiff may relinquish any
portion of his claim in order to bring the suit within the jurisdiction of any
Court.
Relinquishment of part of claim
(2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any
portion of his claim, he shall not afterwards sue in respect of the portion so
omitted or relinquished.
Omission to sue for one of several reliefs
(3) A person entitled to more than one relief in respect of the same cause of action
may sue for all or any of such reliefs; but if he omits, except with the leave of
the Court, to sue for all such reliefs, he shall not afterwards sue for any relief
so omitted.
Explanation.— For the purposes of this rule an obligation and a collateral security for
its performance and successive claims arising under the same obligation shall be
deemed respectively to constitute but one cause of action.
ILLUSTRATION
A lets a house to B at a yearly rent of Rs. 1,200. The rent for the whole of the years
1905, 1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for
1906. A shall not afterwards sue B for the rent for 1905 or 1907.
STATE AMENDMENTS
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act, 57 of 1976,
In its application to the State of U.P.—
(i) in Order II, rule 2, existing Explanation shall be numbered as Explanation 1, and
thereafter the following Explanation II shall be inserted:—
"Explanation II.—For the purposes of this rule a claim for ejectment of the defendant
from immovable property let out to him and a claim for money due from him on
account of rent or compensation for use and occupation of that property shall, be
deemed to be claims in respect of distinct causes of action": and
(ii) Illustration to the said rule shall be substituted as follows:

"Illustration.—A lets immovable property to B at a yearly rent. The rent for the whole of
the years, 1905, 1906 and 1907 is due and unpaid, and the tenancy is determined
before A sues B in 1908, only for the rent due for 1906. A may afterwards sue B for
ejectment but not for the rent due for 1905 or 1907."
ILLUSTRATION
A lets a house to B at yearly rent of Rs. 1,200. The rent for the whole of the years 1905,
1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A
shall not afterwards sue B for the rents for 1905 or 1907.
COMMENT.—
Order II, rule 2 is mainly concerned with correct joinder of causes of action, adequate
inclusion of reliefs claimed and so forth, rather than to joinder of parties.4
According to this rule, every suit must include the whole claim which the plaintiff is
entitled to make in respect of that cause of action. It is, of course, open to him to
relinquish any portion of his claim that is to bring the suit within the jurisdiction of a
particular Court. However, when he does so, he cannot afterwards file a suit in respect
of the portion of the claim so relinquished. The same rule applies if the plaintiff, for any
reason, omits to sue in respect of a part of his claim. Likewise, if a person is entitled to
more than one relief in respect of the same cause of action, he may sue for all or any of
such reliefs. But, if he omits, without the leave of the Court to sue for all such reliefs, he
cannot afterwards sue for any relief so omitted.
The cause of action in subsequent suit is different. The relief asked for in the
subsequent suit is not which could have been asked for in earlier suit. The subsequent
suit is not barred. The requirement of rule 2 is that every suit should include whole of
the claim which the plaintiff is entitled to make in respect of a cause of action. The
"cause of action" means the "cause of action" for which the suit was brought.5
When defendant pleads this rule he must file the pleadings in the previous suit and
such pleadings must be brought on record. In cases of continuous causes of action or
recurring causes of action as in the case of infringement of trademark, bar of rule 2(3)
cannot be invoked.6
The explanation attached to rule 2 clarifies that for the purpose of rule 2 an obligation
and a collateral security for its performance and successive claims arising under the
same obligation are to be deemed respectively to constitute but one cause of action.
The rule is based on the maxim nemo devet bis vexari pro una et eadem causa that no
person should be vexed twice over for the same cause.7 Order II, rule 2 does not
envisage that when a transaction gives rise to several causes of action, the plaintiff
must combine all the causes of action in one suit,8 instead what this rule requires is
that where there is a cause of action, the plaintiff cannot split the cause of action into
parts and claim reliefs in parts by means of several suits. A plaintiff is not under an
obligation to put forward in one action every claim that he may have against the
defendant, as the causes of action in such cases may be different but he must include
the whole claim based on one particular cause of action.9 Order II, rule 2 is directed
against two evils, that is splitting of claims and the splitting of the remedies.10
The object behind the enactment of O II rules 2(2) and (3) of the Code of Civil
Procedure is not far to seek. The rule engrafts a laudable principle that
discourages/prohibits vexing the defendant again and again by multiple suits except in
a situation where one of the several reliefs, though available to a plaintiff, may not have
been claimed for a good reason. A later suit for such relief is contemplated only with
the leave of the Court which leave, naturally, will be granted upon due satisfaction and
for good and sufficient reasons.
Bar of filing subsequent suit on same cause of action is applicable both during
pendency of first suit and also where first suit is disposed of.11
A composite suit would not entitle a Court to entertain a suit in respect whereof it has
no jurisdiction territorial or otherwise. The provision under rule 3 of O II of the Code,
specifically provides where cause of action is united, the jurisdiction of Court as
regards the suit shall depend on the amount or value of aggregate subject-matters at
the date of instituting the suit.12
If certain facts are not pleaded in the written statement, the same cannot be
substituted by way of an application and take the place of pleadings.13
Other proceeding in respect of issues arising out of the same claim is barred.—
All the issues arising out of the termination of a contract could have been raised in the
first claim petition before the arbitrator. A second claim petition in respect of some of
the issues arising out of the same is barred.14
No application, where distinct cause of action in subsequent suit.—
Where a suit for recovery of sale price of suit-land was dismissed and a subsequent
suit by plaintiffs for recovery of possession on ground that they were owners of land
was filed, this rule will not apply as there exists a distinct cause of action in the
subsequent suit.15
In the earlier suit seeking a decree for declaration of right and title of plaintiffs to plaint
scheduled property and their possession, the title of plaintiffs was upheld but the
prayer for injunction was rejected as possession was not found. The subsequent suit
claiming recovery of possession was not barred as the cause of action in both the suits
was not same rule 2 would not be applicable in such cases.16
The bar of O II, rule 2 may not apply to petitions under Article 226 of the Constitution of
India.17 Again the provisions of O II, rule 2 will not apply unless the Court which tried
the former suit had jurisdiction to try the claim omitted by the plaintiff.18 In a dispute of
apportionment of compensation non-inclusion of disputed property in an earlier
partition suit is not fatal to reference proceedings under section 30 of the Land
Acquisition Act. This rule providing for inclusion of whole claim in suit is not
applicable.19
In a suit for declaration of title and injunction the appellant had the cause of action to
sue for specific performance in 1991 but he omitted to do so, he should not be allowed
to sue on that course of action which he omitted to include when he filed his suit. The
court considered this omission as relinquishment of that part of its claim. The suit was
therefore, hit by the provision of O II, rule 2 of the Code.20
The application of this rule requires inclusion of whole claim arising in respect of one
cause of action in one suit. Where causes of action are different in two suits, this rule
will not apply.21
Order II, rule 2 insists upon inclusion of whole claim which plaintiff is entitled to make
in respect of a cause of action put in suit. It directs securing exhaustion of relief in
respect of a cause of action and not to the inclusion in one and same action of
different causes of action, even though they may arise from same transaction.22
If the cause of action for subsequent suit is different from causes of action in suits
which were compromised, then failure of defendants to carry out terms of compromise
decree constituting a part of cause of action in subsequent suit will not attract
application of O II, rule 2.23
The object of O II, rule 2 of the code is two-fold. First is to ensure that no defendant is
sued and vexed twice in regard to the same cause of action. Second is to prevent a
plaintiff from splitting of claims and remedies based on the same cause of action. It
does not bar a second suit based on a different and distinct cause of action.24
Omission to sue in respect of a portion of a claim.—
Where the plaintiff omits to sue in respect of whole of the claim a fresh suit is barred in
respect of the portion so omitted.25 Thus for instance, where there is a single
obligation to pay the interest and the principal under a mortgage transaction, a suit for
interest alone when the principal has also become payable, will bar a subsequent suit
in respect of the principal sum of money under the mortgage.26
Intentional relinquishment.—
Under provisions of OII, rule 2 the plaintiff may relinquish any portion of his claim for
purposes of bringing it within the jurisdiction of particular Court, and once the suit is
instituted in a Court which has no jurisdiction the proper course for such a Court is to
return the plaint and not to allow amendment by relinquishment of relief,27 and when
the plaintiff intentionally relinquishes a portion of his claims he cannot bring
subsequently a fresh suit.
Omission to sue for all reliefs.—
As held by the Supreme Court of India where the plaintiff omits to sue, without leave of
the Court, in respect of all the reliefs for which he is entitled, he shall not afterwards
sue for the reliefs so omitted by him.28
Suit is barred, if cause of action is same.—
The cause of action in the first suit was the desire of the plaintiff to separate from his
brothers and to divide the joint family property. His subsequent suit to enforce a part of
the claim was founded on the same cause of action which he deliberately relinquished.
The cause of action in the two suits being the same, the suit was barred under O II, rule
2(3) of Code of Civil Procedure.29
Bar of subsequent suit-Condition.—
When cause of action and the parties involved in both the suits are the same and
reliefs claimed in subsequent suit could have been claimed in previous suit itself but
had been omitted, only then would subsequent suit be barred under rule 2. The bar
under rule 2 must be specifically pleaded by defendant in subsequent suit and the trial
Court must frame a specific issue in that regard. Where the cause of action on which
two suits were based were the same and the parties were also the same and in the
absence of any explanation of plaintiff as to why reliefs claimed in subsequent suit had
not been claimed in previous suit, subsequent suit is barred under O II, rule 2.30
It has been held by a full bench of Allahabad High Court in Balbir Singh v Atma Ram, AIR
1977 All 211 (FB) that where the plaintiff had filed a suit for mesne profits and had
reserved his right to file a suit for ejectment subsequently at a later stage with the
permission of the Court and that the Court had also permitted to do so, the second suit
(relating to ejectment) was not barred under O II, rule 2, of the Code of Civil Procedure.
Where a landlord claims relief of eviction on three different causes of action, separate
suits can be filed successively.31
Where in the previously instituted suit the plaintiff not only made prayer for declaration
of his right, title and interest but also claimed for a decree of injunction restraining the
defendant from dispossessing him from the suit property. The said suit was partly
decreed, declaring title of plaintiff over suit property. The prayer for recovery of khas
possession was refused on the ground that no such averment or prayer was made in
the plaint. The plaintiff filed subsequent suit for declaration that he was entitled to get
khas possession. It was held that the subsequent suit is barred by O II, rule 2.32 In the
instant case the plaintiff first filed the suit containing averments regarding title to the
suit property. The defendant/respondent filed counter claim claiming himself to be the
title holder and denying the title of the plaintiff. Thereafter the plaintiff filed another suit
of possession based on his title, after he was allegedly dispossessed by the defendant.
It was held the cause of action in both suits were in relation to the question whether the
plaintiff acquired title of suit property; therefore, the subsequent suit was barred under
O II rule 2.33
When cause of action in both suits being the same and plaintiff having omitted to seek
certain relief in the first suit, he cannot file second suit seeking that same relief.34
Where a suit for permanent injunction was filed by plaintiff and the same was
withdrawn. Thereafter the plaintiff filed suit for specific performance of contract. It was
held that both the suits are founded on different cause of action and reliefs claimed are
different. Therefore, the bar under O II rule 2 is not applicable.35
A suit for eviction, arrears of rent and for mesne profits was filed. The plaintiff claimed
mesne profits or arrears of rent, filed for eviction of tenant and has relinquished his
rights vis-a-vis mesne profits or arrears of rent in the suit proceedings itself. The
provisions of O II rule 2 will come into play and the second suit for mesne profits or
arrears of rent cannot be claimed where the decree in earlier suit attains finality.36
Second Suit for Partition is not on the same cause of action.—
If property in question not included in the previous suit for declaration of share; cause
of action in earlier suit is different than that of present suit. Then, suit not barred by O II
rule 2.
Suit for partition with respect to joint property is based on continuing cause of action,
as such the suit for partition could not be said to be barred by O II rule 2 of the Code of
Civil Procedure.37
Cause of action meaning of.—The cause of action is bundle of facts which taken law
applicable to them gives the plaintiff a right to relief against the defendant.38
"Portion of his claim"—Meaning of.—
In State of MP v State of Maharashtra, AIR 1977 SC 1466 : (1977) 2 SCC 288 the
Supreme Court held as follows:
The plaintiff will be barred under Order II, rule 2 of the Code of Civil Procedure only when he
omits to sue for or relinquishes the claim in a suit with knowledge that he has a right to sue
for that relief. A right which a litigant does not know that he possesses or a right which is
not in existence at the time of the first suit can hardly be regarded as a "portion of his claim"
within the meaning of Order II, rule 2 of the Code of Civil Procedure.49
It was further held that "The appellant Madhya Pradesh is, therefore, not right in
contending that the plaintiff is barred by provisions contained in O II, rule 2 of the Code
of Civil Procedure from asking for arrears of salary in the 1956 suit. The plaintiff could
have not asked for arrears of salary under the law as it then stood. The plaintiff did not
know of or possess any such right. The plaintiff, therefore, cannot be said to have
omitted to sue for any right".40
Before instituting suit for specific performance i.e. special civil suit, prior leave is
required to be obtained under O II, rule 2(3) of the Code.41'
Plea of Bar.—
In order that the plea of a bar under O II, rule 2(3) should succeed it must be
established satisfactorily by the defendant. It cannot be presumed on the basis of
inferential reasoning.42
Where the defendant did not contend that the suit was barred by O II, rule 2 of the Code
and no issue was framed as to whether the suit was barred by O II, rule 2 of the Code,
the dismissal of suit being barred under O II, rule 2 of the Code would be illegal.43
Suit for refund of Stridhan.—
Whether wife should file a suit for recovery of stridhan against husband in family court
and against the in-laws before the ordinary civil Court? It was held that it will be
contrary to the provisions contained in O I rule 3 and O II rule 2 of the Code of Civil
Procedure. The aforesaid provisions specifically provides that plaintiff cannot split
cause of action and has to include the whole claim in one suit; meaning thereby the
mandate of O II rule 2 read with O I rule 3 shall come into play in splitting the suit, the
plaintiff is bound to file one suit against her husband and against her in-laws in such a
situation when the suit is filed for recovery of stridhan. It was further held that family
Court has jurisdiction to entertain such a suit against both husband and in-laws.44
Subsequent suit is not barred when cause of action is different.—
Where an earlier suit for injunction was dismissed on technical ground, the subsequent
suit for declaration of title and recovery of possession is not barred by res judicata
because the question of status of the plaintiff as lessee was not decided in the earlier
suit. The subsequent suit is also not barred by rule 2(3) of O II since the causes of
action are different.45
Earlier suit was filed for injunction. In the subsequent suit, specific relief for
cancellation of sale deed was claimed. Cause of action in both suits were different.
Therefore, suit for cancellation of sale deed not barred by O II rule 2.46
Relief of possession at appellate stage.—
In a suit of specific performance, where a vendor is selling property to another in

defiance of previous agreement, relief of possession can be granted at appellate
stage.47
Pleadings are binding on parties in subsequent proceedings proprio vigore unless fraud
is proved.48
Order II, rule 2 is directed to securing the exhaustion of the relief in respect of a cause
of action and not to inclusion in one and the same action of different causes of action,
even though they arise from the same transaction.49
The leave of the Court is the sine qua non for entertaining a fresh suit for the relief
omitted to be claimed. The suit filed for omitted relief after the question of leave and
limitation attaining finality in earlier litigation could not be held barred by limitation.50
Non-applicability to winding up petition.—
Order II deals with frame of suit and reliefs thereunder. Whereas winding up
proceedings were initiated under Companies Act, 1956 and such proceedings are not
suit but a petition. Hence, the provisions of O II rule 2 would not be applicable to
winding up proceedings.51
4 AIR 1914 Lah 187 .

5 Sidramappa v Raja shetty, AIR 1970 SC 1059 : (1970) 1 SCC 186 .
6 Bengal Waterproof Ltd v Bombay Waterproof Ltd, AIR 1997 SC 1398 (1402, 1404) : (1997) 1
SCC 99 .
7 Naba Kumar v Radha Shyam, AIR 1931 PC 229 .
8 Arunachalam v Velamma, AIR 1958 Mad 226 .
9 ILR (1937) Nag 94 .
10 (1956) ALT 918 .
11 Virgo Industries (Eng) (P) Ltd v Venturetech Solutions (P) Ltd, (2013) 1 SCC 625 .
12 Dabur India Ltd v KR Industries, AIR 2008 SC 3123 (3130).
13 Sardar Satpal Singh v Saroj Shukla, AIR 2015 Chh 166 .
14 KV George v Secretary to Govt, AIR 1990 SC 53 (58) : (1989) 4 SCC 595 .
15 Deva Ram v Ishwar Chand, AIR 1996 SC 378 (381) : (1995) 6 SCC 733 .
16 Kunjan Nair Sivaraman Nair v Narayanan Nair, AIR 2004 SC 1761 (1765).
17 Devendra Pratap v State of Uttar Pradesh, AIR 1962 SC 1334 : 1962 Supp (1) SCR 315 : 1962
ALJ 437 ; see also Gulab Chand v State of Gujarat, AIR 1965 SC 1153 : (1965) 2 SCR 547 : 67
Bom LR 673.
18 Jagat Singh v Sangat Singh, AIR 1940 PC 70 .
19 Surendra Kumar v Phoolchand, AIR 1996 SC 1148 (1150) : (1996) 2 SCC 491 .
20 Van Vibhag Karamchari GNSS Maryadit v R Chander, AIR 2011 SC 41 (46).
21 State of Maharashtra v National Construction Co, Bombay, AIR 1996 SC 2367 (2369, 2370) :
(1996) 1 SCC 735 .
22 S Nazeer Ahmed v State Bank of Mysore, (2007) 11 SCC 75 .
23 Arjun Lal Gupta v Mriganka Mohan Sur, AIR 1975 SC 207 : (1974) 2 SCC 586 .
24 Alka Gupta v Narender Kumar Gupta, (2010) 10 SCC 141 (147).
25 Fateh Chand v Arjan, AIR 1933 Lah 415 (FB).
26 Kishen Narain v Pala Mal, AIR 1922 PC 412 .
27 Subhag Singh v Ranjit Singh, AIR 1943 Nag 293 .
28 Haridas v Anath Nath, AIR 1961 SC 1419 : 1961 (3) SCR 880 ; see also Naba Kumar v Radha
Shyam, AIR 1931 PC 229 .
29 Shankar v Ballkrishna, AIR 1954 SC 352 (355) : (1955) 1 SCR 99 : 57 Bom LR 1.
30 Coffee Board v Ramesh Exports Pvt Ltd, AIR 2014 SC 2301 .
31 Kewal Singh v Lajwanti, AIR 1980 SC 161 (163) : (1980) 1 SCC 290 .
32 Aravinda Sarma v Landaru Roy, AIR 2015 Gau 45 .
33 Ranbir Singh v Dalbir Singh, AIR 2013 Del (NOC) 120.
34 SBI v Gracure Pharmaceuticals Ltd, AIR 2014 SC 731 .
35 Sucha Singh Sodhi v Baldev Raj Walia, AIR 2018 SC 2241 : 2018 (5) SCALE 615 : (2018) 6
SCC 733 .
36 Raptakos Brettand and Co Ltd v Ganesh Property, AIR 2017 SC 4574 : 2017 (8) SCJ 677 :
(2017) 7 MLJ 861 .
37 Bapusaheb Chimasaheb Naik-Nimbalkar v Mahesh Yijaysinha Rajebhosale, AIR 2017 SC 2491
: 2017 (5) SCALE 363 : 2017 (5) SCJ 201 .
38 Swami Atmananda v Sri RK Tapovanam, AIR 2005 SC 2392 (2398); see also Sushila Kumari v
Rama Stores, AIR 2005 Del 401 .
49 Sandeep Polymers (P) Ltd v Bajaj Auto Ltd, (2007) 7 SCC 148 (161).
40 (1977) 2 SCC 288 (296): AIR 1977 SC 1474 .
41 Vimal Builders v Ketan K Thakkar, 2010 (1) Bom CR 398 (407-409) (DB).
42 Gurbux Singh v Bhooralal, AIR 1964 SC 1810 (1812) : (1964) 7 SCR 831 : (1965) 1 An LT 107.
43 Alka Gupta v Narendra Kumar Gupta, AIR 2011 SC 09 (12, 13). See also Nabina Chadha v Usha
Das, AIR 2011 Ori 5 .
44 Om Prakash Tiwary v Neetu Tiwary, AIR 2012 MP 142 .
45 Inacio Martins v Narain Hari Naik, AIR 1993 SC 1756 (1758, 1759) : (1993) 3 SCC 123 : (1993)
2 ALT 29 (SC).
46 Mukhtyar Ahmad v Mangta Husain, AIR 2013 Utr 91 .
47 Babu Lal v Hazari Lal, AIR 1982 SC 818 (826) : (1982) 1 SCC 525 .
48 Ranganayakamma v KS Prakash, (2008) 15 SCC 673 (690).
49 Sandeep Polymers (P) Ltd v Bajaj Auto Ltd, (2007) 7 SCC 148 (161).
50 Hindustan Motors Ltd v DR Motors, 2009 (3) MPLJ 506 (507-14) (DB).
51 Raju Jhurani v Germinda (P) Ltd AIR 2012 SC 3191 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Joinder of causes of
action
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Joinder of causes of action
(1) Save as otherwise provided, a plaintiff may unite in the same suit several
causes of action against the same defendant, or the same defendants jointly;
and any plaintiffs having causes of action in which they are jointly interested
against the same defendant or the same defendants jointly may unite such
causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the
suit shall depend on the amount or value of the aggregate subject-matters at
the date of instituting the suit.
COMMENT.—
For a proper understanding of provisions contained in rule 3, O II it must be read along

with O I, rule 1 and 3.52 Order II, rule 3 permits a plaintiff to unite in the same suit
several causes of action against the same defendant or the same defendants jointly.
No question of convenience or inconvenience is material under rule 3.53 What is
permitted under this rule is not only joinder of causes of action against the same
defendant or same defendants but also joinder of different causes of action against
different defendants, if the plaintiff is able to bring his case within the purview of O I,
rule 3.54
For the application of O I, rule 3 and O II, rule 3, there must be some "common question
of law and fact" as also "the same act or transaction or the same series of acts or
transactions" in respect of which or out of which the alleged right to relief arises.55
Rule 3 of O II, permits the plaintiff to unit several causes of action against a single
defendant.56
Jurisdiction cannot be conferred by joining two causes of action in the same suit when
Court has jurisdiction to try the suit only in respect of one cause of action and not the
other. In order to invoke jurisdiction of Court in a composite suit, both the causes of
action must arise within the jurisdiction of the Court which otherwise had jurisdiction to
decide all issues.57
Order II, rule 3 also permits the joinder of two or more plaintiffs against the same
defendant if the plaintiffs are jointly interested in the causes of action.58
Mis-joinder of parties and causes of action.—As provided in section 99 and O II, rule 7,
the mis-joinder is treated only as an irregularity and no suit can be dismissed on the
mere ground of mis-joinder of causes of action.59 A plea of mis-joinder can be raised in
appeal as a ground for reversing the decree or for remand of the case, unless it has
affected the merits of the case or the jurisdiction of the Court.60
52 AIR 1918 Cal 858 (DB).

53 Mohd Ishaq v Abdul Majeed, AIR 1954 All 455 .
54 Asmalbai v Esmailj, AIR 1964 Guj 174 ; Jethanand v Chetumal, AIR 1926 Sindh 66 (DB).
55 Nagendra Bala v Provash Chandra, AIR 1953 Cal 185 (DB).
56 Bhagirathi v The State, AIR 1955 All (FB).
57 Paragon Rubber Industries v Pragathi Rubber Mills, (2014) 14 SCC 762 .
58 (1965) All LJ 965.
59 Ramdhan Puri v Lachmi Narain, 1937 PC 42 : 16 Pat 149 : 39 Bom LR 363.
60 Ramdhan Puri v Lachmi Narain, 1937 PC 42 : 16 Pat 149 : 39 Bom LR 363.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Only certain claims to be
joined for recovery of immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Only certain claims to be joined for recovery of immovable property
No cause of action shall, unless with the leave of the Court, be joined with a suit for
the recovery of immovable property, except—
(a) claims for mesne profits or arrears of rent in respect of the property claimed or
any part thereof;
(b) claims for damages for breach of any contract under which the property or any
part thereof is held; and
(c) claims in which the relief sought is based on the same causes of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit
for foreclosure or redemption from asking to be put into possession of the
mortgaged property.
COMMENT.—
As far as the recovery of immovable property is concerned, no causes of action can be

joined without the leave of the Court except the following three—
(i) claims for mesne profits or arrears of rent in respect of the property claimed or
any part thereof;
(ii) claims for damages for breach of any contract under which the property or any
part thereof is held; and
(iii) claims in which the relief sought is based on the same cause of action.
However, a party in a suit for foreclosure or redemption may ask the Court to be put
into possession of the mortgaged property.
The rule prohibits not the joinder of several causes of action entitling plaintiff to
recover immovable property but a joinder of such causes of action or causes of action
of a different character except as provided in this rule.61 Further, it has been held by the
Supreme Court of India that so long as no question of limitation is involved there is no
objection to a claim for redemption and one for possession and partition being joined
together in the same suit brought by a co-mortgagor against another mortgagor who
alone has redeemed the mortgaged property belonging to the joint family.62
Civil Court does not grant leave to file another suit. If the law permits, the plaintiff may
file another suit but not on the basis of observations made by a superior Court.63
61 Nathu Bhai Lachharam v Narayan, 29 Bom LR 937.
62 Ganeshi Lal v Joti Pershad, AIR 1953 SC 1 : 1953 SCR 243 : 94 Cal LJ 137 : (1952) Punj 495.
63 Shiv Kr Sharma v Santosh Kumari, AIR 2008 SC 171 : (2007) 8 SCC 600 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Claims by or against
executor, administrator or heir
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Claims by or against executor, administrator or heir
No claim by or against an executor, administrator or heir, as such, shall be joined with

claims by or against him personally, unless the last-mentioned claims are alleged to
arise with reference to the estate in respect of which the plaintiff or defendant sues or
is sued as executor, administrator or heir, or are such as he was entitled to, or liable
for, jointly with the deceased person whom he represents.
COMMENT.—
On grounds of convenience the Court may order separate trials or may pass such order
as may be expedient in a suit where several causes of action have been validly
joined.64 However, the rule will not apply in case of mis-joinder of cause of action.65
The object of the rule is to prevent embarrassment in the trial of the suit.66
Thus, this rule forbids the joining in one suit of a claim by or against an executor,
administrator or heir as such, i.e., in representative capacity, except when
(i) the claims by or against him in his personal capacity, are alleged to arise with
reference to the estate he represents; or
(ii) the claims are such that he was entitled to or liable for them jointly with the
deceased whom he represents.
64 ILR (1950) Cal 103 .

65 ILR (1930) Nag 344 .
66 Hardwari Lal v Naraindas, AIR 1951 (Simla) (Punj) 233.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6. Power of Court to order
separate trials
© 2020 LexisNexis
THE FIRST SCHEDULE
67[R. 6.
Power of Court to order separate trials
Where it appears to the Court that the joinder of causes of action in one suit may
embarrass or delay the trial or is otherwise inconvenient, the Court may order separate
trials or make such other order as may be expedient in the interest of justice.]
COMMENT.—
The previous rule was substituted by the new rule so as to empower the Court to order
separate trials where joinder for cause of action may cause embarrassment delay, or
inconvenience.
67 Subs. by CPC (Amendment) Act 104 of 1976, section 53 for rule 6 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Objections as to mis-
joinder
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Objections as to mis-joinder
All objections on the ground of mis-joinder of causes of action shall be taken at the
earliest possible opportunity and, in all cases where issues are settled, at or before
such settlement, unless the ground of objection has subsequently arisen, and any
such objection not so taken shall be deemed to have been waived.
HIGH COURT AMENDMENTS
Delhi.—Same as in Punjab.
Himachal Pradesh.—Same as in Punjab.
Kerala (Notn. No. B1-3312/58 of 1-4-1959.—Same as in Punjab with the following

modifications:—
(i) Insert the marginal note: "Plaint to be amended".
(ii) In sub-r (1) for the words "by striking out the remaining causes of action"
substitute "suitably".
(iii) In sub-r (2) for "amended plaints for the remaining causes of action" substitute
"the amended plaint for the remaining cause of action".
The following amendments were made by Kerala Act 34 of 1973, Section 3, dated 1-11-
1973.
Extended to Laccadive, Minicoy and Amindivi Islands by Laccadive, Minicoy and

Amindivi Islands (Laws) Regulation, 1965 (Regulation 8 of 1965), Section 2 and
Schedule (w.e.f. 1-10-1967) and for alteration of the name.
Punjab (Notn. No 2212-G; 12-5-1909).—Insert the following as r 8:—
"8. (1) Where an objection, duly taken, has been allowed by the Court, the plaintiff shall
be permitted to select the cause of action with which he will proceed, and shall, within
a time to be fixed by the Court, amend the plaint [by striking out the remaining causes
of action].
(2) When the plaintiff has selected the cause of action with which he will proceed, the
Court shall pass an order giving him time within which to submit [amended plaint for
the remaining causes of action] and for making up the Court-fees that may be
necessary. Should the plaintiff not comply with the Court's order, the Court shall
proceed as provided in rule 18 of Order VI and as required by the provisions of the
Court-fees, Act".
Rajasthan (Notn. No 33/SRO of 21-7-1954).—Same as in Punjab with the following

modifications:—
(i) In sub-r (1) for the words "an objection, duly taken", substitute "such objection";
(ii) In sub-r (2) for the words "shall pass an order" substitute "may on his application
pass an order".
COMMENT.—
The plea of mis-joinder cannot be taken up for the first time in appeal or in second
appeal. The defence of mis-joinder is not a ground for reversing a decree. Section 99 of
the Code lays down that no decree can be varied or reversed on account of mis-joinder
of causes of action, unless the defect has affected the merits of the case or jurisdiction
of the Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Appearances, etc., may
be in person, by recognised agent or by pleader
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER III Recognised agents and Pleaders
R. 1.
Appearances, etc., may be in person, by recognised agent or by pleader
Any appearance, application or act in or to any Court, required or authorised by law to

be made or done by a party in such Court, may except where otherwise expressly
provided by any law for the time being in force, be made or done by the party in
person, or by his recognised agent, or by a pleader 1[appearing, applying or acting, as
the case may be], on his behalf:
Provided that any such appearance shall, if the Court so directs, be made by the party
in person.
COMMENT.—
This O III makes certain provisions for appearance, etc., by recognised agents and
pleaders and the rules contained therein may be summed up as under:
Rule 1 of this Order lays down that any appearance, application or act, in or to any
Court, required to be made or done by a party, may be done (i) by the party in person or
(ii) by his recognised agent, or (iii) by a pleader, appearing, applying, or acting on his
behalf.
The Court may direct that any such appearance shall be only by the party in person.
The rule laid down in O III, rule 1, is a general rule2 and contemplates appearance not
as a man but as party with the intention of acting as a party in the suit.3
Any appearance, application or act.—
"Acting" includes applying.4 The words "any appearance, application or act" in O III, rule
1, do not include pleading or arguing. Therefore, a recognised agent holding power-of
attorney cannot plead and argue for his principle under that rule.5 As held by a Full
Bench of Andhra Pradesh High Court the presentation of an execution application in a
Court is an act.6 The appearance of the pleader of a party is under this rule, equivalent
to appearance of the party himself.7 But where the pleader of a party reports "no
instructions", there is no appearance.8
In an appeal under the Land Acquisition Act, there is no need to file Vakalatnama by
Counsel of State. The State acts through Counsel for State and he is entitled to
represent State in all proceedings initiated in Court. Memo of appearance by Counsel
will be sufficient. Where the State Counsel was in two minds as to whether the appeal
should be pursued under the Portuguese Code or Code of Civil Procedure and pursuing
remedy wrongly, in consequence the appeal was filed beyond limitation. There was a
bona fide mistake on his part. The order was set aside.9
Pleader's authority to compromise.—
A pleader has actual though implied authority to act by way of compromising a case in
which he is engaged even without specific consent from his client, subject to (1) he
must act in good faith and for the benefit of his client otherwise the power fails and (2)
it is prudent and proper to consult his client and take his consent if there is time and
opportunity. When a junior (pleader) and a senior (advocate) appear in a case, it would
be an adventurist act exposing himself to great risk, on the part of the junior to report a
compromise without consulting his senior.
Where the pleader had acted substantially with the knowledge of and encouraged by
his client. The broad sanction for the compromise came from the client, no shady
action was imputable to the pleader and his conduct has been motivated by the good
of the client. It could not be said that the implied authority of the pleader was
abused.10
Power of Attorney Holder.—
An attorney holder is empowered to act on behalf of the principal the word "acts"
employed in rules 1&2 conforms only in respect of "act" done by the power of attorney
holder in exercise of power granted by the instrument. The term "act" would not include
deposing in place and instead of the principal.11
1 Subs. by Code of Civil Procedure (Amendment) Act 22 of 1926, Section 2, for "duly appointed
to act".
2 ILR (1951) Hyd 689 (FB).
3 51 MLJ 290.
4 AIR 1938 Cal 698 .
5 Samdukhan v Madan Lal, AIR 1959 Raj 35 .
6 Satyanarayan v Venkata, AIR 1957 AP 172 .
7 Chandra Stores v Cloth Merchant Association, AIR 1964 Raj 197 (FB).
8 ILR (1944) Bom 1 (FB).
9 Dy Collector, Northern Sub-Division Panaji v Comunidale of Bambolin, AIR 1996 SC 148 : (1995)
5 SCC 333 .
10 Jamilabai v Shankarlal, AIR 1975 SC 2202 (2210, 2211) : (1975) 2 SCC 609 : 1975 Supp SCC
336 ; see also Sourindra Nath v Haramba Nath, AIR 1923 PC 98 ; Sourendra Nath v Tarubala Das,
AIR 1930 PC 158 .
11 Janki Vashdeo Bhajwani v Indusind Bank Ltd, AIR 2005 SC 439 (442); Hamberto Luis v
Floriano Armando Luis, 2000 AIHC 1572 (Bom) (overruled); SD Shastri v State of Rajasthan,
(1986) 2 WLN 713 (approved).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Recognised agents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Recognised agents
The recognised agents of parties by whom such appearances, applications and acts
may be made or done are—
(a) persons holding power-of-attorney, authorising them to make and do such

appearances, applications and acts on behalf of such parties;
(b) persons carrying on trade or business for and in the names of parties not
resident within the local limits of the jurisdiction of the Court within which
limits the appearance, application or act is made or done, in matters connected
with such trade or business only, where no other agent is expressly authorised
to make and do such appearances, applications and acts.
Bombay (Notn. No. 3236 of 27-11-1936).—Clause (a) shall be amended to read as

follows:—
"(a) Persons holding on behalf of such parties either (i) a general power-of-attorney, or
(ii) in the case of proceedings in the High Court of Bombay an Attorney of such High
Court or an Advocate, and in the case of proceedings in any district, any such Attorney
or any Advocate or a Pleader to whom a sanad for that district has been issued, holding
the requisite special power-of-attorney from parties not resident within the local limits
of the jurisdiction of the Court within which limits the appearance, application or act is
made or done, authorising them or him to make and do such appearances, applications
and acts on behalf of such parties".
Gujarat (17-8-1961).—Same as in Bombay with the following modifications:—
(i) For the words "Bombay an Attorney of such High Court or" substitute "Gujarat",
(ii) For the words "any such Attorney or any" substitute "an". Madhya Pradesh.—
Same as in Gujarat with the following modifications:—
For the words "in the High Court of Gujarat an Advocate" substitute "in the High Court of
Madhya Pradesh an Advocate of that High Court" and for the words "in any district, an
Advocate" substitute "in any district, any Advocate". [16-9-1960].
COMMENT.—
Order III, rule 2, deals with the persons who are recognised agents. An agent who holds
a power of attorney is a recognised agent within the meaning of this rule. He should be
allowed to appear and act under this rule, but the defendant may question his authority
to do so.12
Thus, where a suit was filed by the firm and the plaint was filed and verified by person
having power of attorney executed in his favour by the Manager of firm who was also
one of the partners and that the power of attorney authorised him to sue for the
recovery of money due to firm from the defendant and also to appear and represent the
firm in any Court in any jurisdiction and to make, sign, verify, present and file any plaint
it was held that the suit was properly instituted. It was further held that each partner
need not have signed the power of attorney since each one of the partners was agent
of firm.13 As regards the construction of power of attorney it was held by a Full Bench
of Kerala High Court, that it should be construed strictly and as giving only such
authority as it confers expressly or by necessary implication.14
Carrying on the business.—
The expression "carrying on the business" must be interpreted in a restricted sense that
is as relating to commercial business as in section 20.15 Persons mentioned are those
carrying on business in the name of partners who permanently reside outside the
jurisdiction.16
Writ Petition whether can be filed by the power of attorney holder on behalf of
his principal.—
Writ petition can be filed by Power of attorney holder. The donee represents the donor
and does not pursue the proceedings in his own independent capacity. His persona is
as an agent of the donor and is subject to the limitation created by the deed by which
he is authorised.17
12 19 Ind App 135 (PC).

13 Purushottam & Co v Manilal & Sons, AIR 1961 SC 325 : (1961) 1 SCR 982 : (1961) 1 MLJ (SC)
38 : (1961) 1 Ker LR 164.
14 Nayakam v AN Menon, AIR 1968 Ker 213 (FB).
15 Ellapa v Sirasubsamanian, AIR 1937 Mad 293 .
16 46 CWN 957.
17 Syed Wasif Husain Rizvi v Hasan Raza Khan, AIR 2016 All (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Service of process on
recognised agent
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Service of process on recognised agent
(1) Processes served on the recognised agent of a party shall be as effectual as if

the same had been served on the party in person, unless the Court otherwise
directs.
(2) The provisions for the service of process on a party to a suit shall apply to the
service of process on his recognised agent.
Punjab, Haryana and Chandigarh.—The following amendments were made by Punjab

Government Gazette, dated 11-4-1975, Part III (L.S.), page 303 and Haryana Government
Gazette, dated 25-3-1975, Part III (L.S.), page 189 and Chandigarh Administration Gazette,
dated 1-5-1975, Part II, page 95.
For sub-rule (1) of rule 3 of Order III substituted the following:—(1) Process served on
the recognised agent or on an Advocate of the party shall be effectual as if the same
had been served on the party in person unless the Court otherwise directs.
COMMENT.—
This rule imputes the knowledge of the agent as the knowledge of the principal.18
However, if the service of notice was effected on the husband of the petitioner but the
petitioner herself was present service of notice was not held valid, as the husband was
not an agent of his wife.19
18 29 Ind App 203 PC.

19 Itty Kurian v UOI, AIR 1962 Ker 266 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4. Appointment of pleader
© 2020 LexisNexis
THE FIRST SCHEDULE
20[R. 4.
Appointment of pleader
(1) No pleader shall act for any person in any Court, unless he has been appointed
for the purpose by such person by a document in writing signed by such
person or by his recognised agent or by some other person duly authorised by
or under a power-of-attorney to make such appointment.
(2) Every such appointment shall be 21[filed in Court and shall for the purpose of
sub-rule (1) be] deemed to be in force until determined with the leave of the
Court by a writing signed by the client or the pleader, as the case may be, and
filed in Court, or until the client or the pleader dies, or until all proceedings in
the suit are ended so far as regards the client.
22[ Explanation.— For the purposes of this sub-rule, the following shall be
deemed to be proceedings in the suit,—
(a) an application for the review of decree or order in the suit,
(b) an application under Section 144 or under Section 152 of this Code, in
relation to any decree or order made in the suit,
(c) an appeal from any decree or order in the suit, and
(d) any application or act for the purpose of obtaining copies of documents
or return of documents produced or filed in the suit or of obtaining
refund of moneys paid into the Court in connection with the suit.]
23
[(3) Nothing in sub-rule (2) shall be construed—
(a) as extending, as between the pleader and his client, the duration for
which the pleader is engaged, or
(b) as authorising service on the pleader of any notice or document

issued by any Court other than the Court for which the pleader was
engaged, except where such service was expressly agreed to by the
client in the document referred to in sub-rule (1).]
(4) The High Court may, by general order direct that, where the person by whom a
pleader is appointed is unable to write his name, his mark upon the document
appointing the pleader shall be attested by such person and in such manner as
may be specified by the order.
(5) No pleader who has been engaged for the purpose of pleading only shall plead
on behalf of any party, unless he has filed in Court a memorandum of
appearance signed by himself and stating—
(a) the names of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to
plead on behalf of any party by any other pleader who has been duly appointed
to act in Court on behalf of such party.]
Allahabad.— The following amendments were made by Uttar Pradesh Government

Gazette, dated 21-3-1981, Part 2, page 20.
(1) In sub-rule (2), in Explanation after clause (a), insert the following clause (aa):—
"(aa) a proceeding for revision of an order in the suit." [ Noti. No. 714-IVH-36-A, dt. 9-12
—
1980 w.e.f. 21-3-1981.]
(2) In explanation to sub-rule (2) of rule 4 of Order III Code of Civil Procedure, 1908,
after the existing clause (d), the following new clauses (e) to (j) are added:—
" (e) An application or proceedings for transfer under Sections 22, 24 and 25 of this
Code;
(f) An application under rule 4 or rule 9 or rule 13 of Order IX of this Code;
(g) An application under rule 4 of Order XXXVII of this Code;
(h) A reference arising from or out of suit;
(i) An application for execution of any decree or order in the suit;
(j) Any application relating to or incidental to or arising from or out of any proceedings
referred to in clauses (a) to (i) of this sub-rule (including an application for leave to
appeal) to Supreme Court:
Provided that, where the venue of the suit or the proceedings shifts from one Court
(subordinate or otherwise) to another situate at a different station, the pleader filing the
appointment referred to, in sub-rule (2) in the former Court shall not be bound to
appear, act or plead in the latter Court unless he files or he has already filed a
memorandum signed by him that he has instructions from his client to appear, act or
plead in that Court." [Noti No 439/VII-b-123, dt. 8-8-1994, w.e.f. 22-10-1994.]
Andhra Pradesh.—Same as in Madras.
Bombay, Dadra and Nagar Haveli.—(1) In Order III, rule 4, for the existing sub-rule (3),
substitute the following as sub-rule (3):—
"4. (3) For the purposes of sub-rule (2) above, (i) an application or a proceeding of
transfer under Sections. 23, 24 or 25 of this Code, (ii) an application under rule 9 or rule
13 of Order IX of this Code, (iii) an application under rule 4 of Order XXVIII of this Code,
(iv) an application for review of Judgment, (v) an application under Section 152 of this
Code, (vi) a reference arising from or out of the suit, (vii) an application for amendment
of the decree or order or the record in the suit, (viii) an application for the execution of
any decree or order in the suit, (ix) an application under Section 144 of this Code, (x)
any appeal (including an appeal under Letters Patent of the High Court) or revision or a
reference arising from or out of the suit, (xi) any application relating to or incidental to
or arising in or out of such appeal or revision or a reference arising from or out of the
suit (including an application for leave to appeal under Letters Patent of the High Court
or for leave to appeal to the Supreme Court), (xii) any application or proceeding for
sanctioning prosecution under Chapter XXXV of the Code of Criminal Procedure, 1898,
relating to the suit or any of the proceedings mentioned hereinbefore, or any appeal or
revision arising from and out of any order passed in such application or proceeding,
(xiii) any application or act for the purposes of obtaining copies of documents or the
return of documents produced or filed in the suit or in any of the proceedings
mentioned, hereinbefore, (xiv) any application for the withdrawal or for obtaining the
refund or payment of or out of moneys paid or deposited into the Court in connection
with the suit or any of the proceedings mentioned hereinbefore (including withdrawal,
refund or payment of or out of the moneys deposited as security for costs or for
covering the costs of the preparation, printing and transmission of the Transcript
Record of the appeal to the Supreme Court), (xv) any application for expunging any
remarks or observations on the record of or made in the judgment in the suit or any
appeal, revision, reference or review from or out of the suit, (xvi) any application for
certificate in regard to the substitution of heirs in appeal to the Supreme Court arising
from the suit and (xvii) any application under rule 15 of Order XLV of this Code, shall be
deemed to be proceedings in the suit:
Provided that where the venue of the suit or the proceeding shifts from one Court
(subordinate or otherwise) to another the pleader filing the appointment referred to in
sub-rule (2) in the former Court shall not be bound to appear, act or plead in the latter
Court unless he files or he has already filed a memorandum signed by him that he has
instructions from his client to appear, act and plead in that Court." Maha. Gaz., dated
24-8-1972 Pt. IV-C, p. 1278.
Bombay (Dadra and Nagar Haveli).— The following amendments were made by
Maharashtra Government Gazette, dated 19-6-1986, Part IV Ka, page 523.
Explanation substituted in 1983 deleted.
In Order III, rule 4, for the existing sub-rule (3), substituted in 1972 as sub-rule (3),
superseded in 1983.
Gujarat.—In old sub-rule (3) between the words "order in the suit" and "any application or
act" insert the words "or any application relating to such appeal". [17-8-1961].
Karnataka (30-3-67).—Substitute the following for sub-rule (4):—
"(4)(1) No pleader shall act for any person in any Court, unless he has been appointed
for the purpose by such person by a document subscribed with his signature in his own
hand by such person or by his recognised agent or by some other person duly
authorised by or under a power-of-attorney to make such appointment and the
appointment has been accepted in writing by the pleader.
(2) Every such appointment shall be filed into Court. Except as otherwise provided in
this rule, no such appointment shall be deemed to have been terminated until its
determination with the leave of the Court by a document subscribed with his signature
in his own hand by the client or his recognised or authorised agent or by the pleader, as
the case may be, and filed into Court; or until the client or the pleader dies, or until all
proceedings in the suit are ended so far as regards the client.
(3) For the purpose of sub-rule (2), proceedings in the suit shall mean all interlocutory
and miscellaneous proceedings connected with the suit or any decree or order passed
therein taken in the Court in which the suit has been instituted or by which the suit has
been disposed of, and shall include applications for review of judgment, applications
for amendment for correction of the decree, application for execution of the decree or
any order in the suit or for restitution under Section 144 of the Code or otherwise,
applications for leave to appeal against decree or order passed in the suit, and
applications or acts for the purpose of obtaining copies of documents or copies of
judgments, decrees or orders, or for the return of documents produced or filed in the
suit or for obtaining payment or refunds of monies paid into Court in connection with
the suit or any decree or order therein.
(4) (a) In the case of applications for execution of a decree, applications for review of
judgment and application for leave to appeal, a pleader whose appointment continues
in force by virtue of sub-rule (2) of this rule and who has been served with the notice in
any such application shall be at liberty to intimate to the Court in writing in the form of
a memorandum filed into Court at or before the first hearing of any such application or
appeal that he has not received instructions from his client and to retire from the case.
(b) Where, however, the pleader does not so report the absence of instructions to the
Court but proposes to continue to act on the strength of the original appointment, he
shall file into Court at or before the first hearing of such matter a formal memorandum
stating that he will continue to appear and act for his client in the said application or
appeal, as the case may be.
(c) If a pleader files the memorandum referred to in clause (a) or omits to file the
memorandum referred to in clause (b) within the time prescribed therefor, the Court
shall proceed as provided in sub-rule (2) of rule 5 of this Order.
(5) The High Court may by rule or general order direct that where the person by whom a
pleader is appointed is unable to write his name, his mark upon the document
appointing the pleader shall be attested by such person and in such manner as may be
specified in the rule or order.
(6) No pleader who has been engaged for the purpose of pleading only shall plead on
behalf of any party unless he has filed into Court a memorandum or appearance signed
by himself and stating (a) the names of the parties to the suit, (b) name of the party for
whom he appears, and (c) the name of the person by whom he is authorised to appear:
Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on
behalf of any party by any other pleader who has himself been duly appointed to act in
Court on behalf of such party.
(7) No Government Pleader or other pleader appearing on behalf of the Government or

on behalf of any public servant sued in his official capacity shall be required to present
any document empowering him to act, but such pleader shall file into Court a
memorandum of appearance signed by him and stating the particulars mentioned in
sub-rule (6)".
Kerala (Notn. No. B1-3312/58 of 7-4-1959).—(i) in sub-rule (2), after the words "Every
such appointment" insert "when accepted by the pleader in writing";
(ii) in old sub-rule (3) after the words "Section 152" insert "or applications under Order
IX rule 9 or 13";
(iii) Omit sub-rule (5).
(iv) insert the following as sub-rule (6).

(6) No pleader appearing on behalf of the Government or on behalf of any public
servant sued in his official capacity shall be required to present any document
empowering him to act, but such pleader shall file a memorandum of appearance
signed by himself and stating:
(a) the name of the parties to the suit,
(b) the name of the party for whom he appears, and
(c) the name of the person by whom he is authorised to appear".
Madhya Pradesh.—Same as in Punjab with the following modifications:—
(i) in item (i), for the words "under Sections 22, 24 or 25" read "under Sections 23, 24
or 25";
(ii) in item (ii), omit "rule 4";
(iii) item (x) in Punjab is item (v) in MP;
(iv) in item (viii), which is item (ix) in MP omit "or Section 154";
(v) omit item (ix);
(vi) in item (xiii) of Punjab, which is item (xii) in MP, for the words "any application for
directing or proceeding prosecution" read "any application or proceeding for
sanctioning prosecution". [18-10-1968].
Madras.—(a) In sub-rules (1) and (2) for the words "in writing signed" substitute "a
document subscribed with his signature in his own hand".
(b) Insert the following as sub-rule (6):—
"(6) No Government or other pleader appearing on behalf of the [Government] or on

behalf of any public servant sued in his official capacity shall be required to present any
document empowering him to act, but such pleader shall file a memorandum of
appearance signed by himself and stating the particulars mentioned in sub-rule (5)".
Orissa.—Same as in Patna.
Patna.—Substitute the following for sub-rule (4):—
"(4) Notwithstanding anything contained in Order III; Rule 4(3) of the First Schedule of
the Code of Civil Procedure, 1908, no advocate shall be entitled to make or do any
appearance, application or act for any person unless he presents an appointment in
writing, duly signed by such person or his recognised agent or by some other agent
duly authorised by power of attorney to act in his behalf; or unless he is instructed by
an attorney or pleader authorised to act on behalf of such person".
Punjab.—For old sub-rule (3) of rule 4, substitute the following:—
"(3) For the purpose of sub-rule (2):—
(i) an application or a proceeding for transfer under Section 22, 24 or 25 of this Code,
(ii) an application under rule 4 or rule 9 or rule 13 of Order IX of this Code, (iii) an
application under rule 4 of Order XXXVII of this Code, (iv) an application for review of
judgment, (v) a reference arising from or out of the suit, (vi) an application for
amendment of the decree or order or the record in the suit or an appeal, reference or
revision arising from or out of the suit, (vi) an application for the execution of any
decree or order in the suit (viii) an application for restitution under Section 144 or
Section 151 of this Code, (ix) an application under Section 151 of this Code, (x) an
application under Section 152 of this Code, (xi) any appeal (including an appeal under
the Letters Patent of the High Court) or revision application from any decree or order in
the suit or an appeal arising from or out of the suit, (xii) any application relating to or
incidental to or arising from or out of such appeal or revision or a reference arising
from or out of the suit (including an application for leave to appeal under the Letters
Patent of the High Court or leave to appeal to the Supreme Court), (xiii) an application
for directing or proceeding for prosecution under 24Chapter XXXV of the Code of
Criminal Procedure, 1898, relating to the suit or any of the proceedings mentioned
hereinbefore or an appeal or revision arising or revision arising from and out of any
order passed in such application or proceeding,
(xiv) any application or act for the purpose of obtaining copies of documents or the
return of documents produced or filed in the suit or in any of the proceedings
mentioned hereinbefore,
(xv) any application for the withdrawal or for obtaining the refund or payment of or out
of the monies paid or deposited into the Court in connection with the suit or any of the
proceedings mentioned hereinbefore (including withdrawal, refund or payment of or out
of the monies deposited as security for costs or for covering the costs of the
preparation and printing of the Transcript Record of the appeal to the Supreme Court),
(xvi) any application for expunging any remarks, or observations on the record of or
made in the judgment in the suit or any appeal, revision, reference or review arising
from or out of the suit, (xvii) any application for certificate in regard to the substitution
of heirs in appeal to the Supreme Court arising from the suit, and (xviii) any application
under rule 15 of Order XLV of the Code, shall be deemed to be proceedings in the suit:
Provided that, where the venue of the suit or the proceedings shifts from one Court
(subordinate or otherwise) to another, situate at a different station, the pleader filing
the appointment referred to in sub-rule (2) in the former Court shall not be bound to
appear, act or plead in the latter Court, unless he files or he has already filed a
memorandum signed by him that he has instructions from his client to appear, act and
plead in that Court." [13-9-1968].
Rajasthan (Notn. No. 33/SRO of 21-7-1954):—
(a) Old sub-rule (3) amended as in Gujarat.
(b) Insert the following as sub-rule (6):—
"(6) No Government pleader within the meaning of Order XXVII rule 8-B shall be
required to present any document empowering him to act, but such pleader shall file a
memorandum of appearance signed by himself and stating the particulars mentioned
in sub-rule (5)".
NB—It may be noted that provisions of old sub-r (3) have been redrafted into
Explanation to sub-r (2).
COMMENT.—
This rule was amended by the Code of Civil Procedure Amending Act of 1976 in order
to clarify the duration of appointment of a pleader. The explanation has also been
added to this rule to make it clear as to what proceedings will be deemed to be
proceedings in the suit.
Legal practitioners are not merely agents of the parties on whose behalf they plead in
any particular case, but also are officers of the Court expected to assist in the
administration of justice and to sustain unimpaired the dignity of the Courts by all
means in their power.25
It has been held by the Supreme Court in Hargovind Dayal v GN Verma, AIR 1977 SC
1334 (1335) : (1977) 1 SCC 744 : (1977) 2 SCR 601 that "it is the duty of the lawyers to
protect the dignity and decorum of the Judiciary. If lawyers fail in their duty the faith of
the people in the Judiciary will be undermined to a large extent. It is said that lawyers
are the custodians of civilization. Lawyers have to discharge their duty with dignity,
decorum and discipline".
Pleader.—
Pleader is a term signifying all persons who are entitled to appear and plead and
includes an advocate, vakil or attorney.26 The definition of "pleader" in section 2(15)
obliterates any status wise distinction between an advocate and any other legal
practitioner, like a vakil or pleader entitled to appear in the Court on behalf of his
client.27
Powers of pleaders.—
Power of the pleaders includes authority to abandon an issue or claim which in his
discretion he thinks inadvisable to press.28 It includes to make admissions. But an
erroneous admission by a pleader on a question of law will not debar the party from
claiming his legal rights in a higher Tribunal.29 A pleader has also the power to
withdraw a suit if the vakalatnama is couched in general terms. However, in absence of
express authority the pleader cannot enter into a compromise and if he does so, the
compromise is not binding on the client.30 But a Full Bench of Nagpur High Court has
held that a compromise by a pleader is "acting" within the meaning of this rule.
Dealing with the question whether a compromise made by a Counsel is binding on the
client, the Supreme Court of India has held in State of Punjab v ML Puri, AIR 1957 SC
1633 : (1975) 4 SCC 112 : 1975 CrLJ 1425 that when the memorandum of compromise
on the basis of which the appeal was disposed of has been signed by the counsel of
the respondent and the counsel has authority to appear on behalf of the respondent the
compromise is binding on the respondent.
Compromise of appeal by counsel.—
A memorandum of compromise on the basis of which the appeal was disposed of, was
signed by the Counsel of respondent. The Counsel was found to be duly authorised to
appear on behalf of the respondent. The compromise was binding on the
respondent.31
Also a pleader cannot refer a matter to arbitration if he has not been expressly
authorised to do so by means of vakalatnama.32
Vakalatnama.—
Where defects, routinely, were found enumerated, need to issue appropriate
instructions to Registries to properly check and verify vakalatnama, emphasised.33
Duties of pleaders.—
As soon as the pleader accepts the brief it becomes his bounden duty to look to his
client's interest throughout the proceedings in the case,34 to represent his case
properly and to prosecute the case with due diligence.35 It is also the duty of pleader
having once appeared for a client should not appear against him in another case
arising out of the same dispute and utilise the information received previously in his
professional capacity.36 As held by a Full Bench of Allahabad High Court, it would be
improper for the pleader to associate himself with reckless charges of fraud or
criminality. It would also be improper to indulge in or to put questions attacking a
witness's honour unless he has reasons to believe in grounds to be true.37 Similarly it
will amount to a misconduct on the part of a pleader if he makes as unwarranted and
unfounded attack against a judge.38 A concession made by the Counsel appearing in
one case, cannot be acted on by the Court to dispose of a different case in the same
manner by a common judge. Even if in both the cases the question involved was the
same.39
A counsel, who has not been appointed by a party by executing a memorandum of

appointment envisaged under O III rule 4 of the Code of Civil Procedure (same as
Vakalath referred to in the Civil Rules of Practice, Kerala) may plead as permitted by the
proviso to O III rule 4(5) of the Code of Civil Procedure. In appropriate cases such
power to plead may include even taking evidence or addressing arguments. But he has
no authority to compromise a suit, confess judgment in the suit or make an admission
so as to bind the party. No Court shall accept or act on such a compromise or
confession or admission without verifying whether the advocate doing so had been
authorised by the party by executing a Vakalatnama. A decree passed in a case on the
basis of an endorsement by an advocate, who has no Vakalatnama in the case, cannot
be said to be a consent decree.40
To give consent for change of counsel.—
An advocate cannot insist payment of fees as a condition to give consent for change of
the Counsel. Where the advocate has done work till the settlement of issues, he led the
evidence on behalf of the party partly and the trial of the suit was partly concluded, one
fourth of the scheduled fee was directed to be paid by the party. The Counsel was also
directed to give unconditional consent to engage another advocate.41
Appointment of pleaders.—
Appointment of a pleader is made when the client executes a vakalatnama in favour of

the pleader. And whatever matter the client wants to entrust to the pleader should be
specified in vakalatnama.42 It is also the duty of the client to give instructions to the
pleader well in time and should not put that off till the actual date of hearing.43 Further
it has been held by the Supreme Court of India that if a pleader present an application
to whom the authority has not been given in the prescribed manner under O III, rule 4, it
is merely an irregularity and it can be cured subsequently.44
Vakalatnama without affidavit.—
Where Vakalatnama was filed without an affidavit by the concerned person, the plea
that it cannot constitute a statement by person who has filed vakalatnama was not
tenable.45
20 Subs. by CPC (Amendment) Act 22 of 1926, Section 2, for the original rule.
21 Subs. by CPC (Amendment) Act 104 of 1976, Section 54, for certain words (w.e.f. 1-2-1977).
22 Ins. by CPC (Amendment) Act 104 of 1976, Section 54, for certain words (w.e.f. 1-2-1977).
23 Subs. by CPC (Amendment) Act 104 of 1976, Section 54, for certain words (w.e.f. 1-2-1977).
24 See now Ch 26 of Act 2 of 1974.
25 Advocate General v Amanullah Khan, AIR 1967 Mad 162 .
26 Panna Lal v Deoji Dhanji, AIR 1955 Madh Bha 109.
27 Jamilabai v Shankarlal, AIR 1975 SC 2202 : (1975) 2 SCC 609 : 1975 Supp SCC 336 .
28 ILR 1964 Mys 1067 .
29 MMB Catholicos v MP Athanasius, AIR 1954 SC 526 : (1955) 1 SCR 520 : (1954) TC 867 .
30 Satya Narain v Bal Chand, AIR 1955 Raj 59 .
31 Monoharbahal Colliery v KN Misra, AIR 1975 SC 1632 : (1975) 2 SCC 244 : 1975 Lab IC 1082 .
32 AIR 1977 SC 1334 (1335) : (1977) 1 SCC 744 : 1977 CrLJ 1003 (supra).
33 Uday Shanker Triyar v Ram Kalewar Prasad Singh, AIR 2006 SC 269 (275).
34 Jiwi Bai v Ram Kumar, AIR 1947 Nag 17 (FB).
35 King-Emperor v Barendra Kumar Ghosh, AIR 1924 Cal 257 (FB).
36 (1902) 26 Bom 423 (FB).
37 In the matter of a Vakil, AIR 1925 All 641 (FB).
38 In the matter of a Vakil, AIR 1924 All 253 (FB).
39 UOI v SR Dhareshwar, AIR 1971 SC 1753 (1756) : (1972) 4 SCC 703 .
40 Manuel Sons Financial Enterprises Pvt Ltd v Rama Krishnan, AIR 2016 Ker 47 .
41 CS Venkatasubramanian v State Bank of India, AIR 1997 SC 2329 : (1997) 1 SCC 254 .
42 ILR (1953) 3 Raj 422 (DB).
43 Mahendra v Sushila, AIR 1965 SC 364 : (1964) 7 SCR 267 : 66 Bom LR 681 : 1965 MPLJ 509 .
44 Shastri Yaganapurshdasji v Muldas, AIR 1966 SC 1119 : (1966) 3 SCR 242 : 1967 MPLJ 289 :
1967 Mah LJ 289 .
45 Zahira H Sheikh v State of Gujarat, AIR 2006 SC 1367 (1377).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Service of process on
pleader
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Service of process on pleader
46[Any process served on the pleader who has been duly appointed to act in Court for
any party] or left at the office or ordinary residence of such pleader, and whether the
same is for the personal appearance of the party or not, shall be presumed to be duly
communicated and made known to the party whom the pleader represents, and,
unless the Court otherwise directs, shall be as effectual for all purposes as if the
same had been given to or served on the party in person.
Andhra Pradesh.—Same as that of Madras.
Bombay (Dadra and Nagar Haveli).—In Order III, for the existing rule 5 and its marginal
note, substitute the following rule 5 and marginal note:
"5. Service of process on pleader.—(1) Any process served on a pleader who has been
appointed to act for any party or left at the office or ordinary residence of such pleader,
and whether the same is for the personal appearance of the party or not, shall be
presumed to be duly communicated and made known to the party whom the pleader
represents and, unless the Court otherwise directs, shall be as effectual for all
purposes as if the same had been given to or served on the party in person." (11-6-
1966)
Gujarat.—The following amendments were made by Gujarat Government, dated 17-8-

1961.
In Order III, rule 5, for the words "on the pleader of any party," the words "on a pleader
who has been appointed to act for any party" shall be substituted.
Karnataka (30-3-67).— Renumber rule 5 as sub-rule (1) and the following Explanation
and sub-rule (2):—
"5. (1) Any process served on the pleader of any party or left at the office or ordinary
residence of such pleader and whether the same is for the personal appearance of
party or not, shall be presumed to be duly communicated and made known to the party
whom the pleader represents, and unless the Court otherwise directs, shall be as
effectual for all purposes as if the same had been given to or served on the party in
person.
"Explanation.—Service on a pleader engaged only to plead and who does not act for his
client shall not raise the presumption under this rule.
(2) A pleader appointed to act shall be bound to receive notice on behalf of his client in
all proceedings in the suit as defined in sub-rule (3) of rule 4. Where, however, such
pleader having been served with notice reports to Court absence of instructions from
his client under sub-rule (4) of rule 4, the Court shall direct that notice shall be issued
and served personally on the party in the manner prescribed for service of summons
on a defendant under Order V of this Code."
Madhya Pradesh.— The following amendments were made by Madhya Pradesh Gazette,
dated 16-9-1960, Part 4(Ga), page 905.
Same as that of Gujarat.
Madras (Pondicherry).— The following amendments were made by Tamil Nadu

Government Act, R.O.C. No. 1810 of 1926, dated 20-12-1927.
Insert the following at the end:—
"Explanation.—Service on a pleader who does not act for his client, shall not raise the
presumption under this rule".
Rajasthan.—Same as that of Gujarat.
Rule 5-B.—
Orissa.—Add new rule 5-B as in Patna. Patna.—Add the following rule 5-B:—
"5B. Notwithstanding anything contained in Order III, sub-rules (2) and (3) of rule 4 of
the First Schedule of the Code of Civil Procedure, 1908 no pleader shall act for any
person in the High Court, unless he has been appointed for the purpose in the manner
prescribed by sub-rule (1) and the appointment has been filed in the High Court." (26-7-
1948)
COMMENT.—
Under rule 5, there is a presumption that a notice which has been served on the pleader
is communicated to the client. But if the engagement of the pleader is legally
determined then the pleader can avoid his duty of communication notices. The
Supreme Court of India has held that an oral intimation by Court of filing award to
pleader of party would be service of notice under section 14(2) of Arbitration Act,
1940.47
When a party is represented by counsel before the Court it cannot claim want of notice
and object to the proceedings later.48
Service of orders or notices on pleader.—
An oral intimation of filing award to the pleader of any party is service of the notice.49
words (w.e.f. 1-2-1977).
47 Nilkantha v Kashinath, AIR 1962 SC 666 : (1962) 2 SCR 551 : 64 Bom LR 412.
48 Punjab National Bank v SC Society, (2007) 7 SCC 81 (86-89-90).
49 Nilkhanth v Kashinath, AIR 1962 SC 666 (668) : (1962) 2 SCR 551 : 64 Bom LR 412.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Agent to accept service
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Agent to accept service
(1) Besides the recognised agents described in rule 2 any person residing within
the jurisdiction of the Court may be appointed an agent to accept service of
process.
Appointment to be in writing and to be filed in Court
(2) Such appointment may be special or general and shall be made by an

instrument in writing signed by the principal, and such instrument or, if the
appointment is general, a certified copy thereof shall be filed in Court.
50
[(3) The Court may, at any stage of the suit, order any party to the suit not having
a recognised agent residing within the jurisdiction of the Court, or a pleader
who has been duly appointed to act in the Court on his behalf, to appoint,
within a specified time, an agent residing within the jurisdiction of the Court
to accept service of the process on his behalf.]
Bombay (Dadra and Nagar Haveli).—In Order III, rule 6, the following marginal note and
sub-rule (3) shall be added as new sub-rule:
"(3) Court may order appointment of agent for service within its jurisdiction.— The Court
may at any stage of a suit order any party to the suit not having a recognised agent
residing within the jurisdiction of the Court to appoint within a specified time an agent
within the jurisdiction of the Court to accept service of the process on his behalf." (1-
11-1966).
See Act 35 of 1961, Section 11 and Regulation 6 of 1963, Section 3 (1-7-1965).
In Order III, rule 6 the marginal note and sub-rule (3) have been superseded vide Mah.
Govt. Gaz. dt. 15-9-1983, Pt. IV Ka P. 397.
Gujarat.—Same as that of Bombay, except the marginal note, (dated 17-8-1961).
COMMENT.—
Sub-rule(3) to this rule has been added newly by the Amending Act of 1976, which
makes a provision for the appointment of an agent for the service of processes in
cases where the party does not have a recognised agent or pleader on whom
processes may be served.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Suits to be commenced
by plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER IV Institution of Suits
R. 1.
Suits to be commenced by plaint
(1) Every suit shall be instituted by presenting a 1 [ plaint in duplicate to the Court ]
or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as
they are applicable.
2
[(3) The plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in sub-rules (1) and (2) ].
Allahabad.— (Notn. No 4084/35(a)-3(7) of 24-7-26).—(a) For rule 1(1) substitute the

following:—
"1. (1) Every suit shall be instituted by presenting to the Court or such officer as it
appoints in this behalf a plaint, together with a true copy for service with the summons
upon each defendant, unless the Court for good cause shown allows time for filing
such copies.
(2) The Court-fee chargeable for such service be paid in the case of suits when the
plaint is filed and in the case of all other proceedings when the process is applied for".
(b) Re-number the present sub-rule (2) as sub-rule (3).
Bombay (1-11-66).—(1) Renumber sub-rule (1) as sub-rule (1)(a), and add the following
as sub-rule (1)(b):—
Suits to be commenced by a plaint.—(1)(a) Every suit shall be instituted by presenting a

plaint to the Court or such officer as it appoints in this behalf.
"(1)(b) The plaintiff shall, except in the Bombay City Civil Court, file as many true copies
on plain paper of the plaint with annexures as there are defendants, for service with the
summons upon the defendants, unless the Court by reason of the length of the plaint
or the number of defendants or for any other sufficient reason permits him to present a
like number of concise statements of the nature of the claim made or of the relief
claimed in the suit in which case, he shall present such statement. Such copies or
statements shall be filed along with the plaint unless the Court, for good cause shown,
allows time for filing such copies or statements.
(ii) Renumber sub-rule (2) as sub-rule (5) and add the following as sub-rules (2), (3) and
(4).
(2) Where the plaintiff sues, or the defendant or any of the defendants is sued, in a
representative capacity, such statements shall show in what capacity the plaintiff or
the defendant sues or is sued.
(3) The plaintiff may, by leave of the Court, amend such statements so as to make
them correspond with the plaint.
(4) The fee, chargeable for service of the summons upon the defendants, shall be paid
when the plaint is filed or within such time as may be extended by the Court. (1-10-83)
(5) Every plaint shall comply with the rules contained in Orders VI and VII so far as they
are applicable. (1-10-1983)
Madhya Pradesh.—(a) Substitute the following for rule 1(1):—
"I. (1) Every suit shall be instituted by presenting to the Court or such officer as it
appoints in this behalf a plaint, together with as many true copies on plain paper of the
plaint as there are defendants, for service with the summons upon each defendant,
unless the Court, for good cause shown, allows time for filing such copies."
(b) Add the following as sub-rule (2) to rule 1 and renumber the present sub-rule (2) as
sub-rule (3):—
"(2) The Court fee chargeable for such service shall be paid in the case of suits when
the plaint is filed, and in the case of all other proceedings when the process is applied
for."
[29-6-43].
Punjab, Haryana (Chandigarh) .—The following amendments were made by Punjab

Government Gazette, dated 28-1-1983, Part III (L.S.), page 55, Haryana Government
Gazette, dated 25-1-1983, Part III (L.S.), page 103, and Chandigarh Administration Gazette,
dated 1-3-1983, Part II, page 9.
Existing sub-rule (2), as was inserted by Punjab Government Gazette, dated 11-4-1975,
Part III (LS), page 303, deleted and sub-rule (3) renumbered as sub-rule (2).
Rajasthan (Notn. No. 33/SRO of 21-7-1954).—Substitute rule 1(1) as in Madhya Pradesh
COMMENT.—
2002).—
Modifications.—This rule has been amended by making the following modifications:
1. In O IV, in sub-rule (1) of rule 1, the words "plaint to the Court" have been substituted
by the words "plaint in duplicate to the Court". The effect of amendment is that now the
filing of plaint to the Court in duplicate has been made mandatory.
2. After sub-rule (2) of rule 1 in O IV the following sub-rule (3) has been inserted:-
(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements specified in sub-rules (1) and (2).
The effect of the amendment is that the plaint will not be deemed to be duly instituted
unless it complies with the requirements as specified in sub-rules (1) and (2) of rule 1
of O IV.
1999 stated thus:-
Order IV of the Code provides for the institution of suits. Sub-rule (1) of rule 1 of Order IV
states that every suit shall be instituted by presenting a plaint to the Court. Since a copy of
plaint is sent before Court and a duplicate copy of plaint is needed for records, suitable
amendments are made in this regard by Clause 14 which requires institution of a suit by
presenting plaint in duplicate to the Court. Sub-rule (2) of rule 1 of the said order requires
compliance of certain formalities by the registry of the Court. With a view to dispel the
doubts when a suit is regarded to have been instituted, Clause 14 inserts a new sub-rule (3)
to provide that the plaint shall not be deemed to be duly instituted unless it complies with
the requirements specified in sub-rules (1) and (2). [Clause 14].
Plaint in duplicate.—Order IV of the Code of Civil Procedure states as to how a suit is to

be instituted. Every suit is instituted in a Court of law by presenting a plaint. Previously
it was not necessary to present the plaint in duplicate. Now suitable amendment has
been made in this regard which requires institution of suits by presenting plaint in
duplicate to the Court. A plaint shall not be deemed to be instituted unless it complies
with the requirements specified in sub-rules (1) and (2).
Any plaint to be filed shall be in duplicate and shall be accompanied by all the
documents on which the plaintiff relies for support of his claim. It is also to be
accompanied by an affidavit stating the genuineness of the claim of the plaintiff and of
the documents on which he relies. [section 26(2)]. The person verifying the plaint
should also furnish an affidavit in support of his pleadings. [O VI, rule 15(4)].

of the principal Code as amended by this Amendment Act, 1999, stand repealed.
Under this rule plaint may be validly received on a Court holiday, plaint may be received
out of office hours at Judges' club or at his private residence.3 But the Court is not
bound to accept plaint outside Court precincts.4
1 Subs. for 'plaint to the Court' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
2 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide
Notfn. S.O. 603(E), dt. 6-6-2002.
3 Thakur Din Ram v Hari Das, (1912) 34 All 482 (FB).
4 Thakur Din Ram v Hari Das, (1912) 34 All 482 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Register of suits
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER IV Institution of Suits
R. 2.
Register of suits
The Court shall cause the particulars of every suit to be entered in a book to be kept
for the purpose and called the register of civil suits. Such entries shall be numbered in
every year according to the order in which the plaints are admitted.
Calcutta (Notn. No. 8579-G; 26-7-1938).—After the words "Particulars of every suit"
insert:—"except suits triable by a Court invested with the jurisdiction of a Court of Small
Causes under the Provincial Small Cause Courts Act, 1887".
Gauhati (Assam, Nagaland, Meghalaya, Manipur & Tripura).—The following

amendments were made by Assam High Court Order No. 1948, Clause 6, dated 5-4-1948;
State of Nagaland Act, 1962 (27 of 1962), Sections 13 & 15, dated 1-12-1963 & North
Eastern Areas (Reorganisation) Act No. 1971 (81 of 1971) Section 28, dated 28-1-1972.
Same as that of Calcutta.
STATE AMENDMENTS
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act 57 of 1976,
In its application to the State of Uttar Pradesh, after Order IV, insert the following Order,
namely:
ORDER IV-A
CONSOLIDATION OF CASES
R. 1. Consolidation of suits and proceedings.—When two or more suits or proceedings

are pending in the same Court and the Court is of opinion that it is expedient in the
interest of justice, it may by order direct their joint trial, whereupon all such suits and
proceedings may be decided upon the evidence in all or any such suits or proceedings.
(UP Act 57 of 1976, section 5 (1 January 1977)).
COMMENT.—
If two or more suits are filed the same day, they will be presumed to have been filed in
which they appear in the register of suits maintained for the purpose.5
Effect of Amendment Act, 2002.—

Where amendment effected to O IV was aimed at eliminating the procedural delays in
disposal of civil matters, it being directory only, the non-compliance thereof would not
sender the plaint non est. 6
5 Murli v Bhola Ram, (1894) 16 All 165 (FB).


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Summons
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER V Issue and Service of Summons
Issue of Summons
R. 1.
Summons
1
[(1) When a suit has been duly instituted, a summons may be issued to the
defendant to appear and answer the claim and to file the written statement of
his defence, if any, within thirty days from the date of service of summons on
that defendant:
Provided that no such summons shall be issued when a defendant has appeared
at the presentation of plaint and admitted the plaintiff's claim:
2 Provided further that where the defendant fails to file the written statement
within the said period of thirty days, he shall be allowed to file the same on such
other day as may be specified by the Court, for reasons to be recorded in
writing, but which shall not be later than ninety days from the date of service of
summons ].
(2) A defendant to whom a summons has been issued under sub-rule (1) may
appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such

questions.
(3) Every such summons shall be signed by the Judge or such officer as he
appoints, and shall be sealed with the seal of the Court.
Amendment of First Schedule.—In the First Schedule to the Code, in the Order V, in rule
1, in sub-rule (1), for the second proviso, the following proviso shall be substituted,
namely:
"Provided further that where the defendant fails to file the written statement within the
said period of thirty days, he shall be allowed to file the written statement on such other
day, as may be specified by the Court, for reasons to be recorded in writing and on
payment of such costs as the Court deems fit, but which shall not be later than one
hundred twenty days from the date of service of summons and on expiry of one
hundred twenty days from the date of service of summons, the defendant shall forfeit
the right to file the written statement and the Court shall not allow the written
statement to be taken on record."
Punjab and Haryana (Chandigarh). —The following amendments were made by (1)
Punjab Government Gazette, dated 11-4-1975, Part III (L.S.), page 303; Chandigarh
Administration Gazette, dated 1-5-1975, Part II, page 96; (2) Punjab Government Gazette,
dated 28-1-1983, Part III (L.S.), page 55; (3) Haryana Government Gazette, dated 25-1-
1983, Part III (L.S.), page 105; (4) Chandigarh Administration Gazette, dated 1-3-1983, Part
II, page 9.
In Order V, rule 1, new Sub-rule (2) was added by 1975 Amendment and the existing
sub-rules (2) and (3) were renumbered as sub-rules (3) and (4) respectively but now by
1983 Amendments, the sub-rule (2), which was added previously, was deleted and
existing sub-rules (3) and (4) were renumbered as sub-rules (2) and (3) respectively.
COMMENT.—
2002).—
In the First Schedule to the principal Act (hereinafter referred to as the First Schedule),
in O V,—
In rule 1, for sub-rule (1) [as substituted by clause (i) of section 15 of the Code of Civil
Procedure (Amendment) Act, 1999], the following sub-rule shall be substituted, namely:
—
(1) When a suit has been duly instituted, a summons may be issued to the defendant to
appear and answer the claim and to file the written statement of his defence, if any, within
thirty days from the date of service of summons on the defendant:
Provided that no such summons shall be issued when a defendant has appeared at the
presentation of plaint and admitted the plaintiff's claim:
Provided further that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the same on such other days as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be latter
than ninety days from the date of service of summons.
Savings.—
The provisions of rule of O V of the First Sch as amended or, as the case may be,
substituted or omitted by section 15 of this Act, and by section 6 of the Code of Civil
Procedure (Amendment) Act, 2002, shall not apply to in respect of any proceedings
pending before the commencement of section 15 of this Act and section 6 of the Code
of Civil Procedure (Amendment) Act, 2002. [Vide Code of Civil Procedure (Amendment)
Act, 2000, section 162, section 162(b)(ii)].
2002).—
Modifications.—This rule has been amended by making the following modifications:

1. In O V, in rule 1, sub-rule (1) has been substituted. The effect of substituted sub-
rule (1) is that on institution of a suit by the plaintiff summons are required to be
issued to the defendant for appearance and answering the claim of the plaintiff
set out in the plaint by filing written statement of his defence within 30 days from
the day of the institution of the suit except in a few situations.
2. The first proviso to the sub-rule (1) provides that no summons are required to be
issued when the defendant has appeared at the presentation of the plaint and
admitted the plaintiff's claim.
3. The second proviso to the substituted sub-rule (1) provides that if the defendant
does not file the written statement within 30 days of the presentation of the
plaint, he may be allowed to file the same within thirty days from the date of
service of summons.

(j) (of the repeal and savings section) stipulates that the provisions of this substituted
sub-rule shall not apply to any summons issued immediately before the
commencement of section 15 of the Amendment Act, 1999.
General Comments on Order V, rule 1, 2, 6, 7, 9 and 9A.—
Order V of the Code of Civil Procedure provides for issue of and service of summons.
This amendment lays down a fixed time frame within which the procedure is to be
finished. The written statement is to be filed within thirty days from the institution of
the suit. The defendant must be served with a copy of the plaint of the documents on
which the plaintiff relies upon. These papers must accompany the summons. The
mode of service of summons is also indicated. The summons may be delivered by
speed post, courier service, fax message or by electronic mode. The High Court may
prescribe rules for service of summons.
When a defendant appears in Court at the presentation of plaintiff's claim and admits
the claims, no summons shall be issued to the defendant. The suit has to be decreed
straightaway in favour of the plaintiff considering the facts and circumstances of the
case. In case where the defendant is served with summons and fails to file the written
statement on the day fixed by the Court, the Court shall permit him to file the written
statement within thirty days from the date of service of summons on the defendant.
In view of amended provision for service of summons including by electronic media,

rule 19-A is omitted and corresponding changes have been introduced in rules 21, 24
and 25.

amended by this Amendment Act, 1999, stand repealed. [Section 32(1) Code of Civil
The second proviso was inserted by the Amending Act of 1976. By the addition of this
proviso, the Court may direct the filing of written statement on the date of appearance
and issue a suitable summons for the purpose. The compliance of such direction will
be governed by the provisions contained in O VIII, rule 10.
The Supreme Court of India has held that there is no penalty of failure or omission to
appear in response to a summons under section 27.3
1 Subs. by the CPC (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002) vide Notfn. S.O.
604(E), dt. 6-6-2002, section 6 for the following :
"(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear
and answer the claim and to file the written statement of his defence, if any, on such day within
thirty days from the day of institution of the suit as may be specified therein:
Provided that no such summons shall be issued when a defendant has appeared at the
presentation of the plaint and admitted the plaintiff's claim:
Provided further that where the defendant fails to file the written statement on the said day, he
shall be allowed to file the same on such other day which shall not be beyond thirty days from
the date of service of summons on the defendant, as the Court may think fit."
Earlier Subs. by the CPCE (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O.
603(E), dt. 6-6-2002 for the following:
(1) When a suit has been duly instituted a summons may be issued to the defendant to appear
and answer the claim on a day to be therein specified:
Provided that no such summons shall be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiffs claim:
Provided further that where a summons has been issued, the Court may direct the defendant to
file the written statement of his defence, if any, on the date of his appearance and cause an
entry to be made to that effect in the summons.
3 Sangram Singh v Election Tribunal, AIR 1955 SC 425 : (1955) 2 SCR 1 : (1955) 2 MLJ (SC) 3 :
10 ELR 293.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Copy of plaint annexed
to summons
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
4[R. 2.
Copy of plaint annexed to summons
Every summon shall be accompanied by a copy of the plaint ].
Allahabad.—Omit the words, "or, if so permitted, by a concise statement". [24-7-1926].
Bombay.—For rule 2 substitute the following:—
"2. Copy of plaint to accompany summons.—Every summons, except in the case of one
issued by the City Civil Court, shall be accompanied by a copy of the plaint with
annexures, or if so permitted, by concise statement (1-10-1983).
Kerala (Notfn No B1-3312/58 of 7-4-1959).—Omit the words "or, if so permitted by a

concise statement" and in the marginal note omit "or statement".
Rajasthan (Notfn No 33/SRO of 21-7-1954).—Same as in Allahabad.
COMMENT.—
2002).—
Modification.—This existing rule 2 of O V has been substituted. Prior to its substitution,

this rule permitted the Court to annex a copy of the plaint or a concise statement to the
summons. The concept of "concise statement" has been done away with. Now the
Court has to annex a copy of the plaint to the summons.

1999 stated thus:-
Clause 15 amends Rules 2, 6 and 7 to ensure that copy of plaint along with all documents
on which plaintiff relies upon are delivered with summons to the defendant. [Clause 15].

(j) (of the repeal and savings section) stipulates that this substituted rule shall not
apply to any summons issued immediately before the commencement of section 15 of
the Amendment Act, 1999.
w.e.f. 1-7-2002 vide Notfn. SO 603(E), dt 6 June 2002.
Summons along with which no copy of plaint is enclose cannot be regarded as duly
served.5
Copy of plaint to defendant.—
When a summon is sent calling upon a defendant to appear in the court and file his
written statement, it is obligatory on the part of the court to send a copy of the plaint
and other documents appended thereto, in terms of O V, rule 2. In the absence of a
copy of plaint and other documents, the defendant would be unable to file his written
statement.6
4 R. 2 subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 15(ii)
for rule 2 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'R. 2. Copy of statement annexed to summon.—Every summons, shall be accompanied by a copy

of the plaint or, if so permitted, by a concise statement.'
5 MG Dua v Balli Mal, AIR 1932 Nag 135 .

6 Mahar Enterprises v Hyderabad Allwyn Ltd, (2007) 9 SCC 466 (467, 468).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Court may order
defendant or plaintiff to appear in person
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 3.
Court may order defendant or plaintiff to appear in person
(1) Where the Court sees reason to require the personal appearance of the
defendant, the summons shall order him to appear in person in Court on the
day therein specified.
(2) Where the Court sees reason to require the personal appearance of the plaintiff
on the same day, it shall make an order for such appearance.
COMMENT.—
Under two cases only the personal appearance of the plaintiff can be required and they
are under O V, rule 3 and O X, rule 4.7 But this rule is subject to exception and that is a
Court acting under rule 3 cannot compel the attendance of a pardanashin lady.8
7 Wali Mohammad v Jamal Bhai, AIR 1932 Nag 135 .

8 Sundar Devi v Dattatraya, AIR 1933 All 551 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. No Party to be ordered to
appear in person unless resident within certain limits
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 4.
No Party to be ordered to appear in person unless resident within certain limits
No party shall be ordered to appear in person unless he resides—
(a) within the local limits of the Court's ordinary original jurisdiction, or—
(b) without such limits but at a place less than fifty or (where there is railway or
steamer communication or other established public conveyance for five-sixths
of the distance between the place where he resides and the place where the
Court is situate) less than two hundred miles distance from the Court-house.
Allahabad.—The following rule 4A:—
"4A. Except as otherwise provided, in every interlocutory proceeding and in every

proceeding after decree in the trial Court, the Court may; either on the application of
any party, or of its own motion, dispense with service upon any defendant who has not
appeared or upon any defendant who has not filed a written statement". [24-7-1926].
Bombay (Dadra and Nagar Haveli).—The following amendments were made by

Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, page 398, dated 1-10-1983.
For the existing rule 4 substitute the following.—
"4. No party shall be ordered to appear in person unless he resides—
(a) within the local limits of the Court's Ordinary Original jurisdiction, or
(b) without such limits but a place less than 100 or (where there is railway or
steamer communication or other established public conveyance for five-sixths
of the distance between the place where he resides and the place where the
Court is situate), less than five hundred kilometres distance from the Court
house".
Orissa (Notfn No 24-x/7-52 of 30-3-1954).—Add the following rule 4A:—
"4A. Where there is no express provision to the contrary the Court may, in any
interlocutory proceeding and any proceeding after decree in the trial Court, either on
the application of a party or of its own motion, dispense with the service of any further
notice upon any defendant who has not appeared or has not filed a written statement".
Orissa.— The following amendments were made by Orissa Gazette, dated 25-5-1984, Part
III-A, page 68.
Rule 4A as added w.e.f. 7-5-1954, deleted.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Summons to be either to
settle issues or for final disposal
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 5.
Summons to be either to settle issues or for final disposal
The Court shall determine, at the time of issuing the summons, whether it shall be for
the settlement of issues only, or for the final disposal of the suit; and the summons
shall contain a direction accordingly:
Provided that, in every suit heard by a Court of Small Causes, the summons shall be
for the final disposal of the suit.
Assam.—Same as that of Calcutta.
Bombay.—(1-10-83) After the words "whether it shall be for" insert "filing of written
statement and the."
Calcutta (Notfn No 12421-G; 25-8-1927).—After the words "issues only" insert "for the
ascertainment whether the suit will be contested".
Gauhati.—Same as in Calcutta.
Karnataka.—Same as in Madras renumbering of (1), (2) and (3) by (a), (b) and (c) (30-3-
1967).
Kerala (Notfn No B1-3312/58 of 7-4-1959).—For rule 5 substitute the following:—
"5. The Court shall determine, at the time of issuing the summons, whether it shall be—
(i) Summons to be either (1) to ascertain whether the suit is contested or not or (2) for
the final disposal of the suit. For the defendant to appear and state whether he
contests or does not contest the claim and directing him, if he contests, to receive
directions as to the date on which he has to file his written statement, the date of trial
and other matters, and if he does not contest, for final disposal of the suit at once; or
(ii) for the final disposal of the suit at once; and the summons shall contain a direction
accordingly:
Provided that in every non-appealable case the summons shall be for the final disposal
of the suit.
Madras (P Dis No 7 of 1927).—Substitute the following for r 5:—
"5. Summons to be either (1) to settle issues, or (2) to ascertain whether the suit is
contested or not or (3) for final disposal.—The Court shall determine, at the time of
issuing the summons, whether it shall be—(l) for the settlement of issues only, or (2) for
the defendant to appear and state whether he contests or does not contest the claim
and directing him, if he contests, to receive directions as to the date on which he has to
file his written statement, the date of trial and other matters, and if he does not contest,
for final disposal of the suit at once; or (3) for the final disposal of the suit; and the
summons shall contain a direction accordingly:
Provided that in every suit heard by the Court of Small Causes, the summons shall be
for final disposal of the suit."
Orissa.—Delete rule 5 substituted on 30-3-1954. (14-5-1984)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Fixing day for
appearance of defendant
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 6.
Fixing day for appearance of defendant
The day 9[ under sub-rule (1) of rule 1 ] shall be fixed with reference to the current
business of the Court, the place of residence of the defendant and the time necessary
for the service of the summons; and the day shall be so fixed as to allow the
defendant sufficient time to enable him to appear and answer on such day.
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Modifications.—This rule has been amended so as to make the following modifications:
1. In O V in rule 6, the words "under sub-rule (1) of rule 1" has been substituted for
the existing words "for the appearance of the defendant."
2. By the 1999 Amendment, the period of thirty days was fixed for filing written
statement by the defendant. After the 2002 Amendment, now the defendant is to
file written statement within thirty days from the date of service of summons, but
such date can be extended upto ninety days by the Court for reasons to be
recoded.

1999 stated thus:-
Clause 15 amends Rules 2, 6 and 7 to ensure that copy of plaint alongwith all documents on
which plaintiff relies upon are delivered with summons to the defendant. [Clause 15].

rule shall not apply to any summons issued immediately before the commencement of
See comments under O V, rule 1, sub-rule (1).

9 Subs. for 'for the appearance of the defendant' by the Code of Civil Procedure (Amendment),
1999 (46 of 1999), section 15(iii) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Summons to order
defendant to produce documents relied on by him
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 7.
Summons to order defendant to produce documents relied on by him
The summons to appear and answer shall order the defendant to produce 10[ all
documents or copies thereof specified in rule 1A of Order VIII ] in his possession or
power upon which he intends to rely in support of his case.
Bombay.—For rule 7 substitute the following:—
"7. The summons to appear and answer and/or filing a written statement within a time
specified therein shall order the defendant to produce all documents in his possession
or power upon which he bases his defence, claim for set-off or Counter claim, and shall
further order that where he relies on any other documents (whether in his possession
or power or not) as evidence in support of his defence, claim for set-off or counter
claim, he shall file a list of such documents (1-11-1966)".
Himachal Pradesh.—Same as that of Punjab—(25-1-1971)
Punjab (Notfn No 213-R/XI-Y-17; 24-7-1936).—Delete present rule and substitute

therefore:—
"The summons to appear and answer shall order the defendant to produce all
documents in his possession or power upon which he bases his defence or any claim
for set-off and shall further order that where he relies on any other documents (whether
in his possession or power or not) as evidence in support of his defence or claim for
set-off, he shall enter such documents in a list to be added or annexed to the written
statement."
COMMENT.—
2002).—
Modification.—This rule has been amended by making the following modification:
In O V, rule 7 the words, "all documents or copies thereof specified in rule 1A of O VIII"
has been substituted for the words "all documents". This is in line with the amended O
VIII rule 1A which casts a duty on defendant to produce documents upon which relief is
claimed or relied upon by him. Order VIII rule 1A requires the defendant to produce
documents in his possession in the Court and deliver the document or a copy thereof
along with the written statement filed by him. This rule further provides that in case a
document or copy thereof is not filed with the written statement, it shall not be allowed
to be tendered in evidence on behalf of defendant at the hearing of the suit.

1999 stated thus:-
Clause 15 amends Rules 2, 6 and 7 to ensure that copy of plaint along with all documents
on which plaintiff relies are delivered with summons to the defendant. [Clause 15].

rule shall not apply to any summons issued immediately before the commencement of
Summons to be served by plaintiff.—Section 15 of the Amendment Act, 1999 has

substituted a new rule 9 and also introduced rule 9-A in O V. The new rule 9 provides for
delivery of summons to the plaintiff for service on the defendant by Court controlled
process simultaneously with the delivery of the summons for service to the plaintiff in
accordance with the new rule 9. While the new rule 9 is completely new provision,
provisions of the old rule 9 have been incorporated, with necessary changes in rule 9A.
The amendments made by the State Legislature or the High Courts to the old rule 9
prior to the commencement of section 15, in so far as they are inconsistent with the
new rule 9, will stand repealed by virtue of section 32(1) of the Amendment Act. Clause
(j) of section 32(2) provides that the new rule 9 shall not apply to any summons issued
immediately before the commencement of section 15.

10 Subs. for 'all documents' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999), section 15(iv)(w.e.f.1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. On issue of summons
for final disposal, defendant to be directed to produce his witnesses
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 8.
On issue of summons for final disposal, defendant to be directed to produce
his witnesses
Where the summons is for the final disposal of the suit, it shall also direct the
defendant to produce, on the day fixed for his appearance, all witnesses upon whose
evidence he intends to rely in support of his case.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9. Delivery of summons by
Court
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
11[R. 9.
Delivery of summons by Court
(1) Where the defendant resides within the jurisdiction of the Court in which the
suit is instituted, or has an agent resident within that jurisdiction who is
empowered to accept the service of the summons, the summons shall, unless
the Court otherwise directs, be delivered or sent either to the proper officer to
be served by him or one of his subordinates or to such courier services as are
approved by the Court.
(2) The proper officer may be an officer of a Court other than that in which the suit
is instituted, and, where he is such an officer, the summons may be sent to him
in such manner as the Court may direct.
(3) The services of summons may be made by delivering or transmitting a copy

thereof by registered post acknowledgment due, addressed to the defendant or
his agent empowered to accept the service or by speed post or by such courier
services as are approved by the High Court or by the Court referred to in sub-
rule (1) or by any other means of transmission of documents (including fax
message or electronic mail service) provided by the rules made by the High
Court:
Provided that the service of summons under this sub-rule shall be made at the
expenses of the plaintiff.
(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides

outside the jurisdiction of the Court in which the suit is instituted, and the
Court directs that the service of summons on that defendant may be made by
such mode of service of summons as is referred to in sub-rule (3) (except by
registered post acknowledgment due), the provisions of rule 21 shall not apply.
(5) When an acknowledgment or any other receipt purporting to be signed by the

defendant or his agent is received by the Court or postal article containing the
summons is received back by the Court with an endorsement purporting to
have been made by a postal employee or by any person authorised by the
courier service to the effect that the defendant or his agent had refused to take
delivery of the postal article containing the summons or had refused to accept
the summons by any other means specified in sub-rule (3) when tendered or
transmitted to him, the Court issuing the summons shall declare that the
summons had been duly served on the defendant :
Provided that where the summons was properly addressed, pre-paid and duly
sent by registered post acknowledgment due, the declaration referred to in this
sub-rule shall be made notwithstanding the fact that the acknowledgment
having been lost or mislaid, or for any other reason, has not been received by
the Court within thirty days from the date of issue of summons.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel
of courier agencies for the purposes of sub-rule (1).]
Allahabad.— The following amendments were made by Allahabad High Court (14-4-
1962).
Add the following as sub-rule (3) to rule 9—
"(3) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summons
may also be served by sending it by registered post addressed to the defendant at the
place where he ordinarily resides or carries on business or works for gain. Unless the
cover is returned undelivered by the post office on account of proper address or other
similar reason, the summons may be deemed to have been delivered to the addressee
at the time when it should have reached him in the ordinary course."
Andhra Pradesh.— Add as sub-rule (3):—
"(3) Where the defendant resides in India, whether within the jurisdiction of the Court in
which the suit is instituted or not, the Court may direct the proper officer to cause a
summons under this Order to be addressed to the defendant at the place where he
ordinarily resides or carries on business or works for gain and sent to him by registered
post, acknowledgment prepaid. An acknowledgment purporting to be signed by the
defendant shall be deemed to be sufficient proof of service of such summons." (1-11-
1951)
Kerala (Notfn No B1-3312/58 of 7-4-59).—Same as in Andhra Pradesh.
Kerala (Lakshadweep).— The following amendments were made by Kerala Government

Regn. 8 of 1965 (w.e.f. 1-10-1967).
Same as that of Madras given under Andhra Pradesh, dated 9-6-1959 and Regn. 8 of
1965.
Madras.— (i) For sub-rule (1) substitute the following as sub-rules (1) and (2):—
(1) Where the defendant resides in India, whether within or without the jurisdiction of
the Court in which the suit is instituted, the Court may direct the proper officer to cause
a summons under this Order to be addressed to the defendant at the place, where he
ordinarily resides or carries on business or works for gain, and sent to him by
registered post pre-paid for acknowledgment.
(2) Where the summons is returned unserved or the defendant does not appear on the
day fixed in the summons, the Court may direct that the summons shall be delivered or
sent to the proper officer to be served by him or one of his subordinates on the
defendant.
(ii) Renumber sub-rule (2) as sub-rule (3) and add the following as sub-rule (4):—
(4) Notwithstanding anything contained in sub-clause (1), where proceedings in Court

are taken for—
(i) issue of an injunction, or

(ii) punishment of a party for contempt of Court, or
(iii) bringing to sale any property in execution of a decree or order of Court, notice
shall be served only in the manner provided for in sub-clause (2). [27-3-1963].

Government Gazette, dated 24-12-1980, Part III, Section 2, page 288 and Pondicherry
Gazette, dated 10-2-1981, page 111.
Rule 9 as introduced by the High Court, Madras w.e.f. 27-3-1963 stands repealed, dated
5-12-1980.
COMMENT.—
Important Note.—
Act, 1999 and Code of Civil Procedure (Amendment) Act, 2002 (w.e.f. 1-7-2002).
Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (1 July 2002).—
For rule 9 [as substituted by clause (v) of section 15 of the code of Civil Procedure
(Amendment) Act, 1999], the present rules 9 and 9A have been substituted.
As a result of the amendment, the summons would be served on the defendant by the
Court either by its process servers or through private courier agencies approved by the
Court. In addition to the service of summons by the Court, the plaintiff may also serve
summons on the defendant. (See Statement of Objects and Reasons).
Savings.—The provisions of rule 1 of O V of the First Schedule as amended or, as the

case may be, substituted or omitted by section 15 of this Act, and by section 6 of the
Code of Civil Procedure (Amendment) Act, 2002, shall not apply to in respect of any
proceedings pending before the commencement of section 15 of this Act and section 6
of the Code of Civil Procedure (Amendment) Act, 2002. [Vide Code of Civil Procedure
(Amendment) Act, 2002, section 162)(b)(ii)].
2002).—
Modifications.—Rule 9 of O V was substituted by rules 9 and 9A by rection 15 of the

1. It now provided that the summons may be served on the defendant by Registered
Post-acknowledgement due, by Speed Post, by such Courier service as may be
approved by the High Court, by Fax message, by electronic mail service or by any
other means as may be provided by the rules made by the High Court in this
behalf.
2. In addition to and simultaneously with the delivery of summons as provided in
rule 9, O, V the Court may also direct that summons be served on the defendants
or his agent empowered to accept service at the place where the defendant or
his agent actually and voluntarily resides or carries on business or personally
works for gain.
3. Where the defendant or his agent refuses to take delivery of the postal article
containing summons or refuses to accept summons sent by any of the modes as
provided under rule 9(1), the summons shall be deemed to have been served on
the defendant.
4. The plaintiff or his agent is also required to send summons by any means as
directed by the Court within two days from the delivery of summons to the
plaintiff by the Court.
5. Rules 9 and 9A of O V empowers the High Courts to approve a courier service for
the purpose of service of summons and also empowers to make rules with
regard to other means of service of summons.

1999 stated thus:-
Order V of the Code provides for issue and service of summons. The Malimath Committee
looked into the problem of arrears of cases in the Courts and recommended amendments
to the Code with a view to lay down a fixed time frame within which pleadings are to be
completed. Clause 15 seeks to substitute sub-rule (1) of rule 1 of Order V to provide for
filing written statements within thirty days from the day of institution of the suit except in
few situations. Clause 15 amends Rules 2, 6 and 7 to ensure that a copy of plaint along with
all documents on which plaintiff relies are delivered with summons to the defendant. This
clause substitutes rule 9 to provide for delivery of summons by speed post, courier service,
fax message or by electronic mail or any other means of service as the High Court may
prescribe by rules. It makes the Code up-to-date with the changing needs of the time.
[Clause 15].

rule shall not apply to any summons issue immediately before the commencement of
Delivery of summons to plaintiff.—For general comments see notes under O V rule 1.
In order to obviate delay in service of summons, rules 9 and 9A lay down the following
procedure:
(a) the plaintiff shall take the summons from the Court and send it to the parties,
within two days of the receipt thereof, by post, fax, e-mail, speed post, courier
service or by such other means as may be directed by the Court; [Rule 9(1) and
(2)].
(b) the Court may, in addition, deliver the summons to a "proper officer" of the Court
who shall serve it on the defendant or his agent by any of the modes as in (a)
above. [Rule 9A].
(c) on refusal of acceptance by the defendant, where such refusal is properly

endorsed by the postal authority, or on non-receipt of the acknowledgement
card on the date fixed by the Court, the summons will be declared as duly
served. [Rule 9(3)].

COMMENT.—
Service of summons, through courier.—
The problem in service of summons has been one of major cause of delay. There thus,
be no valid objection to service though courier.12
11 Subs. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002) vide
Notfn. S.O. 604(E), dt. 6-6-2002, section 6(ii)
Earlier R. 9 subs. for rule 9 and rule 9A by the Code of Civil Procedure (Amendment) Act, 1999
(46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'R. 9. Delivery or transmission of summons for service.—(1) Where the defendant resides within
the jurisdiction of the Court in which the suit is instituted, or has an agent resident within that
jurisdiction who is empowered to accept the service of the summons, the summons shall,
unless the Court otherwise directs, be delivered or sent to the proper officer to be served by him
or one of his subordinates.
(2) The proper officer may be an officer of a Court other than that in which the suit is instituted,
and, where he is such an officer, the summons may be sent to him by post or in such other
manner as the Court may direct.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [ R. 9A. Summons given to the
plaintiff for service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
13[ R. 9A.
Summons given to the plaintiff for service
(1) The Court may, in addition to the service of summons under rule 9, on the
application of the plaintiff for the issue of a summons for the appearance of the
defendant, permit such plaintiff to effect service of such summons on such
defendant and shall, in such a case, deliver the summons to such plaintiff for
service.
(2) The service of such summons shall be effected by or on behalf of such plaintiff
by delivering or tendering to the defendant personally a copy thereof signed by
the Judge or such officer of the Court as he may appoint in this behalf and sealed
with the seal of the Court or by such mode of service as is referred to in sub-rule
(3) of rule 9.
(3) The provisions of Rules 16 and 18 shall apply to a summons personally served
under this rule as if the person effecting service were a serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to
sign an acknowledgment of service or for any reason such summons cannot be
served personally, the Court shall, on the application of the party, re-issue such
summons to be served by the Court in the same manner as a summons to a
defendant. ]
Calcutta.—The following rule has been inserted in Order V, after rule 9A:—
"9B. In cases of service of summons under rule 9A of this order or through courier
agency, the plaintiff and the person serving shall along with the return file an affidavit
giving details about the place and manner of service and the persons present at the
time of such service:
Provided further that if any part of such affidavit is found to be false or fabricated, the
deponent can be summarily tried and punished for perjury and the courier-agency may
be blacklisted for the purpose of effecting service of summons in that Court:
Provided further that if such affidavit is found to be false and fabricated subsequently in
any proceedings for setting aside ex parte decree passed on the basis of such affidavit,
be Court arriving at the conclusion that such affidavit was a false one, including the
Appellate or the Revisional Court, can blacklist the courier-agency for the purpose of
service of summons in such Court and can also inflict punishment on the person
affirming such false affidavit in a summary manner."—[Vide Calcutta High Court
Notification No. 4681-G, dated 6th December, 2006, published in the Calcutta Gazette,
Extra., Pt. I, dated 7th December, 2006.]
Notfn. S.O. 604(E), dt. 6-6-2002, section 6(ii):
Earlier rule 9 subs. for rule 9 and rule 9A by the Code of Civil Procedure (Amendment) Act, 1999
(46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002. See also footnote 12 under
rule 9.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Mode of service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 10.
Mode of service
Service of the summons shall be made by delivering or tendering a copy thereof

signed by the Judge or such officer as he appoints in this behalf, and sealed with the
seal of the Court.
Delhi.—The following amendments were made by Delhi Government Act 26 of 1966,

Sections 7 and 17, dated 31-10-1966 and dated 1-5-1967.
Same as that of Punjab.
Himachal Pradesh.— The following amendments were made by Himachal Pradesh

Government Act 53 of 1970, Sections 21 and 25, dated 25-1-1971.
Same as that of Delhi
Karnataka.— The following amendments were made by Karnataka Government Act, dated
30-3-1967.
Add the following proviso to rule 10—
Provided that, in any case the Court may either on its own motion or on the application
of the plaintiff, either in the first instance or when summons last issued is returned
unserved direct the service of summons by registered post prepaid for
acknowledgment, instead of the mode of service laid down in this rule. The postal
acknowledgment purporting to contain the signature of the defendant may be deemed
to be prima facie proof of sufficient service of the summons on the defendant on the
day on which it purports to have been signed by him. If the postal cover is returned
unserved, any endorsement purporting to have been made thereon by the delivery peon
or either an employee or officer of the Postal Department shall be prima facie evidence
of the statements contained therein.
III-A, page 68.
Proviso as added and same as in Patna amendment deleted.
Patna.—Add the following:
"Provided that in any case Court may, of its own motion, or on the application of the
plaintiff, send the summons to the defendant by post in addition to the mode of service
laid in this rule. An acknowledgment purporting to be signed by the defendant or an
endorsement by postal servant that the defendant refused to take delivery may be
deemed by the Court issuing the summons to be prima facie proof of service."
Punjab, Haryana and Chandigarh.— The following amendments were made by Punjab,
Haryana and Chandigarh Act, dated 24-11-1927, Act 31 of 1966, Sections 29 and 32,
dated 1-11-1966.
Add the following proviso:
"Provided that in any case if the plaintiff so wishes, the Court may serve the summons
in the first instance by registered post (acknowledgment due) instead of in the mode of
service laid down in this rule." (As amended on 24-11-1927) : Act 31 of 1966, sections
29 and 32. (1-11-1966)
Rajasthan.—The following amendments were made by Rajasthan Government Act,

dated 14-8-1954.
"Provided that in any case the Court may in its discretion send the summons to the
defendant by registered post in addition to the mode of service laid down in this rule.
An acknowledgment purporting to be signed by the defendant or an endorsement by
postal servant that the defendant refused to take the delivery may be deemed by the
Court issuing the summons to be prima facie proof of service."
COMMENT.—
The word "served" has to be read as "sent by post" correctly and properly addressed
and the word "receipt" as the tender of the letter by the postal peon at the address
mentioned in the letter.14
Substituted service of summons.—
If the service of summons is not proper, the Court should direct another service in the
normal manner. Without satisfaction Court cannot direct substituted service.15
14 Madan & Co v Wazir Jaivir Chand, AIR 1989 SC 630 (633) : (1989) 1 SCC 264 .
15 Smruti Paharia v Sanjay Pahariya, (2009) 108 Cut LT 205 (SC).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Service on several
defendants
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 11.
Service on several defendants
Save as otherwise prescribed, where there are more defendants than one, service of
the summons shall be made on each defendant.
COMMENT.—
In a suit when one of the defendants is minor summons should be served on his
guardian.16
16 Jatindra Mohan Poddar v Srinath Roy, ILR 26 Cal 273.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Service to be on
defendant in person when practicable, or on his agent
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 12.
Service to be on defendant in person when practicable, or on his agent
Wherever it is practicable, service shall be made on the defendant in person, unless

he has an agent empowered to accept service, in which case service on such agent
shall be sufficient.
COMMENT.—
Service of the summons on the chela of a person is not valid.17
Similarly, service of the notice on servant is no service in law.18
17 Baba Sheo Charan Das v Baij Nath Singh, 57 IC 563.

18 CN Natraj v IT Officer, AIR 1965 Mys 255 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Service on agent by
whom defendant carries on business
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 13.
Service on agent by whom defendant carries on business
(1) In a suit relating to any business or work against a person who does not reside
within the local limits of the jurisdiction of the Court from which the summons
is issued, service on any manager or agent, who, at the time of service,
personally carries on such business or work for such person within such limits,
shall be deemed good service.
(2) For the purpose of this rule the master of a ship shall be deemed to be the
agent of the owner or charterer.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Service on agent in
charge in suits for immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 14.
Service on agent in charge in suits for immovable property
Where in a suit to obtain relief respecting, or compensation for wrong to, immovable
property, service cannot be made on the defendant in person, and the defendant has
no agent empowered to accept the service, it may be made on any agent of the
defendant in charge of the property.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15. Where service may be
on an adult member of defendant’s family
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
19[R. 15.
Where service may be on an adult member of defendant's family
Where in any suit the defendant is absent from his residence at the time when the
service of summons is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time and he has no
agent empowered to accept service of the summons on his behalf, service may be
made on any adult member of the family, whether male or female who is residing with
him.
Explanation.— A servant is not a member of the family within the meaning of this rule.]
Allahabad.—The following amendments were made by Allahabad Government Gazette,

dated 24-7-1926.
For the words "where in any suit the defendant cannot be found", read "when the
defendant is absent or cannot be personally served."
Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka, page 399.
For the existing rule 15 and its marginal note substitute the following:-
"15. Where service may be on male member of defendant's family.—When the

defendant cannot for any reason be personally served and has no agent empowered to
accept service of the summons on his behalf, service may be made on any adult male
member of the family of the defendant who is residing with him.
Explanation.—A servant is not a member of the family within the meaning of this rule."
(1-10-1983)
Calcutta (Andaman and Nicobar Islands).— The following amendments were made by
Calcutta, Andaman and Nicobar Islands Gazette, dated 25-7-1928.
Substitute the following:-
"R. 15. Where in any suit the defendant is absent from his residence at the time when
service is sought to be effected on him thereat and there is no likelihood of his being
found thereat within a reasonable time, then unless he has an agent empowered to
member of the family of the defendant who is residing with him:
Provided that where such adult male member has an interest in the suit and such
interest is adverse to that of the defendant, a summons so served shall be deemed for
the purposes of the third column of Article 164 of Schedule 1 of the Limitation Act,
1908 not to have been duly served.
Explanation.—A servant is not a member of the family within the meaning of this rule.
Karnataka.— The following amendments were made by Karnataka Government Gazette,

dated 30-3-1967.
Delete rule 15 and substitute the following:
"15. Where in any suit the defendant is absent from his residence at the time when
service is sought to be effected to him thereat and there is no likelihood of his being
found thereat within a reasonable time, then unless he has an agent duly empowered to
member of the family of the defendant (not being a servant) who is residing with him:
Provided that where such adult male member has an interest in the suit and such
interest is adverse to that of the defendant summons so served shall be deemed for
the purposes of R. 13 of Order IX of this Code or of the 3rd Column of Art. 123 of the
Schedule of the Limitation Act, 1963, not to have been duly served."
dated 16-9-1960.
Substitute the words "when the defendant is absent or cannot be personally served" for
the words "where in any suit, the defendant cannot be found".
Punjab, Haryana and Chandigarh.— The following amendments were made by Punjab,
Haryana and Chandigarh Gazette, dated 24-1-1927.
After the words "Where in any suit the defendant cannot be found", insert the following
words "or is absent from his residence".
Rajasthan.— The following amendments were made by Rajasthan Gazette, dated 14-8-
1954.
Substitute the words "When the defendant is absent or cannot be personally served" for
the words "Where in any suit the defendant cannot be found".
STATE AMENDMENTS
Delhi.— The following amendments were made by Delhi High Court Act, 1966 (26 of
1966), Ss 7 and 17, dated 31-10-1966 and 1-5-1967.
Gauhati (Assam, Nagaland, Meghalaya, Manipur and Tripura).— The following

amendments were made by Assam High Court Order, 1948, Clause 6, dated 5-4-1948.
Himachal Pradesh.— The following amendments were made by State of Himachal

Pradesh Act, 1970 (53 of 1970), Sections 21 and 25, dated 25-1-1971.
Same as that of Delhi.
Kerala (Lakshadweep Islands).— The following amendments were made by Kerala

Regulation 8 of 1965, Section 3 and Schedule (w.e.f. 1-10-1967).
In rule 15, for the word 'male' in the marginal note, substitute the word 'adult' and omit
the word "male" in the rule.
Madras (Pondicherry).— The following amendments were made by R.O.C. No. 1810 of
1926, dated 20-12-1927 and Pondicherry (Extension of Laws) Act, 1968 (26 of 1968)
Section 3, and Schedule Part II.
Delete the words "the defendant cannot be found" and in lieu thereof insert the words
"the defendant is absent".
COMMENT.—
The previous rule 15 was substituted by the new rule. This amended rule now provides
that the service of the summons may be made on any adult member of the family, male
or female where the defendant is absent from his residence and there is no likelihood
of his being found at the residence within a reasonable time.
A consequential amendment was made in rule 17 also.
Under this rule a duty is cast on the process-server to take pains to find out the person
to be served and to make enquiries not only from relations but also from neighbours.20
19 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 55 (w.e.f. 1-2-
1977).
20 Muchirman Chand v Paras Nath, AIR 1956 Cal 208 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Person served to sign
acknowledgment
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 16.
Person served to sign acknowledgment
Where the serving officer delivers or ten ders a copy of the summons to the defendant
personally, or to an agent or other person on his behalf, he shall require the signature
of the person to whom the copy is so delivered or tendered to an acknowledgment of
service endorsed on the original summons.
COMMENT.—
If the defendant has not affixed his signature or mark on the original summons on the
ground that he could not write, service of summon cannot be said to be proper.21
21 8 Bom LR 584.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Procedure when
defendant refuses to accept service, or cannot be found
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 17.
Procedure when defendant refuses to accept service, or cannot be found
Where the defendant or his agent or such other person as aforesaid refuses to sign
the acknowledgment, or where the serving officer, after using all due and reasonable
diligence, cannot find the defendant 22 [who is absent from his residence at the time
when service is sought to be effected on him at his residence and there is no
likelihood of his being found at the residence within a reasonable time], and there is
no agent empowered to accept service of the summons on his behalf, nor any other
person on whom service can be made, the serving officer shall affix a copy of the
summons on the outer door or some other conspicuous part of the house in which the
defendant ordinarily resides or carries on business or personally works for gain, and
shall then return the original to the Court from which it was issued, with a report
endorsed thereon or annexed thereto stating that he has so affixed the copy, the
circumstances under which he did so, and the name and address of the person (if any)
by whom the house was identified and in whose presence the copy was affixed.
Calcutta (Andaman and Nicobar Islands).—The following amendments were made by

Calcutta (Andaman and Nicobar Islands) Gazette, dated 25-7-1928.
Substitute the following:-
"R. 17.Where the defendant or his agent or such other person as aforesaid refuses to
sign the acknowledgment, or where the defendant is absent from his residence at the
time when service is sought to be effected on him thereat and there is no likelihood of
his being found thereat within a reasonable time and there is no agent empowered to
accept service of the summons on his behalf, nor any other person upon whom service
can be made, the serving officer shall affix a copy of the summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily resides or
carries on business or personally works for gain and shall then return the original to the
Court from which it was issued with a report indorsed thereon or annexed thereto
stating that he has so affixed the copy, the circumstances under which he did so, and
the name and address of the person (if any) by whom the house was identified and in
whose presence the copy was affixed."

amendments were made by Assam High Court Order 1948, Clause 6, dated 5-4-1948.
Karnataka.— The following amendments were made by Karnataka Gazette, dated 30-3-
1967.
Delete rule 17 and substitute the following:-

"17. Where the defendant or his agent or such other person as aforesaid refuses to sign
the acknowledgment, or where the defendant is not present at the house in which he
ordinarily resides or carries on business or personally works for gain at the time when
service is sought to be effected on him thereat and there is no likelihood of his being
found thereat within a reasonable time and there is no agent empowered to accept
service of the summons on his behalf nor any other person upon whom service can be
made under rule 15, the serving officer shall affix a copy of the summons on the outer
door or some other conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report endorsed thereon or
annexed thereto stating that he has so affixed the copy, the circumstances under which
he did so, and the name and address of the person, if any, by whom the house was
identified and in whose presence the copy was so affixed."
Madhya Pradesh (Notfn No. 3409; 29-6-1943).—At the end of the rule add the following
proviso:
"Provided that where a special service has been issued and the defendant refused to
sign the acknowledgment, it shall not be necessary to affix a copy as directed
hereinbefore."
The following amendments were made by Madhya Pradesh Gazette, dated 16-9-1960.
The following proviso shall be added at the end of the rule:
"Provided that where a special service has been issued and the defendant refused to
sign the acknowledgment, it shall not be necessary to affix a copy as directed
hereinbefore."
COMMENT.—
The filing of the registered cover of the notice is not enough, the contents of the nature
have also to be brought on record.23
The provisions of O V rule 19 of the Code of Civil Procedure Code are mandatory in real
sense of the term. Where the trial court failed to make an enquiry regarding service of
summons on the appellant/defendant and refusal of the summons reported by the
serving officer without containing the requirement as indicated in O V rule 17 have not
been complied with hence the ex parte decree cannot sustain and is liable to be set
aside.24
23 T Yijendradas v M Subramanian, (2007) 8 SCC 751 .
24 Moti Chand Jain v Mahesh Chand Pal, AIR 2014 Ch 26 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Endorsement of time
and manner of service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 18.
Endorsement of time and manner of service
The serving officer shall, in all cases in which the summons has been served under
rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original
summons, a return stating the time when the manner in which the summons was
served, and the name and address of the person (if any) identifying the person served
and witnessing the delivery or tender of the summons.
[Rule 18-A added in AP, Karnataka and Madras]
Andhra Pradesh (P Dis No 777 of 1929) .—Insert as rule 18A:—
Chief Ministerial Officer, District Courts, may be empowered to order issue of fresh
summons.—"18A. A District Judge, within the meaning of the Madras Civil Courts Act,
1873, may delegate to the Chief Ministerial Officer of the District Court the power to
order the issue of fresh summons to a defendant when the return on the previous
summons is to the effect that the defendant was not served and the plaintiff does not
object to the issue of fresh summons within seven days after the return has been
notified on the notice board."
Karnataka.—Add the following as rule 18A:
"18-A. The Presiding Officer of a Civil Court may delegate to the Chief Ministerial Officer
of the Court, the power to order issue of fresh summons to a defendant when the
return on the previous summons is to the effect that the defendant was not served and
the plaintiff does not object to the issue of fresh summons within 7 days after he has
been required to deposit the necessary process fee for the issue of fresh summons. If
the plaintiff objects, the matter shall be placed before the Presiding Officer for his
orders." (30-3-1967).
Madras (Fort St Geo Gaz of 9-11-55).—Substitute the following for rule 18A inserted in
1929:—
"18A. A District Judge, a subordinate Judge and a District Munsif within the meaning of
the Madras Civil Courts Act, 1873, and a City Civil Judge within the meaning of the
Madras City Civil Court Act, 1862, may delegate to the Chief Ministerial Officer of their
respective Courts the power to issue fresh summons to a defendant when (i) the return
on the previous summons is to the effect that the defendant was not served and (ii) the
plaintiff does not object to the issue of fresh summons within 7 days after the return
has been notified on the Notice Board."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Examination of serving
officer
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 19.
Examination of serving officer
Where a summons is returned under rule 17, the Court shall, if the return under that
rule has not been verified by the affidavit of the serving officer, and may, if it has been
so verified, examine the serving officer on oath, or cause him to be so examined by
another Court, touching his proceedings, and may make such further inquiry in the
matter as it thinks fit; and shall either declare that the summons has been duly served
or order such service as it thinks fit.
[Rule 19 amended and rule 19-A added in Calcutta and Gauhati]

Calcutta (Andaman and Nicobar Islands) Gazette, dated 25-7-1928.
For rule 19 substitute the following:—
"19. Where a summons is returned under rule 17, the Court shall if the return under that
rule has not been verified by the declaration of the serving officer and may if it has been
so verified, examine the serving officer on oath, or cause him to be so examined by
another Court, touching his proceedings, and may make such further inquiry in the
matter as it thinks fit, and shall either declare that the summons has been duly served
or order such service as it thinks fit."
Gauhati (Assam, Nagaland, Meghalaya, Manipur and Tripura).—The following

amendments were made by Assam High Court Order, 1948, Clause 6, dated 5-4-1948.
COMMENT—
Service of Notice.—
The procedure laid down for service of the notice in the Code of civil procedure has
been made applicable under section 239 of J&K Municipal Act (2008). Where there is
no proof adduced by way of affidavit of process server or any other officer that attempt
was made to serve notice personally, rule 19 of O V Code of Civil Procedure was not
complied with. The notice was not served in accordance with the law.25
Defendants to rebut presumptions of service of notice.—
Where the summons are proved to have been sent by registered post to a correct and
given address, it can be presumed that notice is duty served on both the defendants
who occupied tenanted premises jointly. The burden shifts on defendants to rebut such
presumption. One of the defendants appeared and made a bold statement that he did
not receive registered letter. The postman, who was material witness, was not
examined by him. The other defendant did not appear and led no evidence to rebut the
presumption. His conduct shows that registered summons were duly served on him.
An ex parte decree passed against them cannot be set aside on the ground that
summons were not duly served.26
25 State of J&K v Haji Wali Mohammed, AIR 1972 SC 2538 (2543) : (1972) 2 SCC 402 : (1973) 1
SCR 801 .
26 Basant Singh v Roman Catholic Mission, AIR 2002 SC 3557 (3559) : (2002) 7 SCC 531 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 19A. Simultaneous issue
of summons for service by post in addition to personal service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
27[R. 19A.
Simultaneous issue of summons for service by post in addition to personal
service
* * * * *].
HIGH COURT AMENDMENTS UNDER REPEALED RULE

Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka., Page 399.
In sub-rule (1)—
(i) substitute the word "may" for the word "shall",
(ii) delete the proviso.
Calcutta.— Insert after r 19 the following as r 19A:—
"19A. A declaration made and subscribed by a serving officer shall be received as

evidence of the facts as to the service or attempted service of the summons."(25-7-
1928)
Gauhati (Assam, Nagaland, Meghalaya, Manipur & Tripura).— The following

amendments were made by Assam High Court Order, 1948, Clause 6.
Madras and Pondicherry.— The following amendments were made by Tamil Nadu
Government Gazette, dated 10-9-1986, Part II, Section 2, Page 110.
For rule 19-A, substitute the following namely:
"(1) The Court shall, in addition to and simultaneously with the issue of summons for
service in the manner provided in Rules 9 to 19 (both inclusive) also direct the
summons to be served by registered post, acknowledgment due; either through an
officer of Court or by the plaintiff personally, addressed to the defendant or his agent
empowered to accept the service at the place where the defendant or his agent,
actually and voluntarily resides or carries on business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summons for
service by registered post, where, in the circumstances of the case, the Court considers
it unnecessary.
(2)
(i) Where an acknowledgment purporting to be signed by the defendant or his agent
is received by this Court, or is filed into Court by the plaintiff together with an
affidavit, sworn to by the plaintiff as to the manner of service, such service shall
be deemed to be sufficient proof of service of summons in the suit.
(ii) Where, the summons sent by registered post by an officer of Court is received
back by the Court with an endorsement purporting to have been made by a
postal employee to the effect that the defendant or his agent had refused to take
delivery of the postal article containing the summons, when tendered to him, the
Court issuing such summons may declare that the summons had been duly
served on the defendant.
(iii) Where, however, the plaintiff files into Court an affidavit sworn to by him, stating
that the postal articles containing the summons is received back by him with an
endorsement purporting to have been made by a postal employee that the
defendant or his agent had refused to take delivery of the postal article
containing the summons, together with the returned postal article containing
the summons the Court issuing such summons shall not declare that the
summons had been duly served on the defendant."
COMMENTS UNDER REPEALED RULE 19A
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e-f. 1-7-
2002).—
Modifications.—This rule has been omitted:
1. Rule 19-A has been omitted by the Amendment Act, 1999.
2. In view of substitution of rules 9 ad 9A in O V, rule 19A had become redundant and

hence omitted.
Notes on Clauses.—For the Notes on Clauses as appended to the Code of Civil

Procedure (Amendment) Bill, 1999. See notes under O V, rule 1.

(j) (of the repeal and savings section) stipulates that the provisions of rules 1, 2, 6, 7, 9,
9A, 19A, 21, 24 and 25 of O V of the First Schedule as amended or, as the case may be,
inserted or omitted by section 15 of the Amendment Act, 1999 shall not apply to any
summons issued immediately before the commencement of section 15 of the
w.e.f. 1-7-2002 vide Notfa. SO 603(E), dt 6 June 2002.
Comments on Amendment Act, 1999.—
See comments under rules 9 and 9A.

The declaration of due service of the summons within the meaning of this rule should
be expressed.28
Rule 19-A was added by the Amending Act of 1976 in order to provide for the
simultaneous issue of summons for service in the ordinary manner and by post. The
service by post should be by registered post, acknowledgment due (sub-rule (1) of rule
19-A).
It has further been provided by sub-rule (2) that in case of issue of summons for
service by registered post, if the defendant refused to take delivery of the summons,
when tendered to him, or the fact that the acknowledgment has been lost or mislaid or
has not been received back by the Court for any reason within 30 days from the date of
issue of the summons, the Court should be authorised to draw a presumption that the
summons had been duly served on the defendant.
A division bench of Patna High Court had held in UOI v Sri Laxmi Oil Mills, AIR 1984 Pat
252 (253) (DB) that the Courts are required to send notices simultaneously in ordinary
course and by registered post. The procedure adopted by Court below in issuing
summons by registered post in the absence of the summons in ordinary course was
wrongly adopted.
27 R. 19A omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-
7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, before omission it stood as under:
'(1) The Court shall, in addition to, and simultaneously with, the issue of summons for service in
the manner provided in Rules 9 to 19 (both inclusive), also direct the summons to be served by
registered post, acknowledgment due, addressed to the defendant, or his agent empowered to
accept the service, at the place where the defendant, or his agent, actually and voluntarily
resides or carries on business or personally works for gain:
Provided that nothing in this sub-rule shall require the Court to issue a summons for service by
registered post, where, in the circumstances of the case, the Court considers it unnecessary.
(2) When an acknowledgment purporting to be signed by the defendant or his agent is received
by the Court or the postal article containing the summons is received back by the Court with an
endorsement purporting to have been made by a postal employee to the effect that the
defendant or his agent had refused to take delivery of the postal article containing the
summons, when tendered to him, the Court issuing the summons shall declare that the
summons had been duly served on the defendant:
Provided that where the summons was properly addressed, prepaid and duly sent by registered
post, acknowledgment due, the declaration referred to in this sub-rule be made notwithstanding
the fact that the acknowledgment having been lost or mislaid, or for any other reason, has not
been received by the Court within thirty days from the date of the issue of summons.'
28 Badri Prasad v The King, AIR 1950 Ass 6 ; see also Yijai Lakshmi v Rangacharia, AIR 1943
Mad 213 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Substituted service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 20.
Substituted service
(1) Where the Court is satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service, or that for any other
reason the summons cannot be served in the ordinary way, the Court shall
order the summons to be served by affixing a copy thereof in some
conspicuous place in the Court-house, and also upon some conspicuous part
of the house (if any) in which the defendant is known to have last resided or
carried on business or personally worked for gain, or in such other manner as
the Court thinks fit.
29
[(1A) Where the Court acting under sub-rule (1) orders service by an
advertisement in a newspaper. The newspaper shall be a daily newspaper
circulating in the locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or personally worked
for gain.]
Effect of substituted service
(2) Service substituted by order of the Court shall be as effectual as if it had been
made on the defendant personally.
Where service substituted, time for appearance to be fixed
(3) Where service is substituted by order of the Court, the Court shall fix such time
for the appearance of the defendant as the case may require.
Punjab & Haryana (Chandigarh).—The following amendments were made by Punjab

Gazette, dated 11-4-75, Part III (L.S.), Page 303; Haryana Government Gazette, dated 25-3-
1975, Part III (L.S.), Page 189; Chandigarh Administration Gazette, dated 1-5-1975, Part II,
Page 95.
In rule 20 of Order V add the following as proviso to rule 1 thereof:
"Provided that if service in the ordinary manner or by registered post is not effected for
the first date of hearing, the Court may direct substituted service, in such manner as
the Court may deem fit, even if no application is made by or on behalf of the plaintiff for
that purpose."
COMMENT.—
Sub-rule (1-A) to this rule was inserted by the Amending Act of 1976 in order to provide
that where substituted service by advertisement in newspaper ordered, the newspaper
should be those circulating in the locality in which the defendant is last known to have
resided, carried on business or personally worked for gain.
The object of substituted service of a notice is to bring it to the notice of the person for
whom it is intended. O V, rule 20 of Code intends it as a substitute to actual, personal
service. But a substituted service of the summons in order to be valid must conform to
the provisions of O V, rule 20 otherwise, it cannot be recorded as in accordance with
law and, therefore, not sufficient.30 It has been held by the Supreme Court of India that
substituted service of notice under section 34 of Income tax Act, (1922) copy of such
notice on some conspicuous part of assessee's residence is valid by affixing although
no copy is affixed in the Court house.31 A copy of the notice was affixed on assessee's
residence but no copy was affixed on a conspicuous part of Court house. The service
was valid.
Last ten words in sub-rule (1) of rule 20 of O V confer a discretion on the Court to adopt
any manner of service. The sub-rule prescribes one manner which the Court may follow
and this manner consists of two acts (1) affixing a copy of the summons in the Court
house, and (2) affixing it in some conspicuous part of the residential house or the
business premises of the defendant. The alternative manner envisaged by the last ten
words in sub-rule (1) of rule 20 which the Court decides to adopt for serving must, of
course, be as gives notice to the person to be served.32
Where no other means of effective publication is available, no doubt, announcing the

assessment list by beat of drums and displaying placards would have to be complied
with. Where equally efficacious mode of publication is available, it would be ridiculous
to insist on an obsolete form of publication as if it were a ritual.33
Substituted service of summons.—
Where two local dailies are widely circulated in the area and the Court directed the
substituted service of summons by publishing in one of the local dailies. The notice,
however, was published in the other local daily which was not ordered by the Court.
Just because notice for substituted service was published in other local daily which
was not ordered by the Court, the effect of substituted service would not be
invalidated.34
In a petition for divorce by mutual consent, husband was absent on the first date of
hearing, summons revised were not properly served. Court though not satisfied that
husband was evading service, directed substituted service of summons.35
If the dispatch of the notice by registered post was sufficient compliance, then it is no
compliance with the statute for the landlord to say that he has served the notice by
some other method.36
Where summons were served by newspaper publication the plea that person sought to
be served does not read such newspaper is not open.37
30 Chockalingam Chettiar v VC Rajarathnam, AIR 1964 Mad 415 .
31 CIT v Daulat Ram, AIR 1967 SC 1552 : (1967) 3 SCR 298 : (1967) 2 ITJ 494 : 65 ITR 603.
32 CIT v Daulat Ram, AIR 1967 SC 1552 (1554) : (1967) 3 SCR 298 : (1967) 65 ITR 603 .
33 Rai Vimal Krishna v State of Bihar, AIR 2003 SC 2676 (2683) : (2003) 6 SCC 401 .
35 Smruti Pahariya v Sanjay Rahariya, AIR 2009 SC 2840 .
36 Madan & Co v Wazir Jaivir Chand, AIR 1989 SC 630 (634) : (1989) 1 SCC 264 .
37 Sunil Poddar v Union Bank of India, AIR 2008 SC 1006 : (2008) 2 SCC 326 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20A. [* * *]
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 20A.
38[* * *]
Punjab & Haryana (Chandigarh).—The following shall be inserted as rule 20-B after
existing rule 20-A in Order V of the Code of Civil Procedure, 1908, namely:—
"20-B. On the occurrence of an unanticipated holiday or in the event of the Presiding

Officer of a Court being absent owing to sudden illness or other unexpected cause, all
cases fixed for the day in question shall be deemed to have been automatically
adjourned to the next working day when the Presiding Officer is present and it shall be
the duty of the parties or their counsel to attend Court on that day." (10-9-1993)
38 Ins. by Act 66 of 1956, Section 14 and omitted by Act 104 of 1976, Section 55 (w.e.f. 1-2-
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. Service of summons
where defendant resides within jurisdiction of another Court
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 21.
Service of summons where defendant resides within jurisdiction of another
Court
A summons may be sent by the Court by which it is issued whether within or without
the State, either by one of its officers 39[ or by post or by such courier service as may
be approved by the High Court, by fax message or by Electronic Mail service or by any
other means as may be provided by the rules made by the High Court ] to any Court (not
being the High Court) having jurisdiction in the place where the defendant resides.
[Sub-rule (2) added in All; rule 21-A added in Bom, Gujarat & MP.]
Allahabad (Notfn No 43/vii-d-29, of 1-6-57).—Renumber rule 21 as sub-rule (1) and add

as sub-rule (2):—
"(2) In lieu of, or in addition to, the procedure indicated in sub-rule (1), such summons
may also be served by sending it by registered post addressed to the defendant at the
place where he ordinarily resides or carries on business or works for gain. Unless the
cover is returned undelivered by the post office on account of want of proper address
or other similar reason, the summons may be deemed to have been delivered to the
addressee at the time when it should have reached him in the ordinary course."
Andhra Pradesh.— Add the following proviso:
"Provided that summons intended for service in the twin cities of Hyderabad and
Secunderabad shall be sent to the City Civil Court, Hyderabad at Secunderabad" (23-3-
1967).
Bombay.—Insert the following as r 21-A:
"21-A. Service of summons by pre-paid post wherever the defendant may be residing if
plaintiff so desires.—Notwithstanding anything in the foregoing rules and whether the
defendant resides within the jurisdiction of the Court or not, (the Court may in addition
to or in substitution for, any other mode of service), cause the summons to be
addressed to the defendant at the place where he is residing, (or where he ordinarily
carries on business) and sent to him by registered post pre-paid for acknowledgment,
provided that at such place there is a regular daily postal service. An acknowledgment
purporting to be signed by the defendant shall be deemed by the Court issuing the
summons to be prima facie proof of service. In all other cases the Court shall hold such
enquiry as it thinks fit and declare the summons to have been duly served or order such
further service as may in its opinion be necessary [1-11-1966]."
Maharashtra Government Gazette, dated 15-9-1983, Part IV, Ka, Page 397.
Notification in 1972 inserting rule 21A superseded in 1983.
Gujarat.—Same as in Bombay with the following modifications:
(i) Insert the words "The Court May" at the beginning.
(ii) Omit the words within brackets.
The following amendments were made by Gujarat Gazette, dated 17-8-1961:-
"21-A. Service of summons by pre-paid post wherever the defendant may be residing
if plaintiff so desires.—The Court may notwithstanding anything in the foregoing rules
and whether the defendant resides within the jurisdiction of the Court or not, cause the
summons to be addressed to the defendant at the place and sent to him by registered
post, pre-paid for acknowledgment, provided that at such place there is a regular daily
postal service. An acknowledgment purporting to be signed by the defendant shall be
deemed by the Court issuing the summons to be prima facie proof of service. In all
other cases the Court shall hold such enquiry as it thinks fit and declare the summons
to have been duly served or order such further service as may in its opinion be
necessary."
Madhya Pradesh (Notfns Nos 6634 & 6635, 23-9-1932).—Insert as rule 21A:
"21-A. The Court may, notwithstanding anything in the foregoing rules, cause the
summons of its own Court or of any other Court in India to be addressed to the
defendant at the place where he ordinarily resides or carries on business and sent to
him by registered post prepaid for acknowledgment provided that such place is a town
or village in the Akola revenue taluq. An acknowledgment purporting to be signed by
the defendant or an endorsement by a postal servant that the defendant refused
service may be deemed by the Court issuing the summons to be prima facie proof of
service."
COMMENT.—
2002).—
1. The word "or by post" have been substituted by the words "or by post or by such
courier service as may be approved by the High Court, by fax messaging or by
Electronic Mail service or by any other means as may be provided by the rules
made by the High Court".
2. This amendment in rule 21 has been necessitated because of the new provisions
brought in new rule 9 and rule 9A for providing alternative modes of service of
summons.

Alternative modes of service of summons.—
Rules 21, 24 and 25, as amended by section 15 of the Amendment Act, 1999 provide
for alternative modes of service of summons. Like the new rule 9, O V, they also
empower the High Court to approve service by courier or to make rules for service by
fax message or electronic mail service etc. Amendments of rules 21, 24 and 25 by
State Legislatures or High Courts, prior to the commencement of section 15 of the
Amendment Act, 1999, in so far as they are inconsistent with these rules as amended
by the Amendment Act, 1999 will stand repealed by virtue of section 32(1) of the
Amendment Act, 1999. Clause (j) of section 32(2) provides that the amendment in
rules 21, 24 and 25 shall not apply to any summons issued immediately before the
See, also General Comments, appended to Notes under "O V, rule 1".

39 Subs. for 'or by post' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 22. Service within
Presidency-towns of summons issued by Courts outside
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 22.
Service within Presidency-towns of summons issued by Courts outside
Where a summons issued by any Court established beyond the limits of the towns of
Calcutta, Madras 40[and Bombay] is to be served within any such limits, it shall be
sent to the Court of Small Causes within whose jurisdiction it is to be served [B, G,
RAJ].
[Prov. added in Bom, Gujarat & Raj].
Bombay.—Add the following proviso to the rule:—
"Provided that where any such summons is to be served within the limits of Greater
Bombay, it may be addressed to the defendant at the place within such limits where he
is residing (or where ordinarily carries on business) and may be sent to him by the
Court by post registered for acknowledgment. An acknowledgment purporting to be
signed by the defendant or an endorsement by a postal servant that the defendant
refused service shall be deemed by the Court issuing the summons to be prima facie
proof of service. In all other cases the Court shall hold such enquiry as it thinks fit and
either declare the summons to have been duly served or order such further service as
may in its opinion be necessary." [1-11-1966].
Gujarat.—Same as in Bombay with modifications : (i) omission of the words within

bracket and (ii) insertion of the words "purporting to be" between the words
"endorsement" and "by a postal servant".
Rajasthan [Notfn No 10/SRO of 29-6-1957]—Same as in Bombay with the modifications:
For the words "Provided that where (or where ordinarily carries on business)" substitute
"Provided that any such summons may instead be addressed to the defendant at the
place within such limits where he is residing".
40 Subs. by the A.O. 1937 for "Bombay and Rangoon".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 23. Duty of Court to which
summons is sent
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 23.
Duty of Court to which summons is sent
The Court to which a summons is sent under rule 21 or rule 22 shall, upon receipt
thereof, proceed as if it had been issued by such Court and shall then return the
summons to the Court of issue, together with the record (if any) of its proceedings
with regard thereto.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 24. Service on defendant in
prison
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 24.
Service on defendant in prison
Where the defendant is confined in a prison, the summons shall be delivered or sent
41[ or by post or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail service or by any other means as may be provided by the
rules made by the High Court ] to the officer in charge of the prison for service on the
defendant.
COMMENT.—
2002).—
1. The words "by post or otherwise" have been substituted by the words "or by post
or by such courier service as may be approved by the High Court, by fax message
or by Electronic Mail service or by any other means as may be provided by the
rules made by the High Court".
2. This amendment in rule 24 became necessary because of new provisions

summons.
Service on prisoners.—
fax message or electronic mail service etc. Amendments of rules 21, 24 and 25 by
Amendment Act, 1999 in so far as they are inconsistent with these rules as amended
Amendment Act. Clause (j) of section 32(2) provides that the amendment in rules 21,
24 and 25 shall not apply to any summons issued immediately before the

VIC
41 Subs. for 'by post or otherwise' by the Code of Civil Procedure (Amendment) Act, 1999 (46
of 1999), section 15(viii) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 25. Service where
defendant resides out of India and has no agent
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 25.
Service where defendant resides out of India and has no agent
Where the defendant resides out of 42[India] and has no agent in 46[India] empowered
to accept service, the summons shall be addressed to the defendant at the place
where he is residing and sent to him 43[ or by post or by such courier service as may be
approved by the High Court, by fax message or by Electronic Mail service or by an other
means as may be provided by the rules made by the High Court ], if there is postal
communication between such place and the place where the Court is situate:
44[ Provided that where any such defendant 45[resides in Bangladesh or Pakistan], the
summons, together with a copy thereof, may be sent for service on the defendant, to
any Court in that country (not being the High Court) having jurisdiction in the place
where the defendant resides:
Provided further that where any such defendant is a public officer 46[in Bangladesh or
Pakistan] (not belonging to the Bangladesh or, as the case may be, Pakistan military,
naval or air forces) or is a servant of a railway company or local authority in that
country, the summons, together with a copy thereof, may be sent for service on the
defendant, to such officer or authority in that country as the Central Government may,
by notification in the official Gazette, specify in this behalf.]
[Rule substituted in All, AP, Bom, Karnataka and Mad: rule amended in Ker and HP and
rule 25A added in All and MP.]
47Allahabad (Notfn No 8/VII-d-29; 29-3-1958 as modified by 69/VIId-29 of 24-6-61).—
rule substituted. The effect of substitution is:—
(a) In para 1 after the words "the summons", for "shall" substitute "unless the Court
otherwise directs".
(b) For the word "post" substitute "registered post".
(c) For the words "situate" substitute "sitting" and add thereafter "Unless the cover is
returned undelivered by the post office on account of want of proper address or
any other sufficient reason, the summons may be deemed to have been
delivered to the addressee at the time when it should have reached him in
ordinary course."
(d) Omit the provisos.
(e) Add the following as rule 25A:

"25A : Where the defendant resides out of India but has an agent empowered to
accept service of summons on his behalf residing in India but outside the
jurisdiction of the Court, the summons, unless directed otherwise by the Court,
may be addressed to such agent and sent to him by registered post if there is
postal communication between such place and the place where the Court is
sitting. Unless the cover is returned undelivered for want of proper address or
any other sufficient reasons, the summons may be deemed to have been
delivered to the addressee at the time when it should have reached him in
ordinary course." (14-4-1962).
Andhra Pradesh (Notfn No Roc No 6842/51-B-1; 9-8-1957).—Same in Madras omitting

the first proviso.
(i) omit the word 'British' wherever it occurs.
(ii) delete existing first proviso. (29-8-1957).
Bombay.—Rule substituted. The effect of substitution is:—In para 1 after the words "the
summons" for "shall" substitute "may". (1-11-1966).
"25. Where the defendant resides out of India, and has no agent in India empowered to
accept service, the summons may be addressed to the defendant at the place where he
is residing and sent to him by post, if there is postal communication between such
place and the place where the Court is situated:
Provided that where any such defendant resides in Pakistan, the summons, belonging
together with a copy thereof, may be sent for service on the defendant, to any Court in
that country (not being the High Court) having jurisdiction in the place where the
defendant resides:
Provided further that where such defendant is a public officer in Pakistan (not belonging
to the Pakistan military, naval or air force) or is a servant of a railway company or local
authority in that country, the summons, together with a copy thereof, may be sent for
service on the defendant, to such officer or authority in that country as the Central
Government may, by notification in the Official Gazette, specify in this behalf." (1-11-
1966).
Karnataka.—(30-3-1967) rule substituted. The effect of substitution is:
Insert the following as sub-rule (1):
"25(1) Where the defendant resides outside the State of Mysore but within the
territories of India, the Court may direct the proper officer within the meaning of rule 9
to cause the summons to be addressed to the defendant at the place where he
ordinarily resides or carries on business, or works for gain and sent to him by
registered post prepaid for acknowledgment. When it is so sent by registered post, the
provisions of the proviso to rule 10 shall apply thereto.
(ii) Renumber para 1 as sub-rule (2) and in the renumbered sub-rule for "shall" read
"may".
(iii) After sub-rule (2) insert first proviso as in Madras with the following modifications:
—
(a) For the words "the Government of the State in which the Court issuing summons is
situate" substitute "the Central Government".
(b) After the words "the summons may be sent to such officer" for the words "in such
manner" substitute "in the same manner".
(iv) Read existing first and second provisos as second and third provisos.
Kerala (Lakshadweep).— The following amendments were made by Kerala Gazette,

dated 9-6-1959.
(i) Before the existing provisos, add the following proviso, namely:
"Provided that, if by any arrangement between the Government of the State in

which the Court issuing summons is situate and the Government of the foreign
territory in which the defendant resides, the summons can be served by an
officer of the Government of such territory, the summons may be sent to such
officer in such manner as by the said arrangement may have been agreed upon:"
(ii) In the last proviso, for the word "company", substitute the word "Administration".
Madhya Pradesh.—(a) In para 1, for "shall" read "May". (16-9-1990) (b) Add the
following as rule 25-A:
"25-A. Service where defendant resides in India but outside Madhya Pradesh.
Where the defendant resides in India but outside the limits of Madhya Pradesh,
the Court may, in addition to any other mode of service, send the summons by
registered post to the defendant at the place where he is residing or carrying on
business. An acknowledgment purporting to be signed by him, or an
endorsement by a postal servant that the defendant refused service may be
deemed by the Court issuing the summons to be prima facie proof of service".
(16-9-1960)
Madras (Pondicherry).— The following amendments were made by Tamil Nadu Gazette,
dated 23-12-1964.
(i) Substitute the following for rule 25:—
"25. Service where defendant resides out of British India and has no agent.—Where
the defendant resides out of British India and has no agent in British India empowered
to accept service, the summons may be addressed to the defendant at the place where
he is residing and sent to him by post, if there is postal communication between such
place and the place where the Court is situate:
Provided that if, by any arrangement between the Government of the Province in which
the Court issuing summons is situate and the Government of the foreign territory in
which the defendant resides, the summons can be served by an officer of the
Government of such territory, the summons may be sent to such officer in such manner
as by the said arrangement may have been agreed upon (as amended on 2-3-1942)."
(ii) Omit first proviso to rule 25.
COMMENT.—
2002).—
1. The words "by post" have been substituted by the words "or by post by such
courier service as may be approved by the High Court, by fax message or by
Electronic Mail service or by any other means as may be provided by the rules
made by the High Court".
2. This amendment in rule 25 became necessary because of new provisions

summons.
Service on defendants residing abroad.—
fax message or electronic mail service, etc. Amendments of rules 21, 24 and 25 by
Amendment Act, 1999 in so far as they are inconsistent with these Rules as amended
Amendment Act. Clause (j) of section 32(2) provides that the amendment in rules 21,
24 and 25 shall not apply to any summons issued immediately before the

42 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951, section 3, for "the States".
46 Subs. By Act 104 of 1976, section 55(vii)(b), for "in Pakistan (not belonging to the Pakistan
military, naval or air force)" (w.e.f. 1-2-1977).
43 Subs. for 'by post' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
section 15(ix) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
44 Inserted by Code of Civil Procedure (Amendment) Act 19 of 1951, section 2 (28-4-1951).
45 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 55, for "resides in
Pakistan" (w.e.f. 1-2-1977).
46 Subs. By Act 104 of 1976, section 55(vii)(b), for "in Pakistan (not belonging to the Pakistan
military, naval or air force)" (w.e.f. 1-2-1977).
47 As to service in Bangladesh and Pakistan seen however the proviso added to rule 25 by Act
19 of 1951.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 26. Service in foreign
territory through Political Agent or Court
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
48[R. 26.
Service in foreign territory through Political Agent or Court
Where—
(a) in the exercise of any foreign jurisdiction Agent has been appointed, or a Court
has been established or continued, with power to serve a summon issued by a
Court under this Code, in any foreign territory in which the defendant actually
and voluntarily resides, carries on business or personally works for gain, or
(b) the Central Government has, by notification in the Official Gazette, declared, in
respect of any Court situate in any such territory and not established or
continued in the exercise of any such jurisdiction as aforesaid, that service by
such Court of any summons issued by a Court under this Code shall be deemed
to be valid service, the summons may be sent to such Political Agent or Court,
by post, or otherwise, or if so directed by the Central Government, through the
Ministry of that Government dealing with foreign affairs, or in such other manner
as may be specified by the Central Government for the purpose of being served
upon the defendant; and, if the Political Agent or Court returns the summons
with an endorsement purporting to have been made by such Political Agent or
by the Judge or other officer of the Court to the effect that the summons has
been served on the defendant in the manner hereinbefore directed, such
endorsement shall be deemed to be evidence of service.
Allahabad.—After the words "the summons may" in last para, insert "in addition to, or in
substitution for the method permitted by rule 25".
Andhra Pradesh.—Same as in Madras (Vide Notfn No Roc No 6842/51-B-1 of 9-8-57).
Bombay.—Same as in Allahabad (1-11-1966).
Gujarat.— The following amendments were made by Gujarat Gazette, dated 17-8-1961.
For rule 26, the following rule is substituted:
"26. Service in foreign territory through Political Agent or Court.—Where—
(a) and (b) (Same as in Kerala except that the words 'or process' and 'or' at the end of
clause (b) and clause (c) are omitted).
the summons may, in addition to or in substitution for the method permitted by rule 25
be sent to such Political Agent or Court by post or otherwise, for the purpose of being
served upon the defendant; and, if the Political Agent or Court returns the summons
with an endorsement signed by such Political Agent or by the Judge or other officer of
the Court that the summons has been served on the defendant in the manner
hereinbefore directed, such endorsement shall be deemed to be evidence of service."
1967.
For Rule 26 substitute the following:
"26.Where—
(a) in the exercise of any foreign jurisdiction vested in the Central Government, a
Political Agent has been appointed, or a Court has been established or
continued with power to serve a summons or process issued by a Court under
this Code in any foreign territory in which the defendant resides, or
(b) the State Government has, by notification in the Official Gazette, declared, in
such Court of any summons or process issued under this Code by a Court of the
State shall be deemed to be valid service, or
(c) by any arrangement between the Central Government and the Government of the
foreign territory in which the defendant resides, the summons or process may
be served by an officer of the Government of such territory,
the summons or process may be sent to such Political Agent, Court or officer through
the Ministry of the Central Government dealing in the external affairs, or such officer as
may be specified in the notification in this behalf by the State Government in the Official
Gazette, and if such Political Agent, Court or other officer specified returns the
summons with an endorsement signed by the Judge or other officer of such Court or
by the other officer specified, that the summons has been served on the defendant in
the manner hereinbefore directed, such endorsement shall be deemed to be evidence
of service.
Kerala (Notfn No B1-3312/58 of 7-4-59).—Rule substituted. The effect of substitution is:

(i) In cls. (a) and (b) after the word "summons" insert "or process".

Regulation 8 of 1965 (w.e.f. 1-10-1967).
For Rule 26, substitute the following, namely:
26. Service in foreign territory through Political Agent or Court or by special

arrangement.—Where—
Political Agent has been appointed or a Court has been established or continued
with power to serve a summons or process issued by a Court under this Code in
any foreign territory in which the defendant resides, or
(b) the State Government has, by notification in the official Gazette, declared, in
such Court of any summons or process issued under this Code by a Court of the
State shall be deemed to be valid service, or
(c) by any arrangement between the Government of the State in which the Court
issuing the summons or process is situate and the Government of the foreign
territory in which the defendant resides, the summons or process can be served
by an officer of the Government of such territory,
the summons or process may be sent to such Political Agent or Court in such manner
as may have been agreed upon or to the proper officer of the Government of the foreign
territory by post or otherwise for the purpose of being served upon the defendant; and,
if the summons or process is returned with an endorsement signed by such Political
Agent or by the Judge or other officer of the Court or by the officer of the Government
of the foreign territory, that the summons or process has been served on the defendant
in manner hereinbefore directed, such endorsement shall be deemed to be evidence of
service:
Provided that the Court issuing the summons shall, if the Government by a notification
in the Official Gazette so directs, send the summons to the Government or other officer
specified in that behalf of the foreign territory in which the Court in respect of which a
declaration has been made by the State Government under Clause (b) is situated and in
which the defendant resides, through the Ministry of the Central Government dealing
with external affairs or such officer as may be specified in the notification in this behalf
for causing the summons to be served upon the defendant by such Court or other
officer specified and if such Court or other officer returns the summons with an
endorsement signed by the Judge or other officer of such Court or by the other officer
specified that the summons has been served upon the defendant in the manner
hereinbefore directed, such endorsement shall be deemed to be evidence of service."
Madhya Pradesh (Notfn No 3409 : 29-6-1943).—Same as in Allahabad.
The following amendments were made by Madhya Pradesh Gazette, dated 16-9-1960.
Insert the words "in addition to or in substitution for the method permitted by Rule 25"
between the words "may" and "be sent".
Madras (Pondicherry).— The following amendments were made by Tamil Nadu Act 26 of
1968, Section 3 and Schedule, Part II dated 21-3-1942 and 28-5-1958.
Substitute the following:
"26. Service in foreign territory through Political Agent or Court or by special

arrangement.—Where—
Political Agent has been appointed or a Court has been established or
continued, with power to serve a summons or process issued by a Court under
this Code in any foreign territory in which the defendant resides, or
(b) the Central Government has, by notification in the Official Gazette, declared, in
continued in the exercise of any such jurisdiction as aforesaid that service by
such Court of any summons or process issued under this Code by a Court in
India shall be deemed to be valid service,
the summons or process may be sent to such Political Agent or Court, or in such
manner as may have been agreed upon to the proper officer of the Government of the
foreign territory by post or otherwise, for the purpose of being served upon the
defendant; and, if the summons or process is returned with an endorsement signed by
such Political Agent or by the Judge or other officer of the Court or by the officer of the
Government of the foreign territory that the summons or process has been served on
the defendant in manner hereinbefore directed, such endorsement shall be deemed to
be evidence of service."
1965.
Proviso added to Rule 26 is the same as introduced in Kerala in 1964.
48 Subs. by Code Of Civil Procedure (Amendment) Act 104 of 1976, Section 55(viii) for rule 26
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 26A. Summonses to be
sent to officers of foreign countries
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 26A.
Summonses to be sent to officers of foreign countries
Where the Central Government has, by notification in the Official Gazette, declared in
respect of any foreign territory that summonses to be served on defendants actually
and voluntarily residing or carrying on business or personally working for gain in that
foreign territory may be sent to an officer of the Government of the foreign territory
specified by the Central Government, the summonses may be sent of such officer,
through the Ministry of the Government of India dealing with foreign affairs or in such
other manner as may be specified by the Central Government; and if such officer
returns any such summons with an endorsement purporting to have been made by
him that the summons has been served on the defendant, such endorsement shall be
deemed to be evidence of service.]
COMMENT.—
The previous rule 26 was substituted by the present rule. This rule contains two types
of provisions for service of summons intended for a defendant resident outside the
territories to which the Code extends. It can either be sent to the Political Agent
appointed by the Central Government or where the State Government has, in respect of
any Court situated in any such territory, declared that service by such Court of
summons issued under the Code shall be deemed to be valid service by sending
summons to such Court. In the latter case, the notification should be issued only by the
Central Government which is exclusively in charge of External Affairs and not by the
State Government because the corresponding section for summonses received from
countries outside India leaves the power to issue notification thereunder to the Central
Government.
Newly added rule 26-A provides for the service of summons through diplomatic
channels to no officer of the foreign country in certain cases.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 27. Service on civil public
officer or on servant of railway company or local authority
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 27.
Service on civil public officer or on servant of railway company or local
authority
Where the defendant is a public officer (not belonging to 49[the Indian] military,
50[naval or air] forces) 51[* * *], or is the servant of a railway company [K] or local
authority, the Court may, if it appears to it that the summons may be most
conveniently so served, send it [AP, B, KNT, K, M]for service on the defendant to the
head of the office in which he is employed, together with a copy to be retained by the
defendant [A].
[Notes 1, 2 and illus. added in All; rule amended in AP, Bom, Kant, Ker & Mad.]
Allahabad.—Add the following as notes 1 and 2 to r 27:—
"Note 1. A list of heads of offices to whom summons shall be sent for service on the
servants of Railway Companies working in whole or in part in these States is given in
Appendix 2 of the General Rules (Civil).
Note 2. In every case where a Court sees fit to issue a summons direct to any public-
servant other than a soldier under Order XVI, simultaneously with the issue of the
summons, notice shall be sent to the head of office in which the person concerned is
employed in order that arrangements may be made for the performance of duties of
such persons.
If the Court sees fit to issue a summons to a Kanungo or Patwari it shall inform the
Collector of the district, and if to a Sub-Registrar it shall inform the District Registrar to
whom the Sub-Registrar is subordinate."
Bombay.—After the words "Send it" insert "by registered post pre-paid for
acknowledgment". (1-11-1966).
Maharashtra Government Gazette., dated 15-9-1983, Part 4 Ka, Page 399, dated 1-10-
1983.
For the existing Rule 27 and its marginal note substitute the following—
"27. Service on Civil Public Officer or on servant of railway company or local authority.
—Where the defendant is a public officer not belonging to the Indian Military, Naval or
Air Forces, or is the servant of a railway company or local authority, the Court may, if it
appears to it that the summons may be most conveniently so served, send it by
registered post pre-paid for acknowledgment for service on the defendant to the head
of the office in which he is employed, together with a copy to be retained by the
defendant."
1967.
"27. Where the defendant is a public officer (not belonging to the Indian Military, Naval
or Air Forces) or is a servant of a railway company or local authority, the Court may, if it
appears to it that the summons may be most conveniently so served, send it by
registered post pre-paid for acknowledgment for service on the defendant to the head
of the office in which he is employed, together with a copy to be sent to the defendant."
Kerala.—(Notn No Bi-3312/58 of 7-4-1959). Rule substituted. The effect of substitution

is:—
(i) for "railway company" read "railway administration",
(ii) after the words "send it" insert "by registered post pre-paid for acknowledgment".

Regulation, 8 of 1965 (w.e.f. 1-10-1967).
For Rule 27, the following rule shall be substituted, namely:
"27. Service on civil public officer or on servant of railway administration or local

authority.—Where the defendant is a public officer (not belonging to the Indian Military,
Naval or Air Forces) or is the servant of a Railway Administration or local authority, the
Court may, if it appears to it that the summons may be most conveniently so served,
send it by registered post pre-paid for acknowledgment for service on the defendant to
the head of the office in which he is employed, together with a copy to be retained by
the defendant."
Madras (Pondicherry).— The following amendments were made by Tamil Nadu Act 28 of
1968, Section 3 and Schedule Part II. (Dis. No. 209 of 1912):
After the words "send it" insert the words "by registered post pre-paid for
acknowledgment".
49 Subs. by the A.O. 1950, for "His Majesty's".

50 Subs. by Code of Civil Procedure (Amendment) Act 10 of 1927, section 2 and Sch. I, for "or
naval".
51 The words "or His Majesty's Indian Marine Service" omitted by Code of Civil Procedure
(Amendment) Act 35 of 1934, section 2 and Sch.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 28. Service on soldiers,
sailors, or airmen
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 28.
Service on soldiers, sailors, or airmen
Where the defendant is a soldier, 52[sailor] 53[or airman], the Court shall send the
summons for service to his commanding officer together with a copy to be retained by
the defendant [A].
[Rule amended in AP, Bom, Knt, Ker & Mad; Rule numbered 28(1) and sub-rules (2), (3),
(4) added in All].
Allahabad (Notn No 1442/59 of 9-3-1927).—(a) Number the present rule as 28(1). (b)
Add the following as sub-rules (2), (3), (4) and (5):
"(2) Where the address of such commanding officer is not known, the Court may apply
to the officer commanding the station in which the defendant was serving when the
cause of action arose to supply such address, in the manner prescribed in sub-rule (4)
of this rule.
(3) Where the defendant is an officer of the Indian military forces, wherever it is
practicable service shall be made on the defendant in person.
(4) Where such defendant resides outside the jurisdiction of the Court in which the suit
is instituted, or outside the States, the Court may apply over the seal and signature of
the Court to the officer commanding the station in which the defendant was residing
when the cause of action arose, for the address of such defendant, and the officer
commanding to whom such application is made shall supply the address of the
defendant or all such information that is in his power to give, as may lead to the
discovery of his address.
(5) Where personal service is not practicable, the Court shall issue the summons to the
defendant at the address so supplied by registered post."
Bombay.—After the words "shall send" insert "by registered post pre-paid for
acknowledgment". (1-11-1966).
Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 399, dated 1-10-
1983.
For the existing Rule 28 and its marginal note substitute the following:
"28. Service on soldiers, sailors, or airmen.—Where the defendant is a soldier, sailor or

airman the Court shall send by registered post pre-paid for acknowledgment the
summons for service to his commanding officer together with a copy to be retained by
the defendant."
1967.
"28. Where the defendant is a soldier, sailor or airman the Court shall send by
registered post pre-paid for acknowledgment the summons for service on the
defendant to his commanding officer together with a copy to be retained by the
defendant."
Kerala (Notfn No B1-3312/58 of 7-4-1959).—Same as in Madras.
Madras (Dis No 209 of 1912).—After the words "shall send" insert "by registered post
pre-paid for acknowledgment".
52 Ins. by Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and Sch.
53 Ins. by Code of Civil Procedure (Amendment) Act 10 of 1927, section 2 and Sch. 1.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 29. Duty of person to whom
summons is delivered or sent for service
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 29.
Duty of person to whom summons is delivered or sent for service
(1) Where a summons is delivered or sent to any person for service under rule 24,
rule 27 or rule 28, [A] such person shall be bound to serve it, if possible, and to
return it under his signature, with the written acknowledgment of the
defendant, and such signature shall be deemed to be evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to
the Court with a full statement of such cause and of the steps taken to produce
service, and such statement shall be deemed to be evidence of non-service.
[Sub-rule (1) amended in All; Rule 29-A added in AP, Knt, Ker & Mad.]
Allahabad (Notfn No 1442/59; 5-3-1927 ).—For "rule 28" read "rule 28(1 )".
Andhra Pradesh (Notfn No Roc No 6842/51-B1; 9-8-1957).—Same as in Madras omitting

"of India".
Karnataka.—Same as in Madras omitting the words "of India" after "military, naval or air
forces". (30-3-1967).
Kerala (Notfn No B1-3312/58 of 7-4-1959 ).—Same as in Madras.
Madras (Dis No 209 of 1912 as amended in 28-5-1958) .— Insert as Rule 29-A:
"29A. Notwithstanding anything contained in the foregoing rules, where the defendant
is a public officer (not belonging to the Military, Naval or Air forces [of India] sued in his
official capacity, service of summons shall be made by sending a copy of the summons
to the defendant by registered post pre-paid for acknowledgment together with the
original summons, which the defendant shall sign and return to the Court which issued
the summons." (Act 26 of 1968, Section 3 and Sch., Pt. II.)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 30. Substitution of letter for
summons
© 2020 LexisNexis
THE FIRST SCHEDULE
Issue of Summons
R. 30.
Substitution of letter for summons
(1) The Court may, notwithstanding anything hereinbefore contained, substitute

for a summons a letter signed by the Judge or such officer as he may appoint
in this behalf, where the defendant is, in the opinion of the Court, of a rank
entitling him to such mark of consideration.
(2) A letter substituted under sub-rule ( 1 ) shall contain all the particulars
required to be stated in a summons, and, subject to the provisions of sub-rule (
3 ) shall be treated in all respects as a summons.
(3) A letter so substituted may be sent to the defendant by post or by a special

messenger selected by the Court, or in any other manner which the Court
thinks fit; and where the defendant has an agent empowered to accept service,
the letter may be delivered or sent to such agent.
[Rr. 31 & 32 added in All; R. 31 added in AP, Ker and Mad; Rr. 31-34 added in Karnataka.]
Allahabad (Notfn No 1953/35 (a) of 22-5-1915 and Notfn No 1953/35 (a)—1(6) of 19-3-
1921).—Add as new rules 31 and 32:
"31. An application for the issue of a summons for a party or a witness shall be made
in the form prescribed for the purpose. No other forms shall be received by the Court.
32. Ordinarily every process, except those that are to be served on Europeans, shall be
written in the Court vernacular. But where a process is sent for execution to the Court in
a district where a different language is in ordinary use, it shall be written in English and
shall be accompanied by a letter in English requesting execution.
In case where the return of service is in a language different from that of the district
from which it is issued, it shall be accompanied by a English translation."
Andhra Pradesh (as amended by Notfn No Roc No 6842/51-B1; 9-8-1957).—Same as in

Madras.
Karnataka.—Add the following as rules 31, 32, 33 and 34:
31. (1) The Court may on the application of the plaintiff and on such terms as to
security or otherwise as the Court thinks fit, dispense with the service of summons on
a defendant who is a resident in a territory belonging to or occupied by a State at war
with the Central Government:
Provided that an order dispensing with the service of summons shall not be made
unless the Court is satisfied that the defendant is a resident in such territory and that
the service of summons on him in the manner prescribed by this Code is not possible.
(2) The Court may before making any such order direct such publication of the
application as it considers necessary in the circumstances.
(3) Where in any suit an order dispensing with the service of summons on a defendant
is made under this rule and a decree or order is passed against him, the Court may on
his application and on such terms as may be just set aside such decree or order and
appoint a day for proceeding with the suit.
(4) The provisions of the first proviso to Rule 13 of Order IX of this Code and the
provisions of Rule 14 of the said Order shall apply to an order setting aside the decree
or order made under sub-rule (3).
(5) The application under sub-rule (3) shall be filed within one year from the date of
cessation of hostilities with the said State.
(6) The provisions of Section 5 of the Limitation Act, 1963 shall apply to applications
under sub-rule (3).
(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal
or a civil revision petition who is resident in such territory as is referred to in sub-rule
(1).
32. Where any party in a suit is represented by a pleader, the plaint or the written
statement as the case may be, shall give the address of the pleader within the local
limits of the city, town or place where the Court is situated and the said address of the
pleader for purposes of all notices and processes issued in the suit. All such notices
and processes in the suit or in any interlocutory matter in the suit shall be sufficiently
served if left by a party or pleader or by a person employed by the defendant or by an
officer or employee of the Court at the said address for service on the party intended to
be served.
33. Unless the Court otherwise directs, notice of an interlocutory application in the suit
need not be served on a party who having been duly served with summons on the main
suit has failed to appear and has been declared ex parte by the Court:
Provided that the Court shall direct such notice to be issued and served on any such
party in application for the amendment of any pleading in the suit, if the Court is of the
opinion that such party may be interested in or affected by the proposed amendment.
34. The provisions of Rules 32 and 33 shall also apply mutatis mutandis to appeals and
revision petitions.
Kerala (Notfn No B1-3312/58 of 7-4-1959).—Same as in Madras with the exception that

in sub-rule (1) for "India" read "the Government".
Madras (R O C No 2108/44 of 29-3-45 as amended on 28-5-1958).—Add the following as

Rule 31:
"31. (1) The Court may, on the application of the plaintiff and on such terms as to
security or otherwise as the Court thinks fit, dispense with the service of summons on
a defendant who is resident in territory belonging to or occupied by a State at war with
[India]:
Provided that an order dispensing with service of summons shall not be made unless
the Court is satisfied that the defendant is resident in such territory and that service of
summons on him in the mode prescribed by the Code is not possible.
(2) The Court may before making the said order direct such publication of the
application as it considers necessary in the circumstances.
(3) Where in any suit an order dispensing with service of summons on a defendant is
made under this rule and a decree or order is passed against him, the Court may on his
application and on such terms as may be just, set aside such decree or order and
appoint a day for proceeding with the suit.
(4) The provisions of the first proviso to rule 13 of order IX, and the provisions or rule
14 of the said Order shall apply to an order setting aside a decree or order under sub-
rule (3).
(5) The application under sub-rule (3) shall be filed within one year from the date of
cessation of hostilities with the State.
(6) The provisions of Section 5 of the Indian Limitation Act, 1908 shall apply to
applications under sub-rule (3).
(7) The provisions of this rule shall apply mutatis mutandis to a respondent in an appeal
or a civil Revision Petition who is resident in such territory as is referred to in sub-rule
(1). R.D.C. No. 2108/44, dated 29-3-1944, as amended on 28-5-1958; Act 26 of 1968,
Section 3 and Sch., Pt. II.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Pleading
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VI Pleadings Generally
R. 1.
Pleading
"Pleading" shall mean plaint or written statement.
COMMENT.—
Meaning of pleading.—
An application to sue as pauper is not a pleading, in as much as it becomes a plaint

only after the application is granted. A defendant's pleading is his written statement.
Where the point, which is ostensively a point of law, is required to be substantiated by
facts, the party must plead and prove such facts. If he is the writ petitioner then he
must plead and prove such facts by evidence which must appear from writ petition and
if he is the respondent, from the counter-affidavit.1
It is not desirable to place undue emphasis on the form of the pleadings. Instead, the
substance of pleadings should be considered. It is imperative that the party should
state the essential material facts so that other party may not be taken by surprise.2
Object of pleading.—
The object and purpose of pleadings and issues is to ensure that the litigants come to
trial with all issues clearly defined and to prevent cases being expanded or grounds
being shifted during trial. Its object is also to ensure that each side is fully alive to the
questions that are likely to be raised or considered so that they may have an
opportunity of placing the relevant appropriation to the issue before the court for its
consideration.3 The main object of pleadings is to narrow the parties to definite issues
and to diminish expense and delay, especially as regard the amount of testimony
required on either side at the hearing.4
The pleadings should be read as a whole to gather true spirit behind it. This does not
distract one from performing his obligations as required under the statute.5
Pleading, necessity.—
In the absence of appropriate pleading on a particular issue there can be no

adjudication of a dispute by a Civil Court.6
No proof can substitute pleadings.—
Where plea as to adverse possession is not raised in pleadings, no amount of proof can
substitute pleadings which are the foundation of claim of a litigating party.7
Importance of pleadings—Principles reiterated.—Pleadings must set forth sufficient

factual details so as to dispel false or exaggerated claim or defence. The court should
ensure discovery and production of documents and proper admission/denial. It should
properly scrutinise pleadings and documents before dealing with the case.8
No person can both approbate and reprobate.—
The law does not permit a person to both approbate and reprobate. This principle is
based on the doctrine of election which postulates that no party can accept and reject
the same instrument and that "a person cannot say at one time that a transaction is
valid and thereby obtain some advantage to which he could only be entitled on the
footing that it is valid, and then turns round and say it is void for the purpose of
securing some other advantage." ". . . After taking an advantage under an order (for
example for the payment of costs) a party may be precluded from saying that it is
invalid and asking to set it aside"—HALSBVRY'S Law of England, 4th Edn vol 16 p 1508).
The petitioner, having given an undertaking in pursuance to the direction given by the
High Court in the judgment and having availed the protection from eviction on the basis
of the said undertaking, cannot be permitted to invoke the jurisdiction of this Court
under Article 136 of the Constitution and assail the said judgment of the High Court.9
The evidentiary or probative value of the documents produced by the opposite party
cannot be pleaded in the written statement.10
Construction of Mofussil pleadings.—
The Mofussil pleadings are not to be construed strictly. Pleadings must be construed in
their entirety.11
Court cannot make out a new case.—
In a suit for partition where the plaintiff claimed only half share in the property, he
cannot be declared owner of entire property. A Court cannot make out a new case
which has not been pleaded.12
Inadequate pleadings, Effect of.—
When parties have given into trial knowing fully well, the issues involved, the
inadequate pleadings, if any, may not be sufficient to set aside the judgment.13
When there was no pleading in the plaint regarding title of the "P", by any other earlier
deed except the claim of inheritance, the trial court rightly discarded the sale deed.
Unless there is a pleading especially with regard to the source of title, the defendant of
a suit has no opportunity to rebut such pleading. Thus, evidence with regard to which
there is no pleading cannot be relied on by the plaintiff for setting up his title in a suit.14
1 Bharat Singh v State of Haryana, AIR 1988 SC 2181 (2186) : (1988) 4 SCC 534 : 1988 BBCJ
184 .
2 Ram Sarup Gupta v Bishun Narain Inter College, AIR 1987 SC 1242 : (1987) 4 SCC 555 .
3 Bachhaj Nahar v Nilima Mandal, AIR 2010 SC 1103 (1105), See also State of Maharashtra v
Hindustan Const Co Ltd, (2010) 4 SCC 518 (524).
4 Firm Gauri Lal Gurdev Dass v Firm Ajaib Singh Harbans Singh, AIR 1960 Punj 62 (DB).
5 Syed Dastagir v TR Gopalkrishna Setty, AIR 1999 SC 3029 (3032) : (1999) 6 SCC 337 .
6 State Bank of India v SN Goyal, AIR 2008 SC 2594 (2601).
7 Abubakar Abdul Inamdar v Harun Abdul Inamdar, AIR 1996 SC 112 : (1995) 5 SCC 612 .
8 A Shanmugam v Ariya Kshatriya Rajakula Yamsahu Madalaya Nandhavana Paripalana Sagam,
AIR 2012 SC 2010 .
9 RN Gosain v Yaspal Dhir, AIR 1993 SC 352 (355) : (1992) 4 SCC 683 ; see also Yerschures
Creameries Ltd v Hull and Netherlands Steamships Co Ltd, (1921) 2 KB 608 (612).
10 Birad Mal Singhvi v Anand Purohit, AIR 1988 SC 1796 (1805) : 1988 Supp SCC 604 .
11 Narain Pd Aggarwal v State of MP, (2007) 11 SCC 736 .
12 Gulabrao Balwantrao Shinde v Chhabubai Balwantrao Shinde, AIR 2003 SC 160 : (2003) 1 SCC
212 .
13 Mundri Lal v Sushila Rani, (2007) 8 SCC 609 (617).
14 Arulmigu Chokkanatha Swamy Koil Trust v Chandran, AIR 2017 SC 1034 : 2017 (2) AJR 353 :
2017 (2) SCALE 747 : 2017 (2) SCJ 575 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Pleading to state
material facts and not evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
15[R. 2.
Pleading to state material facts and not evidence
(1) Every pleading shall contain, and contain only, a statement in a concise form of
the material facts on which the party pleading relies for his claim or defence,
as the case may be, but not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered
consecutively, each allegation being, so far as is convenient contained in a
separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as
in words.]
COMMENT.—
Object of pleadings.—
The provisions as to pleadings are intended:
(i) to give to each side an intimation of the case of the other side, so that the case
may be met,
(ii) to enable the Court to determine what is really at issue between the parties, and
(iii) to prevent deviations from the course which litigation on particular causes
of action must take.16
This rule 2 was substituted by the new rule in order to provide that allegation should be
contained in separate paragraph in the pleadings.
Scope of the rule.—
This rule lays down the fundamental principles of pleading namely:
(i) that a pleading shall contain, and contain only, material facts on which the party
pleading relies;
(ii) that it shall not contain facts which are only evidence by which such material
facts are to be proved.17
The rule of pleadings provides that a plaint must contain material facts.18
The facts constituting corrupt practices must be averred in the petition itself or brought
in by amendment within limitation period. Particulars, illustrative of the corrupt
practices stand on a different footing. Even if there have been initial omissions in
pleading, they can be made up, by Court's leave, at any time.19
It has been held by Supreme Court that where though the pleadings are vague but all
the facts necessary for determining the question were before the Court and the matter
was fully argued and decided by the High Court, it could not be contended before it (the
Supreme Court) that the High Court was wrong in going into the question for want of
necessary pleadings.20
It has been held by the Supreme Court in Madan Gopal v Mamraj, (1977) 1 SCC 669 :
AIR 1976 SC 461 that it is well settled that pleadings are loosely drafted in the Courts,
and the Courts should not scrutinise the pleadings with such meticulous care so as to
result in genuine claims being defeated on trival grounds.
No relief, outside the plaint.—
Without an amendment of the plaint the Court is not entitled to grant the relief not
asked for.21
Only facts and not law.—
A pleading must state only facts and not law. It is always for the Court to find out and
examine all pleas of law that may apply to the facts of the case,22 and the parties can
urge them at any time.
Plea of non-maintainability.—
A plea of non-maintainability of suit is a legal plea. It can be accepted even if no

specific plea was taken or precise issue framed.23
Mixed question of law and fact.—
The question whether an agent can enforce his lien in a particular case is mixed
question of law and fact. Therefore, in the absence of any specific plea, that question
cannot be gone into.24
Applicability of the rule.—
The principle embodied in the rule applies to other petitions e.g., under the
Representation of the People Act, 1951,25 and writ petitions.26
Material facts.—
Material facts are those upon which the plaintiff's cause of action or the defendant's
defence depends, in other words, all those facts which must be proved in order to
establish the existence of a cause of action or defence.27
If a party omits to state a material fact a Court cannot give any decision on such fact.28
Such a party will not be allowed to give evidence of that fact at the trial unless the
pleading is amended under rule 17.29 An application for eviction referring to lease but
not stating that it was "in writing", though in fact it was in writing, cannot be treated as
defective for such omission.30
The suit without material pleadings-effect of.—
A suit was filed for declaration and injunction regarding ownership of suit property
(temple and land). The plaint completely lacked material pleadings and particulars for
claiming a declaration of title over the suit property and permanent injunction.
Moreover, no material factual details were stated in the plaint. Hence, it was held that
the suit is misconceived and an abuse of process of law.31
No evidence in pleadings.—
The proposition that a party should not only state the material facts on which he relies
but also that he should state the evidence on which he relies is not correct in law nor as
one which justice requires. According to rule 2 "every pleading shall contain, and
contain only, a statement in a concise form of the material facts on which the party
pleading relies for his claim or defence, as the case may be, but not the evidence by
which they are to be proved."32
Alternative and inconsistent pleadings.—
A perusal of O I, rule 3 (joinder of defendants), O II, rule 3 (joinder of causes of action)

and O VII, rule 7, (Reliefs that may be stated by the plaintiff) will clearly show that
inconsistent sets of facts may be pleaded and relief claimed in the alternative.33
New view.—
There was a plea in written statement that the suit properties were private properties of
Maharaja and that there was no private or public trust. The case was argued before the
Supreme Court that properties were partly of private trust and partly private property of
Maharaja. The defendant cannot be allowed to set up a case wholly inconsistent with
that pleaded.34
The pleadings of the parties form the foundation of their case and it is not open to
them to give up the case set out in the pleadings and propound a new and different
case.35
Whenever pleadings and documents establish title to a particular property and

possession is in question, it will be for the person in possession to give sufficiently
detailed pleadings, particulars and documents to support his claim in order to continue
in possession. Only if the pleadings are sufficient, would an issue be struck and the
matter sent to trial, where the onus will be on him to prove the averred facts and
documents.36
Pleadings and particulars are necessary to enable the court to decide the rights of the
parties in the trial. Therefore, the pleadings are more of help to the court in narrowing
the controversy involved and to inform the parties concerned to the question in issue,
so that the parties may adduce appropriate evidence on the said issue. It is a settled
legal proposition that as a rule, relief not founded on the pleadings should not be
granted. A decision of a case cannot be based on ground outside the pleadings of the
parties. The pleadings and issues ascertain the real dispute between the parties to
narrow the area of conflict and to see just where the two sides differ.37
Pleadings and proof.—
When variance between pleadings in plaint and evidence adduced occurs, then such
variance can be ignored when the variance does not cause prejudice to defendant, and
does not take him by any kind of surprise, no credence need to be given to the same.38
The pleadings must set forth sufficient factual details to the extent that it reduces the
ability to put forward a false or exaggerated claim or defence. The pleadings must
inspire confidence and credibility. If false averments, evasive denials or false denials
are introduced, then the court must carefully look into it while deciding a case and
insist that those who approach the court must approach it with clean hands. Pleadings
have immense importance. The pleadings need to be critically examined by the judicial
officers or judges both before issuing the ad-interim injunction and/or framing of
issues. The entire journey of a judge is to discern the truth from pleadings, documents
and arguments of the parties. Truth is the basis of justice delivery system.39
A party has to plead his case and adduce sufficient evidence to substantiate his
submissions. In case of incomplete pleadings, the court is under no obligation to
entertain the same. It has been held that in the absence of any specific pleading as to
what document had not been supplied to plaintiff/respondent/delinquent which was
relied upon by inquiry officer, or which witness was not permitted to be cross examined
by him, the finding of trial court that departmental inquiry initiated against plaintiff
respondent was in violation of natural justice is erroneous since the same was based
merely on allegations in plaint which the defendant/appellant corporation had failed to
rebut. It is a settled proposition of law that a party has to plead the case and
produce/adduce sufficient evidence to substantiate his submissions made in the plaint
and in case the pleadings are not complete, the court is under no obligation to enter the
pleas.40
Evidence only on plea raised.—
An ordinary rule of law is that an evidence is to be given only on a plea properly raised
and not in contradiction of the plea.41
Thus, where an inamdar of a village claimed compensation for diversion of water from
a river on the ground of his title to the flowing water there was no allegation as to his
rights as riparian owner, it was held by the Supreme Court that the plaintiff could not
subsequently make out an alternative case of a right as riparian owner.42
Construction of pleadings.—
It is well settled that pleadings should not be construed with strictness. The pleadings
have to be interpreted not with formalistic rigour but with latitude or awareness of law
legal literacy of poor people.43 The Supreme Court has held that it would be slow to
throw out a claim on a mere technicality of pleading, when the substance of the thing is
there, and no prejudice is caused to the other side. It is irrespective of the fact how
much clumsily or inartistically the plaint may be worked. In any event it is always open
to a Court to give a plaintiff such general or other relief as it deems just, to the same
extent as if it had been asked for. It should not prejudice to the other side beyond that
can be compensated for the costs. The method of computation is a matter of law and
it is for the judge to apply the law to the facts stated and give the plaintiff such relief as
is appropriate to the case.44 It has been further held that the substance of the case
should be kept in view and not merely the words used in the pleadings.45
The pleadings must be read in their entirety for the purpose of proper construction
thereof.46
The main relief in the plaint was related to continuance of tenancy under the trust. The
other one was regarding enquiry into the affairs of trust. The plaint was rejected on the
ground that Civil Court had no jurisdiction. The rejection order was liable to be set
aside.47
The mere use of the term "purchaser's advance" cannot alter the substance of the
transaction any more than the mere use of the word "deposit". The fact that the parties
choose to call it this or that is relevant but is not conclusive. In order to determine the
true nature of a transaction it is necessary to view it as a whole and to consider other
factors.48
Mere raising of plea without factual basis is not sufficient for the purpose of raising an
issue.49
Absence of pleadings—effect of.—
The defendant cannot build up a case on subtenancy where no clear plea regarding
sub-tenancy in written statement was taken and no evidence led in relation thereto
could be looked into.50
Where no cause of action was constituted.—
In a case the plaintiff merely alleged that the goods were not supplied gratuitously. The
other two essential features to constitute a cause of action under section 70 of the
Contract Act, 1872 lacked. The cause of action was not constituted. The Court erred in
allowing the plaintiff to go to trial with a claim under section 70 of the Contract Act.
The respondent became entitled to compensation for the goods accepted by the
defendant.51
If the material facts constituting cause of action has not been averred in the plaint then
the suit must fail. In a suit for setting aside dismissal of an employee as illegal, the
material facts necessary to constitute a cause of action about the illegality of the
dismissal had not been averred in the plaint. The suit is liable to be dismissed.52
Failure to object.—
It has been held by the Supreme Court that where a party is not taken by surprise and
the parties go to trial fully understanding the question at issue, the non-framing of an
issue will not vitiate the decision. Where the landlord pleaded sub-letting and the tenant
understood it to imply all the incidents of subletting including rent, it cannot be said
that there was no pleading about payment of consideration for the sub-lease.53
Plea if not specifically made even if not fatal.—
If a plea is not specifically made, yet it is covered by an issue by implication, and the
parties knew that the said plea was involved in the trial, then the mere fact that the plea
was not expressly taken in the pleading would not necessarily disentitle a party from
relying upon it, if it is satisfactorily proved by evidence.54
The defendant in the written statement sets up title to the disputed lands as the
nearest reversioner. If he fails to prove his case then the Court cannot make out a new
case for him which is neither made out in the written statement nor is consistent with
the title set up by the defendant.55
If a party asks for relief on a clear and specific ground, and in the issues or at the trial,
no other ground is covered either directly or by necessary implication, it would not be
open to the said party to attempt to sustain the same claim on the ground which is
entirely new. But in considering the application of this doctrine Court must bear in mind
that consideration of form cannot override the legitimate consideration of substance.56
Finding is not justified if it goes beyond pleadings and evidence.—
The plaintiff expressly pleaded that the temple was dedicated for worship of general
public. The defendant merely pleaded temple and idol to be private. The finding that the
temple was dedicated to the members of the family goes beyond the pleadings and
evidence. Such a finding is not justified.57
In a suit of declaration of title the defendants in written statement, only denied that the
adoption was in dwyamnshyayana form. In the absence of any pleading whatsoever on
the question as to who gave the child in adoption, father or brother, the Court could not
have gone into the same even if some evidence was adduced.58
Sale of patni interest by plaintiff.—
The plaintiff sold the patni interest. The purchaser resettled some lands with the
plaintiff. The plaintiff was paying rent to the purchaser of Patni and the purchaser was
treating the plaintiff as tenant. The purchaser of touzi had no right to question
plaintiff's interest. He could not be said to be prejudiced in absence of specific pleading
so as to resettlement, in plaintiff's suit for declaration against purchaser of touzi.59
15 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 56, for rule 2 (w.e.f.
1-2-1977).
16 Ganesh Trading Co v Moji Ram, AIR 1978 SC 484 : (1978) 2 SCC 91 : (1978) 2 SCR 614 .
17 RM Seshadri v Fasantna Pai, AIR 1969 SC 692 : (1969) 1 SCC 27 : (1969) 2 MLJ 50 .
19 Fatal Nagraj v R Dayanand, AIR 1975 SC 349 (352) : (1975) 4 SCC 127 .
20 UOI v Khas Karampura Colliery Co Ltd, AIR 1969 SC 125 .
21 Trojan & Co v Nagappa, AIR 1953 SC 235 (240) : 1953 SCR 789 : (1953) 1 MLJ 729 .
22 Kedarlal Swel v Hari Lal Swal, AIR 1952 SC 47 (51) : 1952 SCR 179 .
23 State of Rajasthan v Kalyan Singh, AIR 1971 SC 2018 : (1972) 4 SCC 165 .
24 Ram Prasad v State of MP, AIR 1970 SC 1818 (1821) : (1969) 3 SCC 24 .
25 Trilochan Singh v Kareail Singh, AIR 1968 Punj 416 (FB).
26 Bai Hira Laxmi v Municipal Corporation, Ahmedabad, AIR 1967 Guj 198 .
27 Nayak Vajesingji v Secretary of State for India, AIR 1924 PC 206 ; Dalip Singh v Uttam Singh,
AIR 1971 Punj 329 .
28 Guppulal v Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291 : (1969) 1 SCC 792 .
29 (1971) SCD 1146 .
30 SB Noronah v Prem Kumari Khanna, AIR 1980 SC 193 (195) : (1980) 1 SCC 52 .
31 State of Uttarakhand v Mandir Sri Lakshman Sidh Maharaj, AIR 2017 SC 4472 : 2017 (11)
SCALE 380 : 2018 (126) ALR 26 .
32 Manphul Singh v Surinder Singh, AIR 1973 SC 2158 (2160) : (1973) 2 SCC 599 .
33 SM Karim v Bibi Sakina, AIR 1964 SC 1254 : (1964) 6 SCR 780 : 1964 BLJR 581 .
34 Goswami S Mahalaxmi Yahuji v Shah Ranchhoddas, AIR 1970 SC 2025 (2028) : (1969) 2 SCC
853 .
35 Vinod Kumar Arora v Surjit Kaur, AIR 1987 SC 2179 (2183) : (1987) 3 SCC 711 .
36 Maria Margarida Sequeria Fernandes v Erasmo Jack de Sequeria, AIR 2012 SC 1727 (Para 67,
70, 80, 81, 86, 87).
37 National Textile Corporation Ltd v Naresh Kumar Badri Kumar Jagad, AIR 2012 SC 264 . See
also Trojan and Company v RM NN Nagappa Chettiar, AIR 1953 SC 235 .
38 Gian Chand and Bros. v Rattan Lal, (2013) 2 SCC 606 .
39 A Shanmugam v Ariya Kshatriay Rajakula Yamsahu Madalaya Nandhavana Paripalanai Sagam,
AIR 2012 SC 2010 (para 27).
40 Rajasthan SRTC v Bajrang Lal, (2014) 4 SCC 693 ; Larsen and Toubro Ltd v State of Gujarat,
AIR 1998 SC 1608 .
41 Om Prabha Jain v Abnash Chandra, AIR 1968 SC 1083 (1086); Bhagwan Datta Shastri v Ram
Ratanji, AIR 1960 SC 200 (referred to).
42 SNRanade v UOI, AIR 1964 SC 24 (28) : (1964) 2 SCR 885 .
43 Manjushri v BL Gupta, AIR 1977 SC 1158 (1161).
44 Kedar Lal v Hari Lal, AIR 1952 SC 47 (50, 51) : 1952 SCR 179 : (1952) 1 MLJ 431 .
45 Harish Chandra Bajpai v Triloki Singh, AIR 1957 SC 444 : 1957 SCR 370 : 12 ELR 461.
46 T Yijendradas v M Subramanian, (2007) 8 SCC 751 .
47 Sopan Sukhdeo Sable v Asstt Charity Commr, AIR 2004 SC 1801 (1805).
48 Delhi Cloth & Gen Mills v Harnam Singh, AIR 1955 SC 590 (594) : (1955) 2 SCR 402 : 57 Punj
LR 313.
49 DM Deshpande v Janardhan Kashinath Kadam, AIR 1999 SC 1464 (1466).
50 Bondar Singh v Nihal Singh, AIR 2003 SC 1905 (1908) : (2003) 4 SCC 161 .
51 UOI v Sita Ram, AIR 1977 SC 329 (331) : (1976) 4 SCC 505 : (1977) 1 SCR 979 .
52 HD Vashishta v Glaxo Laboratories, AIR 1979 SC 134 : (1978) 1 SCC 170 : 1979 Lab IC 11 .
53 Rajbir Kaur v S Chokosiri & Co, AIR 1988 SC 1845 (1857).
54 Kunju Kesavan v MM Phillip, AIR 1964 SC 164 (169) : 1956 SCR 451 : (1956) Mys 152.
55 Sheodhari Rai v Suraj Pd Singh, AIR 1954 SC 758 (760).
56 Bhagwati Prasad v Chandramoul, AIR 1966 SC 735 (738) : (1966) 2 SCR 286 : 1966 ALJ 799 :
(1966) 1 All 796 .
57 Deokinandan v Murlidhar, AIR 1957 SC 133 (142) : 1956 SCR 756 .
59 Gunendra Nath v Satish Chandra, AIR 1953 SC 42 (46) : 1953 SCR 277 ; see also Firm
Sriniwas Ram Kumar v Mahabir Prasad, AIR 1951 SC 177 : 1951 SCR 277 : 1951 ALJ (SC) 64.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Forms of pleading
© 2020 LexisNexis
THE FIRST SCHEDULE
60R. 3.
Forms of pleading
The forms in Appendix A when applicable, and where they are not applicable forms of
the like character, as nearly as may be, shall be used for all pleadings.
Amendment of First Schedule.—In the First Schedule to the Code, in Order VI, after Rule
3, the following Rule shall be inserted, namely:—
"3A. Forms of pleading in Commercial Courts.—In a Commercial Dispute, where forms

of pleadings have been prescribed under the High Court Rules or Practice Directions
made for the purposes of such commercial disputes, pleadings shall be in such forms."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Particulars to be given
where necessary
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Particulars to be given where necessary
In all cases in which the party pleading relies on any misrepresentation, fraud, breach
of trust, wilful default, or undue influence, and in all other cases in which particulars
may be necessary beyond such as are exemplified in the forms aforesaid, particulars
(with dates and items if necessary) shall be stated in the pleading.
[Rule 4-A added in AP, Kerala and Mad; Rule renumbered as sub-rule (1) and sub-rule (2)
added in Karnataka.]
Karnataka.—Renumber r 4 as r 4(1) and add following as sub-r (2):—
"(2) In a suit for infringement of a patent, the plaintiff shall state in his plaint or annexed
thereto the particulars of the breaches relied upon, and the defendant if he disputes the
validity of the patent shall state in his written statement or annex thereto the
particulars of the objections on which he relies in support of such invalidity; at the
hearing of any such suit no evidence, shall, except with the leave of the Court (to be
given upon such terms as to the Court may seem just), be admitted in proof of any
alleged infringement or objections not raised in the particulars of breaches or
objections respectively." (30-3-1967).
Kerala (Notfn No B1-3312/58 of 7-4-1959 ).—Same as in Madras.
1984 Section 6, dated 14-8-1984.
In Order VI, after Rule 4, insert the following:
"4-A. Particulars of pleading for agricultural land.—In any suit or proceeding

contemplated under Rule 3-B of Order I the parties, other than the State Government
shall plead the particulars of total agricultural land which is owned, claimed or held by
them in any right and shall further declare whether the subject-matter of suit or
proceeding is or is not covered by Madhya Pradesh Ceiling on Agricultural Holdings
Act, 1960 (No. 20 of 1960) and whether any proceedings in relation to such subject-
matter are to the knowledge of the party pending before the competent authority."
Madras (R O C No 2770/44).—Add the following as r 4-A:
"4-A. (1) In a suit for infringement of a patent, the plaintiff shall state in his plaint or
annex thereto the particulars of breaches relied upon.
(2) In any such suit the defendant if he disputes the validity of the patent shall state in
his written statement or annex thereto the particulars of the objections on which he
relies in support of such invalidity.
(3) At the hearing of any such suit no evidence shall, except by leave of the Court (to be
given upon such terms as to the Court may seem just), be admitted in proof of any
alleged infringement or objections not raised in the particulars of breaches or
objections respectively."
COMMENT.—
The rule requires that wherever necessary, particulars of material facts must always be
given. "Particulars" may be described as the details of the case set up. The object of
particulars is two-fold:
(i) to enable the opposite party to know what the case has to meet and thus to
prevent a surprise at the trial; and
(ii) to limit the generality of the pleadings and so to define and limit the issues to be
tried and thus save necessary expense.
The notice cannot be taken on such an allegation which is devoid of any particular. No
issue can be raised on a plea which lacks the foundation.61
Allegations of collusion.—
It is not enough to state in general term that there was "collusion" without more
particulars.62 The general allegations are insufficient even to amount to an averment of
fraud of which any Court ought to take notice, however strong the language in which
they are couched, may be, and same applies to undue influence and coercion. Though
the pleas of undue influence and coercion may overlap in part in some cases, they are
separable categories in law. They must be separately pleaded.
In case of fraud, undue influence and coercion the parties pleading it must set forth full
particulars and the case can only be decided on the particulars as laid. There can be no
departure from them in evidence. General allegations are insufficient even to amount to
an averment of fraud of which any Court ought to take notice, however, strong the
language in which they are couched, may be. The same applies to undue influence and
coercion.63
Corrupt practice by undue influence.—
A party relying on the plea of undue influence should give particulars in the pleadings.
The reason of the rule is: A plea that a transaction is vitiated because of undue
influence of the other party thereto, gives notice merely that one or more of a variety of
insidious forms of influence were brought to bear upon the party pleading undue
influence, and by exercising such influence an unfair advantage was obtained over him
by the other. A vague or general plea can never serve the purpose. The party pleading
must be required to plead the precise nature of the influence exercised, the manner of
use of the influence and the unfair advantage obtained by the other. This rule has been
evolved to narrow the issue and protect the party charged with improper conduct from
being taken by surprise.64
This rule lays down that in all cases in which the party pleading relies on any
misrepresentation, fraud, breach of trust, willful default or undue influence, such
circumstances are to be stated in the pleading.
The pleading of a case of fraud is not necessary where fraud is apparent from the face
of record and void ab initio of consent decree obtained by collusion.65
Where a contract or settlement is alleged to be vitiated by fraud or misrepresentation,

particulars thereof must be pleaded specifically and clearly.66
Thus, in suits on the basis of Fraud, the allegation of fraud must be clear, definite and
specific. General allegations of fraud, however, strong the words in which they are
stated may be, if unaccompanied by particulars, are insufficient to amount to an
averment of fraud which any Court ought to take notice.
Under rule 4 the particulars have to be furnished of the plea of fraud or misconduct
raised in accordance with O VI rule 2 of Code of Civil Procedure and it is not
permissible to introduce by way of particulars a plea of fraud or misconduct other than
that has been raised in the pleadings.67
Averments made in the petition with regard to demand of dowry and beatings by the
husband and his family members to the Appellant and the fact that the Appellant used
to be kept without food are sufficient averments within the meaning of O VI rule 4 of
the Code of Civil Procedure and it cannot be said that the Petition was bad for non-
compliance of O VI rule 4 of Code of Civil Procedure.68
In a suit for revocation of Gift Deed on the ground of fraud and undue influence, no
particulars regarding (alleged) fraud/undue influence played/exercised by the
defendants had been given in the plaint and was also conspicuously silent regarding
the same. Plaint was also silent as to what and when were the representations made
by the donees which led donor to execute Gift Deed which were ultimately found to be
false. So also, no averments are made in the plaint that the donees were in a position to
dominate the will of the donor and used that position to obtain unfair advantage.
Therefore, it was held that the plaint filed by the deceased plaintiff lacks in material
particulars and in such circumstances no issue can be settled between the parties
regarding fraud/undue influence.69
Effect of failure to make specific plea of "undue influence".—
It was held that where the plaintiff fails to make specific allegation of undue influence
but the facts on record justify inference of undue influence then in such a case, all that
the court has to see is that there is no surprise or prejudice caused to the defendant.70
It is provided in O VI rule 4 that plea of fraud, misrepresentation and collusion has to be

specifically set out in pleadings before any findings can be given on the same. Where
there is no evidence on record substantiating plea which itself was not taken, then it
was gross illegality to give a finding that auction sale was held fraudulently and in
collusion.71
Similarly, particulars of the specific acts constituting breach of trust be given, so as to

enable a plaintiff to get relief. Where the negligence or contributory negligence is
charged, full details must be given of the acts on which the party pleading relies as
constituting negligence. Where an agreement is alleged, the pleading should state the
date of the agreement, the name of the parties to it and whether it was in writing or
verbal. If it is an implied agreement, it should appear from what fact or circumstances
it is to be implied. In case of Defamation or Slander, the plaintiff must give particulars
of the name of the person to whom the alleged slander was made.
Where requisite allegations were not in the plaint, no equity relief could be
granted.—
The plaintiff-appellant brought a suit for specific performance of a covenant for

reconveyance. His plaint did not contain the requisite allegation that he is ready and
willing to specifically perform his part as required by Form 47 & 48 of Sch I. Equitable
relief could not be granted.72
Scrutinising pleadings.—
Before examining whether undue influence was exercised or not, the Court must
scrutinise pleadings. It has to find out that a plea has been made out and that full
particulars thereof have been given.73
61 Larsen & Toubro Ltd v State of Gujarat, AIR 1998 SC 1608 (1613) : (1998) 4 SCC 387 : (1998)
92 CC 373 .
62 Varanasi S Vishwavidyalaya v Raj Kishore, AIR 1977 SC 615 (618) : (1977) 1 SCC 279 : 1977
Lab IC 290 .
63 Bishundeo v Seogeni Rai, AIR 1951 SC 280 (283) : 1951 SCR 548 : 30 Pat 947.
64 Ladli Prasad v Karnal Distillery, AIR 1963 SC 1279 (1288) : (1964) 1 SCR 270 : (1963) 33 CC
593 ; Bharat D Syndicate v H Chandra, AIR 1937 PC 146 ; Vishundeo v Seogeni Rai, AIR 1951 SC
280 relied on.
65 Lachhman Dass v Jagat Ram, (2007) 10 SCC 448 .
66 Ranganaya Kamma v KS Prakash, (2008) 15 SCC 673 .
67 Bijendra Nath Srivastava v Mayank Srivastava, AIR 1994 SC 2562 (2570, 2571) : (1994) 6 SCC
117 .
68 Mamta Vaishnav v Govindas Vaishnav, AIR 2012 Chattishgarh 95.
69 Sehdev Singh Yerma v JPS Yerma, AIR 2016 Del 1 .
70 Joseph John Peter Sandy v Veronica Thomas Rajkumar, AIR 2013 SC 2028 .
71 Siddagangaih v NK Giriraja Shetty, AIR 2018 SC 3080 : 2018 (7) SCALE 556 : (2018) 7 SCC
278 .
72 Abdul Khader Rowther v PK Sara Bhai, AIR 1990 SC 682 (684) : (1989) 4 SCC 313 ; Ouseph
Varghese v Joseph Aley, AIR 1968 SC 1355 followed.
73 Subhas Chandra v Ganga Prasad, AIR 1967 SC 878 (881) : (1967) 1 SCR 331 ; see also
Kuppuswami Chettiar v Arumugam, AIR 1967 SC 1395 : (1967) 1 SCR 275 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5. Further and better
statement, or particulars
© 2020 LexisNexis
THE FIRST SCHEDULE
74[R. 5.
Further and better statement, or particulars
* * * * *].
HIGH COURT AMENDMENTS UNDER THE REPEALED RULE
74 R. 5 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, before its omission it stood as under:
'A further and better statement of the nature of the claim or defence, or further and better
particulars of any matter stated in any pleading, may in all cases be ordered, upon such terms,
as to costs and otherwise, as may be just.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Condition precedent
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Condition precedent
Any condition precedent, the performance or occurrence of which is intended to be

contested, shall be distinctly specified in his pleading by the plaintiff or defendant, as
the case may be; and, subject thereto, an averment of the performance or occurrence
of all conditions precedent necessary for the case of the plaintiff or defendant shall
be implied in his pleading.
COMMENT.—
It is not necessary for a party to plead expressly the performance of a condition

precedent. It will be implied in his pleading in view of this rule. A condition precedent
does not form part of the cause of action. It is some formality attached to the cause of
action, until the performance of which the right of action is suspended. But whenever a
condition precedent goes to the root of the matter, it is proper and safer to allege
performance of it in the plaint. For instance, in the case of a claim on a cheque, an
allegation of notice of dishonour or of facts excusing such notice was held essential.
The Supreme Court in Veeraya v NS Chowdhury, (1966) 2 SCJ 789 observed as follows:
In a suit for specific performance, the plaintiff must aver in his plaint that he was ready and
willing to perform his part of the contract and if the said averment is traversed, he must
prove the said averment.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Departure
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Departure
No pleading shall, except by way of amendment, raise any new ground of claim or
contain any allegation of fact inconsistent with the previous pleadings of the party
pleading the same.
COMMENT.—
A departure takes place when in any pleadings the party deserts the ground that he
took up in his previous pleading and resorts to another, a different ground. The object
of this rule is to prevent such a departure. The provisions of this rule apply also to
minors. Hence, when a guardian ad litem representing a minor defendant files a written
statement and the minor attain majority during the pendency of the suit, he cannot
claim to file a fresh written statement so as to supersede that filed by his guardian ad
litem.
A plaintiff claimed a house on the basis of patta standing in his name. He was unable
to prove that the patta was issued in his name because consideration was paid by him.
In view of the evidence the plaintiff was allowed to prove that though consideration
was not paid by him, yet he alone was entitled to suit house.75
A plaintiff will not be allowed to raise a new ground of claim inconsistent with that
stated in the plaint.
Inconsistent Pleas, permissibility.—
A defendant may raise inconsistent pleas so long as they are not mutually
destructive.76
Inconsistent and alternative pleas, distinguished.—
When a person is in possession asserting to be the owner, even if he fails to establish

his title, his possession would still be adverse to the true owner. Therefore, where the
defendant puts forth two pleas, in a case, they may not be inconsistent pleas but
alternative pleas available on the same facts.77
75 Bhim Singh v Kan Singh, AIR 1980 SC 727 (731) : (1980) 3 SCC 72 .
76 Bishwanath Agrawal v Sabitri Bera, (2009) 15 SCC 693 (700).
77 LN Aswathama v P Prakash, (2009) 13 SCC 229 (238).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Denial of contract
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Denial of contract
Where a contract is alleged in any pleading, a bare denial of the same by the opposite
party shall be construed only as a denial in fact of the express contract alleged or of
the matters of fact from which the same may be implied, and not as a denial of the
legality or sufficiency in law of such contract.
COMMENT.—
The provisions of this rule and rule 2 of O VIII, leave no doubt that the party denying
merely factum of contract and not alleging its unenforceability in law must be held
bound by the pleadings and be precluded from raising the illegality or validity of the
contract.78
A plea that the agreement is void by reason of non-compliance with a constitutional

formality (section 175(3)) of Government of India Act, 1935 then in force), is not taken
in the written statement. It cannot be taken by the Government several years after filing
the written statement.79
In view of the provisions of O VI, rule 8 and O VIII, rule 2 the appellant would be
debarred from raising the point for the first time before the Supreme Court or even
before the High Court. The appellant cannot be allowed to raise the plea for the first
time in the Supreme Court. The High Court ought not to have entertained it at the stage
of the application for a certificate of fitness to be granted for leave of appeal to the
Supreme Court.80
78 Kalyanpur LW Ltd v State of Bihar, AIR 1954 SC 165 (168) : 1954 SCR 958 : (1954) 1 MLJ 305
.
79 UOI v Surjit Singh Atwal, AIR 1979 SC 1701 (1703) : (1979) 1 SCC 520 .
80 Nirod Baran Banerjee v Dy Commr, Hazaribagh, AIR 1980 SC 1109 (1111) : (1980) 3 SCC 5 :
(1980) 80 BLJR 238 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Effect of document to be
stated
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Effect of document to be stated
Wherever the contents of any document are material, it shall be sufficient in any
pleading to state the effect thereof as briefly as possible, without setting out the
whole or any part thereof, unless the precise words of the document or any part
thereof are material.
COMMENT.—
Whereas material fact is mentioned in a document, it is sufficient under this rule to

state the effect of the document as briefly as possible without setting out the whole or
any part thereof.
It is not enough for a party to say simply that by virtue of a certain deed he is entitled to
the property claimed by him. The party is bound to state the nature of the deed on
which he relies in deducing the title.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Malice, Knowledge, etc.
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Malice, Knowledge, etc.
Wherever it is material to allege malice, fraudulent intention, knowledge or other

condition of the mind of any person, it shall be sufficient to allege the same as a fact
without setting out the circumstances from which the same is to be inferred.
COMMENT.—
It has been held by the Supreme Court in Amar Chand Inani v UOI, AIR 1973 SC 313 :
(1973) 1 SCC 115 : (1973) 2 SCR 684 that a suit instituted by the presentation of a
plaint in pursuance of an order passed under O VII, rule 10, Civil Procedure Code,
cannot be said to be continuation of the suit as instituted in the Court which had no
jurisdiction to entertain it.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Notice
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Notice
Wherever it is material to allege notice to any person of any fact, matter or thing, it
shall be sufficient to allege such notice as a fact, unless the form or the precise terms
of such notice, or the circumstances from which such notice is to be inferred, are
material.
COMMENT.—
An order rejecting a plaint under this rule for non-payment of additional Court-fee
demanded is appealable as a decree.
Accordingly, it was held by the Supreme Court in Shamsher Singh v Rajindar Prasad, AIR
1973 SC 2384 : (1973) 2 SCC 524 : (1974) 1 SCR 322 as follows:-
the plaint was rejected under Order VII, Rule 11 of the Civil Procedure Code. Such an order
amounts to a decree under Section 2(2) and there is a right of appeal open to the plaintiff.81
81 AIR 1973 SC 2384 at page 2386 : (1973) 2 SCC 524 : (1974) 1 SCR 322 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Implied contract, or
relation
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Implied contract, or relation
Whenever any contract or any relation between any persons is to be implied from a
series of letters or conversations or otherwise from a number of circumstances, it
shall be sufficient to allege such contract or relation as a fact, and to refer generally to
such letters, conversations or circumstances without setting them out in detail. And if
in such case the person so pleading desires to rely in the alternative upon more
contracts or relations than one as to be implied from such circumstances, he may
state the same in the alternative.
COMMENT.—
Where no express contract was pleaded in the plaint but what was clearly pleaded was
supply of goods by the plaintiff on its own account and acceptance of them by the
defendants for payment to the plaintiff, it is called an implied contract. It is a pleading
of direct contract of sale between the plaintiff and the defendants brought about by
their conduct.82
82 Haji Mohd Ishaq v Mohd Iqbal & Mohd Ali, AIR 1978 SC 798 (801) : (1978) 2 SCC 493 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Presumptions of law
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Presumptions of law
Neither party need in any pleading allege any matter of fact which the law presumes
in his favour or as to which the burden of proof lies upon the other side unless the
same has first been specifically denied eg (consideration for a bill of exchange where
the plaintiff sues only on the bill and not for the consideration as a substantive ground
of claim).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Pleading to be signed
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Pleading to be signed
Every pleading shall be signed by the party and his pleader (if any):
Provided that where a party pleading is, by reason of absence or for other good cause,
unable to sign the pleading, it may be signed by any person duly authorised by him to
sign the same or to sue or defend on his behalf.
Karnataka.—The following amendments were made by Karnataka Act, dated 30-3-1967.
In Order VI, Rule 14, renumber existing Rule 14(2) and insert the following as sub-rule
(1) to Rule 14:—
(1) Every pleading shall contain the party's full address for service, that is to say, full
address of his place of residence as well as place of business, if any, in addition to his
pleader's address for service as required by Rule 32 of Order V of this Code. Such
address for service furnished by the party, unless a change therein has been notified to
the Court by filing a memorandum to that effect, shall be presumed to be his correct
address for service for purposes of suit, any appeal or revision or other proceeding
directed against the decree or order passed in that suit. When a memorandum of
change of address is filed by any party, a note to that effect shall be made in the cause
title of the pleading and if the pleading happens to be the written statement also in the
cause title of the plaint.
COMMENT.—
Where suits are instituted or defended on behalf of a public corporation, public interest
should not be permitted to be defeated on a mere technicality. Procedural defects
which do not go to the root of the matter should not be permitted to defeat a just
cause. Dismissal of a suit by bank for recovery of loan on ground of plaint being not
signed and verified by competent person, is not proper.83
83 Union Bank of India v Naresh Kumar, AIR 1997 SC 03 (05, 06).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 14A. Address for service
of notice
© 2020 LexisNexis
THE FIRST SCHEDULE
84[R. 14A.
Address for service of notice
(1) Every pleading, when filed by a party, shall be accompanied by a statement in

the prescribed form, signed as provided in rule 14, regarding the address of the
party.
(2) Such address may, from time to time, be changed by lodging in Court a form
duly filled up and stating the new address of the party and accompanied by a
verified petition.
(3) The address furnished in the statement made under sub-rule (1) shall be called
the "registered address" of the party, and shall, until duly changed as aforesaid,
be deemed to be the address of the party for the purpose of service of all
processes in the suit or in any appeal from any decree or order therein made
and for the purpose of execution, and shall hold good, subject as aforesaid, for
a period of two years after the final determination of the cause or matter.
(4) Service of any process may be effected upon a party at his registered address
in all respects as though such party resided thereat.
(5) Where the registered address of a party is discovered by the Court to be

incomplete, false or fictitious, the Court may, either on its own motion, or on
the application of any party, order—
(a) in the case where such registered address was furnished by a plaintiff,
stay of the suit, or
(b) in the case where such registered address was furnished by a

defendant, his defence be struck out and he be placed in the same
position as if he had not put up any defence.
(6) Where a suit is stayed or a defence is struck out under sub-rule (5), the plaintiff
or, as the case may be, the defendant may, after furnishing his true address,
apply to the Court for an order to set aside the order of stay or, as the case may
be, the order striking out the defence.
(7) The Court, if satisfied that the party was prevented by any sufficient cause
from filing the true address at the proper time, shall set aside the order of stay
or order striking out the defence, on such terms as to costs or otherwise as it
thinks fit and shall appoint a day for proceeding with the suit or defence, as the
case may be.
(8) Nothing in this rule shall prevent the Court from directing the service of a
process at any other address, if, for any reason, it thinks fit to do so.]

Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 400, dated 1-10-
1983. For the existing sub-rules (1) to (4) substitute the following:
14-A. Address for service of notice.—(1) Every pleading, when filed by a party, shall be
accompanied by a statement in the prescribed form, signed as provided in Rule 14,
regarding the address of the party. Parties subsequently added shall immediately on
being so added file a memorandum in writing of this nature.
(2) Such address may, from time to time, be changed by lodging in Court a form duly
filled up and stating the new address of the party and accompanied by a verified
petition. Notice of such change shall be given to such other parties as the Court may
deem it necessary and the form showing the change may be served either on the
pleaders of such parties or be sent to them by registered post pre-paid for
acknowledgment as the Court thinks fit.
(3) The address furnished in the statement made under sub-rule (1) shall be called the
"registered address" of the party, and shall, until duly changed as aforesaid, be deemed
to be the address of the party for the purpose of service of all processes in the suit or
in any appeal from any decree or order therein made and for the purpose of execution,
and shall hold good, subject as aforesaid, for a period of six years after the final
determination of the cause or matter.
(4) (i) Where a party is not found at the registered address and no agent or adult male
member of his family, on whom a notice or process can be served is present; a copy of
the notice or process shall be affixed to the outer door of the house. If on the date fixed
such party is not present, another date shall be fixed and a copy of the notice,
summons or other process shall be sent to the registered address of that party by
registered post pre-paid for acknowledgment (which pre-payment, shall be made within
one month from the date originally fixed for hearing) and such service shall be deemed
to be as effectual as if the notice or process had been personally served.
(ii) Where a party engages a pleader, notice of process issued against the party shall be
served in the manner prescribed by Order III, Rule 5, unless the Court directs service at
the registered address of the party.
(5) Where the registered address of a party is not filed within the specified time or is
discovered by the Court to be incomplete, false or fictitious, the Court may, either on its
own motion, or on the application of any party, order:
(a) in case where the default in furnishing registered address is by the plaintiff or
where such registered address was furnished by a plaintiff, rejection of the
plaint, or
(b) in case where the default in furnishing registered address is by the defendant or
where such registered address was furnished by a defendant, his defence is
struck out and he be placed in the same position as if he had not put any
defence.
(6) Where a plaint is rejected or defence is struck out under sub-rule (5), the plaintiff or
as the case may be, the defendant after furnishing his true address, apply to the Court
for an order to set aside the rejection of the plaint or as the case may be, the orders
striking out the defence.
(7) The Court if satisfied that the party was prevented by any sufficient cause from
filing the true address at the proper time, shall set aside the rejection of the plaint or
order striking out the defence, on such terms as to costs or otherwise as it thinks fit
and shall appoint a day for proceeding with the suit or defence as the case may be.
(8) Where a party is not found at the registered address and no agent or adult member
of his family on whom a notice or process can be served is present, a copy of the
notice or process shall be affixed to the outer door of the house. If on the date fixed
such party is not present, another date shall be fixed and a copy of the notice,
summons or other process shall be fixed and a copy of the notice, summons or other
process shall be sent to the registered address of that party by registered post prepaid
for acknowledgment (which pre-payment shall be made within one month from the
date originally fixed for hearing) and such service shall be deemed to be as effectual as
if the notice or process had been personally served.
(9) Where the Court has struck out the defences under sub-rule (5) and has
consequently passed a decree or an order, the defendant or the opposite party as the
case may be, may apply to the Court by which the decree or order was passed for an
order setting aside the decree or order and if he files a registered address and satisfies
the Court that he was prevented by any sufficient cause from filing the address, the
Court shall make an order setting aside the decree or order against him upon such
terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding
with the suit or proceeding provided that where the decree or order is of such a nature
that it cannot be set aside as against such defendant or opposite party only, it may set
aside as against all or any of the defendants or opposite party.
(10) Nothing in this rule shall prevent the Court from directing service of a process at
any other address, if for any reason, it thinks fit to do so.
(11) Where a party engages a pleader, a notice or process issued against the party
shall be served in the manner prescribed by Order III, Rule 5 unless the Court directs
service at the registered address of the party.
West Bengal Act, dated 25-7-1928.
Insert the following:
"R. 14A.—Every pleading when filed shall be accompanied by a statement in a

prescribed form, signed as provided in Rule 14 of this Order, of the party's address for
service. Such address may from time to time be changed by lodging in Court a form
duly filled up and stating the new address of the party and accompanied by a verified
petition. The address so given shall be called the registered address of the party and
shall, until duly changed as aforesaid, be deemed to be the address of the party for the
purpose of service of all processes in the suit or in any appeal from any decree or order
therein made and for the purpose in the suit or in any appeal from any decree or order
therein made and for the purpose of execution, and shall hold good subject as
aforesaid for a period of two years, after the final determination of the cause of matter.
Service of any process may be effected upon a party at his registered address in like
manner in all respects as though such party resided thereat."
Gauhati (Assam, Nagaland, Meghalaya, Manipur & Tripura).— The following

amendments were made by Assam High Court Order, 1948 and Act 27 of 1962, Section
15, dated 1-12-1963. Act 81 of 1971, Section 28, dated 21-1-1972.
III-A, Page 68, dated 25-5-1984.
Rule 14-A as added w.e.f. 7-5-1954, deleted.
Uttar Pradesh.—Amendments made by Uttar Pradesh Act 57 of 1976, Section 6 has

now been reversed by Uttar Pradesh Act 31 of 1978, Section 4 (w.e.f. 1-4-78).
The result is that rule as in the Code is in force in Uttar Pradesh w.e.f. 1-8-1978.
COMMENT.—
Omission to sign pleadings—Effect.—
There is a conflict of opinion with regard to the matter of signing and verification of
pleadings. One view is that the defects in the matter of signing and verification are of
substance and a suit cannot be said to be validly instituted if the plaint does not
comply with the provisions of this rule or rule 15. The other view is that an irregularity in
the signature or verification of a plaint is a mere defect of procedure and does not
affect the jurisdiction of the Court. An omission or mistake in the signature, according
to this view, is not fatal to the suit but is capable of being cured by appropriate
amendments even at the appellate stage.
Where several persons institute a suit, it is not necessary that all should sign the plaint.
It is sufficient that one of them signs the plaint with the other plaintiff's knowledge and
authority.
Newly added rule 14-A requires a party to the suit to file an address at which service
may be effected on him. Provision has further been made for the stay of suit or striking
out a defence, as the case may be, in case where the address filed is found to be false,
fictitious or illusory.
84 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 56(ii), (w.e.f. 1-2-
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Verification of
pleadings
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Verification of pleadings
85
(1) Save as otherwise provided by any law for the time being in force, every
pleading shall be verified at the foot by the party or by one of the parties
pleading or by some other person proved to the satisfaction of the Court to
be acquainted with the facts of the case [B, OR, P].
(2) The person verifying shall specify, by reference to the numbered paragraphs of
the pleading, what he verifies of his own knowledge and what he verifies upon
information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date
on which and the place at which it was signed.
86
[(4) The person verifying the pleading shall also furnish an affidavit in support of
his pleadings].
[Proviso added to sub-rule (1) in Bombay; sub-rule (1) substituted in Orissa & Patna].
Amendment of First Schedule.—In the First Schedule to the Code, in Order VI, after Rule
15, the following Rule shall be inserted, namely:
"15A. Verification of pleadings in a Commercial Dispute.—(1) Notwithstanding

anything contained in rule 15, every pleading in a Commercial Dispute shall be verified
by an affidavit in the manner and form prescribed in the Appendix to this Schedule.
(2) An affidavit under sub-rule (1) above shall be signed by the party or by one of the
parties to the proceedings, or by any other person on behalf of such party or parties
who is proved to the satisfaction of the Court to be acquainted with the facts of the
case and who is duly authorised by such party or parties.
(3) Where a pleading is amended, the amendments must be verified in the form and
manner referred to in sub-rule (1) unless the Court orders otherwise.
(4) Where a pleading is not verified in the manner provided under sub-rule (1), the party
shall not be permitted to rely on such pleading as evidence or any of the matters set
out therein.
(5) The Court may strike out a pleading which is not verified by a Statement of Truth,
namely, the affidavit set out in the Appendix to this Schedule.";
STATE AMENDMENT
Uttar Pradesh.—In the First Schedule to the said Code, in Order VI, Rule 15, in sub-rule
(1), for the words, "on oath administered by an officer empowered under Section 139 of
the Code." (substituted by U.P. Act 57 of 1976, Section 6), the words "at the foot" shall
be substituted.—U.P. Act 31 of 1978, Section 4 (w.e.f. 1-8-1978). Hence in effect, the
word "at the foot" have been restored.
Bombay.—In sub-rule (1) substitute colon for the full-stop and add the following at the
end:—
Provided that in respect of pleading to be filed in the Bombay City Civil Court such
verification shall, within the local jurisdiction of the Court, be made before one of the
officers of the said Court empowered to administer oath and elsewhere, before any
officer mentioned in Section 139 of the Code of Civil Procedure, 1908". (1-10-1983).
Orissa.—Same as in Patna (17-9-1961).
Patna.—Sub-rule (1) was substituted by the following:
"(1) Save as otherwise provided by any law for the time being in force, the facts stated
in every pleading shall be verified by solemn affirmation or on oath of the party or of
one of the parties pleading or of some other person proved to the satisfaction of the
Court to be acquainted with the facts of the case, before any officer empowered to
administer oath under Section 139 of the Code." (27-9-1961).
COMMENT.—
2002).—
Modifications.—This Rule has been amended so as to make the following modification:
A new sub-Rule (4) has been inserted after sub-rule (3) of rule 15 of O VI requiring the
person verifying the pleadings to furnish an affidavit in support of his pleadings.

1999 stated thus:
Order VI of the Code provides for pleadings generally. Clause 16 seeks to provide that
person verifying the pleadings shall furnish an affidavit in support of his pleadings. This
clause omits Rules 5, 17 and 18 of Order VI to assure consistency with new changes in the
Code. [Clause 16].
Verification of pleadings and affidavit in proof of facts.—
Order VI rule 15 deals with verification of pleadings. By section 16 of the Amendment

Act, 1999 sub-rule (4) has been inserted requiring the person verifying the pleadings to
furnish an affidavit in support of his pleadings. This is in conformity with sub-section
(2) of section 26 as amended by the Amendment Act, 1999, which enjoins that in every
plaint, facts shall be proved by affidavit.
See also Comments under O VI, rule 5 [deleted by Amendment Act, 1999].

Effect of amendment Act, 2002.—
Amendment effected to O VI, rule 15 being procedural in nature is only directory in

nature, the non-compliance thereof would not automatically sender the plaint non est.87
Object of the rule.—
The object of verifying a pleading is to fix, on the party verifying, responsibility for the
statements that it contains.
Effect of defective verification.—
A pleading which is not verified in the manner required by this rule may be verified at a
later stage of the suit, even after the expiry of the limitation period. The omission to
verify a pleading is a mere irregularity within the meaning of section 99 of the Code. It
has been held by the Supreme Court in Bhikaji Keshao Joshi v Brijlal Nandlal, AIR 1955
SC 610 : (1955) 2 SCR 428 : 10 ELR 357 that where the verification of a plaint or petition
is defective, that should not normally be rejected but an order should be made for its
amendment.
In an election petition trial, filing of the second affidavit after the evidence is led and
arguments over, is not permissible.88
It is the duty of the Court to examine the plaint. If on examination of the plaint or
election petition it finds that it does not disclose any cause of action it would be
justified in striking out the pleadings. This rule itself empowers the Court to strike out
pleadings at any stage of the proceedings which may even be before the filing of
written statement by the respondent or commencement of the trial.89
Non-verification of pleadings.—
Non-Verification of Pleadings would not be fatal, court will have to consider such
objections in regard to defects at the earliest in view of O VI, rule 15 of the Code of Civil
Procedure.90
Order VI rule 15(1) of the Code of Civil Procedure, stipulates that every pleading shall
be varied at the foot by the party or by one of the parties pleading or by some other
person proved to the satisfaction of the court to be acquainted with the facts of the
case. Sub-rule (4) was inserted to O VI rule 15 of Code of Civil Procedure by Act No 46
of 1999 with effect from 1 July 2002 which stipulates that the person verifying the
pleading shall also furnish an affidavit in support of his pleadings.91
Order VI rule 15 of the Code of Civil Procedure no doubt requires that verification of the
plaint is necessary and in addition to the verification, the person verifying the plaint is
also required to file an affidavit in support of pleadings. However, section 83(1)(c) of
the Representative of Peoples Act merely requires an election petitioner to sign and
verify the contents of the election petition in the manner prescribed by Civil Procedure
Code.
In context to election petition, the affidavit is a standalone document and cannot be

equated to a plaint which is without verification.92
86 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 16(ii)
88 Quamarul Islam v SK Kanta, AIR 1994 SC 1733 (1746) : 1994 Supp (3) SCC 5 .
89 Dhartipakar Madanlal Agrawal v Rajiv Gandhi, AIR 1987 SC 1577 (1584) : 1987 Supp SCC 93 .
90 K Krishnaraj Hegde v Anil C Lobo, ( AIR 2015 Kar 152 ).
91 Barendra Biswal v Rama Roy, AIR 2015 Ori 125 .
92 GM Siddheshwar v Prasanna Kumar, AIR 2013 SC 1549 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 16. Striking out pleadings
© 2020 LexisNexis
THE FIRST SCHEDULE
93[R. 16.
Striking out pleadings
The Court may at any stage of the proceedings order to be struck out or amended any
matter in any pleading—
(a) which may be unnecessary, scandalous, frivolous or vexatious, or
(b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
(c) which is otherwise an abuse of the process of the Court.]
COMMENT.—
The previous rule was substituted by the present rule.
Scope of this rule.—
This rule enables a party to apply to strike out, or compel the amendment of, the whole
or any part of his opponent's pleadings which may be unnecessary or scandalous, or
which may tend to prejudice, embarrass or delay the fair trial of the action.94
It is an abuse of process of the Court and contrary to justice and public policy to
relitigate the same issue which has already been tried and decided. The relitigation
may or may not amount to res judicata.95
Allegations made in a pleading for the mere purpose of abusing or prejudicing the
opposite party and any indecent or offensive matters are scandalous.
Power of the Court to strike out pleadings.—
The Court can strike off the pleadings only if it is satisfied that the same are
unnecessary, scandalous, frivolous, or vexatious or "tend to prejustice, embarrass or
delay the fair trial of the suit or the Court is satisfied the suit is an abuse of the process
of the Court. The power to do so has to be exercised with great care and
circumspection.96 Without waiting for the filing of the written statement the Court can
hear the preliminary objections and strike out the pleadings. The Court has power to
reject petition under O VI, rule 11 even before filing of written statement.97
Application for striking out pleadings in terms of O VI, rule 16 can be resorted to at any
stage of proceedings.98
Striking of defence of tenant-validity.—
Tenant was evicted from property due to default in payment of rent. Court determined
arrears of rent to be paid within specified time. Due to failure on the part of the tenant
to pay arrears within specified time, the court struck off the defence and passed the
eviction decree.99
The High Court in exercise of its powers either under O VI, rule 16, O VII, rule 11 of the
Code cannot reject an election petition at the threshold.100
93 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 56, rule 16, (w.e.f.
1-2-1977).
94 Bhikaji Keshao Joshi v Brijlal Nandlal, AIR 1955 SC 610 : (1955) 2 SCR 428 : 10 ELR 357.
95 KK Modi v KN Modi, AIR 1998 SC 1297 (1308) : (1998) 3 SCC 573 : (1998) 92 Com Cas 30 .
96 Abdul Razak v Mangesh R Wagle, (2010), 2 SCC 432 (438).
97 Dhartipakar Madanlal Agrawal v Rajiv Gandhi, AIR 1987 SC 1577 (1584) : 1987 Supp SCC 93 .
98 Madiraju Venkata Ramana Raju v Peddireddigari Ramachandra Reddy, AIR 2018 SC 301 .
99 Dev Raj Lata v Sanjay Kumar, AIR 2013 Raj 115 .
100 Ram Sukh v Dinesh Aggarwal, AIR 2010 SC 1227 : (2009) 10 SCC 541 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 17. Amendment of
pleadings
© 2020 LexisNexis
THE FIRST SCHEDULE
101[R. 17.
Amendment of pleadings
The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the real questions in
controversy between the parties :
Provided that no application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence, the
party could not have raised the matter before the commencement of trial.]
Bombay.— Add at the end the following sentence:—
'"Where, however, an application for amendment is made by the plaintiff in a suit in

which the defendant has not appeared, though served with a summons, and where in
the opinion of the Court the amendment applied for is a material one, the Court shall
give notice of the application to the defendant before allowing the amendment; and
where in the absence of the defendant the Court grants any amendment in a form
materially different from that [of which notice has been given to the defendant], a copy
of the amended plaint shall be served on the defendant [1-11-1966].
Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka. Page 402, dated 1-10-
1983.
For the existing Rule 17 and its marginal note, substitute the following as Rule 17 and
marginal note.
"17. Amendment of pleadings.—The Court may at any stage of the proceedings allow
either party to alter or amend his pleadings in such manner and on such terms as may
be just, and all such amendments shall be made as may be necessary for the purpose
of determining the real question in controversy between the parties. Where, however, an
application for amendment is made by the plaintiff in a suit in which the defendant has
not appeared, though served with a summons, and where in the opinion of the Court
the amendment applied for is a material one, the Court shall give notice of the
application to the defendant before allowing the amendment; and where in the absence
of the defendant the Court grants any amendment in a form materially different from
that of which notice has been given to the defendant, a copy of the amended plaint
shall be served on the defendant."
In Rule 17 add the following sentence:

"Where, however, an application for amendment is made by the plaintiff in a suit in
which the defendant has not appeared though served with a summons and where in
the opinion of the Court the amendment applied for is a material one, the Court shall
give notice of the application to the defendant before allowing the amendment; and
where in the absence of the defendant the Court grants any amendment in a form
materially different from that applied for, a copy of the amended plaint shall be served
on the defendant."
III-A, Page 68.
Renumber the existing Rule 17 as Rule 17(1) and add the following as sub-rule (2).
"(2) Every application for amendment shall be in writing and duly verified in the manner
laid down in Rule 5 and shall state the specific amendment which is sought to be made,
indicating the words or paragraphs to be added to, omitted from or substituted in place
of, the original pleadings."
Punjab (Notfn No. 253-Genl/XI Y 1 dated 12-11-1951/7-12-1951).—Renumber the rule as

17(1) and add the following as sub-rule (2):—
"(2) Every application for amendments shall be in writing and shall state the specific
amendments which are sought to be made, indicating the words or paragraphs to be
added, omitted or substituted in the original pleading." (14-12-1951), Act 31 of 1966,
Sections 29 & 32 (1-11-1966).
COMMENT.—
Code of Civil Procedure (Amendment) 2002 (22 of 2002) (w.e.f. 1-7-2002).—
By Code of Civil Procedure (Amendment) 2002 the provision has been restored; the
provision for amendment has been given back to the Court with certain limitations. A
new proviso has been added to the rule, namely that no application for amendment of
the pleadings shall be allowed after the trial has commenced, unless the Court comes
to the conclusion that in spite of due diligence, the party could not have raised the
matter before the commencement of trial. Thus, after the trial of the case has
commenced, no application for amendment of the pleading shall, be allowed unless the
Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (not enforced).—
Omission.—
This Rule was omitted (not enforced) by the Amendment Act, 1999.
This omission was made to ensure consistency with the new changes in the Code.
Notes on Clauses.—
Notes on clauses of the Code of Civil Procedure (Amendment) Bill, 1999 stated thus:
Order VI of the Code provides for pleadings generally. Clause 16 seeks to provide that
person verifying the pleadings shall furnish an affidavit in support of his pleadings. This
clause omits Rules 5, 17 and 18 of Order VI to bring about consistency with new changes in
the Code. [Clause 16].
Object of the rule.—
The main object of the rule is that the Courts should get at and try the merits of the
case that comes before them and should consequently allow all amendments that may
be necessary for determining the real question in controversy between the parties
without causing injustice to the other side. It has been held by the Supreme Court that
the rule of conduct of the Court is, that "however negligent or careless the first
omission may have been, and however late the proposed amendment, the amendment
should be allowed if it can be made without injustice to the other side. In a suit for
possession the plaintiff applied for amendment, taking away right accrued to a party by
lapse of time. He was allowed to amend the pleading as no injustice was being caused
to the opposite party. The relief claimed thereby also was within the period of
limitation.102
Order VI of the Code of Civil Procedure deals with the striking out of the pleadings. This
rule is based on the principle of ex debito justitiae. The court is empowered under this
rule to strike out any matter in the pleadings on such ground. On the other hand O VI
rule 17 of the code of civil procedure empowers the court to allow either party to alter
or amend his own pleadings and on such application the court may allow the parties to
amend their pleadings subject to certain conditions enumerated in the said rule.103
An amendment of the plaint or written statement, which is necessary for proper

decision of the case, can be allowed at any stage of proceedings unless it is shown
that some prejudice or serious injustice is going to be caused to be opposite side. In
other words, if the opposite can be adequately compensated by costs and the
amendment is not barred by any law and no prejudice or serious injustice is going to be
caused to the opposite party, the amendment should be allowed.
The proviso is in the mandatory form and curtails the jurisdiction of the court to allow
an amendment after the trial has commenced. However, there is an exception to this
proposition and that is the court may allow an amendment even after the
commencement of the trial of it comes to the conclusion that in spite of due diligence,
the party seeking the amendment could not have raised the matter before the
commencement of the trial.
The Apex Court has very clearly held that for the purposes of the proviso to O VI rule 17
of the Code of Civil Procedure the relevant date for commencement of the trial is the
date on which issues are framed, therefore, for the purposes of the amendment
application moved by the respondent, the expression "commencement of trial" as
contemplated by the proviso to O VI rule 17 of the Code of Civil Procedure has a
meaning different from the meaning assigned to that expression under 1951 Act.104
The date on which the trial commences within the meaning of the proviso to O VI rule
17 of the Code of Civil Procedure cannot be held to be either a date prior to the date of
presentation of pleadings on the date on which pleading is presented in the court.
Therefore, the relevant date seems to be the date on which issues are framed, therefore
the proviso to O VI rule 17 of the Code of Civil Procedure is not applicable in respect of
an amendment sought for settlement of issues.
When issues had not yet been framed and the respondent moved the amendment
application at the very initial stage within a month from the date of filing of the written
statement, it was held that the amendment application cannot be rejected on the
ground that it was barred by the proviso to O VI rule 17 of the Code of Civil
Procedure.105
Before applying provisions of this rule there must be institution of a suit. Any
application filed under the provisions of different statutes cannot be treated as a suit or
plaint unless otherwise provided in the said Act.106
The provision under first part of rule 17 is discretionary while the second part is
mandatory and enjoins the Court to allow all amendments which are necessary for the
purpose of determining the real question in controversy between the parties.107
Basic principles which ought to be taken into consideration by allowing or

rejecting the application for amendment.—
(i) Whether the amendment sought is imperative for proper and effective
adjudication of the case;
(ii) Whether the application for amendment is bonafide or malafide;
(iii) The amendment should not cause such prejudice to the other side which
cannot be compensated adequately in terms of money;
(iv) Refusing amendment would infact lead to injustice or lead to multiple litigation;
(v) Whether the proposed amendment constitutionally or fundamentally changes

the nature and character of the case; and
(vi) 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.
These are some of the important factors which may be kept in mind while dealing with
application filed under O VI, rule 17. These are only illustrative and not exhaustive.108
Scope.—
Admission made in written statement can be explained through amendment.109
Amendment and impleadment of parties concerning further inquiry as contemplated in

Appendix D, form 17, para 10, Code of Civil Procedure in an administrative suit may
also include transactions entered into by the deceased owner third parties involved in
any transaction may be impleaded for the determination of the extent of the
deceased's property.110
Preferential right can ordinarily be claimed within one year, plaintiff seeking
amendment after 13 years is not maintainable.111
Application filed for amendment of written statement was held to be not maintainable
as one cause of action cannot be allowed to be substituted by another.112
Doctrine of relation back.—
If an amendment in a plaint is incorporated then it relates back to the date of suit. The
Court can, however, direct, in appropriate cases, that it will not relate back to the date of
suit.113
When a pleading is amended, it takes effect from the date when the original one is
filed.114
AMENDMENT OF PLAINT - DOCTRINE OF RELATION BACK APPLICABILITY
Suit for specific permanent injunction restraining interference with possession.—

Defendant in Written Statement disputing title of plaintiff as also identity of suit
property. Amendment sought to add relief of declaration of title, Allowed by Court on
remand subject of plea of limitation. Doctrine of rule 3 will not apply as starting from
date of Written Statement limitation for suit for declaration of title has long expired -
and by allowing amendment subject to the plea of limitation court has ruled out
existence of extraordinary circumstances warranting application of doctrine.115
Defendant sought amendment of written statement. The same was allowed by the
court subject to the plea of limitation. The court by allowing the said amendment, has
ruled out existence of extraordinary circumstances.
It is necessary for a person seeking leave of the Court for amendment in the pleadings,
to write specifically in his application as to what is proposed to be omitted from or
altered or substituted in or added to the original pleadings.116
When one kind of fraud is charged, another kind of fraud cannot, upon the failure of
proof, be substituted for it. The same is true for the charge of misconduct.117
The Supreme Court in Laxmidas v Nanabhai, AIR 1964 SC 11 (18) : (1964) 2 SCR 567
has observed as follows:
It is no doubt true that save in exceptional cases, leave to amend under Order VI, Rule 17 of
the Code will ordinarily be refused when the effect of the amendment would be to take away
from a party a legal right which had accrued to him by lapse of time. But this rule can apply
only where either fresh allegations are added or fresh reliefs are sought by way of
amendment. Where, for instance, an amendment is sought which merely clarifies an
existing pleading and does not in substance add to or alter it, the question of bar of
imitation is not one of the questions to be considered in allowing such clarification of a
matter already contained in the original pleading.
Accordingly, the Court will as a rule decline to grant leave to amend:
(i) where it introduces a totally new case or necessitates a fresh trial or letting in of
fresh evidence;
(ii) where the amendment will lead to needless complications;
(iii) where the plaintiff is negligent or has taken his stand deliberately on a certain
basis;
(iv) where the plaintiff has had several opportunities to apply for amendment but
has slept over his right for a very long time.
(v) Amendment of written statement by substituting certain paragraphs, introducing
entirely different new case and seeking to displace the plaintiff and cause him
irretrievable prejudice, from admission made by defendants in written statement,
is to be rejected.118
If an amendment changing drastically nature of dispute is sought in an application to

file in Court arbitration agreement, then it cannot be allowed. Order granting such
amendment and further interim orders based on amended petition are to be
quashed.119
Reference may be made to the following other provisions of the Code, namely, sections
152, 153; O I rule 10 and O VI rule 16.
In a suit for preliminary injunction, defendant had denied the title of the plaintiff. It was
held that the plaintiff is not precluded from filing application for amendment
particularly when there was specific denial of title by defendant. The court allowed the
application for amendment of the plaint by applying the doctrine of relation back, the
amendment to take effect from the date of filing of application.120
Permission for amendment.—
Merit of amendment is hardly a relevant consideration for the grant of permission for
amendment of plaint.121
Amendment would be allowed where issue sought by amendment was not new to the
defendant and there was no change of cause of action.122
It is well settled that rules of procedure are intended to be a handmaid to the

administration of justice. A party cannot be refused just relief merely because of some
mistake, negligence, inadvertence or even infraction of rules of procedure. The court
always gives relief to amend the pleading of the party, unless it is satisfied that the
party applying was acting mala fide or that by his blunder he had caused injury to his
opponent which cannot be compensated for by an order of cost.123
Since in a declaratory suit the jurisdictional facts as envisaged in proviso to O XVI, rule
17 exist, the trial court cannot be said to have committed error in allowing
amendment.124
During the pendency of defendant's second appeal, plaintiff sought amendment of

plaint by introducing additional plea that he was also a co-sharer in the suit land. The
High Court rejected the application for amendment, but Supreme Court granted leave
to the plaintiff to amend plaint as there was sufficient material/ evidence already on
record to establish that plaintiff was co-sharer with defendant vendor and through
amendment only a new ground, and not any new relief, was sought to be incorporated.
The Supreme Court having allowed amendment without any rider/condition/restriction
on application of doctrine of relation back by making it operative only from date, it was
allowed, it is reasonable to presume that Supreme Court intended that amendment
would relate back to date of filing of suit. Therefore, the High Court rightly held that
since suit seeking relief of pre-emption was instituted within time, by amending the
plaint by introducing a new ground to support the relief the suit would not become time
barred.125
Where amendment application is filed immediately after filing of the suit that is before
the commencement of the trial and in a suit for specific performance of the contract
the proposed amendment, the plaintiff wants to explain how the money was paid,
though necessary averments in the form of foundation have already been laid in the
original plaint, then this does not amount to altering cause of action and in any way
prejudice defendants.126
Object of O VI, rule 17 is that courts should try the merits of case that comes before
them and should, consequently, allow all amendments that may be necessary for
determining real question in controversy between the parties, provided it does not
cause injustice or prejudice to the other side. Main purpose of allowing amendment is
to minimise litigation and the plea that relief sought by way of amendment was barred
by time is to be considered in the light of facts and circumstances of each case.127
General principles of maintainability.—
Under O VI, rule 17 postulates amendment of pleadings at any stage of the

proceedings. All amendments of plaint which do not cause injustice to the other side
and which are necessary for the purpose of determining the real questions in
controversy between the parties ought to be allowed.128
Amendment of written statement and counterclaim barred by limitation can be allowed

when amendment merely adds to facts already on record.129
Just and proper amendment to pleadings can be introduced at any stage as may be
necessary for the purpose of determining the real questions in controversy.130
On addition of new party, question of invoking period of limitation also arises.

Therefore, application for amendment cannot be allowed where third party is sought to
be impleaded.131
Amendment of plaint substantially changing nature and character of original suit is not
permissible in law.132
Bar under proviso—Applicability.—
The amendment of written statement was sought before issues were framed,
documents were filed and evidence was adduced, hence bar under proviso does not
apply.133
Amendment and limitation.—
If an earlier suit was for possession and by an amendment relief of cancellation of

sale-deeds was added, then the basis of suit is changed. The amendment related to the
date of amendment and the suit was time barred.134
In a suit for permanent injunction restraining interference with possession an

amendment sought declaration of title. The dispute between the parties was on
question whether declaration sought was barred by limitation. The rejection of
amendment without considering question of limitation was incorrect.135
Where the alternative relief of mandatory injunction was available when the suit was
filed, it cannot be allowed to be introduced by way of amendment at the appellate stage
or at the time of appeal when the suit with that relief will be barred by limitation.136
An amendment in the pleading sought after substantive delay can be allowed. So also,
even an amendment sought after relief is barred by limitation can be allowed in
appropriate cases if that subserves cause of justice and avoids further litigation.137
The petitioners having expressly admitted that the respondents have refused to abide
by the terms of the contract, they should have asked for the relief for specific
performance in the original suit itself. Having allowed the period of seven years
elapsed from the date of filing of the suit and the period of limitation being three years
under Article 54 of the Schedule to the Limitation Act, 1963, any amendment on the
grounds set out would defeat the valuable right of limitation accrued to the
respondent.138
Where a party acquires a right by bar of limitation and if the same is sought to be taken
away by amendment of the pleadings, amendment in such circumstances would be
refused. Permitting of the amendment would defeat the right accrued in favour of the
defendant.139
It has been held by the Supreme Court in Modi Spg Mills v Ladha Ram & Sons, (1976) 4
SCC 320 (321) : AIR 1977 SC 680 that "the defendant cannot be allowed to change
completely the case made in certain paragraphs of the written statement and
substitute an entirely different and new case".
Where a plaint was returned for presentation to proper Court, the plaintiff himself made
certain amendments and presented the plaint to proper Court, the plaint can be
considered to be a fresh or new plaint. It is not always necessary for the plaintiff to
seek amendment of the plaint under this rule.140
An application for amendment in pleadings was made after start of trial wherein a
party showed that in spite of due diligence such amendment could not have been
sought earlier. The requirement prevents frivolous application to delay trial. There is no
illegality in the provision.141
In an appeal before Supreme Court, the wife sought to assail the decree on the ground
that the husband wanted the wife to have a decree for restitution of conjugal rights by
some kind of trap and then not to cohabitate with her and thereafter to obtain a decree
for divorce. The pleadings were sought to be amended as such. It was held that the
ground was opposed to the facts alleged in the defence by the wife. There was no
scope of giving any opportunity of amending the plea at that stage. If such
amendments were allowed, then the plaintiff would be irretrievably prejudiced by being
denied the opportunity of extracting the admission from the defendants.142
Principle of amendment.—
One of the cardinal principles of law in allowing or rejecting an application for

amendment of the pleading is that the courts generally, as a rule, decline to allow
amendments, if a fresh suit on the amended claim would be barred by limitation on the
date of filing of the application.143
Court has wide powers to allow amendment of plaint.—

Under O VI, rule 17 Code of Civil Procedure a Court of law trying the suit has very wide
powers, in the matter of allowing amendments of pleadings and all amendments which
will aid the Court in disposing of the matters in dispute between the parties, are as a
rule allowed, subject to the law of limitation.144
Valuation for purposes of Court-fees.—
An amendment to insert the valuation for purpose of Court-fees to rectify omission is

permissible.145
Amendment order whether discretionary?—
The amendment order is not purely of discretion. Even with regard to discretionary
orders the appellate Court can interfere where the order is insupportable in law or is
unjust. In exceptional cases an amendment may be allowed even where the effect is to
take away from a defendant a legal right which has accrued to him by lapse of time.146
Mis-description of plaintiff is amendable.—
If there is a mis-description of the plaintiff is cause title then the plaint can be amended
at any time for the purpose of showing the correct description of the plaintiff. The
question of limitation would not arise in such a case.147
Amendment when can be allowed.—
All amendments ought to be allowed which satisfy the two conditions, (a) not working
injustice to the other side, and (b) of being necessary for the purpose of determining
the real questions in controversy between the parties. Amendments should be refused
only where the other party cannot be placed in the same position as if the pleading had
been originally correct, but the amendment would cause him an injury which could not
be compensated in costs.148
Amendment of pleadings.—
The proviso limits the power to allow amendment after the commencement of trial but
grants discretion to the Court to allow amendment if it feels that the party could not
have raised the matter before the commencement of trial in spite of due diligence. The
liberal principles which guide the exercise of discretion in allowing the amendment are
that multiplicity of proceeding should be avoided, and amendment which do not totally
alter the character of an action should be granted, while care should be taken to see
that injustice and prejudice to an irremediable character are not inflicted upon opposite
party under pretence of amendment.149
Where suit was filed declaration of title and permanent injunction.—

Amendment application was moved at the initial stage and trial was not commenced.
Amendment sought does not change nature of such. Hence, application allowed.150
The date on which the issues are framed is the date of first hearing. The provisions of
the Code envisage taking of various steps at different stages of the proceeding. Filing
of an affidavit in lieu of examination in chief of the witness would amount to
commencement of proceeding.
It is the duty of the Court to decide as to whether the amendment of written statement
after the trial has commenced is necessary to decide the real dispute between the
parties. Only if such a condition is fulfilled the amendment should be allowed. The
proviso to rule 17 of O VI of the Code restricts the power of the Court and puts an
embargo on exercise of its jurisdiction.151
It is always open to the Court to allow an amendment if it is of the view that allowing of
an amendment shall really subserve the ultimate cause of justice and avoid further
litigation.152
Where the nature of amendment as proposed neither changes the character and nature
of the suit nor does it introduce any fresh ground then such an amendment should be
allowed.153
Amendment of written statement was sought by appellants/defendants after

completion of evidence of respondents (plaintiffs). The proposed amendment was only
to elaborate and amplify the defence already taken and did not introduce any new
defence. Amendment was allowed and liberty was given to the plaintiffs to
consequentially amend the plaint and lead further evidence.154
Amendment of pleadings when permissible.—
Court should decline amendments if a fresh suit on the amended claims would be
barred by limitation on the date of amendment application.155
Amendment of plaint.—
A bank had given bank guarantee in US dollars. On its failure to honour it, a suit for
recovery was filed. The amount to be recovered was mentioned at various places in the
plaint in terms of US dollars and its equivalent in Indian rupees was also given. The
plaintiff filed an application for amendment of plaint seeking deletion of figures shown
in terms of Indian rupees. The plaintiff was held entitled to amend the plaint as no new
relief was sought to be added. No question of introducing any new case, a new cause
of action or seeking new relief which may be barred by limitation arose. It was an
amendment more clarificatory in nature. A matter already contained in the original
plaint can always be clarified. In such cases question of bar of limitation would not be
attracted.156
Where the nature of suit shall not change by amendment of the plaint, there would be
no reason as to why the prayer for amendment of the plaint should not be allowed.157
The power of Court to allow an application for amendment of the plaint is neither in
doubt nor in dispute. Such a wide power on part of the Court is circumscribed by three
factors i.e., (i) the application must be bona fide, (ii) the same should not cause
injustice to the other side and (iii) it should not affect the right already accrued to the
defendants.158
New prayer may be added at appellate stage.—
A High Court was right in allowing at the appellate stage the amendment, by the
addition of a new prayer in the prayer clause of the plaint. As all the allegations had
been made in the plaint, requisite pleas had been raised by the appellant, an issue was
framed on the question, the parties were fully cognizant of the points in controversy
and they had led the necessary evidence.159
Amendment of written statement.—
In an eviction suit, amendment sought on the ground that facts which were disclosed
by landlord in interrogatories were not in the notice of petitioner at the time of trial of
case, was not allowed.160
Amendment to the written statement cannot be allowed where the possession of the
appellant in respect of the plaint schedule property as against the respondents was
long settled and uninterrupted, and appellants had decree of permanent injunction in
their favour and defendant respondents at appellate stage sought to incorporate relief
of possession by way of counter claim.161
Amendment of written statement in appeal.—
It is open to a Court including a Court of appeal to take notice of events which have
happened after the institution of the suit and afford relief to the parties in changed
circumstances. But only where the relief claimed originally has (1) by reason of
subsequent change of circumstances become inappropriate or (2) where it is
necessary to take notice of the changed circumstances in order to shorten the
litigation or (3) to do complete justice between the parties.162
Amending of plaint not allowed at appellate stage.—
A suit for recovery of certain amount as damages against General Manager Southern
Railways was dismissed by the trial Court because Union of India was not impleaded
(as necessary party). The appellant sought permission to add Union of India as a party
to the suit by amending the plaint. Such an application was rejected by the appellate
Court. The rejection was justified.163
Appellate Court's discretion to amend memo of appeal.—
Amendment of memo of appeal challenging preliminary mortgage decree allowed by

the High Court, after 7½ years was disallowed by the Supreme Court while the final
decree had been passed and valuable right had accrued to the auction purchaser.164
The plaintiff did not claim relief in proper form, though fact on which relief in proper
form could be given were all set out in plaint. The amendment at appellate stage
claiming relief in proper form was purely, of formal character. If the appellate Court
thinks that any reply to the amendment by the defendant is necessary then it should
self determine whether, and if so, how far further proceedings were called for. The
remand of the case to lower Court would be unnecessary.165
In an appeal by special leave, the appellant cannot be permitted to amend the plaint
seeking to include a new relief, against the order of dismissal.166
Refusal of amendment, governing principal.—
The first condition which must be satisfied before the amendment can be allowed by
the Court is whether such amendment is necessary for the determination of the real
question in controversy. If that condition is not satisfied, the amendment cannot be
allowed. This is the basic test which should govern the Court's discretion in grant or
refusal of amendment.167
Rejection of amendment application by appellate Court is not illegal.168
Conversion of suit for specific performance into one for damages for breach of
contract sought.—
If the amendment relates the relief of compensation in view of or in addition to specific

performance where the plaintiff has not abandoned his relief of specific performance
then the Court will allow amendment at any stage of the proceedings. A different and
less liberal standard will apply if what is sought by the amendment is the conversion of
the suit for specific performance as one for damages for breach of contract in which
section 73 of the Contract Act is invoked. Such amendment is governed by O VI rule 17
of the Code.169
Validity of Will challenged by way of amendment.—
Where the validity of a Will was challenged by way of amendment, the plaintiff acquired
a right to lead evidence to prove its authenticity. Otherwise also when the basis of the
suit was will in question the interest of justice demanded that the plaintiff should have
been allowed an opportunity to lead additional evidence to prove its validity. Hence, the
rejection of the prayer of the plaintiff to lead additional evidence to prove testamentary
succession by producing the Will in question was not proper.170
Avoiding consequence of non-joinder.—
A Court cannot use O VI rule 17 or O I rule 10 to avoid the consequence of non-joinder

for which a special provision is to be found in the Representation of the People Act,
1951.171
Relief of amendment of pleadings is within the discretion of the Court. Amendment

seeking time barred relief can also be allowed.172
Delayed amendment which appear to be an after thought are disallowed. However, in
deserving cases, the court can allow delayed amendment by compensating the other
side by awarding costs.173
Ground of delay.—
Long pendency of matters in Court cannot be a ground for the delay in filing
amendment of pleading.174
Necessity of amendment by subsequent events.—
During the pendency of a writ petition for a direction for closure of certain units of a
company, there was escape of oleum gas and the compensation for the victim of
oleum gas had to be claimed. Such claims could be made by way of amendment.175
Defect in election petition not curable.—
The defect of non-joinder of necessary parties to the election petition cannot be cured
by amendment. The Election Tribunal has no power to grant such an amendment be it
by way of withdrawal or abandonment of apart of a claim or otherwise.176
This provision is applicable to election petitions. An election tribunal has power under
rule 17 to order amendment of a petition but no new grounds or charges should be
raised so as to alter its character. There is also no power to extend the period of
limitation prescribed. It is competent to allow or give an option to the appellant either
to amend the petition or to furnish particulars.177
Amendment of defective plaint.—
Even very defective pleadings may be permitted to be cured, so as to constitute a

cause of action where there was none, provided necessary conditions such as payment
of either any additional Court-fee or of costs of other side are complied with. It is only,
if lapse of time has barred the remedy on a newly constituted cause of action that the
Court should ordinarily refuse prayers for amendment of pleadings.
Where a promissory note was filed by a firm through a partner, the amendment of plaint
on ground that the partnership firm already stood dissolved on the date of filing the suit
and that the suit is instituted by one of the partners of a dissolved firm could not be
refused as it did not alter the cause of action or the character of the suit.178
Amendment of plaint allowed.—
An amendment to avoid multiplicity of suits is a proper case in which amendment of

the plaint should be allowed.179
Permitting the plaintiff to amend the plaint by the High Court in exercise of its
discretionary powers is justified when the amendment is allowed to make the suit
maintainable due to change in law and to avoid multiplicity of litigation.180
In an eviction suit, a proposed amendment in the written statement, which does not
have effect of displacing the plaintiff from admission made in his favour by defendant,
can be allowed.181
When amendment is allowed on payment of costs and the costs are accepted by a
party, he cannot afterwards raise any objection.182
By virtue of section 53 of the Land Acquisition Act, 1894, the provisions of the Code of
Civil Procedure shall apply to all proceedings before the Court unless they are
inconsistent with anything contained in the Act. There is no bar under the Land
Acquisition Act to file a petition for the amendment of the claim petition in regard to the
quantum of compensation claimed.183
Where an amendment of plaint seeking withdrawal of admission of fact was granted by

the trial Court for effective adjudication of the dispute, interference by the High Court in
revision was not justified.184
Where an amendment of the plaint was not barred by limitation, no irreparable injury or
injustice was caused to opposite party and also no jurisdictional error was involved, a
High Court in exercise of its power of revision should not have interfered with the order
allowing amendment.185
In a land acquisition case, an application for amendment of memo of appeal was

rejected by the High Court on the sole ground of delay such an order rejecting the
application was set aside being illegal.186
A consequential amendment in the plaint should be allowed.187
A party cannot be refused just relief merely because of some mistake, negligence,
inadvertence or even infraction of the rules of procedure. The Court always allows
amendment unless it is satisfied that there was mala fide or the blunder had caused
injury to the opponent which could not be compensated by costs. However, negligent or
careless may have been the first omission, and however late, the proposed
amendment, it may be allowed, if no injustice is caused to the either side.188
It is no doubt true that the 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. A factor to be taken into account in exercise of the discretion is as to
whether the amendment should be ordered and does not affect the power of the Court
to order it, if that be required in the interest of justice.189
Reference may be made to another decision of Supreme Court in Suraj Prakash Bhasin
v Raj Rani Bhasin, AIR 1981 SC 485 : (1981) 3 SCC 652 . It was held as follows:
The trial Court, in exercise of its discretion, allowed the amendment and the High Court in
revision, refused to interfere. In the view of the Courts below there was not such a total
transformation of the nature of the litigation as to deny the prayer for amendment. On the
other hand, the facts were substantially the same; the case of partnership was already
present in embryonic form in the original plaint and multiplicity of suits would be avoided by
grant of the amendment.
Accordingly, it was held further that the High Court was right in allowing the
amendment as it did not change the character of the suit.
Where in a suit for specific performance of contract for sale the plaintiff by way of
amendment introducing averments regarding plaintiff's readiness and willingness to
perform his part of contract, it does not amount change in cause of action.
Amendment of plaint is to be allowed.190
In an eviction suit, amendment of pleadings can be allowed if there is no material

inconsistency between the original averments and those proposed in the
amendment.191
In an eviction petition on the ground of demolition and reconstruction, an amendment

sought on the ground of requirement of additional accommodation as further ground
of eviction, was held valid.192
Where in a suit for possession, there are allegations that the lease-deed involved is
void/invalid/not binding, but no formal relief is prayed in respect of the deed, in this
regard the parties are aware of the controversy as the issue was framed and they led
evidence, an application for amendment seeking relief in respect of the lease-deed
should be allowed at any stage.193
During pendency but before commencement of the trial of a suit for permanent
prohibitory injunction against dispossession, an amendment of plaint for seeking relief
of declaration of title to suit property and consequent relief of delivery of possession,
does not alter basic structure of suit and is permissible. It would curtail multiplicity of
legal proceedings.194
If original plaint is cryptic about the agreement between parties which was basis of
suit, then an amendment of such a plaint which would place the defendant in a better
position to defend than prejudicing him and which does not change the nature of relief
claimed, is to be allowed.195
Reference may also be made to another decision of the Supreme Court in CM

Vereekutty v CM Mathukutty AIR 1981 SC 1533 : (1980) 1 SCC 537 . In this case, an
appeal was filed by the plaintiff against preliminary decree in suit for partition with
prayer for amendment of plaint on ground that some properties had not been correctly
and fully described in original plaint schedule and due to ignorance some properties
had been omitted. It was held that on facts, the High Court was right in allowing
amendment and remanding the suit to trial Court for fresh disposal.
Amendment of Written statement.—
While granting or refusing amendment the court has to consider the basic principles
regarding grant of amendment as contemplated under O VI rule 17. Where there is
nothing to show that material sought to be placed on record by the proposed
amendment was not available at the relevant time of filing of written statement and the
whole intention was to postpone and delay early result of election petition, it was held
that amendment application was liable to be dismissed.196
Amendment wrongly allowed.—
The amendment should not cause prejudice to the other side which cannot be
compensated by costs. No amendment should be allowed which amounts to or relates
in defeating a legal right of other party on account of delay. The delay in filing the
petition for amendment of the written statement is not a ground for refusing the
amendment. It should be properly compensated by costs. An error or mistake, which if
not fraudulent, should not be made a ground for rejecting the application for
amendment of plaint or written statement. Amendment which does not alter or
substitute a new cause of action on the basis of which the original suit was raised or
defence taken, is to be allowed. The principles applicable to amendment of plaints
equally apply to amendment of written statements.197
Where in an eviction suit for bona fide requirement of landlord, the landlord dies,
amendment of pleadings at the instance of his heir putting in issue his requirement
was valid. The Supreme Court refused to drive the heir to file a fresh suit on the plea
that the amendment was wrongly allowed.198
The amendment provisions as to election petition in the Representation of the People

Act, 1951 override the provisions in Code of Civil Procedure. The general power of
amendment given in Code of Civil Procedure has to be applied with restraints. Allowing
pleadings to be amended so as to bring them in conformity of evidence already led is
all the more improper.199
A suit was filed for declaration that the defendant was a benamidar and the property
belonged to the joint family. Later on, an amendment petition was filed to state that the
defendant was only a trustee on behalf of the plaintiff. The later version could be
pleaded even without amending the plaint.200
Partial amendment.—
The partial amendment can be allowed liberally, but amendment cannot be allowed
liberally after the commencement of trial. The party has to satisfy the Court that in
spite of due diligence, he could not raise matter before the commencement of trial.201
New plea allowed.—
In an appeal before the High Court arising from a suit for partition the defendant-
appellant sought amendment in written statement by adding new plea. The High Court
rejected the application on taking highly technical view in granting relief. On appeal to
the Supreme Court, the application was allowed in the interest of justice for
amendment.202
An amendment which does not constitute addition of a new cause of action or raise a
different issue but amounts merely to a different or additional approach to the same
facts, can be allowed even after expiry of the limitation period.203
There is no bar against an appellate Court permitting amendment of pleadings so as to

enable a party to raise a new plea. All that is necessary is that the appellate Court
should observe the well-known principles subject to which amendments of pleadings
are usually granted.204
When an amendment does not constitute an addition of a new cause of action but
amounts to no more than adding to the facts already on the record, the amendment
would be allowed even after the statutory period of limitation.205
Where the proposed amendment is to lead to total displacement of the case set-up or
where the effect of the amendment to be would be to negate a right by lapse of time or
would introduce a totally different, new and inconsistent case and above all where the
amendment is not made in good faith or is mala fide, the court is to desist from
granting leave to amend the pleadings. It is well-settled law that the amendment in the
pleadings that amounts to withdrawal of important admission cannot be allowed for
simple reason that rights flow out of bold and clear admission made by the party to the
suit to his adversary in the litigation.206
Amendment of Writ Petition.—
Where inclusion of admission in the pleading was the result of an inadvertent mistake
on the part of the drafter, the amendment was allowed.207
Amendment for adding new relief.—
Application for amendment of pleading to add a new relief would not be allowed by
court if it amounts to a fresh suit and is barred by limitation.208
Amendment of Eviction Petition,.—
The Code of Civil Procedure (Amendment) Act, 2002 does not bar the amendment of
petition but a proviso has been added to O VI, rule 17 of the Code to prevent the
application for amendment being allowed after the trial has commenced, unless the
court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of the trial. Thus, where the cause of
action arises subsequent to filing of petition for eviction it can be added by way of
amendment.209
New plea not allowed.—
The plea of absence of valid notice terminating the contractual tenancy was not taken
in the original written statement. An amendment to include the plea after 8 years was
not allowed on account of gross delay and laches.210
The pleas regarding validity of decree were neither taken in executing Court nor before
High Court. They did not raise any pure question of law. The Supreme Court refused to
allow them.211
Meaning of "Due diligence".—
"Due diligence" means reasonable diligence, it means such diligence as a prudent man
would exercise in the conduct of his own affairs.212
Effect of non-issuance of notice.—
In the earlier suit the application for amendment was filed, however, no notice was
issued on the same and thus it cannot be said that the same was an abandoned claim.
Suit at best would be treated to be a suit on a fresh cause of action in which case all
that the respondent would have to satisfy is as regards the period of limitation and the
advantage of the liberty being granted by earlier withdrawal will not be available.213
vide Notfn. S.O. 604(E), dt. 6-6-2002, Section 7.
Earlier rule 17 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (not enforced),
before its omission stood as under:
'The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments shall be
made as may be necessary for the purpose of determining the real questions in controversy
between the parties.'
102 Haridas Girdharidas v Vasadaraja Filial, AIR 1971 SC 2366 (2368) : (1971) 1 SCC 601 :
(1973) 2 MLJ (SC) 45.
103 SMalla Reddy v Future Builders Co-operative Housing Society, (2013) 9 SCC 349 .
104 Vidyabai v Padmalatha, AIR 2009 SC 1433 .
105 Chandra Narayan Tripathi v Kapil Muni Karwariya AIR 2012 All 116 (Para 22 and 23).
106 PA Ahammed Ibrahim v Food Corpn of India, AIR 1999 SC 3033 (3035) : (1999) 7 SCC 39 .
107 Rajesh Kumar Aggarwal v KKModi, AIR 2006 SC 1647 (1651, 1652).
108 Chakreshwari Construction (P) Ltd v Manohar Lal, (2017) 5 SCC 212 : 2017 (123) ALR 220 :
2017 (3) JKJ 7 [SC].
109 Sushil Kr Jain v Manoj Kumar, AIR 2009 SC 2544 .
110 Babulal Khandelwal v Balkishan D Sanghvi, (2008) 10 SCC 485 (486-89).
111 Ashutosh Chaturvedi v Prano Devi, AIR 2008 SC 2171 : AIR (1975 Pat 336 : AIR 1986 Ori 119
: (2004) 3 SCC 392 : AIR 1957 SC 357 and 2006 (13) Scale 332 relied on.
112 Bollepanda P Poonacha v KMMadapa, (2008) 13 SCC 179 (183-85).
113 Sampath Kumar v Ayyakannu, AIR 2002 SC 3369 (3372); see also Siddalingamma v Mamtha
Shenoy, AIR 2001 SC 2896 : (2001) 8 SCC 561 .
114 Vimal Chand Ghavarchand Jain v Ramakant Eknath Jadoo, (2009) 5 SCC 713 (726).
115 LCHanumanthappa vHB Shivakumar, AIR 2015 SC 3364 .
116 Gurdial Singh v Raj Kumar Aneja, AIR 2002 SC 1003 (1010) : (2002) 2 SCC 445 .
117 Bijendra Nath Srivastava v Mayank Srivastava, AIR 1994 SC 2562 : (1994) 6 SCC 117 .
118 Heeralal v Kalyan Mat, AIR 1998 SC 618 (621, 622) : (1998) 1 SCC 278 : (1998) 1 MLJ (SC)
101.
119 Bharat Coking Coal Ltd v Raj Kishore Singh, AIR 2000 SC 3577 (I) : (2000) 9 SCC 174 .
120 Ravindra Kumar v State, AIR 2013 Kar 126 .
121 Usha Devi v Rijwan Ahmad, AIR 2008 SC 1147 .
122 Jagath Swapna & Co v Chuch of South India Trust Assocn, AIR 2011 AP 81 (87).
123 Mahila Ramkali Devi v Nandram, AIR 2015 SC 2270 .
124 Kiran Tigga v GEL Church, 2011 AIR CC 1175 (1176) (Jha).
125 Prithi Pal Singh v Amrik Singh, (2013) 9 SCC 576 .
126 Ramesh Kumar Agarwal v Rajmala Exports Pvt Ltd, AIR 2012 SC 1887 .
127 Abdul Rehman v Mohd Ruldu, (2012) 11 SCC 341 .
128 North Eastern Rly Admn v Bhagwan Das, (2008) 8 SCC 511 (517).
129 South Kankan Distilleries v Prabhakar Gajanan Naik, (2008) 14 SCC 632 (637).
130 Rajkumar Gurawara v SKSarwagi & Co (P) Ltd, (2008) 14 SCC 364 (367-69).
131 Alkapuri Co-op Housing Society Ltd v Jayantibhai Naginbhai, AIR 2009 SC 1948 .
132 BharatKThakkar v Kiran Construction Co, AIR 2008 SC 2134 .
133 Sushil Kr Jain v Manoj Kumar, AIR 2009 SC 2544 .
134 Vishambhar v Laxminarayana, AIR 2001 SC 2607 (2610) : (2001) 6 SCC 163 .
135 Pankaja v Yellappa, AIR 2004 SC 4102 (4104).
136 Muni Lal v Oriental Fire & General Insurance Co Ltd, AIR 1996 SC 642 (644).
137 Pankaja v Yellappa, AIR 2004 SC 4102 (4104).
138 KRaheja Constructions Ltd v Alliance Ministries, AIR 1995 SC 1768 : 1995 Supp (3) SCC 17 .
139 Radhika Devi v Bajrangi Singh, AIR 1996 SC 2358 : (1996) 7 SCC 486 .
140 Hanamanthappa v Chandrashekharappa, AIR 1997 SC 1307 : (1997) 9 SCC 688 .
141 Salem Advocate Bar Assocn v UOI, AIR 2005 SC 3353 (3362); see also Rani Sahi v Biresh Pd
Sahi, 2005 AIHC 3460 (Jhar); Rabindra Nath Mahato v Manovaniam Mahato, 2005 AIHC 3815
(Jhar).
142 Saroj Rani v Sudarshan Kumar, AIR 1984 SC 1562 (1566) : (1984) 4 SCC 90 .
143 South Kankan Distilleries v Prabhakar Gajanan Naik, (2008) 14 SCC 632 (637) : AIR 2008 SC
2139 .
144 K Venkateswara Rao v BN Reddi, AIR 1969 SC 872 .
145 Satappa v Ramanathan, AIR 1958 SC 245 (252) : 1958 SCR 1024 .
146 Shanti Kumar v Home Insurance Co, New York, AIR 1974 SC 1719 (1722); see also Charan
Das v Amir Khan, AIR 1921 PC 50 : 47 IA 255.
147 Kurapati V Mallayya v Thoudepu Ramaswami, AIR 1964 SC 818 (823) : 1963 Supp (2) SCR
995 : (1963) 2 MLJ (SC) 110.
148 Pirgonda H Patil v Kalgonda S Patil, AIR 1957 SC 363 (365) : 1957 SCR 595 : 59 Bom LR 401;
see also Harish Chandra v Triloki Singh, AIR 1957 SC 444 : 1957 SCR 370 .
149 Chandra Kanta Bansal v Rajinder Singh, AIR 2008 SC 2234 (2237), UOI v Pramod Gupta, 2005
(12) SCC 1 : 2005 AIR SCW 4645, relied on.
150 NC Bansal v Uttar Pradesh Financial Corporation, AIR 2018 SC 685 : 2018 (1) SCALE 479 :
(2018) 2 SCC 347 : 2018 (2) Bom CR 263 .
151 Vidyabati v Padmalatha, AIR 2009 SC 1433 (1436), (2009) 2 SCC 409, Ameer Trading Corpn
Ltd v Shapoorji Data Processing Ltd, (2004) 1 SCC 702 (Referred), Kailash v Nanku, (2005) 4 SCC
480 : 2005 AIR SCW 2346 (relied on), See also Syed Mohd AP Ishaque v State of WB, AIR 2008
(NOC) 2483 (Cal).
152 South Konkan Distilleries v Prabhakar Gajanan Naik, AIR 2009 SC 1177 (1179), See also
Eastern Business Pvt Ltd v Manika Dhar, AIR 2009 (NOC) 1465 (Gau).
153 Gurbaksh Singh v Buta Singh, AIR 2018 SC 2635 .
154 State of Bihar v Modern Tent House, AIR 2017 SC 4966 : 2017 (9) SCALE 425 : (2017) 8 SCC
567 : 2018 138 RD 745.
155 Voltas Ltd v Rolta India Ltd, AIR 2014 SC 1772 ; Revajeetu Builders and Developers v
Narayanaswamy and Sons, (2009) 10 SCC 84 .
156 Punjab National Bank v Indian Bank, AIR 2003 SC 2284 (2291) : (2003) 6 SCC 79 ; see also
LD Kabarwala v NC Kabarwala, AIR 1964 SC 11 .
157 MC Agrawal v Sahara India, AIR 2008 SC 2887 (2888).
158 Peethani Suryanarayana v Repaka Venkata Ramana Kishore, (2009) 11 SCC 308 (311).
159 Nanduri Lakshminarsimhachari v Agasteshwar Swamivam, AIR 1960 SC 622 (624) : (1960) 2
SCR 768 .
160 Vijay Kalia v Deep Suneja, 2011 AIR CC 1328 (1329) (Utr).
161 Gayathri Women's Welfare Association v Gowramma, AIR 2011 SC 785 (790, 793) : (2011) 2
SCC 330 .
162 Shikharchand Jain v DJP Karini Sabha, AIR 1974 SC 1178 (1182) : (1974) 1 SCC 675 : (1974)
3 SCR 101 .
163 State of Kerala v GMSouthern Rly, AIR 1976 SC 2538 (2542).
164 Ganga Bai v Vijai Kumar, AIR 1974 SC 1126 (1130) : (1974) 2 SCC 393 : (1974) 3 SCR 882 .
165 GopalKKetkar v Mohd Zaffar, AIR 1954 SC 5 (8).
166 SKumar v Institute of C & P Studies, AIR 1984 SC 59 : (1983) 4 SCC 516 : 1984 SCC (L&S) 18
.
167 Revajeetu Builders & Developers v Narayanaswami & Sons, (2009) 10 SCC 84 (101).
168 Dwarka Prasad v ADJ, Bharatpur, AIR 2008 (NOC) 1482 (Raj) (DB); CSA No 502 of 2005, Dt 2
August 2007.
169 Jagdish Singh v Natthu Singh, AIR 1992 SC 1604 (1607).
170 Dondapati Narayana Reddy v Duggireddy V Reddy, AIR 2001 SC 3685 : (2001) 8 SCC 115 .
171 Mohan Raj v Surendra Kumar, AIR 1969 SC 677 (681) : (1969) 1 SCR 630 .
172 Puran Ram v Bhaguram, AIR 2008 SC 1960 .
173 Chander Kanta Bansal v Rajinder Singh Anand, (2008) 5 SCC 117 (121-23).
174 Ashutosh Chaturvedi v Prand Devi, (2008) 15 SCC 610 .
175 MCMehta v UOI, AIR 1987 SC 1086 (1089) : (1987) 1 SCC 395 : 1987 SCC (L&S) 37 .
176 K Kamaraja Nadar v Kunju Thevar, AIR 1958 SC 687 (697) : 1959 SCR 583 : (1958) 2 MLJ
(SC) 52.
177 Aminlal v Hunnamal, AIR 1965 SC 1243 (1246, 1247) : (1965) 1 SCR 393 .
178 AIR 1978 SC 483 reversing a decision of P&H High Court 1976 Cur LJ 135 .
179 Nichhalbhai v Jaswantlal Zinabhai, AIR 1966 SC 997 (999).
180 Paragon Rubber Industries v Pragathi Rubber Mills, (2014) 14 SCC 762 .
181 Estralla Rubber v Dass Estate (P) Ltd, AIR 2001 SC 3295 (3297, 3298) : (2001) 8 SCC 97 .
182 Pancham Dass v SGPC, Amritsar, AIR 1991 SC 511 : 1991 Supp (2) SCC 511 .
183 Ghaziabad Development Authority v Anoop Singh, AIR 2003 SC 1004 (1007) : (2003) 2 SCC
484 .
184 Panchdeo Narain Srivastava v Jyoti Sahay, AIR 1983 SC 462 : 1984 Supp SCC 594 .
185 Maitreyu Banerjee v Prabir Kumar, AIR 1982 SC 17 : (1982) 3 SCC 217 .
186 Harcharan v State of Haryana, AIR 1983 SC 43 (45).
187 Raghbir v State of Haryana, AIR 1981 SC 2037 : (1981) 4 SCC 210 .
188 Jaijai Ram v Nation Building Co, AIR 1969 SC 1267 (1269) : (1969) 1 SCC 869 .
189 LJ Leach & Co v Jordine Skinner, AIR 1957 SC 357 (362); Charandas v Amir Khan, AIR 1921
PC 50 relied on.
190 Lakhi Ram v Trikha Ram, AIR 1998 SC 1230 (1232) : (1998) 2 SCC 720 ; Gajanan J Joshi v
PrabhakarMKalwar, (1990) 1 SCC 166 : 1990 Mad LJ 212 followed.
191 Jayanti Roy v Dass Estate Pvt Ltd, AIR 2002 SC 2394 : (2002) 5 SCC 175 .
192 BKandassamy Reddiar v O Gomathi Ammal, AIR 2001 SC 1931 : (2001) 4 SCC 394 .
193 Santokh Singh v Mahant Iqbal Singh, AIR 2000 SC 3155 (3156) : (2000) 7 SCC 215 .
194 Sampath Kumar v Ayyakannu, AIR 2002 SC 3369 (3371).
195 Fritiz TM Clement v Sudhakaran Nadar, AIR 2002 SC 1148 (1150).
196 Re: Jaywantrao Punalalikrao Jadhav, AIR 2014 Bom 23 .
197 BKNPillai vPPillai, AIR 2000 SC 614 (616) : (2000) 1 SCC 712 .
198 Raghunath G Panhale v Chaganlal Sundarji, AIR 1999 SC 3864 (3872) : (1999) 8 SCC 1 .
199 Gajanan Krishnaji Bapat v Dattaji Raghobaji Meghe, AIR 1995 SC 2284 (2317) : (1995) 5 SCC
347 .
200 Manoj Beharilal Mathur v Shanti Mathur, AIR 1997 SC 2153 : (1997) 1 SCC 553 .
201 Jagath Swapna & Co v Church of South India Trust Assocn, AIR 2011 AP 81 (85).
202 Mohd Mustafa v Abu Bakar, AIR 1971 SC 361 : (1970) 3 SCC 891 .
203 AK Gupta v Damodar Valley Corpn AIR 1967 SC 96 ; LJ Leach & Co v Jardine, AIR 1957 SC
357 : 1957 SCR 438 : 59 Bom LR 395; Pirgonda HPatil v K Shidgonda, AIR 1957 SC 363 ; Charan
Das v Amir Khan, AIR 1921 PC 50 ; Weldon v Neale, (1887) 19 QBD 394 relied on.
204 Ishwardas v State of MP, AIR 1979 SC 551 : (1979) 4 SCC 163 .
205 Vineet Kumar v Mangal Sen, AIR 1985 SC 817 (820); see also AK Gupta v Damodar Valley
Corpn, AIR 1967 SC 96 relied on.
206 Mohammad Tariq Mia v Ghulam Qadir Bhat, AIR 2012 J&K 1 .
207 DN Jeevaju vDSudhakar, AIR 2011 SC 1158 .
208 Ashutosh Chaturvedi v Prano Devi, (2008) 15 SCC 610 (614).
209 Prem Chandra v Subhash Chand Saini, AIR 2008 Del 204 (205); see also Surendra Kumar
Sharma v Makhan Singh, (2009) 10 SCC 626 .
210 Gauri Shankar v Hindustan Trust, AIR 1972 SC 2091 (2095) : (1973) 2 SCC 127 .
211 KLS Coal Concern v Khanson & Co, AIR 1971 SC 437 : (1971) 3 SCC 965 .
212 Chander Kanta Bansal v Rajinder Singh Anand, (2008) 5 SCC 117 (122).
213 ND Tiwari v Rohit Shekhar, 2011 (121) DRJ 170 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 18. Failure to amend after
order
© 2020 LexisNexis
THE FIRST SCHEDULE
214[R. 18.
Failure to amend after order
If a party who has obtained an order for leave to amend does not amend accordingly
within the time limited for that purpose by the order, or if no time is thereby limited then
within fourteen days from the date of the order, he shall not be permitted to amend after
the expiration of such limited time as aforesaid or of such fourteen days, as the case
may be, unless the time is extended by the Court.]
Substitute the following for Rule 18:
"Where a party has obtained an order to amend and the amendment is extensive, within
a time limited for that purpose by the order, or if no time is thereby limited, then, within
fourteen days from the date of the order, he shall file a consolidated pleading
incorporating the amendments and he shall not be permitted to amend after the
expiration of such limited time as aforesaid or of such fourteen days, as the case may
be, unless the time is extended by the Court.
In all other cases, the Bench clerk shall carry out the amendment." (14-5-1984)
COMMENT—
Important Note.—
Comments, Case law and State/High Court Amendments hereinafter should be read
2002).—
By Code of Civil Procedure (Amendment) Act, 1999 rule 18 was omitted. By Code of
Civil Procedure (Amendment) Act, 2002 the old rule 18 verbatim has been restored.
By 1999 Amendment rule 18 was omitted. Clause 16 of the Notes on Clauses provided
as under:
"Clause 16.—Order VI of the Code provides for pleadings generally. Clause 16 seeks to
provide that person verifying the pleading shall furnish an affidavit in support of his
pleadings. This clause omits rules 5, 17 and 18 of O VI to bring in consistency with new
changes in the Code."
The only consequence of the failure to amend within time would be that a party cannot
amended his pleading afterwards unless time is extended by the Court. However, this
rule does not prohibit a fresh suit being brought on the same cause of action when the
amendment has not been made in time. The Court has a discretion to extend the time
even after the expiry of the period originally fixed and no appeal will lie against an order
admitting an amended plaint after the time fixed.
Where no steps are taken to carry out the amendment for several months after the
order, refusal to allow amendment is justified.215
vide Notfn. S.O. 604(E), dt. 6-6-2002, section 7.
Earlier R. 18 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (not enforced),
before its omission stood as under :
'If a party who has obtained an order for leave to amend does not amend accordingly within the
time limited for that purpose by the order, or if no time is thereby limited then within fourteen
days from the date of the order, he shall not be permitted to amend after the expiration of such
limited time as aforesaid or of such fourteen days, as the case may be, unless the time is
extended by the Court.'
215 Dilbagh Rai Jerry v UOI, AIR 1974 SC 130 (135) : (1974) 3 SCC 554 : 1974 SCC (L&S) 89 :
(1974) 2 SCR 178 : (1978) 1 LLJ 164 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Particulars to be
contained in plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 1.
Particulars to be contained in plaint
The plaint shall contain the following particulars:—
(a) the name of the Court in which the suit is brought;
(b) the name, description and place of residence of the plaintiff; [KNT]
(c) the name, description and place of residence of the defendant, so far as they
can be ascertained; [KNT]
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect; [AP, KNT, K, M]
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set off or relinquished a portion of his claim,
the amount so allowed or relinquished; and
(i) a statement of the value of the subject matter of the suit for the purposes of
jurisdiction and of Court-fees, so far as the case admits. [B]
[Clause (d) substituted in AP, Kerala and Madras; Clauses (b), (c) and (d) substituted in
Karnataka; Clause (i) substituted in Bom.]
Bombay.—In item (i) at the end substitute comma for the full stop and add thereafter
"showing the provisions of law under which the valuation of the Court-fees and
jurisdiction is separately made." (1-11-1966).
Bombay (Dadra and Nagar Haveli) (Goa, Daman and Diu).— The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 402;
Goa Gazette, dated 12-10-1987, Extra, Section 1 No. 28, Page 376, dated 1-4-1987.
For item (i) substitute the following:

(i) a statement of the value of the subject-matter of the suit for the purposes of
jurisdiction and of Court-fees, so far as the case admits, showing the provisions of law
under which the valuation for Court-fees and jurisdiction is separately made. (1-10-
1983)
1967.
Delete Rule 1 and substitute the following:
1. The plaint shall contain the following particulars:
(a) the name of the Court in which the suit is brought;
(b) the name, age, description, place of residence and place of business, if any, of
the plaintiff;
(c) the name, age, description, place of residence and the place of business, if any,
of the defendant, so far as can be ascertained by the plaintiff;
(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect and in the case of a minor, his age to the best of the
knowledge and belief of the person verifying the plaint;
Provided that, where, owing to the large number of defendants or any other sufficient
cause, it is not practicable to ascertain with reasonable accuracy the age of the minor
defendants, it may be stated that the age of the minor defendants is not known;
(e) the facts constituting the cause of action and when it arose;
(f) the facts showing that the Court has jurisdiction;
(g) the relief which the plaintiff claims;
(h) where the plaintiff has allowed a set-off or relinquished a portion of the claim,
the amount so allowed or relinquished; and
(i) a statement of the value of the subject-matter of the suit for the purposes of
jurisdiction and Court-fees, so far as the case admits.
Kerala (Notfn. No. B1-3312/50 of 7-4-1959).—Same as in Madras omitting the proviso.
Madras (ROC No 1433/43).—Substitute the following for clause (d):
(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect, and in the case of a minor, a statement regarding his age to
the best of the knowledge and belief of the person verifying the plaint:
Provided that where, owing to the large number of defendants or any other sufficient
reason it is not practicable to ascertain with reasonable accuracy the age of the minor
defendant, it may be stated that the age of the minor defendant is not known." (Act 26
of 1968, Section 3 and Sch., Pt. II (w.e.f. 5-9-68)).
Punjab, Haryana and Chandigarh [Notfn. No. G.S.R. 17/C.S. 5/1908/S. 122/78, dated 15-
3-1991].—Insert the following new clause (j) after existing clause (i):—
"(j) A statement to the effect that no suit between the same parties, or between parties
under whom they or any of them claim, litigating on the same grounds has been
previously instituted or finally decided by a Court of competent jurisdiction or limited
jurisdiction, and if so, with what results."
COMMENT.—
Order VII lays down, in particular, the requirements of a plaint.
The rule provides that all that the plaintiff is required to do is to plead facts which
would entitle him to get a decree. It is not necessary for him to recite the law. But he
must plead all those facts which are within his special knowledge. The plaintiff must be
a legal person or a juristic entity such as a corporation.1 A school is not a legal entity.
It is settled law that the question of Court-fee must be considered in the light of all
material allegation contained in the plaint.2
A particular ground was not mentioned in the plaint. The validity of the notice was
challenged. It is not necessary that legal ground of challenge should have been sated in
the plaint.3
Formalities of plaint.—
The averments in the plaint should be read as a whole.4
In an election petition, the full particulars of the corrupt practice must be stated.
Omission to state material facts or give full details will make an election petition
alleging corrupt practice liable to be dismissed.5
What the plaint itself indicates is decisive. So, where the plaint indicates that it was a
"suit for the recovery of money for damages", it must be deemed to be so.6
Plaint is not a public document within the meaning of section 74 of the Evidence Act,
and therefore, the same cannot be admitted into evidence and marked as exhibit
without proving the contents thereof. Plaint may be admissible in proof of fact that a
particular suit was brought by a particular person against someone on a particular
allegation, but it cannot be admissible to prove the correctness of a statement
contained therein unless it is proved by direct evidence or by secondary evidence as
provided in the Evidence Act.7
In a suit for eviction, it was urged that suit property is not described properly. It was
held that if the suit premises as described are identifiable, then minor discrepancies are
not material. There is no ambiguity with regard to suit premises. Minor errors in the
description are of no consequence. This ground of error and/or discrepancy in
description of suit premises raised at the appellate stage is hyper-technical and
frivolous. Hence, eviction decree passed against tenant proper.8
Cause of Action.—
Cause of action arises when real dispute arises i.e., when one party asserts and other
party denies any right.9
Where the mis-description of the plaintiff was not an illegality going to the root of the
matter, besides the objection also not properly argued in the High Court despite liberty
given to the defendants, therefore, the objection as to the maintainability of the suit in
the name of sole proprietorship firm was overruled.10
1 1967 All LJ 602.

2 Neelawathi v N Natrajan, AIR 1980 SC 691 (693) : (1980) 2 SCC 247 : (1980) 2 MLJ 21 (SC) :
(1980) 2 SCR 307 .
3 State of UP v Satya Narain, AIR 1970 SC 1199 : (1969) 3 SCC 679 .
4 Kurella NDV Bhaskara Rao v Galla JKamma, (2008) 15 SCC 150 (154).
5 Subhas Desai v Sharad J Rao, AIR 1994 SC 2277 (2282) : 1994 Supp (2) SCC 446 .
6 State of Kerala vMAMathai, (2007) 10 SCC 195 (197).
7 Baijayanti Nanda v Jagannath Mahaprabhu, AIR 2014 Ori 128 .
8 Essjay Ericsson Pvt Ltd v Dilip Kumar Khandelwal, AIR 2016 Cal 6 .
9 Rashtriya Ispat Nigam Ltd v Prathyusha Resources and Infra Pvt Ltd, AIR 2016 SC 861 .
10 Rasiklal Manikchand Dhariwal v MSS Food Products, (2012) 2 SCC 196 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. In money suits
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
11R. 2.
In money suits
Where the plaintiff seeks the recovery of money, the plaint shall state the precise
amount claimed: [KNT]
But where the plaintiff sues for mesne profits, or for an amount which will be found
due to him on taking unsettled accounts between him and the defendant, 12[or for
movables in the possession of the defendant, or for debts of which the value he
cannot, after the exercise of reasonable diligence, estimate, the plaint shall state
approximately the amount or value sued for].
[Para 1 amended in Karnataka]
Amendment of First Schedule.—In the First Schedule to the Code, in Order VII, after
Rule 2, the following Rule shall be inserted, namely:—"2A. Where interest is sought in
the suit.—(1) Where the plaintiff seeks interest, the plaint shall contain a statement to
that effect along with the details set out under sub-rules (2) and (3).
(2) Where the plaintiff seeks interest, the plaint shall state whether the plaintiff is
seeking interest in relation to a commercial transaction within the meaning of Section
34 of the Code of Civil Procedure, 1908 (5 of 1908) and, furthermore, if the plaintiff is
doing so under the terms of a contract or under an Act, in which case the Act is to be
specified in the plaint; or on some other basis and shall state the basis of that.
(3) Pleadings shall also state—
(a) the rate at which interest is claimed;
(b) the date from which it is claimed;
(c) the date to which it is calculated;
(d) the total amount of interest claimed to the date of calculation; and
(e) the daily rate at which interest accrues after that date.;
Delhi.—Same as that of Punjab.
Himachal Pradesh.—Same as in Delhi.
1967.

"2.Where the plaintiff seeks for recovery of money the plaint shall state the precise
amount claimed, and wherever a statement of account or a memorandum of
calculation is necessary for the purpose, such statement or memorandum shall be set
out in the schedule to the plaint or separately annexed thereto.
But where the plaintiff sues for mesne profits, or for an amount which will be found due
to him on taking unsettled accounts between him and the defendant, the plaint shall
state approximately the amount sued for."
Punjab, Haryana & Chandigarh.— The following amendments were made by Punjab
Gazette, dated 12-5-1909, Act 31 of 1966, Sections 29 and 32, dated 1-11-1966.
In the second paragraph after the word 'defendant' insert "or for movables in the
possession of the defendant, or for debts of which the value he cannot, after the
exercise of reasonable diligence, estimate" and after the word "amount" where it last
occurs insert "or value".
COMMENT.—
This Rule was amended in order to indicate as to what should be done where the suit is
for movable property in the possession of the defendant or for debt of which the value
cannot be estimated. It has been made clear that in such a case the plaint shall state
the approximate amount or value of the movable property or debt, as the case may be.
In suit for the recovery of money, the plaint should state the amount claimed precisely.
Regarding mesne profits, the approximate amount sued for must be stated in the plaint.
The future mesne profits need not be valued, since it is impossible to give even an
approximate statement of the amount.
It has been held by the Supreme Court that in appropriate case the Court can grant past
mesne profits, even if not specifically asked for.13
Reference may also be made to a Full bench decision of Jammu and Kashmir High
Court in Triloki Nath Dhar v Dharmarth Counsel, Srinagar, AIR 1975 J&K 76 (FB).
It has been held by the Supreme Court in Loonkaran Sethiya v Iyan E John, AIR 1977 SC
336 : (1977) 1 SCC 379 that in money suit for specific and ascertained sum, on finding
of non-settlement of account, the Court must either dismiss the suit or pass
preliminary decree for settlement of accounts affording full opportunity to the
defendants. It was further held that a Court cannot itself determine the amount due
and pass a decree.
In a case for recovery of debt. Where the debtor is suffering hardship due to terrorist
activity, direction to the creditor to grant interest holiday to debtor, cannot be issued by
the Court.14
The plaintiff borrowed money from the defendant and a sale deed to secure loan was
executed. Reconveyance on repayment was agreed. Repayment was made by the
plaintiff and a receipt with oral promise of reconveyance was obtained from the
defendant. Subsequently mutation of land under sale deed was made in favour of the
defendant. A suit there upon was filed by the plaintiff for declaration that he was an
absolute owner and for injunction. The suit in fact was based on sale deed and not an
order of mutation. The cause of action arose when repayment was made. The plaint
was liable to be rejected as barred by limitation.15
12 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 57, for certain
words (w.e.f. 1-2-1977).
13 Gopalakrishna Pillai v Meenakshi Ayal, AIR 1967 SC 155 : 1966 Supp SCR 128 : 1967 BLJR
222 : (1967) 1 MLJ (SC) 89.
14 Delhi Financial Corpn. v BB Behel, AIR 1999 SC 2358 (2361) : (1999) 3 SCC 298 .
15 NMSrinivasa Murthy v Mariyamma, AIR 2005 SC 2897 (2899).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Where the subject-
immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 3.
Where the subject-immovable property
Where the subject-matter of the suit is matter of the suit is immovable property, the
plaint shall contain a description of the property sufficient to identify it, and, in case
such property can be identified by boundaries or numbers in a record of settlement or
survey, the plaint shall specify such boundaries or numbers. [B, C, GAU]
[Rule amended in Bom, Cal & Gauhati.]
Bombay.—At the end of the rule add:—"In case of encroachment, sketch showing as
approximately as possible the location and the extent of the encroachment shall also
be filed along with the plaint". (1-10-1983).
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 402,
Goa Gazette, dated 12-10-1987, Extra., Section 1 No. 28, Page 376, dated 1-4-1987.
For Rule 3, substitute the following:—
"3. Where the subject-matter of the suit is immovable property.—Where the subject-
matter of the suit is immovable property, the plaint shall contain a description of the
property sufficient to identify it, and, in case such property can be identified by
boundaries or numbers in a record of settlement of survey, the plaint shall specify such
boundaries or numbers. In case of encroachment a sketch showing as approximately
as possible the location and extent of the encroachment shall also be filed along with
the plaint." (1-10-1983)
Calcutta (No 11 of 1918).—At the end of the rule add:—"and where the area is mentioned,
such description shall further state the area according to the notation used in the
record of settlement or survey, with or without, at the option of the party, the same area
in terms of the local measures."
COMMENT.—
Where a suit as an immovable property has been decreed and the property is not
definitely identified, the defect in the Court records caused by overlooking of provisions
contained in O VII, rule 3 and O XX, rule 3 of Code of Civil Procedure, is capable of being
cured. Resort can be had to section 152 or section 47 of Code of Civil Procedure
depending on the facts and circumstances of each case.16
From a plain reading of O VII, rule 3 of the Code of Civil Procedure it is evident that the
underlined object is to ensure that a decree involving immovable property can be
executed with proper identification of the suit property and therefore, the said provision
is directory in nature. If there arises any confusion in identifying the property, the court
would be entitled to call for additional particulars and such lacunae, if any would be
curable in nature. When it is not the case of the defendant/respondent that the plaintiff
has deliberately suppressed the factual particulars and sufficient material is available
on record to identify the suit land then, though the plaintiff while claiming easementary
right of way had not defined the suit land properly, the plaint is not liable to be
returned.17
The object of the provision is that the description of the property must be sufficient to
identify it. The property can be identifiable by boundaries, or by number in a public
record of settlement or survey. Even by plaint map showing the location of the disputed
immovable property, it can be described.18
17 Dwaraka Prasad Agarwalla v Nil Kamal Bezbarua, AIR 2015 Gau 33 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. When plaintiff sues as
representative
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 4.
When plaintiff sues as representative
Where the plaintiff sues in a representative character the plaint shall show not only
that he has an actual existing interest in the subject-matter, but that he has taken the
steps (if any) necessary to enable him to institute a suit concerning it. [KNT]
[Rule substituted in Karnataka.]
Karnataka.— The following amendments were made by Karnataka Act, dated 30-3-1967.
For Rule 4, substitute the following:
"4. (1) Where the plaintiff sues in a representative character, the plaint shall show not
only that he has an actual existing interest in the subject-matter, but also that he has
taken the steps (if any) necessary to enable him to institute a suit concerning it.
(2) When the permission of the Court under Rule 8 of Order I of this Code is sought,
before or at the time of the institution of the suit, the plaint shall be accompanied by an
application supported by an affidavit stating the number or approximate number of
parties interested, the places where they respectively reside, that they have all the same
interest in the subject-matter of the suit and the nature of the said interest, and the best
means of giving notice of the institution of the suit to the said parties. If the permission
sought is granted, the plaint shall state, or be amended so as to state that the plaintiff
sues on behalf of himself and all other persons interested in the subject-matter of the
suit and that he has been permitted by the Court to do so by an order of Court made on
a particular date, in the application mentioned above." (30-3-1967).
COMMENT.—
According to this rule, if the plaintiff files a suit in representative capacity, the plaint
must show the following:
(i) that the plaintiff has an actual existing interest in the subject-matter; and
(ii) that he has taken the steps that may be necessary to enable him to file a
representative suit.
It has been held by the Supreme Court that a person who has made substantial
donation to a temple can maintain a suit under this rule on behalf of the deity against a
trustee guilty ofmismanagement.19
19 Ram Chandv Thakur Janki Ballabbji, AIR 1970 SC 532 : (1969) 2 SCC 313 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Defendant’s interest and
liability to be shown
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 5.
Defendant's interest and liability to be shown
The plaint shall show that the defendant is or claims to be interested in the subject-
matter, and that he is liable to be called upon to answer the plaintiff's demand.
COMMENT.—
If the defendant is sued in a representative capacity, it is incumbent on the plaintiff to

state the capacity in which the plaintiff seeks to make him liable, as otherwise any
decree passed will bind no more than the defendant's individual interest. Thus, where a
suit was filed against the daughter individually and not as representing her father's
estate, it was held by the Privy Council that decree did not bind the estate.20
20 Lalit Mahan Pal Roy v Shrimati Dayamoyi Roy, AIR 1927 PC 41 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Grounds of exemption
from limitation law.
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 6.
Grounds of exemption from limitation law.
Where the suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from such law is
claimed:
21 [Provided that the Court may permit the plaintiff to claim exemption from the law of
limitation on any ground not set out in the plaint, if such ground is not inconsistent
with the grounds set out in the plaint.]
COMMENT.—
It is sufficient that the ground of exemption is apparent on the face of the plaint. Rule
must be construed liberally. Thus, it is not necessary that the plaint should specifically
and in so many words, claim the ground of exemption.22
The proviso has been inserted to this rule newly which empowers the Court to permit
the plaintiff to rely on a new ground for exemption so long as that ground is not
inconsistent with the ground specified in the plaint.
In a suit for enforcement of right to pre-emption, the plea of limitation had not been
raised in the written statement initially. The same was allowed to be raised by way of
amendment in the appeal. It was the duty of the Court to see that the suit if barred by
limitation was dismissed, irrespective of a plea about it, was raised or not. The
amendment sought by the plaintiff was with a view to get over bar of limitation. The
dismissal of suit was proper.23
22 1971 Cur LJ 137 .
23 Gojabai v Gangabai Ramchandra Pawar, AIR 1980 SC 1436 (1438) : (1980) 2 SCC 329 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Relief to be specifically
stated
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 7.
Relief to be specifically stated
Every plaint shall state specifically the relief which the plaintiff claims either simply or
in the alternative, and it shall not be necessary to ask for general or other relief which
may always be given as the Court may think just to the same extent as if it had been
asked for. And the same rule shall apply to any relief claimed by the defendant in his
written statement.
COMMENT.—
Every plaint shall state specifically the relief which the plaintiff claims either expressly
or in the alternative. But a general or other relief need not, however, be specifically
asked for but may be given by the Court as if it had been asked for.
The allegations made in the plaint decide the forum. The jurisdiction does not depend
upon the defence taken by the defendants in the written statement.24
If a suit for specific performance is dismissed, a decree for refund of deposit can be
granted although no such alternative claim was asked for.25
Relief larger than claimed cannot be granted.—
Where a larger relief is prayed for in a suit and no case is made out for granting the
same, but the established facts justify granting a smaller relief, then this provision
permits granting of such a smaller relief. Under this provision a relief larger than the
one claimed by the plaintiff in the suit cannot be granted.26
Cause of action, meaning of.—
The cause of action as understood in Civil Proceedings means every fact which, if
transversed, it would be necessary for the plaintiff to prove in order to support his right
to a judgment of the Court. It is bundle of facts which taken with law applicable to
them, gives the plaintiff a right to relief against the defendant.27
No relief on subsequent agreement.—

Where a plaintiff alleged a contract of which he sought specific performance but failed
to establish, relief cannot be given on the basis of subsequent agreement when it was
not proved to be fresh or independent contract.28
A suit for ejectment without notice to quit under section 106 of Transfer of Property Act
is not maintainable. The lessee does not become tenant at sufferance on the expiry of
term under unregistered lease executed before filing of suit. rule 7 of O VII Code of Civil
Procedure is not attracted.29
In VR Subramanayam v B Thayappa, AIR 1966 SC 1034 : (1961) 3 SCR 663 : 1961 KLT 37
(SC) the Supreme Court has held that where compensation is claimed under an oral
contract for work done for the defendant, the Court can grant compensation under
section 70 of the Contract Act on the basis of an implied contract, even though oral
contract is not proved by the plaintiff.
A party cannot be granted a relief which is not claimed, if the circumstances of the
case are such that the granting of such relief would result in serious prejudice to the
interested party and deprive him of valuable rights under the statute.30
The plaintiff cannot base new cause of action of plea of the defendant unless he
amends the plaint or files separate proceedings.31
If the suit is for possession and past mesne profits the Court can grant future mesne
profits even if not asked for specifically.32 But where the suit is merely for possession
and no mesne profits are asked for, past or future, the Court cannot grant future profits
as part of the general relief. The plaintiff can seek remedy taking separate steps
according to law.33 Where no claim for mesne profits from the date of the suit was
made in the plaint it cannot be awarded in appeal.34
It has been held by the Supreme Court - in Udhav Singh v Madhav Rao Scindia, AIR 1976
SC 744 : (1977) 1 SCC 511 as follows:
.... a pleading has to be read as a whole to ascertain its true import. It is not permissible to
call out a sentence or a passage and to road it out of the context, in isolation. Although it is
the substance and not merely the form that has to be looked into, the pleading has to be
construed as it stands without addition or subtraction of words, or change of its apparent
grammatical sense. The intention of the party concerned is to be gathered primarily from
the tenor and terms of his pleading taken as a whole.35
Powers of the Appellate Court.—
An Appellate Court cannot take notice of a law passed subsequently which is not
retrospective in effect.36 So also the power conferred by O XLI, rule 33, cannot be
exercised in this respect so as to affect a vested right.37
However, for making the right or remedy claimed by the party just and meaningful as
also legally and factually in accord with the current realities, the Court can, and in many
cases must, take cautious cognizance of events and developments subsequent to the
institution of the proceedings also provided the rules of fairness to both the parties are
scrupulously obeyed.
Cognizance of subsequent events.—

The procedure is the handmaid and not the mistress of the judicial process. A fact
arises after the lis has come to Court. It has a fundamental impact on the right to relief
or manner of moulding it. It is brought to the notice of the tribunal. Then the tribunal
cannot blink at it or be blind to the event which stultify or render inept the decretal
remedy. Equity justifies bending the rules of procedure, where no specific provision or
fair play is violated with a view to promote substantial justice.
Where, during the pendency of a proceeding under Rent Control Act by the landlord for
permission to evict the tenants, a subsequent event in the facts of the case takes place
which has a material bearing on the landlord's right to evict, the approach of the High
Court in taking cognizance of the new development cannot be said to be wrong or
illegal.38
Duty of counsel.—
Before the tall claims are made which cannot stand against law and the constitution,
those who make them should reasonably be sure that they are right.39
No overriding of the statutory limitations.—
The power under this rule does not enable a Court to override statutory limitations
contained in section 16 of the Specific Relief Act and section 54 of the Limitation Act,
1963 which preclude the grant of the relief of specific performance of a contract except
within the period prescribed by the section.40
Moulding of relief.—
The discretionary jurisdiction need not be conferred always by statute.41
Plea for inconsistent reliefs.—
A plaintiff sued for a declaration that a certain contract against him is void and
inoperative, having been obtained by undue influence. He cannot in the same suit, in
the alternative, ask for the relief of specific performance of the same contract. Such a
plea cannot be justified under O VII, rule 7 of Code of Civil Procedure. It must be shown
that each of such plea is maintainable if under this rule the plaintiff prays for
inconsistent reliefs.42
Right to relief.—
It is basic to our processual jurisprudence that the right to relief must be judged to exist
as on the date a suitor institutes the legal proceedings. This is an emphatic statement
that the right of a party is determined by the facts as they exist on the date the action is
instituted. Granting the presence of such facts, then he is entitled to its enforcement.
Later development cannot defeat his right. The Court's procedural delays cannot
deprive him of legal justice or rights crystallised in the initial cause of action. The
Courts can, however, take note of subsequent events and mould the relief accordingly.
Rights vested by statute cannot be divested by this equitable doctrine.43
Entire property cannot be given against claim for half.—
In a suit for partition where the plaintiff claimed only half share in the property, he
cannot be declared owner of entire property. A Court cannot make out a new case
which has not been pleaded.44
Suit for declaration of title & possession.—
Where neither the title of the plaintiff nor previous possession of the plaintiff nor
encroachment by the defendants was made out, the suit was held liable to be
dismissed.45
Ascertainment of date of dispossession not necessary.—
In a suit for title and possession of land the concurrent finds of lower Courts were that
the plaintiff had title to suit lands. It was held, on perusal of pleadings, that date of
dispossession was specifically pleaded and even otherwise in view of title having been
proved it was not necessary to ascertain date of dispossession.46
Suit for possession was filed based on the principal plea that the defendant being
licensee and as the license has been terminated the defendants are liable to vacate the
premises. Alternative plea was set up, that even under Rent Control Act the defendants
were liable to be evicted. The defendant's defence was that they were in occupation of
the premise as tenants. It was held by the Apex Court that plea related to eviction of
the defendants as tenants under Rent Control Act could be permitted to be alternatively
urged along with principal plea relating to license.47
24 Abdulla Bin Ali v Galappa, AIR 1985 SC 577 (579) : (1985) 2 SCC 54 .
25 Firm Sriniwas Ram Kumar v Mahabir Prasad, AIR 1951 SC 177 (179) : 1951 SCR 277 : 1951
MWN 337 : 30 Pat 673.
26 Rajendra Tiwary v Basudeo Prasad, AIR 2002 SC 136 (140) : (2002) 1 SCC 90 .
27 National Textile Corpn v Haribox Swalram, AIR 2004 SC 1998 (2003).
28 Ganesh Shet v CSGKShetty, AIR 1998 SC 2216 (2224) : (1998) 5 SCC 3811 .
29 Satish Chandv Goverdhan Das, AIR 1984 SC 143 (145) : (1984) 1 SCC 369 .
30 Om Prakash v Ram Kumar, AIR 1991 SC 409 (412) : (1991) 1 SCC 441 .
31 Om Prakash v Ram Kumar, AIR 1991 SC 409 (412) : (1991) 1 SCC 441 .
32 Gopal Krishna Pillai v Meenakshi Ayal, AIR 1967 SC 155 .
33 Sidramappa v Rajasthetty, AIR 1970 SC 1059 : (1970) 1 SCC 186 .
34 Bhagwati Prasadv Chandramoul, AIR 1966 SC 735 : (1966) 2 SCR 286 : 1966 ALJ 799 .
35 AIR 1976 SC 444 : (1977) 1 SCC 511 at p.521.
36 Chhote Khan v Mohammad Obedulakhan, AIR 1953 Nag 361 (FB).
37 Chhote Khan v Mohammad Obedulakhan, AIR 1953 Nag 361 (FB); see also ML Abdul Jabbar
Sahib v HVSastri, AIR 1969 SC 1147 .
38 P Venkateswarlu v Motor & General Traders, AIR 1975 SC 1409 (1410) : (1975) 1 SCC 770 :
(1975) 3 SCR 958 .
39 State of Punjab v Satya Pal, AIR 1969 SC 903 (915) : (1969) 1 SCR 478 .
40 Thakamma Mathew v Azamathulla Khan, AIR 1993 SC 1120 : 1993 Supp (4) SCC 492 .
41 UP State Brossware Corpn Ltd v Udai Narain Pandey, AIR 2006 SC 586 (593).
42 Prem Raj vDLFH&CLtd, AIR 1968 SC 1355 : (1968) 3 SCR 648 .
43 Rameshwar v Jot Ram, AIR 1976 SC 49 (52) : (1976) 1 SCC 194 ; see also Chokalingam
Chetty, AIR 1927 PC 252 ; Lachmeshwar Pd v K Lal, AIR 1941 FC 5 .
44 Gulabrao Balwantrao Shinde v Chhabubai Balwantrao Shinde, AIR 2003 SC 160 : (2003) 1 SCC
212 .
45 TK Mohammed Abubucker v PSM Ahmed Abdul Khader, (2009) 14 SCC 224 (232).
46 Gitarani Paul v Dibyendra Kundu, AIR 1991 SC 395 (397) : (1991) 1 SCC 1 : (1991) 1 GLH 419 .
47 Praful Manohar Rele v Krishnabai Narayan Ghosalkar, (2014) 11 SCC 316 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Relief founded on
separate grounds
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 8.
Relief founded on separate grounds
Where the plaintiff seeks relief in respect of several distinct claims or causes of
action founded upon separate and distinct grounds, they shall be stated as far as may
be separately and distinctly.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9. Procedure on admitting
plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
48[R. 9.
Procedure on admitting plaint
Where the Court orders that the summons be served on the defendants in the manner
provided in Rule 9 of Order V, it will direct the plaintiff to present as many copies of
the plaint on plain paper as there are defendants within seven days from the date of
such order along with requisite fee for service of summons on the defendants.]
[Sub-rule (1) amended in AP & Mad; sub-rule (1) substituted in Calcutta, Gauhati &
Orissa; Rule substituted in All, Bom, Karnataka, Kerala & MP].
HIGH COURT AMENDMENTS UNDER THE OLD RULE
Allahabad (Notfn No. 710/35(a)-1 (11) of 12-2-1927).—Rule substituted as follows:
"9 (1) The plaintiff shall endorse on the plaint, or annex thereto a list of the documents
(if any) which he has produced along with it.
(2) The chief ministerial officer of the Court shall sign such list and copies if, on
examination, he finds them to be correct."
Bombay.— Substitute existing rule 9 by the following :—
"9. Chief Ministerial Officer to sign lists and copies produced along with the plaint.
"(1). The plaintiff shall endorse on the plaint or annex thereto, a list of documents (if
any) which he has produced along with it.
(2). The Chief Ministerial Officer of the Court shall sign such lists and the copies of the
plaint with annexures presented under Rule 1 of Order IV, if on examination he finds
them to be correct". (1-10-1983).
Calcutta (Notfn No 10428-G of 27-7-1928 & No 3516-G of 3-2-1933).— Cancel sub-rule

(1) and substitute therefor the following:
"(1) The plaintiff shall endorse on the plaint, or annex thereto, a list of the documents (if
any) which he has produced along with it.
(1A) The plaintiff shall present with his plaint:—
(i) as many copies on plain paper of the plaint as there are defendants, unless the Court
by reason of the length of the plaint or the number of the defendants, or for any
sufficient reason, permits him to present a like number of concise statements of the
nature of the claim made, or of the relief claimed in suit, in which case he shall present
such statements;
(ii) draft forms of summons and fees for the service thereof." Gauhati—Same as in
Calcutta.
Karnataka.— For existing Rule 9 substitute the following :—
"9. The plaintiff shall present along with the plaint as many copies on plain paper of the
plaint as there are defendants, unless by reason of the length of the plaint or the
number of the defendants or for any other sufficient reason, the Court permits him to
present a like number of concise statements of the nature of the claim made or of the
relief claimed in the suit, in which case he shall present such statements. Where the
plaintiff sues or the defendant or any of the defendants is sued in a representative
capacity, such statements shall show in what capacity the plaintiff or the defendant
sues or is sued. The plaintiff may, by leave of the Court, amend such statements so as
to make them correspond with the plaint. The copies or concise statements, as the
case may be, shall bear an endorsement signed by the party or the pleader filing the
same to the effect that they are true and correct." (30-3-1967).
Kerala (Notfn No B1-3312/58 of 7-4-1959).—(i) For sub-rule (1) substitute—
"(1) The plaintiff shall endorse on the plaint, or annex thereto a list of the documents (if
any) which he has produced along with it, and shall present along with the plaint as
many copies on plain paper of the plaint as there are defendants".
(ii) omit sub-rules (2) and (3).
(iii) sub-rule (4) omit the words "or statements".
Madhya Pradesh (Notfn No 3409; 20-6-1943).— Substitute the following for Rule 9:—
"9. (1) The plaintiff shall endorse on the plaint or annex thereto a list of the documents
(if any) which he has produced along with it.
(2) The chief ministerial officer of the Court shall sign such list and the copies of the
plaint presented under Rule 1, of Order IV, if, on examination, he finds them to be
correct."
Madras (ROC No 1810 of 1926).—In sub-rule (1) after the word "and" delete the comma
and the five words following, viz "if the plaint is admitted" and insert the words "along
with the plaint" after "shall present". (Act 26 of 1968, S.3 and Sch., Pt. II (w.e.f. 5-9-1968)
Orissa—Deleted (14.5.1984)
Punjab, Haryana and Chandigarh.— The following amendments were made by Punjab
Government Gazette, dated 26-2-1982, Part III (L.S.), Page 141; Haryana Government
Gazette, dated 16-2-1982, Part III, (L.S.), Page 131 and Chandigarh Administration
Gazette, dated 1-4-1982, Part II, Page 32.
Substitute the following for sub-rule (1A) as follows:
"The plaintiff shall, within the time fixed by the Court or extended by it under sub -rule
(1), file summons in the prescribed form, in duplicate, after being duly filled in, for each
of the defendants and pay the requisite fee for the service thereof on the defendants".
N.B. See later amendments made by 1976 Amending Act.
COMMENT.—
2002).—
For rule 9 [as substituted by clause (i) of section 17 of the Code of Civil Procedure
(Amendment) Act, 1991 the present new rule 9 has been substituted. Under the new
rule on the admission of the plaint, the Court will direct the plaintiff to present copies of
the plaint within a period of seven days from the date of the order along with the
requisite process fee for service on the defendant/defendants. Under the old rule no
time limit was prescribed, obviously, the new provision is intended to expedite the
delay, which the plaintiff often caused in taking steps for the service of summons on
the defendant. Further under the old rule, there was provision requiring the plaintiff to
endorse on the plaint or to annex thereto, the list of the documents (if any which he had
filed along with the plaint, or instead of copy of the plaint could file concise statements
of the nature of the claim made or the relief claimed in the suit with the prior of the
Court, which the Court would permit by reason of the length of the plaint or the number
of the defendants or for any other sufficient reasons. Under the new rule both these
provisions have been omitted, obviously found unnecessary just to cut short the delays
in the trial of the cases. The old rule 9 ran thus:-
R. 9. Procedure on admitting plaint.—Concise statements.—(1) The plaintiff shall endorse on

the plaint, or annex thereto, a list of the documents (if any) which he has produced along
with it; and, [AP, M] if the plaint is admitted, shall present, [AP, M] within such time as may be
fixed by the Court or extended by it from time to time, "as many copies on plain paper of the
plaint as there are defendants, unless the Court by reason of the length of the plaint or the
number of the defendants, or for any other sufficient reason, permits him to present a like
number of concise statements of the nature of the claim made, or of the relief claimed in
the suit, in which case he shall present such statements. [C, GAU, OR].
(1A) The plaintiff shall, within the time fixed by the Court or extended by it under sub-
rule (1), pay the requisite fee for the service of summons on the defendants.
representative capacity, such statement shall show in what capacity the plaintiff or
defendant sues or is sued.
(3) The plaintiff may, by leave of the Court, amend such statements so as to make
them correspond with the plaint.
(4) The chief ministerial officer of the Court shall sign such list and copies [K] or
statements if, on examination, he finds them to be correct.
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.ef. 1-7-2002).
—
For the rule 9 the following new rule 9 was substituted:
R. 9. Procedure on admitting plaint.—(1) Where the plaint is admitted, the Court shall
give to the plaintiff summons in the name of all the defendants to be served upon or
get served in the manner provided under O V.
(2) Within two days of the receipt of summons under sub-rule (1), the plaintiff shall
send or cause to send the summons to the defendants along with the copy of the plaint
in the manner provided under O V.
(3) Where the Court orders that the summons be served on the defendants in the
manner provided in rule 9A of O V, it will direct the plaintiff to present as many copies
of the plaint on plain paper as there are defendants within two days from the date of
such order along with requisite fee for service of summons on the defendants._
Modifications.—This Rule has been amended with a view to make the following
modifications:
1. Rule 9 of O VII has been substituted by a new rule 9.
2. It lays down the procedure on admitting the plaint in consonance with the new
rule 9 of O V substituted by section 15 of the Amending Act, 1999.
3. On admission of plaint the Court will give summons to the plaintiff in the name of
defendants to be served upon them in the mode provided under O V rule 9A.
4. The plaintiff is required to furnish as many copies of the plaint as there are
defendants within two days from the date of such order along with requisite fee
for service of summons. The plaintiff will send the summons within two days of
the receipt to defendants along with copy of the plaint as per the modes provided
under O V rule 9A.
Notes on Clauses.—For Notes on clauses of the Code of Civil Procedure (Amendment)

Bill, 1999 see O VII rule 14.

(k) (of the repeal and savings section) stipulates that the provisions of rules 9, 11, 14,
15 and 18 of O VII of the First Sch, as amended or, as the case may be, substituted or
amended by section 17 of this Amendment Act, 1999 shall not apply to in respect of
any proceedings pending before the commencement of section 17 of the Amendment
Act, 1999.
Comments on the Amendment Act, 1999.—Plaint to be sent with summons,

and not mere concise statement.—
A new procedure has been prescribed when a plaint is admitted substituting the
existing rule 9.
The procedure of filing concise statement whenever a plaint is admitted has been done
away with because the whole plaint has to be sent with summons [New rule 2 of O V].
The plaintiff has to send the summons to the defendants within two days after the
receipt of the summons. The two days time limit was not there previously. Sub-rules 2,
3 and 4 of O IX relating to filing of concise statement have been deleted.
In rule 11 regarding grounds for rejecting a plaint, clauses (e), (f) and (g) are added
providing for three additional grounds for rejection—for failure to file the plaint in
duplicate and to comply with rule 9(2) and O V, rule 9A(3).

In sub-rule (1) of this rule, the words "shall present as many copies" have been
substituted by the words "shall present within such time as may be fixed by the Court or
extended by it from time to time as many copies".
This rule has been amended in order to empower the Court to extend the time for the
filing of copies of plaint which are to be fixed on its admission.
Sub-rule (1-A) has been added newly in order to make it clear that the plaintiff should
pay the requisite fees for the service of summons on the defendants within the time
fixed by the Court or extended by it from time to time.
Notfn. S.O. 604(E), dt. 6-6-2002, section 8, for the following :
R. 9. Procedure on admitting plaint.—(1) Where the plaint is admitted, the Court shall give to the
plaintiff summons in the name of all the defendants to be served upon or get served in the
manner provided under Order V.
(2) Within two days of the receipt of summons under sub-rule (1), the plaintiff shall send or
cause to send the summons to the defendants along with the copy of the plaint in the manner
provided under Order V.
(3) Where the Court orders that the summons be served on the defendants in the manner
provided in rule 9A of Order V, it will direct the plaintiff to present as many copies of the plaint
on plain paper as there are defendants within two days from the date of such order alongwith
requisite fee for service of summons on the defendants.
Earlier R. 9, subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
R. 9. Procedure on admitting plaint. Concise statements.—(1) The plaintiff shall endorse on the
plaint, or annex thereto, a list of the documents (if any) which he has produced along with it;
and, [AP, M] if the plaint is admitted, shall present, [AP, M] within such time as may be fixed by
the Court or extended by it from time to time, as many copies on plain paper of the plaint as
there are defendants, unless the Court by reason of the length of the plaint or the number of the
defendants, or for any other sufficient reason, permits him to present a like number of concise
statements of the nature of the claim made, or of the relief claimed in the suit, in which case he
shall present such statements. [C, GAU, OR].
(1A) The plaintiff shall, within the time fixed by the Court or extended by it under sub-rule (1),
pay the requisite fee for the service of summons on the defendants.
representative capacity, such statement shall show in what capacity the plaintiff or defendant
sues or is sued.
(3) The plaintiff may, by leave of the Court, amend such statements so as to make them
correspond with the plaint.
(4) The chief ministerial officer of the Court shall sign such list and copies [K] or statements if,
on examination, he finds them to be correct.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10. Return of plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
49[R. 10.
Return of plaint
(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit should have been
instituted. [B]
50[ Explanation. —For the removal of doubts, it is hereby declared that a Court
of appeal or revision may direct, after setting aside the decree passed in a suit,
the return of the plaint under this sub-rule.]
Procedure on returning plaint
(2) On returning a plaint the Judge shall endorse thereon the date of its
presentation and return, the name of the party presenting it, and a brief
statement of the reasons for returning it.
Bombay.— At the end of sub-rule (1) add the following:
"The plaintiff or his pleader shall be informed of the date fixed for the return of the
plaint." (1-11-1966).
Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 403.
In Order VII, rule 10, for the existing sub-rule (1) and its marginal note substitute the
following as sub-rule (1) and marginal note:
"10. Return of plaint.—(1) Subject to the provisions of rule 10A, the plaint shall at any
stage of the suit be returned to be presented to the Court in which the suit should have
been instituted. The plaintiff or his pleader shall be informed of the date fixed for the
return of the plaint." (1-10-83)
COMMENT.—
Where a Court arrives at the conclusion that it has no jurisdiction to try the suit, the
proper order to pass is, not dismissal of the suit but return of the suit for the
presentation to proper Court.51
The presentation of a plaint in a proper Court after return under rule 10 is not
continuation of the suit as filed in the wrong Court so as to attract section 4 of the
Limitation Act, 1908.52
Interference with dismissal of application.—
Where application under O VII, rule 10 of the Code for rejection/return of the plaint was
filed only to delay the progress of suit, dismissal of such application with costs did not
require any interference.53
Although the plaintiff's valuation ordinarily determines the forum, he cannot value a suit
arbitrarily in order to institute a suit in a Court of his choice.54
Order VII rule 10 is not applicable to chartered High Court.55
After return of the plaint presentation thereof before a court of competent jurisdiction
amounts to institution of a fresh suit, requiring commencement of trial afresh even if
same had concluded before the court which lacked jurisdiction. The subsequent suit
cannot be considered as continuation of the earlier suit. The plaintiff cannot be
permitted to take advantage of his own mistake and mistake of the court.56
When the suit is filed before wrong court, the plaint is to be returned to file it in proper
court as provided under that the suit is illegal for filing a suit before wrong court, not
proper.57
In a suit for cancellation of Sale Deed-the Order was passed for Return of Plaint. On the
ground of non-compliance of section 80, it was held that registering authorities need
not be made parties to the suit. Notice under section 80 for unnecessary return of
plaint for want of notice held illegal.58
49 The rule has been applied to suits for the recovery of rent under the Chotanagpur Tenancy
Act, 1908 (Ben. 6 of 1908), section 265.
51 RSDVFinance Co Pvt Ltd v Shree Ballabh Glass Works Ltd, AIR 1993 SC 2094 (2097) : (1993) 2
SCC 130 : (1993) 78 CC 640 .
52 Amar Chand v UOI, AIR 1973 SC 313 : (1973) 1 SCC 115 : (1973) 2 SCR 684 ; see also Maqbul
Ahmad v Pratap N Singh, AIR 1935 PC 85 , followed.
53 Laxman Pd v Prodigy Electronics Ltd, (2008) 1 SCC 618 .
54 Nandita Bose v Ratanlal Nahta, AIR 1987 SC 1947 : (1987) 3 SCC 705 .
55 Hindustan Construction and Commercial Corporation v UOI, AIR 2014 Cal 138 .
56 ONGC Ltd v Modern Construction and Company, AIR 2014 SC 83 .
57 Ivory Syiem v Bettymai Syiem, AIR 2014 Meg 9 .
58 Achanta Chaya Devi v State of Telangana, AIR 2018 Hyd 148 : 2018 (5) ALT 160 : 2018 (6)
ALD 6 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10A. Power of Court to fix
a date of appearance in the Court where plaint is to be filed after its return
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
59[R. 10A.
Power of Court to fix a date of appearance in the Court where plaint is to be
filed after its return
(1) Where, in any suit, after the defendant has appeared, the Court is of opinion
that the plaint should be returned, it shall, before doing so, intimate its decision
to the plaintiff.
(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may
make an application to the Court—
(a) specifying the Court in which he proposes to present the plaint after its
return,
(b) praying that the Court may fix a date for the appearance of the parties in
the said Court, and
(c) requesting that the notice of the date so fixed may be given to him and
to the defendant.
(3) Where an application is made by the plaintiff under sub-rule (2), the Court,
shall, before returning the plaint and notwithstanding that the order for return
of plaint was made by it on the ground that it has no jurisdiction to try the suit,
—
(a) fix a date for the appearance of the parties in the Court in which the
plaint is proposed to be presented, and
(b) give to the plaintiff and to the defendant notice of such date for
appearance.
(4) Where the notice of the date for appearance is given under sub-rule (3),—
(a) it shall not be necessary for the Court in which the plaint is presented
after its return, to serve the defendant with a summons for appearance
in the suit, unless that Court, for reasons to be recorded, otherwise
directs, and
(b) the said notice shall be deemed to be a summons for the appearance of
the defendant in the Court in which the plaint is presented on the date
so fixed by the Court by which the plaint was returned.
(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the
Court, the plaintiff shall not be entitled to appeal against the order returning
the plaint.]
COMMENT.—
Where a plaint was returned for presentation to proper Court, the plaintiff himself made
certain amendments and presented the plaint to proper Court, the plaint can be
considered to be a fresh or new plaint. It is not always necessary for the plaintiff to
seek amendment of the plaint under O VI, rule 17 Code of Civil Procedure.60

60 Hanamanthappa v Chandrashekharappa, AIR 1997 SC 1307 : (1997) 9 SCC 688 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10B. Power of appellate
Court to transfer suit to the proper Court
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
61[R. 10B.
Power of appellate Court to transfer suit to the proper Court
Where, on an appeal against an order for the return of plaint the Court hearing
theappeal confirms such order, the Court of appeal may, if the plaintiff by an
application so desires, while returning the plaint, direct plaintiff to file the plaint,
subject to the provisions of the Limitation Act, 1963, in the Court in which the suit
should have been instituted (whether such Court is within or without the State in
which the Court hearing the appeal is situated), and fix a date for the appearance of
the parties in the Court in which the plaint is directed to be filed and when the date is
so fixed it shall not be necessary for the Court to which the plaint is filed to serve the
defendant with the summons for appearance in the suit, unless that Court in which
the plaint is filed, for reasons to be recorded, otherwise directs.
(2) The direction made by the Court under sub-rule (1) shall be without any
prejudice to the rights of the parties to question the jurisdiction of the Court, in
which the plaint is filed, to try the suit.]
COMMENT.—
Where at any stage of the suit, it is found by the Court that it has no jurisdiction
(territorial or pecuniary) with regard to any suit, it is bound under this rule to return the
plaint to be presented to the proper Court in which the suit ought to have been
instituted.62 The Court can only return the suit, and cannot dismiss it.63
There is a distinction between the power to transfer and the power to return a plaint.
The power to transfer is possessed by the District Court, and the High Court, whereas
the power to return is possessed by the Civil Courts.
There has been a conflict of opinion on the point whether a Court in which a suit is
properly instituted can return the plaint by reason of subsequent legislation investing
jurisdiction in such suits in another Court. According to one view, such a return can be
made.64 A contrary view has been taken by Madhya Pradesh and Jammu and Kashmir
High Courts.65
This rule applies only to plaint and not to applications.66 Thus, a Court cannot under
this rule return an application for leave to sue in forma pauperis.
An explanation has been inserted to the sub-rule 10 of this rule to make it clear that the
Appellate Court or Court of Revision may after setting aside the decree passed in the
suit, return the plaint for presentation to the proper Court.
Sub-rule (2)—Returning the plaint without any of the endorsements required under sub-
rule 20 of the rule is an irregularity.67
Rule 10-A has been added to obviate the necessity of serving summons on the
defendant where the return of plaint is made after the appearance of the defendant in
the suit.
Rule 10-B has been added to rule 10 with a view to empowering the Court hearing an
appeal against an order of the return of plaint to direct that, instead of the plaint being
returned, the suit may be transferred to the Court in which it should have been
instituted. Further, provision for obviating the necessary for serving summonses on the
defendants, where the return of plaint was made after the appearance of the
defendants in the suit, have also been included in the rule.
61 Ins by Act 104 of 1976, section 57 (w.e.f. 1-2-1977).

62 (1884) 8 Bom 313 (FB); see also Maqbool Ahmad v Peer Mohammad Mali, AIR 1956 Hyd 177
(DB).
63 Kunwar Orendra Chandra Singh v Bulaqui Ram, AIR 1942 All 1 (FB) (1969) 71 Punj LR 522 .
64 Gulzari Singh v Ram Adhin, AIR 1938 Oudh 224 (DB).
65 Alam Chand Birumal v Motilal Balchand, AIR 1968 MP 112 , Firm Umar Joo Ahad Joo v Khaliq
Wagep, AIR 1972 J&K 1 (FB).
66 Madhav Pershad v Meer Hasan Ali, (1933) 143 Ind Cases 535 (FB).
67 Ratan Lalji Gulab Chand v Dali Chand, AIR 1954 Hyd 39 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Rejection of plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 11.
Rejection of plaint
The plaint shall be rejected in the following cases:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by
the Court to correct the valuation within a time to be fixed by the Court, fails to
do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to
supply the requisite stamp-paper within a time to be fixed by the Court, fails to
do so;
(d) where the suit appears from the statement in the plaint to be barred by any law;
68
[(e) where it is not filed in duplicate;]
69
[(f) where the plaintiff fails to comply with the provisions of rule 9.]
70 [Provided that the time fixed by the Court for the correction of the
valuation or supplying of the requisite stamp-papers shall not be extended
unless the Court, for reasons to be recorded, is satisfied that the plaintiff
was prevented by any cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp-papers, as the case may be, within
the time fixed by the Court and that refusal to extend such time would cause
grave injustice to the plaintiff.]
Calcutta Act, dated 25-7-1928.
Add the following as clause (e):—
"(e) Where any of the provisions of rule 9(1A) is not complied with and the plaintiff on
being required by the Court to comply therewith a time to be fixed by the Court, fails to
do so."

amendments were made by Assam High Court Order 1948, Clause 6 and Act 27 of 1962,
Sections 13 and 15, dated 1-12-1963, Act 81 of 1971, Section 28, dated 25-1-1972.
For item (c) substitute the following:
"(c) Where the relief claimed is properly valued, but the Court-fee actually paid is
insufficient and the plaintiff does not make good the deficiency within the time, if any,
granted by the Court." (30-3-67)
Madras (Pondicherry).— The following amendments were made by Tamil Nadu Act.
For clause (c) substitute the following:
"(c) Where the relief claimed is properly valued, but the plaint is written on paper
insufficiently stamped, and the plaintiff does not make good the deficiency within the
time, if any, granted by the Court."
Orissa (Notfn No 24-X-7-52; 30-3-1954).—Same as in Calcutta.
COMMENT.—
2002).—
In rule 11, for sub-clause (f) and (g) [as inserted by clause (ii) or section 17 of the Code
of Civil Procedure (Amendment) Act, 1999], the following sub-clause shall be
substituted, namely
"(f) where the plaintiff fails to comply with the provisions of rule 9."
See comments under Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)
under the rule above. The combined effect of Code of Civil Procedure (Amendment)
Act, 1999 (46 of 1999) and Code of Civil Procedure (Amendment) Act, 2002 is that two
more grounds have been added as a ground for the rejection of the plaint, namely,
firstly, the plaint is not filed in duplicate, secondly noncompliance of rule 9. Under the
new rule 9 on the admission of the plaint, the Court will direct the plaintiff to present
copies of the plaint within a period or seven days from the date of the order along with
the requisite process fee for service on the defendant/defendants. Thus, the Court
shall reject the plaint if the despite the Court's order the plaintiff does not file copies of
the plaint along with the process fee within a period of seven days for service on the
defendants. Still the period of seven days fixed by the Legislature appears to be
less/harsh may lead to the unnecessary rejection of the plaints under the provision.
2002).—
In rule 11, after sub-clause (d), the following sub-clauses were inserted, namely:
(e) where it is not filed in duplicated;
(f) where the plaintiff fails to comply sub-rule (2) of rule 9;

(g) where the plaintiff fails to comply sub-rule (3) of rule 9.
(e) As a result of Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), the
plaint could also be rejected where it is not filed in duplicate, where the plaintiff fails to
comply sub-rules (2) and (3) of rule 9, viz. within two days of the receipt of summons
under sub-rule (1), the plaintiff did not send or caused to send the summons to the
defendants along with the copy of the plaint in the manner provided under O V or where
the Court ordered that the summons be served on the defendants in the manner
provided in rule 9A of O V, directed the plaintiff to present as many copies of the plaint
on plain paper as there were defendants within two days from the date of such order
along with requisite fee for service of summons on the defendants, but the plaintiff did
not comply with the orders of the Court. These provisions contained in cls. (f) and (g)
were found harsh and have been modified by the Code of Civil Procedure (Amendment)
Act, 2002.
Rejection of plaint under O VII rule 11 of the Code of Civil Procedure is a drastic power
conferred in the court to terminate a civil action at the threshold. The conditions
precedent to the exercise of the power under O VII rule 11 therefore are stringent and
have been consistently held to be so by the court. It is the averments in the plaint that
have to be read as a whole to find out whether it discloses a cause of action or whether
the suit is barred under any law. At the stage of exercise of power under O VII rule 11,
the stand of the defendant in the Written Statement or in the application for rejection of
the plaint is wholly immaterial. It is only if the averments in the plaint ex facie do not
disclose a cause of action or on a reading thereof the suit appears to be barred under
any law the plaint can be rejected. In all other situations, the claims will have to be
adjudicated in the course of the trial.
Averments in plaint should be accepted as correct for the purposes of consideration of

application under O VII rule 11. Therefore, order rejecting plaints on the ground of
applicability of the Benami Transaction (Property) Act, 1988 and on the ground of bar
of limitation, is liable to be set aside.71
Applicability.—
Once an application under section 149 of the Code is allowed, O VII, rule 11(c) of the
Code will have no application.72
Ground for rejection.—
The rejection of plaint at a belated stage after the filing of written statement, framing of
issues and cross-examination is not approved.73
Different clauses in O VII, rule 11 provided in relation to rejection of plaint should not be
mixed up. In a given case, an application for rejection of the plaint may be filed on more
than one ground, a clear finding to that effect must be arrived at.74
The appeal was liable to be rejected where trial court has considered matters which
were outside the purview of the plaint, to hold that suit is barred by law.75
The clauses (e) and (f) added to rule 11 of O VII enable the Court to reject the plaint if
not filed in duplicate or where the plaintiff fails to comply with the provisions of rule 9
of O VII. These clauses being procedural would not require an automatic rejection of
the plaint at the first instance. If there is any defect as contemplated by rule 11(e) or
non-compliance as referred to in rule 11(f) then the Court should ordinarily give an
opportunity for rectifying the defects, before rejecting the plaint.76
The rejection takes away the very basis of the suit rendering as it were that no suit was
filed at all. Under section 87 of the Representation of the People Act, 1951 every
election petition shall be tried by the High Court as nearly as may be in accordance with
the procedure applicable under the Code of Civil Procedure to the trial of the suit. A suit
which does not furnish cause of action can be dismissed.77
Rejection of plaint.—
Suit for recovery of dues was filed before the Civil Court. It was held that the suit before
civil court is not barred for recovery of amount by any law as the claim being less than
Rs. 10 lakhs cannot be laid before Debts Recovery Tribunal. The claims being against
private parties for recovery of amount, plaint not liable to be rejected.78
The averments contained in plaint must be read as a whole to find out whether the
same, disclosed cause of action. The power under O VII, rule 11 can be exercised by
the court at any stage of the suit, if it is found that the suit is manifestly vexatious and
meritless in the sense of not disclosing any right to sue, the court should exercise
power under this provision.79
The court has to consider only the plaint as a whole and in case, the entire plaint
comes under the situations covered by O VII, rules 11(a) to (f) of the Code of Civil
Procedure, the same has to be rejected. Without disposing of an application under O
VII, rule 11 of the Code of Civil Procedure, the court cannot proceed with the trial.80
Issues which truly concern O VII, rule 11 cannot be disposed of as preliminary issues
under O XIV, rule 2.81
If plaint discloses cause of action, then it cannot be rejected under O VII, rule 11(a).
Whether plaint discloses cause of action is a question of fact and it has to be gathered
on the basis of plaint averments taking them to be true.82
If on a meaningful-not formal-reading of the plaint it is manifestly vexatious and

meritless, in the sense of not disclosing a clear right to sue then the trial Court should
exercise its power under this provision. It should take care to see that the ground
mentioned therein is fulfilled. It should insist imperatively on examining the party at the
first hearing so that bogus litigation may be shot down at the earliest stage.83
Suit was instituted by the auction purchaser to recover his earnest money deposit.
There is no implied or express bar under section 34 of the Securitisation and
Reconstruction of financial Assets and Enforcement of Security Interest Act for
institution of such a suit. The trial court committed an error in rejecting the plaint under
O VII rule 11.84
Application for rejection in limine under O VII, rule 11 deserves consideration at

threshold.Where cause of action is clearly stated, High Court erred in striking down
certain pleadings being frivolous, vexatious and lacking cause of action without
considering petition as a whole under O VII, rule 11.85
Averments in plaint are germane, written statement not necessary.—
An application for rejection of plaint can be decided by Court on basis of averments

made in plaint. The filing of written statement by contesting defendant is not
necessary. Therefore, direction to file written statement by trial Court without deciding
application under O VII, rule 11 cannot but be procedural irregularly touching exercise
of jurisdiction of trial Court.86
Where plaint is rejected for want of jurisdiction, averments made in plaint are germane.
Pleas taken by defendant in written statement would be wholly irrelevant at that
stage.87
Distinction between "full particulars" and "material facts" should be made while
sustaining preliminary objection as to tenability of an election petition. A Court cannot
dissect pleadings into several parts and strike out portions which does not disclose
cause of action.88
Regarding Clause (a) of this rule, it has been held by a Full Bench of Punjab and
Haryana High Court in Balwant Singh v State Bank of India, AIR 1976 SC 316 that a
"plaint which does not disclose a cause of action in respect of the part of the claim
against some of the defendants, cannot be rejected as a whole".
The cause of action should be culled out on a conjoint reading of all the paragraphs of
the plaint.89
Where the Court does not maintain the distinction between plea, that there was no
cause of action for suit and plea, that plaint does not disclose cause of action, and
rejects the plaint. The rejection is not proper.90
A petition for dissolution of marriage was filed and defence was set up by the husband
that is the Respondent as to wife's earlier conversion to Muslim would bar the
applicability of the Hindu Marriage Act, 1955. While exercising powers under rule 11 of
the Civil Procedure Code it was held that the learned family court exceeded its
jurisdiction by considering the defence of the respondent and entering into the merits
of the case which as such is required to be considered on leading evidence at the time
of trial. Thus, the order of rejecting the plaint at this stage is improper.91
An election petition is filed on the grounds of corrupt practices and illegalities in

counting of ballot papers. It is dismissed in limine, for want of full particulars of corrupt
practices and without affording opportunity to bring on record evidence justifying
recount. The dismissal is not justified as the cause of action cannot be equated with
proof. Absence of material particulars can be cured by amending the pleadings.92
As regards the power of the Courts to reject the case for under valuation, it has been
held by a Full Bench of Hyderabad High Court that the Court has jurisdiction to reject
only when the valuation on the face of it is palpably absurd and mathematically illogical
or arithmetically wrong.93
It is well settled that for the purpose of deciding an application under O VII rule 11 of
the Code of Civil Procedure the averments in the plaint alone are germane, when the
plaintiff herself accepted in the plaint that her name is not recorded in revenue records.
In absence of averment in the plaint that the plaintiff is recorded holder of property in
question, the suit for cancellation of sale deed is not cognizable by the civil court and is
barred by the provisions of section 331 of UP Zamindari Act and Land Revenue Act.94
Application for rejection.—
Whether plaint discloses any cause of action and whether it is barred by any law is to
be decided by looking at averments contained in plaint itself. The Court is not required
to take into consideration defence set up by defendants in his written statement or
other documents.95
Application for rejection plaint on the ground of suit being barred by limitation.
—
The suit was filed for declaration seeking declaration that the registered Sale Deed in
respect of suit land executed by the respondent was null and void. The same was filed
in 2006 i.e., after almost 14 years after the execution of registered sale deed. So also,
no reason shown therein for the delay in filing the suit. Hence, as the suit was barred by
limitation, the defendant/appellants application under O VII rule 11 for rejection of
plaint was allowed.96
Balance Court-fee, time for deposit to be given.—
When the lower appellate Court came to hold that the memorandum of appeal has not
was not proper.97
A Court has to reach to a finding that the relief claimed has been undervalued and
determine the correct valuation and require the plaintiff to correct his valuation with in
a time to be fixed by the Court. If the plaintiff does not correct the valuation within the
time allowed the plaint is liable to be rejected.98
An appellate Court before rejecting the plaint under this rule read with section 107
must allow time to the plaintiff to make up deficiency in Court-fee.99
Clause (d) of this rule authorises the rejection of a plaint where the suit appears from
the statement in the plaint to be barred by any law.100 Thus, where a suit was filed for
damages for defamatory statements in the Parliament, the suit was held to be barred
by Article 105(2) of the Constitution.101
A plaint cannot be rejected on the basis of allegation made by the defendant in his
written statement. The plaint disclosing cause of action requires determination by
Court. Mere fact that in opinion of Judge, the plaintiff may not succeed, cannot be
ground to reject plaint.102
A case pleaded by the plaintiff was that the entire agreement including arbitration
clause is null and void and unenforceable, not that only arbitration clause is void. The
Court did not maintain distinction between two types of cases and rejected the plaint.
The rejection is not proper.103
Apparent conflict with section 12 of Court's Fee Act, 1870.—

There is an apparent conflict between the provisions of O VII, rule 11 and section 12 of
Court's Fee Act, 1870. The efforts to reconcile these two provisions have resulted in
some divergence of judicial opinion on the construction of section 12 of the Act.104
Non-disclosure of cause of action.—
In the case of non-disclosure of cause of action the Court in exercise of its powers
under this rule can reject the election petition even after settlement of the issues.105
When the plaint read as a whole does not disclose material facts giving rise to a cause
of action which can be entertained by a civil court, it may be rejected in terms of O VII,
rule 11 of the Code.106
The court cannot dismiss a suit for not disclosing cause of action, but can only reject
the plaint.107
The plaintiff seeking rejection of plaint on the ground that affidavit filed by the plaintiff
is no affidavit in the eyes of law as plaintiff has not stated in affidavit as to which
paragraph of plaint is true to his knowledge and which paragraph of plaint has been
averred on the basis of information/advice received, was not liable to be rejected as
averments were made on the basis of the record in the affidavit.108
Where reading of the averments in the election petition, discloses the cause of action
that the respondent was holding a position of chair person of CSIDC and was deriving
financial benefit from them, it was held that the averments made by the petitioner is a
triable issue in an election petition and the pleadings taken as a whole, clearly show
that they constitute the material facts so as to go in for trial. The petition therefore
discloses a cause of action.109 It is settled law that for the purpose of disposal of an
application for rejection of plaint under O VII, rule 7(d) of the Code, the Court must treat
all the averments made in the plaint to be true and if it appears that even if the
statements to made are treated to be true, the suit is barred by any law for the time
being in force, the Court can reject the plaint.110
Where the suit filed earlier was at the stage of recording of evidence and the
application under O VII, rule 11 of the Code was filed to delay the proceedings of the
suit, the application under O VII, rule 11 of the Code was rejected.111
Where pleadings of election petition failed to disclose material facts as the allegations
of corrupt practice alleged to have been committed by the respondent No 1 had not
been substantiated with material facts. Therefore, in the absence of material facts no
cause of action arises for considering instant election petition and hence application
under O VII rule 11 is allowed.112
Where the petitioner had failed to plead material facts constituting the ingredient of
corrupt practice and/or undue influence and the pleadings relating to the ground stated
in section 100(1)(b) of Representation of the Peoples Act, 1951 did not disclose any
cause of action calling for trial therefore it was held that election petition so far as it
relates to ground stated in section 100(1)(b) of the Act rejected.113 Where vague
allegations are made in an election petition thereby alleging corrupt practice but the
particulars of corrupt practice in the manner it was made is not clear. Therefore, as
mandatory requirements of material facts are not pleaded, the Election Petition is liable
to be dismissed.114
Rejection of plaint for no jurisdiction.—
The main relief in the plaint was related to continuance of tenancy under trust. The
other relief was regarding enquiry into affairs of trust. The plaint was rejected on the
ground that Civil Court had no jurisdiction. The rejection order was liable to be set
aside.115
The Court cannot go beyond the facts stated in the plaint. In a suit for infringement of
copyright and injunction an interim injunction was granted. It was appealed against.
Issue of territorial jurisdiction was not raised by the defendant in the memorandum of
appeal. No application for rejection of the plaint was filed. An objection to jurisdiction
was raised by way of demurrer. The Court could not go beyond the facts stated in the
plaint. It examined written statement and rejected suit for want jurisdiction. It was not
proper.116
Rejection of plaint in part.—
A plaint cannot be rejected in part and retained in part under this rule. It must be
rejected as a whole.117
Propriety of rejection.—
Where contention raised for the rejection of the present suit involved various questions
which could not be considered at the stage of proceeding under O VII, rule 11(d), on
facts rejection of the plaint by courts below was held not proper.118
Appeal.—
An order rejecting a plaint is a decree and hence is appealable.119
An order of rejection of plaint under O VII, rule 11 Code of Civil Procedure results as if
nothing is ending before the court and the definition of "decree" under section 2(2) of
the Code of Civil Procedure specifically says that it shall include rejection of a plaint as
a result thereof, it cannot be doubted that rejection of plaint under O VII rule 11 Code of
Civil Procedure would give a right of appeal under section 96 of Code of Civil
Procedure.120
Where an order rejecting a plaint under O VII, rule 11 for non-payment of deficit Court-
fee is appearable as a decree, there is a right of appeal open to the plaintiff.121
Revision.—
A revision against such an order is incompetent as such an order is a decree.122 By

inserting the proviso to this rule 11, it has been provided that a time fixed by the Court
for the correction of the valuation or for the supply of the requisite stamp paper shall
not be extended unless the Court, for reasons to be recorded, is satisfied that the
plaintiff was prevented by any cause of an exceptional nature from correcting the
valuation or supplying the requisite stamp paper within the time fixed by the Court and
that refusal to extend the time would cause grave injustice to the plaintiff.
In a suit for accounts the plaintiff is not obliged to state the exact valuation which,
however, should be adequate and reasonable.123
Election petition, dismissed instead of being rejected.—
An election petition was filed on the last day of limitation. The petition was bereft of
material facts and particulars relating to alleged corrupt practices. The High Court
dismissed it under this rule as not disclosing any cause of action, instead of rejecting
it. The High Court using expression "dismissed" instead of "rejected" did not make any
difference as no fresh petition could have been filed within limitation.124
The averments in the Election Petition that respondent is disqualified for holding office
of profit under State Government as Chairperson of Kerala State Wakf Board, clearly
constitute material facts so as to pose a triable issue. The petition thus discloses
cause of action and hence cannot be thrown out at threshold.
The inquiry under O VII, rule 11(a) of the Code of Civil Procedure is only as to whether
the facts as pleaded disclose a cause of action and not complete cause of action. The
limited inquiry is only to see whether the petition should be thrown out at the
threshold.125
Strict construction.—
Order VII, rule 11(d) provides for rejection of plaint if it is barred by any law. Such an
embargo in the maintainability of the suit must be apparent from the averments made
in the plaint. This rule of the Code being one of the exceptions must be strictly
construed.126
No rejection, Once leave is, granted.—
An application for rejection of plaint should be made prior to grant of leave of Court or
at time when appellants opposed grant of leave. Once leave is granted, question of
rejecting plaint under rule 11 does not arise.127 The subsequent events rendering the
suit infructuous can be brought to notice of the Court qua application under section
151. The Court can dismiss the suit after making necessary enquiry into facts and
circumstances.128
Dismissal of suit on the ground of its being premature, when it came to be decided
after the lapse of over eight years, was not justified.129
The court in order to ensure that the provisions of Court Fees Act are adhered to has
been given power under O VII, rule 11(b) and (c) to reject the plaint. Rejection of plaint
in the aforesaid manner does not infringe any of the rights of the defendants. The
power is conferred on the court only to ensure that requisite court fee/stamp duty is
paid. Courts of law in the matter of advancing the cause of justice have not to fall prey
to technicalities. The inherent powers of civil courts cannot be circumscribed to render
them illusory. Rejecting of plaint for non-payment of court fee may not in all
circumstances constitute a question of law, which would be corrected only by appellate
court.130
Commencement of limitation period.—
Limitation would not commence unless there has been clear and unequivocal threat to
right claimed by plaintiff.131
Res judicata cannot be a ground for rejection of plaint.—
Res judicata cannot be the ground for rejection of plaint under O VII, rule 11 res judicata
involves a mixed question of law and fact, requires not only examination of plaint but
also other evidence.132
68 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 17(ii)
69 Subs. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002), section 8(ii) (w.e.f. 1-
7-2002) vide Notfn. S.O. 604(E), dt. 6-6-2002, section 8(ii) for clauses (f) and (g).
70 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 57(iii) (w.e.f. 1-2-
1977).
71 PVGuru Raj Reddy v P Veeradha Reddy, AIR 2015 SC 2485 .
72 PKPalanisamy v N Arumugham, (2009) 9 SCC 173 (179).
73 Ram Prakash Gupta v Rajiv Kr Gupta, (2007) 10 SCC 59 .
74 Kamala v KTEshwara SA, (2008) 12 SCC 661 (668).
75 Hammappa v Chikkannaiah, 2009 (1) Kar LJ 269 (273) (DB).
77 Hardwari Lal v Kanwal Singh, AIR 1972 SC 515 (520) : (1972) 1 SCC 214 : (1972) 2 SCR 742 .
78 Allahabad Bank v Canara Bank through Branch Manager, Agra, AIR 2012 All. 77 (Para 30).
79 Madanuri Sri Rama Chandra Murthy v Syed Jalal, AIR 2017 SC 2653 : 2017 (5) SCALE 127 :
(2017) 13 SCC 174 : 2017 (6) SCJ 217 .
80 RK Roja v US Rayudu, AIR 2016 SC 3282 : 2016 (6) SCALE 729 : 2016 (6) SCJ 547 : (2016) 14
SCC 275 .
81 Kuldeep Singh Pathaniya v Bikram Singh Jariyal, AIR 2017 SC 593 : (2017) 5 SCC 345 : 2017
(1) SCALE 639 : 2017 (4) SCJ 1 .
82 Kuldeep Singh Pathaniya v Bikram Singh Jariyal, AIR 2017 SC 593 : (2017) 5 SCC 345 : 2017
(1) SCALE 639 : 2017 (4) SCJ 1 .
83 T Arivandandam v TVSatyapal, AIR 1977 SC 2421 (2423) : (1977) 4 SCC 467 .
84 R Venkatapathy v Bank of India Zonal Office Bangalore, AIR 2014 Kar 33 .
85 Madiraju Venkata Ramana Raju v Peddireddigari Ramachandra Reddy, AIR 2018 SC 3012 .
86 Saleem Bhai v State of Maharashtra, AIR 2003 SC 759 : (2003) 1 SCC 557 .
87 Wipro Limited v OCA India (P) Ltd, AIR 2008 Mad 165 (DB).
88 DRamchandran vRV Jankiraman, AIR 1999 SC 1128 (1130) : (1999) 3 SCC 267 .
89 Raptakos Brett & Co v Ganesh Property, AIR 1998 SC 3085 (3089) : (1998) 7 SCC 184 .
90 State of Orissa v Klockner & Co, AIR 1996 SC 2140 (2145) : (1996) 8 SCC 377 .
91 Beena w/o Kalpeshbhai Amrutlal Lavingia (Soni/Chowksi) v Kalpeshbhai Amrutlal Lavingia
(Soni/Chowksi), AIR 2015 Guj 49 .
92 VS Achuthanandan v PJFrancis, AIR 1999 SC 2044 (2049) : (1999) 3 SCC 737 .
93 Shantamma v Lachiah, AIR 1955 Hyd 24 (FB).
94 Sushila Devi v Trilok Singh, AIR 2012 Utr 42 .
95 NRavindran v V Ramachandran, AIR 2011 Mad 136 (138).
96 Suresh Kumar Dagla v Sarwan, (2014) 14 SCC 254 .
97 Mohammed Mahibullah v Seth Chaman Lal, AIR 1993 SC 1241 : (1991) 4 SCC 529 .
98 Commercial Aviation & Travel Co v Vimala Pannalal, AIR 1988 SC 1636 : (1988) 3 SCC 423 :
1988 BBCJ 57 .
99 S Wajid Ali v Isar Bano, AIR 1951 All 64 (FB).
100 (1893) 15 All 38 (FB); S Bhagat Singh v Satnam Transport Co Ltd, AIR 1961 Punj 278 (DB).
101 Tej Kiran Jain v Sanjiva Reddy, AIR 1971 Del 68 .
102 Mayar (HK) Ltd v Owners & Parties, VesselMV Fortune Express, AIR 2006 SC 1828 (1837).
103 State of Orissa v Klockner & Co, AIR 1996 SC 2140 (2145) : (1996) 8 SCC 377 .
104 Nemi Chandra v Edward Mills Co, AIR 1953 SC 28 (31) : 1953 SCR 2197 .
105 Samar Singh v Kedar Nath, AIR 1987 SC 1926 (1929) : 1987 Supp SCC 663 .
107 Canara Bank v Garts Ind Tex (P) Ltd, 2009 (1) KLT 368 (371-72) (DB).
108 Hill Elliot and Co Ltd v Bhupinder Singh, 2011 AIR CC 1368 (1372) (Del).
109 Bhuneshwar Prasad Yadav v Badri Dhar Diwan, AIR 2015 Chh 101 .
110 Gauri Shankar Das v KC Das Pvt Ltd, 2011 AIR CC 1711 (Cal-DB).
111 Dwarika Prasad v Rameshwar Dayal, (2010) 13 SCC 569 (572).
112 Lalji Chandravanshi v Akhbar Bhai, AIR 2015 Chh 113 .
113 Bedanti Tiwari v Bhaiyalal Rajwade, AIR 2015 Chh 64 .
114 Nandkumar Sahu v Satyanarayan Sharma, AIR 2015 Chh 120 .
115 Sopan Sukhdeo Sable v Asstt Charity Commr, AIR 2004 SC 1801 (1805).
116 Exphar SA v Eupharma Laboratories Ltd, AIR 2004 SC 1682 (1684).
117 Kalepur Pala Subrahmanyam v Tiguti Venkata, AIR 1971 AP 313 .
118 Kamala v KT Eshwara Sa, (2008) 12 SCC 661 (671) : AIR 2008 SC 3174 (3178). See also
Ram Dashrath Phukale v Murlidhar Nagappa Rangadal, 2008 AIHC 1391 (Kar).
119 Bibhas Mohan Mukherjee v Hari Charan Banerjee, AIR 1961 Cal 491 (FB).
120 Al-Habib Food Processing v Punjab National Bank, AIR 2013 All 204 .
121 Shamsher Singh v Rajinder Singh, AIR 1973 SC 2384 (2386) : (1973) 2 SCC 524 : (1974) 1
SCR 322 .
122 Paruchuru Jhirumala v Vennava Ramalingam, AIR 1952 Mad 86 (FB); Mohammed Kani
Rowther v Hassan Rowther, AIR 1972 Ker 56 .
123 Meenakshi Sundaram v Venkatachalam, AIR 1979 SC 989 (992) : (1980) 1 SCC 616 .
124 Azhar Hussain v Rajiv Gandhi, AIR 1986 SC 1253 (1270) : 1986 Supp SCC 315 : 1986 ALJ
625 .
125 Ashraf Kokkur v KV Abdul Khadar, AIR 2015 SC 147 .
126 Vishnu Dutt Sharma v Daya Sapra, (2009) 13 SCC 729 (736).
127 Sudhir Ji Angur v M Sanjeev, AIR 2006 SC 351 .
128 Shipping Corpn of India Ltd v Machando Brothers, AIR 2004 SC 2093 (2099).
129 Vithalbhai Pvt Ltd v UOI, AIR 2005 SC 1891 (1896-97 ).
130 Bashir v Khurshed Bibi, AIR 2013 J&K 4 .
131 CNatrajan v Ashim Bai, AIR 2008 SC 383 : (2005) 7 SCC 5101 (2004) 1 SCC 271, relied on.
132 Vaish Aggarwal Panchayat v Inder Kumar, AIR 2015 SC 3357Mohan Lal Sukhadia University v
Priya Soloman, AIR 1999 Raj. 102 ; Khaja Quthubullah v Govt of AP, AIR 1995 AP 43 ; Arjan Singh v
UOI, AIR 1987 Del. 165 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Procedure on rejecting
plain
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 12.
Procedure on rejecting plain
Where a plaint is rejected the Judge shall record an order to that effect with the
reasons for such order.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Where rejection of
plaint does not preclude presentation of fresh plaint
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 13.
Where rejection of plaint does not preclude presentation of fresh plaint
The rejection of the plaint on any of the grounds hereinbefore mentioned [B] shall not
of its own force preclude the plaintiff from presenting a fresh plaint in respect of the
same cause of action.
[Rule amended in Bombay.]
Bombay (Dadra and Nagar Haveli) (Goa, Daman and Diu).—The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka, page 403,
Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page 377, dated 1-4-1987.
For rule 13, substitute the following:
13. Where rejection of plaint does not preclude presentation of fresh plaint.—The
rejection of the plaint on any of the grounds hereinbefore mentioned or on the ground
mentioned in rule 14-A(5)(a) of Order VI shall not of its own force preclude the plaintiff
from presenting a fresh plaint in respect of the same cause of action." dated 1-10-1983.
Earlier suit was rejected for non-payment of requisite court fee. It was held it does not
act as bar for fresh suit.133
133 Shreya Vidyarthi v Ashok Vidyarthi, AIR 2016 SC 139 : 2015 (13) SCALE 643 : (2015) 16 SCC
46 : 2016 (2) SCJ 324 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 14. Production of
document on which plaintiff sues or relies
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
Documents Relied on in Plaint
134[R. 14.
Production of document on which plaintiff sues or relies
(1) Where a plaintiff sues upon a document or relies upon document in his
possession or power in support of his claim, he shall enter such documents in a
list, and shall produce it in Court when the plaint is presented by him and shall, at
the same time deliver the document and a copy thereof, to be filed with the
plaint.
(2) Where any such document is not in the possession or power of the plaintiff, he
shall, wherever possible, state in whose possession or power it is.
135
[(3) A document which ought to be produced in Court by the plaintiff when the
plaint is presented, or to be entered in the list to be added or annexed to the
plaint but is not produced or entered accordingly, shall not, without the leave
of the Court, be received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document produced for the cross examination
of the plaintiffs witnesses, or, handed over to a witness merely to refresh his
memory.]
Karnataka.— For rule 14 substitute the following:
"14(1) The plaintiff shall endorse on the plaint or annex thereto a list of documents
required to be produced or disclosed as hereinbefore provided in this rule.
(2) Where the plaintiff sues upon a document in his possession or power, he shall
produce it in Court when the plaint is presented, and shall at the same time deliver the
document or a copy thereof to be filed with the plaint.
(3) Where the plaintiff relies on any other documents (whether in his possession or not)
as evidence in support of his claim, he shall enter such documents in the list above
referred to showing separately which of the documents in his possession or power he
has produced with the plaint and which are not so produced. In regard to any such
documents which are not produced, the list shall contain a statement of the reason for
their non-production and the steps which the plaintiff has taken or will take to produce
them or cause their production." (30-3-1967).
COMMENT.—
Important Note.—
2002).—
(i) In rule 14 [as substituted by clause (iii) of section 17 of the Code of Civil Procedure
(Amendment) Act, 1999] for sub-rule (3) the following sub-rule shall be substituted,
namely:
(3) A document which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the leave or the Court, be received in
evidence on his behalf at the hearing of the suit.
The documents may be produced by the plaintiff or by the defendant, as the case may
be, with the leave of the Court at the time of the hearing of the suit where such
documents could not be filed by the plaintiff along with the plaint (Vide Objects and
Reasons.)
Under Code of Civil Procedure (Amendment) 1999 if any document or a copy thereof
could not be filed with the plaint under this rule, it could not be allowed to be received in
evidence on behalf of the plaintiff at the hearing of the suit. There was complete
embargo on the power of the Court and any such document could not be received in
evidence at a later stage. This provision was found too harsh and so the provision has
been modified by the Code of Civil Procedure (Amendment) Act, 2002, and now such
document may be received in evidence with the leave of the Court, which the Court
shall grant in genuine cases. Obviously, the object of this provision is to avoid delays in
the trial of the cases.
2002).—

1999 stated thus:
In Order VII of the Code, rule 14 provides for production of documents on which plaintiff
sues. Clause 17 seeks to substitute rule 14 so as to provide that where a plaintiff sues upon
a document in his possession, he shall enter such documents in a list and shall produce it in
Court when the plaint is presented by him and shall deliver document and a copy thereof to
be filed with the plaint. The new rule further provides that in case a document or copy
thereof is not filed with the plaint, it shall not be allowed to be received in evidence on behalf
of the plaintiff at the hearing of the suit. [Clause 17].

commencement of Code of Civil Procedure (Amendment) Act, 1999 and Code
of Civil Procedure (Amendment) 2002.—
of the principal Code as amended by this Amendment Act, 1999, stand repealed
The Privy Council held that if the plaintiff produces the document sued on, as required
by this rule, and the document is lost subsequently from the custody of the Court, the
plaintiff should be allowed to adduce secondary evidence of the document under
section 65 of the Evidence Act, 1876, without showing how the original document was
lost.136
Only one copy of the documents has to be filed. Where a plaintiff sues up on a
document in his possession or power, he shall produce in the Court when the plaint is
presented and shall at the same time deliver the document or a copy thereof to be filed
with the plaint, provides the rule.137
Production of documents for cross examination.—
The words "plaintiffs witnesses" have been mentioned by mistake in O VII. In rule 14(4)
the words "plaintiffs" witnesses should be read as defendant's witnesses' till legislature
corrects mistake.138
Any document can be produced in cross-examination of witness and witness can be

confronted therewith.139
Production of documents should be allowed in the interest of justice.—
The documents were not in possession of the applicant and the earlier order of this
court will not preclude the State of Assam from seeking production at this stage.140
Documents sought to be produced were obtained through RTI and application not
moved at belated stage. Hence, application was allowed.141
134 R. 14 subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section
17(iii) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'R. 14. Production of document on which plaintiff sues.—(1) Where a plaintiff sues upon a
document in his possession or power, he shall produce it in Court when the plaint is presented,
and shall at the same time deliver the document or a copy thereof to be filed with the plaint.
List of other documents.—(2) Where he relies on any other documents (whether in his
possession or power or not) as evidence in support of his claim, he shall enter such documents
in a list to be added or annexed to the plaint.'
135 Sub-rule (3) Subs. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-
7-2002) vide Notfn. S.O. 604(E), dt. 6-6-2002, section 8(iii).
136 Lala Tulsi Ram v Ram Saran Das, AIR 1925 PC 80 .
137 Sahodrabai v Ram Singh, AIR 1968 SC 1079 (1081) : (1968) 3 SCR 13 : 1968 Mah LJ 697 :
1968 MPLJ 713 : 1968 ALJ 782 .
139 Havovi Kersi Sethna v Kersi G Sthna, 2011 AIR CC 1211 (Bom).
140 State of Assam v UOI, AIR 2018 SC 3446 : 2018 (130) ALR 772 : 2018 (9) SCALE 54 : 2018
(10) SCJ 617 .
141 NC Bansal v Uttar Pradesh Financial Corporation, AIR 2018 SC 685 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15. Statement in case of
documents not in plaintiff’s possession or power
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
142[R. 15.
Statement in case of documents not in plaintiff's possession or power
* * * * *]
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Omission.—This rule has been omitted.
1. Rule 15 of O VII has been omitted by the Amendment Act, 1999.
2. Rule 15, has been merged in O VII rule 14, as sub-rule (2), and hence omitted.
Notes on Clauses.—For notes on clauses of the Code of Civil Procedure (Amendment)

Bill, 1999, see, under O VII, rule 14.

amended by section 17 of this Amendment Act, 1999 shall not apply to any
proceedings pending before the commencement of section 17 of the Amendment Act,
1999.

Document not in plaintiff's power or possession.—
Under the old rule 15 of O VII, where a document relied upon by the plaintiff was not in
his possession or power, he could name the person in whose possession it was. This
rule is now re-enacted by sub-rule (2) of rule 14 of O VII. The plaintiff has to make a list
of such documents which are not in his possession or power and file it along with the
plaint. The plaintiff cannot make use of any document which is neither produced nor
included in the list to be filed along with the plaint.

The disability created by this rule as well as rule 18 attaches to the plaintiff alone and
not the defendant. The defendant has an unqualified right to produce in evidence
documents at any stage so long as his evidence has not been closed, provided they
were not in his possession or power.143
142 R. 15 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-
7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, before its omission it stood as under:
'Where any such document is not in the possession or power of the plaintiff, he shall if possible,
state in whose possession or power it is.'
143 Gyanliram v Gulab Chand, AIR 1961 Raj 21 (D.B.); Sahodrabai Rai v Ram Singh, AIR 1968 SC
1079 : (1968) 3 SCR 13 : 1968 Mah LJ 697 : 1968 MPLJ 713 : 1968 ALJ 782 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Suits on lost negotiable
instruments
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 16.
Suits on lost negotiable instruments
Where the suit is founded upon a negotiable instrument, and it is proved that the
instrument is lost, and an indemnity is given by the plaintiff, to the satisfaction of the
Court, against the claims of any other person upon such instrument, the Court may
pass such decree as it would have passed if the plaintiff had produced the instrument
in Court when the plaint was presented, and had at the same time delivered a copy of
the instrument to be filed with the plaint.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Production of shop
book
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
R. 17.
Production of shop book
(1) Save in so far as is otherwise provided by the Bankers' Evidence Act, 1891 (18
of 1891), where the document on which the plaintiff sues is an entry in a shop-
book or other account in his possession or power, the plaintiff shall produce
the book or account at the time of filing the plaint, together with a copy of the
entry on which he relies.
Original entry to be marked and returned
(2) The Court or such officer as it appoints in this behalf, shall forthwith mark the
document for the purpose of identification; and after examining and comparing
the copy with the original, shall, if it is found correct, certify it to be so and
return the book to the plaintiff and cause the copy to be filed. [A, B, G, D, HP,
KNT, PU].
[All Bom & Guj.—Proviso added; Punjab, Delhi & HP—Explanation added; Karnataka—
Sub-rule (3) added].
Allahabad (Notfns No 268/44-5(1) of 29-1-1927 & No 6112/45(a) of 10-12-1932).—

At the end of sub-rule (2) add the following proviso:
"Provided that, if the copy is not written in English or is written in a character other than
the ordinary Persian or Nagri character in use, the procedure laid down in Order XIII,
rule 12, as to verification shall be followed and in that case the Court or its officer need
not examine or compare the copy with the original."
were made by Maharashtra Government Gazette dated 15-9-1983, Part 4, Ka, Page 403,
"Provided that where the entry referred to in this rule is in language other than English
or the language of the Court, the plaintiff shall file with the plaint a true copy of the
entry together with its translation either in English or in the language of the Court, such
translation being verified as regards its correctness by an affidavit of the person
making the translation:
Provided further that the Court may accept a plaint without the translation and permit
the party to file the said translation within a time to be fixed by the Court.
In either of such cases the Court or its officer need not examine and compare the copy
with the original and certify the same to be correct." (1-10-1983)
Gujarat.—Same as in Bombay with the following modifications:
(i) In the first proviso omit the words "English or" and "either in English or",
(ii) omit second proviso,
(iii) in the last sentence for the words "In either of such cases" substitute "in such a
case" [17-8-1961].
Karnataka.— Add the following as sub-rule (3):
"(3) Where the document is not in the language of the Court, the Chief Ministerial
Officer of the Court shall take the directions of the judge or Presiding Officer of the
Court as to whether the procedure prescribed in rule 12 of Order XIII, of this Code shall
be followed." (30-3-1967).
Punjab (Notn. No. 88-Gaz—XI-Y-7 of 9-3-1935).— Rule substituted by another rule

which is the same as the existing rule with the following explanation added:
Explanation.—When a shop-book or other account written in a language other than

English or the language of the Court is produced with a translation or transliteration of
the relevant entry, the party producing it shall not be required to present a separate
affidavit as to the correctness of the translation or transliteration, but shall add a
certificate on the document itself, that it is a full and true translation or transliteration
of the original entry, and no examination or comparison by the ministerial officer shall
be required except by a special order of the Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 18 Inadmissibility of
document not produced when plaint filed
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VII Plaint
144[R 18
Inadmissibility of document not produced when plaint filed
* * * * *1
Allahabad.— The following amendments were made by Uttar Pradesh Gazette, dated 12-
12-1970, Part II, Page 258.
Add the following Rules 19 to 25:
"19. Every plaint or original petition shall be accompanied by a proceeding giving an

address written in 145[Hindi in Devnagri script] at which service of notice, summons or
other process may be made on the plaintiff or petitioner. Plaintiffs or petitioners
subsequently added shall, immediately on being so added, file a proceeding of this
nature.
20. An address for service filed under the preceding rule shall be within the local limits
of the District Court within which the suit or petition is filed or of the District Court
within which the party ordinarily resides, if within the limits of the United Provinces of
Agra and Oudh.
21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to
have his suit dismissed or his petition rejected by the Court suo motu or any party may
apply for an order to that effect, and the Court may make such order as it thinks just.
22. Where a party is not found at the address given by him for service, and no agent or
adult male member of his family on whom a notice or process can be served is present,
a copy of the notice or process shall be affixed to the outer door of the house. If on the
date fixed such party is not present, another date shall be fixed and a copy of the
notice, summons or other process shall be sent to the registered address by registered
post and such service shall be deemed to be as effectual as if the notice or process
had been personally served.
23. Where a party engages a pleader notice or processes for service on him shall be
served in the manner prescribed by Order III, rule 5, unless the Court directs service at
the address for service given by the party.
24. A party who desires to change the address for service given by him as aforesaid
shall file a verified petition and the Court may direct the amendment of the record
accordingly. Notice of such petition shall be given to such other parties to the suit as
the Court may deem it necessary to inform and may be either served upon the pleaders
for such parties or be sent to them by registered post, as the Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing the service of a notice
or process in other manner, if for any reason it thinks fit to do so." (1-6-1918 and 12-12-
1970).
Bombay (Dadra and Nagar Haveli). Rules 19 to 26.— The following shall be added as
Rules 19 to 26.
"19. Address to be filed with plaint or original petition.—(1) Every plaint or original
petition shall be accompanied by a memorandum in writing giving an address at which
service of notice, or summons or other process may be made on the plaintiff or
petitioner. Plaintiffs or petitioners subsequently added shall, immediately on being so
added file a memorandum in writing of this nature.
(2) This address shall be called the "registered address" and it shall, subject to R. 24 of
this Order, hold good in all proceedings in the suit and in appeals and also for a further
period of six years from the date of final decision for all purposes including those of
execution.
20. Nature of address to be filed.—The registered address filed under the preceding
rule shall be within the local limits of the District Court within which the suit or petition
is filed or, if a party cannot conveniently give an address as aforesaid, at a place where
the party ordinarily resides.
21. Consequences of failure to file address.—(1) Where a plaintiff or petitioner after

being required to file the registered address within a specified time, fails to file the
registered address, he shall be liable to have his plaint or petition rejected by the Court
suo motu, or any party may apply for an order to that effect, and the Court may make
such order as it thinks just.
When default may be condoned.—(2) Where a plaint or petition is rejected under sub-
rule (1) the plaintiff or the petitioner may apply for an order to set aside the rejection
and, if he files a registered address and satisfies the Court that he was prevented by
any sufficient cause from filing a registered address at proper time the Court shall set
aside the rejection on such terms as to costs or otherwise as it deems fit and shall
appoint a date for proceeding with the suit or petition.
22. Procedure when party not found at the place of registered address.—Where a party
is not found at the registered address and no agent or adult male member of his family
on whom a notice or process can be served is present, a copy of the notice or process
shall be affixed to the outer door of the house. If on the date fixed such party is not
present, another date shall be fixed and a copy of the notice, summons or other
process shall be sent to the registered address of that party by registered post pre-paid
for acknowledgment (which payment shall be made within one month from the date
originally fixed for hearing) and such service shall be deemed to be as effectual as if
the notice or process had been personally served.
23. Service of process where party engages a pleader.—Where a party engages a

pleader notice or process on him shall be served in the manner prescribed by Order III,
rule 5, unless the Court directs service at the registered address of the party.
24. Change of registered address.—A party who desires to change the registered
address given by him as aforesaid shall file a fresh memorandum in writing to this
effect and the Court may direct the amendment of the record accordingly. Notice of
such memorandum shall be given to such other parties as the Court may deem it
necessary to inform, and may be served either upon the pleaders or such parties or be
sent to them by registered post pre-paid for acknowledgment as the Court thinks fit.
25. Rules not binding on Court.—Nothing in Rules 19, 22, 23 and 24 of this order shall
prevent the Court from directing the service of a notice or process in any other manner,
if, for any reasons, it thinks fit to do so.
26. Applicability to notice under Order XXI, rule 22.—Nothing in rules 19, 22, 23 and 24
of this Order shall apply to the notice prescribed by Clause (b) of sub-rule (1) of rule 22
of Order XXI of this Code." (1-11-1966)
Delhi and Himachal Pradesh.
Rules 19 to 25.—Same as that of Punjab, except that for H.P. in rule 20 read" Judicial
Commissioners Court, H.P." for "High Court of Judicature at Lahore."
Gujarat.— The following amendments were made by Gujarat Government Order XXI, rule
22, dated 17-8-1961.
Rules 19 to 26.—The following shall be added as Rules 19 to 26.
"19. Address to be filed with plaint or original petition.—Every plaint or original petition
shall be accompanied by a memorandum in writing giving an address at which service
of notice, or summons or other process may be made on the plaintiff or petitioner.
Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a
memorandum in writing of this nature. The address so given shall hold good
throughout interlocutory proceedings and appeals and also for a further period of two
years from the date of final decision and for all purposes including those of execution.
20. Nature of address to be filed.—An address for service filed under the preceding rule
shall be within the local limits of the District Court within which the suit or petition is
filed or if he cannot conveniently give an address as aforesaid, at a place where the
party ordinarily resides.
21. Consequences of failure to file address.—Where a plaintiff or petitioner fails to file

an address for service, he shall be liable to have his suit dismissed or his petition
rejected by the Court suo motu or any party may apply for an order to that effect, and
the Court may make such order as it thinks just.
22. Procedure when party not found at the place of address.—Where a party is not
found at the address given by him for service and no agent or adult male member of
his family on whom a notice or process can be served is present, a copy of the notice
or process shall be affixed to the outer door of the house. If on the date fixed such
party is not present, another date shall be fixed and a copy of the notice, summons or
other process shall be sent to the address supplied by that party by registered post pre-
paid for acknowledgment (which payment shall be made within one month from the
date originally fixed for hearing) and such service shall be deemed to be as effectual as
if the notice or process had been personally served.
23. Service of notice on pleaders.—Where a party engages a pleader, notice or process

on him shall be served in the manner prescribed by Order III, rule 5, unless the Court
directs service at the address for service given by the party.
24. Change of the registered address.—A party who desires to change the address for
service given by him as aforesaid shall file a fresh memorandum in writing to this effect
and the Court may direct the amendment of the record accordingly. Notice of such
memorandum shall be given to such other parties to the suit as the Court may deem it
necessary to inform, and may be served either upon the pleaders for such parties or be
sent to them by registered post, as the Court thinks fit.
25. Rules not binding on Court.—Nothing in these rules shall prevent the Court from
directing the service of a notice or process in any other manner, if, for any reason, it
thinks fit to do so.
26. Applicability to notice under Order XXI, rule 22.—Nothing in these rules shall apply
to the notice prescribed by Order XXI, rule 22." (17-8-1961)
dated 16-9-1960.
Rules 19 to 23.—Add the following as Rules 19 to 23.
"19. Registered address.—Every plaint or original petition shall be accompanied by a

memorandum giving an address at which service of process may be made on the
plaintiff or petitioner. The address shall be within the local limits of the Civil District in
which the plaint or original petition is filed or, if an address within such Civil District
cannot conveniently be given, within the local limits of the Civil District in which the
party ordinarily resides.
This address shall be called the "registered address" and it shall hold good throughout
interlocutory proceedings and appeals and also for a further period of two years from
the date of final decision for all purposes including those of execution.
20. Registered address by a party subsequently added as plaintiff or petitioner.—Any

party subsequently added as plaintiff or petitioner shall in like manner file a registered
address at the time of applying or consenting to be joined as plaintiff or petitioner.
21. Consequence of non-filing of registered address.—(1) If the plaintiff or the

petitioner fails to file a registered address as required by rule 19 or 20 he shall be liable
at the discretion of the Court to have his suit dismissed or his petition rejected.
An order under this rule may be passed by the Court suo motu or on the application of
any party.
(2) Where a suit is dismissed or a petition rejected under sub-rule (1) the plaintiff or the
petitioner may apply for an order to set the dismissal or the rejection aside and if he
files a registered address and satisfies the Court that he was prevented by any
sufficient cause from filing the registered address at the proper time, the Court shall set
aside the dismissal or the rejection upon such terms as to costs or otherwise as it
thinks fit, and shall appoint a day for proceeding with the suit or petition.
22. Affixing of process and its validity.—Where the plaintiff or the petitioner is not
found at his registered address and no agent or adult male member of his family on
whom a process can be served is present, a copy of the process shall be affixed to the
outer door of the house and such service shall be deemed to be as effectual as if the
process had been personally served.
23. Change of registered address.—A plaintiff or petitioner who wishes to change his
registered address shall file a verified petition and the Court shall direct the
amendment of the record accordingly. Notice of such petition shall be given to such
other parties to the suit or proceedings as the Court may deem it necessary to inform".
(16-9-1960)
Orissa—Rules 19 to 22.—Same as those of Patna except Rules 19, 20, 21 and 22 of

Order VII (Patna Gazette) dated 17-5-1954.
Patna.—Add the following as Rules 19 to 22.
"19. Every plaint or original petition shall be accompanied by a statement giving an

address at which service of notice, or other process may be made on the plaintiff or
petitioner, and every plaintiff or petitioner subsequently added shall, immediately on
being so added, file a similar statement.
20. An address for service filed under the preceding rule shall state for following
particulars—
(1) the name of the street and number of the house (if in a town),
(2) the name of the town or village,
(3) the Post Office,
(4) the district, and
(5) the munsiff (if in Bihar) of the District Court (if outside Bihar).
21. Where a plaintiff or petitioner fails to file an address for service, he shall be liable to
22. A party who desires to charge his address for service given by him as aforesaid
shall file a verified petition, and the Court may direct the amendment of the words
the Court may deem it necessary to inform, and may be either served upon the
pleaders for such parties or be sent to them by registered post, as the Court thinks fit."
Punjab, Haryana & Chandigarh.— The following amendments were made by Punjab
Gazette, dated 24-11-1927.
Add the following as Rules 19 to 25.
"19. Every plaint or original petition shall be accompanied by a proceeding giving an

address at which service of notice, summons or other process may be made on the
plaintiff or petitioner. Plaintiffs or petitioners subsequently added shall immediately on
being so added file a proceeding of this nature.
of the District Court within which the suit or petition is filed or of the District Court
within which the party ordinarily resides, if within the limits of the territorial jurisdiction
of the High Court of judicature at Lahore (i.e., Punjab and Haryana High Court).
21. Where a plaintiff or petitioner fails to file an address for service he shall be liable to
22. Where a party is not found at the address given by him for service and no agent or
adult male member of his family on whom a notice, summons or other process can be
served is present, a copy of the notice, summons or other process shall be affixed to
the outer door of the house. If on the date fixed such party is not present another date
shall be fixed and a copy of the notice, summons or other process shall be sent to the
registered address by registered post, and such service shall be deemed to be as
effectual as if the notice, summons or other process had been personally served.
23. Where a party engages a pleader, notice, summonses or other processes for
service on him shall be served in the manner prescribed by Order III, rule 5, unless the
Court directs service at the address for service given by the party.
24. A party, who desires to change the address for service given by him as aforesaid,
shall file a verified petition, and the Court may direct the amendment of the record
pleaders for such parties or be sent to them by registered post as the Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing the service of a notice,
summons or other process in any other manner, if for any reasons, it thinks fit to do so."
20. Rajasthan.— The following amendments were made by Rajasthan Gazette, dated 24-
7-1954.
Add the following as Rules 19 to 25.
"19.(1) Every plaint or original petition shall be accompanied by a memorandum giving

an address at which service of process may be made on the plaintiff or the petitioner.
Plaintiffs or petitioners subsequently added shall, immediately on being so added, file a
memorandum of this nature.
(2) This address shall be called the registered address and it shall hold good
throughout interlocutory proceedings and appeals and also for a further period of two
years from the date of final decision for all purposes including those of execution.
of the District Court within which the suit or petition is filed, or of the District Court
within which the party ordinarily resides, if within the limits of Rajasthan.
21. (1) Where a plaintiff or petitioner fails to file an address for service he shall be liable
to have his suit dismissed or his petition rejected by the Court suo motu or any party
may apply for an order to that effect, and the Court may make such order as it thinks
just.
(2) Where a suit is dismissed or a petition rejected under sub-rule (1) the plaintiff or the
petitioner may apply for an order to set aside the dismissal or the rejection and if he
sufficient cause from filing the registered address at the proper time, the Court shall set
aside the dismissal or the rejection upon such terms as to costs or otherwise as it
thinks fit and shall appoint a day for proceeding with the suit or petition.
22. Where a party is not found at the address given by him for service and no agent or
adult male member of his family on whom a process can be served, is present, a copy
of the notice or process shall be affixed to the outer door of the house. If on the date
fixed such party is not present and the process is not declared by the Court under rule
19 of Order V to have been duly served, another date shall be fixed and a copy of the
process shall be sent to the registered address by registered post, and such service
shall be deemed to be as effectual as if the process had been personally served.
23. Where a party engages a pleader, processes for service on him shall be served in
the manner prescribed by Order III, rule 5, unless the Court directs service at the
address for service given by the party.
24. A party, who desires to change the address for service given by him as aforesaid,
shall file a verified petition, and the Court may direct the amendment of the record
pleaders for such parties or be sent to them by registered post as the Court thinks fit.
25. Nothing in these rules shall prevent the Court from directing the service of a
process in any other manner, if for any reasons, it thinks fit to do so." (24-7-1954)
COMMENT.—
However, entire rule 18 is omitted by Code of Civil Procedure (Amendment) Act, 2002
(22 of 2002) (w.e.f. 1-7-2002) vide Notfn. SO 604(E), dt. 6 June 2002, section 8(iv). In
the earlier rule 18 the words "without the leave of the Court" were omitted by the Code
of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. SO
603(E), dt. 6 June 2002.
COMMENTS UNDER THE OLD RULE 18
Modifications.—This rule has been amended for making the following modifications:
1. In rule 18, sub-rule (1) the words "without the leave of the Court" have been
omitted.
2. Section 17 of the Amendment Act, 1999 by deleting words "without the leave of
the Court" from sub-rule (1) of rule 18 has made it an absolute rule that a
document which is not produced in Court or entered in the list to be added or
annexed to the plaint, shall in no case be received in evidence at the hearing of
the suit.
Notes on Clauses.—For notes on clauses of the Code of Civil Procedure (Amendment)

Bill, 1999, see under O VII, rule 14.

amended by section 17 of this Amendment Act, 1999 shall not apply to in respect of
any proceedings pending before the commencement of section 17 of the Amendment
Act, 1999.
Comments on the Amendment Act, 1999
Documents to be produced or listed.—
The Court had a wide discretion under rule 18 with regard to the reception of
documents which were not produced with plaint in the Court. This rule has now been
modified by the Amendment Act, 1999 excluding Court's power to give permission for
filing of documents which were not produced or listed along with the plaint.
Consequently, there is absolute bar on filing of a document at a later stage.

Entire rule 18 omitted by the Code of Civil Procedure (Amendment) Act, 2002.
—
However, entire rule 18 is omitted by Code of Civil Procedure (Amendment) Act, 2002
(22 of 2002) (w.e.f. 1-7-2002) vide Notfn SO 604(E), dt 6 June 2002, w.ef. 1-7-2002.
The main idea underlying this rule is to exclude evidence, the existence of which at the
date of the suit is doubtful and as to the genuineness of which suspicion may arise
because it was produced at a later stage of the suit.
But at the same time, the Court has a wide discretion with regard to the reception of
documents which were not produced with the plaint or entered in the list of
documents.146 Where there can be no doubt about the genuineness of the documents
produced such as certified copies of public documents or records of judicial
proceedings, Courts will not as a rule shut them out.147
It has been held by the Supreme Court that the documents referable to some other
litigation between the parties cannot be taken into consideration unless tendered in
evidence and brought on record consistently with procedural law governing trial of civil
cases.148
Rules 19 to 25/26 of this O VII have been made by the High Courts separately.
144 Rule 18 omitted by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-
2002) vide Notfn. S.O. 604(E), dt. 6-6-2002, section 8(iv), earlier the words 'without the leave of
the Court' omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-
7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, prior to omissions rule stood as under :
(1) A document which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint, and which is not
produced or entered accordingly, shall not, [* * * * *], be received in evidence on his behalf at the
hearing of the suit.
(2) Nothing in this rule applies to documents produced for cross-examination of the defendant's
witnesses, or in answer to any case set up by defendant or handed to a witness merely to
refresh his memory.
145 Subs. for the words "English in Block letters".

146 Kanda v Waghu, AIR 1950 PC 68 .
147 Ram Saran v Bansi Lal, AIR 1954 HP 56 , AIR 1950 PC 68 relied on.
148 JJ Lal Pvt Ltd vMRMurali, AIR 2002 SC 1061 (1070) : (2002) 3 SCC 98 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Written Statement
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER VIII 1[Written Statement, Set-off and Counter-Claim]
2[R. 1.
Written Statement
The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence :
3 Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of service of summons.]
Amendment of First Schedule.—In the First Schedule to the Code, in Order VIII, in rule 1,
for the proviso, the following proviso shall be substituted, namely:
"Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on such other day,
as may be specified by the Court, for reasons to be recorded in writing and on payment
of such costs as the Court deems fit, but which shall not be later than one hundred
twenty days from the date of service of summons and on expiry of one hundred twenty
days from the date of service of summons, the defendant shall forfeit the right to file
the written statement and the Court shall not allow the written statement to be taken
on record.";
Allahabad.—The full stop shall be omitted and the following added at the end of the
rule, namely:
"and shall file with his written statement a list of full documents (whether in his
possession or power or not) on which he relies as evidence in support of his defence."
(17-1-1953)
Bihar.— The following amendments were made by Bihar Gazette, dated 9-8-1972, Part III,
Page 107.
Substitute rule 1 as under:—"1(1)The defendant may, and if so required by the Court,

shall, at or before the first hearing or within such time as the Court may permit, present
a written statement of his defence, and with such written statement, or if there is no
written statement, at the first hearing shall produce in Court all documents in his
possession or power on which he bases his defence or any claim for set-off.
(2) Where he relies on any other documents as evidence in support of his defence or
claim for set-off, he shall enter such documents in a list to be added or annexed to the
written statement, or where there is no written statement, to be presented at the first
hearing. If no such list is annexed or presented, the defendant shall be allowed a
further period of ten days to file this list of documents.
(3) A document which ought to be entered in the list referred to in sub-clause (2) but
which has not been so entered, shall not, without the leave of the Court, be received in
evidence on the defendant's behalf at the hearing of the suit.
(4) Nothing in this rule shall apply to documents produced for cross-examination of
plaintiff's witnesses or handed to a witness merely to refresh his memory." (9-8-1972)
[N.B.—These High Court Amendments relate to the provisions as existed before the
2002 Amendment Act.]

Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 404. Substitute rule
1 as under:—
Written Statement, Set-off, Counter-claim and Third Party Procedure.
(1) Written Statement.—The defendant may and if so required by the Court shall within
such time as may be specified in that behalf or within such extended time as the Court
may permit, present a written statement of his defence, after serving a copy thereof on
the plaintiff or his pleader on or before the date fixed for presenting the same in Court,
or file in Court for the use of the plaintiff a copy of the written statement while
presenting the same in Court:
Provided that the first adjournment for filing the written statement shall not ordinarily
exceed four weeks and no further adjournment shall be granted except for reasons to
be recorded in writing. (1-10-1983)
III A, Page 68.
The renumbering of rule 1 as rule and the new sub-rule (2) as added with effect from 7-
5-1954 deleted.
COMMENT.—
2002).—
(ii) Rule 18 [as amended by clause (v) or section 17 of the Code of Civil Procedure
(Amendment) Act, 1999], the following rule shall be substituted, namely:
1. The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence:
Provided that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the same on such other day, as may be specified by
the Court, for reasons to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons.
By the 1999 Amendment, the time limit of thirty days was fixed for the defendant for
filing written statement. By 2002 Amendment Act, the defendant may file written
statement thereafter with the permission of the Court but not beyond ninety days where
the Court for the reasons to be recorded in writing has extended this period. Thus, now
a defendant is to file written statement within thirty days from the date of service of
summons but such date can be extended up to ninety days by the Court for the reasons
to be recorded in writing. (See Statement of Objects and Reasons.)

1999 stated thus:
Order VIII of the Code provides for written statement and set-off. Clause 18 seeks to
substitute rule 1 of Order VIII to provide a fixed time frame within which pleadings are to be
completed. The new provisions require the defendant to present a written statement within
thirty days from the date of service of summons on him. Clause 18 inserts rule 1A to make
it a duty of defendant to produce documents upon which relief is claimed or relied upon by
him. Rule 1A requires the defendant to produce documents in his possession in the Court
and deliver the document or a copy thereof when the written statement is presented by him.
Rule 1A further requires in case a document or copy thereof is not filed with the written
statement, it shall not be allowed to be received in evidence on behalf of defendant at the
hearing of the suit. [Clause 18]
By the amending Act of 1976, rule 1 was amended to make the filing of written
statement obligatory. Furthermore, sub-rule (2) has been added to provide for the filing
of documents by the defendant along with the written statement. Provisions have been
also made compelling the defendant to produce the document upon which he claims a
set off or makes a counter-claim, if they are in his possession or power. Where the list
is not filed along with the written statement, the Court has been empowered to grant
some time for filing the same.
Delay in filing written statement.—
There was delay in filing of written statement. The conduct of the defendant was far
from being satisfactory and he had been trying to delay the matter. It was held that one
final opportunity could be given for filing written statement on condition that the
defendant should deposit in Court Rs. 2,00,000/- within specified time.4
The limitation for filing written statement provided under rule 1 does not apply to suits
filed on the original side of the chartered High Courts.5
The Court has power to grant extension beyond 90 days for filing written statement.
The provision though negatively worded is procedural. It does not deal with power of
Court or provide consequences of non-extension. It can, therefore, be read as
directory.6
Extension beyond 90 days may, however, be given in exceptionally hard cases only.7
Amendment made to O VIII rule 1 does not completely take away power of Court to
extend time for filing written statement beyond time specified in rule 1 of O VIII.
However, departure therefrom would be by way of exception.8
It has been held by the Supreme Court that a written statement should be artistically
drafted keeping in view the real distinction between the pleas taken.9
Delay in filing written statement can be condoned in exceptionally hard cases. Proviso
to O VII, rule 1 is directory and use of the word "shall" not by itself is sufficient to
indicate its mandatory nature.10
Filing of written statement—extension of time.—
The time limit under O VIII rule 1, has to be observed but in exceptional circumstances
in order to ensure that injustice is not done, the time can be extended. When the delay
is occasioned by reasons beyond the control of defendant, then court ought to permit
the party to file written statement beyond the period prescribed in O VIII, rule 1 of the
Code.11
Nature.—
The time schedule for filling written statement, provided by rule 1 of O VIII is directory.
The rule 1 spells out disability on the defendant and does not impose an embargo on
Courts power. Extension of time, however, is to be granted only for exceptional
circumstances.12
Failure to file written statement after amendment of plaint.—
As the defendant failed to file amended written statement after filing of amended
plaint, despite grant of time to the defendants by the trial judge, the trial court ordered
closing the right to file amended written statement. The said order was recalled by the
trial judge in exercise of power under section 151 of the Code of Civil Procedure, on the
condition that defendants would pay costs of Rs. 50,000 to the plaintiff. It was held that
appellate bench of the High Court was erroneous in setting aside of the recall order and
Trial Court's order was upheld.13
Order VIII rule 1 of Code of Civil Procedure is directory and not mandatory. However, in
this case their lordships further held that in no case, shall the defendant be permitted
to seek extension of time when the court is satisfied that it is a case of laxity or gross
negligence on the part of the defendant or his counsel.14
Non-filing of Written Statement before trial court after remand.—
It was held by the court that the delay in filing of written statement is condoned subject
to payment of costs of Rs. 1,00,000 by the appellant within four weeks, that would meet
the ends of justice.15
Meaning of first hearing.—
In suits in which issues have to be framed, the day on which such issues are framed is
the first hearing of the suit.16 In cases in which no issues need be framed, as for
instance Small Cause Suits, the first hearing will, it is conceived, be the day on which
the Court goes into the case of the parties for the purpose of trial.17
Extension of time.—
The tribunal closing right to file written statement without extending time as provided
under O VIII, rule 1 of the Code is not proper. The petitioner is entitled to extension of
time.18
Substitution of written statement, permissibility of.—
There is no provision in Code for cancelling or setting aside a written statement already
filed, and substituting it with fresh one.19
Right to file written statement.—
Every party in a case has a right to file a written statement. This should be in
accordance with natural justice.20
1 Subs. By Act 104 of 1976, section 58(i), for the heading "Written Statement and Set-off" (w.e.f.
1-2-1977).
Notfn. S.O. 604(E), dt. 6-6-2002, section 9(i)
Earlier R. 1 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
'R. l.Written Statement.—(1) The defendant shall, at or before the first hearing or within such time
as the Court may permit, present a written statement of his defence.
(2) Save as otherwise provided in rule 8A, where the defendant relies on any document (whether
or not in his possession or power) in support of his defence or claim for set-off or counter-claim,
he shall enter such documents in a list, and shall,—
(a) if a written statement is presented, annex the list to the written statement:
Provided that where the defendant, in his written statement, claims a set-off or makes a
counter-claim based on a document in his possession or power, he shall produce it in Court at
the time of presentation of the written statement and shall at the same time deliver the
document or copy thereof to be filed with the written statement;
(b) if a written statement is not presented, present the list to the Court at the first hearing of the
suit.
(3) Where any such document is not in the possession or power of the defendant, he shall,
wherever possible, state in whose possession or power it is.
(4) If no such list is so annexed or presented, the defendant shall be allowed such further period
for the purpose as the Court may think fit.
(5) A document which ought to be entered in the list referred to in sub-rule (2), and which is not
so, entered, shall not, without the leave of the Court, be received in evidence on behalf of the
defendant at the hearing of the suit.
(6) Nothing in sub-rule (5) shall apply to documents produced for the cross-examination of
plaintiffs witnesses or in answer to any case set up by the plaintiff subsequent to the filing of
the plaint, or handed over to a witness merely to refresh his memory.
(7) Where a Court grants leave under sub-rule (5), it shall record its reasons for so doing, and no
such leave shall be granted unless good cause is shown to the satisfaction of the Court for the
non-entry of the document in the list referred to in sub-rule (2)."
4 Ramesh Chandra v Punjab National Bank, AIR 1990 SC 1147 .
5 II Telecom Ltd v Motorola Inc, AIR 2005 SC 514 (525).
6 Shaikh Salim Haji Abdul Khavimsab v Kumar, AIR 2006 SC 396 (399); see also Hindurao
Tukaram Shuke v Prakash Kallappa Awade, AIR 2006 Bom 55 (62).
8 Rani Kusum v Kanchan Devi, AIR 2005 SC 3304 (3306); see also Karpuri Devi v Rabindra P
Singh, 2005 AIHC 4320 (Jhar); Johna Oraon v Jaleshwar Sahu, 2005 AIHC 4319 (Jhar); Laxman
Oraon v Vikash Parishad, 2005 AIHC 4315 (Jhar).
9 C Abdul Shukoor Saheb v Arji Papa Rao, AIR 1963 SC 1150 : 1963 Supp (2) SCR 55 : (1964) 1
MLJ (SC) 49.
10 Zolba v Keshao, AIR 2008 SC 2099 : (2008) 11 SCC 769 .
11 Sandeep Thapar v SME Technologies Pvt Ltd, AIR 2014 SC 897 .
12 Kailash v Nauhkau, AIR 2005 SC 2441 (2452 (iv)); JJ Merchant (Dr) v Srinath Chaturvedi, AIR
2002 SC 2931 (held obiter dicta); see also Baidyanath Singh v Ram Singh, AIR 2005 Pat 188 .
13 Paramount Enterprises Ltd v SD Surie, (2014) 14 SCC 542 .
14 Kailash v Nanhku, AIR 2012 SC 2441 .
15 Suresh Kumar Kantilal Patel v Balkrishna Laxmidas Kothari, (2012) 12 SCC 461 .
16 Sangram Singh v Election Tribunal, Kotah, AIR 1955 SC 425 : (1955) 2 SCR 1 : (1955) 2 MLJ
(SC) 3 : 10 ELR 293; see also Chikkula Chendraiah v Tata Seetarammiah, AIR 1961 AP 102 (DB).
17 Sangram Singh v Election Tribunal, Kotah, AIR 1955 SC 425 : (1955) 2 SCR 1 : (1955) 2 MLJ
(SC) 3 : 10 ELR 293; see also Chikkula Chendraiah v Tata Seetarammiah, AIR 1961 AP 102 (DB).
18 Reshamlal v PK Satnami, AIR 2011 Chhtis 74 (75).
19 Thakorbhai H Patel v Shree DGA Samaj Seva Sangh, AIR 2009 Guj 155 ; see also UR
Veruprakkappa v Sarvamangla, (2009) 2 SCC 177 (inconsistent pleadings in WS, permissibility).
20 Santibai v Paras Finance Co, (2007) 10 SCC 82 (85).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Duty of defendant to
upon which relief is claimed or relied upon produce documents by him
© 2020 LexisNexis
THE FIRST SCHEDULE
21[R. 1A.
Duty of defendant to upon which relief is claimed or relied upon produce
documents by him
(1) Where the defendant bases his defence upon a document or relies upon any
document in his possession or power, in support of his defence or claim for set
off or counter claim, he shall enter such document in a list, and shall produce it
in Court when the written statement is presented by him and shall, at the same
time, deliver the document and a copy thereof, to be filed with the written
statement.
(2) Where any such document is not in the possession or power of the defendant,
he shall, wherever possible, state in whose possession or power it is.
22
[(3) A document which ought to be produced in Court by the defendant under
this rule, but, is not so produced shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiffs witnesses, or
(b) handed over to a witness merely to refresh his memory.]
COMMENT.—
2002).—
Modifications.—This rule is a new insertion.
1. Now a duty is cast on the defendant to produce the documents in his possession
in the Court and file the same along with the written statement filed by him. He
must list out the documents which are and those which are not in his possession
or power.
2. In case the defendant does not file the document or copy thereof with a written
statement it shall not be allowed to be received in evidence on behalf of
defendant at the hearing of the suit. However, it will not apply to a document
produced for cross-examination of the plaintiffs witnesses or handed over to a
witness merely to refresh his memory.
1999 stated thus:-
substitute rule 1 of O VIII to provide a fixed time-frame within which pleadings are to be
completed. The new provisions required the defendant to present a written statement
within thirty days from the date of service of summons on him. clause 18 inserts rule
1A to make it a duty of defendant to produce documents upon which relief is claimed
or relied upon by him. Rule 1A requires the defendant to produce documents in his
possession in the Court and deliver the document or a copy thereof when the written
statement is presented by him. Rule 1A further requires in case a document or copy
thereof is not filed with the written statement, it shall not be allowed to be received in
evidence on behalf of defendant at the hearing of the suit.
[Clause 18]

(l) (of the repeal and savings section) stipulates that the provisions of rule 1 and 1A of
O VIII of the First Schedule, as substituted or inserted by section 18 of the Amendment
Act, 1999, shall not apply to a written statement filed and presented before the Court
immediately before the commencement of section 18 of the Amendment Act, 1999.

Admission of new documents.—
The documents which were not filed in suit nor in execution proceedings cannot be
relied upon in revision.23
The defendant can produce document at the time of hearing of the suit with the leave
of the court. Rejection of application to produce documents because the application is
moved belatedly is improper.24
1-2-1977).
21 R. 1A ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 18(ii)
Notfn. S.O. 604(E), dt. 6-6-2002, section 9(ii) for the following :
"(3) Where a document or a copy thereof is not filed with the written statement under this rule, it
shall not be allowed to be received in evidence on behalf of the defendant at the hearing of the
suit."
23 Abdul Rehman Shora v State of J&K, (2009) 2 SCC 617 ; see also Vidyabai v Padmalatha,
(2009) 2 SCC 409 .
24 Prashant Kumar Goyal v Sogra Khatoon, AIR 2012 Sikkim 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. New facts must be
specially pleaded
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
New facts must be specially pleaded
The defendant must raise by his pleading all matters which show the suit not to be
maintainable, or that the transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the opposite party by
surprise, or would raise issues of fact not arising out of the plaint, as, for instance,
fraud, limitation, release, payment, performance, or facts showing illegality.
COMMENT.—
Scope of the Rule.—
Under this rule, it is the duty of the defendant to give all the particulars in his defence,
which he desires to take.25 If he does not do so, he will not be allowed to raise a new
plea depending upon evidence for its determination, for the first time in appeal.26
The provisions in O VI rule 8 and O VIII rule 2 leave no doubt that a party denying merely
the factum of contract and not alleging its unenforceability in law, must be held bound
by the pleadings. The party must be precluded from raising the legality or validity of the
contract.27
This rule prescribes that the defendant must raise by his pleading all matters which
show the suit not to be maintainable or that the transaction is either void or voidable on
the point of law.28
Where there was no duty on the respondent to give details of facts which the petitioner
had to do to set at naught the electoral process, the High Court erred in rejecting
respondent's prayer of amendment and refusing to summon witness.29
It is required by this rule that the defendant must raise by his pleading all matters which
show that the suit is not maintainable. Hence, the defendant will not be entitled, as of
right, to rely on any ground of defence which he was not taken in his written
statement.30 But when the necessary facts are there in the plaint, it is not necessary for
the defendant to particularise them in his defence and to state the legal effect of those
facts.31
Contract ex facie illegal.—
Where a contract or transaction ex facie is illegal there need be no pleading of the

parties raising the issue of illegality. The Court is bound to take judicial notice of it and
mould its relief according to the circumstances. Even where the contract is not ex facie
legal, if the facts given in the evidence clearly disclose the illegality the Court is bound
to take notice of this fact even if not pleaded by the defendant.32
It has been held by the Supreme Court in Udhav Singh v Madhav Rao Scindia, AIR 1976
SC 744 : (1977) 1 SC 511 that the key words in O VIII, rule 2 are "all such grounds of
defence as, if not raised, would be likely to take the opposite party by surprise". These
words denote the broad test for determining whether a particular defence, plea or fact
is required to be incorporated in written statement. Thus, a plea of limitation that can
be substantiated without any evidence and is apparent on the face of the plaint itself,
may be allowed to be taken at any stage of the suit".33
Where a suit for possession is filed by the plaintiff on the basis of sale deed in his
favour, seeking the possession of property from one of the defendants, the said
defendant can raise all pleas available to him to defeat the suit.34
In view of the provisions of O VI rule 8 and O VIII rule 2 the appellant would be debarred
from raising the point for the first time before the Supreme Court or even before the
High Court. The appellant cannot be allowed to raise the plea for the first time in the
Supreme Court.35
It is a settled legal proposition that an agent cannot be sued where the principal is
known. In a case where the appellant had not taken plea before either of the courts
below, it was held that in view of the provision of O VIII rule 2 Code of Civil Procedure,
the Appellant was under an obligation to take a specific plea to show that the suit was
not maintainable which it failed to do so. The vague plea to the extent that the suit was
bad for non-joinder and thus was not maintainable did not meet the requirement of law.
The appellant ought to have taken a plea in the written statement that it was merely an
agent of the Central Government thus, the suit against it was not maintainable. More
so, whether A is an agent of B is a question of fact and has to be properly pleaded and
proved by adducing evidence. The appellant miserably failed to take the required
pleadings for the purpose.36
Plea of estoppel.—
A question of estoppel is a mixed question of law and fact and without definite
allegations in the pleadings, a party should not be permitted to resort to the plea of
estoppel.37 It has been held by the Supreme Court that a defendant who has set up a
case of estoppel in the written statement cannot be allowed to set up a case different
to his case in the written statement.38
Issue of the fact.—
The question of intention is a question of fact. Thus, whether a subsequent mortgage

discharging a prior mortgage intended to retain his right of subrogation is a question of
fact and must be raised in the pleadings. So also, will be the question, whether a claim
under section 56 of the Transfer of Property Act by a purchaser of a portion of
mortgaged property to have the property not sold to him proceeded against first will
prejudice the mortgage.39
1-2-1977).
25 KV Subba Rao v The State of AP, AIR 1967 AP 202 .
26 1970 SCD 341 .
27 KalyanpurLWLtdv State of Bihar, AIR 1954 SC 165 (168) : 1954 SCR 958 .
28 UOI v Surjit Singh Atwal, AIR 1979 SC 1701 (1703) : (1979) 1 SCC 520 .
29 Sultan Saluddin v Mohd Osman Shaweed, AIR 1980 SC 1347 (1349) : (1980) 3 SCC 281 .
30 Bhggat Singh v Jaswant Singh, AIR 1966 SC 1861 : (1961) 1 Ker LR 539.
31 Lakshmi Narain v UOI, AIR 1962 Pat 64 (DB).
32 Surasaibalini v Phanindra, AIR 1965 SC 1364 (1370) : (1965) 1 SCR 861 .
33 AIR 1976 SC 744 : (1977) 1 SC 511 , at p 519.
34 Vidhyadhar v Manhihrao, AIR 1999 SC 1441 (1446) : (1999) 3 SCC 573 .
35 Nirod Baran Banerjee v Dy Commr, Hazaribagh, AIR 1980 SC 1109 (1111) : (1980) 3 SCC 5 .
36 National Textile Corporation Ltd v Nareshkumar Badrikumar Jagad, AIR 2012 SC 264
37 Associated Publishers Madras Ltd v K Bashyam Alias Arya, AIR 1941 Mad 114 .
38 Attar Singh v The State of UP, AIR 1959 SC 564 : 1959 Supp (1) SCR 928 : 1959 ALJ 601 .
39 Braham Prakash v Manbir Singh, AIR 1963 SC 1607 : (1964) 2 SCR 324 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Denial to be specific
© 2020 LexisNexis
THE FIRST SCHEDULE
40R. 3.
Denial to be specific
It shall not be sufficient for a defendant in his written statement to deny generally the
grounds alleged by the plaintiff, but the defendant must deal specifically with each
allegation of fact of which he does not admit the truth, except damages.
Amendment of First Schedule.—In the First Schedule to the Code, in Order VIII, after
rule 3, the following rule shall be inserted, namely:—
"3A. Denial by the defendant in suits before the Commercial Division of the High Court
or the Commercial Court.—(1) Denial shall be in the manner provided in sub-rules (2),
(3), (4) and (5) of this Rule.
(2) The defendant in his written statement shall state which of the allegations in the
particulars of plaint he denies, which allegations he is unable to admit or deny, but
which he requires the plaintiff to prove, and which allegations he admits.
(3) Where the defendant denies an allegation of fact in a plaint, he must state his
reasons for doing so and if he intends to put forward a different version of events from
that given by the plaintiff, he must state his own version.
(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for
doing so, and if he is able, give his own statement as to which Court ought to have
jurisdiction.
(5) If the defendant disputes the plaintiffs valuation of the suit, he must state his
reasons for doing so, and if he is able, give his own statement of the value of the suit. ;
COMMENT.—
A defendant can either admit or deny the several allegations made in the plaint. If he
decides to deny any such allegations he must do so clearly and explicitly. This rule lays
down that a general denial of the grounds alleged in the plaint shall not be sufficient.
Each and every allegation of fact must be "specifically" dealt with rules 3, 4 and 5 form
an integrated Code dealing with the manner in which allegations of fact in the plaint
should be traversed and the legal consequences flowing from its non-compliance.41
According to the law of pleadings, the defendant is bound to deal specifically with each
allegation of fact, the truth of which is not admitted. If certain para in the plaint is
merely not admitted but the facts therein are not specifically dealt with, it cannot be
said that they are denied. Where the truth of the facts alleged in the plaint, though not
specifically dealt with in the corresponding para of the written statement, were dealt
with in the additional pleadings, the allegations in the plaint must be considered to
have been traversed.42
A plaintiff cannot complain if general allegations made by him in the plaint are
answered by equally general allegations in the written statement. In the absence of
particulars in the plaint all that the defendant could do would be simply to deny that
there had been discrimination.43
In a case no contention was raised by the plaintiff in trial Court that allegations were
not traversed in written statement nor objection taken to framing of issues on the
matter. The plaintiff could not be allowed to contend in appeal for first time that part of
his claim must be deemed to have been admitted because it was not traversed in the
written statement.44
A party has to plead his case and adduce sufficient evidence to substantiate his
submissions. In case of incomplete pleadings, the court is under no obligation to
entertain the same. It was held, in the absence of any specific pleading as to what
document had not been supplied to plaintiff/respondent/delinquent which was relied
upon by inquiry officer, or which witness was not permitted to be cross-examined by
him, finding of trial court that departmental inquiry initiated against, plaintiff
respondent was in violation of natural justice is erroneous since the same was based
merely on allegations in plaint which the defendant/appellant corporation had failed to
rebut.45
The defendant in written statement must categorically deny or dispute averments

made in plaints, as evasive denial would amount to an admission of the allegation
madein the plaint.46
1-2-1977).
41 Badat & Co v East India Trading Co, AIR 1964 SC 538 (544) : (1964) 4 SCR 19 : 66 Bom LR
402.
42 Sheikh Abdul Sattar v UOI, AIR 1970 SC 479 (482) : (1970) 3 SCC 845 .
43 UOI v Pandurang Kashinath More, AIR 1962 SC 630 : (1961) 2 LLJ 427 .
44 Shipping Corpn of India v Nissar Export Corpn, AIR 1981 SC 1212 (1214) : (1981) 1 SCC 564 .
45 Rajasthan SRTC v Bajrang Lal, (2014) 4 SCC 693 .
46 Jaspal Kaur Cheema v Industrial Trade Links, AIR 2017 SC 3995 : 2017 (7) SCALE 230 :
(2017) 8 SCC 592 : 2017 (10) SCJ 670 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Evasive denial
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Evasive denial
Where a defendant denies an allegation of fact in the plaint, he must not do so

evasively, but answer the point of substance. Thus, if it is alleged that he received a
certain sum of money, it shall not be sufficient to deny that he received that particular
amount, but he must deny that he received that sum or any part thereof, or else set
out how much he received. And if an allegation is made with diverse circumstances, it
shall not be sufficient to deny it along with those circumstances.
COMMENT.—
Where the plaintiffs had precisely and definitely given particulars of correspondence
that passed between the parties and the defendants did not specifically deny the
passing of the correspondence, it was held by the Supreme Court that their denial was
vague and evasive so far as the correspondence was concerned.47
1-2-1977).
47 AIR 1964 SC 538 : (1964) 4 SCR 19 : 66 Bom LR 402.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Specific denial
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Specific denial
48
[(1)] Every allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of the
defendant, shall be taken to be admitted except as against a person under
disability:
49 Provided that the Court may in its discretion require any fact so admitted
to be proved otherwise than by such admission.
50
[(2) Where the defendant has not filed a pleading, it shall be lawful for the Court
to pronounce judgment on the basis of the facts contained in the plaint,
except as against a person under a disability, but the Court may, in its
discretion require any such fact to be proved.
(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule
(2), the Court shall have due regard to the fact whether the defendant could
have, or has, engaged a pleader.
(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn
up in accordance with such judgment and such decree shall bear the date on
which the judgment was pronounced.]
Amendment of First Schedule.—In the First Schedule to the Code, in Order VIII, in rule 5,
in sub-rule (1), after the first proviso, the following proviso shall be inserted, namely:—
"Provided further that every allegation of fact in the plaint, if not denied in the manner
provided under rule 3A of this Order, shall be taken to be admitted except as against a
person under disability.";
COMMENT.—
It is provided by this rule that an allegation in the plaint will be deemed to be admitted
by the defendant unless in the written statement, it is denied specifically or by
necessary implication and secondly it is stated that it is not admitted. The object of the
rule is to narrow the issues to be tried in the case and to enable either party to know
what real point is to be discussed and decided.
This rule applies to election petitions and so any allegation in the election petition
about a petitioner incident in a police station must be specifically denied in the written
statement.51
It has been held by the Supreme Court that the word "specifically" qualifies not only the
word "denied" but also the words "stated to be not admitted" and, therefore, a refusal to
admit must also be specifically stated.52
In a writ petition challenging the order black listing a private contractor, it was stated by
the petitioner that the order was not received. The Government pleaded that the order
was communicated. It was held that this cannot be construed as non-traverse.53
The provision under rule (1) has application only where the written statement does not
contain a specific or implicit denial of the averments in the plaint.54
A plea that the defendant does not admit any of the allegations in the plaint except
such as have been expressly admitted and that he puts the plaintiff to the proof of
allegations not admitted is not a sufficient denial within the meaning of this rule: Thus,
every allegation so denied will be deemed to have been admitted.55
Principle of specific denial.—
It is settled position of law that, if an allegation made in plaint is not specifically denied
in written statement, it is treated as admitted. Furthermore, if a fact is clearly asserted
in plaint, and supported by witnesses in cross-examination, and there is no denial of the
said fact, nor nonexistence of such fact put to the witnesses in cross examination,
then, such fact will be held to be proved.56
Vesting discretion.—
The rule that in divorce cases a Court usually does not decide on the admission of
parties, is a rule of prudence and not a requirement of law. Where there is no room for
collusion there is no reason why admissions of parties should not be treated as
evidence just as in other cases. Section 58 of Evidence Act and O VIII rule 5 of Code of
Civil Procedure vest discretion in the Court to require any fact so admitted to be proved
otherwise than by such admission.57
A denial of knowledge of a particular fact is not a denial of the fact and has not the
effect of putting the fact in issue. It merely means that the defendant denies that he
has any knowledge of the fact and a man can admit a fact of which he has no personal
knowledge.58
It is clear from the wording of the rule that it is not intended to apply to a case where
the defendant has not put in a written statement. The defendant cannot be said to have
admitted the plaint allegation in such a case.59
There existed a doubt in judicial opinion as to whether this rule applied in a case where
the defendant had not filed a pleading at all. By inserting new sub-rule (2) to rule 5 a
discretion has now been conferred upon the Court in such cases to treat the allegation
in the plaint as admitted and to pronounce judgment on the basis of such allegations.
Denial of averments in plaint, effect.—
Where the defendant does not deny the averments in the plaint, the same would be
deemed to have been admitted under rule 5 of O VIII of the Code.60
Effect of non-rebuttal of judgment.—
The decision does not become applicable merely because the opposite party has not
rebutted it.61
Sub-rules (3) and (4) were added by the Amending Act of 1976.
1-2-1977).
48 Rule 5 renumbered as sub-rule (1) of that rule by Code of Civil Procedure (Amendment) Act
104 of 1976, section 58, (w.e.f. 1-2-1977).
51 Ram Singh v Col Ram Singh, AIR 1986 SC 30 (48).
52 Tek Bahadur v Debi Singh, AIR 1966 SC 292 ; see also AIR 1964 SC 538 : (1964) 4 SCR 19 : 66
Bom LR 402.
53 Patna Regional Development Authority v Rashtriya Pariyojana Nirman Nigam, AIR 1996 SC
2074 : (1996) 4 SCC 529 .
54 Modula India v Kamakshya Singh Deo, AIR 1989 SC 162 (176) : (1988) 4 SCC 619 .
55 PP Abubacker v The UOI, AIR 1972 Ker 103 .
56 Standard Chartered Bank v Andhra Bank Financial Services Ltd, (2016) 1 SCC 207 : 2016 (1)
SCJ 116 : 2015 (9) SCALE 370 .
57 Mahendra MNanavati v Sushila MNanavati, AIR 1965 SC 364 (371) : (1964) 7 SCR 267 : 66
Bom LR 681 : 1965 Mah LJ 365 .
58 Jahuri Sah v Dwarika Prashad, AIR 1967 SC 109 : 1966 Supp SCR 280 : 11 Law Rep 195.
59 Siai Sinha v Shivadart Sinha, AIR 1972 Pat 81 .
60 Seth Ramdayal Jat v Laxmi Prasad, (2009) 11 SCC 545 (554) : AIR 2009 SC 172 .
61 Food Corporation of India v Pale Ram, (2008) 14 SCC 32 (49).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Particulars of set-off to
be given in written statement
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Particulars of set-off to be given in written statement
(1) Where in a suit for the recovery of money the defendant claims to set-off
against the plaintiff's demand any ascertained sum of money legally
recoverable by him from the plaintiff, not exceeding the pecuniary limits of the
jurisdiction of the Court, and both parties fill the same character as they fill in
the plaintiffs suit, the defendant may, at the first hearing of the suit, but not
afterwards unless permitted by the Court, present a written statement
containing the particulars of the debt sought to be set-off. [OR, P, MY]
Effect of set-off
(2) The written statement shall have the same effect as a plaint in a cross-suit so
as to enable the Court to pronounce a final judgment in respect both of the
original claim and of the set-off; but this shall not affect the lien, upon the
amount decreed, of any pleader in respect of the costs payable to him under
the decree.
(3) The rules relating to a written statement by a defendant apply to a written

statement in answer to a claim of set-off.
ILLUSTRATIONS
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B
dies and D takes out administration to B's effects. C pays Rs. 1,000 as surety for D; then
D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the legacy, for
neither C nor D fills the same character with respect to the legacy as they fill with
respect to the payment of the Rs. 1,000.
(b) A dies intestate and in debt to B. C takes out administration to effects and B buys
part of the effects from C. In a suit for the purchase-money by C against B the latter
cannot set-off the debt against the price, for C fills two different characters, one as the
vendor to B in which he sues B and the other as representative to A.
(c) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to insure
B's goods and is liable to him in compensation which he claims to set-off. The amount
not being ascertained cannot be set-off.
(d) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs.
1,000. The two claims being both definite pecuniary demands may be set-off.
(e) A sues B for compensation on account of trespass. B holds a promissory note for
Rs. 1,000 from A and claims to set-off that amount against any sum that A may recover
in the suit. B may do so, for, as soon as A recovers, both sums are definite pecuniary
demands.
(f) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.
(g) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.
(h) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A sues
C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt of Rs.
1,000.
[Sub-rule (1) amended in Karnataka, Orissa & Pat.]
Karnataka.—Same as in Patna substituting "Rules 14 to 18 of Order VII of this Code" for

"Order VII, rules 14 to 18". (30-3-1967).
Orissa.—Deleted. (14-5-1984).
Patna.— To rule 6(1) add the words:—
"and the provisions of Order VII rules 14 to 18 shall, mutatis mutandis, apply to a
defendant claiming set-off as if he were a plaintiff." (30-3-1967).
COMMENT.—
Set-off.—
The doctrine of set-off may be defined as "The extinction of debts of which two
persons are reciprocally debtors to one another, by the credits of which they are
creditors to one another". In other words, it is a reciprocal acquittal of debts between
two persons.
Under rule 6, if in a suit for the recovery of money, the defendant claims to set-off,
against the plaintiffs demand, any ascertained sum of money legally recoverable by
him from the plaintiff not exceeding the pecuniary limits of the jurisdiction of the Court
and both the parties fill the same character as they fill in the plaintiffs suit, the
defendant may, at the first hearing of the suit, but for afterwards, unless, permitted by
the Court, present a written statement containing the particulars of the debt sought to
be set-off.
Such a written statement has the same effect as a plaint in a cross suit, so as to enable
the Court to pronounce a final judgment in respect of both of the original claim and the
set-off. Furthermore, all the rules relating to a written statement by a defendant apply
to a written statement filed in answer to a claim of set-off.
Under O VIII rule 6 of the Code of Civil Procedure, certain conditions precedent are to
be satisfied for application of the said rule. Two primary conditions are that it must be
a suit for recovery of money and the amount sought to be set off must be a certain
sum. Apart from the aforesaid parameters there are other parameters to sustain a plea
of set off under this rule.
Conditions for set-off.—
In order to entitle a defendant to claim a set-off under this rule, there are some
conditions which must be satisfied:
(1) The suit must be one for recovery of money. For example, a suit on a negotiable
instrument.
(2) The amount must be an ascertained sum of money
(3) Such sum must be legally recoverable.
(4) It must be recoverable by the defendant or by all the defendants, if more than
one
(5) It must be recoverable by the defendant from the plaintiff or all the plaintiffs, if
more than one
(6) It must not exceed the pecuniary limits of the jurisdiction of the Court in which
the suit is brought.
(7) Both parties must fill in the defendant's claim to set-off the same character as
they fill in the plaintiffs suit.
It may be pointed out here that this rule deals with legal as distinguished from
equitable set-off.
Equitable set-off.—
The Courts in England permit a defendant to set-off, against the plaintiff's demand,
even any unascertained sum of money payable as damages in which the cross
demands arise out of the same transaction or are so connected in their nature and
circumstances that they can be looked upon as part of one transaction. Such a set-off
is called an equitable set-off and it is also recognised by the Indian Courts.
Equitable set-off is different from legal set-off. It is independent of the provisions of the
Code of Civil Procedure. The plea of equitable set-off is raised not as a matter of right.
It is the discretion of the court to entertain and allow such a plea or not. The concept of
equitable set-off is founded on the fundamental principles of equity, justice and good
conscience. Equitable setoff exists not only in cases of mutual debits and credits, but
also where cross demands arise out of the same transaction or to be connected in the
nature and circumstances. An equitable set-off is not to be allowed where protracted
enquiry is needed for the determination of the sum due.62
Difference between payment, adjustment and set-off.—
A payment is the satisfaction or extinguishment of a debt prior to the written

statement. Where there are mutual demands between the same parties in the same
capacity, one of them may under certain circumstances, adjust the amount due by him
to the other towards amounts due by the other to him and sue for the balance. It is the
act of the party himself prior to the written statement.
Where no such adjustment has been made by the parties, but in a suit by one of them
for recovery of amounts due to him the other party asks the Court in the written
statement to adjust the amount due to him towards the claim made against him, the
plea is one of set-off under this rule.63
Difference between set-off and Counter-claim.—

A set-off is a statutory defence to a plaintiff's action, whereas a counter-claim is
substantially a cross-action. In a suit for recovery of possession the defendant can set
up a counter-claim for specific performance of an agreement to sell. Though there is no
provision in the Code for making a counter-claim, a Court has got the power to treat the
counter claim as the plaint in a cross suit and hear the two together if the counter claim
is properly stamped. But a counter-claim may be set up only in respect of claims as to
which the counter-claim is brought.64
In a suit for recovery of certain amount on the basis of khata, the defendant by his
additional written statement put forward a counter claim. It was for accounting arising
out of transactions between him and the plaintiffs on the basis of an agreement. The
written statement could be treated as a cross claim.65
Decree in favour of defendant when permissible.—
Decree in favour of defendant is permissible of defendant either when the defendant

pleads set-off or makes a counter claim as per the provisions of O VIII.66
1-2-1977).
62 Jitendra Kumar Khan v Peerless General Finance and Investment Co Ltd, (2013) 8 SCC 769 .
63 Jadunandan Mandal v Hital Mandal, AIR 1969 Ori 171 ; see also Govt of United of States of TC
v Bank of Cochin Ltd, AIR 1954 Tra&Co 24 (FB).
64 Uthandarama Pillai v MArumugha Pillai, AIR 1971 Mad 215 (DB); see also Mohinder Singh
Jaggi v Data Ram Jagannath, AIR 1972 SC 1048 : (1972) 4 SCC 495 .
65 Mohinder Singh Jaggi v Data Ram Jagannath, AIR 1972 SC 1048 (1052) : (1972) 4 SCC 495 .
66 SBI v National Housing Bank, AIR 2013 SC 3478 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 6A. Counter-claim by
defendant
© 2020 LexisNexis
THE FIRST SCHEDULE
67[R 6A.
Counter-claim by defendant
(1) A defendant in a suit may, in addition to his right of pleading a set-off under
rule 6, set up, by way of counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant has
delivered his defence or before the time limited for delivering his defence has
expired, whether such counter-claim is in the nature of a claim for damages or
not:
Provided that such counter-claim shall not exceed the pecuniary limits of the
jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable
the Court to pronounce a final judgment in the same suit, both on the original
claim and on the counter-claim.
(3) The plaintiff shall be at liberty to file a written statement in answer to the
counter-claim of the defendant within such period as may be fixed by the
Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules
applicable to plaints.]
COMMENT.—
Right to file a counter claim under this rule is referable to the date of accrual of the
cause of action. An application under this rule is not ex facie barred after filing written
statement.68
Before the rules 6A to 6G regarding counter claim were inserted by 1976 Amendment
Act, it was held by the Supreme Court that there is nothing in law which precludes a
Court from treating a counter-claim as a plaint in a cross-suit.
The crucial date for determining when the plaint in a cross-suit should be treated as
having been filed, is not the date when the conversion is ordered but the date on which
the written statement, containing the counter-claim, is filed.69
In a suit for injunction, a counter claim for possession by the defendant also can be
entertained under this rule.70
Counter-claim allowed.—
In a suit for recovery of money the appellant was found to be not entitled to claim any
amount. A counter-claim was lodged by respondent, which was allowed by an order of
Special Court. The view expressed by the Special Court did not call for any interference
in the opinion of the apex court.71
Exercise of discretion.—
Relief under O VII, rule 6A is discretionary remedy but discretion is to be exercised in

judicious manner.72
Written Statement, amendment of.—
In a suit for dissolution of firm counterclaim was limited to damages caused to the
defendant till filing of written statement. After 13 years amendment of written
statement and enhancement of counter-claim were sought. The court held that the
claim was barred by limitation.73
Pleadings, amendment of.—
In dealing with a prayer for amendment the courts normally prefer substance to form
the techniques and the interest of justice is one of the most important considerations.
If a party is entitled to amend its pleadings, the right of the party to amend cannot be
defeated just because a wrong section or a wrong provision has been quoted in the
amendment petition.74
The counter-claim is required to be treated as an independent suit in view of provisions

of O VIII, rule 6A of the Code.75
Where the cause of action for the counter-claim had arisen before filing of the written
statement, the counter-claim is not barred.76
In the counter-claim when the factum of issuance of notice terminating the tenancy
has been pleaded so also its valid service of notice, the same has gone totally
uncontroverted. The plaintiff has not filed any written statement to the same and
therefore, the rule of non-traverse very well comes into operation. So, it was not
required for the defendant to further prove those facts which have to be deemed to
have been admitted as per the provision of O VIII rule 5 of the Code of Civil
Procedure.77
The defendant can claim any property by way of counter claim in respect of any cause
of action that has accrued to him even though it is independent of the cause of action
averred by the plaintiff and the same cause of action can be adjudicated without
relegating the defendant to file a separate suit, so as to avoid multiplicity of
proceedings, especially when the dispute is between the same parties.78
In the instant case the defendants filed counter-claim after two-and-a-half years after
framing of the issues. No material showing that any prejudice or irreparable loss or
injustices would be caused to the plaintiff was produced, showing that any prejudice
would be caused to the respondent/ plaintiff if the counter-claim was to be adjudicated
upon, along with the main suit. Hence, order of the High Court declining the
appellant/defendant to file counter-claim was set aside.79
Counter claim can be filed by defendant in suit before small cause court.80
claim,-Maintainability of.—
Cause of action in respect of which counter claim can be filed, should accrue before
defendant has delivered his defence, namely, before defendant has filed his written
statement.81
1-2-1977).
68 Shanti Rani Das Dewanjee v Dinesh Chandra Day, AIR 1997 SC 3985 : (1997) 8 SCC 174 .
69 Lakshmidas v Nanabhai, AIR 1964 SC 11 (17, 18) : (1964) 2 SCR 567 .
70 Gurbachan Singh v Bhag Singh, AIR 1996 SC 1087 : (1996) 1 SCC 770 .
71 Naresh Kr Aggarwala v Canbank Financial Services Ltd, AIR 2010 SC 2722 .
72 Ballepanda P Poonacha v KMMadapa, (2008) 13 SCC 179 (183-85).
73 South Konkan Dstilleries v Prabhakar Gajanan Naik, AIR 2009 SC 1177 (1181).
74 Venture Global Engineering v Stayam Computer Services Ltd, AIR 2010 SC 3371 (3374).
75 Gayathri Women Welfare Association v Gowramma, (2011) 2 SCC 330 (339).
76 Mahendra Kumar v State of MP, AIR 1987 SC 1395 (1399) : (1987) 3 SCC 265 .
77 Rajesh Vig v Shiv Prakash Mundra, AIR 2015 Orissa 161 .
78 KRajasekaran v MRajeshwari, AIR 2014 Mad 178.
79 Vijay Prakash Jarath v Tej Prakash Jarath, AIR 2016 SC 1304 .
80 Vaishali Abhimanyu Joshi v Nanasaheb Gopal Joshi, AIR 2017 SC 2926 : 2017 (6) SCALE 478
: (2017) 14 SCC 373 .
81 Vijay Prakash Jarath v Tej Prakash Jarath, AIR 2016 SC 1304 : 2016 (6) SCJ 8 : 2016 (3)
SCALE 211 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6B. Counter-claim to be
stated
© 2020 LexisNexis
THE FIRST SCHEDULE
82[R. 6B.
Counter-claim to be stated
Where any defendant seeks to rely upon any ground as supporting a right of counter-
claim, he shall, in his written statement, state specifically that he does so by way of
counter-claim.]
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6C. Exclusion of counter-
claim
© 2020 LexisNexis
THE FIRST SCHEDULE
83[R. 6C.
Exclusion of counter-claim
Where a defendant sets up a counter-claim and the plaintiff contends that the claim
thereby raised ought not to be disposed of by way of counter-claim but in an
independent suit, the plaintiff may, at any time before issues are settled in relation to
the counter-claim, apply to the Court for an order that such counter-claim may be
excluded and the Court may, on the hearing of such application, make such order as it
thinks fit.]
COMMENT.—
In a suit for injunction, counter-claim for in respect of the same or a different property
is maintainable. The cause of action from which the counterclaim arises need not
necessarily arise from or have any nexus with the cause of action of the plaintiff.84
1-2-1977).
84 Jag Mohan Chawla v Dera Radha Swami Satsang, AIR 1996 SC 2222 : (1996) 4 SCC 699 ; see
also Mahendra Kumar v State of MP, AIR 1987 SC 1395 : (1987) 3 SCC 265 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6D. Effect of
discontinuance of suit
© 2020 LexisNexis
THE FIRST SCHEDULE
85[R. 6D.
Effect of discontinuance of suit
If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff
is stayed, discontinued or dismissed, the counter-claim may nevertheless lb e procee
ded with.]
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6E. Default by plaintiff of
reply to counter-claim
© 2020 LexisNexis
THE FIRST SCHEDULE
86[R. 6E.
Default by plaintiff of reply to counter-claim
If the plaintiff makes default in putting in a reply to the counter-claim made by the
defendant, the Court may pronounce judgment against the plaintiff in relation to the
counter-claim made against him, or make such order in relation to the counter-claim
as it thinks fit.]
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6F. Relief to defendant
succeeds where counts-claim
© 2020 LexisNexis
THE FIRST SCHEDULE
87[R. 6F.
Relief to defendant succeeds where counts-claim
Where in any suit a set-off or counter-claim |s established as a defence against the

plaintiff's claim, and any balance is found due to the plaintiff or the defendant, as the
case may be, the Court may give judgment to the party entitled to such balance.]
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6G. Rules relating to
written statement to apply
© 2020 LexisNexis
THE FIRST SCHEDULE
88[R. 6G.
Rules relating to written statement to apply
The rules relating to a written statement by a defendant shall apply to a written

statement filed in answer to a counter-claim.]
COMMENT.—
Rules 6-A to 6-G were added by the Amendment Act of 1976, with a view to make
detailed provisions regarding the counter-claims.
Distinction between Set-off and Counter-Claim.—
1. Set-off must be for an ascertained sum, or it must arise out of the same transaction
as the plaintiffs claim, whereas a counter-claim needs not arise out of the same
transaction.
2. Set-off is a good ground of defence and it should be pleaded in the written

statement, whereas counter-claim does not afford any defence to the plaintiff's claim.
3. In case of set-off, the plaintiff, in order to establish his plea, must prove that the
setoff was barred when the plaintiff commenced his action. It is not enough to prove
that it was barred at the time when it was pleaded. In case of counter-claim, it is
enough for the plaintiff to prove that the counter-claim was barred when it was
pleaded.
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Defence or set-off
grounds founded upon separate
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Defence or set-off grounds founded upon separate
Where the defendant relies upon several distinct grounds of defence or set-off 89[or
counter-claim] founded upon separate and distinct facts, they shall be stated, as far as
may be, separately and distinctly.
Karnataka.— Add the following as rule 7A:
"7-A.Where the defendant seeks the permission of the Court under rule 8 of Order I of
this Code to defend the suit on behalf of or for the benefit of himself and other persons
having the same interest as the defendant in the subject-matter of the suit he shall file
an application supported by an affidavit setting out the particulars detailed in sub-rule
(2) of rule 4 of Order VII of this Code. Notice of such an application shall be given to all
parties to the suit, and if the permission sought is granted the plaint may be amended
by inserting a statement that the defendant is with leave of the Court sued as the
representative of all persons interested in subject-matter of the suit." (30-3-1967).
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. New ground of defence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
New ground of defence
Any ground of defence which has arisen after the institution of the suit or the
presentation of a written statement claiming a set-off 90[or counter-claim] may be
raised by the defendant or plaintiff, as the case may be, in his written statement.
1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 8A. Duty of defendant to
produce documents upon
© 2020 LexisNexis
THE FIRST SCHEDULE
91[R 8A.
Duty of defendant to produce documents upon
(Rep. by the Code of Civil Procedure(Amendment) Act, 1999 (46 of 1999), section
18(w.e.f. 1-7-2002).]
COMMENT.—
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (not yet
enforced).—
Modification.—This rule has been omitted.
Rule 8A of O VIII has been omitted by the Amendment Act, 1999.

1999 stated thus:-
substitute rule 1 of Order VIII to provide a fixed time frame within which pleadings are to be
thirty days from the date of service of summons on him. Clause 18 inserts rule 1A which
provides a duty of defendant to produce documents upon which relief is claimed or relied
upon by him. Rule 1A requires the defendant to produce documents in his possession in the
Court and deliver the document or a copy thereof when the written statement is presented
by him. Rule 1A further requires in case a document or copy thereof is not filed with the
written statement, it shall not be allowed to be received in evidence on behalf of the
defendant at the hearing of the suit. [Clause 18]

(l) (of the repeal and savings section) stipulates that the provisions of rules 1 and 1A of
O VIII of the First Schedule, as substituted or inserted by section 18 of the Amendment
Act, 1999, shall not apply to a written statement filed and presented before the Court
immediately before the commencement of section 18 of the Amendment Act, 1999.
Effective date.—The amendments of the provision have not come into force vide Notfn
SO 603(E), dt 6 June 2002. Amendments shall come into force as and when notified by
the Central Government in Official Gazette.
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
Production of documents on which defence based.—
Rule 8A inserted by the Amendment Act, 1976 required the defendant to file documents
on which he based his defence together with written statement as the plaintiff was
required to file documents on which he sued with the plaint under O VII, rule 14 (as
distinguished from documents on which the defendant relied as evidence in support of
his defence for which provision has been made in O VII, rule 1). The Amendment Act
has omitted rule 8-A. It has also substituted rule 14 of O VII and inserted rule 1A of O
VIII. See comments under these rules.
Rule 8-A was added which requires the filing of the document or a copy thereof upon
which a relief is claimed.
1-2-1977).
91 R. 8A omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (not yet
enforced) vide Notfn. S.O. 603(E), dt. 6-6-2002, before omission the rule stood as under:
'R. 8A. Duty of defendant to produce documents upon which relief is claimed by him.—(1) Where a
defendant bases his defence upon a document in his possession or power, he shall produce it in
Court when the written statement is presented by him and shall, at the same time, deliver the
document or a copy thereof, to be filed with the written statement.
(2) A document which ought to be produced in Court by the defendant under this rule, but is not
so produced, shall not, without the leave of the Court, be received in evidence on his behalf at
the hearing of the suit.
(3) Nothing in this rule shall apply to documents produced:
(a) for the cross-examination of the plaintiff's witnesses, or
(b) in answer to any set up by the plaintiff subsequent to the filing of the plaint, or
(c) handed over to a witness merely to refresh his memory.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9. Subsequent pleadings
© 2020 LexisNexis
THE FIRST SCHEDULE
92[R. 9.
Subsequent pleadings
No pleading subsequent to the written statement of a defendant other than by way of

defence to set-off or counter-claim shall be presented except by the leave of the Court
and upon such terms as the Court thinks fit; but the Court may at any time require a
written statement or additional written statement from any of the parties cut and fix a
time of not more than thirty days for presenting the same.]
Bombay (Dadra and Nagar Haveli).—For rule 9, substitute the following:
"9. Subsequent pleadings.—No pleading subsequent to the written statement of the

defendant other than by way of defence to a set-off or counter-claim shall be presented
except by the leave of the Court and upon such terms as the Court thinks fit, but the
Court may at any time require a written statement or additional written statement from
any of the parties and fix a time for presenting the same."
COMMENT—
Important Note.—
2002).—
For rule 9 as it stood immediately before their omission by clause 9(iii) of section 18 of
the Code of Civil Procedure (Amendment) Act, 1999 the following rule shall be
substituted, namely:
9. Subsequent Pleadings.—No pleading subsequent to the written statement of a defendant

other than by way of defence to set-off or counter-claim shall be presented excepted by the
leave of the Court and upon such terms as the Court thinks fit: but the Court may at any
time require a written statement or additional written statement from any of the parties and
fix a time of not more than thirty days for presenting the same.
Thus, the rule 9 which was omitted by the Code of Civil Procedure (Amendment) Act,
1999 (46 of 1999), has been restored by Code of Civil Procedure (Amendment) Act,
2002 (22 of 2002) in the same form verbatim except for the addition of the words "of
not more than thirty days" after the words "and fix a time" and before the words "for
presenting the same" appearing at the end of the rule. The effect of the change is that
subsequent pleadings shall be continued to be filed and the Court shall fix time for
presenting the same, which shall be not more than thirty days.
Rule 9 shall be omitted.
Pleading subsequent to Written Statement.—
Where defendant brings new facts in the written statement, the plaintiff must be
afforded an opportunity to controvert the allegations/averments incorporated in the
written statement.93
The rigid principle applicable in the case of amendment of plaint under O VII rule 17 of
the Code of Civil Procedure cannot be applied in the case of receiving additional written
statement. Additional written statement can be allowed to be filed ev en after
commencement of the trial.94
1-2-1977).
Notfn. S.O. 604(E), dt. 6-6-2002, section 9(iii):
Earlier R. 9 is omitted by the Code of Civil Procedure (Amendment) Act, 1999 (not enforced),
prior to its omission the rule stood as under:
'R 9. Subsequent pleading.—No pleading subsequent to the written statement of a defendant

other than by way of defence to a set-off or counter-claim shall be presented except by the leave
of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a
written statement or additional written statement from any of the parties and fix a time for
presenting the same.'
93 Ramesh Kumar v Chandu Lal, 2009 (2) Raj LW 1547 (1555) (DB).
94 P Saraswathi v C Subramaniam, AIR 2014 Mad 50 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10. Procedure when party
fails to present written statement called for by Court
© 2020 LexisNexis
THE FIRST SCHEDULE
95[R. 10.
Procedure when party fails to present written statement called for by Court
Where any party from whom a written statement is required under rule 1 or rule 9 fails to
present the same within the time permitted or fixed by the Court, as the case may be, the
Court shall pronounce judgment against him, or make such order in relation to the suit
as it thinks fit and on the pronouncement of such judgment a decree shall be drawn
up.]96
Amendment of First Schedule.—In the First Schedule to the Code, in Order VIII, in rule
10, after the first proviso, the following proviso shall be inserted, namely:
"97[Provided that] no Court shall make an order to extend the time provided under rule 1
of this Order for filing of the written statement.";
Allahabad.— The following amendments were made vide Uttar Pradesh Gazette, dated
12-12-1970, Part II, Page 258.
Add the following Rules:
"11. Every party, whether original, added or substituted, who appears in any suit or
other proceeding shall on or before the date fixed in the summons or notice served on
him as the date of hearing file in Court a proceeding stating his address for service,
written in Hindi written in Devnagri script98, and if he fails to do so he shall be liable to
have his defence, if any, struck out and to be placed in the same position as if he had
not defended. In this respect the Court may act suo motu or on the application of any
party for an order to such effect, and the Court may make such order as it thinks just.
[Amended 1971 LLT-V-18]
12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses
for service filed under the preceding rule." (1-6-1918)
Maharashtra Government Gazette, dated 31-12-1987, Part IV, Ka, Page 788.
Add the following Rules after rule 10.
The following shall be added as Rules 11 to 36:
"11. (1)(a) Parties to file addresses.—Every party, whether original, added or

substituted, who appears in any suit or other proceeding, shall file in the Court on or
before the date fixed in the summons or notice served on him as date for his
appearanc e or within such further time as may be allowed by the Court a
memorandum in writing stating the address at which he may be served.
(b) Registered address.—This address shall be called the "registered address" and it
shall, subject to Rule24 of Order VII read with rule 12 of this Order, hold good in all
proceedings in the suit and in appeals and also for a further period of six years from
the date of the final decision for all purposes including those of execution.
(c) Consequence of default in filing registered address.—If, after being required to file
the registered address within a specified time, he fails to do so, he shall be liable to
have his defences, if any, struck out and to be placed in the same position as if he had
party for an order to such effect, and the Court may make such order as it thinks fit.
(2) When default may be condoned.—Where the Court has struck out the defences
under sub-rule (1) and has adjourned the hearing of the suit or the proceeding and
where the defendant or the opposite party at or before such hearing appears and
assigns sufficient cause for his failure to file the registered address and also files the
registered address, he may, upon terms as the Court directs as to costs or otherwise,
be heard in answer to the suit or the proceeding as if the defences had not been struck
out.
(3) When decree passed on default can be set aside.—Where the Court has struck out
the defences under sub-rule (1) and has consequently passed a decree or order, the
defendant or the opposite party, as the case may be, may apply to the Court by which
the decree or order was passed for an order to set aside the decree or order, and, if he
sufficient cause from filing the address the Court shall make an order setting aside the
decree or order as against him upon such terms as to costs or otherwise as it thinks fit
and shall appoint a date for proceeding with the suit or proceeding:
Provided that where the decree or order is of such a nature that it cannot be set aside
as against such defendant or opposite party only, it may be set aside as against all or
any of the other defendants or the opposite parties.
12. Applicability of R. 20 and 22 to 26 of Order VII.—Rules 20, 23, 24, 25 and 26
of Order VII shall apply so far as they may be applicable, to registered addresses filed
under the last preceding rule.
COUNTER-CLAIM
13. Defendant may set up counter-claim against claims of the plaintiff in addition to
set-off.—A defendant in a suit, in addition to his right of pleading a set-off under Order
VIII, rule 6 of the Code of Civil Procedure, 1908, may set up by way of counter-claim
against the claims of the plaintiff any right or claim in respect of a cause of action
accruing to the defendant either before or after the filing of the suit, but before the
defendant has delivered his defence and before the time limited for delivering his
defence has expired, whether such counter-claim sounds in damages or not, and such
counter-claim shall have the same effect as a cross-suit so as to enable the Court to
pronounce a final judgment in the same suit both on the original and on the counter-
claim, and the plaintiff (if so advised) shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within four weeks after service upon him
or his pleader of a copy of the defendant's counter-claim; and the Court or a Judge may,
on the application of the plaintiff before trial, if in the opinion of the Court or Judge
such counter-claim cannot be disposed of in the pending suit or ought not to be
allowed, refuse permission to the defendant to avail himself thereof and require him to
file a separate suit in respect thereof.
14. Defendant setting up a counter-claim to specifically state so in the written

statement.—Where any defendant seeks to rely upon any grounds as supporting a right
of counter-claim, he shall in his written statement state specifically that he does so by
way of counter-claim.
15. Where the counter-claim involves in addition to the plaintiff other persons also,
the defendant to add further title to the title of the written statement and deliver
copies of his written statement to such persons as are already parties to the suit.—
Where a defendant by a written statement sets up any counter-claim, which raises
questions between himself and the plaintiff along with any other persons, he shall add
to the title of his written statement a further title similar to the title in a plaint, setting
forth the names of all the persons who, if such counter-claim were to be enforced by a
cross-suit, would be defendants to such cross-suit, and shall deliver copies of his
written statement to such of them as are already parties to the suit within which he is
required to deliver it to the plaintiff.
16. Service of summons when counter-claim is against persons who are not already
parties to the suit.—Where any such person as is mentioned in the last preceding rule,
is not already a party to the suit, he shall be summoned to appear by being served with
a copy of the written statement and such service shall be regulated by the same rules
as are contained in the Code of Civil Procedure, 1908, with respect to the service of a
writ of summons.
17. Appearance of persons other than defendants to the suit, when served with
counter-claim.—Any person not a defendant to the suit, who is served with a written
statement and counter-claim as aforesaid, must appear therein as if he had been
served with a writ of summons to appear in the suit.
18. Reply to counter-claim.—Any person named in a written statement as a party to a

counter-claim thereby made may deliver a reply within the time, within which he might
deliver a written statement if it were a plaint.
19. Objection to counter-claim being allowed to be set up in the suit.—Where a

defendant sets up a counter-claim, if the plaintiff or any other person named in the
manner aforesaid as party to such counter-claim contends that the claim thereby
raised ought not to be disposed of by way of counter-claim but in an independent suit,
he may, at any time before reply, apply to the Court or a Judge for an order that such
counterclaim may be excluded and the Court or a Judge may, on the hearing of such
application, make such order as shall be just.
20. Counter-claim may be proceeded with, even if suit be stayed, discontinued or

dismissed.—If in any case in which the defendant sets up a counter-claim the suit of
the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless
be proceeded with.
21. On default of reply to counter-claim, the counter-claim may be set down for
judgment.—If the defendant to the counter-claim makes default in putting in a reply to
the counter-claim, the defendant in the suit, who is the plaintiff to the counter-claim,
may in such cases get the suit set down for judgment on the counter-claim, and such
judgment shall be given as the Court shall consider him to be entitled to.
22. Judgment when set-off or counter-claim is established.—Where in any suit a set-

off or counter-claim is established as a defence against the plaintiff's claim, the Court
or a Judge may, if the balance is in favour of the defendant, give judgment for the
defendant for such balance, or may otherwise adjudge to the defendant such relief as
he may be entitled upon the merits of the case. (1-11-1966)
99[THIRD PARTY PROCEDURE

23. Third Party Notice.—Where in a suit a defendant claims against any person not
already a party to the suit (hereinafter called the Third Party)—
(a) that he is entitled to contribution or indemnity, or
(b) that he is entitled to any relief or remedy relating to or connected with the
subject-matter of the suit and substantially the same as some relief or remedy
claimed by the plaintiff, or
(c) that any question or issue relating to or connected with the subject-matter of the
suit is substantially the same as some question or issue arising between the
plaintiff and the defendant and should properly be determined not only as
between the plaintiff and the defendant but as between the plaintiff and the
defendant and the Third Party or between any or either of them,
he may apply to the Court for leave to issue a notice (hereinafter called the 'Third Party
Notice') to that effect. The application shall be made by affidavit, stating the nature of
the claim made by the defendant and the facts on which proposed Third Party Notice is
based and may be made ex parte. The application shall be made within four weeks
from the service of the summons upon defendant.
24. Form and Service of Notice.—(1) The Third Party Notice shall state nature of the
claim made by the plaintiff against the defendant and the nature and grounds of the
claim made by the defendant against the Third Party or the nature and extent of any
relief or remedy claimed by him against the Third Party or the nature of the question or
issue sought to be determined and shall be sealed with the seal of the Court. It shall be
served on the Third Party according to the rules relating to service of summons and
shall, unless otherwise ordered, be served within two weeks from the date of the order
granting leave to issue the Third Party Notice. A copy of the plaint and copy of the
affidavit of th e defendant in support of the Third Party Notice shall be served on the
Third Party along with the Third Party Notice.
(2) A copy of the Third Party Notice and of the affidavit of the defendant in support of
the Third Party Notice shall be furnished to all parties to the suit within two weeks from
the date of the order granting leave to issue the Third Party Notice.
25. Effect of Service of Notice.—The Third Party shall, as from the time of the service
upon him of the Notice, be a party to the suit with the same rights in respect of his
defence against any claim made against him and otherwise as if he had been duly sued
in the ordinary way by the defendant.
26. Third Party to enter Appearance or Vakalatnama.—If the Third Party desires to
dispute the plaintiff's claim in the suit as against the defendant on whose behalf the
Notice has been issued or his own liability to the defendant, the Third Party shall enter
an appearance in person or a Vakalatnama in the suit within two weeks from the
service of the Notice:
Provided that, a person so served and failing to appear within the said period of two
weeks may apply to the Court for leave to appear and such leave may be given on such
terms, if any, as the Court may think fit.
27. Consequence of Failure to enter Appearance or Vakalatnama.—If the Third Party

does not enter an appearance in person or a Vakalatnama he shall be deemed to admit
the claim stated in the Third Party Notice and shall be bound by any judgment or
decision in the suit, whether by consent or otherwise, in so far as it is relevant to any
claim, question or issue stated in the Notice.
28. Decree when Third Party makes Default in Appearance or Vakalatnama.—

Where the Third Party makes default in entering an appearance in person or a
Vakalatnama in the suit,—
(1) in cases where the suit is tried and results in favour of the plaintiff, the Court which
tries the suit may, at or after the trial, pass such decree in favour of the defendant
against the Third Party as the nature of the case may require:
Provided that, execution thereof shall not issue without the leave of the Court until the
decree against the defendant has been satisfied, and
(2) in cases where the suit is decided in plaintiff's favour, otherwise than by trial, the
Court may, at any time after the decree against the defendant has been satisfied, on the
application of the defendant pass such decree in favour of the defendant against the
Third Party as the nature of the case may require.
29. Third Party to file Affidavit in Reply.—If the Third Party enters an appearance in
person or a Vakalatnama he shall file within two weeks thereafter an affidavit in reply to
the affidavit of the defendant in support of the Third Party Notice, setting out his case
in respect of the Third Party Notice and his case, if any, in respect of the plaint.
30. Appearance or Vakalatnama of Third Party Directions to be given.—
(1) Where the Third Party enters an appearance in person for a Vakalatnama and files
his affidavit as required by the last preceding rule, and the suit appears on board for
directions before the Court it may,—
(a) order any claim, question or issue stated in the Third Party Notice to be tried in
such manner, before, at or after the trial of the suit as the Court may think fit and
may, in that event, give the Third Party leave to defend the suit either along or
jointly with any defendant, upon such terms as he may think just, or to appear at
the trial and take such part therein as he may think just and generally may make
such orders and give such directions as may appear proper for having the
questions and the rights and liabilities of the parties most conveniently
determined and enforced and as to the extent to which the Third Party shall be
bound or made liable by any decree in the suit, or
(b) dismiss the Third Party Notice.
(2) Any order made or direction given under this rule may be varied or rescinded by the
Court at any time before the disposal of the suit.
31. Defendant to apply for directions in certain cases.—Where for any reason it is not
possible for the Court to give direction on the Third Party Notice at the time when the
suit appears on the Board for directions, the defendant issuing the Third Party Notice
shall, within two weeks, after the filing of the affidavit in reply by the Third Party, apply
for directions. Upon the hearing of such applications, the Court may pass such orders
and give such directions as are mentioned in the last preceding rule.
32. Costs.—The Court may decide all questions of costs as between a Third Party and
the other parties to the suit, and may order any one or more to pay the costs of any
other, or others or give such directions to costs as the justice of the case may require.
33. Setting aside third party proceedings.—Proceedings on a Third Party Notice may,
at any stage of the proceedings, be set aside by the Court.
34. Right of the third party and of each successive third party to apply for third party
notice against other persons.—(1)Where the Third Party makes against any person not
already a party to the suit (to be called 'the second third party') such a claim as is
mentioned in rule 23 he may by leave of the Court issue a Third Party Notice to that
effect.
(2) Where the second 'Third Party' in his turn makes such a claim as is mentioned in
rule 23 against any person not already a party to the suit (to be called 'the Third Party')
or where each successive Third Party in his turn makes such a claim against any
person not already a Party to the suit, such second 'Third Party' or any successive third
party may, by leave of the Court issue a Third Party Notice to that effect.
(3) The provisions contained in the preceding rules as to Third Party Procedure shall,
with any necessary modification, apply to all cases where third Party Notices have been
issued, whether at the instance of the Third Party or any successive Third Party.
35. Right of defendant to issue third party notice against co-defendant.—
(1) Where a defendant makes against a co-defendant such a claim as is mentioned in

rule 23 he may, without leave of the Court, issue and serve on such co-defendant within
six weeks from the service of the summons upon him (the defendant making the
claim) a notice stating the nature and ground of such claim and shall at the same time
file an affidavit in support of such claim and furnish copies thereof to all parties in the
suit.
(2) The provisions contained in the preceding rules regarding Third Party Procedure
shall, with necessary modification, apply to cases where a defendant has issued such
notice against a co-defendant, but nothing therein contained shall prejudice the rights
of the plaintiff against any defendant in the suit.
36. Third Party proceeding in a counter-claim.—Where in any suit a counter-claim is

made by a defendant, the provisions contained in the preceding rules regarding Third
Party Procedure shall, with any necessary modifications, apply in relation to the
counter-claim as if the subject-matter of the counter-claim were the subject-matter of
the suit, and as if the person making the counter-claim were the plaintiff and the person
against whom it is made a defendant. (31-12-1987)
Delhi—Rules 11 and 12.— The following amendments were made by Delhi Act 26 of
1966, Section 7.
Gujarat—Rules 11 and 12.— The following amendments were made by Gujarat Gazette,
dated 1-11-1966.
The following be added as Rules 11 and 12:
"11. Parties to file addresses.—Every party, whether original, added or substituted who
appears in any suit or other proceeding shall, on or before the date fixed in the
summons or notice served on him as the date of hearing, file in Court a memorandum
in writing stating his address for service, and if he fails to do so, he shall be liable to
have his defence, if any, struck out and to be placed in the same position as if he had
party for an order to such effect, and the Court may make such order as it thinks fit.
The address so given shall hold good throughout the interlocutory proceedings and
appeals and also for a further period of two years from the date of final decision and
for all purposes including those of execution:
Provided that this rule shall not apply to a defendant who has not filed a written
statement but who is examined by the Court under Section 7 of the Dekkhan
Agriculturists' Relief Act, 1879, or otherwise, or in any case where the Court permits the
address for service to be given by a party on a date later than that specified in this rule.
12. Applicability of Rules 20, 22, 24 and 25 of Order VII to addresses for service.—
Rules 20, 22, 24 and 25 of Order VII shall apply, so far as may be, to addresses for
service filed under the last preceding rule." (1-11-1966)
Himachal Pradesh—Rules 11 to 13.—Same as that of Delhi.
dated 16-9-1960.
Add the following Rules 11 to 13:
"11. Registered address.—Every defendant in a suit or opposite party in any

proceedings, shall, on the first day of his appearance in Court, file a memorandum
giving an address for service on him of any subsequent process. The address shall be
within the local limits of such Civil District cannot conveniently be given, within the
local limits of the Civil District in which the party ordinarily resides.
This address shall be called the "registered address" and it shall hold good throughout
interlocutory proceedings and appeals and also for a further period of two years from
the date of final decision and for all purposes including those of execution.
12. Consequences of non-filing of registered address.—(1) If the defendant or the

opposite party fails to file a registered address as required by rule 11, he shall be liable
at the discretion of the Court, to have his defence struck out and to be placed in the
position as if he had made no defence.
An order under this rule may be passed by the Court suo motu or on the application of
any party.
(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned
the hearing of the suit or the proceedings and where the defendant or the opposite
party at or before such hearing appears and assigns sufficient cause for his failure to
file the registered address he may upon such terms as the Court directs as to costs or
otherwise be heard in answer to the suit or the proceedings as if the defence had not
been struck out.
(3) Where the Court has struck out the defence under sub-rule (1) and has
consequently passed a decree or order, the defendant or the opposite party, as the case
may be, may apply to the Court by which the decree or order was passed for an order to
set aside the decree or order; and if he files a registered address and satisfies the Court
that he was prevented by any sufficient cause from filing the address, the Court shall
make an order setting aside the decree or order as against him upon such terms as to
costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or
proceeding:
Provided that where the decree is of such a nature that it cannot be set aside as against
such defendant or opposite party only it may be set aside as against all or any of the
other defendants or opposite parties.
13. Rules 20, 22 and 23 of Order VII shall apply, so far as may be, to addresses for
service filed under r 11." (16-9-1960)
Orissa.— The following amendments were made by Code of Civil Procedure (Patna
amendment) Notification No. 24-X-7-52 of 30-3-1954 (w.e.f. 7-5-1954).
Omit Rules. 11 and 12 of Order VIII of the First Schedule of the Code of Civil Procedure
(Orissa Amendment).
Patna.—Rules 11 and 12.—Add the following Rules:
other proceedings shall, at the time of entering appearance to the summons, notice or
other process served on him, file in Court a statement stating his address for service
and if he fails to do so, he shall be liable to have his defence, if any, struck out and to be
placed in the same position as if he had not defended. In this respect the Court may act
suo motu or on the application of any party for an order to such effect and the Court
may make such order as it thinks just.
12. Rules 20 and 22 of Order VII shall apply, so far as may be, to addresses for service
filed under the preceding rule."
Punjab, Haryana & Chandigarh.—Rules 11 and 12.— The following amendments were
made by Punjab and Haryana (Chandigarh) Act 31 of 1966, sections 29 and 32, dated 1-
11-1966.
other proceeding shall on or before the date fixed in the summons, notice or other
process served on him as the date of hearing, file in Court a proceeding stating his
address for service, and, if he fails to do so he shall be liable to have his defence, if any,
struck out and to be placed in the same position as if he had not defended. In this
respect the Court may act suo motu or on the application of any party for an order to
such effect and the Court may make such order as it thinks just.
12. Rules 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to addresses
for service filed under the preceding rule." (24-11-1927)
Rajasthan.—Rules 11 and 12.— The following amendment were made by Rajasthan

"11. (1) Every party whether original, added or substituted who appears in any suit or
other proceeding shall on or before the date fixed in the summons or notice served on
him at the date of hearing, file in a Court a memorandum stating his address for service
and if he fails to do so he shall be liable to have his defence, if any, struck out and to be
placed in the same position as if he had not defended. In this respect the Court may act
suo motu or on the application of any party for an order to such effect, and the Court
may make such order as it thinks just.
(2) Where the Court has struck out the defence under sub-rule (1) and has adjourned
the hearing of the suit or the proceedings and where the defendant or the opposite
party at or before such hearing, appears and assigns good cause for his failure to file
the registered address, he may upon such terms as the Court directs as to costs or
otherwise be heard in answer to the suit or the proceedings as if the defence had not
been stuck out.
(3) Where the Court has struck out the defence under sub-rule (1) and has
consequently passed a decree or order, the defendant or the opposite party, as the case
may be, may apply to the Court by which the decree or order was passed for an order to
set aside the decree or order, and if he files a registered address and satisfies the Court
that he was prevented by any sufficient cause from filing the address, the Court shall
make an order setting aside the decree or order as against him upon such terms as to
costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit or
proceeding:
Provided that where the decree or order is of such a nature that it cannot be set aside
as against such defendant or opposite party only it may be set aside as against all or
any of the other defendants or opposite parties.
12. Rules 19(2), 20, 22, 23, 24 and 25 of Order VII shall apply, so far as may be,
addresses for service filed under the preceding rule." (8-7-1954)
Andhra Pradesh.—Add Order VIIIA, as in Madras.
1967.
After Order VIII insert the following as Order VIII-A, namely:
"ORDER VIII-A"
THIRD PARTY PROCEDURE
R. 1. (1) Where in respect of the claim made against him in the suit, a defendant claims
to be entitled to contribution from or indemnity against any person not already party to
the suit (hereinafter called the third party) he may by leave of Court, issue a notice
(hereinafter called the third party notice) to that effect, sealed with the seal of the
Court.
(2) An application for leave to issue such notice shall be filed along with the written
statement of the said defendant and be accompanied by a draft of the notice sought to
be issued. The notice shall state the nature and grounds of the claim and when the
draft of the same is approved by Court with or without corrections, it shall be served on
the third party together with a copy of the plaint and a copy of the said defendants
written statement in the manner prescribed for the service of summons.
R. 2. (1) If on being served with such notice the third party does not enter appearance
on or before the date fixed therein for his appearance, he shall be deemed to admit the
validity of the decree that may be passed against the defendant, on whose behalf the
notice was issued, whether upon contest or consent or otherwise, and to admit his own
liability to contribute or indemnify, as the case may be, to the extent claimed in the third
party notice:
Provided that a person so served and failing to appear may, at any time before the
disposal of the suit, apply to Court for leave to appear and the Court may grant such
leave upon such terms if any as it may think fit to impose.
(2) Where the third party does not enter appearance in the suit and the suit is decreed
upon contest or consent or otherwise against the defendant on whose behalf the
notice was issued the Court may in the said decree make such directions as to
contribution or indemnity, as the case may be, against the third party and in favour of
the said defendant as the circumstances of the case may require:
Provided that the execution thereof shall not issue against the third party without the
leave of the Court until after satisfaction by such defendant of the decree against him.
R. 3. If the third party desires to dispute either the claim made against him in the third
party notice or the plaintiff's claim in the suit or both, he shall enter appearance in the
suit on or before the date fixed therefor in the notice.
R. 4. When the third party enters appearance under rule 3 or upon leave being granted
under the proviso to sub-rule (1) of rule 2, he shall apply to Court for directions as to
further proceedings to be taken on the notice setting out his case or pleas in respect of
the same. Notice thereof shall be given both to the defendant on whose behalf the third
party notice was issued as well to the plaintiff, fixing an early date for its hearing.
R. 5. (1) On hearing of such application:
(a) if the Court is of the opinion either that the claim made in the third party notice is
prima facie not warranted or that it is not so intimately connected with the plaintiff's
claim in the suit as to render its being conveniently tried along with the plaintiff's claim
in the suit, or that its trial in the suit will unduly prolong or hamper the trial of the suit,
the Court may dismiss the proceedings on the third party notice.
(b) if the Court is satisfied that there is a question to be tried as to the liability of the
third party to make the contribution or pay the indemnity claimed, in whole or in part,
and that it is just and convenient to try the same in the suit itself, the Court may order
the question of such liability as between the third party and the defendant giving notice,
to be tried in such manner as it may direct and may by the said order also give liberty to
the third party to defend the suit itself upon such terms as may be just.
(2) When the Court proceeds under clause (b) of sub-rule (1) it shall also give such
directions as may be necessary for the delivery of pleadings, production of documents
or the making of further appropriate proceeding in the suit.
(3) If upon trial a decree comes to be passed, either on contest or consent or otherwise
against the defendant on whose behalf notice was given, the Court shall in such decree
make such direction as to contribution or indemnity, as the case may be, against the
third party and in favour of the said defendant as the circumstances of the case may
require and also as to whether execution in respect of such direction against the third
party shall or shall not be conditional upon the defendant satisfying the decree against
him.
(4) The Court, while making such decrees, may decide all questions of costs as
between the third party and other parties and may order any one or more to pay the
costs of any other or others and give such directions as to costs as the justice of the
case may require.
R. 6. (1)Where the Court dismisses the proceedings on a third party notice under
clause (a) of sub-rule (5) the claim made in the third party notice shall be deemed to
have been left undecided and the defendant on whose behalf notice was issued will be
at liberty to take such other independent proceeding in respect thereof as may be open
to him as if no such notice had been issued by him.
(2) Where the Court decides to proceed under clause (b) of sub-rule (1) of rule 5, the
third party shall as from the date on which the third party notice was served on him, be
a party to the suit and shall have—
(a) the same rights as respects the claims made against him by or the decree
passed against him in favour of the defendant on whose behalf the notice was
issued, as if he had been sued in the ordinary way by the said defendant, and
(b) where he is given the liberty to defend the suit itself, the same rights as respects
his defence in the suit and the decree passed therein as if he had been sued in
the ordinary way by the plaintiff in the suit.
(3) On the making of an order under clause (b) of sub-rule (1) of rule 5, the cause title
of the suit shall be amended by inserting the name of the third party in the array of
defendants, with the addition in brackets after his name the words "Third party on the
notice of the defendant served on".
Kerala (Notn No B1-3312/58 of 7-4-1959).— Add Or VIIIA, same as in Madras.
Madras (Notn P Dis no 185/15 of 8-8-1951.— Insert the following as Order VIII-A:—
"ORDER VIII-A."
THIRD PARTY PROCEDURE
R. 1. Third party notice.—Where a defendant claims to be entitled to contribution from

or indemnity against any person not already a party to the suit (hereinafter called a
third party notice) to that effect, sealed with the seal of the Court. The notice shall state
the nature and grounds of the claim. Such notice shall be filed into Court with a copy of
the plaint and shall be served on the third party according to the rules relating to the
service of summons.
R. 2. Effect of notice.—The third party shall, as from the time of the service upon him of
the notice, be deemed to be a party to the action with the same rights in respect of his
defence against any claim made against him and otherwise as if he had been duly sued
in the ordinary way by the defendant.
R. 3. Default by third party.—If the third party desires to dispute the plaintiff's claim in
the suit as against the defendant on whose behalf the notice has been given, or his
own liability to the defendant, the third party may enter appearance in the suit on or
before the date fixed for his appearance in the notice. If he does not enter appearance,
he shall be deemed to admit the validity of the decree that may be obtained against
such defendant, whether by consent or otherwise, and his own liability to contribute or
indemnify, as the case may be, to the extent claimed in the third party notice:
Provided always that a person so served and failing to appear may apply to the Court
for leave to appear, and such leave may be given upon such terms, if any, as the Court
shall think fit.
R. 4. Procedure on default.—Where the third party does not enter appearance in the
suit and the suit is decreed by consent or otherwise in favour of the plaintiff, the Court
may pass such decree as the nature of the case may require, against the third party
and in favour of the defendant on whose behalf notice was issued:
Provided that execution thereof shall not be issued without leave of the Court until after
satisfaction by such defendant of the decree against him.
R. 5. Third party directions.—If the third party enters appearance, the defendant on
whose behalf notice was issued may apply to the Court for directions; and the Court
may, if satisfied that there is a question to be tried as to the liability of the third party to
make the contribution or pay the indemnity claimed, in whole or in part, order the
question of such liability, as between the third party and the defendant giving the
notice, to be tried in such manner at or after the trial of the suit, as the Court may direct,
and, if not so satisfied, may pass such decree or order as the nature of the case may
require.
R. 6. Leave to defend.—The Court may upon the hearing of the application mentioned
in rule 5, give the third party liberty to defend the suit upon such terms as may be just,
or to appear at the trial and take such part therein as may be just, and generally may
order such proceedings to be taken, documents to be delivered or amendments to be
made, and give such directions as appear proper for the most convenient
determination of the question or questions in issue, and as to the mode and extent in or
to which the third party shall be bound or made liable by the decree in the suit.
R. 7. Costs.—The Court may decide all questions of costs, as between the third party
and the other parties to the suit, and may order any one or more to pay the cost of any
other, or others, or give such direction as to costs as the justice of the case may
require.
R. 8. Questions between co-defendants.—Where a defendant claims to be entitled to

contribution from or indemnity against any other defendant to the suit, a notice may be
issued and the same procedure shall be adopted for the determination of such
questions between the defendants as would be issued and taken, if such last-
mentioned defendant were third party; but nothing herein contained shall prejudice the
rights of the plaintiff against any defendant in the suit.
R. 9. Further parties.—Where any person served with a third notice by a defendant

under these rules claims to be entitled to contribution from or indemnity against any
person not already a party to the suit, he may, by leave of the Court, issue a third party
notice to that effect, and the preceding rules as to the third party procedure shall apply
mutatis-mutandis to every notice so issued and the expressions "third party notice" and
"third party" in these rules shall apply to and include every notice so issued and every
person served with such notice respectively." [Act 26 of 1968, Section 3 and Schedule,
Part II (w.e.f. 5-9-1968)]
COMMENT.—
2002).—
(ii) For rule 10 [as it stood immediately before its omission by clause 9(iii) of section 18
of the Code of Civil Procedure (Amendment) Act, 1999 the following rule shall be
substituted, namely:
10. Procedure when party fails to present written statement called for by Court.—Where any
party from whom a written statement is required under rule 1 or rule 9 fails to present the
same within the time permitted or fixed by the Court as the case may be, the Court shall
pronounce judgment against him or make such order in relation to the suit as it thinks fit
and on the pronouncement of such judgment a decree shall be drawn up.
Thus, the rule 10, which was omitted by the Code of Civil Procedure (Amendment) Act,
1999 (Act 46 of 1999), has been restored by Code of Civil Procedure (Amendment) Act,
2002 (22 of 2002) verbatim.
Rule 10 shall be omitted.

1999 stated thus:-
substitute rule 1 of Order VIII to provide a fixed time-frame within which pleadings are to be
thirty days from the date of service of summons on him. Clause 18 inserts rule 1A, which
provides a duty of defendant to produce documents upon which relief is claimed or relied
upon by him. Rule 1A requires the defendant to produce documents in his possession in the
Court and deliver the document or a copy thereof when the written statement is presented
by him. Rule 1A further provides that, in case a document or copy thereof is not filed with
the written statement, it shall not be allowed to be received in evidence on behalf of
defendant at the hearing of the suit. [Clause 18]
Deletion of rule.—
Rule 10 of O VIII, which prescribed a procedure to be followed by the Court when a

defendant who had been granted time to file a written statement failed to do so has
been omitted.
1976 Amendment.—
(i) For the words "is so required" the words "is required under rule 1 or rule 9" are
substituted.
(ii) For the words "fixed by the Court, the Court may" the words "permitted or fixed by
the Court, as the case may be, the Court shall" are substituted.
(iii) The words "and on the pronouncement of such judgment, a decree shall be drawn
up" are inserted at the end.
The amendment provides for the consequences of non-filing of a written statement.
This amended rule provides for a procedure when a party fails to present written
statement called for by the Court
The amended rule 10 as recommended by the Law Commission and as has been
passed by the Legislature has created an anomalous situation as pointed above.
[Rule added: Bom 23-30; AP, Kerala & Madras—Order VIII-A rules 1-9 (third party
procedure) added].
This rule was amended by the Amended Act of 1976, which provides the consequences
for non-filing of a written statement.
In ex parte proceedings the necessity of plaintiff proving his case is not lost. In a case
which has proceeded ex parte, the trial Court would scrutinise the available pleadings
and documents, consider the evidence adduced. It would do well to frame the "points
for determination" and proceed to construct the ex parte judgment dealing with the
points at issue one by one merely because the defendant is absent the Court shall not
admit evidence, the admissibility of which is excluded by law. It should also not permit
its decision being influenced by irrelevant or inadmissible evidence.100
The relief under O VIII, rule 10 of the Code of Civil Procedure is discretionary, and the
court has to be more cautious \ where the defendant fails to file the written statement.
Even in such circumstances, the court must be satisfied that there is no fact which
needs to be proved in spite of deemed admission by the defendant, and the court must
give reasons for passing such judgment, \, a party must understand \ under what
reasoning the suit has been decreed. The court must also decide the issue of limitation
if involved. Where the trial court failed to examine whether the suit filed was within
limitation and whether on the basis of the pleadings the relief given by the court could
have been granted, the judgment of the trail court was set aside.101
The purpose of the procedure provided for in O VIII, rule 10 of the Code of Civil
Procedure, in case written statement is not filed, is clearly to expedite the disposal of
the suit and is not penal in nature wherein the defendant has to be penalised for
nonfiling of the written statement by trying the suit in a mechanical manner by passing
a decree. In a case where written statement has not been filed before passing a
judgment. The court must ensure that even if the facts set out in the plaint are treated
to have been admitted, a judgment and decree could not possibly be passed without
requiring the plaintiff to prove the facts pleaded in the plaint.
But if the plaint itself indicates that there are disputed questions of fact involved in the
case, giving rise to two versions it would not be safe for the court to record an ex parte
judgment without directing the plaintiff to prove the facts so as to settle the factual
controversy. In that event the ex parte judgment although may appear to have decided
the suit expeditiously, it ultimately gives rise to several layers of appeal after appeal
which ultimately compounds the delay in finally disposing of the suit giving rise to
multiplicity of proceedings which hardly promotes the cause of speedy trial.102
A judgment in favour of the plaintiff is not automatic on the failure of the opposite
party to put his defence. The Court can grant a judgment in favour of the party only
upon the consideration of the case of the plaintiff including appreciation of pleadings
and evidence. A judgment must be self-contained and the process of reasoning
adopted by the Court should be discernible in the judgment. A suit decreed merely on
the ground of failure of defendants in filing written statements is to be set aside.103
Reference may be made in Modula India v Kamakshya Singh Deo, AIR 1989 SC 162 :
(1988) 4 SCC 619 wherein it has been held that rules 1, 5 and 10 of O VIII of the Code
of Civil Procedure. These provisions of the Code of Civil Procedure far from supporting
the plea that a decree on the basis of the plaint should follow a failure to file the written
statement, rather indicate a contrary position, namely, that even in such cases, it is a
matter for the Court to exercise a discretion as to the manner, in which the further
proceedings should take place. Therefore, the terms of O VIII in no way conflict with the
aforesaid conclusion.104
Where repeated time is granted to file written statement, but they are not filed for more
than two years, order granting further time to the party is not justified. An application
under this rule to pronounce judgment against defendant is to be allowed.105
Effect of decree passed without considering limitation.—
Where written statement is not filed, ex-parte decree is not to be passed unless
averments made in plaint are established. Decree also passed without considering
point of limitation is liable to be set aside.106
1-2-1977).
Notfn. S.O. 604(E), dt. 6-6-2002, section 9(iii)
Earlier R. 10. omitted by the Code of Civil Procedure (Amendment) Act, 1999 (not enforced),
prior to its omission rule stood as under:
'R. 10. Procedure when party fails to present written statement called for by Court.—Where any
party from whom a written statement is required under rule 1 or rule 9 fails to present the same
within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce
judgment against him, or make such order in relation to the suit as it thinks fit and on the
pronouncement of such judgment, a decree shall be drawn up.'
97 Subs. by the Commercial Courts, Commercial Division and Commercial Appellate Division of
High Courts (Amendment) Act, 2018 (28 of 2018), section 18(i)(b), for "Provided further that"
(w.r.e.f. 3-5-2018).
98 Substituted for "English in Block Letters."
99 Rules 23-36 substituted by Notification No. P.0102/77 for Rules 23-30. Published in the
Maharashtra Govt. Gaz., Pt. IV.ka, dt. 31-12-1987.
100 Ramesh Chand Ardawatiya v Anil Panjwani, AIR 2003 SC 2508 (2519) : (2003) 7 SCC 350 .
101 Shantilal Gulabchand Mutha v Tata Engg and Locomotive Co Ltd, AIR (2013) 4 SCC 396 .
102 CNRamappa Gowda v CC Chandregowda, AIR 2012 SC 2528 .
103 Balraj Taneja v Sunil Madan, AIR 1999 SC 3381 (3388) : (1999) 8 SCC 396 : (1990) 81 DLT
779 : (1990) 90 RD 600.
104 AIR 1989 SC 162 at pp176-177 : (1988) 4 SCC 619 .
105 Om Prakash Gupta v UOI, AIR 2000 SC 3585 .
106 Bogidheela Tea & Trading Co Ltd v Hira Lal Somani, AIR 2008 SC 911 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Parties to appear on day
fixed in summons for defendant to appear and answer
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER IX Appearance of Parties and Consequence of Non-Appearance
R. 1.
Parties to appear on day fixed in summons for defendant to appear and answer
On the day fixed in the summons for the defendant to appear and answer, the parties
shall be in attendance at the Court-house in person or by their respective pleaders,
and the suit shall then be heard unless the hearing is adjourned to a future day fixed
by the Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Dismissal of suit where
summons not served in consequence of plaintiff’s failure to pay costs
© 2020 LexisNexis
THE FIRST SCHEDULE
1[R. 2.
Dismissal of suit where summons not served in consequence of plaintiff's
failure to pay costs
Where on the day so fixed it is found that the summons has not been served upon the
defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal
charges, if any, chargeable for such service or failure to present copies of the plaint as
required by rule 9 of Order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the
defendant attends in person or by agent when he is allowed to appear by agent on the
day fixed for him to appear and answer .]
Allahabad.—After the words, "for such service" insert "or that the plaintiff has failed to
comply with the rules for filing the copy of the plaint for service on the defendant". (24-
7-1926).
Orissa (Notfn No 24X-7-52 of 30-3-1954).—For the words "Court-fee or postal charges"

substitute "Court-fee postal or other charges". (7-5-1954)
COMMENT.—
Important Note.—
2002).—
In the First Sch, in O IX, for rule 2 [as substituted by clause (I) of section 19 of the Code
of Civil Procedure (Amendment) Act, the following rule shall be substituted, namely:
2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay
costs.—Where on the day so fixed it is found that the summons has not been served upon
the defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal
charges, if any, chargeable for such service, or failure to present copies of the plaint as
required by rule of Order VII, the Court may make an order that the suit be dismissed:
Provided that no such order shall be made, if notwithstanding such failure, the defendant
attends in person or by agent when he is allowed to appear by agent on the day fixed for him
to appear and answer.
Thus, the old rule 2 has been restored almost verbatim. The only changes are firstly the
words" or failure" before the words "copies of the plaint" in the main rule are new, they
did not occur in the old rule. Secondly, the words "or concise statements" appearing in
the old rule have been omitted, the reason being that such words appearing in O VII,
rule 2, under which the Court could permit the plaintiff to file copies of the concise
statements instead of copies of the plaint, have been omitted.
This rule applies only to cases of plaintiff's failure to pay process fee or postal charges
for service of summons on the defendant.
It has been held by the Orissa High Court that where the plaintiff does not comply with
the order of the Court requiring him to file process fee etc. before fixing a date, the
Court has inherent jurisdiction to dismiss the suit and an application for restoration
would also lie under its inherent jurisdiction.2
Effect of false statement.—
If parties are examined by court not as a witness nor under oath, and statement to a
question is found to be false, the same cannot attract section 195(1)(b) and
prosecution under section 340 of the Criminal Procedure Code read with section 195 of
the Indian Penal Code.3
Notfn. S.O. 604(E), dt. 6-6-2002, section 10.
Earlier R. 2 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
'R. 2. Dismissal of suit where summons not served in consequence of plaintiff's failure to pay
costs.—Where on the day so fixed it is found that the summons has not been served the
defendant in consequence of the failure of the plaintiff to pay the Court-fee or postal charge
[OR] (if any) chargeable for such service, or to present copies of the plaint or concise
statements, as required by rule 9 of Order VII, the Court may make an order that the suit be
dismissed:
Provided that no such order shall be made if, notwithstanding such failure, the defendant
attends in person (or by agent when he is allowed to appear by agent) on the day fixed for him
to appear and answer.'
2 Antarjyami Nayak v Kulamani Behera, AIR 1972 Ori 192 ; Radhanath Pathak v Bihar State of
Board of Religious Trusts, AIR 1968 Pat 110 .
3 Kapil Corepacks Pvt Ltd v Shri Harbans Lal, (2011) 111 Cut LT 222 (SC).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Where neither party
appears, suit to be dismissed
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Where neither party appears, suit to be dismissed
Where neither party appears when the suit is called on for hearing, the Court may
make an order that the suit be dismissed.
COMMENT.—
A dismissal under this rule is justified only where neither party appears. Thus, if the
plaintiff or his agent or his pleader duly instructed is present, the fact that no evidence
is adduced will not enable the Court to order a dismissal under this rule.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Plaintiff may bring fresh
suit or Court may restore suit to file
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Plaintiff may bring fresh suit or Court may restore suit to file
Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit; or he may apply for an order to set the dismissal aside,
and if he satisfies the Court that there was sufficient cause for4[such failure as is
referred to in rule 2], or for his non-appearance, as the case may be, the Court shall
make an order setting aside the dismissal and shall appoint a day for proceeding with
the suit.
Rule 4 shall be numbered rule 4(1) and the following sub-rule (2) shall be added to it
namely:—
"(2) the provisions of Section 5 of the Indian Limitation Act, 1963, shall apply to
applications under this rule".
Himachal Pradesh.— The following amendments were made by Himachal Pradesh

Gazette 53 of 1970, S. 25, dated 25-1-1971.
Same as in Delhi.
Orissa.—The following amendments were made by Orissa Gazette, dated 25-5-1984, Part
III-A, Page 68.
Insert the following proviso to r 4—
Provided that in cases where the defendant had entered into contest by filing his
defence, no suit shall be restored without notice to him. (14-5-1984)
Punjab and Haryana (Chandigarh).— The following amendments were made by Punjab
and Haryana (Chandigarh) Gazette, dated 14-2-1956.
COMMENT.—
An order under this rule without giving the applicant an opportunity to show sufficient
cause is ultra vires. What is sufficient cause is a matter of discretion and no hard and
fast rule can be laid down.5
A widow in a compromise decree in her suit for partition, was provided life estate for
residence in portion of residential house and maintenance. In a subsequent suit, the
aforesaid rights of the widow were not secured in preliminary ex parte decree which
became final. In final decree proceedings the widow expressly stated that she would be
satisfied to maintain her life estate in separate and demarcated portion of the house in
which she was living. In final stage no property or interest in coparcenary was left
behind widow. Her daughter, though class I legal heir, cannot be legal representative of
the widow under this rule nor under O XXII, rule 10 Code of Civil Procedure.6
Dismissing a suit in default is a decision, but simply consigning the case to records for
default is no decision. Consigned to record means Dakal Daftar and can be received on
the motion of any of the interested party. Even the court suo motu can call the record
for civil proceedings or such order can be made on the motion of instance of the party
or suo motu by the court.7
4 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 59, (w.e.f. 1-2-1977).
5 HK Shah v TR Bhasin, AIR 1972 J&K 19 (22).
6 Rajeshwari Prasad Singh v Shashi Bhushan Prasad Singh, AIR 1996 SC 181 (183) : (1995) 5
SCC 579 .
7 Gh Qadir Dar v Punjab National Bank, AIR 2012 J&K 35 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Dismissal of suit where
plaintiff, after summons returned unserved, fails for [seven days] to apply for fresh summons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Dismissal of suit where plaintiff, after summons returned unserved, fails for
8[seven days] to apply for fresh summons
9
[(1) Where, after a summons has been issued to the defendant, or to one of
several defendants, and returned unserved, the plaintiff fails, for a period of
10[ seven days ] from the date of the return made to the Court by the officer
ordinarily certifying to the Court returns made by the serving officers, to
apply for the issue of a fresh summons the Court shall make an order that the
suit be dismissed as against such defendant, unless the plaintiff has within
the said period satisfied the Court that—
(a) he has failed after using his best endeavours to discover the residence
of the defendant who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such
application for such period as it thinks fit.]
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh
suit.
[Sub-rule (1) amended in Bom & Kerala.]
Bombay.—The following amendments were made by Maharashtra Government Gazette,

dated 31-12-1987, Part IV, Ka, Page 712.
In r 5, for sub-rule (1), substitute as under—
"5. Dismissal of suit where plaintiff after summons returned unserved fails for two
months to apply for fresh summons.—(1) Where, after a summons has been issued to
the defendant, or to one of several defendants, and returned unserved, the plaintiff fails,
for a period of two months from the next hearing of the suit to apply for issue of a fresh
summons the Court shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the Court that—
(a) he has failed, after using the best endeavour to discover the residence of the
defendant who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in which case the
Court may extend the time for making such application for such period as it
thinks fit."
Gujarat.—Same as in Bombay.
Kerala (Notfn No. B1-3312/58 of 7-4-1959).—(i) For the existing marginal note
substitute "Dismissal of suit where plaintiff fails to apply for steps".
(ii) in sub-rule (1) for the words "three months from the date of the return returns made
by the serving officers" substitute the words "one month from the next hearing of the
suit or from the notice regarding the non-service of summons given by the Court to the
plaintiff or counsel". (9-6-1959)
Orissa.—Substitute the following for the existing rule 5:—
"5. Dismissal of suit where plaintiff, after summons returned unserved, fails to file
necessary requisites for fresh summons.—(1) where after summons have been issued
to the defendant, or to one of similar defendants, and returned unserved, the plaintiff
fails to file necessary requisites for the issue of a fresh summons within the period
fixed by the Court it shall make an order that the suit be dismissed as against such
defendant, and (2) in such a case the plaintiff may (subject to the law of limitation)
bring a fresh suit."— (3-5-1968).
COMMENT.—
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (m.e.f. 1-7-
2002).—
Modifications.—This rule has been amended for introducing the following modification:
In rule 5 of O IX the words "seven days" have been substituted for the words "one
month".

1999 stated thus:-
It is proposed by amending rule 5 of Order IX so as to reduce the period from one

month to seven days within which the plaintiff is required to apply for fresh summons
where summons earlier issued remain unserved. [Clause 19].

(m) (of the repeal and savings section) stipulates that the provisions of rules 2 and 5 of
O IX of the First Schedule, as amended by section 19 of this Amendment Act, 1999,
shall not apply in respect of summons issued before the commencement of section 19
of the Amendment Act, 1999.
Comments on the Amendment Act, 1999.—Time for application for fresh

summons.—
Rule 5 of O IX reduces the period from one month to seven days within which the
plaintiff is required to apply for fresh summons where summons earlier issued remain
unserved.

This rule provides a rule of limitation. Previously, this rule provided that when the
summons is returned unserved, plaintiff's failure to apply for a fresh summons within
three months from the date of such return of unsuccessful service will entail the
penalty of dismissal of his suit. When that default occurs, the Court is left with no
discretion but shall make an order that the suit be dismissed.
The period laid down for application for a fresh summons was three months prior to
the amendment. The period has now been reduced to one month so that delays may be
reduced.
Seven days period fixed for issue of fresh summons is directory.11
8 Subs. for 'one month' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)
9 Subs. by Code of Civil Procedure (Amendment) Act 24 of 1920, section 2 for the original sub-
rule (1).
10 Subs. for 'one month' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Procedure when only
plaintiff appears
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Procedure when only plaintiff appears
(1) Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then—
When summons duly served.— 12[( a ) if it is proved that the summons was duly
served, the Court may make an order that the suit be heard ex parte; ]
When summons not duly served. —( b ) if it is not proved that the summons was duly
served, the Court shall direct a second summons to be issued and served on the
defendant;
When summons served, but not in due time.— ( c ) if it is proved that the summons was
served on the defendant, but not in sufficient time to enable him to appear and answer
on the day fixed in the summons, the Court shall postpone the hearing of the suit to a
future day to be fixed by the Court, and shall direct notice of such day to be given to
the defendant. [OR, P]
(2) Where it is owing to the plaintiff's default that the summons was not duly
served or was not served in sufficient time, the Court shall order the plaintiff to
pay the costs occasioned by the postponement.
III-A, Page 68.
The amendment, as mentioned below under Patna deleted.
Patna.— The following amendments were made by Patna Gazette, dated 6-5-1946.
In rule 6(c) delete the words "and shall direct notice of such day to be given to the
defendant" and substitute a full stop for the comma after the words "fixed by the
Court".
1956.
Clause (a) of rule 6 of the Central Act is in force in Rajasthan since 30-6-1956.
COMMENT.—
Sub-rule (1)(a) is confined to the first hearing of the suit and does not per se apply to
subsequent hearing; the first hearing is either for the settlement of issues or for final
hearing. If it is only for the settlement of issues, then the Court cannot pass an ex parte
decree on that date because of the proviso to O XV rule 3(1). Ex parte merely means in
the absence of the other party.13
In ex parte proceedings the necessity of plaintiff proving his case is not lost. In a case
which has proceeded ex parte, the trial Court would scrutinise the available
proceedings and documents, consider the evidence adduced. It would do well to frame
the "points for determination" and proceed to construct the ex parte judgment dealing
with the points at issue one by one. Merely because the defendant is absent the Court
shall not admit evidence, the admissibility of which is excluded by law. It should also
not permit its decision being influenced by irrelevant or inadmissible evidence.14
All that this sub-rule does is to remove a bar and no more.15
Duty of Court.—
Where summons are served upon the defendant after the date fixed for his appearance,
it was obligatory on the part of the court to fix another date for his appearance and
filing of written statement and direct the plaintiff to take steps for the service of fresh
summons.16
Propriety of ex parte hearing.—
Where no opportunity was given to the defendants to explain non-appearance and the
suit was decreed on the same day, the matter was remitted to the trial court for fresh
adjudication as the High Court had disposed of the first appeal by a non-reasoned
order.17
Service of notice, when can be presumed.—
Once a suit has been dismissed it can only be recalled under O IX rule 9 of the Code of
Civil Procedure by the plaintiff alone and cannot be recalled at the instance of third
party.18
12 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 59 for clause (a),
(w.e.f. 1-2-1977).
13 Arjun Singh v Mohindra Kumar, AIR 1964 SC 993 : (1964) 5 SCR 946 : (1964) 2 All 590 .
14 Ramesh Chand Ardawatiya v Anil Panjwani, AIR 2003 SC 2508 (2519) : (2003) 7 SCC 350 .
15 Arjun Singh v Mohindra Kumar, AIR 1964 SC 993 : (1964) 5 SCR 946 : (1964) 2 All 590 .
16 Nahar Enterprises v Hyderabad Allwyn Ltd, (2007) 9 SCC 466 (468).
17 Sahara India v MC Aggarwal, (2007) 11 SCC 800 (801).
18 Surendra Singh v ADJ / 1st Fast Track, AIR 2012 Utr 33 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Procedure where
defendant appears on day of adjourned hearing and assigns good cause for previous non-appearance
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Procedure where defendant appears on day of adjourned hearing and assigns
good cause for previous non-appearance
Where the Court has adjourned the hearing of the suit ex parte, and the defendant, at
or before such hearing, appears and assigns good cause for his previous non-
appearance, he may, upon such terms as the Court directs as to costs or otherwise, be
heard in answer to the suit as if he had appeared on the day fixed for his appearance.
[Rule substituted in Rajasthan.]
Rajasthan.—(Notfn No. 13/SRO of 1-6-56).—For rule 7 substitute the following new rule:
—
"7. Where the Court has adjourned the hearing of the suit after making an order that it
be heard ex parte and the defendant at or before such hearing appears and assigns
good cause for his previous non-appearance, the Court may upon such terms as it
directs as to costs or otherwise, set aside the order for the hearing of the suit ex parte
and hear the defendant in answer to the suit as if he had appeared on the day fixed for
his appearance". (30-6-1956)
COMMENT.—
The underlying principle of this rule is that until a suit is actually called and so long as
an ex parte decree is not passed, the defendant is entitled to come in and defend the
suit. The rejection for an application under this rule is no bar to an application under
rule 13 after the passing on an ex parte decree.
"Good cause" and "sufficient cause"—distinguished.—
There is no material difference between the facts to be established for satisfying the
two tests of "good cause" and "sufficient cause". There cannot be a "good cause" which
is not "sufficient" as affording an explanation for non-appearance, nor conversely a
"sufficient cause" which is not a good one. Either of these is not different from "good
and sufficient cause" which is used in this context in other statutes. If on the other
hand, there is any difference between the two, it can be only that the requirement of a
"good cause" is complied with on a lesser degree of proof than that of "sufficient
cause".19
The Court cannot exercise its power to put the defendant/Applicant on such terms as
may have the effect of pre-judging the controversy involved in the suit and virtually
decreeing the suit though ex parte order has been set aside or to put parties on
onerous terms.
The costs should be so assessed as would reasonably compensate the plaintiff for the
loss of time and inconvenience caused by relegating back the proceedings to an earlier
stage.20
Application under O IX, rule 7 of the Code of Civil Procedure is not maintainable after
closure of evidence when the case is posted for judgment.21
An application for setting aside ex parte proceedings, which lies under O IX, rule 7 of
the Code of Civil Procedure, can be moved during the course of hearing of the suit, that
is after the defendant is set ex parte till hearing of final arguments in the suit. However,
neither an application under O IX rule 7 of the Code of Civil Procedure would lie nor ex
parte proceedings can be set aside after final arguments in the case are heard and
order reversed. Remedy available to the defendant in that case is only to file an
application for setting aside the ex parte judgment and decree under O IX, rule 13 of the
Code of Civil Procedure, if the suit is decreed against him.22
While exercising powers under O IX, rule 7 of the Code of Civil Procedure, the court can
impose condition in regard to payment of costs but it cannot impose such hard and
stringent condition which would negate the purpose of adjudication. The purpose of
the provision is to ensure orderly conduct of the proceedings of the court by penalising
improper dilatoriness calculated merely to prolong the litigation. For setting aside ex
parte order DRT can impose costs as conditions precedent but it cannot impose
stringent condition that is deposit of Rs. 1 crore, while setting aside ex parte order.23
19 Arjun Singh v Mohinder Kumar, AIR 1964 SC 993 (999) : (1964) 5 SCR 946 : (1964) 2 All 590 .
20 Yijai Kumar Madan v RN Gupta Technical Education Society, AIR 2002 SC 2082 (2085) : (2002)
5 SCC 30 .
21 Mamita Thati v Nepura Pradhan, AIR 2014 Ori 79 .
22 Jyoti Devi v Ld Munsiff; Basohli, AIR 2015 J&K 6 .
23 Alok Saboo v State Bank of India, AIR 2014 MP 61 .

defendant only appears
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Procedure where defendant only appears
Where the defendant appears and the plaintiff does not appear when the suit is called
on for hearing, the Court shall make an order that the suit be dismissed, unless the
defendant admits the claim, or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where part only of the claim
has been admitted, shall dismiss the suit so far as it relates to the remainder.
COMMENT.—
This rule deals with the procedure to be followed when the plaintiff does not appear
and the defendant alone appears.
As to whether this rule and next rule apply to an election-petition under the
Representation of the People Act 1951, reference may be made to a Full Bench
decision of Allahabad High Court.24 The provisions of this rule have been held to be
applicable to an application under section 10 of the Displaced Persons (Debts
Adjustment) Act, 1951.25
24 Duryodhan v Sita Ram, AIR 1970 All 1 (FB).

25 Sita Ram v Bashi Ram, AIR 1962 Punj 239 (FB); Ghulam Mohd v Ali Mohd, AIR 1972 J&K 5 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Decree against plaintiff
by default bars fresh suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Decree against plaintiff by default bars fresh suit
(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff'shall be
precluded from bringing a fresh suit in respect of the same cause of action.
But he may apply for an order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause for his nonappearance when the suit was
called on for hearing, the Court shall make an order setting aside the dismissal
upon such terms as to costs or otherwise as it thinks fit, and shall appoint a
day for proceeding with the suit. [C, D, GAU, HP, PU]
(2) No order shall be made under this rule unless notice of the application [C, GAU]
has been served on the opposite party.
[New sub-rule (2) added and present sub-rule (2) amended and renumbered (3) in
Calcutta & Gauhati; Proviso added to sub-rule (1) in Delhi, HP and Punjab.]
Assam and Nagaland.—Same as that of Calcutta.
Bombay.—Add the following as sub-rule (3):
"(3) The provision of Section 5, Limitation Act, 1908 shall apply to applications under
this rule." (21-12-1927)
Calcutta (Notfn No. 3516-G 3-2-1933).—New sub-rule (2) added and present sub-rule (2)
renumbered (3) with added words as follows:
"(2) The plaintiff'shall, for service on the opposite parties, present along with his
application under this rule either—
(i) as many copies thereof on plain paper as there are opposite parties, or
(ii) if the Court by reason of the length of the application or the number of opposite
parties or for any other sufficient reason grants permission in this behalf, a like number
of concise statements.
(3) No order shall be made under the rule unless notice of the application (with a copy
thereof or concise statement as the case may be) has been served on the opposite
party.
Add the following as sub-rule (3):
"(3) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to
applications under this rule". (17-8-1961)
Kerala (Lakshadweep Islands).—The following amendments were made by Kerala Act 37

of 1956 Section 60 and Regulation 8 of 1965 (w.e.f 1-10-1967). See also Act 34 of 1973,
Same as that of Gujarat, dated 9-6-1959.
Madras (Pondicherry).— The following amendments were made by Madras Gazette,

dated 29-3-1949.
III-A, Page 68.
Sub-rule (3) as added w.e.f. 20-9-1957 and same as that of Gujarat deleted. (14-5-1984)
Punjab (a) ( Notfn No. 2212-G 12-5-1909 ).— Add the following proviso to r 9(1):—
"Provided that the plaintiff'shall not be precluded from bringing another suit for
redemption of a mortgage, although a former suit may have been dismissed for
default."
COMMENT.—
The provisions of this rule are not applicable to a plaintiff whose suit has been
dismissed for any reason, other than default of appearance under rule 8 of Civil
Procedure Code.
Where a suit is dismissed for default, it cannot be said to have been heard and decided
on the merits and, therefore, cannot operate as res judicata.26 But the plaintiff is, under
the specific provisions of this rule, barred from bringing a fresh suit on the same cause
of action and the fact that the mode of relief claimed in the subsequent suit is different
will not be a ground for not applying the bar under this rule.
In a writ petition abatement took place for failure to bring legal representatives of the
deceased respondent on record within time. Although the petitioners knew about the
death of respondent yet took no step to bring his LRs on record for six years.
Subsequently they filed an application for setting aside abatement. The petitioners
being from rural area, their application was allowed .27
"Precluded from bringing a suit in respect of the same cause of action".—
The test to be applied is "are the causes of action in the two suits in substance are not
technically identical". Thus, the term "cause of action" is to be construed with reference
rather to the substance than to form of action.28
In a petition for condoning delay in restoration case arising out of motor accident, if
application for condoning delay was supported by medical certificate and applicant's
own statement on oath remains uncontroverted then the Court should apply justice-
oriented approach and not too technical or pedantic one.29
In an application for restoration of suit if all relevant facts were stated showing
sufficient cause for non-appearance and condonation of delay, but in another petition
for condonation of delay it was simply stated that the facts in the restoration
application might be taken into consideration. Restoration order with no reference of
the petition for condonation of delay would mean that the same was considered and
the delay condoned. There was no irregularity. Accordingly, the order was not to be
interfered with in revision.30
On dismissal of the first application for granting letter of administration for default,
second application is not maintainable.31
Suit for default, dismissal of.—
Where injunction suit by appellants was dismissed for default, order of High Court
upholding that the respondent was not entitled to Sirdari rights would not be proper.32
Propriety of refusal of restoration.—
The refusal of restoration of petition for insufficient cause would be improper.33
26 Shiva Shankar v Baikunth, AIR 1969 SC 971 : (1969) 1 SCC 718 .

27 Ram Sumiran v DDC, AIR 1985 SC 606 : (1985) 1 SCC 431 : (1985) 1 ALT 305 .
28 Suraj Rattan v Azamabad Tea Co, AIR 1965 SC 295 : (1964) 6 SCR 192 : (1965) 1 An LT 82;
Mohd K Khan v Mehboob A Mian, AIR 1949 PC 78 followed.
29 Mahendra Rathore v Omkar Singh, AIR 2002 SC 505 : (2002) 10 SCC 673 .
30 Davinder Pal Sehgal v Pratap Steel Rolling Mills (P) Ltd, AIR 2002 SC 451 : (2002) 3 SCC 156 .
31 Paritosh Patra v Angur Bala Rana, AIR 2014 Cal 133 .
32 Udai Raj Singh v Hari Ram, AIR 2008 SC 3247 (3248).
33 Raj Kishore Pandey v State of UP, AIR 2009 SC 1640 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Procedure in case of
non-attendance of one or more of several plaintiffs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Procedure in case of non-attendance of one or more of several plaintiffs
Where there are more plaintiffs than one, and one or more of them appear, and the
others do not appear, the Court may, at the instance of the plaintiff or plaintiffs
appearing, permit the suit to proceed in the same way as if all the plaintiffs had
appeared, or make such order as it thinks fit.

non-attendance of one or more of several defendants
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Procedure in case of non-attendance of one or more of several defendants
Where there are more defendants than one, and one or more of them appear, and the
others do not appear, the suit shall proceed, and the Court shall at the time of
pronouncing judgment, make such order as it thinks fit with respect to the defendants
who do not appear.
COMMENT.—
Effect of non-service of notice.—
Requirement of notice is mandatory. Non-service of notice is sufficient to get decree

set aside.34
34 Reena Sadh v Anjana Enterprises, AIR 2008 SC 2054 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Consequence of non-
attendance, without sufficient cause shown, of party ordered to appear in person
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Consequence of non-attendance, without sufficient cause shown, of party
ordered to appear in person
Where a plaintiff or defendant, who has been ordered to appear in person, does not
appear in person, or show sufficient cause to the satisfaction of the Court for failing
so to appear, he shall be subject to all the provisions of the foregoing rules applicable
to plaintiffs and defendants, respectively who do not appear.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Setting aside decree ex
parte against defendants
© 2020 LexisNexis
THE FIRST SCHEDULE
Setting aside Decrees Ex parte
R. 13.
Setting aside decree ex parte against defendants
In any case in which a decree is passed ex parte against a defendant, he may apply to
the Court by which the decree was passed for an order to set it aside; and if he
satisfies the Court that the summons was not duly served, or that [B, MP, OR] he was
prevented by any sufficient cause from appearing when the suit was called on for
hearing, the Court shall make an order setting aside the decree as against him upon
such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as
against such defendant only it may be set aside as against all or any of the other
defendants also [B, C, GAU, K, MP, OR]:
35[ Provided further, that no Court shall set aside a decree passed ex parte merely on
the ground that there has been an irregularity in the service of summons, if it is
satisfied that the defendant had notice of the date of hearing and had sufficient time
to appear and answer the plaintiff's claim.]
36[ Explanation.— Where there has been an appeal against a decree passed ex parte
under this rule, and the appeal has been disposed of on any ground other than the
ground that the appellant has withdrawn the appeal, no application shall lie under this
rule for setting aside that ex parte decree.]
Allahabad.—Add the following further proviso:—
"Provided also that no such decree shall be set aside merely on the ground of
irregularity in the service of summons if the Court is satisfied that the defendant knew,
or but for his wilful conduct would have know, of the date of hearing in sufficient time
to enable him to appear and answer the plaintiff's claim."

13. Setting aside decree ex parte against defendant.—In any case in which a decree is
passed ex parte against a defendant; he may apply to the Court by which the decree
was passed for an order to set it aside; and if he satisfies the Court that the summons
was not duly served, or that there was sufficient cause for his failure to appear when
the suit was called on for hearing the Court shall make an order setting aside the
decree as against him upon such terms as to costs, payment into Court or otherwise as
it thinks fit, and shall appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against
such defendant only, it may be set aside as against all or any of the other defendants
also:
Provided also that no such decree shall be set aside merely on the ground of irregularity
of service of summons, if the Court is satisfied that the defendant knew, or but for his
wilful conduct would have known, of the date of hearing in sufficient time it enables
him to appear and answer the plaintiff's claim.
Explanation I.—Where a summons has been served under Order V, rule 15, on an adult
male member having an interest adverse to that of the defendant in the subject-matter
of the suit, it shall not be deemed to have been duly served within the meaning of this
rule.
Explanation II.—Where there has been an appeal against a decree passed ex parte under
this rule, and the appeal has been disposed of on any ground other than the ground
that the appellant has withdrawn the appeal, no application shall lie under this rule for
setting aside that ex parte decree. (1-10-1983)
Calcutta (Notfn No 3316-G; 3-2-1933).— Renumber r 13 as r 13(1) and add as sub-rule

(2):—
"(2) The defendant shall, for the service on opposite party, present along with his
applications under this rule either—
(i) as many copies thereof on plain paper as there are opposite parties, or
(ii) if the Court by reason of the length of the application or the number of opposite
parties or for any other sufficient reason grants permission in this behalf, a like
number of concise statements."
Gauhati (Assam, Nagaland, Meghalaya, Manipur and Tripura).—Same as that of

Calcutta.
Renumber rule 13 as rule 13(1) and add the following sub-rule to it:—
"13(2) The provisions of Section 5 of the Indian Limitation Act, IX of 1908, shall apply to
application made under this rule." (16-9-1960)
1967.
Add the following further proviso to rule 13:
Provided further that no such decree shall be set aside merely on the ground of
irregularity in the service of summons, if the Court is satisfied that the defendant knew
the date of hearing in sufficient time to enable him to appear and answer the plaintiff's
claim.
(1) Renumber rule 13 as rule 13(1).
(2) Delete the full stop at the end of the existing proviso and add the words "after
notice to them".
(3) Add sub-rule (2) as in Madras.
dated 16-9-1960.
(a) Renumber the existing rule as sub-rule (1).
(b) Substitute "there was sufficient cause for his failure to appearing" for "he was
prevented by any sufficient cause from appearing" occurring in sub-rule (1) so
renumbered.
(c) Add the following as an additional proviso and Explanation to sub-rule (1): Same
as that of 2nd Proviso and Explanation of Bombay.
(d) Add the following as sub-rule (2):
"(2) The provisions of Section 5 of the Indian Limitation Act, IX of 1908, shall apply to
application under sub-rule (1)." (16-9-1960)
Madras (Pondicherry).— The following amendments were made by Madras Gazette, Dis
No. 621 of 1941.
(1) Renumber rule 12 as rule 13(1) and insert the following as proviso to sub-rule
(1):
"Provided further that no Court shall set aside a decree passed ex parte merely
on the ground that there has been an irregularity in the service of summons, if it
be satisfied that the defendant had notice of the date of hearing in sufficient
time to appear and answer the plaintiff's claim." (R.O.C. No.1810 of 1926).
(2) Add the following as sub-rule (2) to rule 13:
"(2) The provisions of Section 5 of the Indian Limitation Act, IX of 1908 shall
apply to application under sub-rule (1)."
III-A, Page 68.
(i) The amendment which was in force from 7-5-1954 has been deleted now.
(ii) Renumber the existing Explanation as Explanation I and add the following as
Explanation II:—
"Explanation II.—As summons served under Order V, rule 15 on an adult male

member having an interest adverse to that of the defendant in the subject-matter
of the suit shall not be deemed to have been duly served within the meaning of
this rule." (14-5-1984)
Punjab Haryana and Chandigarh.— The following amendments were made by Punjab
Renumber r 13 as r 13(1) and add the following as sub-rule (2) namely:
"(2) The provisions of Section 5 of the Indian Limitation Act, IX of 1908 shall apply to
application under sub-rule (1)."
COMMENT.—
Scope and ambit of.—
The imposition of terms or conditions for setting aside an ex parte decree is in the
exercise of judicial discretion of the court and whether the terms or conditions
imposed are reasonable or onerous is a question of fact on the circumstances of each
case. No hard and fast rules can be laid down with mathematical precision to govern
the exercise of judicial discretion of the court in arriving at reasonable equitable and
just terms or conditions for setting aside an ex parte decree.37
Ex-parte decree can be set aside on two grounds only i.e.—
(i) Where summons was not duly served on defendant; and
(ii) Where defendant was prevented by sufficient cause from appearing when suit
was called out.38
The remedy under O IX rule 13 is not barred on the ground of improper and invalid
service of summons.39
The setting aside of entire ex-parte decree depends upon the nature of decree. If
decree is indivisible court can set aside the entire decree.40
It has been held that the knowledge of pendency of eviction suit cannot be equated
with knowledge of date of hearing.41
Where the facts and evidence of process server revealed that the petitioner refused to
put her sign or thumb impression on summon when they were handed to her, and she
also refused to acknowledge the registered service, the situation is indicative of refusal
to accept the notice. Ex parte decree was rightly passed.42
In UOI v Sri Laxmi Oil Mills, AIR 1984 Pat 252 (DB). Reference may also be made to a
decision of Supreme Court of India, Indira Kashyap v KN Kashyap, AIR 1984 SC 1045 :
(1984) 3 SCC 107 the Patna High Court held that as no steps were taken for the issue
of summons in ordinary course (although sent by registered post only), declaration
regarding due service on defendant could not be made and thus date could not be fixed
for an ex parte hearing.
Applicability.—
Evidence of the plaintiff and the defendant was closed, and the suit was called for final
hearing and on that day the defendant remained absent. The Court passed a decree in
which these was not even any indication as to what evidence was evaluated and/or
whether the merits were tested. It could not be said that the suit was decided on merits
as per Explanation to rule 2 of O XVII. Hence O IX, rule 13
had no application.43 In a case in which the industrial court makes an ex parte award,
the provision of O IX, rule 13 of the Code would be clearly attracted.44
Non service of summon.—
It was held by the Supreme Court that non-service of summons is a ground for setting
aside an ex parte decree.45 "Sufficient cause".—The Court in considering whether a
party has established sufficient cause, not be overstrict.46 It has been held by the
Supreme Court that rejection or dismissal of an application under rule 7 ante will not
operate as a bar to the hearing of an application under this rule.47 The expression
"sufficient cause" is the cause for which defendant could not be blamed for his
absence.48 Collusion in a judicial proceeding is a secret arrangement between two
persons that one should institute a suit against the other in order to obtain the decision
of a judicial tribunal for some sinister purpose. A suit will lie to set aside such a
collusive ex parte decree. This suit was dismissed as the plaintiff failed to establish
collusion. The mere fact that the defendant agrees with the plaintiff that if the suit is
brought then he would not defend it, would not necessarily prove collusion.49
The following are some of the classes of cases in which the decree cannot be set aside
only as against the defendant applying without setting it aside as against the other
defendants also:
(i) where the decree is joint and indivisible;50
(ii) where the decree proceeds on a ground common to all the defendants;
(iii) where it is necessary that the whole decree should be re-opened in the interest
of justice or in other words, where the relief which the applicant is entitled to
cannot effectively be given except by setting aside the decree against the other
defendants also;
(iv) when the suit would result in two inconsistent decrees if the ex parte decree be
not set aside against the other defendants also.
In a case two persons were not served notices in the suit. A decree was passed ex
parte against them without giving them notice of the suit. In law, therefore, there is no
decree against them. In the appeal also they were not served. There is no bar for an
application by them before the trial Court under this rule to set aside the ex parte
decree against them. The plea that the decree was joint and indivisible and as such it
could not be set aside in part cannot be sustained.51
A suit for specific performance, was decreed in favour of vendee. Summons issued
through bailiff returned un-served on account of party relocating to different place. The
copy of summons not affixed on conspicuous part of house of vendee, where he last
resided. Service of summons affected by publication in the newspaper, in breach of
provision of rule 17. It was held that issuance of summons through substitution service
was erroneous and therefore ex-parte decree was liable to be set aside.52
Remedy against ex-parte decree.—

Both the remedies of filing of an appeal and an application to set aside ex-parte decree
cannot be taken up simultaneously. Right to appeal is not taken away by filing
application under O IX, rule 13.53
An ex-parte decree is a valid decree; it has the same force as a decree passed on
contest. As long as such decree is not recalled or set aside, it is legal and binding upon
parties concerned.54
Where in the proceedings under O IX rule 13 the trial Court had given finding on the
evidence that the defendants were not served with suit summons and therefore the ex
parte decree was liable to set aside.55
A suit was filed by the bank for recovery of sum advanced to the defendant who was
trying to negotiate with the bank with a reasonable and bona fide offer. The
circumstances brought to the notice of bank by him were also capable of evoking
sympathy from bank. The offer made by the defendant was also not turned down by
the bank and so the defendant was justifiably hopeful of entering into settlement. The
ex parte decree passed against the defendant is liable to be set aside.56
Where the parties are closely related and a matter is disposed of ex parte, it is not a fit
case to impose cost of depositing mesne profit from the date of ex parte decree and to
continue to deposit it as a condition to contest the application to set aside ex parte
decree. Such condition is not valid. Ex parte decree was stayed and impugned order set
aside.57
Where the husband dies after obtaining an ex parte divorce decree against wife, the
aggrieved wife can file application for setting aside ex parte decree even though the
husband might have died prior to moving of application or during pendency of
application. Legal heirs of deceased husband can be brought on record as opponents
or respondents in such proceedings.58
Where an appeal against ex parte award was dismissed on the ground of limitation, a
subsequent application under this provision for setting aside the award filed before the
Motor Vehicles Tribunal would not be maintainable.59
Where an ex parte decree is passed in terms of the award, the provisions of O IX, rule
13 will apply for setting aside the ex parte decree.60
Ex parte decree, setting aside of.—
When an appeal against ex parte decree was dismissed as time barred by rejecting
application for condonation of delay, Explanation to rule 13 would be attracted. An
application for setting aside ex parte decree would not be maintainable. The fact that
the appeal was filed subsequent to application under rule 13 would be of no
consequence. Explanation to rule 13 applies to cases where appeal was filed
subsequent to application under rule 13 also.61
In order to determine the application under O IX, rule 13 of the Code, the test has to be
applied is whether the defendant honestly and sincerely intended to remain present
when the suit was called on for hearing and did his best to do so. The "sufficient cause"
is thus the cause for which the defendant could not be blamed for his absence.
Therefore, the applicant must approach the court with a reasonable defence. The
sufficient cause is a question of fact and the court has to exercise its discretion. There
cannot be straitjacket formula of universal application.62
When the defendant does not appear to lead evidence and does not lead evidence, he
will not come within the sweep of explanation to O VII rule 2 of the Code of Civil
Procedure and so such suit will be considered to have proceeded ex parte against the
defendant and O IX rule 13 of the Code of Civil Procedure will be applicable in such
cases.63
Where an ex parte decree was set aside on finding that the landlord had agreed to
withdraw the petition, the continuance of eviction petition thereafter by disregarding
the finding recorded in the proceedings for setting aside of ex parte decree is illegal.
The finding that the landlord had agreed to withdraw the suit and receive the rent from
the tenant was a finding which was binding on the landlord at later stages of the
proceedings.64
The trial court passed an order to set aside ex parte decree by condoning the delay in
filing applications for the same. However, the trial court in its discretion while setting
aside ex parte decree directed the appellant to deposit the entire suit claim of Rs.
1,50,00,000 and Rs. 10,00,000 when the issues were yet to be decided on merits. It was
held by the court that such a condition imposed by the trial court is unreasonable and
onerous. The appellant in compliance with the Supreme Court order deposited a sum
of Rs. 50,00,000 before the Trial court since, the appellants satisfactorily explained the
reasons for delay, the delay was condoned and ex parte decree was set aside.65
Reference may also be made to another decision in Chittoori Suryarao v Chittoori Ram
Chandra Rao, AIR 1975 AP 257 .
In a case in which an application under O IX rule 13 of Code of Civil Procedure has been
filed, no party to the decree is entitled to lawfully marry again unless that application
has been dismissed. That means during pendency of the application, neither of the
party is entitled to marry again.66
The High Court condoned the delay of 153 days, in filing an application for setting aside
ex parte decree by a woman spouse, particularly when it was pleaded that she did not
receive notice in the original proceedings and when she is residing in another state.
Simply because the respondent had married another woman, that hardly constitutes
any basis to defeat the rights of the petitioner. Hence, application ex parte decree was
set aside.67
Where an application under rule 13 of O IX of the Code was filed within 30 days from
the knowledge of passing of decree, it was within time. It could not be dismissed on
hyper-technical view that no separate application under section 5 of the Limitation Act,
1963 was filed.68
Ex parte decree of divorce was passed in favour of husband. Wife was never served
with summons, nor was it observed by the trial court that she was intentionally evading
service of summons or that she could not be served in the ordinary course. Without
recording such satisfaction, substituted service could not be ordered. Even otherwise
the wife, who is a rustic, illiterate villager, could not have read the newspaper in which
notice for her service was published and therefore, as she i.e., wife was not served with
summons properly, the ex parte judgment and decree was set aside. The wife learnt
about the said ex parte judgment and decree in the first week of May 2000 and
therefore application for setting aside ex parte judgment and decree filed by her on 31
May 2000 is within limitation. Hence, the same was granted.69
Application for setting aside decree.—

There was a delay of sixty days in presenting the application for setting aside the
decree. Some documents were made available to indicate that the applicant was
suffering from mental retardation. Thus, delay was condoned.70
Even in the absence of any express provision, courts have ample jurisdiction to set
aside an ex-parte decree on the ground of violation of natural justice, subject to the
statutory indirect.71
The effect of setting aside an ex parte decree is to restore the parties to the position
they previously occupied.72
The second proviso to the rule has been added newly in order to ensure that the Court
should not set aside an ex parte decree merely on the ground of irregularity in the
service of the summons in a case where the defendant had adequate notice of the date
of hearing of the suit.
The publication of substituted service in a local daily, which was not ordered by the
Court, is a mere irregularly and an ex parte decree cannot be set aside on ground of
such an irregularly.73 The scope of inquiry in an appeal against an ex parte decree
being different from the scope of an application for setting aside an ex parte decree,
the defendant should not be deprived of an opportunity of filing an application for
setting aside the decree if he had withdrawn the appeal against ex parte decree.
On an application for setting aside an ex parte decree, enquiry as to the service of

summon/notice of the suit on the defendant applicant is mandatory. Rejection of the
application shall be illegal in the absence of such an enquiry.74 The Supreme Court
observed that the conditions to be imposed while setting aside ex parte decree should
be reasonable and not harshly excessive.75 The Court, while deciding the application
for setting aside ex parte decree, should keep in mind the judgment impugned, the
context of the property involved and the stake of the parties. On failure to substantiate
any of these grounds, Court has no jurisdiction to set aside an ex parte decree. Extent
of the suit property and the stake of the parties cannot be overlooked while considering
an application for restoration.76
A party cannot be penalised for his/her previous negligence which has been overlooked
and condoned earlier.77
An order, setting aside the ex-parte order, being a judicial order, should be supported by
reasons.78
The defendant suffered ex parte decree due to non-appearance of his duly instructed
counsel before the court of the District Judge and decision of the said court to proceed
ex parte and pronouncing judgment on the same day. If the court had adjourned the
proceeding to another day after deciding to proceed ex parte, the defendant could have
applied for being permitted to participate in the proceedings. In the facts of the case
and interest of justice the ex parte decree was set aside.79
Amalgamation of two reliefs.—
Two reliefs can be amalgamated in one suit by way of an amendment.80
Remedies to defendant.—
A defendant in a suit has more than one remedy as regards setting aside of an ex parte
decree. He can file an application for setting aside the ex parte decree, can file a suit
stating that service of notice was fraudulently suppressed; can prefer an appeal and file
an application for review.81
Meaning of word "decree".—
The meaning of word "decree" used in first proviso means decree in general and not
necessarily ex parte decree. Therefore, if an ex parte decree was to be set aside by the
court, the same had to be set aside in toto, i.e. as against all the defendants in the suit
whether they appeared, contested or not, whether they had applied for setting aside the
ex parte decree or not.82
Untenability of passing ex parte decree.—
A suit filed by respondents in High Court was transferred to the District Court by orders
of the joint registrar of High Court due to change in pecuniary jurisdiction. Neither
Registrar of High Court nor Office of District Court served a notice on defendant. It was
held that there being no justification for passing of ex parte decree, both the courts
below had erred in rejecting the application under O IX, rule 13 of the Code.83
Exclusion of time.—
A successful applicant under O IX, rule 13 cannot claim the exclusion of the period for
the purpose of limitation in subsequent suit.84
Bar of limitation.—
Application filed under O IX, rule 13 one and a half year after defendant came to know
about passing of ex parte decree is barred by limitation.85
Application for, setting aside ex parte decree delayed.—
Where the conduct of the appellants throughout lacked due diligence and have been
pursuing the entire matter negligently, they would not be entitled to take benefit of
section 5 of the Limitation Act, 1963. The time spent in wrong court could not be
excluded as delay could not be condoned.86
Once application under O IX, rule 13 is dismissed, the defendant cannot by filing first
appeal dispute correctness of order posting suit for ex parte hearing or show cause for
his non-appearance.87
Where an ex parte decree for eviction is set aside the earlier direction to the tenant for
making the deposit of rent would also revive.84 While reversing a decision of Delhi High
Court,89 it has been held in Rani Chaudhary v Suraj Jit Chaudhary, AIR 1982 SC 1397 :
(1982) 2 SCC 596 that a plain reading of the Explanation attached to rule 13 clearly
indicates that if any appeal against an ex parte decree has been disposed of on any
ground other than the ground that the appellant has withdrawn the appeal, no
application for setting aside the ex parte decree under O IX rule 13 will be entertained.
The words used in the Explanation are clear and unambiguous.
Condonation of delay.—
Ex parte decree was set aside by condoning delay caused in filing notice of motion.90
Opportunity to contest to defendant.—
Where there was delay of 669 days of filing application for setting aside ex parte
decree, defendant ought to be granted an opportunity to contest the case on merits
and file written statement.91
Imposition of condition permissible.—
The order setting aside ex-parte decree need not be wholly unconditional one. The
imposition of condition is permissible under O IX, rule 13 of the Code.92
35 Added by Code of Civil Procedure (Amendment) Act 104 of 1976, section 59, (w.e.f. 1-2-
1977).
37 Polasani Sucharitha v Margadarsi Chit Fund Ltd, 2007 (5) ALT 722 (725) (DB).
38 Vijay Singh v Shanti Devi, (2017) 8 SCC 837 : 2017 (9) SCJ 250 : 2017 (11) SCALE 197 .
39 Bhajan Singh Arora v IYth Addl Judge, AIR 2011 Chh 89 (92) (DB).
40 Bank of India v Mehta Bros, (2008) 13 SCC 466 (478-81).
41 Sushil Kumar Sabharwal v Gurpreet Singh, AIR 2002 SC 2370 : (2002) 5 SCC 377 .
42 Bhabia Devi v Permanand Prasad Yadav, AIR 1997 SC 1919 : (1997) 3 SCC 631 .
43 B Janakiramaiah Chetty v AK Partha Sarthi, AIR 2003 SC 3527 (3530).
44 Radhakrishna Mani Tripathi v LH Patel, (2009) 2 SCC 81 (85).
45 Sushil Kumar Sabharwal v Gurpreet Singh, AIR 2002 SC 2370 : (2002) 5 SCC 377 .
46 UOI v Ram Charan, AIR 1964 SC 215 : (1964) 3 SCR 467 .
47 AIR 1964 SC 998 .
48 Parimal v Veena, 2011 AIR CC 1073 (1077) (SC-DB).
49 Rupchand Gupta v Raghuvanshi, AIR 1964 SC 1889 (1891, 1892) : (1964) 7 SCR 760 ; Nagubai
Ammal v Shama Rao, AIR 1956 SC 593 : 1956 SCR 451 : (1956) Mys 152 relied on; see also Scot
v Scot, 1913 p 52 : 82 LJ P 39.
50 Khagesh Chandra v Chandra Kantha Barua, AIR 1954 Ass 183 (FB).
51 Kewal Ram v Ram Lubhaya, AIR 1987 SC 1304 (1306).
52 Neerja Relators Pvt Ltd v Janglu, AIR 2018 SC 753 .
53 Neerja Relators Pvt Ltd v Janglu, AIR 2018 SC 753 .
54 Vijay Singh v Shanti Devi, (2017) 8 SCC 837 : 2017 (9) SCJ 250 : AIR 2017 SC 5672 .
55 Manick Chandra Nandi v Debdas Nandy, AIR 1986 SC 446 (451) : (1986) 1 SCC 512 .
56 Plasto Pack, Mumbai v Ratnakar Bank Ltd, AIR 2001 SC 3651 (3653) : (2001) 6 SCC 683 .
57 Kumud Lata Das v Indu Prasad, AIR 1997 SC 34 : (1996) 11 SCC 195 .
58 Yallawwa v Shantavva, AIR 1997 SC 35 (39, 42); Bhan Kaur v Isher Singh, AIR 1959 Punj 553 ;
Saraswathi Ammal v Lakshmi, AIR 1989 Mad 216 reversed.
59 P Kiran Kumar v AS Khadar, AIR 2002 SC 2286 : (2002) 5 SCC 161 .
60 UOI v Manager Jain & Associates, AIR 2001 SC 809 (812) : (2001) 3 SCC 277 .
61 Shyam Sunder Sarma v Pannalal Jaiswal, AIR 2005 SC 226 (230); Mamnda Khatun v Beniyan
Bibi, AIR 1976 Cal 415 (FB) not good law in view of Mela Ram v CIT, AIR 1956 SC 367 .
62 Parimal v Yeena, AIR 2011 SC 1150 (1155); Surinder S Sabia v Vijay Kr Sood, AIR 1992 SC
1540 & Oriental Aroma Ch Industries Ltd v GID Corpn, (2010) 5 SCC 459 , relied on.
63 Hasna Ana Begum v Kaushik Ranjan Das, AIR 2015 Gau 1 .
64 Prahlad Singh v Sukhdev Singh, AIR 1987 SC 1145 .
65 G M G Engineering Industries v ISSA Green Power Solution, AIR 2015 SC 2675
66 Kuldeep Kumar Lal v Suman Rani, AIR 2012 Raj 175 , p 178.
67 Rachokonda Parvathi v Rachokonda Venkata Subrahmanyam, AIR 2013 AP 191 .
68 Bhagmal v Kunwar Lal, AIR 2010 SC 2991 (2194) : (2010) 12 SCC 159 (163).
69 Surjit Kaur alias Sito v Harmesh Pal, AIR 2013 P&H 72 .
70 Nazima Shah v Md Hassimuddin, AIR 2014 Mpr 7 .
71 Rabindra Singh v Financial Commissioner, (2008) 7 SCC 663 (669-70).
72 ILR (1972) AP 421 (FB).
74 Naresh Chandra Agarwal v Bank of Baroda, AIR 2001 SC 1253 (1255) : (2001) 3 SCC 163 .
75 VK Industries v MP Electricity Board, Rampur, AIR 2002 SC 1151 : (2002) 3 SCC 159 .
76 MK Prasad v P Arumugan, AIR 2001 SC 2497 : (2001) 6 SCC 176 .
77 GP Srivastava v RK Raizada, AIR 2000 SC 1221 (1223) : (2000) 3 SCC 54 : 2000 All LJ 863.
78 Mahesh Yadav v Rajeshwar Singh, AIR 2009 SC 1064 (1066) : (2009) 2 SCC 205 .
79 Lal Devi v Vaneeta Jain, 2008 (3) MP LJ 42 (46-48) (SC).
80 MC Agarwal v Sahara India, (2008) 5 SCC 642 (644).
81 Rabindra Singh v Financial Comm., (2008) 7 SCC 663 (669).
82 Bank of India v Mehta Bros, (2008) 13 SCC 466 (473-77).
83 Reena Sadh v Anjana Enterprises, (2008) 12 SCC 589 (595).
84 Nandalal Ghosh v Saktipada Bag, 2009 (1) Cal LJ 936 (940-942) (DB).
85 Mahabir Singh v Subhash, AIR 2008 SC 276 : (2008) 1 SCC 358 .
86 Ramji Pandey v Swaran Kali, AIR 2011 SC 489 (491).
87 BK Jain v A Kumar, AIR 2005 SC 626 (631-633).
84 Nandalal Ghosh v Saktipada Bag, 2009 (1) Cal LJ 936 (940-942) (DB).
89 Suraj Jit Chaudhary v Rani Chaudhary, AIR 1982 Del 71 .
90 RV Bhasin v Sunil Kumar Kapur, 2010 (3) Bom CR 138 (141-145) (DB).
91 Chithra Prahladan v N Pakajakshan Pillai, AIR 2008 (NOC) 903 (Ker-DB), FA O No 223 of 2005,
Dt 10 April 2007.
92 Nahar Enterprises v Hyderabad Allwyn Ltd, (2007) 9 SCC 466 (469-70).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. No decree to be set
aside without notice to opposite party
© 2020 LexisNexis
THE FIRST SCHEDULE
Setting aside Decrees Ex parte
R. 14.
No decree to be set aside without notice to opposite party
No decree shall be set aside on any such application as aforesaid unless notice [C,
GAU] thereof has been served on the opposite party.
[Rule amended in Cal & Gauhati, rule 15 added in Bom and Gujarat.
Add the following as r 15:
15. Application of the provisions of this order to Appeals.—In the application of this
Order to appeals, so far as may be, the word plaintiff'shall be held to include an
appellant, the word 'defendant' a respondent, and the word 'suit', and appeal.
(1.10.1983)
Calcutta (Notfn No. 3516-G of 3-2-1933).—Cancel the word "thereof" and substitute:
"together with a copy thereof (or concise statement as the case may be)".
Gujarat.— The following amendments were made by Gujarat Act, dated 17-8-1961.
Same as that of Bombay.
Add the following as rule 15:
"15. The provisions of Section 5 of the Limitation Act, 1963, shall apply to an
application made under sub-rule (1) of Order IX or rule 13".
COMMENT.—
The rule is imperative that no ex parte decree can be set aside without notice to the
opposite party so as to given him an opportunity to be heard.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Ascertainment whether
allegations in pleadings are admitted or denied
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER X Examination of Parties by the Court
R. 1.
Ascertainment whether allegations in pleadings are admitted or denied
At the first hearing of the suit the Court shall ascertain from each party or his pleader
whether he admits or denies such allegations of fact as are made in the plaint or
written statement (if any) of the opposite party, and as are not expressly or by
necessary implication admitted or denied by the party against whom they are made.
The Court shall record such admissions and denials.
COMMENT.—
Order X confers on the Court a power to examine parties with a view to ascertain the
real points in controversy between them, and to get admission from them, so as to
eliminate irrelevant issues and evidence and thereby shorten the trial. This rule relates
only the ascertainment by statements of the parties themselves or their pleaders
whether allegations in the pleadings were admitted or denied by them. Such
ascertainment is to be made only when the allegations are not expressly or impliedly
admitted or denied by the party against whom they are made.1
A plaintiff pleaded that the defendants had authorised the other defendant to sell the
property on his behalf. The authorising defendant denied his signature on any such
writing and also on written statement and the vakalatnama. Then the dismissal of suit
by the trial Court on protracted trial is illegal.2
It is not essential that the party must be present in order to answer questions under
this rule.
The First Hearing of the suit can never be earlier than the date fixed for preliminary
examination of the parties and settlement of issues.3
Resort to, when necessary?.—
The resort to rule 1 of O X of the Code is necessary only in cases where the court finds
that the plaintiff or the defendant has failed to expressly or impliedly admit or deny any
of the allegations made against him, by the other party. Examination under this rule will
not be necessary. When the pleadings of each party have been fully traversed by the
other party.4
1 Balmiki Singh v Mathura Prasad, AIR 1967 All 259 .
2 KS Satyanarayana v VR Narayana Rao, AIR 1999 SC 2544 (2546) : (1999) 6 SCC 104 .
3 Shamlal v Atma Nand Jain Sabha, AIR 1987 SC 197 (200) : (1987) 1 SCC 222 ; see also Ved
Prakash Wadhwa v Vishwa Mohan, AIR 1982 SC 816 : (1981) 3 SCC 667 .
4 Kapil Corepacks (P) Ltd v Harbans Lal, AIR 2010 SC 2809 : (2010) 8 SCC 452 (460) : (2010) 8
MLJ 1087 (SC) : (2010) 4 CTC 865 : (2010) 5 LW 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Direction of the Court
to opt for any one mode of alternative dispute resolution
© 2020 LexisNexis
THE FIRST SCHEDULE
5[R. 1A.
Direction of the Court to opt for any one mode of alternative dispute resolution
After recording the admissions and denials, the Court shall direct the parties to the suit
to opt either mode of the settlement outside the Court as specified in sub-section (1) of
Section 89. On the option of the parties, the Court shall fix the date of appearance
before such forum or authority as may be opted by the parties. ]
COMMENT.—
2002).—
Modifications.—This new rule has been inserted.
1. New rule 1A has been inserted after rule 1 in O X.
2. The insertion of this rule is consequential to the insertion of sub-section (1) of

section 89 making it obligatory upon the Court to refer the dispute for settlement
by way of Arbitration, Conciliation, Judicial Settlement including settlement
through Lok Adalat or Mediation.

1999 stated thus:-
Order X is proposed to be amended by inserting rules 1A, 1B and 1C in the said order.
This amendment is consequential to the insertion of new Section 89 vide clause 7 of
Bill. [Clause 20]
Alternative modes of disputes resolution.—
These new rules, namely 1A, 1B and 1C have been inserted by the amending Act. The
settlement can be made by adopting any of the modes specified in new section 89 of
the Code inserted by the Amendment Act. As per rule 1A the parties to the suits are
given an option for settlement of the disputes outside Court. When the parties have
exercised their option, the Court shall fix the date of appearance before such person as
may be opted by the parties.
As per rule 1B the parties are required to appear before such forum opted by them.
Rule 1C provides for the presiding officer of the forum to refer the matter again to the
Court in case he feels that in the interest of justice he should not proceed with the
matter.
This amendment is consequential to the insertion of new section 89.
Court to give option.—
The provision of rule 1-A of O X of the Code requires the court to give the option to the
parties to choose any of the ADR processes.6
5 Rule 1A, rule 1B and rule 1C ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999), section 20 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
6 Afcons Infrastructures Ltd v Cherian Markey Construction Co (P) Ltd, (2010) 8 SCC 24 (40).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1B. Appearance before the
conciliatory forum or authority
© 2020 LexisNexis
THE FIRST SCHEDULE
7[R. 1B.
Appearance before the conciliatory forum or authority
Where a suit is referred under rule 1A, the parties shall appear before such forum or
authority for conciliation of the suit. ]
COMMENT.—
2002).—
Modifications.—This new rule has been inserted by the amendment.
1. New rule 1B has been inserted after rule 1A in O X.
2. The insertion of this rule is consequential to the insertion of section 89 making it

obligatory upon the Court to refer the suit for settlement by way of Arbitration,
Conciliation, Judicial Settlement including settlement through Lok Adalat or
Mediation.
Notes on Clauses.—Notes on Clauses of the Code of Civil procedure (Amendment) Bill,

1999 stated thus:-
Order X is proposed to be amended by inserting Rules 1A, 1B and 1C in the said order.
Bill. [Clause 20]
Comments on the Amendment Act, 1999.—For comments see O X, R. 1A, ante.
Scope.—
This rule is new inserted by the Code of Civil Procedure (Amendment) Act, 1999 (Act
46 of 1999). Order X has been amended by inserting rules 1A, 1B and 1C in the said
order. This amendment is consequential to the insertion of new section 89.As provided
by the rule where a suit is referred under rule 1A, the parties shall ORE THappear before
such forum or authority for conciliation of the suit.
7 Rules 1A, 1B and 1C ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
section 20 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1C. Appearance before the
Court consequent to the failure of efforts of conciliation
© 2020 LexisNexis
THE FIRST SCHEDULE
8[R. 1C.
Appearance before the Court consequent to the failure of efforts of
conciliation
Where a suit is referred under rule 1A and the presiding officer of conciliation forum or
authority is satisfied that it would not be proper in the interest of justice to proceed with
the matter further, then, it shall refer the matter again to the Court and direct the parties
to appear before the Court on the date fixed by it. ]
COMMENT.—
2002).—
Modifications.—The Amendment has inserted this new Rule.
1. New rule 1C has been inserted after rule 1 in O X.
2. The insertion of this rule is consequential to the insertion of sub-section (1) of

section 89 making it obligatory upon the Court to refer the dispute for settlement
by way of Arbitration, Conciliation, Judicial Settlement including settlement
through Lok Adalat or Mediation.
3. The Presiding Officer of the Conciliation forum or authority if satisfied that it

would not be proper in the interest of justice to proceed with the matter, he may
refer the matter again to the Court and direct the parties to appear before the
Court on the date fixed by him.

1999 stated thus:-
Order X is proposed to be amended by inserting rules 1A, 1B and 1C in the said order.
Bill. [Clause 20]
For comments see O X, rule 1A, ante.

Scope.—
This rule is new inserted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999). Order X has been amended by inserting rules 1A, 1B and 1C in the said order.
This new rule is consequential to the insertion of new section 89. As laid down by the
rule where a suit is referred under rule 1A and the presiding officer of conciliation forum
or authority is satisfied that it would not be proper in the interest of justice to proceed
with the matter further, then, it shall refer the matter again to the Court and direct the
parties to appear before the Court on the date fixed by it.
8 Rules 1A, 1B and 1C ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Oral examination of
party, or companion of party
© 2020 LexisNexis
THE FIRST SCHEDULE
9[R. 2.
Oral examination of party, or companion of party
(1) At the first hearing of the suit, the Court—
(a) shall, with a view to elucidating matters in controversy in the suit,

examine orally such of the parties to the suit appearing in person or
present in Court, as it deems fit; and
(b) may orally examine any person, able to answer any material question
relating to the suit, by whom any party appearing in person or present in
Court or his pleader is accompanied.
(2) At any subsequent hearing, the Court may orally examine any party appearing
in person or present in Court, or any person, able to answer any material
question relating to the suit, by whom such party or his pleader is
accompanied.
(3) The Court may, if it thinks fit, put in the course of an examination under this
rule questions suggested by either party.]
COMMENT.—
The object of the examination under this rule is to ascertain the matters in dispute and
not to take evidence or to ascertain what is to be the evidence in the case.
The interveners are not entitled to address oral submissions to the Court. However,
keeping the back ground of the case in view, full opportunity was given to the
intervener.10
Distinction between rules 1 and 2.—
Rule 1 relates to allegations made in the pleadings, whereas there is no such limit in
rule 2. The examination may be as to any material question. Then rule 1 provides for
the examination of the party or his pleader, whereas rule 2 provides for the examination
of any person by whom the party or his pleader is accompanied. Lastly, the statement
under rule 1 by the party or his pleader is conclusive against the party, whereas the
statement made under rule 2 by the companion of the party is not conclusive against
the party.
Rule 2 has been substituted to make it obligatory on the part of the Court to examine
the party appearing in person or present in Court for elucidating the matters in
controversy.
Examination of party.—
The object of oral examination under rule 2 of O X of the Code is to ascertain the
matter in controversy in suit, and not to record evidence or to secure admission. The
statement made by the party in an examination under rule 2 is not under oath and is
not intended to be a substitute for a regular examination under oath under O XVIII of
the Code. The power under rule 2 of O X of the Code cannot be converted into a
process of selective cross examination b& the court before the party has an
opportunity to put forth his case at the trial.11
1-2-1977).
10 Collector (DM) Allahabad v Raja Ram Jaiswal, AIR 1985 SC 1622 (1630) : (1985) 3 SCC 1 :
1985 ALJ 887 .
11 Kapil Corepacks Pvt Ltd v Harbans Lal, AIR 2010 SC 2809 : (2010) 8 MLJ 1087 (SC); see also
Gautam Adani Container Corpn of India, AIR 2009 (NOC) 68 (Del).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Substance of
examination to be written
© 2020 LexisNexis
THE FIRST SCHEDULE
12[R. 3.
Substance of examination to be written
The substance of the examination shall be reduced to writing by the Judge, and shall
form part of the record.]
COMMENT.—
Reference may be made to O XLIX, rule 3, Code of Civil Procedure.
12 This rule is not applicable to the Chief Court of Oudh, see the Oudh Court Act, 1925 (U.P. 4 of
1925), Section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Consequence of refusal
or inability of pleader to answer
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Consequence of refusal or inability of pleader to answer
(1) Where the pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to
answer any material question relating to the suit which the Court is of opinion
that the party whom he represents ought to answer and is likely to be able to
answer if interrogated in person, the Court 13[ may postpone the hearing of the
suit to a day not later than seven days from the date of first hearing ] and direct
that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so
appointed, the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit.
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In rule 4, sub-rule (1), for the words "may postpone the hearing of the suit to a future
day", the words "may postpone the hearing of the suit to a day not later than seven days
from the date of first hearing" shall be substituted. Under the unamended rule the Court
could adjourn the hearing of the case to a future date. Now the power of the Court to
postpone the hearing of the case to a future date has been hedged with the limitation
namely, the adjournment can be granted for a period of seven days. The obvious
purpose of the amendment is to expedite the hearing of the cases.
Modifications.—This rule has been amended for introducing the following

modifications:
1. In sub-rule 1 of rule 4, O X, the words "may postpone the hearing of the suit to a
day not later than seven days from the date of first hearing" have been
substituted for the words "may postpone the hearing of the suit to a future day".
2. Now the time limit has been fixed as seven days from the date of first hearing.
Formerly no such time limit was prescribed.
Notes on Clauses.—There is no reference to Notes on Clauses for the rule 4(1) of O X in

the Code of Civil Procedure (Amendment) Bill, 1999.
Time for answering material question.—
Rule 4 of O X has been amended by section 20(ii) of Amendment Act, 1999 w.e.f. a date
to be notified by the Central Government. Under the amended provision if any party to
the suit refuses or is unable to answer any material question, the Court may postpone
the hearing to a day not later than seven days from the date of first hearing. Formerly
no such time limit was prescribed.
Now rule 4(1) states that the hearing cannot be adjourned beyond a period of seven
days from the date of the first hearing.

The intention of the rule is to enable the Court not only to get obscure points cleared up
by obtaining information from either of the parties, but also, if possible, to get
admission so as to narrow down the issue.
The provision under O X is an enabling provision providing that the Court at the first
hearing of the suit shall ascertain from each party about their pleadings. It does not in
any manner place any bar on the powers of the Court to seek clarification from any
party in an appropriate case, at any date earlier than one fixed for framing of issues so
as to advance the interest of justice. It would not be in violation of O X Code of Civil
Procedure or in conflict thereof.14
This rule is a penal provision and before the Courts can apply it, its terms have to be
strictly complied with. Under this rule, an order directing a party to appear in person can
only be made if the pleader who represents him has refused or is unable to answer
material questions.
13 Subs. for "may postpone the hearing of the suit to a future day" by the CPC (Amendment)
Act, 1999 (46 of 1999), section 20 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
14 Vikas Agrawal v Anubha, AIR 2002 SC 1796 (1800) : (2002) 4 SCC 468 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Discovery by
interrogatories
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XI 1Discovery and Inspection
R. 1.
Discovery by interrogatories
In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories
in writing for the examination of the opposite parties or any one or more of such
parties, and such interrogatories when delivered shall have a note at the foot thereof
stating which of such interrogatories each of such persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same
party without an order for that purpose:
Provided also that interrogatories which do not relate to any matters in question in the
suit shall be deemed irrelevant; notwithstanding that they might be admissible on the
oral cross-examination of a witness.
COMMENT.—
The object of the interrogatories is to save expense by enabling a party to obtain from
his opponent information as to facts material to the questions in dispute between them
and to obtain admission of any facts which he has to prove on any issue which is
raised between them. As a general rule, interrogatories will be allowed whenever the
answer to them will serve either to maintain the case of the party administering them
or to destroy the case of the opponent.
The proceedings referred to in section 141 of the Code include all "miscellaneous
applications" and is not restricted only to original proceedings. The provisions of the
Code are applicable as far as possible to all proceedings and for that purpose
application under O XI, rule 1 cannot be an exception.2
Order XI of the Code of Civil Procedure contains certain provisions with the object to
save expense by obtaining information as to material facts and to obtain admission of
any facts which he has to prove on any issue. Therefore, a party has a right to submit
interrogatories relating to the same matter in issue. The expression "matter" means a
question or issue in dispute in the action and not the thing about which such dispute
arises. The object of introducing such provision is to secure all material documents
and to put an end to protracted enquiry with respect to document/material in
possession of the other party. In such a fact situation, no adverse inference can be
drawn against a party for non-production of a document, unless notice is served and
procedure is followed.3
Distinction between interrogatories and pleadings.—

Interrogatories are not, like pleadings, confined to the material facts on which the
parties intend to rely. A party is entitled to interrogate his opponent with a view to
ascertain what case he has to meet, and the facts relied on and to limit the generality
of the pleadings and find out what is really in issue.
Distinction between interrogatories and cross-examination.—
Not every question which could be asked to a witness in the box may be put as an
interrogatory. Thus, questions which are put only to test the credibility of a person will
not be allowed, although of course they may be asked in cross-examination. Secondly,
interrogatories can be administered only to a party to a suit, and not to a witness.
Relevant question.—
The questions that may be relevant during cross-examination are not necessarily
relevant as interrogatories. The questions that are relevant as interrogatories are those
relating to "any matter in question". The interrogatories served must have reasonably
close connection with "matters in question."4
Application seeking delivery of interrogatories for the second time.—
As per the first proviso to O XI, rule 1, a party shall not deliver more than one set of
interrogatories to the same party without an order of the Court for that purpose.
Apparently, therefore, while delivering the interrogatories, leave of the Court is required.
Proviso places restriction on delivering more than one set of interrogatories to the
same party. However, legislation did not stop there but further clause "without an order
for that purpose" is added. If the Legislature intended to restrict the delivery of
interrogatories to one set to the same party, then it would not have mentioned the
entailing clause in the proviso that is "without an order for that purpose." Hence, by
assuring fair play, permission can be granted to deliver interrogatories for the second
time with the leave of the Court for justifiable reasons.5
2 Adarsh Palace Pvt Ltd v Somanath Dwibedi, AIR 2010 (NOC) 490 (DB) : (2009) 108 Cut LT 74
(77) : 2010 AIHC (NOC) 676 (Ori-DB).
4 Raj Narain v Indira Nehru Gandhi, AIR 1972 SC 1302 (1309) : (1972) 3 SCC 850 : (1972) 3 SCR
841 .
5 Kishorilal Babulal v Ramlal Ganesh Prasad Tiwari, AIR 2014 Bom 19 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Particular interrogatories
to be submitted
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Particular interrogatories to be submitted
On an application for leave to deliver interrogatories, the particular interrogatories

proposed to be delivered shall be submitted to the Court 6[ and that Court shall decide
within seven days from the day of filing of the said application ]. In deciding upon such
application, the Court shall take into account any offer, which may be made by the
party sought to be interrogated to deliver particulars, or to make admissions, or to
produce documents relating to the matters in question, or any of them, land leave
shall be given as to such only of the interrogatories submitted as the Court shall
consider necessary either for disposing fairly of the suit or for saving costs.
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In the First Schedule, in O XI, rule 2, after the words "submitted to the Court", the words
"and that Court shall decide within seven days from the day of filing of the said
application", shall be inserted. The amended rule lays down a time limit of seven days
within which the Court has to decide on an application for delivery of interrogatories.

1999 stated thus:
Rules 2 and 15 of Order XI are proposed to be amended by fixing time limit to decide an
application for leave to deliver interrogatories and to provide that an application for
inspection of documents by the parties can be made only before the settlement of issues.
[Clause 21]

(n) (of the repeal and savings section) stipulates that the provisions of rules 2 and 15
of O XI of the First Schedule, as amended by section 21 of this Amendment Act, 1999,
shall not apply to or affect any order passed by the Court or any application submitted
for inspection to the Court before the commencement of section 21 of this Act, of
1999.
Time-limit for delivery of interrogatories.—The amended rule 2 lays down a time limit of
seven days within which the Court has to decide on an application for delivery of
interrogatories.
The main object of this rule is to save time and expense in the disposal of suits before
a trial Court. It is, in effect, a healthy device to narrow the scope of controversy
between the parties and to eliminate the points of dispute as far as 3C possible and to
expedite the cause of justice.
6 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide
Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Costs of interrogatories
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Costs of interrogatories
In adjusting the costs of the suit inquiry shall at the instance of any party be made
into the propriety of exhibiting such interrogatories, and if it is the opinion of the
taxing officer or of the Court, either with or without an application for inquiry, that
such interrogatories have been exhibited unreasonably, vexatiously, or at improper
length, the costs occasioned by the said interrogatories and the answers thereto shall
be paid in any event by the party in fault.
[See former RSC Order XXXI, rule 3]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Form of interrogatories
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Form of interrogatories
Interrogatories shall be in Form No. 2 in Appendix C, with such variations as

circumstances may require.
[See former RSC Order XXXI, rule 4]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Corporations
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Corporations
Where any party to a suit is a corporation or a body of persons, whether incorporated

or not, empowered by law to sue or be sued, whether in its own name or in the name
of any officer or other person, any opposite party may apply for an order allowing him
to deliver interrogatories to any member or officer of such corporation or body, and an
order may be made accordingly.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Objections to
interrogatories by answer
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Objections to interrogatories by answer
Any objection to answering any interrogatory on the ground that it is scandalous or

irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters
inquired into are not sufficiently material at that stage, 7[ or on the ground of privilege,
or any other ground], may be taken in the affidavit in answer.
COMMENT.—
This rule has now been amended to provide for objections being raised on the ground
of privilege.
Rule 6 enables the party interrogated to file his objections and indicate the grounds of
objection which he might take. The party taking such objections is entitled to have it
adjudicated upon by the Court and a clear and specific order passed directing him to
answer such of the interrogatories as the Court holds to be relevant.
Scandalous interrogatories.—
Interrogatories which tend to incriminate a party are not scandalous if they are relevant.
Nothing can be scandalous which is relevant.
Irrelevant interrogatories.—
The discovery by interrogatories as distinguished from cross-examination must be

directly relevant to the matter in issue. Interrogatories asking plaintiff whether similar
charges as that made in the suit had not been against him previously in a newspaper,
and whether he had contradicted them or taken any notice of them on that occasion,
are clearly irrelevant.
Fishing interrogatories.—
The question asked must not be "fishing" which means that they must refer to some
definite and existing state of circumstances and must not be put merely in hope of
discovering some flaw in the opponent's case.
7 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 61(ii), for certain
words (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Setting aside and
striking out interrogatories
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Setting aside and striking out interrogatories
Any interrogatories may be set aside on the ground that they have been exhibited
unreasonably or vexatiously, or struck out on the ground that they are prolix,
oppressive, unnecessary or scandalous; and any application for this purpose may be
made within seven days after service of the interrogatories.
COMMENT.—
The present rule does not apply where the interrogatories are merely irrelevant. An
objection that an interrogatory is irrelevant must be taken in the affidavit in answer and
is no ground for setting aside the interrogatory under this rule.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Affidavit in answer, filing
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Affidavit in answer, filing
Interrogatories shall be answered by affidavit to be filed within ten days, or within

such other time as the Court may allow.
[See former RSC Order XXXI, rule 8. Ordinarily time runs from date of service.]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Form of affidavit in
answer
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Form of affidavit in answer
An affidavit in answer to interrogatories shall be in Form No. 3 in Appendix C, with

such variations as circumstances may require.
[See former RSC Order XXXI, rule 9.]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. No exception to be
taken
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
No exception to be taken
No exceptions shall be taken to any affidavit in answer, but the sufficiency or

otherwise of any such affidavit objected to as insufficient shall be determined by the
Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Order to answer or
answer further
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Order to answer or answer further
Where any person interrogated omits to answer, or answers insufficiently, the party
interrogating may apply to the Court for an order requiring him to answer, or to answer
further, as the case may be. And an order may be made requiring him to answer or
answer further, either by affidavit or by viva voce examination, as the Court may
direct.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Application for
discovery of documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Application for discovery of documents
Any party may, without filing any affidavit, apply to the Court for an order directing any
other party to any suit to make discovery on oath of the documents which are or have
been in his possession or power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or adjourn the same, if
satisfied that such discovery is not necessary, or not necessary at that stage of the
suit, or make such order, either generally or limited to certain classes of documents,
as may, in its discretion, be thought fit:
Provided that discovery shall not be ordered when and so far as the Court shall be of
opinion that it is not necessary either for disposing fairly of the suit or for saving
costs.
COMMENT.—
In a suit for enforcement of security by bank the defendants can raise the question of
jurisdiction on the ground that mortgage was fictitious. But an application by the
defendant for summoning departmental proceedings pending against bank employees
for creation of mortgage is not maintainable.8
Documents sought to be discovered.—
The documents sought to be discovered need not be admissible in evidence in the

enquiry or proceedings. It is sufficient if the document would be relevant for the
purpose of throwing light on the matter in controversy.9
It is not incumbent upon applicant to file affidavit along with application for discovery
of documents. Also, there is no need to specify document sought to be produced. Every
document throwing light on the case is relevant though inadmissible.10
8 Central Bank of India v Shivam Udyog, AIR 1995 SC 711 : (1995) 2 SCC 74 : 1995 ALJ 360 .
9 ML Sethi v RP Kapur, AIR 1972 SC 2379 (2383) : (1972) 2 SCC 427 .
10 Narendra Gole v Ram Krishna Sharma, AIR 2011 (NOC) 229 (MP-DB); WP No 5857 of 2010, dt
13 October 2010.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Affidavit of documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Affidavit of documents
The affidavit to be made by a party against whom such order as is mentioned in the
last preceding rule has been made, shall specify which (if any) of the documents
therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C,
with such variations as circumstances may require.
COMMENT.—
Rules 12 and 13 deal with the discovery of documents. They enable a party to apply to
the Court for the purpose of compelling his opponent to disclose the documents he
has in his possession or power. This procedure has a two-fold object—(i) to secure, as
far as possible, that all material documents are disclosed by putting the opposite party
on oath as to the documents in his possession or power with the consequent penalties
attaching to a false oath and (ii) to put an end to what might otherwise lead to a
protected inquiry as to the material documents actually in the possession or under the
control of the opposite party.11
It has been held that procedure of discovery is permissible in election petitions under
the Representation of People Act.12
Effect of non-disclosure.—
When no application is made under rule 13, a party is not bound to produce any
document. He is entitled to refrain from producing any document which he considers
irrelevant and no adverse presumption can be drawn against the party from its non-
production except where from the nature and circumstances of the case, it is an
imperative duty on his part to produce them.
It is always open to a litigant to refrain from producing any document that he considers
irrelevant. If the other litigant is dissatisfied it is for him to apply for affidavit of
documents.
Application for production of documents cannot be rejected on the ground that earlier
leave for production of document had been sought and was granted by the Supreme
Court.13
When there are several plaintiffs or several defendants, all must join in making the
affidavit of documents unless some specific reasons to the contrary are shown.
11 Lajpat Rai v Tej Bhan, AIR 1957 Punj 14 .
12 AIR 1957 Punj 14 (supra).
13 State of Assam v UOI, AIR 2018 SC 3446 : 2018 (9) SCALE 54 : 2018 (10) SCJ 617 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Production of
documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Production of documents
It shall be lawful for the Court, at any time during the pendency of any suit, to order
the production by any party thereto, upon oath, of such of the documents in his
possession or power, relating to any matter in question in such suit, as the Court shall
think right; and the Court may deal with such documents, when produced, in such
manner as shall appear just.
COMMENT.—
The discovery of documents is clearly distinguished from production of documents.

The rule as to discovery of documents is quite contrary to that of the production of
documents. An order for production can only be made after an order for discovery has
been made under rule 12(4).
Under this rule the Court acts of its own motion and not on the application of any party.
Where the documents are produced in obedience to the order of the Court, the Court
can deal with them in such manner as appears to it to be just. However, where a party
fails to produce documents under this rule, the Court would be entitled to raise an
adverse presumption against that party on account of the non-production of such
document.
Summoning the documents in possession of party to election petition.—
In view of O XI, rule 14 of the Code the Court is clearly empowered and it shall be lawful
for it to order the production, by any party to the suit, of such documents in his
possession or power as relate to any matter in question in the suit. It is when the Court
shall think right that the production of documents is necessary to decide the matter in
question. The Court is also empowered to deal the documents when produced in such
manner as shall appear just. Therefore, the power to order production of documents is
coupled with discretion to examine, justness and the relevancy of the documents to the
matter in question. These are relevant considerations which the Court shall have to
advert to and weigh before deciding to summoning the documents in the possession
of the party to election petition.14
14 Basanagouda v SB Ambarkhed, AIR 1992 SC 1163 (1166, 1168) : (1992) 2 SCC 612 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Inspection of
documents referred to in pleadings or affidavits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Inspection of documents referred to in pleadings or affidavits
Every party to a suit shall be entitled 15[ at or before the settlement of issues ] to give
notice to any other party, in whose pleadings or affidavits reference is made to any
document, 16[ or who has entered any document in any list annexed to his pleading ], to
produce such document for the inspection of the party giving such notice, or of his
pleader, and to permit him or them to take copies thereof; and any party not
complying with such notice shall not afterwards be at liberty to put any such
document in evidence on his behalf in such suit unless he shall satisfy the Court that
such document relates only to his own title, he being a defendant to the suit, or that
he had some other cause or excuse which the Court shall deem sufficient for not
complying with such notice, in which case the Court may allow the same to be put in
evidence on such terms as to costs and otherwise as the Court shall think fit.
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In the First Sch, in O XI rule 15, for the words "at any time", the words "at or before the
settlement of issues" shall be substituted. Before the amendment of the rule an
application for inspection of documents by the parties could be made at any time. Now
after the amendment it can be made only at or before the settlement of issue..

1999 stated thus:-
Rules 2 and 15 of Order XI are proposed to be amended by fixing time limit to decide an
application for leave to deliver interrogatories and to provide that an application for
inspection of documents by the parties can be made only at or before the settlement of
issues. [Clause 21]

(n) (of the repeal and savings section) stipulates that the provisions of rules 2 and 15
of O XI of the First Sch, as amended by section 21 of this Amendment Act, 1999, shall
not apply to or affect any order passed by the Court or any application submitted for
inspection to the Court before the commencement of section 21 of this Act of 1999.
Inspection of documents to be before settlement of issues.—
Before its amendment, under rule 15, an application for inspection of documents by the
parties could be made "at any time".
Consequent to the change made in rule 15, a notice by a party to a suit to another party
for inspection of documents cannot be given nor inspection made after the settlement
of issues.
There existed two views about the "documents referred to in pleadings or affidavits".
One view was that the rule did not apply to such documents, as they were documents
to which a reference was made in the pleadings. The other view was that the list was a
part of the plaint for the purpose of this rule. Now the position has been made clear by
adding the words "or who has entered any document in any list annexed to his
pleadings" in the rule.
Inspection of documents in election petition.—
In an election petition inspection of the documents which are referred to in the

pleadings or in the affidavit of documents of the other party may be ordered under rule
15.17
No order for production and inspection of ballot papers can be made under
Rule 15.—
The returning officer is not a party to an election petition and an order for production of
the ballot papers cannot be made under O XI rule 15. The tribunal may, however, call
upon the returning officer to produce the ballot papers and may permit inspection by
the parties before it in accordance with the power implicit in sections 100(1)(d)(iii),
101, 102 and rule 93 of the conduct of Election rules, 1961. It must be kept in mind that
this power is quite apart from O XI rule 15 of the Code.18
Inspection of documents after settlement of issues can be allowed. Rule 15 as

amended is directory.19
15 Subs. for 'at any time' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)
16 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 61(ii) (w.e.f. 1-2-
1977).
17 Ramsewak v Hussain, AIR 1964 SC 1249 (1251) : (1964) 6 SCR 238 : 26 ELR 14 : 1964 ALJ
569 .
18 TA Ahmad Kabeer v AA Azeez, AIR 2003 SC 2271 (2280) : (2003) 5 SCC 650 : (2003) 2 KLT
472 ; see also Ram Sewak Yadav v HK Kidwai, AIR 1964 SC 1249 : (1964) 6 SCR 238 : 26 ELR 14.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Notice to produce
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Notice to produce
Notice to any party to produce any documents referred to in his pleading or affidavits
shall be in Form No. 7 in Appendix C, with such variations as circumstances may
require.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Time for inspection
when notice given
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Time for inspection when notice given
The party to whom such notice is given shall, within ten days from the receipt of such
notice, deliver to the party giving the same a notice stating a time within three days
from the delivery thereof at which the documents, or such of them as he does not
object to produce, may be inspected at the office of his pleader, or in the case of
bankers' books or other books of account or books in constant use for the purposes
of any trade or business, at their usual place of custody, and stating which (if any) of
the documents he objects to produce, and on what ground. Such notice shall be in
Form No. 8 in Appendix C, with such variations as circumstances may require.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Order for inspection
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Order for inspection
(1) Where the party served with notice under r 15 omits to give such notice of a
time for inspection or objects to give inspection, or offers inspection
elsewhere than at the office of his pleader, the Court may, on the application of
the party desiring it, make an order for inspection in such place and in such
manner as it may think fit:
Provided that the order shall not be made when and so far as the Court shall be
of opinion that it is not necessary either for disposing fairly of the suit or for
saving costs.
(2) Any application to inspect documents, except such as are referred to in the
pleadings, particulars or affidavits of the party against whom the application is
made or disclosed in his affidavit of documents, shall be founded upon an
affidavit showing of what documents inspection is sought, that the party
applying is entitled to inspect them, and that they are in the possession or
power of the other party. The Court shall not make such order for inspection of
such documents when and so far as the Court shall be of opinion that it is not
necessary either for disposing fairly of the suit or for saving costs.
COMMENT.—
Rules 15 to 18 of this order deal with the inspection of documents.
For the purposes of inspection, the documents may be divided into two categories—
(1) documents referred to in the pleadings or affidavits of the parties; and
(2) other documents in the possession or power of the party but not so referred to.
Regarding the first category, rule 15 lays down that a party may without the intervention
of the Court, give notice in the form laid down under rule 16 to the party in whose
pleadings they are referred to, to produce such documents for his inspection. Rule 17
provides that the party to whom such notice is given, should within ten days from the
receipt of such notice, give notice to the party claiming such inspection stating his
objections, if any, to the production of any of the documents. Then rule 18 lays down
that if he fails to do so in the manner required by section 17, the other party may apply
to the Court for an order for such inspection and the Court should grant such
inspection unless the documents are privileged in law or relate exclusively to the case
of the party producing them and contain nothing supporting or tending to support the
opponent's case.
Regarding second category of documents, the party desiring the inspection can only
proceed by way of an application to the Court along with an affidavit showing the
relevancy of the documents.
The Supreme Court has held in Ram Sewak Yadav v Hussain Kamil Kidwai20 that
"inspection of documents under O II of the Code may be ordered under rule 15 of
documents which are referred to in the pleadings or particulars as disclosed in the
affidavit of documents of the other party and under rule 18(2) of other documents in
the possession or power of the other party".
It was further held that the rule applies to a notice to a party to the suit to produce
documents. A person not a party cannot be ordered to produce documents under this
rule.
The law on the subject has been summed up by the Madras High Court in
Ramachandrayya v Buchayya, AIR 1961 SC 493 as follows:-
If two conditions are satisfied, discovery may precede particulars. Firstly, where the
information required is necessary within the opponent's knowledge; secondly, the Court is
satisfied that no unfair attempt to fish out a case is being made.
20 State of Orissa v Binode Kishore Mohapatra, AIR 1969 SC 1249 : (1969) 2 SCC 149 : (1969) 35
Cut LT 911 : 1969 Lab IC 1520 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Verified copies
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 19.
Verified copies
(1) Where inspection of any business books is applied for, the Court may, if it
thinks fit, instead of ordering inspection of the original books, order a copy of
any entries therein to be furnished and verified by the affidavit of some person
who has examined the copy with the original entries, and such affidavit shall
state whether or not there are in the original book any and what erasures,
interlineations or alterations:
Provided that , notwithstanding that such copy has been supplied, the Court
may order inspection of the book from which the copy was made.
(2) Where on an application for an order for inspection privilege is claimed for any
document, it shall be lawful for the Court to inspect the document for the
purpose of deciding as to the validity of the claim of privilege, 21[ unless the
document relates to matters of State ].
(3) The Court may, on the application of any party to a suit at any time, and
whether an affidavit of documents shall or shall not have already been ordered
or made, make an order requiring any other party to state by affidavit whether
any one or more specific documents, to be specified in the application, is or
are, or has or have at any time been, in his possession or power; and, if not
then in his possession, when he parted with the same and what has become
thereof. Such application shall be made on an affidavit stating that in the belief
of the deponent the party against whom the application is made has, or has at
some time had, in his possession or power the document or documents
specified in the application, and that they relate to the matters in question in
the suit, or to some of them.
COMMENT.—
Sub-rule (2) of this rule gives the Court power to inspect any document for which
privilege is claimed so as to decide whether the claim is justified, the object being that
such claims ought to be decided at once in proper cases. But that power of the Court
has to be read subject to the limitation contained in section 162 of the Evidence Act.
Section 162 of the Evidence Act enacts a prohibition against the Court inspecting a
document, where it refers to matters of State. Under this sub-rule, when the privilege is
claimed in respect of a document, the Court has the power to inspect the same for the
purpose of deciding whether the claim is valid.
There was a conflict of decisions with regard to the fact whether this sub-rule overrides
section 162 of the Evidence Act. The conflict has now been settled by the decision of
Supreme Court in State of Punjab v Sodhi Sukhdev Singh,22 where it was held that when
privilege is claimed under Section 123 of the Evidence Act, the power of the Court is
limited to making an enquiry as to whether the document is of the kind mentioned in
that section and that when once it is determined that it falls within that section, the
decision, whether it should be produced in Court vests solely with the public authority,
and that the Court cannot go behind that decision. The enquiry under the decision is
limited to the question whether the document relates to affairs of State.
Sub-rule (2) has accordingly been amended in view of the Supreme Court decision
mentioned above.
22 See Paradise Industrial Corpn v Kiln Plastic Products, AIR 1976 SC 309 : (1976) 1 SCC 91 (93)
: (1976) 2 SCR 32 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Premature discovery
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Premature discovery
Where the party from whom discovery of any kind or inspection is sought objects to
the same, or any part thereof, the Court may if satisfied that the right to the discovery
or inspection sought depends on the determination of any issue or question in dispute
in the suit, or that for any other reason it is desirable that any issue or question in
dispute in the suit should be determined before deciding upon the right to the
discovery or inspection, order that such issue or question be determined first, and
reserve the question as to the discovery or inspection.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. Non-compliance with
order for discovery
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 21.
Non-compliance with order for discovery
23
[(1) Where any party fails to comply with any order to answer interrogatories, or
for discovery or inspection of documents, he shall, if a plaintiff, be liable to
have his suit dismissed or want of prosecution, and, if a defendant, to have
his defence, if any, struck out, and to be placed in the same position as if he
had not defended, and the party interrogating or seeking discovery or
inspection may apply to the Court for an order to that effect and 24[an order
may be made on such application accordingly], after notice to the parties
and after giving them a reasonable opportunity of being heard.]
25
[(2) Where an order is made under sub-rule (1) dismissing any suit, the
plaintiff'shall be precluded from bringing a fresh suit on the same cause of
action.]
COMMENT.—
Rule 21 was amended by the Amending Act of 1976, in order to provide for passing of
the order after giving notice to the plaintiff or defendant as the case may be and after
giving him a reasonable opportunity of being heard.
The sine qua non for exercising the power order rule 21 is failure to answer the
interrogatories, order of discovery or inspection of documents. The suit cannot be
dismissed under O XI rule 21 for non-compliance of rule 14 which is with respect to
production of documents.26
The sub-rule (2) to this rule was added in order to provide that a fresh suit would be
barred when a suit is dismissed under rule 21.
An order under O XI rule 21 striking off the defence should not be passed unless the
defendant has been obstinate or has made a wilful attempt to disregard the order of
the Court for the production of documents.27
Reference may be made to Paradise Industrial Crop v Kiln Plastic Products, AIR 1976 SC
309 : (1976) 1 SCC 91 (93) a case decided by the Supreme Court.
Rejection of entire plaint in suit for arrears of rent.—
Where a suit for arrears of the rent was partly contested and the rate of rent claimed
was not accepted but a lower rate was accepted. The suit could not be dismissed in its
entirety under O XI rule 21 when the plaintiff did not appear. It should have been
decreed at the conceded rate. The bar of limitation also would not come in the way of
partially decreeing suit.28
23 Rule 21 renumbered as sub-rule (1) by the Code of Civil Procedure (Amendment) Act 104 of
1976, Section 61, (w.e.f. 1-2-1977).
24 Subs. by Code of civil Procedure (Amendment) Act 104 of 1976, section 61, for "an order
may be made accordingly" (w.e.f. 1-2-1977).
26 Archdiocese of Bhopal v Hasan Kabir, 2009 (4) MP IIJ 530 (533, 535) (DB).
27 Babbar Sewing Machine Co v Trilok Nath Mahajan, AIR 1978 SC 1436 : (1978) 4 SCC 188 .
28 Calcutta Port Trust v Shalimar, AIR 1991 SC 684 : 1991 Supp (2) SCC 513 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 22. Using answers to
interrogatories at trial
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 22.
Using answers to interrogatories at trial
Any party may, at the trial of a suit, use in evidence any one or more of the answers or
any part of an answer of the opposite party to interrogatories without putting in the
others or the whole of such answer:
Provided always that in such case the Court may look at the whole of the answers, and
if it shall be of opinion that any others of them are so connected with those put in that
the last-mentioned answers ought not to be used without them, it may direct them to
be put in.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 23. Order to apply to
minors
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 23.
Order to apply to minors
This Order shall apply to minor plaintiffs and defendants, and to the next friends and
guardians for the suit of persons under disability.
[See former RSC Order XXXI rule 29.]
Amendment of First Schedule.—In the First Schedule to the Code, for Order XI of the
Code, the following Order shall be substituted, namely:—
"ORDER XI
DISCLOSURE, DISCOVERY AND INSPECTION OF DOCUMENTS IN SUITS BEFORE THE

COMMERCIAL DIVISION OFA HIGH COURT OR A COMMERCIAL COURT
1. Disclosure and discovery of documents.—(1) plaintiff'shall file a list of all documents

and photocopies of all documents, in its power, possession, control or custody,
pertaining to the suit, along with the plaint, including:—
(a) documents referred to and relied on by the plaintiff in the plaint;
(b) documents relating to any matter in question in the proceedings, in the power,
possession, control or custody of the plaintiff, as on the date of filing the plaint,
irrespective of whether the same is in support of or adverse to the plaintiff's
case;
(c) nothing in this rule shall apply to documents produced by plaintiffs and relevant
only—
(i) for the cross-examination of the defendant's witnesses, or
(ii) in answer to any case set-up by the defendant subsequent to the filing of
the plaint, or
(iii) handed over to a witness merely to refresh his memory.
(2) The list of documents filed with the plaint shall specify whether the documents in
the power, possession, control or custody of the plaintiff are originals, office copies or
photocopies and the list shall also set out in brief, details of parties to each document,
mode of execution, issuance or receipt and line of custody of each document.
(3) The plaint shall contain a declaration on oath from the plaintiff that all documents
in the power, possession, control or custody of the plaintiff, pertaining to the facts and
circumstances of the proceedings initiated by him have been disclosed and copies
thereof annexed with the plaint, and that the plaintiff does not have any other
documents in its power, possession, control or custody.
Explanation.—A declaration on oath under this sub-rule shall be contained in the
Statement of Truth as set out in the Appendix.
(4) In case of urgent filings, the plaintiff may seek leave to rely on additional
documents, as part of the above declaration on oath and subject to grant of such leave
by Court, the plaintiff'shall file such additional documents in Court, within thirty days of
filing the suit, along with a declaration on oath that the plaintiff has produced all
documents in its power, possession, control or custody, pertaining to the facts and
circumstances of the proceedings initiated by the plaintiff and that the plaintiff does
not have any other documents, in its power, possession, control or custody.
(5) The plaintiff'shall not be allowed to rely on documents, which were in the plaintiff's
power, possession, control or custody and not disclosed along with plaint or within the
extended period set out above, save and except by leave of Court and such leave shall
be granted only upon the plaintiff establishing reasonable cause for non-disclosure
along with the plaint.
(6) The plaint shall set out details of documents, which the plaintiff believes to be in the
power, possession, control or custody of the defendant and which the plaintiff wishes
to rely upon and seek leave for production thereof by the said defendant.
(7) Defendant shall file a list of all documents and photocopies of all documents, in its
power, possession, control or custody, pertaining to the suit, along with the written
statement or with its counterclaim if any, including—
(a) the documents referred to and relied on by the defendant in the written
statement;
(b) the documents relating to any matter in question in the proceeding in the power,
possession, control or custody of the defendant, irrespective of whether the
same is in support of or adverse to the defendant's defence;
(c) nothing in this rule shall apply to documents produced by the defendants and
relevant only—
(i) for the cross-examination of the plaintiff's witnesses,
(ii) in answer to any case set-up by the plaintiff'subsequent to the filing of the
plaint, or
(iii) handed over to a witness merely to refresh his memory.
(8) The list of documents filed with the written statement or counterclaim shall specify
whether the documents, in the power, possession, control or custody of the defendant,
are originals, office copies or photocopies and the list shall also set out in brief, details
of parties to each document being produced by the defendant, mode of execution,
issuance or receipt and line of custody of each document.
(9) The written statement or counterclaim shall contain a declaration on oath made by
the deponent that all documents in the power, possession, control or custody of the
defendant, save and except for those set out in sub-rule 7(c)(iii) pertaining to the facts
and circumstances of the proceedings initiated by the plaintiff or in the counterclaim,
have been disclosed and copies thereof annexed with the written statement or
counterclaim and that the defendant does not have in its power, possession, control or
custody, any other documents.
(10) Save and except for sub-rule 7(c)(iii), defendant shall not be allowed to rely on
documents, which were in the defendant's power, possession, control or custody and
not disclosed along with the written statement or counterclaim, save and except by
leave of Court and such leave shall be granted only upon the defendant establishing
reasonable cause for non-disclosure along with the written statement or counterclaim.
(11) The written statement or counterclaim shall set out details of documents in the
power, possession, control or custody of the plaintiff, which the defendant wishes to
rely upon and which have not been disclosed with the plaint, and call upon the plaintiff
to produce the same.
(12) Duty to disclose documents, which have come to the notice of a party, shall
continue till disposal of the suit.
2. Discovery by Interrogatories.—(1) In any suit the plaintiff or defendant by leave of

the court may deliver interrogatories in writing for the examination of the opposite
parties or any one or more of such parties, and such interrogatories when delivered
shall have a note at the foot thereof stating which of such interrogatories each of such
persons is required to answer:
Provided that no party shall deliver more than one set of interrogatories to the same
party without an order for that purpose:
Provided further that interrogatories which do not relate to any matters in question in
the suit shall be deemed irrelevant, notwithstanding that they might be admissible on
the oral cross-examination of a witness.
(2) On an application for leave to deliver interrogatories, the particular interrogatories

proposed to be delivered shall be submitted to the court, and that court shall decide
within seven days from the day of filing of the said application, in deciding upon such
application, the court shall take into account any offer, which may be made by the party
sought to be interrogated to deliver particulars, or to make admissions, or to produce
documents relating to the matters in question, or any of them, and leave shall be given
as to such only of the interrogatories submitted as the court shall consider necessary
either for disposing fairly of the suit or for saving costs.
(3) In adjusting the costs of the suit inquiry shall at the instance of any party be made
into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing
officer or of the court, either with or without an application for inquiry, that such
interrogatories have been exhibited unreasonably, vexatiously, or at improper length,
the costs occasioned by the said interrogatories and the answers thereto shall be paid
in any event by the party in fault.
(4) Interrogatories shall be in the form provided in Form No. 2 in Appendix C to the
Code of Civil Procedure, 1908 (5 of 1908), with such variations as circumstances may
require.
(5) Where any party to a suit is a corporation or a body of persons, whether

incorporated or not, empowered by law to sue or be sued, whether in its own name or in
the name of any officer of other person, any opposite party may apply for an order
allowing him to deliver interrogatories to any member or officer of such corporation or
body, and an order may be made accordingly.
(6) Any objection to answering any interrogatory on the ground that it is scandalous or
irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters
inquired into are not sufficiently material at that stage, or on the ground of privilege or
any other ground may be taken in the affidavit in answer.
(7) Any interrogatories may be set aside on the ground that they have been exhibited
unreasonably or vexatiously, or struck out on the ground that they are prolix,
oppressive, unnecessary or scandalous and any application for this purpose may be
made within seven days after service of the interrogatories.
(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within
such other time as the court may allow.
(9) An affidavit in answer to interrogatories shall be in the form provided in Form No 3

in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908), with such variations as
circumstances may require.
(10) No exceptions shall be taken to any affidavit in answer, but the sufficiency or
otherwise of any such affidavit objected to as insufficient shall be determined by the
court.
(11) Where any person interrogated omits to answer, or answers insufficiently, the party
interrogating may apply to the court for an order requiring him to answer, or to answer
further, as the case may be, and an order may be made requiring him to answer, or to
answer further, either affidavit or by viva voce examination, as the court may direct.
3. Inspection.—(1) All parties shall complete inspection of all documents disclosed

within thirty days of the date of filing of the written statement or written statement to
the counterclaim, whichever is later. The Court may extend this time limit upon
application at its discretion, but not beyond thirty days in any event.
(2) Any party to the proceedings may seek directions from the Court, at any stage of
the proceedings, for inspection or production of documents by the other party, of which
inspection has been refused by such party or documents have not been produced
despite issuance of a notice to produce.
(3) Order in such application shall be disposed of within thirty days of filing such
application, including filing replies and rejoinders (if permitted by Court) and hearing.
(4) If the above application is allowed, inspection and copies thereof shall be furnished
to the party seeking it, within five days of such order.
(5) No party shall be permitted to rely on a document, which it had failed to disclose or
of which inspection has not been given, save and except with leave of Court.
(6) The Court may impose exemplary costs against a defaulting party, who wilfully or
negligently failed to disclose all documents pertaining to a suit or essential for a
decision therein and which are in their power, possession, control or custody or where a
Court holds that inspection or copies of any documents had been wrongfully or
unreasonably withheld or refused.
4. Admission and denial of documents.—(1) Each party shall submit a statement of

admissions or denials of all documents disclosed and of which inspection has been
completed, within fifteen days of the completion of inspection or any later date as fixed
by the Court.
(2) The statement of admissions and denials shall set out explicitly, whether such party
was admitting or denying:—
(a) correctness of contents of a document;
(b) existence of a document;
(c) execution of a document;
(d) issuance or receipt of a document;
(e) custody of a document.

Explanation.—A statement of admission or denial of the existence of a document made
in accordance with sub-rule (2)(b) shall include the admission or denial of the contents
of a document.
(3) Each party shall set out reasons for denying a document under any of the above
grounds and bare and unsupported denials shall not be deemed to be denials of a
document and proof of such documents may then be dispensed with at the discretion
of the Court.
(4) Any party may however submit bare denials for third party documents of which the
party denying does not have any personal knowledge of, and to which the party denying
is not a party to in any manner whatsoever.
(5) An Affidavit in support of the statement of admissions and denials shall be filed
confirming the correctness of the contents of the statement.
(6) In the event that the Court holds that any party has unduly refused to admit a
document under any of the above criteria,—costs (including exemplary costs) for
deciding on admissibility of a document may be imposed by the Court on such party.
(7) The Court may pass orders with respect to admitted documents including for
waiver of further proof thereon or rejection of any documents.
5. Production of documents.—(1) Any party to a proceeding may seek or the Court may
order, at any time during the pendency of any suit, production by any party or person, of
such documents in the possession or power of such party or person, relating to any
matter in question in such suit.
(2) Notice to produce such document shall be issued in the Form provided in Form No
7 in Appendix C to the Code of Civil Procedure, 1908 (5 of 1908).
(3) Any party or person to whom such notice to produce is issued shall be given not
less than seven days and not more than fifteen days to produce such document or to
answer to their inability to produce such document.
(4) The Court may draw an adverse inference against a party refusing to produce such
document after issuance of a notice to produce and where sufficient reasons for such
non-production are not given and order costs.
6. Electronic Records.—(1) In case of disclosures and inspection of Electronic Records

(as defined in the Information Technology Act, 2000) (21 of 2000), furnishing of
printouts shall be sufficient compliance of the above provisions.
(2) At the discretion of the parties or where required (when parties wish to rely on audio
or video content), copies of electronic records may be furnished in electronic form
either in addition to or in lieu of printouts.
(3) Where Electronic Records form part of documents disclosed, the declaration on
oath to be filed by a party shall specify—
(a) the parties to such Electronic Record;
(b) the manner in which such electronic record was produced and by whom;
(c) the dates and time of preparation or storage or issuance or receipt of each such
electronic record;
(d) the source of such electronic record and date and time when the electronic
record was printed;
(e) in case of e-mail ids, details of ownership, custody and access to such e-mail
ids;
(f) in case of documents stored on a computer or computer resource (including on

external servers or cloud), details of ownership, custody and access to such data
on the computer or computer resource;
(g) deponent's knowledge of contents and correctness of contents;
(h) whether the computer or computer resource used for preparing or receiving or
storing such document or data was functioning properly or in case of
malfunction that such malfunction did not affect the contents of the document
stored;
(i) that the printout or copy furnished was taken from the original computer or
computer resource.
(4) The parties relying on printouts or copy in electronic form, of any electronic records,
shall not be required to give inspection of electronic records, provided a declaration is
made by such party that each such copy, which has been produced, has been made
from the original electronic record.
(5) The Court may give directions for admissibility of Electronic Records at any stage of
the proceedings.
(6) Any party may seek directions from the Court and the Court may of its motion issue
directions for submission of further proof of any electronic record including metadata
or logs before admission of such electronic record.
7. Certain provisions of the Code of Civil Procedure, 1908 not to apply.—For avoidance
of doubt, it is hereby clarified that Order XIII rule 1, Order VII rule 14 and Order VIII rule
1A the Code of Civil Procedure, 1908 (5 of 1908) shall not apply to suits or applications
before the Commercial Divisions of High Court or Commercial Courts."
Karnataka.—After rule 23 add rules 24, 25 and 26:—
"24. If where inspection has been ordered out of Court or is to be given out of Court, it
is found that a satisfactory inspection cannot be obtained, or if it is shown that the
documents are being or are likely to be tampered with, an application may be made to
Court for an order for the deposit and inspection of the documents in Court. Such
application shall be supported by affidavit. Notice of such application shall be given to
the party affected thereby and orders passed only after hearing both sides, if they
appear on the date fixed for hearing in the notice, or on any other date to which the
hearing of the same may be adjourned thereafter.
25. A defendant upon whom summons to appear and answer the plaint has been
served, shall on entering appearance before filing his written statement be entitled
alongwith his pleader, if any, to inspect all documents produced with the plaint and
lying in the custody of the Court.
26. A plaintiff as well as every defendant on whom summons has been served and who
has entered appearance shall be entitled along with his pleader, if any, to inspect all
documents produced into Court by any party to the suit" (30-3-1967).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Notice of admission of
case
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XII Admissions
R. 1.
Notice of admission of case
Any party to a suit may give notice, by his pleading, or otherwise in writing, that he
admits the truth of the whole or any part of the case of any other party.
COMMENT.—
Admission of the documents means an admission of the facts contained in the

documents.1
An admission by the defendant in written statement is of evidentiary value. It is not

permissible to rely on a part of admission ignoring the other.2
1 Sitaram M Kalal v Santanuprasad J Bhatt, AIR 1966 SC 1697 (1703) : (1966) 3 SCR 527 : 1966
MPLJ 913 .
2 Dudh Nath v Suresh Chandra, AIR 1986 SC 1509 (1511) : (1986) 3 SCC 360 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Notice to admit
documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Notice to admit documents
Either party may call upon the other party 3[to admit within 4[ seven ] days from the
date of service of the notice any document,] saving all just exceptions; and in case of
refusal or neglect to admit after such notice, the costs of proving any such document
shall be paid by the party so neglecting or refusing, whatever the result of the suit
may be, unless the Court otherwise directs; and no costs of proving any document
shall be allowed unless such notice is given, except where the omission to give the
notice is, in the opinion of the Court, a saving of expense.
[Rule amended in Allahabad].
Allahabad (Notfn No 43/VII-d-29; 1-6-1957).—(a) After the words "neglect to admit"

insert "without sufficient cause".
(b) For the word "the" after the words "after such notice" substitute "such special".
(c) After the words "any such document" insert a comma and the words "as may be
fixed by the Court not exceeding fifty rupees for each document."
(d) After the words "the result of the suit may be" delete the comma and the words
"unless the Courts otherwise directs and the semicolon thereafter occurring".
Patna.—The following amendments were made by Bihar Gazette, dated 9-8-1972, Part II,
Page 108.
Add the following clause at the end of rule 2—
"The Court may allow a penal cost in case of wrongful or unreasonable refusal to admit
documents irrespective of the result of the litigation". (26-7-1972)
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In the first Schedule, in O XII, in rule 2, for the word "fifteen", the word "seven" shall be
substituted. By the amendment the time within which notice to admit a document may
be given by a party to the suit has been reduced from fifteen days to seven days. (Vide
Notes on Clauses, clause 22).

1999 stated thus:-
Rule 2 of Order XII is proposed to be amended for reducing the time from fifteen days to
seven days within which notice to admit a document may be given by any party to the suit.
[Clause 22]

(n) (of the repeal and savings section) stipulates that the provisions of rules 2 and 4 of
O XII of the First Sch, as amended and omitted, as the case may be, by section 22 of
the Amendment Act, 1999, shall not affect any notice given by the party or any order
made by the Court before the commencement of section 22 of the Act of 1999.
Time-limit for notice to admit document.—
Rule 2 of O XII as amended reduces the time from fifteen days to seven days within
which notice to admit a document may be given by any party to the suit.

shall, except in so far as such amendment or provision is inconsistent with the
provisions of the principal Code as amended by this Amendment Act, 1999, stand
repealed. [Section 32(1) Code of Civil Procedure (Amendment) Act, 1999].
Admission of facts and document.—
The admission of the facts may be made by any party by notice in writing at any time
not later than nine days before the day fixed for hearing. Admission of a document may
be made by the parties at any stage, if permitted by the Court.5
3 Subs. by Act 104 of 1976, section 62, for "to admit any document" (w.e.f. 1-2-1977).
4 Subs. for the word 'fifteen' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
5 Mohd Yunus v Deviani, (2010) 4 MP LJ 24 (28) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2A. Document to be
deemed to be admitted if not denied after service of notice to admit documents
© 2020 LexisNexis
THE FIRST SCHEDULE
6[R. 2A.
Document to be deemed to be admitted if not denied after service of notice to
admit documents
(1) Every document which a party is called to admit, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of that party
or in his reply to the notice to admit documents, shall be deemed to be
admitted except as against a person under a disability:
Provided that the Court may, in its discretion and for reasons to be recorded,
require any document so admitted to be proved otherwise than by such
admission.
(2) Where a party unreasonably neglects or refuses to admit a document after the
service on him of the notice to admit documents, the Court may direct him to
pay costs to the other party by way of compensation.]
COMMENT.—
This rule was amended by Amending Act of 1976 in order to provide 15 days' time for
admission of documents thereby avoiding unnecessary delay in proceedings.
Rule 2-A was also inserted and this provides that a document, if not denied, should be
taken as admitted unless the Court otherwise directs and the person failing
unreasonably to admit such document should be burdened with penal costs.
It has been held by the Supreme Court that an admission of a document without any
reservation means admission of the contents of the documents.7
7 Sita Ram Motilal v Santanu Prasad, AIR 1966 SC 1697 : (1966) 3 SCR 527 : 1966 MPLJ 913 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Form of notice
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Form of notice
A notice to admit documents shall be in Form No. 9 in Appendix C, with such

variations as circumstances may require.
[See former RSC Order XXXII rule 3]

record admission
© 2020 LexisNexis
THE FIRST SCHEDULE
8[R. 3A.
Power of Court to record admission
Notwithstanding that no notice to admit documents has been given under r 2, the
Court may, at any stage of the proceeding before it, of its own motion, call upon any
party to admit any document and shall, in such a case, record whether the party
admits or refuses or neglects to admit such document.]
8 Ins. by Code of Civil Procedure (Amendment) Act 66 of 1956 Section 14 (w.e.f. 1-1-1957).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Notice to admit facts
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Notice to admit facts
Any party may, by notice in writing, at any time not later than nine days before the day
fixed for the hearing, call on any other party to admit, for the purposes of the suit only,
any specific fact or facts mentioned in such notice. And in case of refusal or neglect
to admit the same within six days after service of such notice, or within such further
time as may be allowed by the Court, the costs of proving such fact or facts shall be
paid by the party so neglecting or refusing, whatever the result of the suit may be,
unless the Court otherwise directs:
Provided that any admission made in pursuance of such notice is to be deemed to be

made only for the purposes of the particular suit, and not as an admission to be used
against the party on any other occasion or in favour of any person other than the party
giving the notice:
9 [* * * * *]
COMMENT—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002).—
In the first Schedule, in O XII, in rule 4, second proviso shall be omitted. The second
proviso to rule 4 of the said order has been omitted so as to curtail the discretion of the
Court in the matter of allowing any party to amend or withdraw admission made by
him.
Modifications.—This rule has been amended to make for the following modifications:
1. Second Proviso in rule 4, O XII has been omitted.
2. By omission of the second proviso the discretion of the Court in the matter of
allowing any party to amend or withdraw any admission made by him has been
curtailed.

1999 stated thus:-
Further the second proviso to rule 4 of the said Order is being omitted so as to curtail the
discretion of the Court in the matter of allowing any party to amend or withdraw admission
made by him. [Clause 22]

O XII of the First Schedule, as amended and omitted, as the case may be, by section 22
of Amendment Act, 1999, shall not affect any notice given by the party or any order
made by the Court before the commencement of section 22 of the Act of 1999.
Discretion to allow amendment or withdrawal of admission taken away.—
By omitting the second proviso to rule 4, the discretion of the Court in the matter of
allowing any party to amend or withdraw any admission made by him has been
withdrawn.
9 Second proviso omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
Section 22 (w.e.f. 1-7-2002) before omission it stood as under:
'Provided also that the Court may at any time allow any party to amend or withdraw any
admission so made on such terms as may be just'.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Form of admissions
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Form of admissions
A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions of facts
shall be in Form No. 11 in Appendix C, with such variations as circumstances may
require.
COMMENT.—
Admissions in affidavits filed by the Government are limited to the context and not
specific assurances. They are not binding on the Government to create any estoppel.10
10 NC Singhal v UOI, AIR 1980 SC 1255 (1261) : (1980) 3 SCC 29 : 1980 SCC (L&S) 269 : 1980
Lab IC 710 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6. Judgment on
admissions
© 2020 LexisNexis
THE FIRST SCHEDULE
11[R. 6.
Judgment on admissions
(1) Where admissions of fact have been made either in the pleading or otherwise,
whether orally or in writing, the Court may at any stage of the suit, either on the
application of any party or of its own motion and without waiting for the
determination of any other question between the parties, make such order or
give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be

drawn up in accordance with the judgment and the decree shall bear the date
on which the judgment was pronounced.]
III, Page 69.
Rule 6 as substituted earlier, deleted.
COMMENT.—
The object of this rule is to enable a party to obtain speedy judgment. A Court should
not unduly narrow down the meaning of this rule. Where other party has made a plain
admission entitling the former to succeed, it should apply. It will also apply where there
is a clear admission of facts, in the face of which it is impossible for the party making
such admission to succeed. The words "or otherwise" clearly indicate that it is open to
the Court to base the judgment on statements made by a party not only in the
pleadings but also de hors the pleadings.12
This rule has been substituted for the previous rule 6 and it now provides that where a
claim is admitted, the Court has jurisdiction to enter a judgment for the plaintiff and to
pass a decree on the admitted claim.
The words in O XII rule 6 of the Code of Civil Procedure "may" and "make such order"
show that the power under O XII rule 6 is discretionary and cannot be claimed as a
matter of right. Judgment on admission is not a matter of right and rather it is a matter
of discretion of the Court. In a suit for eviction, tenant though admitted relationship of
tenancy but resisted landlords claim by setting up defence plea of agreement to sale,
then on mere admission of relationship of landlord and tenant cannot be said to be
unequivocal admission to decree suit under O XII rule 6.13
Order XII rule 6 provides for speedy disposal of suit where the claim is admitted by the
defendant. The Court can well pass a decree on admission if the admission is proved
properly.14
Judgment on admission.—
The Court has to record satisfaction about the admission of the claim(s) at any stage
of the case. No admissions in the case were made, as the defendants/respondents had
not appeared in the matter. Therefore, a judgment based on admission in this case was
held to be bad in law, without application of mind and in hot haste and without
following due procedure.15
Judgment on admission—Nature and Scope.—
The Court, on examination of facts and circumstances, has to exercise its judicial
discretion, keeping in mind that a judgment on admission is a judgment without trial
which permanently denies any remedy to the defendant, by way of an appeal on merits.
Therefore, unless the admission is clear, unambiguous and unconditional, the
discretion of the Court should not be exercised to deny the valuable right of a
defendant to contest the claim.16
This present rule is wide enough to cover oral admission also.
The provision under O XII rule 6 of the Code is not mandatory still the purpose for
which such a provision has been inserted should be taken into consideration,17
It was admitted that the suit premises were in possession of four brothers and rate of
rent had exceeded Rs. 3500/-. The terms of lease clearly showed that it was composite
and joint tenancy and not an individual one and rent agreed upon was in toto. The rent
could not be split up in four portions to bring the building under Rent Control Act. An
eviction order passed under rule 6 of O XII on facts was proper.18
A suit partly decreed an admission can be subsequently dismissed on the ground of

limitation for remaining amount.19
The defendant had admitted the leave and license agreement. Under the said
agreement security deposit was received. The defendant/licensor had also admitted
termination of license and surrender of licensed premises. It was held that the clear
and unequivocal statements in the balance sheets and profit and loss accounts of the
defendant regarding the same amounted to admission. Therefore, decree was passed
on admission for payment of principal amount with pendente lite interest to the
licensee.20
Distinction between acknowledgment and admission.—
The statement of payments made to the contractor showing retention of amount of

security deposit in a works contract can be treated as acknowledgment of jural
relationship between the parties under section 18 of the Indian Limitation Act, 1963.
However, the document cannot be regarded as an admission of the quantum indicated
therein. Admission under O XII rule 6 of the Code and acknowledgment under section
18 of the Limitation Act are distinct.21
More than one decrees in same suit.—

There can be more than one decrees passed at different stages in the same suit by the
lessor for eviction of number of lessees.—A decree passed on compromise with some
of the defendants at one stage. Another decree at later stage determining the rights of
remaining defendants. Both of the decrees were separate and independent. Neither
was a nullity.
22Admission of fact.—
Where the Court is satisfied with the admission of fact, the Court may make such order
or give such judgment as it may think fit having regard to such admission.23
Admission can be made either in "pleadings" or "otherwise". The word "otherwise"

includes documents appended along with pleadings.24
Decree on the basis of concession.—
It is a well-settled principle of law that a counsel can make not only concession on a
question of law but also on facts which would be binding on the parties. A decree can
be passed on the basis of such concession in terms of O XII rule 6 of the Code.25
Applicability in eviction proceedings.—
In a suit for eviction the provision of O XII rule 6 would not apply when a document
which was required to be compulsorily registered was not registered. The payment of
stamp duty and penalty in respect of the document will not help because the document
was required to be compulsorily registered and want of registration would not be
supplied by payment of such duty and penalty. Therefore, the admission by the lessor
that lease agreement was executed in respect of suit property, would not result in
decreeing the case in favour of the tenant i.e. dismissal of the suit.26
11 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 62 for rule 6, (w.e.f.
1-2-1977).
12 Uttam Singh Dugal v Union Bank of India, AIR 2000 SC 2740 (2743, 2744) : (2000) 7 SCC 120 .
13 SM Asif v Virender Kumar Bajaj, AIR 2015 SC 3678 .
14 Sankar Charan Chattopadhyay v Berger Paints India Ltd, 2009 (2) Cal HN 20 (24-27) (DB).
15 Managing Director, JKPDC v Abdul Rashid Naikoo, AIR 2012 J&K 7 .
16 Himani Alloys Ltd v Tata Steel Ltd, (2011) 15 SCC 273 .
17 Malwa Strips P Ltd v Jyoti Ltd, (2009) 2 SCC 426 (431).
18 Charanjit Lal Mehra v Kamal Saroj Mahajan, AIR 2005 SC 2765 (2768); see also Rajiv
Srivsatava v Sanjiv Tuli, AIR 2005 Del 319 .
19 VM Salgaocar & Bros v Board of Trustees of Port of Mormugaco, AIR 2005 SC 4138 (4146).
20 SRL Ltd v Tech Trek India Ltd, AIR 2014, Bom 42.
21 State of West Bengal v MS Engineering, AIR 2016 Cal 150 .
22 Bai Chanchal v S Jalaluddin, AIR 1971 SC 1081 (1084) : (1970) 3 SCC 124 .
23 Saraogi Developers v International Construction, 2009 (1) Cal HN 866 (873) (DB).
24 Rajender Soni v Mahabir Pd, 2011 AIR CC 1347 (1351) (Del).
25 Saroj Anand v Prahlad Rai Anand, (2009) 15 SCC 505 (512).
26 Archana Associates v Agamathraya Maha Mandal, AIR 2013 Kar 122 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Affidavit of signature
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Affidavit of signature
An affidavit of the pleader or his clerk, of the due signature of any admissions made in
pursuance of any notice to admit documents or facts, shall be sufficient evidence of
such admissions, if evidence thereof is required.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Notice to produce
documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Notice to produce documents
Notice to produce documents shall be in Form No. 12 in Appendix C, with such

variations as circumstances may require. An affidavit of the pleader, or his clerk, of
the service of any notice to produce, and of the time when it was served, with a copy
of the notice to produce, shall in all cases be sufficient evidence of the service of the
notice, and of the time when it was served.
The object of O XII, rule 8 of the Code is to facilitate the plaintiff or any other party to
get a document on record which is not in their possession or in possession of other
party. If a document has been produced, then it is the duty of the party who has asked
for such production to get it placed on record. If, however, the said document is not
placed on record, then adverse inference against the party who has produced the same
cannot be drawn, more so, when the party who has produced the said document before
the Court has been cross examined vis-a-vis that document.27
27 Rohini Traders v JK laxmi Cement Ltd, AIR 2015 SC 2836 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Costs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Costs
If a notice to admit or produce specifies documents which are not necessary, the
costs occasioned thereby shall be borne by the party giving such notice.
[See former RSC Order XXXII rule 9; see Order XII rules 2 and 8]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Original documents to
be produced at or before the settlement of issues
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XIII 1Production, Impounding and Return of Documents
2[R. 1.
Original documents to be produced at or before the settlement of issues
(1) The parties or their pleader shall produce on or before the settlement of issues,
all the documentary evidence in original where the copies thereof have been filed
along with plaint or written statement.
(2) The Court shall receive the documents so produced:
Provided that they are accompanied by an accurate list thereof prepared in such
form as the High Court directs.
(3) Nothing in sub-rule (1) shall apply to documents—
(a) produced for the cross-examination of the witnesses of the other party; or
(b) handed over to a witness merely to refresh his memory.]
Patna.—After the words "at the first hearing of the suit", and "or where issues are
framed, on the day when issues are framed, or within such further time as the Court
may permit".
Punjab and Haryana (Chandigarh).— The following amendments were made by

Chandigarh Administration Gazette, dated 1-5-1975, Part II, Page 95; Punjab Gazette,
dated 11-4-1975, Part III (LS) Page 303.
"The parties or their pleaders shall produce at the first hearing of the suit all the
documentary evidence of every description in their possession or power, either in
original or photostat copy thereof, on which they intend to rely and which has not
already been filed in Court, and all documents which the Court has ordered to be
produced." (Vide Notftn. No. GSR 39/CA 5/1908/S. 12257, w.e.f. 11-4-1975)
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
The present rule has been substituted for the old rules 1 and 2 of O XIII by the Code of
Civil Procedure (Amendment) Act, 1999 (46 of 1999). Rules 1 and 2 of O XIII are
proposed to be substituted so as to provide that the original of documents of which
copies have been filed with the plaint and written statement shall be submitted before
the settlement of issues is made by the Court. (Vide Notes On Clauses, Clause 23).

1999 stated thus:
Rules 1 and 2 of Order XIII are proposed to be substituted so as to provide that the original
of documents of which copies have been filed with the plaint and written statement shall be
submitted before the settlement of issues is made by the Court. [Clause 23]

O XIII of the First Sch, as amended by section 23 of this Act, shall not affect the
documents produced by the parties or ordered by the Court to be produced before the
commencement of section 23 of this Act.
Production of original documents for settlement of issues.—
Rule 1, as it stood prior to its amendment, allowed production of document "which has
not already been filed in Court". Now, under the new rule 14(3) of O VII and rule 1A(3) of
O VIII, documents not filed along with the plaint or written statement cannot be
received in evidence at the hearing of the suit.
Rule 1 has been substituted by new rule as per which all documentary evidence in
original [where only copies were filed] are required to be produced before settlement of
issues [sub-rule (1)].
Sub-rule (2) reproduces the existing sub-rule (2) of rule 1.
New sub-rule (3) exempts the documents produced for cross-examination of witnesses
of the other party and those handed over to the witness merely to refresh his memory.
This is in conformity with the revised scheme of the Code.

This rule was amended by the Amending Act of 1976 in order to provide that
documentary evidence should be produced at or before the settlement of issues.
This rule enjoins on the parties to lay their documents before the Court at the earliest
possible opportunity. It has been held by the Supreme Court that it is the duty of a
private party to a litigation to place all relevant matters before the Court. A higher
responsibility rests on the Government if a party to the lis, not to withhold relevant
documents from the Court.3
The words "possession or power" in this rule imply that the document in question must
be in actual physical possession or control of the plaintiff. A document over which a
party has no control, and which can only be produced by a witness in answer to a
summons from Court cannot be said to be a document in his possession or power.
Discovery and production.—
Ensuring discovery and production of documents and a proper admission/denial is

imperative for deciding civil cases in a proper perspective. In relevant cases, the Courts
should encourage interrogatories to be administered.4
Order allowing the defendants to file documents is not improper. Permitting defendants
to file documents does not mean that the same are admissible in evidence.
Admissibility of the documents can be adjudicated by the Court at the appropriate
stage.5
Both the parties should be given an equal opportunity to put forth their claim and
contest evenly and the Court below shall thereafter appraise the evidence and come to
a just conclusion. The equities demand that the parties to a proceeding shall be given
an equal opportunity of hearing and leading evidence. The petitioner objected to the
acceptance of the "Hami Pathram" as an exhibit and also contended that since it
created interest it was required to be registered according to the provisions of the
Indian Registration Act. Court held that since a right was already created "Hami
Pathram" only showed the same and assured its continuance. Since the document was
executed without consideration the same could be marked as exhibit for collateral
purpose.6
2 Rule 1 and rule 2 subs. for new rule 1 by the Code of Civil Procedure (Amendment) Act, 1999
(46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, prior to its Rules 1 and 2
stood as under:
'Rule 1. Documentary evidence to be produced at or before the settlement of issues.—(1) The
parties or their pleaders shall produce, at or before the settlement of issues all the documentary
evidence of every description in their possession or power, on which they intend to rely, and
which has not already been filed in Court, and all documents which the Court has ordered to be
produced.
(2) The Court shall receive the documents so produced: Provided that they are accompanied by
an accurate list thereof prepared in such form as the High Court directs.
Rule 2. Effect of non-production of documents.—(1) No documentary evidence in the possession

or power of any party which should have been but has not been produced in accordance with
the requirements of rule 1 shall be received at any subsequent stage of the proceedings unless
good cause is shown to the satisfaction of the Court for the non-production thereof; and the
Court receiving any such evidence shall record the reasons for so doing.
(2) Nothing in sub-rule (1) shall apply to documents,—
(a) produced for the cross-examination of the witnesses of the other party, or
(b) handed over to a witness merely to refresh his memory.'
3 Karamshi Jethabhai v State of Bombay, (now Maharashtra), AIR 1964 SC 1714 : (1964) 6 SCR
984 .
4 A Shanmugam v Ariya Kshatriay Rajakula Yamsahu Madalaya Nandhavana Paripalanai Sagam,
AIR 2012 SC 2010 .
5 Rekha Devi v Buniyad Husain, AIR 2016 Utr 48 .
6 Meenavalli Govindu v Meenavalli Adilakshi, AIR 2013 AP 75 ; Awadh Sao v Uma Devi, AIR 2012
Jhar 13 (para 4, 6, 7, 8).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Effect of non-production
of documents
© 2020 LexisNexis
THE FIRST SCHEDULE
7[R. 2.
Effect of non-production of documents
*****]
7 Rule 2 is omitted by Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 by substitution of new rule 1 for rule 1 and 2, Earlier it
was Inserted by Code of Civil Procedure (Amendment) Act No. 104 of 1976 prior to its
substitution it read as under :
Rule 2. (1) No documentary evidence in the possession or power of any party which should have
been but has not been produced in accordance with the requirements of rule 1 shall be received
at any subsequent stage of the proceedings unless good cause is shown to the satisfaction of
the Court for the non-production thereof; and the Court receiving any such evidence shall record
the reasons for so doing.
(2) Nothing in sub-rule (1) shall apply to documents,—
(a) produced for the cross-examination of the witnesses of the other party, or
(b) handed over to a witness merely to refresh his memory.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Rejection of irrelevant or
inadmissible documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Rejection of irrelevant or inadmissible documents
The Court may at any stage of the suit reject document which it considers irrelevant
or otherwise inadmissible, recording the grounds of such rejection.
COMMENT.—
Rule 1 of this Order provides that the Court is bound to receive all documents of every
description produced by the parties at the first hearing however numerous they might
be. Rule 2 laid down that it was at the discretion of the Court to receive the documents
subsequently produced or reject them for late production.
Under this rule, out of the documents received by the Courts under rules 1 and 2 above,
the Court is expected and empowered to exercise discrimination and reject even in
limine, documents considered irrelevant or otherwise inadmissible, and retain on the
file only such of the documents as may be used as evidence at the trial. Rejection
under this rule may be at any stage.
Whether any objection is raised or not a Court is bound to reject irrelevant documents.
Objection to evidence.—
The objection that the document was ab initio inadmissible in evidence can be taken at
any stage of suit reserving decision on the question until final judgment in the case.8
8 Hemendra R Ghia v Subodh Mody, 2009 AIHC 2061 (2077, 2080) (Bom-FB) 2009 (3) ALJ (FB)
(Bom); Ameer Trading Corpn Ltd v Shapoorji Data Processing Ltd, AIR 2004 SC 355 , relied on.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Endorsements on
documents admitted in evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Endorsements on documents admitted in evidence
(1) Subject to the provisions of the next following sub-rule, there shall be
endorsed on every document which has been admitted in evidence in the suit
the following particulars namely:—
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted,
and the endorsement shall be signed or initialled by the Judge. [B]
(2) Where a document so admitted is an entry in a book, account or record, and a

copy thereof has been substituted for the original under the next following rule,
the particulars aforesaid shall be endorsed on the copy and the endorsement
thereon shall be signed or initialled by the Judge.
[Rule amended in Bombay.]
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, p. 405,
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., s. 1, No. 28, Page 380, dated 1-4-
1987.
Add the following proviso to sub-rule (1).
Provided that in proceedings in the Bombay City Civil Court, the endorsement may be
signed or initialled by such officer as the Principal Judge may authorise in this behalf.
Patna.— The following amendments were made by Orissa Gazette, dated 17-2-1971.
Add the following after the word "Judge" in sub-rules (1) and (2):—
"Or in the case of the High Court, by an officer in Court under the order of the Judge or
one of the Judges." (5-2-1971)
Punjab and Haryana (Chandigarh).— The following amendments were made by Haryana
Gazette, dated 11-6-1974, Part III (LS), Page 687.
Add the following proviso to rule 4 of Order XIII:—
"Provided that where the Court is satisfied that the document, not endorsed in the
manner laid down in the above rule, was in fact, admitted in evidence, it shall treat the
document as having been properly admitted in evidence unless non-compliance with
this rule has resulted in miscarriage of justice."
COMMENT.—
The rule as to the endorsement of the documents must be strictly followed. In Sadik
Hussain Khan v Hoshim Ali Khan, AIR 1916 PC 27 , their Lordships of the Privy Council
observed as follows:
Their Lordships, with a view of insisting on the observance of the wholesome provisions of
these statutes, will in order to prevent injustice be obliged in future on the hearing of Indian
appeals to refuse to read or to permit to be used any document not endorsed in the manner
required.
However, there has been a conflict of opinion as to the effect of the failure to comply
with the requirements of this rule.
Apart from the endorsement, where a document is shown to have been admitted in
evidence and considered by the Judge, the general trend of opinion is that the failure to
make the endorsement as required by this rule, is only a curable irregularity.9 However,
a contrary view has been taken by an earlier decision of Punjab High Court where it has
been held that a document cannot be said to have been admitted in evidence at all
unless it is endorsed under the rule.10
Admissibility of document—
An objection should be raised when it is tendered and not subsequently. The

documents admitted in evidence without objection cannot be said to be inadmissible
being photocopies, original of which were not produced. The objection of High Court
that said photocopy document was not readable, when the matter came up for hearing
before it, was not relevant.11
9 1972 Cur LJ 461 ; Guni Ram v Kodai, AIR 1971 All 434 .
10 Prithi Raj Mehar Chand v Hans Raj Gurditta Mal, AIR 1969 Punj 256 .
11 RVE Venkatachale Gounder v Arulmigu V & VP Temple, AIR 2003 SC 4548 (4553) : (2003) 8
SCC 752 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Endorsements on copies
of admitted entries in books, accounts and records
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Endorsements on copies of admitted entries in books, accounts and records
(1) Save in so far as is otherwise provided by the Bankers' Books Evidence Act,
1891 (18 of 1891), where a document admitted in evidence, in the suit is an
entry in a letter-book or a shop-book or other account in current use, the party
on whose behalf the book or account is produced may furnish a copy of the
entry.
(2) Where such a document is an entry a public record produced from a public
office or by a public officer, or an entry in a book or account belonging to a
person other than a party on whose behalf the book or account is produced,
the Court may require a copy of the entry to be furnished—
(a) where the record, book or account is produced on behalf of a party, then
by that party, or
(b) where the record, book or account is produced in obedience to an order

of the Court acting of its own motion, then by either or any party.
(3) Where a copy of an entry is furnished under the foregoing provisions of this
rule, the Court shall, after causing the copy to be examined, compared and
certified in manner mentioned in r 17 of Order VII, mark the entry and cause
the book, account or record in which it occurs to be returned to the person
producing it. [B, G]
[Rule amended in Bombay and Gujarat.]
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page 380,
dated 1-4-1987.
Substitute a colon for the full stop at the end of sub-rule (3) and add thereafter the
following proviso:
"Provided that where the entry referred to in this rule is in a language other than English
or the language of the Court, the provision contained in the proviso to sub-rule (2) of
rule 17 or Order VII shall apply mutatis mutandis to such an entry". (1-10-1983)
Gujarat.—Same as in Bombay omitting the words "English or". (17-8-1961)


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Endorsements on
documents rejected as inadmissible in evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Endorsements on documents rejected as inadmissible in evidence
Where a document relied on as evidence by either party is considered by the Court to

be inadmissible in evidence, there shall be endorsed thereon the particulars
mentioned in clauses ( a ), ( b ) and ( c ) of r 4, sub-rule (1), together with a statement
of its having been rejected, and the endorsement shall be signed or initialled by the
Judge. [B]
[Proviso added in Bombay.]
Substitute a colon for the full stop at the end of the rule and add thereafter the
following proviso:
"Provided that in proceedings filed in the Bombay City Civil Court the endorsement may
be signed by such officer as the principal Judge may authorise in this behalf". (1-10-
1983)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Recording of admitted
and return of rejected documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Recording of admitted and return of rejected documents
(1) Every document which has been admitted in evidence, or a copy thereof where
a copy has been substituted for the original under rule 5, shall form part of the
record of the suit.
(2) Documents not admitted in evidence shall not form part of the record and shall
be returned to the persons respectively producing them. [AP, B, K, MP, M]
[Pro to sub-rule (2) added in Andhra Pradesh, Kerala & Madras; sub-rule (3) added in
Bombay & Madhya Pradesh]
Add the following sub-rule (3) with marginal note:—
"(3) Documents in language other than English or Court Language, or in script other than
Devnagari. Every document produced in evidence which is not written in the Court
language or in English, shall be accompanied by a correct translation into English or the
Court language, and every document which is written in the Court language or in a
script other than Devnagari shall be accompanied by a correct translation into
Devnagari script. If the document is admitted in evidence, the opposite party shall
either admit the correctness of the translation or transliteration or submit his own
translation or transliteration of the document."
dated 16-9-1960.
The following shall be added as sub-rule (3):
"(3) Every document produced in evidence, which is not written in the Court language or
in English, shall be accompanied by a correct translation into English and every
document which is written in the Court language but in a script other than foreign shall
be accompanied by a correct transliteration into Devnagri script. If the document is
admitted in evidence the opposite party it shall either admit the correctness of the
translation or transliteration or submit his own translation or transliteration of the
document".
Madras (Dis No. 434 of 1916).—Add the following proviso to sub-rule (2):—"Provided
that no document shall be returned which by force of the decree has become wholly
void or useless". (Act 26 of 1968, Section 3)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Court may order any
document to be impounded
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Court may order any document to be impounded
Notwithstanding anything contained in rule 5 the Court may, if it sees sufficient cause
direct any or rule 7 of this Order or in rule 17 of Order VII, document or book produced
before it in any suit to be impounded and kept in the custody of an officer of the Court,
for such period and subject to such conditions as the Court thinks fit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Return of admitted
documents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Return of admitted documents
(1) Any person, whether a party to the suit or not, desirous of receiving back any
document produced by him in the suit and placed on the record shall, unless
the document is impounded under rule 8, be entitled to receive back the same,
—
(a) where the suit is one in which an appeal is not allowed, when the suit
has been disposed of, and
(b) where the suit is one in which an appeal is allowed, when the Court is
satisfied that the time for preferring an appeal has elapsed and that no
appeal has been preferred or, if an appeal has been preferred, when the
appeal has been disposed of:
12[ Provided that a document may be returned at any time earlier than
that prescribed by this rule if the person applying therefor—
(a) delivers to the proper officer for being substituted for the original,
—
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy which

has been examined, compared and certified in the manner
mentioned in sub-rule (2) of rule 17 of Order VII, and
(b) undertakes to produce the original, if required to do so:]
Provided also that no document shall be returned which, by force of the decree
has become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be given by

the person receiving it. [AP, KNT, K, MP, M]
Bombay (Notfn No 4238 of 14-12-1923). — After the first proviso to sub-rule (1), insert
the following provisos:—
"Provided also that a copy of the decree and of the judgment filed with the
memorandum of appeal under Order XLI rule 1, may be returned after the appeal has
been disposed of by the Court."
were made by Maharashtra Gazette, dated 15-9-1983, Part 4 Ka, Page 405; Goa Gazette,
dated 12-10-1987, Extra., Section 1, No. 28, Page 380, dated 1-4-1987.
For the existing rule 9 and its marginal note substitute the following:—
9. Return of admitted documents.—(1) Any person, whether a party to the suit or not,
desirous of receiving back any document produced by him in the suit and placed on the
record shall, unless the document is impounded under rule 8, be entitled to receive
back the same,—
(a) where the suit is one in which an appeal is not allowed, when the suit has been
disposed of; and
(b) where the suit is one in which an appeal is allowed, when the Court is satisfied
that the time for preferring an appeal has elapsed and that no appeal has been
preferred or, if an appeal has been preferred when the appeal has been disposed
of:
Provided that a document may be returned at any time earlier than that prescribed by
this rule if the person applying therefor—
(a) delivers to the proper officer for being substituted for the original,—
(i) in the case of a party to the suit, a certified copy, and
(ii) in the case of any other person, an ordinary copy, which has been examined,
compared and certified in the manner mentioned in sub-rule (2) of rule 17 of
Order VII, and
(b) undertakes to produce the original, if required to do so:
Provided also that a copy of the decree and of the judgment filed with the
memorandum of appeal under Order XLI, rule 1, may be returned after the appeal has
been disposed of by the Court:
Provided also that no document shall be returned which, by force of the decree, has
become wholly void or useless.
(2) On the return of a document admitted in evidence, a receipt shall be given by the
person receiving it. (1-10-1983)
(i) Add between first and second proviso to sub-rule (1), the following proviso:—
"Provided also that a copy of the decree and of the judgment filed with the
memorandum of appeal under Order XLI rule 1, may be returned after the appeal has
been disposed of by the Court".
(ii) Renumber the existing sub-rule (2) as sub-rule (3), and insert the following as sub-
rule (2):—
"(2) Where the document has been produced by a person who is not a party to the suit
the Court may order and at the request of the person applying for the return of the
document shall order the party at whose instance the document was produced to pay
the cost of preparing a certified copy".

1967.
Add the following sub-rules to rule 9:—
(3) Every application for return of a document under the first proviso to sub-rule (1)
shall be verified in the manner prescribed for verification of plaints and shall set forth
facts justifying the immediate return of the original.
(4) The Court may make such order as it thinks fit for costs of any or all the parties to
any application under sub-rule (1). The Court further directs that any costs incurred in
complying with or paid on application under sub-rule (1) or incurred in complying with
the provisions of rule 5 of this Order shall be included as costs in the cause.
(5) Subject to the provisions of rule 8 above, where a document is produced by a

person who is not a party to the suit and such person applies for the return of that
document, as hereinbefore provided and undertakes to produce it whenever required to
do so, the Court shall, except for reasons to be recorded in writing require the party on
whose behalf the document was produced to substitute with the least possible delay a
certified copy of the original and shall thereupon cause the original document to be
returned to the applicant and may further make such order as to costs and charges in
this behalf as it thinks fit. If the copy is not so provided within the time fixed by the
Court the original document shall be returned to the applicant without further delay.
dated 16-9-1960.
Insert the following as sub-rule (2) and renumber the present sub-rule (2) as sub-rule
(3):
"(2) Where the document has been produced by a person who is not a party to the suit,
the Court may order and at the request of the person applying for the return of the
document, shall order the party at whose instance the document was produced to pay
the cost of preparing certified copy".
Madras (Pondicherry).—Add the following as sub-rules (3), (4) and (5):
"(3) Every application for return of a document under the first proviso to sub-rule (1)
shall be made by a verified petition and shall set forth facts justifying the immediate
return of the original.
(4) The Court may make such order as it thinks fit for the costs of any or all the parties
to any application under sub-rule (1). The Court may further direct that any costs
incurred in complying with or paid on application under sub-rule (1) or incurred in
complying with the provisions of rule 5 of this Order, shall be included as costs in the
cause.
(5) Subject to the provisions of rule 8 above, where a document is produced by a

person who is not a party to the suit and such person applies for the return of the
document as hereinbefore provided and undertakes to produce it whenever required to
do so, the Court shall, except for reasons to be recorded in writing require the party on
whose behalf the document was produced, to substitute with the least possible delay a
certified copy for the original, and shall thereupon cause the original document to be
returned to the applicant and may further make such order as to costs and charges in
this behalf as it thinks fit. If the copy is not so provided within the time fixed by the
Court, the original document shall be returned to the applicant without further delay".
III-A, Page 69.
Sub-rule (1-A) as added earlier, deleted.
Patna.—Add the following as sub-rule (1a):
"(1a)Where a document is produced by a person who is not a party in the proceeding

the Court may require the party on whose behalf the document is produced, to
substitute a certified copy for the original as hereinbefore provided".
To sub-rule (1), the following further proviso was added:
"Provided further that the cost of such certified copy shall be recoverable as a fine from
the party at whose instance the original document has been produced." (Act 31 of
1966, Sections 29 and 32 (1-11-1966)).
COMMENT.—
The previous first proviso to sub-rule (1) of this rule has been substituted by new
proviso by the Amending Act of 1976 and it now gives facilities to the witnesses of
putting in a plain copy of documents produced by them so that the original documents
could be returned after comparison and certification of the same.
12 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 63, for the proviso
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Court may send for
papers from its own records or from other Courts
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Court may send for papers from its own records or from other Courts
(1) The Court may of its own motion, and may in its discretion upon the
application of any of the parties to a suit, send for, either from its own records
or from any other Court, the record of any other suit or proceeding, and inspect
the same.
(2) Every application made under this rule shall (unless the Court otherwise
directs) be supported by an affidavit showing how the record is material to the
suit in which the application is made, and that the applicant cannot without
unreasonable delay or expense obtain a duly authenticated copy of the record
or of such portion thereof as the applicant requires, or that the production of
the original is necessary for the purposes of justice.
(3) Nothing contained in this rule shall be deemed to enable the Court to use in
evidence any document which under the law of evidence would be inadmissible
in the suit.
COMMENT.—
Primacy of criminal proceedings over civil proceedings.—
It is a well-settled principle of law that where a civil proceeding as well as criminal

proceeding is pending, the latter should be given primacy.13
13 Lakshmi v Chinnammal, AIR 2009 SC 2352 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Provisions as to
documents applied to material objects
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Provisions as to documents applied to material objects
The provisions herein contained as to documents shall, so far as may be, apply to all
other material objects producible as evidence.
[A, KNT, OR]
[Rules 12, 13 added in Allahabad; rule 12 added in Karnataka & Orissa]
Insertion of new Order XIII-A.—After Order XIII of the Code, the following Order shall be
inserted, namely:—
"ORDER XIII-A
SUMMARYJUDGMENT
1. Scope of and classes of suits to which this Order applies.—(1) This Order sets out
the procedure by which Courts may decide a claim pertaining to any Commercial
Dispute without recording oral evidence.
(2) For the purposes of this Order, the word "claim" shall include—
(a) part of a claim;
(b) any particular question on which the claim (whether in whole or in part)
depends; or
(c) a counterclaim, as the case may be.
(3) Notwithstanding anything to the contrary, an application for summary judgment

under this Order shall not be made in a suit in respect of any Commercial Dispute that
is originally filed as a summary suit under Order XXXVII.
2. Stage for application for summary judgment.—An applicant may apply for summary
judgment at any time after summons has been served on the defendant:
Provided that, no application for summary judgment may be made by such applicant
after the Court has framed the issues in respect of the suit.
3. Grounds for summary judgment.—The Court may give a summary judgment against
a plaintiff or defendant on a claim if it considers that—
(a) the plaintiff has no real prospect of succeeding on the claim or the defendant
has no real prospect of successfully defending the claim, as the case may be;
and
(b) there is no other compelling reason why the claim should not be disposed of
before recording of oral evidence.
4. Procedure.—(1) An application for summary judgment to a Court shall, in addition to

any other matters the applicant may deem relevant, include the matters set forth in
sub-clauses (a) to (f) mentioned hereunder:—
(a) the application must contain a statement that it is an application for summary
judgment made under this Order;
(b) the application must precisely disclose all material facts and identify the point
of law, if any;
(c) in the event the applicant seeks to rely upon any documentary evidence, the
applicant must,—
(i) include such documentary evidence in its application, and
(ii) identify the relevant content of such documentary evidence on which the
applicant relies;
(d) the application must state the reason why there are no real prospects of
succeeding on the claim or defending the claim, as the case may be;
(e) the application must state what relief the applicant is seeking and briefly state
the grounds for seeking such relief.
(2) Where a hearing for summary judgment is fixed, the respondent must be given at
least thirty days' notice of:—
(a) the date fixed for the hearing; and
(b) the claim that is proposed to be decided by the Court at such hearing.
(3) The respondent may, within thirty days of the receipt of notice of application of
summary judgment or notice of hearing (whichever is earlier), file a reply addressing
the matters set forth in clauses (a) to (f) mentioned hereunder in addition to any other
matters that the respondent may deem relevant:—
(a) the reply must precisely—
(i) disclose all material facts;
(ii) identify the point of law, if any; and
(iii) state the reasons why the relief sought by the applicant should not be
granted;
(b) in the event the respondent seeks to rely upon any documentary evidence in its
reply, the respondent must—
(i) include such documentary evidence in its reply; and
(ii) identify the relevant content of such documentary evidence on which the
respondent relies;
(c) the reply must state the reason why there are real prospects of succeeding on
the claim or defending the claim, as the case may be;
(d) the reply must concisely state the issues that should be framed for trial;
(e) the reply must identify what further evidence shall be brought on record at trial
that could not be brought on record at the stage of summary judgment; and
(f) the reply must state why, in light of the evidence or material on record if any, the
Court should not proceed to summary judgment.
5. Evidence for hearing of summary judgment.—(1) Notwithstanding anything in this

Order, if the respondent in an application for summary judgment wishes to rely on
additional documentary evidence during the hearing, the respondent must:—
(a) file such documentary evidence; and
(b) serve copies of such documentary evidence on every other party to the
application at least fifteen days prior to the date of the hearing.
(2) Notwithstanding anything in this Order, if the applicant for summary judgment
wishes to rely on documentary evidence in reply to the defendant's documentary
evidence, the applicant must:—
(a) file such documentary evidence in reply; and
(b) serve a copy of such documentary evidence on the respondent at least five days
prior to the date of the hearing.
(3) Notwithstanding anything to the contrary, sub-rules (1) and (2) shall not require
documentary evidence to be:—
(a) filed if such documentary evidence has already been filed; or
(b) served on a party on whom it has already been served.
6. Orders that may be made by Court.—(1) On an application made under this Order,
the Court may make such orders that it may deem fit in its discretion including the
following:—
(a) judgment on the claim;
(b) conditional order in accordance with rule 7 mentioned hereunder;
(c) dismissing the application;
(d) dismissing part of the claim and a judgment on part of the claim that is not
dismissed;
(e) striking out the pleadings (whether in whole or in part); or
(f) further directions to proceed for case management under Order XV-A.
(2) Where the Court makes any of the orders as set forth in sub-rule (1)(a) to (f), the
Court shall record its reasons for making such order.
7. Conditional order.—(1) Where it appears to the Court that it is possible that a claim
or defence may succeed but it is improbable that it shall do so, the Court may make a
conditional order as set forth in rule 6(1)(b).
(2) Where the Court makes a conditional order, it may:—
(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to the claim or defence,
as the case may be;
(iii) require a party, as the case may be, to give such security or provide such
surety for restitution of costs as the Court deems fit and proper;
(iv) impose such other conditions, including providing security for restitution
of losses that any party is likely to suffer during the pendency of the suit,
as the Court may deem fit in its discretion; and
(b) specify the consequences of the failure to comply with the conditional order,
including passing a judgment against the party that have not complied with the
conditional order.
8. Power to impose costs.—The Court may make an order for payment of costs in an
application for summary judgment in accordance with the provisions of sections 35
and 35A of the Code."
Allahabad (Notfn No 1953/35(a) of 22-5-1915; No 6112/35(a) of 10-12-1932; No

2167/35(a)-7(2) of 11-4-1936).—Add the following new rules 12 and 13:—
"12. Every document not written in the Court vernacular or in English, which is produced
(a) with a plaint, or (b) at the first hearing, or (c) at any other time tendered in evidence
in any suit, appeal or proceeding, shall be accompanied by a correct translation of the
document into the Court vernacular. If any such document is written in the Court
vernacular but in characters other than the ordinary Persian or Nagri characters in use,
it shall be accompanied by a correct transliteration of its contents into the Persian or
Nagri character. (22-5-1915)
The person making the translation or transliteration shall give his name and address
and verify that the translation or transliteration is correct. In case of a document written
in a script or language not known to the translator or to the person making the
transliteration, the person who reads out the original document for the benefit of the
translator or the person making the transliteration shall also verify the translation and
transliteration by giving his name and address and stating that he has correctly read
out the original document. (10-12-1932)
13. When a document included in the list, prescribed by rule 1, has been admitted in
evidence, the Court shall, in addition to making the endorsement prescribed in rule 4(1),
mark such document with serial figures in the case of documents admitted as
evidence for a plaintiff, and with serial letters in the case of documents admitted as
evidence for a defendant, and shall initial every such serial number or letter. When there
are two or more parties defendants, the documents of the first party defendant may be
marked A-1, A-2, A-3 etc and those of the second party B-1, B-2, B-3 etc. When a number
of documents of the same nature is admitted, as for example a series of receipts for
rent, the whole series shall bear one figure or capital letter or letters and a small figure
or small letter shall be added to distinguish each paper of the series".
Karnataka.— Add the following as rule 12:—
"12. Where any document not written in the language of the Court is produced either
with the plaint or with the written statement or at the first hearing or is at any other time
tendered in evidence in any suit the Court may require that it shall be accompanied by a
correct translation of the document into the language of the Court. Such translation
shall be made either by the translator or interpreter of the Court, if any, or by any other
competent person, and in the latter case the translation shall be verified by an affidavit
of the person making the same declaring that he is acquainted with the character and
language of the document and with the language of the Court and that the translation
is true and correct to the best of his knowledge. (30-3-1967).
Orissa.— Add the following as rule 12:—
"12. Every document not written in Oriya or English which is produced (a) with a plaint
or (b) at the first hearing or (c) at any other time tendered in evidence in any suit, appeal
or proceeding, shall be accompanied by a correct translation of the document into
English. The person making the translation shall give his name and address and verify
that the translation is correct. If the document is admitted in evidence the opposite
party shall either admit the correctness of the translation or submit his own translation
of the document." (19-12-1961).
Ref.—Production of any property [Section 94(b)]; Inspection etc of property (Order

XXXIX rule 7); Inspection by Court (Order XVIII rule 18); Production of material thing
(Section 60 Evidence Act).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Framing of issues
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XIV Settlement of Issues and Determination of Suit on Issues of Law or

on Issues Agreed Upon
R. 1.
Framing of issues
(1) Issues arise when a material proposition of fact or law is affirmed by the one
party and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff
must allege in order to show a right to sue or a defendant must allege in order
to constitute his defence.
(3) Each material proposition affirmed by one party and denied by the other shall
form the subject of a distinct issue.
(4) Issues are of two kinds:
(a) issues of fact.
(b) issues of law.
(5) At the first hearing of the suit the Court shall, after reading the plaint and the
written statements, if any, and 1[ after examination under rule 2 of Order X and
after hearing the parties or their pleaders ] , ascertain upon what material
propositions of fact or of law the parties are at variance, and shall thereupon
proceed to frame and record the issues on which the right decision of the case
appears to depend.
(6) Nothing in this rule requires the Court to frame and record issues where the
defendant at the first hearing of the suit makes no defence.
COMMENT.—
This rule has been amended to clarify that examination of parties refers to the
examination under rule 2 of O X of the Code of Civil Procedure.
The petition of plaint and the written statement constitute the pleading in a case and
mark the first stage at which the differences between the parties are placed before the
Court. It is incumbent on the Court to examine at the first hearing the parties in order to
ascertain with precision the propositions of law or fact on which the parties are at
variance, and further to frame and record issues on such questions.
The pleadings need to be critically examined by the judicial officers or judges both
before issuing the ad-interim injunction and/or framing of issues.
The pleadings must set forth sufficient factual details to the extent that it reduces the
ability to put forward a false or exaggerated claim or defence. The pleadings must
inspire confidence and credibility. If false averments, evasive denials or false denials
are introduced, then the Court must carefully look into it while deciding a case and
insist that those who approach the Court, must approach it with clean hands.
Framing of issues.—
Framing of issues is a very important stage of a civil trial. It is imperative for a judge to
critically examine the pleadings of the parties before framing of issues. Rule 2 of the O
X of the Code of Civil Procedure enables the Court in its search for the truth, to go to
the core of the matter and narrow down or even eliminate the controversy.
If issues are properly framed, the controversy in the case can be clearly focused and
documents can be properly appreciated in that light. The relevant evidence can also be
carefully examined. Careful framing of issues also helps in proper examination and
cross examination of witnesses and final arguments in the case.2
Power of High Court.—
The High Court is competent to dispose of the suit on preliminary issues, as

contemplated in O XIV rule 1, which may include the issues with regard to
maintainability of suit.3
Preliminary issues.—
In terms of O XIV rule 1 a Civil Court can dispose of a suit on preliminary issues. It is
neither in doubt nor in dispute that the issues of res judicata and/constructive res
judicata as also the maintainability of the suit can be adjudicated upon as preliminary
issues.4
It has been held by the Supreme Court in JK Iron and Steel Co v The Iron and Steel
Mazdoor Union, AIR 1956 SC 231 : (1955) 2 SCR 1315 : (1956) 1 LLJ 227 that "the only
point of requiring pleadings and issues is to ascertain the real dispute between the
parties, to narrow the area of conflict and to see just where the two sides differ", so that
no party at the trials is taken by surprise. Thus, framing of issues has a very important
bearing on the trial and decision of a case.
The Court should not determine an issue which does not arise on the pleadings and
should not decide a suit on a matter on which no issue has been raised.5 No issue
need be framed on a point of law which is perfectly clear.6
Where broader issue framed having mixed facts, some facts relating to plaintiff and
some facts relating to defendant, 7 the trial Court allowing plaintiff to lead evidence of
defendant was not improper.7
Non-framing of specific issue, effect of.—
In an eviction suit on ground of default and commission of nuisance by tenant no

specific issue about nuisance was framed. The parties were aware of that issue and
had led evidence. The Court considered pleadings of parties on that issue as also
material brought on record and decided the issue against the tenant. Interference with
this finding by High Court in second 8appeal only on ground that no issue was framed
on point of nuisance, was not proper.8
Reference may be made here to rule 61 of the Madras Civil rules of Practice which give
the guidelines for the framing of issues. According to this rule, in framing issues, the
Court shall proceed as follows:
1. Every material proposition of fact and every proposition of law which is affirmed
by the one side and denied by the other, shall be made the subject of a separate
issue.
2. Every issue of fact shall be framed as to indicate on whom the burden of proof
lies.
3. Every issue of law shall be so framed as to indicate, either by a statement of

admitted or alleged facts, or by reference to the pleadings or some document
mentioned therein, the precise question of law to be decided.
4. No proposition of fact which is not itself a material proposition but is relevant

only as tending to prove a material proposition shall be made subject of an issue.
5. No question regarding admissibility of evidence shall be made subject of an

issue.
Where the parties well understood the two cases opposed to each other and led all the
evidence in support of their contentions, the absence of an issue cannot be said to be
fatal to the case or that there was mistrial sufficient to vitiate the decision.9
Non-framing of issues.—
In a suit for recovery of amount, no objection was raised by the defendant or

application was filed for framing additional issue during the pendency of the suit. The
defendant in his oral evidence also did not make any mention of any document in
support of his plea that he had paid major part and the entire interest. Thus, the decree
passed in favour of the plaintiff was not liable to be interfered with.10
The first hearing of the suit can never be earlier than the date fixed for the preliminary
examination of the parties and settlement of issues.11
It is always open to a party to abandon an issue. The Supreme Court has held in Wali
Singh v Sohan Singh, AIR 1954 SC 263 that where counsel for both the parties stated
when issues were framed that there were no other points in dispute, all other points
raised by them in their pleadings must be taken to have been given up and could not be
raised in appeal. But there can be no question of waiver of a question of law and it is
open to the party to raise it even in appeal though he had abandoned it in the Court
below.
Moulding of relief.—
Where a defendant is a tresspasser and is sued as such, the plaintiff must file a suit
having regard to the cause of action thereof. The Court in a particular case can mould
the relief having regard to the provision of O VII rule 7 of the Code.12
Triable issue.—
The question of maintainability of suit by itself does not give rise to a triable issue.13
The plaintiff led evidence on the issue that notice was served on the defendant under
section 106 of the Transfer of Property Act. During trial the defendant neither took
objection nor did he dispute that the notice was served upon him. Thus, if evidence is
available on record on this point and both the parties have lead evidence and the
Courts below have recorded a finding in this regard, without framing an issue on the
point of legal notice, finding can be given on the said point without framing an issue.14
Once the execution of the promissory note is admitted there is a presumption under
section 118 of the Negotiable Instruments Act, that every negotiable instrument was
made or drawn for consideration until the contrary is proved. The trial Court had framed
the issue "whether the suit promissory note is not supported by consideration?" Thus, it
is for the plaintiff to prove the passing of consideration, which according to law is a
presumed fact and a fact which need not be proved, as the execution is admitted. But
as per the legal position the burden is on the defendant to prove that presumption
regarding passing of consideration is wrong and incorrect. The Court below, having lost
the focus, has mis-directed itself resulting in miscarriage of justice.15
words (w.e.f. 1-2-1977).
2 A Shanmugam v Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalani Sangam,
AIR 2012 SC 2010 .
4 Abdul Rahman v Prasony Bai AIR 2003 SC 718 (722) : (2003) 1 SCC 488 .
5 MB Sanghvi v Secretary, Madras Chillies Merchant, AIR 1969 SC 530 : (1969) 1 SCR 366 : 1969
Lab IC 854 .
6 GC Behara v A Behara, AIR 1972 Ori 38 .
7 Akha Ram v LR of Ram Sahai, AIR 2009 Raj 138 ; see also Sadashiv Shyama Sawant v Anita
Anant Sawant, (2010) 3 SCC 385 ; Gangai Vinayagar Temple v Meenakshee Ammal, (2009) 9 SCC
757 .
8 Sayeda Akhtar v Abdul Ahad, AIR 2003 SC 2985 (2987) : (2003) 7 SCC 52 .
9 Kameswaramma v Subba Rao, AIR 1963 SC 884 (886); see also Nagubai v Shamarao, AIR 1956
SC 593 : 1956 SCR 451 ; Kunju Kesavan v MM Phillip, AIR 1964 SC 164 (169) : (1964) 3 SCR 634 :
1963 KLJ 962 .
10 Thokchom Suren Singh v Laishram Priyokumar Singh, AIR 2014 Mpr 37 (para 7).
11 Sham Lal v Atma Nand Jain Sabha, AIR 1987 SC 197 (200) : (1987) 1 SCC 222 ; see also Ved
Prakash Wadhwa v Vishwa Mohan, AIR 1982 SC 816 : (1981) 3 SCC 667 .
12 Bishwanath Agrawalla v Sabitri Bera, (2009) 15 SCC 693 (703).
13 Ajay Mohan v HN Rai, (2008) 2 SCC 507 .
14 Basanti Devi v Masjid Panch Visaytiyan, AIR 2016 Raj 69 .
15 Union Bank of India v Liakat Ali, AIR 2012 Mad 255 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Court to pronounce
judgment on all issues
© 2020 LexisNexis
THE FIRST SCHEDULE

16[R. 2.
Court to pronounce judgment on all issues
(1) Notwithstanding that a case may be disposed of on a preliminary issue, the

Court shall,
subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law
only, it may try that issue first if that issue relates to—
(a) the jurisdiction of the Court, or
(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the
other issues until after that issue has been determined, and may deal
with the suit in accordance with the decision on that issue .]
COMMENT.—
The existing rule 2 was substituted by the new rule which provides that, although a suit
can be disposed of on a preliminary issue, the Court shall ordinarily pronounce
judgment on all issues; but where any issue relates to the jurisdiction of the Court or a
bar created by any law for the time being in force, the Court may postpone settlement
of the other issues until the preliminary issue with regard to the jurisdiction of the Court
or such bar has been determined and the Court may deal with the suit in accordance
with the determination of such preliminary issue.
It is a well settled principle of law that the plea regarding maintainability of suit is
required to be raised in the first instance in the pleading (written statement); then only
such plea can be adjudicated by the trial court on its merits as the preliminary issue
under O XIV rule 2 of the Code of Civil Procedure. Once a finding is rendered on the
plea, the same can then be examined by the first or/and Second Appellate Court.17
Allegation of fraud.—
The allegation of fraud cannot be heard and decided as a preliminary issue. Ordinarily
suits and proceeding should be decided by rendering finding on all the issues.18
No jurisdiction to decide which is not in plaint or issue.—
A tenant denied that he had sub-let the premises. There was no pleading or issue that
the permission to sub-let was taken. The Court has no jurisdiction to decide whether
permission was granted.19
Issues must be of pure question of law.—
The issues relating to jurisdiction and bar of suit, only which have been permitted to be
tried as preliminary issues, must be pure question of law as distinguished from mixed
question of law and fact. The Code gives no jurisdiction to try a suit on mixed question
of law and as preliminary issues.20
Redemption of mortgage and issue of limitation are mixed questions of law and fact
and cannot be decided as preliminary issues.21
Preliminary Issue.—
It is trite law by now that the Court can decide an issue as a preliminary issue if it is of
the opinion that the case or any part thereof may be disposed off as an issue of law
only. Also, an issue which involves mixed questions of law and fact cannot be tried as a
preliminary issue which is required to be tried along with all other issues framed as
contemplated under O XIV rule 2(1) of the Code of Civil Procedure. In such event it may
try that issue first if the issue relates to jurisdiction of the Court or a bar to the suit
created by any law for the time being in force. The plaintiff will succeed only on proving
landlord tenant relationship and the claim of defendant over disputed premises, these
issues cannot be decided as preliminary issues as they involve mixed questions of law
and fact.22
Preliminary issue.—
Issue relating to sufficiency of court fees is not a mere issue of law, hence cannot be
decided as preliminary issue.23
Decision on preliminary issue.—
In view of provisions under O XIV rule 2 evidence must be accepted on all issues.
Where jurisdiction becomes a mixed question of fact and law, it cannot be decided as a
preliminary issue.24
Adjudication of preliminary objections.—
Where trial Court not having adjudicated on the objection as to territorial jurisdiction,
merely dismissed it, matter was remanded to the trial Court for adjudication of the said
question.25
Dismissal after framing issues.—
Once issues have been framed, Court has to proceed to record evidence and
pronounce judgments on all issues. The dismissal of suit as not maintainable, after
framing issues, is wrong procedure and is illegal .26 The words "it may try" in rule 2(2)
are clearly indicative of the fact that discretion is given to the Court and no duty is cast
upon the court to decide any issue as preliminary issue. Where the decision on the
issues of law depends upon the decision of fact, it cannot be tried as preliminary issue.
This view derives justification from the employment of the words "it may try" that is to
exercise the discretion in the rival case of the parties looking at the same side by side
viewing of the provision of law holding the field.27
16 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 64, for rule 2
(w.e.f. 1-2-1977).
17 Kanthamani v Nasreen Ahmed, AIR 2017 SC 1236 : 2017 (3) SCALE 331 : (2017) 4 SCC 654 :
2017 (2) CTC 656 .
18 Renubala Nama v Renubala Das, (2009) 5 Gau LR 120 (124–125) : AIR 2010 Gau 8 ; see also
Ramesh Chandra Shankla v Vikram Cement, AIR 2009 SC 713 .
19 Gappulal v Shriji Dwarkadheeshjee, AIR 1969 SC 1291 (1293) : (1969) 1 SCC 792 .
20 SS Khanna v FJ Dillon, AIR 1964 SC 497 (502) : (1964) 4 SCR 409 : 1963 ALJ 1068 : 66 Punj
LR 115.
21 Hareendran v Sukurmaran, AIR 2017 SC 2697 : (2018) 14 SCC 187 : 2017 GLH (2) 552 .
22 Shiba Prasad Das v Vysa Teli Jatiya Samiti Cuttac, AIR 2013 Ori 118 .
23 Moola Vijaya Bhaskar v Moola SS Ravi Prakash, AIR 2009 AP 150 ; see also Nawab Shaqafath
Ali Khan v Nawab Imdad Hah Bahadur, (2009) 5 SCC 162 (178).
24 Saradekanta Panda v Poonam Padhi, (2010) (1) DMC 728 (731) (DB) : AIR 2009 Ori 145 .
25 AVN Tubes Ltd v Shishir Mehta, (2008) 3 SCC 272 .
26 R Gopalkrishna v KS Corpn, 2008 (5) Kar LJ 327 (331-332) (DB).
27 Durga Devi Agarwalla v State of Orissa, AIR 2014 Ori 140 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Materials from which
issues may be framed
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 3.
Materials from which issues may be framed
The Court may frame the issues from all or any of the following materials:—
(a) allegations made on oath by the parties, or by any persons present on their
behalf, or made by the pleaders of such parties;
(b) allegations made in the pleadings or in answers to interrogatories delivered in

the suit;
(c) the contents of documents produced by either party.
COMMENT.—
The proper material that may be taken into consideration under this rule are:
(i) allegations made on oath by the parties or any person present on their behalf
and statements made by pleaders appearing for the parties;
(ii) allegations made in pleadings or in answers to interrogatories; and
(iii) documents filed by parties.
A trial judge should not determine an issue not arising on pleadings of parties.28
The issue raised by the Court should not be inconsistent with the allegations contained
in the pleadings. Thus, on a plea of forgery of a document, no issue can be raised as to
whether it was executed under coercion or undue influence. But an issue as to undue
influence is not inconsistent with a plea of fraud. Therefore, where fraud is pleaded in
the plaint and the plaintiff's counsel alleges at the hearing that the plaintiff was
subjected to undue influence, the Court may allow issues both as to fraud and undue
influence.29
28 Sita Ram v Radha Bai, AIR 1968 SC 534 (536) : (1968) 1 SCR 805 .
29 Mohammad Ibrahim v Umatullah Jan, 39 IC 798 : (1917) Punj Reg No 90 p 350.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Court may examine
witnesses or documents before framing issues
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 4.
Court may examine witnesses or documents before framing issues
Where the Court is of opinion that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of some
document not produced in the suit, it 30[ may adjourn the framing of issues to a day not
later than seven days ], and may (subject to any law for the time being in force) compel
the attendance of any person or the production of any document by the person in
whose possession or power it is by summons or other process.
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
Civil Procedure Code (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002).—

1999 stated thus:-
Rule 4 of Order XIV is proposed to be amended so as to restrict the discretion of the Court
by fixing time limit beyond which no adjournment for examination of witness or of the
document shall be granted by the Court before framing of issues by the Court. It is also
proposed to omit rule 5 so that issues are framed within time and no application for
amendments and striking out the issue is entertained by the Court. [Clause 24]

O XIV of the First Schedule, as amended and omitted by section 24 the Amendment
Act, 1999 shall not affect any order made by the Court adjourning the framing of the
issues and amending and striking out issues before the commencement of section 24
of the Amendment Act, 1999.

Time-limit for examination of documents and witnesses by Court for framing
of issues.—
Rule 4 of O XIV as amended restricts the discretion of the Court by fixing time limit of
seven days within which the Court must examine the witnesses Court may examine
witnesses or documents before framing issues and documents which the Court
considers to be necessary for correctly framing issues.
Where it is not clear on the facts alleged in the written statements, whether the plea
intended to be raised was one of fraud, coercion undue influence or mistake, it has
been held by the Supreme Court in Hiralal v Badhulal, AIR 1953 SC 225 : 1953 SCR 758 :
(1953) 1 MLJ 725 : 66 MLW 545 that it was duty of the Court to have examined the
SUparties, and clarified the position and settled the appropriate issues.
30 Subs. for 'may adjourn the framing of the issues to a future day' by the Code of Civil
2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5. Power to amend, and
strike out, issues
© 2020 LexisNexis
THE FIRST SCHEDULE

31[R. 5.
Power to amend, and strike out, issues
(1) The Court may at any time before passing a decree amend the issues or frame
additional issues on such terms as it thinks fit, and all such amendments or
additional issues as may be necessary for determining the matters in controversy
between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues
that appear to it to be wrongly framed or introduced. ]
COMMENT.—
Important Note.—
2002).—
By Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002), the old rule 5
verbatim has been restored back. Thus, the power of Court to amend or strike issues
shall be continued to be exercised by the Court as before.
2002).—
Rule 5 of O XIV was omitted by the Code of Civil Procedure (Amendment) Act, 1999
(Act 46 of 1999). The rule was deleted so that the issues are framed in time and no
application for amendments and striking out an issue is entertained by the Court.

1999 stated thus:-
Rule 4 of Order XIV is proposed to be amended so as to restrict the discretion of the Court
by fixing time limit beyond which no adjournment for examination of witnesses or of the
documents shall be granted by the Court before framing of issues by the Court. It is also
proposed to omit rule 5 so that issues are framed within time and no application for
amendments and striking out issue is entertained by the Court. [Clause 24]
Rule 5 of this Order lays down provisions for amending the issues, framing additional
issues, and striking out issues in the course of the trial of a suit. A Court trying a civil
suit has inherent power to take cognizance of questions going to the root of the
subject-matter in controversy between the parties at any stage of the trial. But before
doing so, the Court must frame and record issues on such questions.
The power of the Court is subject to rule 3 of this Order. Thus, the rule does not enable
the re-opening of issues already closed.
The subsequent developments of fact or law which have a material bearing on the
entitlement of the parties to relief or on aspects which bear on the moulding of the
relief occur, the Court, even at any stage of the proceedings, is not precluded from
taking a cautious cognizance of the subsequent developments of fact and law to
mould the relief.32
It has been held by the Karnataka High Court in Chikkaveeregowda v Devegowda, AIR
1975 Kant 145 ; see also Tara Bai v Krishna, AIR 1972 Mys 214 that the Court has ample
power under rule 5 of O XIV to delete any issue framed by it any time before the
judgment is actually delivered.
Framing of necessary issues.—
Necessary issues ought to be framed by the trial Court in order to determine the rights
of the parties.33
Code of Civil Procedure authorises the Court to amend and strike out issues including
power to frame additional issues or to recast issues already framed. The 1st appellate
Court can analyse factual aspects and can also decide an issue or additional issue.34
Notfn. S.O. 604(E), dt. 6-6-2002, Section 11.
Earlier rule 5 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f.
1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 before its omission it stood as under:
'Rule 5. Power to amend, and strike out, issues.—(1) The Court may at any time before passing a
decree amend the issues or frame additional issues on such terms as it thinks fit, and all such
amendments or additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.
(2) The Court may also, at any time before passing a decree, strike out any issues that appear to
it to be wrongly framed or introduced.'
32 Jai Prakash Gupta v Riyaz Ahmad, (2009) 10 SCC 197 (204).

33 Nafeesa Usmani v Anwar Jahan, 2009 AIHC (NOC) 913 (MP) (DB); WP No 8987 of 2007, Dt
28 January 2009; see also Ajit Gaitonde v Ezilda EC Pinto, 2009 AIHC 3292 (Bom-DB).
34 Bachahan Devi v Nagar Nigam, Gorakhpur, (2008)12 SCC 372 ; Jatindra Chandra Deb v Ashim
Kumar Ghosh, AIR 2015 Gau 136 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Questions of fact or law
may by agreement be stated in form of issues
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 6.
Questions of fact or law may by agreement be stated in form of issues
Where the parties to a suit are agreed as to the question of fact or of law to be
decided between them, they may state the same in the form of an issue, and enter
into an agreement in writing that, upon the finding of the Court in the affirmative or
the negative of such issue,—
(a) a sum of money specified in the agreement or to be ascertained by the Court,

or in such manner as the Court may direct, shall be paid by one of the parties to
the other of them, or that one of them be declared entitled to some right or
subject to some liability specified in the agreement;
(b) some property specified in the agreement and in dispute in the suit shall be
delivered by one of the parties to the other of them, or as that other may direct;
or
(c) one or more of the parties shall do or abstain from doing some particular act
specified in the agreement and relating to the matter in dispute.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Court, if satisfied that
agreement was executed in good faith, may pronounce judgment
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 7.
Court, if satisfied that agreement was executed in good faith, may pronounce
judgment
Where the Court is satisfied, after making such inquiry as it deems proper,—
(a) that the agreement was duly executed by the parties,
(b) that they have a substantial interest in the decision of such question as
aforesaid, and
(c) that the same is fit to be tried and decided,
it shall proceed to record and try the issue and state its finding or decision
thereon in the same manner as if the issue had been framed by the Court;
and shall, upon the finding or decision on such issue, pronounce judgment
according to the terms of the agreement; and, upon the judgment so
pronounced, a decree shall follow.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Parties not at issue
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XV 1Disposal of the Suit at the First Hearing
R. 1.
Parties not at issue
Where at the first hearing of a suit it appears that the parties are not at issue on any
question of law or of fact, the Court may at once pronounce judgment.
COMMENT.—
When the parties are not at issue on any point of facts or law, the Court may, under this
rule, at once pronounce judgment. But a Court will not be justified in disposing of a
case before the date fixed for hearing and the decree so passed will be set aside.
A civil proceeding governed by the Code will have to be proceeded with and decided in
accordance with law and the provisions of the Code and not on the whims of the
Court.2
As per the averments made in the plaint, the plaintiffs admitted that the suit was barred
by limitation against all plaintiffs as the limitation period for filing suit by the youngest
plaintiff after attaining majority had expired five years back. It was held that the said
admissions made were sufficient to pronounce judgment dismissing the suit. No
further evidence is required to be considered to decide the issue of limitation.3
3 L Ramachandran v K Ramesh, AIR 2015 Mad 281 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. One of several
defendants not at issue
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
One of several defendants not at issue
4
[(1)] Where there are more defendants than one, and any one of the defendants is
not at issue with the plaintiff on any question of law or of fact, the Court may
at once pronounce judgment for or against such defendant and the suit shall
proceed only against the other defendants.
5
[(2) Whenever a judgment is pronounced under this rule, a decree shall be drawn
up in accordance with such judgment and the decree shall bear the date on
which the judgment was pronounced.]
COMMENT.—
Sub-rule (2) has been added to this rule (2) newly. By this sub-rule, it has been provided
that whenever a judgment is pronounced under the rule, a decree shall be drawn up in
accordance with such jurisdiction and such decree shall bear the date of the judgment.
In a suit for ejectment of lease and for recovery of arrears of rent, the Court enjoys
discretion. It may not strike of defence in case the defendant has not deposited the
rent and has also failed to represent within terms of O XV rule 5. If the Court finds on
facts and circumstances already existing on record, a good reason for not striking of
defence, it can exercise its discretion.6
1976, Section 65, (w.e.f. 1-2-1977).
6 Bimal Chand Jain v Gopal Agrawal, AIR 1981 SC 1657 (1659) : (1981) 3 SCC 486 : 1981 ALJ
908 : (1981) 7 AIR 556 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Parties at issue
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Parties at issue
(1) Where the parties are at issue on some question of law or of fact, and issues
have been framed by the Court as hereinbefore provided, if the Court is
satisfied that no further argument or evidence than the parties can at once
adduce is required upon such of the issues as may be sufficient for the
decision of the suit, and that no injustice will result from proceeding with the
suit forthwith, the Court may proceed to determine such issues, and, if the
finding thereon is sufficient for the decision, may pronounce judgment
accordingly, whether the summons has been issued for the settlement of
issues only or for the final disposal of the suit:
Provided that, where the summons has been issued for the settlement of
issues only, the parties or their pleaders are present and none of them objects.
(2) Where the finding is not sufficient for the decision, the Court shall postpone
the further hearing of the suit, and shall fix a day for the production of such
further evidence, or for such further argument as the case requires.
COMMENT.—
Where summons have been issued for settlement of issues and where issues have
been settled, unless the parties agree, the Court cannot deny the rights of parties to
lead evidence. To render final decision by denying such opportunity would be high
handed, arbitrary and illegal.7
The issue regarding valuation of suit even though it may be a mixed question of law
and fact, it can very well be decided as a preliminary issue.8
8 Suryapal Singh v Sudha Tomar, AIR 2014 MP 23 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Failure to produce
evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Failure to produce evidence
Where the summons has been issued for the final disposal of the suit and either party
fails without sufficient cause to produce the evidence on which he relies, the Court
may at once pronounce judgment, or may, if it thinks fit, after framing and recording
issues, adjourn the suit for the production of such evidence as may be necessary for
its decision upon such issues.
Omission of Order XV.—Order XV of the Code shall be omitted.
Insertion of Order XV-A.—After Order XV of the Code, the following Order shall be
inserted, namely:—
"ORDER XV-A
CASE MANAGEMENT HEARING
1. First Case Management Hearing.—The Court shall hold the first Case Management
Hearing, not later than four weeks from the date of filing of affidavit of admission or
denial of documents by all parties to the suit.
2. Orders to be passed in a Case Management Hearing.—In a Case Management

Hearing, after hearing the parties, and once it finds that there are issues of fact and law
which require to be tried, the Court may pass an order—
(a) framing the issues between the parties in accordance with Order XIV of the
Code of Civil Procedure, 1908 (5 of 1908) after examining pleadings, documents
and documents produced before it, and on examination conducted by the Court
under rule 2 of Order X, if required;
(b) listing witnesses to be examined by the parties;
(c) fixing the date by which affidavit of evidence to be filed by parties;
(d) fixing the dates on which evidence of the witnesses of the parties to be
recorded;
(e) fixing the date by which written arguments are to be filed before the Court by the
parties;
(f) fixing the date on which oral arguments are to be heard by the Court; and
(g) setting time limits for parties and their advocates to address oral arguments.
3. Time limit for the completion of a trial.—In fixing dates or setting time limits for the
purposes of rule 2 of this Order, the Court shall ensure that the arguments are closed
not later than six months from the date of the first Case Management Hearing.
4. Recording of oral evidence on a day-to-day basis.—The Court shall, as far as
possible, ensure that the recording of evidence shall be carried on, on a day-to-day
basis until the cross-examination of all the witnesses is complete.
5. Case Management Hearings during a trial.—The Court may, if necessary, also hold
Case Management Hearings anytime during the trial to issue appropriate orders so as
to ensure adherence by the parties to the dates fixed under rule 2 and facilitate speedy
disposal of the suit.
6. Powers of the Court in a Case Management Hearing.—(1) In any Case Management

Hearing held under this Order, the Court shall have the power to—
(a) prior to the framing of issues, hear and decide any pending application filed by
the parties under Order XIII-A;
(b) direct parties to file compilations of documents or pleadings relevant and

necessary for framing issues;
(c) extend or shorten the time for compliance with any practice, direction or Court
order if it finds sufficient reason to do so;
(d) adjourn or bring forward a hearing if it finds sufficient reason to do so;
(e) direct a party to attend the Court for the purposes of examination under rule 2 of
Order X;
(f) consolidate proceedings;
(g) strike off the name of any witness or evidence that it deems irrelevant to the
issues framed;
(h) direct a separate trial of any issue;
(i) decide the order in which issues are to be tried;
(j) exclude an issue from consideration;
(k) dismiss or give judgment on a claim after a decision on a preliminary issue;
(l) direct that evidence be recorded by a Commission where necessary in

accordance with Order XXVI;
(m) reject any affidavit of evidence filed by the parties for containing irrelevant,
inadmissible or argumentative material;
(n) strike off any parts of the affidavit of evidence filed by the parties containing
irrelevant, inadmissible or argumentative material;
(o) delegate the recording of evidence to such authority appointed by the Court for
this purpose;
(p) pass any order relating to the monitoring of recording the evidence by a
commission or any other authority;
(q) order any party to file and exchange a costs budget;
(r) issue directions or pass any order for the purpose of managing the case and
furthering the overriding objective of ensuring the efficient disposal of the suit.
(2) When the Court passes an order in exercise of its powers under this Order, it may—
(a) make it subject to conditions, including a condition to pay a sum of money into
Court; and
(b) specify the consequence of failure to comply with the order or a condition.
(3) While fixing the date for a Case Management Hearing, the Court may direct that the
parties also be present for such Case Management Hearing, if it is of the view that
there is a possibility of settlement between the parties.
7. Adjournment of Case Management Hearing.—(1) The Court shall not adjourn the
Case Management Hearing for the sole reason that the advocate appearing on behalf
of a party is not present:
Provided that an adjournment of the hearing is sought in advance by moving an

application, the Court may adjourn the hearing to another date upon the payment of
such costs as the Court deems fit, by the party moving such application.
(2) Notwithstanding anything contained in this Rule, if the Court is satisfied that there is
a justified reason for the absence of the advocate, it may adjourn the hearing to
another date upon such terms and conditions it deems fit.
8. Consequences of non-compliance with orders.—Where any party fails to comply

with the order of the Court passed in a Case Management Hearing, the Court shall have
the power to—
(a) condone such non-compliance by payment of costs to the Court;
(b) foreclose the non-compliant party's right to file affidavits, conduct cross-
examination of witnesses, file written submissions, address oral arguments or
make further arguments in the trial, as the case may be, or
(c) dismiss the plaint or allow the suit where such non-compliance is wilful,
repeated and the imposition of costs is not adequate to ensure compliance.".
STATE AMENDMENT
In its application to the State of U.P. for rule 5 inserted by U.P. Act 37 of 1972 substitute
the following namely:—
"5. Striking off defence on failure to deposit admitted rent, etc.—(1) In any suit by a
lessor for the eviction of a lessee after the determination of his lease and for the
recovery from him of rent or compensation for use and occupation, the defendant shall,
at or before the first hearing of the suit, deposit the entire amount admitted by him to
be due together with interest thereon at the rate of nine per centum per annum and
whether or not he admits any amount to be due, he shall throughout the continuation of
the suit regularly deposit the monthly amount due within a week from the date of its
accrual and in the event of any default in making the deposit of the entire amount
admitted by him to be due or the monthly amount due as aforesaid the Court may,
subject to the provisions of sub-rule (2) strike off his defence.
Explanation 1:—The expression 'first hearing' means the date for filing written
statement or for hearing mentioned in the summons or where more than one of such
dates are mentioned, the last of the dates mentioned.
Explanation 2:—The expression 'entire amount admitted by him to be due' means the
entire gross amount, whether as rent or compensation for use and occupation,
calculated at the admitted rate of rent for the admitted period of arrears after making
no other deduction except the taxes, if any, paid to a local authority in respect of the
building on lessor's account 9[and the amount, if any, paid to the lessor acknowledged
by the lessor in writing signed by him] and the amount, if any, deposited in any Court
under Section 30 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction)
Act, 1972.
Explanation 3:—The expression 'monthly amount due' means the amount due every
month, whether as rent or compensation for use and occupation at the admitted rate of
rent, after making no other deduction except the taxes, if any, paid to a local authority,
in respect of the building on lessor's account.
(2) Before making an order for striking off defence, the Court may consider any
representation made by the defendant in that behalf provided such representation is
made within 10 days of the first hearing or, of the expiry of the week referred to in sub-
section (1), as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff:
Provided that such withdrawal shall not have the effect of prejudicing any claim by the
plaintiff disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the
depositor to be deductible on any account, the Court may require the plaintiff to furnish
the security for such sum before he is allowed to withdraw the same". (U.P. Act 57 of
1976, Section 7 1 (1-1-77)
Punjab, Haryana and Chandigarh.—Insert the following as rule 5 after rule 4:—
"5. Striking off defence for failure to deposit admitted rent.—(1) In any suit by a lessor for
the eviction of a lessee after the determination of his lease and for the recovery from
him of rent or compensation for use and occupation, the defendant shall, at or before
the first hearing of the suit, deposit the entire amount admitted by him to be due
together with interest thereon at the rate of nine per cent. per annum and whether or
not he admits any amount to be due, he shall throughout the continuation of the suit
regularly deposit the monthly amount due within a week from the date of its accrual,
and in the event of the default in making the deposit of the entire amount admitted by
him to be due or monthly amount due as aforesaid, the Court may, subject to the
provisions of sub-rule (2) strike off his defence.
Explanation 1.—The expression "first hearing" means the date for filing written
statement or for hearing mentioned in the summons or where more than one of such
dates are mentioned, the last of the dates mentioned.
Explanation 2.—The expression "entire amount admitted by him to be due" means the
entire gross amount whether as rent or compensation for use and occupation,
calculated at the admitted rate of rent for the admitted period of arrears after making
no other deduction except the taxes, if any, paid to a local authority in respect of the
building on lessor's account and the amount, if any, deposited in any Court.
Explanation 3.—The expression "monthly amount due" means the amount due every
month, whether as rent or compensation for use and occupation at the admitted rate of
rent, after making on other deduction except the taxes, if any, paid to a local authority,
in respect of the building on lessor's account.
(2) Before making an order for striking off defence, that Court may consider any
representation made by the defendant in that behalf provided such representation is
made within 10 days, of the first hearing or, of the expiry of the week referred to in sub-
section (1) as the case may be.
(3) The amount deposited under this rule may at any time be withdrawn by the plaintiff;
Provided that such withdrawal shall not have the effect of prejudicing any claim by the
plaintiff disputing the correctness of the amount deposited:
Provided further that if the amount deposited includes any sums claimed by the
depositor to be deductible or any account, the Court may require the plaintiff to furnish
the security for such sum before he is allowed to withdraw the same."—(13-5-1991).
Bombay Amendment.—Add the following as Order XV-A.
Bombay (Goa, Daman and Diu).—The following amendments were made by Maharashtra
Government Gazette, dated 15-9-1983, Part 4, C. Page 406; Goa Gazette, dated 12-10-
1987, Extra., Section 1, No 28, Page 380 dated 1-4-!987.
Insert, before Order XVI, the following as Order XV-A.
ORDERXV-A
STRIKING OFF DEFENCE IN A SUIT BY A LESSOR
1.10[(1) In any suit by a lessor or a licensor against a lessee or a licensee, as the case
may be, for his eviction with or without the arrears of rent or license fee and future
mesne profits from him, the defendant shall deposit such amount as the Court may
direct on account of arrears up to the date of the Order (within such time as the Court
may fix) and thereafter continue to deposit in each succeeding month the rent or
license fee claimed in the suit as the Court may direct. The defendant shall unless
otherwise directed continue to deposit such amount till the decision of the suit.
In the event of any default in making the deposit, as aforesaid, the Court may subject to
the provisions of sub-rule (2) strike off the defence.]
(2) Before passing an order for striking off the defence, the Court shall serve notice on
the defendant or his Advocate to show cause as to why the defence should not be
struck off, and the Court shall consider any such cause, if shown in order to decide as
to whether the defendant should be relieved from an order striking off the defence.
"(3) The amount deposited under this rule shall be paid to the plaintiff lessor or licensor
or his Advocate and the receipt of such amount shall not have the effect of prejudicing
the claim of the plaintiff and it would not also be treated as a waiver of notice of
termination. (1-10-1983)
Explanation.—The suit for eviction shall include suit for mandatory injunction seeking
removal of licensee from the premises for the purpose of this rule.]
Bombay Amendment.—Order XV was introduced into the Code of Civil Procedure

through the Andhra Pradesh state amendment. It enables the plaintiff in a suit for
recovery of possession of an immovable property from a lessee, to insist on deposit of
rents, along with the Written Statement. Once an order is passed directing the
Defendant in such a suit to deposit the arrears of rent, non-compliance with it, would
entail in striking off the defence.
9 Ins. by U.P. Government Gazzette, dated 3-10-1981 Pt 2, p 109.
10 Substituted—See Maharashtra Government Gazzette dated 11-1-1990, Pt IV-C, p 28.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. List of witnesses and
summons to witnesses
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XVI Summoning and Attendance of Witnesses
R. 1.
List of witnesses and summons to witnesses
1
[(1) On or before such date as the Court may appoint, and not later than fifteen
days after the date on which the issues are settled, the parties shall present
in Court a list of witnesses whom they propose to call either to give evidence
or to produce documents and obtain summonses to such persons for their
attendance in Court.
(2) A party desirous of obtaining any summons for the attendance of any person
shall file in Court an application stating therein the purpose for which the
witness is proposed to be summoned.
(3) The Court may, for reasons to be recorded, permit a party to call, whether by
summoning through Court or otherwise, any witness, other than those whose
names appears in the list referred to in sub-rule (1), if such party shows
sufficient cause for the omission to mention the name of such witness in the
said list.
(4) Subject to the provisions of sub-rule (2), summons referred to in this rule may
be obtained by the parties on an application to the Court or to such officer as
may be appointed by the 2[ Court in this behalf within five days of presenting the
list of witnesses under sub-rule (1) ]].
COMMENT.—
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In O XVI, in rule 1 sub-rule (4), for the words "Court in this behalf", occurring at the end,
the words, brackets and figures "Court in this behalf within five days of presenting the
list of witnesses under sub-rule (1)" shall be substituted. The effect of the amendment
is that the summonses, which have to be served upon the witness, may be obtained by
the parties within five days of presenting the list of witnesses. Prior to the amendment
there was no such time limit. Order XVI is proposed to be amended so as to fix a time
limit within which an application may be made for summoning of witness.

1999 stated thus:-
Order XVI is proposed to be amended so as to fix a time limit within which an application

may be made for summoning of witness. Further it is proposed to provide that a party
applying for summons shall pay fee towards calling the witnesses within a period not later
than seven days from the date of making application. [Clause 25].

(r) (of the repeal and savings section) stipulates that the provisions of rules 1 and 2 of
O XVI of the First Sch, as amended by section 25 of the Amendment Act, 1999, shall
not affect any application made for summoning of witnesses and time granted to a
party to deposit amount for summoning witnesses made by the Court before the
Time-limit for obtaining summons for calling witnesses.—
As per the amended provisions of rule 1(4) a time limit of five days from the date of
presenting the list of witnesses has been fixed for making an application for
summoning of witnesses.
The existing rule was substituted by the present rule by the Amending Act of 1976. This
has been done to provide that the application for the issue of summons should indicate
the purpose for which the summons is being obtained. This rule further lays down the
procedure for the filing of a list of witnesses by the parties and provides that a person
not mentioned in the list shall not be produced as a witness without the prior
permission of the Court.
Production of witness.—
The testimony of a properly examined witness cannot be rejected on the ground that he
was produced as witness without being summoned through Court and without his
name being mentioned in the list of witnesses.3
In an election petition if on the evidence date the petitioner is able to keep his
witnesses present then the Court cannot decline to examine them. Non-mention of the
names of witnesses in the list is not material.4
With regard to the summoned witnesses the principle incorporated in O XVIII rule 4 can
be waived.5
Leave of court necessary.—

The provision under rule 1 of O XVI of the Code is subject to the provisions of sub-rule
(3) of rule 1 so before proceeding to examine any witnesses, who might have been
brought by a party for the purpose, the leave of the Court may be necessary. This by
itself would not mean that rule 1A is in derogation to sub-rule (3) of rule 1 of the Code.6
Scope of and difference between O XVI rule 1 and rule 14.—
Order XVI rule 1 and rule 14 of the Code of Civil Procedure have different scope and
amplitude. O XVI rule 1 deals with a situation where parties are enjoined to file list of
witnesses on or before such date as the Court may appoint and not later than 15 days
after the date on which the issues have been settled. Rule 14 of O XVI is a power
vested in Court to act suo moto in summoning any person as a witness to give
evidence, if at any time it thinks it necessary to examine such person as a witness.7
1 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66(i) for rule 1
(w.e.f. 1-2-1977).
2 Subs. for 'Court in this behalf' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
3 Vidhydhar v Mankikrao, AIR 1999 SC 1441 (1449) : (1999) 3 SCC 573 .
4 Mange Ram v Brij Mohan, AIR 1983 SC 925 (929) : (1983) 4 SCC 36 .
6 Ashok Sharma v Ram Adhar, (2009) 11 SCC 47 (50).
7 Kenneth Brian Cashmore v Principal Tashi Namgyal Academy, AIR 2012 Sikkim 16 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Production of
witnesses without summons
© 2020 LexisNexis
THE FIRST SCHEDULE
8[R. 1A.
Production of witnesses without summons
Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without
applying for summons under rule 1, bring any witness to give evidence or to produce
documents.]
Bombay.—Same as Gujarat (1-11-1966).
Gujarat.—The following amendments were made in Gujarat (17-8-1961).
The following shall be added as rule 1B:—
"1B. Court may permit service of summons by party applying for summons.—(1) The
Court may, on the application of any party for a summons for the attendance of any
person, permit the service of summons to be effected by such party.
(2) When the Court has directed service of the summons by the party applying for the
same and such service is not effected, the Court may, if it is satisfied that reasonable
diligence has been used by such party to effect such service, permit service to be
effected by an officer of the Court".
COMMENT.—
The existing rule 1-A was substituted by the present rule by the Amending Act of 1976,
which empowers a party to the suit to bring any witness to give evidence or to produce
documents without obtaining any summons.
If the provisions of O XVI and O XVIII are read together, then it appears that O XVIII rule
4(1) will necessarily apply to a case contemplated by O XVI rule 1A i.e. where any party
to a suit, without applying for summoning under rule 1 brings any witness to give
evidence or produce any document. In such a case, examinationin-chief is not to be
recorded in Court but shall be in the form of an affidavit. In cases where summons have
to be issued under O XVI rule 1 the stringent provision of O XVIII rule 4 may not apply.9
In the application it was stated by the husband of the appellant that they were under
the bona fide impression that they have already filed the list of the witnesses alongwith
the documents and that the mistake of non-filing the list was discovered when they
were getting ready for the trial. It is not in dispute that the trial is yet to begin. In these
circumstances the trial Court committed illegality in refusing to receive the list for
summoning the witnesses for adducing of evidence by the plaintiff.10
When witness a proforma defendant.—

The pro-forma defendant's evidence cannot be rejected on the ground that the pro-
forma defendant has not filed his written statement. There is no bar for the plaintiff to
examine one, the pro-forma defendants as witness.11
8 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66 for rule 1A,
(w.e.f. 1-2-1977).
10 Lalitha J Rai v Aithappa Rai, AIR 1995 SC 1984 : (1995) 4 SCC 244 : (1995) 3 PLR 273 .
11 Niranjan Khodal v Sukna Khodal, AIR 2012 Gau 28 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Expenses of witness to
be paid into Court on applying for summons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Expenses of witness to be paid into Court on applying for summons
(1) The party applying for a summons shall, before the summons is granted and
within a period to be fixed, 12[ which shall not be later than seven days from the
date of making application under sub-rule (4) of rule 1 ] pay into Court [C, GAU]
such a sum of money as appears to the Court to be sufficient to defray the
travelling and other expenses of the person summoned in passing to and from
the Court in which he is required to attend, and for one day's attendance. [B, D,
G, HP, OR, MP, P, PU]
Experts.— (2) In determining the amount payable under this rule, [C, GAU] the
Court may, in the case of any person summoned to give evidence as an expert,
allow reasonable remuneration for the time occupied both in giving evidence
and in performing any work of an expert character necessary for the case.
Scale of expenses.— (3) Where the Court is subordinate to a High Court, regard
shall be had, in fixing the scale of such expenses, to any rules made in that
behalf. [A]
Expenses to be directly paid to witnesses .—(4) 13[Where the summons is

served directly by the party on a witness, the expenses referred to in sub-rule
(1) shall be paid to the witness by the party or his agent].
Allahabad (Notfn No. 2081/35(a)-4(5); (10-8-1918)).—Add the following as sub-rule (4).

—
"(4) This rule shall not apply, in cases to which Government is a party, in the case of
witnesses who are Government servants whose salary exceeds Rs. 10 per mensem
and who are summoned to give evidence in their public capacity at a Court situated
more than five miles from their headquarters."
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page 380,
dated 1-4-1987.
Substitute a colon for the full stop appearing at the end of sub-rule (1) and add the
following proviso:
"Provided that where Government or a public officer being a party to a suit or

proceeding as such public officer supported by Government in the litigation, applies for
a summons to any public officer to whom the Civil Service Regulations apply to give
evidence of facts which have come to his knowledge or of matters which he has to
deal, as a public officer, or to produce any document from public records, the
Government or the aforesaid officer shall not be required to pay any sum of money on
account of the travelling and other expenses of such witness".

West Bengal Gazette, dated 25-7-1928.
Cancel Clauses (1) and (2) and substitute the following:
"(1) The Court shall fix in respect of each summons such a sum of money as appears
to the Court to be sufficient to defray the travelling and other expenses of the persons
summoned in passing to and from the Court in which he is required to attend, and for
one day's attendance.
(2) In fixing such an amount the Court may, in the case of any person summoned to
give evidence as an expert allow, reasonable remuneration for the time occupied both
in giving evidence and in performing any work of an expert character necessary for the
case."
Gujarat.—Same as in Bombay.
Kerala (Lakshadweep Island).—The following amendments were made by Kerala

Sub-rule (4)—Same as that of Madras.
Madhya Pradesh.—Add the following as an exception to sub-rule (1):—
"Exception.—When applying for a summons for any of its own officers, Government and
State Railway administrations will be exempt from the operation of sub-rule (1)."
Madras (Pondicherry).—The following amendments were made by Tamil Nadu Gazette,

dated 1-11-1951.
Add after rule 2(3);
"(4) Where the summons is served on the witnesses by the party directly, the expenses
mentioned in clause (1) shall be paid to the witnesses by the party or his agent".
Patna.—Add as proviso to sub-rule (1):—Provided that the Government shall not be

required to pay any expenses into Court under this rule when it is the party applying for
the summons, and the person to be summoned is an officer serving under the
Government, who is summoned to give evidence of facts which have come to his
knowledge, or of matters with which he has to deal, in his public capacity." (13-2-1952)
Punjab (Notfn No. 156-G of 9-1-1919).—Add the following "Exception" to sub-rule (1):—
"Exception.—When applying for a summons for any of its own officers, Government will
be exempt from the operation of clause (1)."
STATE AMENDMENT
Section 8(a)(ii), w.e.f. 4-1-1977.
(1) In its application to the State of Uttar Pradesh, in rule 2, sub-rule (1), insert, at the
end the following proviso, namely,—
"Provided, where Government is the party applying for a summons to a Government

servant, it shall not be necessary for it to make any such payment into Court".
(ii) After sub-rule (4) as inserted by Act 104 of 1976, insert the following, namely:—
"(4A) Allowances, etc. of Government servant witnesses to be taxed as costs—Any

travelling and daily allowances and the salary, payable to a Government servant who
attends the Court to give evidence or to produce a document shall, on the amount
being certified by such witness, be taxable as costs.
Explanation 1.—The travelling and daily allowances shall be in accordance with the
rules governing such allowances, applicable to the Government servant in question.
Explanation 2.—The daily allowance and salary of the Government servant shall be
proportionate to the number of days of his attendance required by the Court".
COMMENT.—
2002).
In O XVI in rule 2, in sub-rule (1), after the words "within a period to be fixed", the words,
brackets and figures "which shall not be later than seven days from the date of making
application sub-rule (4) of the rule 1" shall be inserted. Order XVI has been amended so
as to provide that a party applying for summons shall pay fee towards calling the
summons within a period not later than seven days from the date of making
application.

1999 stated thus:-
Order XVI is proposed to be amended so as to fix a time limit within which an application

may be made for summoning of witness. Further it is proposed to provide that a party
applying for summons shall pay fee towards calling the witnesses within a period not later
than seven days from the date of making application. [Clause 25].

(r) (of the repeal and savings section) stipulates that the provisions of rules 1 and 2 of
O XVI of the First Sch, as amended by section 25 of the Amendment Act, 1999, shall
not affect any application made for summoning of witnesses and time granted to a
party to deposit amount for summoning witnesses made by the Court before the

Time-limit for payment of expenses for calling witnesses.—
The amendment prescribes a period of not less than seven days from the date of
making the application for summoning the witnesses, for payment of money to defray
the expenses of the witnesses. The effect of the amendment is that a party applying
for summons must pay fee into the Court towards calling the witnesses not later than
seven days from the date of making the application.

A witness is only entitled to be paid his travelling and other expenses for his
attendance in the Court. But a witness is not entitled to any compensation for loss of
time or to any special amount on the ground of status. However, the expenses may be
claimed suitable to the rank or status of the witness.
Government servants summoned as witnesses are not entitled to the payment of any
salary as part of the expenses inasmuch as the Government does not deduct any
salary for such absence.
Sub-rule (4) to this rule was added by the Amending Act of 1976, which provides that
where the summons is served directly by a party, the expenses of the witness should
be paid to the witness by the party or his agent and need not be deposited in the Court.
12 Ins. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002)
vide Notfn. S.O. 603(E), dt. 6-6-2002.
13 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66(iii) (w.e.f. 1-2-
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Tender of expenses to
witness
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Tender of expenses to witness
The sum so paid into Court shall be tendered to the person summoned, at the time of
serving the summons, if it can be served personally. [AP, B, C, D, GAU, G, HP, K, MP, M,
OR, P, PU, RAJ]
[Proviso and rule 3A added in Bombay & Gujarat; Proviso added in Patna & Orissa; rule
substituted in Calcutta, Delhi, Gauhati, Himachal Pradesh, Madhya Pradesh, Punjab &
Rajasthan; Rules added in Andhra Pradesh, Kerala & Madras].
(1) Substitute a colon for the full stop appearing at the end of rule 3 and add the
following proviso thereafter:
"Provided that where the witness is a public officer to whom the Civil Service
Regulations apply and is summoned to give evidence of facts which have come to his
notice or of facts which he has had to deal, in his official capacity, or to produce a
document from public records, the sum payable by the party obtaining the summons
on account of his travelling and other expenses shall not be tendered to him. Such
officer shall, however, be required to produce a certificate duly signed by the Head of
his office showing the rates of travelling and other allowances admissible to him as for
a journey on tour". (1-10-1983)
Calcutta (Notfn No. 10428-G of 25-7-1928 and Notfn No. 1501-G of 8-3-1948).—The
rule as amended by these notifications reads thus:—
"3. The sum so fixed shall be tendered to the person summoned, at the time of serving
the summons, if it can be served personally:
Provided—
(i) that where the person summoned is a servant of any [State] Government whose pay
exceeds Rs. 10 per mensem or whose headquarters are situated more than five miles
from the Court, and he has been summoned to appear as a witness in his official
capacity in a civil case to which Government is a party, the sum so fixed shall be
credited to the Treasury;
(ii) that where the person summoned is a Finger Print Expert of the Criminal
Investigation Department and he is summoned to give evidence in private cases, the
sum so fixed, other than his travelling allowance, shall be credited to the Treasury;
(iii) that where the person summoned is the Government Examiner of Questioned
Documents or his Assistant and is summoned to give evidence or his opinion is sought
in private cases, the sum so fixed shall be credited to the Treasury;
(iv) that where the person summoned is a servant of the Central Government or a State
Railway or any other Commercial Department of Government and he is summoned to
give evidence in his public capacity in a civil case, whether Government is or is not a
party, the sum so fixed shall be credited in the Treasury to the Government or the State
Railway, as the case may be, to which the employee belongs; and (v) that where the
person summoned is a State Railway employee and he is summoned to give evidence
in his private capacity in a civil Court in Assam, the sum so fixed shall be credited to the
Railway to which he belongs."
Gujarat.—The following amendments were made by Gujarat Gazette, dated 17-8-1961 and
16-4-1970.
Rule 3, Proviso. Same as that of Bombay, except for the last sentence which is omitted.
Kerala.—(Notfn No. BI-3312/58 of 7-4-1959).—In rule 3 the following shall be added as

para 2 namely:—
"In the case of employees of the Central Government or the State Government or
Railway Administration sums paid into Court as subsistence allowance or
compensation shall be credited in the Treasury to the credit of the Central Government
or the State Government or the Railway Administration as the case may be." (9-6-1959);
Reg. 8 of 1965, Section 3.
Madhya Pradesh.—For rule 3 substitute the following:—
"3. (1) The sum so paid into Court shall, except in case of a Government servant, or a
State Railway employees, be tendered to the person summoned, at the time of serving
the summons, if it can be served personally.
(2) Where a party other than Government in a suit requests the Court to summon a
Government servant or a Railway employee as a witness or to produce official
documents, the party shall deposit with the Court a sum, which in the opinion of the
Court, will be sufficient to defray the travelling and other allowances of the Government
servant or the Railway employee, as the case may be, as for a journey on tour and out
of the sum so deposited the Court shall pay to the Government servant or the Railway
employee concerned, the amount of travelling and other allowances admissible to him
as for a journey on tour. (16-9-1960)
Madras (P Dis No 11 of 1942).—Add the following to the rule as a separate paragraph:—
"In the case of employees of the Central Government or a State Railway, sums paid into
Court as subsistence allowance or compensation shall be credited in the Treasury to
the credit of the Central Government or State Railway as the case may be." (7-1-1942);
Act 26 of 1958, Section 3 and Sch., Pt. II (w.e.f. 5-9-1968)
Orissa.—The following amendments were made (in rule 3) by Orissa Gazette, dated 25-5-
1984, Part III-A, Page 69.
Same as Patna except the letters and figure "Rs. 10". For the letters and figure "Rs. 10",
the word and figure "Rupees 200" substituted.
Patna.—Add the following proviso:—
"Provided that when the person summoned is an officer of Government, who has been
summoned to give evidence in a case to which Government is a party, of facts which
have come to his knowledge, or of matter with which he has had to deal, in his public
capacity, then—
(i) if the officer's salary does not exceed Rs. 10 a month, the Court shall at the time of
the service of the summons make payment to him of his expenses as determined by
rule 2 and recover the amount from the Treasury;
(ii) if the officer's salary exceeds Rs. 10 a month, and the Court is situated not more
than 5 miles from his headquarters, the Court may, at its discretion, on his appearance,
pay him the actual travelling expenses incurred;
(iii) if the officer's salary exceeds Rs. 10 a month and the Court is situated more than 5
miles from his headquarters no payment shall be made to him by the Court. In such
cases any expenses paid into Court under rule 2 shall be credited to Government."
Punjab (Notfn No 156-G of 9-1-1919).— Substitute for rule 3 the following:—
"3. Tender of expenses to witness.—(1) The sum paid into a Court shall, except in the
case of a Government servant, be tendered to the person summoned at the time of
serving the summons if it can be served personally.
(2) When the person summoned is a Government servant, the sum so paid into Court
shall be credited to Government.
Exception (1).—In cases in which Government servants have to give evidence at a Court
situate not more than five miles from their headquarters, actual travelling expenses
incurred by them may, when the Court considers it necessary, be paid to them.
Exception (2).—A Government servant, whose salary does not exceed Rs. 10 per
mensem, may receive his expenses from the Court."
See Act 31 of 1966, Sections 29 and 32. (1-11-1966)
Rajasthan.— (Notfn No. 29/SRO of 8-7-1954). Substitute for rule 3 the following:—
"3. The sum so paid into Court may, and if so required by the person summoned, shall
be tendered to him at the time of serving the summons if it can be served personally."
(24-7-1954)
Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28 Page 381, dated 1-4-1987.
After the existing rule 3, add the following as rule 3A:
3A. Special provision for public servants summoned as witnesses in suits in which the
Government is not a party.—(1) Notwithstanding anything contained in the foregoing
rules, in all suits or other proceedings to which the Government is not a party, where a
servant of the Central Government or a railway employee is summoned to give
evidence and/or to produce documents in his official capacity, the Court shall direct the
party applying for summons to deposit such sum of money as will, in the opinion of the
Court, be sufficient to defray the travelling and other expenses of the officer concerned
as for a journey on tour and on the deposit of such sum, the Court shall direct the
summons to be issued and out of the sum so deposited or out of any further sum
which the Court may subsequently direct the party applying for summons to deposit,
the Court shall, on the appearance before the Court of the officer summoned, pay him
the amount of travelling and other expenses admissible to him as for a journey on tour
under the rules applicable to his service.
(2) The officer appearing before the Court in accordance with sub-rule (1) shall produce
a certificate duly signed by the Head of his office, showing the rates of travelling and
other allowances admissible to him as for a journey on tour, and the amount payable to
him by the Court shall be computed on the basis of rates specified in such certificate.
(1-10-1983)
Gujarat.—The following amendments were made by Gujarat Gazette, dated 17-8-1961
and 16-4-1970.—The following shall be added as rule 3A:-
"3A. Special provision for public servants summoned as witnesses in suit in which the
servant of the Central Government or State of Andhra Pradesh or a Railway employee is
summoned to give evidence and/or to produce documents in his official capacity, the
Court shall direct the party applying for summons to deposit such sum of money as
will, in the opinion of the Court, be sufficient to defray the travelling and other expenses
of the officer concerned as for a journey on tour, and on the deposit of such sum, the
Court shall direct the summons to be issued and, out of the sum so deposited or out of
any further sum which the Court may subsequently direct the party applying for
summons to deposit, the Court shall on the appearance before the Court of the officer
summoned, pay him the amount of travelling and other expenses admissible to him as
for a journey on tour under the rules applicable to his service.
(2) The Officer, appearing before the Court in accordance with sub-rule (1) shall
produce a certificate duly signed by the Head of his Office, showing the rates of
travelling and other allowances admissible to him as for a journey on tour, and the
amount payable to him by the Court shall be computed on the basis of rates specified
in such certificate".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Procedure where in
sufficient sum paid in Expenses of witnesses detained more than one day
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Procedure where in sufficient sum paid in Expenses of witnesses detained
more than one day
(1) Where it appears to the Court or to such officer as it appoints in this behalf that
the sum [C, GAU] paid into Court is not sufficient to cover such expenses or
reasonable remuneration, the Court may direct such further sum to be paid to
the person summoned [D, HP, MP, PU] as appears to be necessary on that
account, and, in case of default in payment, may order such sum to be levied
by attachment and sale of the movable property of the party obtaining the
summons; or the Court may discharge the person summoned, without
requiring him to give evidence; or may both order such levy and discharge such
person as aforesaid.
(2) Where it is necessary to detain the person summoned for a longer period than
one day, the Court may, from time to time, order the party at whose instance he
was summoned to pay into Court such sum as is sufficient to defray the
expenses of his detention for such further period, and, in default of such
deposit being made, may order such sum to be levied by attachment and sale
of the movable property of such party; or the Court may discharge the person
summoned without requiring him to give evidence; or may both order such levy
and discharge such person as aforesaid.
[Rule amended in Calcutta, Delhi, Gauhati, Himachal Pradesh, Madhya Pradesh, Punjab;
Rules 4-A and 4-B added in Andhra Pradesh, Kerala & Madras; Rule 4-A added in
Karnataka].
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Gazette,

dated 10-3-1966.
Same as that of Madras, except that for the words "pay him" the words "remit to the
Central Government in the Ministry or department concerned" shall be substituted.
Calcutta (Notfn No 10428-G of 15-7-28).—Sub-rule (1) substituted but the only change
in the substitution of the words "so fixed" for the words "paid into Court".
Karnataka.—Insert the following as rule 4A:—
"4-A. (1) In the cases provided for in this rule the provisions of the foregoing rules shall
not apply or shall apply only subject to the provisions of this rule.
(2) Where a Government or a Public Officer being a party to a suit or proceeding as
such public officer supported by Government in the litigation, applies for a summons to
any Government servant whose salary exceeds Rs. 10 per month and whose
attendance is required in a Court situate more than 5 miles from his headquarters, no
payment in accordance with rule 2 or with rule 4 shall be required, and the expenses
incurred by the Government or such public officer in respect of the attendance of such
witness shall not be taken into consideration in determining the costs incidental to the
suit or proceeding.
(3) Where any other party to such a suit as is referred to in sub-rule (2) applies for a
summons to such Government servant as is mentioned in the said sub-rule, the party
summoning shall deposit in Court along with his application a sum of money for the
travelling and other expenses of the officer determined by the Court under the
provisions of rule 2 of this Order and shall also pay and deposit any further sum that
may be required by Court to be paid or deposited under rule 4 of this Order, and the
money so deposited or paid shall be credited to the Government in the treasury. Where
the witness summoned under this sub-rule is the employee of the Central Government
or the State Railway or other Commercial Department to whom the provisions of the
Payment of Wages Act apply, sums paid into Court shall be credited in the Treasury to
the credit of the Central Government, the Railway or the Commercial Department as the
case may be.
(4) In all cases where a Government servant appears in accordance with the foregoing
sub-rules the Court shall grant him a certificate of attendance containing the
prescribed particulars.
(5) Same as rule 4-B(1) of Madras with the following modifications:—(i) For the words
"Notwithstanding anything in his public capacity" substitute: "Notwithstanding anything
contained in the foregoing rules and in this rule, in all suits or other proceedings to
which Government is not a party, where a servant of the Central Government or of any
Railway or of any other Commercial Department of the Government to whom the
provisions of the Payment of Wages Act apply is summoned to give evidence of facts
which have come to his knowledge or of matters with which he has to deal as a public
officer or to produce any document for public records in his public capacity.'
(ii) In line 8 for "such sum" substitute "the said sum" and in line 11 for "officer
summoned" substitute "officer concerned".
(iii) Add at the end: "The said officer shall be required to produce a certificate duly
signed by the Head of his Office showing the rules of travelling and other allowances
admissible to him as for a journey on tour and the amount payable to him by the Court
shall be computed on the basis of the rates specified in the certificate." (30-3-1967).
Kerala.—(Notfn No. B1-3312/58 of 7-4-1959) Rules 4A and 4B inserted which are same
as in Madras with the following modifications:
(1) In rule 4A—
(a) in sub-rule (1) omit the word "any" in "in any suit"; and omit the words "whose salary
exceeds Rs. 10 per mensem and";
(b) in sub-rule (2) omit the words "along with his application"; and for the words "any
further sum" substitute "any other sum";
(c) in sub-rule (3) for the words "a State Railway" and "State Railway" substitute "the
Railway Administration";
(1) In rule 4B, after the words "where a servant of the Central Government" insert "or a
State Government".
Madhya Pradesh (Notfn No. 3409; 29-6-1934).—In sub-rule (1) insert the following
between the words "summoned" and "as appears":—"or, when such person is a
Government servant or a State Railway employee to be paid into Court".
Madras.—Insert the following as Rules 4-A and 4-B after rule 4:—
Rule 4-A. Special provision for public servants summoned as witnesses in suits to which
the Government is a party.—(1) Notwithstanding anything contained in the foregoing
rules, in [any] suit by or against the Government, no payment in accordance with rule 2
or rule 4 shall be required when an application on behalf of Government is made for
summons to a Government servant [whose salary exceeds Rs. 10 per mensem and]
whose attendance is required in a Court situated more than five miles from his
headquarters: and the expenses incurred by Government in respect of the attendance
of the witness shall not be taken into consideration in determining costs incidental to
the suit.
(2) When any other party to such a suit applies for a summons to such an officer, he
shall deposit in Court [along with his application] a sum of money for the travelling and
other expenses of the officer according to the scale prescribed by the Government
under whom the officer is serving and shall also pay [any further sum] that may be
required under rule 4 according to the same scale, and the money so deposited or paid
shall be credited to Government.
(3) In the case of employees of the Central Government or of [a State Railway], sums
paid into Court as subsistence allowance or compensation shall be credited in the
Treasury to the credit of the Central Government or [State Railway] as the case may be.
(4) In all cases where a Government servant appears in accordance with this rule, the
Court shall grant him a certificate of attendance. [Ft St Geo Gaz, Supplt to part II, dated
10th March, 1942]. (2-3-1942)
R. 4-B. Special provision for public servants summoned as witnesses in suits in which the
servant of the Central Government or a Railway employee is summoned to give
evidence and/or to produce documents in his public capacity, the Court shall direct the
party applying for summons to deposit such sum of money as will in the opinion of the
Court, be sufficient to defray the travelling and other expenses of the officer concerned
as for a journey on tour, and on the deposit of such sum, the Court shall direct the
summons to be issued and, out of the sum so deposited or out of any further sum
which the Court may subsequently direct the party applying for the summons to
deposit, the Court shall, on the appearance before Court of the officer summoned or as
soon thereafter as is practicable, pay him the amount of travelling and other expenses
admissible to him as for a journey on tour under the rules applicable to his service.
(2) The officer appearing before Court in accordance with sub-rule (1) shall produce a
certificate duly signed by the head of his office, showing the rate of travelling and other
allowances admissible to him as for a journey on tour and the amount payable to him
by the Court shall be computed on the basis of the rates specified in such certificate, [P
Dis No 851/52, dated 28th Nov, 1952]. (17-12-1952); Act 26 of 1968, Section 3 and Sch.
Pt. II.
Punjab (Notfn No. 156-G of 9-1-1919).—In sub-rule (1) after the word "summoned"
where it first occurs insert:—"or, when such person is a Government servant, to be paid
into Court."
Section 8(b), w.e.f. 1-1-1977.
In its application to the State of Uttar Pradesh, in Order XVI rule 4, the following proviso
shall be inserted namely:
"Provided that nothing in this rule shall apply to a case where the witness is a
Government servant summoned at the instance of Government as a party".
COMMENT.—
Under this rule the procedure for recovery of the expenses or the remuneration of a
witness where an insufficient sum has been paid in or where he is detained for more
than one day. On default of payment, provision is made also for the discharge of the
witness without requiring him to give evidence. If the attendance of a witness is
required for a longer period than one day, the Court may order payment of the sum
required from time to time and if such payment is not made, the witness may be
discharged.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Time, place and purpose
of attendance to be specified in summons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Time, place and purpose of attendance to be specified in summons
Every summons for the attendance of a person to give evidence or to produce a

document shall specify the time and place at which he is required to attend, and also
whether his attendance is required for the purpose of giving evidence or to produce a
document, or for both purposes; and any particular document, which the person
summoned is called on to produce, shall be described in the summons with
reasonable accuracy.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Summons to produce
document
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Summons to produce document
Any person may be summoned to produce a document, without being summoned to

give evidence, and any person summoned merely to produce a document shall be
deemed to have complied with the summons if he causes such document to be
produced instead of attending personally to produce the same.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Power to require persons
present in Court to give evidence or produce document
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Power to require persons present in Court to give evidence or produce
document
Any person present in Court may be required by the Court to give evidence or to
produce any document then and there in his possession or power.
COMMENT.—
This rule is subject to sections 130 and 131 of the Evidence Act which provide that
under certain circumstances a person cannot be compelled to produce the kinds of
documents mentioned therein. It is left to the discretion of the Court to act under this
rule.
The rule does not apply where the document is not in possession of the witness then
and there in the Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 7A. Summons given to
party for service
© 2020 LexisNexis
THE FIRST SCHEDULE
14[R. 7A.
Summons given to party for service
(1) The Court may, on the application of any party for the issue of a summons for
the attendance of any person, permit such party to effect service of such
summons on such person and shall, in such a case, deliver the summons to
such party for service.
(2) The service of such summons shall be effected by or on behalf of such party
by delivering or tendering to the witness personally a copy thereof signed by
the Judge or such officer of the Court as he may appoint in this behalf and
sealed with the seal of the Court.
(3) The provisions of Rules 16 and 18 of Order V shall apply to a summons

personally served under this rule as if the person effecting service were a
serving officer.
(4) If such summons, when tendered, is refused or if the person served refuses to
sign an acknowledgment of service or for any reason such summons cannot be
served personally, the Court shall, on the application of the party, reissue such
summons to be served by the Court in the same manner as a summons to a
defendant.
(5) Where a summons is served by a party under this rule, the party shall not be
required to pay the fees otherwise chargeable for the service of summons.]
III A, Page 69.
Rule 7A as inserted w.e.f. 29-12-1961, deleted.
COMMENT.—
Rule 7-A was added to rule 7 to facilitate the service of summons by a party and
provides for the procedure for such service.
14 Ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66, (w.e.f. 1-2-
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Summon how served
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Summon how served
Every summons 15[under this Order, not being a summons delivered to a party for
service under 7A, ] shall be served as nearly as may be in the same manner as a
summons to a defendant, and the rules in Order V as to proof of service shall apply in
the case of all summonses served under this rule [AS, C, K, MY, OR, P, RAJ, BD].
Allahabad.—After "this Order" and before "shall be served", add "may by leave of the
Court be served by the party or his agent, applying for the same, by personal service
and failing such service". (24-7-1926)

Calcutta Gazette, dated 8-3-1948.
(a) Cancel rule 8 and substitute therefor the following:-
"8(1) Every summons under this Order, not being a summons made over to a party for
service under rule 7A(i) of this Order shall be served, as nearly as may be, in the same
manner as a summons to a defendant, and the rules in Order V as to proof of service
shall apply thereto.
(2) The party applying for a summons to be served under this rule shall, before the
summons is granted and within a period to be fixed, pay into Court the sum fixed by the
Court under rule 2 of this Order".
(b) Add the following to rule 8(2):-
"Exception.—When applying for a summons for any of its own officers in his official
capacity, Government will be exempt from the operation of this rule".
Gauhati (Assam, Nagaland, Meghalaya, Manipur & Tripura).—Same as that of Calcutta.
Karnataka.—The following amendments were made by Karnataka Gazette, dated 30-3-

1967.
"8. A summons under this Order may be delivered by the Court to the party applying for
such summons for making service on the witness provided that when the service is not
effected by the party or the party is unwilling to do so, the summons shall be delivered
through the proper officer of the Court. The rule in Order V as to proof of service shall
apply in the case of all summons served under this rule".
Kerala (Lakshadweep Islands).—The following amendments were made by Kerala

For rule 8, the following rule shall be substituted, namely:
"8. Summons how served.—(1) A summons under this order may be delivered by the
Court to the party applying for such summons for making service on the witness:
Provided that when the party so desires in the first instance or is unable after due
diligence to effect such service the summons shall be delivered through the proper
officer of the Court.
(2) Service of summons on a witness by the party or by the proper officer shall, as
nearly as may be, in the same manner as on a defendant and the rules in Order V as to
proof of service shall apply in the case of all summons served under this rule".

dated 1-11-1951.
The following, shall be substituted for rule 8, namely:-
"8. A summons under this Order may be delivered by the Court to the party applying for
such summons for making service on the witness provided that where the service is
not effected by the party or the party is unwilling to do so, the summons shall be
delivered through the proper officer of the Court. The rules in Order V as to proof of
service shall apply in the case of all summonses served under this rule".
X-A, Page 69, dated 25-5-1984.
Sub-rule (1) of rule 8 as substituted w.e.f. 29-12-1961 deleted and the following sub-
rule (2) renumbered as rule 8.
"8. The party applying for a summons to be served under this rule shall, before the
summons is granted and within a period to be fixed, pay into Court the sum fixed by the
Court under rule 2 of this order".
Patna.—Add the following:
"Provided that a summons under this Order may by leave of the Court be served by the
party or his agent, applying for the same, by personal service. If such service is not
effected and the Court is satisfied that reasonable diligence has been used by the party
or his agent to effect such service, then the summons shall be served by the Court in
the usual manner".
Rajasthan.—The following amendments were made by Rajasthan Gazette, dated 24-7-

1954.
"Provided that any party may by leave of the Court, by himself or through his agent
serve any of his witness or witnesses personally".
[Rule substituted in Calcutta and Gauhati]
words (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Time for serving
summons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Time for serving summons
Service shall in all cases be made a sufficient time before the time specified in the
summons for the attendance of the person summoned, to allow him a reasonable time
for preparation and for travelling to the place at which his attendance is required.

witness fails to comply with summons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Procedure where witness fails to comply with summons
16
[(1) Where a person to whom a summons has been issued either to attend to
give evidence or to produce a document, fails to attend or to produce the
document in compliance with such summons, the Court—
(a) shall, if the certificate of the serving officer has not been verified by
affidavit, or if service of the summons has been effected by a party or
his agent, or
(b) may, if the certificate of the serving officer has been so verified,
examine on oath the serving officer or the party or his agent, as the
case may be, who has effected service, or cause him to be so
examined by any Court, touching the service or non-service of the
summons.]
(2) Where the Court sees reason to believe that such evidence or production is
material, and that such person has, without lawful excuse, failed to attend or to
produce the document in compliance with such summons or has intentionally
avoided service, it may issue a proclamation [A] requiring him to attend to give
evidence or to produce the document at a time to be named therein; [A] and a
copy of such proclamation shall be affixed on the outer door or other
conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, [A] or at any time
afterwards, the Court may, in its discretion, issue a warrant, either with or
without bail, for the arrest of such person, and may make an order for the
attachment of his property to such amount as it thinks fit, not exceeding the
amount of the costs of attachment and of any fine which may be imposed
under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment
of immovable property [K].
Allahabad (Notfn No 6745/35(a)-1(8); 11-9-1938.—In sub-rule, (1) substitute a colon for

the full stop (.) after the words "summons" and add the proviso:—"Provided that the
Court need not examine the serving-officer if the person has been summoned only to
produce a document and has attended and admitted receipt of the summons but has
failed to produce the documents."
In sub-rule (2): (a) between the word "proclamation" and the word "requiring" insert the
words:—"or, if he is present, an order in writing to be signed by him";
(b) for the words "and a copy of such proclamation" substitute the words: "and a copy of
the proclamation if issued".
In sub-rule (3) between the word "proclamation" and the words "or at any time
afterwards" insert the words:—"or an order in writing". (17-9-1938)
Kerala.—(Notfn No BI-3312/58 of 7-4-1959).—For the proviso to sub-rule (3) substitute

the following:—
"Provided that no Court exercising Small Cause jurisdiction shall make an order for the
attachment of immovable property." (9-6-1959); Reg. 8 of 1965, Section 3.
COMMENT.—
This rule was amended by the Act of 1976, in order to provide that where a summons
has been issued either to give evidence or to produce any document, and the person so
summoned fails to attend or to produce any document, and the person effecting
service should always be examined by the Court, where the certificate of service is not
verified by an affidavit.
16 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66, for sub-rule (1)
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. If witness appears
attachment may be withdrawn
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
If witness appears attachment may be withdrawn
Where, at any time after the attachment of his property, such person appears and
satisfies the Court;—
(a) that he did not, without lawful excuse, fail to comply with the summons or
intentionally avoid service, and
(b) where he has failed to attend at the time and place named in a proclamation
issued under the last preceding rule, that he had no notice of such
proclamation in time to attend,
the Court shall direct that the property be released from attachment, and shall
make such order as to the costs of the attachment as it thinks fit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Procedure if witness
fails to appear
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Procedure if witness fails to appear
17
[(1)] The Court may, where such person does not appear, or appears but fails so
to satisfy the Court, impose upon him such fine not exceeding five hundred
rupees as it thinks fit, having regard to his condition in life and all the
circumstances of the case, and may order his property, or any part thereof,
to be attached and sold or, if already attached under rule 10, to be sold for
the purpose of satisfying all costs of such attachment, together with the
amount of the said fine, if any:
Provided that, if the person whose attendance is required pay into Court the
costs and fine aforesaid, the Court shall order the property to be released
from attachment.
18
[(2) Notwithstanding that the Court has not issued a proclamation under sub-
rule (2) of rule 10, nor issued a warrant nor ordered attachment under sub-
rule (3) of that rule, the Court may impose fine under sub-rule (1) of this rule
after giving notice to such person to show cause why the fine should not be
imposed.]
COMMENT.—
Sub-rule (2) of rule 12 was added by the Amending Act of 1976. The existing rule 12
empowered a Court to impose a fine upon a witness who had disobeyed summons for
attendance in Court. A doubt had arisen as to whether, before the power under this rule
can be exercised it is essential that the Court should issue a proclamation under O XVI,
rule 10(2) or a warrant under O XVI, rule 10(3) or an order of attachment of property
under O XVI, rule 10(3). There had been conflicting opinions and one view was that a
fine under rule 12 could not be imposed unless property of the witness had been
attached. The other view was that no fine could be imposed unless and until there had
been proclamation which had been disobeyed. There also existed a third view,
according to which either a proclamation or a warrant or an attachment must have
been ordered before a fine was imposed under rule 12. A fourth view, which was also
there, held that no such order was necessary before the imposition of fine. Accordingly,
the rule has now been amended to provide that in cases where none of three processes
has been issued, notice to show cause should be given to the person who has so
disobeyed the summons before any fine is imposed upon him.
1976, Section 66, (w.e.f. 1-2-1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Mode of attachment
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Mode of attachment
The provisions with regard to the attachment and sale of property in the execution of
a decree shall, so far as they are applicable, be deemed to apply to any attachment
and sale under this Order as if the person whose property is so attached were a
judgment-debtor.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Court may of its own
accord summon as witnesses strangers to suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Court may of its own accord summon as witnesses strangers to suit
Subject to the provisions of this Code as to attendance and appearance and to any law
for the time being in force, where the Court at any time thinks it necessary 19[ to
examine any person, including a party to the suit ], and not called as a witness by a
party to the suit, the Court may, of its own motion, cause such person to be
summoned as a witness to give evidence, or to produce any document in his
possession, on a day to be appointed, and may examine him as a witness or require
him to produce such document.
COMMENT.—
In this rule, for the words "to examine any person other than a party to the suit ", the
words "to examine any person including a party to the suit", were substituted by the
Amending Act of 1976. This has been done to give the Court an express power to
summon a party to the suit.
The power of the Court under this rule to examine witnesses on its own motion is
discretionary.20 Ordinarily, it is for the party to summon the witnesses necessary for his
case. This rule is only intended to enable the Court to secure suo moto the attendance
of a witness whose evidence appears to the Court to be necessary. But where neither
side has summoned the material witness to give evidence, the Court is justified in
refusing to call him as a Court witness after the closure of evidence.21
This rule applies to the election petitions. The Court has power to summon a Court
witness if it thinks that the ends of justice require it or that the case before it needs that
kind of evidence.22
words (w.e.f. 1-2-1977).
20 KS Agha Mir Ahmad Shah v Mir M Shah, AIR 1944 PC 100 .
21 Biswanath Rai v Sachhidanand Singh, AIR 1971 SC 1949 : (1972) 4 SCC 707 .
22 RM Sheshadri v G Vasantha Pai, AIR 1969 SC 692 (698) : (1969) 1 SCC 27 : (1969) 2 MLJ 50 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Duty of persons
summoned to give evidence or produce document
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Duty of persons summoned to give evidence or produce document
Subject as last aforesaid, whoever is summoned to appear and give evidence in a suit
shall attend at the time and place named in the summons for that purpose, and
whoever is summoned to produce a document shall either attend to produce it, or
cause it to be produced, at such time and place.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. When they may depart
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
When they may depart
(1) A person so summoned and attending shall, unless the Court otherwise
directs, attend at each hearing until the suit has been disposed of.
(2) On the application of either party and the payment through the Court of all
necessary expenses (if any), the Court may require any person so summoned
and attending to furnish security to attend at the next or any other hearing or
until the suit is disposed of and, in default of his furnishing such security, may
order him to be detained in the civil prison. [D, HP, PU]
[Sub-rule (3) and proviso added in Delhi, HP & Punjab].
Punjab.—(Notfn No. 209-R/XI-Y-11, of 25-7-1938 and Notfn No. 24-R/XI-Y-11 of 23-1-

1940).—Add the following sub-rule (3) and Proviso:—
"(3) In the absence of the presiding officer the powers conferred by sub-rule (2) may be
exercised by the Senior Subordinate Judge of the first class exercising jurisdiction at
the headquarters of the district, or by any Judge or Court-official nominated by him for
the purpose:"
"Provided that a Court-official nominated for the purpose, shall not order a person, who
fails to furnish such security as may be required under sub-rule (2), to be detained in
prison, but shall refer the case immediately to the Presiding Officer on his return".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Application of rules 10
to 13
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Application of rules 10 to 13
The provisions of rules 10 to 13 shall, so far as they are applicable, be deemed to

apply to any person who having attended in compliance with a summons departs,
without lawful excuse, in contravention of rule 16.

witness apprehended cannot give evidence or produce document
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Procedure where witness apprehended cannot give evidence or produce
document
Where any person arrested under a warrant is brought before the Court in custody and
cannot, owing to the absence of the parties or any of them, give the evidence or
produce the document which he has been summoned to give or produce, the Court
may require him to give reasonable bail or other security for his appearance at such
time and place as it thinks fit, and, on such bail or security being given, may release
him, and, in default of his giving such bail or security, may order him to be detained in
the civil prison.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. No witness to be
ordered to attend in person unless resident within certain limits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 19.
No witness to be ordered to attend in person unless resident within certain
limits
No one shall be ordered to attend in person to give evidence unless he resides—
(a) within the local limits of the Court's ordinary original jurisdiction, or
(b) without such limits but at a place less than 23[ one hundred ] or (where there is
railway or steamer communication or other established public conveyance [A]
for five-sixths of the distance between the place where he resides and the
place where the Court is situate) less than 24[ five hundred kilometers ] distance
from the Court-house [PU]:
25[ Provided that where transport by air is available between the two places
mentioned in this rule and the witness is paid the fare by air, he may be ordered
to attend in person.]
Allahabad (Notfn No 24/VII-d-154; 4-4-1959).—In clause (b) between the words "public
conveyance" and "for five-sixths" insert "or private conveyances run for hire".

Maharashtra Government Gazette, dated 15-9-1983, Part IV-C, Page 397.
Amendments made in 1966 have been superseded.
Punjab (Notfn No 60-Genl-XI-Y-8 of 4-3-1955).—Add the following proviso:—
"Provided that any Court situate in the State of Punjab may require the personal
attendance of any witness residing in the Punjab or Delhi State".
COMMENT.—
This rule provides an exemption from personal attendance of a witness who resides
outside the limits, prescribed in the rule.26 Under this rule, in the case of parties the
Court has a discretion in issuing a commission. The position with regard to witnesses
is, however, different. The plaintiff is entitled to ask for issue of commission for the
examination of witnesses if the provisions of O XVI rule 19 are complied with and if it is
not an abuse of process of the Court to issue commission .27
In rule 19(b), the words "less than fifty" have substituted by words "less than one
hundred" and the words "two hundred miles" have been substituted by the words "five
hundred kilometers".
The proviso has been added to this rule 19 now. This been done in view of the
improved facilities for transport, and also to provide that where air transport is
available and the air fare is paid to the witness, he may be required to attend in person
irrespective of the distance of the place from which he is called upon to appear.
23 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66, for "fifty"
(w.e.f. 1-2-1977).
24 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 66, for "two
hundred miles" (w.e.f. 1-2-1977).
1977).
26 PR Bizani v Hans Zuckar, AIR 1960 AP 459 .
27 Bhagwan Singh v Surjit Kaur, AIR 1972 AP 216 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Consequence of refusal
of party to give evidence when called on by Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Consequence of refusal of party to give evidence when called on by Court
Where any party to a suit present in Court refuses, without lawful excuse, when
required by the Court, to give evidence or to produce any document then and there in
his possession or power, the Court may pronounce judgment against him or make
such order in relation to the suit as it thinks fit.
COMMENT.—
This rule is permissive and not mandatory and it is always within the discretion of the
Court to pronounce judgment against the defaulter. However, the discretion must be
exercised with caution and forbearance.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. Rules as to witnesses
to apply to parties summoned
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 21.
Rules as to witnesses to apply to parties summoned
Where any party to a suit is required to give evidence or to produce a document, the
provisions as to witnesses shall apply to him so far as they are applicable [AP, C, GAU,
KNT, K, M].
[Rule substituted in Andhra Pradesh, Calcutta, Gauhati, Karnataka, & Madras;
Rules 22 & 23 added in Allahabad]
Allahabad.—Add the following new Rules 22 and 23:—
"22. (1) Same as provided in this rule and in rule 2, the Court shall allow witnesses
reasonable actual travelling expenses. Other expenses to be allowed to them shall be
on the following scale, namely—
(a) in the case of witnesses of the class of cultivators, labourers and persons,
including Government servants of corresponding rank—rupee one per day.
(b) in the case of witnesses of a better class, such as bhumidars and sirdars,
traders, pleaders and persons including Government servants, of corresponding
rank—rupee one and fifty naya paise to rupee three per day.
(c) in the case of witnesses of a superior rank, including Government servants—

from rupees three and fifty naya paise to rupees six per day:
Provided that where a Government servant is summoned to produce official documents

or to give evidence of facts which came to his knowledge in the discharge of his public
duties, he shall be paid travelling and other expenses at the rate admissible to him as
for journeys on tour in accordance with the travelling allowance rules applicable to him.
[Notfn No 2110/VII-d-57; 14-3-1953].
(2) If a witness demands any sum in excess of what has been paid to him, such sum
shall be allowed if he satisfies the Court that he has actually and necessarily incurred
the additional expense.
Illustration.—A post office or railway employee summoned to give evidence is entitled to

demand from the party, on whose behalf or at whose instance he is summoned, the
travelling and other expenses allowed to witnesses of the class or rank to which he
belongs and in addition the sum for which he is liable as payment to the substitute
officiating during his absence from duty. The sum so payable in respect of the
substitute will be certified by the official superior of the witness on a slip, which the
witness will present to the Court from which the summons issued.
(3) If a witness be detained for a longer period than one day the expenses of his
detention shall be allowed at such rate, not usually exceeding that payable under
clause (1) of this rule, as may seem to the Court to be reasonable and proper:
Provided that the Court may, for reasons stated in writing, allow expenses on a higher
scale than that hereinbefore prescribed. [Notfn No 1953/35(a); 22-5-1915].
23. In cases to which Government is a party, Government servants whose salary

exceeds Rs. 10 per mensem and all police constables, whatever their salary may be,
who are summoned to give evidence in their official capacity at a court situated more
than five miles from their headquarters, shall be given a certificate of attendance by the
Court in lieu of travelling and other expenses." [Notfn No 359/35(a)1(1); 7-2-1920].
Calcutta (Notfn No 15264-G of 11-11-1927).—Cancel rule 21 and substitute therefore

the following:—
"21. (1) When any party to a suit is required by any other thereto to give evidence, or to
produce a document, the provisions as to witnesses shall apply to him so far as
applicable.
(2) When any party to a suit gives evidence on his own behalf, the Court may in its
discretion permit him to include as costs in the suit a sum of money equal to the
amount payable for travelling and other expenses to the other witnesses in the case of
similar standing.
Assam & Nagaland.—Same as in Calcutta.
Karnataka.—Same as in Madras, (30-3-1967).
Kerala (Notfn No B-1-3312/58 of 7-4-1959).—Same as in Madras.
Madras (GOMs No 402 Law (Gen1) of 4-2-1936; P Dis No 98 of 1936).—Same as in

Calcutta with the addition of marginal note as: "Rules in the case of parties appearing as
witnesses".
COMMENT.—
The rule applies only to the case where a party to a suit has been called to give
evidence by the other party. The Court has, therefore, no power under this Code to
order the travelling expenses of a party who has given evidence in support of his own
case.
In Lal Kunwar v Chiranji Lal, (1909) 32 All 104 (PC) their Lordships of the Privy Council
severely condemned the practice followed in some parts of India of advocates omitting
to call their own client as a witness in the hope of forcing their opponents to call him as
their witness in order that they themselves may have the opportunity of cross-
examining their own client when called by the other side.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Definitions
© 2020 LexisNexis
THE FIRST SCHEDULE
1[ORDER XVI-A Attendance of Witnesses Confined or Detained in Prisons
Since procuring attendance of prisoners before a Court is essentially a matter of

procedure, the special provisions contained in the Prisoners (Attendance in Courts) Act,
1955, regulating the attendance of prisoners and detenues, in so far as they apply to
civil Courts, with certain modifications, have been incorporated in this chapter of the
Code, instead of being left to that Act, of Code of Criminal Procedure, Chapter 22.
R. 1.
Definitions
In this Order,—
(a) "detained" includes detained under any law providing for preventive detention;
(b) "prison" includes—
(i) any place which has been declared by the State Government, by general
or special order, to be a subsidiary jail; and
(ii) any reformatory, borstal institution or other institution of a like nature.
COMMENT.—
Order XVI-A has been added by the Amending Act of 1976. This newly added Order
provides for the attendance of prisoners to give evidence except where they are
physically unfit to do so. "Prison" has been defined to include any reformatory, borstal
institution or other institution of a like nature. Attendance of a prisoner would not,
however, be ordinarily required where the prison is situated at a distance of more than
twenty-five kilometers from the Court-house, unless the Court is satisfied that the
examination of the 2 PO prisoner on commission will not be adequate.
1 Order XVIA (containing rules 1 to 7). Ins. by the Code of Civil Procedure (Amendment) Act
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Power to require
attendance of prisoners to give evidence
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 2.
Power to require attendance of prisoners to give evidence
Where it appears to a Court that the evidence of a person confined or detained in a

prison within the State is material in a suit, the Court may make an order requiring the
officer in charge of the prison to produce that person before the Court to give
evidence:
Provided that, if the distance from the prison to the Court-house is more than twenty-
five kilometres, no such order shall be made unless the Court is satisfied that the
examination of such person on commission will not be adequate.
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Expenses to be paid into
Court
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 3.
Expenses to be paid into Court
(1) Before making any order under rule 2, the Court shall require the party at
whose instance or for whose benefit the order is to be issued, to pay into Court
such sum of money as appears to the Court to be sufficient to defray the
expenses of the execution of the order, including the travelling and other
expenses of the escort provided for the witness.
(2) Where the Court is subordinate to a High Court, regard shall be had, in fixing
the scale of such expenses, to any rules made by the High Court in that behalf.
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Power of State
Government to exclude certain persons from the operation of rule 2
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 4.
Power of State Government to exclude certain persons from the operation of
rule 2
(1) The State Government may, at any time, having regard to the matters specified
in sub-rule (2), by general or special order, direct that any person or class of
persons shall not be removed from the prison in which he or they may be
confined or detained, and thereupon, so long as the order remains in force, no
order made under rule 2, whether before or after the date of the order made by
the State Government, shall have effect in respect of such person or class of
persons.
(2) Before making an order under sub-rule (1), the State Government shall have
regard to the following matters, namely:—
(a) the nature of the offence for which, or the grounds on which, the person
or class of persons have been ordered to be confined or detained in
prison;
(b) the likelihood of the disturbance of public order if the person or class of
persons is allowed to be removed from the prison; and
(c) the public interest, generally.
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Officer in charge of
prison to abstain from carrying out order in certain cases
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 5.
Officer in charge of prison to abstain from carrying out order in certain cases
Where the person in respect of whom an order is made under rule 2—
(a) is certified by the medical officer attached to the prison as unfit to be removed
from the prison by reason of sickness or infirmity; or
(b) is under committal for trial or under remand pending trial or pending a
preliminary investigation; or
(c) is in custody for a period which would expire before the expiration of the time
required for complying with the order and for taking him back to the prison in
which he is confined or detained; or
(d) is a person to whom an order made by the State Government under rule 4
applies,
the officer in charge of the prison shall abstain from carrying out the Court's
order and shall send to the Court a statement of reasons for so abstaining.
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Prisoner to be brought to
Court in custody
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 6.
Prisoner to be brought to Court in custody
In any other case, the officer in charge of the prison shall, upon delivery of the Court's
order, cause the person named therein to be taken to the Court so as to be present at
the time mentioned in such order, and shall cause him to be kept in custody in or near
the Court until he has been examined or until the Court authorises him to be taken
back to the prison in which he is confined or detained.
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Power to issue
commission for examination of witness in prison
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 7.
Power to issue commission for examination of witness in prison
(1) Where it appears to the Court that the evidence of a person confined or
detained in a prison, whether in the State or elsewhere in India, is material in a
suit but the attendance of such person cannot be secured under the preceding
provisions of this Order, the Court may issue a commission for the examination
of that person in the prison in which he is confined or detained.
(2) The provisions of Order XXVI shall, so far as may be, apply in relation to the
examination on commission of such person in prison as they apply in relation
to the examination on commission of any other person.]
104 of 1976, Section 67, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Costs of adjournment
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XVII Adjournments
R. 1.
Costs of adjournment
1
[(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time
to the parties or to any of them, and may from time to time adjourn the
hearing of the suit for reasons to be recorded in writing:
Provided that no such adjournment shall be granted more than three times to a
party during hearing of the suit ].
(2) In every such case the Court shall fix a day for the further hearing of the suit, 2[
shall make such orders as to cost occasioned by the adjournment or such higher
costs as the Court deems fit ].
3 [ Provided that,—
(a) when the hearing of the suit has commenced, it shall be continued from
day-to-day until all the witnesses in attendance have been examined,
unless the Court finds that , for the exceptional reasons to be recorded
by it, the adjournment of the hearing beyond the following day is
necessary,
(b) no adjournment shall be granted at the request of a party, except where

the circumstances are beyond the control of that party,
(c) the fact that the pleader of a party is engaged in another Court, shall not
be a ground for adjournment,
(d) where the illness of a pleader or his inability to conduct the case for any
reason, other than his being engaged in another Court, is put forward as
a ground for adjournment, the Court shall not grant the adjournment
unless it is satisfied that the party applying for adjournment could not
have engaged another pleader in time.
Court may grant time and adjourn hearing
(e) where a witness is present in Court but a party or his pleader is not
present or the party or his pleader, though present in Court, is not ready
to examine or cross-examine the witness, the Court may, if it thinks fit,
record the statement of the witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or cross-examination of the
witness, as the case may be, by the party or his pleader not present or
not ready as aforesaid.]
Allahabad.—Add the following further proviso:—

"Provided further that no such adjournment shall be granted for the purpose of calling a
witness not previously summoned or named, nor shall any adjournment be utilised by
any party for such purpose, unless the Judge has made an order in writing under the
proviso to Order XVI rule 1". (24-7-1926)
Bombay.—In sub-rule (2), after the words "costs occasioned by the adjournment" add:—
"1. Court may grant time and adjourn hearing.—(1) The Court may, if sufficient cause is
shown, at any stage of the suit, grant time to the parties or to any of them, and may
from time to time adjourn the hearing of the suit:
Provided that where a case is fixed for taking evidence, the Court shall record the
evidence of all the witnesses present for either party unless the Court hearing the case
for reasons to be recorded in writing finds it necessary to adjourn the case."
Costs of adjournment.—(2) In every such case the Court shall fix a day for the further
hearing of the suit, and may make such order as it thinks fit with respect to the costs
occasioned by the adjournment, ordinarily not exceeding fifty rupees in ordinary suits
and one hundred rupees in special suits:
Provided that, when the hearing of evidence has once begun, the hearing of the suit
shall be continued from day to day until all the witnesses in attendance have been
examined, unless the Court finds the adjournment of the hearing beyond the following
day to be necessary for reasons to be recorded."

Maharashtra Government Gazette, dated 15-9-1983, Part IV-C, Page 397.
Amendments made in 1966 have been superseded.
Calcutta.—In Order XVII, in rule 1(1), after the proviso insert the following second proviso,
namely:—
"Provided further that in the circumstances which are proved to be beyond the control
of a party, the Court can grant adjournment for such number of times as the interest of
justice will demand." [Vide Calcutta High Court Notification No. 4681-G, dated 6-12-
2006 published in the Calcutta Gazette, Extra., Pt. I, dated 7-12-2006]
Gujarat.—In sub-rule (2) add words as in Bombay substituting "thirty" and "forty-five" for
"fifty" and "one hundred" respectively.
Punjab, Haryana and Chandigarh.—The following amendments were made in Punjab

(21-7-1937).
(1) Add the following at the beginning of sub-rule (1):—
"Subject to the provision of Order XXIII rule 3".
(2) Add the following as sub-rule (3):—
(3) Where sufficient cause is not shown for the grant of an adjournment under sub-
rule (1), the Court shall proceed with the suit forthwith".
COMMENT.—
2002).—
Modifications.—This rule has been amended so as to the following modifications:
1. Sub-rule (1) of rule 1, O XVII has been substituted by a new sub-rule. The effect of the
new sub-rule is that it has became obligatory for the Court to record reasons for
adjournment of the hearing of the suit. The number of adjournments has been
restricted to three only during the hearing of the suit.
2. In rule 1, sub-rule 2 the words "shall make such orders as to cost occasioned by the
adjournments or such higher costs as the Court deems fit" have been substituted for
the words "may make such order as it thinks fit with respect to the costs occasioned by
the adjournment". Now the Court will award actual or higher costs and not merely
notional costs against the party seeking adjustment in favour of the opposite party.

1999 stated thus:-
Order XVII lays down the procedure for granting adjournments. The Committee on
Subordinate Legislation (Eleventh Lok Sabha) recommended that it should be made
obligatory in the judgment to record reasons for adjournments of cases as well as award of
actual and not merely notional costs against the party seeking adjournment in favour of the
opposite party. It is proposed to make it obligatory for the judges to record the reasons in
writing where the Court grants adjournment and to award the actual costs to the opposite
party. Further limit up to three adjournments has also been fixed in a case. [Clause 26].
No retrospective effect.—the Code of Civil Procedure (Amendment) Act, 1999, section

32(2)(s) (of the repeal and savings section) stipulates that the provisions of rule 1 of O
XVII of the First Sch, as amended by section 25 of this Act, shall not affect any
adjournment granted by the Court and any costs occasioned by the adjournment
granted by the Court before the commencement of section 25 and the number of
adjournments granted earlier shall not be counted for such purpose.
Restriction on adjournments and levy of costs on party seeking adjournments.

—
By this amendment it has been made obligatory for a Court to record reasons for
adjournment of a case. It has further been made obligatory for the Court to award
actual or higher costs and not merely notional costs against the parties seeking
adjournment in favour of the opposite party. The number of adjournments has been
limited to three only during the hearing of a case. This gives effect to the
recommendations of the Committee on Subordinate Legislation (11th Lok Sabha).
[Section 32(1) Code of Civil Procedure(Amendment) Act, 1999].
Under this rule, the Courts have a discretion to grant time to a party at any stage of the
suit. The rule is applicable both to adjournments made at the instance of a party and to
adjournments by the Court of its own motion. It has been held by the Supreme Court
that without adverting to this rule, a Tribunal even acting judicially is not obliged to
grant an adjournment suo moto without any application on behalf of any of the parties
interested.
The Supreme Court has clearly held that the granting of an adjournment to a party to a
suit on his application is left to the discretion of the Court. The discretion is not subject
to any definite rules, but should be exercised in a judicial and reasonable manner and
upon proper material.
Time to be given to client to engage counsel.—
Where a counsel engaged by a party refuses to address the Court on behalf of his
client, it is next to impossible for a client to engage another counsel on the spot to
agree the case and ordinarily, impossible for the counsel thus engaged to address the
Court then and there. Justice requires that in such a case the client should be given
sometime, however that, to engage a counsel.4
Engaging another counsel.—
Where the matter was fixed for cross-examination of the plaintiff but the case was
adjourned to next day, the counsel fell ill during the night, the defendant sought
adjournment, the Court did not grant the adjournment but ordered forfeiture of right to
cross-examination, the order was not justified as engaging new counsel could be
fraught with grave risk and unrealistic. The Court should have adjourned the case for
next date so as to enable the defendant to have another counsel engaged and given
instructions to new counsel to proceed with cross-examination in the light of pleadings
and issues raised.5
Courts must not be privy to strikes.—
The Courts must not be privy to strikes or call for boycotts. They cannot adjourn cases
because the lawyers are on strike. Protest abstention from work for one day may be
ignored by Court in rarest of rare cases.6
Advocates are on strike, is not sufficient ground for adjournment.7 It was held by the
Supreme Court that engagement of senior counsel who could appear only after
vacation of Court was not held sufficient cause for adjournment.8
The existing proviso to sub-rule (2) of this rule 1 has been substituted by present
proviso by the Amending Act of 1976. It has been provided by the newly added proviso
that once the stage of evidence has been reached, an adjournment should be granted
only for unavoidable reasons. A few other restrictions have also been imposed on the
grant of adjournments.
An election petition is liable to be dismissed for default of appearance of the petitioner

under O IX and O XVII. For its restoration an application under O DC rule 9 would be
maintainable. Such an application can be filed only by the election petitioner and not by
any respondent.9
More than three adjournments can be granted when circumstances are beyond control
of party. The provisos of rules 1 and 2 should be read together.10
Adjournment, prejudice.—
When a counsel who is ready in the pre-lunch session, seeks accommodation in the
post-lunch session on the ground of a sudden illness or physical ailment, the Court
cannot refuse a short accommodation and dismiss the appeal on the ground that the
client was cantankerous and unreasonable before the Lok Adalat. The two issues have
no relation to each other, and such dismissal can only be attributed to prejudice.11
Applicability of proviso.—
The proviso to rule 1 comes into play only if a party seeks adjournment after having
availed the same for more than three times during hearing of the suit.12
1 Sub-rule (1) Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
Section 26(i) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, for the following:
'(1) The Court may, if sufficient cause is shown, at any stage of the suit grant time to the parties
or to any of them, and may from time to time adjourn the hearing of the suit'.
2 Subs. for the words 'may make such order as it thinks fit with respect to the costs occasioned
by the adjournment" by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f.
1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
3 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 68 (w.e.f. 1-2-
1977).
4 Sukhpal Singh v Kalyan Singh, AIR 1963 SC 146 : (1963) 2 SCR 733 : 1962 ALJ 1075 : 1962
BLJR 977 .
5 Bashir Ahmad v Mehmood Hussain Shah, AIR 1995 SC 1857 : (1995) 3 SCC 529 .
6 Harish Uppal v UOI, AIR 2003 SC 739 (758) : (2003) 2 SCC 45 : (2003) 1 KLT 192 .
7 Ramon Services Pvt Ltd v Subhash Kapoor, AIR 2001 SC 207 (216) : (2001) 1 SCC 118 : (2001)
1 KLT 34 .
8 1970 SCC 873 ; see also Ismail Suleman Bhagat v State of Gujarat, AIR 1971 Guj 42 .
9 P Nalla Thampy v BL Shankar, AIR 1984 SC 135 (142) : 1984 Supp SCC 631 .
11 BP Moiddeen Sevamandir v AM Kutty Hassan, (2009) 2 SCC 199 (205).
12 Mayadevi Kukreja v Meera Agarwal, 2009 (3) MP LJ 688 : AIR 2010 MP 27 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Procedure if parties fail
to appear on day fixed
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Procedure if parties fail to appear on day fixed
Where, on any day to which the hearing of the suit is adjourned, the parties or any of
them fail to appear, the Court proceeds to dispose of the suit in one of the modes
directed in that behalf by Order IX or make such other order as it thinks fit. [A, AP]
13[ Explanation. —Where the evidence or a substantial portion of the evidence of any
party has already been recorded and such party fails to appear on any day to which
the hearing of the suit is adjourned, the Court may, in its discretion, proceed with the
case as if such party were present.]
Allahabad (Notfn No 2874/35 (a)-6(3); 10-7-1943).—Add to rule 2—"Where the evidence,

or a substantial portion of the evidence, of any party has already been recorded, and
such party fails to appear on such day, the Court may in its discretion proceed with the
case as if such party were present, and may dispose of it on the merits.
Explanation.—No party shall be deemed to have failed to appear if he is either present

or represented in Court by an agent or pleader, though engaged only for the purpose of
making an application." (28-5-1943)
Andhra Pradesh.—Insert the following explanation:—
Explanation.—The mere presence in Court of a party or his counsel not duly instructed
shall not be considered to be an appearance of the party within the meaning of this
rule. (27-4-1961).
COMMENT.—
This rule is to be read along with the provisions of O IX of Code of Civil Procedure. That
order dealt with the failure of parties to appear at the first hearing of the suit, whereas
this rule deals with their failure to appear at the adjourned hearing of the suit. The
provisions of O IX by themselves do not apply to a case in which a plaintiff or
defendant has already failed to appear at the a&)ourned hearing of the case. For such a
case the procedure is laid down in this Order.14
If, at the hearing of a suit after settlement of issues, the parties or either of them fail to
appear, the suit need not be decided on the merits. Nor need it necessarily be
dismissed under O IX. The Court has a discretion either to proceed under O IX of pass
such orders as the Court thinks fit.15
The explanation has been added at the end of this rule 2 as the words "such other
order" were differently interpreted by different High Courts. In view of the obscurity of
the prevailing position, the explanation has been added to the rule to make the position
clear by empowering the Court to proceed with a case even in the absence of a party
where evidence or a substantial portion of the evidence of such party has already been
recorded.
Power of Court is permissive, not mandatory.—The power of Court under rule 2

Explanation to proceed with the case as if the absenting party is present, is permissive
and not mandatory. Such, a course can be adopted only when the absentee party has
already led evidence or part thereof. The Court has to be satisfied about this requisite
aspect and should record its satisfaction in that perspective.16
Absence of parties to the suit.—
If on the date fixed, one of the parties i.e. defendant remains absent and for him no
evidence had been examined up to that date then, the rule 2 and not rule 3 of O XVII will
apply and the Court can proceed ex parte under O IX of the Code of Civil Procedure. The
defendant can subsequently file an application under O IX rule 13 for setting aside of ex
parte decree.17
The costs or higher costs awarded should be realistic and as far as possible actual
cost should be incurred by other party.18
13 Ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 68 (w.e.f. 1-2-
1977).
14 Duryodhan v Sitaram, AIR 1970 All 1 (FB); see also Jugal Kishore v Baldev Parkash, AIR 1968
Punj 152 (FB) and (1972) 74 Punj LR 277 .
15 Madan Lal v Jai Narain Ganda Lal, AIR 1972 MP 8 (DB).
16 B Janakiramaiah v AK Partha Sarthi, AIR 2003 SC 3527 (3529).
17 Prakash Chander Manchanda v Janki Manchanda, AIR 1987 SC 42 (44) : (1986) 4 SCC 699 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Court may proceed
notwithstanding either party fails to produce evidence, etc.
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Court may proceed notwithstanding either party fails to produce evidence, etc.
Where [A] any party to a suit to whom time has been granted fails to produce his
evidence, or to cause the attendance of his witnesses, or to perform any other act
necessary to the further progress of the suit, for which time has been allowed,19 [the
Court may, notwithstanding such default,—
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is, absent, proceed under rule 2.]
Allahabad.—The following amendments were made by Uttar Pradesh Gazette, dated 17-1-
1953.
In rule 3, put a comma after the first word "where" and insert thereafter the words "in a
case to which rule 2 does not apply".
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Act, dated
27-4-1961.
Add at the end of rule 3 the following proviso:—
"Provided that in a case when there is default under this rule as well as default of
appearance under rule 2, the Court will proceed under rule 2".
Madhya Pradesh.—The following amendments were made by Madhya Pradesh Gazette,

dated 27-8-1976, Part 4 (Ga), Page 650.
Add the following proviso to rule 3:—
Same as in Andhra Pradesh.
COMMENT.—
In this rule, for the words "the Court may, notwithstanding such default proceed to
decide the suit forthwith", the following have been substituted:
"the Court may, notwithstanding such default—
(a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent proceed under rule 2".
There existed a difference of opinion regarding the scope of the rule 3. The amendment
is intended to define the scope of this rule, so as to make it clear that action can be
taken by the Court when the parties are present as well as when they are absent.
It has been held by the Supreme Court in Arjun Singh v Mohinder Kumar, AIR 1964 SC
993 : (1964) 5 SCR 946 : (1964) 2 All 590 that this rule has no application when a suit is
adjourned on the application of all the parties for compromise.
Distinction between rules 2 and 3.—
(1) rule 2 applies where an ad tournament has been generally granted and not for
any special purpose whereas rule 3 applies where the adjournment has been
given for one of the purposes mentioned in the rule.20
(2) Rule 2 does not apply unless the party has failed to appear at the hearing,
whereas rule 3 will apply where the party appears and if present and has
committed the default referred to in the rule.21
To whom time has been granted.—
When an order has been passed for a party to be present at an adjourned hearing it
does not amount to a granting of time to the party to do any act within the meaning of
this rule. Nor is it adjourned on the joint application of both the parties within this
rule.22 This rule will not also apply where time was granted not to the party in default
but to the opposite party.23
words (w.e.f. 1-2-1977).
20 RSN Co Ltd v Dhirendra Krishna Paul, AIR 1952 Ass 33 (FB).
21 Panna Lal Nandwari v Bishan Dei, AIR 1946 All 353 (FB).
22 Arjun Singh v Mohinder Kumar, AIR 1964 SC 993 : (1964) 5 SCR 946 : (1964) 2 All 590 :
(1964) 2 An LT 341.
23 Arjun Singh v Mohinder Kumar, AIR 1964 SC 993 : (1964) 5 SCR 946 : (1964) 2 All 590 :
(1964) 2 An LT 341.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Right to begin
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XVIII Hearing of the Suit and Examination of Witnesses
R. 1.
Right to begin
The plaintiff has the right to begin unless the defendant admits the facts alleged by
the plaintiff and contends that either in point of law or on some additional facts
alleged by the defendant the plaintiff is not entitled to any part of the relief which he
seeks, in which case the defendant has the right to begin.
COMMENT.—
The general rule is that the plaintiff has to prove his claim by positive proof, because
the Court has to see whether there is proof of claim or not before enquiring into the
truth or otherwise of the defence.
However, where the defendant has raised a preliminary objection that the suit does not
lie as for instance, where he pleads that the suit is barred by res judicata he has the
right to begin the case.
Where the respondent in an appeal objects that the appeal does not lie, the appellant
must show that he has a right of appeal and has, therefore, right to begin.
The expression "right to begin" in the sub rule of O XVIII rule 1 of the Code of Civil
Procedure and in its content is, therefore, not a right such as a privilege which can be
reserved or waived. This is a provision which sets out who must begin the evidence.
Upon the admission of the plaintiff's facts and upon said additional facts it specifies
that the defendant has the right to begin and it is only in those cases that the defendant
must begin his evidence. The expression "right" therefore, cannot be taken to be only
moral or legal entitlement to have or to do something as per its dictionary meaning or a
power, privilege or immunity secured to a person by law.1
1 Sandip Sankarlal Kedia v Pooja Sandip Kedia, AIR 2014 Bom 26 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Right to begin Statement
and production of evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
2R. 2.
Right to begin Statement and production of evidence
(1) On the day fixed for the hearing of the suit or on any other day to which the
hearing is adjourned, the party having the right to begin shall state his case
and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and
may then address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case [A, C, GAU,
MP].
3
[(3A) Any party may address oral arguments in a case, and shall, before he
concludes the oral arguments, if any, submit if the Court so permits
concisely and under distinct headings writter arguments in support of his
case to the Court and such written arguments shall form part of the record.
(3B) A copy of such written arguments shall be simultaneously furnished to the

opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments
unless the Court, for reasons to be recorded in writing, considers it necessary to
grant such adjournment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the
parties in a case, as it thinks fit.]
4
[(4) * * * * * ]
SPECIAL AMENDMENT
Commercial dispute of a Specified Value.—In its application to any suit in respect of a

commercial dispute of a Specified Value, in Order XVIII, in rule 2, for sub-rules (3A),
(3B), (3C), (3D), (3E), and (3F), substitute the following sub-rules, namely:—
"(3A) A party shall, within four weeks prior to commencing the oral arguments, submit
concisely and under distinct headings written arguments in support of his case to the
Court and such written arguments shall form part of the record.
(3B) The written arguments shall clearly indicate the provisions of the laws being cited
in support of the arguments and the citations of judgments being relied upon by the
party and include copies of such judgments being relied upon by the party.
(3C) A copy of such written arguments shall be furnished simultaneously to the

opposite party.
(3D) The Court may, if it deems fit, after the conclusion of arguments, permit the parties
to file revised written arguments within a period of not more than one week after the
date of conclusion of arguments.
(3E) No adjournment shall be granted for the purpose of filing the written arguments
unless the Court, for reasons to be recorded in writing, considers it necessary to grant
such adjournment.
(3F) It shall be open for the Court to limit the time for oral submissions having regard to
the nature and complexity of the matter.".
[Vide Act 4 of 2016, Sec. 16 and Sch.—8 (w.r.e.f. 23-10-2015).]
Allahabad (Notfn No 4048/35(a)-3(7) 24-7-1926).—For rule 2 substitute the following:—
"2. (1) On the day fixed for the hearing of the suit or on any other day to which the
hearing is adjourned, the party having the right to begin shall state his case, indicating
the relevancy of each of the documents produced by him, and the nature of the oral
evidence which he proposes to adduce and shall then call his witnesses in support of
the issues which he is bound to prove.
(2) The other party shall then state his case in the manner aforesaid and produce his
evidence (if any)."
Calcutta (Notfn No 15165-G of 8-11-1927).—Insert the following as rule 2A:—
"2A. Notwithstanding anything contained in Clauses (1) and (2) of rule 2, the Court may
for sufficient reason go on with the hearing, although the evidence of the party having
the right to begin has not been concluded, and may also allow either party to produce
any witness at any stage of the suit."
Gauhati (Assam, Nagaland, Meghalaya, Manipur and Tripura).—The following

amendments were made by Assam High Court Order, 1948, Clause 6 and Act 27 of 1962,
Sections 13 and 15, dated 1-12-1963, Act 81 of 1971, Section 28, dated 21-1-1972.
At the end of rule 2, add the following Explanation:
"Explanation.—Nothing in this rule shall affect the jurisdiction of the Court, for reasons
to be recorded in writing, to direct any party to examine any witness at any stage".
Kerala (Lakshadweep).—The following amendments were made by Kerala Gazette, dated

9-6-1959.
After sub-rule (3) the following explanation shall be inserted, namely:—
"Explanation.—Nothing in this rule shall affect the discretion of the Court to direct or
permit the examination of any witnesses at any stage of the suit for reasons to be
recorded".
Madhya Pradesh (Notfn No 3409; 29-6-1943).—Add the following as sub-rule (4):—
"(4) Notwithstanding anything contained in this rule, the Court may order that the
production of evidence or the address to the Court may be in any order which it may
deem fit." (16-9-1960)
Madras (Pondicherry).—At the end of rule 2, insert the following "Explanation":—
"Explanation.—Nothing in this rule shall affect the jurisdiction of the Court for reasons
to be recorded in writing to direct any party to examine any witnesses at any stage".
Maharashtra.—Explanation added.
Orissa.—The following amendments were made by Orissa Gazette, dated 7-5-1954.
At the end of rule 2 insert the following:—
"Explanation.—Nothing in this rule shall affect the jurisdiction of the Court to direct any
party to examine any witness at any stage, for reasons to be recorded by the Court in
writing".
Punjab and Haryana (Chandigarh).—The following amendments were made by Punjab

and Haryana Act 31 of 1966, Sections 29 and 32, dated 1-11-1966.
At the end of sub-rule (3) insert the following explanations:—
"Explanation 1.—Nothing in this rule shall affect the jurisdiction of the Court, of its own
accord or on the application of any party for reasons to be recorded in writing, to direct
any party to examine any witness at any stage.
"Explanation II.—The expression "witness" in Explanation I shall include any party as his
own witness". (9-6-1942)

1957.
The following shall be inserted as sub-rule (4) to rule 2:—
"(4) Where a party himself wishes to appear as a witness, he shall so appear before any
other witness on his behalf has been examined; provided that the Court may on an
application made in this behalf and for reasons to be recorded, permit him to appear as
his own witness at a later stage".
COMMENT.—
2002).—
In Order XVIII, rule 2, after sub-rule (3), the following sub-rules shall be inserted, namely:
(3A) Any party may address oral arguments in a case, and shall, before he concludes the
oral arguments, if any, submit if the Court so permits concisely and under distinct headings
written arguments in support of his case to the Court and such written arguments shall
form part of the record.
(3B). A copy of such written arguments shall be simultaneously furnished to the opposite
party.
(3C). No adjournment shall be granted for the purpose of filing the written arguments unless
the Court, for reasons to be recorded in writing, considers it necessary to grant such
adjournment.
(3D). The Court shall fix such time limits for the oral arguments by either of the parties in a
case, as it thinks fit.
Thus, a time limit for oral arguments may be fixed by the Court and with the leave of the
Court, the parties may be required to submit written arguments before concluding the
oral arguments in the case. Ordinarily, no adjournment shall be granted for the purpose
of submitting written arguments, unless the Court for the reasons to be recorded in
writing considers it necessary to do so.
2002).—
In O XVIII, sub-rule 4 shall be omitted. The omitted sub-rule (4) ran thus:
(4) Notwithstanding anything contained in this rule, the Court may for reasons to be
recorded, direct or permit any party to examine any witnesses at any stage.
The word "case" under this rule means the case as has already been put forward. The
term "stating the case"means giving the general outline of the case and indicating in a
general manner the evidence by which the case is proposed to be proved.
It has been held by the Supreme Court that it is beyond the competence of the Court to
oblige a party to examine any particular witness.5
Ordinarily it is the right of the party to examine his witnesses in any order he chooses.
But the practice is and the spirit of this rule supports it also that the party should go
into the witness box first to depose to his case, to be followed by his other witnesses.
The contrary practice of enabling a party to come in last and to fill up the lacuna in the
corroborative evidence is not conclusive to the better administration of justice.6
Sub-rule (4) was added which seeks to empower the Court to direct or permit a party to
examine any witness at any stage.
Reference may be made to Mani Dhal v Padma Charan Dhal, AIR 1984 Ori 169 .
In the absence of pleadings in the written statement the defendant cannot lead
evidence on the points not pleaded in the written statement.7
Examination of witness, at any stage.—Deletion of rule 2(4) by Amendment of 1999 does

not take away Courts inherent power to call for any witness at any stage.8
Evidence outside pleadings.—
The evidence would be discarded for being outside the pleadings.9
Closure of evidence.—
Where inability to produce witness was not due to deliberate neglect or inaction of
defendant, the closure of evidence of the defendant by the Court would be improper.10
Refusal of condonation of delay.—
Where plaintiff was negligent and in spite of repeated opportunities and directions
failed to file affidavit by way of evidence, such negligence, recklessness and repeated
failures to comply with Court orders for over one year cannot be condoned.11
3 Ins. by the Code of Civil Procedure (Amendment) Act, 22 of 2002, Section 12(a) (w.e.f. 1-7-
2002).
4 Sub-rule (4) omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999)
(w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 prior to its omissions it stood as under as
inserted by 1976 Amendment:
'Notwithstanding anything contained in this rule, the Court may, for reasons to be recorded,
direct or permit any party to examine any witness at any stage.'
5 Municipal Corporation of Greater Bombay v Lala Punchain, AIR 1965 SC 1008 : (1965) 1 SCR
542 : 67 Bom LR 782.
6 Gurdial Kaur (Smt) v Pyara Singh, AIR 1962 Punj 180 ; see also (1972) 74 Punj LR 207 (211).
7 Ramachandra Narayan Nayak v Karnataka Neeravari Nigam Ltd, (2013) 15 SCC 140 .
9 Kishor K Mehta v Lilavati KM Medical Trust, (2007) 10 SCC 21 .
10 Amrit Lal Kapoor v Kusum Lata Kapoor, AIR SC 2010 2733 : (2010) 6 SCC 583 .
11 Manohar Lal Ahuja v Nand Lal Ahuja, AIR 2008 (NOC) 347 (Del-DB) : FAO (OS) No 372 of 2007
Dt 21 September 2007.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Evidence where several
issues
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Evidence where several issues
Where there are several issues, the burden of proving some of which lies on the other
party, the party beginning may, at his option, either produce his evidence on those
issues or reserve it by way of answer to the evidence produced by the other party;
and, in the latter case, the party beginning may produce evidence on those issues
after the other party has produced all his evidence, and the other party may then reply
specially on the evidence so produced by the party beginning; but the party beginning
will then be entitled to reply generally on the whole case [A].
[Rule substituted in Allahabad].
Allahabad. (Notfn No 3837/35 (a)-2(1); 20-6-1936).—For rule 3 substitute the following:

—
"3. (1) Where there are several issues the burden of proving some of which lies on the
other party, the party beginning may, at his option, either state his case in the manner
aforesaid and produce his evidence on those issues or reserve the statement of his
case and the production of his evidence on those issues by way of answer to the
evidence produced by the other party; and, if the latter is the case, the party beginning
may state his case in the manner aforesaid and produce evidence on those issues after
the other party has produced all his evidence.
(2) After both parties have produced their evidence, the party beginning may address
the Court on the whole case; the other party may then address the Court on the whole
case; and the party beginning may reply generally on the whole case, provided that in
doing so he shall not, without the leave of the Court, raise questions which should have
been raised in the opening address".
COMMENT.—
This rule applies where there are several issues and the burden of proving some of
which lies on the other party. In such a case, the party beginning may at his option:
(i) produce his evidence on those issues, or
(ii) reserve it by way of answer to the evidence produced by the other party.
This rule is not applied where the party, having the burden of proof, fails to produce
evidence bearing on the issues he was required to prove and later, after the opposite
party has led evidence on those points, proposes to rebut them.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Party to appear before
other witnesses
© 2020 LexisNexis
THE FIRST SCHEDULE
12[R. 3A.
Party to appear before other witnesses
Where a party himself wishes to appear as a witness, he shall so appear before any
other witness on his behalf has been examined, unless the Court, for reasons to be
recorded, permits him to appear as his own witness at a later stage.]
COMMENT.—
Rule 3-A was added to provide that a party who wishes to be examined as a witness
should first offer himself for examination before the other witnesses are examined.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4. Recording of evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
13[R. 4.
Recording of evidence
14
(1) In every case, the examination-in-chief of a witness shall be on affidavit and
copies thereof shall be supplied to the opposite party by the party who calls
him for evidence :
Provided that where documents are filed and the parties rely upon the
documents, the proof and admissibility of such documents which are filed
along with affidavit shall be subject to the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in

attendance, whose evidence (examination-in-chief) by affidavit has been
furnished to the Court, shall be taken either by the Court or by the Commissioner
appointed by it :
Provided that the Court may, while appointing a commission under this sub-rule,
consider taking into account such relevant factors as it thinks fit:
Provided further that in a suit tried by the High Court, the evidence shall
ordinarily be recorded by the Commissioner unless the Court directs otherwise.
(3) The Court or the Commissioner, as the case may be, shall record evidence either
in writing or mechanically in the presence of the Judge or of the Commissioner,
as the case may be, and where such evidence is recorded by the Commissioner
he shall return such evidence together with his report in writing signed by him to
the Court appointing him and the evidence taken under it shall form part of the
record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the
demeanour of any witness while under examination :
Provided that any objection raised during the recording of evidence before the
Commissioner shall be recorded by him and decided by the Court at the stage of
arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the
commission within sixty days from the date of issue of the commission unless
the Court for reasons to be recorded in writing extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as
remuneration for the services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are
applicable, shall apply to the issue, execution and return of such commission
under this rule. ]
Amendment of Order XVIII.—In Order XVIII of the Code, in rule 4, after sub-rule (1), the
following sub-rules shall be inserted, namely:—
"(1A) The affidavits of evidence of all witnesses whose evidence is proposed to be led
by a party shall be filed simultaneously by that party at the time directed in the first
Case Management Hearing.
(1B) A party shall not lead additional evidence by the affidavit of any witness (including
of a witness who has already filed an affidavit) unless sufficient cause is made out in
an application for that purpose and an order, giving reasons, permitting such additional
affidavit is passed by the Court.
(1C) A party shall however have the right to withdraw any of the affidavits so filed at
any time prior to commencement of cross-examination of that witness, without any
adverse inference being drawn based on such withdrawal:
Provided that any other party shall be entitled to tender as evidence and rely upon any
admission made in such withdrawn affidavit."
HIGH COURT AMENDMENT UNDER THE OLD RULE
Rajasthan—(Notfn No 10/SRO of 29-6-1957).—Insert the following at the

commencement of the rule:—
"Subject to the provisions of rule 1 of Order XVI". (25-7-1957)
COMMENT.—
Important Note.—
2002).—
For rule 4 [as substituted by clause (ii) of section 27 of the Code of Civil of Civil
Procedure (Amendment) Act, 1999], the following rule shall be substituted, namely:
4. (1) In every case, the examination-in-chief of a witness shall be on affidavit and copies
thereof shall be supplied to the opposite party by the party who calls him for evidence:
Provided that where documents are filed and the parties rely upon the documents, the proof
and admissibility of such documents, which are filed along with affidavit, shall be subject to
the orders of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance,

whose evidence (examination-in-chief) by affidavit has been furnished to the Court or by the
Commissioner appointed by it; Provided that the Court may, while appointing a commission
under this sub-rule, consider taking into account such relevant factors as it thinks fit:
Provided that the Court may, while appointing a commission under this sub-rule, consider
taking into account such relevant factors as it thinks fit:
Provided further that in a suit tried by the High Court, the evidence shall ordinarily be
recorded by the Commissioner unless the Court directs otherwise.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in
writing or mechanically in the presence of the Judge or of the Commissioner, as the case
may be, and where such evidence is recorded by the Commissioner he shall return such
evidence together with his report in writing signed by him to the Court appointing him and
the evidence taken under it shall form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the
demeanour of any witness while under examination:
(5) The report of the Commissioner shall be submitted to the Court appointing the
commission within sixty days from the date of issue of the commission unless the Court for
reasons to be recorded in written extends the time.
(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
commissioner to record the evidence under this rule.
(7) The Court may be general or special order fix the amount to be paid as remuneration for
the services of the Commissioner.
(8) The provisions of Rules 16, 16AA, 17 and 18 of Order XXVI, in so far as they are
applicable, shall apply to the issue, execution and return of such commission under this
rule.
The examination-in-chief of a witness shall be recorded on affidavit. The cross-

examination and re-examination of a witness in the High Courts having original
jurisdiction shall be recorded ordinarily by the Commissioner and in Courts subordinate
to the High Court, such evidence shall be recorded either by the Court or by the
Commissioner appointed by it. The Commissioner shall also have the power to record
the demeanour of a witness and any objection made in regard to such matter shall be
decided by the Court at the time of arguments of the case. A Commissioner is required
to submit his report within six months from the date of the issue of the commission.
Rule as amended by the Code of Civil Procedure (Amendment) Act, 1999, which
provided for recording of evidence (Cross-examination and reexamination) of the
witnesses by the Commissioner in all cases has been substituted by the Code of Civil
Procedure (Amendment) Act, 2002. (Vide Statement of Objects and Reasons, the Code
of Civil Procedure (Amendment) Act, 2002).
2002).—
In O XVIII, for rule 4, the following rule shall be substituted, namely:—
Rule 4. Recording of evidence by commissioner.—(1) In every case, the evidence of a witness

of his examination-in-chief shall be given by affidavit and copies thereof shall be supplied to
the opposite party by the party who calls him for evidence.
(2) The evidence (cross-examination and re-examination) of the witness in attendance,

whose evidence (examination-in-chief) by affidavit has been furnished to the Court shall be
taken orally by a commissioner to be appointed by the Court from amongst the panel of
commissioners prepared for this purpose on the same day:
Provided that, in the interest of justice and for reasons to be recorded in writing, the Court
may direct that the evidence of any witness shall be recorded by the Court in the presence
and under the personal direction and superintendence of the Judge.
(3) The commissioner shall be paid such sum for recording of evidence as may be
prescribed by the High Court.
(4) The amount payable to the commissioner under sub-rule (3) shall be paid by the Court or
by the parties summoning the witness as may be prescribed by the High Court.
(5) The District Judge shall prepare a panel of commissioners to record the evidence under
this rule.
(6) The commissioner shall record evidence either in writing or mechanically in his presence
and shall make a memorandum which shall be signed by him and the witnesses and submit
the same to the Court appointing such commissioner.
(7) Where any question put to a witness is objected by a party or his pleader and the
commissioner allows the same to be put, the commissioner shall take down the question
together with his decision
Modifications.—This rule has been amended so as to make the following
modifications:
1. Rule 4 of O XVIII has been substituted.
2. By this amendment the power of recording evidence has been conferred on the
commissioner to be appointed by the Court. The maximum time was consumed
in recording oral evidence by the Courts which resulted in delay in disposal of
cases. Therefore, such delay has been reduced by making provisions for filing of
examination-in-chief of every witness in the form of an affidavit. Cross-
examination and re-examination shall be recorded by the commissioner and the
evidence recorded by him shall become part of the record of the suit.

1999 stated thus:-
Order XVIII provides for manner of recording the evidence. It is proposed to confer the
power of recording of evidence to the commissioner to be appointed by the Court. [Clause
27].
Delegated Legislation.—Rule 4 of O XVIII as sought to be substituted by clause 27 of the

Bill empowers the High Courts to provide by rules the sums to be paid to the
Commissioner for recording of evidence and the amount payable to the Commissioner
by the Court or by the parties.
Recording of evidence by Commissioner.—
New rule 4 as substituted by the Amendment Act, 1999 provides for recording of
evidence by a commissioner appointed by the Court. The proviso to sub-rule (2) says
that in the interest of justice and for reasons to be recorded in writing, the Court may
direct the evidence of any witness to be recorded by the Court itself under personal
direction and superintendence of the Judge. This proviso is the same as in the repealed
rule 4 except for the addition of the words "in the interest of justice and for reasons to
be recorded in writing". The rule makes provisions as to:
— the remuneration payable to the commissioner [rule 4(3) and (4)].

— preparation of panel of commissioners by the District Judge [rule 4(5)]
— manner of recording evidence by the commissioner [rule 4(6) and (7)].
The statement of Objects and Reasons needs as follows:
As the maximum time is consumed in recording oral evidence by the Courts which
causes delay in disposal of cases, it is proposed to reduce such delay by making
provisions for filing of examination-in-chief of every witness in the form of an affidavit.
For the cross-examination and re-examination of witnesses it is proposed that it shall
be recorded by a commissioner to be appointed by the Court and the evidence
recorded by a commissioner shall become part of the record of the suit Lpara 3(e)]
Cross Ref.—
Place of trial to be deemed to be open Court (section 153B); No person shall testify as
a witness except on oath or affirmation. A child under twelve may not be given oath
(section 4 Oaths Act). Privileges of paradanashin women (section 132; O XXVI rule 1);
Examination of witnesses on commission (section 75; O XXVI rule 1-8); Order of
production and examination of witnesses (section 135, Evidence Act); Proof by affidavit
(O XIX rule 1).
A party has a right to have all the witnesses, tendered by him, examined by the Court.
The Court cannot ordinarily refuse to examine them.
The ordinary mode of proof enjoined by this rule should not be displaced by the Court,
unless there are exceptional circumstances, by making an order under O XIX rule 1
requiring a party to prove his case by affidavits only.15 The procedure enjoined by the
rule may be dispensed with if the parties agree to a decision on affidavits.16
Expression "shall" to be construed as "may".—
The expression "shall" used in O XVIII rule 4(2) of the Code has to be construed as
"may". It will hardly be permissible to read the word "shall" in relation to examination
before a court as it is bound to cause absurd results.17
Rule can be waived for summoned witnesses.—
If the provisions of O XVI and O XVIII are read together, then it appears that O XVIII rule
4(1) will necessarily apply to a case contemplated by O XVI rule 1A i.e. where any party
to a suit, without applying for summoning under rule 1 brings any witness to give
evidence or produce any document. In such a case, examination-in-chief is not to be
recorded in Court but shall be in the form of an affidavit. When summons are issued,
the Court can give an option to the witness summoned either to file an affidavit by way
of examination-in-chief. Whether a witness shall be directed to file affidavit or be
required to be present in Court for recording of his evidence is a matter to be decided
by the Court in its discretion having regard to the facts of each case.18
Court and commissioner can record evidence in part.—

A Court can direct that the evidence may be partly recorded by the Commissioner and
partly by Court. The view that once the Court decides that evidence will be recorded by
the Commissioner, the evidence of other witnesses cannot be recorded by the Court, is
not correct.19
Recording of evidence.—
The Court in appropriate cases can order examination-in-chief and cross-examination

to be done by Court. The plea that Court would be deprived of benefit of watching
demeanour of witness, cannot be granted to defeat will of Legislature .20
When evidence was recorded by the Judge in open court in the presence of party's
council by reading it out loudly and also mentioning that there was no mistake on the
part of the typist who recorded the deposition then such evidence has to be taken as
correctly recorded unless the party proves otherwise by producing cogent evidence.21
The defendant the sole witness, his oral evidence was recorded but his examination in
chief was not taken on affidavit. The defendant was not able to establish how he had
been prejudiced by his oral examination instead of his examination in chief in the form
of affidavit. It was held that no prejudice was caused to the defendant as contravention
of the provision was only procedural irregularity and thus the entire proceeding cannot
be treated to be vitiated .22
Evidence can be recorded with electronic media.—
The recording of evidence can be with the help of electronic media, audio or audio-
visual. Whenever evidence is recorded by the Commissioner it will be advisable that
there should be simultaneously at least an audio recording of the statement of the
witnesses.23
Examination-in-chief of witness, no difference in appealable cases and non-appealable

cases.—An examination-in-chief of witness is to be tendered on affidavit as per rule 4
as amended, even in appealable cases. The expression "in every case" occurring in rule
4 makes no difference between appealable and non-appealable cases. In non-
appealable cases the doctrine of suppression of mischief rule shall apply. The
provisions of rule 4 and rule 5 should be harmoniously read. Rule 5 is not an exception
to rule 4 of O XVIII of the Code.24
Admissibility of evidence.—
The objection regarding evidence contained in affidavit can be taken at any stage.
Determination or decision thereon can be deferred to a later stage of suit until final
judgment .25 be taken in appealable cases
13 Subs. by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002)
vide Notfn. S.O. 604(E), dt. 6-6-2002, Section 12(b),
Earlier rule 4 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-
7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'Rule 4. Witnesses to be examined in open Court.—The evidence of the witnesses in attendance

shall be taken orally in open Court in the presence and under the personal direction and
superintendence of the Judge.'
15 BN Munibaragga v GD Swamigal, AIR 1959 Mys 139 ; see also State of J&K v Bakshi Gulam
Mohammad, AIR 1967 SC 122 : 1966 Supp SCR 401 : 1966 Kash LJ 168 .
16 1972 Cur LJ 58 .
17 Harish Vithal Kulkarni v Pradeep Mahadev Salmis, AIR 2010 Bom 178 (186) (FB).
19 Ibid.
20 Salem Advocates Bar Assocn v UOI, AIR 2005 SC 3353 (3357); K Soma Shekara Shetty v
Devaki, 2005 AIHC 3845 (Kant).
21 Ramnivas Vyas v H Srinivasa Bhati, (2014) 5 SCC (Civ) 201.
22 Thokchom Suren Singh v Laishram Priyokumar Singh, AIR 2014 Mpr 37 (para 6).
24 AT Corpn Ltd v Shapoorji Data Processing Ltd, AIR 2004 SC 355 (358, 359); see also Laxman
Das v Deoji Mal, AIR 2003 Raj 741 (impliedly overruled); FDC Ltd v Federation of MR Assn India,
AIR 2003 Bom 371 (approved).
25 Hemendra R Ghia v Subodh Mody, 2009 (3) ALJ 69 (Bom-FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5. How evidence shall
© 2020 LexisNexis
THE FIRST SCHEDULE
26[ 27R. 5.
How evidence shall
In cases in which an appeal is allowed, the evidence of each witness shall be,—
(a) taken down in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and
superintendence of the Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in

the language of the Court in the presence of the Judge.]
COMMENT.—
The existing rule 5 was substituted by the present rule. Rules 5 and 8 were amended
with a view to make it clear that in the event of appeal being allowed, the evidence
should be taken down in writing by the Judge or in his presence and under his personal
superintendence by any other person, or may be dictated by the Judge directly on a
typewriter or may be recorded on a tape recorder.
26 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 69, for the
former rule 5 (w.e.f. 1-2-1977).
27 The provisions of Rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner
of taking evidence, are not applicable to the Chief Court of Oudh, see the Oudh Courts Act, 1925
(U.P. 4 of 1925), Section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. When deposition to be
interpreted
© 2020 LexisNexis
THE FIRST SCHEDULE
28R. 6.
When deposition to be interpreted
Where the evidence is taken down in a language different from that in which it is
given, and the witness does not understand the language in which it is taken down,
the evidence as taken down in writing shall be interpreted to him in the language in
which it is given.
28 The provisions of rules 5, 6, 7, 8, 9, 11, 13, 14, 15 and 16, so far as they relate to the manner
(U.P. 4 of 1925) section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Evidence under Section
138
© 2020 LexisNexis
THE FIRST SCHEDULE
28R. 7.
Evidence under Section 138
Evidence taken down under Section 138 shall be in the form prescribed by rule 5 and
shall be read over and signed and, as occasion may require, interpreted and corrected
as if it were evidence taken down under that rule.
(U.P. 4 of 1925) section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Memorandum when
evidence not taken down by Judge
© 2020 LexisNexis
THE FIRST SCHEDULE
28R. 8.
Memorandum when evidence not taken down by Judge
Where the evidence is not taken down in writing by the Judge 29[ or from his dictation
in the open Court, or recorded mechanically in his presence ,] he shall be bound, as the
examination of each witness proceeds, to make a memorandum of the substance of
what each witness deposes, and such memorandum shall be written [B] and signed by
the Judge [A] and shall form part of the record.
Allahabad, (Notfn No 92/X-14; 19-5-1956).—For the words "and signed by the Judge"
substitute "by the Judge or typed to his dictation, shall be signed by him". (19-5-1958)
Explanation.—However, to matters outside Greater Bombay, the State of Goa and the
Union Territories of Daman and Diu and Dadra and Nagar Haveli and from which there
is no first appeal to the High Court the depositions given by the witnesses shall be
recorded only in Marathi or in English where the witness deposes in English. In such
matter it is not necessary to maintain memorandum as mentioned in the Rule". (31-12-
1987)
Bombay.—After the words "shall be written" insert "or dictated". [1-11-1966].
The following amendments were made by Maharashtra Government Gazette, dated 31-12-
1987, Part IV Ka, Page 792.
For Rule 8, substitute as under—
"8. Memorandum when evidence not taken down by Judge.—
Where the evidence is not taken down in writing by the Judge, he shall be bound as the
examination of each witness proceeds to make a memorandum of the substance of
what each witness deposes, and such memorandum shall be written or dictated and
signed by the Judge and shall form part of the record.
Exception.—However in matters outside Greater Bombay, the State of Goa and the
Union Territories of Daman and Diu and Dadra and Nagar Haveli and from which there
is no first appeal to the High Court the depositions given by the witnesses shall be
recorded only in Marathi or in English where the witness deposes in English. In such
matter it is not necessary to maintain memorandum as mentioned in the Rule". (31-12-
1987)
Calcutta (Andaman and Nicobar Island).—Omit rule 8 (dated 6-7-1967).
Madhya Pradesh.—Insert the words "or at his dictation in open Court" in Order XVIII,
rule 8, between the words "Judge" and "comma," (w.e.f. 27-7-1956).
Punjab, Haryana and Chandigarh.—The following amendments were made by Haryana
Gazette, dated 10-12-1974, Part III (L.S.), Page 1421.
(i) In Order XVI, in rule 8(i) insert the words "or from his dictation" between the
words "in words by the Judge" and "he shall be bound".
(ii) In rule 8(ii), words "by the Judge or typed to his dictation, shall be signed by him",
substituted for the words "and signed by the Judge". (Vide G.S.R. No.153/CA5
/1908/ 74)
COMMENT.—
In this rule 8, after the "words in writing by the Judge", the words "or from his dictation
in the open Court or recorded mechanically in his presence" were inserted by the
Amending Act of 1976.
(U.P. 4 of 1925) section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9. When evidence may be
taken in English
© 2020 LexisNexis
THE FIRST SCHEDULE
30[ 31R. 9.
When evidence may be taken in English
(1) Where English is not the language of the Court, but all the parties to the suit
who appear in person, and the pleaders of such of the parties as appears by
pleaders, do not object to having such evidence as is given in English, being
taken down in English, the Judge may so take it down or cause it to be taken
down.
(2) Where evidence is not given in English but all the parties who appear in person,
and the pleaders of such of the parties as appear by pleaders, do not object to
having such evidence being taken down in English, the Judge may take down,
or cause to be taken down, such evidence in English.]
COMMENT.—
The previous rule 9 was substituted by the present rule in order to provide that where
English is not the language of the Court and the parties or their pleaders do not object
to the evidence given in English, being taken down in English the Judge may take down
such evidence in English or cause it to be taken down.
(U.P. 4 of 1925), Section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Any particular question
and answer may be taken down
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Any particular question and answer may be taken down
The Court may, of its own motion or on the application of any party or his pleader, take
down [C] any particular question and answer, or any objection to any question, if there
appears to be any special reason for so doing.
[Rule amended in Calcutta].
Calcutta.—After the words "take down" add, "or cause to be taken down from his
dictation in open Court, in the language of the Court or in English." [6-7-1967].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Questions objected to
and allowed by Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Questions objected to and allowed by Court
Where any question put to a witness is objected to by a party or his pleader, and the
Court allows the same to be put, the Judge shall take down [C] the question, the
answer, the objection and the name of the person making it, together with the
decision of the Court thereon.
Calcutta.—After the words "take down" add, "or cause to be taken down from his
dictation in open Court, in the language of the Court or in English". [6-7-1967].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Remarks on demeanour
of witnesses
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Remarks on demeanour of witnesses
The Court may record such remarks as it thinks material respecting the demeanour of
any witness while under examination [C].
Calcutta.—At the end add the following:—
"or cause the same to be recorded under his dictation in open Court, in the language of
the Court or in English". [6-7-1967].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 13. Memorandum of
evidence in unappealable cases
© 2020 LexisNexis
THE FIRST SCHEDULE
32[ 33R. 13.

Memorandum of evidence in unappealable cases
In cases in which an appeal is not allowed, it shall not be necessary to take down or
dictate or record the evidence of the witnesses at length; but the Judge, as the
examination of each witness proceeds, shall make in writing, or dictate directly on the
typewriter, or cause to be mechanically recorded, a memorandum of the substance of
what the witness deposes, and such memorandum shall be signed by the Judge or
otherwise authenticated, and shall form part of the record.]
Bombay.—The following amendments were made by Maharashtra Government Gazette,

dated 31-12-1987, Part IV Ka, Page 793.
For rule 13, substitute as under:—
"13. Memorandum of evidence in unappealable cases.—In cases in which an appeal is

not allowed, it shall not be necessary to take down or dictate or record the evidence of
the witnesses at length, but the Judge, as the examination of each witness proceeds,
shall make in writing, or dictate directly on the type-writer, or cause to be mechanically
recorded, a memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the Judge or otherwise authenticated, and shall form
part of the record. However, such memorandum outside Greater Bombay, the State of
Goa and the Union Territories of Daman and Diu and Dadra and Nagar Haveli shall be in
Marathi or in English wherever the witnesses deposes in English".
COMMENT.—
The previous rule 13 was substituted by the present rule in order to prove that, in cases
in which no appeal is allowed, the Judge shall make or dictate directly on a typewriter
or cause to be mechanically recorded, a memorandum of the substance of the
deposition of the witnesses.
rule 13 (w.e.f. 1-2-1977).
(U.P. 4 of 1925), Section 16(2).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Omitted
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Omitted
Omitted by Act 104 of 1976.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Power to deal with
evidence taken before another Judge
© 2020 LexisNexis
THE FIRST SCHEDULE
34R. 15.
Power to deal with evidence taken before another Judge
(1) Where a Judge is prevented by death, transfer or other cause from concluding
the trial of a suit, his successor may deal with any evidence or memorandum
taken down or made under the foregoing rules as if such evidence or
memorandum had been taken down or made by him or under his direction
under the said rules and may proceed with the suit from the stage at which his
predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to
apply to evidence taken in a suit transferred under Section 24.
former rule 15 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Power to examine
witness immediately
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Power to examine witness immediately
(1) Where a witness is about to leave the jurisdiction of the Court, or other
sufficient cause is shown to the satisfaction of the Court why his evidence
should be taken immediately, the Court may, upon the application of any party
or of the witness, at any time after the institution of the suit, take the evidence
of such witness in manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties,
such notice as the Court thinks sufficient, of the day fixed for the examination,
shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to
be correct, shall be signed by him, and the Judge shall, if necessary, correct
the same, and shall sign it, and it may then be read at any hearing of the suit.
COMMENT.—
The signature of the witness is not a part of the disposition and apart from
acknowledging the correctness of his disposition on the disposition itself, it is not
essential for any other purpose. It is well-known that a disposition recorded in a Court,
except under O XVIII rule 16 of the Code of Civil Procedure, does not require the
signature of the witness. The signature of the witness on the disposition recorded on
commission is only required for the Court's assurance since the witness is not
examined in the Court. An omission of witness' signature on the disposition cannot be
said to render the disposition incomplete.35
Mere old age/apprehension of death (due to old age) is not a sufficient cause.
—
Where the appellant was about 70 years of age and hale and hearty, and was not
suffering from any serious ailment nor was on her death bed, thus, there was no
occasion for her to file an application under O XVIII rule 16 of the Code of Civil
Procedure for taking evidence de bene esse for recording the statement prior to the
commencement of the trial. Mere apprehension of death of a witness cannot be a
sufficient cause for immediate examination of a witness. Apprehension of death
applies to each and every witness. More so, it is in the discretion of the Court to come
to a conclusion as to whether there is a sufficient cause or not to examine the witness
immediately.36
35 Owners & Parties interested in MV "Vali Pero" v Fernandro Lopez, AIR 1989 SC 2206 (2214) :
(1989) 4 SCC 671 : 1989 Lab IC 2089 .
36 Laxmibai v Bhagwantbua, AIR 2013 SC 1204 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Court may recall and
examine witness
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Court may recall and examine witness
The Court may at any stage of a suit recall any witness who has been examined and
may (subject to the law of evidence for the time being in force) put such questions to
him as the Court thinks fit.
COMMENT.—
It has been held by a Division Bench of Allahabad High Court that the intention of this
rule is to give an opportunity to a party to put such questions to a witness as had not
been put to him in the earlier examination due to the inadvertence of that party.37
Party cannot be compelled to examine any witness.—
A Court cannot compel a party to examine any particular witness. It is the duty of a
Court of law not only to do justice but also to ensure that justice is done. It should bear
in mind that it must act only according to law, not otherwise.38
Power to recall, how to be exercised.—
The power under rule 17 of O XVIII of the Code is to be sparingly exercised and in
appropriate cases and not as a general rule merely on the ground that his recall and re-
examination would not cause any prejudice to the parties. This rule should be invoked
not to fill up the lacuna in the evidence of the witness which has already been recorded
but to clear any ambiguity that may have arisen during the course of his examination.39
Recall of witness-scope and object of.—
Witness cannot be recalled and reexamined on the ground that no prejudice would be
caused to the other side. The power under the said provision if used in a routine
manner would defeat the very purpose of amendments to the Civil Procedure Code.
This provision enables courts to clarify any doubts regarding evidence led by the
parties. It is not meant to fill up omissions in already adduced evidence. Where
application is bonafide and earlier non-production was for valid reasons, then recalling
of witness is permissible.40
The power under this rule is discretionary and should be exercised sparingly. The court
may permit party to recall witness or fresh evidence:
i) where application is bona fide;
ii) leading additional evidence, oral or documentary, would assist court to clarify
evidence on issues;
iii) such measure would assist court in rendering justice; and
iv) if court is satisfied earlier no production was for valid and sufficient reasons.
Recalling of witnesses could be considered only in comparing and acceptable

reasons.41
Application was made for recalling of witness for cross examination. The said
application was made after consolidation of two suits. The trial Court ordered that the
two cases be consolidated, and evidence lead in either case be read in both these
cases and that past evidence of witness already recorded be treated as main suit. It
was held that the order passed under O XVIII rule 17 allowing the application without
noticing these crucial aspects not proper.42
In the instant case, an application was made to prove a document and in the said
application no prayer was made to recall the witness. Rule 17 of O XVIII of the Code of
Civil Procedure nowhere provides for such permission for proving the document. The
plaintiff being aware of the limitation that a witness cannot be recalled at the instance
of a party to the suit, the application has been couched in such a language where he
has sought permission to prove the document which once allowed would automatically
have the effect of recalling witness. Hence, rejection of application proper.43
In an election petition, it was held that it is not for any party to make application for
recalling witness to reopen evidence at the stage of conclusion of the trial. The
application, therefore, is not maintainable.44
37 Ulsumunnisa (Smt) v Ahmadi Begum (Smt), AIR 1972 All 219 .

38 Municipal Corpn of Greater Bombay v Lala Puncham, AIR 1965 SC 1008 (1014) : (1965) 1 SCR
542 : 67 Bom LR 782.
39 Vadiraj Naggappa Vernekar v Sarad Chand Prabhakar Gogate, AIR 2009 SC 1604 (1607) :
(2009) 4 SCC 410 .
40 Bagai Construction v Gupta building Material Store, AIR 2013 1849.
41 Gayathri v M Girish, AIR 2016 SC 3559 : 2016 (3) AKR 861 : 2016 (7) SCALE 461 : (2016) 14
SCC 142 .
42 Ram rati v Mange ram, AIR 2016 SC 1343 .
43 Ajay Kumar Aggarwal v Sushila Bai, AIR 2015 Chh 38 .
44 P Mohan v MK Azhagiri, AIR 2014 Mad 18 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 17A. Production of
evidence not previously known or which could not be produced despite due diligence
© 2020 LexisNexis
THE FIRST SCHEDULE
45[R. 17A.
Production of evidence not previously known or which could not be produced
despite due diligence
* * * * *]
COMMENT.—
2002).—
45 Rule 17A omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
Section 69(viii) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 prior to its omission stood
as under: 'Rule 17A. Production of evidence not previously known or which could not be produced
despite due diligence.—Where a party satisfies the Court that, after the exercise of due diligence,
any evidence was not within his knowledge or could not be produced by him at the time when
that party was leading his evidence, the Court may permit that party to produce that evidence at
a later stage on such terms as may appear to it to be just.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Power of Court to
inspect
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Power of Court to inspect
The Court may at any stage of a suit inspect any property or thing concerning which
any question may arise, 46[and where the Court inspects any property or thing it shall,
as soon as may be practicable, make a memorandum of any relevant facts observed
at such inspection and such memorandum shall form a part of the record of the suit.]
Allahabad (Notfn No 794/35(a), 17-3-1923).—Add as a new rule after Order XVIII, rule 18:
—
"19. (1) The Judge shall record in his own hand in English [or Hindi]47 all orders passed
on applications, other than orders of a purely routine character.
(2) The Judge shall record in his own hand in English [or Hindi]48 all admissions and
denials of documents, and the [Judge's notes]49 shall show how all documents
tendered in evidence have been dealt with from the date of presentation down to the
final order admitting them in evidence or rejecting them.
(3) The Judge shall record the issues in his own hand in English, [or Hindi]50 and the
issues shall be signed by the Judge and shall form part of the [Judge's notes]51."
Explanation.—"Judges notes" means the notes maintained by the judge in his own hand
of the day-to-day proceeding (added by Ibid. w.e.f. 22-10-1994).
Madras (Pondicherry).—The following amendments were made by Tamil Nadu Act, dated
29-1-1959.
Add at the end of rule 18 the following:
"As soon as may be, the Court shall record a memorandum of any relevant fact
observed at such inspection. Such memorandum shall form part of the record of the
case".

1973, Part IV (Ga), Section (ii), Extra, Page 259.
Add the following rule in Order XVIII, after rule 18 thereof:
"19. Power to get statements recorded on commission.—Notwithstanding anything

contained in these rules, the Court may instead of examining witnesses in open Court,
direct their statements to be recorded on commission under rule 4A of Order XXVI".
COMMENT.—
In this rule, after the words "any question may arise" the words "and where the Court
inspects any property or thing it shall, as soon as may be practicable, make a
memorandum or relevant facts observed at such inspection and such memorandum
shall form a part of the record of the suit", have been added by the Amending Act of
1976. This has been done to remove a conflict of judicial decisions by making a
specific provision requiring the Judge making the local inspection to make a
memorandum of any relevant facts observed by him and to place the same on the
record.
Under this rule, the Court is empowered to inspect any property or thing though it may
issue a commission for that purpose. It has been held by the Supreme Court that a
judgment should not however, be based solely on the basis of such personal local
inspection.52 The notice of inspection should be confined to the facts observed without
recording impressions or opinions of the Judge.53
46 Ins. by Act 104 of 1976, Section 69, for the former rule 13 (w.e.f. 1-2-1977).
47 Added and Subs. by Notifn. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-94).
49 Subs. by Notifn. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
51 Subs. by Notifn. 350/VII-d-60 dt. 8-8-1994 (w.e.f. 22-10-1994).
52 Ugamn Singh v Kernail, AIR 1971 SC 2540 : (1970) 3 SCC 831 .
53 Jaggilal v RJ Gupta, AIR 1962 All 407 ; M Parikh & Co v CIT, AIR 1956 SC 554 : 1956 SCR 626 :
30 ITR 181, relied on.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 19. Power to get
statements recorded on commission
© 2020 LexisNexis
THE FIRST SCHEDULE
54[R. 19.
Power to get statements recorded on commission
Notwithstanding anything contained in these rules, the Court may, instead of examining
witnesses in open Court, direct their statements to be recorded on commission under
rule 4A of Order XXVI ].
COMMENT—
2002).—
Modifications:
1. A new rule 19 has been inserted after rule 18, O XVIII.
2. The new rule has been inserted to reduce delay in disposal of cases. The Court
has been empowered to direct the statements of witnesses to be recorded on
commission under rule 4A of O XXVI.
Notes on Clauses.—The Code of Civil Procedure (Amendment) Bill, 1999 did not carry
any Notes.
Examination of witnesses on commission rather than in open Court.—
New rule 4A of O XXVI empowers the Court to appoint a commission for examination
of any person resident within the local limits of the jurisdiction of the Court. This has
been done in the interest of justice and for expeditious disposal of cases. As per the
new rule 19, a power has been conferred upon Court to get statements recorded on
commission instead of examining witnesses in open Court, as provided under rule 4A
of O XXVI.
Important Note.—
Act, 1999 (w.e.f. 1-7-2002).

commencement of the Code of Civil Procedure (Amendment) Act, 1999.—
54 Rule 19 inserted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
Section 27 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Power to order any point
to be proved by affidavit
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XIX Affidavits
R. 1.
Power to order any point to be proved by affidavit
Any Court may at any time for sufficient reason order that any particular fact or facts
may be proved by affidavit, or that the affidavit of any witness may be read at the
hearing, on such conditions as the Court thinks reasonable:
Provided that where it appears to the Court that either party bona fide desires the
production of a witness for cross-examination, and that such witness can be
produced, an order shall not be made authorising the evidence of such witness to be
given by affidavit.
Allahabad.—In its application to the State of Uttar Pradesh, insert the following rule, after
rule 1:—
"1-A. Power to permit ex parte evidence on affidavit.—Where the case proceeds ex parte,
the Court may permit the evidence of the plaintiff to be given on affidavit." (Vide Notifn
No.
121/IV-h-36-D, dated Feb. 10, 1981, w.e.f. Oct. 3, 1981)

1984, Section 7, dated 14-8-1984.
In Order XIX, after rule 1, insert the following:—
"1-A. Proof of fact by affidavit in certain cases.—Notwithstanding anything to the

contrary in rule 1, the Court shall, in a suit or proceeding referred to in rule 3-B of Order I
and whether or not any proceeding under the Madhya Pradesh Ceiling on Agricultural
Holdings Act, 1960 (No. 20 of 1960) are pending before the competent authority
appointed under that Act, call upon the parties to prove any particular facts as it may
direct, by affidavit, unless the Court looking to the nature and complexity of the suit or
proceeding and for reasons to be recorded in writing deems it just and expedient to
dispense with the proof of a fact or facts by affidavits".
In its application to the State of Uttar Pradesh, in Order XIX rule 1 for the existing
proviso, substitute the following, namely—
"Provided that if it appears to the Court, whether at the instance of either party or
otherwise and whether before or after the filing of such affidavit that the production of
such witness for cross-examination is necessary and his attendance can be procured,
the Court shall order the attendance of such witness, whereupon the witness may be
examined, cross-examined and re-examined".
COMMENT.—
An Affidavit is a written statement in the name of person called the deponent, by whom
it is voluntarily signed and sworn or affirmed before a person authorised to administer
an oath.
In an election petition, if the second affidavit is filed after the evidence is led and
arguments over then the same is not permissible.1
With regard to use of affidavit in evidence, the Supreme Court of India has held that a
statement on oath, whether true or false, to be met by a counter affidavit in reply, or by
challenging the statement by cross-examining the deponent. If it is not done it would
be presumed that the allegation if not true, would have been rebutted by the other side.
Further, it has been held that where in the affidavit major part of which was on
information received from others was not verified by stating the source of information
and the grounds of belief with sufficient particularity, the affidavit cannot have the value
of evidence in the case so as to base an ex parte decree on its basis.2
Verification of Affidavit.—
The verification of affidavit is a necessity. The affidavits not verified cannot be admitted
in evidence. The reasons for verification of affidavits are to enable the Court to find out
which facts can be said to be proved on the affidavit evidence of rival parties. The
importance of verification is to test the genuineness and authenticity of allegations and
also to make the deponent responsible for allegations. The verification is required to
enable the Court to find out as to whether it will be safe to act on such affidavit
evidence.3
With regard to cross-examination of deponent of an affidavit, the Supreme Court of

India has held that the Court will refuse to act on an affidavit when the deponent cannot
be cross-examined.4
In this connection, it will be material to note that where parties make an agreement to
take evidence by affidavit that is affidavit should be substituted for the evidence to be
so recorded: then procedure as contained in O I rule 4 (Ordinarily evidence is to be
recorded viva voce in Court) may be dispensed with.5
1 Quamarul Islam v SK Kanta, AIR 1994 SC 1733 (1746) : 1994 Supp (3) SCC 5 .
2 State of Bombay v Purushottam Jog, AIR 1952 SC 317 : 1952 SCR 674 : 1952 CrLJ 1267 .
3 AKK Nambiar v UOI, AIR 1970 SC 652 : (1969) 3 SCC 864 .
4 BE Supply Co v The Workmen, AIR 1972 SC 330 .
5 Khandesh Spg & Wg Mills v RGK Sangh, AIR 1960 SC 571 : (1960) 2 SCR 841 : (1960) 1 LLJ
541 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Power to order
attendance of deponent for cross-examination
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Power to order attendance of deponent for cross-examination
(1) Upon any application evidence may be given by affidavit, but the Court may, at
the instance of either party, order the attendance for cross-examination of the
deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from
personal appearance in Court, or the Court otherwise directs.
COMMENT.—
It has been held by a full bench of Allahabad High Court6 that Oath commissioners may
be competent to verify the affidavits filed before them if two conditions are satisfied.
One is that if those affidavits are to be filed before the Courts whose procedure is
governed by Civil Procedure Code and the other is that those Courts must be Courts of
civil jurisdiction.
6 Bijai Narain v State, AIR 1970 All 241 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Matters to which
affidavits shall be confined.
© 2020 LexisNexis
THE FIRST SCHEDULE
7R. 3.
Matters to which affidavits shall be confined.
(1) Affidavits shall be confined to such facts as the deponent is able of his own
knowledge to prove, except on interlocutory applications, on which statements
of his belief may be admitted: provided that the grounds thereof are stated.
(2) The costs of every affidavit which shall unnecessarily set forth matters of
hearsay or argumentative matter, or copies of or extracts from documents,
shall (unless the Court otherwise directs) be paid by the party filing the same.
[Rule 4-5 added in All (post).]
AMENDMENT TO ORDER XIX.—IN ORDER XIX OF THE CODE, AFTER RULE 3, THE
FOLLOWING RULES SHALL BE INSERTED, NAMELY:—
"4. Court may control evidence.—(1) The Court may, by directions, regulate the
evidence as to issues on which it requires evidence and the manner in which such
evidence may be placed before the Court.
(2) The Court may, in its discretion and for reasons to be recorded in writing, exclude
evidence that would otherwise be produced by the parties.
5. Redacting or rejecting evidence.—A Court may, in its discretion, for reasons to be

recorded in writing—
(i) redact or order the redaction of such portions of the affidavit of examination-
inchief as do not, in its view, constitute evidence; or
(ii) return or reject an affidavit of examination-in-chief as not constituting

admissible evidence.
6. Format and guidelines of affidavit of evidence.—An affidavit must comply with the
form and requirements set forth below:—
(a) such affidavit should be confined to, and should follow the chronological
sequence of, the dates and events that are relevant for proving any fact or any
other matter dealt with;
(b) where the Court is of the view that an affidavit is a mere reproduction of the
pleadings, or contains the legal grounds of any party's case, the Court may, by
order, strike out the affidavit or such parts of the affidavit, as it deems fit and
proper;
(c) each paragraph of an affidavit should, as far as possible, be confined to a

distinct portion of the subject;
(d) an affidavit shall state—
(i) which of the statements in it are made from the deponent's own
knowledge and which are matters of information or belief; and
(ii) the source for any matters of information or belief.
(e) an affidavit should—
(i) have the pages numbered consecutively as a separate document (or as

one of several documents contained in a file);
(ii) be divided into numbered paragraphs;
(iii) have all numbers, including dates, expressed in figures; and
(iv) if any of the documents referred to in the body of the affidavit are
annexed to the affidavit or any other pleadings, give the annexures and
page numbers of such documents that are relied upon."
Allahabad [Notfn No. 1953/35(a) of 22-5-1915; Notn No. 572/35(a)-(2) of 18-2-1928)].

— Add the following Rules 4 to 15 after Order XIX rule 3:—
"4. Affidavit shall be entitled In the Court of at (naming such Court). If the affidavit be in
support of, or in opposition to, an application respecting any case in the Court, it shall
also be entitled in such case. If there be no such case it shall be entitled In the matter of
the petition of.
5. Affidavits shall be divided into paragraphs, and every paragraph shall be numbered
consecutively and, as nearly as may be, shall be confined to a distinct portion of the
subject.
6. Every person making any affidavit shall be described therein in such manner as shall
serve to identify him clearly; and where necessary for this purpose, it shall contain the
full name, the name of his father, of his caste or religious persuasion, his rank or degree
in life, his profession, calling, occupation or trade, and the true place of his residence.
7. Unless it be otherwise provided, an affidavit may be made by any person having

cognizance of the facts deposed to. Two or more persons may join in an affidavit; each
shall depose separately to those facts which are within his knowledge, and such facts
shall be stated in separate paragraphs.
8. When the declarant in any affidavit speaks to any fact within his own knowledge, he
must do so directly and positively, using the words "I affirm" or "I make oath and say".
9. Except in interlocutory proceedings, affidavits shall strictly be confined to such facts

as the declarant is able of his own knowledge to prove. In interlocutory proceedings,
when the particular fact is not within the declarant's own knowledge, but is stated from
information obtained from others, the declarant shall use the expression "I am
informed", and, if such be the case, "and verily believe it to be true", and shall state the
name and address of and sufficiently describe for the purposes of identification, the
person or persons from whom he received such information. When the application or
the opposition thereto rests on facts disclosed in documents or copies of documents
produced from any Court of justice or other source, the declarant shall state what is the
source from which they were produced, and his information and belief as to the truth of
the facts disclosed in such documents.
The affidavit should state the name and address and sufficiently describe the identity
of the person or persons from whom he received such information [Harkrishan Khosla v
Alembic Chemical Works Company Ltd., A 1986 All 87 , 89].
10. When any place is referred to in an affidavit, it shall be correctly described. When in
an affidavit any person is referred to, such person, the correct name and address of
such person, and such further description as may be sufficient for the purpose of the
identification of such person, shall be given in the affidavit.
11. Every person making an affidavit for use in a civil Court shall, if not personally
known to the person before whom the affidavit is made, be identified to that person by
someone known to him, and the person before whom the affidavit is made shall state
at the foot of the affidavit the name, address, and description of him by whom the
identification was made as well as the time and place of such identification.
11A. Such identification may be made by a person—
(a) personally acquainted with the person to be identified, or
(b) satisfied, from papers in that person's possession or otherwise, of his identity:
Provided that in case (b) the person so identifying shall sign on the petition or affidavit
a declaration in the following form, after there has been affixed to such declaration in
his presence the thumb impression of the person so identified:—
FORM
I (name, address and description) declare that the person verifying this petition (or
making this affidavit) and alleging himself to be A.B. has satisfied me (here state by
what means, e.g., from papers in his possession or otherwise) that he is A.B. (8-2-1928)
12. No verification of a petition and no affidavit purporting to have been made by a

pardanashin woman who has not appeared unveiled before the person before whom
the verification or affidavit was made, shall be used unless she has been identified in
manner already specified and unless such petition or affidavit be accompanied by an
affidavit of identification of such woman made at the time by the person who identified
her.
13. The person before whom any affidavit is about to be made shall, before the same is
made, ask the person proposing to make such affidavit if he has read the affidavit and
understands the contents thereof, and if the person proposing to make such affidavit
states that he has not read the affidavit or appears not to understand the contents
thereof, or appears to be illiterate, the person before whom the affidavit is about to be
made shall read and explain, or cause some other competent person to read and
explain in his presence, the affidavit to the person proposing to make the same, and
when the person before whom the affidavit is about to be made is thus satisfied that
the person proposing to make such affidavit understands the contents thereof, the
affidavit may be made.
14. The person before whom an affidavit is made, shall certify at the foot of the
affidavit the fact of the making of the affidavit before him and the time and place when
and where it was made, and shall for the purpose of identification mark and initial any
exhibits referred to in the affidavit.
15. If it be found necessary to correct any clerical error in any affidavit, such correction
may be made in the presence of the person before whom the affidavit is about to be
made, and before, but not after the affidavit is made. Every correction so made shall be
initialled by the person before whom the affidavit is made, and shall be made in such
manner, as not to render it impossible or difficult to read the original word or words,
figure or figures, in respect of which the correction may have been made."
COMMENT.—
When an averment is not based on personal knowledge the sources of information

should be clearly disclosed. Verification of an affidavit to prove that certain order was
validly made should invariably be modelled on rule 3 of O XIX.8
The verification of an affidavit filed by a Government officer to prove that certain order
was validly made by the State Government should invariably be modelled on the lines
of O XIX rule 3, whether the Code applies in terms or not. When the matter disposed to
is not based on personal knowledge the sources of information should be clearly
disclosed.9
An affidavit is support of the election petition is to be modelled on the provisions

contained in O IX of the Code of Civil Procedure whether the Code applies or not.
According to section 83 of the Representation of the People Act, 1951 an election
petition shall be verified in the manner laid down in the Code of Civil Procedure. In
essence verification is required to enable the Court to find out as to whether it will be
safe to act on such affidavit evidence. In the absence of proper verification, affidavits
cannot be admitted in evidence.10
An affidavit filed by the secretary to Government cannot be brushed aside on the

ground that the statement therein indicates department's submission to the Court and
not of Union of India. In the circumstances it could be assumed that Secretary and
disclosed the stand of Union of India with full authority and with the intention of
binding Union of India by his statement. An affidavit filed by the Secretary to
Government is of binding nature.11
The onus to prove mala fides lies heavily on the person alleging it. The facts
constituting mala fides were supported by affidavit that "they are correct to the best
knowledge" of deponent. The nature and source of knowledge was not disclosed with
sufficient particularity. Such an affidavit will not be one as required by law.12
An affidavit was filed by an officer of the Government holding key post at relevant time.
It was filed on basis of Government records. The Government pleaded that affidavit
was only an officer of Government and did not necessarily represent view of
Government. The plea was not entitled to any credence.13
Judicial review under writ jurisdiction is required to be granted if and only if a proper
case is made out on breach of statutory provision and/or violation of natural justice
with proper averments.14
8 Barium Chemicals v Company Law Board, AIR 1967 SC 295 (319) : 1966 Supp SCR 311 :
(1966) 36 CC 639 : (1966) 2 Comp LJ 151 .
9 State of Bombay v Purushottam, AIR 1952 SC 317 (319) : 1952 SCR 674 : 1952 CrLJ 1269 .
10 Virendra Kumar Saklecha v Jagjiwan, AIR 1974 SC 1957 : (1972) 1 SCC 826 : (1972) 3 SCR
955 .
11 Rural Litigation & Entitlement Kendra v State of UP, AIR 1988 SC 2187 (2196) : 1989 Supp (1)
SCC 504 .
12 Sukhwinder Pal Bipan Kumar v State of Punjab, AIR 1982 SC 65 (75) : (1982) 1 SCC 31 .
13 Sanjai K Sinha II v State of Bihar, AIR 2004 SC 3461 (3465).
14 Anil Kr Bhandari v KMC, 2009 (2) Cal WN 56 (60–61) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [[R. 1. Judgment when
pronounced
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XX Judgment and Decree
2[ 3[R. 1.
1Judgment when pronounced
45
[ [(1)]] The Court, after the case has been heard, shall pronounce judgment in an
open Court, either at once, or as soon thereafter as may be practicable and
when the judgment is to be pronounced on some future day, the Court shall
fix a day for that purpose, of which due notice shall be given to the parties or
their pleaders: ]
Provided that where the judgment is not pronounced at once, every

endeavour shall be made by the Court to pronounce the judgment within
thirty days from the date on which the hearing of the case was concluded
but, where it is not practicable so to do on the ground of the exceptional and
extraordinary circumstances of the case, the Court shall fix a future day for
the pronouncement of the judgment, and such day shall not ordinarily be a
day beyond sixty days from the date on which the hearing of the case was
concluded, and due notice of the day so fixed shall be given to the parties or
their pleaders. ]
6[(2) Where a written judgment is to be pronounced, it shall be sufficient if

the findings of the Court on each issue and the final order passed in the
case are read out and it shall not be necessary for the Court to read out the
whole judgment, 7[* * * * *]].
3
[(3) The judgment may be pronounced by dictation in open Court to a shorthand
writer if the Judge is specially empowered by the High Court in this behalf:
Provided that where the judgment is pronounced by dictation in open Court,

the transcript of the judgment so pronounced shall, after making such
correction therein as may be necessary, be signed by the Judge, bear the
date on which it was pronounced, and form a part of the record.]
Amendment of Order XX.—In Order XX of the Code, for rule 1, the following rule shall be
substituted, namely:—
"(1) The Commercial Court, Commercial Division, or Commercial Appellate Division, as

the case may be, shall, within ninety days of the conclusion of arguments, pronounce
judgment and copies thereof shall be issued to all the parties to the dispute through
electronic mail or otherwise."
Andhra Pradesh.— Same as that of Madras.
Bombay— In rule 1(3) delete:

"(i) if the Judge is specially empowered by the High Court in this behalf" hearing to fix
also a time limit to be ordinarily observed except for special reasons to be recorded in
writing.
(ii) Sub-r (2) has been added providing that in case of written judgment instead of
reading the whole judgment it will be sufficient to read out findings on each issue and
the final order. But a copy of the whole judgment shall be made available for the
perusal of the parties or their pleaders immediately after pronouncement of judgment.
(iii) Sub-r (3) has been inserted authorising the Judge to pronounce judgment by
dictation to a shorthand writer if specially empowered by the High Court.
Karnataka.—Renumber rule 1 as Rule1(1) and add the following as sub-rule (2):—
"(2) The judgment may be pronounced by dictation to a shorthand writer in open Court,
where the Presiding Judge has been specially empowered in that behalf by the High
Court. Where the Presiding Judge is not so empowered, the judgment shall be reduced
to writing before it is pronounced."—(R.O.C. No. 2526/1959, dated 9-2-1967). (30-3-
1967)
Kerala.—Rule 1 shall be renumbered as sub-rule (1) thereof and the following shall be
inserted as sub-rule (2), namely:—
"(2) The judgment may be pronounced by dictation to a shorthand writer in open

Court."—(9-6-1959).
Madras.—The following was substituted for rule 1:—
"(1) The Court, after the case has been heard, shall pronounce judgment in open Court,
either at once or on some future day, of which due notice shall be given to the parties
or their pleaders.
(2) The judgment may be pronounced by dictation to a shorthand writer in open Court,
where the Presiding Judge has been specially empowered in that behalf by the High
Court." (6-5-1930)
COMMENT.—
2002).—
In O XX, in rule 1, for sub-rule (1), the following sub-rule shall be substituted, namely:—
(1) The Court, after the case has been heard, shall pronounce judgment in an open
Court, either at once, or as soon thereafter as may be practicable and when the
judgment is to be pronounced on some future day, the Court shall fix a day for that
purpose, of which due notice shall be given to the parties or their pleaders:
Provided that where the judgment is not pronounced at once, every endeavour shall be
made by the Court to pronounce the judgment within thirty days from the date on which
the hearing of the case was concluded but, where it is not practicable so to do on the
ground of the exceptional and extraordinary circumstances of the case, the Court shall
fix a future day for the pronouncement of the judgment, and such day shall not
ordinarily be a day beyond sixty days from the date on which the hearing of the case
was concluded, and due notice of the day to fixed shall be given to the parties or their
pleaders.
Objects and Reasons.—(j) The judgments are to be pronounced within the definite time
frame after a case has been heard. The general rule proposed is that a judgment is to
be pronounced at once and where it is not practicable to do so, the Court shall make an
endeavour to pronounce judgment within thirty days from the date on which the
hearing of the case was concluded. Where it is not practicable for the Court to
pronounce judgment within thirty days because of exceptional and extraordinary
circumstances of the case, the Court shall fix a day for the pronouncement of judgment
which shall not ordinarily be beyond sixty days from the date on which the case was
heard.
2002).—
1. In Sub-rule 2 of rule 1 in O XX the words "but a copy of the whole judgment shall
be made available for the perusal of the parties or the pleaders immediately after
the judgment is pronounced" have been omitted by the Code of Civil Procedure
(Amendment) Act, 1999.
2. Now the whole judgment will be made available to the parties after the judgment
is pronounced.

1999 stated thus:
Order XX makes it compulsory for a party filing appeal to annex the certified copy of the
decree to the Memorandum of Appeal. Justice Malimath Committee has pointed out that it
takes a long time for obtaining certified copy of the decree and thus filing of appeal takes a
long time. It is proposed to dispense with annexing certified copy of the decree alongwith
Memorandum of Appeal and it is also proposed that the whole judgment shall be made
available to the parties immediately after the judgment is pronounced. [Clause 28].

(t) (of the repeal and savings section) stipulates that the provisions of rules 1, 6A and
6B of O XX of the First Sch, as amended and substituted by section 28 of the
Amendment Act, 1999, shall not affect any application for obtaining copy of decree for
filing of appeal made by a party and any appeal filed before the commencement of
section 28 of this Act; and every application made and every appeal filed before the
commencement of Section 28 of Amendment Act, 1999 shall be dealt with as if section
28 had not come into force.
The existing rule was renumbered as sub-rule (1) and the two provisos have been
added to sub-rule (1) so renumbered. Sub-rules (2) and (3) were added to this rule. Rule
1 was amended in order to provide that the Judge need not read out the full judgment
and that it would suffice if the final order is pronounced. However, the new sub-rule (2)
requires a copy of the whole judgment to be made available for the perusal of the
parties.
There was a persistent demand all over India for imposing a time-limit for the delivery
of judgment after the conclusion of the hearing of the case. Accordingly, it has now
been provided that the judgment, if not delivered at once, after the conclusion of the
hearing of a case, it should be delivered within 30 days. If, however, it is not practicable
to deliver even within 30 days, the Court must record the reasons for such delay and
should fix a future date for the pronouncement of the judgment and the notice of the
date so fixed should be given to the parties or their pleaders.
An unreasonable delay between hearing of arguments and delivery of a judgment

unless explained by exceptional or extraordinary circumstances is highly undesirable
even when written arguments are submitted". The litigants must have complete
confidence in the results of litigation. This confidence tends to be shaken if there is
excessive delay between hearing of arguments and delivery of judgments. Justice
must not only be done but must manifestly appear to be done.8
In a landlord's appeal from proceedings for eviction of his tenant who was a leading
influential member of the Bar, the Addl. Distt. Judge refused to grant short adjournment
to the landlord to engage senior counsel. The appeal was also dismissed by a
readymade judgment. The landlord was even not given reasonable opportunity of
hearing. The judgment of the Addl. Distt. Judge was vitiated.9
The pronouncement of judgments in civil cases should not be permitted to go beyond

two months.10
Expunging of remarks.—
The derogatory remarks ought not to be made against persons or authorities whose
conduct comes into consideration unless it is absolutely necessary for the decision of
the case to animadvert on their conduct. Such remarks are to be expunged.11
Propriety of judgment.—
Disposing of suit immediately after framing issues without recording evidence was
held to be illegal.12
Propriety of oral judgment.—
Declaration of final result orally is improper.13
Dispense with application, dismissed.—
Where an appeal was presented with an application for condonation of delay that too,
after an inordinate delay of 1189 days, dispensing with filing of certified copy of
judgment and decree including typed copy of decree in suit which filing appeal could
not be ordered.14
2 The provisions of rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh, see the
Oudh Courts Act, 1925 (U.P. 4 of 1925), section 16 (2).
3 Subs. by Act 66 of 1956, Section 14 for rule 1 (w.e.f. 1-1-1957).
vide Notfn.S.O.604(E), dt.6-6-2002, Section 13.
5 Rule 1 renumbered as sub-rule (1) of that rule by Act 104 of 1976, section 70 (w.e.f. 1-2-
1977).
6 Added by Act 104 of 1976, Section 70, (w.e.f. 1-2-1977).
7 The words "but a copy of the whole judgment shall be made available for the perusal of the
parties or the pleaders immediately after the judgment is pronounced" have been omitted by the
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O.
603(E), dt. 6-6-2002.
3 Subs. by Act 66 of 1956, Section 14 for rule 1 (w.e.f. 1-1-1957).
8 RC Sharma v UOI, AIR 1976 SC 2037 (2041) : (1976) 3 SCC 574 : 1976 Supp SCR 580.
9 Nirankar Nath Wahi v V Addl Distt. Judge, Moradabad, AIR 1984 SC 1268 (1270) : (1984) 3 SCC
531 .
10 Anil Rai v State of Bihar, AIR 2001 SC 3173 (3180) : (2001) 7 SCC 318 : 2001 SCC (Cri) 1009 .
11 AM Mathur v Pramod Kr Gupta, AIR 1990 SC 1737 (1741) : (1990) 2 SCC 533 .
12 R Gopalakrishna v KSF Corpn, Bangalore, 2008 AIHC 2081 (2085) (Kant-DB) : AIR 2008 Kant
77 (DB).
13 KV Rami Reddi v Prema, AIR 2008 SC 1534 .
14 Charminar Coop Urban Bank Ltd v State Bank of Hyderabad, 2007 (4) ALT 337 (344) (DB); see
also Pratap Karan v Govt of AP, 2007 (4) ALT 334 (DB) (dispensed with in exercise of
discretionary power under O II rule 6-A(2) of the Code).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Power to pronounce
judgment written by Judge’s predecessor
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Power to pronounce judgment written by Judge's predecessor
15[A Judge shall pronounce] a judgment written but not pronounced by his
predecessor.
COMMENT.—
In this rule 2, for the words "A Judge may", the words "A Judge shall" have been
substituted in order to make it clear that it is mandatory for the succeeding Judge to
pronounce the judgment written by his predecessor in office.
15 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 70, for "A Judge
may" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Judgment to be signed
© 2020 LexisNexis
THE FIRST SCHEDULE
16[R. 3.
Judgment to be signed
The judgment shall be dated and signed by the Judge in open Court at the time of
pronouncing it and, when once signed, shall not afterwards be altered or added to,
save as provided by Section 152 or on review.]
Gujarat.—The following amendments were made by Gujarat Government Gazette, dated

16-3-1972, Part IV-C, Page 940.
In Order XX rule 3, substitute a colon for the full stop appearing at the end of the rule
and add thereafter, the following proviso:
"Provided that where the judgment is pronounced by dictation to a shorthand writer in

open Court the transcript of the judgment so pronounced shall after making such
corrections therein as may be necessary be signed by the Judge and shall bear the
date of its pronouncement, and when the judgment is once so signed by the Judge it
shall not afterwards be altered or added to save as provided by Section 152 or on
review".

1967.
Delete rule 3 and substitute the following:—
"3. Judgment to be signed, transcript of shorthand.—The Judgment shall bear the date
on which it is pronounced and shall be signed by the Judge and when once signed shall
not afterwards be altered or added to, save as provided by Section 152 or on review,
provided also that where the Judge pronounces his judgment by dictation to a
shorthand writer in open Court, the transcript of the judgment so pronounced shall,
after such revision as may be deemed necessary, be signed by the Judge". (6-5-1930)

Same as that of Madras except that for the words "provided also that, where the Judge
pronounces his judgment by dictation" the words "provided that where the judgment is
pronounced by dictation" are substituted.

dated 6-5-1930.
Same as that of Karnataka.

1965.
In Order XX, the existing rule 3 shall be renumbered as sub-rule (1) of that rule, and
after sub-rule (1) as so renumbered, the following sub-rules shall be inserted:—
"(2) Where the judgment is pronounced by dictation to a shorthand writer in open Court,
the transcript of the judgment so pronounced shall, after such revision as may be
deemed necessary, be signed by the Judge and shall bear the date of its
pronouncement.
(3) In case where judgment is not written by the Judge in his own hand, and dictated
and taken down verbatim by another person, each page of the judgment shall be
initialled by the Judge". (Notification, dated 23rd Dec., 1964)
COMMENT.—
The provisions of this rule are not applicable to Chartered High Courts in exercise of
their original or extraordinary original civil jurisdiction. However, it is applicable so far
appellate and revisional jurisdictions are concerned.17 It has been held by a Full Bench
of Allahabad High Court that power of a Court to reconsider its order continues until
the order has not been perfected under rule 3.18 And judgment delivered in open Court
but not signed and sealed, such a judgment can be changed.19 It has been held by the
Supreme Court of India that this rule is not a bar to the power of a High Court to make
an alteration under section 151 of a scheme framed by it under section 92 when a
proper cause is shown.20 Where a suit as to immovable property has been decreed and
the property is not identified, the defect in the Court records caused by overlooking of
provisions contained in O VII rule 3 and O XX rule 3 of the Code of Civil Procedure, is
capable of being cured. Resort can be had to section 152 O XLVII of the Code of Civil
Procedure depending on the facts and circumstances of each case.21
Erroneous statement in judgment.—
Where a statement appears in the judgment of a Court that a particular thing happened
or did not happen before it, cannot be challenged by a party, unless both the parties to
the litigation agree that the statement is wrong, or the Court itself admits that the
statement is wrong. The remedy of a party aggrieved is by way of review.22
In an eviction case a statement of a counsel conceding the grounds of eviction and

seeking some time for the respondent to vacate the premises, cannot be termed a
compromise. A compromise postulates consensus between two parties.23
In a judgment pronounced in open Court but not signed, alteration or modification of is

permissible only in exceptional cases. In the absence of exceptional circumstances
such a judgment delivered in open Court must be taken to be final.24
Liberty to mention the matter.—
When an appeal is disposed of, there exists no scope of reopening the issue on the
basis of the liberty granted to mention the matter. No jurisdiction on the Court to
correct or review a judgment is conferred by it.25
Subsequent Correction—When permissible?—
The Supreme Court of India held that errors arising from accidental slip can be
corrected subsequently not only in decree drawn up by ministerial officer but even in
judgment pronounced and signed by Court.26
The happenings in the Court during hearing, such as concessions made, as recorded in
the judgment are conclusive. They cannot be disputed in appeal. Only way to correct
any mistake in recording is to call attention of every judge who made the record.27
16 The provisions of Rules 1, 3, 4 and 5 are not applicable to the Chief Court of Oudh; see the
Oudh Courts Act, 1925 (U.P. 4 of 1925), Section 16(2).
17 Allah Rabul Almin v Ganga Sahai, AIR 1947 All 211 (FB) : (1947) All 180 .
18 Sangam Lal v Rent Control and Eviction Officer, AIR 1966 All 221 (FB) : (1966) 1 All 356 .
19 Sangam Lal v Rent Control and Eviction Officer, AIR 1966 All 221 (FB) : (1966) 1 All 356 .
20 Samarendra v Krishna Kumar, AIR 1967 SC 1440 : (1967) 2 SCR 18 .
22 Bank of Bihar v Mahabir Lal, AIR 1964 SC 377 (380) : (1964) 1 SCR 842 : 1964 BLJR 1 : 43 Pat
377.
23 Sri Swami Krishnanand Govindanand v MD Oswal Hosiery, AIR 2002 SC 1162 (1163) : (2002)
3 SCC 69 : (2002) 96 DLT 320 .
24 Vinod Kumar Singh v Banaras Hindu University, AIR 1988 SC 371 (374).
25 Kewal Chand Mimani v SK Sen, AIR 2001 SC 2569 : (2001) 6 SCC 512 ; see also Patel Narshi
Thakershi v Pradyumansinghji Arjun Singhji, AIR 1970 SC 1273 .
26 State of Rajasthan v UOI, AIR 1977 SC 1361 .
27 Central Bank of India v Brajlal Kapurchand Gandhi, AIR 2003 SC 3028 (3030) : (2003) 6 SCC
359 : 2003 CrLJ 3028 : (2003) 3 LLN 5 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4. Judgments of Small
Cause Courts
© 2020 LexisNexis
THE FIRST SCHEDULE
28[R. 4.
Judgments of Small Cause Courts
(1) Judgments of a Court of Small Causes [K] need not contain more than the
points for determination and the decision thereon.
Judgments of other Courts
(2) Judgments of other Courts [K] shall contain a concise statement of the case,
the points for determination, the decision thereon, and the reasons for such
decision.
[Rule amended in Kerala.]
Kerala (Notfn No. B1-3312/58 of 7-4-1959).—(a) In sub-rule (1) substitute the marginal
note by: "Judgment in suits tried as Small Causes", and for the words "Judgments of a
Court of Small Causes" substitute "Judgments in suits tried as Small Causes".
(b) In sub-rule (2) substitute the marginal note by: "Judgment in other cases"; and for the
words "Judgments of other Courts" substitute "Judgment in all other cases".
COMMENT.—
Contents of the Judgment.—
The decision against a party should be based on matters which come within the issues
on which the parties went to trial and not on matters which do not come within the
issues, for that would amount to an error apparent on the face of record.29 And,
therefore, the decision in a case cannot be based on grounds outside the pleadings of
the parties and it is the case pleaded that has to be found.30 While deciding the case, it
is not desirable on the part of the judges to make remarks against the character of a
person who is neither a party nor the witness in the proceedings before them.31 They
should also not base their findings on matters which are not necessary for the disposal
of the case.32
Judicial determination of disputed claim is no judgment.—
In a suit in which the pleadings raised substantial issue of fact for trial. The trial Court
merely decreed the claim without delivering a judgment. It was held that there had been
no real trial of the defendant's case. A judicial determination of a disputed claim is no
judgment at all, where substantial question of law or fact arise is satisfactorily reached,
only if it be supported by the most cogent reasons that suggest themselves to the
Judge, a mere order deciding the matter in dispute not supported by reason.33
Unbalanced language.—
Unbalanced language is generally out of place in judicial adjudications.34
Judgment must not depart from sobriety and moderation.—
In making disparaging remarks against person or authorities whose conduct comes

into consideration before the Courts of law in the cases to be decided by them, it is
relevant to consider (i) whether the party whose conduct is in question, is before the
Court or has an opportunity of explaining or defending himself, (ii) whether there is
evidence on record bearing on that conduct justifying the remarks and (iii) whether it is
necessary for the decision of the case, as an integral part thereof, to animadvert on
that conduct. It has also been recognised that judicial pronouncements must be
judicial in nature and should not normally depart from sobriety, moderation and
reserve.35
Full Bench Judgment.—
The judgment of one of the Judges was only a supplementary judgment as he prefaced
his judgment with the observation that "he entirely agreed with the findings of other
Judge would have some force only if the later has dealt with the particular point in his
judgment."36
Finding reached without proper pleadings, not to be upheld.—
The finding reached without proper pleadings and necessary issues cannot be
upheld.37
Contents of Judgments other than Small Cause Courts.—
The judgments referred to above must bear the following, as required in sub-rule (2) of
rule 4 of O XX:
(1) A concise statement of the case.
(2) The points for determination.
(3) The decision thereon.
(4) The reason for such decision.
The decision of a case cannot be based on grounds outside the pleadings of the
parties. It is the case pleaded that has to be found. Without an amendment of the plaint
the Court is not entitled to grant the relief not asked for.38
29 MMB Catholics v MP Athanaslus, AIR 1954 SC 526 : (1955) 1 SCR 520 : (1954) TC 867 .
30 Md Mustafa v Abu Bakar, AIR 1971 SC 361 : (1970) 3 SCC 891 .
31 Alok Kumar v SN Sharma, AIR 1968 SC 453 : (1968) 1 SCR 813 : 70 Bom LR 198 : 1968 MPLJ
552 .
32 B Rajagopala v STA Tribunal, AIR 1964 SC 1573 .
33 Swarulata v Harendra, AIR 1979 SC 1167 (1169).
34 D Marcopollo & Co v D Marcopollo, AIR 1958 SC 1012 (1016) : (1958) 2 LLJ 492 .
35 SK Viswambaran v E Koyakunju, AIR 1987 SC 1436 (1440) : (1987) 2 SCC 109 : 1987 CrLJ
1175 .
36 Moran MB Catholicos v Mar Poulose, AIR 1954 SC 526 (559) : (1954) 1 SCR 520 : (1954) TC
867 : 1954 KLT 385 .
37 Siromani v Hemkumar, AIR 1968 SC 1299 (1301) : (1968) 3 SCR 639 : 1968 Mah LJ 791 .
38 Trojan & Co v Nagappa, AIR 1953 SC 235 (240).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5. Court to state its
decision on each issue
© 2020 LexisNexis
THE FIRST SCHEDULE
39[R. 5.
Court to state its decision on each issue
In suits in which issues have been framed, the Court shall state its finding or decision,
with the reasons therefor, upon each separate issue, unless the finding upon any one
or more of the issues is sufficient for the decision of the suit.]
COMMENT.—
Court should not rest its decision on a single point.—
Though O XX rule 5 relates to judgment and decree which are p4ronounced by the Civil
Court, but same principle is also applicable to writ petitions.40
Court order must contain specific benefits.—Where a High Court granted relief by giving
sweeping direction to the Government to grant "consequential benefits for which they
are eligible in accordance with rules", the order is not proper. Such direction would lead
to uncertainty and difficulties in implementation. The Court should specifically address
itself to question as to specific benefits they would be entitled to.41
Judgment under appeal, sustainability.—
Where the judgment does not refer to the issues framed and also evidence on record,
oral or documentary was not assessed, the findings were also not given on issues,
such a judgment would not be a judgment as under O XX rule 5 of the Code.42
Propriety of remand.—
The remand of matter back to the trial Court by appellate Court was held to be not
improper.43
40 Virendra Pal Singh v State of UP, 2008 (3) ALJ 767 (All-DB).
41 State of Bihar v Secretariat Press Ministerial Staff Union, AIR 2002 SC 2145 (2147) : (2002) 2
SCC 98 : 2002 SCC (L&S) 1052 .
42 Govt of AP v M Pratima Reddy, 2010 (1) ALT 256 271 (DB).
43 Shanti Lal v Board of Revenue, AIR 2011 Raj 72 (74) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5A. Court to inform parties
as to where an appeal lies in cases where parties are not represented by pleaders
© 2020 LexisNexis
THE FIRST SCHEDULE
44[R. 5A.
Court to inform parties as to where an appeal lies in cases where parties are
not represented by pleaders
Except where both the parties are represented by pleaders, the Court shall, when it
pronounces its judgment in a case subject to appeal, inform the parties present in
Court as to the Court to which an appeal lies and the period of limitation for the filing
of such appeal and place on record the information given to the parties.]
COMMENT.—
Issues not arising out of pleadings should not be decided by the Trial Judge.45 It is the
duty of the Court to pronounce its findings upon all such issues as may be necessary
for the disposal of the case except where a question of jurisdiction is involved.46
Further it has been held by the Supreme Court that in a suit where lower Court decreed
the claim without delivering a judgment, there is really no trial of defendant's case.47
Rule 5-A was added and this rule requires the Court to inform parties as to where an
appeal would lie in cases where parties are not represented by pleaders.
1977).
45 Sitaram v Radha Bai, AIR 1968 SC 534 : (1968) 1 SCR 805 .
46 Megh Raj v Relu, AIR 1951 Pepsu 138 .
47 Swaran Lata v Harendra Kumar, AIR 1969 SC 1167 : (1969) 1 SCC 709 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Contents of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Contents of decree
(1) The decree shall agree with the judgment; it shall contain [B] the number of the
suit, the 48[names and description of the parties, their registered addresses ],
and particulars of the claim, and shall specify clearly the relief granted or other
determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by
whom or out of what property and in what proportions such costs are to be
paid [AP, M].
(3) The Court may direct that the costs payable to one party by the other shall be
set off against any sum which is admitted or found to be due from the former
to the latter [KNT].
Bombay.—In sub-rule (1) after the words "it shall contain" insert "the date of
presentation of the plaint". [1-11-1966].

Maharashtra Government Gazette, dated 15-9-1983, 1-10-1983, Part 4 Ka, Page 408.
In Order XX, rule 6, for the existing sub-rule (1) and its marginal note, substitute the
following as sub-rule (1) and marginal note:—
"(1) Contents of decree.—The decree shall agree with the judgment; it shall contain the
date of presentation of the plaint, the number of the plaint, the number of the suit, the
names and descriptions of the parties, their registered addresses, and particulars of
the claim, and shall specify clearly the relief granted or other determination of the suit".
Kerala (Lakshadweep Islands).—The following amendments were made by Kerala Act,

dated 9-6-1959.
Same as that of Madras.

Government Gazette, dated 11-4-1975; Pt. II (L.S.) P. 303; Haryana Government Gazette,
dated 25-3-1975, Part III (L.S.), Page 190; Chandigarh Administration Gazette, dated 1-5-
1975, Part I, Page 96.
(i) Substitute the following for sub-rule (1) to rule 6.—
"(1) The decree shall agree with the judgment, it shall contain the number of the
suit, the names and descriptions of the parties, their correct and latest
addresses (which shall be filed by the parties at or before the final arguments)
and particulars of the claim and shall specify clearly the relief granted or other
determination of the suit". (Vide Notfn. No GSR 39/CA5/1908/S. 12257)
(ii) After sub-rule (1) add the following:—
"(1A) In addition to the particulars mentioned in clause (1), the decree shall
contain the addresses of the plaintiff and the defendant as given in Order VII rule
19 and Order VIII rule 11 or as subsequently altered under Order VII rule 24 and
Order VIII rule 12, respectively" . [10-2-1937].
Karnataka.—Insert sub-rule (4) which is same as sub-r (2A) of Madras.
Madras (ROC No. 3019 of 1926).—After sub-rule (2) the following shall be inserted as
sub-rule (2A)—
"(2A) In all cases in which an element of champerty or maintenance is proved, the

Court may provide in the final decree for costs on a special scale approximating to the
actual expenses reasonably incurred by the defendant."
COMMENT.—
Consent decree, preparation of.—
Two documents containing consent terms were handed over to the trial Judge and his
associate respectively. One was in handwriting and signed by the counsel and the other
in the typewritten form but not so signed and varying in certain particulars. The trial
Judge receiving the handwritten document ordered drawing up of a decree in
accordance with it. Subsequently he directed drawing up of a decree in accordance
with the terms in the typewritten document without coming to a finding that his earlier
order was not correctly minuted. The subsequent order was unsustainable.49
Partition suit, effect of decree on tenant.—
A suit for partition was filed by one co-sharer against another. The tenant of premises
was made party. He could object claim for partition if it was shown that same was not
bona fide, made with an oblique motive to over come rigors of rent control laws. After
decree for partition is passed, possession of tenant cannot be disturbed except by
filing proceeding for eviction under rent control laws.50
Decree to be in agreement with judgment.—
The provision under O XX of the Code requires a judgment to contain all the issues and
findings or decision thereon with the reason, therefore. The judgment has to state the
relief allowed to a party. The preparation of decree follows the judgment. The decree
shall agree with the judgment.51
48 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 70, for "names
and description of the parties" (w.e.f. 1-2-1977).
49 Shamlal Batra v Bhagwandas N Patel, AIR 1973 SC 816 : (1973) 1 SCC 175 .
50 Karta Ram Rameshwar Das v Ram Vilas, AIR 2006 SC 392 .
51 Om Prakash Verma v State of AP, (2010) 13 SCC 158 (188).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6A. Preparation of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
52[R. 6A.
Preparation of decree
(1) Every endeavour shall be made to ensure that the decree is drawn up as
expeditiously as possible and, in any case, within fifteen days from the date on
which the judgment is pronounced.
(2) An appeal may be preferred against the decree without filing a copy of the decree
and in such a case the copy made available to the party by the Court shall for the
purposes of rule 1 of Order XLI be treated as the decree. But as soon as the
decree is drawn, the judgment shall cease to have the effect of a decree for the
purposes of execution or for any other purpose. ]

Gazette, dated 9-2-1988, part III (JD), Page 19 (No.6).
In sub-rule (2) for the words "the reasons for the delay" substitute the following words:
—
"The reasons for the delay and the valuation of the suit or proceeding and the Court-fee
paid thereon".
COMMENT—
2002).—
Modifications.—This rule has been amended for making the following modifications:
1. Rule 6A in O XX has been substituted by a new Rule.
2. Under O XX as it stood prior to 1999 Amendment it was compulsory for a party

filing appeal to annex the certified copy of the decree to the Memorandum of
Appeal. It took a long time for obtaining certified copy of the decree. Hence, it
has been provided that annexing a copy of the decree alongwith the
Memorandum of Appeal shall not be necessary. It has also been provided that
the whole judgment shall be made available to the parties immediately after the
judgment is pronounced.
See also O XLI rule 1 for Report of Justice Malimath Committee.

1999 stated thus:-
available to the parties immediately after the judgment pronounced. [Clause 28].

6B of O XX of the First Sch, as amended and substituted by section 28 of the
Amendment Act, 1999, shall not affect any application for obtaining a copy of decree
for filing of appeal made by a party and any appeal filed before the commencement of
commencement of section 28 of Amendment Act, 1999 shall be dealt with as if section
Copy of decree need not to be filed with appeal.—
It takes a long time for obtaining certified copy of the decree, and thus, the filing of the
appeal takes a long time. Therefore, annexing certified copy of the decree alongwith
the Memorandum of Appeal has been dispensed with but the whole judgement shall be
made available to the parties immediately after the judgement is pronounced. But
when once a decree is drawn up the judgement shall not have any effect of a decree for
the purpose of execution or for any other purpose.

Date of decree is the starting point of limitation.—
In an execution decree starting point of limitation is date of decree and not date on
which decree is actually drawn and signed.53
A compromise decree was passed declaring the decree holder was entitled to five
bighas from the suit land totaling 25 bighas. The executing Court found the decree to
be ambiguous as precise description of boundary of land was not reflected in the
Court's order. In the absence of clear identification of the boundary of five bighas land
of the decree holder, the decree cannot be executed. It was held that in such a case, the
executing Court should take steps to effectively construe ambiguous decree by
examining pleadings in suit.54
vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'Rule 6A. Last paragraph of judgment to indicate in precise terms the reliefs granted.—(1) The last
paragraph of the judgment shall state in precise terms the relief which has been granted by
such judgment.
(2) Every endeavour shall be made, to ensure that the decree is drawn up as expeditiously as
possible, and, in any case, within fifteen days from the date on which the judgment is
pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall if
requested so to do by a party desirous of appealing against the decree, certify that the decree
has not been drawn up and indicate in the certificate the reasons for the delay, and thereupon—
(a) an appeal may be preferred against the decree without filing a copy of the decree and in
such a case the last paragraph of the judgment shall, for the purposes of rule 1 of Order XLI, be
treated as a decree; and
(b) so long as the decree is not drawn up, the last paragraph of the judgment shall be deemed to
be the decree for the purpose of execution and the party interested shall be entitled to apply for
a copy of that paragraph only without being required to apply for a copy of the whole of the
judgment; but as soon as a decree is drawn up, the last paragraph of the judgment shall cease
to have the effect of a decree for the purpose of execution or for any other purpose:
Provided that where an application is made for obtaining a copy of only the last paragraph of the
judgment, such copy shall indicate the name and address of all the parties to the suit.'
53 WB Essential Commodities Supply Corpn v Swadesh Agro F&S Pvt Ltd, AIR 1999 SC 3421
(3426) : (1999) 8 SCC 315 .
54 Illiasuddin Ahmed v Md Hachnian Ahmed, AIR 2015 Gan 49 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6B. Copies of judgments
when to be made available
© 2020 LexisNexis
THE FIRST SCHEDULE
55[R. 6B.
Copies of judgments when to be made available
Where the judgment is pronounced, copies of the judgment shall be made available to
the parties immediately after the pronouncement of the judgment for preferring an
appeal on payment of such charges as may be specified in the rule made by the High
Court. ]
COMMENT.—
Important Note: Comments, Case Law and State/High Court Amendments hereinafter
should be read keeping in view the amendments made by the Code of Civil Procedure
(Amendment) Act, 1999 (w.e.f. 1-7-2002).
2002).—
Modification.—This rule has been amended for introducing the following modification:
Rule 6B in O XX has been substituted for the existing rule.

1999 stated thus:-
available to the parties immediately after the judgment is pronounced. [Clause 28].

6B of O XX of the First Schedule, as amended and substituted by section 28 of the
Amendment Act, 1999, shall not affect any application for obtaining copy of decree for
filing of appeal made by a party and any appeal filed before the commencement of
commencement of section 28 of Amendment Act, 1999 shall be dealt with as if section
Delegated Legislation.—Rule 6B of O XX as sought to be substituted by clause 28 of the

Bill empowers the High Courts to make rules with regard to the charges to be paid by
the parties for supply of a copy of the judgment.
In rule 6B which substitutes the existing rule 6B, the only modification made is that the
reference to furnishing copies of type-written judgement has been omitted.

Rule 6B of O XX as sought to be substituted by Clause 28 of the Bill empowers the High

Courts to make rules with regard to the charges to be paid by the parties for supply of
copies of judgments.
Rule 6 was amended in order to provide that the decree should contain the registered
address of the parties.
Rule 6-A was added with a view to ensuring that the delay in the preparation of the
decree may not affect the right of a party to file an appeal and further that the last
paragraph of the judgment should precisely indicate the reliefs granted so that in the
absence of a decree, an appeal may be preferred on the basis of that paragraph and
that paragraph may also be used for the purpose of the execution of the decree.
Rule 6-B was added in order to provide for the furnishing of copies of type-written
DEjudgments, where practicable, on payment of the specified charges.
55 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), Section 28 (w.e.f.
1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'Rule 6B. Copies of type-written judgment when to be made available.—Where the judgment is
typewritten, copies of the type-written judgment shall, where it is practicable so to do, be made
available to the parties immediately after the pronouncement of the judgment on payment, by
the party applying for such copy, of such charges as may be specified in the rules made by the
High Court.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Date of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Date of decree
The decree shall bear date the day on which the judgment was pronounced, and, when
the Judge has satisfied himself that the decree has been drawn up in accordance with
the judgment, he shall sign the decree [B, K].
[Proviso added in Bombay & Kerala, rule 7-A added in All].

Maharashtra Government Gazette, dated 15-9-1983, 1-10-1983, Part 4 Ka, Page 408.
In Order XX, rule 7, substitute a colon for the full stop appearing at the end of the rule
and add thereafter the following proviso:—
"Provided that in proceedings taken in the Bombay City Civil Court the decree shall bear
date the day on which the judgment was pronounced and it shall be engrossed in the
office of the Registrar and be signed by him and sealed with the seal of the Court".
Kerala (Notfn No. BI-3312/52 of 7-4-1959).—Add the following proviso:—
"Provided that the decrees of the High Court may be signed by the officer empowered in
that behalf." (9-6-1959)
Allahabad.—The following amendments were made by Uttar Pradesh Government

Gazette, dated 3-10-1981, Part 2, Page 109 (w.e.f. 3-10-1981).
In Order XX, for rule 7A substitute as follows:—
"7-A. Formal Order.—A Court, other than a Court subordinate to the District Court
exercising insolvency jurisdiction, passing an order under Section 144 or an order
against which an appeal is allowed by Section 104 or rule 1 of Order XLIII, or an order in
any case, against which an appeal is allowed by law, shall, if a party applies for a copy
of formal Order or the Court so directs, draw up a formal Order embodying its
adjudication and the memorandum of costs incurred by the parties". (3.10.1981)
COMMENT.—
It is necessary to make it clear that the date of decree and the date of signing the
decree are two different things. The date of the decree must correspond with the date
of the judgment even if the date of signing it is different.56
56 Dechi v Ahsan Ullah Khan, (1890) 12 All 461 (FB); Ram Chandra Deo v Bhalu Patnaik, AIR 1950
Ori (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Procedure where judge
has vacated office before signing decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Procedure where judge has vacated office before signing decree
Where a judge has vacated office after pronouncing judgment but without signing the
decree, a decree drawn up in accordance with such judgment may be signed by his
successor or, if the Court has ceased to exist, by the Judge of any Court to which such
Court was subordinate.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Decree for recovery of
immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Decree for recovery of immovable property
Where the subject-matter of the suit is immovable property, the decree shall contain a
description of such property sufficient to identify the same, and where such property
can be identified by boundaries or by numbers in a record of settlement or survey, the
decree shall specify such boundaries or numbers.
COMMENT.—
Unlawful dispossession.—
Where a licensee was unlawfully dispossessed by the licensor before expiry of licence
period, the licensee is entitled to decree for recovery of possession, notwithstanding
that the period of licence had expired long back during pendency of legal
proceedings.57
Decree must be self contained, in conformity with judgment.—
A Court must clearly specify the relief to which a successful party has been found
entitled to.
Merely observing in operative part of judgment that "suit is decreed" or "appeal is

allowed" is not proper. It rather tantamounts to failure on the part of the judge to
discharge obligations cast on him by the Code. A self-contained decree drawn up in
conformity with judgment excludes objections and complicities arising at the stage of
execution.58
A suit for possession of immovable property based on title and for permanent
injunction was filed. The plaintiffs failed to prove their title on the basis of document on
record as the khasra entry was found not of any evidentiary value. The suit land
acquired by state and plaintiffs predecessor received compensation without demur.
The plaintiffs were estopped from claiming title.59
57 Krishna Ram Mahale v Shobha Venkat Rao, AIR 1989 SC 2097 (2104) : (1989) 4 SCC 131 :
1989 MPLJ 767 .
58 Lakshmi Ram Bhuyan v Hari Prasad Bhuyan, AIR 2003 SC 351 (354) : (2003) 1 SCC 197 .
59 MTW Tenzing Namagyal v Motilal Lokhatia, AIR 2003 SC 1448 (1454) : (2003) 5 SCC 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Decree for delivery of
movable property
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Decree for delivery of movable property
Where the suit is for movable property, and the decree is for the delivery of such
property, the decree shall also state the amount of money to be paid as an alternative
if delivery cannot be had.
COMMENT.—
The words "movable property" as referred to under this rule mean specific movable
property as understood by Article 48 and Article 49 of the Limitation Act.60
60 Ouseph v Thomman, AIR 1954 Trav 473 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Decree may direct
payment by instalments
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Decree may direct payment by instalments
(1) Where and in so far as a decree is for the payment of money, the Court may for
any sufficient reason 61[incorporated in the decree, after hearing such of the
parties who had appeared personally or by pleader at the last hearing, before
judgment, an order that] payment of the amount decreed shall be postponed or
shall be made by instalments, with or without interest, notwithstanding
anything contained in, the contract under which the money is payable.
Order, after decree, for payment by instalments
(2) After the passing of any such decree the Court may, on the application of the
judgment-debtor and with the consent of [AP, M] the decree-holder, [MP, OR]
order that payment of the amount decreed shall be postponed or shall be made
by instalments on such terms as to the payment of interest, the attachment of
the property of the judgment-debtor, or the taking of security from him, or
otherwise as it thinks fit.
Madhya Pradesh (Notfn No. 3409; 29-6-1943).—In sub-rule (2) for the words and with
the consent of the decree-holder substitute "and after notice to the decree-holder".
Madras (Pondicherry).—The following amendments were made by Tamil Nadu ROC No

2191 of 1926.
Substitute the following for rule 11:—
"11. Decree may direct payment by instalments.—(1) Where and in so far a decree is for
the payment of money, the Court may for any sufficient reason at the time of passing
the decree order that the payment of the amount decreed shall be postponed or shall
be made by instalments with or without interest, notwithstanding anything contained in
the contract under which money is payable.
(2) After the passing of any such decree, the Court may, on the application of the
judgment-debtor and after notice to the decree-holder, order that payment of the
amount decreed shall be postponed or shall be made by instalments on such terms as
to the payments of interest, the attachment of the property of the judgment-debtor, or
taking of security from him, or otherwise, as it thinks fit".
Orissa.—The following amendments were made by Orissa Gazette, dated 7-5-1954.
In sub-rule (2) for the words "and with the consent of the decree-holder", substitute "and
after notice to the decree-holder".
COMMENT.—
In sub-rule (1) of rule 11, for the words "at the time of passing the decree or order" the
words "incorporate in the decree, after hearing such of the parties who had appeared or
by pleader at the last hearing, before judgment, an order that" has been substituted.
This rule has been amended to provide that (i) the order should be incorporated in the
decree, and (ii) the power should be exercised after hearing the parties who have
appeared personally or by pleader at the last hearing before the judgment.
Under this rule, the Court has power to order the postponement of the decretal amount
or its payment in instalments, provided that decree is in a suit for payment of money. If
the Court is to pass an order after the passing of the decree it can do so only when the
decree-holder gives his consent thereto.62
It has been held by the Supreme Court of India that where under a decree defendants
are jointly and severally liable sub-rule (1) of rule 11, does not empower the Court to
postpone the payment of amount decreed b& one of the defendants till the decree is
executed against the other defendants.6 Further, the provision under rule 11 does not
affect the power of the executing Court under section 47 and O XXI rule 2. It enables
the Court passing the decree to order postponement of the payment of the decretal
amount, on such terms as to the payment of interest as it thinks fit on the application
of the judgment-debtor and with the consent of the decree-holder.64
Subsequent appeal not barred, if earlier one was withdrawn.—
Where an appeal against direction for payment of decretal amount in instalments was
withdrawn immediately after filing, subsequent appeal against decree on merits is not
barred.65
words (w.e.f. 1-2-1977).
62 Birendra Prasad v Surendra Prasad, AIR 1956 Pat 209 (FB).
6 Added by Act 104 of 1976, Section 70, (w.e.f. 1-2-1977).
64 Motilal v Mohd Hassan, AIR 1968 SC 1087 : (1968) 3 SCR 158 : (1968) 2 An LT 220; Oudh
Commr Bank v Thakurain Bind B Kuer, AIR 1935 PC 80 relied on.
65 M Ramnarayan v State Trading Corpn, AIR 1983 SC 786 (797, 802) : (1983) 2 SCC 75 : (1983)
2 Comp LJ 163 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Decree for possession
and mesne profits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Decree for possession and mesne profits
(1) Where a suit is for the recovery of possession of immoveable property and for
rent or mesne profits, the Court may pass a decree—
(a) for the possession of the property;
66
[(b) for the rents which have accrued on the property during the period
prior to the institution of the suit or directing an inquiry as to such
rent;
(ba) for the mesne profits or directing an inquiry as to such mesne profits;]
(c) directing an inquiry as to rent or mesne profits from the institution of the
suit until—
(i) the delivery of possession to the decree-holder, [B]
(ii) the relinquishment of possession by the judgment-debtor with

notice to the decree-holder through the Court, or
(iii) the expiration of three years from the date of the decree [B]
whichever event first occurs [B].
(2) Where an inquiry is directed under clause ( b ) or clause ( c ), a final decree in

respect of the rent or mesne profits shall be passed in accordance with the
result of such inquiry [AP, KNT, K, M].

Maharashtra Government Gazette, dated 15-9-1983, (1-10-1983) Part 4 Ka, Page 408.
In Order XX, for the existing rule 12 and its marginal note, substitute the following as
rule 12 and marginal note:—
"R. 12. Decree for possession and mesne profits.—(1) Where a suit is for the recovery
of possession of immoveable property and for rent or mesne profits, the Court may
pass a decree—
(a) for the possession of the property;
(b) for the rent or mesne profits which have accrued on the property during the
period prior to the institution of the suit, or directing an enquiry as to such rent or
mesne profits;
(c) directing an enquiry as to rent or mesne profits from the institution of the suit
until—
(i) the delivery of possession to the decree-holder, or
(ii) the relinquishment of possession by the judgment-debtor with notice to

the decree-holder through the Court.
(2) Where an enquiry is directed under Clause (b) or Clause (c) of sub-rule (1) above, a
final decree in respect of the rent or mesne profits shall be passed in accordance with
the result of such enquiry".
Karnataka. — The following amendments were made by Karnataka Gazette, dated 3-3-
1967.
Add sub-rule (3) as in Madras.
Kerala (Notfn No B1-3312/58 of 7-4-1959).—Same as in Madras. Madras (Dis. No. 93

of 1941).—Add the following as sub-rule (3):—
(3) Where an Appellate Court directs such an inquiry, it may direct the Court of first
instance to make the inquiry; and in every case the Court of first instance may of its
own accord, and shall whenever moved to do so by the decree-holder, inquire and pass
the final decree".
COMMENT—
Scope.—
Where in a suit for recovery of possession and mesne profits the evidence conclusively
establishes that defendant is trespasser and is not legally inducted tenant, the suit for
recovery of possession and mesne profits should be decreed. In such a case the tenant
is liable to eviction.67
Mesne profits prior to the suit cannot be awarded to a successful party to a suit for
possession unless a claim was made in respect of them. As regards mesne profits
subsequent to the date of the institution of the suit, that is future mesne profits, the
position is governed by rule 12 of O XX.68
Assessment of mesne profits.—
The correct rate of mesne profits against a person whose tenancy had terminated is
market rental value of the property. The controlled or standard rent which are for the
benefit of lawful tenant cannot be allowed to unlawful possessor.69
Changing rate of mesne profit.—
Reduction and modification of rate of mesne profit by High Court without considering
evidence adduced by parties and materials on record was liable to be set aside.70
Mesne profits for not more than three years.—
Rule 12 does not empower a Court to pass a final decree with respect to mesne profits
for a period exceeding three years from the date of decree. The decree must be
construed in conformity with requirements of all the alternatives mentioned in rule
12(1)(c).71
Normally a successful plaintiff would be entitled to profits for three years and not
more. But in respect of the trust property where alienations are set aside, the Court has
jurisdiction to award mesne profits for more than three years as an equitable
adjustment.72
Whichever event first occurred.—
This phrase indicates the maximum period for which future mesne profits can be
awarded from the decree finally passed. If the appeal is allowed by the Supreme Court
then the period will be computed from the date of the decree of the Supreme Court. It
will expire when the possession is delivered by the defendant or relinquished by him.73
FUTURE Mesne profits.—
So far as future mesne profits are concerned even without there being a prayer in the
plaint, the Court can award the same or direct an enquiry into the same at the time of
passing the decree for possession. Similarly, the appellate Court can grant future
mesne profits even if there is no appeal by the plaintiff against that part of the decree
which is silent about future mesne profits. In an appeal pending before it the appellate
Court has jurisdiction to grant mesne profits or to direct an enquiry into the same as it
is a part of the general relief of possession. It is well settled principle of law that the
power of the appellate Court is co-extensive with the power of the original Court and
when an appeal is pending, the suit is deemed to be pending.74
Computation of mesne profit.—
The computation of mesne profit must be in accordance with provisions given under O
XX rule 12 of the Code.75
Order should be passed for reasonable mesne profit to be paid.—
Where after obtaining a decree for possession of immovable property, its execution
takes a long time, in such a circumstance for protecting interest of judgment creditor,
an appropriate order should be passed so that reasonable mesne profit, which may be
equivalent to the market rent, is paid by the person holding over the property.76
No payment of mesne profits, if Court fee is deficient.—
A decree for payment of mesne profits was held not executable unless the deficiency in
Court-fee was made good. Such a decree could not be said to have come into
operation. It was a conditional decree. The obligation on the part of the judgment-
debtor to pay the mesne profits accrues only on the satisfaction of that condition. If the
deficiency in the Court-fee is not removed, then the appellant would not be entitled to
payment of the mesne profits under the decree.77
Order for mesne profits according to present rental value, without deciding
application is illegal.—
In a suit for possession of premises and mesne profits the mesne profits were allowed
according to "present rental value". The Court took the view that "existing rents" would
be a "fair measure" of mesne profits, without deciding the application. The order was
held to be illegal. The High Court failed to notice that the plaintiff had, in fact been
prevented from proving its claim for mesne profits at the "present rental value".78
Mesne profits from the date of widow's death.—
There is no rule of law that no mesne profits can be allowed in a case where the
alienation cannot be described as absolutely void. An alienation was made by a Hindu
widow and a suit was filed for recovery of possession by the reversioners. A claim for
mesne profits was made from widow's death. It is quite proper to allow the reversioners
the mesne profits against the alience from the date of widow's death.79
Compensation to be computed on profit received.—
Normally a person in wrongful possession has to pay compensation on the basis of

profits he actually received or with ordinary diligence might have received. The
assessment of compensation, not on the value of the user but on an estimated return
on the value of the property is unsustainable.80
Decree for ejectment.—
A decree for ejectment must be accompanied by a direction for the payment of the
future mesne profits or damages.81
Proper remedy in suit for possession of impartible estate.—
In a suit for declaration and possession the plaintiff was a holder of impartible estate
the defendant was a member of joint family and his possession was not that of a
trespasser. The High Court passed a decree of possession and mesne profits against
the defendant. The proper remedy for the plaintiff was to file a regular suit for partition
in respect of all the properties and not a suit for possession of plots.82
Suit for possession of immovable property not maintainable.—

In a suit for partition, it was the case of the defendant that the suit property is his self-
acquired property. However, during the trial the defendant had admitted that he
received some amount from his brother for construction of suit property and further
admitted that income from ancestral agricultural property was utilised for construction
of suit property. Thus, the concurrent findings both of trial court and appellate court
that suit property is the self-acquired property of the defendant is erroneous.
66 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, Section 70, for cl. (b)
(w.e.f. 1-2-1977).
67 Mohinder Kaur v Kusam Anand, AIR 2000 SC 1745 (1748) : (2000) 4 SCC 214 .
68 Maddanappa v Chandramma, AIR 1965 SC 1812 (1817) : (1965) 3 SCR 283 ; see also Mohd
Amin v Vakil Ahmad, AIR 1952 SC 358 (362).
69 Shyam Charan v Sheojee Bhai, AIR 1977 SC 2270 : 1977 4 SCC 393 .
70 Subhash Ch Kohli v Indian Sugar and General Industries Export Import Corporation Ltd, AIR
2009 SC 1972 .
71 Subbanna v Subbanna, AIR 1965 SC 1325 (1333).
72 Jankirama v Nilakanta, AIR 1962 SC 633 (643); Satgur Pd v Har N Das, AIR 1932 PC 89 ;
Bhagwat D Singh v DD Sahu, 35 IA 48 relied on.
73 Lucy Kochuvareed v P Mariappa Gounder, AIR 1979 SC 1214 (1222) : (1979) 3 SCC 150 .
74 Alok Kumar Sharma v T Hemalatha, AIR 2013 AP 7 .
75 Manohar v Jaipal Singh, (2008) 1 SCC 520 .
76 Marshall Sons & Co (I) Ltd v Sahi Oretrans (P) Ltd, AIR 1999 SC 882 : (1999) 2 SCC 325 .
77 Asstt Custodian General of Evacuee Property v Lila Devi, AIR 1980 SC 2080 : (1980) 4 SCC
224 .
78 Dalhousie Properties Ltd v Sooraj Mull, AIR 1977 SC 223 : (1977) 1 SCC 367 .
79 Mummareddi v Durairaja, AIR 1952 SC 109 (114) : 1952 SCR 655 : 65 MLW 519.
80 Fatehchand v Balkrishan, AIR 1963 SC 1405 (1412) : (1964) 1 SCR 515 : (1964) 1 MLJ (SC)
60.
81 Bhagwati Prasad v Chandramaul, AIR 1966 SC 735 (740) : (1966) 2 SCR 286 : 1966 ALJ 799 .
82 Bhaiya Ramanuj v Lalu Maheshanuj, AIR 1981 SC 1937 (1945); see also Rani Satraj Kuari v
Deo Raj Kuari, (1888) 15 IA 51 ; Chinnathayi v Panduja Naicker, AIR 1952 SC 29 : 1952 SCR 241 ;
Collector of Bombay v Municipal Corpn of Bombay, AIR 1951 SC 469 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 12A. Decree for specific
performance of contract for the sale or lease of immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
83[R. 12A.
Decree for specific performance of contract for the sale or lease of immovable
property
Where a decree for the specific performance of a contract for the sale or lease of
immovable property orders that, the purchase-money or other sum be paid by the
purchaser or lessee, it shall specify the period within which the payment shall be
made.]
COMMENT.—
Clause (b) of sub-rule (1) of this rule 12 has been substituted by the present Clause (b)
and (b-a). It was felt necessary that the Court while passing a decree in a suit for the
rent or mesne profits under clause (b) of sub-rule (1) of rule 12 of O XX should be
required to take into consideration not only the rent or mesne profits which would have
accrued on the property but also the rent or mesne profits which the decree holder
would have with the diligence, received from the property. Sub-rule (1) (b) of rule 12 has
been amended accordingly.
Rule 12 of O XX deals with the decree to be passed in a suit for possession of

immovable property and for rent or mesne profits whether past or future against a
person in possession of such property. The rule is inapplicable to a suit for recovery of
possession alone.84 The rule is not mandatory. It is directory one.
Assessment of mesne profits where, based on value of property was held not
sustainable.85 Where in a suit mesne profits has not been specifically claimed but
prayer is for awarding possession and occupation along with all rights appertaining
thereto, it has been held, in such a case, by Supreme Court of India the prayer does not
include claim for mesne profits and hence grant of mesne profits is not correct.86
Powers of appellate Court.—
In a suit for specific performance of contract for sale of land a decree was passed. It
was without any direction for delivery of possession to the purchaser. This decree was
not challenged by the purchaser, but an appeal was filed against it by the vendor only.
The land was alleged to be in possession of tenants who were not represented in
appeal. An order dismissing the appeal by modifying decree so as to construe it as
directing delivery of possession was liable to be set aside.87
Mesne profits before the date of the institution of the suit cannot be awarded to a party
unless the claim was specifically made for that. But as regards mesne profits
subsequent to the date of institution of suit, it is future mesne profits and is included
within the provision of O XX, rule 12.88 With regard to past mesne profits, there is an
existing cause of action and it must be pleaded by the plaintiff and claim made, Court
fee paid on the estimated value of past mesne profits claimed by him. But for future
mesne profits, the plaintiff has no cause of action on the date of the institution of the
suit. Hence, he will not be able to plead the cause of action, nor to value the same. For
the same reasons no Court fee will be paid. Under O XX, rule 12, a Court has got
discretionary powers and may pass a decree directing an enquiry into future mesne
profits and the Court may grant a general relief though it is not specifically asked for in
the plaint.89
Principles relating to Assessment of Mesne Profits.—
When the question of the assessment of mesne profits arises, normally the principles
that govern such an assessment of the profit, which the person in wrongful possession
of immovable property, has actually received or with ordinary diligence might have
received.
With regard to the rate of interest on mesne profits, it has been held by the Supreme
Court of India that the rate of interest usually awarded by the Court is six percent.90
And as regards term within which the decree holder should recover the future mesne
profits, it has been held by the Supreme Court that the term should be restricted to a
period of three years from the date of the decree notwithstanding the provision in the
decree ordering an enquiry as to mesne profits till the possession of the property is
recovered by the decree-holder.91
Rule 12-A has been added newly by the Act of 1976. This newly added rule seeks to
provide that the decree for specific performance of contracts for the sale or lease of
immovable property should specify the period within which the purchase-money or
other amount is to be paid.
1977).
84 Gopalakrishna Pillai v Meenakshi Ayal, AIR 1967 SC 155 : 1966 Supp SCR 128 : (1967) 1 MLJ
(SC) 89 : 1967 BLJR 222.
85 Fateh Chand v Bal Kishan Das, AIR 1963 SC 1405 : (1964) 1 SCR 515 : 1963 Cur IIJ (SC) 25 :
(1964) 1 MLJ (SC) 6.
86 AIR 1952 SC 539 .
87 Shankar Popat Gaidhani v Hiraman Umaji More, AIR 2003 SC 1682 : (2003) 4 SCC 100 .
88 Maddanappa v Chandramma, AIR 1965 SC 1812 .
89 Gopalakrishna Pillai v Meenakshi Ayal, AIR 1967 SC 155 : 1966 Supp SCR 128 : (1967) 1 MLJ
(SC) 89 : 1967 BLJR 222.
90 MN Dasji v Triupathi Devasthanam, AIR 1965 SC 1231 .
91 Subbanna v Subbana, AIR 1965 SC 1325 : (1965) 2 SCR 661 : (1966) 1 MLJ (SC) 67.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Decree in
administration suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Decree in administration suit
(1) Where a suit is for an account of any property and for its due administration
under the decree of the Court, the Court shall before passing the final decree,
pass a preliminary decree ordering such accounts and inquiries to be taken
and made, and giving such other directions as it thinks fit.
(2) In the administration by the Court of the property of any deceased person, if
such property proves to be insufficient for the payment in full of his debts and
liabilities, the same rules shall be observed as to the respective rights of
secured and unsecured creditors and as to debts and liabilities provable, and
as to the valuation of annuities and future and contingent liabilities
respectively, as may be in force for the time being, within the local limits of the
Court in which the administration suit is pending with respect to the estates of
persons adjudged or declared insolvent; and all persons who in any such case
would be entitled to be paid out of such property, may come in under the
preliminary decree, and make such claims against the same as they may
respectively be entitled to by virtue of this Code.
COMMENT.—
Property of any deceased person under sub-rule (2).—
It has been held by a Full Bench of Assam High Court that property acquired with the
income derived from the estate of a deceased person is to be regarded as part of the
estate. Income from the estate is a part of estate and if income is converted into
another property that property will be treated as an addition to that estate and,
therefore, should form part of the estate.92
92 Arshad Ali v Tahir Ali, AIR 1954 Ass 33 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Decree in preemption
suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Decree in preemption suit
(1) Where the Court decrees a claim to preemption in respect of a particular sale
of property and the purchase-money has not been paid into Court, the decree
shall—
(a) specify a day on or before which the purchase-money shall be so paid,

and
(b) direct that on payment into Court of such purchase-money, together

with the costs (if any) decree against the plaintiff, on or before the day
referred to in clause ( a ), the defendant shall deliver possession of the
property to the plaintiff, whose title thereto shall be deemed to have
accrued from the date of such payment, but that, if the purchase-money
and the costs (if any) are not so paid, the suit shall be dismissed with
costs. [B, KNT, MP]
(2) Where the Court has adjudicated upon rival claims to preemption the decree
shall direct—
(a) if and in so far as the claims decreed are equal in degree, that the claim
of each pre-emptor complying with the provisions of sub-rule (1) shall
take effect in respect of a proportionate share of the property including
any proportionate share in respect of which the claim of any pre-emptor
failing to comply with the said provisions would, but for such default,
have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that the
claim of the inferior pre-emptor shall not take effect unless and until the
superior pre-emptor has failed to comply with the said provisions.
[Proviso added in Bombay, Karnataka & Madhya Pradesh.]

Maharashtra Government Gazette, dated 15-9-1983, (1-10-1983) Part 4 Ka, Page 408.
In Order XX, Rule 14, substitute a colon for the full-stop appearing at the end of Clause
(b) of sub-rule (1) and add thereafter the following proviso:—
"Provided that if there are crops standing on the property, possession of the property
shall not be delivered to the plaintiff until such crops have been reaped. The
plaintiff'shall, however, be entitled to simple interest not exceeding 6 per cent per
annum at the discretion of the Court on the amount deposited by him in Court in
respect of the period between the date of payment into Court by him of the purchase-
money and the costs (if any) and the date on which delivery of possession to him by
the defendant takes place".
Karnataka.—Add the following proviso to sub-rule (1)(b):—
"Provided that if there are crops standing on the property the Court may postpone the
delivery of property to the plaintiff till after the crops have been reaped and direct that
the plaintiff be paid by the defendant simple interest at such rate as may be fixed not
exceeding 6 per cent per annum on the amount deposited by the plaintiff in Court in
respect of the period between the date of deposit into Court of the purchase money
and costs, if any, and the date to which delivery of possession has been postponed."
[30-3-1967].
Madhya Pradesh.—Same as in Bombay (CP & Berar Gaz, 1947 Part III p. 526).
COMMENT.—
A decree framed under rule 14 requires reciprocal rights and obligations between the
parties. It imposes obligations on both sides, and they are so conditioned that
performance by one is conditional to performance by the other. The obligations are
inter-linked. They cannot be separated. The rule 14 says that on payment into Court of
the purchase money the defendant shall deliver possession of the property to the
plaintiff. The decree holder, therefore, deposits the purchase money with the
expectation that in return the possession of the property would be returned to him. If
the defendant obtained stay order from High Court against a preliminary decree for pre-
emption, then it has effect of staying deposit of purchase price. The dismissal of
appeal gives fresh starting point for payment.93 Where one day's delay occurred due to
the relinquishment of charge by the presiding officer of his transfer, there is no delay.94
Two conditions, to be fulfilled by decree-holder.—
Under this provision the decree-holder in order to get delivery of possession of the land
has to fulfil two conditions, he has to deposit in Court (i) the purchase money together
with the cost, if any, decreed against him and (ii) the deposit must be made on or
before the date fixed by the Court.95
As a general principle, no extension is allowed in the period for payment of purchase-

money but where the last day so permitted is a holiday the plaintiff'should be allowed
to deposit the purchase price the next Court day.96 In the case of non-deposit of only a
relatively small faction of the purchase money due to inadvertent mistake, whether or
not caused by any action of the Court, the Court has discretion to extend the time.97
The pre-emptor's title accrues from the date of deposit of the purchase money and
costs in terms of the decree. If after making the deposit but before receipt of delivery
of possession the pre-emptor sells the land, then the vendee is clothed with the right to
obtain possession by execution of that decree.98
Effect of failure to deposit within fixed time.—
The dismissal of the suit on default in paying the purchase-money within the time
allowed is as a result of the mandatory provision of rule 14. It is not by reason of any
decision of the Court. An omission to incorporate the direction in the decree to the
effect that if the deposit was not made within the time fixed, the suit will stand
dismissed, cannot, therefore, in any way affect the rights of the parties.99
Pre-emption decree-Plaintiff's title.—
It is the date of the payment of the purchase money since when the title of the pre-
emptor in property accrues, and not from the date of the sale of the decree.100
Suit for possession by pre-emption.—
The directions given by the trial Court are mandatory under this rule. Mere filing of an
appeal does not suspend the decree of the trial Court. Unless that decree is altered in
any manner by the Court of Appeal, the pre-emptor is bound to comply with that
direction.101
Only source of livelihood should not go.—
There was a firm carrying on the business of bakery and rendition of accounts. In a suit
for the dissolution of this firm a preliminary decree was passed. An appeal was filed
against the decree in which the appellant took the plea that the bakery business,
carried on in the part of the building in which he was living, was his only source of
livelihood. The Supreme Court directed that in the final decree proceedings care should
be taken to see that the appellant does not lose the building.102
93 Dattatraya v Shaikh Mahaboob, AIR 1970 SC 750 (752) : (1969) 2 SCR 514 : 72 Bom LR 431.
94 Bhoop v Matadin Bharadwaj, AIR 1991 SC 373 (376) : (1991) 2 SCC 128 : (1991) 1 BLJR 603 .
95 Jogdhyan v Babu Ram, AIR 1983 SC 57 (59) : (1983) 1 SCC 26 .
96 Muhammad Jain v Siam Lal, AIR 1924 All 218 (FB).
98 Zila Singh v Hazari, AIR 1979 SC 1066 (1070).
99 Naguba Appa v Namdev, AIR 1954 SC 50 : (1953) Hyd 455.
100 Hazari v Neki, AIR 1968 SC 1205 : (1968) 2 SCR 833 : 1968 Cur LJ 703 .
101 Sulleh Singh v Sohan Lal, AIR 1975 SC 1957 (1959) : (1975) 2 SCC 505 : (1976) 1 SCR 598 .
102 Shyam Sunder Shaw v Netai Chand Shaw, AIR 1987 SC 1421 : (1987) 3 SCC 461 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Decree in suit for
dissolution of partnership
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Decree in suit for dissolution of partnership
Where a suit is for the dissolution of a partnership, or the taking of partnership

accounts, the Court, before passing a final decree, may pass a preliminary decree
declaring the proportionate shares of the parties, fixing the day on which the
partnership shall stand dissolved or be deemed to have been dissolved, and directing
such accounts to be taken, and other acts to be done, as it thinks fit.
COMMENT.—
Partnership-at-will.—
The words "fixing the day on which the partnership shall stand dissolved" appearing in
this rule make the provision clear that mere filing of a suit for dissolution does not
operate as dissolution. In case of partnership-at-will, where partnership is dissolved on
notice of dissolution, the mere filing of suit for dissolution does not amount to
notice.103
In a pre-emption suit, decree was passed directing the pre-emptor to deposit purchase
money within the time fixed by the Court. However, the pre-emptor failed to deposit the
purchase money within the time prescribed. It was held that as the mandatory
provisions of Section 14 of Rajasthan Pre-emption Act and O XX rule 14 had not been
complied with, the suit itself would stand dismissed by reason of default in payment of
preemption price. It was further held that the permission granted by the executing
Court after one year would be beyond its jurisdiction and illegal.104
103 Banarsi Das v Kanshi Ram, AIR 1963 SC 1165 : (1964) 1 SCR 316 .
104 Rajendra Kumar Chachan v Banne Singh, AIR 2014 Raj 102 .

account between principal and agent
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Decree in suit for account between principal and agent
In a suit for an account of pecuniary transactions between a principal and an agent,

and in any other suit not hereinbefore provided for, where it is necessary, in order to
ascertain the amount of money due to or from any party, that an account should be
taken, the Court shall, before passing its final decree, pass a preliminary decree
directing such accounts to be taken as it thinks fit.
COMMENT.—
This rule is applicable not only for accounts between principal and agent but also in a
case where the plaintiff has a right for rendition of accounts from the defendant.
However, a suit for rendition of accounts is not maintainable between promisor and
promisee or between two contracting parties.105 In a suit for accounts in admission
made in the written statement in the earlier proceedings is sufficient though is not
conclusive.106
Suit on basis of settled account.—
In a suit for a specific and ascertained sum of money on the basis of settled account
the Courts below had given concurrent finding that there was no settlement of account.
After such a finding it was not open to the Courts below to make out a new case for the
plaintiff which he never pleaded and go into accounts.107
Suit for accounts, who can file?.—
Rule 16 does not create or confer right to file a suit for accounts. It applies only where
right to sue for accounts exists. A contractor engaged to execute work can not file suit
for accounts against employer. The fact that contract provided for payment on basis of
measurement done by employer, notwithstanding.108
Amount to be deducted in counter-claim.—
In making a claim for money, a khata account, a sum of Rs 10,000.00 paid by the
plaintiff to the bank for the release of goods pledged with the bank was taken into
account and deducted. The same amount cannot again be allowed as a deduction in
the counter claim made by the defendant for the value of the goods supplied.109
105 Triloki Nath v Dharmarth Council, Srinagar, AIR 1975 J&K 76 (FB).
106 Sitaramacharya v Gururajacharya, AIR 1997 SC 806 (807) : (1997) 2 SCC 548 .
107 Loonkaran Sethia v Evon E John, AIR 1977 SC 336 (348) : (1977) 1 SCC 379 : (1977) 1 SCR
853 .
108 KC Skaria v Govt of State of Kerala, AIR 2006 SC 811 (815, 817).
(1997) 84 Cut LT 663.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Special directions as to
accounts
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Special directions as to accounts
The Court may either by the decree directing an account to be taken or by any
subsequent order give special directions with regard to the mode in which the account
is to be taken or vouched and in particular may direct that in taking the account the
books of account in which the accounts in question have been kept shall be taken as
prima facie evidence of the truth of the matters therein contained with liberty to the
parties interested to take such objection thereto as may be advised.
COMMENT.—
Where a suit has been filed by the landlord against a tenant for possession, arrears of
rent and mesne profits in respect of an immovable property, the Court cannot direct the
plaintiff to render accounts of the alleged over-payments by the defendants on the
basis of standard rent.110 In a suit for compensation for additional constructions to
building not covered by contract no serious error was committed by the High Court, in
giving direction to the commissioner for assessing compensation on the basis of rates
approved by the owner of building. Such a direction was given with a view to restrict the
scope of the enquiry.111
110 AIR 1969 SC 37 : (1969) 1 SCR 58 : 10 Guj LR 175.

111 Subramanyam v Thayappa, AIR 1966 SC 1034 (1036).

partition of property or separate possession of a share therein
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Decree in suit for partition of property or separate possession of a share
therein
Where the Court passes a decree for the partition of property or for the separate
possession of a share therein [K] then,—
(1) if and in so far as the decree relates to an estate assessed to the payment of
revenue to the Government, the decree shall declare the rights of the several
parties interested in the property, but shall direct such partition or separation
to be made by the Collector, or any gazetted subordinate of the Collector
deputed by him in this behalf, in accordance with such declaration and with the
provisions of Section 54;
(2) if and in so far as such decree relates to any other immovable property or to
movable property, [K] the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring
the rights of the several parties interested in the property and giving such
further directions as may be required.
[Rule substituted in Kerala.]

For Rule 18 the following rule shall be substituted namely:—
"Where the Court passes a decree for the partition of property or for the separate
possession of a share therein, the Court may, if the partition or separation cannot be
conveniently made without further inquiry, pass a preliminary decree declaring the
rights of the several parties interested in the property and giving such further directions
as may be required."
COMMENT.—
In a suit for partition or separation of a share the Court at the first stage decides
whether the plaintiff has a share in the suit property and whether he is entitled to
division and separate possession. The decision on these two issues is exercise of a
judicial function and results in first stage decision termed as "decree" under O XX rule
18(1) and termed as preliminary decree under O XX rule 18(2) of the Code. The
consequential division by metes and bounds is the subject-matter of final decree under
O XX rule 18(2) of the Code.112
A preliminary decree determines the rights and interests of the parties. The suit for
partition is not disposed of by passing of the preliminary decree. It is by a final decree
that the immovable property of Joint Hindu family is partitioned by meets and bounds.
After the passing of the preliminary decree, the suit continues until the final decree is
passed. If in the interregnum i.e. after passing of the preliminary decree and before the
final decree passed, the events and supervening circumstances occur necessitating
change in shares, there is no impediment for the Court to amend the preliminary decree
or pass another preliminary decree re-determining the rights and interests of the
parties having regard to the changed situation.
It is true that final decree is always required to be in conformity with the preliminary
decree but that does not mean that the preliminary decree, before the final decree is
passed cannot be altered or amended or modified by the trial Court in the event of
changed or supervening circumstances even if no appeal has been preferred from such
preliminary decree.113
In a suit for partition a plea by the defendant that there was an earlier family
settlement, was not supported by evidence. The family which carried number of
business, carried them under different names and styles by constituting different
companies or partnership. Finding of fact recorded by the High Court that there was no
family settlement before suit for partition was filed, is based on evidence and cogent
reasons. It cannot be interfered with by the Supreme Court.114
Final decree proceedings, petition for.—
A petition/application to draw final decree is not a plaint and need not contain the
material facts as specified under rule 1 of O VII of the Code. Rule 18 of O XX of the
Code does not specify as to what are the particulars to be mentioned in a
petition/application to draw the final decree. A petition/application accompanied by the
preliminary decree passed in the suit is sufficient to draw a final decree.115
Final Decree cannot go behind preliminary decree.—
A final decree cannot amend or go behind the preliminary decree on a matter

determined by the preliminary decree.116
Preliminary decrees may be more than one.—
Where two shares were granted at the final stage, they could be treated as two
preliminary decrees and two preliminary decrees are permissible in law.117
Belated action against final decree effect of.—
Where the judgment of a High Court became final, more than three years thereafter the
appellants filed objection for the first time, as to the effect of belated action against
final decree, the appeal is to be dismissed.118
Valuation of properties should be determined on the date of final decree.—

In a suit for partition the Supreme Court directed that the plaintiff is entitled to 2/19th
share in joint family property and that he shall be put in separate possession of
properties giving share by metes and bounds. It does not mean that every item of
property is to be divided between co-shares. The valuation of the properties has to be
determined on the date of final decree and not prior to that. The Court while protecting
possession of parties must see to equalisation of shares recognised in law "by making
provision for payment of cruelty".
The direction of the Supreme Court in finalising of preliminary decree proceedings that
"the present possession of the parties shall be respected as far as possible" does not
mean that a person out of possession of all immovable properties should not be
allotted any part of immovable property whatsoever even though he is entitled as per
his share.119
No appeal against preliminary decree then no appeal against final decree.—
In a suit for partition where preliminary decree has been passed and no appeal filed
therefrom, at the time of passing of final decree it was not open to the respondent to
raise the contention that he was a tenant of the suit premises. Moreover, the "batai
patra" on the basis of which the tenancy was claimed being executed during pendency
of partition suit was hit by the doctrine of lis pendens.120
Under sub-rule (2) a Court may pass a preliminary decree in the circumstances
mentioned in this rule declaring the rights of several parties interested in the property
or can give such further directions as may be required. Here, the words give such
further directions include also required. Here, the words give such further directions
include also directions for enquiry as to future mesne profits.121 It also includes
direction for interest, and it is the preliminary decree where such direction should be
given.
High Court cannot give, what parties themselves had given up.—
In a partition suit the sharers submitted the petitions in trial Court as well as in High
Court. They gave up their rights to the extent to which the trial Court had decreed a
share in favour of the plaintiff. It was not proper for the High Court not to have given
effect to what parties themselves had given up in favour of the plaintiff.122
In a partition suit, all the defendant-respondents were not parties to the compromise
arrived at and the appellate Court disposed of the appeal in terms of the compromise
only. The result was that the appeal was neither dismissed nor allowed ex parte against
the non-appearing defendant respondent. It was held that as against such respondents,
no final decree could be made and the proceeding for preparing final decree against
them was invalid.123
"Parties" shares cannot be modified.—
In a partition suit, a High Court modified the shares of the parties on the basis of a will.
In the absence of any issue and finding thereon about the truth and validity of the will,
the shares could not have been modified.124
Where Partition affects Equality of Partition.—
A Court has no power of sale where property cannot be conveniently partitioned, or

partition affects the provision of owelty or equality of partition in the partition of joint
family properties.125
Earlier partition deed, as proof.—
Where earlier partition deed, as proof of other properties, is available on record, no

further proof thereof was required, moreso when the plaintiff himself relied on the
same.126
Decrees in partition Suit.—
A preliminary decree declares the rights or shares of the parties to the partition. Once
the shares have been declared and a further inquiry still remains to be done for actually
partitioning the property and placing the parties in separate possession of the divided
property, then such inquiry shall be held and pursuant to the result of further inquiry a
final decree shall be passed.
A decree may be both preliminary and final and that apart, a decree may be partly
preliminary and partly final. What is executable is a final decree and not a preliminary
decree unless and until the final decree is a part of the preliminary decree.127
In a suit for partition, the suit was decreed preliminarily specifying the share of the
plaintiff and the defendant. The plaintiff thereafter claimed for re-determination of
share at the stage of final decree, on the basis of alleged sale executed in the year
1933. It was held that if any deed of sale was executed, in 1933 then the same should
have been brought to the notice of the Court in the plaint itself and after lapse of
seventy-six years such a plea cannot be allowed to be taken by the plaintiff in the final
decree proceedings.128
After passing of the preliminary decree in a suit for partition and share in property, no
appeal was filed by the defendants against the said decree. So also, nothing was
brought on record to show that any event took place during interregnum, which requires
alteration in the share of parties. Thus, at the stage of preparation of the final decree
they are not entitled to raise any objection against the correctness of the preliminary
decree.129
Non-payment of mortgage debt disentitles to share.—
In a suit for partition and possession of a joint family property, under a mortgage, in
which two brothers have equal share, partition would be subject to redemption of
mortgage. Accordingly, there would be a preliminary decree for partition in two equal
shares. It would be open to the plaintiff brother to have mortgage redeemed by paying
mortgage debt before passing final decree. If the second brother does not pay his
share in mortgage debt, then the entire amount should be paid by the plaintiff and his
brother would not be entitled to his share.130
Decree of trial Court, restored, setting aside decree and judgment of High
Court.—
There existed a partition between five brothers. A subsequent suit for repartition ended
in a compromise decree under which one J and his son A were given three out of five
shares. J and K were to take properties jointly. J had no separate source of income of
his own from which he could have acquired other properties. A's widow filed another
suit for partition. Held, she could not be denied a share in the properties. The decree of
the trial Court was restored setting aside the judgment and the decree of the High
Court.131
In a suit for partition, the claim for ownership and right of partition was based on joint
patta granted by settlement authorities and also the judgments rendered between
same parties in previous suit for eviction against present plaintiff. It was dismissed and
claim of present plaintiff to remain in possession had been crystalised. The suit for
partition was entitled to be decreed.132
Preliminary decree, amendment of.—
The Court may not have a suo moto power to amend a decree but it can rectify a
mistake. If a property was subject matter of pleadings and the Court did not frame an
issue which it ought to have done, it can, when pointed out at a later stage, amend the
decree. A court is always ready and willing to rectify the mistake it has committed.133
112 Shub Karan Bubna v Sita Saran Bubna, (2009) 9 SCC 689 (694).
113 Ganduri Koteshwaramma v Chakiri Yanadi, AIR 2012 SC 169 .
114 Madanlal v Yoga Bai, AIR 2003 SC 1880 (1886) : (2003) 5 SCC 89 .
115 Rukmani v V Udai Kumar, 2008 AIHC 298 (302) (Kar) : 2008 (3) Kar LJ 129 140 (DB).
116 Muthangi Ayyana v Muthangi Jaggarao, AIR 1977 SC 292 (294) : (1977) 1 SCC 431 : (1977)
106 ITR 292 : (1977) 2 SCR 111 .
117 Maddinei Koteshwara Rao v Maddinei Bhaskara Rao, (2009) 13 SCC 179 (184).
118 Hari Prakash v Lakshami Narain, AIR 1996 SC 105 : 1995 Supp (3) SCC 523 .
119 ML Subbaraya Setty v ML Nagappa Setty, AIR 2002 SC 2066 (2073, 2074, 2075) : (2002) 4
SCC 743 .
120 Venkatarao Anantdeo Joshi v Malatibai, AIR 2003 SC 267 (269) : (2003) 1 SCC 722 .
121 Basavyya v Guravayya, AIR 1951 Mad 938 (FB).
122 Anar Kumari v Jamuna Prasad Singh, AIR 1977 SC 2027 : (1976) 4 SCC 826 .
123 Dhup Chand v Rattan, AIR 1978 SC 506 (509) : (1978) 2 SCC 398 .
124 Baliram Atmaram Kelapure v Indira Bai, AIR 1996 SC 2025 : (1996) 8 SCC 400 .
125 Swaminathan v Official Receiver, AIR 1957 SC 577 : 1957 SCR 775 : (1957) 2 MLJ (SC) 53.
126 R Mahalakshmi v AV Anantharaman, (2009) 9 SCC 52 (58).
127 Bimal Kumar v Shakuntala Devi, AIR 2012 SC 1586 .
128 Goma Khan v Haidar Khan, AIR 2014 Ori 68 .
129 Rahim Mian v Bibi Jaibunisha, AIR 2014 Jhar 17 (Paras 13, 17)
130 Thacker Pragji Anandji v Mansukh Ambalal, AIR 1997 SC 1787 : (1997) 9 SCC 111 .
131 Doddi Atchayyamma v Doddi Venkata Ramanna, AIR 1983 SC 583 : (1983) 2 SCC 509 .
133 S Satnam Singh v Surender Kaur, AIR 2009 SC 1089 (1093) : (2009) 2 SCC 562 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Decree when set-off [or
counter-claim] is allowed
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 19.
Decree when set-off 134[or counter-claim] is allowed
(1) Where the defendant has been allowed a set-off or 135[ counter-claim ] against
the claim of the plaintiff, the decree shall state what amount is due to the
plaintiff and what amount is due to the defendant, and shall be for the recovery
of any sum which appears to be due to either party. [A]
Appeal from decree relating to set-off 136[or counter claim]
(2) Any decree passed in a suit in which a set-off 137[ or counter-claim ] is claimed
shall be subject to the same provisions in respect of appeal to which it would
have been subject if no set-off 138[ or counter-claim ] had been claimed.
(3) The provisions of this rule shall apply whether the set-off is admissible under
rule 6 of Order VIII or otherwise:
Allahabad (Notfn No. 1353/35 (a)-3: 21-3-1936).—In sub-rule (1) substitute a comma for
the full-stop at the end: and at the end add the following:—
"but no decree shall be passed against the plaintiff unless the claim to set off was
within limitation on the date on which the written statement was presented."
COMMENT.—
In rule 19, after the words "set-off", the words "or counter claim"
have been added in clauses (1) and (2). The amendment under this rule was
consequential to the inclusion of new rule 6-A in O VIII relating to counterclaim.
Sub-rule (3) provides that provisions of this rule are applicable not only to legal set-off
as embodied in O VIII rule 6 but also to equitable set-off.139
1977).
135 Ins. by Act 104 of 1976, section 70(ix) (w.e.f. 1-2-1977).
139 Govt of State of Trav Co v Bank of Cochin Ltd, AIR 1954 Trav Co 243 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Certified copies of
judgment and decree to be furnished
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Certified copies of judgment and decree to be furnished
Certified copies of the judgment and decree shall be furnished to the parties on
application to the Court, [B] and at their expense. [B]
Bombay.—Renumber the rule as sub-rule (1) and add sub-rule (2) as below:
(2) Application may be made by the party himself or his recognised agent or by his
pleader and may also be sent by post. Whenever such application is sent by post the
same shall be sent by Registered post prepaid for acknowledgement. When the
application is sent by post, it shall be deemed to have been made on the date of
posting if the application is made by registered post, but only on the date of its receipt
by the office of the Court in case when it is sent by post other than registered post. (1-
10-83)
Madhya Pradesh.—For rule 20 substitute the following:—
"20. Certified copies of judgment and decree shall be furnished to the parties on
application, and at their expense.—Applications for copies may be presented in person
or by an agent or a pleader or sent by post to the head copyist of the office at the place
where the record from which the copies are applied for, will eventually be deposited for
safe custody. When copies from a record in the temporary custody of a Court at a
station where there is no record room are required, applications may be presented in
person or by an agent or a pleader to the Senior Judge at that station:
Provided that the Judge shall neither comply with applications received by post nor
send copies by post." (16-9-1960)
Allahabad [Notfn No. 1953/35(a) of 22-5-1915 & Notfn No. 6056/35(a)-4(3) of 1-11-
1941].—Add the following new rule 21:—
"21. (1) Every decree and order as defined in Section 2, other than a decree or order of a
Court of small causes or of a Court in exercise of the jurisdiction of a Court of small
causes, shall be drawn up in the Court vernacular, or in English, if the Court so orders.
As soon as such decree or order has been drawn up, and before it is signed, the
Munsarim shall cause a notice to be pasted on the notice board stating that the decree
or order has been drawn up, and that, any party or the pleader, of any party may, within
six working days from the date of such notice, peruse the draft decree or order and may
sign it, or may file with the Munsarim an objection to it on the ground that there is in the
judgment a verbal error or some accidental defect not affecting a material part of the
case, or that such decree or order is at variance with the judgment or contains some
clerical or arithmetical error. Such objection shall state clearly what is the error, defect,
or variance alleged, and shall be signed and dated by the person making it.
(2) If any such objection be filed on or before the date specified in the notice, the
Munsarim shall enter the case in the earliest weekly list practicable and shall, or the
date fixed put up the objection together with the record before the Judge who
pronounced the judgment, or, if such Judge has ceased to be the Judge of the Court,
before the Judge then presiding.
(3) If no objection has been filed on or before the date specified in the notice, or if an
objection has been filed and disallowed, the Munsarim shall date the decree as of the
day on which the judgment was pronounced and shall lay it before the Judge for
signature in accordance with the provisions of rules 7 and 8.
(4) If an objection has been duly filed and has been allowed, the correction or alteration
directed by the Judge shall be made. Every such correction or alteration in the
judgment shall be made by the Judge in his own handwriting. A decree amended in
accordance with the correction or alteration directed by the Judge shall be drawn up,
and the Munsarim shall date the decree as of the day on which the judgment was
pronounced and shall lay it before the Judge for signature in accordance with the
provisions of rules 7 and 8.
(5) When the Judge signs the decree he shall make an autograph note stating the date
on which the decree was signed."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Provisions relating to
certain items
© 2020 LexisNexis
THE FIRST SCHEDULE
1[ORDER XX-A Costs
R. 1.
Provisions relating to certain items
Without prejudice to the generality of the provisions of this Code relating to costs, the
Court may award costs in respect of,—
(a) expenditure incurred for the giving of any notice required to be given by law
before the institution of the suit;
(b) expenditure incurred on any notice which though not required to be given by
law, has been given by any party to the suit to any other party before the
institution of the suit;
(c) expenditure incurred on the typing, writing or printing of pleadings filed by any
party;
(d) charges paid by a party for inspection of the records of the Court for the
purposes of the suit;
(e) expenditure incurred by a party for producing witnesses, even though not
summoned through Court; and
(f) in the case of appeals, charges incurred by a party for obtaining any copies of
judgments and decrees which are required to be filed along with the
memorandum of appeal.
Madras (Pondicherry).—The following amendments were made by Tamil Nadu

Government Gazette, dated 7-5-1986, Part III, Section 2, Page 40; Pondicherry Gazette,
dated 10-6-1986, Page 425 (No 23).
In rule 1, after entry (f) add as under:
"(g) In the matter of preparation of pleadings or affidavits for being presented in Court,
charges be fixed at 75 paise every page and 25 paise for every page for the original and
copy respectively".
COMMENT.—
Order XX-A was added by the Amending Act of 1976. This newly added Order specifies
provisions with regard to the power of the Court to award costs in respect of certain
items of expenditure, including expenses in relation to notices, or typing charges and
expenses of witnesses and in obtaining copies etc.
1 Order XX-A ins. by Act 104 of 1976, Section 71 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Costs to be awarded in
accordance with the rules made by the High Court
© 2020 LexisNexis
THE FIRST SCHEDULE
1[ORDER XX-A Costs
R. 2.
Costs to be awarded in accordance with the rules made by the High Court
The award of costs under this rule shall be in accordance with such rules as the High
Court may make in that behalf.]
Calcutta.—In Order XXA, for rule 2, substitute the following rule, namely:
"2(a) The award of costs will be in the discretion of the Court. While exercising such
discretion the Court shall take into consideration the actual reasonable amount spent
by the successful party in getting a just relief or opposing a frivolous claim including
the value of time spent by him due to unjust opposition by the other side besides the
amount of Court fees, lawyer's fees and the reasonable expenses incurred by such
party towards transportation and lodging of such party and his witnesses, if any.
(b) It will be the duty of the Court to quantify such amount while disposing of the suit
not only in favour of the successful party but also to specify the amount of cost the
unsuccessful party has incurred so that if the decree passed by the Trial Court is
reversed in appeal and the Appellate Court intends to grant costs in favour of the
appellant it will be convenient for the Appellate Court to assess the amount of costs in
his favour:
Provided further that the Court will also be free to award cost in favour of a successful
party while disposing of a contested interlocutory application bearing in mind the
aforesaid principles but in such a case it is not required to mention the amount of
probate costs incurred by the unsuccessful party unless such interlocutory order is an
appealable one." [Vide Calcutta High Court Notification No. 4681-G, dated 6th
December, 2006, published in the Calcutta Gazette, Extra., Pt. I, dated 7th December,
2006.]
1 Order XX-A ins. by Act 104 of 1976, Section 71 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Modes of paying money
under decree
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXI Execution of Decrees and Orders
Payment under Decree
1[R. 1.
Modes of paying money under decree
(1) All money payable under a decree shall be paid as follows, namely:—
(a) by deposit into the Court whose duty it is to execute the decree, or sent
to that Court by postal money order or through a bank; or
(b) out of Court to the decree-holder by postal money order or through a

bank or by any other mode wherein payment is evidenced in writing; or
(c) otherwise, as the Court which made the decree, directs.
(2) Where any payment is made under clause (a) or clause (c) of sub-rule (1), the
judgment-debtor shall give notice thereof to the decree-holder either through
the Court or directly to him by registered post, acknowledgement due.
(3) Where money is paid by postal money order or through a bank under clause (a)
or clause (b) of sub-rule (1), the money order or payment through bank, as the
case may be, shall accurately state the following particulars, namely:—
(a) the number of the original suit;
(b) the names of the parties or where there are more than two plaintiffs or
more than two defendants, as the case may be, the names of the first
two plaintiffs and the first two defendants;
(c) how the money remitted is to be adjusted, that is to say, whether it is

towards the principal, interest or costs;
(d) the number of the execution case of the Court, where such case is
pending; and
(e) the name and address of the payer.
(4) On any amount paid under clause (a) or clause (c) of sub-rule (1), interest, if
any, shall cease to run from the date of service of the notice referred to in sub-
rule (2).
(5) On any amount paid under clause (b) of sub-rule (1), interest, if any, shall cease
to run from the date of such payment:
Provided that, where the decree-holder refuses to accept the postal money
order or payment through a bank, interest shall cease to run from the date on
which the money was tendered to him, or where he avoids acceptance of the
postal money order or payment through bank, interest shall cease to run from
the date on which the money would have been tendered to him in the ordinary
course of business of the postal authorities or the bank, as the case may be.]
Orissa.—Insert the words "or order" after the word "decree" wherever it occurs in Rule 1
of Order XXI of the Code (14-5-1984).
COMMENT.—
The existing rule 1 was substituted by the present rule. It was felt that an opportunity
should be given to the judgment-debtor to send to the Court the amount due under a
decree by postal money order or through a bank or to pay out of Court to the decree-
holder through a bank or by postal money order or by any other mode which would
ensure written evidence of the payment. The rule has been substituted with a view to
enabling such payment.
Where the interest is awarded by the decree on the decretal amount, the decree holder
is entitled to interest until he receives notice of the payment into the Court.2
The respondent contractor, firstly appropriated the advances towards the labour
escalation due i.e. the principal amount. It was held that the respondent contractor was
not justified in changing the method of calculation and claim appropriation of the
payments, i.e. firstly towards the interest and then towards the principal amount.3
Decretal Amount.—
Where the parties chose to remain absent in appeal, it can reasonably be inferred that
they must have realised the decretal amount. Such inference is strengthened by the
fact that no cross-objections against adverse findings of the trial Court were filed by
the decree-holder.4
Deposit into Court, held, in terms of compromise decree.—
Under a compromise decree the plaintiff was to deposit certain amount in the Court by
a certain date, in order to enforce his right of getting a sale deed executed in his favour
by the defendant. The last date as fixed by the decree being holiday, the plaintiff
deposited the amount on the next date. The deposit by the plaintiff was in substance
and in effect a deposit made in terms of the compromise decree. The acceptance of
the deposit by the executing Court does not amount to variation of the terms of the
decree.5
Payment held, valid.—
Where a party tendered a cheque for the prescribed amount on the last date for
payment and the same was encashed in due course, the payment by cheque was held
valid payment.6
Appropriation of decretal amount, rationale explained.—
Where the notice of deposit of decretal amount in the Court was not given to the
decree holder, intimation about manner of appropriation was also not given, the deposit
cannot be deemed to be towards principal, only because it was made in pursuance of
Court order.7
Amount of third party cannot be adjusted.—
In an execution petition, the judgment-debtor filed an application to adjust the amount

of a third party lying with the decree-holder, as against the amount due under the
decree. The High Court allowed it. The Supreme Court held that this cannot be done
under O XXI, rule 1 and the High Court committed manifest and gravest error of law and
exceeded its revisional jurisdiction.8
Payment of Decretal Amount.—
The deposit made in Court in payment of decree carrying interest should first be
applied towards interest and costs and then towards principal, unless the decree-holder
was informed that the payment was towards principal and he agreed.9
In the absence of any agreement or direction of the Court the creditor should follow
general rule of adjustment firstly towards interests and costs and then to principal
amount.10
Legality of order granting interest upheld.—
Where the amount of compensation as awarded by the Tribunal under MV Act was
deposited by the judgment-debtor in the Court but the claimants were not informed of
this fact either by him or by the Court, the order granting interest on the decretal
amount from date of deposit till decree holder got information of such deposit by
applying this rule, was legal.11
Execution Court only to execute the decree.—
An execution Court cannot go beyond the award and decree. It has jurisdiction only to
execute the decree. It has no jurisdiction and power to go behind the decree either to
implead third parties to it who are not persons claiming right, title or interest in the
decree through the decree-holder nor does it have power to pass an independent award
or decree in favour of third parties.12
In the matter of execution of the decree, the parties are governed by the decree and not
by the account maintained by the decree holder. What is the amount due under the
decree is to be computed with reference to the decree and the payments if any, made
thereafter.13
Normal rule that amount deposited by judgment debtor to be first adjusted towards
interest and cost and then towards principal amount of compensation held would not
amount to imposition of interest on interest, prohibited under section 3(3)(c) of the
Interest Act, 1978 as interest is not included in the amount of compensation.
The language contained in sub rules of O XXI, rule 1 of the Code of Civil Procedure
clearly indicates the appropriation of amount to be made in case the decree contains a
specific clause, specifying the manner in which the money deposited is to be
appropriated. In case of appropriation of amount unless the decree contains a specific
provision, the amounts have to be appropriated as contemplated under O XXI, rule 1; if
the amount deposited by the judgment debtor falls short of the decretal amount, the
decree-holder is entitled to apply the rule of appropriation by appropriating the amount
first towards interest, then towards costs and subsequently towards principal amount
due under the decree.14
1 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for rule 1, (w.e.f.
1-2-1977).
2 State of Kerala v Mahadeva Iyyer, AIR 1969 Ker 8 .
3 Kerala State Electricity Board v Kurien E Kalathi, AIR 2018 SC 1351 .
4 Cheema Goods Transport Company v Marudamalai Sri Murugan Textiles, AIR 1999 SC 796
(797, 798) : (1999) 2 SCC 68 .
5 CF Angadi v YS Hirannayya, AIR 1972 SC 239 : (1972) 1 SCC 191 .
6 K Saraswathy v PSS Somasundaram Chettiar, AIR 1989 SC 1553 : (1989) 4 SCC 527 .
7 M Mathai v Hindustan Organic Chemicals Ltd, AIR 1995 SC 1572 : (1995) 4 SCC 26 : (1995) 1
Ker LJ 695 : (1995) 1 Ker LT 784 .
8 Bank of Baroda v RM Patwa, AIR 1996 SC 1662 : (1996) 2 SCC 468 .
9 Meghraj v Bayabai, AIR 1970 SC 161 (163) : (1969) 2 SCC 274 : 1969 Mah LJ 776 .
10 Industrial Credit & Development Syndicate v Samithaben H Patel, AIR 1999 SC 1036 (1041,
1042) : (1999) 3 SCC 80 : (1990) 96 Com Cas 1 .
11 Rajasthan State Road Transport Corpn, Jaipur v Poonam Pahwa, AIR 1997 SC 2951 .
12 Ramesh Singh v State of Haryana, AIR 1996 SC 3066 : (1996) 4 SCC 469 .
13 AJ George v State, AIR 2013 Ker 13 .
14 V Kala Bharathi v Oriental Insurance Co Ltd, AIR 2014 SC 1563 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Payment out of Court to
decree-holder
© 2020 LexisNexis
THE FIRST SCHEDULE
Payment under Decree
R. 2.
Payment out of Court to decree-holder
(1) Where any money payable under a decree of any kind is paid out of Court, 15[or
the decree of any kind is otherwise adjusted] in whole or in part to the
satisfaction of the decree-holder, the decree-holder shall certify such payment
or adjustment to the Court whose duty it is to execute the decree, and the
Court shall record the same accordingly.
(2) The judgment-debtor 16[or any person who has become surety for the
judgment-debtor] also may inform the Court of such payment or adjustment,
and apply to the Court to issue a notice to the decree-holder to show cause, on
a day to be fixed by the Court, why such payment or adjustment should not be
recorded as certified; [OR, P] and if, after service of such notice, the decree-
holder fails to show cause why the payment or adjustment should not be
recorded as certified, the Court shall record the same accordingly.
17
[(2A) No payment or adjustment shall be recorded at the instance of the
judgment-debtor unless—
(a) the payment is made in the manner provided in the rule 1; or
(b) the payment or adjustment is proved by documentary evidence; or
(c) the payment or adjustment is admitted by, or on behalf of, the

decree-holder in his reply to the notice given under sub-rule (2) of
rule 1, or before the Court.]
18
(3) A payment or adjustment, which has not been certified or recorded as
aforesaid, shall not be recognised by any Court executing the decree. [P]
Bombay (Dadra and Nagar Haveli), Goa, Daman and Diu.—The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, part 4 Ka, Page 409
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., Series 1, No. 28, Page 382 (w.e.f.
1-4-1987).
In Order XXI, rule 2, for the existing sub-rule (2), substitute the following as sub-rule (2):
—
(2) The judgment-debtor or any person who has become surety for judgment-debtor
may also inform the Court by an application in writing supported by an affidavit of such
payment or adjustment and apply to the Court to issue a notice to the decree-holder to
show cause on a date to be fixed by the Court, why such payment or adjustment should
not be recorded as certified; and if, after service of such notice, the decree-holder fails
to show cause why the payment or adjustment should not be recorded as certified, the
Court shall record the same accordingly. (1-10-1983)
Delhi.—Same as that of Punjab. See Act 26 of 1966, Sections 7 and 17.
Kerala, Laccadive, Minicoy and Amindivi Islands.—In sub-rule (2) for the word "The
judgment-debtor" substitute the words "Any party to the suit or his legal representative
or any person who has become surety for the decree-debt." (9-6-1959).
Jurisdiction of Kerala High Court has been extended to the Union Territory of
Laccadive, Minicoy and Amindivi Islands by Section 60 of Act 37 of 1956.
Madras and Pondicherry.—Substitute the following for the existing sub-rule (2):-
"Any party to the suit or his legal representatives or any person who has become surety
for the decree-debt also may inform the Court of such payment or adjustment and
apply to the Court to issue a notice to the decree-holder to show cause, on a day to be
fixed by the Court, why such payment or adjustment should not be recorded as
certified; and if, after service of such notice, the decree-holder fails to show cause why
the payment or adjustment should not be recorded as certified, the Court shall record
the same accordingly."
Orissa.—Same as in Patna (i)
Patna.—(i) In sub-rule (2) for the words "and if, after service of such notice" substitute
"and where certification has been made by an endorsement of such payment or
adjustment by the decree-holder or by any person authorised by him in that behalf upon
the process issued by the Court, the Court shall issue such notice of its own motion. If
after service of the notice."
(ii) Delete sub-rule (3) (5-4-1961).

Relief of Indebtedness Act, 1934; Punjab Act VII of 1934, S. 36, dated 19-4-1935 read with
Punjab Act XLIV of 1960, S. 3 dated 30-12-1960. See also Act 31 of 1966 Ss. 29 and 32,
dated 1-1-1966.
Omitted sub-rule (3). (19-4-1935)
COMMENT.—
This rule contemplates adjustment of the decree consent, express or implied. Where
there is no evidence of any consent on the part of the appellant who was never willing
to take the wife back and resume conjugal relations, O XXI rule 2 does not apply. There
is no antithesis between section 47 and rule 2 of O XXI. The former deals with the
power of Court and the latter with the procedure to be followed in respect of a limited
class of cases relating to discharge or satisfaction of decrees.19
Independently of O XXII rule 3, the provisions of O XXI, rule 2 and section 47 enable the
executing Court to record and enforce a compromise in execution proceedings.20
In sub-rule (1) of this rule 2, for the words "or the decree is otherwise adjusted" the
words "or a decree of any kind is otherwise adjusted", have been substituted.
In sub-rule (2) of this rule 2, the words "the judgment-debtor", the words "or any other
person who has become surety for the judgment-debtor" have been inserted. This rule
has been amended in order to make it clear that the rule applies to decrees of all kinds.
Payment out of Court.—
The payment of decretal amount by the collector of customs to Income tax authorities
in response to notice under IT Act was held to be legally valid payment out of Court and
adjustment should be recorded.21
The two essential conditions of rule 2(2) are that intimation should be given to the
Court within the specified time and that the decree-holder is given an opportunity to put
his case before Court. A prayer for recording adjustment is not an essential ingredient
of rule 2(2) of O XXI.22
Limitation.—
The provisions of section 5 of Limitation Act, 1963 would not be attracted in the case
of an application under rule 2 of O XXI of the Code made beyond the prescribed period
of limitation. Therefore, the compromise having not being presented within time before
executing Court for recording adjustment of the decree, will not affect executability of
the decree in favour of the respondent and this execution is not liable to be dismissed
on the basis of the said compromise.23
Second claim is not set off if it arises out of a separate contract.—
Where there is a decree in pursuance to an award in respect of a portion of a contract,

the amount which may be due against the other party in respect of the same contract,
can be set off against the decretal amount. The balance may, however, be claimed. If
the second claim arises out of a separate contract between the same parties, then it
cannot be set off.24
Decree, held, not superseded.—
Where in the execution of decree for eviction a plea is raised by the tenant that the
possession was already delivered to landlord's attorney who permitted him to continue
in possession as licencee, the decree is not superseded due to such an agreement.25
Execution of arbitration award.—
Rule 2-A was inserted in order to provide that any payment of money under a decree or
adjustment of decree shall not be recorded by the Court unless it is either made in
accordance with rule 1 or is proved by documentary evidence or is admitted by the
decree-holder.
15 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for certain
words, (w.e.f. 1-2-1977).
16 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for certain words,
(w.e.f. 1-2-1977).
18 In Punjab sub-rule (3) repealed by the Punjab Relief of Indebtedness Act 7 of 1934, section
36. Also in Delhi and HP.
19 MP Shreevastava v Yeena, AIR 1967 SC 1193 : (1967) 1 SCR 147 : 1967 ALJ 423 : 1967 BLJR
487 .
20 Motilal v Mohd Hassan, AIR 1968 SC 1087 (1089) : (1968) 3 SCR 158 : (1968) 2 An LT 220.
21 Collector of Customs v Soorajmal, AIR 1970 SC 118 (121) : (1969) 1 SCC 858 .
22 Chengayya v Chenga, AIR 1959 AP 632 (FB).
23 Shyam Lal v Shanti Devi, AIR 2008 All 174 (176), See also PK Singh v SN Kanungo, (2010) 4
SCC 504 (507).
24 Lakshmichand & Balchand v State of AP, AIR 1987 SC 20 : (1987) 1 SCC 19 .
25 Sultana Begam v Prem Chand Jain, AIR 1997 SC 1006 (1013) : (1997) 1 SCC 373 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Lands situate in more
than one jurisdiction
© 2020 LexisNexis
THE FIRST SCHEDULE
Courts Executing Decrees
R. 3.
Lands situate in more than one jurisdiction
Where immovable property forms one estate or tenure situate within the local limits
of the jurisdiction of two or more Courts, any one of such Courts may attach and sell
the entire estate or tenure.
COMMENT.—
There is no specific procedure or formula for recording the compromise in this rule. But
an order dismissing the execution petition as withdrawn cannot be taken as recording
of the compromise by the executing Court.26
26 Lakshmi Narayanan v SS Pandian, AIR 2000 SC 2757 (2762) : (2000) 7 SCC 240 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Transfer to Court of
Small Causes
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Transfer to Court of Small Causes
Where a decree has been passed in a suit of which the value as set forth in the plaint
did not exceed two thousand rupees and which, as regards its subject-matter; is not
excepted by the law for the time being in force from the cognisance of either a
Presidency or a Provincial Court of Small Causes, and the Court which passed it
wishes it to be executed in Calcutta, Madras, 27[or Bombay,] [B] such Court may send
to the Court of Small Causes in Calcutta, Madras, '[or Bombay,] [B] as the case may be,
the copies and certificates mentioned in rule 6; and such Court of Small Causes shall
thereupon execute the decree as if it had been passed by itself.
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., Series 1, No. 28, Page 382 (w.e.f.
1-4-1987).
In Order XXI, for the existing rule 4 and its marginal note, substitute the following as
"4. Transfer to Court of Small Causes.—(1) Where a decree has been passed in a suit
of which the value as set forth in the plaint did not exceed two thousand rupees and
which, as regards its subject-matter, is not excepted by the law, for the time being in
force from the cognisance of either a Presidency or a Provincial Small Causes Court
and the Court which passed it wishes it to be executed in Calcutta or Madras, such
Court may send to the Court of Small Causes in Calcutta or Madras, as the case may
be, the copies and certificates mentioned in rule 6, and such Court of Small Causes
shall thereupon execute the decree as if it had been passed by itself.
(2) A decree in a suit of the nature described in sub-rule (1) but in which the value as
set forth in the plaint did not exceed ten thousand rupees may be sent for execution to
and be executed by the Presidency Court of Small Causes at Bombay in the manner
prescribed in sub-rule (1)."
Gujarat.—The following amendments were made by Gujarat Gazette, dated 17-8-1961.
In rule 4—
(i) Delete the words "or Bombay" wherever they occur;
(ii) renumber rule 1 as sub-rule (1); and
(iii) add as sub-rule (2), the following:—

"(2) A decree in a suit of the nature described in sub-rule (1) but in which the value as
set forth in the plaint did not exceed rupees three thousand may be sent for execution
to and be executed by the Presidency Court of Small Causes at Bombay in the manner
prescribed in sub-rule (1)."
27 Subs. by the A.O. 1937, for "Bombay and Rangoon".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 5. Mode of Transfer
© 2020 LexisNexis
THE FIRST SCHEDULE
28[R. 5.
Mode of Transfer
Where a decree is to be sent for execution to another Court, the Court which passed
such decree shall send the decree directly to such other Court whether or not such
other Court is situated in the same State, but the Court to which the decree is sent for
execution shall, if it has no jurisdiction to execute the decree, send it to the Court
having such jurisdiction.]
COMMENT.—
The previous rule 5 was substituted by the present rule in order to provide for the
transfer of decree directly to the other Court, and if the other Court has no jurisdiction
to execute the decree, duty has been imposed on that Court to transfer the decree to
the Court having jurisdiction to execute it.
Rule 5 has no application to execution of decrees of foreign Courts and it is immaterial

that the Court was not a foreign Court when the decree was passed, if at the time of
the transfer it has become a foreign Court.29
Where the Court to which the decree is to be sent is situate in a different district, it
should be sent to the District Court to the District in which the decree is to be executed,
for transmission to the Court by which the decree is be executed.30
28 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for rule 5, (w.e.f.
1-2-1977).
29 Kamini Kumar v State of Assam, AIR 1952 Ass 138 .
30 AIR 1953 Raj 204 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Procedure where Court
desires that its own decree shall be executed by another Court Mode of Transfer
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Procedure where Court desires that its own decree shall be executed by
another Court Mode of Transfer
The Court sending a decree for execution shall send—
(a) a copy of the decree; [OR, P]
(b) a certificate setting forth that satisfaction of the decree has not been obtained
by execution within the jurisdiction of the Court by which it was passed, or,
where the decree has been executed in part, the extent to which satisfaction
has been obtained and what part of the decree remains unsatisfied; and
(c) a copy of any order for the execution of the decree, or, if no such order has
been made, a certificate to that effect. [A]
[Rule amended in Orissa & Pat; sub-rule (2) in All; rule 6A inserted in Madras.]
Allahabad (Notfn. No. 4084/35(a)-3(7); 24-7-1926). —Renumber rule 6 as 6(1) and add
the following sub-rule (2):—
"(2) Such copies and certificates may, at the request of the decree-holder, be handed
over to him or to such person as he appoints, in a sealed cover to be taken to the Court
to which they are to be sent.
Karnataka. —The following amendments were made by Mysore Small Cause Courts Act,
1964 (Mysore Act 11 of 1964) S. 27.
For modification of the rule in relation to Small Causes Court, Mysore, see Mysore
Small Causes Courts Act (Mysore Act 11 of 1964), Section 27.
Madras : Pondicherry—Insert the following as rule 6A:—
"6A. A copy of the judgment bearing the formule executoire, sent by a Court in the Union
Territory of Pondicherry, shall be deemed to be a decree and to comply with the
requirements of rule 6 :
Provided that notwithstanding anything contained in rule 2, where any question as to

the satisfaction of (or) the discharge, in whole or in part, of such a decree arises, the
Court executing the decree shall decide it." (15-3-1967).
Patna.— Insert the following words after the word "decree" in clause (a) of rule 6:—
and a copy of the suit register relating to the suit in which the decree was passed and a
memorandum showing the costs allowed to the decree-holder subsequent to the
passing of the decree."
COMMENT.—
It is well settled that an order of transfer under this rule takes effect from the date when
it is made and that the omission to send a copy of the decree to the Court executing
the decree does not prevent the decree-holder from applying the Court for execution.31
The omission to transmit to the Court executing the decree the certificate referred to in
clause (b) is not a "material" irregularity within the meaning of rule 20 of this Order. The
Supreme Court has held that the omission to send a copy of the decree under clause
(a) or a certificate of non-satisfaction under clause (b) does not affect the validity of
the proceeding taken in the transferee Court and that an auction sale is not liable to be
set aside for non-compliance with this rule.32
Nature of judgment on admission.—
Judgment on admission is discretionary and not mandatory.33
31 Jagat Kishore v Surendra Kumar, AIR 1963 Pat 461 .

32 Mohanlal v Benoy Krishna, AIR 1953 SC 65 : 1953 SCR 377 : (1953) 1 MLJ 449 : 1953 MWN
328 .
33 Express Towers P Ltd v Mohan Singh, AIR 2008 (NOC) 65 (Del) (DB); FAO (OS) Nos 605-06 of
2006, dt 7 September 2007.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Court receiving copies of
decree, etc., to file same without proof
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Court receiving copies of decree, etc., to file same without proof
The Court to which a decree is so sent shall cause such copies and certificates to be
filed, without any further proof of the decree or order for execution, or of the copies
thereof, unless the Court, for any special reasons to be recorded under the hand of
the Judge, requires such proof.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. which it is sent or order
by Court to Execution of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
which it is sent or order by Court to Execution of decree
Where such copies are so filed, the decree or order may, if the Court to which it is sent
is the District Court, be executed by such Court or be transferred for execution to any
subordinate Court of competent jurisdiction.
COMMENT.—
Judicial opinion is divided on the question whether an execution petition claiming a

certain amount be transferred to a Court, when the amount exceeds its pecuniary
jurisdiction. The High Court of Calcutta, Patna and Orissa hold that it can be
transferred,34 while the High Courts of Madras and Allahabad hold otherwise.35
34 Shamsunder v Ananta Bandu, 37 Cal 574; see also Anohalli v Firm Brij Mohan Lal, AIR 1936
Pat 177 and Matrumal v Madan Lal, AIR 1957 Ori 177 : (1957) Cut 287.
35 Shanmuga v Ramanathan, 17 Mad 309; see also Shantilal v Jamni Kuer, AIR 1940 All 331 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Execution by High
transferred by other Court Court of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Execution by High transferred by other Court Court of decree
Where the Court to which the decree is sent for execution is a High Court, the decree
shall be executed by such Court in the same manner as if it had been passed by such
Court in the exercise of its ordinary original civil jurisdiction. [K]
Kerala (Noifn No B1-3312/58; 9-6-1959).—Omit the rule.

execution
© 2020 LexisNexis
THE FIRST SCHEDULE
Application for Execution
R. 10.
Application for execution
Where the holder of a decree desires to execute it, he shall apply to the Court which
passed the decree or to the officer (if any) appointed in this behalf, or if the decree
has been sent under the provisions hereinbefore contained to another Court then to
such Court or to the proper office thereof. [D, HP, PU]
[Proviso added in Delhi, HP & Punjab]
Punjab (Notfn No 125-Gaz XI-Y-14, of 7-4-1932).— Substituted rule has the following
proviso added to the existing rule:—
"Provided that if the judgment-debtor has left the jurisdiction of the Court which passed
the decree, or of the Court to which the decree has been sent, the holder of the decree
may apply to the Court within whose jurisdiction the judgment-debtor is, or to the
officer appointed in this behalf, to order immediate execution on the production of the
decree and of an affidavit of non-satisfaction by the holder of the decree pending the
receipt of an order of transfer under Section 39".
COMMENT.—
An execution Court cannot go beyond decree. A question whether relief granted by the
High Court could have been granted or not, cannot be agitated in the execution
proceedings.36
Where an ex parte decree passed by Court A was transferred to Court B for execution,
and while execution proceedings were pending in that Court, Court A set aside the ex
parte decree, and on rehearing a fresh decree was passed on the same terms, the
execution proceedings in Court B came to an end when the original decree was set
aside, and the fresh decree cannot be executed by the Court without a fresh order of
transfer.37
36 Food Corporation of India v SN Nagarkar, AIR 2002 SC 808 (811) : (2002) 2 SCC 475 : (2002)
1 SLR 739 : (2002) 1 LLN 1165 .
37 GS Patnaik v Nisal, 1955 Bom 99.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Oral application
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Oral application
(1) Where a decree is for the payment of money the Court may, on the oral
application of the decree-holder at the time of the passing of the decree, order
immediate execution thereof by the arrest of the judgment-debtor, prior to the
preparation of a warrant if he is within the precincts of the Court. [OR, P]
Written application
(2) Save as otherwise provided by sub-rule (1) [OR, P] every application for the
execution of a decree shall be in writing, signed and verified by the applicant or
by some other person proved to the satisfaction of the Court to be acquainted
with the facts of the case, and shall contain in a tabular form the following
particulars, namely:—
(a) the number of the suit;
(b) the names of the parties; [P]
(c) the date of the decree; [P]
(d) whether any appeal has been preferred from the decree; [P]
(e) where any, and (if any) what, payment or other adjustment of the matter
in controversy has been made between the parties subsequently to the
decree;
(f) whether any, and (if any) what, previous applications have been made for
the execution of the decree, the dates of such applications and their
results; [A, P]
(ff) [AP, KNT, K, M]
(g) the amount with interest (if any) due upon the decree, or other relief
granted thereby, together with particulars of any cross-decree, whether
passed before or after the date of the decree sought to be executed;
(h) the amount of the costs (if any) awarded; [P]
(i) the name of the person against whom execution of the decree is sought;
and
(j) the mode in which the assistance of the Court is required, whether—
(i) by the delivery of any property specifically decreed;
38
[(ii) by the attachment, or by the attachment and sale, or by the sale
without attachment, or any property;]
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require. [A, AP,
KNT, K, MP, M]
(3) The Court to which an application is made under sub-rule (2) may require the
applicant to produce a certified copy of the decree. [A]
Allahabad ( i ) (Notfn No 4048/35(a)-3(7); 24-7-1926). —For clause (f) of sub-rule (2)

substitute the following:—
"(f) The date of the last application, if any".
and add the following proviso to sub-rule (2):—
"Provided that when the applicant files with his application a certified copy of the
decree, the particulars specified in clauses (b), (c) and (h), need not be given in the
application."
(ii) (Notfn. No 92/X-14; 19-5-1956) add the following as sub-rule (4):—
"(4) Where a decree for money is sought to be executed under sub-rule (2) by the arrest
and detention in prison of the judgment-debtor, the application shall also state on
which of the grounds mentioned in the proviso to Section 51, detention is claimed."
Karnataka.—(i) after clause (f), insert clause (ff) as in Madras with the omission of the
word "original" before "decree-holder".
(ii) after clause (j), (v) insert para as in Madras. [30-3-1967].
Kerala (Lakshadweep Islands).— The following amendments were made by Kerala Act,
dated 9-6-1959.
In rule 11, in sub-rule (2)—
(i) after clause (f) the following clause shall be inserted, namely:—
"(ff) whether the original decree-holder has transferred any part of his interest in
the decree, and if so, the date of the transfer and the name and address of the
parties to the transfer."
(ii) for clause (j) the following shall be substituted, namely:-
(j) the mode in which the assistance of the Court is required whether—
(i) by the delivery of any property, specifically decreed;
(ii) by the attachment and sale, by sale without attachment, of any property;
(iii) by the arrest and detention in prison of any person;
(iv) by the appointment of a receiver;
(v) otherwise, as the nature of the relief granted may require.

In an execution petition praying for relief by way of attachment of a decree of the
nature specified in sub-rule (1) of rule 53 of this order, there shall not be included any
other relief mentioned in this clause".
Madhya Pradesh (Notfn. No 3409; 26-6-1943).—Add the following proviso to sub-rule

(2):—"Provided that, when the applicant files with his application a certified copy of the
decree the particulars specified in clauses (b), (c), and (h) need to be given in the
application."
Madras (P Dis No 776 of 1929).—(a) In sub-rule (2) of rule 11 between clauses (f) and
(g) insert the following new clause:—
"(ff) whether the original decree-holder has transferred any part of his interest in the
decree and if so, the date of the transfer and the name and address of the parties to the
transfer".
G O Ms No 2084-Home of 2-9-1936—H C P Dis No 691 of 13-10-1936).—(b) Add the

following to sub-rule (2)(j) after clause (v):—
"In an execution petition praying for relief by way of attachment of a decree of the
nature specified in sub-rule (1) of rule 53 of this Order, there shall not be included any
other relief mentioned in this clause".
(c) Add the following proviso at the end of sub-rule (2):—
"Provided that when the applicant files with his application a certified copy of the
decree, the particulars specified in clauses (b), (c) and (h) need not be given in the
application".
III-A, Page 69.
Orissa Amendment to rule 11 deleted.
Patna.— (a) Add the following as sub-rule (1A) to rule 11:—
"(1A) Where an order has been made under Section 39 for the transfer of a decree for
the payment of money for execution to a Court within the local limits of the jurisdiction
of which the judgment-debtor resides, such Court may, on the production by the decree-
holder of a certified copy of the decree and an affidavit of non-satisfaction forthwith
order immediate execution of the decree by the arrest of the judgment-debtor".
(b) Substitute the words and figures "sub-rules (1) and (1A)" for the words and figure "sub-
rule (1)" in line 1 of sub-rule (2) of rule 11.
(c) Delete clauses (b), (c), (d), (f) and (h) of sub-rule (2). (5-4-1961)
COMMENT.—
In this rule 11, the previous sub-rule (2)(j)(ii) provided for mentioning "attachment and
sale" or "sale without attachment" in the application for the execution but did not
expressly mention simple attachment. The rule has been amended accordingly in order
to provide for mentioning simple attachment.
Mode of Court's assistance required, must be specified.—

An application not specifying any of the several modes in which Court's assistance is
required is defective. If the objection is not taken before the Court, which could then
have returned the application, then it is not open to the appellant to contend in a later
stage that the application is not maintainable.39
Decree-holder to obtain knowledge of judgment debtor's properties.—
There is no obligation on the judgment-debtor to post the decree-holder with all the
details of his properties. It is the decree-holder's business to gather knowledge about
the properties so that he can realise the fruits of his decree.40
It has been held by a Full Bench of the Madras High Court that the right to apply under
O XXI, rule 11 for execution of a foreign judgment accrues on and from the date of filing
certified copy under section 44-A (2) and for this purpose non-filing of a non-
satisfaction certification under section 44-A (2) is not relevant.41
The Supreme Court has held that a composite application for execution of a decree for
possession with a prayer for a relief by way of mesne profit on the basis of a stay order
granted by the High Court on appeal is maintainable.42
Starting point of limitation is date of decree.—
In an execution decree starting point of limitation is date of decree and not date on
which decree is actually drawn and signed.43
38 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for sub-clause
(ii) (w.e.f. 1-2-1977).
39 Jugalkishore v Raw Cotton Co, AIR 1955 SC 376 (395) : (1955) 1 SCR 1369 : (1955) 1 MLJ
(SC) 220.
40 Yeshwant v Walchand, AIR 1951 SC 16 (21) : (1950) SCR 852 : 53 Bom LR 486.
41 Sheikh Ali v Sheikh Mohd, AIR 1967 Mad 45 (FB).
42 Pashupawatibai v Ratansi, AIR 1967 SC 761 : 1963 MPLJ 681 .
43 WB Essential Commodities Supply Corpn v Swadesh Agro F&S Pvt Ltd, AIR 1999 SC 3421
(3426) : (1999) 8 SCC 315 ; overruled Ramakrishna Tarafdar v Nemai Krishna Tarafdar, AIR 1974
Cal 173 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 11A. Application for arrest
to state grounds
© 2020 LexisNexis
THE FIRST SCHEDULE
44[R. 11A.
Application for arrest to state grounds
Where an application is made for the arrest and detention in prison of the judgment
debtor, it shall state, or be accompanied by an affidavit stating, the grounds on which
arrest is applied for.]
COMMENT.—
Rule 11-A has been added newly. The reason for its addition is that section 51 of the
Code of Civil Procedure provides that the Court should be satisfied with regard to
certain grounds before a person can be arrested and retained in prison in execution of
a decree. Consequently, the application for the execution of the decree by arrest and
detention of the judgment-debtor should state the grounds for the arrest. New rule 11-A
has been inserted to achieve this object.

attachment of movable property not in judgment-debtor’s possession
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Application for attachment of movable property not in judgment-debtor's
possession
Where an application is made for the attachment of any movable property belonging
to a judgment-debtor but not in his possession, the decree-holder shall annex to the
application an inventory of the property to be attached, containing a reasonably
accurate description of the same.
COMMENT.—
It has been held by the Supreme Court that there is no obligation on the judgment-
debtor to furnish the decree-holder with information about his properties.4
4 Cheema Goods Transport Company v Marudamalai Sri Murugan Textiles, AIR 1999 SC 796
(797, 798) : (1999) 2 SCC 68 .

attachment of immovable property to contain certain particulars
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Application for attachment of immovable property to contain certain
particulars
Where an application is made for the attachment of any immovable property

belonging to a judgment-debtor, it shall contain at the foot—
(a) a description of such property sufficient to identify the same and, in case such
property can be identified by boundaries or numbers in a record of settlement
or survey, a specification of such boundaries or numbers; and
(b) a specification of the judgment-debtor's share or interest in such property to

the best of the belief of the applicant, and so far as he has been able to
ascertain the same.
COMMENT.—
This rule is mandatory and an execution petition which does not give the particulars
required by this rule is not one in accordance with law for purpose of limitation46 nor
can a plea of lis pendens be founded on such a petition.47 But where it is amended
under an order of a Court, and the defect cured, that will relate back to the date of the
original presentation.48 This rule has no application to petitions for sale of properties
which have been charged for the payment of the decretal amount,49 or of properties
which had been already attached.50
Rejection of highest bid.—
The highest bidder was permitted to withdraw his earnest money of Rs. 676 crores but
later offered to keep it deposited while filing appeal that his bid be accepted by
modifying reserve price which appeared to have been erroneously fixed.51
46 Arunachala v Raghava (1940) 1 MLJ 477 .

47 Raj Kishore Lal v Sultan Jehan, AIR 1953 Pat 58 : 31 Pat 722.
48 Subhash Chandra Dev v Subhashini Devi, AIR 1959 Ass 25 .
49 Apparao v Daniel, AIR 1955 Trav Co 109.
50 Baliram Narayan v Sakharam Ramji, AIR 1940 Bom 250 .
51 Shakharamseth Employees Union v ICICI Bank Ltd, 2010 (1) Bom CR 239 (245-254) (DB).

certified extract from Collector’s register in certain cases
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Power to require certified extract from Collector's register in certain cases
Where an application is made for the attachment of any land which is registered in the
office of the Collector, [K] the Court may require the applicant to produce a certified
extract from the register of such office, specifying the persons registered as
proprietors of, or as possessing any transferable interest in, the land or its revenue, or
as liable to pay revenue for the land, and the shares of the registered proprietors.
Kerala (Lakshadweep).—The following amendments were made by Kerala Gazette, dated

9-6-1959.
(i) In rule 14, for the marginal note the following shall be substituted:— "Power to
require certificate extracts from the Registers of Revenue Accounts."
(ii) For the words "in the office of the Collector" in the rule, the words "in the Revenue
Accounts" shall be substituted. (9-6-1959); Act 37 of 1956, Section 60 and
Regulation 8 of 1965, Section 3.
COMMENT.—
The provisions of this rule are mandatory.52 This rule leaves it to the option of the Court
to require the applicant to produce a certified extract.53
52 AIR 1943 PC 98 .
53 AIR 1943 PC 98 .

execution by joint decree-holder
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Application for execution by joint decree-holder
(1) Where a decree has been passed jointly in favour of more persons than one,
any one or more of such persons may, unless the decree imposes any
condition to the contrary, apply for the execution of the whole decree for the
benefit of them all, or, where any of them has died, for the benefit of the
survivors and the legal representatives of the deceased.
(2) Where the Court sees sufficient cause for allowing the decree to be executed
on an application made under this rule, it shall make such order as it deems
necessary for protecting the interests of the persons who have not joined in
the application.
COMMENT.—
A joint decree holder can execute a decree in its entirety but if whole of the decree
cannot be executed, this rule is of no avail.54
A decree jointly passed in favour of more persons than one is a joint decree. A and B
obtain a decree against C for Rs. 5,000, this is a joint decree. It is nonetheless a joint
decree, because the shares of A and B in the decretal amount have been determined by
the decree. Thus, it is determined by the decree that the share of A is Rs. 2,000 the
decree is still a joint decree. It has, however, been observed that when the interest of
the several decree-holders have been ascertained and separately provided for in the
decree, it cannot be said to be a joint decree.55
54 Jagdish Dutta v Dharam Pal, AIR 1999 SC 1694 (1696) : (1999) 3 SCC 644 .
55 Walchand v Manekbhai, AIR 1952 Bom 137 : 51 BLR 608.

execution by transferee of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Application for execution by transferee of decree
Where a decree or, if a decree has been passed jointly in favour of two or more
persons, the interest of any decree-holder in the decree is transferred by assignment
in writing or by operation of law, the transferee may apply for execution of the decree
to the Court which passed it; and the decree may be executed in the same manner and
subject to the same conditions as if the application were made by such decree-holder:
Provided that, where the decree, or such interest as aforesaid, has been transferred by
assignment, notice of such application shall be given to the transferor and the
judgment-debtor, [C, GAU] and the decree shall not be executed until the Court has
heard their objections (if any) to its execution [OR, P] :
Provided also that, where a decree for the payment of money against two or more
persons has been transferred to one of them, it shall not be executed against the
others. [B, G]
56[ Explanation.— Nothing in this rule shall affect the provisions of Section 146, and a
transferee of rights in the property, which is the subject-matter of the suit, may apply
for execution of the decree without a separate assignment of the decree as required
by this rule.]
Bombay (Dadra and Nagar Haveli), Goa, Daman and Diu. —The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, (1-10-1983) Part 4 Ka,
Page 410; Goa Gazette, dated 12-10-1987; Extra., Serial 1, No. 28, Page 382 (w.e.f. 1-4-
1987).
For rule 16 and its marginal note, substitute the following:-
"16. Application for execution by transferee of decree.—Where a decree or if a decree

has been passed jointly in favour of two or more persons the interest of any decree-
holder in the decree is transferred by assignment in writing or by operation of law, the
transferee may apply for execution of the decree to the Court which passed it, or to the
Court to which it has been sent for execution, and the decree may be executed in the
same manner and subject to the same conditions as if the application were made by
such decree-holder:
Provided that, where the decree or such interest as aforesaid, has been transferred by
assignment, notice of such application shall be given to the transferor and the
judgment-debtor, and the decree shall not be executed until the Court has heard their
objections (if any) to its execution:
Provided further that where the transferee Court holds the assignment provided, it shall
forthwith communicate its decision in that behalf of the Court which passed the
decree, and the latter Court shall make an entry in the Register of Suits indicating that
the assignment has been held to be proved:
Provided also that, where the decree for the payment of money against two or more
persons has been transferred to one of them, it shall not be executed against the
others.
Explanation I.—In an application under this rule, any payment of money made under a
decree, or any adjustment in whole or in part of the decree arrived at to the satisfaction
of the decree-holder, which payment or adjustment has not been certified or recorded
by the Court under rule 2 of this Order, shall not be recognised by the Court entertaining
the application.
Explanation II.—Nothing in this rule shall affect the provisions of Section 146, and a
transferee of rights in the property, which is the subject-matter of the suit, may apply
for execution of the decree without a separate assignment of the decree as required by
this rule."
Calcutta (Notfn. No. 3516-G, of 3-2-1933).—In the first proviso for the words "and the
decree....to its execution" substitute.
"and until the Court has heard their objections (if any) the decree shall not be executed
provided that if, with the application for execution, an affidavit by the transferor
admitting the transfer or an instrument of transfer duly registered be filed, the Court
may proceed with the execution of the decree pending the hearing of such objections."

Calcutta.
Gujarat.—Add Explanation as in Bombay.
dated 16-9-1960.
After the words, "which passed it" insert the words "or to any Court for which it has
been sent for execution".
Patna.—(a) Add the words "or to the Court to which the decree has been sent for
execution, as the case may be" after the words "to the Court which passed it;"
(b) Delete the words "and the judgment-debtor" from the first proviso and in the second
proviso; after the word "transferor", insert the words "unless an affidavit of the
transferor admitting the transfer is filed with the application" and substitute the word
"his" for the word "their" and the word "objection" for the word "objections".
In the first proviso the words "and the judgment-debtor" which were deleted are
reinstated and the word "their" is substituted for the word "his". Thus the first proviso as
now stands is the same as that in the Central Code.
COMMENT.—
The only question to be decided on an application under this rule is whether the
applicant is the person entitled to execute the decree. The extent of his right and the
conditions on which he may in fact proceed to execute, are not touched by the rule. If
the application is granted, the applicant of acquires a right to execute the decree "in the
same manner and subject to the same conditions" as the decree-holder himself had.
This rule regulates procedure and does not affect substantive rights.
Order XXI, rule 16 postulates first that a decree has been passed and secondly that the
decree has been transferred (i) by assignment in writing or (ii) by operation of law.57
"Assignment".—
Order XXI, rule 16 by the first alternative, contemplates the actual transfer of a decree
by an assignment in writing executed after the decree is passed. While a transfer of or
an agreement to transfer a decree that may be passed in future may in equity entitle
the intending transferee to claim the beneficial interest in the decree after it is passed.
Such equitable transfer does not relate back to the prior agreement and does not
render the transferee, a transferee of the decree by an assignment in writing.58
"Operation of Law".—
The transfers "by operation of law" are not intended to be confined to eases of death,
devolution or succession. In order to constitute a transfer of property "by operation of
law" all that is necessary is that there must be a passing of one person's right in
property to another person, by the force of source law, statutory or otherwise.59
The explanation has been inserted to this rule in order to make it clear that the
provisions of the rule shall not affect section 146 and a transfer of the rights in the
property which is the subject-matter of the suit may apply for execution of the decree
without a separate assignment of the decree.
On the assignment of a decree, the property in the decree passes according to the deed
of assignment. The effectiveness of assignment does not depend on its recognition by
the Court. The transfer as between the original decree-holder and the transferee is
effected by the deed of assignment. If the judgment-debtor has notice of the transfer,
then he cannot defeat the transferee's right by entering into an adjustment with the
original decree holder.60
Directions in interlocutory order, not a nullity, if suit is dismissed subsequently.

—
Where a suit is subsequently dismissed, the legal effect of the Court's direction
contained in the interlocutory order would not become a nullity. Whatever happened
during the pendency of the suit and what actions taken pursuant to any orders passed
by the Court during the interregnum would remain a reality unless the Court itself
disturbs or modifies them.61
Representative of pre-emptor is entitled to execute the decree.—

A transferee from a pre-emptor obtaining a decree is a representative of the pre-
emptor. Such a transferee is entitled to execute the decree.62
56 Ins by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 (w.e.f. 1-2-1977).
57 Jugalkishore v Raw Cotton Co, AIR 1955 SC 376 (381) : (1955) 1 SCR 1369 : (1955) 1 MLJ
(SC) 220 : 58 Bom LR 517.
58 Jugalkishore v Raw Cotton Co, AIR 1955 SC 379 : (1955) 1 SCR 1369 : (1955) 1 MLJ (SC) 220
: 58 Bom LR 517.
59 Jugalkishore v Raw Cotton Co, AIR 1955 SC 391 : (1955) 1 SCR 1369 : (1955) 1 MLJ (SC) 220
: 58 Bom LR 517.
60 Dhani Ram Gupta v Sri Ram, AIR 1980 SC 157 (159) : (1980) 2 SCC 162 .
61 Gangabai Gopaldas Mohata v Fulchand, AIR 1997 SC 1812 (1814) : (1997) 10 SCC 387 .
62 Zila Singh v Hazari, AIR 1979 SC 1066 (1070) : (1979) 3 SCC 265 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Procedure on receiving
application for execution of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Procedure on receiving application for execution of decree
(1) On receiving an application for the execution of a decree as provided by rule

11, sub-rule (2), the Court shall ascertain whether such of the requirements of
rules 11 to 14 as may be applicable to the case have been complied with; and,
if they have not been complied with, 63[ the Court shall allow ] the defect to be
remedied then and there or within a time to be fixed by it.
64
[(1A) If the defect is not so remedied, the Court shall reject the application:
Provided that where, in the opinion of the Court, there is some inaccuracy
as to the amount referred to in clauses (g) and (h) of sub-rule (2) of rule 11,
the Court shall instead of rejecting the application, decide provisionally
(without prejudice to the right of the parties to have the amount finally
decided in the course of the proceedings) the amount and make an order
for the execution of the decree for the amount so provisionally decided.]
(2) Where an application is amended under the provisions of sub-rule (1), it shall
be deemed to have been an application in accordance with law and presented
on the date when it was first presented.
(3) Every amendment made under this rule shall be signed or initialled by the
Judge.
(4) When the application is admitted, the Court shall enter in the proper register a
note of the application and the date on which it was made, and shall, subject to
the provisions hereinafter contained, order execution of the decree according
to the nature of the application:
Provided that, in the case of a decree for the payment of money, the value of
the property attached shall, as nearly as may be, correspond with the amount
due under the decree [AP, KNT, K, M].
Allahabad.—Between the words "been complied with" and the "Court may" insert the
words "and if the decree-holder fails to remedy the defect within a time to be fixed by
the Court". (24-7-1926)

Calcutta (Andaman and Nicobar Islands).—In sub-rule (1), cancel the words "the Court
may reject the application or may allow the defect to be remedied then and there or
within a time to be fixed by it" and substitute therefor the following:-
"the Court shall allow the defect to be remedied then and there or within a time to be
fixed by it. If the defect is not remedied within the time fixed, the Court may reject the
application."

Ss 13, 15 (w.e.f. 1-12-1968) Act 81 of 1971, S. 28(1) dated 21-1-1972.
1967.
In rule 17 delete sub-rule (1) and substitute the following:
"(1) On receiving an application for the execution of a decree as provided by sub-rule

(2) of rule 11 of this Order, the Court shall ascertain whether such of the requirements
of Rules 11 to 14 as may be applicable to the case have been complied with; and if they
have not been complied with, the Court may reject the application, if the defect is not
remedied within a time to be fixed by the Court."
At the end of rule 17 add the following:—
"Provided that where an execution application is returned on account of inaccuracy in

the particulars required by rule 11(2)(g), the endorsement of return shall state what in
the opinion of the returning officer is the correct amount."
dated 16-9-1960.
In sub-rule (1) for the words "the Court may reject within a time to be fixed by it",
substitute the words "the Court may allow the defect to be remedied then and there, or
may fix a time within which it should be remedied and, in case the decree-holder fails to
remedy the defect within such time, the Court may reject the application".

dated 13-10-1936.
(1) For the words "or may allow fixed for it" in sub-rule (1) substitute the words "if the
defect is not remedied within a time to be fixed by it".
(2) Add the following proviso at the end of the rule:-
"Provided that where an execution application is returned on account of inaccuracy in

the particulars required under rule 11(2)(g), the endorsement of return shall state what
in the opinion of the returning officer is the correct amount."
Orissa amendment to rule 17 deleted.

Patna.—In sub-rule (1) substitute the following for the words "the Court may reject the
application, etc." at the end of the sub-rule:
"the Court shall allow the defect to be remedied then and there or within a time to be
fixed by it, and, if the decree-holder fails to remedy the defect within such time, the
Court may reject the application."
Gazette, dated 7-4-1932, Act 30 of 1966, Ss. 29 and 32, dated 1-11-1966.
For the words "the Court may reject to be fixed by it" in sub-rule (1) substitute the
following words:-
"The Court shall fix a time within which the defect shall be remedied, and if it is not
remedied within such time, the Court may reject the application."
1967.
After rule 17 and before rule 18 insert the following as rule 17A:—
"17A. Where an application is made to a Court for the execution of a decree or order
passed against a defendant in respect of whom service of summons has been
dispensed with under rule 31 of Order V, the Court shall ordinarily direct stay of
execution of the decree against such defendant till the expiry of a period of one year
after cessation of hostilities with the State in whose territory such defendant was
resident:
Provided that the Court may, if it considers that the interests of justice so require order
execution on such terms as to security or otherwise as it thinks fit."

dated 9-6-1959.
After rule 17, rule 17A is inserted; rule 17A same as that of Madras.

R.O.C., No. 2108 of 1944 B.I., dated 29-3-1945.
Add the following after rule 17(4):
"17A. Where an application is made to a Court for the execution of a decree or order
passed against a defendant in respect of whom service of summons has been
dispensed with under rule 31 of Order V, the Court shall ordinarily direct stay of the
execution of the decree or order against such defendant till the expiry of a period of
one year after cessation of hostilities with the State in whose territory such defendant
was resident:
Provided that the Court may, if it considers that the interests of justice so require order
execution on such terms as to security, or, otherwise as it thinks fit."
COMMENT.—
In sub-rule (1) of this rule, for the words "the Court may reject the application or may
allow" the words "shall allow" have been substituted. Sub-rule 1-A has been inserted
also.
This has been done in order to reduce the inconvenience to the parties. Now it has
been made obligatory on the part of the Court to give an opportunity to the applicant to
remedy the defect. Provision has also been made for the determination of the correct
amount before rejecting or proceeding with such application.
The rule requires a preliminary scrutiny of the execution application and if the
requirements of rules 11 to 14 are not complied with the Court may reject the
application, or allow time for its amendment. But that does not mean that after the
application has got on the file, the application cannot be amended with leave of the
Court,65 The Court has inherent power to allow amendment of execution applications,
apart from the provisions of O XXI rule 17, and this power should be liberally exercised
and amendments allowed unless there is inseparable bar such as limitation or gross
negligence.66 The Rroper course would be to allow amendments rather than dismiss
the application.67 Where the application does not give the particulars of the property to
be sold, the application may be allowed to be amended.68
Execution application with dead person's signature is defective.—
An execution application was filed with the signature of a dead person. Even on the
date when the executing Court took notice of the application after remand by the High
Court, the unamended execution application was time-barred. Such a defect in the
execution application cannot be cured and it has to be dismissed.69
words (w.e.f. 1-2-1977).
65 Nourangilal v Smirit Charubala, AIR 1932 Cal 766 : 140 IC 747.
66 Manindranath v Radha Syam, AIR 1953 Cal 676 ; see also Padhan v Sanyasi Sasamla, AIR
1957 Ass 5 .
67 Saraswati Bai v Govind Rao, AIR 1961 MP 145 (FB).
68 Shekendar Ali v Abdul Gofur, (1941) 12 Cal 251 ; Mahomedbhai v Dawoodbhai, AIR 1938 Bom
405 ; see also UOI v Ahmedabad Municipality, AIR 1972 Gau 61 (FB).
69 Jiwani v Rajmata Barantika, AIR 1994 SC 1286 (1289) : 1993 Supp (3) SCC 217 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Execution in case of
cross-decrees
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Execution in case of cross-decrees
(1) Where applications are made to a Court for the execution of cross-decrees in
separate suits for the payment of two sums of money passed between the
same parties and capable of execution at the same time by such Court, then—
(a) if the two sums are equal, satisfaction shall be entered upon both
decrees; and
(b) if the two sums are unequal, execution may be taken out only by the
holder of the decree for the larger sum and for so much only as remains
after deducting the smaller sum, and satisfaction for the smaller sum
shall be entered on the decree for the larger sum as well as satisfaction
on the decree for the smaller sum.
(2) This rule shall be deemed to apply where either party is an assignee of one of
the decrees and as well in respect of judgment-debts due by the original
assignor as in respect of judgment-debts due by the assignee himself.
(3) This rule shall not be deemed to apply unless—
(a) the decree-holder in one of the suits in which the decrees have been
made is the judgment-debtor in the other and each party fills the same
character in both suits; and
(b) the sums due under the decrees are definite.
(4) The holder of a decree passed against several persons jointly and severally
may treat it as a cross-decree in relation to a decree passed against him singly
in favour of one or more of such persons. [MP]
ILLUSTRATIONS
(a) A holds a decree against B for Rs. 1,000. B holds a decree against A for the payment
of Rs. 1,000 in case A fails to deliver certain goods at a future day. B cannot treat his
decree as a cross-decree under this rule.
(b) A and B, co-plaintiffs, obtain a decree for Rs. 1,000 against C, and C obtains a
decree for Rs. 1,000 against B, C cannot treat his decree as a cross-decree under this
rule.
(c) A obtains a decree against B for Rs. 1,000. C, who is a trustee for B, obtains a
decree on behalf of B against A for Rs. 1,000. B cannot treat C's decree as a cross-
decree under this rule.
(d) A, B, C, D and E are jointly and severally liable for Rs. 1,000 under a decree obtained
by F. A obtains a decree for Rs. 100 against F singly and applies for execution to the
Court in which the joint decree is being executed. F may treat his joint-decree as a
cross-decree under this rule.
[Rule substituted in MP.]
Madhya Pradesh (Notfn. No 3409: 29-6-1943).—Substitute the following for the existing
rule:—
"18. (1) Where decree-holders apply to a Court for execution of cross-decrees in

separate suits between the same parties for the payment of two sums of money
passed and capable of execution at the same time by such Court, then
(a) if the two sums are equal, satisfaction shall be entered upon both decrees;
(b) if the two sums are unequal, execution may be taken out only by the holder of the
decree for the larger sum and for so much only as remains after deducting the smaller
sum, and satisfaction for the smaller sum shall be entered on the decree for the larger
sum as well as satisfaction on the decree for the smaller sum:—
Provided that—
(i) each party fills the same character in both suits, and
(ii) the sums due under the decree are definite.
(2) This rule shall be deemed to apply when either applicant is an assignee of one of
the decrees as well in respect of judgment-debts due by the original assignor as in
respect of judgment-debts due by the assignee himself:
Provided that—
(i) where the decrees were passed between the same parties, each party fills the
same character in each suit;
(ii) where the decrees were not passed between the same parties, the decree-holder
in one of the suits is the judgment-debtor in the other suit and fills the same
character in both suits; and
(iii) the sums due under the decrees are definite.
(3) The holder of a decree passed against several persons jointly and severally may
treat it as a cross-decree in relation to a decree passed against him singly in favour of
one or more of such persons."(16-9-1960)
COMMENT.—
The meaning of sub-rule (1) may be explained by the following illustrations; A holds a
decree against B for Rs. 5,000. B holds a decree against A for Rs. 3,000. A and B each
applies for execution of his decree to Court X which has jurisdiction to execute both
decrees. The decrees being cross-decrees, they will be set off against each other.
Hence B, who is the holder of the decree for the smaller amount, will not be allowed to
take out execution of his decree. Execution will only be allowed to A's decree to the
extent of Rs. 2,000, being the difference between the amount of his (B's) decree. If the
decree held by B was also for Rs. 5,000 neither party should be allowed to take out
execution, and satisfaction should be entered upon both decrees.
This rule does not apply unless:
(1) the cross decrees are for the payment of two sums of money;
(2) the decrees have been obtained in separate suits;
(3) both the decrees are capable of execution at the time, and by the same Court;
and
(4) the decree-holder in one of the suits in which the decree has been passed is the
judgment-debtor in the other, and each party fills the same character in both the
suits.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Execution in case of
cross-claims under same decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 19.
Execution in case of cross-claims under same decree
Where application is made to a Court for the execution of a decree under which two
parties are entitled to recover sums of money from each other, then,—
(a) if the two sums are equal, satisfaction for both shall be entered upon the
decree; and
(b) if the two sums are unequal, execution may be taken out only by the party
entitled to the larger sum and for so much only as remains after deducting the
smaller sum, and satisfaction for the smaller sum shall be entered upon the
decree.
COMMENT.—
This rule is not applicable in a money decree in favour of plaintiff on khata account and
to the decree for cross-claim by the defendant for value of goods supplied since they
were separate decrees and also they were not passed at the same time.70
The point to be noted is that in the case of cross-claims under the same decree,
execution may be taken out only by the party entitled to the larger sum. The party
entitled to the smaller sum is not entitled to take out execution. It follows from this that
if A is entitled to recover from B mesne profits amounting to Rs. 445 under a decree,
and B is entitled to recover from A under the same decree costs amounting to Rs. 855,
A being entitled to the smaller sum cannot take out execution against B.
(1997) 84 Cut LT 663.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Cross-decrees and
cross-claims in mortgage suits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Cross-decrees and cross-claims in mortgage suits
The provisions contained in rules 18 and 19 shall apply to decrees for sale in
enforcement of a mortgage or charge.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. Simultaneous
execution
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 21.
Simultaneous execution
The Court may, in its discretion, refuse execution at the same time against the person
and property of the judgment-debtor.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 22. Notice to show cause
against execution in certain cases
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 22.
Notice to show cause against execution in certain cases
(1) Where an application for execution is made—
(a) more than 71[ two years ] after the date of the decree, or
(b) against the legal representative of a party to the decree 72[or where an
application is made for execution of a decree filed under the provisions
of Section 44A], 73[ or ]
74
[(c) against the assignee or receiver in insolvency, where the party to the
decree has been adjudged to be an insolvent,]
the Court executing the decree shall issue a notice to the person
against whom execution is applied for requiring him to show cause,
on a date to be fixed, why the decree should not be executed against
him:
Provided that no such notice shall be necessary in consequence of

more than 70[ two years ] having elapsed between the date of the
decree and the application for execution if the application is made
within 70[two years ] from the date of the last order against the party
against whom execution is applied for, made on any previous
application for execution, or in consequence of the application being
made against the legal representative of the judgment-debtor, if upon
a previous application for execution against the same person the
Court has ordered execution to issue against him. [AP, K, M, OR, P]
(2) Nothing in the foregoing [KNT] sub-rule shall be deemed to preclude the Court
from issuing any process in execution of a decree without issuing the notice
thereby, prescribed, if, for reasons to be recorded it considers that the issue of
such notice would cause unreasonable delay or would defeat the ends of
justice. [A, AP, D, HP, KNT, K, MP, M, PU]
(3) [B, C, GAU, OR, P]
Allahabad (Notfn. No. 4084/35(a)-3(7); 24-7-1926).—To sub-rule (2) add the following
proviso:—
"Provided that no order for the execution of a decree shall be invalid by reason of the
omission to issue a notice under this rule, unless the judgment-debtor has sustained
injury by reason of such omission."
Allahabad.—Amendments dated 1-6-1957.—(1) Omit Clause (a) of sub-rule (1) and from
the Proviso to sub-rule (1) delete the word beginning from "in consequence of more
than one year" to "made on any previous application for execution, or".
(2) Omit the letter and the brackets "(b)".
(3) To sub-rule (2) of this rule shall be added the following proviso:
"Provided that no order for the execution of a decree shall be invalid by reason of the
omission to issue a notice under this rule, unless the judgment-debtor has sustained
injury by reason of such omission."
Andhra Pradesh.—Same as in Madras. Bombay.—Insert sub-rule (3) as below:
"(3) Notwithstanding anything contained in sub-rules (1) and (2) above, no order for the
execution of a decree shall be invalid merely by reason of the omission to issue a
notice under this rule, unless the judgment-debtor has sustained injury by reason of
such omission." (1-11-1966).
Calcutta (Notfn No 3516-G of 3-2-1933). — Add the following as sub-rule (3)—
"(3) Omission to issue a notice in a case where notice is required under sub-rule (1), or
to record reasons in a case where notice is dispensed with under sub-rule (2), shall not
affect the jurisdiction of the Court in executing the decree."
Words "two years" shall be substituted for 'one year' wherever they occur.
Karnataka.—(i) insert sub-rule (2):—
(2) (i) Where from the particulars mentioned in the application in compliance with Rule
11(2)(ff) of this Order or otherwise the Court has information that the decree-holder
has transferred any part of his interest in the decree, the Court shall issue notice of the
application to all parties to such transfer, other than the petitioner, where he is party to
the transfer.
(ii) renumber sub-rule (2) as sub-rule (3). In the renumbered sub-rule, after "foregoing"
for "sub-rule" substitute "sub-rules" and after "to be recorded" for "it" substitute "in
writing the Court".
(iii) Add a proviso at the end:—
"Provided that no order for the execution of a decree shall be invalid owing to the
omission of the Court to issue a notice as required by sub-rule (1) or to record its
reasons where notice is dispensed with under sub-rule (3), unless the judgment-debtor
has sustained substantial injury as a result of such omission." (30-3-1967).
Kerala (Notfn No. B1-3312/58; 7-4-1959).—Same as in Madras.
Madhya Pradesh (Notfn No. 3409; 29-6-1943).—(a) To sub-rule (2) add proviso as in
Allahabad.
Madras (GOMs No 2084-Home, of 2-9-1936—HCP Dis No. 691 of 13-10-1936).—
(1) In sub-rule (1) the words "two years" shall be substituted for the words "one year"
wherever they occur.
(2) In sub-rule (1) after clause (b), insert the following:
"or (c) where the party to the decree has been declared insolvent, against the assignee
or Receiver in insolvency."
(3) Between sub-rules (1) and (2) insert the following:
"(1A) Where from the particulars mentioned in the application in compliance with rule
11(2)(ff) supra or otherwise the Court has information that the original decree-holder
has transferred any part of his interest in the decree, the Court shall issue notice of the
application to all parties to such transfer other than the petitioner, where he is a party to
the transfer."
(4) To sub-rule (2) add the following proviso:—
"Provided that no order for execution of a decree shall be invalid owing to the omission
of the Court to record its reasons unless the judgment-debtor has sustained
substantial injury as the result of such omission," Act 26 of 1968, Section 3 and Sch. Pt.
II (w.e.f. 5-9-1968).
Patna (Notfn No 89-B/XII-6-47, dated 8-5-1947). — (a) For sub-rule (1) of rule 22
substitute the following sub-rule:—
"Where an application for execution is made in writing under rule 11(2) the Court
executing the decree shall issue a notice to the person against whom execution is
applied for requiring him to show cause, on a date to be fixed why the decree should
not be executed against him."
(b) Add as sub-rule (3) the following:—
"(3) Proceedings held in execution of a decree shall not be invalid solely by reason of
any omission to issue or failure to serve a notice under sub-rule (1) or to record reasons
where such notice is dispensed with under sub-rule (2) unless the judgment-debtor has
sustained substantial injury thereby."
Punjab (Notfn No 125-Gaz XI-Y-14 of 7-4-1932).—Rule 22 has been substituted by

another rule which contains the following changes in the existing rule:—
In sub-rule (2) add at the end: "Failure to record such reasons shall be considered an
irregularity not amounting to a defect in jurisdiction".
COMMENT.—
In sub-rule (1) of this rule 22 for the words "one year" wherever they occurred, the
words "two years" have been substituted at the end of clause (b) the word "or" has been
added and a new clause (c) has also been inserted.
This rule does not contravene Article 14 of the Constitution nor does it offend rules of
natural justice.75
Nature & Scope.—

The order passed under O XXI, rule 22 is a final order and the only remedy is by way of
appeal.76
The proceedings for setting aside sale under rule 90 of Code of Civil Procedure are
independent proceedings. The file of proceedings under rule XXII could not be referred
to in such proceedings without actual proof of service as per various reports of alleged
service contained in proceedings under O XXI, rule 22.77
It is not enough merely to take out a notice. The notice must be served upon the
judgment-debtor or upon his legal representative.78
If the plot has been transferred to third person by the defendant then the proper form of
a decree is to direct specific performance of contract between defendant vendor and
plaintiff, and direct subsequent transferee to join in the conveyance so as to pass the
title residing in him.79
Notice of execution, necessary.—
Where execution was filed after the death of the judgment debtor against legal
Representatives of the judgment debtor, it was necessary to issue notice of execution
to legal representatives on being substituted in place of the judgment debtor.80
71 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "one year"
(w.e.f. 1-2-1977).
72 Added by Code of Civil Procedure (Amendment) Act 8 of 1937, section 3.
(1997) 84 Cut LT 663.
(1997) 84 Cut LT 663.
75 Pitchayya v Govt of AP, AIR 1957 AP 136 .
76 Barkat Ali v Badrinarain, (2008) 4 SCC 615 (617-18) : AIR 2008 SC 1272 .
77 Satyanarain Bajoriya v Rayanarain Tribrewall, AIR 1994 SC 1583 (1587) : (1993) 4 SCC 414 .
78 (1921) 25 CWN 972 .
79 Ramesh Chandra v Chuni Lal, AIR 1971 SC 1238 (1243) : (1970) 3 SCC 140 ; Lala Durga
Prasad v L Deepchand, AIR 1954 SC 75 : 1954 SCR 360 followed.
80 Mohini H Singh v Punjab & Sind Bank, 2009 (4) MPLJ 156 (167) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 22A. Sale not to be set
aside on the death of the judgment-debtor before the sale but after the service of the proclamation of sale
© 2020 LexisNexis
THE FIRST SCHEDULE
81[R. 22A.
Sale not to be set aside on the death of the judgment-debtor before the sale
but after the service of the proclamation of sale
Where any property is sold in execution of a decree, the sale shall not be set aside
merely by reason of the death of the judgment-debtor between the date of issue of
the proclamation of sale and the date of the sale notwithstanding the failure of the
decree-holder to substitute the legal representative of such deceased judgment-
debtor, but, in case of such failure, the Court may set aside the sale if it is satisfied
that the legal representative of the deceased judgment-debtor has been prejudiced by
the sale.]
III-A, Page 69.
Rule 22A as added w.e.f. 9-5-1947 deleted.
COMMENT.—
Rule 22-A was added in order to provide that where the property is sold in execution,
the sale shall not be set aside, merely by reason of the death of the judgment-debtor
between the date of issue of proclamation of sale and the date of sale notwithstanding
that his legal representatives were not substituted. But if the legal representatives are
prejudiced, the Court may set aside the sale.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 23. Procedure after issue
of notice
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 23.
Procedure after issue of notice
(1) Where the person to whom notice is issued under 82[rule 22] does not appear
or does not show cause to the satisfaction of the Court why the decree should
not be executed, the Court shall order the decree to be executed.
(2) Where such person offers any objection to the execution of the decree, the
Court shall consider such objection and make such order as it thinks fit.
COMMENT.—
If a person to whom notice is issued under rule 22, fails to appear and puts forward his
contentions, he cannot at any later stage, raise any objection as to the executability of
the decree.83 But if no notice has been given to him under this rule, it will be open to
him to raise at a later stage any objection relating to the executability of the decree.84
An auction amount was lying in the Court for about ten years without being invested.
The sale was set aside on satisfaction of decree. The auction purchaser was held
entitled to the amount along with compensation i.e., 12% per annum interest on that
amount from the judgment-debtor.85
82 Subs. by Code of Civil Procedure (Amendment) Act 38 of 1978, section 3 and Sch II, for the
last preceding rule", (w.e.f. 26-11-1978).
83 Amar Singh v Gulab Chand, AIR 1960 Raj 280 : (1960) Raj 835 .
84 Ramjivan v Roop Chand, AIR 1956 Raj 1 : (1956) Raj 123 .
85 Hindi Pracharak Prakashan v GK Brothers, AIR 1990 SC 2221 : 1993 Supp (1) SCC 419 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 24. Process for execution
© 2020 LexisNexis
THE FIRST SCHEDULE
Process for Execution
R. 24.
Process for execution
(1) When the preliminary measures (if any) required by the foregoing rules have
been taken, the Court shall, unless it sees cause to the contrary, issue its
process for the execution of the decree.
(2) Every such process shall bear date the day on which it is issued, and shall be
signed by the Judge or such officer as the Court may appoint in this behalf,
and shall be sealed with the seal of the Court and delivered to the proper
officer to be executed. [B, G]
86
[(3) In every such process, a day shall be specified on or before which it shall be
executed and a day shall also be specified on or before which it shall be
returned to the Court, but no process shall be deemed to be void if no day for
its return is specified therein.]
Andhra Pradesh.—Substitute the following for sub-rule (3):—
"(3) In every such process, a day shall be specified on or before which it shall be
executed and a day shall be specified on or before which it shall be returned to Court."
were made by Maharashtra Government Gazette, dated 15-9-1983, (1-10-1983); Part 4 Ka,
Page 411; Goa Gazette, dated 12-10-1987; Extra., Serial 1, No. 28, Page 382 (w.e.f. 1-4-
1987).
In Order XXI, for the existing rule 24 and its marginal note, substitute the following
namely:—
"24. Process for execution.—(1) When the preliminary measures (if any) required by the
foregoing rules have been taken, the Court shall, unless it sees cause to the contrary,
issue its process for the execution of the decree.
(2) Every such process shall bear date the day on which it is issued, and shall be signed
by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed
with the seal of the Court and delivered to the proper officer to be executed:
Provided that a Civil Judge, Senior Division may, in his special jurisdiction, send the
process to another Court in the same District for execution by the proper officer in that
Court.
(3) In every such process a day shall be specified on or before which it shall be
executed and a day shall also be specified on or before which it shall be returned to the
Court, but no process shall be deemed to be void, if no day for its return is specified
therein." (1-10-1983)
Add the following proviso to rule 24(2):—
"Provided that a Civil Judge, Senior Division, may, in exercise of his special jurisdiction,
send a process to another subordinate Court in the same district for execution by the
proper officer in that Court."(17-8-1961)
III-A, Page 69.
Sub-rule (3) substituted w.e.f., 29-12-1961 deleted.
COMMENT.—
Sub-rule (3) of this rule 24 was substituted in order to provide that in every process a
date shall be specified on or before which it shall be returned to the Court. But no
process shall be deemed to be void if a day for its return is not specified therein.
It has been held by the Supreme Court that if date is specified the process should be
executed on or before that date, its execution later is illegal.87
86 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for sub-rule (3),
(w.e.f. 1-2-1977).
87 Mathri v State of Punjab, AIR 1964 SC 986 : (1964) 5 SCR 916 : (1964) 2 CrLJ 57 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 25. Endorsement on
process
© 2020 LexisNexis
THE FIRST SCHEDULE
Process for Execution
R. 25.
Endorsement on process
(1) The officer entrusted with the execution of the process shall endorse thereon
the day on, and the manner in, which it was executed, and, if the latest day
specified in the process for the return thereof has been exceeded, the reason
of the delay, or, if it was not executed, the reason why it was not executed, and
shall return the process with such endorsement to the Court.
(2) Where the endorsement is to the effect that such officer is unable to execute
the process, the Court [A, KNT] shall examine him touching his alleged inability,
and may, if it thinks fit, summon and examine witnesses as to such inability,
and shall record the result. [AP, B, G, KNT, K, M]
[Sub-rule (2) amended in amended in All; Proviso added to sub-rule (2) in Bom and
Gujarat; sub-rule (2) substituted and sub-rule (3) added in AP, Kerala & Mad; sub-rule (2)
amended and sub-rule (3) added in Karnataka].
Allahabad (Notfn No 2381/35(a)-7(3); 7-9-1918).—Substitute the following for sub-rule

(2):—
"(2) Where the endorsement is to the effect that such officer is unable to execute the
process the Court may examine him personally or upon affidavit touching his alleged
inability, and may, if it thinks fit, summon and examine witnesses as to such inability
and shall record the result." (7-9-1918)
Bombay (Dadra and Nagar Haveli), Goa, Daman and Diu.— The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, (1-10-1983), Part 4 Ka,
Page 411, Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 383 (w.e.f. 1-4-1987).
The following proviso shall be added to sub-rule (2) of rule 25:—
"Provided that an examination of the officer entrusted with the execution of a process
by the Nazir or the Deputy Nazir under the general or special orders of the Court shall
be deemed to be sufficient compliance with the requirements of this rule." (1-10-1983)
Same as that of Bombay but without the words "or the Deputy Nazir". (17-8-1961)
Karnataka.—(i) In sub-rule (2) for "shall examine him" substitute: "may on its own
motion and shall upon an application by the petitioner in the execution application
examine the officer" and at the end of the sub-rule add "Such examination of the
process server as well as witnesses summoned under this rule shall be made after
notice to the petitioner in execution application or his pleader".
(ii) Add as sub-rule (3), sub-rule (2) of Madras and at its end add "On receipt of the
process with an endorsement so signed and attested, the Court shall issue notice to
the decree-holder to show cause, on a day to be fixed by the Court, why such
satisfaction should not be recorded as certified and if after service of such notice the
decree-holder fails to show such cause the Court shall record the same accordingly. A
record of satisfaction under the provisions of this sub-rule shall have the same effect
as one made under the provisions of sub-rule (2) of rule 2 of this Order". (30-3-1967)
Kerala (Notfn No B1-3312/58; 7-4-1959).— Same as in Madras.
Madras.— ( a) Substitute the following for present sub-rule (2):—
"(2) Where in the case of a decree for the payment of money the process is not
executed owing to the decree having been satisfied, such officer shall also obtain an
endorsement on the process to that effect signed by the decree-holder and attested by
two respectable witnesses who can identify the decree-holder."
(b) Add the following as sub-rule (3):—
"(3) Where the endorsement of such officer is to the effect that he is unable to execute
the process, the Court shall examine him or cause him to be examined by any other
Court touching his alleged inability, and if it thinks fit, summon and examine witnesses
as to such inability and shall record the result:
Provided that an examination of the officer entrusted with the execution of a process by
the Nazir or [the Deputy Nazir] under the general or special orders of the Court shall be
deemed to be sufficient compliance with the requirements of this clause.
Where the inability to execute the process is stated to be due to the satisfaction of the
decree and such satisfaction has been endorsed on the process as mentioned in sub-
rule (2) above, the Court shall issue notice to the decree-holder to show cause on a day
to be fixed by the Court, why such satisfaction should not be recorded as certified, and,
if, after service of such notice, the decree-holder fails to show cause why the
satisfaction should not be recorded as certified, the Court shall record the same
accordingly.
A record of satisfaction under the provisions of this sub-rule shall have the same effect
as one under the provision of Order XXI, rule 2, sub-rule (2)."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 26. When Court may stay
execution
© 2020 LexisNexis
THE FIRST SCHEDULE
Stay of Execution
R. 26.
When Court may stay execution
(1) The Court to which a decree has been sent for execution shall, upon sufficient
cause being shown, stay the execution of such decree for a reasonable time, to
enable the judgment-debtor to apply to the Court by which the decree was
passed, or to any Court having appellate jurisdiction in respect of the decree or
the execution thereof, for an order to stay execution, or for any other order
relating to the decree or execution which might have been made by such Court
of first instance or Appellate Court if execution had been issued thereby, or if
application for execution had been made thereto.
(2) Where the property or person of the judgment-debtor has been seized under an
execution, the Court which issued the execution may order the restitution of
such property or the discharge of such person pending the result of the
application.
(3) Before making an order to stay execution or for the restitution of property or
the discharge of the judgment-debtor, 88[the Court shall require] such security
from, or impose such conditions upon, the judgment-debtor as it thinks fit.
Allahabad.—In sub-rule (3) for the words "the Court may" read the words "the Court
shall, unless good cause to the contrary is shown". (24-7-1926)
Calcutta (Andaman and Nicobar Islands).—In sub-rule (3) cancel the words "the Court
may require such security from or impose such conditions upon the judgment-debtor
as it thinks fit" and substitute therefor the following words:
"the Court shall require security from the judgment-debtor unless sufficient cause is
shown to the contrary."

amendments were made by Assam High Court Order, 1948, Clause 6.
dated 16-9-1960.
In sub-rule (3), for the word "may" substitute the words "shall, unless good cause to the
contrary is shown".
X-A, Page 69.
Certain words as substituted earlier, deleted.
Patna.—In sub-rule (3) substitute the words "shall unless sufficient cause is shown to
the contrary" for the word "may".
Gazette, dated 7-4-1932, Act 31 of 1966, Ss. 29 and 32, dated 1-11-1966.
In sub-rule (3) for the words "the Court may" substitute the words "the Court shall
unless sufficient cause is shown to the contrary".
COMMENT.—
In sub-rule (3) of rule 26, for the words "the Court may require", the words "the Court
shall require" were substituted. The Court executing the decree could require a security
from the judgment-debtor or impose other conditions on him before granting stay. It
was considered that in such cases where the judgment-debtor applied for stay of
execution, it should be mandatory for the Court to obtain security from the judgment-
debtor.
88 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "the Court
may require" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 27. Liability of judgment-
debtor discharged
© 2020 LexisNexis
THE FIRST SCHEDULE
Stay of Execution
R. 27.
Liability of judgment-debtor discharged
No order of restitution or discharge under rule 26 shall prevent the property or person
of a judgment-debtor from being retaken in execution of the decree sent for
execution.
COMMENT.—
An additional evidence cannot be received when the genuineness of documents was

disputed by the respondent and the appellant made no attempt to prove them or where
there is no inherent lacuna or defect in the evidence.89
89 Associated Hotels of India v Ranjit Singh, AIR 1968 SC 933 (937) : (1968) 3 SCR 548 : (1968)
70 PLR (D) 88.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 28. Order of Court which
passed decree or of Appellate Court to be binding upon Court applied to
© 2020 LexisNexis
THE FIRST SCHEDULE
Stay of Execution
R. 28.
Order of Court which passed decree or of Appellate Court to be binding upon
Court applied to
Any order of the Court by which the decree was passed, or of such Court of appeal as
aforesaid, in relation to the execution of such decree, shall be binding upon the Court
to which the decree was sent for execution.
COMMENT.—
Executing court, scope of powers.—
The executing Court while passing a decree in terms of award should not go beyond
what has been given in the award. There is no scope for the executing Court to go the
award and grant interest for the post award period which was not granted in the
award.90
90 Coal Linker v Coal India Ltd, (2009) 9 SCC 491 (494).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 29. Stay of execution
pending suit between decree-holder and judgment-debtor
© 2020 LexisNexis
THE FIRST SCHEDULE
Stay of Execution
R. 29.
Stay of execution pending suit between decree-holder and judgment-debtor
Where a suit is pending in any Court against the holder of a decree of such Court, or
of a decree which is being executed by such Court on the part of the person against
whom the decree was passed, [A, KNT] the Court may, [A] on such terms as to security
or otherwise, as it thinks fit, stay execution of the decree until the pending suit has
been decided: [A]
91[ Provided that if the decree is one for payment of money, the Court shall, if it grants
stay without requiring security, record its reasons for so doing.]
Allahabad (Notfn No. 43/VIId-29; 1-6-1957).—(a) After "the person against whom the
decree was passed" insert "or any person whose interests are affected by the decree, or
by any order made in execution thereof."
(b) Delete the words "on such terms as to security or otherwise";
(c) Substitute "if" for "as" before "it thinks fit";
(d) Add the following as proviso:—
"Provided that in all cases where execution of the decree is stayed under this rule the
Court shall require the person seeking such stay to furnish such security as it may
deem fit."
(1-6-1957)
Karnataka.—For the words "on the part of the person against whom the decree was
passed" substitute "instituted by the person against whom the said decree was passed"
(30-3-1967).
COMMENT.—
In this rule 29, after the words "a decree of such Court", the words "or of a decree which
is being executed by such Court", were inserted. The proviso has been inserted at the
end of this rule now to the effect that where stay is granted in relation to a decree for
payment of money without requiring security, the Court shall record its reasons for so
doing.
For the applicability of this rule there should be two simultaneous proceedings in one
Court, viz.—
(1) a proceeding in execution of the decree of that Court started at the instance of the
decree-holder against the judgment-debtor, and
(2) a suit at the instance of the same judgment-debtor against the holder of the decree
of that Court.92
A suit for recovery of possession of property belonging to a math was decree by

munsif. This decree was finally affirmed by the Supreme Court. The order of Civil Judge
allowing defendant's application for stay of execution was nullity and violative of Article
141 of Constitution of India.93
No restitution, if decree is set aside in appeal.—
A person who purchases property in Court auction with the knowledge of the pending
appeal against the decree cannot resist restitution after the decree is set aside in
appeal. If the auction purchaser who was a name lender to the decree holder to
purchase the property, then he could not also be protected to retain the property if the
decree is subsequently reversed.94
Stay of execution.—
Purchaser pendente lite cannot raise obstruction to execution of decree. Execution

cannot also be stayed under rule 29.95
92 Shaukat Hussain v Bhuneshwari Devi, AIR 1973 SC 528 : (1972) 2 SCC 731 ; see also Subhash
Kumar v Sheo Balak, AIR 1975 Pat 307 .
93 Krishna Singh v Mathura Ahir, AIR 1982 SC 686 (689, 690) : (1981) 4 SCC 421 .
94 Chinnamal v P Arumugham, AIR 1990 SC 1828 (1832) : (1990) 1 SCC 513 : 1990 Mah LJ 285
; Janak Raj v Gurdial Singh, AIR 1967 SC 608 ; S Govind Rao v Devi Sahai, AIR 1982 SC 989 :
(1982) 1 SCC 237 relied on.
95 Usha Sinha v Dina Ram, AIR 2008 SC 1997 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 30. Decree for payment of
money
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 30.
Decree for payment of money
Every decree for the payment of money, including a decree for the payment of money
as the alternative to some other relief, may be executed by the detention in the civil
prison of the judgment-debtor, or by the attachment and sale of his property, or by
both.
Allahabad (Notfn No 2/VIId-29; 5-1-60).— Between the words "and sale" and "of his
property" insert "or any other kind of transfer".
COMMENT.—
The Supreme Court has held that this rule 30 can have no application to the execution
of a decree for specific performance, firstly, because a specific mode for such a decree
is provided by O XXI, rule 32 and secondly, because no decree for money in a suit for
specific performance.96
Therefore, where after passing of the decree for specific performance of agreement for
sale of certain shares of a company, the purchaser refuses to pay the purchase money,
the vendor can apply only for rescission of the decree.
Execution of decree for payment of money.—
The Code of Civil Procedure imposes no obligation to recover dues by sale of movables
or by arrest and detention of the defaulter before immovable property may be attached.
Simultaneous execution both against property and person of the judgment-debtor is
allowed under O XXI, Rule 30 of Code of Civil Procedure.97
In the execution of a money decree, an attachment of immovable property, which is

subject matter of suit for specific performance between the parties, is not within the
competence of Court executing money decree between the same parties. The parties
are free to approach Court trying suit for specific performance for seeking such
relief.98
Execution of composite money decree.—
On principle a guarantor can be sued without even suing the principal-debtor. Then
there is no reason, even if the decretal amount is covered by the mortgage decree, to
force the decree-holder to proceed against the mortgaged property first and then to
proceed against the guarantor.99
In execution proceedings of a money decree sale of machineries of judgment debtor,

the execution court ignored the valuation report and the reserve price which was
quoted in the NIT. Therefore, it was held that acceptance of tender in violation of NIT,
not proper.100
96 HI Trust v Haridas Mundhra, AIR 1972 SC 1826 (1837) : (1972) 3 SCC 684 : (1972) 3 SCR 690
.
97 Padrauna RKS Works Ltd v Land Reforms Commr, AIR 1969 SC 897 (901) : (1969) 1 SCC 485 .
98 Amal Kumar Ghatak v United Bank of India, AIR 1994 SC 2256 .
99 State Bank of India v Indexpart Registered, AIR 1992 SC 1740 (1745) : (1992) 3 SCC 159 :
(1992) 75 Com Cas I.
100 Chief/Senior Project Manager, Bhageeratha Engineers Ltd v S Vanlaldiki, AIR 2012 Gau 135 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 31. Decree for specific
movable property
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 31.
Decree for specific movable property
(1) Where the decree is for any specific movable, or for any share in a specific
movable, it may be executed by the seizure, if practicable, of the movable or
share, and by the delivery thereof to the party to whom it has been adjudged, or
to such person as he appoints to receive delivery on his behalf, or by the
detention in the civil prison of the judgment-debtor, or by the attachment of his
property, or by both.
(2) Where any attachment under sub-rule (1) has remained in force for 101[three
months] [A, B, MP] if the judgment-debtor has not obeyed the decree and the
decree-holder has applied to have the attached property sold, such property
may be sold, and out of the proceeds the Court may award to the decree-
holder, in cases where any amount has been fixed by the decree to be paid as
an alternative to delivery of moveable property, such amount, and, in other
cases, such compensation as it thinks fit, and shall pay the balance (if any) to
the judgment-debtor on his application. [D, HP, PU]
(3) Where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of 102[three
months] [A, B, D, HP, MP, PU] from the date of the attachment, no application to
have the property sold has been made, or, if made, has been refused, the
attachment shall cease. [AP, KNT, K, M, OR, P]
Allahabad (Notfn No 4084/35(a)-3(7) 24-7-1926).—In sub-rules (2) and (3) for the words
"six months" wherever they occur, read "three months, or such extended time as the
Court may for good cause direct". (24-7-1926)
Bombay.—In sub-rules (2) and (3) for the words "six months" substitute "three months or
such further time as the Court may, in any special case, for good cause shown, direct".
Calcutta (Andaman and Nicobar Islands).—In sub-rules (2) and (3), substitute the
words "three months" for the words "six months".

Calcutta.

1967.
(i) In rule 31 delete sub-rules (2) and (3) and substitute the following:—
"(2) Where any attachment under sub-rule (1) has remained in force for three months, if
the judgment-debtor has not obeyed the decree and the decree-holder has applied to
have the attached property sold, such property may be sold; and out of the proceeds
the Court may award to the decree-holder in cases where any amount has been fixed by
the decree to be paid as an alternative to delivery of moveable property, such amount,
and in other cases such compensation as it thinks fit, and shall pay the balance if any
to the judgment-debtor on his application.
(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing it
which he is bound to pay, or where, at the end of three months from the date of
attachment no application to have the property sold has been made, or, if made, has
been refused the attachment shall cease."
(ii) Add the following as sub-rule (4) to Rule 31:—
"(4) The Court may on application extend the period of three months mentioned in sub-
rules (2) and (3) to such period not exceeding six months on the whole as it may think
fit." (30-3-1967)

dated 16-9-1960.
In sub-rules (2) and (3) for the words "six months" wherever they occur, substitute the
words "three months or such further time as the Court may, in any special case, for
good cause shown direct".
Madras (GOM's No 2084-Home of 2-9-1936—HCP. Dis No 691 of 13-10-1936).—Add

the following as sub-rule (4):—
"(4) The Court may, for sufficient cause, extend the period of three months mentioned
in sub-rules (2) and (3) to such period not exceeding six months on the whole as it may
think fit."
Patna.—Add the following as sub-rule (4):—
"(4) The Court may, for sufficient cause, extend the period of three months mentioned
in sub-rules (2) and (3) to such period, not exceeding six months in the whole, as it may
think fit."
Punjab (Notfn No 125-Gaz-XI-Y-14 of 7-4-1923).—Rule 31 has been substituted by

another rule in which the changes effected in the existing rule are:
(a) After sub-rule (2) add the following proviso-—
"Provided that the Court may, in any special case, according to the special
circumstances thereof, extend the period beyond three months; but it shall in no case
exceed six months in all."
(b) In sub-rule (3) for the words "six months" substitute "three months or such other
period as may have been prescribed by the Court".
COMMENT.—
In sub-rule (2) and (3) of this rule, for the words "six months", wherever they occur, the
words "three months" were substituted.
101 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "six months"
(w.e.f. 1-2-1977).
102 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "six
months" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 32. Decree for specific
performance for restitution of conjugal rights, or for an injunction
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 32.
Decree for specific performance for restitution of conjugal rights, or for an
injunction
(1) Where the party against whom a decree for the specific performance of a
contract, or for restitution of conjugal rights, or for an injunction, has been
passed, has had an opportunity of obeying the decree and has wilfully failed to
obey it, the decree may be enforced 103[in the case of a decree for restitution
of conjugal rights by the attachment of his property or, in the case of a decree
for the specific performance of a contract or for an injunction] by his detention
in the civil prison, or by the attachment of his property or by both.
(2) Where the party against whom a decree for specific performance or for an
injunction has been passed is a corporation, the decree may be enforced by the
attachment of the property of the corporation or, with the leave of the Court, by
the detention in the civil prison of the directors or other principal officers
thereof, or by both attachment and detention.
(3) Where any attachment under sub-rule (1) or sub-rule (2) has remained in force
for 104[ six months ] if the judgment-debtor has not obeyed the decree and the
decree-holder has applied to have the attached property sold, such property
may be sold; and out of the proceeds the Court may award to the decree-holder
such compensation as it thinks fit, and shall pay the balance (if any) to the
judgment-debtor on his application. [A, AP, D, HP, K, MP, M, PU]
(4) Where the judgment-debtor has obeyed the decree and paid all costs of
executing the same which he is bound to pay, or where, at the end of 105[ six
months ] [D, HP, MP, PU] from the date of the attachment, [AP, K, M] no
application to have the property sold has been made, or if made has been
refused, the attachment shall cease.
(5) Where a decree for the specific performance of a contract or for an injunction
has not been obeyed, the Court may, in lieu of or in addition to all or any of the
processes aforesaid, direct that the act required to be done may be done so far
as practicable by the decree-holder or some other person appointed by the
Court, at the cost of the judgment-debtor, and upon the act being done the
expenses incurred may be ascertained in such manner as the Court may direct
and may be recovered as if they were included in the decree.
106[ Explanation.—For the removal of doubts, it is hereby declared that the

expression "the act required to be done" covers prohibitory as well as mandatory
injunctions. ]
ILLUSTRATION
A, a person of little substance, erects a building which renders uninhabitable a family

mansion belonging to B. .4, in spite of his detention in prison and the attachment of his
property, declines to obey a decree obtained against him by B and directing him to
remove the building. The Court is of opinion that no sum realisable by the sale of A's
property would adequately compensate B for the depreciation in the value of his
mansion. B may apply to the Court to remove the building and may recover the cost of
such removal from .4 in the execution proceedings.
Allahabad (Notfn No 4084/35(a)-3(7); 24-7-1926).—In sub-rule (3) after the words at the
end of the sub-rule, "on his application", add the words "the Court may for good cause
extend the time".
Kerala (Notfn No. B1-3312/58; 7-4-1959).—Same as in Madras.
Madhya Pradesh.— (Notfn No 3409; 29-6-1943 and M.P. Act, dated 16-9-1960).—
(a) In sub-rule (3) after the word "application" insert the words "and the Court may also,
for good cause shown, extend the time for the attachment remaining in force for a
period not exceeding one year", and
(b) In sub-rule (4) for the words "one year" substitute the words, "three (now six) months
or such further time as may have been fixed by the Court under sub-rule (3)".
Madras (GOMs No 2084-Home, of 2-9-1936—HCP Dis No 691 of 13-10-1936).—Sub-

rules (3) and (4) substituted. The effects of the substitution are as follows:—
(a) In sub-rule (3) after the word "application" insert the words. "The Court may on
application extend period of three months mentioned herein to such period not
exceeding one year on the whole as it may think fit".
(b) In sub-rule (4) after the words "the date of the attachment" insert "or of such
extended period which the Court may order under sub-rule (3)".
X-A, page 69.
Certain words as substituted earlier by Orissa Amendment deleted.
Same as in Patna.
Patna.—In sub-rule (3) for the words "for one year" substitute the words "for three
months or for such further period not exceeding one year in the whole, as may on
sufficient cause shown to be fixed by the Court".
Punjab (Notfn No 125-Gaz XI-Y-14, of 7-4-1932 and Punjab Act, dated 1-11-1966).—
Rule 32 has been substituted by another rule in which the changes effected in existing
rule are:—
(a) In sub-rule (3) add the following proviso:—

"Provided that the Court may for sufficient reasons, on the application of the judgment-
debtor, extend the period beyond three months; but in no case it shall exceed one year
in all."
(b) In sub-rule (4) for the words "one year" substitute "three months or such other period
as may have been prescribed by the Court".
COMMENT.—
In rule 32, in sub-rule (5), the following Explanation shall be inserted, namely:
"Explanation.—For the removal of doubts, it is hereby declared that the expression "the
act required to be done" covers prohibitory as well as mandatory injunction."
A controversy arose as to the meaning of the words "required to be done" in O XXI, rule
32(5). Do these words cover the situation where a prohibitory injunction has been
incorporated in the decree, or are they confined to cases where the decree is a
mandatory one. Different High Courts had expressed different views on the subject.
The controversy has been resolved by the present explanation added to sub-section (5),
wider view has been adopted. It has been clarified that the words "act required to be
done" cover prohibitory as well as mandatory injunction. The Law Commissioners
recommending the amendment in 154th Report observed:
8.1.1. In the Code of Civil Procedure, there is a provision for punishing disobedience to an
injunction issued by the Court. Order XXI, rule 32 of the Code deals with the subject. Apart
from arrest of the judgment-debtor or attachment of his property for such disobedience,
Order XXI, rule 32, sub-rule (5) provides that where a decree for specific performance of a
contract or for an injunction has not been obeyed, the Court may, in lieu of, or in addition to
other processes mentioned above, direct that "the act required to be done" may be done, so
far as practicable, by the decree-holder or some other person appointed by the Court, at the
cost of the judgment-debtor. Upon the act being done, the expenses incurred in doing it may
be ascertained in such manner as the Court may direct and may be recovered as if these
expenses were included in the decree.
8.1.2. Question for consideration—Now a controversy has arisen as to the meaning of the
word "act required" in Order XXI, rule 32(5) of the Code. Do these words also cover the
situation where a prohibitory injunction has been incorporated in the decree or, are they
confined to cases where the decree is a mandatory one?
8.1.3. There are two views on the subject—the wider view and the narrower view. The wider
view has been taken by Allahabad. According to the Allahabad High Court, whether an
injunction is mandatory or prohibitory, rule 32(5) applies, and relief of the nature mentioned
therein can be obtained in execution; a separate suit is not necessary. In the Allahabad case
[Harihar Panday v Mangal Prasad, AIR 1986 All 9 , 13, 14 paras 16-19 (N.N. Mithal J.)] the
decree restrained the judgment-debtor from causing obstruction to a certain pathway. On
the judgment-debtor placing obstacles, the decree-holder sought, in execution (i)
attachment of the offending constructions, (ii) removal of those constructions and (iii)
detention of the judgment-debtor civil prison. The judgment-debtor raised an objection that
such execution of the decree was not permissible. But the Allahabad High Court held that is
was permissible.
8.1.4. In an earlier Allahabad case [Chiranji Lal v Behari, AIR 1958 All 326 , 329, paras 27, 28
(R.N. Gurtu J.) the plaintiff had obtained an interim injunction directing the defendant to
refrain from interfering with plaintiff's possession of certain plots. It was held that plaintiff
can sue to recover damages, if the defendant stops him from cultivating the plot. Plaintiff's
remedy was not confined to execution, This case, however, does not directly hold that Order
XII, rule 32(5) is narrow in scope, as held by some of the other High Courts, In other words, it
does not rule out the enforcement of a preventive injunction through execution.
8.1.5. In contrast, the following High Courts have taken the view that a fresh suit is required,
where the injunction is a prohibitory one:—
(i) Andhra Pradesh, [Evuru Benkata Subbayya v Srishti Veerayya, AIR 1969 AP 92 , 97, 98
para 9, 10 (DB).]
(ii) Calcutta, [Hem Chandra v Narendra Nath, AIR 1934 Cal 402 , 403, 404.]
(iii) Karnataka, [Kariyappa v Haldappa, AIR 1989 Kant 163 (Bhat J.)]
(iv) Kerala, [Joseph v Makkaru, AIR 1960 Ker 127 , 129 para 14 (M.S. Menon and B. Velu
Pillai JJ.)]
(v) Madras [Nari Chinnabba Chetty v E. Chengalroya Chetty, AIR 1950 Mad 237 ] and
(vi) Punjab [Murari Lal v Nawal Kishore, AIR 1961 Pun 547 , 549 paras 5-9 (S.S. Dulat
and D.K. Mahajan JJ.)]
8.1.6. The Andhra Pradesh reasoning, is that while Order XXI, rule 32, sub-rule (1), would
apply to mandatory as well as prohibitory injunctions, sub-rule (5) applies only to mandatory
injunctions. [Evuru Venkatta Subbayaa v Sristhi Veerayya, AIR 1969 AP 92 , 97, Para 9.] It has
been observed as under:—
"Sub-rule (5) is the only pertinent provision, but that again, on the language used, applies to
mandatory injunctions. The word "injunction" in sub-rule (5) has been qualified by the words
"has not been obeyed" and the rule says, that in the event of disobedience of the injunction,
the Court may direct that the act required to be done may be done so far as practicable by
the decree-holder. A prohibitory direction would be not to do an act. A mandatory direction
is a command to do a positive actual a prohibitory injunction between the two is obvious
and rule 32 (5) can only be construed as applying to mandatory injunctions and not to
prohibitory injunctions."
8.1.7. In a Calcutta case placing a narrow construction on Order XXI, rule 32 (5), it was
stated. [Hem Chandra v Narendra Nath, AIR 1934 Cal 402 , 403, 404 (M.N. Mukherji & S.K.
Ghosh JJ.)]
"In the case of mandatory injunction clause (5) would often give the decree-holder a
complete remedy. But if a simple prohibitory injunction is disobeyed a fresh cause of action
arises for which adequate remedy, either by a mandatory injunction or in some other way
has to be sought for in a suit."
8.1.8. In Karnataka case, [Kariyappa v Haladappa, AIR 1989 Karnataka 163 (Bhat J.)] the
decree-holder, sought in execution the appointment of a Commissioner for the removal of a
superstructure which had been unauthorisedly built by the judgment-debtor, in violation of
the injunction granted by a decree of the Court. The Karnataka High Court held that this
could not be done by way of an execution proceeding. In its view, the decree-holder must in
such circumstances, file a separate suit. This conclusion is based on a narrow construction
of the words "act required" in Order XXI, rule 32 (5).
8.1.9. According to one of the Kerala cases, Order XXI, rule 32 (1) applies to a preventive
injunction. [Paul v Cheeran Narayanan, AIR 1969 Ker 232 , 233 (Krishnamoorthy Iyer J.)]
However, the judgment does not discuss the scope of Order XXI, rule 32 (5). In an earlier
Judgment, [Joseph v Makkarla, AIR 1960 Ker 127 ] it had held that Order XXI, rule 32 (5) does
not apply to prohibitory injunctions.
8.1.10. In a Delhi case [Sarup Singh v Dieylim Singh, AIR 1972 Del 142 (FB)] the comparison
was between Order XXI, rule 32 and Order XXI, rule 35. The injunction issued against the
licensee was to vacate the premises occupied by him as license. It was held that steps to
evict the licensee would mean, practically, dispossession of the licensee (Judgment-debtor).
This was not permissible under Order XXI, rule 32.
8.1.11. The Delhi case was really one in which the decree against the licensee was to quit
and vacate the premises. The decree in question was sought to be enforced under Order
XXI, rule 32(5). The Court held that rule 32(5) cannot, in the very nature of things, come to
the aid of a decree-holder to obtain possession. But the rulings of the other High Courts
(mentioned above) do reveal a conflict of decisions.
8.1.12. Recommendation— Clarification is obviously needed on the point at issue. It is

suggested that as a matter of legislative amendment, it is preferable to incorporate the
wider view (though the majority of the High Courts have taken a contrary view) and to
provide hat the words "act required to be done" cover prohibitory (as well as mandatory)
injunctions. This would also be in conformity with Section 3(2), General Clauses Act, 1897
which provides that in all Central Acts, the word "act" includes illegal omissions. Besides
this, on the merits, there is also justification why a decree-holder should be driven to a
separate suit for getting relief in the nature of enforcement of a decree which he must have
obtained after considerable expenditure of time, labour and money.
In sub-rule (3) and (4) of this rule 32 for the words "one year," wherever occurring, the
words "six months" were substituted.
It has been held by the Supreme Court that execution of decree for specific
performance cannot be executed as a money decree. The execution can only be made
in the manner prescribed by this rule. Accordingly, where a decree for specific
performance of agreement for the sale of certain shares of a company was passed and
the purchaser refused to pay the purchase money, it was held that the vendor could
apply for the rescission of the decree under this rule.107
It is now settled law that clause (5) of this rule applies only to mandatory injunctions
and if a prohibitory injunction is disobeyed, a fresh cause of action arises for which the
remedy is to be sought in a suit.108
Provision when cannot Apply.—
The remedy relating to a decree for specific performance can only be used by a person
who is entitled to execute the decree. If by reason of his own incapacity to perform his
part, he is precluded from seeking execution, then rule 32(1) cannot apply.109
In case of disobedience of decree of permanent prohibitory injunction remedy is to

apply under O XXI, rule 32.110
It has been held in Saroj Rani v Sudarshan Kumar, AIR 1984 SC 1562 : (1984) 4 SCC 90 O
XXI, rule 32 Code of Civil Procedure deals with a decree for specific performance for
restitution of conjugal rights or for an injunction. It is significant to note that unlike a
decree of specific performance of contract, for restitution of conjugal rights, the
sanction is provided by Court where the disobedience to such a decree is wilful i.e., is
deliberate, inspite of the opportunities and there are no other ingredients, right be
enforced by attachment of property. Suit was instituted for injunction simpliciter and
there was no claim for money in the said suit. This showed that no money decree was
being passed. It was held that there is no executable money decree. The executing
court cannot decide disputes not covered by the decree. The only course open to the
respondent was to file a separate suit.111
Scope for alternative remedy.—
The High Court cannot interfere in writ petition because effective remedy has been
provided under O XXI, rule 32 of the Code.112
Police protection in injunction suit.—
If need arises to enforce an order of temporary injunction a civil Court can always pass
an order under section 94(e) of the Code (besides, section 151 of the Code) directing
the local police to give protection to the party who is threatened in spite of the Court
order. But in all such cases the civil Court cannot grant an order directing the police to
give protection to safeguard the property which is the subject-matter of the suit.113
Mode of execution does not change the character of decree.—
The decree being sought to be executed is in a manner which sub-rule (5) of rule 32 of
O XXI of the Code of Civil procedure permits. Irrespective of the manner or mode of
execution, the decree of prohibitory injunction does not lose its character as such.114
103 Inserted by C P Code (Amendment) Act 29 of 1923, section 2.

(w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
106 Ins. by Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002) vide
Notfn. S.O. 604(E), dt. 6-6-2002, section 14.
107 HI Trust v Haridas Mundhra, AIR 1972 SC 1826 : (1972) 3 SCC 684 : (1972) 3 SCR 690 .
108 Murari Lal v Nawal Kishore, AIR 1961 Punj 547 ; see also Venkatasubayya v Veerayya, AIR
1969 AP 92 .
109 Jainarain v Kedar Nath, AIR 1956 SC 359 (363) : 1956 SCR 62 : (1956) 1 MLJ (SC) 151 :
1956 ALJ 345.
110 Vijay Kr Pandey v UOI, 2008 (4) ALJ 117 (All) : 2008 AIHC 2645 (All) : AIR 2008 (NOC) 1493
(All) : CMWP No 34036 of 1999 dt 19 February 2008.
111 Bharat Dynamics Ltd v Khoday Engg. Ltd (2010) 15 SCC 495 .
112 Sharda Saharan v DGP, UP, 2008 (3) ALJ 647 (All-DB).
113 Polavarapu Nagamani v Parchuri Koteshwar Rao, 2010 (6) ALT 92 (99) (DB).
114 Chakradhar Paital v Gelhi Bewa, AIR 2012 Ori 44 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 33. Discretion of Court in
executing decrees for restitution of conjugal rights
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 33.
Discretion of Court in executing decrees for restitution of conjugal rights
(1) Notwithstanding anything in rule 32, the Court, either at the time of passing a
decree 115[against a husband] for the restitution of conjugal rights or at any
time afterwards, may order that the decree 116[shall be executed in the manner
provided in this rule].
(2) Where the Court has made an order under sub-rule (1) 117[* * *], it may order
that, in the event of the decree not being obeyed within such period as may be
fixed in this behalf, the judgment-debtor shall make to the decree-holder such
periodical payments as may be just, and, if it thinks fit, require that the
judgment-debtor shall, to its satisfaction, secure to the decree-holder such
periodical payments.
(3) The Court may from time to time vary or modify any order made under sub-rule
(2) for the periodical payment of money, either by altering the times of
payment or by increasing or diminishing the amount, or may temporarily
suspend the same as to the whole or any part of the money so ordered to be
paid, and again revive the same, either wholly or in part as it may think just.
(4) Any money ordered to be paid under this rule may be recovered as though it
were payable under a decree for the payment of money.

116 Subs. by Code of Civil Procedure (Amendment) Act 29 of 1923, section 3, for "shall not be
executed by detention in prison".
117 The words "and the decree-holder is the wife" omitted by Act 29 of 1923, section 3.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 34. Decree for execution of
document, or endorsement of negotiable instrument
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 34.
Decree for execution of document, or endorsement of negotiable instrument
(1) Where a decree is for the execution of a document or for the endorsement of a
negotiable instrument and the judgment-debtor neglects or refuses to obey the
decree, the decree-holder may prepare a draft of the document or
endorsement in accordance with the terms of the decree and deliver the same
to the Court.
(2) The Court shall thereupon cause the draft to be served on the judgment-debtor
together with a notice requiring his objections (if any) to be made within such
time as the Court fixes in this behalf.
(3) Where the judgment-debtor objects to the draft, his objections shall be stated
in writing within such time, and the Court shall make such order approving or
altering the draft, as it thinks fit.
(4) The decree-holder shall deliver to the Court a copy of the draft with such
alterations (if any) as the Court may have directed upon the proper stamp-
paper if a stamp is required by the law for the time being in force; and the
judge or such officer as may be appointed in this behalf shall execute the
documents so delivered.
(5) The execution of a document or the endorsement of a negotiable instrument

under this rule may be in the following form, namely—
"C. D., Judge of the Court of ( or as the case may be ), for A.B., in a suit by E.F.
against A.B.,"
and shall have the same effect as the execution of the document or the
endorsement of the negotiable instrument by the party ordered to execute or
endorse the same.
118
[(6)
(a) Where the registration of the document is required under any law for
the time being in force, the Court, or such officer of the Court as may
be authorised in this behalf by the Court, shall cause the document
to be registered in accordance with such law.
(b) Where the registration of the document is not so required, but the
decree-holder desires it to be registered, the Court may make such
order as it thinks fit.
(c) Where the Court makes any order for the registration of any
document, it may make such order as it thinks fit as to the expenses
of registration.]
118 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for sub-rule (6)
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 35. Decree for immovable
property
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 35.
Decree for immovable property
(1) Where a decree is for the delivery of any immovable property, possession
thereof shall be delivered to the party to whom it has been adjudged, or to such
person as he may appoint to receive delivery on his behalf, and, if necessary,
by removing any person bound by the decree who refuses to vacate the
property.
(2) Where a decree is for the joint possession of immovable property, such
possession shall be delivered by affixing a copy of the warrant in some
conspicuous place on the property and proclaiming by beat of drum, or other
customary mode, at some convenient place, the substance of the decree.
(3) Where possession of any building or enclosure is to be delivered and the

person in possession, being bound by the decree, does not afford free access,
the Court, through its officers, may, after giving reasonable warning and facility
to any woman not appearing in public according to the customs of the country
to withdraw, remove or open any lock or bolt or break open any door or do any
other act necessary for putting the decree-holder in possession [M].
Himachal Pradesh.—The following amendments were made by Himachal Pradesh

Gazette, dated 23-4-1988, Part I, Page 266.
To sub-rule (1), proviso be added as under:—
"Provided that before issuing a warrant for delivery of possession of immovable

property, the Court executing the decree shall issue a notice to the person against
whom execution is applied for requiring him to show cause, on a date to be fixed, why
the decree should not be executed against him."
Madras.—After sub-rule (3) add the following as sub-rule (4):—
"(4) Where delivery of possession of a house is to be given and it is found to be locked,

orders of Court shall be taken for breaking open the lock for delivery of possession of
the same to the decree-holder.
If it is found at the time of delivery that there are movables in the home to which the
decree-holder has no claim and the judgment-debtor is absent, or if present, does not
immediately remove the same, the officer entrusted with the warrant for delivery shall
make an inventory of the articles so found with their probable value, in the presence of
respectable persons on the spot, have the same attested by them and leave the
movables in the custody of the decree-holder after taking a bond from him for keeping
the articles in safe-custody pending orders of Court for disposal of the same.
The Officer shall then make a report to the Court and forward therewith the attested
inventory taken by him.
The Court shall, thereupon, issue a notice to the judgment-debtor requiring him to take
delivery of the said movables within thirty days from the date of the notice and in
default they will be sold in public auction at his risk and the proceeds applied for
meeting all legitimate expenses of custody and sale and the balance, if any, will be
refunded to the judgment-debtor:
Provided that if movable articles referred to above are perishable, the Officer shall sell
them in public auction immediately, and bring the proceeds into Court. The notice to
the judgment-debtor shall in such a case call upon him to receive the amount from
Court within three months." (17-8-1966).
COMMENT.—
In an execution of decree for possession the occupier of property makes an objection,

which he had already raised and was dismissed by trial Court. The decision thereon
has become final. Such objection is to be dismissed on ground of res judicata.119
Concession clause in compromise decree not penal.—
In a compromise decree for eviction, the tenant is granted a concession by a clause

that if he pays the entire rent due from him by a particular date, then the landlord will
not put the decree for execution for recovery of possession. Such a clause cannot be
considered as penal in character and incapable of execution.120
Relief of actual possession cannot be denied.—
In execution of a decree for redemption of a mortgage, it is for the executing Court to

carve out and identify the land. The plaintiff will be entitled to actual possession.121
It has been held by the Supreme Court that where a decree-holder entitled to khas
possession accepts symbolical delivery and allows the person in actual possession to
continue in possession, the decree is satisfied and cannot be executed.
Notice is not necessary.—
Notice to occupant is not necessary in law, though it may be desirable where possible,
so as to eliminate the possibility of any fraudulent or collusive transaction of taking of
mere paper possession. The occupant or the owner sometimes even do not come to
know of it.122
Joint possession is sufficient to interrupt adverse possession.—

An order for delivery of symbolical joint possession of undivided interest of coparcener,
though cannot be supported in law, is not a nullity. It has full effect, if not set aside and
is sufficient to interrupt adverse possession against purchaser. Sub-rule (2) of rule 35
applies to an order for delivery of joint possession.123
If law is taken in hands then mandatory injunction becomes necessary.—
Where the judgment-debtor or the person interested in or claiming through has taken
law in his hands and made any construction on the property, pending a suit for
possession, the relief of mandatory injunction is consequential to or necessary for
effectuation of the decree for possession.124
Obstruction to delivery of possession by third party.—
Where third party created obstruction to delivery of possession in execution of a decree

for eviction and the decree-holder filed an application under this rule for police
assistance to remove obstruction, this application should not be dismissed on any
technical ground. It should be treated as one under rule 97(1) and inquired.125
In the execution of an eviction decree the Court issued a notice to the tenant to remove
his machinery lying in the premises. The tenant did not comply with the notice. Then
the Court removed the machinery by an auction sale. The machinery remained in the
Court for four years. The tenant subsequently made an application for possession of
machinery. He had no right whatsoever, to the machinery sold to the auction purchaser
in accordance with law. Her plea that the machinery was sold at gross under value
could not be entertained.126
Execution petition, condonation of delay.—
If during pendency of appeal by special leave, decree is executed and appeal against
execution is withdrawn, then the judgment debtor would not be entitled to claim
restitution on basis of recent Supreme Court decision declaring date of decree as
starting point of limitation. The benefit of doctrine actus curiae neminem gravabit (act
of Court shall prejudice no man) would not be available to judgment debtor.127
119 PV Jose v Kanickammal, AIR 2000 SC 2688 : (2000) 9 SCC 350 .

121 Harnek Singh v Harbax Singh, AIR 1990 SC 1978 : 1990 Supp SCC 698 .
122 BN Bhagde v MD Bhagwat, AIR1975 SC 1767 (1769) : (1975) 1 SCC 700 : 1975 Supp SCR
250.
123 Manikalaya v Narsimhaswami, AIR 1966 SC 470 (475).
124 B Gangadhar v BG Rajalingam, AIR 1996 SC 780 (782) : (1995) 5 SCC 238 .
125 Bhanwar Lal v Satyanarain, AIR 1995 SC 358 ; see also Brahmdeo Chaudhary v Rishikesh
Prasad, AIR 1997 SC 856 : (1997) 3 SCC 694 : (1997) 1 Mah LJ 817 .
126 Kamlabai v Bhikchand, AIR 1982 SC 709 : (1982) 1 SCC 377 .
127 V Hucheswaran v Madras Hardware Mart, AIR 2006 SC 50 (52).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 36. Decree for delivery of
immovable property when in occupancy of tenant
© 2020 LexisNexis
THE FIRST SCHEDULE
Mode of Execution
R. 36.
Decree for delivery of immovable property when in occupancy of tenant
Where a decree is for the delivery of any immovable property in the occupancy of a
tenant or other person entitled to occupy the same and not bound by the decree to
relinquish such occupancy, the Court shall order delivery to be made by affixing a
copy of the warrant in some conspicuous place on the property, and proclaiming to
the occupant by beat of drum or other customary mode, at some convenient place, the
substance of the decree in regard to the property.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 37. Discretionary power to
permit judgment-debtor to show cause against detention in prison
© 2020 LexisNexis
THE FIRST SCHEDULE
Arrest and Detention in the Civil Prison
R. 37.
Discretionary power to permit judgment-debtor to show cause against
detention in prison
(1) Notwithstanding anything in these rules, where an application is for the

execution of a decree for the payment of money by the arrest and detention in
the civil prison of a judgment-debtor who is liable to be arrested in pursuance
of the application, the Court 128[shall], instead of issuing a warrant for his
arrest, issue a notice calling upon him to appear before the Court on a day to
be specified in the notice and show cause why he should not be committed to
the civil prison:
129[ Provided that such notice shall not be necessary if the Court is satisfied,
by affidavit, or otherwise, that, with the object or effect of delaying the

execution of the decree, the judgment-debtor is likely to abscond or leave the
local limits of the jurisdiction of the Court.]
(2) Where appearance is not made in obedience to the notice, the Court shall, if
the decree-holder so requires, issue a warrant for the arrest of the judgment-
debtor.
[Sub-rule (1) amended by proviso omitted in All. Sub-rule (1) amended in Patna.]
Allahabad (Notfn No 43/VIIId-29; 1-6-1957).—In sub-rule (1) substitute "may" for "shall"
and omit the proviso.
Patna.—In sub-rule (1) substitute "may" for "shall". (5-4-1961).
COMMENT.—
The claim of the manager that he is not liable to be arrested and detained in prison for
failure to satisfy the tax due by the Hindu undivided family in the enforcement of the
certificate issued under section 222 of Income Tax Act, 1961, must be upheld.130
Coercive process of arrest and detention of a judgment debtor ought not to be resorted
to by an executing court in the very first instance even before ascertaining whether
decree can be satisfied by the judgment debtor. Such an order would be inherently
unfair, unreasonable and contrary to the law
The executing court can no longer straightway order the arrest and detention of a
judgment debtor in a civil prison under section 51 (c) read with O XXI rule 31 to 40 of
the Code of Civil Procedure in terms of law explained in Jolly George Varghese v The
Bank of Cochin, 1980 AIR SC 470 (para 11), Supra note 53 (para 11).
128 Subs. by Code of Civil Procedure (Amendment) Act 21 of 1936, section 3, for "may".
130 Kapurchand v Tax Recovery Officer, AIR 1969 SC 682 : (1969) 1 MLJ (SC) 1 : (1969) 72 ITR
623 : (1969) 1 SCR 691 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 38. Warrant for arrest to
direct judgment-debtor to be brought up
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 38.
Warrant for arrest to direct judgment-debtor to be brought up
Every warrant for the arrest of a judgment-debtor shall direct the officer entrusted
with its execution to bring him before the Court with all convenient speed, unless the
amount which he has been ordered to pay, together with the interest thereon and the
costs (if any) to which he is liable, be sooner paid. [AP, KNT, K, M]
[Rule amended in AP, Karnataka, Kerala & Madras].
Karnataka.—At the end of the rule add, "or unless satisfaction of the decree be
endorsed by the decree-holder on the warrant in the manner provided in sub-rule (3) of
rule 25 of this Order." (30-3-1967).
Madras.—Rule substituted by another rule which contains the following addition at the
end of the existing rule:—or unless satisfaction of the decree be endorsed by the
decree-holder on the warrant in the manner provided in rule 25(2) above. (9-6-1959)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 39. Subsistence allowance
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 39.
Subsistence allowance
(1) No judgment-debtor shall be arrested in execution of a decree unless and until

the decree-holder pays into Court such sum as the Judge thinks sufficient for
the subsistence of the judgment-debtor from the time of his arrest until he can
be brought before the Court. [AP, B, G, MP, M]
(2) Where a judgment-debtor is committed to the civil prison in execution of a

decree, the Court shall fix for his subsistence such monthly allowance as he
may be entitled to according to the scales fixed under Section 57, or, where no
such scales have been fixed, as it considers sufficient with reference to the
class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on
whose application the judgment-debtor has been arrested by monthly
payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court for such
portion of the current month as remains unexpired before the judgment-debtor
is committed to the civil prison, and the subsequent payments (if any) shall be
made to the officer in charge of the civil prison. [AP, B, G, KNT, K, MP, M]
(5) Sums disbursed by the decree-holder for the subsistence of the judgment-
debtor in the civil prison [A, C, D, GAU, HP, OR, P, PU] shall be deemed to be
costs in the suit:
Provided that the judgment-debtor shall not be detained in the civil prison or
arrested on account of any sum so disbursed. [AP, B, G, KNT, K, MP, M]
[Sub-rule (1) amended in Bom, Guj, MP & Mad; sub-rules (4), (5) substituted in AP, Bom,
Gujarat, Karnataka, Kerala, MP & Mad; sub-rule (5) amended in All, Cal, Gauhati, Delhi,
HP, Orissa, Patna & Punjab].
Allahabad (Notfn-No 4084/35(a)-3(7); 24-7-1926).—In sub-rule (5) delete the words "in
the civil prison".
page 411; Goa Gazette, dated 12-10-1987, Extra., S. 1, No. 28, Page 383 (w.e.f. 1-4-1987).
In Order XXI, for the existing rule 39 and its marginal note, substitute the following:—
"39. Subsistence allowance.—(1) No judgment-debtor shall be arrested in execution of

a decree unless and until the decree-holder pays into Court such sum as the Judge
thinks sufficient for the subsistence of the judgment-debtor from the time of his arrest
until he can be brought before the Court and for the cost of conveyance of the
judgment-debtor from the place of his arrest to the Court-house.
(2) Where a judgment-debtor is committed to the civil prison in execution of a decree,

the Court shall fix for his subsistence such monthly allowance as he may be entitled to
according to the scales fixed under Section 57, or, where no such scales have been
fixed, as it considers sufficient with reference to the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party on whose
application the judgment-debtor has been arrested by monthly payments in advance
before the first day of each month.
(4) Such sum (if any) as the Judge thinks sufficient for the subsistence and costs of
conveyance of the judgment-debtor for his journey from the Court-house to the civil
prison and from the civil prison on his release, to his usual place of residence, together
with the first of the payments in advance under sub-rule (3) for such portion of the
current month as remains unexpired, shall be paid to the proper officer of the Court
before the judgment-debtor is committed to the civil prison, and the subsequent
payments (if any) shall be paid to the officer in charge of the civil prison.
(5) Sums disbursed under this rule by the decree-holder for the subsistence and the
cost of conveyance (if any) of the judgment-debtor shall be deemed to be cost in the
suit:
Provided that the judgment-debtor shall not be detained in the civil prison or arrested
on account of any sum so disbursed." (1-10-1983)
Calcutta (Notfn No 3516-G, of 3-2-1933).—In sub-rule (5) omit the words "in the civil
prison".
(1) In Rule 39(1) delete the full stop at the end of sub-rule (1) and add the following:
"and for the cost of conveyance of the judgment-debtor from the place of his arrest to
the Court-house".
(2) New sub-rules (4) and (5) have been substituted. The substituted sub-rules (4) and
(5) are the same as in Bombay. (17-8-1961)
Karnataka.—For sub-rules (4) and (5) substitute sub-rules (4) and (5) as in Bombay [30-
3-1967].
Kerala.—Substitute sub-rules (4) and (5) as in Bombay without the proviso.
Madhya Pradesh (Notfn No. 3409; 29-6-1943).—Same as in Bombay without the

proviso.
Madras (Pondicherry).—Amendment dated 4-1-1967.

For sub-rule (1), substitute the following:—
(i) "(1) No judgment-debtor shall be arrested in execution of a decree unless and until
the decree-holder pays into the Court such sum as the Judge thinks sufficient for the
subsistence of the judgment-debtor from the time of his arrest until he can be brought
before the Court and for payment of the charges for conveyance of the judgment-
debtor 131[and of the amin or process-server who executes the warrant of arrest, by
bus, train or otherwise whichever is available from the place of arrest to the Court-
house]". (4-1-1967)
(ii) Sub-rules (4) and (5) are the same as those of Madhya Pradesh, Item (b). Orissa.—
Same as in Patna.
Patna.—In sub-rule (5) delete the words "in the civil prison" in the first place where they
occur.
Punjab (Notfn No 125-Gaz-XI-Y-14, of 7-4-1932).—Rule 39 has been substituted by

another rule but the only change effected is the deletion of the words "in the civil
prison" in sub-rule (5).
The executing Court is first required to determine the amount of subsistence allowance
to be paid by the decree-holder for arrest and production of judgment debtor before it in
execution of a money decree and that it is a condition precedent for the decree-holder
to deposit the said amount into the Court before the arrest warrant is issued against
the judgment debtor [Srinivas G Shet v Manipal Finance Corporation Ltd, 1998 AIHC
4016 , 4017 (Kant)].
131 Ins. by P. Dis. No. 353 of 1970 (16-9-1970).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 40. Proceedings on
appearance of judgment-debtor in obedience to notice or after arrest
© 2020 LexisNexis
THE FIRST SCHEDULE
132[R. 40.
Proceedings on appearance of judgment-debtor in obedience to notice or after
arrest
(1) When a judgment-debtor appears before the Court in obedience to a notice

issued under rule 37, or is brought before the Court after being arrested in
execution of a decree for the payment of money, the Court shall proceed to
hear the decree-holder and take all such evidence as may be produced by him
in support of his application for execution, and shall then give the judgment-
debtor an opportunity of showing cause why he should not be committed to the
civil prison.
(2) Pending the conclusion of the inquiry under sub-rule (1) the Court may, in its
discretion, order the judgment-debtor to be detained in the custody of an
officer of the Court or release him on his furnishing security to the satisfaction
of the Court for his appearance when required.
(3) Upon the conclusion of the inquiry under sub-rule (1) the Court may, subject to
the provisions of Section 51 and to the other provisions of this Code, make an
order for the detention of the judgment-debtor in the civil prison and shall in
that event cause him to be arrested if he is not already under arrest:
Provided that in order to give the judgment-debtor an opportunity of satisfying

the decree, the Court may, before making the order of detention, leave the
judgment-debtor in the custody of an officer of the Court for a specified period
not exceeding fifteen days or release him on his furnishing security to the
satisfaction of the Court for his appearance at the expiration of the specified
period if the decree be not sooner satisfied.
(4) A judgment-debtor released under this rule may be re-arrested.
(5) When the Court does not make an order of detention under sub-rule (3), it shall
disallow the application and, if the judgment-debtor is under arrest, direct his
release.] [AP, B, G, KNT, K, MP, M]
[Sub-rules (6), (7), (8) added in Bom & MP; Sub-rules (6), (7), added in AP, Karnataka,
Kerala & Mad.]
Allahabad.—Under Section 4 of the Code of Civil Procedure (Amendment) Act XXI of

1936 the amendments to rule 40 made by the above High Court prior to that Act have
been repealed.
Andhra Pradesh.—Add sub-rules (6) and (7) as in Madras omitting the words beginning
from "and the judge" to the end in sub-rule (6).
Page 412; Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 383 (w.e.f. 1-4-1987).
In Order XXI, rule 40, after the existing sub-rule (5), add the following as new sub-rules
(6), (7) and (8):—
"(6) When a judgment-debtor is ordered to be detained in the custody of an officer of

the Court under sub-rule (2) or the proviso to sub-rule (3) above, the Court may direct
the decree-holder to deposit such amount as, having regard to the specified or probable
length of detention, will provide—
(a) for the subsistence of the judgment-debtor at the rate to which he is entitled under
the scales fixed under Section 57, and
(b) for the payment to the officer of the Court in whose custody the judgment-debtor is
placed of such fees (including lodging charges) in respect thereof as the Court may by
order fix:
Provided (i) that the subsistence allowance and the fees payable to the officer of the
Court shall not be recovered for more than one month at a time, and
(ii) that the Court may from time to time require the decree-holder to deposit such
further sums as it deems necessary.
(7) If a decree-holder fails to deposit any sum as required under sub-rule (6) above, the
Court may disallow the application and direct the release of the judgment-debtor.
(8) Sums disbursed by the decree-holder under sub-rule (6) shall be deemed to be
costs in the suit:
Provided that the judgment-debtor shall not be detained in the Civil prison or arrested
on account of any sum so disbursed." (1-10-1983)
Gujarat.—The following amendments were made by Gujarat Act, dated 17-8-1961.
Sub-rules (6) and (7) added to rule 40 are the same as those of Madhya Pradesh.
Karnataka.—Sub-rules (6) and (7) inserted which are same as in Madras with the
following modifications:—
(i) in sub-rule (6) after rule 37 omit "or 38", for the words "Subordinate Judge or District
Munsif" substitute "Judge" and omit the words beginning from "and the Judge" to the
end in sub-rule (6).
Kerala (Lakshadweep Islands).—(i) For sub-rule (2) substitute the following :-
"(2) Pending the conclusion of the inquiry under sub-rule (1), the Court shall release the
judgment-debtor on his furnishing security to the satisfaction of the Court for his
appearance when required and if the judgment-debtor fails to furnish the security
ordered, the Court may order the judgment-debtor to be detained in the custody of an
officer of the Court on the decree-holder depositing in Court the necessary amounts
payable to the judgment-debtor and the officer of the Court in connection with such
detention." (16-1-1959)
(ii) Sub-rules (6) and (7) added as in Madras, only substituting the words "District
Munsif" by "Munsif". (9-6-1959)
Madhya Pradesh (Notfn No 3409; 29-6-1943 and M.P. Act, dated 16-9-1960).—Add sub-
rules (6), (7) and (8) as in Bombay.
Madras (P Dis No 689 of 1940 as amended on 17-3-1954).—Add as sub-rules (6) and

(7):—
"(6) During the temporary absence of the Judge who issued the warrant under rule 37
or 38 the warrant of committal may be signed by any other Judge of the same Court or
by any Judicial Officer superior in rank who has jurisdiction over the same locality, or,
where the arrest is made on a warrant issued by the District Judge, the warrant of
committal may be signed by any Subordinate judge or District Munsif, empowered in
writing by the District Judge in this behalf, and the Judge signing the warrant of
commital in the above cases shall also have the same powers as the Judge who issued
the warrant in respect of passing such orders as may be appropriate under sub-rules
(1), (3) and (5) of this rule." (17-3-1954)
(7) No judgment-debtor shall be committed to the civil prison or brought before the
Court from the custody to which he has been committed pending the consideration of
any of the matters mentioned in sub-rule (1) unless and until the decree-holder pays
into Court such sum as the Judge may think sufficient to meet the travelling and
subsistence expenses of the judgment-debtor and the escort.
Sub-rule (5) of rule 39 shall apply to such payments." See Act 28 of 1968, Section 3 and
Sch., Part II (w.e.f. 5-9-1968).
COMMENT.—
The Court has no power to order of detention under this rule, unless it is satisfied the
evidence on record that the judgment-debtor has the present means to pay the debt
and the circumstances mentioned in the provision to section 51 of the Civil Procedure
Code exists.133
132 Subs. by Code of Civil Procedure (Amendment) Act 21 of 1936, section 4, for original rule
40.
133 Kunhiraman v Madhavan Nair, AIR 1957 Mad 761 : (1957) 2 MLJ 28 ; see also Subramania v
Ponnuswami, AIR 1957 Mad 777 : (1957) 1 MLJ 208 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 41. Examination of
judgment-debtor as to his property
© 2020 LexisNexis
THE FIRST SCHEDULE
Attachment of Property
R. 41.
Examination of judgment-debtor as to his property
134
[(1) Where a decree is for the payment of money the decree-holder may apply to
the Court for an order that—
(a) the judgment-debtor, or
(b) 135[where the judgment-debtor is a corporation], any officer thereof,

or
(c) any other person,
be orally examined as to whether any or what debts are owing to the

judgment-debtor and whether the judgment-debtor has any and what
other property or means of satisfying the decree; and the Court may
make an order for the attendance and examination of such
judgment-debtor, or officer or other person, and for the production of
any books or documents.
136
[(2) Where a decree for the payment of money has remained unsatisfied for a
period of thirty days, the Court may, on the application of the decree-holder
and without prejudice to its power under sub-rule (1), by order require the
judgment-debtor or where the judgment-debtor is a corporation, any officer
thereof, to make an affidavit stating the particulars of the assets of the
judgment-debtor.
(3) In case of disobedience of any order made under sub-rule (2), the Court
making the order, or any Court to which the proceeding is transferred, may
direct that the person disobeying the order be detained in the civil prison for a
term not exceeding three months unless before the expiry of such term the
Court directs his release.]
COMMENT.—
The existing rule 41 was renumbered as sub-rule (1) and for the words "in the case of a
corporation", the words "where the judgment debtor is a corporation", substituted and
sub-rules (2) and (3) have also been inserted by the Amending Act of 1976.
Sub-rule (3) has inserted to rule 41 to provide that in case of disobedience of any order
made under sub-rule (2), the Court may direct the detention of defaulter in civil prison
for a term not exceeding six months.
Execution of Award—Territorial Jurisdiction.—
None of the judgment debtors are located within the jurisdiction of Delhi High Court. It
is not shown that there is any other property movable or immovable, of the judgment
debtors located within the jurisdiction of Delhi High Court. The fact that the companies
in which the judgment debtors hold shares have their corporate offices in Delhi would
not somehow confer jurisdiction on this court to proceed to direct attachment and sale
of such shares. So also, merely because the judgment debtor is in possession in Delhi
of the share certificates evidencing the share holding of companies situated at
Philippines, Delhi High Court would have no jurisdiction to order attachment and sale of
those shares. Share certificates by themselves are not intangible property. They are
only evidence of share holding. Therefore, the court of Delhi has no jurisdiction to
execute the award. The court also does not have jurisdiction to require judgment
debtor to appear and make a statement whether the judgment debtor's properties are
within the jurisdiction of the High Court.137
134 Rule 41 renumbered as sub-rule (1) of that rule by Code of Civil Procedure (Amendment)
Act 104 of 1976, Sec. 72 (w.e.f. 1-2-1977).
135 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "in the case
of a corporation" (w.e.f. 1-2-1977).
137 State Trading Corporation of India Ltd v Global Steel Holdings Ltd, AIR 2015 Del 100 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 42. Attachment in case of
decree for rent or mesne profits or other matter, amount of which to be subsequently determined
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 42.
Attachment in case of decree for rent or mesne profits or other matter, amount
of which to be subsequently determined
Where a decree directs an inquiry as to rent or mesne profits or any other matter, the
property of the judgment-debtor may, before the amount due from him has been
ascertained, be attached, as in the case of an ordinary decree for the payment of
money.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 43. Attachment of movable
property, other than agricultural produce, in possession of judgment-debtor
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 43.
Attachment of movable property, other than agricultural produce, in
possession of judgment-debtor
Where the property to be attached is movable property, other than agricultural

produce, in the possession of the judgment-debtor, the attachment shall be made by
actual seizure, [C, GAU] and the attaching officer [OR, P] shall keep the property in his
own custody or in the custody of one of his subordinates, and shall be responsible for
the due custody thereof:
Provided that, when the property seized [C, GAU] is subject to speedy and natural
decay, or when the expense of keeping it in custody is likely to exceed its value, the
attaching officer may sell it at once. [AP, B, D, G, HP, KNT, K, MP, M, OR, P, PU, RAJ]
[Rule substituted in Cal & Gauhati, rule amended and rule 43-A added in Order & Pat;
Rule substituted and rules 43-A, 43-B added in AP, Knt, & Mad; Rule substituted and rule
43-A added in Bom, Guj & MP; Rule amended and rules 43-A to 43-D added in Delhi, HP,
Punjab & Rajasthan; Rule amended and sub-rules (2) to (6) added in Kerala].
Calcutta (Notfn Nos 4440-G, of 29-5-1941 and 25585-G, 3-11-1933).—Rule 43 as

amended reads as follows:-
"43. Where the property to be attached is movable property, other than agricultural
actual seizure at the identification of the decree-holder or his agent, and, save as
otherwise prescribed, the attaching officer shall keep the property in his own custody or
in the custody of one of his subordinates, and shall be responsible for the due custody
thereof:
Provided that when the property seized does not, in the opinion of the attaching officer,
exceed twenty rupees in value or is subject to speedy and natural decay, or when the
expense of keeping it in custody is likely to exceed its value, the attaching officer may
sell it at once."
Gujarat.—(i) R 43 substituted which is same as in Madhya Pradesh.
(ii) Rule 43 A inserted which is same as rule 43A(1) of Madhya Pradesh (17-8-1961).

"43. (1) Where the property to be attached is movable property, other than agricultural
actual seizure, and the attaching officer shall keep the property in his own custody or in
the custody of one of his subordinates and shall be responsible for the custody thereof:
Provided that, when the property seized is subject to speedy and natural decay or when
expenses of keeping it in custody are likely to exceed its value the attachment officer
may sell it at once; and
Provided also that, when the property attached consists of live-stock, or other articles
which cannot conveniently be removed and the attaching officer does not act under the
first proviso to this rule, he may at the instance of the judgment-debtor or of the decree-
holder or any person claiming to be interested in such property leave it in the village or
place where it has been attached—
(a) in the charge of the person at whose instance the property is retained if such
person enters into a bond in the prescribed form with one or more sureties for
its production when called for, or
(b) in the charge of an officer of the Court, if a suitable place for its safe custody be
provided and the remuneration of the officer for a period of 15 days at such rate
as may from time to time be fixed by the High Court be paid in advance.
(2) Whenever an attachment made under the provisions of this rule ceases for any of
the reasons specified in rule 55 or rule 37 or rule 60 of this Order the Court may order
the restitution of the attached property to the person in whose possession it was
before the attachment."

For rule 43, the following rule shall be substituted, namely:—
"43. Attachment of movable property other than agricultural produce in possession of

judgment-debtor.—(1) Where the property to be attached is movable property other
than agricultural produce in the possession of the judgment-debtor, the attachment
shall be made by actual seizure, and the attaching officer shall keep the property in his
own custody or in the custody of one of his subordinates, and shall be responsible for
Provided that when the property seized is subject to speedy and natural decay, or when
the expenses of keeping it in custody is likely to exceed its value, the attaching officer
Provided also that, when the property attached consists of live-stock, agricultural
implements or other articles which cannot conveniently be removed and the attaching
officer does not act under the first proviso to this rule, he may at the instance of the
judgment-debtor or of the decree-holder or of any person claiming to be interested in
such property leave it in the village or place where it has been attached—
(a) in the charge of the person at whose instance the property is retained in such
village or place, if such person enters into a bond in Form No. 15-A of Appendix
E to this Schedule with one or more sufficient sureties for its production when
called for; or
the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order
before attachment.
(3) When attached property is kept in the village or place where it is attached.—
Whenever attached property is kept in the village or place where it is attached, the
attaching officer shall forthwith report the fact to the Court and shall with his report
forward a list of the properties seized.
(4) Procedure when attached property is neither sold nor kept in the village or place
where it is attached.—If attached property is not sold under the first proviso to rule 43
or retained in the village or place where it is attached under the second proviso to that
rule, it shall be brought to the Court-house and delivered to the proper officer of the
Court.
(5) Where attached property kept in the village etc., is live-stock.—Whenever attached
property kept in the village or place where it is attached is live-stock, the person at
whose instance it is so retained shall provide for its maintenance, and, if he fails to do
so and, if it is in charge of an officer of the Court, it shall be removed to the Court-
house.
Nothing in this rule shall prevent the judgment-debtor or any person claiming to be
interested in such live-stock from making such arrangement, for feeding the same as
may not be inconsistent with its safe custody.
(6) Direction for sums expended by attaching officer.—The Court may direct that any
sums which have been extended by the attaching officer or are payable to him, if not
duly deposited or paid, be recovered from the proceeds of property if sold, or be paid by
the person declared entitled to delivery before he receives the same. The Court may
also order that any sums deposited or paid under these rules be recovered as costs of
the attachment from any party to the proceedings."

dated 16-9-1960.
Substitute the following for rule 43:-
"43. Attachment of movable property other than agricultural produce in possession of

judgment-debtor.—(1) Where the property to be attached is movable property, other
than agricultural produce, in the possession of the judgment-debtor, the attachment
shall be made by actual seizure, and the attaching officer shall keep the property in his
own custody or in the custody of any of his subordinates and shall be responsible for
Provided that, when the property seized is subject to speedy and natural decay, or when
the expenses of keeping it in custody is likely to exceed its value, the attaching officer
Provided also that when the property attached consists of live-stock, agricultural
implements or other articles which cannot be conveniently removed, and the attaching
judgment-debtor or of the decree-holder or any person claiming to be interested in such
property leave it in the village or at the place where it has been attached—
(a) in the charge of the judgment-debtor or of the station pound-keeper, if any, or
(b) in the charge of the decree-holder, or of the person claiming to be interested in

such property or of such respectable person as will undertake to keep such
property, on his entering into a bond with one or more sureties in an amount not
less than the value of the property, that he will take proper care of such property
and produce it when called for.
(2) The attaching officer shall make a list of the property attached and shall obtain
thereto the acknowledgment of the person in whose custody the property is left, and if
possible of the parties to the suit, and of at least one respectable person in attestation
of the correctness of the list. If the property attached includes both live-stock and other
articles, a separate list of the live-stock shall similarly be prepared and attested."
Madras (Dis No 166 of 1913).—Rule 43 has been substituted by another rule which
contains the following changes in the existing rule:—
(i) Number present rule as sub-rule (1) and insert the word "and" at the end of the first
proviso.
(ii) Add the following further proviso and sub-rule (2):—
"Provided also that, when the property attached consists of live-stock, agricultural
judgment-debtor or of the decree-holder or of any person claiming to be interested in
such property leave it in the village or place where it has been attached—
village or place, if such person enters into a bond in Form No 15A of Appendix E
to this Schedule with one or more sufficient sureties for its production when
called for, or
the reasons specified in rule 55 or rule 57 or rule 60 of this Order, the Court may order
before attachment."
(iii) Insert the following as rule 43A and 43B:—
"43 A.(1) Whenever attached property is kept in the village or place where it is attached,
the attaching officer shall forthwith report the fact to the Court and shall with his report
forward a list of the property seized.
(2) If attached property is not sold under the first proviso to rule 43 or retained in the
village or place where it is attached under the second proviso to that rule, it shall be
brought to the Court-house and delivered to the proper officer of the Court.
43B. (1) Whenever attached property kept in the village or place where it is attached is
live-stock, the person at whose instance it is so retained shall provide for its
maintenance, and, if he fails to do so and if it is in charge of an officer of the Court it
shall be removed to the Court-house.
interested in such stock from making such arrangements for feeding the same as may
not be inconsistent with its safe custody.
(2) The Court may direct that any sums which have been expended by the attaching
officer or are payable to him, if not duly deposited or paid, be removed from the
proceeds of property, if sold, or be paid by the person declared entitled to delivery
before he receives the same. The Court may also order that any sums deposited or
paid under these rules be recovered as costs of the attachments from any party to the
proceedings."
[An additional Form No 15-A has been inserted in App E.]
Patna.—(a) Rule 43 substituted but the only change is the deletion of the words "shall
keep the property in his own custody or in the custody of one of his subordinates, and".
Punjab (Notfn No 606-G; 13-12-1928).—(a) Number the rule as sub-rule (1) and add the
following further proviso which is same as in Madras with addition of clause (c) as
below:
(c) in the charge of a village lambardar or such other respectable person as will
undertake to keep such property, subject to the orders of the Court, if such person
enters into a bond in Form No. 15B of Appendix E, with one or more sureties for its
production.
(ii) Insert sub-rule (2) which is same as in Madras.
(iii) Insert sub-rule (3) as below:-
"(3) When property is made over to custodian under sub-clause (a) or (c) of clause (1),
the Schedule of property annexed to the bond shall be drawn up by the attaching officer
in triplicate, and dated and signed by:
(a) the custodian and his sureties;
(b) the officer of the Court who made the attachment;
(c) the person whose property is attached and made over;
(d) two respectable witnesses.
One copy will be transmitted to the Court by the attaching officer and placed on the
record of the proceedings under which the attachment has been ordered, one copy will
be made over to the person whose property is attached and one copy will be made over
to the custodian."
(b) Add the following new rules 43A to 43D:—
"43A. (1) Same as sub-rule (1) of Madras.
(2) Same as sub-rule (2) of Madras.
(3) A custodian appointed under the second proviso to rule 43, may at any time
terminate his responsibilities by giving notice to the Court of his desire to be relieved of
his trust and delivering to the proper officer of the Court the property made over to him.
(4) When any property is taken back from a custodian, he shall be granted a receipt for
the same.
43B. (1) Same as sub-rule (1) of Madras.
43C. When an application is made for the attachment of live-stock or other movable
property, the decree-holder shall pay into Court in cash such sum as will cover the
costs of the maintenance and custody of the property for 15 days. If within three clear
days, before the expiry of any such period of 15 days the amount of such costs for
such further period as the Court may direct be not paid into Court, the Court, on
receiving a report thereof from the proper office, may issue an order for the withdrawal
of the attachment and direct by whom the costs of the attachment are to be paid.
43D. Any person who has undertaken to keep attached property under rule 43(1)(c)
shall be liable to be proceeded against as a surety under Section 145 of the Code, and
shall be liable to pay in execution proceedings the value of any such property wilfully
lost by him.

1965.
In Order XXI, rule 43:—
(a) the existing rule 43 shall be renumbered as sub-rule (1) of that rule, and in sub-rule
(1)
as so renumbered, the following proviso shall be further inserted:-
"Provided further that, when the property attached consists of live-stock, agricultural
officer does not act under the first proviso to this rule, he may, at the instance of the
judgment-debtor, the decree-holder or any person claiming to be interested in such
property, leave it in the village or at the place where it has been attached—
village or place, if such person enters into a bond in Form No. 15A of Appendix E
to this Schedule with one or more sufficient sureties for its production when
called for; or
provided, and the remuneration of the officer for a period of 15 days at such
rates as may from time to time be fixed by the High Court, be paid in advance; or
(c) in the charge of a village Patwari or such other respectable persons as will
undertake to keep such property subject to the order of the Court, if such person
enters into a bond in Form No. 15B of Appendix E to this Schedule, with one or
more sureties for its production."
(d) after sub-rule (1) as so renumbered, the following sub-rules shall be inserted:—
"(2) Whenever an attachment made under the provisions of this rule ceases for any of
the reasons specified in rule 55, 57 or 60 of this Order, the Court may order the
restitution of the attached property to the person in whose possession it was before
attachment.
(3) When property is made over to a custodian under paragraph (a) or (c) of the second
proviso to sub-rule (1), the schedule property annexed to the bond shall be drawn up by
the attaching officer in triplicate, and shall be dated and signed by—
(a) the custodian and his surety.

(b) the officer of the Court who made the attachment;
(c) the person whose property is attached and made over; and
(d) two respectable witnesses.
One copy shall be transmitted to the Court by the attaching officer and placed on the
record of the proceedings under which the attachment has been ordered, one copy
shall be made over to the person whose property is attached and one copy shall be
made over to the custodian."
COMMENT.—
Attachment of immovable property by seizure.—
Attachment by actual seizure involves a change of possession from judgment-debtor in

the Court. Whether such property is kept in the custody of attaching officer or supurdar,
the possession of the Court continues. There is no change in the legal position if the
supurdar keeps the property in the custody of the decree-holder, as he is then the bailee
of the supurdar. Judgment-debtor removing property from decree-holder's custody is
guilty of offence under sections 424 and 411 IPC.138
138 Teeka v State of UP, AIR 1961 SC 803 (805) : (1962) 1 SCR 75 : (1961) 1 CrLJ 859 : 1961 All
CrLR 198.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 43A. Custody of movable
property
© 2020 LexisNexis
THE FIRST SCHEDULE
139[R. 43A.
Custody of movable property
(1) Where the property attached consisnts of live-stock, agricultural implements

or other articles which cannot conveniently be removed and the attaching
officer does not act under the proviso to rule 43, he may, at the instance of the
judgment-debtor or of the decree-holder or of any other person claiming to be
interested in such property, leave it in the village or place where it has been
attached, in the custody of any respectable person (hereinafter referred to as
the "custodian").
(2) If the custodian fails, after due notice, to produce such property at the place
named by the Court before the officer deputed for the purpose or to restore it
to the person in whose favour restoration is ordered by the Court, or if the
property, though so produced or restored, is not in the same condition as it was
when it was entrusted to him,—
(a) the custodian shall be liable to pay compensation to the decree-holder,

judgment-debtor or any other person who is found to be entitled to the
restoration thereof, for any loss or damage caused by his default; and
(b) such liability may be enforced—
(i) at the instance of the decree-holder, as if the custodian were a

surety under Section 145;
(ii) at the instance of the judgment-debtor or such other person, on

an application in execution; and
(c) any order determining such liability shall be appealable as a decree.]
Andhra Pradesh.—Same as those of Madras.

Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, page 412, dated 1-10-1983.
After the existing rule 43-A insert the following rule with marginal note as new rule 43-
B:-
"43-B. Attachment of live-stock.—(1) When an application is made for the attachment

of live-stock the Court may demand, in advance in cash at rates to be fixed half-yearly,
or oftener, if necessary, by the Courts with the sanction of the District Judge, the
amount requisite for the maintenance of the live-stock from the probable time of
attachment to the probable time of sale, or may, at its discretion, make successive
demands for portions of such period. The rates shall include cost of feeding, tending
and conveyance, and all other charges requisite for the maintenance and custody of
the live-stock.
(2) If the live-stock be entrusted to any person other than the judgment-debtor, the
amount paid by the decree-holder for the maintenance of the live-stock or a part
thereof, may, at the discretion of the Court, be paid to the custodian of the live-stock for
their maintenance. The produce, such as milk, eggs, etc., if any, may either be sold as
promptly as possible for the benefit of the judgment-debtor or may, at the discretion of
the Court, be set-off against the costs of maintenance of the live-stock." (1-10-1983)
Delhi.—Same as those of Punjab.
Same as sub-rule (1) of rule 43A, inserted by Madhya Pradesh.
Karnataka (Rules 43A and 43B).—The following amendments were made by Karnataka
After rule 43 and before rule 44 insert the following as rules 43A and 43B:—
"43A. (1) Whenever attached property is kept in the village or place where it is attached,
forward a list of property seized.
brought to the Court-house and delivered to the proper officer of the Court."
"43B. (1) Whenever attached property kept in the village or place where it is attached is
maintenance, and, if he fails to do so and if it is in the charge of an officer of the Court,
it shall be removed to the Court-house. Nothing in this rule shall prevent the judgment-
debtor or any person claiming to be interested in such stock from making such
arrangement for feeding the same as may not be inconsistent with its safe custody.
officer or are payable to him, if not duly deposited or paid, be recovered from the
proceeds of the property, if sold, or be paid by the person declared entitled to delivery
paid under these rules be recovered as costs of the attachment from any party to the
proceedings." (Act 26 of 1968) (5-9-1968)

dated 16-9-1960.
Insert the following as rule 43A:-
"43A. Attachment of live-stock.—(1) When an application is made for the attachment

of live-stock the Court may demand in advance in cash at rates to be fixed half yearly or
oftener, if necessary, by the Courts with the sanction of the District Judge, the amount
requisite for the maintenance of the live-stock from the probable time of attachment to
the probable time of sale, or may, at its discretion, make successive demands for
portions of such period. The rates shall include cost of feeding, tending and
conveyance, and all other charges requisite for the maintenance and custody of the
live-stock.
(2) If the live-stock be entrusted to any person other than the judgment-debtor, the
amount paid by the decree-holder for the maintenance of the live-stock, or a part
thereof, may, at the discretion of the Court, be paid to the custodian of the live-stock for
their maintenance. The produce, such as milk, eggs, etc., if any, may either be sold as
promptly as possible, for the benefit of the judgment-debtor, or may, at the discretion of
the Court, be set-off against the costs of maintenance of the live-stock." (16-9-1960)
Madras (Pondicherry).—The following amendments were made by Madras Gazette, Dist.

No. 166 of 1913.
Insert the following as rules 43A and 43B:-
43B. (1) Whenever attached property kept in the village or place where it is attached is
maintenance, and, if he fails to do so and if it is in charge of an officer of the Court, it
proceeds of property, if sold, or be paid by the person declared entitled to delivery
paid under these rules be recovered as costs of the attachment from any party to the
proceedings." (Act 26 of 1968) (5-9-1968)
Orissa.—Same as that of Patna.
Patna.—The following amendments were made by Patna Gazette, dated 18-10-1933.
Insert the following as rule 43A:-
"43A. (1) The attaching officer shall, in suitable cases, keep the attached property in the
village or locality either:—
(a) in his own custody in any suitable place provided by the judgment-debtor or in
his absence by any adult member of his family who is present, on his own
premises or elsewhere;
(b) in the case of live-stock and provided the decree-holder furnishes the necessary
funds, in the local pound, if a pound has been established in or near the village,
in which case the pound-keeper will be responsible for the property to the
attaching officer, and shall receive the same rates for accommodation and
maintenance thereof as are paid in respect of impounded cattle of the same
description, or such less rate as may be agreed upon;
(c) in the custody of a respectable surety, provided the decree-holder furnishes the
cost of maintenance and other costs, if any.
(2) If in the opinion of the attaching officer the attached property cannot be kept in the
village or locality, through lack of a suitable place, or satisfactory surety, or through
failure of the decree-holder to provide necessary funds, or for any other reason, the
attaching officer shall remove the property to the Court at the decree-holder's expense.
In the event of the decree-holder failing to provide the necessary funds, the attachment
shall be withdrawn.
(3) Whenever attached property is kept in the village or locality as aforesaid the officer
shall forthwith report the fact to the Court, and shall with his report forward an accurate
list of property seized, such that, Court may thereon at once issue the proclamation of
sale prescribed by rule 66.
(4) If the debtor shall give his consent in writing to the sale of property without awaiting
the expiry of the term prescribed in rule 68, the officer shall receive the same and
forward without delay to the Court for its orders.
(5) When property is removed to the Court it shall be kept by the Nazir on his sole
responsibility in such place as may be approved by the Court. If the property cannot,
from its nature or bulk, be conveniently kept on the Court-premises, or in the personal
custody of the Nazir, he may, subject to approval by the Court, make such
arrangements, for its safe custody under his own supervision as may be most
convenient and economical, and the Court may fix remuneration to be allowed to the
persons, not being officers of the Court, in whose custody the property is kept.
(6) When property remains in the village or locality where it is attached and any person
other than the judgment-debtor shall claim the same, or any part of it, the attaching
officer shall nevertheless, unless the decree-holder desires to withdraw the attachment
of the property so claimed, maintain the attachment, and shall direct the claimant to
prefer his claim to the Court.
(7) (a) If the decree-holder shall withdraw an attachment or it shall be withdrawn, under
sub-rule (2) or sub-rule (9) the attaching officer shall inform the debtor, or in his
absence any adult member of his family, that the property is at his disposal.
(b) In the absence of any person to take charge of it, or in case the officer shall have
had notice of claim by a person other than the judgment-debtor, the officer shall, if the
property has been moved from the premises in which it was seized, replace it where it
was found at the time of seizure.
(8) Whenever live-stock is kept in the village or locality where it has been attached the
judgment-debtor shall be at liberty to undertake the due feeding and tending of it under
the supervision of the attaching officer; but the latter shall, if required by the decree-
holder, and on his paying for the same at the rate to be fixed by the District Judge and
subject to the orders of the Court under whose orders the attachment is made, engage
the services of as many persons as may be necessary, for the safe custody of it.
(9) In the event of the judgment-debtor failing to feed the attached live-stock in
accordance with sub-rule (8), the officer shall call upon the decree-holder to pay
forthwith, for feeding the same. In the event of his failure to do so, the officer shall
proceed as provided in sub-rule (2) and shall report the matter to the Court, without
delay.
(10) When attached live-stock is brought to Court, the Nazir shall be responsible for the
safe custody and proper feeding of it so long as the attachment continues.
(11) If a pound has been established in or near the place where the Court is held, the
Nazir shall be at liberty to place in it such attached live-stock as can be properly kept
there, in which case the pound-keeper will be responsible for the property to the Nazir
and shall receive the same rates for accommodation and maintenance thereof as are
paid in respect of impounded cattle of the same description, or such less rate as may
be agreed upon.
(12) If there be no pound available, or if, in the opinion of the Court, it be inconvenient
to lodge the attached live-stock in the pound, the Nazir may keep it in his own premises,
or he may entrust it to any person selected by himself and approved by the Court. The
Nazir will in all cases remain responsible for the custody of the property.
(13) Each Court shall from time to time fix the rates to be allowed for the custody and
maintenance of the various descriptions of live-stock with reference to seasons and
local circumstances. The District Judge may make any alteration he deems fit in the
rates prescribed by Court subordinate to him. Where there are two or more Courts in
the same place, the rates shall be the same for each Court." (18-10-1933)
Punjab, Haryana and (Chandigarh).—The following amendments were made by Punjab

Insert the following as rules 43A, 43B, 43C and 43D:-
(3) A custodian appointed under the second proviso to rule 43 may at any time
terminate his responsibilities by giving notice to the Court of his desire to be relieved of
his trust and delivering to proper officer of the Court the property made over to him.
(4) When any property is taken back from a custodian, he shall be granted a receipt for
the same.
43.B. (1) Whenever attached property kept in the village or place where it is attached is
maintenance, and, if he fails to do so and if it is in charge of an officer of the Court, it
proceeds of property, if sold, or be paid by person declared entitled to delivery before
he receives the same. The Court may also order that any sums deposited or paid under
these rules be recovered as costs of the attachment from any party to the proceedings.
(Act 26 of 1968). (5-9-1968)
43C. When an application is made for the attachment of live-stock or other movable
property, the decree-holder shall pay into Court in cash such sum as will cover the cost
of the maintenance and custody of the property for fifteen days. If within three clear
days, before the expiry of any such period of fifteen days the amount of such costs or
such further period as the Court may direct be not paid into Court, the Court, on
receiving a report thereof from the proper officer, may issue an order for the withdrawal
of the attachment and direct by whom the costs of the attachment are to be paid.
43D. Any person who has undertaken to keep attached property under rule 43(1)(c)
shall be liable to be proceeded against as a surety under Section 145 of the Code and
shall be liable to pay in execution proceedings the value of any such property wilfully
lost by him." (1-11-1966)
COMMENT.—
Rule 43-A was added by the Amending Act of 1976 to make provision regarding
enforcement of the liability against the person to whom attached movable property is
entrusted. The new rule makes such custodian liable to the person interested in the
property and provides for the enforcement of the liability against him.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 44. Attachment of
agricultural produce
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 44.
Attachment of agricultural produce
Where the property to be attached is agricultural produce, the attachment shall be

made [C, GAU] by affixing a copy of the warrant of attachment,—
(a) where such produce is a growing crop, on the land on which such crop has
grown, or
(b) where such produce has been cut or gathered, on the threshing-floor or place
for treading out grain or the like or fodder-stack on or in which it is deposited,
and another copy on the outer door or on some other conspicuous part of the
house in which the judgment-debtor ordinarily resides or, with the leave of the
Court, on the outer door or on some other conspicuous part of the house in
which he carries on business or personally works for gain or in which he is
known to have last resided or carried on business or personally worked for
gain; and the produce shall thereupon be deemed to have passed into the
possession of the Court.
[Rule amended in Cal & Gauhati; rule 44-A added in Bom and Gujarat.]

Insert the words "at the identification of the decree-holder or his agent", after the words
"attachment shall be made" in rule 44.

Calcutta.
Page 412; Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28 page 383 (w.e.f. 1-4-1987).
The following shall be inserted, namely:-
"44A. Copy of the warrant of attachment to be sent to the Collector where agricultural
produce is attached.—Where the property to be attached is agricultural produce, a copy
of the warrant or the order of attachment shall be sent by post to the office of the
Collector of the District in which the land is situate." (1-10-1983)

Same as that of Bombay, except for the marginal note. (17-8-1961)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 45. Provisions as to
agricultural produce under attachment
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 45.
Provisions as to agricultural produce under attachment
(1) Where agricultural produce is attached, the Court shall make such
arrangements for the custody thereof as it may deem sufficient and, for the
purpose of enabling the Court to make such arrangements, every application
for the attachment of a growing crop shall specify the time at which it is likely
to be fit to be cut or gathered. [AP, B, C, D, GAU, G, HP, KNT, K, M, OR, P, PU]
(2) Subject to such conditions as may be imposed by the Court in this behalf either
in the order of attachment or in any subsequent order, the judgment-debtor
may tend, cut, gather and store the produce and do any other act necessary for
maturing or preserving it; and if the judgment-debtor fails to do all or any of
such acts, the decree-holder may, with the permission of the Court and subject
to the like conditions, do all or any of them either by himself or by any person
appointed by him in this behalf, and the costs incurred by the decree-holder
shall be recoverable from the judgment-debtor as if they were included in, or
formed part of, the decree.
(3) Agricultural produce attached as a growing crop shall not be deemed to have
ceased to be under attachment or to require reattachment merely because it
has been severed from the soil.
(4) Where an order for the attachment of a growing crop has been made at a
considerable time before the crop is likely to be fit to be cut or gathered, the
Court may suspend the execution of the order for such time as it thinks fit, and
may, in its discretion, make a further order prohibiting the removal of the crop
pending the execution of the order of attachment.
(5) A growing crop which from its nature does not admit of being stored shall not
be attached under this rule at any time less than twenty days before the time at
which it is likely to be fit to be cut or gathered.
[Sub-rule (1) amended in AP, Bom, Cal, Delhi, Gauhati, Gujarat, HP, Karnataka, Kerala,
Mad, Orissa, Pat, Punjab.]
Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 384 (w.e.f. 1-4-1987).
In order XXI, rule 45, for the existing sub-rule (1), and its marginal note substitute the
following as sub-rule (1) and marginal note:—
"(1) Provisions as to agricultural produce under attachment.—Where agricultural

produce is attached, the Court shall make such arrangement for the custody thereof as
it may deem sufficient and, for the purpose of enabling the Court to make such
arrangements, every application for the attachment of growing crop shall specify the
time at which it is likely to be fit to be cut or gathered, and the applicant shall deposit in
Court at the time of the application such sum as the Court shall deem sufficient to
defray the cost of watching and tending the crop till such time." (1-10-1983)
Calcutta (Notfn No 3516-G, of 3-2-1933).— Add the following to sub-rule (1):—
"and the applicant shall deposit in Court such sum as the Court shall require in order to
defray the cost of watching or tending the crop till such time."
The following words shall be added to sub-rule (1) after substituting a semi-colon for
the full stop:
"and the applicant shall deposit in Court at the time of the application such sum as the
Court shall deem sufficient to defray the cost of watching and tending the crop till such
time." (1-10-1983)
Karnataka.—Same as in Madras. [30-3-1967].
Madras (GOMs No. 2084-Home of 2-9-1936—H C P Dis No 691 of 13-10-1936).—

Subrule (1) has been substituted and the only change is the addition of the following at
the end of the present sub-rule (1):—"and the applicant shall deposit in Court within a
date to be fixed by Court, such sum as the Court may deem sufficient to defray the cost
of watching and tending the crop till such time."
Patna.—Add to sub-rule (1) after deleting the full-stop at the end of the sub-rule:—
"and the applicant shall pay into Court such sum as he may from time to time be
required by the Court to pay in order to defray the cost of such arrangements."
Punjab (Notfn No 125-Gaz-XI-Y-14, of 7-4-1932).—Rule 45 has been substituted by

another rule, but the only change is the addition of the following at the end of sub-rule
(1):—"and with every such application such charges as may be necessary for the
custody of the crops up to the time at which it is likely to be fit to be cut or gathered
shall be paid to the Court. (1-2-1977)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46. Attachment of debt,
share and other property not in possession of judgment-debtor
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46.
Attachment of debt, share and other property not in possession of judgment-
debtor
(1) In the case of—
(a) a debt not secured by a negotiable instrument,
(b) a share in the capital of a corporation,
(c) other movable property not in the possession of the judgment-debtor,

except property deposited in, or in the custody of, any Court,
the attachment shall be made by a written order prohibiting,—
(i) in the case of the debt, the creditor from recovering the debt and
the debtor from making payment thereof until the further order of
the Court;
(ii) in the case of the share, the person in whose name the share may
be standing from transferring the same or receiving any dividend
thereon;
(iii) in the case of the other movable property except as aforesaid,

the person in possession of the same from giving it over to the
judgment-debtor.
(2) A copy of such order shall be affixed on some conspicuous part of the Court-
house, and another copy shall be sent in the case of the debt, to the debtor, in
the case of the share, to the proper officer of the corporation, and, in the case
of the other movable property (except as aforesaid), to the person in
possession of the same.
(3) A debtor prohibited under clause ( i ) of sub-rule (1) may pay the amount of his
debt into Court, and such payment shall discharge him as effectually as
payment to the party entitled to receive the same.
COMMENT.—
Where an agreement to sell had been cancelled and become unenforceable on non-
performance of conditions of sale by the purchaser, the sale agreement having not
fructified into a sale, the attachment effected by the Commissioner and order of sale of
the property in public auction made by the High Court without even any direction to the
appellant to execute a sale deed in favour of the respondent Commissioner, were
bad.140
Transfer of shares in contravention of attachment order illegal.—
This rule provides that in case of shares in the capital of a corporation, the attachment
shall be made by a written order prohibiting the person in whose name the share may
be standing from transferring the same. The transfer of share in contravention of order
of attachment, is contrary to law.141
The procedure of garnishee proceeding is not applicable in matter of claim against

bank under letter of credit.142
140 Manicklal Mukherjee v Commr of Sanchaita Investments, AIR 1993 SC 1571 (1573) : (1993)
1 SCC 505 .
141 Mannalal v Kedar, AIR 1977 SC 536 (540) : (1977) 2 SCC 424 : (1977) 47 CC 185 .
142 Fargo Freight Ltd v Commodities Exchange Corpn, AIR 2004 SC 4109 (4113).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 46A. Notice to garnishee
© 2020 LexisNexis
THE FIRST SCHEDULE
143[R. 46A.
Notice to garnishee
(1) The Court may in the case of a debt (other than a debt secured by a mortgage
or a charge) which has been attached under rule 46, upon the application of the
attaching creditor, issue notice to the garnishee liable to pay such debt, calling
upon him either to pay into Court the debt due from him to the judgment-
debtor or so much thereof as may be sufficient to satisfy the decree and costs
of execution, or to appear and show cause why he should not do so.
(2) An application under sub-rule (1) shall be made on affidavit verifying the facts
alleged and stating that, in the belief of the deponent, the garnishee is indebted
to the judgment-debtor.
(3) Where the garnishee pays in the Court the amount due from him to the
judgment-debtor or so much thereof as is sufficient to satisfy the decree and
the costs of the execution, the Court may direct that the amount may be paid to
the decree-holder towards satisfaction of the decree and costs of the
execution.
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Act, dated
5-1-1961.
Same as those of Madras.
Bombay (Dadra and Nagar Haveli), Goa, Daman and Diu.— The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983; Part 4 Ka, Page 413;
Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, page 384, dated 1-4-1987.
In Order XXI for existing rules 46A to 46H, and in case of Goa, rules 46A to 46I,
substitute the following:—
GARNISHEE ORDERS
46A.144[Payment of debt of amount under negotiable instrument or delivery of

movable property in Court, etc., in the hands of Garnishee].—(1) Upon the application
of the decree-holder, the Court may in the case of,—
(1) any debt (other than a debt secured by a mortgage or a charge or a negotiable
instrument) of which the Civil Courts are not precluded from adjudicating upon
by any law for the time being in force and which has been attached under rule
46 of this Order, or
(2) any movable property not in possession of the judgment-debtor which has been
attached under rule 46 of this Order; or
(3) any negotiable instrument which has been attached under rule 51 of this Order;
or
(4) any movable property of the nature referred to in (1) to (3) above in the custody
of any public officer other than officer of any Court, which has been attached
under rule 52 of the Order,
issue notice to any person liable to pay to the judgment-debtor such debt or the
amount due under such negotiable instrument or liable to deliver such movable
property or to account for it to the judgment-debtor (hereafter referred to as "the
Garnishee") calling upon him within the period specified in the notice either to pay into
Court the said debt or amount payable under the said negotiable instrument or deliver
into Court the said movable property, as the case may be, or so much thereof as may
be sufficient to satisfy the decree or order and the cost of execution or to appear before
the Court and show cause why he should not be ordered to do so.
The notice shall be served on the Garnishee and, if the Court so directs on the
judgment-debtor also. The notice shall be served eight clear days before the returnable
date thereof:
Provided that, subject to the proviso to rule 46-C, if by any law for the time being in
force, the jurisdiction to adjudicate upon the debt or claim relating to the negotiable
instrument or movable property in respect of which the application aforesaid is made is
conferred on a Civil Court other than the execution Court, the Court shall send the
execution case to the District Court to which the said Court is subordinate and
thereupon the District Court shall transfer the case to the competent Court and on such
transfer the Court to which the case is transferred will deal with it in the same manner
as if it had been originally instituted in that Court.
Explanation.—When the District Court itself is the competent Court it may deal with the
case in the same manner as if it had been originally instituted in that Court.
(2) Such application shall be made on affidavit verifying the facts alleged and stating
that in the belief of the deponent the Garnishee is indebted to the judgment-debtor or
that the property belongs to the judgment-debtor.
46-B. 145[Order against Garnishee].—Where the Garnishee does not within the time
specified in the notice or within such time as the Court may allow to pay into Court the
said debt or the amount payable under the said negotiable instrument or does not
deliver into Court the said property or so much of the debt or amount or property as is
sufficient to satisfy the decree or order and the cost of the execution or does not
appear and show cause in answer to the notice, the Court may order the Garnishee to
comply with the terms of such notice or pass such other order as it may deem fit.
46-C. 145[Determination of disputed questions].—If the Garnishee disputes his liability,

the Court instead of making such order may order that any issue or question necessary
for determining his liability be tried as though it were an issue in a suit; and upon the
determination of such issue shall pass such order upon the notice as it may think fit:
Provided that if the amount of the debt or the amount payable under the negotiable
instrument or the value of the property in respect of which the application aforesaid is
made exceeds the pecuniary jurisdiction of the Court, the Court shall send the
execution case to the District Court to which the said Court is subordinate and
thereupon the District Court or any other competent Court to which it may be
transferred by the District Court will deal with it in the same manner as if it had been
originally instituted in that Court.
46-D. 145[Discharge of Garnishee].—If the Garnishee appears in answer to the

Garnishee notice shows cause to the satisfaction of the Court, the notice shall be
dismissed and upon such dismissal the attachment ordered under rule 46, 51 or 52 of
this Order shall stand raised and the prohibitory order, if any, shall stand discharged.
46-E. 145[Adjudication of claims by third party].—Whenever in the course of

proceedings against the Garnishee it is alleged or appears to the Court to be probable
that some person other than the judgment-debtor is or claims to be entitled to the debt
attached or the amount payable under the negotiable instrument or the property
attached or claims to have a charge or lien upon or interest in such debt or amount or
property the Court may order such third person to appear before it and state the nature
of his claim with particulars thereof and, if necessary, prove the same.
46-F. 145[Claim of third person to be tried as in a suit].—After hearing such third person
and any other person who may subsequently be ordered to appear, or in case of such
third person or other person not appearing when ordered, the Court may pass such
order as is provided under rule 46-B, 46-C or 46-D or such other order or orders upon
such terms, if any, with respect to the lien or charge or interest if any of such third or
other person as it may deem fit and proper including an order that any question or
issue necessary for determining the validity of the claim of third or other person be
tried as though it were an issue in a suit.
46-G.145[Execution of order under rule 46-B, 46-C and 46-F].—(a) An order made by
the Court under rule 46-B, 46-C or 46-F against the Garnishee shall be executable as if it
were a decree of the Court in favour of the decree-holder.
(b) When money or negotiable instrument or property is received in Court as a result of

an order under rule 46-B, 46-C or 46-F above, the money shall not be paid and further
steps in execution in respect of the negotiable instrument or property shall not be taken
till the time for filing an appeal against the said order is over and where an appeal is
filed, till further orders of the Appellate Court.
46.H.145[Discharge of Garnishee's liability].—Any payment or delivery made by a

Garnishee in compliance with a Garnishee notice or order made against him under rule
46-B, 46-C or 46-F of this Order or any money or property realised in execution of an
order under these rules shall be a valid discharge of the Garnishee's liability to the
judgment-debtor and to any other person or persons ordered to appear under rule 46E
or 46F of this order for the amount paid or levied or property delivered or property
realised in execution, although the decree in execution of which the application under
rule 46-A was made, or the order passed in the proceedings on such application may
be set aside or reversed.
46-I. 146[Garnishee proceeding against a firm].—Where a debt due by a firm to the

judgment-debtor has been attached it may be proceeded against under rule 46-A to 46-
H of this Order in the same manner as in the case of an ordinary Garnishee and
provisions of Order XXX of this Code shall, so far as applicable, apply to such
proceedings although one or more partners of such firm may be resident outside the
jurisdiction of the Court:
Provided that any person having the control or management of the partnership
business or any partner of the firm who is within the jurisdiction of the Court is served
with Garnishee notice. An appearance by any partner pursuant to such notice shall be
sufficient appearance by the firm.
46-J. 146[Costs].—The costs of any application made under rule 46-A of this order and
of any proceedings arising therefrom or incidental thereto shall be in the discretion of
the Court.
46-K. 146[Appeal against order made under rules 46-B, 46-C, 46-F and 46-G].—Any
order made under rule 46-B, 46-C, 46-F or 46-G of this Order shall be appealable as a
decree. (1-10-1983 and 20-4-1989)
Calcutta (Andaman and Nicobar Islands).—Same as that of Bombay.
Gauhati (Assam, Nagaland, Meghalaya, Manipur and Tripura).—Same as those of

Calcutta.
Same as those of Bombay without the figures and letter "46B" in rule 46H.
1967.
Same as those of Madras except that in rule 46A for the words "attached under Order
XXI, rule 46" and "attached under Order XXI, rule 51" words "attached under rule 46 of
Order XXI of this Code" and "attached under rule 51 of Order XXI of this Code", are to be
read respectively.
Kerala (Lakshadweep Islands).—After rule 46, the following rules shall be inserted,
namely:—
"46A. Procedure when debt or any movable property not in the possession of the
judgment-debtor.—The Court may, in the case of any debt due to the judgment-debtor
(other than debt secured by a mortgage or a charge or by negotiable instrument), or
any movable property in which he has an interest, but not in his possession, which has
been attached under rule 46 of this order upon the application of the attaching creditor,
issue notice to any person liable to pay such debt or delivery an account for such
movable property (such person to be hereinafter called the "garnishee") calling upon
him either to pay or deliver into Court the debt due from or the property deliverable by
him to such judgment-debtor, or so much thereof as may be sufficient to satisfy the
decree and costs of execution, or to appear and show cause why he should not do so.
Such application shall be supported by an affidavit verifying the fact alleging and
stating that in the belief of the deponent the garnishee is indebted to the judgment-
debtor:
Provided that if the debt or property in respect of which the application aforesaid is
made is of value beyond the pecuniary jurisdiction of the Court, the execution case
shall be sent to the District Court to which the said Court is subordinate and thereupon
the District Court shall deal with it in the same manner as if the case had been
originally instituted in that Court.
46B. Procedure when garnishee does not forthwith pay the amount.—Where the
garnishee does not forthwith or within such time as the Court may allow, pay or deliver
into Court the amount due from him or the property deliverable by him to the judgment-
debtor or so much thereof as is sufficient to satisfy the decree and the costs of
execution, or does not appear and show cause in answer to the notice, the Court may
order the garnishee to comply with the terms of such notice and on such order
execution may issue as though such order was a decree against him.
46C. Procedure where garnishee disputes his liability.—Where the garnishee disputes
his liability, the Court may order that any issue or question necessary for the
determination of the liability shall be tried as if it were an issue in a suit and upon
determination of such issue shall make such order as may seem just:
Provided that where the garnishee admits his liability but disputes its extent and the
decree-holder does not seek to recover from the garnishee any sum in excess of what
he admits is due from him the Court shall not be bound to decide the dispute and may
direct the garnishee to pay such sum or so much thereof as is sufficient to satisfy the
decree and the cost of the execution proceedings.
46D. Procedure when debt or property belongs to a third person.—Where in any

proceeding under these rules it is alleged or appears to the Court to be probable that
the debt or property attached or sought to be attached belongs to some third person or
that any third person has a line or charge upon or an interest in it, the Court may order
such third person to appear and state the nature and particulars of his claim, if any, to
such debt or property and prove the same.
46E. Order to be made on hearing such persons.—After hearing such third person and
any other person who may subsequently be ordered to appear, or in the case of such
third or other person not appearing when ordered, the Court may pass such order as is
hereinbefore provided, or make such other order as it thinks fit, upon such terms, in all
cases with respect to the lien, charge or interest, if any, of such third or other persons
as may seem fit and proper.
46F. Payment or delivery under order to be a valid discharge.—Payment or delivery

made by the garnishee on a notice under rule 46A or under any such order as aforesaid
shall be a valid discharge to him as against the judgment-debtor, and any other person
ordered to appear as aforesaid, for the amount paid, delivered or realised although
such order or the judgment may be set aside or reversed.
46G. Procedure re: debt owing from a firm.—Debts owing from a firm carrying on
business within the jurisdiction of the Court may be proceeded against under rules 46A
to 46E of this Order, although one or more members of such firm may be resident
outside the jurisdiction:
Provided that if any person having the control or management of the partnership
business or any member of the firm within the jurisdiction is served with the garnishee
notice, an appearance by any member pursuant to such notice shall be sufficient
appearance by the firm.
46H. Costs to be in the discretion of the Court.—The cost of any application made
under rule 46A and of any proceedings arising therefrom or incidental thereto or any
order made thereon shall be in the discretion of the Court.
46-I. Orders appealable.—An order made under rule 46B, 46C or 46E shall have the
force as a decree and shall be appealable as such."
Madras (Pondicherry).—The following amendments were made by Madras Gazette,

dated 10-8-1955.
Add the following rules:-
"46A. The Court may in the case of any debt due to the judgment-debtor (other than a
debt secured by a mortgage or a charge or a debt recoverable only in a Revenue Court
or a debt on a negotiable instrument the amount of which exceeds the pecuniary
jurisdiction of the Court) which has been attached under Order XXI, rule 46, and in the
case of a negotiable instrument which has been attached under Order XXI, rule 51,
upon the application of the decree-holder, issue notice to the person liable to pay such
debt (hereinafter called the garnishee) calling upon him to appear before the Court and
show cause why he should not pay the debt due from him to such judgment-debtor or
so such thereof as may be sufficient to satisfy the decree and costs of execution.
46B. If the granishee does not appear or show cause in answer to the notice issued
under rule 46A or if he does not dispute his liability or its extent, the Court may direct
the garnishee within such time as it may allow to pay into Court the debt or the amount
due under the negotiable instrument as the case may be or so much thereof as may be
sufficient to satisfy the decree and the costs of the execution proceedings.
46C. If the garnishee disputes his liability or its extent, the Court may decide the
dispute and thereafter direct the garnishee within such time as it may allow to pay into
Court such sum as it has found to be due from him or so much thereof as may be
sufficient to satisfy the decree and the costs of the proceedings:
Provided that where the garnishee admits his liability but disputes its extent the decree-
holder does not seek to recover from the garnishee any sum in excess of what he
admits is due from him, the Court shall not be bound to decide the dispute and may
direct the garnishee to pay such sum or so much thereof as is sufficient to satisfy the
decree and the costs of the execution proceedings.
46D. If the garnishee alleges that the debt belongs to some third person or that a third
person has a lien or charge or other interest, upon or in it, the Court may order such
third person to be served with notice to appear and state the nature and particulars of
his claim.
46E. After hearing the garnishee or such third person and any other person who may
subsequently be ordered to appear, or in the case of such third or other person not
appearing as ordered, the Court may pass such order as is provided for in the foregoing
rules or such other order as it shall think fit, upon such terms in all cases with respect
to the lien, charge or interest, if any, of such third person or other person as shall seem
just and reasonable.
46F. Any payment made by the garnishee in pursuance of or in execution of an order

under these rules shall be a valid discharge to him as against the judgment-debtor or
any other person ordered to appear as aforesaid, for the amount paid, or realized
although such order or judgment may be set aside or reversed.
46G. If at any stage of the proceedings under rules 46A to 46F the Court considers that
the matter is too complicated to be dealt with under the above said provisions, it may
drop the proceedings leaving the other rights and remedies of the parties unaffected.
46H. The costs of any application made under the forgoing rules and of any
proceedings arising from or incidental to such application, shall be in the discretion of
the Court.
46-I. An order passed by the Court determining the liability of a garnishee or directing
payment by him under rules 46B, 46C and 46E shall be executed as if it were a decree
and shall be appealable as such."
Orissa.—Same as those of Patna.
Patna.—For rules dealing with the same topic, see rules 63A to 63H added by the Patna
High Court.
143 Ins. Sections 46A to 46I by Code of Civil Procedure (Amendment) Act, 104 of 1976, section
72 (w.e.f. 1-2-1977).
144 Ins. by Maharashtra Government Gazette, dated 20-4-1983, Pt IV, Ka, p 100.
145 Ins.—Mah. Govt. Gaz., dated 20-4-1989, Pt IV, Ka, p 100.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46B. Order against
garnishee
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46B.
Order against garnishee
Where the garnishee does not forthwith pay into Court the amount due from him to
the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the
costs of execution, and does not appear and show cause in answer to the notice, the
Court may order the garnishee to comply with the terms of such notice, and on such
order, execution may issue as though such order were a decree against him.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46C. Trial of disputed
questions
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46C.
Trial of disputed questions
Where the garnishee disputes liability, the Court may order that any issue or question
necessary for the determination of liability shall be tried as if it were an issue in a suit,
and upon the determination of such issue shall make such order or orders as it deems
fit:
Provided that if the debt in respect of which the application under rule 46A is made is
in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court
shall send the execution case to the Court of the District Judge to which the said
Court is subordinate, and thereupon the Court of the District Judge or any other
competent Court to which it may be transferred by the District Judge shall deal with it
in the same manner as if the case had been originally instituted in that Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46D. Procedure where debt
belongs to third person
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46D.
Procedure where debt belongs to third person
Where it is suggested or appears to be probable that the debt belongs to some third
person, or that any third person has a lien or charge on, or other interest in, such debt,
to Court may order such third person to appear and state the nature and particulars of
his claim, if any, to such debt and prove the same.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46E. Order as regards third
person
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46E.
Order as regards third person
After hearing such third person and any person or persons who may subsequently be
ordered to appear, or where such third or other person or persons do not appear when
so ordered, the Court may make such order as is hereinbefore provided, or such other
order or orders upon such terms, if any, with respect to the lien, charge or interest, as
the case may be, of such third or other person or persons as it may deem fit and
proper.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46F. Payment by garnishee
to be valid discharge
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46F.
Payment by garnishee to be valid discharge
Payment made by the garnishee on notice under rule 46A or under any such order as
aforesaid shall be a valid discharge to him as against the judgment-debtor and any
other person ordered to appear as aforesaid for the amount paid or levied, although
the decree in execution of which the application under rule 46A was made, or the
order passed in the proceedings on such application, may be set aside or reversed.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46G. Costs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46G.
Costs
The costs of any application made under rule 46A and of any proceeding arising
therefrom or incidental thereto shall be in the discretion of the Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46H. Appeals
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46H.
Appeals
An order made under rule 46B, rule 46C or rule 46E shall be appealable as a decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 46I. Application to
negotiable instruments
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 46I.
Application to negotiable instruments
The provisions of rules 46A to 46H (both inclusive) shall, so far as may be, apply in
relation to negotiable instruments attached under rule 51 as they apply in relation to
debts.]
COMMENT.—
If the debtor resides within jurisdiction, a debt due to him can be attached even though
it is payable outside jurisdiction. Orders of attachment have accordingly been issued
under this rule, on shares held by the judgment-debtor, even though the registered
office of the place of business of the company in which the shares were held were
outside jurisdiction.147
It has been held by the Supreme Court that where merely prohibitory order is issued
under O XXI, rule 46(1) and attachment made in that manner, the person to whom order
is issued does not become surety for the performance of decree.148
The law relating to future and contingent debts was stated by the Supreme Court in
Shanti Prasad v Director of Enforcement, AIR 1962 SC 1764 : (1963) 2 SCR 297 : (1963)
33 Com Cas 231 as follows:
A contingent debt is strictly speaking not a debt at all. In its ordinary, as well as its legal
sense, a debt is a sum of money payable under an existing obligation. It may be payable
forthwith solvendum in praesenti. Then it is a debt due. Or it may be payable at a future date,
Solvendum in futuro. Then it is a debt accruing. But in either case it is a debt. But a
contingent debt has no present existence, because it is payable only when the contingency
happens and eshypothesi that may or may not happen.
It has been held by the Supreme Court in Manna Lal Khetan v Kedar Nath Khetan, AIR
1977 SC 536 : (1977) 2 SCC 424 : (1977) 47 Com Cas 185 as follows:
Order XXI rule 46 of the Code of Civil Procedure lays down that in the case of shares in the
capital of a corporation the attachment shall be made by a written order prohibiting in the
case of the share, the person in whose name the share may be standing from transferring
the same. In the present case, in addition to the prohibition issued under Order XXI, rule 46 a
separate prohibitory order was issued to the company in Form 18 in Appendix E of the First
Schedule of the Code of Civil Procedure. Therefore, the company by registering the transfer
of shares was obviously permitting the transfer and such action on the part of the company
being in violation of the prohibition is contrary to law.149
New rules 46-A to 46-I, were added by the Amending Act of 1976. These newly added
rules lay down procedure in garnishee case. They mainly follow the amendments which
have already been made by the Calcutta High Court.
147 MAA Raoof v KG Lakshmipathi, AIR 1969 Mad 268 ; see also Sarangdhar Sinha v Parvati
Kuer, AIR 1968 Pat 370 .
148 Chouthi Prasad v UOI, AIR 1967 SC 1080 : (1967) 1 SCR 207 .
149 AIR 1977 SC 536 : (1972) 2 SCC 424 (431) : (1977) 47 Com Cas 185 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 47. Attachment of share in
movables
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 47.
Attachment of share in movables
Where the property to be attached consists of the share or interest of the judgment-
debtor in movable property belonging to him and another as co-owners, the
attachment shall be made by a notice to the judgment-debtor prohibiting him from
transferring the share or interest or charging it in any way.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 48. Attachment of salary or
allowances of servant of the Government or railway company or local authority
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 48.
Attachment of salary or allowances of servant of the Government or railway
company or local authority
(1) Where the property to be attached is the salary or allowances of a150 [servant
of the Government] or of a servant of a railway company or local authority,
151[or of a servant of a corporation engaged in any trade or industry which is
established by a Central, Provincial or State Act, or a Government company as
defined in Section 617 of the Companies Act, 1956 (1 of 1956)], the Court,
whether the judgment-debtor or the disbursing officer is or is not within the
local limits of the Court's jurisdiction, may order that the amount shall, subject
to the provisions of Section 60, be withheld from such salary or allowances
either in one payment or by monthly instalments as the Court may direct; and,
upon notice of the order to such officer as 152[the appropriate Government may
by notification in the Official Gazette,] appoint 153[in his behalf,—
(a) where such salary or allowances are to be disbursed within the local
limits to which this Code for the time being extends, the officer or other
person whose duty it is to disburse the same shall withhold and remit to
the Court the amount due under the order, or the monthly instalments,
as the case may be;
(b) where such salary or allowances are to be disbursed beyond the said
limits, the officer or other person within those limits whose duty it is to
instruct the disbursing authority regarding the amount of the salary or
allowances to be disbursed shall remit to the Court the amount due
under the order, or the monthly instalments, as the case may be, and
shall direct the disbursing authority to reduce the aggregate of the
amounts from time to time to be disbursed by the aggregate of the
amounts from time to time remitted to the Court].
(2) Where the attachable proportion of such salary or allowances is already being
withheld and remitted to a Court in pursuance of a previous and unsatisfied
order of attachment, the officer appointed by 154[the appropriate Governments]
in this behalf shall forthwith return the subsequent order to the Court issuing it
with a full statement of all the particulars of the existing attachment.
155
[(3) Every order made under this rule, unless it is returned in accordance with
the provisions of sub-rule (2), shall, without further notice or other process,
bind the appropriate Government or the railway company or local authority
or Corporation or Government Company, as the case may be, while the
judgment-debtor is within the local limits to which this Code for the time
being extends and while he is beyond those limits, if he is in receipt of any
salary or allowances payable out of the Consolidated Fund of India or the
Consolidated Fund of the State or the funds of a railway company or local
authority or Corporation or Government Company in India ; and the
appropriate Government or the railway company or local authority or
Corporation or Government Company, as the case may be, shall be liable for
any sum paid in contravention of this rule.]
156[ Explanation.— In this rule, "appropriate Government" means,—
(i) as respects any person in the service of the Central Government, or

any servant of a railway administration or of a cantonment authority
or of the port authority of a major port, or any servant of a
corporation engaged in any trade or industry which is established by
a Central Act, or any servant of a Government Company in which any
part of the share capital is held by the Central Government or by more
than one State Governments or partly by the Central Government and
partly by one or more State Governments, the Central Government;
(ii) as respects any other servant of the Government, or a servant of any

other local or other authority, or any servant of a corporation
engaged in any trade or industry which is established by a Provincial
or State Act, or a servant of any other Government Company, the
State Government.]
Madras (ROC No. 1310 of 1926).—At the end of sub-rule (1) (a) substitute a comma for
the period and add the following:—
"such amount or instalment being calculated to the nearest anna by fractions of an

anna or six pies and over being considered as one anna and omitting amounts less
than six pies." (ROC No. 1310 of 1926); See Act 26 of 1968, Section 3 and Schedule
Part II (w.e.f. 5-9-1968)
COMMENT.—
In sub-rule (1) of this rule 48, after the words "local authority" the words "or of a servant
of a corporation engaged in any trade or industry which is established by a Central,
Provincial or State Act, or a Government Company as defined in section 617 of the
Companies Act, 1956", have been inserted and sub-rule (3) including explanation
thereto has been substituted by a new rule by the Amending Act of 1976. The
amendment seeks to cover the employees of corporations engaged in trade or industry
and established by statute or Government companies so as to place them on the same
footing as Government servants.
150 Subs. for the words "public officer" by section 3 of Act 5 of 1943.
152 Subs. by Code of Civil Procedure (Amendment) Act 25 of 1942, section 3 and sch. II, for
"the Central Government or the Provincial Government may by notification in their Official
Gazette".
153 Subs. for the original words by section 2 Code of Civil Procedure (Amendment) Act 26 of
1939.
154 Subs. by Code of Civil Procedure (Amendment) Act of 1942, section 3 and sch. II for "the
Central Government or the Provincial Government as the case may be".
(w.e.f. 1-2-1977).
156 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for Explanation
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 48A. Attachment of salary
or allowances of private employees
© 2020 LexisNexis
THE FIRST SCHEDULE
157[R. 48A.
Attachment of salary or allowances of private employees
(1) Where the property to be attached is the salary or allowances of an employee

other than an employee to whom rule 48 applies, the Court, where the
disbursing officer of the employee is within the local limits of the Court's
jurisdiction, may order that the amount shall, subject to the provisions of
Section 60, be withheld from such salary or allowances either in one payment
or by monthly instalments as the Court may direct; and upon notice of the
order to such disbursing officer, such disbursing officer shall remit to the Court
the amount due under the order, or the monthly instalments, as the case may
be.
(2) Where the attachable portion of such salary or allowances is already being
withheld or remitted to the Court in pursuance of a previous and unsatisfied
order of attachment, the disbursing officer shall forthwith return the
subsequent order to the Court issuing it with a full statement of all the
particulars of the existing attachment.
(3) Every order made under this rule, unless it is returned in accordance with the
provisions of sub-rule (2), shall, without further notice or other process, bind
the employer while the judgment-debtor is within the local limits to which this
Code for the time being extends and while he is beyond those limits, if he is in
receipt of salary or allowances payable out of the funds of an employer in any
part of India; and the employer shall be liable for any sum paid in contravention
of this rule.]
COMMENT.—
Rule 48-A has been inserted in order to provide for the procedure of attachment of
salary and allowance of the employees employed by private employers.

partnership property
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 49.
Attachment of partnership property
(1) Save as otherwise provided by this rule, property belonging to a partnership

shall not be attached or sold in execution of a decree other than a decree
passed against the firm or against the partners in the firm as such.
(2) The Court may, on the application of the holder of a decree against a partner,
make an order charging the interest of such partner in the partnership property
and profits with payment of the amount due under the decree, and may, by the
same or a subsequent order, appoint a receiver of the share of such partner in
the profits (whether already declared or accruing) and of any other money
which may be coming to him in respect of the partnership, and direct accounts
and inquiries and make an order for the sale of such interest or other orders as
might have been directed or made if a charge had been made in favour of the
decree-holder by such partner, or as the circumstances of the case may
require.
(3) The other partner or partners shall be at liberty at any time to redeem the
interest charged or, in the case of a sale being directed, to purchase the same.
(4) Every application for an order under sub-rule (2) shall be served on the
judgment-debtor and on his partners or such of them as are within 158[India].
(5) Every application made by any partner of the judgment-debtor under sub-rule
(3) shall be served on the decree-holder and on the judgment-debtor, and on
such of the other partners as do not join in the application and as are within
159[India].
(6) Service under sub-rule (4) or sub-rule (5) shall be deemed to be service on all
the partners, and all orders made on such applications shall be similarly
served.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 50. Execution of decree
against firm
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 50.
Execution of decree against firm
(1) Where a decree has been passed against a firm, execution may be granted—
(a) against any property of the partnership;
(b) against any person who has appeared in his own name under rule 6 or
rule 7 or Order XXX or who has admitted on the pleadings that he is, or
who has been adjudged to be, a partner;
(c) against any person who has been individually served as a partner with a
summons and has failed to appear:
Provided that nothing in this sub-rule shall be deemed to limit or otherwise

affect the provisions of 160[Section 30 of the Indian Partnership Act, of 1932 (9
of 1932)].
(2) Where the decree-holder claims to be entitled to cause the decree to be

executed against any person other than such a person as is referred to in sub-
rule (1), clauses (b) and (c), as being a partner in the firm, he may apply to the
Court which passed the decree for leave, and where the liability is not disputed,
such Court may grant leave, or, where such liability is disputed, may order that
the liability of such person be tried and determined in any manner in which any
issue in a suit may be tried and determined.
(3) Where the liability of any person has been tried and determined under sub-rule
(2), the order made thereon shall have the same force and be subject to the
same conditions as to appeal or otherwise as if it were a decree.
(4) Save as against any property of the partnership, a decree against a firm shall
not release, render liable or otherwise affect any partner therein unless he has
been served with a summons to appear and answer.
161
[(5) Nothing in this rule shall apply to a decree passed against a Hindu
undivided family by virtue of the provisions of rule 10 of Order XXX.]
Allahabad.—The following amendments were made by Allahabad High Court, (1-6-1957).
In sub-rule (2), add the words "or to which the decree is transferred for execution"
between the words "which passed the decree" and the words "for leave".
Patna.—In sub-rule (2), add the words "or to the Court to which it is sent for execution"
after the words "passed the decree" and before the words "for leave".
COMMENT.—
Though rule 50 deals with execution, really it is a part of the rules in O XXX. A decree
can be executed against persons who are not summoned in the suit as partners but
rule 50(2) gives them an opportunity of showing cause. The plaintiffs must prove their
liability. The enquiry under O XXI rule 50(2) does not entitle the person summoned to
reopen the decree against the firm. He can only prove that he was not a partner and in
a proper case that the decree is the result of collusion, fraud or the like. The proper
meaning of the words "such person" is that primarily the question to try is whether the
person against whom the decree is sought to be executed was a partner of the firm
when the cause of action accrued. It is to be remembered that the leave that is sought
in respect of execution against the personal property of such partners and the leave
that is granted or refused affects only such property and not the property of the
firm.162
The liability of the partners to pay the dues of the firm does not arise by virtue of this
rule but on account of the basic premise under section 25 of the Partnership Act.
Rule 50 merely reiterates the above principle and does not create a new liability.163
In the proviso to sub-rule (1) of this rule 50, for the words "section 247 of the Indian
Contract Act, 1872", the words "section 30 of the Indian partnership Act, 1932", were
substituted and sub-rule (5) was added. This new rule makes it clear that the rule does
not apply to a Hindu undivided family.
Under this rule 50, execution may be granted against the partnership property. It may
also be granted against the partners, in which case the decree-holder may proceed
against the separate property of the partners.
Relying upon O XXI, rule 50(1)(b) & (c) a plaintiff who has obtained a decree against the
firm may execute it against any person who has been individually served with the
summons as a partner and has failed to appear and also against any person who has
appeared in his own name under rule 6 or 7 of O XXX. In Topanmall Chhotamal v
Kundomal Gangaram, AIR 1960 SC 388 the Supreme Court held that where the decree
negatived personal liability and declared that partnership properties were liable, an
application for leave under this rule is not maintainable.
In execution of decree against firm the decree holder may proceed against separate
property of partners.164
The law is settled now that the person to whom summons is issued under sub-rule (3)
can only raise a question that he is not a partner or that the decree was the result of
fraud or collusion and that he cannot raise any other question such as the validity or
executability of the decree.165 A decree against a firm may be executed against the
property of the partnership and against all the partners.166 A collector can execute a
certificate of demand for income-tax due from an unregistered firm against a
partner.167
words, (w.e.f. 1-2-1977).
162 Mandalsa v M Ramnarain, AIR 1965 SC 1718 (1721) : (1965) 3 SCR 421 : 1966 Mah LJ 273 .
163 Third ITO Salem v Arunagiri Chettiar, AIR 1996 SC 2160 (2163) : (1996) 9 SCC 33 ; ITO,
Assessment II, Calicut v CV George, (1976) 105 ITR 144 overruled.
164 Ashutosh v State of Rajasthan, AIR 2005 SC 3434 (3438).
165 Gambhir Mal v JK Jute Mills Co Ltd, AIR 1963 SC 243 : (1963) 2 SCR 190 .
166 Mandalsa v M Ramnarain, AIR 1965 SC 1718 : (1965) 3 SCR 421 : 68 Bom LR 31.
167 Sahu Rajeshwar v ITO, AIR 1969 SC 667 : (1969) 1 SCR 999 : (1969) 72 ITR 617 : (1969) 1
ITJ 851 .

negotiable instruments
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 51.
Attachment of negotiable instruments
Where the property is a negotiable instru ment not deposited in a Court, nor in the
custody of a public officer, the attachment shall be made by actual seizure, and the
instrument shall be brought into Court and held subject to further orders of the Court.
Allahabad.—Substituted the following for rule 51, namely:—
"51. Where any property has been attached in execution of a decree and the Court for
any reason passes an order dismissing the execution application the attachment shall,
in the absence of any order passed by the Court, be deemed to subsist for a period of
fifteen days after the dismissal of the application for execution and no fresh
attachment of the same property shall be necessary if a fresh application for execution
is made within such period of fifteen days. If no such application is made, the
attachment shall cease:
Provided that in the case of movable property the attachment shall not be continued
after an order dismissing the exception application has been passed unless the decree
holder has given his consent in writing and therein deposit with the Court on his behalf
a sum of money sufficient to meet the expenses of the attachment during the extended
period."—(1-7-1957).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 52. Attachment of property
in custody of Court or public officer
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 52.
Attachment of property in custody of Court or public officer
Where the property to be attached is in the custody of any Court or public officer, the
attachment shall be made by a notice to such Court or officer, requesting that such
property, and any interest or dividend becoming payable thereon, may be held subject
to the further orders of the Court from which the notice is issued:
Provided that, where such property is in the custody of a Court, any question of title or
priority arising between the decree-holder and any other person, not being the
judgment-debtor, claiming to be interested in such property by virtue of any
assignment, attachment or otherwise, shall be determined by such Court. [AP, KNT, M]
[Further proviso added in AP, Karnataka & Mad].
Karnataka.—Add a proviso as Proviso (ii) of Madras without the word "Explanation" in

para 2. (30-3-1967).
Madras (P Dis No 445 of 1935).— Add the following as proviso (ii) and renumber the
existing proviso as (i):—
"(ii) Provided further that, when the Court whose attachment is determined to be prior
receives or realises such property the receipt or realization shall be deemed to be on
behalf of all the Courts in which there have been attachments of such property in
execution of money decree prior to the receipt of such asset.
Explanation.—Priority of attachment in the case of attachment of property in the

custody of Court shall be determined on the same principle as in the case of
attachment of property not in the custody of Court."
COMMENT.—
It has been held by a full bench of Madras High Court in Vishwanathan v Arunachalam,
AIR 1921 Mad 218 (FB) : (1921) 44 Mad 100 : 60 IC 302 that ratable distribution like
attachment is a process of execution and is, therefore, made by the attaching Court;
and it must be made by the attaching Court and not the custody Court.
The custody Court has no jurisdiction under the present rule to enquire into any claim
not based on assignment or prior attachment; it has not jurisdiction to enquire whether
moneys in Court attached execution of a personal decree against the Mahant belonged
to him in his representative capacity. This rule applies when the same Court is both the
executing Court and attaching Court.
Attachment of debt.—
In a case the budget provision fastened on to the claim of the cooperative society
against the State and it ripened into a debt payable to the cooperative society.
Therefore, in the circumstances, the attachment levied by the city civil Court was
perfected by bringing money to the Court.168
168 Hyderabad Co-op Commr Corpn v Syed Mohiuddin, AIR 1975 SC 2254 (2257) : (1975) 2 SCC
624 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 53. Attachment of decrees
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 53.
Attachment of decrees
(1) Where the property to be attached is a decree, either for the payment of money
or for sale in enforcement of a mortgage or charge, the attachment shall be
made,—
(a) if the decrees were passed by the same Court, then by order of such
Court, and
(b) if the decree sought to be attached was passed by another Court, then
by the issue to such other Court [A, B, C, D, GAU, HP, PU, P] of a notice
by the Court which passed the decree sought to be executed, requesting
such other Court [C, GAU] to stay the execution of its decree unless and
until—
(i) the Court which passed the decree sought to be executed cancels
the notice, or
169
[(ii) (a) the holder of the decree sought to be executed, or
(b) his judgment-debtor with the previous consent in

writing of such decree-holder, or with the permission of
the attaching Court,
applies to the Court receiving such notice to execute

the attached decree.]
(2) Where a Court makes an order under clause ( a ) of sub-rule (1), or receives an
application under sub-head ( ii ) of clause ( b ) of the said sub-rule, it shall, on
the application of the creditor who has attached the decree or his judgment-
debtor, proceed to execute the attached decree and apply the net proceeds in
satisfaction of the decree sought to be executed.
(3) The holder of a decree sought to be executed by the attachment of another

decree of the nature specified in sub-rule (1) shall be deemed to be the
representative of the holder of the attached decree and to be entitled to
execute such attached decree in any manner lawful for the holder thereof.
(4) Where the property to be attached in the execution of a decree is a decree

other than a decree of the nature referred to in sub-rule ( 1 ), the attachment
shall be made, by a notice by the Court which passed the decree sought to be
executed, to the holder of the decree sought to be attached, prohibiting him
from transferring or charging the same in any way; and, where such decree has
been passed by any other Court, also by sending to such other Court [A, B, C,
GAU, MP] a notice to abstain from executing the decree sought to be attached
until such notice is cancelled by the Court from which it was sent.
(5) The holder of a decree attached under this rule shall give the Court executing
the decree such information and aid as may reasonably be required.
(6) On the application of the holder of a decree sought to be executed by the

attachment of another decree, the Court making an order of attachment under
this rule shall give notice of such order to the judgment-debtor bound by the
decree attached; and no payment or adjustment of the attached decree made
by the judgment-debtor [GAU] in contravention of such order 170[ with
knowledge thereof or ] after receipt of notice thereof, either through the Court
or otherwise, shall be recognized by any Court so long as the attachment
remains in force.
Allahabad (Notfn No. 4084/35(a)-3(7); 24-7-1926).—(a) In sub-rule (1)(b) and in sub-

rule (4) after the words "to such other Court" add the words "and to any other Court to
which the decree has been transferred for execution."
Allahabad.—(b) In sub-rule (6) for the words "after receipt of notice thereof" read the
words "after receipt of notice or with the knowledge thereof".
page 416; Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 385 dated 1-4-1987.
(1) For sub-rule (1)(b) substitute the following :—
(b) if the decree sought to be attached was passed by another Court, then by the issue
to such other Court of a notice by the Court which passed the decree sought to be
executed, requesting such other Court and to any other Court to which the decree has
been transferred for execution to stay the execution of its decree unless and until—
(i) the Court which passed the decree sought to be executed cancels the notice, or
(ii) (a) the holder of the decree sought to be executed, or
(b) his judgment-debtor, with the previous consent in writing of such decree-holder, or
with the permission of the attaching Court, applies to the Court receiving such notice to
execute the attached decree. (1-10-1983)
(2) For the existing sub-rule (4) substitute, the following:—
"(4) Where the property to be attached in the execution of a decree is a decree other
than a decree of the nature referred to in sub-rule (1), the attachment shall be made, by
a notice by the Court which passed the decree sought to be executed to the holder of
the decree sought to be attached, prohibiting him from transferring or charging the
same in any way; and, where such decree has been passed by any other Court also by
sending to such other Court and to any other Court to which the decree has been
transferred for execution a notice to abstain from executing the decree sought to be
attached until such notice is cancelled by the Court from which it was sent". (1-10-
1983)
Calcutta (Notfn No. 3516-G of 3-2-1953).—(a) In sub-rule (1)(b), insert after the words
"then by the issue to such other Courts" the words "and to any Court to which it has
been transferred for execution" and also insert therein the words "or Court" after the
words "requesting such other Court".
(b) In sub-rule (4), insert after the words "by sending to such other Courts" the words
"and to any Court to which it has been transferred for execution".
Karnataka.—Same as in Madras. (30-3-1967).
Kerala (Notfn No B1-3312/58; 7-4-1959).—Same as in Madras.
dated 16-9-1960.
Substitute—
(1) "to such other Court and to any other Court to which the decree has been
transferred for execution" for the words "to such other Court" occurring in clause (b) of
sub-rule (1) and in sub-rule (4); and
(2) the following as sub-clause (ii) of clause (b) of sub-rule (1) in place of the existing
sub-clause:—
"(ii) the holder of the decree sought to be executed or his judgment-debtor with the
consent of the said decree-holder expressed in writing or with the permission of the
attaching Court applies to the Court receiving such notice to execute the attached
decree." (16-9-1960)
Madras (GOMs. No. 2084-Home of 2-9-1936—HCP Dis No. 691 of 13-10-1936).—
(GO No. 87-Home (Judl) of 11-1-1918).—Add the following as sub-rule (1)(c):—
"(1)(c) if decree sought to be attached has been sent for execution to another Court,
the Court which passed the decree shall send a copy of the said notice to the former
Court, and thereupon the provisions of clause (b) shall apply in the same manner as if
the former Court had passed the decree and the said notice had been sent to it by the
Court which issued it."
III-A, Page 69.
Sub-rule (1)(b) as substituted earlier, deleted.
Patna.— Substitute the following for rule 53(1)(b) :—
"(b) If the decree sought to be attached was passed by another Court, then by the issue
to such other Court (or to the Court to which the decree may have been transferred for
execution) of a notice by the Court before which the application has been made
requesting such other Court (or the Court to which the decree may have been
transferred for execution, as the case may be) to stay the execution of the decree
sought to be attached unless and until—
(i) the Court which has issued the notice shall cancel the same, or
(ii) the holder of the decree sought to be executed, or his judgment-debtor, with the
consent of the said decree-holder expressed in writing or the permission of the
attaching Court, applies to such other Court (or the Court to which the decree
may have been transferred for execution) to execute the attached decree".
Punjab (Notfn No. 125-Gaz XI-Y-14 of 7-4-1932 and No. 225-R-XI-Y-14 of 5-8-1937).—
Rule 53 has been substituted by another rule with the following changes in the existing
rule:—
(a) In sub-rule (1)(b) after the words "such other Court" insert "and to any Court to which
it has been transferred for execution."
(See later amendments by 1976 Amendment Act).
COMMENT.—
Sub-clause (ii) of Clause (b) of rule 53(1) was substituted and in sub-rule (6) after the
words "in contravention of such order", the words "with knowledge thereof or" have
been inserted.
It has been held by a full bench of Andhra Pradesh High Court that attachment under O
XXI rule 5 is not an injunction. Neither it is a stay order within the meaning of section of
Limitation Act.171
Where a decree was attached in the execution of another decree and the execution
application was struck off, thereafter, a fresh application for execution was made after
reversal of the attachment order. There was no question of limitation because the
application was filed within three years from the date when the bar against the
execution was raised. The subsequent application was a continuation of the execution
proceedings. The striking off the application did not amount to any order deciding the
merits of the application.172
169 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for sub-clause
(ii), (w.e.f. 1-2-1977).
171 Katragadda Rammyya v Kolli Nageswara Rao, AIR 1976 AP 250 (FB).
172 Shanti Ranjan Das Gupta v Dasuram, AIR 1976 SC 2486 : (1976) 2 SCC 188 .

immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 54.
Attachment of immovable property
(1) Where the property is immovable, the attachment shall be made by an order
prohibiting the judgment-debtor from transferring or charging the property in
any way, and all persons from taking any benefit from such transfer or charge.
[B, G].
173
[(1A) The order shall also require the judgment-debtor to attend Court on a
specified date to take notice of the date to be fixed for setting the terms of
the proclamation of sale.]
(2) The order shall be proclaimed at some place on or adjacent to such property by
beat of drum or other customary mode, and a copy of the order shall be affixed
on a conspicuous part of the property [K] and then upon a conspicuous part of
the Court-house, and also, where the property is land paying revenue to the
Government, in the office of the Collector of the district in which the land is
situate, 174[and where the property is land situate in a village, also in the office
of the Gram Panchayat, if any, having jurisdiction over that village.] [A, AP, B, C,
D, G, GAU, HP, KNT, K, MP, M, OR, P, PU].
Allahabad.—(a) (Notfn No. 5691/35 (a)-3 (9); 27-9-1941):—At the end of sub-rule (2) for
the full stop substitute a comma and add:—"and, where the property, whether paying
revenue to Government or otherwise, is situate within Cantonment limits, in the office
of the Local Cantonment Board and of the Military Estates Officer concerned".
(b) (Notfn No 4084/35 (a)-3 (7); 24-7-1926) :—Add the following as sub-rule (3) :—
"(3) The order shall take effect as against purchasers for value in good faith from the
date when a copy of the order is affixed on the property, and against all other
transferees from the Judgment-debtor from the date on which such order is made."
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, page 417;
Goa Gazette, dated 12-10-1987 (1-10-1983); Extra., S. 1, No. 28, Page 385, dated 1-4-
1987.
For existing rule 54 and its marginal note, substitute the following:
54. Attachment of immovable property.—(1) Where the property is immovable, the

attachment shall be made by an order prohibiting the judgment-debtor from
transferring or charging the property in any way, and all persons from taking any benefit
from such transfer or charge, such order shall take effect, where there is no
consideration for such transfer or charge, from the date of such order, and where there
is consideration for such transfer or charge, from the date when such order came to the
knowledge of the person to whom or in whose favour the property was transferred or
charged.
(1A) The order shall also require the judgment-debtor to attend Court on a specified
date to take notice of the date to be fixed for settling the terms of the proclamation of
sale.
(2) Copies of the order shall also be forwarded to the Collector with a request that
appropriate entries showing the attachment levied on the property may be caused to be
made in the revenue records, city survey records or village panchayat records as may
be required in the particular case.
(3) The order shall be proclaimed at some place on or adjacent to such property by
beat of drum or other customary mode, and a copy of the order shall be affixed on a
conspicuous part of the property and then upon a conspicuous part of the Court-house,
and also, where the property is land paying revenue to the Government, in the office of
the Collector of the District in which the land is situate, and also, where the property is
situate within Cantonment limits, in the office of the Local Cantonment Board and the
Military Estates Officer concerned, and, where the property is land situate in a village,
also in the office of the Gram Panchayat, if any, having jurisdiction over that village. (1-
10-1983). See also Goa Gaz. 12-10-1987, Ext. Sl. No. 28 p. 385 (1-4-1987).
(c) Renumber sub-rule (2) as sub-rule (3) and after the Collector of the district in which
the land is situate" add : "and also, where the property is situate within the Cantonment
limits in the office of the Local Cantonment Board and the Military Estates Officer
concerned".
Calcutta (a) (Notfn No 6149-G, of 26-7-1941).—Add the following to sub-rule (2) after
deleting the fullstop:—"and also, where the property is situated within cantonment limits,
in the office of the local Cantonment Board and the Military Estates Officer concerned".
(b) (Notfn No 3516-G, of 3-2-1933):—Add the following as sub-rule (3):—
"(3) Such order shall take effect, where there is no consideration for such transfer or
charge, from the date of the such order, and where there is consideration for such
transfer or charge, from the date when such order came to the knowledge of the person
to whom or in whose favour the property was transferred or charged, or from the date
when the order is proclaimed under sub-rule (2) whichever is earlier".
(1) Add the following to sub-rule (1):
"Such order shall take effect, where there is no consideration for such transfer or
charge, from the date of such order, and where there is consideration for such transfer
or charge, from the date when such order came to the knowledge of the person to
whom or in whose favour the property was transferred or charged."
(2) Add the following as sub-rule (2): Same as that of Bombay.

(3) Substitute a comma for the full stop at the end of sub-rule (2) and add the following
thereafter:
"and also, where the property is situate within Cantonment limits, in the office of the
Local Cantonment Board and the Military Estates Officer concerned." (17-8-1961)
Karnataka.—In sub-rule (2) delete the full stop at the end and add the following:—"and
where the property is situated within the limits of a Municipality or other local authority
also in the principal office of the said Municipality or the local authority". (30-3-1967).
Kerala (Notfn No B1-3312/58; 7-4-1959).—(i) Sub-rule (2) substituted, the change being
for the words beginning with "and then upon a conspicuous part of the Courthouse" to
end substitute "and thereupon a conspicuous part of the Court-house and also in the
village office or in case there is no such office, in the Taluk office of the place in which
the land is situate and where the property is situated within the limits of a Municipality
or Panchayat in the office of the Municipality or Panchayat within the limits of which
the property is situate".
(ii) Insert new Sub-rule (3) which is same as in Madras with the substitution of the
words.
'The order of attachment shall be deemed to have been made' by "The attachment shall
be deemed to have taken."
dated 16-9-1960.
(1) In sub-rule (2) delete the full stop at the end and add the following words:
"and also where the property is situate within Cantonment limits, in the office of the
Local Cantonment Board and the Military Estates Officer concerned".
(2) Add the following as sub-rule (3):
"(3) The order shall take effect as against purchasers for value in good faith from the
date when a copy of the order is affixed on the property and against all other
transferees from the judgment-debtor from the date on which such order is made." (16-
9-1960)
Madras.—(a) Substitute the following for sub-rule (2):—
"(2) The order shall be proclaimed at some place on or adjacent to such property by
beat of drum or other customary mode. A copy of the order shall be affixed on a
conspicuous part of the property and on a conspicuous part of the Court-house. Where
the property is land paying revenue to the Government, a copy of the order shall be
similarly affixed in the office of the Collector of the District where the land is situated.
Where the property is situated within Cantonment limits, the order shall be similarly
affixed in the office of the Local Cantonment Board and the Military Estates Officer
concerned, and where the property is situated within the limits of a Municipality, in the
office of the Municipality within the limits of which the property is situated."
Add the following as sub-rule (3):—
"(3) The order of attachment shall be deemed to have been made as against
transferees without consideration from the judgment-debtor from the date of the order
of the attachment, and as against all other persons from the date on which they
respectively had knowledge of the order of attachment or the date on which the order
was duly proclaimed under sub-rule (2), whichever is earlier."; See Act 26 of 1968,
Section 3 and Sch., Pt. II. (5-9-1968)
Patna (No 21-R of 28-1-1941).—Same as (a) of Madhya Pradesh.
Punjab (Notfn No. 125-Gaz XI-Y-14, of 7-4-1932; No 109-R1 XI-Y-14 of 31-4-1939 and
No. 273-R-XI-Y-14, of 30-7-1941).—Rule 54 has been substituted by another rule in
which the changes effected in the existing rules are:—
(a) At the end of sub-rule (2) add the following:—
"where the property is land situated in a Cantonment, copies of the order shall also be
forwarded to the Cantonment Board and to the Military Estates Officer in whose area
that Cantonment is situated".
(b) Add the following as sub-rule (3):—
"(3) The order shall take effect, as against persons claiming under a gratuitous transfer
from the judgment-debtor, from the date of the order of attachment, and as against
others from the time they had knowledge of the passing of the order of attachment or
from the date of the proclamation, whichever is earlier." (7-4-1932)
COMMENT.—
Sub-rule (1-A) was inserted and in sub-rule (2) the words "and where the property is
land situated in village, also in the office of the Gram Panchayat, if any having
jurisdiction over that village" were inserted at the end. This rule has been amended to
provide that in the case of a land situated in a village, a copy of the order should be
affixed in the office of the panchayat, if any, constituted for that village. This is intended
to secure adequate publicity with regard to the attachment.
The judgment-debtor is prohibited from transferring or charging property attached in

any way and all persons from taking any benefit from such transfer or charge. As long
as the attachment remains operative, no third party right can be created.175
It has been observed that the main object of the publication referred to in the rule is not
only to give the judgment debtor and others an opportunity to raise objection, if any, as
to the sale but also to enable to them to provide suitable purchasers for the property in
auction.176
Immovable property, attachment of.—
An attachment of an immovable property effected in execution of a decree will

continue until the said property is sold and sale is confirmed.177
Propriety of execution sale.—
In execution sale, notice to judgment-debtor is necessary at every stage. Sale gets

vitiated where attachment of property and issuance of sale proclamation is done
without notice to judgment debtor.178
175 Barnes Investments Ltd v Raj K Gupta, AIR 2001 SC 2818 (2820) : (2001) 7 SCC 94 .
176 Asharfi Lal v The State, AIR 1965 AP 215 ; see (1970) 28 SCW 174.
177 CS Mani v B Chinnasamy Naidu, AIR 2010 SC 3600 (3601).
178 Mahakal Automobiles v Kishan Swaroop Sharma, (2008) 13 SCC 113 : AIR 2008 SC 2061 :

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 55. Removal of attachment
after satisfaction of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 55.
Removal of attachment after satisfaction of decree
Where—
(a) the amount decreed with costs and all charges and expenses resulting from
the attachment of any property are paid into Court, or
(b) satisfaction of the decree is otherwise made through the Court or certified to
the Court, or
(c) the decree is set aside or reversed,
the attachment shall be deemed to be withdrawn, and, in the case of

immovable property, the withdrawal shall, if the judgment-debtor so desires, be
proclaimed at his expense, and a copy of the proclamation shall be affixed in
the manner prescribed by the last preceding rule. [A]
[Rule substituted in All].
Allahabad (Notfn No. 1477/35(a)-3(3); 1-6-1918).—Substitute the following for rule 55:—
"55. (1) Notice shall be sent to the sale officer executing a decree of all applications for
rateable distribution of assets made under Section 73(1) in respect of the property of
the same judgment-debtor by persons other than the holder of the decree for the
execution of which the original order was passed.
(2) Where—
(a) the amount decreed [which shall include the amount of any decree against the
same judgment-debtor, notice of which has been sent to the sale officer under
sub-section (1)], with costs and all charges and expenses resulting from the
attachment of any property are paid into Court, or
(b) satisfaction of the decree [including any decree passed against the same
judgment-debtor, notice of which has been sent to the sales officer under sub-
section (1)] is otherwise made through the Court or certified to the Court, or
(c) the decree [including any decree passed against the same judgment-debtor,
notice of which has been sent to the sale officer under sub-section (1)] is set
aside or reversed, the attachment shall be deemed to be withdrawn, and, in the
case of immovable property, the withdrawal shall, if the judgment-debtor so
desires, be proclaimed at his expense, and a copy of the proclamation shall be
affixed in the manner prescribed by the last preceding rule."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 56. Order for payment of
coin or currency notes to party entitled under decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 56.
Order for payment of coin or currency notes to party entitled under decree
Where the property attached is current coin or currency notes, the Court may, at any
time during the continuance of the attachment, direct that such coin or notes, or a
part thereof sufficient to satisfy the decree, be paid over to the party entitled under
the decree to receive the same.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 57. Determination of
attachment
© 2020 LexisNexis
THE FIRST SCHEDULE
179[R. 57.
Determination of attachment
(1) Where any property has been attached in execution of a decree and the Court,
for any reason, passed an order dismissing the application for the execution of
the decree, the Court shall direct whether the attachment shall continue or
cease and shall also indicate the period up to which such attachment shall
continue or the date on which such attachment shall cease.
(2) If the Court omits to give such direction, the attachment shall be deemed to
have ceased.]
Allahabad.—The following amendments were made by UP Gazette, dated 1-6-1957.
Substitute the following for rule 57, namely:—
"Where any property has been attached in execution of a decree and the Court for any
reason passes an order dismissing the execution application the attachment shall, in
the absence of any order passed by the Court, be deemed to subsist for a period of
fifteen days after the dismissal of the application for execution and no fresh
attachment of the same property shall be necessary if a fresh application for execution
is made within such period of fifteen days. If no such application is made, the
attachment shall cease:
Provided that in the case of movable property the attachment shall not be continued
after an order dismissing the execution application has been passed unless the decree-
holder has given his consent in writing and there is in deposit with Court on his behalf a
sum of money sufficient to meet the expenses of the attachment during the extended
period."
Bombay.—Substitute rule 57 as below:—
Determination of attachment.—Where any property has been attached in execution of a

decree and the Court for any reason passed an order dismissing an execution
application, the Court shall direct whether the attachment shall continue or cease. If
the Court omits to make an order and if the order dismissing the execution application
is appealable the attachment shall continue till expiry of the period prescribed for filing
an appeal or where appeal has been filed, till such further period as the appellate Court
may direct. (1-10-1983)
Calcutta (Andaman and Nicobar Islands)180.—Add the following words at the end of
the rule:
"unless the Court shall make an order to the contrary."

Ss. 13 and 15 (w.e.f. 1-12-1963) and Act 81 of 1971, S. 28(1), dated 21-1-1972.
Same as in Madhya Pradesh.
Karnataka181.— The following amendments were made by Karnataka Act, dated 30-3-
1967.
In rule 57, convert the full stop appearing at the end of the rule into a comma and add
the words "unless otherwise specifically ordered".
Kerala (Lakshadweep Islands)182.— The following amendments were made by Kerala

Act dated 9-6-1959.
Substitute the following for the last sentence in the rule, namely:—
"If no steps are taken pursuant to the attachment within three months of such
dismissal the attachment shall cease."
dated 16-9-1960.
Substitute the following rule for rule 57:-
"57. Where any property has been attached in execution of a decree, and the Court for
any reason passes an order dismissing the execution application, the Court shall direct
whether the attachment shall continue or cease. If the Court omits to make any such
direction, the attachment shall be deemed to have ceased to exist."
Madras (Pondicherry)183.— The following amendments were made by Madras Gazette,

dated 30-10-1936.
Substitute the following for rule 57:-
"57. (1) Where any property has been attached in execution of a decree and the Court
hearing the execution application either dismisses it or adjourns the proceeding to a
future date it shall state whether the attachment continues or ceases:
Provided that when the Court dismisses such an application by reason of the decree-
holder's default the order shall state that the attachment does cease.
(2) Where the property attached is a decree of the nature mentioned in sub-rule (1) of
rule 53 and the Court executing the attached decree dismisses the application for
execution of the attached decree, it shall report to the Court which attached the decree
the fact of such dismissal. Upon the receipt of such report the Court attaching the
decree shall proceed under the provisions of sub-rule (1) and communicate its decision
to the Court whose decree is attached."
III-A, Page 69.
Amendment to rule 57 as in force w.e.f. 7-1-1936, deleted.
High Court Amendments, prior to substitution of rule 57 in 1976.
Patna.— The following amendments were made by Patna Act, dated 7-1-1936.
Delete the last sentence and add the following sub-paragraph:-
"Upon every order dismissing an execution case in which there is an attachment, the
attachment shall cease unless the Court otherwise directs."
COMMENT.—
Where an application for execution is dismissed under rule 57 either by reason of the
decree debtor's default or otherwise a question arises whether an attachment already
effect in execution of the decree ceases or not. Rule 57 cover the cases where a
petition for execution is dismissed on account of the decree holder's default but does
not cover cases where the application is dismissed for any other reason. Accordingly,
the previous rule has been substituted by anew rule which empowers the Court to
direct in each case of dismissal whether the attachment is to be regarded as
continuing or not.
An order of restoration would certainly restore or revive the attachment for the period
during which it was in subsistence namely, prior to the dismissal of the execution
application.184
179 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for rule 57
(w.e.f. 1-2-1977).
180 See section 2 (7A), Supra .
181 See Act 31 of 1973, section 3 (1-11-1973).
182 See Act 37 of 1958, section 60, Reg. 8 of 1965, s, 3(2) and Act 34 of 1975, section 5 (1-11-
1975).
183 See Act 26 of 1968, section 3 and Sch., Pt II (w.e.f. 5-9-1968).
184 Nancy John Lyndon v Prabhati Lal, AIR 1987 SC 2061 (2163) : (1987) 4 SCC 78 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 58. Adjudication of claims
to, or objections to attachment of, property
© 2020 LexisNexis
THE FIRST SCHEDULE
185[Adjudication of Claims and Objections
R. 58.
Adjudication of claims to, or objections to attachment of, property
(1) Where any claim is preferred to, or any objection is made to the attachment of,
any property attached in execution of a decree on the ground that such
property is not liable to such attachment, the Court shall proceed to adjudicate
upon the claim or objection in accordance with the provisions herein
contained:
Provided that no such claim or objection shall be entertained—
(a) where, before the claim is preferred or objection is made, the property
attached has already been sold; or
(b) where the Court considers that the claim or objection was designedly or
unnecessarily delayed.
(2) All questions (including questions relating to right, title or interest in the
property attached) arising between the parties to a proceeding or their
representatives under this rule and relevant to the adjudication of the claim or
objection, shall be determined by the Court dealing with the claim or objection
and not by a separate suit.
(3) Upon the determination of the questions referred to in sub-rule (2), the Court
shall, in accordance with such determination,—
(a) allow the claim or objection and release the property from attachment
either wholly or to such extent as it thinks fit; or
(b) disallow the claim or objection; or
(c) continue the attachment subject to any mortgage, charge or other

interest in favour of any person; or
(d) pass such order as in the circumstances of the case it deems fit.
(4) Where any claim or objection has been adjudicated upon under this rule, the
order made thereon shall have the same force and be subject to the same
conditions as to appeal or otherwise as if it were a decree.
(5) Where a claim or an objection is preferred and the Court, under the proviso to
sub-rule (1), refuses to entertain it, the party against whom such order is made
may institute a suit to establish the right which he claims to the property in
dispute; but, subject to the result of such suit, if any, an order so refusing to
entertain the claim or objection shall be conclusive.]
Madras.—The following amendments were made by Tamil Nadu Government Gazette,

dated 15-7-1987, Part III, S. 2, Page 250 (No. 27).
After rule 58, insert as under:—
"58A. Order of attachment to be communicated to the Registering Officer.—Any order

of attachment passed under rule 54 of this order and any order raising the attachment
by removal, determination or release passed under rules 55, 57 or 58 of this order, shall
be communicated to the Registering Officer within the local limits of whose jurisdiction
the whole or any part of the immovable property comprised in such order, is situate."
COMMENT.—
Under the existing provisions of rules 58 to 63 there was a limited scope for
adjudication in execution and the matter could be further agitated by way of a regular
suit. In order to prevent protection of litigation, it was thought desirable to have all
questions (including questions of title) settled finally in the execution proceeding itself.
Hence, rules 60 to 63 have been repealed by the Amending Act of 1976.
A simple mortgagee after obtaining a decree puts a property to sale and purchases
with Court's leave and takes possession of the property. A person who obtained a prior
attachment for claim for promissory note could proceed only against the balance, if
any, of the sale price left after satisfying the mortgage decree-holder's claim.186
Any sale would be subject to the order that may be passed under this rule and the
result of the suit that may be filed challenging the order under this rule as it stood
before the amendment.187
Without determining the question referred to in rule 58(2) the Court would have no
jurisdiction to pass any order varying the orders of attachment.188
Declaratory decree coupled with decree for restitution.—
Once the decree which was the subject-matter of execution is declared to be not
binding, the plaintiff will be entitled to restitution. The decree can be a declaratory
decree coupled with a decree for restitution.189
Claim proceeding, not a suit.—
A claim proceeding under O XXI rule 58 is not a suit or a proceeding analogous to a

suit. An order in the claim proceedings does not operate as res judicata. It is because of
rule 63 that the order becomes conclusive.190
No objections at late stage.—
If no objection was raised to the auction sale when such objections ought to have been
raised and the title of the auction purchaser is confirmed, then it would disentitle the
joint owner of the property from raising such objections at the late stage.191
"Establish the right which he claims to the property in dispute".—
A suit brought under rule 63 (now rule 58(5)) would be concerned not only with the
question of possession, but also with the question of title.192
In executable decrees.—
Irregular or wrong decrees or orders are not necessarily null and void. In a suit for
possession the proceedings were initiated against heirs of deceased tenant. The notice
terminating tenancy was sent to heirs and legal representatives of the deceased by
registered post which had come back. However, notice under certificate of posting did
not come back. The notice was also affixed on the suit premises. From the record it
was also clear that the defendants were aware of proceedings and they had engaged
counsel who was present when the plaintiff was examined. Thereafter with the
permission of Court, the counsel withdrew his appearance because he had no
instructions in matter from the defendants and a decree was passed. The decree
having been passed by competent Court having jurisdiction over subject matter would
not be null and void and hence could not be objected in execution proceedings.193
Meaning of "sold".—
Word "sold" in rule 58, proviso, clause (a) means complete confirmed auction sale.
Objection to attachment of property is tenable even after auction sale.194
185 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for the
heading and rules 58 to 63 (w.e.f. 1-2-1977).
186 Kabidi Venku Sah v Syed Abdul Hai, AIR 1984 SC 117 (119).
187 Ganpat Singh v Kailash Shankar, AIR 1987 SC 1443 (1449).
188 Barnes Investments Ltd v Raj K Gupta, AIR 2001 SC 2818 : (2001) 7 SCC 94 .
189 Bhanwarlal v Prem Lata, AIR 1990 SC 623 : (1990) 1 SCC 353 .
190 Mangru Mahto v Taraknathji, AIR 1967 SC 1390 (1392) : (1967) 3 SCR 125 : 1968 ALJ 417 :
46 Pat 870.
191 Ghanshyamdas v Om Prakash, AIR 1994 SC 1292 (1294) : 1993 Supp (3) SCC 368 .
192 Sawai Singhai N Chand v UOI, AIR 1966 SC 1068 : (1966) 2 ALT 21 : 1966 Mah LJ 371 .
193 Balwant N Yishwamitra v Yadav Sadasiv Mule, AIR 2004 SC 4377 (4381).
194 Kancherla Lakshminarayana v Mattaparthi Shyamala, AIR 2008 SC 2069 : (2008) 14 SCC 258
(266).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 59. Stay of Sale
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 59.
Stay of Sale
195[Where before the claim was preferred or the objection was made, the property
attached had already been advertised for sale, the Court may—
(a) if the property is movable, make an order postponing the sale pending the
adjudication of the claim or objection, or
(b) if the property is immovable, make an order that, pending the adjudication of
the claim or objection, the property shall not be sold, or, that pending such
adjudication, the property may be sold but the sale shall not be confirmed, and
any such order may be made subject to such terms and conditions as to
security or otherwise as the Court thinks fit.]
COMMENT.—
An order in the claim proceedings does not operate as res judicata. It is because of rule
63 that the order becomes conclusive. The effect of rule 63 is that unless a suit is
brought, the party against whom the order in the claim proceedings is made, cannot re-
agitate in any other suit or proceeding against the other party, the question whether the
property was or was not liable to attachment and sale in execution of the decree, out of
which the claim proceedings arose. The bar of this rule extends no further.196
A suit was filed by the attaching creditor under rule 63. His claim was found based on
fictitious arbitration proceedings and on fictitious, collusive and fraudulent documents.
He could not succeed.197
195 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72 for rules 58 to
63 (w.e.f. 1-2-1977).
196 Mangru Mahto v Taraknathji, AIR 1967 SC 1390 (1393) : (1967) 3 SCR 125 : 1968 ALJ 417 :
46 Pat 870; Sarju Pd Missir v M Chandhari, AIR 1922 PC 341 (overruled as point of applicability
of order under section 58).
197 Thakur Dongar Singh v Ladli Prasad, AIR 1974 SC 598 : (1974) 1 SCC 690 : 1974 Lab IC 598 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / Rr. 60-63. Rules 58, 59
substituted for rules 58-63 by Act 104 of 1976
© 2020 LexisNexis
THE FIRST SCHEDULE
Rr. 60-63.
Rules 58, 59 substituted for rules 58-63 by Act 104 of 1976
198[Rules 58, 59 substituted for rules 58-63 by Act 104 of 1976].
The rule as substituted earlier, deleted.

Add the following as rule 63A:
"Rule 63A. When an attachment of movable property ceases, the Court may order the
restoration of the attached property to the person in whose possession it was before
the attachment."

Calcutta.
X-A, Page 69.
Rules 63A to 63H as added earlier, deleted.
Patna.—Add the following heading and rules 63A to 63H.
"GARNISHEE ORDERS
R. 63A. Where a debt (other than a debt secured by a mortgagor a debt recoverable
only in a Revenue Court or a debt the amount of which exceeds the pecuniary
jurisdiction of the Court) has been attached under rule 46 and the debtor prohibited
under Clause (i) of sub-rule (1) of rule 46 (hereinafter called the garnishee) does not
pay the amount of the debt into Court in accordance with rule 46, sub-rule (3), the
Court, on the application of the decree-holder, may order a notice to issue calling upon
the garnishee to appear before the Court and show cause why he should not pay into
Court the debt due from him to the judgment-debtor. A copy of such notice shall, unless
otherwise ordered by the Court, be served on the judgment-debtor.
R. 63B. (1) If the garnishee does not pay into Court the amount of the debt due from
him to the judgment-debtor, and if he does not appear in answer to the notice issued
under rule 63 A, or does not dispute his liability to pay such debt to the judgment-
debtor, then the Court may order the garnishee to comply with the terms of such notice,
and on such order execution may issue against the garnishee as though such order
were a decree against him.
(2) If the garnishee appears in answer to the notice issued under rule 63A, and disputes
his liability to pay the debt attached, the Court, instead of making an order as aforesaid
may order that any issue or question necessary for determining his liability be tried as
though it were an issue in a suit and may proceed to determine such issue, and upon
the determination of such issue shall pass such order upon the notice as shall be just.
R. 63C. Whenever in any proceedings under the foregoing rules it is alleged by the
garnishee that the debt attached belongs to some third person, or that any third person
has a lien or charge upon or interest in it, the Court may order such third person to
appear and state the nature and particulars of his claim, if any, upon such debt, and
prove the same, if necessary.
R. 63D. After hearing such third person and any other person who may subsequently to
be ordered to appear, or in the case of such third or other person not appearing as
ordered, the Court may pass such order as is provided in the foregoing rules, or make
such other order as the Court shall think fit, upon such terms in all cases with respect
to the lien, charge or interest if any, of such third or other person as shall seem just and
reasonable.
R. 63E. Payment made by, or levied by execution upon the garnishee in accordance
with any order made under these rules shall be a valid discharge to him as against the
judgment-debtor, and any other person ordered to appear under these rules, for the
amount paid or levied although such order or the judgment may be set aside or
reversed.
R. 63F. The costs of any application for the attachment of a debt under the foregoing
rules and of any proceedings arising from or incidental to such application shall be in
the discretion of the Court. Costs awarded to the decree-holder shall, unless otherwise
directed, be retained out of the money recovered by him under the garnishee order and
in priority to the amount of his decree.
R. 63G. Out of the amount recovered under the garnishee order the Court shall deduct
a sum equal to the Court-fee payable under the Indian Court-fees Act on a plaint in a
suit for recovery of the money and credit the same to the Government.
R. 63H. (1) Where the liability of any garnishee has been tried and determined under
these rules the order shall have the same force and be subject to the same condition
as to appeals or otherwise as if it were a decree.
(2) Orders not covered by Clause (1) shall be appealable as orders made in execution."
198 Omitted by Code of Civil Procedure (Amendment) Act 104 of 1976, sec. 72(xxv) (w.e.f. 1-2-
1977).
THE FIRST SCHEDULE
Sale Generally
R. 64.
Power to order property attached to be sold and proceeds to be paid to person
entitled
Any Court executing a decree may order that any property [OR, P] attached by it and
[OR, P] liable to sale, or such portion thereof as may seem necessary to satisfy the
decree, shall be sold, and that the proceeds of such sale, or a sufficient portion
thereof, shall be paid to the party entitled under the decree to receive the same.
[Rule amended in Orissa, Madras & Pat.]
Madras.—After the words "executing a decree may" insert "after notice to the decree-
holder and judgment-debtor". (10-4-1963).
III-A, Page 69.
For the words "in respect of which it has made an order of attachment" as substituted
w.e.f. 7-1-1926 substitute the words "in respect of which it has made on order of
attachment, whether before or after the decree".
Patna.—(a) For the words "attached by it" substitute the words "in respect of which it has
made an order of attachment".
(b) Insert the words "which is" between the words "and" and "liable". [7-1-1936].
COMMENT.—
Where an agreement was for a particular land but the decree-holder manages to get all
other lands included in execution and get sale in his favour, an attempt should be made
to sale of reasonable portion of property for realisation of the decree debt.199
Scope.—
Under O XXI rule 64 it is mandatory for the Court to examine whether whole of attached
property of judgment-debtor or a portion alone is to be sold to satisfy decree.200
Difference between rule 64 & rule 66.—

Rule 64 makes provision for sale of attached property, while rule 66 takes in cases
covered by rule 64 and also decrees where attachment is not necessary.201
"Necessary to satisfy decree" Meaning of.—
The words "necessary to satisfy decree" indicate that portion of property which would
be sufficient to satisfy the decree is only to be sold 'This is not just a discretion but an
obligation on the Court sale without examining this aspect is illegal.202
Sale by receiver after 32 years, invalid.—
Where a receiver was appointed 32 years after the decree and he effected sale of the
properties of the judgment-debtor without giving notice to the legal representatives of
the judgment-debtor who had died in the meantime, the legal representative had also
effected sale of the properties in the meantime, it was held that the auction sale by the
receiver was invalid and it was set aside.203
Auction sale.—
Not entire property but only such portion as would satisfy decree should be sold. This
is obligatory on Court and not just a discretion. It is a mandate of the legislature which
cannot be ignored.204
Saleability of property.—
Where the amount specified in sale proclamation of sale, for the recovery of which, the
sale was ordered is realised by sale of certain items, the sale of other items should be
stopped. If they are sold, the sale would be vitiated and set aside even if no objection
was made by the judgment-debtor.205
Applicability of SARFAESI Act.—
The provision of O XXI, rule 64 of the Code of Civil Procedure would not ipso facto
apply to the sale of property under Securitisation and Reconstruction of financial
Assets and Enforcement of Security Interest Act. But it is quite rationale to suggest
that only such of the property is necessary to satisfy the debt, need to be sold even
under the Securitisation and Reconstruction of financial Assets and Enforcement of
Security Interest Act.206
Before the sale can be set aside, merely establishing a material irregularity or fraud will
not do. The applicant must go further and establish to the satisfaction of the court that
the material irregularity or fraud has resulted in substantial injury to the applicant.207
199 Lal Chand v VIII Addl District Judge, AIR 1997 SC 2106 (2108) : (1997) 4 SCC 356 : 1997
AllLJ 1170.
200 NG George v SS Yarkey, AIR 2009 (NOC) 1764 (Ker-DB) : 2009 (2) KLT 30 (37) (DB).
201 PK Kuruvilla v Corpn Bank, AIR 2008 (NOC) 905 (Ker-DB) : FAO No 25 of 2007, dt. 23 August
2007 : (2008) 1 KLT 604 (DB) : 2008 AIHC (NOC) 891 (Ker-DB).
202 Bala Krishnan v Malaiyandi Konar, AIR 2006 SC 1458 (1460).
203 Amiya Prasad Sanyal v Bank of Commerce, Ltd, AIR 1996 SC 1762 (1765) : (1996) 7 SCC 167
.
204 Ambati Narassayya v M Subba Rao, AIR 1990 SC 119 (121) : 1989 Supp (2) SCC 693 .
205 Takkaseela PS Reddy v Padmavathamma, AIR 1977 SC 1789 : (1977) 3 SCC 337 : (1977) 3
SCR 692 .
206 S Anil Kumar v The Catholic Syrian Bank Ltd, AIR 2013 Ker 160 .
207 Chilamkurti Bala Subramanyam v Samarthapudi Vijaya Lakshmi, AIR 2017 SC 2443 : 2017 (5)
SCALE 495 : (2017) 6 SCC 770 : 2017 (4) SCJ 317 .
THE FIRST SCHEDULE
Sale Generally
R. 65.
Sales by whom conducted and how made
Save as otherwise prescribed, every sale in execution of a decree shall be conducted

by an officer of the Court or by such other person as the Court may appoint in this
behalf, and shall be made by public auction in manner prescribed. [MP]
Andhra Pradesh.—Same as in Madhya Pradesh.
Kerala.—Same as in Madhya Pradesh.

dated 16-9-1960.
The following sentence shall be added:-
"Such officer or person shall be competent to declare the highest bidder as purchaser
at the sale, provided that, where the sale is made in, or within the precincts of the Court-
house, no such declaration shall be made without the leave of the Court."
THE FIRST SCHEDULE
Sale Generally
R. 66.
Proclamation of sales by public auction
(1) Where any property is ordered to be sold by public auction in execution of a

decree, the Court shall cause a proclamation of the intended sale to be made
[AP, M] in the language of such Court.
(2) Such proclamation [OR, P] shall be drawn up after notice to the decree-holder
and the judgment-debtor and shall state the time and place of sale, and specify
as fairly and accurately as possible.—[M]
(a) the property to be sold 208[or, where a part of the property would be
sufficient to satisfy the decree, such part];
(b) the revenue assessed upon the estate or part of the estate, where the
property to be sold is an interest in an estate or in part of an estate
paying revenue to the Government;
(c) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the Court considers material for a purchaser to
know in order to judge of the nature and value of the property: [D, HP,
PU]
209[ Provided that where notice of the date for settling the terms of the
proclamation has been given to the judgment-debtor by means of an order
under rule 54, it shall not be necessary to give notice under this rule to the
judgment-debtor unless the Court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the
Court to enter in the proclamation of sale its own estimate of the value of the
property, but the proclamation shall include the estimate, if any, given, by either
or both of the parties.]
(3) Every application for an order for sale under this rule shall be accompanied by
a statement signed and verified in the manner herein-before prescribed for the
signing and verification of pleadings and containing, so far as they are known
to or can be ascertained by the person making the verification, the matters
required by sub-rule ( 2 ) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the

proclamation, the Court may summon any person whom it thinks necessary to
summon and may examine him in respect to any such matters and require him
to produce any document in his possession or power relating thereto.
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Act:
Rule 66.—Same as it was in Madras, namely:—
(i) Renumber the existing clause (c) to sub-rule (2) as (f) and add the following as
clause (e):
"(e) the value of the property as stated (i) by the decree-holder and (ii) by the judgment-
debtor" (dated 13-10-1936).
(ii) In sub-rule (1), for the word "made" substitute the words "drawn up" (dated 12-11-
1952).

Calcutta.

1967.
(i) In rule 66, sub-rule (2), renumber clause (e) as clause (f) and insert the following as
clause (e):—
"(e) The value of the property as stated by the decree-holder and the value of the
property as stated by the judgment-debtor, and".
(ii) In the same sub-rule, deleted the word "and" occurring at the end of clause (d). (30-
3-1967)
Kerala (Lakshadweep Islands).—Same as (i) of Andhra Pradesh.

dated 16-9-1960.
Substitute as comma for the full stop at the end of clause (e) of sub-rule (2), and add
the following:
"including the decree-holder's estimate of the approximate market price". (16-9-1960)
Madras (a) (ROC No 1799/51-BI of 28-10-1952).—In sub-rule (1) for "made" substitute
"drawn up".
"(b) Substitute first para of sub-rule (2) by the following:—(2) The terms of such
proclamation shall be settled in Court after notice to the decree-holder and judgment-
debtor except in cases where notices have already been served under Order XXI, rule
64, and such proclamation shall state the time and place of sale and specify as
accurately possible—
(a) the property to be sold, (b) the revenue assessed upon the estate or part of the
estate where the property to be sold is an interest in an estate or part of an estate
paying revenue to the Government, (c) any incumbrance to which the property is liable,
(d) the amount for the recovery of which the sale is ordered, (e) the value of the
property as stated (i) by the D.H. and (ii) by the J.D. (f) every other thing which the Court
considers material for a purchaser to know in order to judge the nature and value of the
property." (5-9-1968).
Orissa.—The following amendments were made by Orissa Gazette, Part III-A, Page 69,
dated 25-5-1984.
The amendment deleting certain words from sub-rule (2) and adding new proviso after
sub-clause, deleted.
Patna.—From sub-rule (2) omit the words "shall be drawn up after notice to the decree-
holder and the judgment-debtor and". Add the following proviso after (c) to sub-rule (2):
"Provided that no estimate of the value of the property other than those, if any, made by
the D.H. and J.D. respectively together with a statement that the Court does vouch for
the accuracy of either shall be inserted in sale proclamation."
Punjab (Notfn No. 567-Gaz of 4-11-1929 and No. 150-R/XI-Y-14, of 16-5-1939).—Add

the following words to clause (e) of sub-rule (2) of rule 66:
"Provided that it shall not be necessary for the Court itself to give its own estimate of
the value of the property; but the proclamation shall include the estimate, if any, given
by either or both of the parties."
After sub-rule (2) add the following as sub-rule (3) and re-number the existing sub-rules
(3) and (4) and (5):—
"(3) Where the property to be sold is movable property which has been made over to a
custodian under sub-clauses (a) or (c) of clause (1) of rule 43 of this Order, the Court
shall also issue a process by way of notice to the custodian, directing him to produce
the property at the place of sale, at a time to be specified therein with a warning that if
he fails to comply with the directions, he shall be liable to action under Section 145 of
the Code of Civil Procedure".
COMMENT.—
In clause (a) to sub-rule (2) of this rule 66, words "or where a part of the property would
be sufficient to satisfy the decree, such part", were inserted at the end of the clause end
provisos were added to sub-rule (2) by the Amending Act of 1976.
This has been done to confer a power on the Court to the effect that in a case, where
the Court is satisfied that the sale of a part of the property would be sufficient to satisfy
the decree, the Court should specify in the proclamation of sale only such part of the
property.
Where noting in the sale proclamation was that the decree was subject to charge in
another suit but on the date of the sale the Court explained to the bidders that the sale
was free from charge, there was no material irregularity in the sale proclamation.210
Sale proclamation.—
The Court should state essential facts, which have a bearing on the very material
question of value of the property, which would assist the purchaser to judge the value
and nature of the property and form his opinion. The Court should state the valuation
given by both the decree-holder and the judgment-debtor where they have valued the
property. It may usefully state other material facts, such as area of land, nature of
rights in it, municipal assessment, actual rent realised,
which could reasonably be expected to affect valuation.211
Fixing of amount.—
It is the function of an executing Court, while proclamation is drawn-up, to fix the

amount the recovery for which the sale is ordered and also to specify such other
particulars as are necessary in that behalf to be material for the purpose of conducting
the sale. The value of the property given by the decreeholder—judgment-debtor and the
sale price is to be fixed.212
Irregularity in conduct of sale.—
The irregularity committed in conducting the auction sale and commission of fraud
either on Court or on a party stand completely on different footings.213
Court is bound to see if rule 66 is complied with.—
If the decree-holder produces no evidence to support auctioneer's statement in the bid

list that "the auction was adjourned by announcement on the spot." Then in spite of the
express objection by the judgment-debtor regarding such claim of announcement on
the spot, the conclusion would be that no announcement of auction was made on the
spot. The Court has a duty to see that the requirements of rule 66 are complied with
.214
Sale is not complete till confirmation of bid by Commissioner.—
Where the sale proclamation containing the conditions of sale has not been produced
and there was also no concluded contract under which the respondent was liable to
pay the alleged loss, the contract of sale was not complete till the bid was confirmed by
the Chief Commissioner.215
It has been held by the Patna High Court that the notice under this rule need not specify
the details mentioned in sub-rule (2).216
Delay in execution.—
The objections filed by the judgment-debtor were dismissed where there was delay of
34 years in the execution of decree.217
1977).
210 V Ramakrishnaiah v T Rangarao, AIR 1986 SC 2099 : (1986) 4 SCC 193 .
211 Gajadhar Prasad v Bhakta Ratan, AIR 1973 SC 2593 (2597) : (1973) 2 SCC 629 .
212 ML Mubarak Basha v Muni Naidu, AIR 1997 SC 938 : (1997) 4 SCC 153 .
213 T Vijendradas v M Subramanian, (2007) 8 SCC 751 .
214 Shalimar Cinema v Bhasin Film Corpn, AIR 1987 SC 2081 : (1987) 4 SCC 717 .
215 State of UP v Kishori Lal, AIR 1980 SC 680 (682) : (1980) 3 SCC 8 ; see also UOI v Bhimsen
Walaiti Ram, AIR 1971 SC 2295 : (1969) 3 SCC 146 .
216 Kishunjee Rai v Jainarain Prasad Thakur, AIR 1972 Pat 61 .
217 Maya Devi v Raj Kumari Batra, (2011) 111 CutLT 118 (SC).
THE FIRST SCHEDULE
Sale Generally
R. 67.
Mode of making proclamation
(1) Every proclamation shall be [AP, K, M] made and published, as nearly as may
be, in the manner prescribed by rule 54, sub-rule (2). [OR, P]
(2) Where the Court so directs, such proclamation shall also be published in the
Official Gazette or in a local newspaper, or in both, and the costs of such
publication shall be deemed to be costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it
shall not be necessary [AP, K, M] to make a separate proclamation for each lot,
unless proper notice of the sale cannot, in the opinion of the Court, otherwise
be given. [AP, KNT, K, M]
Karnataka.—Add sub-rule (4) as in Madras. (30-3-1967).
Kerala.—Same as in Madras.
Madras (a) (R.O. No. 1799/51-B-1 of 28th Oct 1952).—(i) Substitute the marginal
heading by "Mode of publishing the proclamation of sale";
(ii) In sub-rule (1) omit "made and";
(iii) In sub-rule (3) for "to make a separate proclamation for each lot" substitute "to
publish the proclamation of sale separately for each lot". (12-11-1952)
(b) (GOMs No 2084-Home, of 2-9-1936—HCP Dis No 691 of 13-10-1936).—Add the

following as sub-rule (4):—
"(4) Unless the Court so directs it shall not be necessary to send a copy of the
proclamation to the judgment-debtor".
Patna.—At the end of sub-rule (1) delete the full stop and add the following:—
"and may, if the Court so directs, on the application of the decree-holder, be proclaimed
and published simultaneously with the order of attachment".
COMMENT.—
The present rule and the next rule 68 are for the protection of judgment-debtors and for
the purpose of ensuring that the properties of such persons shall not to sale unless
due publicity is to the fact that a sale is to be held and a proper opportunity is afforded
to bidders to attend the sale after proper notice has been given.218
Where in an execution sale, the same was notified in the village after starting by beat of
drum and the people started coming thereafter and certain number of persons
including decree-holder participated in the bid, the procedure adopted is clearly
illegal.219
218 Lachmi Narain Lal v Bhupendra Prasad, AIR 1948 Pat 143 (DB).
219 Lal Chand v VIII Addl District Judge, AIR 1997 SC 2106 (2108) : (1997) 4 SCC 356 : 1997 All
LJ 1170.
THE FIRST SCHEDULE
Sale Generally
R. 68.
Time of sale
Save in the case of property of the kind described in the proviso to rule 43, no sale
hereunder shall, without the consent in writing of the judgment-debtor, take place
until after the expiration of at least 220[fifteen days] in the case of immovable
property, and of at least 221[seven days] in the case of movable property, calculated
from the date on which the copy of the proclamation has been affixed on the Court-
house of the Judge ordering the sale.
COMMENT.—
The words "thirty days" occurring in rule 68 were substituted by the words "fifteen days"
and for the words "fifteen days" the words "seven days" were substituted. This has been
in order to reduce the interval between the proclamation of the sale and actual sale.
Order XXI, rule 68 speaks about sale held by Court. The sale effected by Receiver acting
under Insolvency Act and after seeking permission from Court to effect sale, cannot be
set aside for sole reason that there is a transgression of mandate of O XXI, rule 68.222
A sale held before the expiry of the period mentioned in the rule is only an irregularity
which, if not objected to before the sale, will not enable the Court to set aside the
sale.223
220 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "thirty
days" (w.e.f. 1-2-1977).
221 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "fifteen
days" (w.e.f. 1-2-1977).
222 TVR Fund v Official Receiver, 2009 (3) KLT 508 (510, 512) (DB).
223 Dasursam Mirzamal v Balchand Surana, AIR 1970 Ass 117 .
THE FIRST SCHEDULE
Sale Generally
R. 69.
Adjournment or stoppage of sale
(1) The Court may, in its discretion, adjourn any sale hereunder to a specified day
and hour, and the officer conducting any such sale may in his discretion
adjourn the sale, [B] recording his reasons for such adjournment:
Provided that, where the sale is made in, or within the precincts of, the Court-
house, no such adjournment shall be made without the leave of the Court.
(2) Where a sale is adjourned under sub-rule ( 1 ) for a longer period than 224[thirty
days], [AP, KNT] a fresh proclamation under rule 67 shall be made, unless the
judgment-debtor consents to waive it. [A, K, M, OR, P]
(3) Every sale shall be stopped if, before the lot is knocked down, the debt and
costs (including the costs of the sale) or tendered to the officer conducting the
sale, or proof is given to his satisfaction that the amount of such debt and
costs has been paid into the Court which ordered the sale.
Allahabad (Notfn No. 4084/35(a)-3(7); 24-7-1926 and No. 1985/35))(a)-10(1);
7-4-1934).—For rule 96(2) substitute the following:—
"(2) Where a sale has been once adjourned under sub-rule (1), a fresh proclamation
under rule 67 shall be made, unless the judgment-debtor consents to waive it:
Provided that where the adjournment is for a period not longer than [thirty] days from
the date originally fixed for sale, no fresh proclamation shall be necessary:
Provided also that the Court may dispense with the consent of any judgment-debtor
who has failed to attend in answer to a notice issued under rule 66".
Andhra Pradesh.—In sub-rule (2), for "a fresh proclamation under rule 67 shall be made"
substitute "there shall be a fresh publication of the proclamation in the manner
prescribed by rule 67". (12-11-1952)
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, page 417,
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., S. 1, No. 28, page 386, dated 1-4-
1987.
For the existing sub-rule (1) and the marginal note, substitute the following as sub-rule
(1) and marginal note and retaining sub-rules (2) and (3) as they are:-
"69. Adjournment or stoppage of sale.—(1) The Court may, in its discretion, adjourn any
sale hereunder to a specified day and hour, and the officer conducting any such sale
may in his discretion adjourn the sale to a specified day and hour, recording his reasons
for such adjournment:
Provided that, where the sale is made in, or within the precincts of the Court-house, no
such adjournment shall be made without the leave of the Court." (1-10-1983)
Karnataka.—Same as in Andhra Pradesh only adding the words "of sale" after
"proclamation". (30-3-1967).
Kerala (Notfn No B1-3312/58; 7-4-1959).—In sub-rule (2) add the following proviso:—
"Provided that no such fresh proclamation shall be necessary in cases where the sale
has been adjourned on account of the absence of the Presiding Judge or on account of
the day fixed for sale being declared a holiday". (10-3-1964).
Madras.—For sub-rule (2) substituted the following:—
"(2) Where a sale is adjourned under sub-rule (1) for a longer period than thirty days,
there shall be fresh publication of the proclamation in the manner prescribed by rule 67,
unless the judgment-debtor consents to waive it, or the Court otherwise orders". (5-9-
1968).
dated 25-5-1984.
The amendment substituting certain words in sub-rule (2) deleted.
Patna.—In sub-rule (2) add the following proviso:—
"Provided that the Court may dispense with the consent of any judgment-debtor who
has not appeared in the proceedings."
COMMENT.—
In order to avoid the necessity of repeated proclamations, sub-rule (2) was amended to
enlarge the said period of seven days to thirty days.
224 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "seven
days" (w.e.f. 1-2-1977).
THE FIRST SCHEDULE
Sale Generally
R. 70.
Omitted by Code of Civil Procedure (Am) Act 66 of 1956.
[Omitted by Code of Civil Procedure (Am) Act 66 of 1956.]

THE FIRST SCHEDULE
Sale Generally
R. 71.
Defaulting purchaser answerable for loss on re-sale Decree-holder not to bid
for or buy property without permission
Any deficiency of price which may happen on a re-sale by reason of the purchaser's
default, and all expenses attending such re-sale, shall be certified to the Court 225[* *
*] by the officer or other person holding the sale, and shall, at the instance of either
the decree-holder or the judgment-debtor, be recoverable from the defaulting
purchaser under the provisions relating to the execution of a decree for the payment
of money.
COMMENT.—
The application of this rule is limited to cases in which the deficiency of price has
occurred by reason of the auction purchaser's default.
What is necessary is that the resale occasioned by the auction purchaser's default
must result in a deficiency of price and this deficiency must be attributable to his
default.226 It has been held by the Supreme Court in GK Das v SN Vishwas, AIR 1975 SC
1290 : (1975) 1 SCC 815 : (1975) 3 SCR 726 that if it is clear on a careful reading in rule
71 that its application is limited to cases in which the deficiency of price has occurred
by reason of the auction purchaser's default. Property once put to sale in execution
proceedings may have to be re-sold for reasons which may or may not be connected
with the default of the auction purchaser".227
It was further held that "the provisions of O XXI, rule 71, come into play only if the
property is required to be re-sold on account of the default of the auction-purchaser. If
the re-sale is not due to the auction purchaser's default, there can be no question of
mulcting him with the deficiency in the price realised in the re-sale".228
The words "Any deficiency of price which may happen on a re-sale by reason of the
purchaser's default" occurring in rule 71 therefore means, "Any deficiency of price
which on a re-sale may happen by reason of the purchaser's default".
Thus, the question of holding the auction purchaser liable to make good the deficiency
in price can arise only if the re-sale is occasioned by his default.
225 The words "or to the Collector or subordinate of the Collector, as the case may be" omitted
by CP Code (Amendment) Act 66 of 1956, s 14 (w.e.f. 1-1-1957).
226 Gopal Krishna Das v Sailendra Nath Vishwas, AIR 1975 SC 1290 (1292) : (1975) 3 SCC 16 :
1974 SCC (Cri) 712 : 1974 CrLJ 1044 .
227 AIR 1975 SC 1290 at p 1293 : (1975) 1 SCC 815 : (1975) 3 SCR 726 .
228 Ibid.
THE FIRST SCHEDULE
Sale Generally
R. 72.
Where decree-holder purchases, amount of decree may be taken as payment
(1) No holder of a decree in execution of which property is sold shall, without the
express permission of the Court, bid for or purchase the property [A, OR, P].
(2) Where a decree-holder purchases [A, OR, P] with such permission, the
purchase-money and the amount due on the decree may, subject to the
provisions of Section 73, be set off against one another, and the Court
executing the decree shall enter up satisfaction of the decree in whole or in
part accordingly.
(3) Where a decree-holder purchases, by himself or through another person,

without such permission, the Court may, if it thinks fit, on the application of the
judgment-debtor or any other person whose interests are affected by the sale,
by order set aside the sale; and the costs of such application and order, and
any deficiency of price which may happen on the re-sale and all expenses
attending it, shall be paid by the decree-holder [A, OR, P].
[In Orissa & Pat sub-rules (1), (3) substituted and sub-rule (2) amended, In All, sub-rules
(1), (3) deleted and sub-rule (2), amended].
Allahabad (Notfn No 4084/35(a)—3(7); 24-7-1926).—(a) Delete sub-rules (1) and (3).
(b) Re-number sub-rule (2) as rule 72 and for the words "with such permission" read "the
property sold".
Orissa.—Deleted. (14-5-1984)
Patna.—(a) Substitute the following for sub-rule (1):—
(1) No holder of a decree in execution of which property is sold shall be precluded from
bidding for or purchasing the property unless an express order to that effect is made by
the Court".
(b) In sub-rule (2) for the words "with such permission" substitute "the property".
(c) Substitute the following for sub-rule (3):—
"(3) Where notwithstanding an order made under sub-rule (1) a decree-holder

purchases the property by himself or through another person the Court shall, on the
application of the judgment-debtor or any other person whose interests are affected by
the sale, by order set aside the sale; and the cost of such application and order and any
deficiency of price which may happen on the re-sale and all expenses attending it shall
be in the discretion of the Court."
COMMENT.—
The absence of the judgment-debtor vitiates an order granting leave to bid and set
off.229
Sale is not void without permission to bid.—
The lack of permission to bid cannot make the sale void but it can only be a ground for
having the sale set aside.230
Objection not raised earlier, cannot be raised before the Supreme Court.—
Where an objection was taken neither before the executing Court nor before the first
appellate Court nor the second appellate Court, it being a mixed question of fact and
law cannot be raised before the Supreme Court .231
No protection for decree-holder if he himself is an auction purchaser.—
If a decree-holder himself is an auction-purchaser then he would not be entitled to any

protection. The position would, however, be quite different where the auction-purchaser
is some one other than the decree-holder, the Court auction was held, sale was
confirmed and sale certificate has been issued. He would be entitled to protection even
if the decree, in execution of which the auction sale has been held, is set aside.232
Decree-holder cannot bid in auction without Court-permission.—
A decree-holder has no right to bid in the auction without the permission of the Court. If
he bids without such permission and that bid is accepted, the sale conducted is clearly
in flagrant violation of this rule.233
229 Jaswantlal N Thakkar v Sushilaben, AIR 1991 SC 770 : 1991 Supp (2) SCC 691 .
230 Ganpat Giri v II Addl Distt Judge, AIR 1986 SC 589 (593) : (1986) 1 SCC 615 .
231 Deen Dayal v Baldev Prasad, AIR 2000 SC 3641 (I) : (1999) 9 SCC 37 .
232 Govindrao v Devisahai, AIR 1982 SC 989 (1007) : (1982) 1 SCC 237 .
233 Lal Chand v VIII Addl District Judge, AIR 1997 SC 2106 : (1997) 4 SCC 356 : 1997 All LJ
1170.
THE FIRST SCHEDULE
Sale Generally
234[R. 72A.
Mortgagee not to bid at sale without the leave of the Court
(1) Notwithstanding anything contained in rule 72, a mortgagee of immovable

property shall not bid for or purchase property sold in execution of a decree on
the mortgage unless the Court grants him leave to bid for or purchase the
property.
(2) If leave to bid is granted to such mortgagee, then the Court shall fix a reserve
price as regards the mortgagee, and unless the Court otherwise directs, the
reserve price shall be—
(a) not less than the amount then due for principal, interest and costs in
respect of the mortgage if the property is sold in one lot; and
(b) in the case of any property sold in lots, not less than such sum as shall
appear to the Court to be properly attributable to each lot in relation to
the amount then due for principal, interest and costs on the mortgage.
(3) In other respects, the provisions of sub-rules (2) and (3) of rule 72, shall apply
in relation to purchase by the decree-holder under that rule.]
After Rule 72 the following shall be inserted, namely:-
"Rule 72A. If leave to bid is granted to the mortgagee of immovable property, a reserve
price as regards him shall be fixed (unless the Court shall otherwise think fit) at a sum
not less than the amount then due for principal, interest and costs in case the property
is sold in one lot, and not less in respect of each lot (in case the property is sold in lots),
then such figure as shall appear to be properly attributable to it in relation to the
amount aforesaid."
COMMENT.—
Rule 72-A has been inserted to provide that when leave is granted to the mortgagee
decree-holder to bid for the sale, a reserve price should be fixed so that the mortgage
may not take an undue advantage by purchasing the mortgaged property at a lower
price and then pursuing other remedies to recover the balance of the amount of the
decree.
THE FIRST SCHEDULE
Sale Generally
R. 73.
Restriction on bidding or purchase by officers
No officer or other person having any duty to perform in connection with any sale shall,
either directly or indirectly, bid for, acquire or attempt to Uacquire any interest in the
property sold.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 74. Sale of agricultural
produce
© 2020 LexisNexis
THE FIRST SCHEDULE
Sale of Movable Property
R. 74.
Sale of agricultural produce
(1) Where the property to be sold is agricultural produce, the sale shall be held,—
(a) if such produce is a growing crop, on or near the land on which such
crop has grown, or
(b) if such produce has been cut or gathered, at or near the threshing-floor
or place for treading out grain or the like or fodder-stack on or in which
it is deposited:
Provided that the Court may direct the sale to be held at the nearest place of
public resort, if it is of opinion that the produce is thereby likely to sell to
greater advantage.
(2) Where, on the produce being put up for sale,—
(a) a fair price, in the estimation of the person holding the sale, is not
offered for it, and
(b) the owner of the produce or a person authorized to act in his behalf
applies to have the sale postponed till the next day or, if a market is held
at the place of sale, the next market-day,
the sale shall be postponed accordingly and shall be then completed,

whatever price may be offered for the produce.
THE FIRST SCHEDULE
R. 75.
Special provisions relating to growing crops
(1) Where the property to be sold is a growing crop and the crop from its nature
admits of being stored but has not yet been stored [AP, KNT, T, K, M], the day of
the sale shall be so fixed as to admit of its being made ready for storing before
the arrival of such day, and the sale shall not be held until the crop has been
cut or gathered and is ready for storing.
(2) Where the crop from its nature does not admit of being stored [B, C, D, GAU, HP,
MP, PU], it may be sold before it is cut and gathered, [AP, KNT, K, M] and the
purchaser shall be entitled to enter on the land, and to do all that is necessary
for the purpose of tending [C, GAU] and cutting or gathering it [OR, P].
[Sub-rules (1) and (2) amended in AP, Kerala, Kant & Mad; Sub-rule (2) amended in Bom,
Cal, Delhi, Gau, HP, MP, Punjab; Rule substituted in Orissa and Pat].
were made by Maharashtra Government Gazette, dated 15-9-1983 (1-10-1983), Part 4 Ka,
Page 417, Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 386, dated 1-4-1987.
For the existing sub-rule (2), substitute the following:—
"(2) Where the crop from its nature does not admit of being stored, or where it appears
to the Court that the crop shall be sold to greater advantage in an unripe state, it may
be sold before it is cut and gathered, and the purchaser shall be entitled to enter on the
land, and to do all that is necessary for the purpose of tending and cutting or gathering
it".
Calcutta (Notfn 3615-G, of 3-2-1933).—(a) Insert the following words in sub-rule (2)
after the words "Where the crop from its nature does not admit of being stored":—
"or can be sold to greater advantage in an unripe state (e.g., as green wheat)".
(b) Cancel the word "and" between the words "tending" and "cutting" in sub-rule (2), and
substitute therefor the word "or".
"75. (1) Where the property to be sold is a growing crop and the crop from its nature
admits of being stored but has not yet been stored, unless the Court decides to
proceed under the provisions of sub-rule (2) of this rule, the day of sale shall be so fixed
as to admit of its being made ready for storing before the arrival of such day, and the
sale shall not be held until the crop has been cut or gathered and is stored.
(2) Where the crop from its nature does not admit of being stored, or can be sold to
greater advantage in an unripe state, it may be sold before it is cut and gathered or in
such unripe state, and the purchaser shall be entitled to enter on the land and do all
that is necessary for the purpose of tending and cutting or gathering the said crop." (30-
3-1967)

dated 16-9-1960.
In sub-rule (2) after the words "being stored" insert the words "or, where it appears to
the Court that the crop can be sold to greater advantage in an unripe state".
Madras (GOMs No 2084-Home, of 2-9-1936—HCP Dis No 691 of 13-10-1936).—Rule 75

has been substituted by another rule containing the following changes in the existing
rule:—
(a) In sub-rule (1) after the words "has not yet been stored", add "unless the Court
decides to proceed under the provisions of sub-rule (2) hereunder",
(b) In sub-rule (2) for the words, "it may be sold before it is cut and gathered" substitute
the words "or can be sold to greater advantage in an unripe state, it may be sold before
it is cut and gathered or in such unripe state".
III-A, Page 69.
Rule 75 as substituted w.e.f. 7-1-1936 and deleted.
Patna (Notfn No. 1-Rule of 7-1-1936).—Substitute the following for rule 75:—
"75. Where the property to be sold is a growing crop which can be sold to greater
advantage in an unripe or unreaped state, it may be sold unreaped, and the purchaser
shall be entitled to enter on the land to do all that is necessary for the purpose of
tending and reaping it. In all other cases the day of sale shall be so fixed as to admit of
the crop ripening and being reaped before the sale." [7-1-1936].
Punjab (Notfn No 2212-G, of 12-5-1909 and No 123-RJXI-Y-14, of 28-4-1938).—In

sub-rule (2) after the word "stored" insert the following words:—"or can be sold to
greater advantage in an unripe state".
THE FIRST SCHEDULE
R. 76.
Negotiable instruments and shares in corporations
Where the property to be sold is a negotiable instrument or a share in a corporation,

the Court may, instead of directing the sale to be made by public auction, authorize
the sale of such instrument or share through a broker.
COMMENT.—
The shares of a corporation may be attached and sold through a broker or in a public
auction. Until such sale is effected, all the rights of the judgment-debtor remain
unaffected even if the shares may have been seized by the officers of the Court, for the
purpose of effecting attachment.235
235 Balkrishna Gupta v Swadeshi Polytex, AIR 1985 SC 520 (534) : (1985) 2 SCC 167 : 1985 Tax
LR 2066 : (1985) 58 CC 563 .
THE FIRST SCHEDULE
R. 77.
Sale by public auction
(1) Where movable property is sold by public auction the price of each lot shall be
paid at the time of sale or as soon after as the officer or other person holding
the sale directs, and in default of payment the property shall forthwith be re-
sold.
(2) On payment of the purchase-money, the officer or other person holding the
sale grant a receipt for the same, and the sale shall become absolute.
(3) Where the movable property to be sold is a share in goods belonging to the
judgment-debtor and a co-owner, and two or more persons, of whom one is
such co-owner, respectively bid the same sum for such property or for any lot,
the bidding shall be deemed to be the bidding of the co-owner.
COMMENT.—
Where in a public auction the auction purchasers have deposited the purchase price as
directed by the officer holding the sale and have also been issued a receipt of the same,
the auction sale cannot be faulted on the ground that the price was not deposited at
the time of sale.236
The shares in a corporation which are attached, may be sold through a broker or in
public auction under rule 77. On such sale either under rule 76 or 77 the purchaser
acquires title. Until such sale is effected, all other rights of the judgment-debtor remain
unaffected even if the shares may have been seized by the Court for effecting
attachment.237
236 Banarsi Dass v Distt Magistrate & Collector Meerut, AIR 1996 SC 2311 (2313) : (1996) 2 SCC
689 .
237 Balkrishan Gupta v Swadeshi Polytex, AIR 1985 SC 520 (534) : (1985) 2 SCC 167 : 1985 Tax
LR 2066 : (1985) 58 CC 563 .
THE FIRST SCHEDULE
R. 78.
Irregularity not to vitiate sale, but any person injured may sue
No irregularity in publishing or conducting the sale of movable property shall vitiate

the sale; but any person sustaining any injury by reason of such irregularity at the
hand of any other person may institute a suit against him for compensation or (if such
other person is the purchaser) for the recovery of the specific property and for
compensation in default of such recovery.
THE FIRST SCHEDULE
R. 79.
Delivery of movable property, debts and shares
(1) Where the property sold is movable property of which actual seizure has been
made, it shall be delivered to the purchaser.
(2) Where the property sold is movable property in the possession of some person
other than the judgment-debtor, the delivery thereof to the purchaser shall be
made by giving notice to the person in possession prohibiting him from
delivering possession of the property to any person except the purchaser.
(3) Where the property sold is a debt not secured by a negotiable instrument, or is
a share in a corporation, the delivery thereof shall be made by a written order
of the Court prohibiting the creditor from receiving the debt or any interest
thereon, and the debtor from making payment thereof to any person except the
purchaser, or prohibiting the person in whose name the share may be standing
from making any transfer of the share to any person except the purchaser, or
receiving payment of any dividend or interest thereon, and the manager,
secretary or other proper officer of the corporation from permitting any such
transfer or making any such payment to any person except the purchaser.
THE FIRST SCHEDULE
R. 80.
Transfer of negotiable instruments and shares
(1) Where the execution of a document or the endorsement of the party in whose
name a negotiable instrument or a share in a corporation is standing is
required to transfer such negotiable instrument or share, the Judge or such
officer as he may appoint in this behalf may execute such document or make
such endorsement as may be necessary, and such execution or endorsement
shall have the same effect as an execution or endorsement by the party.
(2) Such execution or endorsement may be in the following form; namely:—
A, B by C, D, Judge of the Court of ( or as the case may be ), in a suit by E, F and

against A, B.
(3) Until the transfer of such negotiable instrument or share, the Court may, by
order, appoint some person to receive any interest or dividend due thereon and
to sign a receipt for the same; and any receipt so signed shall be as valid and
effectual for all purposes as if the same had been signed by the party himself.
THE FIRST SCHEDULE
R. 81.
Vesting order in case of other property
In the case of any movable property not hereinbefore provided for, the Court may
make an order vesting such property in the purchaser or as he may direct; and such
property shall vest accordingly.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 82. What Courts may order
sales
© 2020 LexisNexis
THE FIRST SCHEDULE
Sale of Immovable Property
R. 82.
What Courts may order sales
Sales of immovable property in execution of decrees may be ordered by any Court

other than a Court of Small Causes.
Kerala (Notfn No B1-3312/58; 7-4-1959).—For the word "of Small Causes" substitute
"exercising Small cause Jurisdiction".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 83. Postponement of sale
to enable judgment-debtor to raise amount of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 83.
Postponement of sale to enable judgment-debtor to raise amount of decree
(1) Where an order for the sale of immovable property has been made, if the
judgment-debtor can satisfy the Court that there is reason to believe that the
amount of the decree may be raised by the mortgage or lease or private sale of
such property, or some part thereof, or of any other immovable property of the
judgment-debtor, the Court may, on his application, postpone the sale of the
property comprised in the order for sale on such terms and for such period as
it thinks proper, to enable him to raise the amount.
(2) In such case the Court shall grant a certificate to the judgment-debtor
authorizing him within a period to be mentioned therein, and notwithstanding
anything contained in Section 64, to make the proposed mortgage, lease or
sale:
Provided that all monies payable under such mortgage, lease or sale shall be
paid, not to the judgment-debtor, but, save in so far as a decree-holder is
entitled to set off such money under the provisions of rule 72, into Court:
Provided also that no mortgage, lease or sale under this rule shall become
absolute until it has been confirmed by the Court.
(3) Nothing in this rule shall be deemed to apply to a sale of property directed to
be sold in execution of a decree for sale in enforcement of a mortgage of, or
charge on, such property.
COMMENT.—
Permission to make a sale under this rule cannot be granted after the sale has already
been effected by the judgment-debtor without the permission of the Court.238
238 Bhikumal v Ram Chander Babu Lal, AIR 1946 Lah 134 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 84. Deposit by purchaser
and re-sale on default
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 84.
Deposit by purchaser and re-sale on default
(1) On every sale of immovable property the person declared to be the purchaser
shall pay immediately after such declaration a deposit of twenty-five per cent
on the amount of his purchase-money to the officer or other person conducting
the sale, and in default of such deposit, the property shall forthwith be re-sold.
(2) Where the decree-holder is the purchaser and is entitled to set off the
purchase-money under rule 72, the Court may dispense with the requirements
of this rule [A].
[Sub-rule (2) amended in Allahabad.]
Allahabad (Notfn No. 16699-H, of 17-1-1953).—To sub-rule (2) add the following:
"The Court shall not dispense with the requirements of this rule in a case in which there
is an application for rateable distribution of assets." (17-1-1953)
COMMENT.—
The provisions under rules 84, 85 and 86 are mandatory. If they are not complied with
there would be no sale at all and the Court is bound to order resale. The inherent
powers of the Court cannot be invoked to circumvent the mandatory provisions of the
Code and relieve the purchaser to make the deposit.239
The distinction between the present rule and the next rule 85 is that the deposit of 25%
of the purchase money must be paid to the officer conducting the sale under this rule,
whereas under the next rule 85 the full amount of the purchase money must be paid in
the Court. These are mandatory provisions240 and non-compliance will render the sale
a nullity.241
"Set-off" applies only to decree-holder.—
The provision relating to a set-off contained in O XXI rule 84 applies only to the decree-
holder. The Court has no jurisdiction to allow a set-off when the purchaser is other than
the decree-holder.242 The provision regarding the deposit of 25%, by the purchaser
other than the decree-holder is mandatory.243
239 Ramchand Spg & Wvg Mills v Bijli Cotton Mills, AIR 1967 SC 1344 : (1967) 2 SCR 301 : 1967
BLJR 427 : 1967 ALJ 449 .
240 Manilal Mohan Lal v Syed Ahmad, AIR 1954 SC 349 : (1954) 2 MLJ 55 : 67 MLW 632.
241 Tapesh Chandra Bagchi v United Bank of India, AIR 1969 Ass 10 .
242 Manilal M Shah v Syed Ahmad, AIR 1954 SC 349 (351) : (1955) 1 SCR 108 : (1954) 2 MLJ 55
: 57 Bom LR 10.
: 57 Bom LR 10.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 85. Time for payment in full
of purchase-money
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 85.
Time for payment in full of purchase-money
The full amount of purchase-money payable shall be paid by the purchaser into Court
before the Court closes on the fifteenth day from the sale of the property:
Provided that, [K] in calculating the amount to be so paid into Court, the purchaser
shall have the advantage of any set-off to which he may be entitled under rule 72. [AP,
B, G, MP, M]
[Rule substituted in AP, Ker & Mad; Expln added in MP; Prov. Expln and Rule 85-A added
in Bom; rule 85-A added in Gujarat.]
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 418, 1-
10-1983; Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 386, dated 1-4-1987.
In Order XXI, for rule 85, substitute the following, namely—
"85. Time for payment in full of purchase money.—The full amount of purchase money
payable, together with the amount required for the general stamp paper for the
certificate under rule 94, shall be paid by the purchaser into Court before the Court
closes on the 15th day from the date of the sale of the property:
Provided that, in respect of the purchase-money, the purchaser shall have the
advantage of any set-off to which he may be entitled under rule 72:
Provided further that, if as a result of some bona fide mistake or miscalculation the
amount deposited falls short of the full amount of the purchase money, the Court may
in its discretion, allow the short fall to be made up after fifteen days of the sale, and if
the full amount of the purchase money is deposited within such time as the Court may
allow, the court may condone the delay, if it considers it just and proper to do so.
Explanation.—When an amount is tendered in Court on any day after 1-00 p.m. but is
not accepted by the Court and is paid into Court on the next working day between 11-
00 a.m. and 1-00 p.m. the payment shall be deemed to have been made on the day on
which the tender is made".
Gujarat.— Add the following as rule 85A:—
"85A.—In cases where execution has been transferred to the Collector, for the purposes
of rules 84 and 85, the purchaser shall be deemed to be entitled to a set-off under rule
72 if he produces a certificate to that effect from the Court executing the decree."
For rule 85 substitute the following:
"85. The full amount of purchase money payable together with the amount required for
the general stamp paper for the certificate under rule 94 shall be paid by the purchaser
to the Court before the Court closes on the 15th day from the date of sale of the
property:
Provided that, in respect of the purchase money, the purchaser shall have the
advantage of set-off to which he may be entitled under rule 72".
Madhya Pradesh (Notfn No 3409; 29-6-1943).— Add the following Explanation:—
"Explanation.—When an amount is tendered on any day after 1 p.m. but paid into Court
on the next working day between 11 a.m. and 1 p.m. the payment shall be deemed to
have been made on the day on which the tender is made."
Madras (Notfn dated 25-11-1944).— Substitute the following for the existing rule:—
"85. Time for payment in full of purchase-money and of stamp certificate of sale.—The
full amount of purchase-money payable and the general stamp for the certificate under
rule 94 or the amount required for such stamp, shall be deposited into Court by the
purchaser before the Court closes on the fifteenth day from the sale of the property:
Provided that in calculating the amount of purchase-money to be so deposited the

purchaser shall have the advantage of any set-off to which he may be entitled under
rule 72."
COMMENT.—
The provisions under these rules are mandator and those under rules 285D to 285E of
UPZALR rules are corresponding to them.244
In a Court sale, non-compliance of rules 84 and 85 in the matter of deposit of sale

amount will render the sale void.245
Where co-owner of suit property files an application for setting aside an execution sale
on the ground that the auction purchaser failed to pay purchase money within 15 days,
the sale is to be set aside by the executing Court.246
Full amount of purchase money to be paid at the sale.—
The specification of the amount for the recovery of which the sale was ordered, in the
sale proclamation being based on a statement made and verified by the decree-holder
it is not open to the decree-holder to claim that he was misled by any mistake of the
Court in the specification of that amount. The requirement of this rule that full amount
of purchase money must be paid by the purchaser at execution sale within fifteen days
from the date of sale, is mandatory. Failure to deposit purchase money as per this rule
is not a mere material irregularity in the sale so as to attract rule 90 of O XXI. In case of
failure to deposit the purchase money the obligation of the Court to resell the property
is imperative. A further consequence of non-payment is that the defaulting purchaser
forfeits all claim to the property.247
Obligation to deposit purchase money cannot be relieved of.—
The inherent powers cannot relieve the auction-purchasers of their obligations to make
the deposit of purchase money under O XXI, rule 85.248
244 Rao Mahmood Ahmad Khan v Ranbir Singh, AIR 1995 SC 2195 (2199) : 1995 Supp (4) SCC
275 : 1995 RD 240.
245 Gangabai Gopaldas Mohata v Fulchand, AIR 1997 SC 1812 (1815) : (1997) 10 SCC 387 .
246 Usmansab Hatelsahab v RL Meharwale, AIR 1999 SC 96 : (1998) 3 SCC 271 .
247 Balram v Ilam Singh, AIR 1996 SC 2781 (2784) : (1996) 5 SCC 705 ; see also Manilal Shah v
Sardar Sayed Ahmed Sayed Mohamad, AIR 1954 SC 349 : (1955) 1 SCR 108 : (1954) 2 MLJ 55 .
.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 86. Procedure in default of
payment
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 86.
Procedure in default of payment
In default of payment within the period mentioned in the last preceding rule, the
deposit may, if the Court thinks fit, after defraying the expenses of the sale, be
forfeited to the Government, and the property shall be re-sold, and the defaulting
purchaser shall forfeit all claim to the property or to any part of the sum for which it
may subsequently be sold.
Orissa.—Deleted (14-5-1984).
COMMENT.—
If the payment is not made within the period of fifteen days, then the Court has the
discretion to forfeit the deposit and there this discretion ends. The obligation of the
Court to resell the property is imperative. A further consequence of non-payment is that
the defaulting purchaser forfeits all claims to the property.249
.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 87. Notification on re-sale
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 87.
Notification on re-sale
Every re-sale of immovable property, in default of [AP, K, M] payment of the purchase-

money within the period allowed for such payment, shall be made after the issue of
fresh proclamation in the manner and for the period hereinbefore prescribed for the
sale.
[Rule amended in AP, Kerala & Mad.]
Bombay.—For "of the purchase-money" substitute "of the amounts mentioned in rule
85". (1-10-83)
Madras (GOMs No 2922-Home, of 28-10-1936—P Dis No 690 of 1936).—For the words

"payment of the purchase-money" substitute the words "the payment of the amounts
mentioned in rule 85".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 88. Bid of co-sharer to have
preference
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 88.
Bid of co-sharer to have preference
Where the property sold is a share of undivided immovable property and two or more
persons, of whom one is a co-sharer, respectively bid the same sum for such property
or for any lot, the bid shall be deemed to be the bid of the co-sharer.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 89. Application to set aside
sale on deposit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 89.
Application to set aside sale on deposit
(1) Where immovable property has been sold in execution of a decree, 250[any
person claiming an interest in the property sold at the time of the sale or at the
time of making the application, or acting for or in the interest of such person,]
may apply to have the sale set aside on his depositing in Court,—
(a) for payment to the purchaser, a sum equal to five percent of the
purchase-money, and
(b) for payment to the decree-holder, the amount specified in the

proclamation of sale as that for the recovery of which the sale was
ordered, less any amount which may, since [AP, K, M] the date of [KNT]
such proclamation of sale, have been received by the decree-holder. [AP,
B, K, KNT, M]
(2) Where a person applies under rule 90 to set aside the sale of his immovable
property, he shall not, unless he withdraws his application, be entitled to make
or prosecute an application under this rule.
(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may
be under in respect of costs and interest not covered by the proclamation of
sale.
Bombay.—In sub-rule (1) add a proviso as below:-
"Provided that if the full amount required to be deposited in Court under this rule is not
deposited at the time of making the application through some bona fide mistake or
miscalculation and the short-fall is made up within one week from the date of the
discovery of the mistake or calculation, the Court may condone the delay, if it considers
it just and proper to do so." (1-11-1966).
Karnataka.—(i) In sub-rule (1) clause (b) for the words "such proclamation decree-
holder" substitute: "that proclamation of sale, have been paid or deposited towards
satisfaction of the decree."
(ii) Add proviso as in Madras.
Kerala (Notfn No. B1-3312/58; 7-4-1959).—In sub-rule (1) (i) In clause (b) for "date of
such proclamation" read "date of the proclamation;
(ii) Insert the following provisos after clause (b):—
"Provided that, when several items of properties are sold separately, the sale of one or
more of such items may be set aside on depositing in Court the amount of the
purchase-money for the items the sale of which is sought to be set aside and a sum
equal to five per cent, of that amount, and the balance, if any, of the amount specified in
the proclamation of sale as that for the recovery of which the sale was ordered still
remains unrealised:
Provided further that where the immovable property sold is liable to discharge a portion
of the decree debt, the payment under clause (b) of this sub-rule need not exceed such
amount as under the decree the owner of the property sold is liable to pay". (9-6-1959)
Madras (GOMs 2084-Home of 2-9-1936—HCP Dis No. 691 of 13-10-1936).—In sub-rule

(1) (i) in clause (b) for "date of such proclamation" read "date of that proclamation".
(ii) Insert the following proviso at the end of sub-rule (1).
"Provided that where the immovable property sold is liable to discharge a portion of the
decree debt, the payment under clause (b) of this sub-rule need not exceed such
amount as under the decree the owner of the property sold is liable to pay."
III-A, Page 69.
Earlier Orissa amendment to rule 89 deleted.
COMMENT.—
The existing words "any person either owning such property or holding an interest
therein by virtue of a little acquired before such sale" occurring in sub-rule (1) of this
rule has given rise to a conflict of decisions by the various High Courts. The rule was
amended to make it clear that any person claiming any interest as existing at the time
of the sale or at the time of making the application can avail of the benefit of this rule.
The provisions of this rule are in the nature of an indulgence to the judgment-debtor;
they give him a last chance of getting the sale set aside before confirmation upon the
terms of satisfying the decretal debt and of paying compensation to the auction-
purchaser for the loss of bargain.251 The expression "in execution of a decree" includes
execution of a decree for sale of mortgaged property.
This rule requires that two primary conditions relating to deposit must be fulfilled (1)
The applicant must deposit in the Court for payment to the auction purchaser five
percent of the purchase money, (2) he must also deposit the amount specified in the
proclamation of sale less any amount received by the decree-holder since the date of
proclamation of sale for payment to the decree-holder.
An order setting aside a Court sale in execution of a mortgage decree cannot be

obtained under O XXI rule 89 by merely depositing 5% of the purchase money for
payment to the auction 5purchaser and persuading the decree-holder to abandon the
execution proceedings.252
Setting aside of auction-sale on application by judgment debtor.—
The object of O XXI rule 89 is intended to253

(i) Save judgment debtor from threatened deprivation of his property;
(ii) Satisfy claim of decree holder; and
(iii) Compensate the auction purchaser
Opportunity to Judgment Debtor Proper.—
In the instant case the auction sale of property in favour of the petitioner was
confirmed. However, but one opportunity was given by the High Court, pursuant to
which judgment debtors immediately deposited the amount. It was held that the High
Court exercise its discretion properly and in accordance with law having regard to the
facts and circumstances of the case and that judgment debtors should not be made to
lose their property.254
The limitation for an application to set aside sale in execution of a decree, including
any such application by the judgment-debtor under O XXI rule 89 or 90 read with the
Limitation Act is 60 days. But under O XXI rule 92(2) the sale would become absolute if
no deposit is made within 30 days. This is an unfortunate state of things and the
Parliament must enact the necessary changes in law.255
Under this rule an application for setting aside a sale and a deposit can be made but it
does not prescribe any period within which the application is to be made or deposit is
to be made.256
Setting aside of auction sale.—
An immovable property was attached and sold in the execution of a money decree. The
sale was in violation of a statutory provision. The property had already been sold in a
private sale by the judgment-debtor after obtaining the requisite permission. An
application was made by the transferee for setting aside the sale. The auction sale was
bad and must be set aside.257
Where Supreme Court passed an interim order directing judgment-debtor to deposit the
amount fixed by High Court, the auction sale shall stand set aside where amount was
deposited by the judgment-debtor accordingly.258
Withdrawal of application under rule 90.—
A party presented an application under rule 90 and subsequently under rule 89.
Thereafter he withdrew the application under rule 90. Mere conveyance to Court that he
is withdrawing his application under rule 90 is enough.259
No application in sales by receivers.—
It cannot be held that by every appointment of the receiver clothing him with the power
to sell the property if he thought it necessary to do so, the Court orders the sale of the
property within the meaning of O XXI rule 82. If the provisions of O XXI rule 66 are
inapplicable to the sale held by the receiver then it is obvious that the second condition
prescribed by rule 89(1)(b) is equally inapplicable. It is one of the two essential
conditions for the successful prosecution of an application under the said rule. This
fact emphasises the inapplicability of the whole rule to the sales held by receivers.260
No application in sales in execution of decree against lunatic.—
A decree against lunatic without appointment of guardian is nullity. The sale held in
execution of that decree is void ab initio. The question of any party having to resort to
provisions of O XXI, rules 89 and 90 to have sale set aside does not arise.261
There is no other provision under which a sale can be set aside apart from the
provisions of rules 89, 90 and 91.262
Where an application under the provision of rule 90 by a judgment-debtor is pending,

another application under rule 89 by that judgment-debtor and other judgment-debtors
is not barred. Where a deposit is made by any of the judgment-debtors as required
under rule 89, a proper deposit is made and the benefit for setting aside the sale would
accrue to the other judgment-debtors.263
Deposit of amount is sine qua non.—
Although O XXI rule 89 of the Code of Civil Procedure does not prescribe any period
either for making the application or the required deposit. Article 127 of the Limitation
Act now prescribes 60 days as the period within which such an application should be
made. In the absence of any separate period prescribed for making the deposit, the
time to make the deposit and that for making the application would be the same. The
deposit of the requisite amount in the court is a condition precedent or a sine qua non
to the application for setting aside the execution of sale and such an amount must be
deposited within the prescribed time for making the application otherwise the
application must be dismissed.264
words (w.e.f. 1-2-1977).
251 Tribhovandas v Ratilal, AIR 1968 SC 372 : (1968) 1 SCR 455 : 70 BomLR 73 : 1968 Mah LJ
287 .
252 Ibid.
253 Ram Karan Gupta v JS Exim Ltd, (2012) 13 SCC 568.
254 Sukumar De v Bimala Auddy, AIR 2014 SC 1000 .
255 Basavantappa v GN Dharwadkar, AIR 1987 SC 53 : (1986) 4 SCC 273 .
256 Dadi Jagannadham v Jammulu Ramulu, AIR 2001 SC 2699 : (2001) 7 SCC 71 ; PK Unni's
case ( AIR 1990 SC 933 ) overruled.
257 Raghunath Pradhani v Damodar Mahapatra, AIR 1978 SC 1820 (1823) : (1979) 1 SCC 508 .
258 M Noohukan v Bank of Travancore, (2008) 11 SCC 161 (162-63).
259 Shiv Prasad v Durga Prasad, AIR 1975 SC 957 (959) : (1975) 1 SCC 405 .
260 Jibon Krishna v New Beerbhumi Coal Co, AIR 1960 SC 297 (299) : (1960) 2 SCR 298 : (1960)
1 MLJ (SC) 96.
261 Ram Chandra v Man Singh, AIR 1968 SC 954 : (1968) 2 SCR 572 : 1968 BLJR 610 ;
Khiarajmal v Daim, (1904) 32 IA 23 PC explained; see also Janak Raj v Gurdial, AIR 1967 SC 608 :
(1967) 2 SCR 77 .
262 Ganpat Singh v Kailash Shankar, AIR 1987 SC 1443 (1448).
263 Himmatbhai v MUM, AIR 1978 SC 918 (920).
264 Annapurna v Mallikarjun, (2014) 6 SCC 397 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 90. Application to set
aside sale on ground of irregularity or fraud
© 2020 LexisNexis
THE FIRST SCHEDULE
265[R. 90.
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
rateable 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 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 mere absence of, or defect in, attachment of the property
sold shall not, by itself, be a ground for setting aside a sale under this rule.]
Allahabad (Notfn No 43/VIId-29; 1-6-1957).—(i) Renumber the rule as sub-rule (1) and
substitute the following for the proviso:—
"Provided that no application to set aside a sale shall be entertained—
(a) upon any ground which could have been taken by the applicant on or before the
date on which the sale proclamation was drawn up; and
(b) unless the applicant deposits such amount not exceeding twelve and half
percent of the sum realised by the sale or furnishes such security as the Court
may, in its discretion, fix except when the Court for reasons to be recorded
dispenses with the requirements of this clause:
(ii) Add the following as sub-rule (2):—
"(2) Where such application is rejected the Court may award such costs to the decree-
holder or the auction-purchaser or both as it may deem fit and such costs shall be the
first charge upon the security referred to in clause (b) of the proviso, if any".

Calcutta (Notfn No 3516-G, of 3-2-1933).—Rule substituted by another rule in which the
changes effected in the existing rule are:—
(a) At the end of sub-rule (1) add the words.—"or on the ground of failure to issued
notice to him as required by rule 22 of his Order".
(b) For the existing proviso substitute the following:—
"Provided (i) that no sale shall be set aside on the ground of such irregularity, fraud or
failure unless, upon the facts proved, the Court is satisfied that the applicant has
sustained substantial injury by reason of such irregularity, fraud or failure.
(ii) That no sale shall be set aside on the ground of any defect in the proclamation of sale
at the instance of any person who after notice did not attend at the drawing up of the
proclamation or of any person in whose presence the proclamation was drawn up, unless
objection was made by him at the time in respect of the defect relied upon".
Add the following as additional proviso to sub-rule (1) of rule 90:—
"Provided also that no such application for setting aside the sale shall be entertained
without the leave of the Court upon any ground which could have been, but was not put
forward by the applicant before the commencement of the sale."

dated 16-9-1960.
After the proviso to sub-rule (1), insert the following further proviso:
"Provided also that no such application for setting aside the sale shall be entertained
upon any ground which could have been, but was not put forward by the applicant
before the commencement of the sale."
Madras (G.O. Ms No 2084-Home, of 2-9-1936)—HCP Dis No 691 of 13-10-1936).—
rule substituted by another rule in which the changes effected in the existing rule are:—
(a) After sub-rule (1) and before the existing proviso insert the following provisos:-
"Provided that the Court may after giving notice to the applicant, call upon him
before admitting the application either to furnish security to the satisfaction of
the Court for an amount equal to that mentioned in the sale warrant or that
realized by the sale, whichever is less, or to deposit such amount in Court:
Provided also that the security furnished or the deposit made as aforesaid, shall
be liable to be proceeded against only to the extent of the deficit on a re-sale of
the property already brought to sale:
(b) In the existing proviso after the word "Provided" insert, "further".
Orissa.—The following amendments were made by Orissa Gazette, dated 25-5-1984,

Part III-A, Page 69.
(i) Delete Orissa Amendment to sub-rule (1) which was same as that of Patna and
was in force since 20-3-1942, excepting Clause (b) of the first proviso which ran
as follows:—
"(b) unless the applicant deposits such amount not exceeding 121/2 percent of
the sum realised by the sale or such other security as the Court may in its
discretion fix, unless the Court, for the reasons to be recorded, dispenses with
the deposit."
(ii) Sub-rule (2) renumbered as sub-rule (4) (w.e.f. 25-5-1984), sub-rule (4) ran as
follows:—
"(4) in case the application is unsuccessful the costs of the opposite party shall
be a first charge upon the deposit referred to in the proviso (1) (b), if any."
Patna.—(a) Substitute the following for the proviso (now see sub-rules (2) and (3)) to
sub-rule (1):—
"(i) Provided that no application to set aside a sale shall be admitted,
(a) upon any ground which could have been, but was not put forward by the
applicant before the sale was concluded, and
(b) unless the applicant deposits such amount not exceeding 121/2 percent of the
sum realised by the sale or such other security as the Court may in its discretion
fix, unless the Court, for reasons to be recorded, dispenses with the deposit.
(ii) Provided further that no sale shall be set aside on the ground of irregularity or fraud
unless upon the facts proved the Court is satisfied that the applicant has sustained
substantial injury by reason of such irregularity or fraud." (As amended on 20-3-1942).
(b) Add the following as sub-rule (2):-
"(2) In case the application is unsuccessful the costs of the opposite party shall be a
first charge upon the deposit referred to in proviso (i)(b), if any."

Add the following proviso:-
"Provided further that no such sale shall be set aside on any ground which the applicant
could have put forward before the sale was conducted."
COMMENT.—
The existing rule 90 was substituted by the present rule. The words "or the purchaser"
have been inserted in the rule to make it clear that the auction purchaser can also apply
to set aside sale. The rule has been amended to provide that as sale shall not be set
aside on the ground of an irregularity or fraud unless the applicant has sustained a
substantial injury by reasons of such irregularity or fraud. It has also been provided that
no application to set aside the sale shall be entertained on any ground which the
applicant could have taken on or before the date on which the proclamation of sale
was drawn up. The expression "entertain" in Proviso means "adjudicate upon" or
"proceed to consider on merits". It does not refer to initiation of proceedings.266
Furthermore, an explanation has been added to the effect that mere absence of, or
defect in, the attachment or the property sold shall not, by itself, be a ground for setting
aside the sale. This rule cannot be strictly construed so as to put a fetter on the Court,
due to non-raising of the objection before proclamation of sale and the objection could
be raised even at a later stage, but where the title has already been lost and has
become final, the petitioner cannot agitate the executability of the decree in the
absence of any legal title to question the correctness of the execution.267
Order XXI rule 90(3) is not applicable where sale was held in violation of mandatory
requirements of the rules 64 and 66 of O XXI of the Code.268
What constitutes material irregularity?—
Mere substantial injury without material irregularity is not enough, even as material
irregularity not linked directly to inadequacy of the price is insufficient. Where a Court
mechanically conducts the sale or routinely signs assent to the sale papers. It does not
bother to see if the offer is too low and a better price could be obtained and in fact the
price is substantially inadequate. The elements of irregularity and injury both, are
present.269
Omission to send certificate is no material irregularity.—
An omission to transmit to the Court, executing the decree, the certificate referred to in
rule 6(b) does not amount to a material irregularly within the meaning of O XXI rule 90.
It cannot be made a ground for setting aside a sale in execution.270
In the absence of allegation of any fraud or material irregularity in the conduct of the
Court auction sale mere inadequacy of price is no ground for setting aside the sale.271
Where a High Court while dismissing revision petition gives direction to the co-owner to
pay loss suffered by auction purchaser, on grounds that the sale was being set aside
after 15 years, it would be illegal.272
The Explanation to rule 90 speaks that the mere absence of, or defect in, attachment of
the property sold shall not, by itself, be a ground for setting aside a sale under this rule.'
But if the judgment-debtor is kept totally ignorant of the execution proceedings right
from the date of execution application till sale, it cannot be merely called a mere
irregularity in attachment and thus of no consequence.273
When in an execution proceedings an objection is filed for setting aside auction sale on
ground of material irregularity but pleading that the objectors were put to substantial
injury because of said irregularity, remains absent, the auction cannot be set aside.274
Material irregularity in publication.—
If there was no material irregularity in publishing and conducting sale, then the sale
was not liable to be rejected.275
Substantial injury by reason of order under rule 72.—

The applicant must also prove by adducing sufficient facts that some substantial injury
has been caused to him as a result of the order under rule 72 having been passed
without notice to the judgment-debtor.276
No saleable interest, no valid auction sale.—
There was a simple mortgage in favour of a bank. Certain land out of the mortgaged
land was declared to be surplus under ceiling Act and vested with the Government.
Meanwhile the bank obtained decree for realisation of mortgaged money and sought to
bring surplus land under Court auction in execution of decree. The surplus land was,
held, not liable to be sold as the bank had no saleable interest in said land. Therefore, in
the absence of a valid title having been acquired in law by purchasers of auction sale
over surplus land, the whole proceedings pursuant to Court auction sale would be
vitiated .277
Power of executing court.—
It cannot be said that once sale certificate has been issued, the executing Court will not
have any jurisdiction to entertain application under O XXI, rule 90.278
Setting aside of sale—What has to be established for.—
In order to set aside an auction sale, mere proof of a material irregularity and
inadequacy of price realised in such a sale is not sufficient. What has to be established
is that there was not only inadequacy of the price but that inadequacy was caused by
reason of the material irregularity or fraud. A connection has to be established between
the inadequacy of the price and the material irregularity.279
The shareholder of a company can maintain application under XXI rule 90 only if he is
able to satisfy that his interest is affected by sale.280 Where there was no proper
publication of the sale in the daily newspaper and the auction has been knocked down
in favour of the close relation of the decree-holder for a much less value of the
disputed property, the order of the executing Court and all the consequent orders by the
Courts below were set aside.281
Power is discretionary.—
The power conferred on the Court under clause (b) to the Proviso is discretionary.
Ordinarily the Court has to give an opportunity to the applicant to comply with clause
(b) to the Proviso. It can reject the application to set aside sale if clause (b) is not
complied with. This is particularly so when the application is made prior to
incorporation of clause (b) to the Proviso.282
Withdrawal of application.—
A party presented an application under rule 90 and subsequently under rule 89.
Thereafter he withdrew the application under rule 90. Mere conveyance to Court that he
is withdrawing his application under rule 90 is enough.283
No express averment of substantial injury, no dismissal of application.—
It is true that before an application made under O XXI rule 90 can succeed, the
applicant has to show that the impugned sale was vitiated by a material irregularity or
fraud in publishing or conducting it. Under the proviso, it is also necessary that he
should show that in consequence of the said material irregularity or fraud he had
sustained substantial injury. But where substantial injury is alleged to be implicit in the
material irregularity set out in the application, it would too technical to hold that the
application should be dismissed on the preliminary ground that no specific or express
averment has been made as to substantial injury suffered by the applicant.284
Auction sale of property by executing Court not barred.—
Where the Tax Recovery Officer is not proceeding to recover tax by invoking provisions
of the I.T. Act, an auction sale of property by the Executive Court is not barred under
rule 9 of I.T. rules.285
In obvious illegality, time limit no meaning.—
Where in an auction sale conducted by the Court receiver illegalities have been pointed
out by Division Bench of High Court, the Supreme Court took judicial notice of the
illegalities and set aside Court sale. It was held that the Supreme Court or appellate
Court would not remain mute spectator to obvious and manifest illegality committed in
conducting Court sale even if application is not filed within time prescribed.286
Appeal under Clause 10 of Letters Patent is maintainable.—
An order in a proceeding under O XXI, rule 90 of Code of Civil Procedure is a "judgment"

inasmuch as such a proceeding raises a controversy between the parties therein
affecting their valuable rights. And the order allowing the application certainly deprives
the purchaser of rights accrued to him as a result of the auction sale. So, an appeal
under clause 10 of the Letters Patent (Alld.) lies from an order of a single judge of the
High Court in an appeal from an order of an executing Court on the application under O
XXI, rule 90.287
New Plea.—
In an appeal arising out of an objection under section 47 the validity of sale was
challenged. The grounds for setting aside sale under O XXI, rule 90 not canvassed
before the Courts below cannot be raised in absence of any material on record.288
An application for restoration of setting aside sale and also the application for setting
aside the confirmation of sale were dismissed. The appeals filed against those orders
have also been dismissed by the impugned judgment. With the result the objections
under this rule shall be treated to have been dismissed on merits and the confirmation
of sale in favour of the appellant shall be treated to have validly done.289 Reference
may be made to Punjab Financial Corporation v Garg Rice and General Mills, Samana, AIR
1984 P&H 319 .
Execution sale, objection.—
Where the revisional Court found that the objection was not tenable but set aside sale
in interest of revival of unit, it exceeded its jurisdiction by setting aside final order of
civil court .290
265 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for rule 90
(w.e.f. 1-2-1977).
266 Hindustan Commerical Bank Ltd v Punnu Sahu, AIR 1970 SC 1384 : (1971) 3 SCC 124 ;
Laxmi Ratan Cotton Mills v Asstt Commr Sales Tax, AIR 1968 SC 488 : (1968) 1 SCR 505 : 21 STC
154 followed.
267 RPA Yalliammal v R Palanichami Nadar, AIR 1997 SC 1996 : (1997) 10 SCC 209 .
268 PK Kuruvilla v Corpn Bank, 2008 (1) KLT 604 (614) (DB) : 2008 AIHC (NOC) 891 (Ker-DB).
269 Kayjay Industries v Asnew Drums, AIR 1974 SC 1331 (1335) : (1974) 2 SCC 213 : (1974) 3
SCR 678 .
270 Mohanlal v Benoy K Mukherjee, AIR 1953 SC 65 (67) : 1953 SCR 377 : (1953) 1 MLJ 449 .
271 Rajinder Singh v Ramadhar Singh, AIR 2001 SC 2220 : (2001) 6 SCC 213 .
272 Usmansab Hatelsahab v RL Meharwade, AIR 1999 SC 96 : (1998) 3 SCC 271 .
273 Satyanarain Bajoriya v Ramnarain Tibrewall, AIR 1994 SC 1583 (1589).
274 Sri Ram Maurya v Kailash Nath, AIR 2000 SC 3402 : (1999) 9 SCC 276 .
275 V Ramakrishnaiah v T Rangarao, AIR 1986 SC 2099 : (1986) 4 SCC 193 .
276 Jaswantlal N Thakkar v Sushilaben, AIR 1991 SC 770 : 1991 Supp (2) SCC 691 .
277 V Swarajyalakshami v Authorised Officer, Land Reforms, Medak, AIR 2003 SC 2347 (2351) :
(2003) 9 SCC 525 .
278 J Malla Reddy v I Shanthamma, 2010 AIHC (NOC) 223 (AP); CMA No 1448 & 200 of 2008, Dt
17 July 2009 (DB) : AIR 2009 (NOC) 2496 (AP) (DB) : 2009 (5) ALT 493 (501 (DB).
279 Radhy Shyam v Shyam Behari, AIR 1971 SC 2337 (2341) : (1970) 2 SCC 405 .
280 NG George v SS Varkey, AIR 2009 (NOC) 1764 Ker (DB) : 2009 (2) KLT 30 (35) (DB).
281 Pappu Ramireddy v Pappu Lakshmi Narayana Reddy, (2009) 16 SCC 346 (347).
282 Hindustan Commercial Bank Ltd v Punnu Sahu, AIR 1970 SC 1384 : (1971) 3 SCC 124 .
283 Shiv Prasad v Durga Prasad, AIR 1975 SC 957 (959) : (1975) 1 SCC 405 .
284 Laxmi Devi v Mukand Kunwar, AIR 1965 SC 834 (837) : (1965) 1 SCR 726 : (1965) 2 MLJ
(SC) 133.
285 Janaki S Menon v VRS Krishnan, AIR 1997 SC 1894 : (1997) 2 SCC 623 : (1997) 233 ITR 771
.
286 Nani Gopal Paul v T Prasad Singh, AIR 1995 SC 1971 : (1995) 3 SCC 579 : (1995) 84 Com
Cas 118 .
287 Radhy Shyam v Shyam Bihari, AIR 1971 SC 2337 (2341).
288 Shankat Hussain v Bhuneshwari Devi, AIR 1973 SC 528 (530).
289 U Nilan v Kannayya, AIR 1999 SC 3750 (3757) : (1999) 8 SCC 511 .
290 Syndicate Bank v New Look Rubbers Pvt Ltd, AIR 2008 SC 2670 (2673).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 91. Application by
purchaser to set aside sale on ground of judgment-debtor having no saleable interest
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 91.
Application by purchaser to set aside sale on ground of judgment-debtor
having no saleable interest
The purchaser at any such sale in execution of a decree may apply to the Court to set
aside the sale, on the ground that the judgment-debtor had no saleable interest in the
property sold.
[Rule 91-A added in Bombay and Gujarat.]
Bombay (Notfn No 776 of 9-2-1925):—Add the following as rule 91-A:—
"91-A. Where the execution of a decree has been transferred to the Collector and the
sale has been conducted by the Collector or by an officer subordinate to the Collector,
an application under rules 89, 90 or 91, and in the case of an application under rule 89,
the deposit required by that rule if made to the Collector or the officer to whom the
decree is referred for execution in accordance with any rule framed by the State
Government under Section 70 of the Code, shall be deemed to have been made to or in
the Court within the meaning of rules, 89, 90 and 91".
Gujarat.—The following amendments were made by Gujarat High Court, (17-8-1961).
The following shall be added as rule 91A:-
"R. 91A. Deposits has to be made where execution is transferred to Collector.—When the
execution of a decree has been transferred to the collector and the sale has been
conducted by the Collector or by an officer subordinate to the Collector, an application
under rule 89, 90 or 91, and in the case of an application under rule 89, the deposit
required by that rule, if made to the Collector or the officer to whom the decree is
referred for execution in accordance with any rule framed by the State Government
under Section 70 of the Code, shall be deemed to have been made to, or in the Court
within, the meaning of rule 89, 90 or 91." (17-8-1961)
COMMENT.—
An auction sale was set aside in an appeal before the Supreme Court. The judgment-
debtor was obligated to deposit certain amount on or before certain date. His failure to
deposit would entail dismissal of appeal .291 Application was filed by the original
plaintiff under O XXI, rule 90 read with section 47, on the ground that, he was the owner
and he was not aware of execution proceedings. It was further contended that,
hardship would be caused if auction was confirmed. The said application was
dismissed. It was held that, O XXI, rule 92 (3) would operate as a bar for the
entertainment of the fresh suit on the ground so urged.292
291 Sawan Ram v Narish Chandra, AIR 1980 SC 2137 .

292 Siddagangaih v NK Giriraja Shetty, AIR 2018 SC 3089 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 92. Sale when to become
absolute or be set aside
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 92.
Sale when to become absolute or be set aside
(1) Where no application is made under rule 89, rule 90 or rule 91, or where such
application is made and disallowed, the Court shall [A, OR, P] make [MP] an
order confirming the sale, and thereupon the sale shall become absolute [K]:
293[ Provided that, where any property is sold in execution of a decree pending
the final disposal of any claim to, or any objection to the attachment of, such
property, the Court shall not confirm such sale until the final disposal of such
claim or objection.]
(2) Where such application is made and allowed, and where, in the case of an
application under rule 89, the deposit required by that rule is made within
294[sixty days] from the date of sale, [AP, K, M] 295[or in cases where the
amount deposited under rule 89 is found to be deficient owing to any clerical or

arithmetical mistake on the part of the depositor and such deficiency has been
made good within such time as may be fixed by the Court, the Court shall make
an order setting aside the sale]:
Provided that no order shall be made unless notice of the application has been
given to all persons affected thereby:
296[ Provided further that the deposit under this sub-rule may be made within
sixty days in all such cases where the period of thirty days, within which the
deposit had to be made, has not expired before the commencement of the
Code of Civil Procedure (Amendment) Act, 2002.]
(3) No suit to set aside an order made under this rule shall be brought by any
person against whom such order is made.
297
[(4) Where a third party challenges the judgment-debtor's title by filing a suit
against the auction-purchaser, the decree-holder and the judgment-debtor
shall be necessary parties to the suit.
(5) If the suit referred to in sub-rule (4) is decreed, the Court shall direct the
decree-holder to refund the money to the auction-purchaser, and where such
an order is passed the execution proceeding in which the sale had been held
shall, unless the Court otherwise directs, be revived at the stage at which the
sale was ordered.]

Allahabad (Notfn No 4084/35(a)-3(7), 24-7-1926).—In sub-rule (1) after the words "the
Court shall," insert the words "subject to the provisions of rule 58(2)".
Bombay (Dadra-Nagar Haveli) (Goa, Daman and Diu).— The following amendments
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka, Page 418
(1-10-1983); Goa Gazette, dated 12-10-1987; Extra. S. 1, No. 28, Page 386, dated 1-4-1987.
To rule 92(1) add the following proviso:—
"Provided that before confirming the sale the Court shall satisfy itself that the amount
paid under rule 85 for the purchase of general stamp paper for the certificate under rule
94 is sufficient for the purpose in accordance with the rate in force at the time of the
confirmation and may, notwithstanding anything contained in rule 86, give the
purchaser such time as it thinks fit for making good any deficiency". (1-10-1983)
Kerala.—(i) At the end of sub-rule (1) add the following proviso:—
"Provided that before confirming the sale the Court shall satisfy itself that the amount
paid under rule 85 for the purchase of general stamp paper for the certificate under rule
94 is sufficient for the purpose in accordance with the rate in force at the time of the
confirmation and may, notwithstanding anything contained in rule 86, give the
purchaser such times as it thinks fit for making good any deficiency". (1-1-1966).
(ii) (Notfn No B1-3312-58; 7-4-1959).—In sub-rule (2) insert words as in Madras by only
substituting the words "has become deficient" for "has been diminished".
The following amendments were made by Kerala Gazette, dated 8-2-1988, Part III
(JD),Page 19, (No. 6).
In sub-rule (2) for the words "thirty days", words "sixty days" be substituted.
Madhya Pradesh (Notfn No 3409; 29-6-1943).—In sub-rule (1) after the word "make"
insert the words "subject to the provisions of rule 58(2)".
Madras (P Dis No 56 of 1927).—In sub-rule (2) after the words "within thirty days from
the date of sale" insert the following words:—
"and in case where the amount deposited has become deficient owing to any cause not
within the control of the depositor such deficiency has been made good within such
time as may be fixed by the Court."
Orissa.—Deleted. (14-5-1984)
Patna.—Same as in Allahabad.
COMMENT.—
(i) In rule 92, in sub-rule (2) for the words "thirty days", the words "sixty days"
shall be substituted.
(ii). After the first proviso the following proviso shall be inserted, namely, namely:—
"Provided further that the deposit under this sub-rule may be made within sixty days in all
such cases where the period of thirty days, within which the deposit had to be made, has
not expired before the commencement of the Code of Civil Procedure (Amendment) Act,
2000."
By the Code of Civil Procedure (Amendment) Act, 2002, the time for depositing the amount
under O XXI, rule 92 has been enhanced from thirty days to sixty days. This amendment
would apply to all cases in which the time of deposit of thirty has not expired before the
commencement of the Code of Civil Procedure (Amendment) Act, 2002.
The amendment in rule 92 has been made on the recommendations of the Law
Commission made in 139th Report to bring harmony between rule 92(2) of O XXI and Article
127 of the Indian Limitation Act, 1963. The period for making deposit under O XXI, rule 92(2)
before the present amendment was thirty days, while under Article 127, of the Indian
Limitation Act, 1963 the limitation period for making the application to set aside an
execution sale (which has to be accompanied by the deposit in Court of requisite amount) is
sixty days. The Law Commissioners in 139 Report observed:
"4.1. The compulsive case for amendment.—From the discussion in the preceding Chapters,
it is clear that in the present state of the law, there is manifest discrepancy between the
provision in the Civil Procedure Code and the connected and complementary provision in
the Limitation Act. An application to set aside an execution sale under the Code of Civil
Procedure, 1908 must be accompanied by the necessary deposit as provided in O XXI. Rule
89(1) of Code of Civil Procedure. But the prescribed limitation periods for making
application and for making the deposit are different being 60 days and 30 days respectively.
In theory as well as in practice, it is manifestly clear that if an application to set aside has to
be accompanied by a deposit of the requisite amount it is pointless to give 60 days to make
the application if the deposit has to be made within 30 days. It is also pointless because the
felt need of the time rooted in the experience is that Banks take more than 30 days to
sanction loans to judgment debtors seeking to avail of the benefit of O XXI, rule 89, Code of
Civil Procedure. If deposit cannot be made within 30 days on account of the difficulties built
in the Banking system what use is it to give him 60 days to make the application to
accompany the deposit? The bottleneck arises in obtaining the loan within 30 days, not in
drafting the application in 30 days. That is why the law prior to 1976 provides for an
identical period for deposit as well as making application. The same pattern was needed to
be followed in effectuating the intention of the Legislature to grant 60 days to the judgment-
debtor to secure the loan which intention was explicitly set out in the Objects and Reasons
clause. The need is, therefore, manifest and the Courts have been repeatedly stressing it
accordingly.
4.2. Judicial decision.—As has been mentioned above the Courts including the Supreme
Court have pointed out the need for amending the provision in O XXI, rule 92(2), Code of
Civil Procedure so as to substitute "sixty days" for "thirty days" in O XXI, rule 92(2) of the
Code.
4.3. Hardship and urgency.—Besides this, innocent judgment-debtors have to suffer injustice,
owing to the fact that because of the inconsistency, the period for depositing remains
unaltered and the intendment of the Legislature to enable them to obtain the loans so as to
make it possible for them to deposit the requisite amount in Court to save the property from
being lost to them remains thwarted. And those who have moulded their action on an
interpretation of the law which received the imprimatur of the Supreme Court in
Basavantappa's case in 1986 [(1986) 4 SCC 273 ] will suffer enormous loss now as the said
decision has been reversed recently in PK Unni's case in 1990 [ AIR 1990 SC 933 ]. There is,
thus, obvious urgency to salvage the situation before the pending matters are decided and
their fate is sealed against them, notwithstanding the Legislative intendment to come to
their rescue, reflected as early as in the 1976 amendment of Article 127 of the Limitation
Act.
4.4. Recommendation.—In the light of what we have stated above, our urgent
recommendation is that in O XXI, rule 92(2), of the Code of Civil Procedure, 1908, the words
"within sixty days" should be substituted for the words "within thirty days". And the
recommendation should be made applicable to pending matters and matters which have
not been concluded in the Courts by giving it retrospective or retroactive effect for the
reason being mentioned presently.
4.5. This part of the recommendation is being made, as the Supreme Court judgment in
Basavantappa's case rendered in 1986 held the field till it was overruled in PK Unni's case in
1990 and the failure to amend did not result in prejudice to the concerned judgment-debtors
till 1990. But, now that the situation has altered, the judgment-debtors who have acted on
the interpretation of the law which was upheld even by the Supreme Court in Basavantappa's
case in 1986, will suffer grave detriment and their fate will be prejudicially affected by the
latest law as declared in Unni's case in 1990. It is, therefore, essential that the amendment
should be made retrospective or retroactive in the sense of making it applicable to all
pending matters not finally concluded by the Courts till the enforcement of the proposed
amendment.
We, therefore, recommend accordingly in the hope that the pressing need for the
amendment and of doing so urgently will be realised and serious injustice to the
unfortunate judgment-debtors or the persons having interest in the auctioned property,
prevented." (Vide Law Commission's 139th Report pp 8, 9).
Earlier the need for an amendment of the law on the point was highlighted nearly 10 years
back in the Law Commission of India's 89th Report presented on 28 February 1983. The
Law Commissioners observed as under:
42.35 However, we should refer to a connected provision in the Code of Civil Procedure,
1908, which seems to need amendment. Article 127 of the Limitation Act is concerned with
applications, in regard to which Order XXI, rule 92(2) of the Code is relevant. The period of
limitation for an application under Article 127 is sixty days, after its amendment in 1976.
The application is to be accompanied by a deposit. The period for making the required
deposit under Order XXI, rule 21, rule 92(2), Code of Civil Procedure. is, however, still thirty
days. This disharmony between the two statutory provisions should be removed. We may
point out that the disharmony between the two statutory provisions should be removed. We
may point out that the disharmony has been adverted to in a recent judgment of the Kerala
High Court (2) Dakshayini v Madhavan, AIR 1982 Ker 126 also. To remove this discrepancy,
we recommend that Order XXI, rule 92(2) of the Code of Civil Procedure, 1908, should be
suitably amended by increasing the period from 30 days to 60 days (3).
The proviso was added to sub-rule (1) of this rule 92 and the existing sub-rule (2)
was substantially amended. Further sub-rule (4) and (5) were added newly. These
amendments have been made with a view to avoiding complications with regard to
limitations.
Period of limitation.—
The limitation for an application to set aside sale in execution of a decree, including
any such application by the judgment-debtor under O XXI rule 89 or 90 read with the
Limitation Act is 60 days. But under O XXI rule 92(2) the sale would become absolute if
no deposit is made within 30 days. This is an unfortunate state of things and the
parliament must enact the necessary changes in law.298
The correct construction of rule 92(2) of the Code leads to irresistible conclusion that
the time for making a deposit in terms of rule 89 of O XXI is 30 days. Article 127 of the
Limitation Act, 1963, prescribing the period for making an application, under rule 89 of
the Code has no relevance to the prescribed time for making the deposit.299
If the deposit is made within 30 days from the date of sale and an application is filed
then the Court would have no discretion but to set aside the sale. However, if the
deposit is made beyond the period of 30 days but within the period of 60 days, then it
will be within the discretion of the Court whether or not to grant the application. It is to
be noted that Code of Civil Procedure (Amendment) Act, 2002 has now prescribed this
period of limitation as 60 days.300
Even if the sale is confirmed and becomes absolute under this rule, it is subject to the
disposal of the application for setting aside the sale on the ground of fraud.301
The rule 92 contemplates that where the conditions thereunder are satisfied an order
for confirmation must follow. It does not give any right to the debtor to ask for
postponement of the confirmation in order to enable him to deposit the amount.302
If an application for setting aside execution sale is dismissed, then the Court has no
option but to confirm the sale and no separate application is necessary. Where after
the sale but before confirmation the decree is set aside, the purchaser nevertheless is
entitled to confirmation of sale.
A Court is bound to confirm the sale even though the decree has been set aside in
proper proceedings.303
If an application for setting aside execution sale is dismissed, then the Court has no
option but to confirm the sale. No separate application is necessary.304
Reference may be made to Dakshayini v Madhavan, AIR 1982 Ker 126 wherein need for
amending rule 92 was pointed out by the High Court.
Where a suit was filed by the plaintiffs for declaration that the sale held in the execution
of decree obtained by the appellant against their father and other members of their
family was void ab initio it was held by the Supreme Court that the sale was void and
further held that such a sale conferred no title on the auction purchaser and therefore
the joint family to which properties continued to be owner of the property. It is
erroneous to say that as the plaintiffs were not born on the date of the sale they could
not challenge its validity.305
Object of.—
In a suit for recovery of statutory charge by Municipality against owner of property,

considering the object of O XXI, rule 92(4) and (5) Supreme Court directed the plaintiff
to pay amount which Court paid to Municipality out of auction amount and also pay
amount of property tax to Municipality.306
Purchase by mortgagee, illegal.—
Where in an auction sale by the executing Court a property valued at Rs. 75,000/- sold
for mere sum of Rs. 15,100/- while the sale was subject to discharge of mortgage for
sum of Rs. 40,000/-, none came forward to purchase the property and the mortgagee
himself purchased it for Rs. 15,100/-, the sale by executing Court is illegal.307
Finality of sale only after disposal of appeal.—
Sale does not become absolute on mere passing of order of confirmation. It attains
finality only after disposal of appeal against order refusing to set aside sale. There is no
difference between an appeal against order refusing to set aside sale and an appeal
against order refusing to restore application to set aside sale. As such even after
passing of order confirming sale a mortgager can apply for deposit of mortgage money
during pendency of appeal against refusing to restore his application for setting aside
sale. Further, his application to make deposit does not become not maintainable on
subsequent rejection of his application to set aside sale on merits.308
Appeal against confirmation is pending, no application for setting aside sale

can be entertained.—
Where an appeal against confirmation of sale is pending, application for setting aside
sale on deposit of decretal amount cannot be entertained.309
Objection to confirmation of sale.—
Agreement holder can object to confirmation of sale.310
Claim by third party.—
The third party claiming any right over the property covered by Court sale can have
recourse only to rule 97 or rule 99 and not by way of a separate suit.311
Application made at belated stage—Effect.—
Where the appellant/judgment debtor did not pay entire amount specified within the
stipulated time then in such a case an application for setting aside auction sale in
execution of a decree is liable to be rejected confirming the sale. The belated offer
made by the appellant for depositing amount cannot be entertained.312
1977).
294 Subs. for 'thirty days' by the Code of Civil Procedure (Amendment) Act, 22 of 2002, section
14(i).
295 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for "the Court
shall make an order setting aside the sale" (w.e.f. 1-2-1977).
296 Ins. by the Code of Civil Procedure (Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002)
vide Notfn. S.O. 604(E), dt. 6-6-2002, section 14(ii).
298 Basavantappa v GN Dharwadkar, AIR 1987 SC 53 : (1986) 4 SCC 273 : (1986) 162 ITR 373 .
299 PK Unni v Nirmala Industries, AIR 1990 SC 933 : (1990) 2 SCC 378 : (1990) 1 KLT 903 : 1990
BBCJ 84 . This case has been overruled by SC in Dadi Jagannadhan v Jammulu Ramulu, AIR
2001 SC 2699 .
300 Dadi Jagannadhan v Jammulu Ramulu, AIR 2001 SC 2699 : (2001) 7 SCC 71 ; PK Unni's
case, AIR 1990 SC 933 overruled.
302 Hukum Chand v Bansilal, AIR 1968 SC 86 : 1968 MPLJ 187 : 70 Bom LR 114.
303 Janak Raj v Gurdial Singh, AIR 1967 SC 608 : (1967) 2 SCR 77 : 1967 ALJ 524 .
304 IJC v Subkaram, AIR 1978 SC 589 ; Janak v Gurdial, AIR 1967 SC 608 : 1968 MPLJ 187 : 70
Bom LR 114 relied on.
305 NK Setty v Gopalakrishna, AIR 1974 SC 1911 : (1974) 2 SCC 624 : (1975) 1 SCR 970 .
306 T Vijendradas v M Subramanian, AIR 2008 SC 563 .
307 Seethammal v Senthil Finance, AIR 1996 SC 1551 .
308 U Nilan v Kannayyan, AIR 1999 SC 3750 (3756, 3757) : (1999) 8 SCC 511 .
309 VK Palaniappa Chittiar v Ramaswami Gounder, AIR 2001 SC 2186 .
310 Kancherla Lakshminarayana v Mattaparthi Shyamala, AIR 2008 SC 2069 : (2008) 14 SCC 258
(266).
311 Unnikrishnan v Kunhibeevi, 2011 (1) KLT 508 (523) (DB).
312 A Ram Karan Gupta v J S Exim Ltd, AIR 2013 SC 24 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 93. Return of purchase-
money in certain cases
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 93.
Return of purchase-money in certain cases
Where a sale of immovable property is set aside under rule 92, the purchaser shall be
entitled to an order for repayment of his purchase-money, with or without interest as
the Court may direct, against any person to whom it has been paid.
COMMENT.—
Reference may be made to a Full Bench decision of Kerala High Court in Annamma v
Ouseph Tressiamma, AIR 1975 Ker 185 (FB) regarding the scope of rules 91 to 93 of
this order.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 94. Certificate to purchaser
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 94.
Certificate to purchaser
Where a sale of immovable property has become absolute, [OR, P] the Court shall
grant a certificate specifying the property sold [B, MP] and the name of the person
who at the time of sale is declared to be the purchaser. Such certificate shall bear
date the day on which the sale became absolute [A, OR, P].
[Rule amended in Bom, MP, Orissa & Pat; sub-rule (2) added in Allahabad.]
Allahabad (Notfn No 2/VII d-29; 5-1-1960).—Renumber existing rule as sub-rule (1) and
insert the following as sub-rule (2):—
"(2) Where immovable property is transferred otherwise than by sale, a document of

transfer shall be granted by the Court specifying the property, the name of the person
to whom it is transferred and the terms on which the transfer is made. Such document
shall bear the date the day on which the transfer was ordered". (13-2-1960)
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, page 418 (1-
10-1983); Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 386, dated 1-4-1987.
For the existing rule 94 and its marginal note, substitute the following:—
"94. Certificate to purchaser.—Where a sale of immovable property has become

absolute, the Court shall grant a certificate specifying the property sold, the amount of
the purchase money and the name of the person who at the time of sale is declared to
be the purchaser. Such certificate shall bear date the day on which the sale became
absolute." (1-10-1983)
Madhya Pradesh.—The following amendments were made by Madhya Pradesh Act,

dated 16-9-1960.
Add a comma after the word "sold" and insert the words "the amount of the purchase-
money" between the word "sold" and the word "and". (18-9-1960)
Patna.—Substitute the following for rule 94:—
"Where a sale of immovable property has become absolute the auction-purchaser shall
file the sale certificate stamp within fifteen days from the date of confirmation of the
sale, and the Court shall grant a certificate specifying the property sold and the name
of the person who at the time of sale is declared to be the purchaser. Such certificate
shall bear the date the day on which the sale becomes absolute. If the necessary
stamp for sale certificate is not filed within the prescribed period the sale may, if the
Court thinks fit, be set aside."
COMMENT.—
Where the boundaries of the property sold in execution alongwith name and member
have been mentioned in the certificate, the only conclusion possible from such a
certificate is that entire property falling within the boundaries was sold.313
Doctrine of caveat emptor applies.—
The purchaser at an auction sale takes the property subject to all the defects of title.
The doctrine of caveat emptor applies to such purchaser.314
Rights of auction-purchaser in property in possession of tenant.—
The direction to Receiver by Court to attach and sell property could not be interpreted
to mean that the auction-purchaser is entitled to vacant possession of property. A
tenant in lawful possession could not be evicted in pursuance of Court's interim order
to attach and sell property.315
Sale is not void if certificate was issued not in name of highest bidder.—
An auction sale was confirmed in the name of highest bidder. The sale certificate was,
however, issued in the name of a society. The sale does not become void thereby. The
Judgment-debtor cannot file suit for possession on basis of title. The holder of the sale
certificate (the society) cannot be held to be trespasser.316
Sale certificate to protect outsider-auction purchaser even if decree is set

aside.—
If an auction-purchaser is an outsider or stranger the issue of sale certificate would

protect him even if the decree is set aside but the decree-holder auction purchaser is
not entitled to protection.317
No sale certificate by Court, if sale is conducted by Receiver.—
After a sale by public auction becomes absolute, the Court under rule 94 shall grant a
certificate specifying the properties sold and the person declared as purchaser. In a
sale by a Receiver appointed by the Court a certificate to the purchaser under rule 94 is
not given by the Court.318
Rights to land below the premises do not pass on sale.—

Where in the schedule and in the application for sale, the description of the property
does not cover permanent tenancy rights for the judgment-debtor in the land
underneath and appurtenant to the structures, those rights do not pass on sale.319
313 P Udyani Devi v VV Rajeshwara Prasad Rao, AIR 1995 SC 1357 (1359) : (1995) 3 SCC 252 .
314 Ahmedabad Municipality v Haji Abdul, AIR 1971 SC 1201 : (1971) 1 SCC 757 .
315 Phani Bhusan Ghos v Asim K Mondal, AIR 1991 SC 796 (801).
316 Sagar Mahila Viddyalaya Sagar v Pt Sadashiv Rao Harsh, AIR 1991 SC 1825 (1831) : (1991) 3
SCC 588 .
317 Govindrao v Devisahai, AIR 1982 SC 989 (1005, 1007) : (1982) 1 SCC 237 .
318 Tarinikamal Pandit v Perfulla Kumar, AIR 1979 SC 1165 (1172) : (1979) 3 SCC 280 .
319 Mohini Mohan v State of WB, AIR 1978 SC 1073 (1075, 1076) : (1978) 2 SCC 581 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 95. Delivery of property in
occupancy of judgment-debtor
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 95.
Delivery of property in occupancy of judgment-debtor
Where the immovable property sold is in the occupancy of the judgment-debtor or of

some person on his behalf or of some person claiming under a title created by the
judgment-debtor subsequently to the attachment of such property and a certificate in
respect thereof has been granted under rule 94, the Court shall, on the application of
the purchaser, order delivery to be made by putting such purchaser or any person
whom he may appoint to receive delivery on his behalf in possession of the property,
and, if need be, by removing any person who refuses to vacate the same [M].
[Rule renumbered as sub-rule (1) and sub-rule (2) added in Madras.]
Madras.—Rule numbered as sub-rule (1) and sub-rule (2) added.
"(2) Where delivery of possession of a house is to be given and it is found to be locked,

orders of Court shall be taken for breaking open the lock and for delivery of possession
of the same to the purchaser.
If it is found at the time of delivery, that there are movables in the house to which the
purchaser has no claim and the judgment-debtor is absent or, if present, does not
immediately remove the same, the Officer entrusted with their warrant for delivery shall
make an inventory of the articles so found with their probable value in the presence of
respectable person on the spot, have the same attested by them and leave the
movables in the custody of the purchaser after taking a bond from him for keeping the
articles in safe custody pending orders of Court for disposal of the same.
The Officer shall then make a report to the Court and forward therewith the attested
inventory taken by him.
The Court shall thereupon issue a notice to the judgment-debtor requiring him to take
delivery of the said movables within thirty days from the date of the notice, and in
default they will be sold in public auction at his risk and the proceeds applied for
meeting all legitimate expenses of custody and sale and the balance, if any, will be
refunded to judgment-debtor:
Provided that, if movable articles referred to above are perishable, the Officer shall sell
them in public auction immediately and bring the proceeds into Court. The notice to the
judgment-debtor shall in such case call upon him to receive the amount from Court
within three months." (17-8-1966).
COMMENT.—
A symbolical or formal delivery as against the judgment-debtor has the effect of
dispossessing heir from his right, title and interest.320 An outsider auction-purchaser
who was not a party to the suit, resulting in the compromise decree in execution of
which the property was put for sale, would not be entitled to recover physical
possession from the appellant-tenants in view of this rule. The auction purchaser
would be, however, entitled to symbolic possession as per rule 96 of O XXI of Code of
Civil Procedure, in respect of portions in occupation of the appellant tenants.321
Period of Limitation.—
If an auction-purchaser fails to secure possession by making an application under this

rule within one year from the data when the sale becomes absolute then a separate
suit for possession will be barred. The limitation for an application under this rule is
one year as provided under Article 134 of the Limitation Act. It will apply to an
application under rule 95 by the auction-purchaser for delivery of possession of the
property sold in execution of a decree.322
In an application for the possession by the purchaser at the execution sale, the
limitation starts running from the date of confirmation of sale.323
320 BN Bhagde v MD Bhagwat, AIR 1975 SC 1767 (1777) : (1976) 1 SCC 700 : 1975 Supp
SCR250.
321 Dev Raj Dogra v Gyan Chand Jain, AIR 1981 SC 981 (990) : (1981) 2 SCC 675 : (1981) 3 SCR
174 : (1981) 29 BLJR 412 .
323 Bala Krishnan v Malaiyandi Konar, AIR 2006 SC 1458 (1461).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 96. Delivery of property in
occupancy of tenant
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 96.
Delivery of property in occupancy of tenant
Where the property sold is in the occupancy of a tenant or other person entitled to
occupy the same and a certificate in respect thereof has been granted under rule 94,
the Court shall, on the application of the purchaser, order delivery to be made by
affixing a copy of the certificate of sale in some conspicuous place on the property,
and proclaiming to the occupant by beat of drum or other customary mode, at some
convenient place, that the interest of the judgment-debtor has been transferred to the
purchaser.
[Rule 96A added in Allahabad.]
Allahabad (Notfn No. 2/VIId-29; 5-1-1960).—After rule 96 insert the following as rule
96A:—
"96A(1). The Court executing a decree may, of its own motion or on application and on
such terms as may appear to it just and reasonable in the circumstances of the case as
are acceptable to the transferee, order that any property of the judgment-debtor
attached by it, be transferred otherwise that by sale in favour of the decree-holder or
any other person not a party to the decree, for the purpose of satisfying the decree or
portion thereof.
(2) The provisions of rules 64 to 103 of this Order shall apply mutatis mutandis to a
transfer other than sale made under this rule except that the Court may in its discretion
dispense with the necessity of such transfer being made after issuing a proclamation
or of the transfer being conducted by an officer of the Court by public auction or after
issuing a proclamation." (5-1-1960)
COMMENT.—
An outsider auction-purchaser who was not a party to the suit, resulting in the
compromise decree in execution of which the property was put up for sale, would not
be entitled to recover physical possession from the appellant tenants in view of rule 95
of O XXI Code of Civil Procedure. He would, however, be entitled to symbolic
possession in terms of rule 96 of O XXI Code of Civil Procedure in respect of portion in
occupation of the appellant tenants.324
Order of symbolic joint possession is not nullity.—

An order for delivery of symbolic joint possession of undivided interest of corparcener,
though cannot be supported in law, is not a nullity. It has full effect, if not set aside and
is sufficient to interrupt adverse possession against purchaser.325
324 Dev Raj Dogra v Gyan Chand Jain, AIR 1981 SC 981 (990) : (1981) 2 SCC 675 : (1981) 3 SCR
174 : (1981) 7 AIR 412 .
325 Mani Kalaya v Narsimhaswami, AIR 1966 SC 470 (475) : (1966) 1 SCR 628 : (1966) 1 MLJ
(SC) 29.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 97. Resistance or
obstruction to possession of immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
Resistance to delivery of possession to decree-holder or purchaser
R. 97.
Resistance or obstruction to possession of immovable property
(1) Where the holder of a decree for the possession of immovable property or the
purchaser of any such property sold in execution of a decree is resisted or
obstructed by any person in obtaining possession of the property, he may
make an application to the Court complaining of such resistance or
obstruction.
326
[(2) Where any application is made under sub-rule (1), the Court shall proceed
to adjudicate upon the application in accordance with the provisions herein
contained.]
III-A, Page 69.
High Court Amendments deleted.
Patna.—Add the following as sub-rule (3):-
"(3) The provision of Section 5, Limitation Act, 1908 shall apply to applications under
this rule."
COMMENT.—
The existing rules 97 to 103 were substituted by the present rules. The general scheme
of these rules has been altered on the lines of the amendments made in the rules 58 to
63. The main feature is that question (including a question relating to right, title or
interest in the property) arising between the parties to a proceeding under rule 97 or
rule 99 is to be determined in execution proceeding itself and not left to be decided by
way of separate suit. Where, in an application under O XXI, rule 97 for ejectment, the
question of title is raised by the opposite party, the Court must decide that question
before allowing the application.327
Objection raised by stranger.—
In an execution petition for delivery of possession in execution of the decree for

specific performance of an agreement to sell, objections were raised by a person who
was not a party to the decree. In such a case, order of the executing Court dismissing
application on the ground that since objector was not dispossessed, his application
under O XXI, rule 97 was not maintainable and illegal. Adjudication was required to be
conducted under O XXI, rule 98 before such dismissal.328 The controversy is no longer
res integra. The Supreme Court has held that even an application filed under O XXI, rule
35(3) or one filed under section 47 would be treated as an application under O XXI, rule
97 and an adjudication is required to be conducted under rule 98. Dispossession of the
applicant from the property in execution is not a condition for declining to entertain the
application. The reasons are obvious. The specific provisions contained in O XXI rules
98, 101, 102 enjoin conduct of a regular adjudication, finding recorded thereon would
be a decree and bind the parties.329
Where an obstruction, by stranger, is made in the execution of decree for possession, it

cannot be said that he can get his claim adjudicated only after losing possession. The
stranger can get his claim adjudicated even prior to losing possession to decree holder.
He can equally agitate his grievance and claim for adjudication of his independent
right, title and interest in the decretal property even after losing possession as per rule
99. The words "any person" in rule 97 are comprehensive enough to include apart from
judgment-debtor or any one claiming through him even persons claiming independently
and who would, therefore, be total stranger to the decree.330
Applicants not being parties to suit are not bound by decree. They would be entitled to
take recourse to such remedies which are available to them in law including filing of an
application under O XXI, rules 97 and 99, if any occasion arises therefore.331
Where after initiation of execution proceedings, a suit in respect of the same subject
matter of property is filed by appellant who is not a party to decree, is not maintainable.
Appellant is entitled to raise all such lawful sub-tenancy or any of his right in execution
proceedings.332
Duties of executing Court.—
It is the duty of an executing Court to consider the averments in petition and consider
the applicability of the relevant rule. Where the executing Court dismissed the second
and third application filed by the decree-holder under this rule as barred by limitation
and by rule of res judicata respectively, such dismissal order was erroneous.333
When a decree holder complains of resistance of a decree it is incumbent on the

execution Court to adjudicate upon it. But while making adjudication, the Court is
obliged to determine only such question as may be arising between the parties to a
proceeding on such complaint and that such question may be relevant to the
adjudication of the complaint.334
Questions to be determined in view of evidence led by parties.—
Rule 97 to rule 106 of O XXI of the Code envisage questions to be determined on the
basis of evidence to be led by the parties. After the 1976 Amendment, the decision has
been made appealable like a decree. The High Court should not embark upon a
decision of the writ petition on merits and should refuse to exercise its special
jurisdiction on the ground of alternative remedy before the civil court.335
All the questions relating to right, title and interest in the property, which is the subject
matter of execution may have to be decided by the Court and for that the parties have
to be given opportunity to lead evidence both oral or and documentary.336
Where an application under O XXI rule 97 with the claim of title of the suit property in
fact and in effect is based on mere sham transaction and apparent collusion between
the appellant, tenant and sub-tenant to obstruct or scuttle the execution proceedings,
then such application is not maintainable.337
No separate suit maintainable.—
In execution proceedings there was obstruction and resistance without any just cause
by some person at the instigation of judgment-debtor; such person shall be detained in
prison for a term which may extend up to thirty days. The judgment-debtor that is the
tenant filed a separate suit for declaration that he was lawful tenant and for declaration
that decree passed in title suit was null and void. It was held that no separate suit is
maintainable.
Order XXI, rule 101 of the Code of Civil Procedure clearly provides that all questions
including questions relating to title, right and interest in the property arising between
the parties to a proceedings on an application under rule 99 or 97 of their
representatives and the same shall be determined by the executing court and not by a
separate suit.338
Meaning of expression "obstruct or resist".—
Activity of police officer is not rendering assistance though directed by Court executing
decree, is only an omission and does not amount to obstruction or resistance to
execution of decree.339
(w.e.f. 1-2-1977).
327 Santilata Paul v Nand Kishore Mukherjee, AIR 1981 Cal 219 .
328 Babulal v Raj Kumar, AIR 1996 SC 2050 : (1996) 3 SCC 154 .
329 Bhanwar Lal v Satyanarain, AIR 1995 SC 358 : (1995) 1 SCC 6 : (1995) 1 BLJR 57 .
330 Brahmdeo Chaudhary v Rishikesh Prasad Jaiswal, AIR 1997 SC 856 (861) : (1997) 3 SCC 694
: (1997) 1 Mah LJ 817 .
331 Niyamat Ali Molla v Sonargon Housing Co-op Society Ltd, AIR 2008 SC 225 .
332 Prasantha Banerji v Pushpa Ashoke Chandani, AIR 2000 SC 3567 (II) : (2002) 9 SCC 554 .
333 Supra note 80.
334 Silverline Forum Pvt Ltd v Rajeev Trust, AIR 1998 SC 1754 (1757) : (1998) 3 SCC 723 .
335 Ghan Shyam Das Gupta v AK Sinha, AIR 1991 SC 2251 (2253) : (1991) 4 SCC 379 .
336 IDPL Employees Coop HBS Ltd v Cyrus Investments Ltd, 2009 (6) ALT 43 (63) (DB).
337 Shobha Shinde v Shusheela Bai AIR 2015 MP 187 .
338 Shillong Muslim Union v Laila Rythathiang, AIR 2013 Meg 22 .
339 Utpal Kr Das v Court of Munsiff No 1, AIR 2008 Gau 62 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 98. Orders after
adjudication
© 2020 LexisNexis
THE FIRST SCHEDULE
340[R. 98.
Orders after adjudication
(1) Upon the determination of the questions referred to in rule 101, the Court shall,
in accordance with such determination and subject to the provisions of sub-
rule (2),—
(a) make an order allowing the application and directing that the applicant
be put into possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem
fit.
(2) Where, upon such determination, the Court is satisfied that the resistance or
obstruction was occasioned without any just cause by the judgment-debtor or
by some other person at his instigation or on his behalf or by any transferee,
where such transfer was made during the pendency of the suit or execution
proceeding, it shall direct that the applicant be put into possession of the
property, and where the applicant is still resisted or obstructed in obtaining
possession, the Court may also at the instance of the applicant, order the
judgment-debtor, or any person acting at his instigation or on his behalf , to be
detained in the civil prison for a term which may extend to thirty days.]
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4 Ka, Page 418 (1-
10-1983); Goa Gazette, dated 12-10-1987; Extra., S. 1, No. 28, Page 386, dated 1-4-1987.
For the existing sub-rule (2) substitute the following:—
(2) Where upon such determination, the Court is satisfied that the resistance or
obstruction was occasioned without any just cause by the judgment-debtor or by some
other person at his instigation or on his behalf, or by any transferee where such transfer
was made during the pendency of the suit or execution proceeding, it shall direct that
the applicant be put into possession of the property, and where the applicant is still
resisted or obstructed in obtaining possession, the Court may also, at the instance of
the applicant, order the judgment-debtor, or any person acting at his instigation or on
his behalf, to be detained in the Civil prison for a term which may extend to thirty days.
The Court may also order the person or persons whom it holds responsible for such
resistance or obstruction to pay jointly or severally in addition to costs, reasonable
compensation to the decree-holder or the purchaser, as the case may be for the delay
and expenses caused to him in obtaining possession. Any order made under this rule
shall have the same force and be subject to the same conditions as to appeal or
otherwise as if it were a decree. (1-10-1983) and (1-4-1987).
COMMENT.—
Rule 98 was amplified to cover cases of resistance etc. by a person acting under any
instigation by the judgment-debtor.
In an execution petition for delivery of possession in execution of the decree for

specific performance of an agreement to sell, objections were raised by a person who
was not a party to the decree. In such a case the executing Court is required to
determine the question under O XXI rule 98 Code of Civil Procedure.341
In execution of a decree for specific performance of an agreement to sell, the tenant in

possession of the property was dispossessed. It was held that the tenant could not be
dispossessed without any due process of law against him. It was also ordered that the
tenant should be put back in possession and that he is entitled to remain in possession
till disposal of his applications under O XXI, rules 98, 99 of Code of Civil Procedure.342
Propriety of passing decree.—
The purchaser pendente lite cannot question legality of decree and propriety of Court in
passing such a decree.343
340 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 72, for rules 98 to
103 (w.e.f. 1-2-1977).
341 Babulal v Raj Kumar, AIR 1996 SC 2050 : (1996) 3 SCC 154 .
342 Samir Sobhan Sanyal v Tracks Trade Pvt Ltd, AIR 1996 SC 2102 : (1996) 4 SCC 144 .
343 AV Raju v H Phoolchand, AIR 2011 Mad 83 (85–86).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 99. Dispossession by
decree-holder or purchaser
© 2020 LexisNexis
THE FIRST SCHEDULE
344[R. 99.
Dispossession by decree-holder or purchaser
(1) Where any person other than the judgment-debtor is dispossessed of

immovable property by the holder of a decree for the possession of such
property or, where such property has been sold in execution of a decree, by the
purchaser thereof, he may make an application to the Court complaining of
such dispossession.
(2) Where any such application is made, the Court shall proceed to adjudicate
upon the application in accordance with the provisions herein contained.]
III-A, Page 69.
The words in brackets "(other than the persons mentioned in rules 95 and 98 hereof)"
as earlier substituted for the words "(other than the judgment-debtor)" deleted.
COMMENT.—
Where sub-tenancy has been created without the consent of the landlord, notice of sub-
tenancy has not been given to the landlord and eviction decree is obtained by the
landlord, it is not open to the sub-tenant to challenge the execution of the decree on the
ground of fraud, collusion etc. Such questions cannot be adjudicated in execution
proceedings.345
The only remedy available to a stranger to the decree who claims any independent
right, title or interest in the decretal property is to go by this rule. It is unsustainable
view. Rule 97 deals with a stage which is prior to the actual execution of the decree for
possession wherein the grievance of the obstructionist can be adjudicated upon before
actual delivery of possession to decree-holder. While rule 99 on the other hand deals
with the subsequent stage in the execution proceedings where a stranger claiming any
right, title and interest in the decretal property might have got actually dispossessed
and claims restoration of possession on adjudication of his independent right, title and
interest dehors the interest of the judgment-debtor.346
Execution of eviction decree, clear finding on issue is imperative.—

In an execution of eviction decree the judgment-debtor alongwith another tenant was
dispossessed. The said tenant sought restoration of possession. He pleaded
independent right over shop premises. However, the High Court negatived his plea
without recording the finding that the tenant was rank trespasser and subtenant under
the judgment-debtor. A clear finding on the issue was imperative.347
Application for restoration of possession by the decree holder after the

disposal of the execution application.—
Application for restoration of possession by the decree holder after the disposal of the
execution case is maintainable. The property of the decree holder was wrongly
delivered to someone in the execution proceedings when the decree holder got
knowledge of the same, she moved an application. Such an application for recovery of
possession can be made under O XXI, rule 99 whereas the court has power to order
restoration of the property to the petitioner /applicant under rule 100.348
344 Subs. by Act 104 of 1976, section 72, for rules 98 to 103 (w.e.f. 1-2-1977).
345 Bishwanath Poddar v Archana Poddar, AIR 2001 SC 2849 (2853) : (2001) 8 SCC 187 .
346 Brahmdeo Chaudhary v Rishikesh Prasad Jaiswal, AIR 1997 SC 856 (861) : (1997) 3 SCC 694
: (1997) 1 Mah LJ 817 .
347 H Sheshadri v KR Natrajan, AIR 2003 SC 3524 (3526).
348 Bishnu Charan Mohanty v Rahas Bihari Das, AIR 2013 Ori 165 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 100. Order to be passed
upon application complaining of dis-possession
© 2020 LexisNexis
THE FIRST SCHEDULE
349[R. 100.
Order to be passed upon application complaining of dis-possession
Upon the determination of the questions referred to in rule 101, the Court shall, in
accordance with such determination,—
(a) make an order allowing the application and directing that the applicant be put
into the possession of the property or dismissing the application; or
(b) pass such other order as, in the circumstances of the case, it may deem fit.]
Bombay.—Add the following proviso:—
"Where it is determined that the application is made by person to whom the judgment-
debtor has transferred the property after the institution of the suit in which the decree
was passed, the Court shall dismiss the application under sub-rule (a) above (1-10-
1983) and (1-4-1987).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 101. Question to be
determined
© 2020 LexisNexis
THE FIRST SCHEDULE
338[R. 101.
Question to be determined
All questions (including questions relating to right, title or interest in the property)
arising between the parties to a proceeding on an application under rule 97 or rule 99
or their representatives, and relevant to the adjudication of the application, shall be
determined by the Court dealing with the application and not by a separate suit and
for this purpose, the Court shall, notwithstanding anything to the contrary contained
in any other law for the time being in force, be deemed to have jurisdiction to decide
such questions.]
Bombay.—Add the following proviso:—
"Provided that when the Court is not competent to decide such question due to want of
pecuniary jurisdiction the Court shall send the execution case to the Court of the
District Judge to which the said Court is subordinate and thereupon the Court of the
District Judge or any other competent Court to which it may be transferred by the
District Judge, shall deal with it in the same manner as if the case had been originally
instituted in that Court". (1-10-1983) and (1-4-1987)
COMMENT.—
A writ of delivery of possession is in fact an application under O XXI, rule 97. It cannot
be decided without hearing objector. Refusing hearing on ground that objector had
already filed civil suit or that he should file objection under O XXI, rule 99 is not
proper.350
Where sub-tenancy has been created without the consent of the landlord, notice of sub-
tenancy has not been given to the landlord, and eviction decree is obtained by the
landlord, it is not open to the sub-tenant to challenge the execution of the decree on the
ground of fraud, collusion etc. Such questions cannot be adjudicated in execution
proceedings.351
A third party to the decree who offers resistance would fall within the ambit of this rule
if an adjudication is warranted as a consequence of the resistance or obstruction made
by him to the execution of the decree. The question which executing Court is obliged to
determine under rule 101, has two adjuncts. First is, that such question should have
legally arisen between the parties and the second, is, such question must be relevant
for consideration and determination between the parties.352
An executing Court is justified to order the removal of unlawful or illegal construction
made pendente lite so that the decree for possession or eviction, as the case may be,
effectually and completely executed. Where the petitioner has constructed shops and
inducted tenants in possession without permission of the Court, during pendency of
the suit, the only course to decide the dispute would be in the execution proceedings
and not by a separate suit.353
338 Shillong Muslim Union v Laila Rythathiang, AIR 2013 Meg 22 .

350 Tanzeem-e-Sufia v Bibi Haliman, AIR 2002 SC 3083 : (2002) 7 SCC 50 .
351 Bishwanath Poddar v Archana Poddar, AIR 2001 SC 2849 : (2001) 8 SCC 187 .
352 Silverline Forum Pvt Ltd v Rajeeve Trust, AIR 1998 SC 1754 (1756, 1757) : (1998) 3 SCC 723
.
353 B Gangadhar v BG Rajalingam, AIR 1996 SC 780 : (1995) 5 SCC 238 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 102. Rules not applicable
to transferee pendent lite as decrees
© 2020 LexisNexis
THE FIRST SCHEDULE
354[R. 102.
Rules not applicable to transferee pendent lite as decrees
Nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a

decree for the possession of immovable property by a person to whom the judgment-
debtor has transferred the property after the institution of the suit in which the decree
was passed or to the dispossession of any such person.
Explanation.—In this rule, "transfer" includes a transfer by operation of law.]
Bombay.—Delete rule 102.
COMMENT.—
The provision under O XXI, rule 102 is based on justice, equity and good conscience. A
transferee from a judgment-debtor is presumed to be aware of the proceedings before
a Court of law. It recognises the doctrine of lis pendens recognised by section 52,
TPA.355
Where the obstructer got an agreement of lease and licence before the service of
interim injunction order, though he occupied the premises later, this rule would not
apply to an application for the removal of such obstructer.356
355 Usha Sinha v Dina Ram, (2008) 7 SCC 144 (149).
356 Bhailal Hukumchand Shah v Narandas Shamji, AIR 1989 SC 2193 (2197) : 1990 Supp SCC
570 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 103. Orders to be treated
© 2020 LexisNexis
THE FIRST SCHEDULE
357[R. 103.
Orders to be treated
Where any application has been adjudicated upon under rule 98 or rule 100, the order
made thereon shall have the same force and be subject to the same conditions as to
an appeal or otherwise as if it were a decree.]
COMMENT.—
The word "conclusive" appearing in this rule indicates that it creates a presumption in
favour of facts relating to rights to property as well as legality of the matter stated in
the order. Such an order passed under rule 98 is not subject to any further enquiry in
any other proceeding, except by bringing a fresh suit under rule 103. Thus, in view of
the conclusiveness attached to the order passed by the executing Court on an
application filed under rule 97, which is subject to result of a suit, if any, filed under rule
103, is not assailable in any other proceeding. In case no suit is filed under rule 103 the
order passed under rule 98 is final between the parties.358
358 Ghasi Ram v Chait Ram Saini, AIR 1998 SC 2476 (2479) : (1998) 6 SCC 200 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 104. Order under rule 101
or rule 103 to be subject to the result of pending suit
© 2020 LexisNexis
THE FIRST SCHEDULE
359[R. 104.
Order under rule 101 or rule 103 to be subject to the result of pending suit
Every order made under rule 101 or that may be pending on the date of
commencement rule 103 shall be subject to the result of any suit of the proceeding in
which such order is made, if in such suit the party against whom the order under rule
101 or rule 103 is made has sought to establish a right which he claims to the present
possession of the property.]
dated 25-5-1984.
High Court amendment deleted.
COMMENT.—
Provisions of O XXI, rule 104 would not apply where suit was filed long after the
commencement of the execution proceedings.
359 Ins. by Code of Civil Procedure (Amendment) Act, 1976 (104 of 1976), section 73 (w.e.f. 1-
2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 105. Hearing of application
© 2020 LexisNexis
THE FIRST SCHEDULE
348[R. 105.
Hearing of application
(1) The Court, before which an application under any of the foregoing rules of this
Order is pending, may fix a day for the hearing of the application.
(2) Where on the day fixed or on any other day to which the hearing may be
adjourned the applicant does not appear when the case is called on for
hearing, the Court may make an order that the application be dismissed.
(3) Where the applicant appears and the opposite party to whom the notice has
been issued by the Court does not appear, the Court may hear the application
ex parte and pass such order as it thinks fit.
Explanation.— An application referred to in sub-rule (1) includes a claim or

objection made under rule 58.]
Madras (Pondicherry).—The following amendments were made by Tamil Nadu

Government Gazette, dated 27-2-1972, Part V, Page 1523.
(1) In Order XXI, in rule 105, in sub-rule (3) insert the proviso as follows:—
"Provided that an application may be admitted after the said period of thirty days
if the applicant satisfies the Court that he had sufficient cause for not making
the application within such period."
(2) In Order XXI, delete sub-rule (4) of rule 105.
348 Bishnu Charan Mohanty v Rahas Bihari Das, AIR 2013 Ori 165 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 106. Setting aside orders
passed ex parte etc.
© 2020 LexisNexis
THE FIRST SCHEDULE
361[R. 106.
Setting aside orders passed ex parte etc.
(1) The applicant, against whom an order is made under sub-rule (2) of rule 105 or
the opposite party against whom an order is passed ex parte under sub-rule (3)
of that rule or under sub-rule (1) of rule 23, may apply to the Court to set aside
the order, and if he satisfies the Court that there was sufficient cause for his
non-appearance when the application was called on for hearing, the Court shall
set aside the order on such terms as to costs or otherwise as it thinks fit, and
shall appoint a day for the further hearing of the application.
(2) No order shall be made on an application under sub-rule (1) unless-notice of

the application has been served on the other party.
(3) An application under sub-rule (1) shall be made within thirty days from the
date of the order, or where, in the case of an ex parte order, the notice was not
duly served, within thirty days from the date when the applicant had knowledge
of the order.]
Allahabad.—The following rules 106A to 140 shall be added to Order XXI:—
362R. 106A. When the certificate prescribed by Section 41 is received by the Court
which sent the decree for execution, it shall cause the necessary details as to the result
of execution to be entitled in its register of civil suits before the papers are transmitted
to the record-room.
363R. 106B. Every attachment of movable property under rule 43, of negotiable
instrument under rule 51 and of immovable property under rule 54, shall be made
through a Civil Court Amin, or bailiff, unless special reasons render it necessary that
any other agency should be employed, in which case those reasons shall be stated in
the handwriting of the presiding Judge himself in the order of attachment.
364R. 106C. When the property which it is sought to bring to sale is immovable property
within the definition of the same contained in the law for the time being in force relating
to the registration of documents, the decree-holder shall file with his application for an
order for sale a certificate from the Sub-Registrar within those sub-district such
property is situated, showing that the Sub-Registrar has searched his book Nos. I and II
and their indices for the twelve years preceding the mortgage or attachment, as the
case may be, and stating the encumbrances, if any, which he has found on the property.
R. 107. When an application is made for the sale of land or of any interest in land, the
Court shall, before ordering sale thereof, call upon the parties to state whether such
land is or is not ancestral land within the meaning of Notification No. 1887-1-238-10,
dated 7th October 1911, of the Local Government, and shall fix a date for determining
the said question.
On the day so fixed, or on any date to which the enquiry may have been adjourned the
Court may take such evidence, by affidavit or otherwise, as it may deem necessary; and
may also call for a report from the Collector of the district as to whether such land or
any portion thereof is ancestral land.
After considering the evidence and the report, if any, the Court shall determine whether
such land, or any, and what part of it, is ancestral land.
The result of the enquiry shall be noted in an order made for the purpose by the
presiding Judge in his own handwriting.
R. 108. When the property which it is sought to bring to sale is revenue-paying or

revenue-free land or any interest in such land, and the decree is not sent to the
Collector for execution under Section 68, the Court, before ordering sale, shall also call
upon the Collector in whose district such property is situate to report whether the
property is subject to any (and, if so, to what) outstanding claims on the part of
Government.
R. 109. The certificate of the Sub-Registrar and the report of Collector shall be open to
the inspection of the parties or their pleaders, free of charge, between the time of the
receipt by the Court and the declaration of the result of the enquiry.
No fees are payable in respect of the report by Collector.
R. 110. The result of the enquiry under rule 66 shall be noted in an order made for the
purpose by the presiding Judge in his own handwriting. The Court may in its discretion
adjourn the enquiry, provided that the reasons for the adjournment are stated in writing
and that no more adjournments are made than are necessary for the purposes of the
inquiry.
R. 111. If after proclamation of the intended sale has been made, any matter is brought
to the notice of the Court which it considers material for purchasers to know, the Court
shall cause the same to be noticed to intending purchasers when the property is put up
for sale.
R. 112. The costs of the proceedings under rules 66, 106 and 108 shall be paid in the
first instance by the decree-holder; but they shall be charged as part of the costs of the
execution, unless the Court, for reasons to be specified in writing, shall consider that
they shall either wholly or in part be omitted therefrom.
R. 113. Whenever any Civil Court has sold, in execution of a decree or other order, any
house or other building situated within the limits of a military cantonment or station, it
shall, as soon as the sale has been confirmed, forward to the Commanding Officer of
such cantonment or station for his information and for record in the Brigade or other
proper office, a written notice that such sale has taken place; and such notice shall
contain full particulars of the property sold and the name and address of the purchaser.
R. 114. Whenever Guns or other arms in respect of which licences have to be taken by
purchaser under the Indian Arms Act, 1959365 are sold by public auction in execution
of decrees by order of a Civil Court, the Court directing the sale shall give due notice to
the Magistrate of the district of the names and addresses of the purchasers and of the
time and place of the intended delivery to the purchasers of such arms, so that proper
steps may be taken by the police to enforce the requirements of the Indian Arms Act.
R. 115. When an application is made for the attachment of livestock or other movable
property, the decree-holder shall pay into Court in cash such sum as will cover the
costs of the maintenance and custody of the property for fifteen days. If within three
clear days before the expiry of any such period of fifteen days the amount of such
costs for such further period as the Court may direct be not paid into Court, the Court
on receiving a report thereof from the proper officer, may issue an order for the
withdrawal of the attachment and direct by whom the costs of the attachment are to be
paid.
R. 116. Livestock which has been attached in execution of a decree shall ordinarily be
left at the place where the attachment is made either in custody of the judgment-debtor
on his furnishing security, or in that of some landholder or other respectable person
willing to undertake the responsibility of its custody and to produce it when required by
the Court.
R. 117. If the custody of livestock cannot be provided for in the manner described in
the last preceding rule, the animals attached shall be removed to the nearest pound
established under the Cattle Trespass Act, 1871, and committed to the custody of the
pound keeper, who shall enter in a register—
(a) the number and description of the animals;
(b) the day and hour on and at which they were committed to his custody;
(c) the name of the attaching officer or his subordinate by whom they were
committed to his custody; and shall give such attaching officer or subordinate a
copy of the entry.
R. 118. For every animal committed to the custody of the pound-keeper as aforesaid a
charge shall be levied as rent for the use of the pound for each fifteen or part of fifteen
days during which such custody continues, according to the scale prescribed under
Section 12 of Act No. 1 of 1871.
And the sums so levied shall be sent to the Municipal or District Board, or the Notified
Area, as the case may be, under whose jurisdiction the pound is dated 21-11-1942.
R. 119. The pound-keeper shall take charge of, feed and water animals attached and
committed as aforesaid until they are withdrawn from his custody as hereinafter
provided and he shall be entitled to be paid for their maintenance at such rates as may
be, from time to time, prescribed under proper authority. Such rates shall, for animals
specified in the section mentioned in the last preceding rule, not exceed the rates for
the time being fixed under Section 5 of the same Act. In any case, for special reasons
to be recorded in writing, the Court may require payment to be made for maintenance
at higher rates than those prescribed.
R. 120. The charges herein authorised for the maintenance of livestock shall be paid to
the poundkeeper by the attaching officer for the first fifteen days at the time the
animals are committed to his custody, and thereafter for such further period as the
Court may direct, at the commencement of such period. Payments for such
maintenance so made in excess of the sum due for the number of days during which
the animals may be in the custody of the pound-keeper shall be refunded by him to the
attaching officer.
R. 121. Animals attached and committed as aforesaid shall not be released from
custody by the poundkeeper except on the written order of the Court or of the attaching
officer, or of the officer appointed to conduct the sale, the person receiving the animals,
on their being so released, shall sign a receipt for them in the register mentioned in rule
118.
[Note.—The reference to rule 118 seems to be a misake for rule 117.]
R. 122. For the safe custody of movable property other than livestock while under
attachment the attaching officer shall, subject to approval by the Court, make such
arrangement as may be most convenient and economical.
R. 123. With the permission of the Court the attaching officer may place one or more
persons in special charge of such property.
R. 124. The fee for the services of each such person shall be payable in the manner
prescribed in rule 116. It shall not be less than four annas and shall ordinarily not be
more than six annas per diem. The Court may at its discretion allow a higher fee but if it
do so, it shall state in writing its reasons for allowing an exceptional rate.
R. 125. When the services of such person are no longer required, the attaching officer
shall give him a certificate on a counterfoil form of the number of days he has served
and of the amount due to him; and on the presentation of such certificate to the Court
which ordered the attachment, the amount shall be paid to him in the presence of the
presiding Judge:
Provided that where the amount does not exceed Rs. 5 it may be paid to the sahana by
money order on requisition by the Amin, and the presentation of the certificate may be
dispensed with.
R. 126. When in consequence of an order of attachment being withdrawn or for some

other reason, the person has not been employed or has remained in charge of the
property for a shorter time than that for which payment has been made in respect of
his services, the fee paid shall be refunded in whole or in part, as the case may be.
R. 127. Fees paid into Court under the foregoing rules shall be entered in the Register
of Petty Receipts and Repayments.
R. 128. When any sum levied under rule 19 is remitted to the treasury, it shall be
accompanied by an order in triplicate (in the form given as Form 9 of the Municipal
Account Code), of which one part will be forwarded by the Treasury Officials to the
District or Municipal Board, as the case may be. A note that the same has been paid
into the treasury as rent, for the use of the pound, will be recorded on the extract from
the pass-book.
R. 129. The cost of preparing attached property for sale, or of conveying it to the place
where it is to be kept or sold shall be payable by the decree-holder to the attaching
officer. In the event of the decree-holder failing to provide the necessary funds, the
attaching officer shall report his default to the Court, and the Court may thereupon
issue an order for the withdrawal of the attachment and direct by whom the costs of
the attachment are to be paid.
R. 130. Nothing in these rules shall be deemed to prevent the Court from issuing and
serving on the judgment-debtor simultaneously the notices required by Order XXI, rules
22, 66 and 107.
GARNISHEE ORDERS
R. 131. The Court may, in the case of any debt due to the judgment-debtor (other than a
debt secured by a mortgage or a charge or a negotiable instrument, or a debt
recoverable only in a Revenue Court), or any movable property not in the possession of
the judgment-debtor, which has been attached under rule 46 of this Order issue a notice
to any person (hereinafter called the garnishee) liable to pay such debt or to deliver or
account for such movable property, calling upon him to appear before the Court and
show cause why he should not pay or deliver into Court the debt due from or the
property deliverable by him to such judgment-debtor, or so much thereof as may be
sufficient to satisfy the decree and the cost of examination (As amended on 29-3-
1949).
The following form shall be used under the provisions of rule 131 of Order XXI:
Suit No .................................. of 19/20 .......... .
.......................................................................... Plaintiff
Versus
........................................................................... Defendant
To
Whereas it is alleged that a debt of Rs. ...............is due from you to the judgment-
debtor:
Or that you are liable to deliver to the above-named judgment-debtor, the property set
forth in the Schedule hereto attached; take notice that you are hereby required on or
before the day of 19 to pay into this Court the said sum of Rs. ...............
Or to deliver, or account to the Amin of this Court for the movable property detailed in
the attached Schedule or otherwise to appear in person or by advocate, vakil or
authorised agent in this Court at 10.30 in the forenoon of the day aforesaid and show
cause to the contrary, in default whereof an order for the payment of the said sum, or
for the delivery of the said property may be passed against you.
Dated this ................. day of... ............. 19/20 ... .
Munsiff/Subordinate Judge,
at. ................... .
R. 132. If the garnishee does not forthwith or within such time as the Court may allow,
pay or deliver into Court the amount due from or the property deliverable by him to the
judgment-debtor, or so much as may be sufficient to satisfy the decree and the cost of
execution, and does not dispute his liability to pay such debt or deliver such movable
property, or if he does not appear in answer to the notice then the Court may order the
garnishee to comply with the terms of such notice and on such order execution may
issue as though such order were a decree against him.
R. 133. If the garnishee disputes his liability the Court, instead of making such order,
may order that any issue or question necessary for determining his liability be tried as
though it were an issue in a suit; and upon the determination of such issue shall pass
such order as shall be just [As amended on 29-3-1949.]
R. 134. Whenever in any proceedings under these rules it is alleged, or appears to the
Court to be probable that the debt or property attached belongs to some third person,
or that any third person has a lien or charge upon, or an interest in it, the Court may
order such third person to appear and state the nature of his claim, if any, upon such
debt or property and prove the same, if necessary [As amended on 29-3-1949].
R. 135. After hearing such third person, and any other person who may subsequently
be ordered to appear, or in the case of such third or other person not appearing when
ordered, the Court may pass such order as is hereinbefore provided or make such other
order as it shall think fit, upon such terms in all cases with respect to the lien, charge or
interest, if any, of such third or other person as to such Court shall seem just and
reasonable.
R. 136. Payment or delivery made by the garnishee whether in execution of an order

under these rules or otherwise shall be a valid discharge to him as against the
judgment-debtor or any other person ordered to appear as aforesaid, for the amount
paid, delivered or realised although such order of the judgment may be set aside or
reversed.
R. 137. Debts owing from a firm carrying on business within the jurisdiction of the
Court may be attached under these rules, although one or more members of such firm
may be resident out of the jurisdiction: Provided that any person having the control or
management of the partnership business or any member of the firm within the
jurisdiction is served with the garnishee order. An appearance by any member pursuant
to an order shall be a sufficient appearance by the firm.
R. 138. The costs of any application under these rules and of the proceedings arising
therefrom or incidental thereto, or any order made thereon, shall be in the discretion of
the Court.
R. 139. (1) Where the liability of any garnishee has been tried and determined under
these rules the order shall have the same force and be subject to the same conditions
as to appeal or otherwise as if it were a decree.
(2) Orders not covered by clause (1) shall be appealable as orders made in execution.
Illustration.—An application for a garnishee order is dismissed either on the ground that
the debt is secured by a charge or that there is no prima facie evidence of debt due.
This order is appealable as an order in execution.
R. 140. All the rules in this Court relating to service upon either plaintiffs or defendants
at the address filed or subsequently altered under Order VII or Order VIII shall apply to
all proceedings taken under Order XXI or Section 47.
The following form shall be used under the provisions of rule 131 of Order XXI:
Suit No .................................. 19 ........... .
Versus
Plaintiff, Defendant
To
Whereas it is alleged that a debt of Rs ................ is due from you to the judgment-
debtor:
Or that you are liable to deliver to the abovenamed judgment-debtor the property set
forth in the schedule hereto attached:
Take notice that you are hereby required on or before the........... day of.. ................. . 19
............ to pay into this Court the said sum of Rs ..................... or ............... to deliver
account to the Amin of this Court for the movable property detailed in the attached
schedule or otherwise to appear in person or by advocate, vakil or authorised agent in
this Court at 10.30 in the forenoon of the day aforesaid and show cause to the contrary
in default whereon an order for the payment of the said sum, or for the delivery of the
said property may be passed against you.
Dated this ................. day of... ............. 19 ... .

Munsif/Sub-Judge ...................... .
at. ................... .
[See U.P. Act 57 of 1976, Section 10 for renumbering of rules 104, 105 and 106 as
inserted by High Court Amendment as rules 106 A, 106B and 106C respectively (1-1-
1977)].
Andhra Pradesh—
(a) [Notfn No P Dis 229/56 of 2-4-1959). Insert rule 106 which is same as Madras rule
106 with the addition of the following words at the end:—
"For this purpose, the Court may make any order including orders for the refund of
costs and for the payment of interest, damages, compensation and mesne profits,
which are properly consequential on such variation or reversal."
Calcutta (Notfn. No. 25585-G., of 3-11-1933).—Insert the following as Or, XXI-A:—
ORDER XXI-A
"1. Every person applying to a Civil Court to attach movable property shall, in addition to
the process-fee, deposit such reasonable sum as the Court may direct if it thinks
necessary, for the cost of its removal to the court-house, for its custody, and, if such
property is live-stock, for its maintenance according to the rates prescribed in rule 2 of
this Order. If the deposit when ordered, be not made, the attachment shall not issue.
The Court may, from time to time, order the deposit of such further fees as may be
necessary. In default of due payment the property shall be released from attachment.
[See rule 150 Civil rules and Orders, (1959) Calcutta and Order XXI-A, rule 16].
2.The following daily rates shall be chargeable for the custody and maintenance of live-
stock under attachment:—
Goat and pig—Annas 2 to annas 4.
Sheep—Annas 2 to annas 3.
Cow and bullock—Annas 6 to annas 10.
Calf—Annas 3 to annas 6. Buffalo—Annas 8 to annas 12. Horse—Annas 8 to annas 12.

Ass—Annas 3 to annas 5. Poultry—Annas 2 to annas 3 pies 6.
Explanation.—Although the rates indicated above are regarded as reasonable, the

Courts shall consider individual circumstances and the local conditions and permit
deposit at reduced rates where the actual expenses are likely to fall short of the
minima or maxima. If any specimen of special value in any of the above classes is
seized a special rate may be fixed by the Court. If any animal not specified is attached,
the Court may fix the cost as a special case.
3. When the property attached consists of agricultural implements or other articles

which cannot conveniently be removed and the attaching officer does not act under the
proviso to rule 43, Order XXI, he may, unless the Court has otherwise directed, leave it in
the village or place where it has been attached—
366(a) in the charge of the decree-holder or his agent, or of the judgment-debtor, or of
some other person, provided that the decree-holder or his agent or the judgment-debtor
or other person, enters into bond in Form No. 15-A of Appendix E to this Schedule, with
one or more sureties, to produce the attached property when called for and to be liable
for any loss which the owner of the property attached may suffer due to wilful
negligence of the bounden, or (as amended on 25-09-1941)
provided and the remuneration of the officer for a period of fifteen days paid in
advance.
[See rules 170-73, 175-78 Civil Rules and Orders and R v Ahmmad, 33 CWN 174 ante
Liabili of custodian under the bond [see Gurmukh v Lawson, A 1939 C 316 ante]. Form
of bonds (No 15-A App E)].
4. If attached property (other than live-stock) is not sold, under the proviso to rule 43,
Order XXI, or retained in the village or place where it is attached, it shall be brought to
the court-house at the decree-holder's expense and delivered to the proper officer of
the Court. In the event of the decree-holder failing to make his own arrangement for the
removal of the property with safety, or paying the cost thereof in advance to the
attaching officer, then, unless such payment has previously been made into Court, the
attachment shall at once be deemed to be withdrawn and the property shall be made
over to the person in whose possession it was before attachment.
[See rule 582(4) C R & O].
5. When live-stock is attached it shall not, without the special order of the Court, be
brought to the Court or its compound or vicinity, but shall be left at the village or place
where it was attached in the manner and on the conditions set forth in rule 3 of this
Order:
Provided that live-stock shall not be left in the charge of any person under clause (a) of
the said rule unless he enters into a bond for the proper care and maintenance thereof
as well as for its production when called for and that it shall not be left in charge of an
officer of the Court under clause (b) of the said rule unless in addition to the
requirements of the said clause provision be made for its care and maintenance.
[See rule 170-73, 175-78 C R & O. As to procedure after special order see, Order XXI-A
rules 8, 13. Form of bond (No 15-A App E)].
6. When for any reason the attaching officer shall find it impossible to obtain
compliance with the requirements of the preceding rule so as to entitle him to leave the
attached live-stock in the village or place where it was attached and no order has been
made by the Court for its removal to the Court, the attaching officer shall not proceed
with the attachment and no attachment shall be deemed to have been effected.
7. Whenever it shall appear to the Court that live-stock under attachment are not being
properly tended or maintained the Court shall make such orders as are necessary for
their care and maintenance and may if necessary direct the attachment to cease, and
the livestock to be returned to the person in whose possession they were when
attached. The Court may order the decree-holder to pay any expenses so incurred in
providing for the care and maintenance of the livestock, and may direct that any sum
so paid be refunded to the decree-holder by any other party to the proceedings.
[See rule 179 and rule 582(4) C R & O].
8. If under a special order of the Court live-stock is to be conveyed to the Court, the
decree-holder shall make his own arrangement for such removal, and if he fails to do
so the attachment shall be withdrawn and the property made over to the person in
whose possession it was before attachment.
[See rule 582(4) C R & O].

9. Nothing in these rules shall prevent the judgment-debtor or any person claiming to
be interested in attached livestock from making such arrangements for feeding,
watering and tending the same as may not be inconsistent with its safe custody, or
contrary to any order of the Court.
10. The Court may direct that any sums which have been legitimately expended by the
attaching officer or are payable to him, if not duly deposited or paid, be recovered from
the sale-proceeds of the attached property, if sold, or be paid by the person declared
entitled to delivery before he receives the same. The Court may also order that any
sums deposited or paid under these rules be recovered as costs of the attachment
from any party to the proceedings.
11. In the event of custodian of attached property failing, after due notice, to produce
such property at the place named to the officer deputed for the purpose, or to restore it
to its owner if so ordered or failing in the case of live-stock to maintain and take proper
care thereof, he shall be liable to be proceeded against for the enforcement of his bond
in the execution proceedings.
12. When property other than live-stock is brought to the Court, it shall immediately be
made over to the Nazir, who shall keep it on his sole responsibility in such place as may
be approved by the Court. If the property cannot from its nature or bulk be conveniently
stored, or kept on the Court premises or in the personal custody of the Nazir, he may,
subject to the approval of the Court, make such arrangements for its safe custody
under his own supervision as may be most convenient and economical. If any premises
are to be hired and persons are to be engaged for watching the property, the Court shall
fix the charges for the premises and the remuneration to be allowed to the persons (not
being officers of the Court) in whose custody the property is kept. All such costs shall
be paid into Court by the decree-holder in advance for such period as the Court may
from time to time direct.
[Payment "in advance" (Order XXI-A, rule 16)].
13. When attached live-stock is brought to Court under special order as aforesaid it
shall be immediately made over to the Nazir, who shall be responsible for its due
preservation and safe custody until he delivers it up under the orders of the Court.
["Special order" (Order XXI-A, rule 5)].
14. If there be a pound maintained by Government or local authority in or near the place
where the Court is held, the Nazir shall, subject to the approval of the Court, be at
liberty to place in it such live-stock as can be properly kept there, in which case the
pound-keeper will be responsible for the property to the Nazir and shall receive from
the Nazir the same rates for accommodation and maintenance thereof as are paid in
respect of impounded cattle of the same description.
15. If there be no pound available, or, if in the opinion of the Court, it be inconvenient to
lodge the attached live-stock in the pound, the Nazir may keep them in his own
premises, or he may entrust them to any person selected by himself and approved by
the Court.
16. All costs for the keeping and maintenance of the livestock shall be paid into Court
by the decree-holder in advance for not less than fifteen days at a time as often as the
Court may from time to time direct. In the event of failure to pay the costs within the
time fixed by the Court, the attachment shall be withdrawn and the live-stock shall be at
the disposal of the person in whose possession it was at the time of attachment.
[See Order XXI-A, rule 1 and rule 150 C R & C. See also rule 582(4) ibid].
17. So much of any sum deposited or paid into Court under these rules as may not be
expended shall be refunded to the depositor".
Gauhati.—Insert Order XXI-A as in Calcutta.
Madras (P Dis No. 397 of 4-9-1945).—Add the following rule:—
106. Where and in so far as a decree or order is varied or reversed and the case does
not fall within the scope of Section 47 or Section 144, the Court of first instance shall,
on the application of any party affected by the decree or order, cause such restitution to
be made as will, so far as may be, place the parties in the position which they would
have occupied but for such decree or order on such part thereof as has been varied or
reversed" [19-5-1954].
COMMENT.—
Rules 104 to 106 were inserted in O XXI by the Amendment Act, 1976. Rule 104 was
inserted to save the results of any suit which may be pending on the date of
commencement of the proceeding under rule 101 or rule 103. This newly added rule
provides that every order under rule 101 or rule 103 shall be subject to the result of any
suit that may be pending on the date of commencement of the proceeding in which
such order is made, if in such suit the party against whom the order is made has
sought to establish a right which he claims to the present possession of the property.
Rules 105 and 106 were added because the Courts had found it difficult to decide the
circumstances in which an application for execution could be dismissed for
nonappearance or if a Court had dismissed an application for non-appearance, it could
restore such an application. This could not be done as O IX, rule 9 did not apply to
execution proceedings. Now by the addition of these two rules, it has become possible.
Limitation, starting point.—In restoration of execution application the starting point of

limitation would be date of order dismissing execution application and not knowledge
thereabout.367

362 See U.P. Gaz., 19-9-1970, Pt. II, section 213.
365 See U.P. Gaz., dated 19-9-1970, Pt. II, section 213.
366 Rule 3(a) was substituted by Notification No. 4440-G of 29-5-1941.
367 Damodaram Pillai v South Indian Bank Ltd, AIR 2005 SC 3460 (3462).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. No abatement by party’s
death, if right to sue survives
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXII Death, Marriage and Insolvency of Parties
R. 1.
No abatement by party's death, if right to sue survives
The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue
survives.
Allahabad.— At the end of the rule 1 add the following:—
"or to proceedings in the original Court taken after the passing of the preliminary
decree where a final decree also requires to be passed having regard to the nature of
the suit."
COMMENT.—
This rule provides that if the plaintiff or defendant dies during the pendency of the suit,
such death will not cause the suit to abate provided the right to sue survives. Where
one of the defendants contests the correctness of the decree, it must be examined,
whether the finding recorded and the decree passed by the trial Court, as affirmed by
the appellate Court, is correct in law.1
The rules of procedure under O XXII of the Code of Civil Procedure are designed to
advance justice and should be so interpreted as not to make them penal statutes for
punishing erring parties. On sufficient cause, delay in bringing the legal representatives
of the deceased party on record should be condoned. Procedure is meant only to
facilitate the administration of justice and not to defeat the same.2
Survival of right to sue.—
In a case the parties were substituted as plaintiffs on the death of the original plaintiff.
They were claiming under the original plaintiff and had not amended the basis of the
suit or the relief asked for. It could not be said that they could not continue the suit
merely because they were claiming to be legal representatives under a settlement and
a will respectively and they were not notional heirs.3
Where the allottee of a plot is represented by his widow and daughter, both these
persons are already on record representing the estate, the appeal will not abate on the
death of widow. There is also no need to bring legal representatives on record.4
As to the question when a right to sue survives, reference may be made to the
provisions of section 306 of Indian Succession Act, 1925.
With regard to the exception enacted in above-quoted section, they are based to some
extent on the well-known maxim, actio personalis moritur cum persona, that is, a
personal right of action dies with person. And in reference to applicability of this maxim
the Supreme Court has held that it has only a limited application that is limited to
actions ex delicto such as action for defamation, assault, as defined in the Indian Penal
Code or other personal injuries not causing the death of the party.5
Substitution of Legal Representation.—
The provision of O XXII, rule 1 are meant only for the purpose of proceeding with suit.
The substitution of person, as legal representative cannot be said to be final decision
on the issue of heirship or succession.6
Substitution of legal representatives for pre-emption.—
As to question whether a right to sue for pre-emption survived after the death of the
pre-emptor, the Supreme Court answered the question in affirmative stating that the
right to pre-empt is a statutory right and not personal. The pre-emptors acquire title
from the date of deposit and hence substitution of legal representatives pending
appeal is proper.7
In view of section 306 of Succession Act the right of per-emption under section 15(1)
(a) of Punjab Pre-emption Act, 1913 does not abate with the death of pre-emptor.8
Where a suit for possession of a Math property was instituted by Mahant on behalf of
Math, pending decision of appeal the Mahant died and succeeded by another Mahant,
the suit did not abate. A Math is a juristic entity with legal personality. The real party is
the idol which, however, can assert its rights only through the Mahant who acts in a
representative capacity.9
Where a notification is issued bringing the land involved in a dispute in the civil
proceedings under a scheme of consolidation, the proceedings pending in civil Court
either in trial Court, appeal or revision, shall abate.10
Right to sue in personal actions.—
"Right to sue" will not survive to or against his representative in cases of personal
action,11 and a claim for rendition of account is not a personal claim.12
Right to sue in respect of Torts.—
In case of tort the maxim actio personalis moritur cum persona, is generally applicable
and therefore, on the death of either party the right to sue will come to an end. A suit
for partition brought on behalf of a minor coparcener in a joint Mitakshara family did
not abate on death of the minor. It could be continued by his legal representatives.13
Claim for compensation.—

Where an injured person died during the pendency of his application for compensation,
the claim pending does not abate on the death of claimant.14
1 Bhola Nath Misra v Rajendra Pandey, AIR 1997 SC 1281 : (1997) 9 SCC 276 .
2 Banwarilal v Balbir Singh, (2016) 1 SCC 607 .
3 Ambalika Padhi v Radhakrishna Padhi, AIR 1992 SC 431 (434) : (1992) 1 SCC 667 : (1992) 2
MLJ (SC) 24.
4 Biharilal v Bhuri Devi, AIR 1997 SC 1879 (1881) : (1997) 2 SCC 279 .
5 Girijanandini v Bijendra Narain, AIR 1967 SC 1124 : (1967) 1 SCR 93 : 1967 ALJ 478 : 46 Pat
193 : 1967 BLJR 513 .
6 Pritam Singh v Arjun Singh, 2011 AIR CC 1204 (1206) (Jhar) : AIR 2011 Jhar 60 (61).
7 Hazari v Neki, AIR 1968 SC 1205 (1207) : (1968) 2 SCR 833 : 70 Punj LR 823.
8 Hazari v Neki, AIR 1968 SC 1205 (1207) : (1968) 2 SCR 833 : 70 Punj LR 823.
9 Krishna Singh v Mathura Ahir, AIR 1980 SC 707 (726).
10 Rahmani Khatoon v Harkoo Gope, AIR 1981 SC 1450 : (1981) 3 SCC 173 .
11 Syendna Taher v State of Bombay, AIR 1958 SC 253 : 1958 SCR 1010 : (1958) 1 MLJ (SC)
127.
12 Girijanandini v Bijendra Narain, AIR 1967 SC 1124 : (1967) 1 SCR 93 .
13 Kakumanu v Kakumannu, AIR 1958 SC 1042 (1049) : 1959 SCR 1249 : (1959) 1 MLJ (SC) 60.
14 Narayanaswamy v Div Controller, KSRT Corpn, 2008 (2) Kar LJ 752 (753) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Procedure where one of
several plaintiffs or defendants dies and right to sue survives
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Procedure where one of several plaintiffs or defendants dies and right to sue
survives
Where there are more plaintiffs or defendants than one, and any of them dies, and
where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against
the surviving defendant or defendants alone, the Court shall cause an entry to that
effect to be made on the record, and the suit shall proceed at the instance of the
surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
Gazette, dated 25-3-1975; Part III (L.S.), Page 190.
After the existing rule 2 of Order XXII, insert the following, namely:—
"2A. Every Advocate appearing in a case who becomes aware of the death of a party to
the litigation (whether he appeared for him or not) must give intimation about the death
of that party to the Court and to the person who is dominus litis.
2B. The duty to bring on record the legal representatives of the deceased-defendant
shall be of the heirs of the deceased and not of the person who is dominus litis." (Vide
Noti. No. GSR 39/C.A. 5/1908/S. 12257, w.e.f. 11-4-1975).
COMMENT.—
Where a suit or appeal is based on common ground to all plaintiffs or appellants and
the death of one occurs but his legal representative is not brought on record, the
Supreme Court has held that the remaining plaintiffs or appellants, as the case may be,
cannot be regarded to be legal representatives of the deceased simply because of the
fact that suit was based on a ground common to all of them. It was further held that
the suit abates against the dead one and no decree can be passed against the
remaining plaintiffs inasmuch as the suit was based on grounds common to all of
them.15
But there would be a different position, if two persons having separate causes of action
join together as plaintiffs in one suit by the reason of the fact that their right to relief
arose out of same transaction, in such a case, the death of one of them will not cause
an abatement so far as, the other plaintiff is concerned. When an order is passed by
one judgment in favour of the persons who had filed a joint petition (under Payment of
Wages Act) and appeal is filed by other party making the petitioners as party, and that
one of them dies, no legal representative is brought on record, it was held by the
Supreme Court that the appeal did not abate as regards others.16 Where, however, the
death of a pro forma or unnecessary party occurs during the pendency of the suit, there
is no need to substitute his legal representative.17
Applicability.—
When a suit has been filed in a representative capacity and the death of one of the
plaintiffs, during the pendency of suit occurs, the Supreme Court has held in Charan
Singh, v Darshan Singh, AIR 1975 SC 371 that the appeal does not abate. In an eviction
suit against the tenant firm, partners were joined as mere proper parties. In appeal
failure to bring legal representatives of deceased partners on record does not abate the
appeal.18
A suit was filed against several defendants. One of the defendants died. No relief was
claimed against him. No reason was given in plaint for impleading him as defendant.
His legal representatives were also not brought on record. An appeal did not abate.19
In an eviction suit, the property was subsequently transferred by the landlord and the
transferees were impleaded as the parties. The original landlord died. The pleader of
the transferee intimated by letter, the fact of death to the registry after six years. The
tenant filed application for substitution within three weeks from the date of letter. In
view of the fact that original landlord has lost interest in property after its transfer and
also duty cast on the pleader of party under O XXII rule 10-A, the delay in seeking
substitution was condoned.20
No automatic abatement of writ proceedings.—
Even if O XXII of the Code is not applicable to the writ proceedings or writ appeals but it
is the right of a petitioner in a writ petitioner to pursue the remedy survives even after
the death of the original respondent to the writ petition then the right to contest that
claim survives on the legal representative of the deceased respondent. In such a
situation if right to sue survives against the legal representative of such respondent,
then the petitioner has to substitute legal representative of such respondent before the
writ petition can proceed and can be heard and disposed. A High Court can take note
of Article 120 of the Limitation Act to decide as to what shall be reasonable time for
substituting the heirs of the deceased. There is no question of automatic abatement of
the writ proceedings.21
Legal representatives already on record in individual capacity—sufficient.—
When the legal representatives are already on record in their individual capacity, a mere
note under O XXII, rule 2 is sufficient. While so, the first respondent cannot complain of
any prejudice being caused due to formal non-impleading of legal representatives of
the deceased or no serving of formal notice upon the legal representatives of the
deceased.22
Grant of probate of will.—
Where appellants have proved valid execution of propounded Will as required by law,
probate of will of deceased testator was granted.23
Decree against dead.—
Decree passed against dead person is a nullity.24
15 Sri Chand v Jagdish Parshad, AIR 1966 SC 1427 : (1966) 3 SCR 451 : (1966) 68 PLR 291 (D).
16 Central Rly Workshop v Vishwanath, AIR 1970 SC 488 : (1969) 3 SCC 95 : (1970) 1 LLJ 351 :
(1970) 20 FLR 316 .
17 State of Assam v SNSen, AIR 1972 SC 1028 : (1971) 2 SCC 889 .
18 Upper India Cable Co v Bal Kishan, AIR 1984 SC 1381 : (1984) 3 SCC 462 : 1984 AWC 582 .
19 Rani v Shanta Bala, AIR 1971 SC 1028 (1032) : (1970) 3 SCC 722 .
20 OP Kathpalia v Lakhmir Singh, AIR 1984 SC 1744 (1754) : (1984) 4 SCC 66 .
21 Puran Singh v State of Punjab, AIR 1996 SC 1092 (1096, 1097) : (1996) 2 SCC 205 .
22 DR Somayajulu Secretary DLS v Attili Appala Swamy, AIR 2015 SC 569
23 Hari Singh v State, 176 (2011) DLT 199 (207-216) (DB).
24 Kishnu v Bihari, AIR 2005 SC 3799 (3800-01).

death of one of several plaintiffs or of sole plaintiff
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Procedure in case of death of one of several plaintiffs or of sole plaintiff
(1) where one of two or more plaintiffs dies and the right to sue does not survive
to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving
plaintiff dies and the right to sue survives, the Court, on an application made in
that behalf, shall cause the legal representative of the deceased plaintiff to be
made a party and shall proceed with the suit.
(2) Where within the time limited by law no application is made under sub-rule (1),
the suit shall abate so far as the deceased plaintiff is concerned, and on the
application of the defendant, the Court may award to him the costs which he
may have incurred in defending the suit, to be recovered from the estate of the
deceased plaintiff.
Punjab, Haryana and Chandigarh (Notification No. GSR 14 /C.A.5/1908/S. 122/92, dated
21-2-1992).—For existing sub-rule (2) of rule 3, substitute the following:—
"Where within the time limited by law no application is made under sub-rule (1), the suit
shall not abate as against the deceased plaintiff and the judgment may be pronounced
notwithstanding his death which shall have the same effect as if it has been
pronounced before the death took place, and the contract between the deceased and
the pleader in that event shall continue to subsist".
COMMENT.—
The provision under this rule and sections 120 and 121 of the Limitation Act apply to
the application's for setting aside abatement of appeal under U.P. Imposition of
Ceilings on Land Holdings Act, 1961.25
Under rules 3 and 4 an application to bring legal representatives on record is necessary,

though it is not said who is to file it. If no application is made within the time allowed by
the law then the suit abates so far as the deceased plaintiff is concerned. For an
application under rule 3 the limitation is 90 days from the date of death. It starts from
the death of the party concerned and not from the appellant's knowledge thereof.26
The rules under this order are designed to advance justice and should be so interpreted
as not to make them penal statutes. On sufficient cause, delay in bringing the legal
representatives of the deceased party on record should be condoned.27
Condonation of delay in application for substitution.—

An application for the substitution of the legal representatives of the deceased
appellant was made with a delay of 15 days. The delay was because of illness of the
appellant who looked after the appeal. A medical certificate was produced explaining
the delay. The application was entitled to be allowed.28
All the three appellants died. The legal representative of one of them was already on
record. The legal representative of the second was brought on record in time. The delay
in filing the application to bring on record the legal representative of the third can be
condoned.29
The main appeal was on file before High Court. Death of one or the other appellant
takes place. An application for setting aside abatement, condonation of delay and
bringing of legal representatives on record is filed. An order of the High Court rejecting
application of legal representatives would result in grave injustice to remaining
appellants in denying them of their right to have an adjudication of their claims on
merits. Such an order is liable to be set aside.30
Where the decree was based on a common cause against the appellants in various
appeals failure to bring the legal representatives of one of the deceased appellants in
one appeal will result in abatement of other appeals.31
1. Two or more legal representatives.—As general rule all the legal representatives
should be brought on record but where only some of them have been brought on record
what would be the position of the suit regarding its abatement, that is to say will it
abate? Now the position has been made clear by the Supreme Court of India in a
number of cases and it has been held that where the plaintiff or the appellant has made
all possible and bona fide efforts to ascertain as to who are the legal representatives of
the defendant or respondent and has brought them on record, there is sufficient
representation of the estate of the deceased and there will be no abatement of the suit
or appeal. Of course, if some sort of fraud or collusion has been practised or there are
circumstances to suggest that there can be no fair and rule of representation may not
apply.32 Where in a suit filed by the next friend of the plaintiff, after the death of the
plaintiff no application was filed to bring legal heirs on record, the surviving plaintiff
was already on the record, the surviving plaintiff also died and next friend being legal
heir filed an application for bringing herself on record. The plea that the suit abates as
all legal heirs ought to have been brought on record on death of first plaintiff, it was
held that if one heir has been brought on record, substantially representing deceased
plaintiff then the suit does not abate. The right to sue survives or rests in that one
heir.33
2. Legal Representatives.—The definition of the term legal representative under section

2(11) of Code of Civil Procedure, is very wide. It denotes those classes of persons on
whom the status of a representative is fastened by reason of the death of a person
whose estate they are held to represent.34 The legal representatives stand on par with
executors and administrators regarding their right to seek impleadment in order to
continue the suit.35
If the legal representatives are already on record in a suit or appeal (in another
capacity) then no formal application for substitution is necessary. The amendment
describing as heirs can be made at any time.36
Bringing LR on Record, application for.—In a suit for allotment of land by Government the
petitioner's father, original applicant died during pendency of appeal, the petitioner was
not aware of pendency of appeal and he only came to know the same when he received
a communication from advocate engaged by his father. An order rejecting application
on ground that no prayer for setting aside abatement of appeal was made and there
was also no prayer for condonation of delay. It was liable to be set aside. Such
technical objections should not come in way of doing justice.37
Where, the appellant and the two respondents expired during the pendency of second
appeal.—No steps taken to bring the legal representatives on record. No application
was filed under O XXII, rules 2 and 4. Hence, the appeal got "dismissed as abated."
Therefore, the judgment in second appeal passed in High Court against the deceased-
defendants is without jurisdiction and hence nullity.38
3. Joint Hindu Family and Legal Representatives.—In a suit where the minor plaintiff dies
after the suit for partition has been instituted but before the Court comes to the
conclusion that the partition is for the benefit of the said minor, the suit does not abate
but can be continued by his legal representatives showing that the suit when instituted
was for the benefit of the minor.39
4. Death after preliminary decree but before final decree.—What would be the position as
regards abatement in a suit requiring a preliminary as well as final decree to be made,
and where no application has been made in time to implead legal representatives on
the death of a plaintiff or defendant as the case may be, after preliminary decree but
before a final decree? Dealing with the effect of abatement on suit or appeal, what
actually is to be seen, is the nature of the right or relief claimed. If the right or relief
claimed is indivisible that is existing jointly in favour of all plaintiffs, or jointly against all
the defendants then whole of the suit or appeal as may be the case, will fail because of
the abatement in respect of one of them.40 But if the right or relief claimed is such, that
can be divided then, abatement in respect of one of them will not cause the failure of
whole of the suit or appeal.41 In an appeal against final order of abatement although no
appeal was filed against previous order which rejected the application for substitution.
Yet the Supreme Court treated the appeal to be against both. Substitution was allowed
on the ground that minor technicalities of procedure should not come in the way of
doing substantial justice.42
In this connection it would be pertinent to note, as held by the Supreme Court of India,
that legal representatives of landlord (since deceased) under Delhi Rent Control Act,
section 14(1)(e), cannot continue the suit for ejection filed by the landlord on grounds
of personal requirement, because the bona fide requirement of the premises for the
residence of himself (landlord) and his family members is his personal requirement.
Such a personal cause of action must perish with him when the application for
ejectment has not been decided on merit.43
Effect of substitution of succeeding Karta.—
In an eviction suit instituted by Karta of Joint Hindu Family, on the death of the
plaintiff/Karta, the succeeding Karta was substituted for the deceased Karta. The
members of the Joint Family or legal heirs of the deceased did not file any objection for
the continuation of the suit and for the said substitution. It was held that substitution is
in compliance with O XXII, rule 3.44
With regard to appeal, reference may be made to cases,45 mentioned in the footnote.
Effect of substitution of a party on cross appeal.—

The cross-appeals are preferred against a common decree or an award. One party as
appellant dies and his legal representatives are brought on record. Though those very
legal representatives are not substituted in his place as respondent in the cross appeal
the cross appeal would not abate.46
During the pendency of an appeal before the High Court two of the plaintiffs died and
their heirs and legal representatives were not brought on record. The question whether
the appeal abated as a whole, was a matter which could be gone into after a perusal of
the nature of the pleadings, the relief granted by the Court and other material on the
record.47
Right to continue appeal.—
In order to enable a legal representative to continue a legal proceeding, the right to sue
or to pursue a remedy must survive the death of his predecessor. The legal
representatives of an applicant for mining lease, who died during pendency of appeal,
have no right to continue appeal.48
After overruling a Full Bench decision of Punjab and Haryana High Court in Chandrup's
case,49 it has been held by the Supreme Court in Kanta Rani v Ram Rani, AIR 1988 SC
726 : (1988) 2 SCC 109 that the right of pre-emption conferred on a tenant by a
customary law is heritable and on the death of such a tenant who had filed a suit for
pre-emption his legal representatives can continue the suit.
Compromise "related" to the suit.—
A suit on a mortgage was compromised. One of the terms was that the property was to
be sold to the mortgagee in full satisfaction of the decree but if the judgment-debtor
paid the decretal amount within a year, the decree-holder would reconvey the property.
The terms of the compromise "related" to the suit—Actual conveyance and not mere
agreement to convey was intended to operate as satisfaction of the decree.50
It has been held by the Supreme Court in Surajmal v Radheshyam, AIR 1988 SC 1345 :
(1988) 3 SCC 18 : 1988 BBCJ 96 that where a representative was allowed to press
appeal on merits, he must be deemed to have been substituted.
Rule does not apply in representative suits.—
When a suit is brought by or against a person in a representative capacity and there is a

devolution of the interest of the representative, rules 3 and 4 will have no application. In
such a situation rule 10 will apply, whether the devolution takes place as a
consequence of death or for any other reason.51
The proceedings before Charity Commissioner for setting scheme for a public trust are
not governed by this rule.52
Abatement of appeal on death of co-owner.—

Where one of co-owner died during the pendency of appeal, the whole appeal would not
abate. Other co-owners were held to be intermediaries to estate of decree.53
Abatement attaining finality.—
On failure to make applications for making LRs of the deceased party and for setting
aside the abatement, order of abatement of the suit/appeal becomes a final order even
though the same may not amount to decision on merits. The liberal trend on setting
aside the abatement and the question of finality of decision on abatement should be
read together.54
25 Balram v Addl Distt Judge, AIR 1983 SC 1137 : (1983) 2 SCC 419 : 1983 ALJ 543 .
27 Sital Prasad Saxena v UOI, AIR 1985 SC 1 .
28 Mani Ram v Hari Singh, AIR 1992 SC 1851 (1854) : (1992) 3 SCC 501 .
29 Piara Singh v Natha Singh, AIR 1991 SC 1529 : 1991 Supp (2) SCC 289 .
30 S Amarjit Singh Kalra v Pramod Gupta, AIR 2003 SC 2588 (2605, 2611) : (2003) 3 SCC 272 .
31 Badni v Siri Chand, AIR 1999 SC 1077 (1078, 1079) : (1999) 2 SCC 448 .
32 Dolai Maliko v Krushna Chandra Patnaik, AIR 1967 SC 49 : 1966 Supp SCR 22 : 33 Cut LJ 1;
Mohd Sulaiman Saheb v Mohd Ismail Saheb, AIR 1966 SC 792 : (1966) 1 SCR 937 : (1967) 1 MLJ
(SC) 10; Dayaram v Shamsundari, AIR 1965 SC 1049 ; Ramdas v Deputy Director of Consolidation,
AIR 1971 SC 673 .
33 Gema Cantuiho Rodrigues v Bricio Franciso Pereira, AIR 1994 SC 1199 : (1993) 2 SCC 620 .
34 Sajid Hussain v Abdul Rahim, AIR 1929 Oudh 354 .
35 M Veerappa v Evelyn Sequeira, AIR 1988 SC 506 (512) : (1988) 1 SCC 556 : (1988) 1 KLT 450 .
36 Harihar Prasad v Balmiki Prasad, AIR 1975 SC 733 (746) : (1975) 1 SCC 212 : (1975) 2 SCR
932 .
37 K Ruddrappa v Shivappa, AIR 2004 SC 4346 .
38 Gurnam Singh v Gurbachan Kaur, AIR 2017 SC 2419 : 2017 (5) SCALE 348 : (2017)13 SCC
414 : 2018 (3) SCJ 671 ; (See also AIR 1954 SC 340 ; AIR 1979 SC 1393 , AIR 1999 SC 1484 ).
39 Venkata Reddy v Lakshamamma, AIR 1963 SC 1601 : (1964) 2 SCR 172 : (1964) 1 MLJ (SC)
21.
40 (1971) 2 Cut WR 955.
41 Nanak v Ahmad Ali, AIR 1946 Lah 399 (FB).
42 Harjeet Singh v Rajkishore, AIR 1984 SC 1238 : (1984) 3 SCC 573 : (1984) 32 BLJR 241 .
43 Phool Rani v Naubat Rai Ahluwalia, AIR 1973 SC 2110 : (1973) 1 SCC 688 : (1973) 3 SCR 679 .
45 AIR 1916 Lah 245 (FB); Venkatakrishan v Krishna, AIR 1926 Mad 586 (FB); Ram Charan v Hira
Nand AIR 1945 Lah 298 (FB).
46 N Jayram Reddi v Rev Divisional Officer, AIR 1979 SC 1393 (1399) : (1979) 3 SCC 578 .
47 Matindu Prakash v Bachan Singh, AIR 1977 SC 2029 .
48 C Buchevenkata Rao v UOI, AIR 1972 SC 1324 (1328) : (1972) 1 SCC 734 .
49 AIR 1983 P&H I (FB).
50 Abdul Shakoor v Bijai Kr Kapoor, AIR 1964 SC 874 (876) : 1963 Supp (2) SCR 46 : (1964) 1 An
WR 49 .
51 Rikhu Dev v Som Dass, AIR 1975 SC 2159 : (1976) 1 SCC 103 : (1976) 1 SCR 487 .
52 Saiyad Mohammad Bakar-El-Edoors v Abdulhabib Hasan Arab, AIR 1998 SC 1624 (1627,
1628) : (1998) 4 SCC 343 .
53 Yogendra Bhagata v Pritlal Yadava, AIR 2009 Pat 168 (FB).
54 Bhag Mal v Munshi, (2007) 11 SCC 285 .

death of one of several defendants or of sole defendant
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Procedure in case of death of one of several defendants or of sole defendant
(1) Where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives, the
Court, on an application made in that behalf, shall cause the legal
representative of the deceased defendant to be made a party and shall proceed
with the suit.
(2) Any person so made a party may make any defence appropriate to his
character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-rule (1),
the suit shall abate as against the deceased defendant.
55
[(4) The Court whenever it thinks fit, may exempt the plaintiff from the necessity
of substituting the legal representatives of any such defendant who has
failed to file a written statement or who, having filed it, has failed to appear
and contest the suit at the hearing; and judgment may, in such case, be
pronounced against the said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if it has been
pronounced before death took place.
(5) Where,—
(a) the plaintiff was ignorant of the death of a defendant, and could not, for
that reason, make an application for the substitution of the legal
representative of the defendant under this rule within the period
specified in the Limitation Act, 1963, and the suit has, in consequence,
abated, and
(b) the plaintiff applies after the expiry of the period specified therefor in
the Limitation Act, 1963, for setting aside the abatement and also for
the admission of that application under Section 5 of that Act on the
ground that he had, by reason of such ignorance, sufficient cause for not
making the application within the period specified in the said Act,
the Court shall, in considering the application under the said Section 5,
have due regard to the fact of such ignorance, if proved.]
III-A, Page 69.
High Court Amendment deleted.

Government Gazette, dated 11-4-1975, Part III (L.S.), Pages 304-305; Haryana Government
Gazette, dated 25-3-1975, Part III (L.S.), Page 190.
(i) In Order XXI in rule 4, sub-rule (3) shall be substituted as follows:—
"(3) Where within the time limited by law no application is made under sub-rule (1) the
suit shall not abate as against the deceased-defendant and judgment be pronounced
notwithstanding the death and shall have the same force and effect as if it had been
pronounced before the death took place." (Vide Noti. No. GSR 39/C.A. 5/1908/S. 12257,
w.e.f. 11-4-1975).
(ii) In Order XXII, in rule 4 the following shall be inserted as sub-rules (4), (5) and (6)
namely:—
"(4) If a decree has been passed against a deceased-defendant a person claiming to be

his legal representative may apply for setting aside the decree qua him and if it is
proved that he was not aware of the suit or that he had not intentionally failed to make
an application to bring himself on the record, the Court shall set aside the decree upon
such terms as to costs or otherwise as it think fit.
(5) Before setting aside the decree under sub-rule (4) the Court must be satisfied prima
facie that had the legal representative been on the record a different result might have
been reached in the suit.
(6) The provisions of Section 5 of the Limitation Act, 36 of 1963, shall apply to
applications under sub-rule (4)."
COMMENT.—
When the decree in favour of the respondents is joint and indivisible, the appeal abates
against one of them for not bringing on record his legal representatives. The appeal
against the other respondents will not be proceeded with and will have to be dismissed
as a result of the abatement.
The provision of rule 4 does not provide for the abatement of the appeals against the
co-respondents of the deceased respondent. The only question is whether an appeal
can proceed against them. No exhaustive statement can be made about the
circumstances under which a Court can deal with such matters or not. The tests may
be diverse. The Courts will not proceed (a) when the decision of the appeal will be
contradictory to the decree which had become final with respect to same subject-
matter between the appellant and the deceased respondent, (b) when the appellant
could not have brought the action for the necessary reliefs against those respondents
alone who are still before the Court, (c) when tax decree against the surviving
respondents, if the appeal succeeds, could not be successfully executed.56
This rule deals with the procedure in case of death of one of the several defendants or
of sole defendant and if we analyse the provisions contained in this rule we come to
know that following conditions should be fulfilled in order to attract the applicability of
this rule. These are (i) there must be a suit or appeal as the case may be, (ii) one of the
defendants or the respondents must have died and where no death occurs, there is no
question of abatement under this rule.57 Death of such a defendant or respondent
must be pendente lite that is while the suit is pending. The provisions of this rule are
inapplicable when the death takes place either before the institution of the suit, or after
the decree is passed in the suit, (iii) also, it is necessary that the said suit or appeal
must be pending in Court, competent to try the suit or hear the appeal. And lastly, the
right to sue should survive but not against surviving defendants exclusively.58
Doctrine of abatement is applicable equally to a suit as well as to an appeal.59
This should be noted here that if the case falls within the purview of rule 2 this rule is
not applicable and when a case falls under this rule, rule 10 is excluded, and as
interpreted, this rule applies to appeals also.60 When the petitioner, was impleaded as a
party defendant, all rights under this rule and defences available to the deceased
defendant become available to her. In addition, if the petitioner had any independent,
title or interest in the property then she had to get herself impleaded in the suit as a
party defendant in which event she could set up her own independent right, title and
interest to resist the claim made by the plaintiff or challenge the decree that may be
passed in the suit.61
"The sub-rule (2) of rule 4 of O XXII authorised the legal representative of a deceased
defendant to file an additional written statement or statement of objections raising all
pleas which the deceased defendant had or could have raised except those which were
personal to the deceased defendant or respondent."62
Who is proper legal representative (LR), to be decided first.—
The provisions under rule 4 of O XXII of the code are mandatory in nature, and so the
High Court should first decide the question of, who is proper legal representative for
the deceased, and cannot leave it to be decided alongwith merits of the case.63
Legal representative can urge what deceased could.—
The heirs and legal representatives can urge all contentions which the deceased could
have urged except only those which were personal to the deceased. The right of the
statutory tenant to continue in possession is personal. It is not capable of being
transferred or assigned. It devolves on death only in the manner provided by the
statute. The defence of want of bona fide requirement by the landlord was personal to
the statutory tenant and on his death the same is not open to his legal representative.
The legal representatives also are not prevented from setting up their own independent
title. In that case the Court should implead not merely as legal representatives of the
deceased but also in their personal capacity to avoid a separate suit for decision on
independent title.64
Dealing with the question of abatement of appeal, the Supreme Court of India has held
in the case of Harihar Prasad v Balmiki Prasad, AIR 1975 SC 733 : (1975) 1 SCC 212 :
(1975) 2 SCR 932 that where the death of one of the appellants occurs during the
pendency of the appeal and his legal representative has not been brought on record,
and if the decree is a joint one the entire appeal abates.65 As regards limitation within
which the legal representative is to be impleaded it has been held by the Supreme
Court of India that the period of limitation begins to run from the date of the death of
the defendant and not from the date of its knowledge on the part of the plaintiff.66
Application for impleading a legal representative should be made within a period of 90
days from the date of the defendant (as provided in Article 120 of Limitation Act,
1963).
Two or more legal representatives.—

In this connection the rule which is applicable in the case of death of a plaintiff applies
in case of death of a defendant also. Where a plaintiff or an appellant after diligent and
bona fide enquiry ascertains who the legal representatives of a deceased defendant or
respondent are. He brings them on record within time limited by law. There is no
abatement of the suit or appeal. The impleaded legal representatives sufficiently
represent the estate of the deceased. The division obtained with them on record will
bind not merely those impleaded but the entire estate including those not brought on
record.67
An appeal will not abate if all legal representatives are impleaded on record except one
for want of his particulars. He can be subsequently impleaded.68
The circumstances indicating fraud or collusion or that there has not been a fair or real
trial or that against the absent heir there was a special case which was not and could
not be tried, were absent. The heir's brought on record would represent the entire estate
including the heirs not brought on record by oversight or on account of some doubt but
not deliberately.69 But this is not applicable where the heirs are co-owners.70 And when
all legal representatives of the deceased defendant have been substituted, the
requirement of this order (O XX) are complied with. But if afterwards some of them are
not served, as held by the Supreme Court of India, the question is not of abatement but
whether the appeal is competent or not.71
Bringing legal representative on record in case of Joint Hindu Family.—
Dealing with the question of bringing a legal representative on record in case of joint
Hindu family, the Supreme Court of India observed that when a Hindu widow
transferred property before Hindu Succession Act, 1956, came into force, the property
which she got from her husband, without any legal necessity and the reversioners filed
a suit against transferee for a declaration that alienation made by the widow is not
binding on them and widow also died pending the suit, there is no need to bring the
legal representatives of the widow on record because on the death of widow her estate
comes to an end.72 A suit for injunction was filed by three brothers wherein they had
stated that the property was the joint family property. The eldest of them died pending
appeal. Since he could not be considered Karta of the joint family the appeal gets
abated if the legal representatives of the deceased brother are not brought on record.73
What would be the position if the legal representative of the deceased defendant is
already on record though in a different capacity? A party respondent in an appeal dies.
One of his legal representatives is already on record in another capacity. The appeal
will not abate even though no application is made to bring them on record. The legal
representative of the deceased is required merely to file an application stating that he
is also on record as an heir and legal representative of the deceased.74 To a question
whether the legal representative must continue the litigation on the cause of action
sued upon or he can even set up a plea open to him personally? The answer has been
given by a Full Bench decision of Allahabad High Court he cannot set up a plea open to
him in his individual right.75
In an appeal against final order of abatement although no appeal was filed against
previous order which rejected the application for substitution. Yet the Supreme Court
treated the appeal to be against both. And allowed substitution on the ground that
minor technicalities of procedure should not come in the way of doing substantial
justice.76
Technical objections not allowed.—
On the death of respondent manager of Joint Hindu family business, an application to

bring succeeding manager under rule 10 instead of proper application under rule 4
after expiry of limitation was granted by the Supreme Court. It was held that although
the proper procedure was to apply under rule 4 yet the technical objection would not be
allowed in Supreme Court appeal.77
A decree in favour of the respondents is joint and indivisible. The appeal abates against
one of them for not bringing on record his legal representatives. The Civil Procedure
Code makes no provision for abatement of the suit or appeal against a co-defendant or
co-respondent of the deceased defendant or respondent.78 In this case it is not
necessary to make an express order of abatement. Abatement takes place
automatically.79 For a detailed study regarding abatement of suit or appeal see the
Supreme Court decision in State of Punjab v Nathu Ram, AIR 1962 SC 89 : (1962) 2 SCR
636 : (1961) 2 MLJ (SC) 182 and If a party dies and right to sue survives, then the Court
on an application made in that behalf is required to substitute legal representatives of
the deceased party for proceeding with a suit but if such an application is not filed
within the time prescribed by law, the suit shall automatically abate.80
Joint claim against defendants.—
A joint claim against several defendants was made in a suit. During pendency of the
appeal by the plaintiff'some of the defendants died. No separate claim was made
against any of the defendants in appeal, the failure of the plaintiff to bring on record
their legal representatives resulted in the abatement of the appeal in toto.81
Where the Counsel by mistake, instead of seeking transposition of legal representative

in place of deceased defendant, sought deletion of the deceased defendant, the
mistake was condoned and the existing defendant transposed as legal representative
of the deceased defendant.82
Where a suit was filed against a dead person and the plaintiff came to know that the
defendant was dead only from the endorsement in the returned summons, he was
permitted to implead the legal representatives of the defendant.83
Abatement occurs by operation of law.—
Abatement is not dependent upon any judicial adjudication or declaration of such

abatement by a judicial order. It occurs by operation of law. But nevertheless
"abatement" requires judicial cognizance to put an end to a case as having abated.84
Doctrine of abatement applies to appeals also.—
It is clear from the combined reading of rules 3, 4 and 11 of O XXII that the doctrine of
abatement is applicable equally to a suit as well as to an appeal.85
It would be pertinent here to give the observation of their Lordships of the Supreme
Court of India summarising the law relating to partial or total abatement which is as
under:
The Courts will not proceed with an appeal :—(a) when the success of the appeal may lead
to the Court's coming to a decision which may be in conflict with the decision between the
appellant and the deceased respondent and therefore, it would lead to the Court's passing a
decree which will be contradictory to the decree which had become final with respect to the
same subject matter between the appellant and the deceased respondent; (b) when the
appellant could not have brought the action for the necessary relief against those
respondents alone who are still before the Court; and (c) when the decree against surviving
respondents, if the appeal succeeds be ineffective, that is to say, it could not be
successfully executed. These three tests are not cumulative and even if one of them is
satisfied the Court may dismiss the appeal.
If no application is made within the time allowed by law the suit abates as against the
deceased defendant. The effect of such an abatement of the suit against the surviving
defendants depends on other considerations86 as laid down in Nathuram's case87.
Where an insolvent who initiated proceeding for annulment of insolvency dies, the
Court refuses to implead the legal heirs in a suit for specific performance, later there
was annulment of insolvency, by this annulment, the abatement of the suit (an
independent proceeding) cannot be ignored or the proceedings in the suit revived.88
Sub-rules (4) and (5) were added to this rule 4. Sub-rule (4) was added with a view to
avoid delay in the substitution of the legal representatives of the deceased defendant
and consequent delay in the disposal of suit. Whereas sub-rule (5) was inserted to
provide that the plaintiff'should have an opportunity to pray for an extension of the time
limit for the substitution of the legal representatives of the deceased defendant if he
can establish that he was ignorant of the death of the defendant.
The considerations for setting aside an abatement are different and distinct from those
for condonation of delay under section 5 of Limitation Act. An application for setting
aside abatement is considered liberally by the Courts. Dismissal of an application
under O XXII, rule 4 filed by the Government with short delay of 15 days will not be
proper. Delay in official business requires broach and approach from public justice
perspective.89
No abatement.—
In a land acquisition case pending before the Supreme Court, the State was ordered to
take out dasti service and when notice was taken the appellant was informed that the
respondent was dead. Then a petition for substitution was taken. It was held that the
State is not expected to keep watch over the survival of the respondent and even if it is
assumed that abatement was caused, since the application is filed within thirty days of
knowledge, there is no abatement.90
In a partition suit, the fourth defendant did not contest the suit and did not file the
written statement. The fourth defendant died prior to passing of the preliminary decree.
The court held that not bringing of all the Legal Representatives of the said fourth
defendant on record will not render the decree a nullity and the suit will not get
abated.91
Abatement of appeal—when.—
During pendency of proceedings one of the legal representatives of the original

appellant/defendant died, the right to sue orappeal, survived not on the other legal
representatives of original defendant/appellant but on the legal representatives of the
deceased legal representative. Therefore, as no application was filed to bring legal
representative on record within the period of ninety days the appeal to the extent of
said deceased legal representative "k" abated automatically. In the absence of
application for setting aside of abatement and for condonation of delay, the abatement
got finality. Furthermore, conflicting decrees cannot be passed in the same matter and
to avoid such a situation the whole appeal is liable to be dismissed as abated.92
Abatement of suit.—
In case of death of one of the defendants, where interests of co-defendants are

separate, as in case of co-owners, the suit would abate only as regards interest of
deceased.93
Abatement plea, not allowed.—
Appellant cannot be allowed to raise plea of abatement before Supreme Court for
frustrating right of respondent where neither the factum of death of executors of sale
deed was brought to the notice of the judge deciding second appeal nor such argument
was made before him.94
Proceedings to declare sale transaction as void.—
An agriculturist took loan from A. The sale deed was executed in favour of son. A died
during proceedings. His other heirs were not brought on record. The proceedings will
not abate since declaration sought is against sale deed which was executed in favour
of A,s son.95
In a suit for recovery by bank, the bank customer died. The notice of his death was
given to the branch other than the plaintiffs branch. It does not constitute notice to
plaintiff's branch. Hence no abatement.96
Where one of the respondents in the appeal died during the pendency of the appeal and
the estate is sufficiently represented by the other respondents on record, there is no
question of any abatement.97
Whole appeal not to abate.—
Where interests of the alienee respondent are separate and independent the whole
appeal does not abate.98
Abatement of appeal.—
There can be no abatement of appeal on the death of one of the respondents during
the pendency of appeal, where same of the heirs and legal representatives of the
respondents were already on record.99
Where each one of the parties has an independent and district right of his own, not
interdependent upon one or the other, nor the parties have conflicting interest inter se,
the appeal may abate duly qua the deceased respondent. If there is possibility that the
court may pass a decree contradictory to the decree in favour of the deceased party,
the appeal would abate in toto100
The plaintiff claiming to be adopted son of deceased filed a suit for partition against
widow of the deceased. The claim of the plaintiff was rejected. In appeal the widow
died. A sister of the deceased succeeded to estate and on her death it was succeeded
by her children. The plaintiff failed to bring legal representatives of widow on record.
The appeal is liable to be dismissed as having been abated.101
Where no abatement order is envisaged, abatement takes place on its own force by the
passage of time.102
A sole respondent in second appeal before the High Court died. Within two weeks, from
the knowledge of the death of the deceased-respondent, the appellants filed an
application for substitution. There was sufficient cause for the delay in making the
application for the substitution. The delay was to be condoned. The High Court erred in
refusing to set aside abatement.103
In a suit for redemption appeal abates only against the co-mortgagees not brought on
the record and when the mortgagor is prepared to pay entire mortgage amount to
surviving mortgagers.104
Where one of the heirs was brought on record within time, the mere fact that the
remaining legal representatives were brought on record at a subsequent stage would
not render the suit defective. Under the Portugees Law of Inheritance a widow acquires
"Meeira rights" according to which she gets half share in the estate left by her
deceased husband. Such a widow represents the estate of her deceased husband.
When in a suit against the husband of such portugees widow the name of his widow
was brought on record within time, the abatment of suit would be liable to be set aside,
irrespective of the fact that the remaining legal representatives of the deceased were
brought on record at a subsequent stage.105
Abatement of appeal against one of respondents—Effect.—
The abatement of appeal against one of the respondents will not abate appeal qua
other respondents.106
Effect of non-substitution of legal heirs.—
The non-substitution of legal heirs in final decree proceedings does not in any way
affect final decree.107
Legal representative already on record.—
Where a party is already on record sufficiently representing property of deceased

respondent, there will be no necessity of application to bring him as legal
representative of deceased on record.108
Courts not to adopt hypertechnical approach.—
Where legal representatives were not brought on record for more than three years,
thereafter the appellant under O XXII, rule 4 and the legal heirs of the respondent under
O I rule 10 filed applications which were rejected by the High Court. The Supreme Court
held the order of High Court as disclosing hypertechnical approach and allowed both
the applications.109
Leading fresh evidence.—
Parties are at liberty to lead fresh evidence only in respect of defence/stand taken by
the newly impleaded party in written statement and not otherwise.110
A strong case on merits.—
In a time-barred application for bringing legal representatives of deceased respondent

on record, no cause was shown for condonation of delay for setting aside abatement. It
was a strong case on merits but without any ground for condonation of delay.111
Order against dead party, is a nullity.—
An order passed in abated writ petition against dead party is nullity in law.112
It has been held by a Full Bench of Punjab and Haryana High Court in Ram Kala v
Consolidation of Holdings, AIR 1977 P&H 87 (FB) that O XXII, rule 4 and section 141 of
the Code of Civil Procedure do not apply to writ proceedings.
Dismissal of application for condonation of delay.—
The application for condonation of delay in setting aside abatment of appeal and
bringing legal representative on record was liable to be dismissed as appellants failed
to explain sufficient cause for condonation of delay.113
Power of court.—
It is duty of the court to effect amendment of pleading not carried out within time
specified as party should not suffer for any lapse on the part of the court.114
Exemption from substituting L.Rs. of defendant.—
Exemption from the necessity of substituting L.Rs. of defendant must be obtained

before pronouncement of judgment.115
56 Srichand v Jagdish Chand, AIR 1966 SC 1427 (1429) : (1969) 3 SCR 451 : 10 Law Rep 7; see
also Anand Niwas v Anandji, AIR 1965 SC 414 : (1964) 4 SCR 892 : (1964) 5 Guj LR 111; UOI v
Shree Ram, AIR 1965 SC 1531 : (1965) 2 SCR 830 .
57 SP Mishra v Babuaji, AIR 1970 SC 809 : (1969) 2 SCR 971 .
58 KA Dhairyawan (Dr) v JR Thakur, AIR 1958 SC 789 (794) : 1959 SCR 799 : 61 Bom LR 548; see
also Nani Bhai v Gita Bai; AIR 1958 SC 706 : 1959 SCR 479 .
59 Banwarilal v Balbir Singh, (2016) 1 SCC 607 .
60 Rangubai v Sunderabai, AIR 1965 SC 1734 .
61 Vidyawati v Man Mohan, AIR 1995 SC 1653 : (1995) 5 SCC 431 .
62 Bal Kishan v Om Prakash, AIR 1986 SC 1952 (1954) : (1986) 4 SCC 155 ; see also Jagdish
Chander Chatterjee v Shri Kishan, AIR 1972 SC 2526 (2528, 2529) same view expressed.
63 Jaladi Suguna v Satya Sai Central Trust, 2009 (Supp) Bom CR (SC) 492 : (2008) 8 SCC 521
(526).
64 JC Chatterjee v SK Tandon, AIR 1972 SC 2526 (2528) : (1972) 2 SCC 461 ; Anand Niwas v
Anandji, AIR 1965 SC 414 followed.
67 Daya Ram v Shyam Sundari, AIR 1965 SC 1049 (1053) : (1965) 1 SCR 231 : (1965) 2 AnLT
147.
68 Ram Das v Dy Director of Consolidation, AIR 1971 SC 673 : (1971) 1 SCC 480 .
69 Mohd Sulaiman v Mohd Ismail, AIR 1966 SC 792 (798) : (1966) 1 SCR 937 : (1967) 1 MLJ
(SC) 10.
70 Chacko Pyli v Iype Varghese, AIR 1956 Trav Co 147 (FB).
71 AIR 1958 SC 706 : 1959 SCR 479 .
72 Radharani v Hanuman Prasad, AIR 1966 SC 216 : (1966) 1 SCR 1 .
73 Municipal Council, Mandsaur, Fakirchand, AIR 1997 SC 1251 (1252) : (1997) 3 SCC 500 .
74 Mahabir Prasad v Jage Ram, AIR 1971 SC 742 (744) : (1971) 1 SCC 265 .
75 Ramugrah v Genesh Singh, AIR 1940 All 79 (FB).
76 Harjeet Singh v Rajkishore, AIR 1984 SC 1238 : (1984) 3 SCC 573 : (1984) 32 BLJR 241 .
77 Gujarat State Transport Corpn v Valji Mulji Soneji, AIR 1980 SC 64 (66) : (1979) 3 SCC 202 .
78 State of Punjab v Nathuram, AIR 1962 SC 89 : (1962) 2 SCR 636 : (1961) 2 MLJ (SC) 182.
79 Bahibur Rahman v Pooran, AIR 1966 All 353 (FB).
534 .
81 Babu Suhhram Singh v Ram Dular Singh, AIR 1973 SC 204 .
82 Ram Sakal Singh v Monako Devi, AIR 1998 SC 277 (283) : (1997) 5 SCC 192 .
83 Karuppaswami v C Ramamurthy, AIR 1993 SC 2324 (2327) : (1993) 4 SCC 41 ; Munshi's case,
AIR 1983 SC 271 , followed.
84 Perumon BDevaswam v Bhargavi Amma, (2008) 8 SCC 321 (326).
85 Ramagya Prasad Gupta v Murli Prasad AIR 1972 SC 1181 (1185) : (1973) 2 SCC 9 : (1973) 1
SCR 63 ; see also State of Punjab v Nathu Ram, AIR 1962 SC 89 : (1962) 2 SCR 636 .
87 State of Punjab v Nathuram, AIR 1962 SC 89 : (1962) 2 SCR 636 : (1961) 2 MLJ (SC) 182.
88 Arora Enterprises Ltd v Indubhushan Obhan, AIR 1997 SC 1275 (1279) : (1997) 2 GCD 609.
89 State of Madhya Pradesh v SS Akolkar, AIR 1996 SC 1984 : (1996) 2 SCC 568 .
90 Urban Improvement Trust, Jodhpur v Gokul Narain, AIR 1996 SC 1819 : (1996) 4 SCC 178 .
91 Rahim Mian v Bibi Jaibunisha, AIR 2014 Jhar 17 .
92 Barji v Mangu, AIR 2013 Raj 45 .
93 Shahazada Br v Halimabi, AIR 2004 SC 3942 ; Sant Singh v Gulab Singh, AIR 1928 Lah 572
(FB); Masilamani Nadar v Kuttiamma, 1960 Ker LJ 936 ; S Amarjit Singh v Pramod Gupta, AIR
2003 SC 2588 (followed).
94 KNaina Mohamed v AM Vasudevan Chettiar, (2010) 7 SCC 603 (611).
95 Bhav Singh v Keshar Singh, AIR 2003 SC 3199 (3204) : (2003) 8 SCC 263 .
96 United Bank oflndia v Kanan Bala Devi, AIR 1987 SC 1510 (1512) : (1987) 2 SCC 583 .
97 Collector of 24 Parganas v Lalit Mohan Mullick, AIR 1988 SC 2121 : 1988 Supp SCC 578 .
98 Raghunath v Ganesh, AIR 1964 SC 234 (243) : (1964) 3 SCR 520 : 66 Bom LR 382.
99 Mohd Hussain v Gopibai, (2008) 3 SCC 233 ; see also Mohd Hussain v Occharlal, AIR 2008 SC
1462 .
100 Budh Ram v Bansi, (2010) 11 SCC 476 (482).
101 Zilla Singh v Chandgi, AIR 1991 SC 263 : 1991 Supp (2) SCC 430 .
102 Madan Naik v Hansubala, AIR 1983 SC 676 (679).
103 Gangadhar v Rajkumar, AIR 1983 SC 1202 (1205) : (1984) 1 SCC 121 .
104 Chhaganlal v Narandas, AIR 1982 SC 121 (125) : (1982) 1 SCC 223 .
105 Custodian, Branches of BANCO National Ultramarino v Nalini Bai Narique, AIR 1989 SC 1589
(1591) : 1989 Supp (2) SCC 275 .
106 NKhosla v Rajlakshmi, AIR 2006 SC 1249 (1253).
107 Md Asgar Hussain v Md Safique Alam, AIR 2011 Jhar 63 (70) : 2011 AIR CC 1209 Jha.
108 Mohd Arif v Allah Rabbul Allamin, AIR 1982 SC 948 : (1982) 2 SCC 455 .
109 Bhagwan Swaroop v Mool Chand, AIR 1983 SC 355 (357) : (1983) 2 SCC 132 .
110 KS Krishna Sarma v Kifayat Ali, (2008) 4 SCC 591 (593).
111 State of Gujarat v Sayed Mohd Bakir El Edross, AIR 1981 SC 1921 : (1981) 4 SCC 1 : (1981) 7
ALR 611 .
112 Pape Gowda v Divisional Controller, KSRT Corn, 2008 (1) Kar LJ 646 (650) (DB).
113 Ranbir Singh v Parduman, 2011 AIR CC 1355 (1358) (HP).
114 Kenneth AV Wilson v Ratan Marothia, 2009 (4) Cal WN 292 : 2010 AIHC (NOC) 253 (Cal) :
AIR 2010 Cal 10 APO No 294 of 2006 and GA No 2394 of 2006 & etc Dt 20 July 2009 (DB).
115 T Gnanavel v TSKanagaraj, AIR 2009 SC 2367 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4A. Procedure where there
is no legal representative
© 2020 LexisNexis
THE FIRST SCHEDULE
116[R. 4A.
Procedure where there is no legal representative
(1) If, in any suit, it shall appear to the Court that any party who has died during
the pendency of the suit has no legal representative, the Court may, on the
application of any party to the suit, proceed in the absence of a person
representing the estate of the deceased person, or may by order appoint the
Administrator-General, or an officer of the Court or such other person as it
thinks fit to represent the estate of the deceased person for the purpose of the
suit: and any judgment or order subsequently given or made in the suit shall
bind the estate of the deceased person to the same extent as he would have
been bound if a personal representative of the deceased person had been a
party to the suit.
(2) Before making on order under this rule, the Court,—
(a) may require notice of the application for the order to be given to such (if
any) of the persons having an interest in the estate of the deceased
person as it thinks fit, and
(b) shall ascertain that the person proposed to be appointed to represent

the estate of the deceased person is willing to be so appointed and has
no interest adverse to that of the deceased person.]
COMMENT.—
Rule 4-A was added in order to provide that the plaintiff'should not suffer where the
deceased defendant has no legal representative or his legal representative is not
traceable. Rule 4-A enables the representation of the estate of the deceased defendant
in the suit so that the plaintiff may proceed with suit.
Applicability.—
The provisions of the Code including that of O XXII do not apply specifically to writ
petition. Where the matter is already pending and the Court is of opinion that the relief
sought can be granted in the PIL, without having to take recourse to adversarial style of
proceedings, then it can proceed further as if it had taken suo motto cognizance of the
matter.117
117 Pragati Mahila Mandal Nandeo v Municipal Council Nandeo, 2011 AIR CC 1684 (SC) : AIR
2011 SCC 1512 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Determination of
question as to legal representative
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Determination of question as to legal representative
Where a question arises as to whether any person is or is not the legal representative
of a deceased plaintiff or a deceased defendant, such question shall be determined by
the Court.
118 [Provided that where such question arises before an Appellate Court, that Court
may, before determining the question, direct any subordinate Court to try the question
and to return the records together with evidence, if any, recorded at such trial, its
findings and reasons therefor, and the Appellate Court may take the same into
consideration in determining the question.]
III-A, page 69.
High Court Amendment deleted.
COMMENT.—
Scope & nature of.—
As a legal position, it cannot be disputed that normally, an enquiry under O XXII, rule 5
of the code is of a summary nature and finding therein cannot amount to res judicata,
however, that legal position is true only in respect of those parties, who sets up a rival
claim against the legatee.119
The provisions enacted in this rule are mandatory. The question of abatement of
suit/appeal does not arise till the question as to who is the legatee legal representative
is decided by following procedure under this rule.120 Very elaborate enquiry is, however,
not necessary for the purpose, but the decision of the Court must be a judicial one and
that a cautious approach is to be taken.121
Where the question of substitution of heirs and legal representatives was decided by
the Court, this rule stood complied. That order cannot be recalled by the same person,
who had filed earlier application, claiming a right under a will.122
The proviso was added to rule 5 which seeks to enable the Appellate Court to direct a
Subordinate Court to inquire into, and give its findings on disputes, as to who is legal
representative of a deceased party.
It has been by a full bench of M P High Court in Mittu Lal v Badri Prasad, AIR 1981 MP 1
(FB) that "An order under O XXII, rule 5 cannot obviously be said to fall within the
definition of decree for the following reasons:
(i) the order is made only for the purpose of determining who should continue the
suit as brought by the original plaintiff. It is not intended to determine and it does
not, in fact, determine the rights of the parties with regard to any of the matters
in controversy in suit...; and
(ii) in order to operate as a decree, the adjudication must be one between the
parties to the original suit or their legal representatives, and with regard to only
matters in controversy between the original parties and, therefore, cannot
include a decision of the question as to whether certain individual is or is not
entitled to represent one of such parties.123
A Full Bench of the Punjab and Haryana High Court has held in Mohinder Kaur v Piara
Singh, AIR 1981 P&H 130 (FB) that in essence a decision under O XXII, rule 5, Civil
Procedure Code, is only directed to answer an orderly conduct of the proceedings with
a view to avoid the delay in the final decision of the suit till the persons claiming to be
the representatives of the deceased party get the question of succession settled
through a different suit and such a decision does not put and end to the litigation in
that regard. Such a proceeding is of a very summary nature against the result of which
an appeal is provided for. The grant of an opportunity to lead some sort of evidence in
support of the claim of being a legal representative of the deceased party would not in
any manner change the nature of the proceedings.
Legal representative, when to represent.—
Filing an application to bring the legal representatives on record does not amount to
bringing the legal representatives on record. When such application is filed, the court
should consider it and decide whether the persons named therein as legal
representative, should be brought on record to represent the estate of the deceased.
Until such division by the court, the persons claiming to be the legal representatives
have no right to represent the estate of the deceased nor prosecute or defend the
case.124
In an eviction suit, appeal was filed against the decree which was dismissed. The
dismissal of appeal as abated without determining the status of appellants would not
be proper. It was necessary for the High Court to remit the matter to the trial court for a
proper determination whether the appellants were in fact carrying on business with his
father at the time of death.125
Impleadment of LRs.—
In an eviction suit the plaintiff died during the pendency of suit and alongwith widow of
the deceased, brother of the deceased plaintiff also sought impleadment as LRs on the
basis of will that was executed in his favour by the plaintiff. The impleadment was
refused on the ground that execution of will was suspicious. The refusal was
improper.126
Substitution of succeeding karta of Hindu Undivided Family.—
Substitution of succeeding Karta on the death of Karta of HUF is proper. No need to

conduct any enquiry under O XXII, rule 5.127
118 Added by Act 104 of 1976, section 73 (w.e.f. 1-2-1977).

119 Dashrath Rao Kate v Brij Mohan Srivastava, AIR 2010 SC 897 : (2010) 1 SCC 277 .
120 Mahendra Kumar v Lalchand, AIR 2001 SC 807 : (2001) 2 SCC 619 .
121 Haridas Roy v CC Bank Ltd, AIR 1972 Cal 329 .
122 Annupam Pruthi v Rajen Bal, AIR 1988 SC 2041 : (1989) 1 SCC 147 .
123 AIR 1981 MP p 1 (FB) at p 4.
124 Jaladi Suguna v Satya Sai Central Trust, AIR 2008 SC 2866 (2866) : (2008) 8 SCC 521 (526).
125 Kanhaiya Singh Santok Singh v Kartar Singh, AIR 2009 SC 1600 .
126 Suresh Kumar Bansal v Krishna Bansal, AIR 2010 SC 344 : (2010) 2 SCC 162 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. No abatement by reason
of death after hearing
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
No abatement by reason of death after hearing
Notwithstanding anything contained in the foregoing rules, whether the cause of

action survives or not, there shall be no abatement by reason of the death of either
party between the conclusion of the hearing and the pronouncing of the judgment, but
judgment may in such case be pronounced notwithstanding the death and shall have
the same force and effect as if it had been pronounced before the death took place.
COMMENT.—
This rule makes a provision that there shall be no abatement on account of death of
either party between the conclusion of the hearing and the pronouncing of the
judgment, that is to say, that if the death of any party to suit occurs after the hearing is
over but before pronouncement of judgment in the suit, then provisions of rules 2, 3,
and 4 of O XXII will not apply.128 The word "hearing" appearing under the rule
contemplates the hearing in O XVIII and includes arguments. When something remains
to be done or furnished by either party to enable the Court to pronounce a judgment
and award a decree capable of execution then, as held by a Full Bench of Patna High
Court, the hearing under this rule cannot be said to be concluded.129
Where the arguments had already been heard and the judgment reserved by the time
when the party died, the decree passed by the Court against the deceased party will not
be nullity. There can be no abatement by reason of death of any party between the
conclusion of the hearing and the pronouncement of the judgment.130
Where the ejectment proceeding initiated by an agent of the landlord, the agent dies
during pendency of appeal and his legal representative is not substituted, it will not be
an impediment in the way of disposal since the matter has to be adjudicated by and on
behalf of the principal. The appeal does not abate.131
128 Baijnath v Tunkowati, AIR 1962 Pat 285.

129 Ram Khelawan Thakur v Emperor, AIR 1919 Pat 430 (FB).
130 NP Thirugnanaru v R Jagan Mohan Rao, AIR 1996 SC 116 : (1995) 5 SCC 115 .
131 Neki v Satnarain, AIR 1997 SC 1334 : (1997) 9 SCC 149 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Suit not abated by
marriage of female party
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Suit not abated by marriage of female party
(1) The marriage of a female plaintiff or defendant shall not cause the suit to
abate, but the suit may notwithstanding be proceeded with to judgment, and,
where the decree is against a female defendant, it may be executed against her
alone.
(2) Where the husband is by law liable for the debts of his wife, the decree may,
with the permission of the Court, be executed against the husband also, and, in
case of judgment for the wife, execution of the decree may, with such
permission, be issued upon the application of the husband, where the husband
is by law entitled to the subject-matter of the decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. When plaintiffs
insolvency bars suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
When plaintiffs insolvency bars suit
(1) The insolvency of a plaintiff in any suit which the assignee or receiver might
maintain for the benefit of his creditors, shall not cause the suit to abate,
unless such assignee or receiver declines to continue the suit or (unless for
any special reason the Court otherwise directs) to give security for the costs
thereof within such time as the Court may direct.
Procedure where ass1gnee fails to continue suit, or give security
(2) Where the assignee or receiver neglects or refuses to continue the suit and to
give such security within the time so ordered, the defendant may apply for the
dismissal of the suit on the ground of the plaintiffs insolvency, and the Court
may make an order dismissing the suit and awarding to the defendant the
costs which he has incurred in defending the same to be proved as a debt
against the plaintiff's estate.
COMMENTS.—
Abatement is not dismissal.—
The abatement does not amount to dismissal of appeal on merit, it would amount only
to suspension of proceedings as court cannot proceed with appeal in the absence of
proper parties. If sufficient cause is shown for delay in bringing on record legal
representatives of deceased party, the delay can be condoned, order of abatement set
aside and suspended proceedings resumed.132
132 Baptist Mascarenhas v NoelFC Pinto, 2009 (1) Kar LJ 341 (345) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Effect of abatement or
dismissal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Effect of abatement or dismissal
(1) Where a suit abates or is dismissed under Order, no fresh suit shall be brought
on the same cause of action.
(2) The plaintiff or the person claiming to be the legal representative of a

deceased plaintiff or the assignee or the receiver in the case of an insolvent
plaintiff may apply for an order to set aside the abatement or dismissal; and if
it is proved that he was prevented by any sufficient cause from continuing the
suit, the Court shall set aside the abatement or dismissal upon such terms as
to costs or otherwise as it thinks fit.
(3) The provisions of Section 5 of the 133Indian Limitation Act, 1877 (XV of 1877),
shall apply to applications under sub-rule (2).
134 [Explanation. —Nothing in this rule shall be construed as barring, in any
later suit, a defence based on the facts which constituted the cause of action in
the suit which had abated or had been dismissed under this Order.]
COMMENT.—
This rule prohibits the institution of a fresh suit on the same cause of action where a
suit abates or is dismissed under this order. But in this connection it is important to
note, as held by a Full Bench of Calcutta High Court that an order of dismissal on the
ground that the suit of the appeal has abated or has not the same effect as res judicata
and, therefore, does not bar the party from setting up his right on same cause of action
in a suit based on title or possession otherwise than as plaintiff.135
Delay to be condoned if it was not mala fide.—
If there is nothing to show that delay was mala fide, intentional or any dilatory tactics
was adopted, it was held that such a delay was to be condoned and the abatement of
appeal set aside.136
An application for the substitution of the legal representatives of the deceased

appellant was made with a delay of 15 days. The delay was because of illness of the
appellant who looked after appeal. A medical certificate was produced explaining the
delay. The application was entitled to be allowed.137
In an appeal pending before a High Court, the heirs are not expected to keep a watch
on the continued existence of the parties to the appeal. More so, the High
Court has a seat far away from the parties' residences in rural areas. So, the delay in
filing the petition to implead the legal representatives should be condoned.138
Condonation of delay, liberal attitude.—
Different considerations arise in the matter of condoning the delay in filing an

application for setting aside an abatement upon condonation of delay in a suit and an
appeal. It is neither in doubt nor in dispute that such applications should be considered
liberally. The court should take more liberal attitude in the matter of condonation of
delay and in filing such an application.139
Where applicants are illiterate villagers, no motive can be imputed to them for delay in
seeking substitution of heirs and legal representatives of deceased defendant. In such
case, liberal approach should be adopted for the condonation of delay.140
Extent of abatement of appeal.—
The extent of abatement of appeal should not be decided merely on the format of the
decree under challenge or it being one or the manner in which it was dealt with before
or by the Court which passed it.141
Appeal does not abate as a whole.—
In an appeal by a municipal board against several defendants for accounts, abatement

of appeal against one respondent for death during pendency of appeal does not abate
the appeal as a whole. The remaining respondents can be individually sued for
rendering accounts and for recovery of the amount due from them.142
Doctrine of merger not to apply on appeal against dead person.—
If the appellant dies during the pendency of the second appeal and judgment in second
appeal is passed in ignorance without bringing the legal representatives on record then
the judgment in second appeal being against a dead person shall be nullity. The
doctrine of merger will not apply and the judgment of the second appellate Court will
not merge in the judgment passed by the first appellate Court which shall be final and
executable.143
Abatement of appeal against one or other party, not to result in abatement of

appeal in entirety.—
Abatement of appeal in High Court against one or other of appellants would not result
in abatement of appeal in entirety. It will not render it liable to be dismissed as not duly
or properly constituted or not possible to be proceeded with.144
Whole appeal not to abate, if one of donees died.—
Where one of the donee of specific items of properties under gift deed died and his
legal representatives are not brought on record within reasonable time, the appeal
stands abated only in respect of properties given to deceased under gift deed. It will
not abate the whole appeal.145
On the death of one of appellants, no abatement, if suit is filed in

representative capacity.—
If a suit is filed in a representative capacity, then there can be no abatement on the

death of any one of the plaintiffs or the appellants. The only Article 137 of the
Limitation Act would be applicable. Within the period set out therein an application for
impleadment can be made as no particular provision is made therein as to the period
within which such an application can be filed.146
Where the lower Court has awarded a decree on a ground common to all the plaintiffs
or all the defendants, and all the plaintiffs or defendants as the case may be have
preferred an appeal and one of the appellants dies and his legal representative has not
been brought on record then the appellate Court has no power to reverse or vary the
decree in favour of all the plaintiffs and defendants under rule 4 of O XLI.147 But the
position would be quite different, as held by the Supreme Court of India, where appeal
has been preferred by some only the plaintiffs or defendants making other respondents
and one of the respondents dies. The appeal does not abate and appellate Court has
power to modify or reverse the decree in favour of all the parties in the suit in lower
Court under rule 4 of O XLI. Dealing with the expression "Sufficient Cause" as appearing
under this rule the Supreme Court of India has observed that this expression is to be so
construed so as to advance substantial justice.148 Where the party applying for setting
aside an abatement is a State, it is not entitled to a more liberal construction of the
expression "sufficient cause".149
Sufficient cause, meaning of.—
The expression "sufficient cause" implies the presence of legal and adequate reason.
The word "sufficient" means adequate enough as much as may be necessary to answer
the purpose intended. The sufficient cause should be such as it would persuade the
court, in exercise of its judicial discretion, to treat the delay as an excusable one.150
An application under O XXII, rule 9(2) for setting aside abatement of suit was made
beyond the prescribed period. The trial Court holding that the plaintiff was prevented by
the sufficient cause from continuing the suit allowed the suit. In revision the High Court
disagreed with the subordinate judge and held that the plaintiff had entirely failed to
make out any good cause for the delay. The High Court fell in error in interfering with
that finding the fact arrived at by the subordinate Court with respect to appellants
having sufficient cause for not applying for setting aside of the abatement within
time.151
Mere allegation about belated knowledge of death of opposite party is not sufficient.
Reasons for non-knowing of death within reasonable time must be stated. The factors
must be considered in deciding the question.152
Second appeal is incompetent if first appeal abates.—
an appeal abates there is no decree under section 2(2) of Code of Civil Procedure and a
second appeal against such an order is, therefore, incompetent. An order refusing to
set aside abatement under O XXII rule 9(2) is appealable under O XLIII rule 1(k). No
further appeal is provided against last order. The provision under section 100 is not
applicable to an order under O XLIII rule 1(k).153
Abatement, application for setting aside of.—
The provisions under rule 9 of O XXII of the code cannot be so construed as to make it
redundant. Liberal construction cannot be equated with doing injustice to other party.
The delay cannot be condoned where an application to set aside abatement was filed
belatedly and the ground raised for condonation of delay was not sufficient and was
unbelievable.154
Abatement due to non-substitution of heirs.—
Ordinarily, when the estate is sufficiently represented by other heirs, then the question
of abatement may not assume any importance but where it appertains to claim for
specific performance of oral agreement to sell of immovable property then on account
of non-substitution of the heirs of the necessary party the proceeding shall abate.155
No abatement if no proper notice of death.—
In a suit for recovery by bank, the bank customer died. The notice of his death was
given to the branch other than the plaintiff's branch. It does not constitute notice to the
plaintiff's branch. Notice to one branch of a bank is no notice to the other branches.
Hence no abatement.156
The explanation has been added to this rule newly in order to provide that abatement or
dismissal of the suit should not operate as res judicata.
The prayer by one of the plaintiffs for setting aside of abatement of suit can be
construed as prayer for setting aside abate of suit in its entirety. Opinion of the trial
judge allowing prayer and his finding on question of availability of "sufficient cause"
within the meaning of O XXII, rule 9(1) and section 5 of Limitation Act should be given
weight. It would not be normally interfered with by superior jurisdiction.157
Effect of non-substitution of parties.—
Order declaring decree to be nullity on ground of non-substitution of parties is liable to

be set aside.158
Second suit after abatement- maintainable.—

The previous suit for partition abated due to death of plaintiff therein. Subsequent suit
was filed by son of deceased plaintiff for his independent claim of being co-sharer in
joint family property. So long as there has been no division of joint property by actual
delivery of allotment of shares to the co-sharers, a fresh suit for partition cannot be
held to be barred under O XXII rule 9 of the Code of Civil Procedure.159
133 See Limitation Act, 1963 (36 of 1963), Ss. 4 and 5.

134 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 73, (w.e.f. 1-21977).
135 Santosh Kumar v Nanda Lal, AIR 1969 Cal 289 .
136 Ram Nath Sao v Gobardhan Sao, AIR 2002 SC 1201 : (2002) 3 SCC 195 .
137 Mani Ram v Hari Singh, AIR 1992 SC 1851 (1854) : (1992) 3 SCC 501 .
138 Sital Prasad Saxena v UOI, AIR 1985 SC 1 : (1985) 1 SCC 163 .
139 Katari Suryanarayana v Kappisethi Subba Rao, (2009) 11 SCC 183 (187) : AIR 2009 SC 2907 .
140 Raghuveer Pd v Vishnu Dutt, 2011 AIR CC 1206 (1208) (All).
141 S Amarjit Singh Kalra v Parmod Gupta, AIR 2003 SC 2588 (2607); see also Jhingan Singh v
Singheshwar Singh, AIR 1975 SC 733 ; Jhanda Singh v Gurmukh Singh, AIR 1962 SC 89 .
142 Municipal Board, Lucknow v Pannalal, AIR 1976 SC 1091 : (1976) 3 SCC 85 .
143 Amba Bai v Gopal, AIR 2001 SC 2003 (2007) : (2001) 5 SCC 570 .
144 S Amarjit Singh Kalra v Pramod Gupta, AIR 2003 SC 2588 (2611) : (2003) 3 SCC 272 .
145 Balwant Singh v Daulat Singh, AIR 1997 SC 2719 (2721) : (1997) 7 SCC 137 .
147 Rameshwar Prasad v Shambehar, AIR 1963 SC 1901 .
148 UOI v Ram Charan, AIR 1964 SC 215 .
149 UOI v Ram Charan, AIR 1964 SC 215.
150 Balwant Singh v Jagdish Singh, (2010) 8 SCC 685 (698).
151 Manindra L&B Corpn v Bhutnath Banerjee, AIR 1964 SC 1336 (1340) : (1964) 3 SCR 495 ; see
also Joy Chand Babu v Kamalaksha Chaudhury, AIR 1949 PC 239 ; Keshardeo v RK Chamaria, AIR
1953 SC 23 .
153 Madan Naik v Hansubala, AIR 1983 SC 676 (679) : (1983) 3 SCC 15 .
154 Balwant Singh v Jagdish Singh, AIR 2010 SC 3043 (3052).
155 Kabita Sen v Kanak Lata Choudhary, 2008 (3) Pat LJR 99 (100) (DB).
156 United Bank of India v Kanan Bala Devi, AIR 1987 SC 1510 (1512) : (1987) 2 SCC 583 .
157 Mithailal Dalsangar Singh v Annabai Devram Kini, AIR 2003 SC 4244 (4247).
158 Hari Pd Bhuyan v Durga Pd Bhuyan, AIR 2008 SC 1202 .
159 Arjuna Mohapatra v Dhaneshwara Mohapatra, AIR 2013 Ori 187 .

assignment before final order in suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Procedure in case of assignment before final order in suit
(1) In other cases of an assignment, creation or devolution of any interest during

the pendency of a suit, the suit may, by leave of the Court, be continued by or
against the person to or upon whom such interest has come or devolved.
(2) The attachment of a decree pending an appeal therefrom shall be deemed to

be an interest entitling the person who procured such attachment to the benefit
of sub-rule (1).
COMMENT.—
The present rule being a residuary one makes a provision for cases of assignment,
creation and devolution of interest other than those dealt with under rules 2,3,4,7 and 8
of this Order.160
This rule is grounded on the principle, as held by a Full Bench of Travancore Cochin
High Court that the trial of the suit should not be arrested because of the devolution of
the interest of a party, in the subject matter of the suit and that if the person acquiring
the interest so desires may continue the suit with the permission of the Court to law.
Where, however, he does not do so, the Court may proceed with the original party and
the decision will be binding on the party acquiring the interest. He can also have the
benefit of the decree as the case may be.161 Even if stricto sensu an application would
not fall under this rule yet section 146 would certainly enable one to maintain the
application in certain circumstances.162
A bare reading of the provisions of O XXII, rule 10 makes it clear that the legislature has
not envisaged the penalty of dismissal of the suit or appeal on account of failure of the
assignee to move an application for impleadment and to continue the proceedings.
Thus, there cannot be dismissal of the suit or appeal as the case may be on account of
failure of the assignee to file an application to continue the proceedings. It would be
open to the assignor to continue proceedings notwithstanding the fact that he ceases
to have any interest in the subject matter of dispute. He can continue proceedings for
the benefit of assignee. The question is no more res Integra163
Order XXII, rule 10 is an enabling provision and therefore independent of O I, rule 10.
Under this provision; court can add transferee pendente lite as party. Even though the
defendant has made an application for impleadment only under O I, rule 10.164
Merely due to the assignment or release of the rights during the pendency of the
appeal, the appellant did not in any manner lose the right to continue the appeal. Even if
no step is taken by the assignee, the suit may be continued by the original party and the
person upon whom the interest has devolved will be bound by the decree, particularly
when such party had the knowledge of the proceedings.165
State of affair's is presumed to exist.—
In a suit for partition, the trial Court restrained all parties from alienating or otherwise
transferring any part of the properties. A party assigned his right under the preliminary
decree to another. In such a case, the assignee cannot be impleaded in the
proceedings. When the Court intends a particular state of affairs to exist while it is in
seisin of a lis, that state of affairs is not only required to be maintained but it is
presumed to exist till the Court orders otherwise. The assignment is to be taken as
having not taken place at all.166
This rule applies to appeals also where the devolution takes effect during the pendency
of the appeal. Thus, for instance, as held by the Supreme Court of India, where the
death of the pre-emptor pending second appeal occurs, and his legal representative
has been substituted under O XXIL, rule 1, read with this rule as representing the estate,
such substitution is proper.167 It would be proper to note here that no abatement takes
place under this rule.168 The rule deals with substitution of a new party and not
addition.
Where a property was sold by the defendants during pendency of a suit for declaration
of the title and the suit continued with the original party, the transferee would continue
to be bound by the decree particularly when she had knowledge of pendency of suit.169
No need to bring legal representatives on record.—
Where before death, the parties sold their respective shares by registered sale deeds in
favour of other respondents, under the provisions of this rule their respective interest
devolved by transfer on the other respondents who are already on record, there is no
need to bring the legal representatives of the deceased on record or to transpose them
as legal representatives.170
Daughter not held legal representative of the widow.—
A widow in compromise proceedings expressly stated that she would be satisfied to

maintain her life estate in a separate and demarcated portion of the house in which she
was living. In final stage no property or interest in coparcenary was left behind widow.
Her daughter, though class I legal heir, cannot became legal representative of the
widow under this rule nor under O IX, rule 4 Code of Civil Procedure.171
Plaintiff or any person may pray for leave to continue suit.—
If interest devolves during the pendency of a suit then the suit may be continued by
leave of the Court. The prayer for leave can be made not only by the person upon whom
interest has devolved but also by the plaintiff or any other party or person
interested.172
As regards the Court which can grant the leave under this rule as held by the Supreme
Court of India, is the Court in which the matter was pending at the time of assignment,
creation or devolution of interest.173
This rule will apply only when the assignment, creation or devolution of an interest
takes place during the pendency of the suit. The pendency of the suit begins right from
the institution of the suit and continues till the final decree is not passed, and therefore,
the rule is applicable if the assignment, creation or devolution of interest takes effect
after preliminary decree but before final decree is made.174 Moreover, as held by the
Supreme Court of India, where, however, the assignee did not make the application
during the pendency of the suit, he will not thereby be debarred from filing an appeal
from the decree as a person claiming under a party under the provisions of section
146.175 Again such an application cannot be made as a matter of the right by the
assignee. The leave of the Court must be obtained, and the granting of the leave as
held by a Full Bench of Patna High Court is discretionary and it should be exercised
judicially.176
Assignee is entitled to be brought on record.—
The assignee of rights during the pendency of suit has right to be impleaded as party
by stepping into shoes of his 177assigner.
The Supreme Court had the opportunity to interpret Rule 10. It was held in Rikha Dev v
Som Dass, AIR 1975 SC 2159 (2161) : (1976) 1 SCC 103 as follows:
This rule is based on the principle that trial of a suit cannot be brought to an end merely
because the interest of a party in the subject-matter of the suit has devolved upon another
during the pendency of the suit but that suit may be continued against the person acquiring
the interest with the leave of the Court. When a suit is brought by or against a person in a
representative capacity and there is a devolution of the interest of the representative, the
rule that has to be applied in Order XXII, Rule 10 is not confined to devolution of interest of a
party by death; it also applies if the head of the muth or manager of the temple resigns his
office or is removed from office. In such a case the successor to the head of the muth or to
the manager of the temple may be substituted as a party under this rule. The word 'interest'
which is mentioned in this rule means interest in the property i.e., the subject-matter of the
suit and the interest of the person who was the party to the suit.178
Assignee of rights.—
There was no obligation on assignee to come on record. Assignors were aware that
they had assigned their rights and liabilities in suit properties. The fact of such
assignment was not brought on record by assignors in pending suits. The suits not
being "continued" but were being brought to end as far as assignors were concerned.
Assignee's choice in not to apply for leave under rule 10 could not be construed as
having been made with an ulterior motive to defraud assignors.179
It has been held by the Supreme Court in Ghafoor Ahmad Khan v Bashir Ahmad Khan,
AIR 1983 SC 123 (124) : (1982) 3 SCC 486 that "during the life of the sole respondent,
there was transfer of the property (subject-matter of appeal) by way of a gift to his wife.
In other words, it is a case of devolution of interest and the case falls under O XXII, rule
10 of Code of Civil Procedure and there will be no question of abatement.
Impleadment of necessary party only.—

Impleadment under O XXII, rule 10 cannot be allowed if party is not a necessary party
to suit.180
160 Baijnath v Tunkowati, AIR 1962 Pat 285 (FB).

161 Chacko Pyli v Varghese, AIR 1956 Trav Co 147 (FB) : (1955) TC 828.
163 Sharadamma v Mohammad Pyrejan, AIR 2015 SC 3747 .
164 Thomson Press (India) Ltd v Nanak Builders and Investors (P) Ltd, AIR 2013 SC 2389 .
165 Sharadamma v Mohd Pyrejan, (2016) 1 SCC 730 : 2015 (10) SCJ 642 : 2015 (10) SCALE 22 :
AIR 2015 SC 3747 .
166 Surjit Singh v Harbans Singh, AIR 1996 SC 135 : (1995) 6 SCC 50 .
167 Hazari v Neki, AIR 1968 SC 1205 : (1968) 2 SCR 833 : 70 Punj LR 823.
168 Baijnath v Tunkowati, AIR 1962 Pat 285 (FB).
169 Jaskirat Datwani v Vidyavati, AIR 2002 SC 2180 : (2002) 5 SCC 647 : (2002) 98 DLT 6 .
170 PPK Gopalan Nambiar v PPK Balakrishnan Nambiar, AIR 1995 SC 1852 : 1995 Supp (2) SCC
664 .
171 Rajeshwari Prasad Singh v Shashi Bhushan Prasad Singh, AIR 1996 SC 181 (183) : (1995) 5
SCC 579 .
534 .
173 Commr Kamrup (Dy) v Durganath, AIR 1968 SC 394 : (1968) 1 SCR 561 .
174 Bapu v Gulab Chand, AIR 1929 Nag 142 (FB).
175 Saila Bala v Nirmala Sundari, AIR 1958 SCC 394 : 1958 SCR 1287 : 1958 MPLJ 473 .
176 Baij Nath v Tunkowati, AIR 1962 Pat 285 (FB).
177 Gurdev Singh v Amarjit Singh, AIR 2011 P&H 77 (80); Jagdish Chander v Om Piari, 2008 (4)
RCR (Civil) 56 , relied on.
178 AIR 1975 SC 2159 : (1976) 1 SCR 487 : (1976) 1 SCC 103 at p 106 paras 8 & 9.
179 Amteshwar Anand v Virendra Mohan Singh, AIR 2006 SC 151 (160).
180 Shahzad Ah Khan v Mohd Ahmad, 2008 AIHC 2230 (2232-33 ) (All-DB) : 2008 (3) ALJ 191
(All-DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10A. Duty of pleader to
communicate to Court death of a party
© 2020 LexisNexis
THE FIRST SCHEDULE
181[R. 10A.
Duty of pleader to communicate to Court death of a party
(1) Whenever a pleader appearing for a party to the suit comes to know of the
death of that party, he shall inform the Court about it, and the Court shall
thereupon give notice of such death to the other party, and, for this purpose,
the contract between the pleader and the deceased party shall be deemed to
subsist.]
COMMENT.—
Order XXII, rule 10-A casts a duty on the respondent's counsel to inform the court about
deceased respondent and when death of the respondent is reported and recorded in
the order/proceedings and the appellant has notified, appellant cannot plead
ignorance.182
The newly added rule 10-A has made obligatory on the part of the pleader to inform the
Court about the death of his client and for this purpose the contract between the
pleader and party should be deemed to subsist.
Death of party, Advocate to intimate Court.—
There is no obligation cast on the part of the Advocate appearing on behalf of the
deceased party to intimate or furnish any list of legal representatives of the deceased.
The duty cast on him is to communicate to court death of party represented by him.
This rule is directory only and not mandatory.183
Plea regarding Applicability.—
A question regarding applicability of O XXII rule 10A not raised before High Court is not
permissible to be raised for the first time in special leave petition under Article 136 of
the Constitution.184
182 Perumen B Devaswam v Bhargavi Amma, (2008) 8 SCC 321 (331).
183 Gurjala Bharthi v Vindhya Corpn, 2007 (5) ALT 600 (607) (DB).
184 T Gnanavel v TS Kanagaraj, AIR 2009 SC 2367 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Application of Order to
appeals
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Application of Order to appeals
In the application of this Order to appeals, so far as may be, the word "plaintiff' shall
be held to include an appellant, the word "defendant" a respondent, and the word "suit"
an appeal.
[AP, C, GAU, K, M]
Calcutta (Notfn No 10428-G, of 25-7-1928).— Add the following proviso.—
"Provided always that where an Appellate Court has made an order dispensing with
service of notice of appeal upon legal representatives of any person deceased under
Order XLI, rule 14(5), the appeal shall not be deemed to abate as against such party
and the decree made on appeal shall be binding on the estate or the interest of such
party". (25-7-1928)

dated 9-6-1959.
After rule 11, the following rule shall be added, namely:—
"11A. Entry on the record of the name of the representative of a deceased appellant or
respondent in a matter pending before the High Court.—
The entry on the record of the name of the representative of a deceased appellant or
respondent in a matter pending before the High Court in its appellate jurisdiction,
except in cases under appeal to the Supreme Court, may be performed by the Registrar,
provided that contested applications and applications presented out of time shall be
posted before a Judge for disposal." (9-6-1959)
Madras (Dis No 1601 of 1914).— Add the following as new rule 11A:—
"11A. The entry on the record of the name of the representative of a deceased
appellant or respondent in a matter pending before the High Court in its appellate
jurisdiction, except in cases under appeal to the [Supreme Court], shall be deemed to
be a quasi-judicial act within the meaning of Section 128(2)(i) of the Code of Civil
Procedure and may be performed by the Registrar, provided that contested applications
and applications presented out of time shall be posted before a Judge for disposal."
COMMENT.—
The object of the provisions contained in this rule is to make the previous rules
applicable to appeals as far as possible.185 Dealing with the effect of omission to
implead the legal representatives of a deceased respondent on the other respondent in
the appeal, the Supreme Court of India has laid down the law that where the nature of
the case is such that the appeal cannot proceed against the remaining respondents, in
the absence of a legal representative of the deceased respondent, for the simple
reason that if appeal is allowed to proceed there will be two contradictory decrees in
same litigation on the same subject-matter then partial abatement would cause the
failure of the appeal in its entirety.186 It is clear from the combined reading of rules 3, 4
and 11 of O XXII that the doctrine of abatement is applicable equally to a suit as well as
to an appeal.187
All the three appellants died, the legal representative of one of them was already on
record. The legal representative of the second was brought on record in time. The delay
in filing the application to bring on record the legal representative of the third can be
condoned.188
In an appeal against decree for partition any delay in filing application for substitution
of legal representatives should be condoned and application be allowed.189
Decree being joint entire appeal abates.—
In an appeal against decree in a pre-emption suit one of the appellants died, pending
appeal. His legal representatives were not brought on record. The decree being joint
one, the whole appeal abates.190
An appeal was pending before the Supreme Court. One of the respondents (plaintiffs)
died during pendency of the appeal. The appellant failed to bring on record the legal
representatives of the deceased respondent. The appeal would abate.191
If legal representative already on record, no application is required.—
Where the legal representatives are already on record in a suit or appeal (in another
capacity) no formal application for the substitution is necessary.192
Legal representative to be impleaded to defend the decree.—
Where a suit for defamation is dismissed and the plaintiff filed an appeal, his right to
sue does not survive on his death and his legal representative has no right to be
brought on record. If the suit was decreed and pending the appeal, the plaintiff died,
then the legal representative has got a right to be impleaded to defend the decree.193
185 JC Chatterjee v Sri Kishan, AIR 1972 SC 2526 : (1972) 2 SCC 461 : (1973) 1 SCR 850 ; Baij
Nath v Tunkowati, AIR 1962 Pat 285 (FB).
186 RP Gupta v Murli Prasad, AIR 1972 SC 1181 : (1973) 2 SCC 9 : (1973) 1 SCR 63 .
187 Ramagya Prasad Gupta v Murli Prasad, AIR 1972 SC 1181 (1185); see also State of Punjab v
Nathu Ram, AIR 1962 SC 89 : (1962) 2 SCR 636 .
188 Piara Singh v Natha Singh, AIR 1991 SC 1529 : 1991 Supp (2) SCC 289 .
189 Nagina Singh v Naga Singh, AIR 2002 SC 3028 .
190 Ram Sarup v Munshi, AIR 1963 SC 553 (556) : (1963) 3 SCR 858 .
191 Madhi v Mahanbai, AIR 1972 SC 1455 : (1973) 3 SCC 185 .
192 Mohd Arif v Allah Rabbul Alamin, AIR 1982 SC 948 : (1982) 2 SCC 455 .
193 Melepurath v Thekittil, AIR 1986 SC 411 (413) : (1986) 1 SCC 118 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Application of Order to
proceedings
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Application of Order to proceedings
Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or

order. [A, OR].
[Rule amended in Allahabad and Orissa.]
Allahabad (Notfn No 584/35 (a)—(2); 7-2-1921).—Add at the end:—"or to proceedings in

the original Court taken after the passing of the preliminary decree where a final decree
also requires to be passed having regard to the nature of the suit".
Orissa (Notfn No 24-X-7-52; 30-3-1954).—Add at the end before the period:—
"or to proceedings in the original Court taken after the passing of the preliminary
decree where having regard to the nature of the suit, a final decree is required to be
passed". (7-5-1954)
COMMENT.—
This rule makes a provision that nothing contained in rules 3, 4 and 8 shall apply to
execution proceedings either of a decree or order and with this rule the controversy has
been set at rest on the question whether provisions relating to abatement of suits and
appeals to execution proceedings. In a Full Bench decision, the Madras High Court held
that provisions relating to abatement do not apply to execution proceedings194 and the
present rule affirms the law laid down in this case. However, that does not mean that
no substitution is Permissible under execution proceedings.195 An application cannot
be deemed to be a step in aid of execution.196 In this connection, however, it is
important to note that this rule is not applicable to appeals against orders made in
execution proceedings and such appeals are subject to same rules with regard to
abatement as any other appeal.197 However, the Patna High Court has taken a contrary
view.198 Dealing with the insolvency of a party during the pendency of a proceeding in
execution, a Full Bench of Madras High Court has held that such insolvency does not
preclude him from continuing the proceedings and rule 8 is not applicable to execution
proceedings.199
Applicability in execution appeals.—
The provisions of O XXII are attracted to execution appeals filed in Supreme Court by
virtue of O XVI, rule 14-A of Supreme Court rules.200
No limitation period for bringing legal representatives on record.—
Death of the decree-holder or the judgment-debtor does not result in abatement of

execution of petition. No limitation period is prescribed for bringing on accord the legal
representatives of the deceased. They can come on record at any time.201
194 Venhatachalam v Rama Swamy, AIR 1932 Mad 73 (FB).

195 Venhatachalam v Rama Swamy, AIR 1932 Mad 73 (FB).
196 Ibid.
197 Ajudhia Prasad v Sham Sunder, AIR 1947 Lah 18 (FB).
198 Hakeem Syed v Fateh Bahadur, AIR 1929 Pat 566 (FB).
199 Subbaraya v Virappa, AIR 1933 Mad 851 (FB).
200 Srichand v Jagdish Chand, AIR 1966 SC 1427 (1430) : (1966) 3 SCR 451 : 68 PLR (D) 291.
201 V Uthirapathi v Ashrab Ali, AIR 1998 SC 1168 (1171) : (1998) 3 SCC 148 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Withdrawal of suit or
abandonment of part of claim
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXIII Withdrawal and Adjustment of Suit
1[R. 1.
Withdrawal of suit or abandonment of part of claim
(1) At any time after the institution of a suit, plaintiff may as against all or any of
the defendants abandon his suit or abandon a part of his claim:
Provided that where the plaintiff is a minor or other person to whom the
provisions contained in rules 1 to 14 of Order XXXII extend, neither the suit nor
any part of the claim shall be abandoned without the leave of the Court.
(2) An application for leave under the proviso to sub- rule (1) shall be
accompanied by an affidavit of the next friend and also, if the minor or such
other person is represented by a pleader, by a certificate of the pleader to the
effect that the abandonment proposed is, in his opinion, for the benefit of the
minor or such other, person.
(3) Where the Court is satisfied,—
(a) that a suit must fail by reason of some formal defect, or
(b) that there are sufficient grounds for allowing the plaintiff to institute a
fresh suit for the subject-matter of a suit or part of a claim,
it may, on such terms as it thinks fit, grant the plaintiff permission to

withdraw from such suit or such part of the claim with liberty to institute
a fresh suit in respect of the subject-matter of such suit or such part of
the claim.
(4) Where the plaintiff—
(a) abandons any suit or part of claim under sub-rule (1), or
(b) withdraws from a suit or part of a claim without the permission referred
to in sub-rule (3),
he shall be liable for such costs as the Court may award and shall be
precluded from instituting any fresh suit in respect of such subject-
matter or such part of the claim.
(5) Nothing in this rule shall be deemed to authorise the Court to permit one of
several plaintiffs to abandon a suit or part of a claim under sub-rule (1), or to
withdraw, under sub-rule (3), any suit or part of a claim, without the consent of
the other plaintiffs.]

1967. In Rule 1 add the following as sub-rule (5):—
"(5) Where the plaintiff in a suit instituted or conducted under the provisions of Rule 8
of Order I of this Code or all plaintiffs therein if there are more plaintiffs than one, apply
for permission to withdraw the suit, notice of such application shall be given in the
manner prescribed by sub-rule (3) of Rule 8 of Order I of this Code for issue of notice of
institution of the suit, and the cost of such notice shall be borne by the plaintiff or the
plaintiffs, as the case may be. If upon such application being made a defendant in the
same suit having the same interest as that of the plaintiff's applies for permission to be
transposed as plaintiff to conduct the suit further, he shall be permitted to do so and
the plaintiff's application dismissed." ROC No. 2529/1959, dated 9-2- 1967.
Orissa (Notfn No 24-X-7-52; 30-3-1954).—In sub-rule (1) after the words "at any time
after the institution of suit and preceding the word 'the plaintiff" insert "but not after the
passing of the preliminary decree in the suit". (7-5-1954)
COMMENT.—
Nature and effect of.—
An order permitting withdrawal passed without any adjudication does not constitute a
decree under section 2(2) of the code. It cannot debar the plaintiffs, withdrawing the
suit from taking a defence in a second round of litigation in respect of subject matter in
respect of which suit was withdrawn. It is only the provision in O XXIII, rule 1(3) which
precludes the plaintiff from filing fresh suit and not any principle of res judicata2
The principle under this rule is founded on public policy to prevent institution of suit
again and again on same cause of action. This is not same as the rule of res judicata.
This also discourages the litigant from indulging in bench haunting tactics.3
Any order in any proceeding passed during pendency of the suit by any court (including
the Supreme Court) would be without any legal efficacy with the withdrawal of the
suit.4
The rule has been amended to the effect that a suit cannot be withdrawn by the next
friend acting on behalf of the minor without the leave of the Court. It has also been
provided that where an application for such leave is made, it must be accompanied by
an affidavit of the next friend as a certificate of the pleader to the effect that the
withdrawal of the suit is for the minor's benefit.
Same subject-matter.—
The "subject-matter" in O XXIII, rule 1 means the bundle of facts which have to be
proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of
action and the relief claimed in the second suit are not the same as the cause of action
and the relief claimed in the first suit, the second suit cannot be considered to have
been brought in respect of the same subject matter as the first suit. Mere identity of
some of the issues in the two suits do not bring about an identity of the subject matter
in the two suits.5
Plaintiff has unqualified right to withdraw from suit.—
In a suit for rendition of accounts by the principal the issues were framed and some
evidence was recorded. No preliminary decree was passed. Such a suit could be
withdrawn by the plaintiff. The defendant could not insist that the plaintiff must be
compelled to proceed with the suit.6
Application to withdraw the suit can be permitted under inherent powers.—
Withdrawal of application to withdraw the suit can be permitted by the court under its
inherent power. Such power has to be exercised in accordance with law and the
purpose for which it is meant. The mere existence of a power does not justify the
exercise of the power. In the context of the powers of the judicial bodies, all powers are
required to be exercised with a view to secure ends of justice.7
If any vested right comes into existence before the prayer for withdrawal is made under
O XXIII, rule 1, then the Court is not bound to allow the withdrawal. This can happen
only in very limited circumstances, e.g., where a preliminary decree has been passed, a
set-off or counter-claim had been claimed or in a partition suit after the defendant has
signed the advantage of buying the share of the plaintiff in accordance with section 3
of the Partition Act.8
When there are two claims arising out of two contracts, the party can give up part of its
claims which relates to the first contract.9
The permission to withdraw a suit with liberty to file fresh suit on same or different
cause of action may be granted on the ground of non-pleading of a point.10
If a finding by the trial Court in favour of the defendant is nullified, then the permission
for withdrawal of suit should not be granted.11
Where a Court, in a writ petition, found that the signatures in the affidavit and
vakalatnama were different from the admitted signature, at that stage the petitioner
filed an application to withdraw the writ petition with permission to file a fresh petition
on the same cause of action, it was held that such a person should not be given any
permission to withdraw the case.12
In an eviction suit, application for amendment in plaint was rejected on the ground of
delay. Thereafter the plaintiff'sought withdrawal of suit with liberty to file fresh one so
as to incorporate all necessary details. It was held that submission made by plaintiff in
trial court that she had no personal knowledge of facts and circumstances of litigation
cannot be ground to deny the right to withdraw this suit with liberty to file a fresh one,
when the petitioner has definitely a right to file a fresh suit on the additional grounds as
well. To prevent multiplicity of the proceedings and in the interest of justice, the
application was allowed.13
The question whether there has been an abandonment of the claim by withdrawal of
the suit is a mixed question of law and fact. The language of the order for withdrawal
will not always be determinative. The background facts will necessarily have to be
examined for a proper and just decision.
The bar under O XXIII, rule 1 of the Code of Civil Procedure would apply only to a fresh
suit and not to proceedings under the Himachal Pradesh Public Moneys (Recovery of
Dues) Act, 1973.14
Maintainability of second revision petition.—
When the earlier revision petition was dismissed as not pressed, so also no liberty was
sought for filing fresh revision petition, therefore, the subsequent revision petition is not
maintainable.15
Suit for specific performance of contract was withdrawn by the pleader without
instructions from the plaintiff/vendee. The suit property was subsequently sold to the
son of the pleader. It was held that pleader had interest in the sale transaction, he being
Karta of the family. Thus, the withdrawal of the suit was done in bad faith. Therefore,
the suit was liable to be restored.16
Conditional withdrawal.—
The withdrawal of suit by unilateral request of plaintiff merely on the ground that
counsel for defendant did not raise any objection for the acceptance of request of
plaintiff for withdrawal, it cannot be said that withdrawal was, in any way, conditional.17
Legality of compromise must exist.—
A trial Court can entertain an application of the plaintiff for considering the question of
legality of compromise in suit. If the material on record shows that the compromise
was not lawful within the meaning of rule 3 of O XXIII then the order recording
compromise can be recalled.18
Satisfaction with reasons for granting permission.—
Where a suit is withdrawn with leave to file a fresh suit, at the second appeal stage, it is
the duty of a High Court to feel satisfied with the reasons for granting permission. It will
not be in compliance with the statutory mandate if it merely states that such grant shall
not be prejudicial to defendants.19
Where a decree passed by the trial court is challenged in appeal, it would not be open
to the plaintiff at that stage, to withdraw the suit so as to destroy that decree. The
rights which have come to be vested in the parties, to the suit under the decree, cannot
be taken away by withdrawal of the suit at that stage unless very strong reasons are
shown that the withdrawal would not affect or prejudice anybodies vested rights.20
Costs to be paid for fresh suit.—
Under this rule while granting permission to the plaintiff to withdraw the suit with liberty
to file a fresh suit, it is open to a Court to direct the plaintiff to pay the costs of the
defendants. If the fresh suit is instituted without paying costs, then the suit can be
dismissed only if the costs are not paid within reasonable time fixed by the Court
before which suit is filed.21
No fresh notice is required.—
A suit was filed against the Government after the notice duly issued under section 80.
The suit was withdrawn with the permission of the Court to file fresh suit. A fresh suit
was then filed. A fresh notice under section 80 before such suit is not necessary.22
Defect in withdrawal.—
In a suit for possession, non-joinder of co-owners as parties in suit is not a formal

defect. In such case the Court should not grant permission to withdraw the suit with a
liberty to file a fresh suit on same cause of action.23
Applicability to election petitions.—
The defect of non-joinder of necessary parties to the election petition cannot be cured
by amendment. The Election Tribunal has no power to grant such an amendment be it
by way of withdrawal or abandonment of a part of a claim or otherwise.24
Though O XXIII rule 1 did not apply, as the mortgagee could not be put to election, his
request for withdrawal of claim application should be granted. Specially when, the
withdrawal was sought to enable him to seek remedy available to him in law.25
Fresh suit barred.—
Where appellant withdrew the previous suit for specific performance and no leave was
granted by the High Court to file suit afresh. The subsequent suit for specific
performance without such liberty to file afresh was barred under the law.26
Counter claim barred.—
Counter claim filed by defendant for the restitution of conjugal rights before the court
below was barred by O XXIII, rule 1(4) of the code as admittedly prior to filing of
counter claim, defendant had filed a suit under section 9 of the Hindu Marriage Act.27
Leave of Court, required.—
Where second application is subsisting prior to withdrawal of first application, no leave

of court is required in such circumstances for filing of second application.28
Rule applies to Articles 226 and 136 of the Constitution.—
The ban under this rule to file a fresh suit in case of withdrawal of suit without
permission to file a fresh suit is based on public policy. This rule is applicable to writ
petitions under Articles 226 and 136 of Constitution of India.29
Withdrawal of withdrawal application.—
There is no express bar in filing an application for withdrawal of the withdrawal

application.30
Fresh suit, prayer for filing of.—
An application for withdrawal of suit was seeking liberty to file a fresh suit. The order
passed by the court was that "the application is, therefore, allowed while permitting the
plaintiff to withdraw the suit". This should be construed as an order also granting
liberty as prayed. The court cannot split the prayer made by the applicant.31
No application of this rule.—
This rule has no application in a proceeding for recovering the suit premises on the
ground of bona fide requirement which is a recurring cause. This rule precludes the
plaintiff from instituting any fresh suit in respect of such subject matter or such part of
the claim which he has withdrawn.32
Where workman withdraw the writ petition without permission to file fresh petition with
the object to pursue alternative efficacious remedy before the Labour Court, the
withdrawal would not operate as res judicata as the writ petition was not adjudicated
on merits. Principle embodied in O XXIII, rule 1 would not be applicable in case of this
nature.33
A divorce decree based on compromise was held to be void as not falling within four
corners of law as required by statute. It was set aside by High Court. The High Court,
however, held a part of compromise namely, the wife foregoes maintenance for taking
her son with her to be valid. It was not proper. Both the compromise and the part of
compromise would go. The maintenance application filed by the wife can not be
rejected.34
Power of Court after withdrawal of appeal becomes functus officio.—
The power of appellate court after grant of permission for withdrawal of appeal
becomes functus officio35
Recalling order permitting withdrawal.—
There is no specific provision in the Code providing for filing application for recalling
order permitting withdrawal of, suit.36
When defects found to be of form and not of substance - withdrawal

permissible.—
Plaintiff may be permitted to withdraw the suit with liberty to file afresh only if, the
defects are found to be of form and not of substance. The defects shown in the
application are of substance and not of form. Whether the suit property belongs to the
larger plot of land as described in the application and whether the suit land was the
individual property of the defendant are the matters of fact which can be decided by
leading evidence. At least it can be said that such aspects of the matter are not beyond
the realm of "formal defects." Such shift in the stand of the plaintiff in regard to
disclosure of material facts does not even fall in the analogous nature of the formal
defect and that being the position, it is not apparently covered by "sufficient grounds"
as mentioned in O XXIII, rule 1(3)(b) of the Code of Civil Procedure. Even "sufficient
grounds" appearing in O XIII, rule 1(3)(b) has to be in the trappings of formal defect.37
1-21977).
2 Kandapazha Nadar v Chitraganiammal, (2007) 7 SCC 65 (69).
3 Sarguja Transport v State Transport Appellate Tribunal, AIR 1987 SC 88 (91) : (1987) 1 SCC 5 :
1987 SCC (Cri) 19 .
4 Messer Holdings Ltd v Shyam Madanmohan Ruia, AIR 2016 SC 1948 : 2016 (4) SCALE 224 :
(2016) 11 SCC 484 : 2016 (6) SCJ 273 .
5 Ballabh Das v Dr Madan Lal, AIR 1970 SC 987 (989) : (1970) 1 SCC 761 .
6 Hulas Rai Brij Nath v KB Boss & Co, AIR 1968 SC 111 : (1968) 3 SCR 886 : 11 Law Rep 38.
7 Rattan Bai v Ram Das, AIR 2012 SC 1476 .
8 R Ramamurthi v V Rajeshwararao, AIR 1973 SC 643 (647, 650) : (1972) 2 SCC 721 .
9 National Agricultural Coop Marketing Federation of India Ltd v Alimenta SA, AIR 1989 SC 818
(820) : 1989 Supp (1) SCC 308 .
10 Beniram v Gaind, AIR 1982 SC 789 : (1981) 4 SCC 209 .
11 Executive Officer vR Sathyamoorthy, AIR 1999 SC 958 : (1999) 3 SCC 115 .
12 Dy General Manager ISB v Sudarshan Kumari, AIR 1996 SC 1894 : (1996) 3 SCC 763 .
13 Yangzila Bhutiani v Naurantanmal Ashok Kumar, AIR 2013 Sik 12 .
14 HP Financial Corporation v Anil Garg, AIR 2017 SC 1953 : 2017 (4) SCALE 95 : (2017) 14 SCC
634 : 2018 (6) SCJ 1 .
15 Patrisha Sympli v Nandita Das, AIR 2014 Meg 13 .
16 Savita Somnath Patil v Zingaraji Bajaba Misal, AIR 2014 Bom 10 .
17 Pushpa Devi v Rajeev Kharbanda, AIR 2011 P&H 83 (86).
.
19 KS Bhoopathy v Kokila, AIR 2000 SC 2132 (2135) : (2000) 5 SCC 458 .
20 Avenue Supermarts (P) Ltd v Nishint Bhalla, (2016) 15 SCC 411 : 2016 (2) SCJ 440 : 2015
(10) SCALE 369 .
21 Konkan Trading Co v Suresh, AIR 1986 SC 1009 .
22 Amar Nath Dogra v UOI, AIR 1963 SC 424 (426) : (1963) 1 SCR 657 .
23 Pranjivandas Virjibahi v PM Modi, AIR 2011 Guj 89 (92); Bai Maru v SL Akbarali, 1962 (3) GLR
800 and Asian Assurance Co v Madholal, AIR 1950 Bom 378 , relied on.
24 K Kamaraja Nadar v Kunju Thevar, AIR 1958 SC 687 (697); Mallappa Basappa v Basavaraj
Ayyappa, AIR 1958 SC 698 : 1959 SCR 611 relied on.
25 Raj Kishore v Ram Pratap, AIR 1967 SC 801 (807) : (1967) 2 SCR 56 : 46 Pat 706 : 1967 BLJR
331 .
26 WB Govt Employees (F&S) v Debabrata Sen, 2009 (1) Cal LJ 539 (544-46) (DB).
27 Mamta Dubey v Rajesh Dubey, I (2010) DMC 841 (DB) : AIR 2009 All 141 (DB).
28 National Insurance Co Ltd v Mohd. Asif, 2008 (1) ALJ 600 (All-DB).
29 Upadhyay & Co v State of UP, AIR 1999 SC 509 (511, 512) : (1999) 1 SCC 81 .
30 Rajendra Prasad Gupta v Prakash Chandra Mishra, (2011) 2 SCC 705 (706) : AIR 2011 SC
1137 .
31 Vimlesh Kumar Kulshrestha v Sambhaji Rao, AIR 2009 SC 806 (808) : (2008) 5 SCC 58 ; see
also Murlidhar v Angoo Ram, AIR 2008 (NOC) 2487 (Chh).
32 NR Narayan Swamy v B Francis Jagan, AIR 2001 SC 2469 (2471) : (2001) 6 SCC 473 .
33 Haryana State Co-op Land Development Bank v Neelam, AIR 2005 SC 1843 (1846); Sarguja
Transport Service v STAT Gwalior, AIR 1987 SC 88 , (Relied on).
34 Asha Devi v Chaturdas, AIR 2003 SC 2175 : 2002 AIR SCW 2483.
35 Ajay Mohan v HM Rai, (2008) 2 SCC 507 : AIR 2008 SC 804 .
36 Biswarup Banerjee v Madhukar Nowlakha, AIR 2006 SC 1260 .
37 Puspendra Nath Borah v Lalit Chandra Borah, AIR 2015 Gau 41 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. When transposition of
defendants as plaintiffs may be permitted
© 2020 LexisNexis
THE FIRST SCHEDULE
38[R. 1A.
When transposition of defendants as plaintiffs may be permitted
Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant

applies to be transposed as a plaintiff under rule 10 of Order I, the Court shall, in
considering such application, have due regard to the question whether the applicant
has a substantial question to be decided as against any of the other defendants.]
COMMENT.—
Rule 1-A was inserted in order to provide for the circumstances where a defendant may
be allowed to transpose as a plaintiff where the suit is withdrawn or abandoned by the
plaintiff.
38 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 74(ii) (w.e.f. 1-2-
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Limitation law not
affected by first suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Limitation law not affected by first suit
In any fresh suit instituted on permission granted under the last preceding rule, the
plaintiff'shall be bound by the law of limitation in the same manner as if the first suit
had not been instituted.
COMMENT.—
Where a suit has been withdrawn with the liberty to institute a fresh suit, under
provisions of rule 1, the law of limitation is applicable on second suit also and as held
by the Full Bench of Allahabad High Court the plaintiff is not entitled to deduct from the
period of limitation the time taken up by the withdrawn suit.39
39 Sadayatan Pande v Ram Chandra, AIR 1934 All 688 (FB); Rampati v Phool Singh, AIR 1932 All
377 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Compromise of suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Compromise of suit
Where it is proved to the satisfaction of the Court that a suit has been adjusted wholly
or in part by any lawful agreement or compromise 40[in writing and signed by the
parties], or where the defendant satisfies the plaintiff in respect of the whole or any
part of the subject-matter of the suit, the Court shall order such agreement,
compromise or satisfaction to be recorded, and shall pass a decree in accordance
therewith 41[so far as it relates to the parties to the suit, whether or not the subject-
matter of the agreement, compromise or satisfaction is the same as the subject-
matter of the suit] :
33 [Provided that where it is alleged by one party and denied by the other that an
adjustment or satisfaction has been arrived at, the Court shall decide the question;
but no adjournment shall be granted for the purpose of deciding the question, unless
the Court, for reasons to be recorded, thinks fit to grant such adjournment.]
34[ Explanation. —An agreement or compromise which is void or voidable under the
Indian Contract Act, 1872 (9 of 1872), shall not be deemed to be lawful within the
meaning of this rule.]
[Proviso added in Delhi, HP, Orissa & Punjab; rule 3A added in Kerala].
Allahabad.— The following amendments were made by Uttar Pradesh Gazette, dated 31-
8-1974, Part II, Page 52.
(1) In Order XXIII, rule 3, (i) between the words "or compromise" and "or where" insert
the words "in writing duly signed by parties"; and
(ii) between the words "subject-matter of the suit" and the words "the Court", insert the
words "and obtains an instrument in writing duly signed by the plaintiff."
(2) At the end of the said rule 3 add the following, namely:—
"Provided that the provisions of this rule shall not apply to or in any way affect the
provisions of Order XXXIV, rules 3, 5 and 8.
Explanation.—The expression "agreement" and "compromise", include a joint statement

of the parties concerned or their counsel recorded by the Court, and the expression
"instrument" includes a statement of the plaintiff or his counsel recorded by the Court."
1967.
Renumber existing rule 3 as 3(1) and add the following as sub-rule (2):—
"(2) Where any such agreement or compromise as is referred to in sub-rule (1) is placed
before the Court by a party suing or defending in a representative capacity in a suit
instituted, conducted or defended under the provisions of rule 8 of Order I of this Code,
the Court shall not proceed with the consideration of the same or to pass a decree in
accordance therewith without first notice of the application for recording such
agreement or compromise in the manner prescribed in sub-rule (1) of rule 8 of Order I
of this Code for giving notice of the institution of such suit. The expenses of giving
such notice shall be borne by such party or parties as the Court may direct." (30-3-
1967)
Kerala (Notfn No B1-3312/58; 7-4-1959).— Add the following as rule 3A:—
"3A. Settlement by oath.—If the parties agree to have the suit or any part of it decided by
an oath taken by one of them in Court or elsewhere and tender a written agreement
signed by both of them setting forth the terms of the oath and the place where it is
taken, the Court may accept such agreement. After the oath has been taken in the
manner proposed, the Court shall decide the case in terms of the agreement. After the
agreement has been accepted by the Court, it shall not be competent for any of the
parties to withdraw therefrom without the leave of the Court. If any party withdraws or
refuses to take the oath without lawful excuse, the Court may decide the case against
him or pass such other order as it deems proper."
Madras and Pondicherry.—The following amendments were made by Tamil Nadu

Government Gazette, dated 18-2-1981, Part III, Section 2, Page 18.
In Order XXIII, in rule 3, in the proviso thereto, for the words "provided that" substitute
the following:—
"Provided that the subject-matter of the agreement, compromise or satisfaction, in so

far as it differs from the subject-matter of the suit, is within the territorial and pecuniary
jurisdiction of the Court concerned:
Provided that".
Orissa (Notfn No 24-X-7-52; 30-3-1954).—Add the following proviso at the end:—

"Provided that the provisions of this rule shall not apply to or in any way affect the
provisions of Order XXXIV rules 3, 5 and 8."
The following amendments were made by Orissa Gazette, dated 25-5-1984, Part III-A,
Page 70.
Punjab (Notfn No 24-R-XI-Y-22, of 21-7-1937).—Rule 3 has been substituted by another

rule in which the following proviso has been added to the existing rule:—
[Punjab, Haryana and Chandigarh].—Add the following provisos to rule 3:
"Provided that the hearing of a suit shall proceed and no adjournment shall be granted
in it for the purpose of deciding whether there has been any adjustment or satisfaction,
unless the Court for reasons to be recorded in writing, thinks fit to grant such
adjournment, and provided further that the judgement in the suit shall be announced
until the question of adjustment or satisfaction has been decided:
"Provided further that when an application is made by all the parties to the suit, either in
writing or in open Court through their counsel, that they wish to compromise the suit,
the Court may fix a date on which the parties or their counsel should appear and the
compromise be recorded, but shall proceed to hear those witnesses in the suit who are
already in attendance, unless for any other reason to be recorded in writing, it considers
it impossible or undesirable to do so. If upon the date fixed no compromise has been
recorded, no further adjournment shall be granted for this purpose, unless the Court,
for reasons to be recorded in writing, considers it highly probable that the suit will be
compromise on or before the date to which the Court proposes to adjourn the hearing."
(21-7-1937)
COMMENT.—
Meaning of Compromise.—
The term "compromise" essentially means settlement of differences by mutual

consent. In such process, the adversarial claims come to rest. The cavil between the
parties is given a decent burial. A compromise which is arrived at by the parties puts an
end to the litigative battle. A reciprocal settlement with a clear mind is regarded as
noble. It signifies magnificent and majestic facets of the human mind. The exalted
state of affairs brings in quint essence of sublime solemnity and social stability.42
Rule 3 was amended in order to make a provision that an agreement or compromise

under rule 3 should be in writing and signed by the parties. This is with
a view to avoiding the setting up of oral agreement or compromise to the progress of

the suit. Where a suit was filed in 1975, there is no bar to the defendants putting
forward the oral settlement of the year 1985. The amendment made in 1976 excluding
oral settlement is only perspective.43
Order XXIII, rule 3 refers to distinct classes of compromise in suits. The first part refers
to lawful agreement or compromise arrived at by the parties out of court, which is
under the 1976 Amendment of Code of Civil Procedure required to be in writing and
signed by the parties. The second part of O XXIII, rule 3 deals with the cases where the
defendant satisfies the plaintiff in respect of whole or a part of the suit claim which is
different from the first of O XXIII, rule 3. The expression "agreement" or "compromise"
refers to the first part and not the second part of O XXIII, rule 3. The second part gives
emphasis to the expression "satisfaction". The word "satisfaction" in O XXIII, rule 3 has
been used in contradistinction to the word "adjustment" by agreement or compromise
by the parties. The requirement of "in writing and signed by the parties" does not apply
to the second part of O XXIII, rule 3 where the defendant satisfies the plaintiff in
respect of whole or part of the subject matter of the suit.44
Even if the provisions of O XXIII, rule 3 of Code of Civil Procedure are applicable in the
writ proceeding, the Court cannot be permitted to record a purported compromise in a
casual manner. It is suo motu required to address itself to the issue as to whether the
compromise is lawful one and it has any jurisdiction to entertain the same.45
Whether the rule applies to Arbitration proceedings under Arbitration Act, 1940, there
was a conflict of opinion but now the controversy has been resolved by the Supreme
Court of India by laying down the law that this rule would apply to proceedings before
the Courts after the filing of the award and the Court is competent to record a
compromise and pass a decree accordingly in view of section 41 of Arbitration Act
read with section 141 of Code of Civil Procedure.46
In an eviction suit under Bombay Rents, Hotel and Lodging Houses Rates Control Act,
1947, a compromise decree which is not in violation of the Act, is valid.47
Unless terms of a compromise decree necessarily involve the execution of a deed of
conveyance, registration is not necessary.48
Again dealing with consent decree with reference to arbitration proceedings the
Supreme Court of India has held in Prakash Chand v Harnam Singh, AIR 1973 SC 2065 :
(1973) 2 SCC 484 that decree based on arbitration award which was made on
reference of a dispute for which no suit was pending for trial is not a consent decree
although the parties agreed to make the award a rule of the Court.
Where a suit is decreed "in view of a written settlement filed by the defendant admitting
the claim of the plaintiff to be correct", it is covered by O XII, rule 6. It is not a
compromise decree covered by O XXIII, rule 3 Code of Civil Procedure.49
More than one decrees in same suit.—
There can be more than one decrees passed at different stages in the same suit by the
lessor for eviction of number of lessees—A decree passed on compromise with some
of the defendants at one stage. Another decree at later stage determining the rights of
remaining defendants. Both of the decrees were separate and independent. Neither
was a nullity.50
Satisfaction of the Court.—
As soon as it is pointed out to the Court that parties have entered into a lawful
agreement or compromise and thereby adjusted the suit either whole or in part, this
rule requires that the Court should record that, agreement or compromise and pass a
decree accordingly.51 But the Court must find out whenever there is a dispute between
parties as to whether the alleged agreement has really been entered into or not.52 And
whether a party has agreed to the compromise or not, whether he has signed it or not,
is a question of fact as held by their Lordships of the Privy Council.53
Compromise of suit—procedure.—
Where a decree is passed subsequently in terms of agreement where all parties to suit
settled their differences in pending suits, procedure under rule 3 would be said to have
been complied with.54
Fraudulent compromise is void.—
If an agreement or the compromise itself is fraudulent, then it shall be deemed to be

void within the meaning of the explanation to the proviso to rule 3 and as such not
lawful.55 However, a Court cannot impose a compromise on the parties.56 In order to
attract the provisions of this rule there must be a completed agreement between the
parties,57 and such an agreement must cause adjustment of suit either wholly or in
part.58 If the parties are not ad idem that is of the same kind with regard to
compromise, it is not valid.59 It should be noted in this connection that an agreement
between the parties that a dispute is to be resolved in one way or the other according
to the statement of a third person is an adjustment,60 and as held by Full Bench of
Allahabad High Court, that a party will not be allowed to resile from it without sufficient
reason although the statement might not have been made or recorded.61
Court must be satisfied with the reasonability of rent proposed by consent.—
In a case of fixation of fair rent, the Court will not add its seal to the consent terms, by
which the parties have determined the standard rent, unless it has applied its mind to
the question and has satisfied itself that the rent proposed by consent is just and
reasonable.62
Doctrine of Merger, not applicable.—
An appeal against order of eviction was dismissed by the Supreme Court in view of
agreement between the parties. The landlord agreed thereunder not to execute eviction
decree till the "decision" of title suit was filed by the tenant relating to specific
performance of agreement. Expression "decision" in undertaking could not be held to
be "decision" till it attained finality. It pertains to determination of his by the Court in
said title suit and not beyond thereto. The doctrine of merger or the principle that an
appeal is continuation of suit would not apply.63
Compromise application to be filed before the Court deciding the matter.—In
a decree of divorce by mutual consent the parties were present before the Supreme
Court and filed application for compromise. It was held that the parties should file the
application before the Court deciding the matter. The question of custody of the child
will also be decided in terms of the compromise.64
Compromise decree in eviction suit.—
Unless the terms of a compromise decree necessarily involve the execution of a deed
of conveyance also, a registered deed is not necessary for its enforcement. It is well
settled that in an eviction suit under Rent Control Act and Restriction Act if the Court
does not find the permissible grounds for eviction on the pleadings and other material
on record then no consent or compromise can give jurisdiction to the Court to pass a
valid decree.65
Dealing with the question of partial compromise the Supreme Court of India has held in
KC Dora v Annamanaidu, 1974 SC 1069 : (1974) 1 SCC 567 : (1974) 2 SCR 655 that O
XXIII, rule 3 not only allows partial compromise if it has lawfully been entered into by
the parties, but also gives a mandate to the Court to record such a compromise and
award a decree to terms of it in so far as it is concerned with the suit. It is a consent
decree and is not applicable in view of section 96(3) of Code of Civil Procedure.
Moreover, the agreement or compromise entered into between parties should also be
lawful and the word lawful refers to the legal character of the agreement or
compromise and not to its binding efficiency. In other words, the agreement or
compromise must be lawful within the meaning of Indian Contract Act, 1872.
Disposal in terms of compromise.—
Where joint compromise petition was filed by the parties before the Supreme Court and
terms and conditions of the compromise was duly singed by the parties, appeals were
disposed of in terms of the compromise.66
Compromise decree, a judgement on admission.—
A decree was passed as a result of consensus arrived at, before the Court. It cannot
always be said to be one passed on compromise or settlement and adjustment. It may,
at times, be also a judgement on admission.67
Bar to fresh suit.—
Order XXIII, sub-rule 3(b) and O XXIII sub-rule 4(b) bar the plaintiff to file a fresh suit
regarding the same subject matter or same claim or part of the claim without the
permission of the Court.68
Arbitration pending suit.—
An arbitration award may be considered to be a compromise or adjustment of the suit

or not, one has to look to the provisions of section 47, Arbitration Act, 1940, which
provides when an arbitration award can be considered to be a compromise or
adjustment of a suit.69 And as regards compromise pending arbitration the Supreme
Court of India has held that if the parties are dissatisfied with the award they can settle
the matter by a compromise and the Court can pass a decree on such a
compromise.70
If in a compromise or adjustment of the suit, claim or part thereof is put in dispute then
the powers under this rule cannot be exercised, unless it is clearly established that
such accord or compromise has been entered into between the parties. The existence
of such compromise is a matter to be decided in the suit. An award of the arbitrator in
an arbitration case cannot be considered as having resulted in a settlement of suit
claims.71
Recording of Agreement, etc.—
Where it has been proved to the Court that parties have entered into a lawful agreement
or compromise, the Court shall order such compromise to be recorded, and it is not
merely a matter of form but, as held by their Lordships of the Privy Council, a matter of
substance, as the aggrieved party has a right to appeal from such order by virtue of
provisions of O XLIII, rule 1(m) of the Code.72 And failure to record the satisfaction,
makes adjustment not in accordance with the rule.73 This rule makes it obligatory on
the part of the Court to record the compromise provided it has been lawfully entered
into between the parties.74
Award of Decree.—
As held by their Lordships of the Supreme Court of India, a decree under this rule may
be awarded on a compromise only when it relates to the suit.75 Where the agreement
or the compromise relates to matters entirely extraneous to the suit, no decree can be
passed in terms of such agreement or compromise under this rule.
In this connection it has been held by a Full Bench of Travancore Cochin High Court
that where one of the reliefs claimed is recovery of possession of the buildings and
compromise decree allowed the recovery of the possession of the said building. After
the expiry of a period of one year, it cannot be said that portion of the decree is not one
that relates to the suit.76 In a case where compromise though lawfully entered into by
the parties comprises of the matters unconnected with the suit, the proper course for
the Court is to recite the whole of the compromise in its decree, but to restrict the
operative part of the decree with those terms of agreement or compromise which is
connected with the suit. And therefore, in such a case only that part of the decree
would be executable which relates to the suit.77
Compromise decree—What is.—
When there is a contest on the question whether there was a compromise or not a
decree accepting the compromise on resolution of that controversy, cannot be said to
be a decree passed with the consent of the parties.78
Decree by consent.—
Directions passed by Court on the basis of statements made at the Bar, amount to an
executable decree by consent.79
Compromise decree, to be enforced strictly.—
Where a compromise decree is passed, the compromise becomes part of the decree
and it is duty of the Court to enforce the terms of the compromise strictly and not take
it as mere contract between the parties. The Court under that pretext cannot absolve
itself from the responsibility of enforcing it.80
In a compromise deed the respond company agreed "to pay dues along with future
interest subject to a minimum of 13.5% per annum or at such other rate as may be
divided by the corporation for similar advances from time to time with half yearly rests
on product basis." The plea that 'half yearly rests', was to apply if the rate of interest
was to be decided by appellant corporation was not tenable. Calculation of interest
with half yearly rests could not be objected.81
Consent decree, validity.—
When a compromise is entered into, the court has a duty to see as to whether the same
meets the requirement of law. A compromise decree which does not satisfy the
requirement of law is not legal and cannot be recorded.82
The consent decree would be valid where compromise terms are entered into by power
of attorney holder on behalf of parties.83
Validity of family settlement.—
The court will uphold the family settlement between the parties if it is not violative of
any statutory provision on public policy as envisaged under section 23 of the Contract
Act.84
Setting aside of award.—
The High Court ought not set aside the award as it was made on the basis of a
settlement between the parties.85
Parties to Compromise.—
In order that provisions of this rule are attracted the compromise should be between
the parties to the suit. However, if a compromise has been arrived at where only some
of the parties to the suit are concerned, the said
compromise is not necessarily invalid.86 But where there is a partial compromise, and
the said compromise is prejudicial to the interest of other parties not joining as held by
the Supreme Court of India, such compromises cannot be recognised.87
Personal appearance of parties.—
Where the Court entertains doubt about the factum/genuineness of the compromise, it
can insist on the personal appearance of the parties.88
Where unauthorised advocate enters into compromise.—
Where a writ petition is disposed of on the basis of a compromise, the advocate is not
authorised by party to enter into compromise in their behalf in writ petition, party does
not sign the compromise and vakalatnama also is not executed in favour of advocate
so as to authorise him to verify contents of compromise, order disposing of writ
petition on the basis of such compromise is to be set aside.89
"In writing and signed by the parties".—
The words "in writing and signed by the parties" inserted in O XXIII, rule 3 of the Code
by the Code of Civil Procedure (Amendment) Act, 1976 necessarily mean and include
duly authorised representative and counsel. A compromise decree signed by the
counsel and not by the parties in person is binding, executable and operates as res
judicata even if it extends beyond subject matter of suit. The counsel's power to enter
into compromise has not been curtailed even impliedly, by 1976 Code of Civil
Procedure Amendment Act.90
The compromise to be "in writing and signed by parties" does not exclude authority of
Counsel to enter into compromise on behalf of the party.91
Necessity of written consent.—
Written consent of all the parties is necessary for a compromise under O XXIII, rule 3 of
the code.92
Compromise order.—
Where the compromise was not the outcome of fraud and was not away from authority
of power of attorney-holder, the consent order passed by the High Court cannot be said
to be anything but proper and valid.93
Consent decree under section 13 B of Hindu Marriage Act different from

consent decree under O XXIII, rule 3.—
A consent decree passed under section 13 B of the Hindu Marriage Act 1955, granting
divorce by mutual consent of the spouses is entirely different from a consent decree
passed by civil court in non-matrimonial cases. A decree passed by the consent of
spouses is to be distinguished from decrees passed in other matters by a civil court as
there are several formalities and requirements, which are prescribed under section 13B
of the Hindu Marriage Act.94
Effect of consent decree.—
As held by the Supreme Court of India although a consent decree does not operate as
res judicata but creates an estoppel between the parties and is binding upon them like
any other decree.95 Consent decree can be set aside of any one of the grounds on
which a contract is set aside, as for instance, fraud, mistake and misrepresentation,
etc.96 In a compromise decree it was provided that the defendants would be liable to
be evicted after a period of ten years by appropriate proceedings in a Court of law. The
tenants-defendants cannot be evicted in execution of the compromise decree. A fresh
suit for ejectment is not barred by law.97 If in an ejectment suit or appeal from the
ejectment decree, the tenant or his son is allowed to remain in the occupation of the
premises for a certain period then he shall have to vacate the premises after that
period and no fresh tenancy shall exist in his favour. The tenant is estopped from
objecting to execution of decree and is liable to be ejected.98 The victims in the Bhopal
Gas Disaster case would be bound by the settlement though not named in the suit.99
A compromise before a court is binding universally between the parties thereto

whether the compromise is acted upon and further not put to challenge, then the terms
of the said compromise therefore are determinative for the adjudication of a revenue
suit wherein the same relief regarding a property dispute is sought to be re-agitated.100
As regards execution of a consent decree, the same is executable like any other decree
and in the same manner in which other decrees are executed. But to decide the
question as in a declaratory decree it is executable or not, reference has to be made to
the intention of the parties as gathered from the language used in the compromise
without any reference to any aid from oral evidence.101
Suitable plots directed to be allotted in terms of compromise.—
Certain land was acquired by the appellant Cooperative Housing Society. The
acquisition was for residential houses for its members. The appellant's land was
included in industrial area. Suitable plots were directed to be allotted to the society in
terms of consensus arrived at.102
Dealing with executability of a consent decree the Supreme Court of India has held in
case of Ratan Lal v Madho Prasad that though the decree in compromise containing
clause 3 which refers to "such sums as could be finally ascertained" does in no way,
affect the execution of the decree, because the execution is made dependent on
ascertainment.103
The effect of the compromise decree passed in an administration suit was held to be
that the plaintiff-appellant was to act as sole "shebait" till the respondent was a minor.
On his attaining majority he would become a joint "shebait" with him.104
In a suit for declaration of title, possession and injunction consent decree provided that
plaintiff'society was in possession of suit property. The decree for permanent
injunction against the defendant was also passed in its favour consent decree was not
yet set aside. The purchaser of suit property from defendant could not claim better title
than defendant.105
Consent decree, execution of.—
A decree remains valid unless set aside. Where a consent decree was never challenged
and it was acted upon, the respondents had disposed of a property pursuant thereto
and thus took advantage of a part thereof it was impermissible for them to reside
therefrom.106
Re-opening of consent decree.—
Consent decree passed on the basis of family settlement effecting partition cannot be
re-opened only on the question whether the properties were joint family properties or
self acquired properties.107
Compromise of Appeal.—
Rule 3 applies also to appeals and a compromise decree can be awarded if the appeal
is compromised and as held by the Supreme Court of India the provisions of rule 3 are
mandatory.108
Where a suit is compromised after filing of an appeal, the compromise can be recorded
by the appellate Court. The Supreme Court as an appellate Court can dispose of the
appeal in terms of compromise.109
In a suit for declaration of tenancy rights the Board of Revenue held that the plaintiff
was "Khatedar" tenant. This order was reversed by the High Court. In appeal the
Supreme Court held that the plaintiff-appellant was entitled to status of "Khatedar"
tenant. In view of amendment of Rajasthan Tenancy Act, the appellant's position as
tenant had become certain.110
In a compromise entered into during hearing of suit or appeal the Court must insist that
the compromise be reduced to writing and signed by the parties. There is no
justification to confine the applicability of the first part of the rule 3 to a compromise
effected out of Court.111
Overruling a Full Bench decision of Madhya Pradesh High Court in Chandan Bai's
case,112 the Supreme Court has held in Roshan Lal v Madan Lal, AIR 1975 SC 2130 :
(1975) 2 SCC 785 : (1976) 1 SCR 878 that the provisions of O XXIII, rule 3 of the Code
of Civil Procedure apply to eviction suits governed by the special statutes. Accordingly,
if the agreement or compromise for the eviction of the tenant is found, in the facts of a
particular case, to be in violation of a particular Rent Restriction or Control Act, the
Court would refuse to record the compromise as it will not be a lawful agreement, as
held by the Supreme Court in the aforesaid case.
Resolution, validity of.—
Order holding resolution passed by new body in meeting held on adjourned date after
due notice on left over agenda items was held to be improper, being in breach of
consent order. Matter was remitted back to the High Court to consider maintainability
of application challenging resolutions passed by new body.113
Partition decree, when void?—
A partition decree based on compromise, results in relinquishment by unlawful

guardian, of minor's share in the property of deceased Mohammedan. If there is no
legal sanction behind compromise, then such a decree would be void.114
However, if the Court is satisfied on consideration of the terms of the compromise and
if necessary, by considering them in the context of the pleadings other materials in the
case, that the agreement is lawful, as in any other suit, so in an eviction suit, the Court
is bound to record the compromise and pass a decree in accordance therewith.
Fraud vitiates consent decree.—
Where the right of ownership of municipal land was granted by way of compromise, it
was held that compromise can only be entered with the permission of the Municipal
Council. No such permission was given by the President and CMO of Nagar Panchayat
to file compromise. Therefore, such a compromise is per se illegal as obtained by
playing fraud. Fraud vitiates everything. Hence compromise was set aside.115
Effect of consolidation of suits.—
Transfer or consolidation of suits does not take away right of parties to invoke O XXIII,
rule 3. Suits always retain their independent identity and even after an order of
consolidation, court is not powerless to dispose of any suit independently once
ingredients of O XXIII, rule 3 are satisfied.116
Power of appellate court.—
The appellate court can pass compromise decree in terms of compromise if it is

satisfied that the compromise is lawful.117
Admissions in judicial proceedings are binding.—
A admission by the tenant about the existence of a statutory ground, expressly or

impliedly, will be sufficient and there need not be any evidence before the Court on the
merits of the grounds before the compromise order is passed. If there is an admission
of the tenant, it will not be open to him to challenge its correctness as the admissions
made in judicial proceedings are absolutely binding on the parties. The decree is not
nullity. It is executable.118
Compromise when not valid.—
In a Compromise there was no mention of any consideration received by the

plaintiff/respondent. There was no signature before the court. None of the parties were
present before the court because there is no signature on the order sheet. In view of
the aforesaid facts the ingredients of O XXIII rule 3 of the Code of Civil Procedure were
not fulfilled at the time of passing of compromise order, hence the same was set
aside.119
Principal can act independently.—
It is well settled that even after execution of a power of attorney the principal can act
independently and does not have to take consent of the attorney.120
The provision under O XXIII, rule 3 does not apply to execution proceedings. A
compromise in an appeal out of execution proceedings can be recorded under O XXI,
rule 2.121
The order of the High Court setting aside the consent decree on a finding that the
consent of respondent was vitiated by the duress and coercion was not proper.122
Overriding effect.—
Order XXIII, rule 3 as amended by Code of Civil Procedure Amendment Act, 1976, does
not override the Registration Act, 1908.123
Settlement through ADR.—
The court can identify and segregate issues which can be settled in Alternative
Disputes Resolution (ADR) and which are to be adjudicated. Even if there is no
agreement among all defendants on all issues referred for ADR by settlement, some of
the defendants can satisfy plaintiff and enter a compromise without affecting other
defendants.124
Binding effect of vakalatnama.—
Settlement arrived at by the advocate holding the vakalatnama has binding effect.125
1977).
words (w.e.f. 1-2-1977).
33 Haryana State Co-op Land Development Bank v Neelam, AIR 2005 SC 1843 (1846); Sarguja
Transport Service v STAT Gwalior, AIR 1987 SC 88 , (Relied on).
34 Asha Devi v Chaturdas, AIR 2003 SC 2175 : 2002 AIR SCW 2483.
42 Bimal Kumar v Shakuntala Devi, AIR 2012 SC 1586 (para 27).
43 RVRao v R Satya Bat, AIR 1996 SC 965 : (1996) 1 SCC 671 .
44 Mahalaxmi Co-operative Housing Society Ltd and etc v Ashabai Atmaram Patel (D) Th LR's, AIR
2013 SC 961 .
45 Dwarka Pd Agarwal v BD Agarwal, AIR 2003 SC 2686 (2694) : (2003) 6 SCC 230 : (2003) 117
CC 1 .
46 Munshiram v Banwari Lal, AIR 1962 SC 903 : 1962 Supp (2) SCR 477 .
47 Suleman Noormohammed v Umarbhai Janubhai, AIR 1978 SC 952 (954, 955) : (1978) 2 SCC
179 : 19 GLR 566.
48 Girdharilal v Hukom, AIR 1977 SC 129 (132).
49 Bhoop Singh v Ram Singh Major, AIR 1996 SC 196 (200) : (1995) 5 SCC 709 .
50 Bai Chanchal v S Jalaluddin, AIR 1971 SC 1081 (1084) : (1970) 3 SCC 124 .
51 Sujarat v Md Raza, AIR 1957 All 450 (DB).
52 Ibid.
53 (1942) 22 Ind Cases 373 (PC).
54 Amteshwar Anand v Virendra Mohan Singh, AIR 2006 SC 151 (158, 159).
.
56 Gouri Amma v Parmeshwara, AIR 1952 Trav Co 547 (DB).
57 Jagatpur Dugar v Puran Chand, AIR 1924 PC 200 .
58 Manq Hlay v U Ge, AIR 1939 Rang 300 (FB).
59 Supra Note 45.
60 Akbari v Rahmat Hussain, AIR 1933 All 861 (F.B.).
61 Munshi Singh v Ewaz Singh, AIR 1952 All 890 (FB).
63 Rekha Mukherjee v Ashish Kr Das, AIR 2004 SC 443 (448).
64 Leena Roy v Subrato Roy, AIR 1991 SC 92 : 1992 Supp (2) SCC 110 .
65 Nai Bahu v Lala Ramnarayan, AIR 1978 SC 22 (28).
66 Kishore K Sippy v Vaishnav S Puri, (2008) 12 SCC 770 .
67 Jineshwar Das v Jagrani, AIR 2003 SC 4596 (4599) : (2003) 11 SCC 372 .
68 UOI v Pravash Dutta, 2009 (1) Cal LJ 246 (248) (DB).
69 Dular Koeri v Paryag Koeri, AIR 1942 All 145 (FB).
70 Munshiram v Banwari Lal, AIR 1962 SC 903 : 1962 Supp (2) SCR 477 .
71 Star Construction and Transport Co v India Cement Ltd, AIR 2001 SC 941 : (2001) 3 SCC 351 .
72 Kewaldas v Sokar Lal, AIR 1973 PC 178 .
73 Ibid.
74 Md Azizulla Khan v Md Nurullah Khan, AIR 1939 Nag 233 (FB).
75 Abdul Shakoor v Bijai Kumar, AIR 1964 SC 874 : 1963 Supp (2) SCR 46 : (1964) 1 An WR 49 .
76 R Punnen vP Kurup, AIR 1956 Trav Co 1 (FB).
77 Munshiram v Banwarilal, AIR 1962 SC 903 : 1962 Supp (2) SCR 477 ; Akbari v Rahmat
Hussain, AIR 1933 All 861 (FB).
78 Kishnu v Bihari, AIR 2005 SC 3799 (3801).
79 AnilKSurana v State Bank of Hyderabad, (2007) 10 SCC 257 .
80 Salhia Businessmen's Association v Howrah Municipal Corpn, AIR 2001 SC 2790 : (2001) 6
SCC 688 .
81 Rajasthan Financial Corporation v Man Industrial Financial Corpn, AIR 2003 SC 4273 (4278).
82 Arjan Singh v Punit Ahluwalia, AIR 2008 SC 2718 (2720) : (2008) 8 SCC 348 ; see also Sneha
Gupta v Devi Sarup, (2009) 6 SCC 194 .
83 SBV Patel v NJ Tiwari, (2010) 5 SCC 104 : (2010) 6 MLJ 616 (SC).
84 Ranganayahamma v KS Prakash, (2008) 15 SCC 673 .
85 Prabhu Dayal v Sadhan Sahkari Samiti, (2008) 4 SCC 34 (35-36).
86 Shankar Bharti v Narasinha Bharti, AIR 1927 PC 57 .
87 Rani Bai v Yadunandan, AIR 1969 SC 1118 : (1969) 1 SCC 604 .
88 DP Chadha v Triyngi Narain Misra, AIR 2001 SC 457 (465).
89 Ramasrey v Dy Director, Consolidation, Faizabad, AIR 1999 SC 1474 .
90 Byram Pestonji Gariwala v Union Bank of India, AIR 1991 SC 2234 (2245) : (1992) 1 SCC 31 :
(1992) 1 BLJR 1 .
91 Jineshwardas v Jagrani, AIR 2003 SC 4596 (4599) : (2003) 11 SCC 372 ; See also Bryan
Pestonji Gariwala v UOI, AIR 1991 SC 2234 : (1992) 1 SCC 31 : (1992) 1 BLJR 1 (followed).
92 Arjan Singh v Punit Ahluwalia, (2008) 8 SCC 348 (352-57).
93 Shanti Budhiya Vesta Patel v Nirmala Jaiprakash Tiwari, AIR 2010 SC 2132 : (2010) 5 SCC 104
; see also Chitra Constructions Pvt Ltd v S Subramanyam & Co, AIR 2008 (NOC) 2501 (Mad);
Santosh v Jagat Ram, (2010) 3 SCC 251 .
94 S Rajkannu v R Shanmugapriya, AIR 2016 Mad 42 .
95 Sailendra Narayan v State of Orissa, AIR 1955 SC 346 ; Shankar Sitaram v Balkrishna Sitaram,
AIR 1954 SC 352 : (1955) 1 SCR 99 : 57 Bom LR 1.
96 BR Jadhar v Abdul Rashid, AIR 1961 Mys 175 .
97 Bibekananda Bhowal v Satindra Mohan Dev, AIR 1996 SC 1985 (1988) : (1996) 9 SCC 292 .
98 Som Dutt v Govind Ram, AIR 2000 SC 1638 : (2000) 9 SCC 345 .
99 Charanlal Sahu v UOI, AIR 1990 SC 1480 (1542) : (1990) 1 SCC 613 .
100 Gulab v Board of Revenue Rajasthan, Ajmer, AIR 2012 Raj 131 .
101 Sudhir Kumar v Baldeo Krishna Thapar, (1970) 3 SCR 114 .
102 UP Resident's Employees Coop House Building Society v New Okhla Industrial Development
Authority, AIR 1990 SC 1325 (1328) : 1990 Supp SCC 175 .
103 AIR 1974 SC 2299 : (1973) 2 SCC 642 .
104 Shyam Sundari v Moni Mohan, AIR 1976 SC 977 (980).
105 Mohd Mastha v Society, Congregation Bros, S Heart, AIR 2006 SC 1706 (1708).
106 Deepa Bhargava v Mahesh Bhargava, (2009) 2 SCC 294 .
107 Ranganayakamma v KS Prakash, (2008) 15 SCC 673 .
108 Silver S Enterprises v Devki Nandan, AIR 1970 SC 669 : (1970) 3 SCC 878 : 72 Punj LR 583.
109 Cheriyan JPoppallil v Geevarghese Philip, AIR 1974 SC 2183 : (1973) 3 SCC 612 .
110 Bhola v Jai Narain Mandir, AIR 1978 SC 299 : (1978) 1 SCC 66 .
111 Gurpreet Singh v Chatur Bhuj Goel, AIR 1988 SC 400 (402, 403).
112 AIR 1972 MP 106 (FB).
113 Nanshibhai v Bhupendra P Popat, AIR 2008 SC 76 .
114 Syed Shah GG Mohiuddin v SSAM Kamisul, AIR 1971 SC 2184 (2187) : (1971) 1 SCC 597 .
115 Chief Municipal Officer v Mahila Munni Devi, AIR 2014 MP 129 .
116 Mahalaxmi Co-operative Housing Society Ltd v Ashabai Atmaram Patel (D) Th LR's, AIR 2013
SC 961 .
117 KV Mylarasetty vKSBasappa, 2010 (1) Kar LJ 262 (263) (DB).
118 Hiralal Moolchand Doshi v Barot Ramanlal Ranchhoddas, AIR 1993 SC 1449 (1455) : (1993)
2 SCC 458 : (1993) 2 GLH 123 .
119 Narayan Prasad v Vijay Kumar, AIR 2015 MP 5 .
120 Deb Ratan Vishwas v Anand Moyi Devi, 2011 AIR CC 1566 (SC) : AIR 2011 SC 1653 .
121 Motilal v Mohd Hassan, AIR 1968 SC 1087 (1089) : (1968) 3 SCR 158 : (1968) 2 AnLT 220;
Pradyumna Kr Mullick v Dhirendra Mullick, AIR 1937 PC 256 , relied on.
122 GP Pvt Ltd v Mechano, AIR 2005 SC 1958 (1961).
123 KRaghunandan v Ali Hussain Sabir, (2008) 13 SCC 102 (108).
124 Ammaloo v Panangadan, 2008 (3) KLT 233 (236) (DB).
125 R Rajeshwari vHN Jagdish, (2008) 4 SCC 82 (85, 87).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Bar to suit
© 2020 LexisNexis
THE FIRST SCHEDULE
126[R. 3A.
Bar to suit
No suit shall lie to set aside a decree on the ground that the compromise on which the
decree is based was not lawful.]
COMMENT.—
Order XXIII, rule 3-A is not applicable where compromise was alleged to have been
arrived at by fraud/collusion made against statutory authority. In such case High Court
can examine the validity of the compromise decree questioned even by a third party.127
It is true that a compromise forming the basis of the decree can only be questioned
before the same court that recorded the compromise and a fresh suit for setting aside
a compromise decree is expressly barred under O XXIII, rule 3A. it is equally true that
the expression "not lawful" used in O X, rule 3A also covers a decree based on a
fraudulent compromise, hence, a challenge to a compromise decree on the ground that
it was obtained by fraudulent means would also fall under the provisions of O XXIII, rule
3A.
Suit was instituted by defendants under UP Zamindari Abolition and Law Reforms Act
making appellant's father as one of the opposite parties. The said suit was decreed by
the assistant collector. Thereafter civil suit was filed by appellant for declaration that
compromise having been obtained by fraudulent means on the basis of fake signature
of appellant's deceased father and therefore the decree passed by the said collector
was inoperative and not binding on him. It was held that such a suit is not barred under
O XXIII rule 3A of the Code of Civil Procedure. Revenue authorities specified in Sch 2 to
the said Act, being courts of limited and restricted jurisdiction are not "court" under
Code of Civil Procedure and are neither equipped nor competent to effectively
adjudicate on allegations of fraud.128
Order XXIII, rule 3A clearly bars a suit to set aside a decree on the ground that the
compromise on which the decree is based was not lawful. This implies that no sooner
a question relating to lawfulness of the agreement or compromise is raised before the
court that passed the decree on the basis of any such agreement or compromise, it is
that court and that court alone who can examine and determine the question. The
court cannot direct the parties to file a separate suit on the subject for no such suit will
lie in view of the provisions of O XXIII, rule 3A of the Code of Civil Procedure. The High
Court fell in a palpable error in directing the plaintiff to take recourse to the remedy by
way of separate suit.129
After a compromise has been recorded, the court concerned can entertain an
application under section 151 of the Code of Civil Procedure questioning its legality or
validity of the compromise. If such an application is filed, then the court which passed
the decree shall consider the said application after notice to the other side. Then the
said court has to decide the question as to whether the compromise entered into and
the decree passed thereon is lawful or valid. It can also decide whether such
compromise is void or voidable. If the agreement or compromise itself is fraudulent,
then it shall be deemed to be void within the meaning of the explanation to the proviso
to rule 3 and as such not lawful.130
Rule 3(A) is an Allahabad State Amendment.—
In view of the amendment brought about in O XXIII, rule 3 of the proviso therein
requires a compromise to be signed by the parties and presented before the court.
Where there is no dispute that compromise was not signed by the petitioner and the
records also indicate the same, the impugned order, therefore, incorrectly assumes that
the petitioner had signed the compromise. The authorisation through the Vakalatnama
has to be supplemented by the actual compromise being signed by the p arties
themselves .131
127 AA Gopalakrishnan v Cochin Devaswan Board, (2007) 7 SCC 482 (485-87).
128 Horil v Keshav, AIR 2012 SC 1262 .
129 R, Rajanna v SR Venkataswamy, AIR 2015 SC 706 (Referred Pushpa Devi Bhagat v Rajinder
Singh, AIR 2006 SC 2628 ).
130 Lakshamma v TH Ramegowda, AIR 2015 Kar 204 .
131 Smt Madhubala v HP Singh, AIR 2013 All 55 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3B. No agreement or be
entered in a representative suit without leave
© 2020 LexisNexis
THE FIRST SCHEDULE
[R. 3B.
No agreement or be entered in a representative suit without leave
(1) No agreement or compromise in a representative suit shall be entered into

without the leave of the Court expressly recorded in the proceedings; and any
such agreement or compromise entered into without the leave of the Court so
recorded shall be void.
(2) Before granting such leave, the Court shall give notice in such manner as it
may think fit to such persons as may appear to it to be interested in the suit.
Explanation. —In this rule, "representative suit" means,—
(a) a suit under Section 91 or Section 92,
(b) a suit under rule 8 of Order I,
(c) a suit in which the manager of an undivided Hindu family sues or is sued
as representing the other members of the family,
(d) any other suit in which the decree passed may, by virtue of the
provisions of this Code or of any other law for the time being in force,
bind any person who is not named as party to the suit.]
COMMENT.—
Rule 3-B was inserted and this seeks to resolve the conflict of High Courts of Mysore
and that of Patna and Madras.
This rule provides that leave of the Court must be obtained before a compromise is
recorded and before leave is given to the interested parties.
Compromise not void if entered without notice to interested persons.—
The settlement recorded by the Supreme Court in Bhopal Gas Disaster case can not be
said to be void for absence of notice to interested persons. Rule 3-B does not apply
proprio vigore to proceedings under Article 136 of Constitution of India.132
132 Union Carbide Corpn v UOI, AIR 1992 SC 248 (275).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Proceedings in execution
of decrees not affected
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Proceedings in execution of decrees not affected
Nothing in this Order shall apply to any proceedings in execution of a decree or order.
COMMENT.—
The jurisdiction of the executing Court to enforce a compromise is not taken away by O
XXIII, rule 4. The effect of rule 4 is that O XXIII, rule 3 does not apply to execution
proceedings.133
This rule provides in explicit terms that provisions of O XX are not applicable to
execution of a decree or order.
The fact that rule 3 of O XXIII is not applicable to execution proceedings, that does not
mean that there cannot be a compromise or adjustment in execution proceedings. The
jurisdiction of executing Court is not ousted by O XXIII, rule 4 and the Supreme Court
has held that independently of O XIII, rule 3, the provisions of O XXI, rule 2 in section 47
of the Code empowers the executing Court to record and enforce such a compromise
in execution proceedings.134
A compromise in execution stage may extinguish the decree and create a fresh lease
or provide a mere mode of discharge of the decree depending on the intention of the
parties.135
The real owner is bound by the decree passed against the heirs of the benamidar even
though his application for being joined as a party has been rejected, as long as the non-
joinder did not cause him any prejudice.136
Allowability.—
An application for the withdrawal of a suit or a petition can be allowed upon the
satisfaction of the learned court.137
Whether question of law.—
A question whether a petition is barred under O XXIII, rule 4 is not a "pure question of
law". It is a question of fact or a mixed question of law and fact. Petitions cannot be
dismissed on the bold assertion by a party that they were not maintainable in the
absence of pleadings and necessary materials in support of such plea.138
133 Motilal v Mohd Hassan, AIR 1968 SC 1087 (1089) : (1968) 3 SCR 158 : (1968) 2 An LT 220.
134 Motilal v Md Hasan Khan, AIR 1969 SC 1087 : (1968) 3 SCR 158 : (1968) 2 An LT 220.
135 Kallo v Dhakadevi, AIR 1982 SC 813 : (1982) 1 SCC 633 .
136 Ragho Prasad Gupta v Srikrishna Poddar, AIR 1969 SC 316 (318) : (1969) 1 SCR 834 : 1969
BLJR 426 .
137 Lakhinder Samaddar v State of WB, 2010 (1) Cal LJ 382 (DB) : AIR 2010 (NOC) 382 .
138 Ramesh Ch Saukla v Vikram Cement, (2008) 14 SCC 58 (76).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Deposit by defendant of
amount in satisfaction of claim
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXIV Payment into Court
R. 1.
Deposit by defendant of amount in satisfaction of claim
The defendant in any suit to recover a debt or damages may, at any stage of the suit,
deposit in Court such sum of money as he considers a satisfaction in full of the claim.
COMMENT.—
This rule makes a provision of payment into the Court at any stage of the suit, in
satisfaction of the claim after the suit has been instituted but before a decree is
passed in the suit. But mere willingness to pay made in written statement is not
equivalent to payment made in Court. This rule is applicable to all suits instituted to
recover debt or damages.
This is an enabling provision under the Code for the defaulting parties to deposit their
dues in Court during the pendency of the suit. In an eviction suit, the tenant in
satisfaction of claims made by landlord can deposit their dues in the Court during the
pendency of the suit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Notice of deposit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Notice of deposit
Notice of the deposit shall be given through the Court by the defendant to the plaintiff,
and the amount of the deposit shall (unless the Court otherwise directs) be paid to the
plaintiff on his application.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Interest on deposit not
allowed to plaintiff after notice
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Interest on deposit not allowed to plaintiff after notice
No interest shall be allowed to the plaintiff on any sum deposited by the defendant
from the date of the receipt of such notice, whether the sum deposited is in full of the
claim or falls short thereof.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Procedure where plaintiff
accepts deposit as satisfaction in part
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Procedure where plaintiff accepts deposit as satisfaction in part
(1) Where the plaintiff accepts such amount as satisfaction in part only of his
claim, he may prosecute his suit for the balance; and if the Court decides that
the deposit by the defendant was a full satisfaction of the plaintiffs claim, the
plaintiff'shall pay the costs of the suit incurred after the deposit and the costs
incurred previous thereto, so far as they were caused by excess in the
plaintiff's claim.
Procedure where he accepts it as satisfaction in full
(2) Where the plaintiff accepts such amount as satisfaction in full of his claim, he
shall present to the Court a statement to that effect, and such statement shall
be filed and the Court shall pronounce judgment accordingly; and, in directing
by whom the costs of each party are to be paid, the Court shall consider which
of the parties is most to blame for the litigation.
ILLUSTRATIONS
(a) A owes B Rs. 100. B sues A for the amount, having made no demand for payment
and having no reason to believe that the delay caused by making a demand would
place him at a disadvantage. On the plaint being filed, A pays the money into Court. B
accepts it in full satisfaction of his claim, but the Court should not allow him any cost,
the litigation being presumably groundless on his part.
(b) B sues A under the circumstances mentioned in illustration (a). On the plaint being
filed, A disputes the claim. Afterwards A pays the money into Court. B accepts it in full
satisfaction of his claim. The Court should also give B his costs of suit, A's conduct
having shown that the litigation was necessary.
(c) A owes B Rs. 100, and is willing to pay him that sum without suit. B claims Rs. 150
and sues A for that amount. On the plaint being filed, A pays Rs. 100 into Court and
disputes only his liability to pay the remaining Rs. 50. B accepts Rs. 100 in full
satisfaction of his claim. The Court should order him to pay A's costs.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. When security for costs
may be required from plaintiff
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXV Security for Costs
1[R. 1.
When security for costs may be required from plaintiff
(1) At any stage of a suit, the Court may, either of its own motion or on the
application of any defendant, order the plaintiff, for reasons to be recorded, to
give within the time fixed by it security for the payment of all costs incurred
and likely to be incurred by any defendant:
Provided that such an order shall be made in all cases in which it appears to the
Court that a sole plaintiff is, or (when there are more plaintiffs than one) that
all the plaintiffs are, residing out of India and that such plaintiff does not
possess or that no one of such plaintiffs possesses any sufficient immovable
property within India other than the property in suit. [MP].
(2) Whoever leaves India under such circumstances as to afford reasonable

probability that he will not be forthcoming whenever he may be called upon to
pay costs shall be deemed to be residing out of India within the meaning of the
proviso to sub-rule (1). [A, AP, M, OR]
[Rule amended in All; sub-rule (1) amended in MP; sub-rule (3) substituted and sub-rule
(4) added in Orissa; sub-rule (4) added in AP & Mad].
Allahabad.—Rule 1 is amended as follows:—
R. 1. (1) Where, at any stage of a suit, it appears to the Court that a sole plaintiff is, or
(when there are more plaintiffs than one) that all the plaintiffs are residing outside the
State, and that such plaintiff does not, or that no one of such plaintiffs does, possess
any sufficient immovable property within the State other than the property in suit, or
that the plaintiff is being financed by another person, the Court may, either of its own
motion or on the application of any defendant, order the plaintiff or plaintiffs, within a
time fixed by it, to give security for the payment of all costs incurred and likely to be
incurred by any defendant.
(2) Same as sub-rule (2) with omission of the words "the proviso to".
(3) On the application of any defendant in a suit for the payment of money, in which the
plaintiff is a woman, the Court may at any stage of suit make a like order if it is
satisfied that such plaintiff does not possess any sufficient immovable property within
India.
(4) Where a suit is instituted by a next friend on behalf of a minor and it appears to the
Court that another suit on behalf of the same minor by a different person acting as his
next friend for a substantially similar relief, has already been decided against the minor,
the Court may, on the application of any defendant, order such next friend to give
security for the payment of all costs incurred and likely to be incurred by any
defendant" [1-6-1957].
The following amendments were made by Uttar Pradesh Government Gazette, dated 5-2-
1983, Part 2, Page 14.
Substitute rule 1 as follows:—
"1. When security for costs may be required from plaintiff—
(1) At any stage of the suit, the Court may, either of its own motion or on the
application of any defendant, order the plaintiff for reasons to be recorded to give
within the time fixed by it, security for the payment of all costs incurred and likely to be
incurred by any defendant:
Provided that such an order shall be made in all cases in which it appears to the Court
that a sole plaintiff is, or (when there are more plaintiff's than one) that all the plaintiff's
are, residing outside the State and that such plaintiff does not possess or that no one
of2 such plaintiff's possesses any sufficient immovable property within the State other
than the property in suit or that the plaintiff is being financed by another person.
(2) Whoever leaves that State under such circumstances as to afford reasonable
probability that he will not be forthcoming whenever he may be called upon to pay
costs shall be deemed to be residing outside the State within the meaning of the
proviso to sub-rule (1)2. (5-2-1983)
Madhya Pradesh (Notfn No 3409; 29-8-1943).—In sub-rule (1) after "property in suit"
insert "or that the plaintiff is being financed by a person not a party to the suit". (16-9-
1960)
Madras (R O C No 3019 of 1926).— Insert the following as sub-rule (4):—
"(4) In all cases in which an element of champerty or maintenance is proved, the Court
may on the application of the defendant demand security for the estimated amount of
the defendant's costs, or such proportion thereof, as from time to time during the
progress of the suit the Court may think just". (ROC 3019 of 1926)
Orissa (Notn No 24-X-7-52; 30-3-1954).—(i) Substitute sub-rule (3) by the following:—
"(3) On the application of a defendant in any suit the Court may at any stage of the suit
make a like order if it is satisfied that the plaintiff does not possess any sufficient
immovable property within the Union of India".
(ii) Insert the following as sub-rule (4):—
"(4) On being satisfied that there is an element of champerty or maintenance, the Court
may on the application of the defendant order a plaintiff to furnish security for the
entire estimated amount of the defendant's costs or a portion thereof from time to time
as the Court may consider just and proper." (7-5-1954)
NB.—The amendments in AP, MP, Mad & Orissa were made in the old rule before the
rule was substituted by Act 66 of 1956 on 1-1-1957. The question of repugnancy
between the High Court amendments and the present substituted rule should be
resolved in accordance with Arts 254 and 255 of Constitution.
COMMENT.—
Under this rule the Court may order the plaintiff, at any stage of the suit, for reasons to
be recorded to give within the time fixed by it security for the payment of all costs
incurred or likely to be incurred by any defendant. Such an order may be made by the
Court either suo moto that is of its own motion or on the application of the defendant.
But mere poverty or insolvency of the plaintiff, as held by the Full Bench of Travancore
Cochin High Court is not a sufficient ground for directing him to give security for costs
as a condition precedent for his continuing with the suit.3
1 Subs. by Code of Civil Procedure (Amendment) Act 66 of 1956, section 14, for the original
rule 1 (w.e.f. 1-1-1957).
2 For Corrigenda, see U.P. Govt. Gaz., dated 16-4-1983, Pt. 2, p. 1.
2 For Corrigenda, see U.P. Govt. Gaz., dated 16-4-1983, Pt. 2, p. 1.
3 Kassim Abdul v Hazi Rahiman, AIR 1950 Trav Co 100 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Effect of failure to
furnish security
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXV Security for Costs
R. 2.
Effect of failure to furnish security
(1) In the event of such security not being furnished within the time fixed, the
Court shall make an order dismissing the suit unless the plaintiff or plaintiffs
are permitted to withdraw therefrom.
(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to
set the dismissal aside, and, if it is proved to the satisfaction of the Court that
he was prevented by any sufficient cause from furnishing the security within
the time allowed, the Court shall set aside the dismissal upon such terms as to
security, costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
(3) The dismissal shall not be set aside unless notice of such application has been
served on the defendant.
Rule 3 added in Bombay & MP.

The following shall be added as sub-rule (4) in rule (2):
"(4) The provisions of Section 5 of the Indian Limitation Act, 1963 shall apply to
application under this rule."
1967.
Add the following as sub-rule (4) in rule (2):
"(4) The provisions of Section 5 of the Limitation Act, 1963, shall apply to applications
under this rule".
10-1983), Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28 Page 386, dated 1-4-
1987.
In Order XXV, after rule 2, add the following with marginal note as new Rule:—
"3. Power to implead and demand security from third person financing litigation.—
(1) Where any plaintiff has for the purpose of being financed in the suit transferred or
agreed to transfer any share or interest in the property in the suit to a person who is not
already a party to the suit, the Court may order such person to be made plaintiff to the
suit if he consents, and may either of its own motion or on the application of any
defendant order such person, within a time to be fixed by it, to give security for the
payment of all costs incurred and likely to be incurred by any defendant. In the event of
such security not being furnished
within the time fixed, the Court may make an order dismissing the suit so far as his
right to, or interest in, the property in suit is concerned, or declaring that he shall be
debarred from claiming any right to or interest in the property in suit.
(2) If such person declines to be made a plaintiff, the Court may implead him as a
defendant and may order him, within a time to be fixed by it, to give security for the
payment of all costs incurred and likely to be incurred by any other defendant. In the
event of such security not being furnished within the time fixed, the Court may make an
order declaring that he shall be debarred from claiming any right to or interest in the
property in suit.
(3) Any plaintiff or defendant against whom an order is made under this rule may apply
to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply
mutatis mutandis to such application." (1-10-1983) and (1-4-1987)
dated 16-9-1960.
Add the following as rule 3:—
"3. Power to implead and demand security from third person financing litigation—
(1) Where any plaintiff has, for the purpose of being financed in the suit transferred or
agreed to transfer any share or interest in the property in the suit to a person who is not
already a party to the suit, the Court may order such person to be made a plaintiff to
the suit if he consents, and may either of its own motion or on the application of any
defendant order such person, within a time to be fixed by it, to give security for the
payment of all costs incurred and likely to be incurred by any defendant. In the event of
such security not being furnished within the time fixed, the Court may make an order
dismissing the suit so far as his right to, or interest in, the property in suit is concerned
or declaring that he shall be debarred from claiming any right to or interest in the
property in suit.
(2) If such person declines to be made a plaintiff, the Court may implead him as a
defendant and may order him, within a time to be fixed by it, to give security for the
payment of all costs incurred and likely to be incurred by any other defendant. In the
event of such security not being furnished within the time fixed the Court may make an
order declaring that he shall be debarred from claiming any right to or interest in the
property in suit.
(3) Any plaintiff or defendant against whom an order is made under this rule may apply
to have it set aside and the provisions of sub-rules (2) and (3) of rule 2 shall apply,
mutatis mutandis, to such application." (16-9-1960)
COMMENT.—
The object of the rule is to provide protection for the defendant in certain cases where,
in the event of success, he may have no difficulty in realising his costs from the
plaintiff. This rule provides for taking of security for the costs of the suit. Order XLI rule
10 provides for the taking of security for the costs of appeal. The word "may" implies
discretion. The discretion, however, is to be exercised judicially and not arbitrarily.
The mere poverty or even insolvency of the plaintiff is no ground for ordering him to
give security for costs. This rule also applies in case of minors. A suit on behalf of a
minor plaintiff'should not be dismissed on the ground that the next friend of the minor
is unable to give security for costs. The other party may move the Court for the stay of
suit or for the removal of the next friend.
Some other case in which security may be required—
1. Order XVI, rule 16: Security from witness for his attendance;
2. Order XXI, rule 26: Security from judgment-debtor;
3. Order XXII, rule 8: Security in case of insolvency of the plaintiff;
4. Order XXXII, rule 6: Security from the next friend or guardian and item of a minor;
5. Order XXXVII, rule 3: Security in summary suits on negotiable instruments;
6. Order XXXVIII, rules 1, 2 and 5: Security in case of arrest or attachment before

judgment;
7. Order XL, rule 3: Security from a Receiver;
8. Order XLI, rules 5 and 6: Security in case of stay of execution;
9. Order XLI, rule 10: Security for costs in appeals;
10. Order XLV, rules 7 and 10: Security in case of appeal to the Supreme Court;
11. Order XLV, rule 13: Security in stay of execution of a decree of the Supreme
Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Cases in which
commission to examine
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXVI Commissions
Commission to Examine Witness
R. 1.
Cases in which commission to examine
Any Court may in any suit issue a commission for the examination on interrogatories
or otherwise of any person resident within the local limits of its jurisdiction who is
exempted under this Code from attending the Court or who is from sickness or
infirmity unable to attend it:
1 [Provided that a commission for examination on interrogatories shall not be issued

unless the Court, for reasons to be recorded, thinks it necessary so to do.
Explanation. —The Court may, for the purpose of this rule, accept a certificate
purporting to be signed by a registered medical practitioner as evidence of the
sickness or infirmity of any person, without calling the medical practitioner as a
witness.]

Gazette, dated 22-11-1980, Part 2, Page 69.
Rule 1 substituted as under:—
"1. Commission to examine witness.—Any Court may, in any suit, if for reasons to be
recorded in writing, it thinks it necessary so to do in the interest of justice or expedition,
issue a commission for examination of any person on interrogatories or otherwise."
(Notification No. 504/VIII-B-31, dated 22-11-1980)
COMMENT.—
This rule provides for the examination on commission of any person residing within
jurisdiction in certain circumstances. The basis of this rule is that the evidence of a
witness should be given in Public Court and tested by cross-examination. It has been
held by the Supreme Court of India that the issue of a commission is a matter of
judicial discretion.2 This discretion will not be exercised in favour of the applicant
unless—
(i) the application is made bona fide;
(ii) the issue in respect of which the evidence is required is one which the Court
ought to try;
(iii) the witness to be examined would give evidence material to the issue; and
(iv) there are some good reasons why the witness cannot be examined in Court.
It was further held by the Supreme Court that the issue of a commission being a matter
of discretion, the order for issue of commission will not be interfered with, it has been
properly exercised.3
The provisions under this order do not detract against inherent power of Supreme
Court to appoint commission for making enquiry into the facts relating to violation of
fundamental rights.4
The proviso and the Explanation have been inserted to this rule 1 in order to provide
that examination on interrogatories should be ordered only in special cases. It has been
provided that for proving the sickness or infirmity of the witness, a certificate signed by
a qualified registered medical practitioner should be accepted.
Rejection of application for appointment of Court commissioner on the ground that it

was not signed by applicants does not stand to reason and hence rejection on such a
ground is not proper.5
1 Ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 75, (w.e.f. 1-2-
1977).
2 Filmistan (Pvt) Ltd Bombay v Bhagwandas, AIR 1971 SC 61 : (1970) 3 SCC 258 .
3 Filmistan (Pvt) Ltd Bombay v Bhagwandas, AIR 1971 SC 61 : (1970) 3 SCC 258 .
4 Bandhua Mukti Morcha v UOI, AIR 1984 SC 802 (816) : (1984) 3 SCC 161 : 1984 Lab IC 560 :
(1984) 2 LLN 60 .
5 HMRudraradhya v Uma, AIR 2014 Kar 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Order for commission
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Order for commission
An order for the issue of a commission for the examination of a witness may be made
by the Court either of its own motion or on the application, supported by affidavit or
otherwise, of any party to the suit or of the witness to be examined.
THE FIRST SCHEDULE
R. 3.
Where witness resides within Court's jurisdiction
A commission for the examination of a person who resides within the local limits of
the jurisdiction of the Court issuing the same may be issued to any person whom the
Court thinks fit to execute it.

Substitute rule 3 as follows:—
"3. Commission to whom issued.—
Such commission may be issued to any Court not being a High Court within the local
limits of whose jurisdiction such person resides or to any pleader or other person
whom the Court thinks fit to execute it and the Court shall direct whether the
commission shall be returned to itself or to any subordinate Court.".
THE FIRST SCHEDULE
R. 4.
Persons for whose examination commission may issue
(1) Any Court may in any suit issue a commission 6[for the examination on
interrogatories or otherwise of—]
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which
he is required to be examined in Court; and
(c) 7[any person in the service of the Government] who cannot, in the
opinion of the Court, attend without detriment to the public service [MP]:
8 [Provided that where, under rule 19 of Order XVI, a person cannot be ordered
to attend a Court in person, a commission shall be issued for his examination if
his evidence is considered necessary in the interests of justice:
Provided further that a commission for examination of such person on

interrogatories shall not be issued unless the Court, for reasons to be
recorded, thinks it necessary so to do.]
(2) Such commission may be issued to any Court, not being a High Court, within
the local limits of whose jurisdiction such person resides, or to any pleader or
other person whom the Court issuing the commission may appoint.
(3) The Court on issuing any commission under this rule shall direct whether the
commission shall be returned to itself or to any subordinate Court.

Gazette, dated 22-11-1982, Part 2, Page 70, dated 22-11-1980.
Rule 4 as was in existence omitted.
Madhya Pradesh (Notfn No 3490; 29-6-1943).—
Add as clause (d) to sub-rule (1):—"(d) any person who by reason of anything connected
with the war cannot conveniently be spared".
1973, Part IV (Ga), Section 2, Extra., Page 259.
In Order XXVI add the following as new rule 4A, after rule 4 thereof, namely—
"4A. Commission for examination of any person resident within the local limits after
jurisdiction of the Court.—(1) Notwithstanding anything contained in these rules, any
Court may, in the interests of justice or for the expeditious disposal of the case or for
any other reason, issue commission in any suit for the examination, on interrogatories
or otherwise, of any person resident within the local limits of its jurisdiction, and the
evidence so recorded shall be read in evidence.
(2) The provisions of sub-rule (1) shall apply to proceedings in execution of a decree or
order." (Raj. Gaj., 1-2-1973, Pt. IV (Ga), Section 2, Ext., pp. 259-260).
COMMENT.—
In view of the words used 'May issue' in this rule, the general trend of opinion is that the
Court has a discretion to grant or refuse a commission. The discretion must be
exercised judicially and in exceptional cases only.9
In sub-rule (1) of this rule 4, for the words "for the examination of, the words "for the
examination on interrogatories or otherwise of were substituted and the provisions
were added the sub-rule (1) in view of changes made in rule 1 above.
6 Subs by the Code of Civil Procedure (Amendment) Act 104 of 1976, for the words "for the
examination of, (w.e.f. 1-2-1977).
7 Subs. by A.O. 1937, for "any civil or military officer of the Government".
1977).
9 Ramesh v Bhagwandas, AIR 1972 AP 216 . 10. Ins. by the Code of Civil Procedure
(Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002) vide Notification. S.O. 603(E), dt. 6-6-
2002.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4A. Commission for
examination of any person resident within the local limits of the jurisdiction of the Court
© 2020 LexisNexis
THE FIRST SCHEDULE
10[R. 4A.
Commission for examination of any person resident within the local limits of
the jurisdiction of the Court
Notwithstanding anything contained in these rules, any Court may, in the interest of
justice or for the expeditious disposal of the case or for any other reason, issue
commission in any suit for the examination, on interrogatories or otherwise, of any
person resident within the local limits of its jurisdiction, and the evidence so recorded
shall be read in evidence.]
COMMENT.—
The Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002).—
Modifications.—Insertion of new Rule.
This rule is new, inserted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
1999).
1. Rule 4A has been inserted in O XXVI after rule 4.
2. The Court has been empowered to issue commission even where a witness
resides within the local limits of the jurisdiction of the Court whereas formerly the
Court could do so only where the witness in question resided outside the
jurisdiction of the Court.

1999 stated thus:
"Order XXVI enables the Court to issue commission only in cases where witness
resides outside the local limits of the jurisdiction of the Court. It is proposed to amend
O XXVI by inserting a new rule 4A so as to enable the Court to issue commission in any
case where the interest of justice so demands." [Clause 29].
See comments under O XVIII rule 19.

10 Beniram v Gaind, AIR 1982 SC 789 : (1981) 4 SCC 209 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Commission or Request
to examine witness not within India
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Commission or Request to examine witness not within India
Where any Court to which application is made for the issue of a commission for the
examination of a person residing at any place not within 11[India] is satisfied that the
evidence of such person is necessary, the Court may issue such commission or a
letter of request.
COMMENT.—
The Supreme Court has held that the fact that the witness cannot be effectively cross-
examined or their examination will entail heavy costs or that the commission cannot
effectively compel the witness to appear before him are not sufficient considerations to
interfere with the exercise of such discretion.12
11 Subs. by the Code of Civil Procedure (Amendment) Act 2 of 1951, section 3, for "the States"
(w.e.f. 1-2-1977).
12 Filmstan (Pvt) Ltd Bombay v Bhagwandas, AIR 1971 SC 61 : (1970) 3 SCC 258 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Court to examine
witness pursuant to commission
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Court to examine witness pursuant to commission
Every Court receiving a commission for the examination of any person shall examine
him or cause him to be examined pursuant thereto.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Return of commission
with depositions of witnesses
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Return of commission with depositions of witnesses
Where a commission has been duly executed, it shall be returned, together with the
evidence taken under it to the Court from which it was issued, unless the order for
issuing the commission has otherwise directed, in which case the commission shall
be returned in terms of such order; and the commission and the return thereto and the
evidence taken under it shall 13[subject to the provisions of rule 8] form part of the
record of the suit.

In rule 7 omit the words "subject to the provisions of rule 8" and Insert the words at the
end "and shall be read as evidence in the suit".
COMMENT.—
In rule 7, for the words and bracket "subject to the provisions of the next following rule"
the words and brackets "subject to the provisions of rule 8" were substituted.
13 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 75, for certain
words (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. When depositions may
be read in evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
When depositions may be read in evidence
Evidence taken under a commission shall not be read as evidence in the suit without
the consent of the party against whom the same is offered, unless—
(a) the person who gave the evidence is beyond the jurisdiction of the Court, or
dead or unable from sickness or infirmity to attend to be personally examined,
or exempted from personal appearance in Court or is a 14[person in the service
of the Government] who cannot, in the opinion of the Court, attend without
detriment to the public service, or
(b) the Court in its discretion dispenses with the proof of any of the circumstances
mentioned in clause (a), and authorizes the evidence of any person being read
as evidence in the suit, notwithstanding proof that the cause for taking such
evidence by commission has ceased at the time of reading the same.

Rule 8 as was in existence omitted.
COMMENT.—
When there was no evidence to show that, on the day the statement of a witness taken
under a commission was admitted on the record, and, therefore, during the course of
the enquiry, the sickness or infirmity which prevented the witness from attending the
Court did not persist till the case was finally disposed of, it was held by the Supreme
Court that the statement was admissible.15
Such evidence can be read at the instance of either party to the suit and necessarily by
the party who applied for a commission.16
14 Subs by A.O. 1937, for "civil or military officer of the Government".

15 Yogindra v Markandeshwar, AIR 1971 SC 690 : (1972) 4 SCC 66 .
16 Abdul Sovan v Rafikan Bibi, AIR 1972 Ori 213 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Commissions to make
local investigations
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions for Local Investigations
R. 9.
Commissions to make local investigations
In any suit in which the Court deems a local investigation to be requisite or proper for
the purpose of elucidating any matter in dispute, or of ascertaining the market-value
of any property, or the amount of any mesne profits or damages or annual net profits,
the Court may issue a commission to such person as it thinks fit directing him to
make such investigation and to report thereon to the Court:
Provided that, where the State Government has made rules as to the persons to whom
such commission shall be issued, the Court shall be bound by such rules. [C, GAU]
[Proviso omitted in Cal. & Gauhati.]
Calcutta (Notfn No 11223-G of 7-4-1933).— Omit the proviso.
Assam and Nagaland.—Same as in Calcutta.
COMMENT.—
The Allahabad High Court has held in Gajraj v Ramadhar, AIR 1975 All 406 that the
appellate Court has the power to issue a commission for local inspection in the same
manner in which a trial Court can act under O XXVI, rule 9.
Accordingly, where the lower appellate Court finds that clear demarcation of
boundaries is necessary for giving a finding on the question of ownership what it
should do is not to remand the entire suit under O LXI, rule 23, but issue a commission
under O XXVI, rule 9.
In a suit for possession of premises and mesne profits the mesne profits were claimed
according to "present rental value". The Court took the view that "existing rents" would
be a "fair measure" of mesne profits without deciding application. The order was held
illegal.17
Where a commission was appointed to go into questions raised in the matters

including why disciplinary action dropped against several respondents. The parties
were given liberty to appear before the commission. The matters were to be listed after
receiving of Commission's report.18
Reference may be made to Rajbir Kaur v S Chokesiri & Co, AIR 1988 SC 1845 : (1989) I
SCC 19 at p 41 wherein it was held that "the requirements of rule 9 of O XXVI are
construed to apply to a stage after the making of an order appointing the
Commissioner."
Further held that:—
But it is possible to construe the power to appoint a Commissioner to inspect the extant
state and nature of structures as not confined to rule 9 of Order XXVI but referable to rule 7
of Order XXXIX of the Code of Civil Procedure where the Court can dispense with prior
notice, should it appear to the Court that the very object of making of appointment of a
Commissioner would be defeated and frustrated by the issue of prior notice. On the scope
of rule 8 of Order XXXIX as it stood even prior to its amendment, High Courts have held that
an ex parte order appointing a Commissioner, is permissible.
Appointment of local commissioner.—
Where there was controversy between the parties regarding demarcation of land
because parties had adjacent lands, local commissioner ought to have been appointed
for demarcation of land.19
Appointment of Advocate commissioner.—
In a suit for bare injunction the Court should discourage filing of an application for
appointment of an Advocate Commissioner as the scope of such suit is very limited. In
other words the Court should not aid the parties to collect evidence, more specially in a
suit for bare injunction.20
Significance of Court Commissioner's Report.—
In a dispute regarding identification of land the report of the Court commissioner

stated that the land handed over to the decree holder is different from land in respect
of which decree was passed. The said report of the commissioner was not challenged
by either of the parties. The local investigation report of the Court commissioner would
assume great significance and would be a relevant piece of evidence on record. The
trial Court erred in ignoring the said report and the finding of the trial Court that land in
dispute is one and the same in respect of which decree was passed is incorrect.21
Necessity for appointment of Survey Commissioner.—
In a suit for declaration of title and permanent injunction, the pleadings show that there
is boundary dispute between the parties then for the final and effective adjudication of
dispute, measurement of plot by Survey Commissioner is necessary.22
17 Dalhausi Properties Ltd v Sooraj Mull, AIR 1977 SC 223 : (1977) 1 SCC 367 .
18 Noida Entrepreneurs Association v Noida, (2007) 10 SCC 395 .
19 Haryana Waqf Board v Shanti Sarup, (2008) 8 SCC 671 (672); see also Bhaskaran v Shobha,
2011 AIR CC 26 (Ker) (Commissioner conducted local inspection without notice to the
defendants, report non-admissible in evidence).
20 Surinder Kaur v Rawinder Singh, AIR 2013 P&H 189 .
21 Sanwal Ram v Ramjan, AIR 2016 Chh 48 .
22 Nakula Sahu v Suresh Chandra Beherdolai, AIR 2016 Ori 24 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Procedure of
Commissioner
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions for Local Investigations
R. 10.
Procedure of Commissioner
(1) The Commissioner, after such local inspection as he deems necessary and
after reducing to writing the evidence taken by him, shall return such evidence,
together with his report in writing signed by him, to the Court.
Report and depositions to be evidence in suit
(2) The report of the Commissioner and the evidence taken by him (but not the
evidence without the report) shall be evidence in the suit and shall form part of
the record; but the Court or, with the permission of the Court, any of the parties
to the suit may examine the Commissioner personally in open Court touching
any of the matters referred to him or mentioned in his report, or as to his
report, or as to the manner in which he has made the investigation.
Commissioner may be examined in person
(3) Where the Court is for any reason dissatisfied with the proceedings of the
Commissioner, it may direct such further inquiry to be made as it shall think fit.
COMMENT.—
Where a Commissioner is appointed to assess the condition of a building, he can only

report the fact of existing condition of the building and not as to who did it. His report
cannot be rejected on ground that it does not indicate as to who damaged the
building.23
It has been held by a Division Bench of Delhi High Court that a statement in the report
as to matters beyond the scope of the order of appointment is not admissible in
evidence,24 and the evidentiary value of the report will depend upon the nature of the
report and other circumstances.25
Where the report of commissioner tends to show that the demised premises are no
longer in occupation of the tenant but in the occupation of strangers, inference of
subletting can be drawn. The High Court was in error holding that, such a report could
not be acted upon or treated as a legal evidence. Setting aside the decree of eviction by
the High Court was not proper.26
The commissioner's report and sketch could be taken as part of court records. The
Commissioner is Court Officer and his report is deemed to be forming part of record.27
The procedure for issuing commission for local investigation laid down in O XXVI rule 9
and 10 is for the purpose of elucidating any matter in dispute. The Court may examine
the commissioner personally in open Court relating to any matters referred to him or
mentioned in his report or as to the manner in which he has made the investigation. His
report is nothing more than a piece of evidence and has no other sanctity. Like any
other piece of evidence, the Court is competent to rule on the admissibility of the
commissioner's report. Although rule 10 of O XXXVI does not expressly provide for
setting aside of commissioner's report, the Court can do so in the exercise of its
inherent powers. If the Court finds a commissioner's report to be completely useless
and of no assistance to it, it would be futile to preserve the same in the records of the
Court.28
The Advisory Commissioner is expected to adopt an impartial stand and shall behave
in such an exemplary manner that he gives no room for any allegation of bias from any
one of the litigating parties. The report of the Advisory Commissioner shall be evidence
in the suit in which it is filed (without him being even examined) and shall form part of
the record under O XXVI rule 10 (2) of the Code of Civil Procedure. The Court if
dissatisfied with the proceeding and Advisory Commissioner for any reason can direct
such further enquiry to be made as it thinks fit under O XXVI rule 10 (3) of the Code of
Civil Procedure. The Court is also empowered to set aside the report and issue
commission afresh by deputing another advocate to discharge the function under and
give a vivid report of the true state of affairs in order to aid the Court to have proper
assessment of the factual matrix.. Advisory Commissioner has no right to be heard
before his report is set aside and is not also a person aggrieved by the order appointing
another to execute the warrant of appointment.29
23 Lekh Raj v Muni Lal, AIR 2001 SC 996 (1001) : (2001) 2 SCC 762 .
24 JA Taban v Khairul Nissa, AIR 1970 Delhi 205 .
25 Mariappa Thevar v Kaliammal, AIR 1971 Mad 198 .
26 Southern CommandMES Coop Credit Society v VKN Nambiar, AIR 1988 SC 2126 : (1988) 2
SCC 292 .
27 Dilli Babu v Suryanarayanan, 2011 AIR CC 1417 (1419) (Mad).
28 Chinmayee Saha v Renuka Haider, AIR 2016 Cal 33 .
29 B Subhash v State of Kerala, AIR 2014 Ker 206 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10A. Commission for
scientific investigation
© 2020 LexisNexis
THE FIRST SCHEDULE
30[Commission for Scientific Investigation, performance of Ministerial

Act and Sale of Movable Property]
31[R. 10A.
Commission for scientific investigation
(1) Where any question arising in a suit involves any scientific investigation which
cannot, in the opinion of the Court, be conveniently conducted before the
Court, the Court may, if it thinks it necessary or expedient in the interests of
justice so to do, issue a commission to such person as it thinks fit, directing
him to inquire into such question and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall, as far as may be, apply in relation
to a Commissioner appointed under this rule as they apply in relation to a
Commissioner appointed under rule 9.
COMMENT.—
Where documents are alleged to be forged and party specifically denies signature or
thumb impression on document, such party should get opportunity of sending
document to handwriting expert.32
Opinion of second report.—
If the circumstances warrant, the Court may appoint second commissioner or to seek
the opinion of a second expert in the light of the language of O XXVI rule 10A of the
Code read with section 45 of the Indian Evidence Act, 1872.33
Rejecting of application under O XXVI rule 10 (A)(1) for scientific investigation on the
grounds i.e.
(i) Want of facility for examining documents by handwriting experts in the state of
Sikkim and
(ii) The handwriting experts at Kolkata;
it was held that the learned trial Court had failed to exercise the power conferred under
O XXVI rule 10A (1) of the Code of Civil Procedure, 1908.34
30 Ins by Code of Civl Procedure (Amendment) Act 104 of 1976, section 75, (w.e.f. 1-2-1977).
32 Jalagadugula Eswara Rao v Davala Surya Rao, AIR 2011 AP 78 (79).
33 MRamesh Babu v MSreedhar, 2009 (4) ALT 780 (795) (DB).
34 Prashant Kumar Goyal v Sogra Khatoon, AIR 2012 Sikkim 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10B. Commission for
performance of a ministerial act
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 10B.
Commission for performance of a ministerial act
(1) Where any question arising in a suit involves the performance of any
ministerial act which cannot, in the opinion of the Court, be conveniently
performed before the Court, the Court may, if, for reasons to be recorded, it is
of opinion that it is necessary or expedient in the interests of justice so to do,
issue a commission to such person as it thinks fit, directing him to perform
that ministerial act and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall apply in relation to a

Commissioner appointed under this rule as they apply in relation to a
COMMENT.—
Non-consideration of the report of the special officer and the surveyor appointed with
the consent of both parties, that too after rejection of the objection filed in respect of
the report, vitiates the ultimate conclusion.35
35 TK Bose v Savitri Devi, AIR 1996 SC 2752 (2754) : (1996) 10 SCC 96 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10C. Commission for the
sale of movable property
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 10C.
Commission for the sale of movable property
(1) Where, in any suit, it becomes necessary to sell any movable property which is
in the custody of the Court pending the determination of the suit and which
cannot be conveniently preserved, the Court may, if, for reasons to be
recorded, it is of opinion that it is necessary or expedient in the interests of
justice so to do, issue a commission to such person as it thinks fit, directing
him to conduct such sale and report thereon to the Court.
(2) The provisions of rule 10 of this Order shall apply in relation to a

Commissioner appointed under this rule as they apply in relation to a
(3) Every such sale shall be held, as far as may be, in accordance with the
procedure prescribed for the sale of movable property in execution of a
decree.]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Commission to
examine or adjust accounts
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions to Examine Accounts
R. 11.
Commission to examine or adjust accounts
In any suit in which an examination or adjustment of the accounts is necessary, the

Court may issue a commission to such person as it thinks fit directing him to make
such examination or adjustment.
COMMENT.—
The Supreme Court of India held that, the Code does not make any provision for the
appointment of a Commissioner who may seize the account books which are in the
possession of the plaintiff on the ground of the defendants apprehension that the
plaintiff might have tampered with them. It was further held that the Court's inherent
powers cannot be invoked for such purposes.36
36 Padam Sen v State of UP, AIR 1961 SC 218 : (1961) 1 SCR 884 : (1961) 1 CrLJ 322 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Court to give
Commissioner necessary instructions
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions to Examine Accounts
R. 12.
Court to give Commissioner necessary instructions
(1) The Court shall furnish the Commissioner with such part of the proceedings
and such instructions as appear necessary, and the instructions shall distinctly
specify whether the Commissioner is merely to transmit the proceedings which
he may hold on the inquiry, or also to report his own opinion on the point
referred for his examination.
Proceedings and report to be evidence, Court may direct further inquiry
(2) The proceedings and report (if any) of the Commissioner shall be evidence in
the suit, but where the Court has reason to be dissatisfied with them, it may
direct such further inquiry as it shall think fit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Commission to make
partition of immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions to make Partitions
R. 13.
Commission to make partition of immovable property
Where a preliminary decree for partition has been passed, the Court may, in any case
not provided for by Section 54, issue a commission to such person as it thinks fit to
make partition or separation according to the rights as declared in such decree.
COMMENT.—
In a suit for partition of joint family property the Court appoints a commissioner. It
directs him to submit his proposals for partition and for that purpose authorises him to
ascertain the property available for partition and the liability of the joint family. The
Court does not abdicate its functions to the Commissioner. The Commissioner is
called upon to make proposals for the partition on which the parties would be heard.
The proposals cannot be binding on the parties nor the reasons in support thereof.37
Non-application of the rule.—
A Commissioner can be appointed to make partition of immovable property only after

preliminary decree, declaring shares of parties, has been passed. If the partition suit is
disposed of finally in terms of compromise decree, then rule 13 does not come into
operation.38
37 Munnalal v Rajkumar, AIR 1962 SC 1493 (1496) : 1962 Supp (2) SCR 418 : 1962 Nag LJ 521 :
1962 MPLJ 977 .
38 Rachakonda Venkat Rao v R Satya Bai, AIR 2003 SC 3322 (3328) : (2003) 7 SCC 452 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Procedure of
Commissioner
© 2020 LexisNexis
THE FIRST SCHEDULE
Commissions to make Partitions
R. 14.
Procedure of Commissioner
(1) The Commissioner shall, after such inquiry as may be necessary, divide the
property into as many shares as may be directed by the order under which the
commission was issued, and shall allot such shares to the parties, and may, if
authorised thereto by the said order, award sums to be paid for the purpose of
equalising the value of the shares.
(2) The Commissioner shall then prepare and sign a report or the Commissioners
(where the commission was issued to more than one person and they cannot
agree) shall prepare and sign separate reports appointing the share of each
party and distinguishing each share (if so directed by the said order) by metes
and bounds. Such report or reports shall be annexed to the commission and
transmitted to the Court; and the Court, after hearing any objections which the
parties may make to the report or reports, shall confirm, vary or set aside the
same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree
in accordance with the same as confirmed or varied; but where the Court sets
aside the report or reports it shall either issue a new commission or make such
other order as it shall think fit.
[Sub-rules (2), (3) amended in Orissa & Patna.]
Patna (Notn No 8 of 4-3-1932).—Sub-rules (2) and (3) have been substituted and they
contain the following alterations in the existing sub-rules:—
(a) In sub-rule (2) for the words "(if so directed by the said order) by metes and
bounds" substitute the following:— "(if necessary) by metes and bounds. The
Commissioner or Commissioners shall append to the report, or where there is
more than one to each report, a schedule showing the plots and areas allotted to
each party and also, unless otherwise directed by the Court a map showing in
different colours the plots or portions of plots allotted to each party. In the event
of a plot being sub-divided, the area of each sub-plot shall be given in the
schedule, and also measurements showing how the plot is to be divided.
(b) In sub-rule (2) after the words "Such report or reports" insert "with the schedule
and the map) if any".
(c) In sub-rule (3) for the words; "but where the Court.... shall think fit" substitute "and
when drawing up the final decree shall incorporate in the decree the schedule,
and the map, if any, mentioned in sub-rule (2) above as confirmed or varied by
the Court the whole report or reports of the Commissioner or Commissioners
shall not ordinarily be entered in the decree. Where the Court sets aside the
report or reports it shall either issue a new commission or make such other
order as it shall think fit."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Expenses of
commission to be paid into Court
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
R. 15.
Expenses of commission to be paid into Court
Before issuing any commission under this Order, the Court may order such sum (if
any) as it thinks reasonable for the expenses of the commission to be, within a time to
be fixed, paid into Court by the party at whose instance or for whose benefit the
commission is issued [AP, K, M, MY, OR].
[Rule amended in Orissa; Sub-rule (2) added in AP, Karnataka, Kerala & Mad.]

Renumber rule 15 as 15(1) and add the following as sub-rule (2):
"(2) Before executing and returning any commissions issued by any of the Courts
mentioned in Clause (c) of Section 78 of this Code, the Court or the Commissioner
required to execute such commission may levy such fees as the High Court may from
time to time prescribe in this behalf in addition to the fees prescribed for the issue of
summonses to witnesses and for expenses of such witnesses under rule 2 of Order
XVI of this Code".
Kerala (Notfn No BI-3312/58, 7-4-1959).— Same as in Madras.
Madras.—Renumber the existing rule as sub-rule (1) and insert the following as sub-rule
(2):—
"(2) Before executing and returning any commission issued by foreign Courts under the
provisions of Section 78 the Court or the Commissioner required to execute the
commission may levy such fees as the High Court may from time to time prescribe in
this behalf in addition to the fees prescribed for the issue of summons to witnesses
and for expenses of such witnesses under rule 2 of Order XVI." (9-6-1959)
Orissa (Notfn No 24-X-7-52; 30-3-1954).—At the end of the rule add the following:—
"and after the issue of such commission may order such further sums to be paid into
Court from time to time by either party as the Court may consider necessary". (7-5-
1954)
Pondicherry.— Same as in Madras.
COMMENT.—
Where the suit had been dismissed by the Court after passing of the preliminary decree
because the plaintiff did not pay the Commissioner's fee for purposes of effecting
actual partition, it has been held by the Supreme Court that the dismissal of the suit will
not operate to wipe out the preliminary decree.39
39 Chandra Kanta v Balkrishna, AIR 1970 SC 1536 : (1970) 3 SCC 446 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Powers of
Commissioners
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
R. 16.
Powers of Commissioners
Any Commissioner appointed under this Order may, unless otherwise directed by the
order of appointment,—
(a) examine the parties themselves and any witness whom they or any of them
may produce, and any other person whom the Commissioner thinks proper to
call upon to give evidence in the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of
inquiry;
(c) at any reasonable time enter upon or into any land or building mentione d in the
order.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 16A. Questions objected to
the before the Commissioner
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
40[R. 16A.
Questions objected to the before the Commissioner
(1) Where any question put to a witness is objected to by a party or his pleader in
proceedings before a Commissioner appointed under this Order, the
Commissioner shall take down the question, the answer, the objections and the
name of the party or, as the case may be, the pleader so objecting:
Provided that the Commissioner shall not take down the answer to a question
which is objected to on the ground of privilege but may continue with the
examination of the witness, leaving the party to get the question of privilege
decided by the Court, and, where the Court decides that there is no question of
privilege, the witness may be recalled by the Commissioner and examined by
him or the witness may be examined by the Court with regard to the question
which was objected to on the ground of privilege.
(2) No answer taken down under sub-rule (1) shall be read as evidence in the suit
except by the order of the Court.]
COMMENT.—
Rule 16-A was inserted which deals with the questions objected to before the
Commissioner. It has been provided in sub-rule (2) of the newly added rule 16-A that
"No answer taken down under sub-rule (1) shall be read as evidence in the suit except
by the order of the Court".
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Attendance and
examination of witnesses before Commissioner
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
R. 17.
Attendance and examination of witnesses before Commissioner
(1) The provisions of this Code relating to the summoning, attendance and
examination of witnesses, and to the remuneration of, and penalties to be
imposed upon, witnesses, shall apply to persons required to give evidence or
to produce documents under this Order whether the commission in execution
of which they are so required has been issued by a Court situate within or by a
Court situate beyond the limits of 41[India], and for the purposes of this rule the
Commissioner shall be deemed to be a Civil Court [K] :
42[ Provided that when the Commissioner is not a Judge of a Civil Court, he
shall not be competent to impose penalties; but such penalties may be
imposed on the application of such Commissioner by the Court by which the
commission was issued.]
(2) A Commissioner may apply to any Court (not being a High Court) within the
local limits of whose jurisdiction a witness resides for the issue of any process
which he may find it necessary to issue to or against such witness, and such
Court may, in its discretion, issue such process as it considers reasonable and
proper.
COMMENT.—
The proviso was inserted to sub-rule (1) of rule 17, in order to clarify that it will not be
open to the Commissioner to impose penalties, but he may apply to the Court for the
imposition of penalties.
41 Subs. by Act 2 of 1951, section 3, for "the States".

42 Added by Act 104 of 1976, section 75 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Parties to appear
before Commissioner
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
R. 18.
Parties to appear before Commissioner
(1) Where a commission is issued under this Order, the Court shall direct that the
parties to the suit shall appear before the Commissioner in person or by their
agents or pleaders. [A]
(2) Where all or any of the parties do not so appear, the Commissioner may
proceed in their absence.
[Sub-rule (1) amended in Allahabad & Orissa]
Allahabad (Notfn No 4084/35(a)-3(7); 24-7-1926).—
In sub-rule (1) after the words "agents or pleaders" substitute a comma for the full stop,
and add the following:—"and shall direct the party applying for the examination of the
witness, or in its discretion any other party to the suit, to supply the Commissioner with
a copy of the pleadings and issues." (24-7-1926)
Orissa.—Same as in Allahabad. (29-12-61).
COMMENT.—
In view of rule 18 of O XXVI of the Code, there cannot be any doubt that the
commissioner should have issued notice to all the parties.43
43 Ram Aloka Dudhoria v Gautam Dudhoria, AIR 2010 SC 53 (72) : (2009) 13 SCC 569 (595).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 18A. Application of Order
to execution proceedings
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
44[R. 18A.
Application of Order to execution proceedings
The provisions of this Order shall apply, so far as may be, to proceedings in execution
of a decree or order.
COMMENT.—
Rule 18-A was inserted, which provides that the provisions with regard to issue of
commissions shall apply to execution proceedings as will.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18B. Court to fix a time for
return of commission
© 2020 LexisNexis
THE FIRST SCHEDULE
General Provisions
R. 18B.
Court to fix a time for return of commission
The Court issuing a commission shall fix a date on or before which the commission
shall be returned to it after execution, and the date so fixed shall not be extended
except where the Court, for reasons to be recorded, is satisfied that there is sufficient
cause for extending the date.]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Cases in which High
Court may issue commission to examine Witness
© 2020 LexisNexis
THE FIRST SCHEDULE
45[Commissions issued at the Instance of Foreign Tribunals]
R. 19.
Cases in which High Court may issue commission to examine Witness
(1) If a High Court is satisfied—
(a) that a foreign Court situated in a foreign country wishes to obtain the
evidence of a witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court's appellate
jurisdiction,
it may, subject to the provisions of rule 20, issue a commission for the
examination of such witness.
(2) Evidence may be given of the matters specified in clauses (a), (b) and (c) of
sub-rule (1)—
(a) by a certificate signed by the consular officer of the foreign country of

the highest rank in India and transmitted to the High Court through the
Central Government, or
(b) by a letter of request issued by the foreign Court and transmitted to the
High Court through the Central Government, or
(c) by a letter of request issued by the foreign Court and produced before
the High Court by a party to the proceeding.
45 The heading and rules 19 to 22 inserted by the Code of Civil Procedure (Amendment) Act 10
of 1932, section 3.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Application for issue of
commission
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Application for issue of commission
The High Court may issue a commission under rule 19—
(a) upon application by a party to the proceeding before the foreign Court, or
(b) upon an application by a law officer of the State Government acting under
instructions from the State Government.
of 1932, section 3.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. To whom commission
may be issued
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 21.
To whom commission may be issued
A commission under rule 19 may be issued to any Court within the local limits of
whose jurisdiction the witness resides, or, [K]46 [* * *] where the witness resides
within the local limits of 47[the ordinary original civil jurisdiction of the High Court,] to
any person whom the Court thinks fit to execute the commission.
[Rule amended in Kerala.]

Gazette, dated 9 June 1959.
For rule 21 the following rule shall be substituted, namely:—
"21. To whom commission may be issued.—A commission under rule 19 may be

issued to any Court within the local limits of whose jurisdiction the witness resides, or
to any person whom the Court thinks fit to execute the commission." (9-6-1959)
of 1932, section 3.
46 The words "the High Court is established under the Indian High Courts Act, 1861, or the
Government of India Act, 1915 and" omitted by the A.O. 1937.
47 Subs. by A.O. 1937, for "its ordinary original civil jurisdiction".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 22. Issue, execution and
return of commissions and transmission of evidence to foreign Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 22.
Issue, execution and return of commissions and transmission of evidence to
foreign Court
The provisions of rules 6, 15, 48[sub-rule (1) of rules 16A, 17, 18 and 18B of this Order
in so far as they are applicable shall apply to the issue, execution and return of such
commissions, and when any such commission has been duly executed it shall be
returned, together with the evidence taken under it, to the High Court, which shall
forward it to the Central Government, along with the letter of request for transmission
to the foreign Court.]
Karnataka.—After rule 22 add the following rules:—
"23. (1) The Court may in any suit issue a commission to such person or persons as it
thinks fit to translate accounts and documents which are not in the language of the
Court.
(2) Before issuing such a commission the Court may order such sum, if any, as it thinks
reasonable for the expenses of the commission to be paid into Court by the party at
whose instance or for whose benefit the commission has been issued within such time
as may be fixed by the Court.
(3) The report of the commissioner shall be evidence in the suit and shall form part of
the record.
(4) Where however a translation as required by rule 12 of Order XII of this Code has
already been filed into Court, no further commission under this rule need be issued.
(5) A translation submitted by the commissioner or commissioners under this rule shall
be verified in the manner prescribed in rule 12 of Order XIII of this Code.
24. The provisions of this Order shall apply so far as may be to proceedings in
execution of a decree or order." (ROC No 2526 of 1959, dated 9-2-1967).
Kerala (Lakshadweep Island).—The following amendments were made by Kerala Act,

dated 9-6-1959.
Madras (Pondicherry).—Add the following as rule 23:
"R. 23. Application of order to execution proceedings.—The provisions of this Order

and Order XXVI A shall apply, so far as may be, to proceedings in execution of a decree
or order."
Madras.—(Dis No 1685 of 1914).—Insert the following as Order XXVI-A:—
ORDER XXVI-A (New)
"R. 1. Court may issue commission to translate account or other document.—The
Court may in any suit issue a commission to such persons as it thinks fit to translate
accounts and other documents which are not in the language of the Court.
R. 2. Report of commissioner is evidence in the suit.—The report of the Commissioner

shall be evidence in the suit and shall form part of the record.
R. 3. Court may order deposit of expense of Commissioner.—Before issuing any

commission under this Order, the Court may order such sum (if any) as it thinks
reasonable for the expense of the commission to be, within a time to be fixed, paid into
Court by the party at whose instance or for whose benefit the commission is issued."
Orissa.— The following amendments were made by Orissa Act, dated 29-12-1961.
After rule 22 of Order XXVI insert the following new rules :—
"23. (i) The Court may in any suit issue a commission to such persons as it thinks fit to
translate accounts or other documents which are not in Court language or to inspect
documents for purposes to be specified in the order appointing such Commissioner.
(ii) The report of Commissioner shall be evidence in suit and shall form a part of the
record.
(iii) Before issuing commission under this rule the Court may order such sums (if any)
as it thinks reasonable for the expenses of the commission to be, within a time to be
fixed, paid in the Court by the party at whose instance or for whose benefit the
commission is issued.
24. Application of order to execution proceedings.—The provisions of this Order shall

apply, as far as may be, to proceedings in execution of a decree or order."
of 1932, section 3.
48 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 75, for "16, 17
and 18" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Suits by or against
Government
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXVII Suit by or against the Government or Public Officers in their

Official Capacity
R. 1.
Suits by or against Government
In any suit by or against 1[the Government] the plaint or written statement shall be
signed by such person as the Government may, by general or special order, appoint in
this behalf, and shall be verified by any person whom the Government may so appoint
and who is acquainted with the facts of the case.
Uttar Pradesh.— The following amendment were made by Uttar Pradesh Act No 57 of
1976, Section 11, dated 1-1-1977.
In its application to the State of Uttar Pradesh, in the marginal heading of the Order,
after the words "official capacity", insert the words "or Statutory Authorities, etc.".
COMMENT.—
The rule 1 of O XXVII of the Code provides that in any suit by or against the
Government, the plaint or written statement shall be signed by such person as the
Government may like by general or special order authorise in that behalf and shall be
verified by any person whom the Government may so appoint.2
Persons authorized act for Goverrnnent
1 Subs. by the A.O. 1937, for "the Secretary of State for India in Council".
2 Collector v Bagathi Krishna Rao, (2010) 6 SCC 427 (430).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Persons authorised act
for Government
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 2.
Persons authorised act for Government
Persons being ex-officio or otherwise authorised to act for the Government in respect
of any judicial proceeding shall be deemed to be the recognised agents by whom
appearances, acts and applications under this Code may be made or done on behalf
of the Government.
COMMENT.—
Any concession made by the Government pleader in trial Court cannot bind the
Government. The same yardstick cannot be applied when Advocate General has made
statement across the bar. The Advocate makes the statement with all responsibility.3
Recognised agents.—
A District Government Counsel (in UP) is authorised to receive summons on behalf of

the State. When he seeks adjournment for filing written statement and the request is
granted, the State Government cannot later say that the application for adjournment
was unauthorised.4
3 Periyar & Pareekanni Rubbers Ltd v State of Kerala, AIR 1990 SC 2192 (2199) : (1991) 4 SCC
195 .
4 State of UP v Janki Saran, AIR 1973 SC 2071 (2076) : (1973) 2 SCC 96 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Plaints in suits by or
against Government
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 3.
Plaints in suits by or against Government
In suits by or 5[against the Government], instead of inserting in the plaint the name
and description and place of residence of the plaintiff or defendant, it shall be
sufficient to insert 6[the appropriate name as provided in Section 79 7[* * *].
5 Subs, A.O. 1937, for "against the Secretary of State for India in Council".
6 Subs. by the A.O. 1937, for "the Secretary of State for India in Council".
7 The words "or if the suit is against the secretary of state, the Secretary of State" omitted by
the A.O. 1948.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 4. Agent for Government to
receive process
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
8[R. 4.
Agent for Government to receive process
The Government pleader in any Court shall be the agent of the Government for the
purpose of receiving processes against the Government issued by such Court.]
Rajasthan.—In Order XXVI, for rule 4, substitute the following rule, namely:
4. The Government pleader in any Court or an officer appointed for the purpose by the
Government shall be the agent of the Government for the purpose of receiving
processes against the Government, issued by such Court.9
COMMENT.—
Where Government authorises a Government Pleader to represent in all civil cases in

the district, appointment of plurality of Assistant Government Pleaders and entrusting
land acquisition cases to one of them is not an illegality.10
8 Subs. by the A.O. 1937, for the original rule 4.

9 Vide Notification No. 11/SRO/97, dated 27 September 1997, published in the Rajasthan
Gazette, Pt 1-B, dated 9 October 1997, p 63.
10 Mundrika Prasad Sinha v State of Bihar, AIR 1979 SC 1871 (1873) : (1979) 4 SCC 701 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Fixing of day for
appearance on behalf of Government
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 5.
Fixing of day for appearance on behalf of Government
The Court, in fixing the day for 11[the Government] to answer to the plaint, shall allow
a reasonable time for the necessary communication with the Government through the
proper channel, and for the issue of instructions to the 12[Government pleader] [KNT]
to appear and answer on behalf of 13[the Government], and may extend the time at its
discretion 14[* * *] 15[but the time so extended shall not exceed two months in the
aggregate].
Karnataka.—After the words "instructions to the Government pleader" insert "or

recognised agents of the Government".
Kerala (Lakshadweep Islands).—The following amendments were made by Kerala Act,

dated 9-6-1959. Same as that of Madras.
Madras (Pondicherry).— The following amendments were made by Madras Act, dated 2-
3-1942.
For the words "a reasonable time" substitute the words "not less than three months'
time from the date of summons".
Patna.—Same as that of Madras—(20-12-1960).
COMMENT.—
In this rule 5 the words "but the time as extended shall not exceed two months in
aggregate" were inserted at the end of this rule.
11 Subs. by the A.O. 1937, for "the said Secretary of State of India in Council".
12 Subs. by A.O. 1950, for "Crown pleader" which had been subs. by the A.O. 1937, for
"Government pleader".
13 Subs. by the A.O. 1937, for "the said Secretary of State of India in Council".
14 The words "or the Government," omitted by the A.O. 1948.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 5A. Government to be
joined as a party in a suit against a public officer
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
16[R 5A.
Government to be joined as a party in a suit against a public officer
Where a suit is instituted against a public officer for damages or other relief in respect
of any act alleged to have been done by him in his official capacity, the Government
shall be joined as a party to the suit.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5B. Duty of Court in suits
against the Government or a public officer to assist in arriving at a settlement
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 5B.
Duty of Court in suits against the Government or a public officer to assist in
arriving at a settlement
(1) In every suit or proceeding to which the Government, or a public officer acting
in his official capacity, is a party, it shall be the duty of the Court to make, in the
first instance, every endeavour, where it is possible to do so consistently with
the nature and circumstances of the case, to assist the parties in arriving at a
settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage, it appears to the Court that
there is a reasonable possibility of a settlement, between the parties, the Court
may adjourn the proceeding for such period as it thinks fit, to enable attempts
to be made to effect such a settlement.
(3) The power conferred under sub-rule (2) is in addition to any other power of the
Court to adjourn proceedings.]
Rule 5B of O XXVII casts a duty on the court in a suit filed against government to assist
the parties to the suit in arriving at a settlement.17
17 Haryana State v Gram Panchayat Village Kalehari, (2016) 11 SCC 374 : 2016 (7) SCJ 665 :
2016 (6) Scale 157 : 2016 (4) CTC 526 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 6. Attendance of person
able to answer questions relating to suit against Government
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
18R 6.
Attendance of person able to answer questions relating to suit against
Government
The Court may also, in any case in which the [Government pleader] is not
accompanied by any person on the part of 19[the Government] who may be able to
answer any material questions relating to the suit, direct the attendance of such a
person.
19 Subs. by the A.O. 1937, for "the said Secretary of State for India in Council".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Extension of time to
enable public officer to make reference to Government
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 7.
Extension of time to enable public officer to make reference to Government
(1) Where the defendant is a public officer and, on receiving the summons,
considers it proper to make a reference to the Government before answering
the plaint, he may apply to the Court to grant such extension of the time fixed
in the summons as may be necessary to enable him to make such reference
and to receive orders thereon the proper channel.
(2) Upon such application the Court shall extend the time for so long as appears to
it to be necessary.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Procedure in suits
against public officer
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R. 8.
Procedure in suits against public officer
(1) Where the Government undertakes the defence of a suit against a public
officer, the 20[Government pleader], upon being furnished with authority to
appear and answer the plaint, shall apply to the Court, and upon such
application the Court shall cause a note of his authority to be entered in the
register of civil suits.
(2) Where no application under sub-rule (1) is made by the 21[Government pleader]
on or before the day fixed in the notice for the defendant to appear and answer,
the case shall proceed as in a suit between private parties:
Provided that the defendant shall not be liable to arrest, nor his property to
attachment, otherwise than in execution of a decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8A. No security to be
required from Government or a public officer in certain cases
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
22[R. 8A.
No security to be required from Government or a public officer in certain cases
No such security as is mentioned in rules 5 and 6 of Order XLI shall be required from
the Government or, where the Government has undertaken the defence of the suit,
from any public officer sued in respect of an act alleged to be done by him in his
official capacity.
[Rule renumbered as rule 9 in AP & Madras].
Madras.—Renumber existing rule 8-A as rule 9.
Pondicherry.—Same as in Madras.
22 Rules 8A and 8B ins. by the A.O. 1937.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 8B. Definitions of
Government and Government pleader
© 2020 LexisNexis
THE FIRST SCHEDULE

Official Capacity
R 8B.
Definitions of Government and Government pleader
In this Order 23[unless otherwise expressly provided] Government and 24[Government

pleader] mean respectively—
(a) in relation to any suit by or 25[* * *] against the Central Government, or against
a public officer in the service of the Government, the Central Government and
such pleader as that Government may appoint whether generally or specially
for the purposes of this Order;
26
[(b) * * * *]
(c) in relation to any suit by, or against a State Government or against a public
officer in the service of a State, the State Government and the Government
pleader 27[as defined in clause (7) of Section 2], or such other pleader as the
State Government may appoint, whether generally or specially, for the
purposes of this Order.]
[Rule renumbered as rule 10 in AP & Mad; rule 9 added in All.]
STATE AMENDMENTS
Uttar Pradesh.—In Order XXVII, after rule 9, insert the following rule, namely:—
"10. Suits by or against statutory authority.—(1) Any authority or corporation, constituted

by or under any law, may, from time to time, appoint a Standing Counsel, to be called
Corporation pleader of that authority in any district and give information of such
appointment to the District Judge *[and to Registrar of the High Court at Allahabad or a
Lucknow Bench, as the case may be].
(2) The Corporation pleader so appointed shall be the agent in that district of the
appointing authority or Corporation for purposes of receiving processes against it, but
shall not act or plead without filing a vakalatnama or memorandum of appearance."
[Vide Uttar Pradesh Act 57 of 1976, Section 11 (w.e.f. 1-1-1977) and *Notification dated
10th February, 1981 (w.e.f. 3-10-1981).]
Allahabad (Notfn No 1953/35(a); 22-5-1915).— Add the following new rule 9:—
"9. In every case in which the Government pleader appears for the Government as a
party on its own account, or for the Government as undertaking under the provisions of
rule 8(1), the defence of a suit against an officer of the Government, he shall, in lieu of a
vakalatnama, file a memorandum on unstamped paper signed by him and stating on
whose behalf he appears. Such memorandum shall be, as nearly as may be, in the
terms of the following form:—
TITLE OF THE SUIT, ETC.
(1) AB. District Government pleader appear on behalf of the secretary of State for India
(or the Government of Uttar Pradesh, or as the case may be) respondent (or etc), in the
suit:—
or, on behalf of the Government [which, under Order XXVII rule 8(1) of Act No V of 1908,
has undertaken the defence of the suit], respondent (or, etc), in the suit.
(2) After rule 9, insert the following:—
28["10. Suits by or against statutory authority—
(1) Any authority or Corporation, constituted by or under any law, may, from time to
time, appoint a Standing Counsel to be called Corporation pleader of that authority, in
any district and give information of such appointment to the District Judge 29[and to
Registrar of the High Court, at Allahabad or at Lucknow Bench, as the case may be].
(2) The Corporation pleader so appointed shall be the agent in that district of the
appointing authority or Corporation for purposes of receiving processes against it, but
shall not act or plead without filing a vakalatnama or memorandum of appearance."]
Madras.—Renumber existing Rules 8A and 8B of Order XXVII as Rules 9 and 10

respectively (2-3-1942).
Orissa.— Add the following as rule 9 to Order XXVII:—
"In every case in which the Government pleader appears for the Government as a party
on its own accounts or for the Government as undertaking, under the provisions of rule
8(1), the defence of a suit against an officer of a Government, he shall in lieu of a
vakalatnama, file a memorandum of unstamped paper signed by him and stating on
whose behalf he appears".—(14-10-1960).
COMMENT.—
An advocate appearing on behalf of the State cannot undertake that the State will do
something contrary to the statute. An order passed on concession made by him that
form No 18A would be issued to the transporters. The concession made is contrary to
rule 47-A of Tripura Sales Tax Rules, 1976. Such order is to be recalled.30
23 Ins. by the AO 1950.

24 Ins. by the A.O. 1950, for "Crown Pleader" which had been subs. by the A.O. 1937, for
"Government Pleader".
25 The words "the Secretary of State or" omitted by the A.O. 1948.
26 Clause (b) omitted by the A.O. 1948.
27 Ins. by the A.O. 1950.
28 Ins. by UP Act 57 of 1976, section 11(b) (1-11-1977).
29 For insertion see U.P. Govt. Gaz., dated 3-10-1981, Pt 2 p 109.
30 Tripura Goods Transports Assocn v Commissioner of Taxes, AIR 1998 SC 465 : (1998) 2 SCC
264 : (1998) 109 STC 139 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Notice to the Attorney-
General or the Advocate-General
© 2020 LexisNexis
THE FIRST SCHEDULE
1ORDER XXVII-A Suits Involving a Substantial Question of Law as to the

Interpretation of 2[the Constitution] 3[or as to the Validity of any Statutory
InSTRUMENT]
R. 1.
Notice to the Attorney-General or the Advocate-General
In any suit in which it appears to the Court that 4[any such question as is referred to
5[in clause (1) of Article 132 read with Article 147, of the Constitution],] is involved,
the Court shall not proceed to determine that question until after notice has been
given to the 6[Attorney-General for India] if the question of law concerns the Central
Government and to the Advocate-General of the State if the question of law concerns
a State Government.
1 This order was inserted by section 2 of the Code of Civil Procedure (Amendment) Act 23 of
1942.
2 Subs for "the Government of India Act, 1935" any Order-in-Council made thereunder by IAO
1950.
3 Added by the Code of Civil Procedure (Amendment) Act, 1976 (No 104 of 1976) (w.e.f. 1-2-
1977).
4 Subs. for "a substantial question of law as to the interpretation of the Government of India
Act, 1935, or any Order in Council made thereunder by IAO 1948.
5 Subs. for "in sub-section (1) of section 205" of the Government of India Act, 1935, by IAO
1950.
6 Subs. for "Advocate-General of India" by IAO 1950.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Procedure in suits
statutory instrument involving validity of any
© 2020 LexisNexis
THE FIRST SCHEDULE

InSTRUMENT]
7[R. 1A.
Procedure in suits statutory instrument involving validity of any
In any suit in which it appears to the Court that question as to the validity of any
statutory instrument, not being a question of the nature mentioned in rule 1, is
involved, the Court shall not proceed to determine that question except after giving
notice—
(a) to the Government pleader, if the question concerns the Government, or
(b) to the authority which issued the statutory instrument, if the question concerns
an authority other than Government.]
COMMENT.—
Rule 1-A was inserted newly which provides that when the vires of a statutory
instrument are challenged in a suit, the authority issuing the statutory instrument
should be made a party to the suit.
Where the Supreme Court declared the provision of a State Act ultra vires. The
concerned State Government were parties and duty represented before the Court. The
binding effect of such decision cannot be ignored merely because there was some
procedural irregularity, like non issuing of notice to State Governments.8
1942.
1950.
1977).
1977).
8 State of Gujarat v KC Shah, AIR 1991 SC 695 : 1991 Supp (2) SCC 345 : (1991) 1 GLH 382 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Court may add
Government as party
© 2020 LexisNexis
THE FIRST SCHEDULE

InSTRUMENT]
R. 2.
Court may add Government as party
The Court may at any stage of the proceedings order that the Central Government or a
State Government shall be added as a defendant in any suit involving 9[any such
question as is referred to 10[in clause (1) of Article 132 read with Article 147 of the
Constitution]] if the 11[Attorney-General for India] or the Advocate-General of the
State, as the case may be, whether upon receipt of notice under rule 1, or otherwise,
applies for such addition and the Court is satisfied that such addition is necessary or
desirable for the satisfactory determination of the question of law involved.
1942.
1950.
1977).
9 Subs. by the A.O. 1948, for "a substantial question of law as to the interpretation of the
Government of India Act, 1935, or any Order in Council made thereunder by IAO 1948.
10 Subs. by the A.O. 1950, for "in sub-section (1) of section 205 of the Government of India Act,
1935".
11 Subs. by IAO 1950, for "Advocate-General of India".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2A. Power of Court to add
Government or other authority as a defendant in a suit relating to the validity of any statutory instrument
© 2020 LexisNexis
THE FIRST SCHEDULE

InSTRUMENT]
12[R. 2A.
Power of Court to add Government or other authority as a defendant in a suit
relating to the validity of any statutory instrument
The Court may, at any stage of the proceedings in any suit involving any such
question as is referred to in rule 1A, order that the Government or other authority shall
be added as a defendant if the Government pleader or the pleader appearing in the
case for the authority which issued the instrument, as the case may be, whether upon
receipt of notice under rule 1A or otherwise, applies for such addition, and the Court
is satisfied that such addition is necessary or desirable for the satisfactory
determination of the question.]
COMMENT.—
Rule 2-A was added to ensure that the Government or other authority issuing the
statutory instrument is given an opportunity to join as a party in such cases.
1942.
1950.
1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Costs
© 2020 LexisNexis
THE FIRST SCHEDULE

InSTRUMENT]
13[R. 3.
Costs
Where, under rule 2 or rule 2A, the Government or any other authority is added as a
defendant in a suit, the Attorney-General, Advocate-General, or Government Pleader or
Government or other authority shall not be entitled to, or liable for costs in the Court
which ordered the addition unless the Court, having regard to all the circumstances of
the case for any special reason, otherwise orders.]
1942.
1950.
1977).
13 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 77, for rule 3
(w.e.f. 1-2-1977).
THE FIRST SCHEDULE

InSTRUMENT]
R 4.
Application of Order to appeals
In the application of this Order to appeals the word 'defendant' shall be held to include
a respondent and the word 'suit' an appeal.
14[ Explanation. —In this Order, "statutory instrument" means a rule, notification, bye-
law, order, scheme or form made as specified under any enactment.]
COMMENT.—
The Explanation was inserted to this rule 4 which defines the expression statutory
instrument as follows:
"Statutory instrument" means a rule, notification, bye-law order, scheme of form made
as specified under any enactment.
1942.
1950.
1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Officers, soldiers, sailors
or airmen who cannot obtain leave may authorise any person to sue or defend for them
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXVIII Suits by or against Military 1[or Naval] Men 2[or Airmen]
R. 1.
Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any
person to sue or defend for them
(1) Where any officer, 3[soldier, sailor or airman] actually 4[serving under the
Government] in 5[such] capacity is a party to a suit, and cannot obtain leave of
absence for the purpose of prosecuting or defending the suit in person, he may
authorise any person to sue or defend in his stead.
(2) The authority shall be in writing and shall be signed by the officer, 6[soldier,
sailor or airman], in the presence of (a) his commanding officer, or the next
subordinate officer, if the party is himself the commanding officer, or (b) where
the officer, 7[soldier, sailor or airman] is serving in military, 8[naval] or air force
staff employment, the head or other superior officer of the office in which he is
employed. Such commanding or other officer shall countersign the authority,
which shall be filed in Court.
(3) When so filed the countersignature shall be sufficient proof that the authority
was duly executed, and that the officer, 9[soldier, 10[sailor] or airman] by whom
it was granted could not obtain leave of absence for the purpose of
prosecuting or defending the suit in person.
Explanation. —In this Order the expression "commanding officer" means the
officer in actual command for the time being of any regiment, corps ship,
detachment or depot to which the officer, 11[soldier12[, sailor] or airman]
belongs.
1 Ins by the Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and sch.
2 Ins by the Code of Civil Procedure (Amendment) Act 10 of 1927, section 2 and Sch I.
3 The words "soldier or airman" were subs. by the Code of Civil Procedure (Amendment) Act 10
of 1927, section 2 and Sch I, for "or soldier" and "or a soldier" and the word "sailor" was ins. by
the Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and sch.
4 Subs. by the A.O. 1937, for "serving the Government".
5 Subs. by the Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and sch., for "a
military or air force".
of 1927, section 2 and Sch I, for "or soldier" and "or a soldier" and the word "sailor" was ins. by
of 1927, section 2 and sch I, for "or soldier" and "or a soldier" and the word "sailor" was ins. by
8 Ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 77, for rule 3
(w.e.f. 1-2-1977).
9 Subs. by the Code of Civil Procedure (Amendment) Act 10 of 1927, section 2 and sch. I, for
"or solder". 10. Ins. by the Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and
sch.
10 Subs. by the A.O. 1950, for "in sub-section (1) of section 205 of the Government of India Act,
1935".
11 Ins. by the Code of Civil Procedure (Amendment) Act 10 of 1927, section 2 and Sch. I.
12 Ins. by the Code of Civil Procedure (Amendment) Act 35 of 1934, section 2 and sch.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Person so authorised
may act personally or appoint pleader
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Person so authorised may act personally or appoint pleader
Any person authorised by an officer, 13[soldier, 14[sailor or airman] to prosecute or

defend a suit in his stead may prosecute or defend it in person in the same manner as
the officer, 15[soldier16[, sailor] or airman] could do if present; or he may appoint a
pleader to prosecute or defend the suit on behalf of such officer, 17[soldier18[, sailor]
or airman].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 3. Service on person so
authorised, or on his pleader, to be good service
© 2020 LexisNexis
THE FIRST SCHEDULE
R 3.
Service on person so authorised, or on his pleader, to be good service
Processes served upon any person authorized by an officer, 19[soldier 20[, sailor] or
airman] under rule 1 or upon any pleader appointed as aforesaid by such person shall
be as effectual as if they had been served on the party in person.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Subscription and
verification of pleading
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXIX Suit by or against Corporations
R. 1.
Subscription and verification of pleading
In suit by or against a corporation, any pleading may be signed and verified on behalf
of the corporation by the secretary or by any director or other principal officer of the
corporation who is able to depose to the facts of the case [AP, K, M].
[Rule 1-A added in AP, Kerala & Mad].
Kerala (Notfn No B-13312/58; 7-4-1959).— Insert new rule 1-A which is same as in
Madras with the addition of the following as marginal note :—"Time to be fixed in the
summons for appearance in suits against local authority".
Madras (Dis No 644 of 911).—Insert the following as new rule 1-A :—"1-A, Time to be
fixed in summons for appearance in suits against a local authority in the suits against a
Local Authority the Court in fixing the day for the defendant to appear and answer shall
allow not less than two months' time between the date of summons and the date for
appearance. (96-1959)
COMMENT.—
Rule 1 of this order merely authorises the persons namely the Secretary, or any director
or other principal officer of the corporation to sign and verify pleadings on behalf of a
corporation. This rule does not authorize these persons to institute a suit on behalf of
corporation. In this connection it was held by the Federal Court of India in Dr Satya
Charan v Rameshwar Prasad, AIR 1950 FC 133 as follows:
The correct position seems to us to be that ordinarily the directors of a company are the
only persons who can conduct litigation in the name of the company, but when they are
themselves the wrongdoers against the company, and have acted mala fide or beyond their
powers, and their personal interests are in conflict with their duty in such a way that they
cannot or will not take steps to seek redress for the wrong done to the company, the
majority of the shareholders must in such a case be entitled to take steps to redress the
wrong.
It has been held by the Supreme Court that where under the Articles of Association of a
company a suit on behalf of the company is to be filed with the approval of the
directors, then there could be no objection with regard to the maintainability of the suit
if it has been signed by the Secretary of the company who holds a general power of
Attorney from the Directors and whose action is approved by them.1
Review by Courts of exercise of powers by Municipal Corporations.—

There is nothing to prevent the Court interpreting section 58(5) of the city of Nagpur
Corporation Act, 1950 as including within matters likely to promote public health,
actions involving the sending of delegations where promotion of public health
becomes likely as a result thereof.2
A petition under Article 226 of the Constitution of India to which the provisions of this
rule are applicable signed and verified by the principal officer of a company who is able
to depose to the facts of the case cannot be held to be defective merely there is no
resolution of the company empowering him to present the petition.3
1 TM & Co v HI Trust Ltd, AIR 1972 SC 1311 : (1972) 1 SCC 857 : (1972) 42 Com Cas 512 : 1973
Tax LR 398 : (1972) 85 ITR 607 .
2 City of Nagpur Corpn v JS Philip, AIR 1963 SC 897 (900) : 1963 Supp (2) SCR 600 .
3 Jaipur Udyog v Union India, AIR 1972 Raj 129 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Service on corporation
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Service on corporation
Subject to any statutory provision regulating service of process, where the suit is
against a corporation, the summons may be served,—
(a) on the secretary, or on any director, or other principal officer of the corporation,
or
(b) by leaving it or sending it by post addressed to the corporation at the

registered office, or if there is no registered office then at the place where the
corporation carries on business.
STATE AMENDMENTS
Uttar Pradesh.— The following amendments were made by Uttar Pradesh Act, 57 of 1976,
In its application to the State of Uttar Pradesh in Order XXIX rule 2, after clause (a),
insert the following:—
"(aa) On its corporation pleader in the district where the Court issuing summons is
located, if one has been appointed and the appointment has been notified to the
District Judge under rule 10 of Order XXVII or".
1967.
After rule 2 and before rule 3 add the following as rule 2A:—
"2A. Where the suit is against a local authority the Court in fixing the day for such
authority to answer the plaint shall allow a reasonable time for the necessary
communication with any department of the Government and for the issue of necessary
instructions to the pleader of the authority, and may extend the time at its discretion."
COMMENT.—
It has been held by the Supreme Court of India that the service in order to be effective it
is not necessary that summons must be served on some human being who is
connected with the corporation. If the service of summons is made on one corporation
by serving another corporation which may be the principal office of the first
corporation, such a service will be sufficient in the eye of law. Thus, for instance,
service of a requisition order under rule 75-A of the Defence of India Rules on the mills
through their managing agents would be a good service within the meaning of rule 19
of the Defence of India Rules read with those rules.4
The meaning of clause (b) of rule 2 of O XXIX should be understood in the background
of the provisions of O V which is meant for issue and service of summon on natural
persons. Mere handing over of summons to an employee not authorised to accept
summons, does not amount to valid service of summons on company.5
4 Jute & Gunny Brokers Ltd v UOI, AIR 1961 SC 1214 : (1961) 3 SCR 820 : (1962) 32 Com Cas
845 .
5 Shalimar Rope Works Ltd v Abdul Hussain, AIR 1980 SC 1163 : (1980) 3 SCC 595 .

personal attendance of officer of corporation
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Power to require personal attendance of officer of corporation
The Court may, at any stage of the suit, require the personal appearance of the
secretary or of any director, or other principal officer of the corporation who may be
able to answer material questions relating to the suit.
COMMENT.—
The words "any Director" occurring in this rule as interpreted by the Supreme Court of
India need not necessarily mean the Director who has signed and verified the pleading
or on whom summons have been served but he may be any one of the Directors who
will be in a position to answer all material questions relating to the suit.6
It has further been held by the Supreme Court that the failure of the Director to appear
is not a valid ground for striking off the defence of the company unless there is a
finding of collusion between the company and the Director, so that the former
prevented the latter from appearing in the Court.7
6 Ram Chand & Sons, Sugar Mills v Kanhiyalal, AIR 1966 SC 1899 : 1967 ALJ 102 : (1966) 2
Comp LJ 224 : (1966) 3 SCR 856 : 1966 Cur LJ 736 .
7 Ram Chand & Sons, Sugar Mills v Kanhiyalal, AIR 1966 SC 1899 : 1967 ALJ 102 : (1966) 2
Comp LJ 224 : (1966) 3 SCR 856 : 1966 Cur LJ 736 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Suing of partners in
name of firm
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXX Suits by or against Firms and Persons Carrying on Business in

Names other than their Own
R. 1.
Suing of partners in name of firm
(1) Any two or more persons claiming or being liable as partners and carrying on
business in 1[India] may sue or be sued in the name of the firm (if any) of which
such persons were partners at the time of the accruing of the cause of action,
and any party to a suit may in such case apply to the Court for a statement of
the names and addresses of the persons who were, at the time of the accruing
of the cause of action, partners in such firm, to be furnished and verified in
such manner as the Court may direct.
(2) Where persons sue or are sued as partners in the name of their firm under sub-
rule (1), it shall, in the case of any pleading or other document required by or
under this Code to be signed, verified or certified by the plaintiff or the
defendant, suffice if such pleading or other document is signed, verified or
certified by any one of such persons [D, HP, PU].
[Expln. added in Delhi, HP & Punjab].
Punjab. (Notfn No 2212-G, of 12-5-1909).—Add the following "Explanation" at the end

—"Explanation.—This rule applies to a joint Hindu family trading partnership".
Chandigarh.—Same as in Punjab.
COMMENT.—
As per a decision of the Supreme Court of India, this order has been newly added in the
Code which provides an exception to section 45 of the Contract Act in so far it allows
two or more partners alone to institute a suit provided the suit is brought in the name of
the firm.2 Similarly, the members of a firm can institute a suit jointly in their individual
names.3
A firm is merely a compendious name for the partners constituting it. Under O XXX of
the Code of Civil Procedure a firm can sue and be sued in its own name with out the
partners being impleaded economize. Thus a firm could not be sued in the firm name
by the landlord in so far as the application for eviction under the CP & Berar Letting of
Housing and Rent Control Order 1949 was concerned.4
Where a person being the Karta of a joint Hindu family was doing joint family business
under a business name instituted a suit only in the business name, it was held by the
Supreme Court that the plaint in such a case could be allowed to be amended by
allowing the Karta to sue in his own name.5
Decree against firm with ruler partner.—
In a decree against a firm one of whose partners is a Ruler of former Indian State,
objection that the consent of the Central Government under section 86 read with
section 87-A of the Code was not obtained, can be availed of only by the Ruler partner
and not others.6
Dealing with the question of plea that may be raised by the partners, it has been held by
the Supreme Court that persons who admit that they are partners may defend the suit
on behalf of the firm, raise as many pleas as they like but in no way enter upon issues
arising between themselves.7
1 Subs. by the Code of Civil Procedure (Amendment) Act 2 of 1951, section 3 for "the States".
2 Purushottam & Co v Manilal & Sons, AIR 1961 SC 325 : (1961(1) SCR 982 : (1961) 1 MLJ (SC)
38 : (1961) 1 Ker LR 164.
3 Purushottam & Co Manilal & Sons, AIR 1961 SC 325 : (1961) 1 SCR 982 : (1961) 1 MLJ (SC) 38
: (1961) 1 Ker LR 164.
4 Chhoteylal Pyarelal v Shikarchand, AIR 1984 SC 1570 : (1984) 4 SCC 343 : 1984 Mah LJ 839 .
5 Manoharlal v NBMSupply, Gurgaon, AIR 1969 SC 1257 .
6 Mandalsa v M Ramnarain, AIR 1965 SC 1718 (1720) : (1965) 3 SCR 421 : 1966 Mah LJ 273 .
7 Gambhirmal v JK Jute Mills, AIR 1963 SC 243 : (1963) 2 SCR 190 : (1964) 1 MLJ (SC) 92.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Disclosure of Partner’s
names
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 2.
Disclosure of Partner's names
(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or
their pleader shall, on demand in writing by or on behalf of any defendant,
forthwith declare in writing the names and places of residence of all the
persons constituting the firm on whose behalf the suit is instituted.
(2) Where the plaintiffs or their pleader fail to comply with any demand made
under sub-rule (1), all proceedings in the suit may, upon an application for that
purpose, be stayed upon such terms as the Court may direct.
(3) Where the names of the partners are declared in the manner referred to in sub-
rule (1), the suit shall proceed in the same manner, and the same
consequences in all respect shall follow, as if they had been named as
plaintiffs in the plaint:
8[ Provided that all the proceedings shall nevertheless continue in the name of
the firm, but the names of the partners disclosed in the manner specified in
sub-rule (1) shall be entered in the decree.]
Orissa.— The following amendments were made by Orissa Gazette, dated 25-5-1984, Pt
COMMENT.—
As held by the Supreme Court this rule applies only to suits which are instituted by the
partners and not against them in the name of the firm. To put it in other words, this rule
is applicable only to the case of plaintiffs suing in the name of the firm.9
In a suit filed by the plaintiff-firm for recovery of money against defendants, a

declaration of names of partners of plaintiff-firm is made on an application by the
defendants. The defendants cannot urge something that disputes the declaration that
a particular person was a partner. A distinction between the plaintiff-firm and
defendant-firm with regard to proof of partners was indicated.10
The previous proviso to sub-rule (3) of this rule 2 has been substituted by a new
proviso, which provides that the name of the partners of firms disclosed in the manner
stated in sub-rule (1) of rule 2 should appear in the decree.
8 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 78, for the
proviso (w.e.f. 1-2-1977).
9 Purshottam & Co v Manilal, AIR 1961 SC 325 : (1961) 1 SCR 982 : (1961) 1 Ker LR 164.
10 Mohatta Bros v Bharat Suryodaya & Co, AIR 1976 SC 1703 (1709) : (1976) 4 SCC 420 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Service
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 3.
Service
Where persons are sued as partners in the name of their firm, the summons shall be
served either—
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within
11[India] upon any person having, at the time of service, the control or
management of the partnership business there, as the Court may direct; and
such service shall be deemed good service upon the firm so sued, whether all
or any of the partners are within or without 12[India]:
Provided that, in the case of a partnership which has been dissolved to the
knowledge of the plaintiff before the institution of the suit, the summons shall
be served upon every person within India whom it is sought to make liable.
COMMENT.—
The provisions of this rule are applicable to suits against the partners when the same
have been brought about in the name of their firm but this rule does not apply when the
suit is not brought against partners, in firm's name.
We may refer to an illustration which will make the position quite clear. A filed a suit
against B & Co, a firm. The summons were served on D, a partner of the above firm. The
suit was decreed in favour of the plaintiff A. X was another partner of the above firm,
but no summons was served on him. In execution of the decree, A wanted to proceed
against personal property of X. For that purpose, he filed an application for leave of the
Court. X admitted that he was a partner in the firm but raised objection as to the merits
of A's claim.
It was held that under O XXX, rule 3 service on one of the partners was good service
provided it was so directed by the Court. It was not open for the other partners to raise
any objection. However, if the direction of the Court was not obtained, the partner could
raise the objection that the irregularity affected the merits of the case under section 99
of the Code.
11 Subs. by the Code of Civil Procedure (Amendment) Act 2 of 1951, section 3, for "the States".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Right of suit on partner
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 4.
Right of suit on partner
(1) Notwithstanding anything contained in death of Section 45 of the Indian

Contract Act, 1872 (9 of 1872), where two or more persons may sue or be sued
in the name of a firm under the foregoing provisions and any of such persons
dies, whether before the institution or during the pendency of any suit, it shall
not be necessary to join the legal representative of the deceased as a party to
the suit.
(2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal
representative of the deceased may have—
(a) to apply to be made a party to the suit, or
(b) to enforce any claim against the survivor or survivors.
COMMENT.—
In an eviction suit against the tenant firm, partners were joined as mere proper parties.
In appeal failure to bring legal representatives of deceased partners on record does not
abate the appeal.13
It is mandatory to join the legal representative of a deceased partner as a party. But

sub-rule (1) is not a hindrance to any legal representative of a deceased partner to get
himself impleaded if he has otherwise any right to do so sub-rule (2) cannot come into
operation in a situation where O I rule 10 cannot be invoked.14
Applies to appeals also.—
An appeal was filed by the partners in the name of the firms against an injunction order.
One of the partners died. The failure to implead his legal representatives would not
cause the appeal to abate. Under section 107 of the Code of Civil Procedure, the
provisions of rule 4 of O XXX will apply to appeal also.15
Where the proprietor of the proprietary concern dies before institution of the suit, the
decree passed in the suit against dead proprietor is nullity and cannot be executed. The
provision of this rule which makes a suit filed without impleading legal representatives
as maintainable, does not apply.16
13 Upper India Cable Co v Bal Kishan, AIR 1984 SC 1381 : (1984) 3 SCC 462 : 1984 AWC 582 .
14 Anokhe Lal v Radhamohan Bansal, AIR 1997 SC 257 (259) : (1996) 6 SCC 730 .
15 Sohan Lal v Amin Chand, AIR 1973 SC 2572 (2574) : (1973) 2 SCC 608 : (1974) 1 SCR 453 .
16 Ashok Transport Agency v Awadhesh Kumar, AIR 1999 SC 1484 : (1998) 5 SCC 467 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Notice in what capacity
served
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 5.
Notice in what capacity served
Where a summons is issued to a firm and is served in the manner provided by rule 3,
every person upon whom it is served shall be informed by notice in writing given at
the time of such service, whether he is served as a partner or as a person having the
control or management of the partnership business, or in both characters, and, in
default of such notice, the person served shall be deemed to be served as a partner.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Appearance of partners
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 6.
Appearance of partners
Where persons are sued as partners in the name of their firm, they shall appear
individually in their own names, but all subsequent proceedings shall, nevertheless,
continue in the name of the firm.
Orissa (Notfn No 24-X-7-52, 10-3-1954).— At the end of the rule add the following: "But
the decree shall, however, contain the names of all such partners."
COMMENT.—
The Supreme Court has held that where a person is served with summons as a partner
of the defendant firm and he makes an appearance with out protest his appearance in
that case must be deemed to be on behalf of the firm unless the Court allows him to
withdraw the appearance initially made.17
17 Gajendra Narain Singh v Johri Mal Prahlad, AIR 1964 SC 581 : 1963 Supp (2) SCR 30 : (1964)
1 MLJ (SC) 1.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. No appearance except
by partners
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 7.
No appearance except by partners
Where a summons is served in the manner provided by rule 3 upon a person having
the control or management of the partnership business, no appearance by him shall
be necessary unless he is a partner of the firm sued.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8. Appearance under
protest
© 2020 LexisNexis
THE FIRST SCHEDULE

18[R. 8.
Appearance under protest
(1) Any person served with summons as a partner under rule 3 may enter an
appearance under protest, denying that he was a partner at any material time.
(2) On such appearance being made, either the plaintiff or the person entering the
appearance may, at any time before the date fixed for hearing and final
disposal of the suit, apply to the Court for determining whether that person
was a partner of the firm and liable as such.
(3) If, on such application, the Court holds that he was a partner at the material
time, that shall not preclude the person from filing a defence denying the
liability of the firm in respect of the claim against the defendant.
(4) If the Court, however, holds that such person was not a partner of the firm and
was not liable as such, that shall not preclude the plaintiff from otherwise
serving a summons on the firm and proceeding with the suit; but in that event,
the plaintiff'shall be precluded from alleging the liability of that person as a
partner of the firm in execution of any decree that may be passed against the
firm.]
COMMENT.—
The whole of the previous rule 8 was substituted by the present rule. It was felt that a
person appearing under protest should be entitled to have the question of the existence
or otherwise of his partnership decided. If he is held to be a partner, it does not
preclude him from denying the liability of the firm. On the other hand, if he is held not to
be a partner, the plaintiff can serve summons on the defendant firm in appropriate
manner. Accordingly, this rule has been amended.
Appearance under protest.—
In respect of a suit filed against a firm, rule 8 of O XXX enables the person served as a
partner of the firm to appear under protest and to deny that he is a partner of firm
which is sued.. The plaintiff may obtain fresh summons against the firm and serve it in
the manner prescribed in rule 3 O XXX against another person who is alleged to be a
partner by the plaintiff or against a person who has control or management of the
partnership business.19
(w.e.f. 1-2-1977).
19 Gajendra Narain Singh v Johrimal P Rai, AIR 1964 SC 581 (583) : 1963 Supp (2) SCR 30 :
(1964) 1 MLJ (SC) 1.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Suits between
copartners
© 2020 LexisNexis
THE FIRST SCHEDULE

R. 9.
Suits between copartners
This Order shall apply to suits between a firm and one or more of the partners therein
and to suits between firms having one or more partners in common; but no execution
shall be issued in such suits except by leave of the Court, and, on an application for
leave to issue such execution, all such accounts and inquiries may be directed to be
taken and made and directions given as may be just.
COMMENT.—
A Division Bench of Madras High Court has held that a person cannot be both a
piaintiff and defendant as a general rule.20
20 Jalal Mohammad v Kalka Mohd, AIR 1972 Mad 86 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 10. Suit against person
carrying on business in name other than his own
© 2020 LexisNexis
THE FIRST SCHEDULE

21[R 10.
Suit against person carrying on business in name other than his own
Any person carrying on business in a name or style other than his own name, or Hindu
undivided family carrying on business under any name, may be sued in such name or
style as if it were a firm name, and, insofar as the nature of such case permits, all
rules under this order shall apply accordingly.]
COMMENT.—
Where the proprietor of the proprietary concern dies before institution of the suit the
decree passed in the suit against dead proprietor is nullity and cannot be executed. The
provision of O XXX, rule 4 which makes suit filed without impleading legal
representatives as maintainable, does not apply.22
(w.e.f. 1-2-1977).
22 Ashok Transport Agency v Awadhesh Kumar, AIR 1999 SC 1484 : (1999) 5 SCC 567 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Representation of
beneficiaries in suits concerning property vested in trustees, etc.
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXI Suits by or against Trustees, Executors and Administrators
R. 1.
Representation of beneficiaries in suits concerning property vested in
trustees, etc.
In all suits concerning property vested in a trustee, executor or administrator, where

the contention is between the persons beneficially interested in such property and a
third person, the trustee, executor or administrator shall represent the persons so
interested, and it shall not ordinarily be necessary to make them parties to the suit.
But the Court may, if it thinks fit, order them or any of them to be made parties.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Joinder of trustees,
executors and administrators
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Joinder of trustees, executors and administrators
here there are several trustees, executors or administrators, they shall all be made
parties to a suit against one or more of them:
Provided that the executors who have not proved their testator's will, and trustees,
executors and administrators outside 1[India], need not be made parties.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Husband of married
executrix not to join
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Husband of married executrix not to join
Unless the Court directs otherwise, the husband of a married trustee, administratrix or
executrix shall not as such be a party to a suit by or against her.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Minor to sue by next
friend
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXII Suits by or against Minors and Persons of Unsound Mind
R. 1.
Minor to sue by next friend
Every suit by a minor shall be instituted in his name by a person who in such suit shall
be called the next friend of the minor. [D, HP, PU]
1[ Explanation. —In this order, "minor" means a person who has not attained his
majority within the meaning of Section 3 of the Indian Majority Act, 1875, where the
suit relates to any of the matters mentioned in clauses (a) and (b) of Section 2 of that
Act or to any other matter.]
Punjab (Notfn No 2212-G of 12-5-1909).—Add the following words:—"Such person may

be ordered to pay any costs in the suit as if he were the plaintiff."
COMMENT.—
The question whether the provisions of this order apply to all kinds of suits including
those in respect of which the age of majority is governed not by the Majority Act, but by
the personal law, has been the subject matter of various pronouncements. The case
law on the subject expresses divergent views. In suits falling under the personal law,
the word "minor" is governed by the personal law according to Bombay and Calcutta
High Courts. On this view, the minor can sue without next friend in such cases if he is a
major under the personal law. A contrary view has been expressed by the Madras High
Court on the ground that the capacity to sue is purely a question of procedure and
hence the order applies to all cases. Bill No 34 of 1968, therefore, rightly proposed to
amend this rule to adopt the Bombay, Calcutta view, by insertion of an explanation to
rule 1 to that effect.
Father of a lunatic can be appointed as the guardian/next friend in accordance with this
provision in an eviction petition in respect of the property owned by him.2
Where natural guardian is having adverse interest in suit against minor then he cannot
be made to represent minor in law suit. In such cases, next friend or guardian ad litem
would represent minor in litigation. So also the next friend representing minor will not
take away the right of duly appointed guardian.3
1977).
2 Raj Kumar v Rameshchand, AIR 1999 SC 3511 : (1999) 8 SCC 29 .
3 Nagarah v Chowdamma, AIR 2018 SC 459 : 2018 (1) Scale 210 : (2018) 2 SCC 504 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Where suit is instituted
without next friend, plaint to be taken off the file
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Where suit is instituted without next friend, plaint to be taken off the file
(1) Where a suit is instituted by or on behalf of a minor without a next friend, the
defendant may apply to have the plaint taken off the file, with costs to be paid
by the pleader or other person by whom it was presented.
(2) Notice of such application shall be given to such person, and the Court, after
hearing his objections (if any), may make such order in the matter as it thinks
fit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2A. Security to be
furnished by next friend when so ordered
© 2020 LexisNexis
THE FIRST SCHEDULE
4[R. 2A.
Security to be furnished by next friend when so ordered
(1) Where a suit has been instituted on behalf of the minor by his next friend, the
Court may, at any stage of the suit, either of its own motion or on the
application of any defendant, and for reasons to be recorded, order the next
friend to give security for the payment of all costs incurred or likely to be
incurred by the defendant.
(2) Where such a suit is instituted by an indigent person, the security shall include
the Court-fees payable to the Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit
where the Court makes an order under this rule directing security to be
furnished.]
COMMENT.—
Rule 2-A was inserted newly which is intended to confer on the Court the power to
order the next friend to furnish security for costs of the defendant. The object of the
amendment is to discourage vexatious litigation by the next friends of minors.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Guardian for the suit to
be appointed by Court for minor defendant
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Guardian for the suit to be appointed by Court for minor defendant
(1) Where the defendant is a minor, the Court, on being satisfied of the fact of his
minority, shall appoint a proper person to be guardian for the suit for such
minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff. [K]
(3) Such application shall be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in the suit
adverse to that of the minor and that he is a fit person to be so appointed [A, D,
HP, K, PU].
(4) No order shall be made on any application under this rule except upon notice
5[* * *] to any guardian of the minor appointed or declared by an authority
competent in that behalf, or, where there is no such guardian, 6[upon notice to
the father or where there is no father, to the mother, or where there is no father
or mother, to other natural guardian] of the minor or, where there is 7[no father,
mother or other natural guardian], to the person in whose care the minor is, and
after hearing any objection which may be urged on behalf of any person served
with notice under this sub-rule [A, D, HP, K, PU].
7
[(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to
the minor also.]
8
[(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor
shall, unless his appointment is terminated by retirement, removal or death,
continue as such throughout all proceedings arising out of the suit including
proceedings in any Appellate or Revisional Court and any proceedings in the
execution of a decree.] [AP, KNT, MP, M]
[All.—Sub-rule (3) amended and sub-rule (4) substituted : AP & Mad.—Rules 3 & 4 (post)
deleted and in lieu of rule 3 substituted; Karnataka—Rule 3 substituted; Kerala—Sub-rule
(2) substituted and sub-rule (3) amended; MP—Rule 3 substituted, Delhi. HP and
Punjab.—Sub-rules (3), (4), (6) and (7) substituted for sub-rules (3) and (4)].
Allahabad (Notfn No 43/VIId-29; 1-6-1957).—(a) In sub-rule (3) delete the full stop at
the end and add the following:—
"and shall also contain the names and addresses of all probable guardians including
any guardian of the minor appointed or declared by an authority competent in that
behalf, or the father or the other natural guardian of the minor, or where there is no
father or other natural guardian the person in whose care the minor is."
(b) Substitute sub-rule (4) by the following:—
"(4) The Court shall cause notice of such application to be served upon the minor as
also upon all the probable guardians named in the application and such other persons
as it may deem fit calling upon them to file objections, if any, to the appointment, of the
proposed or any other probable guardian of the minor. In case any person himself
desires to be appointed guardian of the minor instead of the proposed guardian, he
shall furnish an affidavit verifying the fact that he has no interest in the matters in
controversy in the suit adverse to that of the minor and that he is a fit person to be so
appointed.
The Court shall after hearing the objections, if any, considering the respective claims of
all persons desirous of being appointed guardian including the proposed guardian,
appoint such person as guardian of the minor as it may deem fit:"
Karnataka.— Delete rule 3 and substitute the following:—
3. (1) Same as sub-rule (1) of Madras with substitution of the words "or in the case of a
guardian for the suit a plaintiff" by the words "in the suit or in the case of a guardian a
plaintiff in the suit".
(2) Same as sub-rule (2) of Madras with insertion of the words "in writing" after "for
reasons to be recorded".
(3) Same as sub-rule (3) of Madras with addition at the end of : "A person appointed as
guardian under this sub-rule shall, unless his appointment is terminated by retirement
or removal by the order of Court on application made for the purpose or by his death,
continue throughout all proceedings in the suit or arising out of the suit including
proceedings in any appeal or in revision and any proceedings in execution of a decree
and the service of any process in any such proceeding on the said guardian if duly
made shall be deemed to be good service for the purpose of such proceedings.
(4) Same as sub-rule (4) of Madras with the following modifications : (i) Before the
words "set forth" insert "whether necessary";
(ii) Omit the words within brackets and the last sentence.
(6) Same as sub-rule (6) of Madras with substitution of the word "party" for the words
"plaintiff petitions".
(7) No order shall be made on any application under sub-rule (4) above except upon
notice to the minor and also to any guardian of the minor appointed or declared by an
authority competent in that behalf, or where there is no such guardian upon notice to
the father or natural guardian of the minor or where there is no father or natural
guardian upon notice to the person in whose actual care the minor is and after hearing
any objection which may be urged on behalf of any person so served with notice. The
notice required by this sub-rule shall be served at least seven clear days before the day
named in the notice for hearing of the application.
(8) Where none of the persons mentioned in the last preceding sub-rule is willing to act
as guardian, the Court shall direct notice to other person or persons proposed for
appointment as guardian either simultaneously to some or all of them or successively
as it may consider convenient or desirable in the circumstances of the case. The Court
shall appoint such person as it thinks proper from among those who have signified
their consent and intimate the fact of such appointment to the person appointed by
registered post unless he is present at the time of appointment either in person or by
pleader.
(9) No person shall be appointed guardian for the suit without his consent and except
in cases where an applicant himself prays for his appointment as guardian, notices
issued shall clearly require the party served to signify his consent or refusal to act as
guardian.
(10) Same as sub-rule (10) of Madras with insertion of the words "or pleader" after the
words "by that officer".
Kerala (Notfn No B1-3312/58, 17-4-1959).—(i) Substitute sub-rule (2) which is the same
as sub-rule (4) of Madras.
(ii) Add the following at the end of sub-rule (3):—
"The affidavit shall further state the name of the person or persons on whom notice has
to be served under the provisions of sub-rule (4)";
Madhya Pradesh.— Substitute the following for rule 3:—
"(3) Guardian for the suit to be appointed by Court for minor defendant.—(1) Where the
defendant is a minor, the Court, on being satisfied of the fact of his minority, shall
appoint a proper person to be guardian for the suit of such minor.
(2) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall,
unless his appointment is terminated by retirement, removal or death, continue as such
throughout all proceedings arising out of the suit including proceedings in any
appellate or revisional Court and any proceedings in the execution of a decree" (16-9-
1960).
Madras.— (a) Delete rules 3 and 4 and substitute in lieu thereof the new rule 3 set forth
below:—
"3. Qualifications to be a next friend or guardian.—(1) Any person who is of sound mind
and has attained majority may act as next friend of a minor or as his guardian for the
suit:
Provided that the interest of that person is not adverse to that of the minor and that he
is not, in the case of a next friend, defendant, or, in the case of a guardian for the suit, a
plaintiff.
Appointed or declared guardians to be preferred and to be superseded only for reasons

recorded.—(2) Where a minor has a guardian appointed or declared by competent
authority no person other than the guardian shall act as the next friend of the minor or
be appointed his guardian for the suit unless the Court considers, for reasons to be
recorded, that it is for the minor's welfare that another person be permitted to act or be
appointed, as the case may be.
Guardian to be appointed by Court.—(3) Where the defendant is a minor, the Court, on

being satisfied of the fact of his minority, shall appoint a proper person to be guardian
for the suit for the minor.
(3a) A person appointed under sub-rule (3) to be guardian for the suit for a minor shall,
unless his appointment is terminated by retirement, removal or death, continue as such
throughout all proceedings arising out of the suit including proceedings in any
appellate or revisional Court and any proceeding in execution of a decree.
Appointment to be on application and where necessary after notice to proposed guardian.

—(4) An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff. The application,
where it is by the plaintiff, shall set forth, in the order of their suitability, a list of persons
(with their full addresses for service of notice in Form No 11A set forth in Appendix H,
hereto) who are competent and qualified to act as guardian for the suit for the minor
defendant. The Court may, for reasons to be recorded in any particular case, exempt
the applicant from furnishing the list referred to above.
Contents of affidavit in support of the application for appointment of guardian.—(5) The

application referred to in the above sub-rule, whether made by the plaintiff or on behalf
of the minor defendant, shall be supported by an affidavit verifying the fact that the
proposed guardian has not or that no one of the proposed guardians has any interest in
the matters in controversy in the suit adverse to that of the minor and that the
proposed guardian or guardians are fit persons to be so appointed. The affidavit shall
further state, according to the circumstances of each case: (a) particulars of any
existing guardian appointed or declared by competent authority, (b) the name and
address of the person, if any, who is the de facto guardian of the minor, (c) the names
and addresses of a person, if any, who in the event of either the natural or the de facto
guardian or the guardians appointed or declared by competent authority, not being
permitted to act, are by reason of relationship or interest, or otherwise, suitable persons
to act as guardians for the minor for the suit.
Application for appointment of guardian to be separate from application for bringing on

record the legal representatives of a deceased party.—(6) An application for the
appointment of a guardian for the suit of a minor shall not be combined with an
application for bringing on record the legal representatives of a deceased plaintiff or
defendant. The applications shall be by separate petitions.
Notice of application to be given to persons interested in the minor defendant other than
the proposed guardian.—(7) No order shall be made on any application under sub-rule
(4) above except upon notice to any guardian of the minor appointed or declared by an
authority competent in that behalf or where there is no guardian, upon notice to the
father or other natural guardian of the minor, or where there is no father or other natural
guardian, to the person in whose care the minor is, and after hearing any objection
which may be urged on behalf of any person served with notice under this sub-rule. The
notice required by this sub-rule shall be served six clear days before the day named in
the notice for the hearing of the application and may be in Form No 11 set forth in
Appendix H hereto.
Special provision to shorten delay in getting a guardian appointed.—(8) Where the

application is by the plaintiff, he shall, along with his application and affidavit referred
to in sub-rules (4) and (5) above, produce the necessary forms in duplicate, filled into
the extent that is possible at that stage, for the issue simultaneously of notice to at
least two of the proposed guardians for the suit to be selected by the Court from the
list referred to in sub-rule (4) above, together with a duly stamped voucher indicating
that the fees prescribed for service have been paid. If one or more of the proposed
guardians signify his or their consent to act, the Court shall appoint one of them and
intimate the fact of such appointment to the person appointed by registered post. If no
one of the persons served signifies his consent to act, the Court shall proceed to serve
simultaneously another selected two, if so many there be, of the persons named in the
list referred to in sub-rule (4) above, but no fresh application under sub-rule (4) above,
shall be deemed necessary. The applicant shall, within three days of intimation of
unwillingness by the first set of proposed guardians, pay the prescribed fee for service
and produce the necessary forms duly filled in.
No person shall be appointed guardian without his consent.—(9) No person shall, without
his consent, be appointed guardian for the suit. Whenever an application is made
proposing the name of a person as guardian for the suit a notice in Form No 11A set
forth in Appendix H hereto shall be served on the proposed guardian, unless the
applicant himself be the proposed guardian or the proposed guardian consents.
Court guardian—when to be appointed—how he is to be placed in funds.—(10) Where the

Court finds no person fit and willing to act as guardian for the suit, the Court may
appoint any of its officers or a pleader of the Court to be the guardian and may direct
that the costs to be incurred by that officer in the performance of the duties as
guardian shall be borne either by the parties or by any one or more of the parties to the
suit or out of any fund in Court in which the minor is interested, and may give directions
for the repayment or allowance of the costs as justice and the circumstances of the
case may require.
Funds for a guardian other than Court guardian to defend.—(11) When a guardian for the
suit of a minor defendant is appointed and it is made to appear to the Court that the
guardian is not in possession of any or sufficient funds for the conduct of the suit on
behalf of the defendant and that the defendant will be prejudiced in his defence
thereby, the Court may, from time to time, order the plaintiff to advance monies to the
guardian for purpose of his defence and all monies so advanced shall form part of the
costs of the plaintiff in the suit. The order shall direct that the guardian, as and when
directed, shall file in Court an account of the monies so received by him.
Punjab (Notfn No 95-G of 25-2-1925 and 566-G of 24-11-1927).— Substitute the

following sub-rules (3), (4) (6) and (7) for sub-rules (3) and (4):—
"(3) The plaintiff'shall file with his plaint a list of relatives of the minor and other
persons, with their addresses, who prima facie are most likely to be capable of acting
as guardian for the suit for a minor defendant. The list shall constitute an application
by the plaintiff under sub-rule (2) above.
(4) The Court may at any time after institution of the suit call upon the plaintiff to
furnish such a list, and in default of compliance, may reject the plaint.
(6) Any application for the appointment of a guardian for the suit and any list furnished
under this rule shall be supported by an affidavit verifying the fact that the proposed
guardian has no interest in the matters in controversy in the suit adverse to that of the
minor and that each person proposed is a fit person to be so appointed.
(7) No order shall be made on any application under this rule except upon notice to any
guardian of the minor appointed or declared by an authority competent in that behalf,
or, where there is no such guardian, upon notice to the father or other natural guardian
of the minor or, where there is no father or other natural guardian, to the person in
whose care the minor is, and after hearing any objection which may be urged on behalf
of any person served with notice under this sub-rule:
Provided that the Court may, if it sees fit, issue notice to the minor also".
Bombay (Dadra and Nagar Haveli).—In Order XXXII, in rule 3, for sub-rule (4), substitute
the following sub-rule, namely:
(4) No order shall be made on any application under this rule except upon notice to the
minor, if the minor is above 14 years of age, and to any guardian of the minor appointed
or declared by an authority competent in that behalf, or, where there is no such
guardian, upon notice to the father or the natural guardian of the minor, or where there
is no father or other natural guardian, to the person in whose care the minor is, and
after hearing any objection which may be urged on behalf of any person served with
notice under this sub-rule. (w.e.f. 1-11-1966).
COMMENT.—
The appointment of guardian of a minor under this rule does not take away the rights
of the natural guardian forever. Once the guardian appointed during the pendency of
the suit was properly discharged, the rights of the natural guardian revive. Where the
minor's have not challenged the sale within three years from their attaining majority,
they have no right to ignore the sale as void.9
The conflict of decision as to whether an executing Court can question the legality
otherwise of a decree on the ground that it was passed against a minor or against a
person of unsound mind who was not properly represented in the suit by a guardian
has now been resolved by the Supreme Court holding that such a question can be
raised in execution.10
If a suit has been decreed against a minor who is duly represented by a guardian the
said decree is binding on him as much as on an adult and the judgment will operate as
res judicata against him in subsequent proceedings.11
Duties of Guardian.—
Dealing with the duties of guardian, what amounts to negligence on his part, a Full
Bench of Travancore Cochin High Court has held that there will be no dereliction of
duty on his part to refuse to litigate on behalf of his ward, about a claim which he
knows to be false and unfounded in fact.12 In sub-rule (4) of rule 3 the words "the
minor and" were omitted and the words "upon notice to the father or where there is no
father to the mother or where there is no father and no mother, to other natural
guardian" have been substituted and for the words "no father or other natural guardian",
the words "no father, no mother or other natural guardian" in sub-rule (4) have been
inserted. The amendment seeks to provide that the issue of such notice to the minor
will be discretionary and that where there is no father, notice should also be given to
the mother if she is alive.
Under sub-rule (5) of this rule, a guardian ad litem appointed by the Court where the suit
was instituted continues to be guardian in the appellate and revisional Court also.13
A minor can file a suit to set aside a decree on the ground of gross negligence on the
part of his next friend.14
Decree without guardian ad litem.—
A decree against a minor defendant without proper appointment of the guardian ad

litem is void and inoperative in law. It cannot be enforced against him.15
5 The words "to the minor and' omitted by the Code of Civil Procedure (Amendment) Act 104 of
1976, section 76, (w.e.f. 1-2-1977).
certain words (w.e.f. 1-2-1977).
1977).
1977).
8 Ins. by the Code of Civil Procedure (Amendment) Act 16 of 1937, section 2.
9 Divya Dip Singh v Ram Bachan Misra, AIR 1997 SC 1465 (1467) : (1997) 1 SCC 504 .
10 VDModi vRA Rahman, AIR 1970 SC 1475 : (1970) 1 SCC 670 : (1970) 2 MLJ (SC) 85.
11 Bishundeo v Sheogeni Rai, AIR 1951 SC 280 : 1951 SCR 548 : 30 Pat 947.
12 Balkrishna v Genesha, AIR 1954 Trav Co. 209 (FB).
13 Raj Behari v Mahabir Prasad, AIR 1956 All 310 (FB).
14 Asharfi Lal v Koili, AIR 1995 SC 1440 (1443, 1444) : (1995) 4 SCC 163 : 1995 ALJ 1154 : 1995
RD 390.
15 Ram Chandra v Man Singh, AIR 1968 SC 954 : (1968) 2 SCR 572 : 1963 BLJR 610 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Decree against minor
not to be set aside unless prejudice has been caused to his interest
© 2020 LexisNexis
THE FIRST SCHEDULE
16[R. 3A.
Decree against minor not to be set aside unless prejudice has been caused to
his interest
(1) No decree passed against a minor shall be set aside merely on the ground that
the next friend or guardian for the suit of the minor had an interest in the
subject-matter of the suit adverse to that of the minor; but the fact that by
reason of such adverse interest of the next friend or guardian for the suit,
prejudice has been caused to the interests of the minor, shall be a ground for
setting aside the decree.
(2) Nothing in this rule shall preclude the minor from obtaining any relief available
under any law by reason of the misconduct or gross negligence on the part of
the next friend or guardian for the suit resulting in prejudice to the interests of
the minor.]
COMMENT.—
Rule 3-A was inserted to clarify that where the next friend of the minor has an adverse
interest, to that of the minor and the minor is prejudiced by reasons of such adverse
interest, the decree passed in the former suit may be set aside.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Who may act as next
friend or be appointed guardian for the suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Who may act as next friend or be appointed guardian for the suit
(1) Any person who is of sound mind and has attained majority may act as next
friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor
and that he is not, in the case of a next friend, a defendant or, in the case of a
guardian for the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority,

no person other than such guardian shall act as the next friend of the minor or
be appointed his guardian for the suit unless the Court considers, for reasons
to be recorded, that it is for the minor's welfare that another person be
permitted to act or be appointed, as the case may be [D, HP, PU].
(3) No person shall without his consent in writing be appointed guardian for the
suit [K].
(4) Where there is no other person fit and willing to act as guardian for the suit, [C,
GAU, OR, P] the Court may appoint any of its officers [D, HP, PU] to be such
guardian, and may direct that the costs to be incurred by such officer [D, HP,
PU] in the performance of his duties as such guardian shall be borne either by
the parties or any one or more of the parties to the suit, or out of any fund in
Court in which the minor is interested, or out of the property of the minor and
may give directions for the repayment or allowance of such costs as justice
and the circumstances of the case may require. [A, AP, K, KNT, MP, M].
Allahabad (Notfn No 4080/35 (a)-3(7); 24-7-1926).— (a) Substitute the following for rule
4:—
"4. (1) Where a minor has a guardian appointed or declared by competent authority, no
person other than such guardian shall act as next friend, except by leave of the Court.
(2) Subject to the provisions of sub-rule (1) any person who is of sound mind and has
attained majority may act as next friend of a minor, unless the interest of such person
is adverse to that of the minor or he is a defendant or the Court for other reasons to be
recorded considers him unfit to act.
(3) Every next friend shall, except as otherwise provided by clause (5) of this rule, be
entitled to be reimbursed from the estate of the minor any expenses incurred by him
while acting for the minor.
(4) The Court may, in its discretion, for reasons to be recorded, award costs of the suit,
or compensation under Section 85A or Section 95 against the next friend personally as
if he were a plaintiff.
(5) Costs or compensation awarded under clause (4) shall not be recoverable by the
guardian from the estate of the minor unless the decree expressly directs that they
shall be so recoverable". (24-7-1926)
(b) Add the following rule 4A:—
"4A. (1) Where a minor has a guardian appointed by competent authority no person
other than such guardian shall be appointed his guardian for the suit unless the Court
considers for reasons to be recorded, that it is for the minor's welfare that another
person be appointed.
(2) Where there is no such guardian or where the Court considers that such guardian
should not be appointed, it shall appoint as guardian for the suit the natural guardian of
the minor, if qualified, or where there is no such guardian, the person in whose care the
minor is, or any other suitable person who has notified the Court of his willingness to
act or failing any such person, an officer of the Court.
Explanation.—An officer of the Court shall for the purposes of this sub-rule include a
legal practitioner on the roll of the Court".
Calcutta (Notfn No 8381-G, of 13-6-1927).—In sub-rule (4) for the words "where there
is... for the suit", substitute "Except as otherwise provided in this Order."
Karnataka.—Rule 4 deleted (30-3-1967). (ROC No 2526/1959, dated 9-2-1967)
Kerala (Notfn No B1-3312/58; 7-4-1959).—(i) In sub-rule (3) add at the end the
following:—
"Whenever an application is made proposing the name of a person as a guardian for

the suit a notice in Form No 11A, set forth in Appendix H hereto shall be served on the
proposed guardian, unless the applicant himself be the proposed guardian or the
proposed guardian consents".
(ii) Add to sub-rule (4) the following Explanation :—
"Explanation.—An officer of the Court shall for the purpose of this sub-rule include a
pleader of the Court".
(iii) Add the following as sub-rule (5):—
"(5) When a guardian for the suit of a minor defendant is appointed and it is made to
appear to the Court that the guardian is not in possession of any or sufficient funds for
the conduct of the suit on behalf of the defendant, and the defendant will be prejudiced
in his defence thereby the Court may, from time to time, order the plaintiff to advance
money to the guardian for the purpose of his defence and all moneys so advanced
shall form part of the cost of the plaintiff in the suit. The order shall direct that the
guardian, as and when directed shall file in Court an account of the moneys so received
by him."
Madhya Pradesh (Notfn. No 3409: 29-6-1943).— Substitute the following Rules 4 and 4A
for the existing rule 4:—
"4. Who may act as next friend or guardian for the suit.—(1) Any person who is of sound
mind and has attained majority may act as next friend of a minor or as his guardian for
the suit:
Provided that the interest of such person is not adverse to that of the minor and that he
is not in the case of a next friend, a defendant, or, in the case of a guardian for the suit,
a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no

person other than such guardian shall act as the next friend of the minor or as his
guardian for the suit unless the Court considers, for reasons to be recorded, that it is
for the minor's welfare that another person be permitted to act in either capacity.
4-A. Procedure for appointment of guardian for the suit—(1) No person except the
guardian appointed or declared by competent authority, shall, without his consent, be
appointed guardian for the suit.
(2) An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff.
(3) Unless the Court is otherwise satisfied of the fact that the proposed guardian has
no interest adverse to that of the minor in the matters in controversy in the suit and that
he is a fit person to be so appointed, it shall require such application to be supported by
an affidavit verifying the fact.
(4) No order shall be made on any application for the appointment as guardian for the
suit of any person, other than a guardian of the minor appointed or declared by
competent authority, except upon notice to the proposed guardian for the suit and to
any guardian of the minor appointed or declared by competent authority, or, where
there is no such guardian, the person in whose care the minor is, and after hearing, any
objection that may be urged on a day to be specified in the notice. The Court may, in
any case, if it thinks fit, issue notice to the minor also.
(5) Where, on or before the specified day, such proposed guardian fails to appear and
express his consent to act as guardian for the suit, or, where he is considered unfit, or
disqualified under sub-rule (3), the Court may, in the absence of any other person, fit
and willing to act, appoint any of its ministerial officer, or a legal practitioner, to be
guardian for the suit. If a legal practitioner is appointed guardian for the suit, the Court
shall pass an order stating whether he is to conduct the case himself or engage
another legal practitioner for the purpose.
(6) In any case in which there is a minor defendant, the Court may direct that a
sufficient sum shall be deposited in Court by the plaintiff from which sum the expenses
of the minor defendant in the suit including the expenses of a legal practitioner
appointed guardian for the suit shall be paid. The costs so incurred by the plaintiff'shall
be adjusted in accordance with the final order passed in the suit in respect of costs."
Madras.—Rule 4 has been superseded and its contents incorporated in Order XXXII
substituted rule 3 (ante).
Patna.—In sub-rule (4) for the words "Where there is no other person fit and willing to
act as guardian for the suit", substitute the following:—
"When the person whom the Court after hearing objection, if any, under sub-rule (4), of
rule 3, proposes to appoint as guardian for the suit, fails, within the time fixed in a
notice to him to express his consent to be so appointed".
Punjab (Notfn No 566-G, of 24-11-1927 as amended by Notfns No 209-R-XI-Y-3 of 22-

7-1936) and No 281-R-XI-Y-3 of 19-9-1936). — Rule 4 has been substituted by another
rule which contains the following changes in the existing rule:—
(a) After sub-rule (2) insert the following as sub-rule (2A):—
"(2A) Where a minor defendant has no guardian appointed or declared by competent

authority, the Court may, subject to the proviso to sub-rule (1), appoint as his guardian
for the suit a relative of the minor.
If no person be available who is a relative of the minor the Court shall appoint one of
the other defendants, if any and failing such other defendant, shall ordinarily proceed
under sub-rule (4) of this rule to appoint one of its officers or a pleader".
(b) ***
(c) In sub-rule (4) after the words "any of its officers" insert "or a pleader" and for the
words "such officer" substitute "such person".
Assam.—Same as in Calcutta.
COMMENT.—
Decree not nullity, if compromise petition is signed by common representative.

—
When a compromise petition is signed by the Deputy Commissioner as representing

the wards of two contesting estates, the decree is not nullity, because of the failure of
the Court to appoint another guardian of one of the wards who was of unsound mind.17
In sub rule (3) of rule 4 after the words "consent" the words "in writing" were added. In
sub-rule (4) of this very rule, after the words "any fund in Court in which the minor is
interested" the words "or out of the property of the minor" were inserted.
These amendments have been made in order to avoid any ambiguity and to eliminate
disputes, and it has been provided that the consent must be in writing. Power has also
been conferred on the Court to order payment out of the minor's property of the costs
of any officer of the Court who is appointed as guardian.
Under the above rule 4, any person can be appointed as the next friend or guardian ad
litem of a minor, provided:
1. He is not of unsound mind i.e. he must be of sound mind;
2. He himself is not a minor;
3. His interest is not adverse to that of the minor;

4. He is not the opposite party;
5. No other person has already been appointed as the guardian of such a minor by a
competent authority;
6. The guardian has consented to act as such in writing.
In case there is no fit and willing person to act as a guardian ad litem, the Court may
appoint any of its officers to be such guardian.
17 Drigraj Kuer v AK Narain Singh, AIR 1960 SC 444 (451) : (1960) 2 SCR 431 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Representation of minor
by next friend or guardian for the suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Representation of minor by next friend or guardian for the suit
(1) Every application to the Court on behalf of a minor, other than an application
under rule 10, sub-rule (2), shall be made by his next friend or by his guardian
for the suit.
(2) Every order made in a suit or on any application, before the Court in or by
which a minor is in any way concerned or affected, without such minor being
represented by a next friend or guardian for the suit, as the case may be, may
be discharged, and, where the pleader of the party at whose instance such
order was obtained knew, or might reasonably have known, the fact of such
minority with costs to be paid by such pleader.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Receipt by next friend or
guardian for the suit of property under decree for minor
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Receipt by next friend or guardian for the suit of property under decree for
minor
(1) A next friend or guardian for the suit shall not, without the leave of the Court,
receive any money or other movable property on behalf or a minor either—
(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
(2) Where the next friend or guardian for the suit has not been appointed or
declared by competent authority to be guardian of the property of the minor, or,
having been so appointed or declared, is under any disability known to the
Court to receive the money or other movable property, the Court shall, if it
grants him leave to receive the property, require such security and give such
directions as will, in its opinion sufficiently protect the property from waste and
ensure its proper application. [AP]
18[ Provided that the Court may, for reasons to be recorded, dispense with such
security while granting leave to the next friend or guardian for the suit to
receive money or other movable property under a decree or order, where such
next friend or guardian—
(a) is the manager of a Hindu undivided family and the decree or order
relates to the property or business of the family; or
(b) is the parent of the minor.]
Andhra Pradesh (Notfn No Roc 2756/56, B1: 5-12-59).—At the end of sub-rule (2) add a
further proviso as follows:—
"Provided also that the Court may in its discretion dispense with such security and
impose such other condition as it thinks fit, in case where it is satisfied that any money
is needed for the maintenance, medical care or education of the minor and the
guardian or next friend is unable to furnish security".
III-A, Page 70.
COMMENT.—
In sub-rule (2) of rule 6 the proviso was inserted newly which empowers the Court to
dispense with security in cases where the next friend or guardian happens to be the
manager of Joint Hindu family.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Agreement or
compromise by next friend or guardian for the suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Agreement or compromise by next friend or guardian for the suit
(1) No next friend or guardian for the suit shall, without the leave of the Court,
expressly recorded in the proceedings, enter into any agreement or
compromise on behalf of a minor with reference to the suit in which he acts as
next friend or guardian. [AP, K, M]
19
[(1A) An application for leave under sub-rule (1) shall be accompanied by an
affidavit of the next friend or the guardian for the suit, as the case may be,
and also, if the minor is represented by a pleader, by the certificate of the
pleader, to the effect that the agreement or compromise proposed is, in his
opinion, for the benefit of the minor;
Provided that the opinion so expressed, whether in the affidavit or in the

certificate, shall not preclude the Court from examining whether the
agreement or compromise proposed is for the benefit of the minor.]
(2) Any such agreement or compromise entered into without the leave of the Court
so recorded shall be voidable against all parties other than the minor [KNT].
[Sub-rule (1A) added in AP, Kerala & Mad. Sub-rule (2) renumbered as sub-rule (3), and
new sub-rule (2) added in Karnataka].
Karnataka.—Renumber sub-rule (2) as sub-rule (3) and insert the following as sub-rule
(2):—"(2) Where an application is made to the Court for leave to enter into an agreement
or compromise or for withdrawal of a suit in pursuance of a compromise or for taking
any other
similar action on behalf of a minor or other person under disability, the affidavit in
support of the application shall set out the manner in which the proposed compromise,
agreement or other action is likely to affect the interests of the minor or other person
under disability and the reason why such compromise, agreement or other action is
expected to be for the benefit of the minor or other person under disability; where in
such a case the minor or other person under disability is represented by counsel or
pleader, the said counsel or pleader shall also file into Court along with the application
a certificate to the effect that the agreement or compromise or action proposed is in
his opinion for the benefit of the minor or other person under disability. If the Court
grants leave under sub-rule (1) of this rule, the decree or order of the Court shall
expressly recite the grant of the leave sought from the Court in respect of the
compromise, agreement or other action as aforesaid after consideration of the affidavit
and the certificate mentioned above and shall also set out either in the body of the
decree itself or in a schedule annexed thereto the terms of the compromise or
agreement or the particulars of the other action" (30-3-1967).
Kerala (Notfn No B1-3312/58; 7-4-1959).— Add sub-rule (1A) as in Madras.
Madras (Dis No 1647 of 1910). — Insert the following as sub-rule (1A):—
"(1A) Where an application is made to the Court for leave to enter into an agreement or
compromise or for withdrawal of a suit in pursuance of a compromise or for taking any
other action on behalf of a minor or other person under disability and such minor or
other person under disability is represented by counsel or pleader, the counsel or
pleader shall file in Court with the application a certificate to the effect that the
agreement or compromise or action proposed is, in his opinion, for the benefit of the
minor or other person under disability. A decree or order for the compromise of a suit,
appeal or matter to which a minor or other person under disability is a party shall recite
the sanction of the Court thereto and shall set out the terms of the compromise as in
Form No 24 in Appendix D to this schedule".
III-A, Page 70.
COMMENT
Scope.—
In this rule the sub-rule (1-A) and a proviso thereof were inserted. This is intended to
provide where an application for leave of the Court to a compromise, etc. is made on
behalf of a minor it should be accompanied by the certificate of the pleader as well as
an affidavit of the next-friend or guardian for the suit, to the effect that the compromise
is for the benefit of the minor.
With reference to the suit.—
The words "with reference to the suit" refer to the substantive rights and liabilities of
the parties involved in the suit. These words must be limited to the right put in issue in
the suit. Agreements relating to other matters will not require the leave of the Court.
For the purpose of this rule, the words "with reference to the suit", (1) must be limited to
the rights put in issue in the suit, every procedural step in the conduct of the suit is not
contemplated, (2) protection is only during the pendency of the suit and for this
purpose an execution proceeding is a continuation of the suit, (3) the agreement or
compromise shall be entered into with a party to the suit or his legal representative.20
The duty of safeguarding the interests of the minor as far as possible, must be upon
the Court. This is for the reason that the guardians and next friends are not invariably
honest and even if honest, are sometimes careless and lacking in intelligence.
It is essential for the Court to grant permission to the guardian to enter into the
compromise only after considering all the relevant circumstances. Where the
compromise was one sided since the minors were giving up their rights in respect of
eviction as well as arrears of rent and the opposite party gave up only the costs, it was
liable to be set aside on account of the negligence of the guardian.21
In Kaushalya Devi v Baij Nath, AIR 1961 SC 790 : 1961 (3) SCR 769 the Supreme Court
has held that where a preliminary decree is passed in a suit for partition without
complying with the provisions of sub-rule (1) and is not avoided in an appeal against
such a decree, the minor cannot avoid that decree by preferring an appeal against the
final decree.
Leave of Court.—
There is no set form in which the certificate which the Court is required to record need
be made. Where the judge passes an order granting permission to compromise on
behalf of a minor on ground that it is for minor's benefit, after applying his mind to the
question, there is substantial compliance with O XXXII rule 7 of the Code of Civil
Procedure, 1908.22
1977).
20 Dokku Bhushayya v K Ramakrishanyya, AIR 1962 SC 1886 (1891) : (1963) 2 SCR 499 : (1963)
2 AnLT 25.
21 Dhirendra Kumar Garg v Sugandhi Bai Jain, AIR 1989 SC 147 : (1989) 1 SCC 85 : 1988 RD 391.
22 Bishundeo v Seogeni Rai, AIR 1951 SC 280 (282) : 1951 SCR 548 : 1951 ALJ (SC) 127 : 30 Pat
947.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Retirement of next friend
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Retirement of next friend
(1) Unless otherwise ordered by the Court, a next friend shall not retire without
first procuring a fit person to be put in his place and giving security for the
costs already incurred.
(2) The application for the appointment of a new friend shall be supported by an
affidavit showing the fitness of the person proposed and also that he has no
interest adverse to that of the minor.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Removal of next Friend
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Removal of next Friend
(1) Where the friend of the next friend of a minor is adverse to that of the minor or
where he is so connected with a defendant whose interest is adverse to that of
the minor as to make it unlikely that the minor's interest will be properly
protected by him, or where he does not do his duty, or, during the pendency of
the suit, ceases to reside within 23[India], or for any other sufficient cause,
application may be made on behalf of the minor or by a defendant for his
removal; and the Court, if satisfied of the sufficiency of the cause assigned,
may order the next friend to be removed accordingly, and make such other
order as to costs as it thinks fit.
(2) Where the next friend is not a guardian appointed or declared by an authority
competent in this behalf, and an application is made by a guardian so
appointed or declared, who desires to be himself appointed in the place of the
next friend, the Court shall remove the next friend unless it considers, for
reasons to be recorded by it, that the guardian ought not to be appointed the
next friend of the minor, and shall thereupon appoint the applicant to be next
friend in his place upon such terms as to the costs already incurred in the suit
as it thinks fit.
COMMENT.—
Under this rule a next friend can only be removed on an application made on behalf of
the minor or by the defendant. The Court cannot act of its own motion under this rule.
However, it has been held by a Full Bench of Punjab and Haryana High Court that where
the mother who was the next friend of the minor but was found taking no effective
steps for the prosecution of the suit, was removed by the Court suo motu.24
24 Pritam Devi v Addl Director Consolidation of Holding, Punjab, AIR 1970 P&H 205 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Stay of proceedings
friend
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Stay of proceedings friend
(1) On the retirement, removal or death of the next friend of a minor, further
proceedings shall be stayed until the appointment of a next friend in his place.
(2) Where the pleader of such minor omits, within a reasonable time, to take steps
to get a new next friend appointed, any person interested in the minor or in the
matter in issue may apply to the Court for the appointment of one, and the
Court may appoint such person as it thinks fit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Retirement, removal of
guardian for the suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Retirement, removal of guardian for the suit
(1) Where the guardian for the suit desires to retire or does not do his duty, or
where other sufficient ground is made to appear, the Court may permit such
guardian to retire or may remove him, and may make such order as to costs as
it thinks fit.
(2) Where the guardian for the suit retires, dies or is removed by the Court during
the pendency of the suit, the Court shall appoint a new guardian in his place.
Allahabad (Notfn No 43/vii-d 29; 1-6-1957).—In sub-rule (1) omit the words "and may
thinks fit" at the end of the sub-rule and add the following proviso:—
"Provided that where the guardian desires to retire without reasonable cause the Court
shall, while permitting him to retire, direct that he shall pay the cost to be incurred in the
appointment of a fresh guardian". (1-6-1957)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Course to be followed
by minor plaintiff or applicant on attaining majority
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Course to be followed by minor plaintiff or applicant on attaining majority
(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application
is pending shan, on attaining majority, elect whether he will proceed with the
suit or application.
(2) Where he elects to proceed with the suit or application, he shall apply for an
order discharging the next friend and for leave to proceed in his own name.
(3) The title of the suit or application shall in such case be corrected so as to read
henceforth thus:—
"A B late a minor, by C D his next friend, but now having attained majority."
(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or
sole applicant, apply for an order to dismiss the suit or application on
repayment of the costs incurred by the defendant or opposite party or which
may have been paid by his next friend.
(5) Any application under this rule may be made ex parte but no order discharging
a next friend and permitting a minor plaintiff to proceed in his own name shall
be made without notice to the next friend.
COMMENT.—
The provisions of this rule apply to a case where a suit has been instituted by a minor
and attains majority while the suit is pending. The rule is inapplicable where the suit
has been filed in alleged minor's name who is really a major at the time of institution of
the suit. As such a person is not entitled to continue the suit within the provisions of
this rule when it is found that he was not a minor on the date of the institution of the
suit and that therefore another person had a right to institute a suit as his next friend.25
Originally, the minor was represented through guardian. The minor on attaining majority
did not take any steps to come on record and contest proceedings himself then it
means he must be deemed to have elected to abide by the representation of the
guardian and the judgment and decree eventually passed in the suit would be binding
upon him. The fact that no notice was sent to minor after he attained majority, does not
make execution invalid.26
25 Suraj Bhan v Balwan Singh, AIR 1972 P&H 270 .
26 Femi Joseph v Branch Manager, The Federal Bank, Amballur, AIR 2014 Ker 147 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Where minor co-
plaintiff attaining majority desires to repudiate suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Where minor co-plaintiff attaining majority desires to repudiate suit
(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit,
he shall apply to have his name struck out as co-plaintiff; and the Court, if it
finds that he is not a necessary party, shall dismiss him from the suit on such
terms as to costs or otherwise as it thinks fit.
(2) Notice of the application shall be served on the next friend, on any co-plaintiff
and on the defendant.
(3) The cost of all parties of such application, and of all or any proceedings
theretofore had in the suit, shall be paid by such persons as the Court directs.
(4) Where the applicant is a necessary party to the suit, the Court may direct him
to be made a defendant.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Unreasonable or
improper suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Unreasonable or improper suit
(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted
in his name by his next friend be dismissed on the ground that it was
unreasonable or improper.
(2) Notice of the application shall be served on all the parties concerned; and the
Court, upon being satisfied of such unreasonableness or impropriety, may
grant the application and order the next friend to pay the costs of all parties in
respect of the application and of anything done in the suit, or make such other
order as it thinks fit.
[Rule 14-A added in AP, Karnataka, Kerala & Mad].
Karnataka.— Add the following as rule 14-A:—
"14-A. When a minor defendant attains majority either he or the guardian appointed for
him in the suit or the plaintiff may apply to the Court to declare the said defendant a
major and to discharge the guardian and notice thereof shall be given to such among
them as are not applicants. When the Court by order declares the said defendant as
major it shall by the same order discharge the guardian and thereafter the suit shall be
proceeded with against the said defendant as a major." (30-3-1967).
Kerala (Notfn No B1-3312/58; 7-4-1959).—Insert rule 14A which is same as in Madras

with the following modifications:—
(i) Add the following as marginal note:— "Appointment or discharge of a next friend or
guardian for the suit of a minor to be performed by Registrar.
(ii) Omit the following words "shall be deemed to be a quasi-judicial act within the
meaning of Section 128(2)(i) of the Code of Civil Procedure and" (9-6-1959)
Madras (Dis No 1601 of 1914). — Add the following as rule 14-A:—
"14A. The appointment or discharge of a next friend or guardian for the suit of a minor
in a matter pending before the High Court in its appellate jurisdiction, except in cases
under appeal to the [Supreme Court], shall be deemed to be a quasi-judicial act within
the meaning of Section 128(2)(i) of the Code of Civil Procedure and may be performed
by the Registrar, provided that contested applications and applications presented out of
time shall be posted before a Judge for disposal."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15. Rules 1 to 14(except
rule 2A) to apply to persons of unsound mind
© 2020 LexisNexis
THE FIRST SCHEDULE
27[R. 15.
Rules 1 to 14(except rule 2A) to apply to persons of unsound mind
Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged,
before or during the pendency of the suit, to be of unsound mind and shall also apply to
persons who, though not so adjudged, are found by the Court on enquiry to be
incapable, by reason of any mental infirmity, of protecting their interest when suing or
being sued.]
COMMENT.—
It has been held by the Supreme Court that where a decree against a lunatic without
appointment of a guardian has been passed the decree is nullity and the sale held in
execution of that decree is void ab initio.28
Father of lunatic can be appointed as the guardian/next friend in accordance with this
rule in an eviction petition in respect of the property owned by him.29
In a partition suit one of the defendants filed an application before the trial Court that
she was an age old and had lost ability to understand. The prayer that the Court should
enquire about her state of mind was disallowed. A High Court in revision cannot direct
that Court to appoint guardian when no enquiry as contemplated by rule 15 was
made.30
The whole of the previous rule 15 was substituted in order to provide that rule 2-A
which provides for the taking of security from next friend or guardian should not apply
to person of unsound mind and that the question of insanity supervening during the
course of any suit should also be taken into consideration.
"Mental infirmity", meaning of.—
"Mental Infirmity" in context of O XXXII rule 15 includes physical defects like deafness
or dumbness. The Court is bound to conduct enquiry as to whether deaf and dumb
person is capable of protecting his own interests.31
(w.e.f. 1-2-1977).
28 Ram Chandra v Man Singh, AIR 1968 SC 954 : (1968) 2 SCR 572 : 1968 ALJ 545 : 1968 BLJR
610 .
29 Raj Kumar v Rameshchand, AIR 1999 SC 3511 : (1999) 8 SCC 29 .
30 Kasturi Bai v Anguri Chaudhary, AIR 2003 SC 1773 : (2003) 3 SCC 225 : (2003) 2 CHN 176 .
31 Raveendran v Sobhana, AIR 2008 Ker 145 (DB) : 2008 (1) KLT 488 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 16. Savings
© 2020 LexisNexis
THE FIRST SCHEDULE
32[R. 16.
Savings
(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing
or being sued in the name of his State, or being sued by the direction of the
Central Government in the name of an agent or in any other name.
(2) Nothing contained in this Order shall be construed as affecting or in any way
derogating from the provisions of any local law for the time being in force
relating to suits by or against minors or by or against lunatics or other persons
of unsound mind.]
Andhra Pradesh [Notfn No Roc No 6842/51-B 1; 9-8-1957].—Insert rule 1 as in Madras.
Madras (Dis No 644 of 1941).— Add the following as rule 17:—
"17. In suits relating to the person or property of a minor or other person under the
superintendence of the Court of Wards the Court in fixing the day for the defendant to
appear and answer shall allow not less than two months' time between the date of
summons and the date for appearance".
COMMENT.—
Previous rule 16 was substituted. The newly added rule is intended to bring the rule in
line with the substantive provisions contained in section 83 to 87-B of the Code of Civil
Procedure.
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R.1. Application of the Order
© 2020 LexisNexis
THE FIRST SCHEDULE
1[ORDER XXXII-A Suits Relating to Matters Concerning the Family
R.1.
Application of the Order
(1) The Provisions of this Order shall apply to suits or proceedings relating to
matters concerning the family.
(2) In particular, and without prejudice to the generality of the provisions of sub-
rule (1), the provisions of this Order shall apply to the following suits or
proceedings concerning the family, namely:—
(a) a suit or proceeding for matrimonial relief, including a suit or proceeding

for declaration as to the validity of a marriage or as to the matrimonial
status of any person;
(b) a suit or proceeding for a declaration as to the legitimacy of any person;
(c) a suit or proceeding in relation to the guardianship of the person or the

custody of any minor or other member of the family, under a disability;
(d) a suit or proceeding for maintenance;
(e) a suit or proceeding as to the validity or effect of an adoption;
(f) a suit or proceeding, instituted by a member of the family relating to

wills, intestacy and succession;
(g) a suit or proceeding relating to any other matter concerning the family in
respect of which the parties are subject to their personal law.
(3) So much of this Order as relates to a matter provided for by a special law in
respect of any suit or proceeding shall not apply to that suit or proceeding.
1 Order XXXII-A and rules 1 to 6 newly added by the Code of Civil Procedure (Amendment) Act,
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Proceedings to be held in
camera
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Proceedings to be held in camera
In every suit or proceeding to which this Order applies, the proceedings may be held in
camera if the Court so desires and shall be so held if either party so desires.
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 3. Duty of Court to make
efforts for settlement
© 2020 LexisNexis
THE FIRST SCHEDULE
R 3.
Duty of Court to make efforts for settlement
(1) In every suit or proceeding to which this Order applies, an endeavour shall be
made by the Court in the first instance, where it is possible to do so consistent
with the nature and circumstances of the case, to assist the parties in arriving
at a settlement in respect of the subject-matter of the suit.
(2) If, in any such suit or proceeding, at any stage it appears to the Court that there
is a reasonable possibility of a settlement between the parties, the Court may
adjourn the proceeding for such period as it thinks fit to enable attempts to be
made to effect such a settlement.
(3) The power conferred by sub-rule (2) shall be in addition to, and not in
derogation of, any other power of the Court to adjourn the proceedings.
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Assistance of welfare
expert
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Assistance of welfare expert
In every suit or proceeding to which this Order applies, it shall be open to the Court to
secure the services of such person (preferably a woman where available), whether
related to the parties or not, including a person professionally engaged in promoting
the welfare of the family as the Court may think fit, for the purpose of assisting the
Court in discharging the functions imposed by rule 3 of this Order.
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Duty to inquire into facts
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Duty to inquire into facts
In every suit or proceeding to which this Order applies, it shall be the duty of the Court
to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any
facts alleged by the defendant.
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. “Family”—Meaning of
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
"Family"—Meaning of
For the purposes of this Order, each of the following shall be treated as constituting a
family, namely:—
(a) (i) a man and his wife living together,
(ii) any child or children, being issue of theirs; or of such man or such wife,
(iii) any child or children being maintained by such man and wife.
(b) a man not having a wife or not living together with his wife, any child or
children, being issue of his, and any child or children being maintained by him;
(c) a woman not having a husband or not living together with her husband, any
child or children being issue of hers, and any child or children being maintained
by her;
(d) a man or woman and his or her brother, sister, ancestor or lineal descendant
living with him or her; and
(e) any combination of one or more of the groups specified in clause (a), clause
(b), clause (c) or clause (d) of this rule.
Explanation.—For the avoidance of doubts, it is hereby declared that the

provisions of rule 6 shall be without any prejudice to the concept of "family" in
any personal law or in any other law for the time being in force.]
COMMENT.—
Order XXXII-A was inserted newly. This Order seeks to highlight the need for adopting a
different approach where matters concerning the family are at issue, including the need
for efforts to bring about an amicable settlement.
1976 (No 104 of 1976), section 8 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R.1. Suits may be instituted in
forma pauperis
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXIII 1[Suits by Indigent Persons]
R.1.
Suits may be instituted in forma pauperis
Subject to the following provisions, any suit may be instituted by an 2[indigent

persons].
3 [Explanation I. —A person is an indigent person—
(a) if he is not possessed of sufficient means (other than property exempt from
attachment in execution of a decree and the subject-matter of the suit) to
enable him to pay the fee prescribed by law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth one
thousand rupees other than the property exempt from attachment in execution
of a decree, and the subject-matter of the suit.
Explanation II. —Any property which is acquired by a person after the

presentation of his application for permission to sue as an indigent person, and
before the decision of the application, shall be taken into account in
considering the question whether or not the applicant is an indigent person.
Explanation III. —Where the plaintiff'sues in a representative capacity, the

question whether he is an indigent person shall be determined with reference
to the means possessed by him in such capacity.]
were made by Maharashtra Government Gazette, dated 15 September 1983, Part 4 Ka.,
Page 420 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page 387,
dated 1-4-1987.
In Order XXXIII, rule 1, for the existing Explanation below rule 1, substitute the following
Explanation:—
Explanation 1.—A person shall be deemed to be an indigent person if he is not

possessed of means exceeding rupees one thousand in value or where he is
possessed of means exceeding one thousand rupees in value, the same are not
sufficient to enable him to pay fees prescribed by law for the plaint.
For the purposes of this Explanation the means which a person is possessed of shall
be deemed not to include property exempt from attachment in execution of a decree
and the subject-matter of the suit. (1-10-1983)
Orissa (Notfn No 24-X-7-52; 30-3-1954).—After the Explanation add the following

proviso:—
"Provided further that in the case of a 'displaced' person as defined in the Displaced
Persons' (Claims) Act, 1950 (Act XLIV of 1950) the certificate of the appropriate
authority shall be conclusive of the pauperism of such 'displaced person".
The following amendments were made by Orissa Gazette, Part III-A, Page 70, dated 25-5-
1984.
COMMENT.—
The existing Explanation attached to rule 1 of this Order was substituted by three
Explanations I, II and III.
Explanation I seeks to provide that a person shall be deemed to be an indigent person if

he is not possessed of sufficient means (other than property exempt from attachment
in execution of a decree and the subject-matter of the suit) to enable him to pay the
fees prescribed by law for the plaint in such suit, or where no such fee is prescribed if
he is not entitled to property worth one thousand rupees other than property exempt
from attachment in execution of a decree and the subject-matter of the suit.
Explanation II seeks to make it clear that property acquired by the applicant after
presentation of the petition and before the decision thereof should also be taken into
consideration for deciding the question whether the applicant is an indigent person.
Explanation III is inserted to make it clear that when a plaintiff uses in representative
capacity, the question whether he is an indigent person shall be determined with
reference to the means possessed by him in such capacity.
The Tripura High Court, while dealing with the scope of the explanation attached to the
aforesaid rule has interpreted the words "other than his necessary wearing apparel and
the subject-matter of the suit" saying that they do not qualify the first part of the
explanation but apply only to cases where no specific Court fee is prescribed.
4However, that does not necessarily mean that in dealing with the first part of the
explanation, the subject-matter has always to be taken into consideration.5
The word 'person' should be given its meaning in the context in which it is used. It
refers to a person who is capable of filing a suit and being benevolent provision, it
should be given an extended meaning. A public limited company, which is otherwise
entitled to maintain a suit as a legal person, can very well maintain an application under
this rule.6
"Person", meaning of.—
The word "person" mentioned in O XXXIII includes not only a natural person but other
juridical person also. The petitioners, a body corporate can maintain an application
under O XXXIII rule 1 and an application under O XLIV rule 1.7
The Supreme Court has held that the word "person" occurring in the explanation
attached to the rule includes both natural as well as juristic person,8 e.g., companies or
associations or body of individuals whether incorporated or not.
In Vijai Pratap v Dukh Haran Nath, AIR 1962 SC 941 : 1962 Supp (2) SCR 675 : 1962 ALJ
634 , it has been held by the Supreme Court that an application to sue in forma
pauperies, is only a method prescribed by the Civil Procedure Code for instituting a suit
by a pauper without paying Court-fee. But where the request of the applicant to sue in
forma pauperis has not been accepted, the application may fail. There is nothing
personal in such an application. The suit is said to commence from the moment an
application for permission to sue in forma pauperis is filed.
The Railways Claims Tribunal is empowered to regulate its own procedure and there is
nothing in the Railway Claims Tribunal Act (54 of 1957) and the rules which preclude
the invocation of this order.9
Application to motor vehicle tribunal.—
This provision applies to tribunals appointed to adjudicate claims for compensation for
accidents under the Motor Vehicle Act (4 of 1939).10
"Sufficient means to pay".—
The mere possession of immovable properties without any proof of derivation of

income from it is not "sufficient means" to pay the court fee. The Court has to enter into
a finding regarding the capacity to raise money to pay.11
Determination of "indigent person".—
For determining the issue concerning "indigent person", the property which is exempt
from attachment and the subject of the suit is not to be taken into consideration.12
Permission to sue as an indigent person was refused by the Court as the applicant
owned and possessed land worth Rs 75,600 (market value in the year 1999) and had
suppressed the said material fact from the Court in the application made by him under
O XXXIII rule 1 and rule 2 of the Code of Civil Procedure. It was held that the applicant /
plaintiff is possessed of sufficient means to pay the requisite court fees in the plaint.13
Legal Representative as indigent.—
On the death of applicant, the legal representatives cannot claim the substitution as
indigent person. The right to sue as indigent person is a personal right. The entire
proceedings come to end and lapse the moment the applicant dies.14
1 Subs by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 81, for "suits by
paupers" (w.e.f. 1-2-1977).
2 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 81, for "pauper"
(w.e.f. 1-2-1977).
former Explanation (w.e.f. 1-2-1977).
4 Bhupendra Kumar v Phani Bhushan, AIR 1962 Tri 22 .
5 SKhatron v Amir Ali, AIR 1972 AP 240 .
6 Union Bank of India v Khader International Constructions, AIR 2001 SC 2277 (2281-82) : (2001)
5 SCC 22 : (2001) 105 Com Cas 856 : (2001) 2 KLT 732 .
7 Bhopal Wholesale Consumer Co-operative Store Ltd v Madan Lal Gandhi, 2009 (2) MP LJ 219
(221-22) (DB); Union Bank of India v KI Constructions, AIR 2001 SC 2277 ; Daman Singh v State of
Punjab, AIR 1985 SC 973 , relied on.
8 NEL & Co Ltd v Shree Pathirao, AIR 1958 SC 658 : 1959 SCR 463 : (1958) 2 LLJ 9 ; see also
Kundan Singh Mills v IS Syndicate, AIR 1959 All 540 (FB).
9 AA Haja Muninuddin v Indian Railways, AIR 1993 SC 361 (363) : (1992) 4 SCC 736 .
10 State of Haryana v Darshana Devi, AIR 1979 SC 855 : (1979) 2 SCC 236 .
11 Rajamma Joseph v Binu Prasad, 2010 (1) KLT 572 (576-77) (DB).
12 State of Haryana v Baldev Raj, 2008 (4) Punj LR 204 (DB).
13 Jayant Prabhakar Mahajan v Suman Sarde, AIR 2014 Chh 52 .
14 Lakshmi v Vijaya Bank, 2011 AIR CC 1185 (Kar) : AIR 2011 Kant 89 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Inquiry into the means
of an indigent person
© 2020 LexisNexis
THE FIRST SCHEDULE
15[R. 1A.
Inquiry into the means of an indigent person
Every inquiry into the question whether or not a person is an indigent person shall be
made, in the first instance, by the chief ministerial officer of the Court, unless the
Court otherwise directs, and the Court may adopt the report of such officer as its own
finding or may itself make an inquiry into the question.]
COMMENT.—
Rule 1-A was inserted newly which provides for the initial inquiry into the means of the
applicant by the chief ministerial officer of the Court, but power is being given to the
Court either to adopt such report or to make independent inquiries.
paupers" (w.e.f. 1-2-1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Contents of application
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Contents of application
Every application for permission to sue as 16[ an indigent person ] shall contain the
particulars required in regard to plaints in suits; a schedule of any movable or
immovable property belonging to the applicant, with the estimated value thereof, shall
be annexed thereto; and it shall be signed and verified in the manner prescribed for
the signing and verification of pleadings.
COMMENT.—
It is settled that the presentation of the application for the permission to sue as pauper
in forma pauperis as required by rules 2 and 3 of O XXXIII would amount to the
institution of the suit. When permission to sue as a pauper is granted by the Court
under rule 7 the petition or application must be regarded as a plaint filed on the day
when the application was presented to the Court.17
paupers" (w.e.f. 1-2-1977).
16 Subs. by ibid., for "pauper" (w.e.f. 1-2-1977).
17 Jugal Kishore v Dhanno Devi, AIR 1973 SC 2508 (2510, 2511) : (1973) 2 SCC 567 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Presentation of
application
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Presentation of application
Notwithstanding anything contained in these rules, the application shall be presented

to the Court by the applicant in person, unless he is exempted from appearing in
Court, in which case the application may be presented by an authorised agent who
can answer all material questions relating to the application, and who may be
examined in the same manner as the party represented by him might have been
examined had such party attended in person. [AP, KNT, K, M]
18[ Provided that, where there are more plaintiffs than one, it shall be sufficient if the
application is presented by one of the plaintiffs.]
[Rule amended in All, AP, Karnataka, & Mad; Expln. added in Kerala].
Allahabad (Notfn No 2457/35 (a)-1: 8-5-1937).—After the words "unless he is exempted

from appearing in Court" add the words "or detained in prison".

To rule 3, the following Explanation shall be added, namely:—
"Explanation.—Where there are more applicants than one, presentation by one shall be
deemed to be sufficient compliance with the provisions of the rule."
Madras.—At the end of rule 3 add the following.—"The High Court may by general or
special order exempt any person or class of persons from the obligation to present in
person an application for permission to sue as a pauper."
COMMENT.—
Proviso was added to rule 3 which provides that where there are number of plaintiffs, it
should not be necessary for all of them to present the application in person. In such a
case, it should suffice if the application is presented in person by one of them
Application for permission to sue as pauper.—

It is settled that the presentation of the application for the permission to sue as pauper
in forma pauper is as required by rules 2 and 3 of O XXXIII would amount to the
institution of the suit.19
It has been held by the Supreme Court in Dipo v Wassan Singh, AIR 1983 SC 846 :
(1983) 3 SCC 376 that the learned District Judge was in error of dismissing the appeal
on the ground that the appellant-plaintiff had not herself presented the memorandum
of appeal. The appeal had been admitted by the District-Judge earlier and there was no
point in dismissing it thereafter on the ground that the memorandum of appeal had not
been presented by the party herself. Rules of procedure are meant to advance the
cause of justice and not to short-circuit the decision on merits. We have no option to
set aside the judgments of the District Judge and the High Court.
paupers" (w.e.f. 1-2-1977).
1977).
19 Jugal Kishor v Dhanno Devi, AIR 1973 SC 2508 (2510) : (1973) 2 SCC 567 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4 Examination of applicant
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4
Examination of applicant
(1) Where the application is in proper form and duly presented, the Court may, if it
thinks fit, examine the applicant, or his agent when the applicant is allowed to
appear by agent, regarding the merits of the claim and the property of the
applicant.
If presented by agent, Court may order applicant to be examined by commission
(2) Where the application is presented by an agent, the Court may, if it thinks fit,
order that the applicant be examined by a commission in the manner in which
the examination of an absent witness may be taken.
COMMENT.—
The Allahabad High Court has held that a statement made by the applicant as a result
of examination under this rule would be evidence on which the Court can proceed even
at subsequent stage and reject the application to sue in forma pauperis for grounds
mentioned in rule 5 of this Order.20
paupers" (w.e.f. 1-2-1977).
20 1970 All LJ 396.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Rejection of application
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Rejection of application
The Court shall reject an application for permission to sue as 21[an indigent person]—
(a) where it is not framed and presented in the manner prescribed by rules 2 and 3,
[A, KNT]or
(b) where the applicant is not 22[an indigent person], or
(c) where he has, within two months next before the presentation of the
application, disposed of any property fraudulently or in order to be able to
apply for permission to sue as 22[an indigent person], or:
22[ Provided that no application shall be rejected if, even after the value of the
property disposed of by the applicant is taken into account, the applicant would
be entitled to sue as an indigent person, or]
(d) where his allegations do not show a cause of action, or [AP, K, M]
(e) where he has entered into any agreement with reference to the subject-matter
of the proposed suit under which any other person has obtained an interest in
such subject-matter, 23[or]
24
[(f) where the allegations made by the applicant in the application show that the
suit would be barred by any law for the time being in force, or
(g) where any other person has entered into an agreement with him to finance the
litigation.]
[Clause (a) amended in All and Karnataka].
Allahabad (Notfn No 1750/35 (a)-2(4); 15-4-1933).—(a) In clause (a) between the figure
"3" and the word "or" add the words "and the applicant on being required by the Court to
make any amendment within a time to be fixed by the Court, fails to do so".
Add the following Explanation at the end:—
"Explanation.—An application shall not be rejected under clause (d) merely on the
ground that the proposed suit appears to be barred by any law".

Karnataka.—In clause (a) between the figure "3" and the word "or" add the words "and the
applicant when required by the Court to rectify the defect within a time to be fixed by
the Court fails to do so, or" (30-3-1967).

After clause (d) insert—
"(d-1) Where the suit appears to be barred by any law, or ".

dated 22-10-1940.
Substitute the following for clause (d):—
"(d) where the allegations do not show a cause of action, or
(d-1) where the suit appears to be barred by any law, or".
III-A, Page 70.
COMMENT.—
This rule lays down certain events when the application for permission to sue as a
pauper shall be rejected by a Court of law, as held by Orissa High Court.25
It has been held by the Supreme Court that the provisions of O II rule 12 relating to
discovery of documents would apply to proceedings under Order XXXIII of the Code.26
The proviso has been inserted to Clause (c) of rule 5, which runs as follows:—
Provided that no application shall be rejected if, even after the value of the property
disposed of by the applicant is taken into account, the applicant would be entitled to sue as
an indigent person.
By the express terms of rule 5(d) the Court is concerned to ascertain whether the
allegations made in the petition show a cause of action. The Court has not to see
whether the claim made by the petitioner is likely to succeed, it has merely to satisfy
itself that the allegations made in the petition, if accepted as true, would entitle the
petitioner to the relief he claims. By the statute the jurisdiction of the Court is restricted
to ascertaining whether on the allegations a cause of action is shown. The jurisdiction
does not extend to trial of issues which must fairly be left for decision at the hearing of
the suit.27
Clause (f) and (g) were added to this rule 5. It is made clear that where the allegations
show that the suit would be barred by law for the time being in force or that the
litigation is being financed by a third person, the application will be rejected.
paupers" (w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
1977).
1977).
1977).
1977).
24 Clause (f) and (g) ins. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section
81, (w.e.f. 1-2-1977).
25 Anand Prakash v Sova Roy, AIR 1972 Ori 14 .
26 ML Sethi v RP Kapoor, AIR 1972 SC 2379 : (1972) 2 SCC 427 .
27 Vijai Pratap Singh v Dukh Haran Nath, AIR 1962 SC 941 : 1962 Supp (2) SCR 675 : (1962) 1 All
831 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Notice of day for
receiving evidence of applicant’s indigency
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Notice of day for receiving evidence of applicant's indigency
Where the Court sees no reason to reject the application on any of the grounds stated
in rule 5, it shall [AP, KNT, K, M] fix a day (of which at least ten days' clear notice shall
be given to the opposite party and the Government pleader) for receiving such
evidence as the applicant may adduce [AP, KNT, K, M] in proof of his 28[indigency], and
for hearing any evidence which may be adduced in disproof thereof.
[Rule amended in AP, Karnataka, Kerala and Mad].

1967.
"R. 6. Where the Court sees no reason to reject the application on any of the grounds
stated in rule 5, it shall nevertheless fix a day (of which at least ten days' clear notice
shall be given to the opposite party and to the Government Pleader) for receiving such
evidence as the applicant may adduce to prove that the application is not subject to
any of the prohibitions in rule 5 and for hearing any evidence which may be adduced to
the contrary." (9-6-1959)
Kerala (Notfn no B1-3312/58; 7-4-1959).—Same as in Madras.
Madras (ROC No 2482 of 1936).—(a) For the marginal note substitute:— "Notices of day
for enquiring into the applicant's right to sue as a pauper".
(b) Between the words "shall" and "fix" insert "nevertheless".
(c) For the words "in proof of his pauperism ......... thereof," at the end of the
rule,substitute "to prove that the application is not subject to any of the prohibitions in
rule 5 and for hearing any evidence which may be adduced to the contrary".
COMMENT.—
An enquiry into the question of pauperism of the plaintiff is not a matter exclusively
between the plaintiff and the State and the defendant is also vitally interested in the
matter.
Giving an opportunity to participate in enquiry.—

Rule 6 is intended to give the opposite party an opportunity to participate in the enquiry
into indigent status and adduce evidence to establish that the applicant is not a
pauper.29
paupers" (w.e.f. 1-2-1977).
28 Subs by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 81, (w.e.f. 1-2-
1977).
29 ML Sethi v RP Kapoor, AIR 1972 SC 2379 (2382) : (1972) 4 SCC 427 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 7. Procedure at hearing
© 2020 LexisNexis
THE FIRST SCHEDULE
30[R. 7.
Procedure at hearing
(1) On the day so fixed or as soon thereafter as may be convenient, the Court shall
examine the witnesses (if any) produced by either party and may examine the
applicant or his agent, and shall make 31[a full record of their evidence].
32
[(1A) The examination of the witnesses under sub-rule (1) shall be confined to
the matters specified in clause (b), clause (c) and clause (e) of rule 5 but
the examination of the applicant or his agent may relate to any of the
matters specified in rule 5.]
(2) The Court shall also hear any argument which the parties may desire to offer
on the question whether, on the face of the application and of the evidence (if
any) taken by the Court 32[under rule 6 or under this rule] the applicant is or is
not subject to any of the prohibitions specified in rule 5.
(3) The Court shall then either allow or refuse to allow the applicant to sue as
33[an indigent person]. [AP, KNT, K, M].
Kerala (Notfn No B-3312/58; 7-4-1959).—Substitute a comma for the full stop at the
end of sub-rule (3) and add "or direct that the application be filed as a plaint on the
applicant paying the requisite Court-fee within thirty days or such reasonable time as
the Court may fix". (9-6-1959)
Madras (ROC No 2482 of 1936).— Add the following as sub-rule (4):—
"(4) Where the application is for leave to sue in a representative capacity under
Explanation(iii) to rule 1, or under Sections 91, 92 or under Order I rule 8 the Court may,
if it thinks fit for reasons to be recorded in writing, direct that the plaintiff'shall give
security for the payment of Court-fee."
COMMENT.—
In sub-rule (1) of rule 7 for the words "memorandum of the substance of their
evidence", the words "a full record of their evidence" were substituted. Sub-rule (1-A) to
this rule was inserted. In sub-rule (2) for the words "as herein provided", the words
"under this rule" were substituted.
Grant of application.—
When the permission to sue as a pauper is granted by the Court under rule 7 the
petition or application must be regarded as a plaint filed on the day when the
application was presented to the Court.34
These amendments were made in order to make it clear that the petitioner may be
examined touching the cause of action and that a full record should be made with
regard to such examination.
A full bench of Kerala High Court has held in Ramesan v Kunhipalu, AIR 1977 Ker 118
(FB); AIR 1974 SC 2105 : (1974) 2 SCC 706 : (1975) 2 SCR 71 relied on that "provisions
in the code of Civil Procedure contain both substantive and procedural rights and what
is made applicable to proceedings other than suits by section 141 of the Code of Civil
Procedure, is only those provisions which deal with matters of procedure and even in
respect of those matters only which could be made applicable. The right of a person to
institute a proceeding as a pauper is a substantive right. Consequently, the provisions
of O XXXIII cannot be applied to a proceeding under Article 226 of the Constitution".
It has been held by the Punjab and Haryana High Court that in allowing an application
under this rule the Court does not act without jurisdiction in refusing to take into
consideration circumstances coming into existence after the making of the
application.35
paupers" (w.e.f. 1-2-1977).
30 The provisions of this rule in so far as it relates to the making of the memorandum are not
applicable to the Chief Court of Oudh, see Oudh Courts Act, 1925 (U.P. Act 4 of 1925), section
16(2).
words (w.e.f. 1-2-1977).
32 Ins. by the code of Civil Procedure (Amendment) Act 104 of 1976, section 81, (w.e.f. 1-2-
1977).
32 Ins. by the code of Civil Procedure (Amendment) Act 104 of 1976, section 81, (w.e.f. 1-2-
1977).
(w.e.f. 1-2-1977).
34 Jugal Kishore v Dhanno Devi, AIR 1973 SC 2508 (2510) : (1973) 2 SCC 567 .
35 Banarsi Das v Ram Rakhi, AIR 1971 P&H 360 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Procedure if application
admitted
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Procedure if application admitted
Where the application is granted, it shall be numbered and registered, and shall be
deemed the plaint in the suit, and the suit shall proceed in all other respects as a suit
instituted in the ordinary manner, except that the plaintiff'shall not be liable to pay any
Court-fee 36[or fees payable for service of process] in respect of any petition,
appointment of a pleader or other proceeding connected with the suit.
COMMENT.—
In rule 8, for the words "other than fee payable for service of process", the words "or
fees payable for service of process", were substituted in order to exemptthe indigent
persons only from Court-fee but also from process fee.
paupers" (w.e.f. 1-2-1977).
36 Subs. by the code of Civil Procedure (Amendment) Act 104 of 1976, section 81, for certain
words (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Withdrawal of
permission to sue as an indigent person
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Withdrawal of permission to sue as an indigent person
The Court may, on the application of the defendant, or of the Government pleader, of
which seven days' clear notice in writing has been given to the plaintiff, order 37[that
the permission granted to the plaintiff to sue as 38[an indigent person] be withdrawn]—
(a) if he is guilty of vexatious or improper conduct in the course of the suit;
(b) if it appears that his means are such that he ought not to continue to sue an
39[indigent person]; or
(c) if he has entered into any agreement with reference to the subject-matter of
the suit under which any other person has obtained an interest in such subject-
matter.
[Clause (d) added in Orissa].
Orissa (Notfn No 24-X-7-52; 30-3-1954).—At the end of Clause (c) add the word "or" and
thereafter add a new Clause (d):—
"(d) if he has entered into an arrangement with any other person to finance the
litigation."
COMMENT.—
Under rule 9, on the application of the defendant, the Court can dispauper the plaintiff
on the grounds specified therein. One such ground is that his means are such that he
ought not to continue to sue as a pauper. An immunity from a litigation unless the
requisite Court fee is paid by the plaintiff is a valuable right for the defendant.40
paupers" (w.e.f. 1-2-1977).
37 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976.
(w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
40 ML Sethi v RP Kapur, AIR 1972 SC 2379 (2383) : (1972) 4 SCC 427 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9A. Court to assign a
pleader to an unpresented indigent person
© 2020 LexisNexis
THE FIRST SCHEDULE
41[R. 9A.
Court to assign a pleader to an unpresented indigent person
(1) Where a person, who is permitted to sue as an indigent person, is not

represented by a pleader, the Court may, if the circumstances of the case so
require, assign a pleader to him.
(2) The High Court may, with the previous approval of the State Government, make
rules providing for—
(a) the mode of selecting pleaders to be assigned under sub-rule (1);
(b) the facilities to be provided to such pleaders by the Court;
(c) any other matter which is required to be or may be provided by the rules
for giving effect to the provisions of sub-rule (1).
Bombay.—In exercise of the powers conferred by sub-rule (2) of rule 9A of Order

XXXIII, of the Code of Civil Procedure, 1908, the High Court of Judicature at
Bombay with the previous approval of the Government of Maharashtra, makes the
following rules for assignment of a pleader to an unrepresented indigent:—
1. Short title and commencement.—These rules may be called the Assignment

of a Pleader to an Unrepresented Indigent Person (Maharashtra) Rules, 1980.
2. Definitions.—In these rules, unless the context otherwise requires,—
(a) 'High Court' means the High Court of Judicature at Bombay;
(b) 'Pleader assigned' means a Pleader assigned under these rules to

represent an indigent person;
(c) 'Panel' means list of Pleaders prepared and maintained under these rules;
(d) 'Constituting Authority' means the authority empowered under these

rules to constituting the panel.
3. The authority referred to in column No 1 below shall constitute panel of

pleaders willing to appear for an unrepresented indigent person in civil
proceedings in Courts referred to in column No 2 against them:
Name of Constituting Authority Name of the Court for which panel to be

constituted
1. Prothonotary and Senior Master High High Court, Original Side, Bombay.
Court, Original Side, Bombay.
2. Registrar, High Court, Appellate Side, High Court, Appellate Side, Bombay.
Bombay.
3. Special Officer, Nagpur. High Court Bench at Nagpur.
4. District Judge. Courts at District Headquarters.
5. Principal Judge, Bombay City Civil Court. Bombay City, Civil Court.
6. Chief Judge, Small Causes Court senior Small Causes Court, Bombay for Courts
most Judge at the Station. outside District Headquarters.
Provided that the panel constituted by the senior most Judge outside the District
Headquarters shall be subject to the previous approval of the District Judge.
4. The Constituting Authority shall prepare the panel in consultation with the
President of the Bar Association, and if there be no Bar Association, in
consultation with the pleaders practising in the Court for which panel is
constituted.
5. Eligibility.—A pleader with a standing of not less than three years at the Bar
shall be eligible for being taken on the panel.
6. Removal.—The Constituting Authority may strike off the name of a pleader

from the panel when the pleader ceases to practice due to any reason or when
he intimates his unwillingness in writing under rule 15 or when the Constituting
Authority finds that the pleader after accepting a engagement neglects or
refuses to discharge his duties. Before striking off a name for neglect or
refusing to discharge duties properly, the Constituting Authority shall give an
opportunity to the pleader to be heard.
7. Revision of Panel.—The Constituting Authority may add to the panel names

of pleaders after following the procedure referred to in rule 4 as and when it
deems necessary to do so.
8. When a pleader is to be assigned to an unrepresented indigent person such

assignment shall be made from out of the panel by the Court concerned.
9. The pleader assigned shall not refuse assistance to the indigent person
unless the Court is satisfied that he has good reasons for so refusing.
10. The Court may for sufficient reasons permit the pleader assigned, to
withdraw from the proceeding and assign another to represent the indigent
person. On such permission for withdrawal being granted, the pleader originally
assigned, shall hand over the papers relating to the proceeding to the pleader
assigned subsequently.
11. The Court or Constituting Authority at any time if deemed proper may call
for a report from the pleader assigned, regarding the progress of the suit or
proceedings entrusted to him.
12. The pleader assigned shall take care that no notice is served, summons
issued or petition presented without good cause in prosecution of the indigent
person's cause.
13. Whilst a person sues or defends as an indigent person, the pleader assigned
shall not take or agree to take or seek to obtain from him or any other person
any fee, profit or reward for the conduct of his useness in the Court:
Provided that notwithstanding anything herein contained, a Judge of the Court

shall have power to award costs against the adverse party or out of the property
recovered in the suit and to direct payment thereof to the pleader assigned.
14. The pleader assigned the case under these rules shall be paid the fees in
various Courts at the rates mentioned below:
(a) In all legal proceedings in the High Court Rs. 50 per day subject to maximum of Rs.
at Bombay and Nagpur and in City Civil 150 in any one case.
Court in Bombay.
(b) In all proceedings in Courts at District Rs. 25 per day subject to a maximum of Rs.
Headquarters and in Small Causes Courts 100 in any one case.
in Bombay Puna and Nagpur.
(c) In all proceedings in Taluka. Courts in Rs. 15 per day subject to a
maximum of Rs. 50 in any one case.
The expenditure on this account shall be met from budget grants sanctioned
under budget head 214—Administration of Justice Legal Advisers and Counsel—
M (i) and M (ii).
15. Intimation of unwillingness to continue on panel.—
The pleader taken on the panel may if he so desire intimate in writing his
unwillingness to continue to be on the panel and on receipt of such intimation,
his name shall be deleted from the panel provided that the Constituting
Authority may request the pleader assigned to continue to represent the indigent
person in the matters assigned. (By order of the Hon'ble the Chief Justice and
Judges)
[Vide Maharashtra Gazette, Pt. IV-Ka, dated 18th September, 1980.]
Calcutta.—In exercise of the powers conferred by Article 227 (2) (b) of the
Constitution of India and by sub-rule (2) of rule 9A of Order XXXIII of the Code of
Civil Procedure the High Court of Calcutta, with the approval of the Government
of West Bengal has framed the following rules which are published for general
information:
Rules under Order XXXIII, rule 9A (2) of the Code of Civil Procedure:
1. (a) For the purpose of selection of pleaders to be assigned under sub-rule (1)
of rule 9A of Order XXXIII of the Code the District Judge in consultation with the
senior most judicial officers of the outlying stations shall prepare and maintain a
panel of pleaders for (a) the district headquarters, and (b) the outlying stations.
The District Judge in his discretion may also consult the President of the Civil
Bar Association.
(b) The panel to be proposed under sub-rule (1) shall be in two parts. The first
part of the panel shall contain the names of suitable advocates who offer
themselves to appear for the undefended indigent persons without charging any
fee and part two thereof shall have the names of such advocates as are willing
to appear for such persons at State expense.
(c) An advocate who has been in practice for not less than five years in the Civil
Courts and whose name has been entered on the rolls of Bar Counsel of West
Bengal shall be eligible for being brought on the panel of pleaders.
(d) The District Judge shall revise the panel every two years in consultation with
the senior most judicial officers of the outlying stations.
(e) The District Judge shall circulate the panel to all the Civil Courts in the
District.
(f) No assignment shall be made to any pleader whose name does not appear in
the panel.
2. In any case where it is decided to assign a pleader under Order XXXIII of the
Code, every Court trying a cause (hereinafter called "the Court") shall endeavour
in the first instance to select a suitable advocate from that part of the panel
which comprises the name of advocates willing to appear for undefended
indigent persons without charging any fee. In case where it is not possible to
assign a pleader, free of charges, the Court may assign a pleader at State
expense.
3. The Court shall have power to terminate the assignment of a panel pleader
for sufficient reasons to be recorded in writing and to make fresh assignment of
another panel pleader in his place:
Provided that a pleader engaged by the Court shall retire from the trial if and
when the indigent person engages lawyer at his own expense.
4. (1) A common register of the panel pleaders to be assigned for undefended

indigent persons at State expense shall be maintained at each station showing:
(a) name of the pleader; (b) date of assignment; (c) Court by which assigned; (d)
No of the case; (e) No of days of work; (f) fees paid.
(2) A statement containing the particulars to be entered in the register shall be

sent to the District Judge by each Court after conclusion of every trial in which a
panel pleader is assigned at State expense.
(3) Every Court at a station shall, before selecting a panel pleader call for and
consult the common register in order to ensure an even distribution of
assignments amongst such panel pleaders.
5. The ordinary fees payable to a panel pleader assigned at State expense shall
not be less than Rs. 50 and not more than Rs. 300 for the entire case at the
discretion of the Presiding Officer of the Court.
6. Any vacancy in the panel due to death, incapacity, resignation or any other
cause may be filled up by the District Judge in the manner provided in rule 1.
7. All panel pleaders engaged at State expense shall maintain in duplicate a

monthly Register of Work in the form prescribed in the Schedule in loose sheets,
one sheet being used for each separate case in which the pleader appears and
the initial of the Presiding Officer shall be taken daily in the appropriate column.
After the disposal of each case in which he appears he shall obtain the
signature of the Presiding Officer to the certificate of correctness on the sheet
showing the work done in his Court. The duplicate of such sheet shall be
preserved in the office of the District Judge for two years from the date of
sanction of the bill.
8. As early possible after the delivery of the judgment of the cases the panel
pleader shall submit to the Presiding Officer a bill in the prescribed form for the
work done supported by the sheet of the Register of Work containing the
certificate of the Presiding Officer.
9. The bill shall be checked with the Register of Work by the Chief Ministerial
Officer, who shall certify its correctness, endorse the relevant sheet as checked;
with his initial and obtain the signature of the Presiding Officer. The bill and
Register of Work shall then be submitted to the District Judge for passing and
after satisfying himself as to the correctness thereof, he shall pass the bill for
payment.
10. The District Judge shall be Controlling Officer for payment and audit of all
fees payable to panel pleaders engaged at State expense in the Civil Courts in
his District.
SCHEDULE
FORM I
(Rule 7)
Register of Work
Court: Name of Month:

Advocat
Date No. and Actual daily Full or half Serial No. of Initial of
nature of duration of day consecutive Presiding
case hearing day of hearing Officer
(1) (2) (3) (4) (5) (6)
Total number of days: Certified correct Signature of Presiding Officer Date:
FORM II
(Rule 8)
Bill of fee due to ........... in ........... No ........... of the Court of ...........
Date Register of Full or half day Amount of fee Remarks

Works No. charged
(1) (2) (3) (4) (5)
Total ........... Rupees ........... Paise ........... only
Verified with the Register of Work as correct
Signature of Chief Ministerial Passed for Rupees ........... (in words and figures)
Officer with date
Signature of Presiding Officer with date District Judge
[Vide Appellate Side: No. 15425, dated 22nd November 1979.]
Haryana.—The following rules have been framed for regulating the appointment
of pleaders to represent indigent persons in civil suits:—
LEGAL AID TO INDIGENT PERSONS (PUNJAB, HARYANA AND CHANDIGARH

ADMINISTRATION) RULES, 1981
PART I
1. Short title and commencement.—(1) The rules may be called the Legal Aid to
the Indigent Persons (Punjab, Haryana and Chandigarh Administration) Rules,
1981.
(2) These rules shall come into force from the date of their publication in the
Official Gazette.
(a) 'High Court' means the High Court of Punjab and Haryana at Chandigarh;
(b) 'Pleader' includes any person whose name is entered on the rolls of the Bar
Council of
Punjab and Haryana maintained under the Advocates Act, 1961 and the rules
framed thereunder;
(c) 'List' means the list of advocates prepared and maintained by District Judge
separately
for cash sub-division of the District under these rules, willing to appear for the
undefined indigent persons in civil suits at State expense or free of charge.
(d) 'Code' means the Code of Civil Procedure, 1908, as amended from time to
time.
PART II
3. Assignment of advocates for indigent persons.—(1) Where a person who is

permitted by a Court to sue as an indigent person under sub-rule (3) of rule 7 of
Order XXXIII of the Code, is not presented by a pleader, the Presiding Officer of
the Court shall, if the circumstances of the case so required, assign a pleader to
him from the list.
(2) In any case where it is decided to assign a pleader under sub-rule (1), the
Court shall endeavour in the first instance to select a suitable advocate from
that part of the list which comprises the names of advocates, if any, willing to
appear for undefended indigent persons without charging any fee.
PART III
4. Preparation of list.—(1) The District Judge shall prepare and maintain a list of
5 to 15 suitable advocates willing to appear for the undefended indigent
persons at the State expense or without charging any fee separately for each
sub-division of the district in relation to which he exercises jurisdiction, after
consultation with the senior most Judicial Officer for the time being posted at
the headquarters of each such subdivision and the president of the Bar
Association of that place.
(2) The list to be prepared and maintained under sub-rule (1) shall be in two
parts. The first part of the list shall contain the names of suitable advocates,
who offer themselves to appear for the undefended indigent persons without
charging any fee and part two thereof shall have the names of such advocates
as are willing to appear for such persons at State expense and are selected for
the purpose.
(3) An advocate with a standing of not less than five years at the Bar shall be
eligible for being brought on the list under sub-rule (1). The District Judge shall
so far as may be, persuade competent senior lawyers to enlist themselves for
representing indigent persons without charging any fee.
(4) The District Judge shall revise the list in the month of December in each
year.
(5) The District Judge, shall in the month of January in each year, communicate
the names of the advocates on the list maintained for each sub-division of his
District (s) to the High Court in the following form:—
(1) Name of the advocate
(2) Date of birth
(3) Qualification: University degrees Distinctions earned in

Law (if any)
(4) Date of enrolment at the Bar.
(5) Place of practice.
(6) Length of actual practice.
(7) General reputation and standing at the Bar.
(8) The Registrar shall cause the names on the list for each district to be entered
separately in a Register.
(9) The District Judge or the High Court may strike off the name of any advocate
from the list without assigning any reason.
PART IV
5. Facilities to advocates selected from the list.—(1) Where an advocate is

assigned to represent, indigent persons at State expense or otherwise, the Court
shall allow a period of at least seven days to the advocate to prepare the brief
and shall adjourn the hearing of the case for that purpose.
(2) The Court shall allow, free of cost, inspection of the records of the case by
the advocate so assigned.
PART V
6. Scale of fees.—(1) The ordinary fee payable to an advocate assigned to

represent an indigent person at State expense, shall not be less than Rs. 50 and
not more than Rs. 300 for the entire case, at the discretion of the Presiding
Officer of the Court.
(2) In special cases the District Judge may add any reasonable amount not
exceeding Rs. 100 to the ordinary fee allowed by sub-rule (1) with the prior
approval of the High Court.
(3) No fee shall be payable for the day on which the case is adjourned without
any proceeding being taken by the Court, except at the first hearing of the case:
Providing that if an advocate assigned to represent an indigent person is

required to retire at any time after the engagement of an advocate by the
indigent person at his own expense, he shall be entitled to get a fee of Rs. 50 as
compensation.
7. Maintenance of Diary by Advocates engaged at State expense.—An advocate

engaged to represent an indigent person in any Court subordinate to the High
Court at State expense shall, at the conclusion of each day of hearing in the
case, prepare and submit for counter signatures by the Presiding Officer of the
Court a diary containing following details fully set out:—
Date The name Name of Duration of Work done Signature of Remarks

and title of the party hearing the
the case represented Presiding
Officer
8. Payment of fees.—(1) The District Judge shall be the controlling Officer for
the payment and audit of all fees due to advocates engaged to represent
indigent persons in Courts subordinate to the High Court.
(2) The advocates listed shall submit their bills to the District Judge within one
month of the disposal of the case by the Court.
[Vide Notification No 70/133/C.A./5/1908-R9A/Order/XXXIII, dated 7th May

1981, published in Haryana Gazette, L.S. pp 509-511, dated 19th May 1981.]
Himachal Pradesh.—The following rules have been made for regulating the
appointment of Pleaders to represent indigent persons in civil suits, namely:—
LEGAL AID TO INDIGENT PERSONS (HIMACHAL PRADESH HIGH COURT)

RULES, 1979
PART I
1. Short title and commencement.—(1) These rules may be called the Legal Aid
to the Indigent Persons (Himachal Pradesh High Court) Rules, 1979.
(2) These rules shall come into force with immediate effect.
(a) "High Court" means the High Court of Himachal Pradesh at Simla;
(b) "Pleader" includes any person whose name is entered on the rolls of the Bar
Council of
Himachal Pradesh maintained under the Advocates Act, 1961, and the rules
framed thereunder;
(c) "List" means the list of advocates prepared and maintained by the District
Judge
separately for each Sub-Division of the District under these rules, willing to
appear for the undefended indigent persons in civil suits at State expense or
free of charges;
(d) "Code" means the Code of Civil Procedure, 1908, as amended from time to
time.
PART II
3. Assignment of advocate for indigent persons.—(1) Where a person who is

permitted by a Court to sue or a person who desires to plead a set off or counter
claim in a suit filed against him as an indigent person under sub-rule (3) of rule 7
and rule 17, respectively, of Order XXXIII of the Code, is not represented by a
pleader the Presiding Officer of the Court shall if the circumstances of the case
so required, assign a pleader to him from the list.
(2) In any case where it is decided to assign a pleader under sub-rule (1), the
Court shall endeavour in the first instance to select a suitable advocate from the
first part of the list mentioned in sub-rule (4) of Part III, failing which the persons
from the Part II of the list will be appointed.
PART III
4. Preparation of list.—(1) The District Judge shall prepare and maintain a list of
3 to 10 suitable advocates willing to appear for the undefended indigent
persons at the State expense or without charging any fee separately for each
Sub-Division of the District in relation to which he exercises jurisdiction, after
consultation with the senior most judicial officer for the time being posted at the
headquarters of each such subdivision and the President of the Bar Association
of that place.
(2) The list to be prepared and maintained under sub-rule (1) shall be in two
parts. The first part of the list shall contain the names of suitable advocates
who offer themselves to appear for the undefended indigent person (s) without
charging any fee and part two thereof shall have the names of such advocates
as are willing to appear for such persons at State expense and are selected for
the purpose.
(3) An advocate with a standing of not less than three years at Bar shall be
eligible for being brought on the list under sub-rule (1). The District Judge shall,
so far as may be, persuade competent senior lawyers to enlist themselves for
representing indigent persons without charging any fee.
(4) The District Judge shall revise the list in the month of December in each
year.
(5) The District Judge shall in the month of January in each year, communicate
the names of the advocates on the list maintained for each Sub-Division of his
District(s) to the High Court in the following form:—
(1) Name of the Advocate.
(2) Date of birth.

(3) Qualification: University degrees Distinctions earned in
Law (if any)
(4) Date of enrolment at the Bar.
(5) Length of actual practice.
(6) The Registrar shall cause the names on the list for each district to be
entered separately in a Register.
(7) The District Judge or the High Court may strike off the name of any
advocate from the list without assigning any reason.
PART IV
5. Facilities to advocates selected from the list.—(1) Where an advocate is

assigned to represent an indigent person at State expense or otherwise, the
Court shall allow a period of at least seven days to the advocates to prepare the
brief and shall adjourn the hearing of the case for that purpose.
(2) The Court shall allow free of costs inspection of the records of the case by
the advocate so assigned.
(3) The Court, where the deposition of witness is recorded by a stenographer
during trial shall, supply copies of such depositions to the advocate so
appointed free of cost.
PART V
6. Scale of fees.—The ordinary fee payable to an advocate assigned to

represent an indigent person at State expense, shall not be less than Rs. 50 and
not more than Rs. 300 for the entire case, at the discretion of the Presiding
Officer of the Court.
(2) In special cases, the District Judge may add any reasonable amount to the
ordinary fee allowed by sub-rule (1) with the prior concurrence of the High Court.
(3) If an advocate assigned to represent an indigent person is required to retire

at any time after the engagement of an advocate by the indigent person at his
own expense, he shall be entitled to get the minimum of the amount of fee fixed
under subrule (1) above as compensation, or such other amount as the
Presiding Officer in his discretion may allow subject to maximum fixed in sub-
rule (1).
7. Maintenance of diary by advocates engaged at State expense.—An advocate

engaged to represent an indigent person in any court subordinate to the High
Court at State expense shall, at the conclusion of each day of hearing in the
case, prepare and submit for counter-signatures by the Presiding Officer of the
Court a diary containing following details fully set out:—
Date The name Name of Duration of Work done Signature of Remarks

and title of the Party hearing the
the case Presiding
Officer
(1) (2) (3) (4) (5) (6) (7)
8. Payment of fees.—(1) The District Judge shall be the controlling officer for
the payment and audit of all fees due to advocates engaged to represent
indigent persons in courts subordinate to the High Court. The fee shall be
debitable to the major Head "214—Administration of Justice Civil and Session
Courts payment of Professional and Special Services."
(2) The advocates shall submit their bills to the District Judge within one month
of the disposal of the case by the Court or such other extended time the District
Judge may allow.
PART VI
9. Recovery of fee.—(1) Where an indigent person succeeds in the suit or

counterclaim filed by him and is awarded costs, the Court shall direct that the
pleader's fee paid to advocate under rule 3 of the sub-rule (1) of Part II shall be
included in the memo of costs appended to the decree-sheet and that amount
shall be ordered to be recovered from the said person and the said amount shall
be the first charge on the subject-matter of the decree.
(2) The amount of fee recovered shall be deposited in the government account
under the proper head of 'Receipts'.
(3) The District Judge shall submit to the High Court quarterly statement
regarding the amount so recovered under rule 9 (1) with particulars of the case.
[Vide Notification No. HHC Admn. 22(6)/78, dated 6th November 1979,
Published in H imachal Pradesh Gazette, Pt. III, dated 15th December 1979.]
COMMENT.—
Rule 9-A was added to empower the Court to assign a pleader to an indigent person
who is not represented by a pleader. The High Court has been empowered to select the
pleaders for this purpose.
paupers" (w.e.f. 1-2-1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Costs where [indigent
person] succeeds
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Costs where 42[indigent person] succeeds
Where the plaintiff'succeeds in the suit, the Court shall calculate the amount of Court-
fees which would have been paid by the plaintiff if he had not been permitted to sue
as an indigent person, such amount shall be recoverable by the 43[State Government]
from any party ordered by the decree to pay the same, and shall be a first charge on
the subject-matter of the suit.
paupers" (w.e.f. 1-2-1977).
42 Subs, by the code of Civil Procedure (Amendment) Act 104 of 1976, section 81, for "pauper"
(w.e.f. 1-2-1977).
43 Subs. by A.O. 1950, for "Provincial Government" which had been subs. by the A.O. 1937, for
"Government".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 11. Procedure where
[indigent person] fails
© 2020 LexisNexis
THE FIRST SCHEDULE
R 11.
Procedure where 44[indigent person] fails
Where the plaintiff fails in the suit or the permission granted to him to sue as an
indigent person has been withdrawn, or where the suit is withdrawn or dismissed—
(a) because the summons for the defendant to appear and answer has not been
served upon him in consequence of the failure of the plaintiff to pay the Court-
fee or postal charges (if any) chargeable for such service, 45[or to present
copies of the plaint or concise statement]; or
(b) because the plaintiff does not appear when the suit is called on for hearing;
the Court shall order the plaintiff, or any person added as a co-plaintiff to the
suit, to pay the Court-fees which would have been paid by the plaintiff if he had
not been permitted to sue as an 46[indigent person]. [AP, KNT, K, M]
Andhra Pradesh.—(i) Substitute existing rule as in Madras renumbered as sub-rule (1)

(ii) Insert the following as sub-rule (2):—
"(2) Where the suit has been adjusted wholly or in part by any lawful agreement or
compromise or where the defendant satisfies the plaintiff in respect of the whole or
any part of the subject-matter of the suit, but no provision is made for the payment of
Court-fee, the Court may direct either of or both the parties to pay the Court-fee or any
proportionate part thereof, as it thinks fit." (14-9-1961).

1967.
"11. (1) Where the plaintiff fails in the suit or is dispaupered or where the suit is
withdrawn or where part of the claim is abandoned or where the suit is dismissed
because the summons for the defendant to appear and answer has not been served
upon him in consequence of the plaintiff's failure to pay the requisite charges for
service or the suit is so dismissed because the plaintiff does not appear when the suit
is called on for hearing, the Court shall order the plaintiff or any person added as a co-
plaintiff to the suit to pay the Court-fee and in case of abandonment of part of the
claim the proportionate Court-fee which would have been payable by the plaintiff if he
had not been permitted to sue as pauper.
(2) In cases where the plaintiff is dispaupered the Court may, instead of proceeding
under sub-rule (1) order the plaintiff to pay the requisite Court-fee within a time to be
fixed by it and in default dismiss the suit and make an order for the payment of Court-
fee as in sub-rule (1).
(3) Where the Court finds that the suit has been instituted unreasonably or improperly
by a next friend on behalf of a minor plaintiff on a cause of action which accrued during
minority of such plaintiff, the Court may order the next friend to personally pay the
Court-fee."
Madras (ROC No 2482 of 1936 B 1).— Substitute the following for the existing rule:—
"11. Procedure where pauper fails.—Where the plaintiff fails in the suit or is dispaupered
or where the suit is withdrawn or where part of the claim is abandoned or where the
suit is dismissed—
(a) because the summons for the defendant to appear and answer has not been served
upon him in consequence of the failure of the plaintiff to pay the Court-fees or postal
charges (if any) chargeable for such service, or
(b) because the plaintiff does not appear when the suit is called on for hearing, the
Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay
the Court-fee and in the case of abandonment of part of the claim the proportionate
Court-fee, which would have been payable by the plaintiff if he had not been permitted
to sue as a pauper.
In cases where the plaintiff is dispaupered the Court may, instead of proceeding under
the previous paragraph, order the plaintiff to pay the requisite Court-fee within a time to
be fixed by it and in default dismiss the suit and make an order for the payment of
Court-fee as in the previous paragraph.
Where the Court finds that the suit has been instituted unreasonably or improperly by a
next friend on behalf of a minor plaintiff on a cause of action which accrued during the
minority of such plaintiff, the Court may order the next friend to personally pay the
Court-fee."
paupers" (w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
1977).
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 11A. Procedure where [an
indigent person’s] suit abates
© 2020 LexisNexis
THE FIRST SCHEDULE
48[R. 11A.
Procedure where 47[an indigent person's] suit abates
Where the suit abates by reason of the death of the plaintiff or of any person added as
a co-plaintiff, the Court shall order that the amount of Court-fees which would have
been paid by the plaintiff if he had not been permitted to sue as 49[an indigent person]
shall be recoverable by the State Government from the estate of the deceased
plaintiff.]
COMMENT.—
Rule 11 provides for the procedure where [an indigent person] fails. Cases occur where
a suit is dismissed because the summons for the defendant has not been served upon
him due to the failure of the plaintiff to present copies of the plaint or coneise
statement. It is intended to cover such cases.
paupers" (w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. State Government may
apply for payment of Court-fees
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
State Government may apply for payment of Court-fees
The 50[State Government] shall have the right at any time to apply to the Court to
make an order for the payment of Court-fees under rule 10, 51[rule 11 or rule 11A] [K,
M].
[Rule amended in Kerala & Madras.]
Madras.—(i) Renumber rule 12 as sub-rule (1) and add the following as sub-rule (2):—
"(2) Notice to State Government before payment".—No order for payment out of money
standing to the credit of any suit instituted in forma pauperis shall be made on the
application of any party except after notice given to the Government Pleader on behalf
of the Government." [10-8-1955].
paupers" (w.e.f. 1-2-1977).
50 Subs. by A.O. 1950, section 2, for "Provincial Government" which had been subs. by the A.O.
1937 for "Government".
51 Subs. by the Code of Civil Procedure (Amendment) Act 24 of 1942, section 2, for "or rule 11".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. State Government to be
deemed a party
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
State Government to be deemed a party
All matters arising between the 52[State Government] and any party to the suit under
rule 10, rule 11, 53[Rule 11A] or rule 12 shall be deemed to be questions arising
between the parties to the suit within the meaning of Section 47.
[Rule 13A added in Andhra Pradesh].
Andhra Pradesh.—After rule 13 insert new rule 13A:—
"13A. If any money is outstanding to the credit of a suit or appeal or other proceeding
instituted, preferred or taken in forma pauperis no order for payment out of such money
shall be made on application of any party except after due notice to the State
Government." (15-2-1958).
COMMENT.—
A Division Bench of Madras High Court has held that the rule applies only to matter
arising in the suit in which the order for Court fee is made. An application by the
Government for payment of moneys standing to the credit of the party in another suit is
not a matter arising under this rule.54
paupers" (w.e.f. 1-2-1977).
53 Ins. by the code of Civil Procedure (Amendment) Act 24 of 1942, section 2.
54 Gopal Krishan Naidu v State, AIR 1971 Mad 463 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 14. Recovery of amount of
Court-fees
© 2020 LexisNexis
THE FIRST SCHEDULE
55[R. 14.
Recovery of amount of Court-fees
Where an order is made under rule 10, rule 11 or rule 11A, the Court shall forthwith
cause a copy of the decree or order to be forwarded to the Collector, who may, without
prejudice to any other mode of recovery, recover the amount of Court-fees specified
therein from the person or property liable for the payment as if it were an arrear of
land revenue.]
paupers" (w.e.f. 1-2-1977).
55 Subs. by the Code of Civil Procedure (Amendment) Act 24 of 1942, section 2, for the former
rule.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Refusal to allow
applicant to sue as [indigent person] to bar subsquent application of like nature
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Refusal to allow applicant to sue as 56[indigent person] to bar subsquent
application of like nature
An order refusing to allow the application to sue as 58[ an indigent person] shall be a
bar to any subsequent application of the like nature by him in respect of the same
right to sue; but the applicant shall be at liberty to institute a suit in the ordinary
manner in respect of such right;
57[Provided that the plaint shall be rejected if he does not pay, either at the time of the
institution of the suit or within such time thereafter as the Court may allow], the costs
(if any) incurred by the 58[State Government] and by the opposite party in opposing
his application for leave to sue as an 59[indigent person] [RAJ].
Rajasthan.— The following amendments were made by Rajasthan Act, dated 14-8-1954.
In its application to Rajasthan High Court rule 15 be renumbered as sub-rule (1) thereof
and the following shall be added as rule 15(2) thereafter:—
"15. (2) Nothing in sub-rule (1) shall prevent the Court while rejecting an application
under rule 5 or refusing an application under rule 7 from granting time to the applicant
to pay the requisite Court-fee within a time to be fixed by the Court; and upon such
payment the suit shall be deemed to have been instituted on the date on which the
application was presented."
COMMENT.—
It has been held by the Supreme Court that suing as [an indigent person] is only a
method of suing which is applicable to the particular individual who makes the
application for leave to sue as indigent person.60
A dismissal in default in prosecution is not a refusal under this rule, as held by the
Orissa High Court.
paupers" (w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
words (w.e.f. 1-2-1977).
(w.e.f. 1-2-1977).
60 Vijay Pratap v Dukh Haran Nath, AIR 1962 SC 941 : 1962 Supp (2) SCR 675 : 1962 ALJ 634 :
(1962) 2 All 831 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15A. Grant of time for
payment of Court-fee
© 2020 LexisNexis
THE FIRST SCHEDULE
61[R. 15A.
Grant of time for payment of Court-fee
Nothing contained in rule 5, rule 7 or rule 15 shall prevent a Court, while rejecting an
application under rule 5 or refusing an application under rule 7 from granting time to
the applicant to pay the requisite Court-fee within such time as may be fixed by the
Court or extended by it from time to time; and upon such payment and on payment of
the costs referred to in 62[* * *] of rule 15 within that time, the suit shall be deemed to
have been instituted on the date on which the application for permission to sue as
60[an indigent person] was presented.
COMMENT.—
Rule 15-A was inserted which provides that upon the payment of Court-fee within such
time as may be allowed by the Court, the suit shall be deemed to have been instituted
on the date on which the application was presented.
paupers" (w.e.f. 1-2-1977).
1977).
62 Omitted by the Code of Civil Procedure (Amendment) Act 19 of 1988, section 3 and second
sch.
60 Vijay Pratap v Dukh Haran Nath, AIR 1962 SC 941 : 1962 Supp (2) SCR 675 : 1962 ALJ 634 :
(1962) 2 All 831 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Costs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Costs
The costs of an application for permission to sue as 63[an indigent person] and of an
inquiry into indigency shall be costs in the suit.
Andhra Pradesh.—In Order XXXIII, after rule 16, insert the following rules, namely:
17. In every case, where a person is suing as a pauper, the counsel appearing for him
shall file along with his vakalatnama a certificate stating the fee, if any, he has actually
received and/or as stipulated to receive from the pauper or on his behalf in the suit and
if, upon such a certificate the Court is satisfied that his means are such that he ought
not to continue to sue as a pauper or that he is being financed by a third party, it shall
be open to the Court to dispauper such a person.
18. Where the pauper is unable to engage a counsel, the Court may assign an advocate
or pleader to assist him.
19. It shall be the duty of the Advocate or Pleader who may be assigned by the Court to
assist a pauper to see that notices are served, summonses issued or petitions
presented only on good and sufficient grounds and he shall also report to the Court
every six months the progress of the suit.
20. After a person has been granted leave to sue as a pauper, no person shall take,
except in pursuance of an agreement as certified to Court under rule 17 or agree to
take or seek to obtain from him, any fee, profit or reward for the conduct of his
business in the Court:
Provided that, notwithstanding anything herein contained, the Court shall have power to
award costs against the adverse party or out of the property recovered in the suit and
to direct the payment thereof to the Advocate or Pleader representing the pauper.
21. The word suit in these rules includes appeal.
[Vide Notification No ROC No 1186/56-B1, dated 9th April, 1958.]Gujarat.—
In Order XXXIII, after rule 16, insert the following rules, namely:
17. Any person may be allowed to defend as a pauper either before or after he has
entered appearance and the rules in this Order shall apply to him mutatis mutandis as
if he was a plaintiff and his written statement was a plaint.
18. No cause, suit or matter commenced or carried on by a pauper plaintiff or

defendant shall be compromised on any account whatever without leave first had and
obtained from the Court, (w.e.f. 17-8-1961).
paupers" (w.e.f. 1-2-1977).
63 Subs. by Act 104 of 1976, section 81, for "pauper" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 17. Defence by an indigent
person
© 2020 LexisNexis
THE FIRST SCHEDULE
64[R. 17.
Defence by an indigent person
Any defendant, who desires to plead a set-off or counter-claim, may be allowed to set
up such claim as an indigent person, and the rules contained in this Order shall, so far
as may be, apply to him as if he were a plaintiff and his written statement were a
plaint.
Bombay (Dadra and Nagar Haveli), Goa Daman and Diu.—In Order XXXIII, for rule 17,
substitute the following rule, namely:
17. Defence by an indigent person. Any defendant, who desire to plead a set off or
counter-claim, may be allowed to set up such claim as an indigent person and the rules
contained in this order shall so far as may be, apply to him as if he were a plaintiff and
his written statement were a plaint, and if he is required to issue a third party notice, the
third party notice shall also be deemed to be a plaint for the purpose of this rule.
[Vide Maharashtra Gazette, Pt. 4Ka, page 421, dated 15th September, 1983 (w.e.f. 1-10-
1983); Goa Gazette, Extra., section 1, page 387 (No. 28), dated 12 October 1987.]
COMMENT.—
Rule 17 was added in order to allow the defendant, who is an indigent person, to plead
a set-off or counter claim in that capacity.
paupers" (w.e.f. 1-2-1977).
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 18. Power of Government
to provide for free legal services to indigent persons
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 18.
Power of Government to provide for free legal services to indigent persons
(1) Subject to the provisions of this Order, the Central or State Government may
make such supplementary provisions as it thinks fit for providing free legal
services to those who have been permitted to sue as indigent persons.
(2) The High Court may, with the previous approval of the State Government, make
rules for carrying out the supplementary provisions made by the Central or
State Government for providing free legal services to indigent persons referred
to in sub-rule (1), and such rules may include the nature and extent of such
legal services, the conditions under which they may be made av ailable, the
matters in respect of which, and the agencies through which, such services
may be rendered.]
Andhra Pradesh (Notfn No ROC No. 1186/56-B1; O-4-1958).—After rule 16 insert the
following Rules 17-21:—
"17. In every case, where a person is suing as a pauper, the Counsel appearing for him
shall file, along with his Vakalatnama a certificate stating the fee, if any, he has actually
received and/or has stipulated to receive from the pauper or on his behalf in the suit
and if, upon such a certificate the Court is satisfied that his means are such that he
ought not to continue to sue as a pauper or that he is being financed by a third party, it
shall be open to the Court to dispauper such a person.
18. Where the pauper is unable to engage a Counsel, the Court may assign an advocate
or pleader to assist him.
19. It shall be the duty of the Advocate or Pleader who may be assigned by the Court to
assist a pauper to see that notices are served, summonses issued or petitions
presented only on good and sufficient grounds and he shall also report to the Court
every six months the progress of the suit.
20. After a person has been granted leave to sue as a pauper, no person shall take,
except in pursuance of an agreement as certified to Court under rule 17 or agree to
take or seek to obtain from him, any fee, profit or reward for the conduct of his
business in the Court:
Provided that, notwithstanding anything herein contained, the Court shall have power to
award costs against the adverse party or out of the property recovered in the suit and
to direct the payment thereof to the Advocate or Pleader representing the pauper.
21. The word "suit" in these rules includes "appeal"."
Bombay.—After rule 16 insert the following rules 17 and 18:—

"17. Defendant may be allowed to defend suit as pauper.—Any person may be allowed to
defend as a pauper either before or after he has entered appearance and the rules in
this Order shall apply to him mutatis mutandis as if he was a plaintiff and his written
statement was a plaint and if he is required to issue a third party notice, the third party
notice shall also be deemed to be a plaint for the purposes of this Rule.
18. A pauper not to compromise suit without leave of Court.—No cause, suit or matter
commenced or carried on by a pauper plaintiff or defendant shall be compromised on
any account whatever without leave first had and obtained from the Judge in Chambers
or the Court." (1-11-1966)
10-1983), Goa Gazette, dated 12-10-1987, Extra., Section 1, No 28, Page 387, dated 1-4-
1987.
(1) Substitute the rule 17 and its marginal note:—
"17. Defence by an indigent person.—Any defendant, who desires to plead a set-off or

counter-claim, may be allowed to set up such claim as an indigent person, and the rules
contained in this order shall so far as may be, apply to him as if he were a plaintiff and
his written statement were a plaint, and if he is required to issue a third party notice, the
third party notice shall also be deemed to be a plaint for the purpose of this rule."
(2) After the existing rule 18 add the following rule—
"19. An indigent not to compromise suit without leave of Court.—No cause, suit or
matter commenced or carried on by an indigent plaintiff or defendant shall be
compromised on any account whatsoever without leave first had and obtained from the
Judge in Chambers or the Court." (1-10-1983)
Gujarat.—Insert Rules 17 and 18 which are same as in Bombay with omission in rule 17
of the words "and if he is required purposes of this rule".
COMMENT.—
Rule 18 was inserted with a view to provide free legal service to indigent persons.
Power is conferred by this provision upon the Central and State Government as well as
the High Court with previous approval of the State Government to make elaborate rules
regarding the nature and extent of such legal services and the conditions of its
availability to indigent person.
paupers" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Parties to suits for
foreclosure, sale and redemption
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXIV Suits Relating to Mortgages of Immovable Property
R. 1.
Parties to suits for foreclosure, sale and redemption
Subject to the provisions of this Code, all persons having an interest either in the
mortgage- security or in the right of redemption shall be joined as parties to any suit
relating to the mortgage.
Explanation.—A puisne mortgagee may sue for foreclosure or for sale without making
the prior mortgagee a party to the suit, and a prior mortgagee need not be joined in a
suit to redeem a subsequent mortgage.
COMMENT.—
This rule was added in order to avoid the multiplicity of suits and also to enable the
interested parties to raise defences open to them in law so that the same may be taken
into consideration in dealing with the claim under the mortgage and in passing the
preliminary decree thereon.
This rule is more a rule of convenience and prudence than a rule affecting the
A suit for possession by redemption of mortgage was filed by the heirs of the
mortgagor who was stated to be not heard for more than seven years. In the appeal,
the defendant mortgagee claimed to have obtained a compromise decree for specific
performance of sale against the original mortgagor. The defendants version was
disbelieved and the suit for redemption was decreed.2
But a suit filed by a mortgagee, after the death of the mortgagor impleading only some
of the heirs of the deceased stands on a different footing. In a suit for redemption legal
representatives of co-mortgagee were not brought on record in appeal. The appeal
would abate only in respect of that mortgagee when the mortgagor is prepared to pay
entire mortgage amount to surviving mortgagee.3
Doctrine of representation.—
On account of bona fide error, the plaintiff instituted a suit against a person who is not
representing the estate of a deceased person, against whom the plaintiff has a claim
either at all or even partially. In the absence of fraud or collusion or other ground which
taint the decree, a decree passed against the persons impleaded as heirs bind the
estate. Even though other persons interested in the estate are not brought on the
record.4
Non-joinder of parties-effect of.—

The non-joinder of the official Receiver in the execution proceedings did not render the
purchase, a nullity.
In a suit for redemption, the plaintiffs were sons of the mortgagor who were
representing the estate of the mortgagor as legal representatives. The daughters of the
deceased mortgagor were not included in the suit. while deciding the question whether
the suit for redemption was bad for non joinder of the daughters, the Court held that as
the daughters had relinquished their share in the property, the suit is not bad for non
joinder of necessary parties.5
1 Satwanti v Kali Shanker, AIR 1955 All 4 (FB).

2 Beli Ram v Salig Ram, AIR 1996 SC 757 (759, 760) : (1996) 7 SCC 186 .
3 Chhaganlal v Narandas, AIR 1982 SC 121 (125) : ((1982) 1 SCC 223 : (1982) 1 GLR 325 .
4 Mohd Sulaiman v Mohd Ismail, AIR 1966 SC 792 (796) : (1966) 1 SCR 937 : (1967) 1 MLJ (SC)
10.
5 Mannathan v Chinnu, AIR 2012 Mad 210 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Preliminary decree in
foreclosure suit
© 2020 LexisNexis
THE FIRST SCHEDULE
6[R. 2.
Preliminary decree in foreclosure suit
(1) In a suit for foreclosure, if the plaintiff'succeeds, the Court shall pass a
preliminary decree—
(a) ordering that an account be taken of what was due to the plaintiff at the
date of such decree for—
(i) principal and interest on the mortgage.
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up

to that date in respect of his mortgage-security, together with
interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing—
(i) that, if the defendant pays into Court the amount so found or
declared due on or before such date as the Court may fix within
six months from the date on which the Court confirms and
countersigns the account taken under clause (a), or from the date
on which such amount is declared in Court under clause (b), as
the case may be, and thereafter pays such amount as may be
adjudged due in respect of subsequent costs, charges and
expenses as provided in rule 10, together with subsequent
interest on such sums respectively and provided in rule 11, the
plaintiff'shall deliver up to the defendant, or to such person as the
defendant appoints, all documents in his possession or power
relating to the mortgaged property, and shall, if so required, re-
transfer the property to the defendant at his cost free from the
mortgage and from all incumbrances created by the plaintiff or
any person claiming under him, or where the plaintiff claims by
derived title, by those under whom he claims, and shall also, if
necessary, put the defendant in possession of the property; and
(ii) that, if payment of the amount found or declared due under or by

the preliminary decree is not made on or before the date so fixed,
or the defendant fails to pay, within such time as the Court may
fix, the amount adjudged due in respect of subsequent costs,
charges, expenses and interest, the plaintiff'shall be entitled to
apply for a final decree debarring the defendant from all right to
redeem the property.
(2) The Court may, [OR,P] on good cause shown and upon terms to be fixed by the
Court, from time to time, at any time before a final decree is passed, extend the
time fixed for the payment of the amount found or declared due under sub-rule
(1) or of the amount adjudged due in respect of subsequent costs, charges,
expenses and interest.
(3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving

title from, or subrogated to the rights of, any such mortgagees are joined as
parties, the preliminary decree shall provide for the adjudication of the
respective rights and liabilities of the parties to the suit in the manner and form
set forth in Form No 9 or Form No 10, as the case may be, of Appendix D with
such variations as the circumstances of the case may require.
[Sub-rule (2) amended in Orissa & Pat].
Patna (Notfn No 1-R of 7-1-1936).—In sub-rule (2) after the words "The Court may"
insert "of its own motion or".
COMMENT.—
This rule prevents the mortgagees from realizing their securities otherwise than in the
mode prescribed therein.
In ascertaining the amount due to the mortgagee at the date of the preliminary decree,
the statutory liability of the mortgagee, under section 76 of the Transfer of Property
Act, to account up to the date of the preliminary decree would be the subject-matter of
dispute in the suit. If the mortgagor does not raise the plea regarding such adjustment,
it has been held by the Supreme Court that he would be barred on the principle of res-
judicata from raising the same subsequently, as the said matter should be deemed to
have been a matter which was directly and substantially in issue in the suit up to that
stage.7 But the net receipts realised by the mortgagee subsequent to the preliminary
decree are outside the scope of that decree and the Court is entitled to give credit for
them to the mortgagor in the final decree.8
Preliminary decree in mortgage suit distinguished from that in partition suit.—
In a preliminary decree in a mortgage suit the amount due is determined and declared
and the time within which the amount has to be paid is also fixed and the consequence
of non-payment within the time stipulated is also specified. On the other hand in a
partition suit the preliminary decree only decides a part of the suit and therefore, an
application for passing a final decree is only an application in a pending suit, seeking
further progress. There can be a preliminary decree followed by a final decree or there
can be a single decree with certain further steps to be taken by the Court.9
Preliminary decree in suit for disclosure.—
Under the provision of rule 2 if the plaintiff, in a suit for disclosure, succeeds, the Court
has to pass a preliminary decree ordering that an account be taken of what is due to
the plaintiff on the date of such decree for principal and interest on the mortgage.10
It has been held by the Supreme Court that any payment made into Court by the
mortgagor is in the first instance to be applied towards satisfaction of interest and
costs and thereafter to the principal.11
6 Rules 2 to 8 were substituted by section 4 of the Transfer of Property (Amendment)

Supplementary Act, 1929 (21 of 1929).
7 Bhikhilal v Tribeni, AIR 1965 SC 1935 .
8 Bhikhilal v Tribeni, AIR 1965 SC 1935 .
9 Shub Karan Bubna v Sita Saran Bubna, (2009) 9 SCC 689 (697, 698).
10 Gyarsibai v Dhansukh, AIR 1965 SC 1055 (1057) : (1965) 2 SCR 154 : (1966) 2 AnLT 9.
11 Meghraj v Bayabai, AIR 1970 SC 161 (163) : (1969) 2 SCC 274 : 1969 Mah LJ 776 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Final decree in
foreclosure suit
© 2020 LexisNexis
THE FIRST SCHEDULE
12[R. 3.
Final decree in foreclosure suit
(1) Where, before a final decree debarring the defendant from all right to redeem
the mortgaged property has been passed, the defendant makes payment into
Court of all amounts due from him under sub-rule (1) of rule 2, the Court shall,
on application made by the defendant in this behalf, pass a final decree—
(a) ordering the plaintiff to deliver up the documents referred to in the

preliminary decree, and if necessary,—
(b) ordering him to re-transfer at the cost of the defendant the mortgaged
property as directed in the said decree, and, also if necessary—
(c) ordering him to put the defendant in possession of the property.
(2) Where payment in accordance with sub-rule (1) has not been made, the Court
shall, on application made by the plaintiff in this behalf, pass a final decree
declaring that the defendant and all persons claiming through or under him are
debarred from all right to redeem the mortgaged property and also, if
necessary, ordering the defendant to put the plaintiff in possession of the
property.
(3) On the passing of a final decree under sub-rule (2), all liabilities to which the
defendant is subject in respect of the mortgage or on account of the suit shall
be deemed to have been discharged.]
12 Subs. by Act 21 of 1929, section 4 for rule 3.

suit for sale
© 2020 LexisNexis
THE FIRST SCHEDULE
13[R. 4.
Preliminary decree in suit for sale
(1) In a suit for sale, if the plaintiff'succeeds, the Court shall pass a preliminary
decree to the effect mentioned in clauses (a), (b) and (c) (i) of sub-rule (1) of
rule 2, and further directing that, in default of the defendant paying as therein
mentioned, the plaintiff'shall be entitled to apply for a final decree directing
that the mortgaged property or a sufficient part thereof be sold, and the
proceeds of the sale (after deduction therefrom of the expenses of the sale) be
paid into Court and applied in payment of what has been found or declared
under or by the preliminary decree due to the plaintiff, together with such
amount as may have been adjudged due in respect of subsequent costs,
charges, expenses and interest, and the balance, if any, be paid to the
defendant or other persons entitled to receive the same.
(2) The Court may [a] on good cause shown and upon terms to be fixed by the
Court from time to time, at any time before a final decree for sale is passed,
extend the time fixed for the payment of the amount found or declared due
under sub-rule (1) or of the amount adjudged due in respect of subsequent
costs, charges, expenses and interest.
Power to decree sale in foreclosure suit
(3) In a suit for foreclosure in the case of an anomalous mortgage, if the

plaintiff'succeeds, the Court may, at the instance of any party to the suit or of
any other person interested in the mortgage-security or the right of
redemption, pass a like decree (in lieu of a decree for foreclosure) on such
terms as it thinks fit, including the deposit in Court of a reasonable sum fixed
by the Court to meet the expenses of the sale and to secure the performance
of the terms [C, GAU].
(4) Where, in a suit for sale or a suit for foreclosure in which sale is ordered,
subsequent mortgagees or persons deriving title from, or subrogated to the
rights of, any such mortgagees are joined as parties, the preliminary decree
referred to in sub-rule (1) shall provide for the adjudication of the respective
rights and liabilities of the parties to the suit in the manner and form set forth
in Form No 9, Form No 10 or Form No 11, as the case may be, of Appendix D
with such variations as the circumstances of the case may require.]
[New sub-rule (3) added and sub-rules (3), (4) renumbered as sub-rules (4), (5) in Cal &
Gauhati; Sub-rule (2) amended in All].
Allahabad (Notfn No. 4084/35(a)-3(7); 24-7-1926).—In rule 4(2) after the words "the
Court may" insert "of its own motion or".
Calcutta (Notfn No 3516-G of 3-2-1933).—Renumber sub-rules (3) and (4) as sub-rules
(4) and (5) respectively and insert the following as sub-rule (3):—
"(3) The Court may in its discretion direct in the decree for sale that if the proceeds of
the sale are not sufficient to pay the mortgage debt, the mortgagor shall pay the
balance personally."
Assam and Nagaland.—Same as in Calcutta.
COMMENT.—
It was held by the Privy Council that a subsequent mortgagee who is impleaded as a
party to a suit on a prior mortgage is entitled at least to redeem the plaintiff or to
receive his own mortgage money out of the surplus sale proceeds remaining after
satisfaction of the plaintiff's mortgage. If they pay off the plaintiff, he becomes entitled
to apply for a final decree for sale in the plaintiff's stead.14
Principles for granting interest.—
Order XXXIV rules 2 and 4 which applies to a mortgage suit, enjoins the Court to order
an account to be taken of what is due to the plaintiff at the date of such decree for the
principal and 'interest on the mortgage.' The special provision in O XXXIV has therefore,
to be applied in preference to the general provision in section 34. Till the period for
redemption expires the matter is considered to remain in the domain of contract and
interest has to be paid at the rate and with the rest specified in the contract of
mortgage. But after the period for redemption has expired the matter passes from the
domain of contract to that of judgment. The right of the mortgagee will henceforth
depend not on the contents of his bond but on the directions of the decree. Order
XXXIV rule 11 gives a certain amount of discretion to the Court so far as interest
pendente lite and subsequent interest is concerned. It is no longer absolutely obligatory
on the Courts to decree interest at the contractual rates upto the date of redemption in
all circumstances even if there is no question of the rate being penal, excessive or
substantially unfair.15
Mortgagor's right to redeem.—
Under this provision the mortgagee cannot deprive the mortgagor of his right to
redeem excepting by proceeding on his mortgage. As long as the mortgagor has a right
to redeem the mortgage he can always pay off the mortgagee and get back
possession. The position would continue as long as the property is not sold under the
final decree for sale under section 34 rule 4 of the Code of Civil Procedure.16
Oral evidence is worthless, not reliable.—
A suit was filed for recovery of certain amount inclusive of principal, interest etc.
besides, interest pendente lite on the basis of mortgage. The question was whether the
goods stated to have been damaged, were not delivered to the defendants. No plea or
issue to this effect was raised. The High Court relying on oral evidence held that the
goods were not delivered. The decision of the High Court was erroneous.17
Auction-purchaser is not party to suit.—
An auction purchaser cannot be held deemingly to be a party to the suit upto the stage
of the preliminary decree.18
It has been held by the Delhi High Court that a compromise decree on a mortgage may
fix a longer period than the six months allowed under the rule, for payment by the
mortgagor.19
Two stages of accounting.—
In a suit for sale if the plaintiff'succeeds then the Court has to pass a preliminary
decree ordering an account to be taken of what is due to the plaintiff. There are two
stages of accounting, one up to preliminary decree and the second thereafter. If the
mortgagor paid certain amounts to mortgagee before the preliminary decree and they
were not given credit to the mortgagor, and a large amount was declared in the
preliminary decree as due to the mortgagee, then he cannot reopen the question on the
principle of res judicata. It was a matter directly and substantially in issue in the suit
upto that stage.20

14 Hemchandra v Subadhani Debya, AIR 1940 PC 134 .
15 Soli Pestonji Majoo v Ganga Dhar, AIR 1969 SC 600 (603) : (1969) 1 SCC 220 : (1969) 3 SCR
33 .
16 Mathuralal v Keshar Bai, AIR 1971 SC 310 (314) : (1970) 1 SCC 454 .
17 Central Bank of India v Hari Prasad Jalan, AIR 1972 SC 1274 (1278) : (1972) 4 SCC (N) 37.
18 Sudhendu Narain Deb v Renuka Bishwas, AIR 1992 SC 385 (391) : (1992) 1 SCC 206 .
19 LC Bank v ARM Co, AIR 1972 Del 118.
20 Gyarsibai v Dhansukh, AIR 1965 SC 1055 (1058) : (1965) 2 SCR 154 : (1966) 2 AnLT 9; Madan
Theatres v Dinshaw & Co, AIR 1945 PC 152 . relied on.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R- 5. Final decree in suit for
sale
© 2020 LexisNexis
THE FIRST SCHEDULE
21[R- 5.
Final decree in suit for sale
(1) Where, on or before the day fixed or at any time before the confirmation of a
sale made in pursuance of a final decree passed under sub-rule (3) of this rule,
the defendant makes payment into Court of all amounts due from him under
sub-rule (1) of rule 4, the Court shall, on application made by the defendant in
this behalf, pass a final decree or, if such decree has been passed, an order—
(a) Ordering the plaintiff to deliver up the documents referred to in the

preliminary decree, and if necessary—
(b) Ordering him to transfer the mortgaged property as directed in the said
decree, and, also if necessary—
(c) Ordering him to put the defendant in possession of the property.
(2) Where the mortgaged property or part thereof has been sold in pursuance of a
decree passed under sub-rule (3) of this rule, the Court shall not pass an order
under sub-rule (1) of this rule, unless the defendant, in addition to the amount
mentioned in sub-rule (1), deposits in Court for payment to the purchaser a
sum equal to five per cent of the amount of the purchase-money paid into
Court by the purchaser.
Where such deposits have been made, the purchaser shall be entitled to an
order for repayment of the amount of the purchase money paid into Court by
him, together with a sum equal to five per cent thereof.
shall, on application made by the plaintiff in this behalf [AP, K, M] pass a final
decree directing that the mortgaged property or a sufficient part thereof be
sold, and that the proceeds of the sale be dealt with in the manner provided in
sub-rule (1) of rule 4.
[Sub-rule (3) amended in AP, Kerala & Mad].
Kerala (Notfn No. B1-3312/58; 7-4-1959).— In sub-rule (3) insert words as in Madras.
Madras (ROC No 4955 of 1930-B-1).— Rule 5 has been substituted by another rule
which contains the following change in the existing rule:—
In sub-rule (3) after the words "plaintiff in this behalf insert "and after notice to all
parties".
COMMENT.—
In all mortgage suits, a preliminary decree as well as a final decree are passed as
contemplated by O XXXIV. The final decree is passed only when the payment directed
by the preliminary decree has not been made within the proper time. Under this rule, a
final decree is necessary only when the decree originally passed is a preliminary decree
under rule 4. Hence, where only a money decree has been passed, a final decree under
the rule is not necessary although the decree may authorise the decree-holder to
realize the decree amount by sale of the judgment debtor's property.22 Similarly, where
at the time of the coming into force of the present Code of Civil Procedure a decree had
already been passed under the Transfer of Property Act, section 88, it has been held
that a final decree under the present rule is not necessary.23
Applicability.—
Where the proceedings did not relate to a mortgage suit, the provisions of rule 5 of O
XXXIV of the Code would not be applicable.24
Claim of highest bidder, not maintainable.—
An auction of hypothecated property took place during pendency of a writ-petition. A

settlement between the debtor and corporation reached thereafter. In the meanwhile
the debtor made the payment of the loan. The sale was not confirmed by the Court and
also offer of bidder was not confirmed by the Corporation. The claim by the highest
bidder at auction, for acceptance of bid, is not maintainable. Auction sale cannot be
effectuated.25
Rule 5 contemplates the passing of only one final decree. Where the preliminary decree
is appealed from, the final decree should be based on the appellate decree.26
This rule expressly recognises the right of the mortgagor to redeem the mortgage at
any time before the confirmation of a sale made in pursuance of a final decree passed
in a suit for sale.27
It has been held by the Supreme Court that the decree-holder cannot get the right to
execute the final decree and if an execution application is pending it is the duty of the
Court to refuse to execute the decree when the reversal is brought to its notice. A final
decree passed when appeal against preliminary decree pending—Effect of appellate
decree on final decree when former reverses, confirms or varies preliminary decree—
Duties of appellate Court and of Court executing final decree—Well settled propositions
with respect to preliminary and final decrees in mortgage suits and the effect thereon
of appellate Court indicated.28 If the preliminary decree is confirmed into and the
appeal therefrom is dismissed, there is no change whatever to be made in the final
decree and the final decree as it stands needs no amendment. When dismissing the
appeal, it is the duty of the appellate Court to indicate whether the time for payment is
to be extended and, if it does not do so, the original time granted for the purpose must
stand.29 Where, however, the appellate Court directs the lower Court to prepare a new
final decree, a fresh final decree will have to be made which will be the decree to be
executed.30
Where in a case of mortgage with possession and lease-back to the mortgagor, the
application for a final decree for sale is dismissed as barred by limitation, the
mortgagee only loses his right to recover money by sale of the mortgaged property. It
has been held by the Supreme Court that in such a case his security remains intact and
he can also sue for ejectment and for arrears of rent by a separate suit.31 The
mortgagor, however, continues to have his right to redeem.
This rule permits the judgment-debtor to redeem the mortgage even at the stage
contemplated in rule 5 unless the equity of redemption has got extinguished.32
Though this rule recognises the right of the judgment-debtor to pay decretal amount in
an execution relation to a mortgage-decree for sale at any time before the confirmation
of the sale, it does not give power to grant extension of time and postpone
confirmation of sale therefor.33
The confirmation of sale would be absolute only after final orders are passed in appeal.
The reason being that in case the appeal succeeds, there would be no confirmation of
the sale and in such circumstances, an application moved under this rule during
pendency of the appeal will be deemed to have been moved before confirmation of the
sale.34
The right of the mortgagor to redeem the mortgage is lost, once the sale is made
absolute on issuance of the sale certificate.35
The deposit of money, during the pendency of appeals in a High Court, cannot be
treated as a valid deposit under this rule.36 The Court relied upon an old judgment in
which it was held that "though O XXXIV rule 5(1) recognises the right of judgment-
debtor to pay the decretal amount in an execution relating to a mortgage decree for
sale at any time before the confirmation of sale, the rule does not give any power to the
Court to grant time to deposit the money after the final decree has been passed. It is
not open to the Court to go on fixing date after date and postponing confirmation of
sale merely to accommodate the judgment-debtor".37
If an appeal was pending against an order refusing to set aside the sale. The whole
situation relating to confirmation of sale and issuance of sale certificate would be in a
rebellious state. Consequently it would be open to the judgment-debtor to invoke the
provision of O XXXIV rule 5 and make necessary deposit to save his property.38
If there is a composite decree against the principal debtor, guarantor and also the
mortgaged property, then the decree-holder bank should proceed first against
mortgaged property and then the guarantor.39
Challenge to extension of date.—
Once the Court exercises its power under O XXXIV, rule 5 of the Code of Civil Procedure
(as amended by the State of Kerala) to postpone the date fixed for deposit of the
amount due under the mortgage, the same can be challenged.40
Rejection of redemption—Propriety.—
Where no order confirming the sale was passed, the mortgagor applied for redemption.
The rejection of application by taking view that by passing of decree mortgage security
merges in the decree of sale was not proper.41

22 LC Bank v ARM Co, AIR 1972 Del 118 .
23 Ibid.
24 Chinnakarupathel v AD Sundarabai, AIR 2009 SC 709 (710) : (2009) 1 SCC 86 .
25 Seth Kashi Ram Chemicals (India) v State of Haryana, AIR 1991 SC 478 : 1991 Supp (1) SCC
215 .
26 Jowad Hussain v Gendum Singh, AIR 1926 PC 93 .
27 Mhadogonda Ramgonda Patil v Shripal Balwant Rainde, AIR 1988 SC 1200 (1203) : (1988) 3
SCC 298 : 1988 BBCJ 68 .
28 Sital Prasad v Kishore Lal, AIR 1967 SC 1236 : (1967) 3 SCR 101 : 51 Law Rep 716.
29 Jowad Hussain v Gendum Singh, AIR 1926 PC 93 .
30 Ibid.
31 Mathura Lal v Keshar Bai, AIR 1971 SC 310 : (1970) 1 SCC 454 .
32 Maganlal v Jaiswal Industries, Neemach, AIR 1989 SC 2113 (2122) : (1989) 4 SCC 344 .
33 Hukumchand v Bansi Lal, AIR 1968 SC 86 .
34 VK Palaniappa Chettiar v Ramaswami Gounder, AIR 2001 SC 2186 : (2001) 4 SCC 413 .
35 Bishnu Devi Shaw v Federal Bank Ltd, AIR 2014 Cal 90 .
36 Kharaiti Lal v Raminder Kaur, AIR 2000 SC 1148 , (1150) : (2000) 3 SCC 664 .
37 Hukamchand v Bansilal, AIR 1968 SC 86 : (1967) 3 SCR 695 .
38 U Nilan v Kannayyan, AIR 1999 SC 3750 (3756) : (1999) 8 SCC 511 ; reviewed Maganlal v
Jaiswal Industries, Neemach, AIR 1989 SC 2113 : (1989) 4 SCC 344 .
39 Union Bank of India v Manku Narayana, AIR 1987 SC 1078 : (1987) 2 SCC 335 : (1987) 62
Com Cas 1 .
40 K Vilasini v Edwin Periera, (2008) 14 SCC 349 (353-354).
41 Philomina Jose v Federal Bank, AIR 2006 SC 1162 (1164-65).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6. Recovery of balance due
on mortgage in suit for sale
© 2020 LexisNexis
THE FIRST SCHEDULE
42[R. 6.
Recovery of balance due on mortgage in suit for sale
Where the net proceeds of any sale held under 43 "[rule 5] are found insufficient to pay
the amount due to the plaintiff, the Court, on application by him, may, if the balance is
legally recoverable from the defendant otherwise than out of the property sold, pass a
decree for such balance.]
COMMENT.—
The mortgagee should first proceed against the compensation amount payable to the
mortgage-debtor under the Bihar Land Reforms Act, 1950 and then only mortgagor
personally.44

43 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 82, for "the last
proceeding rule" (w.e.f. 1-2-1977).
44 Krishan Prasad v Gauri Kumari, AIR 1962 SC 1464 (1470) : 1962 Supp (3) SCR 564 .

redemption suit
© 2020 LexisNexis
THE FIRST SCHEDULE
45[R. 7.
Preliminary decree in redemption suit
(1) In a suit for redemption, if the plaintiff'succeeds, the Court shall pass a
preliminary decree—
(a) ordering that an account be taken of what was due to the defendant at
the date of such decree for—
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up

to that date, in respect of his mortgage-security, together with
interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing—
(i) that, if the plaintiff pays into Court the amount so found or
declared due on or before such date as the Court may fix within
six months from the date on which the Court confirms and
countersigns the account taken under clause (a), or from the date
on which such amount is declared in Court under clause (b), as
the case may be, and thereafter pays such amount as may be
adjudged due in respect of subsequent costs, charges and
expenses as provided in rule 10 together with subsequent interest
on such sums respectively as provided in rule 11, the defendant
shall deliver up to the plaintiff, or to such person as the plaintiff
appoints, all documents in his possession or power relating to the
mortgaged property, and shall, if so required, re-transfer the
property to the plaintiff at his cost free from the mortgage and
from all incumbrances created by the defendant or any person
claiming under him, or where the defendant claims by derived
title, by those under whom he claims, and shall also, if necessary,
put the plaintiff in possession of the property; and
(ii) that, if payment of the amount found or declared due under or by

the preliminary decree is not made on or before the date so fixed,
or the plaintiff fails to pay, within such time as the Court may fix,
the amount adjudged due in respect of subsequent costs,
charges, expenses and interests, the defendant shall be entitled
to apply for final decree—
(a) in the case of a mortgage other than a usufructuary

mortgage, a mortgage by conditional sale, or an
anomalous mortgage the terms of which provide for
foreclosure only and not for sale, that the mortgaged
property be sold, or
(b) in the case of a mortgage by conditional sale or such an

anomalous mortgage as aforesaid, that the plaintiff be
debarred from all right to redeem the property.
(2) The Court may, on good cause shown and upon terms to be fixed by the Court,
from time to time, at any time before the passing of a final decree for
foreclosure or sale, as the case may be, extend the time fixed for the payment
of the amount found or declared due under sub-rule (1) or of the amount
adjudged due in respect of subsequent costs, charges, expenses and interest.]
COMMENT.—
Order XXXIV, rule 7 of Code of Civil Procedure stipulates that in a suit for redemption of
mortgage, the court shall prepare the preliminary decree in accordance with order
XXXIV, rule 7 of the Code of Civil Procedure. Thus, the High Court cannot pass decree
of redemption without following procedure under order XXXIV, rules 7, 8.46
Even if a final decree is passed in an earlier redemption suit, there is no merger of the
mortgage debt in the decretal-debt and as such a second suit for redemption is not
barred.47
"Amount adjudged due in respect of subsequent costs, charges, expanses and

interests" : Meaning.—
This expression does not include any costs imposed for granting of stay of order for
drawing a final decree. Such costs can be included only if they are specifically included
in the final decree.48
No application in usufructuary mortgage.—
The provisions of O XXXIV rule 7(2) which empower the Court to extend time fixed for
payment do not apply in relation to usufructuary mortgage.49
Decree for redemption.—
The plaintiff is entitled to final decree for redemption without need to undergo formality
of preliminary decree and taking of account.50

46 Jamila Begum V/s Shami Mohmd, AIR 2019 SC 72 .
SCC 298 : 1988 BBCJ 68 .
48 Gyasi Ram v Brijbhushandas, AIR 1966 SC 1950 (1952) : 1966 Supp SCC 109 : 1966 MPLJ
783 .
49 Achaldas Durgaji Oswal v Ramvilas G Heda, AIR 2003 SC 1017 (1023) : (2003) 4 SCC 614 :
(2003) 2 CHN 157 .
50 Prabhakaran v MAzhagiri Pillai, AIR 2006 SC 1567 (1578).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8. Final decree in
redemption suit
© 2020 LexisNexis
THE FIRST SCHEDULE
51[R. 8.
Final decree in redemption suit
(1) Where, before a final decree debarring the plaintiff from all right to redeem the
mortgaged property has been passed or before the confirmation of a sale held
in pursuance of a final decree passed under sub-rule (3) of this rule, the
plaintiff makes payment into Court of all amounts due from him under sub-rule
(1) of rule 7, the Court shall, on application made by the plaintiff in this behalf,
pass a final decree, or, if such decree has been passed, an order—
(a) ordering the defendant to deliver up the documents referred to in the

preliminary decree, and, if necessary—
(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged
property as directed in the said decree. and, also if necessary—
(c) ordering him to put the plaintiff in possession of the property.
(2) Where the mortgaged property or a part thereof has been sold in pursuance of
a decree passed under sub-rule (3) of this rule, the Court shall not pass an
order under sub-rule (1) of this rule, unless the plaintiff, in addition to the
amount mentioned in sub-rule (1), deposit in Court for payment to the
purchaser a sum equal to five per cent of the amount of the purchase-money
paid into Court by the purchaser.
Where such deposit has been made, the purchaser shall be entitled to an order
for repayment of the amount of the purchase-money paid into Court by him,
together with a sum equal to five per cent thereof.
shall, on application made by the defendant in this behalf—
(a) in the case of a mortgage by conditional sale or of such an anomalous

mortgage as is hereinbefore referred to in rule 7, pass a final decree
declaring that the plaintiff and all persons claiming under him are
debarred from all right to redeem the mortgaged property and, also, if
necessary, ordering the plaintiff to put the defendant in possession of
the mortgaged property; or
(b) in the case of any other mortgage, not being a usufructuary mortgage,
pass a final decree that the mortgaged property or a sufficient part
thereof be sold, and the proceeds of the sale (after deduction therefrom
of the expenses of the sale) be paid into Court and applied in payment
of what is found due to the defendant, and the balance, if any, be paid to
the plaintiff or other persons entitled to receive the same.]
COMMENT.—
A mortgagor is permitted to redeem the mortgaged property before the confirmation of

the sale held in pursuance of a final decree in a redemption suit, unless such final
decree debars the mortgagor from all rights to redeem the mortgaged property.52
An objection which was not raised at preliminary decree or even at the final decree
stage, if raised before execution Court then it shall be rejected.53
Usufructuary mortgage, not covered.—
The right of the mortgagor to file an application for passing a final decree in
redemption suit relating to usufructuary mortgage has been provided in the manner
laid down in O XXXIV rule 8. The provision of O XXXIV rule 7(2) which empowers the
Court to extend time fixed for payment does not apply in relation to usufructuary
mortgage.54
Dismissal of the first application creates no bar.—
The mere dismissal of the first application for non-prosecution and withdrawal of the
redemption money deposited thereunder per se creates no bar to entertain second
application. Equally instead of availing the remedy of depositing the redemption
amount the mortgagor instituted an independent suit for redemption. Though it does
not operate as a bar to maintain the application to pass a final decree, the Court cannot
proceed further with the application.55
Mortgage redemption.—
Where the decree was a preliminary one, the plaintiff could not be denied the
opportunity of getting the time for depositing the amount for redeeming the mortgaged
property. Such right is given under rule 7 of O XXXIV of the Code.56
51 See footnote no. 39 under rule 2 ante, p 1099.

SCC 298 : 1988 BBCJ 68 .
53 Narinder Singh v Kishan Singh, AIR 2002 SC 2603 : (2002) 6 SCC 46 .
54 Achaldas Durgaji Oswal v Ramvilas G Heda, AIR 2003 SC 1017 (1023) : (2003) 4 SCC 614 .
55 KParameshwaran Pillai v KSumathi, AIR 1994 SC 191 (197) : (1993) 4 SCC 431 .
56 Satya Narain v Om Prakash, (2009) 11 SCC 561 (564).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8A. Recovery of balance
due on mortgage in suit for redemption
© 2020 LexisNexis
THE FIRST SCHEDULE
57[R. 8A.
Recovery of balance due on mortgage in suit for redemption
Where the net proceeds of any sale held under 58[ rule 8] are found insufficient to pay
the amount due to the defendant, the Court, 59[on application made by him in
execution], may if the balance is legally recoverable from the plaintiff otherwise than
out of the property sold, pass a decree for such balance.]

58 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 82, for "the last
proceeding rule" (w.e.f. 1-2-1977).
59 Subs. by the Code of Civil Procedure (Amendment) Act 104 of 1976, section 82, for "on
application by him" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Decree where nothing is
found due or where mortgagee has been overpaid
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Decree where nothing is found due or where mortgagee has been overpaid
Notwithstanding anything hereinbefore contained, if it appears, upon taking the

account referred to in rule 7, that nothing is due to the defendant or that he has been
overpaid, the Court shall pass a decree directing the defendant, if so required, to re-
transfer the property and to pay to the plaintiff the amount which may be found due to
him; and the plaintiff'shall, if necessary, be put in possession of the mortgaged
property.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 10. Costs of mortgagee
subsequent to decree
© 2020 LexisNexis
THE FIRST SCHEDULE
60[R. 10.
Costs of mortgagee subsequent to decree
In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale

or redemption, the Court shall, unless in the case of costs of the suit the conduct of
the mortgagee has been such as to disentitle him thereto, add to the mortgage-money
such costs of the suit and other costs, charges and expenses as have been properly
incurred by him since the date of the preliminary decree for foreclosure, sale or
redemption up to the time of actual payment:
61[ Provided that where the mortgagor, before or at the time of the institution of the
suit, tenders or deposits the amount due on the mortgage, or such amount as is not
substantially deficient in the opinion of the Court, he shall not be ordered to pay the
costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his
own costs of the suit from the mortgagee, unless the Court, for reasons to be
recorded, otherwise directs.]
COMMENT.—
This rule deals with the costs incurred by the mortgagor after the preliminary decree. In
SP Majoo v Ganga Dhar, AIR 1969 SC 600 : (1969) 1 SCC 220 : (1969) 3 SCR 33 , A, a
first mortgagee sued B the mortgagor and a puisne mortgagee, on his prior mortgage
and obtained a decree for sale. Before the date of sale A's decree was satisfied. C
there-after brought a suit on his second mortgage. It was held by the Supreme Court in
the aforesaid case that C was entitled only to the costs incurred by him into prior suit
by A.
The proviso has been inserted to rule 10 which provides that where the mortgagor,
before or at the time of the institution of the suit, tenders or deposits the amount due to
the mortgagee or such amount as is not substantially deficient in the opinion of the
Court, he shall not be ordered to pay the costs of the suit and he shall be entitled to
recover his own costs from the mortgage, unless the Court, for reasons to be recorded,
otherwise directs.
60 Subs. by the Code of Civil Procedure (Amendment) Act 21 of 1929, section 6, for the original
Rules 10 and 11.
1977).

direct mortgagee to pay mesne profits
© 2020 LexisNexis
THE FIRST SCHEDULE
62[R. 10A.
Power of Court to direct mortgagee to pay mesne profits
Where in a suit for foreclosure, the mortgagor has, before or at the time of the
institution of the suit, tendered or deposited the sum due on the mortgage, or such
sum as is not substantially deficient in the opinion of the Court, the Court shall direct
the mortgagee to pay to the mortgagor mesne profits for the period beginning with
the institution of the suit.]
Bombay (Goa, Daman and Diu).—
1987, Part IV Ka, Page 793, Goa Gazette, dated 12-10-1987, Extra., Section .1, No. 28,
Page 387, dated 1-4-1987.
Rule 10A substituted as under—
"10A. Costs of mortgaged subsequent to decree.— In mortgage suit where under the
mortgage the possession of the mortgaged property is with the mortgagee, the
mortgagor may tender or deposit, before or at the time of the institution of the suit, or
during the pendency of the same, the sum due on the mortgage. The tender by the
mortgagor must be in writing, Notice of any such deposit shall be given by the Court to
mortgagee. If the sum so tendered or deposited is in the opinion of the Court,
substantially sufficient to satisfy the mortgage, the Court shall direct the mortgagee to
pay to the mortgagor, mesne profits as may be determined from the date of such tender
or notice of deposit till the actual delivery of possession by the mortgagee to the
mortgagor." Mah. Govt. Gaz. 31-12-1987 Pt. IV Ka.
COMMENT.—
Rule 10-A was inserted which provides for payment of mesne profits by the mortgagee
in a suit for foreclosure, where the mortgagor has before or at the time of the
institution of the suit, paid or tendered the sum due on the mortgage or any sum which
is not substantially deficient in the opinion of the Court.
1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Payment of interest
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Payment of interest
In any decree passed in a suit for foreclosure, sale or redemption, where interest is
legally recoverable, the Court may order payment of interest to the mortgagee as
follows, namely:—
(a) interest upto the date on or before which payment of the amount found or
declared due is under this preliminary decree to be made by the mortgagor or
other person redeeming the mortgage—
(i) on the principal amount found or declared due on the mortgage,—at the
rate payable on the principal, or, where no such rate is fixed at such rate
as the Court deems reasonable,
(ii) 63 [* * *], and
(iii) on the amount adjudged due to the mortgagee for costs, charges and
expenses properly incurred by the mortgagee in respect of the
mortgage-security up to the date of the preliminary decree and added to
the mortgage-money,—at the rate agreed between the parties, or, failing
such rate 64[at such rate not exceeding six per cent per annum as the
Court deems reasonable]; and
65
[(b) subsequent interest up to the date of realisation or actual payment on the
aggregate of the principal sums specified in clause (a) as calculated in
accordance with that clause at such rate as the Court deems reasonable].
COMMENT.—
This rule deals with mortgage suits and payment of interest. So far as mortgage suits
are concerned. The special provision under this rule alone is applicable and not section
34 of the Code.66
The rule with regard to the interest prior to the suit is that where there is an agreement
to pay interest the Court should decree it at the agreed rate, however, high it may be,
unless it is penal or the rate of interest is excessive and the transaction is substantially
unfair in either of which cases the Court may decree what it considers a reasonable
rate of interest.67
The same rules which should guide the Court with reference to interest accruing prior
to the suit apply also till the date fixed under the decree for the payment of mortgage-
money. It has, however, been held by the Federal Court that under the present rule the
Court has a discretion in view of the word 'may' used in this rule, in awarding interest
for the period after the institution of the suit and that it is not bound to award interest
for such period at the contractual rate even though such rate may be penal, excessive
or substantially unfair.68
The question of interest payable in mortgage suits filed in civil Courts is governed by O
XXXIV rule 11 and not by section 34 of the Code of Civil Procedure which may be
applicable only to cases of personal decrees passed under O XXXIV rule 6 of the Code
of Civil Procedure.69
Award of interest.—
The imposition of interest should be guided by O XXXIV rule 11 and not by section 34
of the Code.70
63 Sub-clause (ii) omitted by the Code of Civil Procedure (Amendment) Act 66 of 1956. The old
subclause (ii) ran thus:—
"(ii) on the amount of the costs of the suit awarded to the mortgagee,—at such rate as the Court
deems reasonable from the date of the preliminary decree."
64 Substituted by Act 66 of 1956 for the nine per cent per annum.
65 Substituted by Act 66 of 1956 for the old sub-clause (b) which read as below:—
"(b) subsequent interest up to the date of realisation or actual payment at such rate as the Court
deems reasonable—
(i) on the aggregate of the principal sums specified in clause (a) and of the interest thereon as
calculated in accordance with that clause, and
(ii) on the amount adjudged due to the mortgagee in respect of such further costs, charges and
expenses as may be payable under rule 10."
66 NM Veerappa v Canara Bank, AIR 1998 SC 1101 (1102, 1105, 1106) : (1998) 2 SCC 317 :
(1998) 92 CC 467 ; see also Soli Pestonji Majoo v Gangadhar Khemka, AIR 1969 SC 600 : (1969)
1 SCC 220 ; Srinivasa Varadchariar v Gopala Menon, AIR 1967 SC 412 : (1967) 1 SCR 721 ; K
Manick Chand v Elias Saleh Mohammed Sait, AIR 1969 SC 751 ; State Bank of Mysore v GP
Thulasi Bai, ILR (1985) Kant 2976 followed; see also Jaigobind case, AIR 1940 FC 20 .
67 Vardachariar v Gopal Lal Menon, AIR 1967 SC 412 : (1967) 1 SCR 721 .
68 Jagdish Jha v Aman Khan, AIR 1946 FC 7 .
69 Everest Industrial Corpn v Gujarat SF Corpn, AIR 1987 SC 1950 (1953) : (1987) 3 SCC 597 :
(1987) 62 CC 513 .
70 LIC of India v Rabi Kr Sarkar, 2010 (1) Cal LJ 740 (742-44) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Sale of property subject
to prior mortgage
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Sale of property subject to prior mortgage
Where any property the sale of which is directed under this Order is subject to a prior
mortgage, the Court may, with the consent of the prior mortgagee, direct that the
property be sold free from the same, giving to such prior mortgagee the same interest
in the proceeds of the sale as he had in the property sold.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Application of proceeds
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Application of proceeds
(1) Such proceeds shall be brought into Court and applied as follows—
first, in payment of all expenses incident to the sale or properly incurred in any
attempted sale;
secondly, in payment of whatever is due to the prior mortgagee on account of

the prior mortgage, and of costs, properly incurred in connection therewith;
thirdly, in payment of all interest due on account of the mortgage in

consequence whereof the sale was directed, and of the costs of the suit in
which the decree directing the sale was made;
fourthly, in payment of the principal money due on account of that mortgage;

and
lastly, the residue (if any) shall be paid to the person proving himself to be
interested in the property sold, or if there are more such persons than one,
then to such persons according to their respective interests therein or upon
their joint receipt.
(2) Nothing in this rule or in rule 12 shall be deemed to affect the powers
conferred by Section 57 of the Transfer of Property Act, 1882 (4 of 1882).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Suit for sale necessary
for bringing mortgaged property to sale
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Suit for sale necessary for bringing mortgaged property to sale
(1) Where a mortgagee has obtained a decree for the payment of money in
satisfaction of a claim arising under the mortgage, he shall not be entitled to
bring the mortgaged property to sale otherwise than by instituting a suit for
sale in enforcement of the mortgage, and he may institute such suit
notwithstanding anything contained in Order II, Rule 2.
(2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of
Property Act, 1882 (4 of 1882) has not been extended [B, K].
Bombay (Dadra and Nagar Haveli) (Goa, Daman and Diu).—
1983, Part 4 Ka, Page 421 (1-10-1983), Goa Gazette, dated 12-10-1987, Ext., Section 1, No
28, Page 388, dated 1-4-1987.
After the existing rule 14, insert the following as new rule 14A.
"14 A. Special provisions regarding a composite decree combining in itself a

preliminary as well as a final decree.—(1) Notwithstanding anything hereinbefore
contained, where the sale of any mortgaged property is decreed under any composite
decree which combines in itself a preliminary as well as a final decree as per
compromise between the parties or as required or permissible under any special law or
under an order, award or adjudication which is deemed to be a decree of a Civil Court,
or which is required to be executed as a decree or as if it is a decree of a Civil Court,
and the judgment-debtor (mortgagor), before the day fixed in that behalf or at any time
before the confirmation of the sale made in pursuance of such decree, order, award or
adjudication, makes payment into Court of all amounts due from him to the decree-
holder (mortgagee) on the date, under the said decree, order, award or adjudication,
including all subsequent costs charges, expenses and interest, and also deposits in
Court for payment to the purchaser a sum equal to five per cent of the amount of the
purchase money paid into Court by the purchaser, the Court shall, on application made
by the judgment-debtor (mortgagor) in this behalf, set aside the sale and mark the
decree, order, award or adjudication as satisfied, and pass an order:—
(a) ordering the decree-holder (mortgagee) to deliver up to the judgment-debtor

(mortgagor) or his nominee, all documents in his possession or power relating
the mortgaged property, and, if necessary,
(b) ordering him to re-transfer the mortgaged property to the judgment-debtor

(mortgagor) or his nominee at his cost free from the mortgage and from all
encumbrances created by the decree-holder (mortgagee), or any person
claiming under him, or where the decree-holder (mortgagee) claims by derived
title, by those under whom he claims, and also if necessary,
(c) ordering him to put the judgment-debtor (mortgagor) or his nominee in

possession of the property.
(2) Where such deposit has been made, the purchaser shall be entitled to an order for
repayment of the amount of the purchase money paid into Court by him together with a
sum equal to five per cent thereof.
(3) The Court may, upon good cause shown and upon terms to be fixed by the Court,
from time to time at any time before the sale is confirmed, extend the time fixed for the
payment of the amount due under the decree, order, award or adjudication, including all
subsequent costs, charges, expenses and interest."
Kerala (Notfn No B1-3312/58; 7-4-1959).—
Omit sub-rule (2).
COMMENT.—
This rule does not preclude a suit for money in respect of a claim arising under the
mortgage. The rule only precludes the sale of the mortgaged property in execution of
the decree obtained in such suit. It has been held by the Supreme Court that this rule
does not prevent the mortgagee from seeking satisfaction of his decree from the
person and other property of the mortgagor.71
Order XXXIV rule 14 of the Code prohibits the mortgagee to bring the mortgaged
property to sale otherwise than by instituting a suit for sale in enforcement of the
mortgage.72
In the instant case, money suit for filed by the mortgagee and in execution of money
decree, the mortgaged property was sold which was purchased by the mortgagee. It
was held that the relationship of mortgagor and mortgagee continue to subsist even
thereafter and his purchases are only in trust for the mortgagor. In view of the same,
the right to redeem the mortgage is not extinguished and in the eye of law the purchase
of mortgage property in pursuance of the decree for rent arrears must be deemed to
have been made in trust for the mortgagor. Therefore, the High Court was right in
granting preliminary decree for redemption.73
If the mortgage exists, it will create a prior charge over the property, being prior in time
vide section 48 of the Transfer of Property Act. In the instant case, prior mortgage was
created by deposit of title deeds in favour of the Minerals & Metals Trading Corporation
(MMTC). Subsequently the mortgagor also obtained cash credit facilities from bank
and defaulted in payment. The MMTC invoked Arbitration clause and procured award in
its favour. The bank initiated recovery proceedings under Recovery of Debts Due to
Banks and Financial Institutions Act, 1993 (RDDBFI Act). The award of the arbitrator
was sought to be executed as decree of civil Court. The fight was between the two
lenders over the priority claims. The Court held that the non-obstante clause in section
34 of RDDBFI Act would not overwrite prior charge. The non-obstante clause would
operate only where there is a conflict. The fact that the mortgage debt must be
enforced by sale through a separate civil suit does not obviate the mortgage itself.
Enforcement of mortgage debts by way of sale can be done only by filing a separate
suit and by means of execution proceedings of earlier decree.74
71 1970 SCD 394 .
72 MR Satwaji Rao v B Shama Rao, (2008) 5 SCC 124 (130).
73 Ram Pyari Devi v Nazimal Haque, AIR 2013 Pat 23 .
74 Punjab and Sind Bank v MMTC Ltd, AIR 2016 Del 15 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15. Mortgages by the
deposit of title-deeds and charges
© 2020 LexisNexis
THE FIRST SCHEDULE
75[R. 15.
Mortgages by the deposit of title-deeds and charges
76
[(1)] All the provisions contained in this Order which apply to a simple mortgage
shall, so far as may be, apply to a mortgage by deposit of title-deeds within
the meaning of Section 58, and to a charge within the meaning of Section
100 of the Transfer of Property Act, 1882 (IV of 1882).
77
[(2) Where a decree orders payment of money and charges it on immovable
property on default of payment, the amount may be realised by sale of that
property in execution of that decree.]
Allahabad.—The following amendments were made by Allahabad Act, dated 4-1-1953.
Read the present rule 15 as rule 15(1) and add as sub-rule (2), the following:—
"(2) Where a decree orders payment of money and charges it on immovable property
on default of payment, the amount can be realised by sale of that property in execution
of that very decree." (17-1-1953)

Gazette, dated 20-11-1990, Part III Page 143 (No 46) 15-1-1974.
In its application to the State of Kerala, for Order XXXIV, the following shall be
substituted:
ORDER XXXIV
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY
1. Parties to suits for foreclosure, sale and redemption.— Subject to the provisions of
this Code, all persons having an interest either in the mortgage-security or in the right
of redemption shall be joined as parties to any suit relating to the mortgage.
Explanation:—A puisne mortgagee may sue for foreclosure or for sale without making
the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a
suit to redeem a subsequent mortgage.
2. Decree in foreclosure suits.—(1) In a suit for foreclosure, if the plaintiff'succeeds, the

Court shall pass a decree—
(a) declaring the amount due to the plaintiff on the date of such decree for—
(i) principal and interest on the mortgage;
(ii) the costs of the suit, if any, awarded to him; and

(iii) other costs, charges and expenses properly incurred by him up to that
date in respect of his mortgage-security, together with interest thereon;
and
(b) directing—
(i) that, if the defendant pays into Court the amount so declared due with
future interest and subsequent costs as are mentioned in rule 7 on a day
within six months from the date of the decree to be fixed by the Court, the
plaintiff'shall deliver up to the defendant, or to such persons as he
appoints, all documents in his possession or power relating to the
mortgaged property, and shall, if so required, re-transfer the property to
the defendant at the cost of the defendant free from the mortgage and
from all encumbrances created by the plaintiff or any person claiming
under him or, where the plaintiff claims by derived title by those under
whom he claims, and shall also, if necessary, put the defendant in
possession of the property; and
(ii) that, if such payment is not made on or before the day fixed by the Court,
the defendant and all persons claiming through or under him shall be
debarred from all rights to redeem the property; and also if necessary the
defendant shall put the plaintiff in possession of the property.
(2) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title
from, or subrogated to the right of, any such mortgagees are joined as parties,
the Court shall adjudicate upon the respective rights and liabilities of all the
parties to the suit in the manner and form set forth in Form No 9 or Form No 10,
as the case may be, of Appendix D with such variations as the circumstances of
the case may require.
(3) On the expiry of the date fixed for payment of the amount declared due to the
mortgagee, all liabilities to which the defendant is subject in respect of the
mortgage or on account of the suit shall be deemed to have been discharged.
3. Decree in suit for sale.—(i) In a suit for sale, if the plaintiff'succeeds, the Court shall
pass a decree to the effect mentioned in Clauses (a) and (b)(i) of sub-rule (1) of rule
rule 2 and also directing that, in default of the defendant paying as therein mentioned,
the mortgaged property or a sufficient part thereof be sold, and that the proceeds of
the sale (after deducting therefrom the expenses of the sale) be applied in payment of
what is declared due to the plaintiff as aforesaid, together with subsequent interest and
subsequent costs, and that the balance, if any, be paid to the defendant or other
persons entitled to receive the same; and that, in case the proceeds of such sale be
insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable
from the defendant otherwise than out of the property sold be paid by the defendant
personally.
(ii) In a suit for foreclosure, if the plaintiff'succeeds and the mortgage is an anomalous
mortgage, the Court may, at the instance of the plaintiff or of any other person
interested either in the mortgage money or in the right of redemption, pass a like
decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the
deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the
sale and to secure the performance of the terms.
(iii) Where in a suit for sale or a suit for foreclosure in which sale is ordered,
subsequent mortgagees or persons deriving title from, or subrogated to the rights of,
any such mortgagees are joined as parties the Court shall adjudicate upon the
respective rights and liabilities of all the parties to the suit in the manner and form set
forth in Form No 9, Form No 10 or Form No 11, as the case may be, of Appendix D, with
such variations as the circumstances of the case may require.
4. Decree in for suit redemption.—In a suit for redemption, if the plaintiff'succeeds, the
Court shall pass a decree—
(a) declaring the amount due to the defendant at the date of such decree for—
(i) principal and interest on the mortgage;
(ii) the costs of the suit, if any, awarded to him; and
(iii) other costs, charges and expenses properly incurred by him up to that
date in respect of his mortgage-security, together with interest thereon;
and
(b) directing—
(i) that if the plaintiff pays into Court the amount so declared due with
subsequent interest and costs as are mentioned in rule 7, on a day within
six months of the decree to be fixed by the Court, the defendant shall
deliver up to the plaintiff, or to such person as he appoints, all documents
in his possession or power relating to the mortgaged property, and shall if
so required, re-transfer the property to the plaintiff at his costs, free from
the mortgage and from all encumbrances created by the defendant or any
person claiming under him, or, where the defendant claims by derived title,
by those under whom he claims, and shall, if necessary, put the plaintiff in
possession of the property; and
(ii) that, if such payment is not made on or before the date so fixed, the
plaintiff'shall in the case of a mortgage by conditional sale or an
anomalous mortgage the terms of which provide for foreclosure only and
not for sale, be debarred from all rights to redeem the property and also,
if necessary, put the defendant in possession of the mortgaged property;
and that if desired by the defendant in the suit itself, in the case of any
mortgage other than an usufructuary mortgage, a mortgage by
conditional sale or such an anomalous mortgage as aforesaid the
mortgaged property or a sufficient portion thereof be sold and the
proceeds of the sale (after deducting therefrom the expenses of the sale)
be applied in payment of what is found due to the defendant, and the
balance, if any, be paid to the plaintiff or other persons entitled to receive
the same and that, in case the net proceeds of such sale be insufficient
to pay the amount due to the defendant, the balance be paid by the
plaintiff personally if the balance is legally recoverable from the plaintiff
otherwise than out of the property sold.
5. Date of payment.—
The Court may, upon good cause shown and upon such terms, if any, as it thinks fit,
postpone the date fixed for payment under this Order from time to time.
6. Decree where nothing is found due or where mortgage has been overpaid.—
Notwithstanding anything hereinbefore contained if it appears in a redemption suit that

nothing is due to the defendant or that he has been overpaid, the Court shall pass a
decree directing the defendant if so required, to retransfer the property and to pay to
the plaintiff the amount which may be found due to him; and the plaintiff'shall, if
necessary, be put in possession of the mortgaged property.
7. Costs of mortgagee subsequent to decree.—
In finally adjusting the amount to be paid to a mortgagee in case of a foreclosure, sale

or redemption the Court shall, unless the conduct of the mortgagee has been such as
to disentitle him to costs, add to the mortgage money such costs of the suit and other
costs, charges and expenses, as have been properly incurred by him since the decree
for foreclosure, sale or redemption up to the time of actual payment.
8. Sale of property subject to prior mortgage.— Where any property the sale of which
is directed under this Order is subject to a prior mortgage the Court may, with the
consent of the prior mortgagee, direct that the property be sold free from the same
giving to such prior mortgagee the same interest in the proceeds of the sale as he had
in the property sold.
9. Application of proceeds.—
(i) Such proceeds shall be brought into Court and applied as follows:—
First, in payment of all expenses incident to the sale or properly incurred in any
attempted sale;
Secondly, in payment of whatever is due to the prior mortgagee on account of the prior
mortgage, and costs, properly incurred in connection therewith;
Thirdly, in payment of all interest due on account of the mortgage in consequence

whereof the sale was directed, and of the costs of the suit in which the decree directing
the sale was made;
Fourthly, in payment of the principal money due on account of the mortgage; and
Lastly, the residue, if any, shall be paid to the person proving himself to be interested in
the property sold, or if there are more such persons than one, then to such persons
according to their respective interests therein or upon their joint receipt.
(ii) Nothing in this rule or in rule 8 shall be deemed to affect the powers conferred by
Section 57 of the Transfer of Property Act, 1882 (Central Act 4 of 1882).
10. Suit for sale necessary for bringing mortgaged property to sale.—
Where a mortgagee has obtained a decree for the payment of money in satisfaction of
a claim arising under the mortgage, he shall not be entitled to bring the mortgaged
property to sale otherwise than by instituting a suit for sale in enforcement of the
mortgage, and he may institute such suit notwithstanding anything contained in Order
II, rule 2.
11. Mortgages by the deposit of title deeds and charges.—
All the provisions contained in this Order which apply to a simple mortgage shall, so far
as may be, apply to a mortgage by deposit of title deeds within the meaning of Section
58 and to a charge within the meaning of Section 100 of the Transfer of Property Act,
1882 (Central Act 4 of 1882)." (15-1-1974)
Kerala Gaz 20-11-1990, Part III, No 46, p 143.
COMMENT.—
The previous rule 15 was renumbered as sub-rule (1) and a new sub-rule (2) was
inserted to this rule, which runs as follows: "(2) Where a decree orders payment of
money and charges it on immovable property on default of payment, the amount may
be realised by sale of that property in execution of that decree."
The Court Receiver was appointed as Commissioner to sell property subject to later
equitable mortgage. The Commissioner sold the property. The identity of the property
sold was challenged as not included in earlier mortgage. The later mortgage, being
equitable mortgage, the objection, held was immaterial.78
Rules of Order XXXIV are applicable to mortgage by deposit of title deeds.79
Execution of executory charge-decree for maintenance.—
Where there is an executory charge decree for maintenance on a number of properties

and the charge-holder in execution of the charge decree purchases one lot of
properties, the executory charge decree becomes executable again and again as future
sums become due for maintenance. The executability of the decree helps the charge
alive on the remaining properties originally charged till the future amounts cease. The
charge subsists as long as the decree subsists.80
75 Subs. by the Code of Civil Procedure (Amendment) Act 21 of 1929, section 7, for the original
rule 15.
76 Renumbered as sub-rule (1) of rule 15 by the Code of Civil Procedure (Amendment) Act 104
of 1976, section 82, (w.e.f. 1-2-1977).
1977).
78 S. Dhanlakshmi Ammal v T.T. Singh Gramani, AIR 1974 SC 1207 : (1973) 3 SCC 624 .
79 S. Naseer Ahmed v State Bank of Mysore, (2007) 11 SCC 75 (81-84).
80 Latchan Naidu v Sanyasammna, AIR 1963 SC 1556 : (1964) 1 SCR 920 : (1964) 1 MLJ (SC) 19
: (1964) 1 An WR (SC) 19 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Plaint in interpleader-suit
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXV Interpleader
R. 1.
Plaint in interpleader-suit
In every suit of interpleader the plaint shall, in addition to the other statements
necessary for plaints, state—
(a) that the plaintiff claims no interest in the subject-matter in dispute other than
for charges or costs;
(b) the claims made by the defendants severally; and
(c) that there is no collusion between the plaintiff and any of the defendants.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Payment of thing
claimed into Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Payment of thing claimed into Court
Where the thing claimed is capable of being paid into Court or placed in the custody
of the Court, the plaintiff may be required to so pay or place it before he can be
entitled to any order in the suit.

defendant is suing plaintiff
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Procedure where defendant is suing plaintiff
Where any of the defendants in an inter-Pleader-suit is actually suing the plaintiff in

respect of the subject-matter of such suit, the Court in which the suit against the
plaintiff is pending shall, on being informed by the Court in which the interpleader-suit
has been instituted, stay the proceedings as against him; and his costs in the suit so
stayed may be provided for in such suit; but if, and in so far as, they are not provided
for in that suit, they may be added to his costs incurred in the interpleader-suit.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Procedure at first
hearing
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Procedure at first hearing
(1) At the first hearing the Court may—
(a) declare that the plaintiff is discharged from all liability to the defendants
in respect of the thing claimed, award him his costs, and dismiss him
from the suit; or
(b) if it thinks that justice or convenience so require, retain all parties until
the final disposal of the suit.
(2) Where the Court finds that the admissions of the parties or other evidence
enable it to do so, it may adjudicate the title to the thing claimed.
(3) Where the admissions of the parties do not enable the Court so to adjudicate, it
may direct—
(a) that an issue or issues between the parties be framed and tried, and
(b) that any claimant be made a plaintiff in lieu of or in addition to the

original plaintiff,
and shall proceed to try the suit in the ordinary manner.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Agents and tenants may
not institute interpleader-suits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Agents and tenants may not institute interpleader-suits
Nothing in this Order shall be deemed to enable agents to sue their principals, or
tenants to sue their landlords, for the purpose of compelling them to interplead with
any persons other than persons making claim through such principals or landlords.
ILLUSTRATIONS
(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were
wrongfully obtained from him by A, and claims them from B. B cannot institute
an interpleader-suit against A and C.
(b) A deposits a box of jewels with B as his agent. He then writes to C for the
purposes of making the jewels a security for a debt due from himself to C. A
afterwards alleges that C's debt is satisfied, and C alleges the contrary. Both
claim the jewels from B. B may institute an interpleader-suit against A and C.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Charge for plaintiff’s
costs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Charge for plaintiff's costs
Where the suit is properly instituted the Court may provide for the costs of the original
plaintiff by giving him a charge on the thing claimed or in some other effectual way.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Power to state case for
Court’s opinion
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXVI Special Case
R. 1.
Power to state case for Court's opinion
(1) Parties claiming to be interested in the decision of any question of fact or law
may enter into an agreement in writing stating such question in the form of a
case for the opinion of the Court, and providing that, upon the finding of the
Court with respect to such question—
(a) a sum of money fixed by the parties or to be determined by the Court

shall be paid by one of the parties to the other of them; or
(b) some property, movable or immovable, specified in the agreement shall

be delivered by one of the parties to the other of them; or
(c) one or more of the parties shall do, or refrain from doing, some other
particular act specified in the agreement.
(2) Every case stated under this rule shall be divided into consecutively numbered
paragraphs, and shall concisely state such facts and specify such documents
as may be necessary to enable the Court to decide the question raised thereby.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Where value of subject-
matter must be stated
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Where value of subject-matter must be stated
Where the agreement is for the delivery of any property, or for the doing, or refraining
from doing, any particular act, the estimated value of the property to be delivered, or
to which the act specified has reference, shall be stated in the agreement.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Agreement to be filed
and registered as suit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Agreement to be filed and registered as suit
(1) The agreement, if framed in accordance with the rules herein before contained,
may be filed 1[ with an application ] in the Court which would have jurisdiction
to entertain a suit, the amount or value of the subject-matter of which is the
same as the amount or value of the subject-matter of the agreement.
(2) 2[The application], when so filed, shall be numbered and registered as a suit
between one or more of the parties claiming to be interested as plaintiff or
plaintiffs, and the other or the others of them as defendant or defendants; and
notice shall be given to all the parties to the agreement, other than the party or
parties by whom 3[the application was presented].
COMMENT.—
In sub-rule (1) of rule 3, after the words "may be filed" the words "with an application"
were inserted. In sub-rule (2) for the words "The Agreement" the words "The
application" have been substituted and for the words "it was presented", the words "the
application was presented" have been substituted.
2 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 83, (w.e.f. 1-2-1977),
for "the agreement" (w.e.f. 1-2-1977).
3 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 83, (w.e.f. 1-2-1977),
for "it was presented" (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Parties to be subject to
Court’s jurisdiction
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Parties to be subject to Court's jurisdiction
Where the agreement has been filed, the parties to it shall be subject to the
jurisdiction of the Court and shall be bound by the statements contained therein.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Hearing and disposal of
case
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Hearing and disposal of case
(1) The case shall be set down for hearing as a suit instituted in the ordinary
manner, and the provisions of this Code shall apply to such suit so far as same
are applicable.
(2) Where the Court is satisfied after examination of the parties, or after taking
such evidence as it thinks fit,—
(a) that the agreement was duly executed by them,
(b) that they have a bona fide interest in the question stated therein, and
(c) that the same is fit to be decided,
it shall proceed to pronounce judgment thereon, in the same way as in

an ordinary suit, and upon the judgment so pronounced a decree shall
follow.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 6. No appeal from a decree
passed under rule 5
© 2020 LexisNexis
THE FIRST SCHEDULE
4[R. 6.
No appeal from a decree passed under rule 5
No appeal shall lie from a decree passed under rule 5.]
COMMENT.—
Rule 6 was added to provide that there should not be any appeal from the decree
passed as a result of the proceedings under O XXXVI because a decree passed in such
proceedings will be in the nature of compromise decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1. Courts and classes of
suits to which the Order is to apply
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXVII Summary Procedure 1[* * *]
2[R. 1.
Courts and classes of suits to which the Order is to apply
(1) This Order shall apply to the following Courts, namely:—
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) other Courts :
Provided that in respect of the Courts referred to in clause (b), the High
Court may, by notification in the Official Gazette, restrict the operation
of this Order only to such categories of suits as it deems proper, and
may also, from time to time, as the circumstances of the case may
require, by subsequent notification in the Official Gazette, further
restrict, enlarge or vary, the categories of suits to be brought under the
operation of this Order as it deems proper.
(2) Subject to the provisions of sub-rule (1), the Order applies to the following
classes of suits, namely:—
(a) suits upon bills of exchange, hundies and promissory notes;
(b) suits in which the plaintiff'seeks only to recover a debt or liquidated

demand in money payable by the defendant, with or without interest,
arising,—
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a fixed

sum of money or in the nature of a debt other than a penalty; or
(iii) on a guarantee, where the claim against the principal is in

respect of a debt or liquidated demand only.]
3
[(iv) Suit for recovery of receivables instituted by any assignee of a
receivable.]
dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra. Section 1, No. 28, Page 388,
dated 1-10-1987.
"1. (i) This order shall apply to the following Courts, namely:—
(a) High Courts, City Civil Courts and Courts of Small Causes; and
(b) such other Courts as may be specifically empowered in this behalf by the High
Court from time to time by a Notification in the Official Gazette:
Provided that in respect of the Court referred to in Clause (b), the High Court may, by
notification in the Official Gazette, restrict the operation of this Order only to such
categories or suits as it deems proper and may also from time to time, as the
circumstances of the case may require, by subsequent notification in the Official
Gazette, further restrict, enlarge or vary, the categories of suits to be brought under the
operation of this Order as it deems proper." (1-10-1983) and (1-10-1987)
Kerala, Laccadive, Minicoy and Amindivi Islands.—
Order XXXVII shall be omitted (9-6-1959).
COMMENT.—
Rule 1 of this O XXXVII was substituted in order to provide for extending the summary
procedure to the trial of the specified classes of suits by all Courts.
The provisions contained in this rule apply to certain classes of suits. The scheme of
summary procedure is provided under this Order section 10 of the Code is applicable
only to a regular/ordinary suit and not to a summary suit filed under this rule.4
Recovery of money.—
In a suit for recovery of loan amount against guarantor, fact that guarantee deed was
executed by the defendant, was proved by plaintiff bank and there was no proof of
transaction being fraudulent, hence suit was decreed in favour of plaintiff bank along
with 12% pendente lite and future interest.5
Where defendant had availed overdraft loan facility by pleading six transferable Pucca
Delivery Orders (PDOs) for jute products as security for loan but failed to make
payment. Goods covered by PDOs were sold by order of High Court and sale proceeds
were deposited with plaintiff Bank. Suit was held to be not maintainable as it was not a
case of plaintiff-bank that even after adjustments of sale proceeds, dues have not been
wiped out.6
Sum paid as compensation to be adjusted in decree.—
In a suit for recovery of money due under dishonoured cheque, the compensation paid
by the defendant under section 357 of Cr.P.C has to be adjusted while passing the
decree.7
Leave to defend.—
Grant of leave to defend is permissible where applicability of O XXXVII of the code itself
is in question.8
Dismissal of application.—
Dismissal of application, for the grant of temporary injunction even before the filing of
written objection by the respondent, is justified.9
In this case the plaintiff had filed a suit for recovery. Plaintiff had placed purchase order
with defendant for supply of material. The goods in question were transported under
ownership and the goods receipt was to be obtained by the consignee from bank after
making payment. The plaintiff was entitled to have delivery of goods on production of
the said goods receipt.
The goods receipt which is the basis of the suit was not produced on behalf of the
plaintiff and no explanation has been furnished for non-production of the goods receipt
and that adverse inference has to be drawn against the plaintiff. No evidence to
establish that plaintiff had ever gone to office of the defendant to take delivery of
articles. Trial court has properly appreciated evidences and material to dismiss suit.10
1 The words "on negotiable instruments" omitted by Code of Civil Procedure (Amendment) Act
104 of 1976, section 84, (w.e.f. 1-2-1977).
1-21977).
3 Ins. by the Factoring Regulation Act, 2011 (12 of 2012), section 35 and Sch. (w.e.f. 1-2-2012,
vide S.O. 1399(E), dated 1st February, 2012).
4 Indian Bank v MS Coop Marketing Fedn Ltd, AIR 1998 SC 1952 (1954, 1955) : (1998) 5 SCC 69 :
(1998) 93 Com Cas 120 .
5 Punjab National Bank v Kanta Devi, 2010 AIHC (NOC) 232 (HP), RFA No 213 of 1993 Dt 5 May
2009 (DB).
6 Goyals Pvt Ltd v Punjab National Bank, AIR 2008 (NOC) 1226 (Cal-DB) : FA No 31 of 1995, Dt
15 February 2008.
7 D Purshottama Reddy v K Sateesh, AIR 2008 SC 3202 (3204).
8 Neebha Kapoor v Jayantilal Khandwala, (2008) 3 SCC 770 (771).
9 Pollen Dealcom Pvt Ltd v Chambal F&C Ltd, 2010 (3) Bank J, 657 (666-671) (DB).
10 Tata Iron and Steel Company Ltd v South Eastern Roadways, Jamshedpur, AIR 2012 Jhar 27
(para 30, 31, 32, 36).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R 2. Institution of summary
suits
© 2020 LexisNexis
THE FIRST SCHEDULE
11[R 2.
Institution of summary suits
(1) A suit, to which this Order applies, may, if the Plaintiff desires to proceed
hereunder, be instituted by presenting a plaint which shall contain,—
(a) a specific averment to the effect that the suit is filed under this Order;
(b) that no relief, which does not fall within the ambit of this rule, has been
claimed in the plaint; and
(c) the following inscription immediately below the number of the suit in the
title of the suit, namely:—
"(Under Order XXXVII of the Code of Civil Procedure, 1908)"
(2) The summons of the suit shall be in Form No. 4 in Appendix B or in such other
Form as may, from time to time, be prescribed.
(3) The defendant shall not defend the suit referred to in sub-rule (1) unless he
enters an appearance and in default of his entering an appearance the
allegations in the plaint shall be deemed to be admitted and the plaintiff'shall
be entitled to a decree for any sum, not exceeding the sum mentioned in the
summons, together with interest at the rate specified, if any, up to the date of
the decree, and such sum for costs as may be determined by the High Court
from time to time by rules made in that behalf and such decree may be
executed forthwith.]
COMMENT.—
The existing rule 2 was substituted. The newly substituted rule provides for the
procedure of summary suits.
Under this rule a plaintiff wishing to enforce a bill of exchange, a hundi or a promissory
note, may at his option, bring a summary suit within the provisions of this order or a
suit under the ordinary procedure.
Where triable issue is present, leave should be denied.—
If there is a triable issue-in the sense that (a) there is a fair dispute to be tried as to the
meaning of document on which the claim is based, or (b) uncertainty as to the amount
actually due, or (c) where the alleged facts are of such a nature as to entitle the
defendant to interrogate the plaintiff, or (d) to cross examine his witnesses—then the
leave should be denied. Summary Judgments under O XXXVII should not be granted
where serious conflict as to matter of fact or where any difficulty on issues as to law
arises. The Court should not reject the defence of the defendant merely because of its
inherent implausibility or its inconsistency.12
Where in pursuance of an agreement the plaintiff had given moneys in advance to the
defendant for business on promissory notes executed by the defendant from time to
time in favour of the plaintiff, in a suit on promissory note, it was held by the Supreme
Court that the suit was independent of the agreement and fell under this rule.13
In Ramkarandas v Bhagwands, AIR 1965 SC 1144 : (1965) 2 SCR 186 : 67 Bom LR 779 :
1966 Mah LJ 42 the Supreme Court held that sub-rule (2) of this rule contemplates that
the Court will accept the statements in the plaint as correct and on those facts pass
such decree as the plaintiff may, in law be entitled to.
Where liberty and property are to be deprived it is fundamental that vagueness is a fatal
vice even if the issuing authority is the Court. For disobedience to an order of the Court,
if any person is to be arrested, that person must be specified, and the property that is to
be attached, must also be specified. An order without the specifications of the person
to be arrested and of the property to be attached cannot stand.14
The leave to contest an application under section 14A(1) of Delhi Rent Control Act (59
of 1958) cannot be said to be analogous to the provision of grant of leave to defend as
envisaged in the Code of Civil Procedure. Order XXXVII rule 2(3) of the Code provides
that the defendant shall not appear or defend the suit unless he obtains leave from a
judge.15
TDS Certificate.—
TDS certificate is not a document falling in any of clauses stated under O XXXVII, rule 2
of the code.16
104 of 1976, section 84, (w.e.f. 1-2-1977).
1-2-1977).
12 Raj Duggal v Ramesh K Bansal, AIR 1990 SC 2218 : 1991 Supp (1) SCC 191 : (1991) 1 GLH
138 .
13 Milkhiram (India) Pvt Ltd v Chamanlal Bros, AIR 1965 SC 1698 : 68 Bom LR 36.
14 UOI v Satish Chandra Sharma, AIR 1980 SC 600 : (1980) 2 SCC 144 : 1980 Lab IC 384 : 28
BLJR 95.
15 BNMutto v TKNandi, AIR 1979 SC 460 (467) : (1979) 1 SCC 361 : (1979) 2 SCR 409 .
16 SP Brothers v Biren R Kadakia, 2009 AIHC 650 (652-53) (Bom) : AIR 2009 (NOC) 335 (Bom) :
2008 (6) AIR Bom R 342 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3. Procedure for the
appearance of defendant
© 2020 LexisNexis
THE FIRST SCHEDULE
17[R. 3.
Procedure for the appearance of defendant
(1) In a suit to which this Order applies, the plaintiff'shall, together with the
summons under rule 2, serve on the defendant a copy of the plaint and
annexures thereto and the defendant may, at any time within ten days of such
service, enter an appearance either in person or by pleader and, in either case,
he shall file in Court an address for service of notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial
processes, required to be served on the defendant, shall be deemed to have
been duly served on him if they are left at the address given by him for such
service.
(3) On the day of entering the appearance, notice of such appearance shall be
given by the defendant to the plaintiff's pleader, or, if the plaintiff'sues in
person, to the plaintiff himself, either by notice delivered at or sent by a pre-
paid letter directed to the address of the plaintiff's pleader or of the plaintiff, as
the case may be.
(4) If the defendant enters an appearance, the plaintiff'shall thereafter serve on the
defendant a summons for judgment in Form No. 4A in Appendix B or such
other form as may be prescribed from time to time, returnable not less than ten
days from the date of service supported by an affidavit verifying the cause of
action and the amount claimed and stating that in his belief there is no defence
to the suit.
(5) The defendant may, at any time within ten days from the service of such
summons for judgment, by affidavit or otherwise disclosing such facts as may
be deemed sufficient to entitle him to defend, apply on such summons for
leave to defend such suit, and leave to defend may be granted to him
unconditionally or upon such terms as may appear to the Court or Judge to be
just:
Provided that leave to defend shall not be refused unless the Court is satisfied
that the facts disclosed by the defendant do not indicate that he has a
substantial defence to raise or that the defence intended to be put up by the
defendant is frivolous or vexatious:
Provided further that, where a part of the amount claimed by the plaintiff is
admitted by the defendant to be due from him, leave to defend the suit shall
not be granted unless the amount so admitted to be due is deposited by the
defendant in Court.
(6) At the hearing of such summons for judgment,—

(a) if the defendant has not applied for leave to defend, or if such
application has been made and is refused, the plaintiff'shall be entitled
to judgment forthwith; or
(b) if the defendant is permitted to defend as to the whole or any part of the
claim, the Court or Judge may direct him to give such security and
within such time as may be fixed by the Court or Judge and that, on
failure to give such security within the time specified by the Court or
Judge or to carry out such other directions as may have been given by
the Court or Judge, the plaintiff'shall be entitled to judgment forthwith.
(7) The Court or Judge may, for sufficient cause shown by the defendant, excuse
the delay of the defendant in entering an appearance or in applying for leave to
defend the suit.]
COMMENT.—
Rule 3 as existed earlier was substituted by the present rule to provide the procedure
for the appearance of the defendant and the consequence of non-appearance for the
defendant.
Principles to be followed.—
The following principles are to be followed while considering the question of granting
leave to defend:
1. If the defendant satisfies the Court that he has a good defence to the claim on its
merits, plaintiff is not entitled to leave to sign judgment and the defendant is
entitled to unconditional leave to defend.
2. If the defendant raises a triable issue indicating that he has a fair or bona fide or
reasonable defence, although not a positively good defence, the plaintiff is not
entitled to sign judgment and the defendant is entitled to unconditional leave to
defend.
3. If the defendant discloses such facts as may be deemed sufficient to entitle him
to defend, the plaintiff is not entitled to judgment and the defendant is entitled to
leave to defend, but in such a case, Court may, in its discretion, impose
conditions as to the time and mode of trial, but not conditions as to payment into
Court or furnishing security.
4. If the defendant has no defence or the defence set up is illusory or sham or

practically moonshine, then ordinarily the plaintiff is entitled to leave to sign
judgment and the defendant is not entitled to leave to defend.
5. If the defendant has no defence or the defence is illusory or sham or practically

moonshine then although ordinarily the plaintiff is entitled to leave to sign
judgment, the Court may protect the plaintiff by only allowing the defence to
proceed if the amount claimed is paid into Court or otherwise secured and give
leave to the defendant on such condition, and thereby show mercy to the
defendant by enabling him to try to prove a defence.18
It is not possible as held by the Supreme Court to lay down a rule of thumb in what
cases leave to defend should be granted; each case has, however, to be decided on its
particular facts and circumstances.19 The Court has discretion under sub-rule (2) of
this rule in the matter of attaching conditions to the grant of leave to defend.20 It has
been held that where a valid defence or triable issue is disclosed the leave should be
granted unconditionally.21
The second proviso to O XXXVII, rule 3(5) of the code makes it very clear that leave to
defend a suit shall not be granted unless the amount as admitted to be due by the
defendant is deposited in court. The question as to whether leave to defend a suit can
be granted or not is within the discretionary powers of the High Court and such
discretion has not been exercised erroneously or with any irregularity which warrants
interference by the Supreme Court.22
Leave to defend.—
Leave to defend can be granted unconditionally to defendant in cases where:
(i) The defendant satisfies the court that he has a substantial defence, that is, a
defence that is likely to succeed and ordinarily where;
(ii) He has a fair or reasonable defence, although not a positively good defence.23
Order not bad on ground of no reasons.—
Care has to be taken that the object of the rule to assist the expeditious disposal of the
commercial causes is not defeated. At the same time real and genuine triable issues
are not shut out by unduly severe orders as to deposit.
An order of a single judge in the original side of Bombay High Court demanding
security is not bad on the ground that no reasons are given. Appeal lies against it under
Letter's Patent.24
Where the defendant has no defence or the defence is wholly untenable, unconditional
leave to defend the suit cannot be granted. In a summary suit filed by a company for a
decree of money assessed as liquidated damages on account of delay in completion of
the work by contractor, where the bank had given unconditional bank guarantee, in the
absence of the plea of fraud the order of the High Court granting unconditional leave to
bank to defend the suit, is erroneous.25
If the defendant satisfies the Court that he has a good defence to claim on merits then
the defendant is entitled to unconditional leave to defend. The acceptor of bill of
exchange sought leave to defend on ground that the same were executed without
consideration as neither goods were sold nor supplied in transaction in question. It was
alleged that the entire transaction was fraud. The defence cannot be said to be
baseless. Consequently leave to defend was granted by the Court.26
Money suit, leave to defend.—
When the defence raised appears to be moonshine and show, unconditional leave to
defend cannot be granted. What is required to be examined for grant of leave is
whether the defence taken in the application under rule 3 of O XXXVII of the code
makes out a case, which if established, would be plausible defence in a regular suit.27
Grant of leave, discretionary.—
The question as to whether leave to defend a suit can be granted or not is within the
discretionary powers of the High Court and where such discretion has not been
erroneously or with any irregularity exercised, no interference of the apex court is
warranted.28
Leave to Defend.—
Suit was instituted on bill of exchange. The defendant/appellant filed affidavit seeking
leave to defend after receiving summons for judgment. The appellant contended that
the contract between the parties was not a concluded contract and that the drawer and
the drawee of bills had perpetrated fraud on him and in that regard CBI inquiry was
pending. It was further alleged that the suit is barred by limitation and the persons who
signed the plaint are not authorised or empowered to file the suit. It was held that the
appellant has made out a prima facie case of trivial issues in suit which needs to be
adjudicated and therefore appellant is entitled to the grant of unconditional leave to
defend suit.29
Leave to defend, on condition.—
In a summary suit for the recovery of money, grant of conditional leave to defend was
held to be proper.30
A mandate if imposed on the defendant, to deposit any amount as admitted before

leave to defend the suit, can be granted.31
Leave to defend can be granted to the defendant subject to condition of depositing part
of plaintiffs claim.32
Negligence in duty—Effect.—
The negligence in the performance of a duty under a contract of employment may give
rise to a disciplinary proceeding, but in a case of this nature, the same would not give
rise to a cause of action for suit for recovery of money for loss caused.33
Summary suit.—
An order granting conditional leave to defend the suit is a jurisdictional question and
thus a revision application would be maintainable. Such an order can be challenged in
appeal against decree though revision against it is maintainable.34
Challenge to interlocutory order in appeal.—
Interlocutory order granting conditional leave to defend or refusing leave to defend the
suit can be challenged by aggrieved party in an appeal preferred against final decree.35
Summary judgment, original documents to bep roduced.—
Original documents must be produced for obtaining summary judgment.36
No interference with discretionary matter.—
In a suit for recovery of payment for services, the order passed by the Single Judge,
granting conditional leave to the respondent to defend the suit, ought not to have been
interfered with by the Division Bench as the order of the single judge was a
discretionary order.37
Second proviso to R. 3(5).—
The second proviso to sub-rule(5) of rule 3 of O XXXVII of the code makes it very clear
that leave to defend a suit shall not be granted unless the amount as admitted to be
due by the defendant is deposited in court.38
104 of 1976, section 84, (w.e.f. 1-2-1977).
1-21977).
18 Mechalee Eng & Mfrs v Basic Equip Corpn, AIR 1977 SC 577 (580) : (1976) 1 SCC 687 : (1977)
1 SCR 1060 .
19 Santosh Kumar v Bhat Mool Singh, AIR 1958 SC 321 : 1958 SCR 1211 : (1958) 1 MLJ (SC)
159.
20 Ibid.
21 Ibid; see also SKBiswanatham vKAnnapurnamma, AIR 1972 AP 111 : (1972) Punj LR 333 .
22 Southern Sales & Services v Savermilch Design & Handles GMBH, (2008) 14 SCC 457 (462).
23 IDBI Trusteeship Services Ltd v Hubtown Ltd, (2017) SCC 568 : AIR 2016 SC 5321 : 2017 135
RD 60.
24 Milkhiram v Chamanlal, AIR 1965 SC 1698 (1701).
25 Oil & Natural Gas Corpn Ltd v SBI Overseas Branch, AIR 2000 SC 2548 (2553).
26 Sunil Enterprises v SBI Commercial & Int Bank Ltd, AIR 1998 SC 2317 : (1998) 5 SCC 354 :
(1998) 92 Com Cas 772 .
27 VKEnterprises v Shiva Steels, AIR 2010 SC 2885 ; see also Malwa Strips Pvt Ltd v Jyoti Ltd,
(2009) 2 SCC 426 .
28 Southern Sales & Services v Sauermilch Design & Handles GMBH, AIR 2009 SC 320 (323).
29 State Bank of Hyderabad v Rabo Bank, AIR 2015 SC 3820 .
30 Anil Arora v Anand Kumar, 2009 AIHC (NOC) 909 (Del-DB); FAO (OS) Nos 333-334 of 2005 Dt
20 May 2008.
31 Southern Sales and Services v Sauermilch Design & Handles GMBH, (2008) 14 SCC 457 (462).
32 SRaju v CSathammai, AIR 2008 SC 1104 .
33 Punjab State Civil Supplies Corpn Ltd v Sikander Singh, AIR 2006 SC 1438 (1441).
34 Wada Arun Asbestos P Ltd v Gujarat Water Supply & Sewerage Board, AIR 2009 SC 1027
(1030) : (2009) 2 SCC 432 .
35 Emkay Exports v Madhusudan Shrikrishna, 2009 AIHC 667 (682) (Bom-FB).
36 Neebha Kapoor v Jayantilal Khandwala, AIR 2008 SC 1117 .
37 Sify Ltd v First Flight Couriers Ltd, (2008) 4 SCC 246 (249-52).
38 Southern Sales & Services v Sauermilch Design & Handles GMBH, AIR 2009 SC 320 (323).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Power to set aside
decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Power to set aside decree
After decree the Court may, under special circumstances, set aside the decree, and if
necessary stay or set aside execution, and may give leave to the defendant to appear
to the summons and to defend the suit, if it seems reasonable to the Court so to do,
and on such terms as the Court thinks fit.
COMMENT.—
The provisions under rule 4 expressly give power to the Court to set aside a decree
passed under the provisions of O XXXVII. Express provision is thus made for setting
aside a decree passed under O XXXVII. Hence, if a case does not come within the
provisions of rule 4 there is no scope to resort to section 151 for setting aside such a
decree.39
Setting aside ex parte decree in summary suit.—
Where an application under rule 4 is filed to set aside a decree either because the
defendant did not appear in response to summons and limitation expired, or having
appeared, did not apply for leave to defend the suit in the prescribed period, the Court is
empowered to grant leave to defendant to appear to the summons and to defend the
suit in the same application. It is not enough for the defendant seeking setting aside ex
parte decree to show special circumstances which prevented him from appearing or
applying for leave to defend. He has also to show by affidavit or otherwise, facts which
would entitle him leave to defend the suit.40
The provision under rule 4 of O XXXVII of the code specifically requires special
circumstances to be mentioned for setting aside a decree. The expression "special
circumstances" cannot be construed to mean merely a good case to defend on
merits.41
Where a debatable issue arises as to whether transaction in question was without any
consideration then the ex parte decree in a suit for recovery of amount on account of
dishonor of cheques need to be set aside in the interest of justice.42
Absence as defence, sufficient cause.—
Case of defendant that he remained absent on assurance given by the plaintiff that he
would withdraw the suit. It is sufficient cause to remain absent.43
104 of 1976, section 84, (w.e.f. 1-2-1977).
39 Ramkarandas v Bhagwandas, AIR 1965 SC 1144 : (1965) 2 SCR 186 : 1966 Mah LJ 42 .
40 Rajni Kumar v Suresh Kumar Malhotra, AIR 2003 SC 1322 (1325) : (2003) 5 SCC 315 .
41 Madhusudan Srikrishna v Emkay Exports, AIR 2008 (NOC) 2730 (Bom) : 2008 (5) AIR Bom R
402 (DB).
42 Mahesh Kumar Joshi v Madan Singh Negi, AIR 2015 SC 974 .
43 Govindbhai D Mange v Vijaykumar B Agarwal, AIR 2008 (NOC) 56 (Bom) : 2007 (6) AIR Bom R
355 (DB) : Appeal No 806 of 1999 Dt 26 June 2007 : 2008 AIHC 96 (Bom-DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Power to order bill, etc to
be deposited with officer of Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Power to order bill, etc to be deposited with officer of Court
In any proceeding under this Order the Court may order the bill, hundi or note on
which the suit is founded to be forthwith deposited with an officer of the Court, and
may further order that all proceedings shall be stayed until the plaintiff gives security
for the costs thereof.
COMMENT.—
The provisions of rule 5 are to prevent a decree that may be passed from being
rendered infructuous.44
In a case of effecting attachment of property situated outside local limits of a civil

Court, failure of the civil Court to send order of attachment to District Court within
whose jurisdiction attached property is situated, does not invalidate attachment45
104 of 1976, section 84, (w.e.f. 1-2-1977).
45 Rajender Singh v Ramdhar Singh, AIR 2001 SC 2220 (2224) : (2001) 6 SCC 213 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Recovery of cost of
noting non-acceptance of dishonoured bill or note
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Recovery of cost of noting non-acceptance of dishonoured bill or note
The holder of every dishonoured bill of exchange or promissory note shall have the
same remedies for the recovery of the expenses incurred in noting the same for non-
acceptance or nonpayment, or otherwise, by reason of such dishonour, as he has
under this Order for the recovery of the amount of such bill or note.
104 of 1976, section 84, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Procedure in suits
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Procedure in suits
Save as provided by this Order, the procedure in suits hereunder shall be the same as
the procedure in suits instituted in the ordinary manner.
Karnataka.—After Order XXXVII insert Order XXXVII-A:—
"ORDER XXXVII-A
I nterlocutory A pplications
1. An interlocutory application means an application to the Court in any suit, appeal or

proceeding already instituted in such Court other than an application for execution of a
decree or order or for review of judgment or for leave to appeal.
2. Except where otherwise prescribed by rules or otherwise provided by any law for the
time being in force, an interlocutory application shall state only the order prayed for and
shall not contain any statement of facts or argumentative matter. Every application in
contravention of this rule shall be returned for amendment or rejected.
3. Every interlocutory application shall be supported by an affidavit. Where, however,

the facts on which the application is based appear from the records in Court or relate
to any act or conduct of the applicant's pleader himself, the Court may permit a
memorandum of facts signed by the applicant's pleader to be filed instead of an
affidavit.
4. Any fact required to be proved upon an interlocutory proceeding shall, unless

otherwise prescribed by rule or ordered by Court, be proved by affidavit, but the Judge
may in any case direct evidence to be given orally, and thereupon the evidence shall be
recorded and exhibits marked in the same manner as in a suit." (30-3-1967).
104 of 1976, section 84, (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Where defendant for may
be called upon to furnish security for appearance
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXVIII Arrest and Attachment before Judgment Arrest before

Judgment
R. 1.
Where defendant for may be called upon to furnish security for appearance
Where at any stage of a suit, other than a suit of the nature referred to in Section 16,
clauses (a) (d), the Court is satisfied, by affidavit or otherwise,—
(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of
the Court or to obstruct or delay the execution of any decree that may be
passed against him,—
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the
Court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of
the Court his property or any part thereof, or
(b) that the defendant is about to leave 1[India] under circumstances affording
reasonable probability that the plaintiff will or may thereby be obstructed or
delayed in the execution of any decree that may be passed against the
defendant in the suit,
the Court may issue a warrant to arrest the defendant and bring him before the
Court to show cause why he should not furnish security for his appearance:
Provided that the defendant shall not be arrested if he pays to the officer
entrusted with the execution of the warrant any sum specified in the warrant as
sufficient to satisfy the plaintiffs claim; and such sum shall be held in deposit
by the Court until the suit is disposed of or until the further order of the Court.
COMMENT.—
Under the circumstances as laid down in this rule, the creditor can take out arrest or
attachment against his debtor even before judgment. The object of such a provision is
to prevent any attempt on the part of the defendant to defeat the realisation of the
decree that may be passed against him.
Before the creditor can resort to the extraordinary procedure laid down by this rule, he
must show that there is good reason to believe that the debtor is about to depart from
the jurisdiction of the Court or to make away with his property.
The Court must be satisfied before exercising the powers conferred by the present rule
that the plaintiff's suit is bona fide and that his cause of action is prima facie an
unimpeachable one subject to his proving the allegations made in the plaint.
1 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951, section 3, for "the States"
(w.e.f. 1-21977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Security
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 2.
Security
(1) Where the defendant fails to show such cause the Court shall order him either
to deposit in Court money or other property sufficient to answer the claim
against him, or to furnish security for his appearance at any time when called
upon while the suit is pending and until satisfaction of any decree that may be
passed against him in the suit, or make such order as it thinks fit in regard to
the sum which may have been paid by the defendant under the proviso to the
last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself, in default of
such appearance, to pay any sum of money which the defendant may be
ordered to pay in the suit.
COMMENT.—
The word "security" in the rule is wide enough to include surety, as held by the Andhra
Pradesh High Court.2
2 Venkataramanayya v Subbayya, AIR 1962 AP 175 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Procedure on application
by surety to be discharged
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 3.
Procedure on application by surety to be discharged
(1) A surety for the appearance of a defendant may at any time apply to the Court
in which he became such surety to be discharged from his obligation.
(2) On such application being made, the Court shall summon the defendant to
appear or, if it thinks fit, may issue a warrant for his arrest in the first instance.
(3) On the appearance of the defendant in pursuance of the summons or warrant,

or on his voluntary surrender, the Court shall direct the surety to be discharged
from his obligation, and shall call upon the defendant to find fresh security.

defendant fails to furnish security or find fresh security
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 4.
Procedure where defendant fails to furnish security or find fresh security
Where the defendant fails to comply with any order under rule 2 or rule 3, the Court
may commit him to the civil prison until the decision of the suit or, where a decree is
passed against the defendant, until the decree has been satisfied:
Provided that no person shall be detained in prison under this rule in any case for a
longer period than six months, nor for a longer period than six weeks when the
amount or value of the subject-matter of the suit does not exceed fifty rupees:
Provided also that no person shall be detained in prison under this rule after he has
complied with such order. [K]
[Kerala.—Rule renumbered as sub-rule (1) and sub-rule (2) added.]
Kerala (Notfn No B1—3312/58; 7-4-1959).— Renumber rule 4 as sub-rule (1) and add the
following as sub-rule (2):—
"(2) The provisions of Order XXI rule 39 as to allowances payable for the subsistence of
judgment-debtor shall apply to all defendants arrested under this Order." Ker. Gaz., 9-6-
1959, Pt. III, p. 2, G. 1349 (No. 23).
COMMENT.—
It is only in the event of a failure to comply with any order under rule 2 or 3 i.e, in the
event of failure to furnish security or to make a sufficient deposit that the defendant
can be committed to custody under this rule.3
3 SD Patil v GS Chamedia, AIR 1971 Bom 87 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Where defendant may be
called upon to furnish security for production of property
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
Attachment before Judgment
R. 5.
Where defendant may be called upon to furnish security for production of
property
(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise,
that the defendant, with intent to obstruct or delay the execution of any decree
that may be passed against him,—
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local
limits of the jurisdiction of the Court,
the Court may direct the defendant, within a time to be fixed by it, either
to furnish security, in such sum as may be specified in the order, to
produce and place at the disposal of the Court, when required, the said
property or the value of the same, or such portion thereof as may be
sufficient to satisfy the decree, or to appear and show cause why he
should not furnish security.
(2) The plaintiff'shall, unless the Court otherwise directs, specify the property
required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole
or any portion of the property so specified.
4
[(4) If an order of attachment is made without complying with the provisions of
sub-rule (1) of this rule, such attachment shall be void.]
COMMENT.—
Sub-rule (4) has been added to this rule 5 in order to make it clear that where the
attachment is made without complying with the procedure laid down in rule 5, such
attachment shall be void.
It has been held by the Supreme Court that the main object of those provisions for
arrest and attachment before judgment is to prevent any attempt on the part of the
defendant to defeat the realisation of the decree that may be passed against him.5
Reference may also be made to Govindrao Mahadik v Devi Sahai, AIR 1982 SC 989 :
(1982) 1 SCC 237 .
While exercising jurisdiction under O XXXVIII, rule 5 of the code court is required to
form a prima facie opinion at that stage and need not go into the correctness or
otherwise of the contentions raised by the parties.6
Propriety of order.—
The Court cannot pass an order of injunction where plaintiff failed to make out any
case of attachment before judgment as provided in the Code.7
Attachment of property before judgment.—
If the court is satisfied prima facie with regard to conditions contained in O XXXVIII, rule
5 of the code, then those reasons should be found. An order passed without giving
reasons would be an illegal order. Thus, the power to attaching the property before
judgment cannot be exercised in routine manner.8
In order to secure the attachment of property before judgment in a money suit, it is not
necessary to consider that whether the suit property is the subject matter of suit and
that it is within or beyond the jurisdiction of the Court.9
Exercise of power.—
The power to attach before judgment cannot be exercised in a routine manner. If the
court is satisfied prima facie with regard to conditions given under O XXXVIII, rule 5 of
the code, those reasons should be found in the order at least at the stage of ordering
warrant of attachment. Recording of reasons is mandatory whether the defendant
appears before the court or not after issuing notice under rule 5 of O XXXVIII of the
Code.10
The power under O XXXVIII, rule 5 of the code is extraordinary and drastic and hence
should not be exercised mechanically or merely for the asking. The power under O
XXXVIII, rule 5 should be used sparingly and strictly in accordance with rule.11
Conditional order of attachment.—
It is not necessary that in all cases, the court should also pass a conditional order of
attachment.12
4 Ins. by Code of Civl Procedure (Amendment) Act 104 of 1976, section 85, (w.e.f. 1-2-1977).
5 Padamsen v State of UP, AIR 1961 SC 218 : (1961) 3 SCR 884 : 1961 BLJR 103 : (1961) 1 CrLJ
322 .
6 Rajendran v Shankar Sundaram, (2008) 2 SCC 724 .
7 Kohinoor Steel Pvt Ltd v Pravesh Ch Kapoor, (2010) 3 Cal LT 268 (274, 277-78) (DB).
8 Maudala Suryanarayana v Barla Babu Rao, AIR 2010 (NOC) 573 (DB) : (Misc Appeal No 997 of
2009 dt 6 November 2009; see also SP Vasakumar Pillai v MAC Tribunal, AIR 2009 Ker 36 ;
Dharmpal v Hari Chandra, AIR 2008 (NOC) 2499 (MP).
9 Muthoor Vehicle & Asset Finance Ltd v Gopalan Kuttapan, 2009 (4) KLT 123 (126) (DB).
10 Mandala Suryanarayana v Sri Barla B Rao, 2010 (2) ALT 839 (844) (DB).
11 Raman Tech & Process Engg Co v Solanki Traders, (2008) 2 SCC 302 ; see also MR
Lakshamanappa v Ramachandra Bhatt, 2008 AIHC 1678 (Kar) (merely having a prima facie case
will not entitle the plaintiff to an order of attachment before judgment).
12 Sheeba C Thomas v Rosamma Thomas, 2009 (3) KLT 260 (262) (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Attachment where cause
not shown or security not furnished
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 6.
Attachment where cause not shown or security not furnished
(1) Where the defendant fails to show cause why he should not furnish security, or
fails to furnish the security required, within the time fixed by the Court, the
Court may order that the property specified, or such portion thereof as appears
sufficient to satisfy any decree which may be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security and
the property specified or any portion of it has been attached, the Court shall
order the attachment to be withdrawn, or make such other order as it thinks fit.
[Sub-rule (2) substituted in Bombay.]
1983, Part 4 Ka, Page 422 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra. S. 1, No 28,
Page 388, dated 1-4-1987.
For existing sub-rule (2), substitute the following:—
"(2) Where the defendant shows such cause or furnishes the required security or gives
an undertaking to the Court to do or not to do a thing, and the property specified or any
portion of it has been attached, the Court shall order the attachment to be withdrawn,
or make such other order as it thinks fit." (1-10-1983 and 1-4-1987)
Before issuing notice the court below already decided to pass the order of attachment
and appointment of receiver and only then issued notice to the receiver: thus the
defendants appellants were not provided opportunity to oppose the prayer of
attachment and appointment of receiver before receiving the notice. So, apparently
prejudice was caused to them by not considering the term "just and convenient" as
intended by the makers of the statute.13
13 Palla Bhattacharjee v Srimanta Majumdar, AIR 2014 Tri 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Mode of making
attachment
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 7.
Mode of making attachment
Save as otherwise expressly provided, the attachment shall be made in the manner
provided for the attachment of property in execution of a decree.
COMMENT.—
Rule 7 of this order lays down that the attachment before judgment must be made in
the manner provided for the attachment of property in execution of a decree i.e., in the
manner provided in O XXI of the Civil Procedure Code.14
14 Tapeshwar v Santokh, AIR 1969 Pat 299 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 8. Adjudication of claim to
property attached before judgment
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
15[R. 8.
Adjudication of claim to property attached before judgment
Where any claim is preferred to property attached before judgment, such claim shall
be adjudicated upon in the manner herein before provided for the adjudication of
claims to property attached in execution of a decree for the payment of money.]
COMMENT.—
The question whether the transfer made by judgment-debtor is a fraudulent transfer

under section 53 of the Transfer of Property Act, 1882 need not be considered in a
claim made by a transferee to a property attached before judgment under O XXXVIII,
rule 8. The applicability of section 53, TPA arises when such application is made in
execution under O XXI, rule 58 of the Code.16
15 Subs. by Act 104 of 1976, section 85, (w.e.f. 1-2-1977).

16 Rajan v Jayashree Nayar, 2010 (1) KLT 142 : AIR 2010 (NOC) 388 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Removal of attachment
when security furnished or suit dismissed
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 9.
Removal of attachment when security furnished or suit dismissed
Where an order is made for attachment before judgment, the Court shall order the
attachment to be withdrawn when the defendant furnishes the security required,
together with security for the costs of the attachment, or when the suit is dismissed.
COMMENT.—
The power under O XXXVIII, rule 9 can be exercised when sufficient security is
furnished as provided under the above rule when appeal or execution proceedings are
pending.17
Release of attachment.—
Where Supreme Court appointed Receiver and possession was handed over to him,
attachment would stand released.18
Division of attached property.—
In appeal arising out of claim by third party for the release of attachment facts were
very complicated and stretched over 60 years. Supreme Court cut short the matter and
with consent of parties directed division of attached property between appellant and
respondent in equal shares.19
17 Sidharthan v Praveen Chandran, 2008 (1) KLT 136 (138-139) (DB).

18 Chhagan Lal v Kamal Chand, (2008) 3 SCC 303 .
19 Moses Wilson v Kasturiba, AIR 2008 SC 379 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Attachment before
judgment not to affect rights of strangers, nor bar decree-holder from applying for sale
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 10.
Attachment before judgment not to affect rights of strangers, nor bar decree-
holder from applying for sale
Attachment before judgment shall not affect the rights, existing prior to the
attachment, of persons not parties to the suit, nor bar any person holding a decree
against the defendant from applying for the sale of the property under attachment in
execution of such decree.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 11. Property attached
before judgment not to be re-attached in execution of decree
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R 11.
Property attached before judgment not to be re-attached in execution of
decree
Where property is under attachment by virtue of the provisions of this Order and a
decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon
an application for execution of such decree to apply for a re-attachment of the
property.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 11A. Provisions applicable
to attachment
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
20[R. 11A.
Provisions applicable to attachment
(1) The provisions of this Code applicable to an attachment made in execution of a

decree shall, so far as may be, apply to an attachment made before judgment
which continues after the judgment by virtue of the provisions of rule 11.
(2) An attachment made before judgment in a suit which is dismissed for default
shall not become revived merely by reason of the fact that the order for the
dismissal of the suit for default has been set aside and the suit has been
restored.]
dated 15-7-1987, Part III, S. 2, Page 250.
After rule 11A, insert the following—
"11-B. Order of attachment to be communicated to the Registering Officer.—Any order

of attachment passed under rule 5 or 6 of this order and any order raising the
attachment passed under rule 9 of this order shall be communicated to the Registering
Officer within the local limits of whose jurisdiction the whole or any part of the
immovable property completed in such order, is situate." (T.N. Govt. Gaz., 15-7-1987, Pt.
III, Section 2, p. 250)
COMMENT.—
Rule 1-A was inserted which is intended to make it clear the position as to whether the
provisions of O XXI, rule 57 apply to attachment made before the judgment. The
provision has been framed in general terms as it would not be appropriate to apply only
the provisions of rule 57 of O XXI.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Agricultural produce
not attachable before judgment
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
R. 12.
Agricultural produce not attachable before judgment
Nothing in this Order shall be deemed to authorise the plaintiff to apply for the
attachment of any agricultural produce in the possession of an agriculturist, or to
empower the Court to order the attachment or production of such produce.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 13. Small Cause Court not
to attach immovable property
© 2020 LexisNexis
THE FIRST SCHEDULE

Judgment
21[R. 13.
Small Cause Court not to attach immovable property
Nothing in this Order shall be deemed to empower any Court of Small Causes to make
an order for the attachment of immovable property.]
Kerala (Notfn No BI-3312/58; 7-9-1959).—For the words "Court of Small Causes"

substitute "Court exercising Small Cause jurisdiction". (9-6-1959)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Cases in which
temporary injunction may be granted
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XXXIX Temporary Injunctions and Interlocutory Orders Temporary

Injunctions
R. 1.
Cases in which temporary injunction may be granted
1[***] Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property
with a view to 2[defrauding] his creditors,
3
[(c) that the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit,]
the Court may by order grant a temporary injunction to restrain such act, or
make such other order for the purpose of staying and preventing the wasting,
damaging, alienation, sale, removal or disposition of the property or
dispossession of the plaintiff, 4[or otherwise causing injury to the plaintiff in
relation to any property in dispute in the suit] as the Court thinks fit, until the
disposal of the suit or until further orders.
5
[(2) * * *]
Allahabad.—In clause (a) the words "or wrongfully sold in execution of a decree" and in
the last para, the word "sale" after the words "damaging, alienation," which were deleted
by a former amendment have now been restored.
Andhra Pradesh.— The following amendments were made by Andhra Pradesh Gazette,
dated 26-7-1956.
Substitute the following for rule 1:
"1. Where in any suit it is proved by affidavit or otherwise—
(a) that any property in dispute in a suit is in danger of being wasted, damaged or
alienated by any party to the suit, or wrongfully sold in execution of a decree; or
(b) that the defendant threatens, or intends to remove or dispose of his property
with a view to defraud his creditors; or
(c) that the defendant threatens to dispossess the plaintiff or otherwise cause
injury or loss to the plaintiff,
the Court may by order grant a temporary injunction to restrain such act, or make such
other order for the purpose of staying and preventing the wasting, damaging, alienation,
sale, removal or disposition of the property, or dispossessing or otherwise causing
injury or loss as the Court thinks fit, until the disposal of the suit or until further orders."
(26-7-1956)
Calcutta (Andaman and Nicobar Islands).—
The following amendments were made by Calcutta Gazette, dated 3-2-1933.
Renumber rule 1 as rule 1(1) and add the following as sub-rules (2) and (3):
"(2) In case of disobedience, or of breach of the terms of such temporary injunction or

order, the Court granting the injunction or making such order may order the property of
the person guilty of such disobedience or breach to be attached, and may also order
such person to be detained in the civil prison for a term not exceeding six months,
unless in the meantime the Court directs his release.
(3) The property attached under sub-rule (2) may, when the Court considers it fit so to
direct, be sold and, out of the proceeds, the Court may award such compensation to the
injured party as it finds proper and shall pay the balance, if any, to the party entitled
thereto."

Calcutta.
Kerala (Lakshadweep Islands).—
The following amendments were made by Kerala Act, dated 9-6-1959.
(i) Rule 1 shall be renumbered as sub-rule (1) thereof.
(ii) In sub-rule (1) as so renumbered after the words "wrongfully sold" insert the
words "or delivered".
(iii) After sub-rule (1) insert the following sub-rule:
"(2) In case of disobedience of any order passed under sub-rule (1) the Court granting
the injunction may proceed against the person guilty of such disobedience under sub-
rules (3) and (4) of rule 2 of this order."
Patna (Notfn No 118-R of 8-10-1937).—For the word "as" in clause (a) substitute "the"
and add the following provisos after rule 1:—
"Provided that no such temporary injunction shall be granted if it would contravene the
provisions of Section 56 of the Specific Relief Act (Act 1 of 1877) (Section 41 of 1963
Act):
Provided further that an injunction to restrain a sale, or confirmation of sale, or to

restrain delivery of possession, shall not be granted except in a case where the
applicant cannot lawfully prefer, and could not lawfully have preferred, a claim to the
property, or objection to the sale, or to the attachment preceding it, before the Court
executing the decree."
COMMENT.—
2002).—
In O XXXIX, in rule 2, sub-rule (2) shall be omitted.
Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999).—
In the First Schedule, in O XXXIX, rule 1 shall be renumbered as sub-rule (1) of that rule
and after sub-rule (1) as so renumbered, the following sub-rule shall be inserted,
namely:—
(2) The Court shall, while granting a temporary injunction to restrain such act or to make
such other order for the purposes of staying and preventing the wasting, damaging,
alienation, sale, removal or disposition of property or dispossession of the plaintiff, or
otherwise causing injury to the plaintiff in relation to any property under disposition in the
suit under sub-rule (1) direct the plaintiff to give security or otherwise as the Court thinks fit.
Notes on Clauses.—
Clause 30.—It has been observed that after obtaining temporary injunction the party in
whose favour injunction has been granted causes delay in disposal of cases on flimsy and
unreasonable grounds. To curb this practice it is proposed to amend Order XXXIX so as to
provide that the party who applies for obtaining injunction shall also furnish security so that
it may not adopt delaying tactics during the trial of the case.
The present amendment has been dropped by the Code of Civil Procedure
(Amendment) Act, 2002 (22 of 2002) see infra.
Scope.—
Simple money suit for the recovery of ascertained sum does not come within the
purview of the section.6
Injunction, nature of.—
An injunction is an equitable remedy. Even an ad interim injunction is equitable in

nature.7
The relief of injunction is in the nature of declaratory and equitable.8
The principles governing the grant of injunctions also apply to grant of anti-suit
injunctions which are but a species of injunctions. Such injunctions have effect of
interferring with jurisdiction of other Courts. The Courts in India have power to issue
anti-suit injunctions to a party over whom it has personal jurisdiction, in an appropriate
case. It is because the Courts of equity exercise jurisdiction in personam and Courts in
India are Courts of both law and equity. Having regard to the rule of comity, this power
has to be exercised sparingly because such an injunction in effect causes interference
in the exercise of jurisdiction by other Court.9
Both the plaintiff and the defendant can maintain an application under O XXXIX, rule
1(a) of the Code of Civil Procedure for the reliefs set out in the said provision. In so far
as relief under O XXXIX, rule 1(b) and (c) is concerned, such a relief is available only to
the plaintiff and the defendant cannot maintain an application for the said reliefs in a
suit filed by plaintiff, irrespective of the fact that his right to such reliefs arises either
from the same cause of action that arises subsequent to the filing of the suit. However,
it is open to the defendant to maintain a separate suit against the plaintiff and seek
relief provided under O XXXIX, rule 1(b) and (c) of the Code of Civil Procedure. In cases
which do not fall under O XXXIX, rule 1 of the Code of Civil Procedure, the court has the
inherent jurisdiction to grant the relief of injunction in its discretion, if it is satisfied that
such an order is necessary to meet the ends of justice or to prevent abuse of process
of the court and nothing in the code shall limit or otherwise affect such inherent power
of the court.10
Order propriety.—
The order of appellate Court ordering status quo without indicating what the status quo
was is not proper.11
Temporary injunction, grant of.—
An injunction which is a discretionary equitable relief cannot be granted when equally

efficacious relief is obtainable in any other usual mode or proceeding except in cases
of breach of trust. Thus, where such a remedy is available to the plaintiff this
consideration has a bearing upon a question whether prima facie case exists for the
grant of interim injunction.12
Assuming that the ONGC is a State instrumentality and the price demanded by it is
susceptible to judicial review, the Court may, where a contract has been entered into,
consider the sustainability of the price agreed upon. Where no contract has been
entered into the Court may injunct the ONGC from demanding the price for supply
which is found unreasonable.13
Where injunction was sought in a suit challenging eviction decree as fraudulent, the
refusal to grant injunction in such case was not proper.14
While passing an interim order of injunction under O XXXIX, rule 1 of the Code, the
Court is required to consider three basic principles, namely:
1. Prima facie case,
2. balance of inconvenience, and
3. irreparable loss or injury.15
The court is under an obligation to undo the wrong done to a party by the act of the
Court. Any underserved or unfair advantage gained by a party invoking the jurisdiction
of the court must be neutralised, as an institution of litigation cannot be permitted to
confer any advantage on a suitor from delayed action by the act of the Court.16
If a party fails to prove prima facie case to go for trial, it is not open to the court to grant
injunction in his favour even if, he has made out a case of balance of convenience
being in his favour and would suffer irreparable loss and injury if no injunction order is
granted.17
Once an agreement cannot be specifically enforced, party would not be entitled for an
injunction prayed for.18
Appellate court should not flimsily, whimsically or lightly interfere in the exercise of
discretion by a subordinate Court unless such exercise is palpably perverse. The Court
has to examine existence or otherwise of:
(i) A Prima facie case in favour of applicant has been established;
(ii) Balance of convenience lies in favour of applicant; and
(iii) Irreparable loss or damage caused, if injunctive relief is declined, before

interfering with orders of interim injunctions.19
While considering an application for grant of injunction, the court will not only take into
consideration the basic elements i.e., existence of prima facie case, balance of
convenience and irreparable injury, it must also take into consideration the conduct of
the parties.20
Mere dispute as to quality or quantity of goods cannot amount to a fraud and cannot
be a ground for claiming injunction.21
Conduct of the parties is also a relevant consideration for the grant of injunction.22
The trial court is not justified in granting temporary injunction where no prima facie
case is made out.23
Temporary injunction could not be granted where defendant was in possession of suit
property.24
The formal proof of documents, which otherwise is necessary at the time of deciding
the suit is that strict sense is not necessary while considering the documents
concerned at the time of consideration of the payer for temporary injunction. At the
stage of temporary injunction the court can refer to documents which are produced on
record without formal proof.25
Injunction is granted where a strong prima facie case is made out and balance of
convenience is also in favour of the plaintiff.26
Principles not to be ignored.—
Various principles laid down under O XXXIX for granting ad interim or interim reliefs
must be taken into consideration.27
For prohibitory injunction a case stronger than that prima facie case has to be
proved.—
In a petition of mandatory injunction the plaintiff has to prove a strong case for trial
which should be of a higher standard than a prima facie case which is normally
required for prohibitory injunction. It is because the granting of such an injunction to a
party who fails to establish his case for trial may cause great injustice and irreparable
injury to the party against whom it is granted.28
An undertaking is an obligation.—
An undertaking given to Court is an obligation imposed by the Court. It is a promise

voluntarily made to the Court. Acting upon under its own undertaking to Court creates
no equity in favour of the party giving it, nor it is a special or peculiar circumstance.29
No interim orders-injunctions in mechanical way.—
The interim orders-injunctions and stay orders should not be granted in the mechanical
order by the Courts without realising the harm such orders cause to the other side and
in some cases to public interest. Before making an order, the Court must be satisfied
that it is a case which calls for such an order.30
Conduct of the party should also be looked into.—
The jurisdiction of the Court to interfere with an order of interlocutory or temporary

injunction is purely equitable and so the Court, apart from other considerations, also
look to the conduct of the party invoking the jurisdiction of the Court and may refuse to
interfere unless his conduct was free from blame. His conduct should be fair and
honest. These considerations will also apply to the party approaching the Court for
vacating an interim or temporary injunction order.31
Occurrence of the events in bank guarantee.—
On the occurrence of the events mentioned in a bank guarantee, the bank guarantee
becomes enforceable. The subsequent disputes in the performance of the contract
does not give rise to a cause nor is the Court justified on that basis, to issue an
injunction from enforcing the contract, i.e., bank guarantee.32
Concluded right is must.—
A temporary injunction can be granted only if the person seeking injunction has a
concluded right, capable of being enforced by way of injunction.33
Prima facie case and prima facie title.—
The phrases "prima facie case", "balance of convenience" and "irreparable loss" are not
rhetoric phrases for incantation, but words of width and elasticity to meet myriad
situations presented by man's ingenuity in given facts and circumstances but always is
hedged with sound exercise of judicial discretion to meet ends of justice. A prima facie
case is not to be confused with prima facie title, which has to be established, on
evidence at the trial. Only prima facie case is a substantial question raised, bona fide,
which needs investigation and a decision on merits.34
No dismissal of suit while deciding an application.—
A Court while deciding an application for temporary injunction cannot dismiss the suit
itself, the part of the order dismissing the suit is erroneous.35
No Supreme Court's interference with interim order.—
The Supreme Court will not interfere with the interim order passed by High Court
except in the most exceptional circumstances and when the interference would not
serve the interests of any parties.36
The Supreme Court does not normally entertain appeals against interlocutory orders. In
the case of trademarks, however, keeping in perspective the endemic delay in
concluding cases/suits in India because of the exponentially increasing docket
explosion, temporary ad interim injunctions are of far-reaching consequences, often
times effectively deciding the lis and the disputes themselves. Possibly for this reason
"leave" has already been granted in the present appeal. However, it is now well-
entrenched in our jurisprudence that the appellate court should not flimsily, whimsically
or lightly interfere in the exercise of discretion by a subordinate court unless such
exercise is palpably perverse. Perversity can pertain to the understanding of law or the
appreciation of pleadings of evidence. The appellate court ought not to reassess the
material and seek to reach a conclusion different from the one reached by the court
below if the one reached by that court was reasonably possible on the material.37
In the absence of any prima facie evidence of grave prejudice that was likely to be
caused to the public generally by the exhibition of the serial in the television, it is not
just and proper to issue an order of temporary injunction.38
The Court will not interfere by way of injunction to prevent due implementation of bank
guarantee.39
Where a city civil Court refuses temporary injunction on a finding that the plaintiff is not
in possession of the suit property. The High Court does not differ on the question of
possession and yet grants injunction. Such an interference by the High Court is
unwarranted and is liable to be set aside. The Supreme Court interferes with the
interlocutory order only under very exceptional circumstances.40
Except possibly in clean cases of fraud of which the banks have notice, the Court will
leave the merchants to settle their disputes under the contracts by litigation or
arbitration as available to them or stipulated in the contracts.41
In a matter touching either the discipline or the administration of the internal affairs of
a university, the Courts should be most reluctant to interfere. They should refuse to
grant an injunction unless a firmly good prima facie case is made for interference with
the internal affairs of educational institutions.42
Appeal.—
Appeal against interim order is maintainable.43
An order refusing to appoint a receiver is appealable.44
On a literal reading of the rule the situation where the defendant threatened to
dispossess the plaintiff or otherwise caused injury to the plaintiff in relation to any
property in dispute in the suit was not covered by the rule. Accordingly, the rule has
been amended in order to avoid any such situation.
If there is no imminent danger of the subscription being withdrawn before the allotment
and as to make the issue vulnerable by any publication of article. Then the balance of
convenience is not in favour of the continuance of the injunction.45
A Court can in appropriate cases grant temporary injunction in exercise of its inherent
powers in cases not covered by O XXXIX of Code of Civil Procedure.46
An ex parte interim injunction order can be passed under this rule. Such an order is
appealable. The party affected by the order has choice to move appellate Court or
approach same Court for vacation or modification of the order. The party securing an
ex parte interim order cannot take advantage of it without complying with requisites of
sending copy of order to opposite party and filing an affidavit stating that copies of
aforesaid order are delivered.47
Where a Court has inherent powers to grant a temporary injunction? It has been held by
the Supreme Court that subordinate Courts have inherent powers to issue temporary
injunctions in the interest of justice, in circumstances which are not covered by O
XXXIX of the Code.48 But such powers are to be exercised in very exceptional
circumstances for which the Code lays down no procedure.49
No ex parte relief by way of injunction or stay.—
It was held that ex parte relief by way of injunction or stay cannot be granted with
respect to public projects and schemes or economic policies or schemes.50
Interim order, loses efficacy.—
It is not permissible for a party to file a writ petition, obtaining certain orders during the
pendency of the petition and withdraw these one without getting proper adjudication of
the issue involved therein and insist that the benefits of the interim orders
consequential passed in pursuance of the interim order passed by the writ court would
continue. The benefit of the interim relief automatically gets withdrawal neutralised on
withdrawal of said petition.51
Whether an injunction should continue or not?—
This question came up before the Supreme Court in Reliance Petrochemicals Ltd v Prop
Indian Express Newspapers Bombay Pvt Ltd, AIR 1989 SC 190 (202) : (1988) 4 SCC 592 .
It has been held that while considering whether injunction should continue or not it is
necessary to see whether there is a "present and imminent danger" for the continuance
of the injunction. It is difficult to lay down a fixed standard to judge as to how clear,
remote or imminent the danger is. It must be remembered that continuance of
injunction would amount to interference with the freedom of Press in the form of
preventive injunction and it must, therefore, be based on reasonable grounds for the
sole purpose of keeping the administration of justice unimpaired. There must be
reasonable ground to believe that the danger apprehended a real and imminent. This
test is based on the balance of convenience. No formula or any test has yet been found
or laid down by the Supreme Court as to how the balance of convenience in a situation
of this type or how the real and imminent danger should be judged in case of
preventive publication of an article in a pending matter.
Where an appellate Court upsetting injunction order on the ground that trial Court has
gone wrong in recording prima facie satisfaction, the appellate Court, however, did not
discuss material on record nor recorded contrary finding, the order setting aside
injunction is invalid.52
An interim stay order in respect of land acquired for construction of dam ought to be
vacated for important public purposes. The reasonable conditions may, however, be
imposed.53
Where a riparian owner has suffered on account of the pollution of the water in a river,
caused by the municipal corporation by discharging into the river insufficiently treated
sewage. The municipal corporation can be restrained by an injunction in an action,
brought by the riparian owner, from discharging such sewage into the river.54
In law relating to bank guarantees, a party seeking injunction from encashing of bank
guarantee has to show prima facie case of established fraud and irretrievable injury.55
Creating sub lease is illegal.—
Where status quo has been ordered in respect of a property, the creation of sub-lease in
such property would be illegal, even if, it be by a tenant who was not party to the
interlocutory application for status quo.56
Temporary injunction, discretionary exercise.—
Once the trial court exercises it discretion to grant or refuse relief of temporary
injunction and the said exercise of discretion is based upon objective consideration of
material placed before the court and is supported by cogent reasons, the appellate
court will be oath to interfere. The interfere with the exercise of discretion by the trial
court shall not be done merely because of difference of opinion.57
Exercise of discretion.—
In a suit for infringement of trade mark, the trial judge has to exercise sound judicial
discretion in the matter of grant or refusal of interim relief of injunction.58
Temporary injunction granted.—

In a dispute about title of land the plaintiff and the defendant were found to be in
possession of about half portion of disputed land. An injunction restraining defendant
from putting up construction on entire land would be justified. The situation might
become irreversible by the time dispute is decided if the injunction is not granted.59
Where a mining lease of the Government property was granted to the appellant, but the
actual possession of the property continued with the respondent who was in lawful
possession under a lease-deed, the respondent was entitled to ad interim injunction for
protection of his lawful possession pending civil suit.60
Where the builder alongwith his partners started denying the prima facie just rights of
the plaintiff and made no effort to come forward with any equitable offer to safeguard
the interest of the plaintiff, grant of temporary injunction is proper.61
Where the plaintiff appellant had prima facie established his willingness to perform the
contract and was willing to deposit the money as per the terms of the contract and the
fact that the agreement is duly registered, as also prima facie time was not the essence
of the contract it was held that trial court was erroneous in refusing to grant temporary
injunction and therefore High Court in order to protect the interest of the appellant in
suit property and to avoid multiplicity of proceedings granted temporary injunction.62
In an application for grant of temporary injunction, to restrain the licensee from

entering the suit premises, the licensee could not establish that he was a tenant and
not a licensee with respect to suit property. It was established that the licensee was
never placed in possession of the premises, he was only permitted to use the
machinery and the physical possession of the premises was retained by the licensor.
Thus, it was held that a very strong prima facie case having being made out by the
plaintiff / respondent the appellate court was justified in injuncting the defendant/
licensee from causing any interference with the peaceful possession of the
premises.63
Proof of possession.—
Sale Deed was executed wherein one of the recitals stated that possession had been
delivered to plaintiff purchaser on the date of sale. From the same it can be construed
that the plaintiff has made out prima facie case of lawful possession and therefore
grant of temporary injunction in his favour is proper.64
Grant of status quo.—
A partnership firm was constituted between the plaintiff and the defendant. The suit
property was purchased by the partnership firm for development. However, the
defendant entered into various joint agreements with other defendants without the
knowledge of the plaintiff for the development of suit land. Therefore, the plaintiff had
made out a prima facie case and the balance of convenience is also in favour of
plaintiff. Thus, defendant directed to maintain status quo.65
In a suit for declaration of title both the plaintiff and defendant claimed that the shop
was in their possession. The bailiff report disclosed that the shop was opened with the
keys given by the defendant and the municipal license of the shop was also in the
name of the defendant. The plaintiff failed to show that he has a prima facie
possession over the shop. Pending the trial and recording of evidence, it was held that
the order directing the bailiff to restore possession of shop in favour of plaintiff was
not proper and the parties were directed to maintain status quo66
Refusal to grant injunction.—
No injunction could be granted where question of balance of convenience and in

convenience and that of irreparable loss and injury of plaintiff had also not been
established in their favour.67
The plaintiffs could not make out a prima facie case on their own pleadings and the
contents of document relied upon. The relief of injunction was rightly refused.68
Order rejecting application for interim injunction was not liable to be interfered with
where even after the amendment of plaint, plaintiff failed to show the existence of a
prima facie case or a balance of convenience in their favour.69
Election Tribunal has no power to pass injunction/stay orders.—
In the instant case the bank guarantees were clearly unconditional. The veracity and
the truthfulness of defence of the respondent cannot be considered at this interim
stage So also there are no allegations of the commission of a flagrant fraud for
engineering the invocation of bank guarantees executed by State Bank of Mysore. So
also no submissions were advanced to establish that the invocation of the bank
guarantee would lead to an irreparable injury or some irretrievable injustice. Therefore,
it was held that courts below were not justified in injuncting the invocation of the bank
guarantees.70
Infringement of trademark.—
The plaintiff is the prior user of the trademark "Aachi" and running the business of
spices and the defendant using the trademark Aachi Cargo Channels Pvt. Ltd carries
on the business of rendering cargo services. Both the plaintiff and the defendant are
operating in different fields. No similarity in goods manufactured and service rendered.
No likelihood of causing any confusion in the minds of public. No parameter provided
in section 29 (4) of the Trademarks Act, 1999 was satisfied. As infringement was not
established, injunction was not granted by the court.71
Execution of fraudulently obtained decree—restraining of.—
Where the owner of the land obtained a decree fraudulently in collusion with the
conservator of forest, the State is entitled to injunction restraining the execution of the
decree obtained fraudulently.72
Injunctions restraining use of plaintiff's company name.—

It was held that if a name has acquired a distinctiveness and a secondary meaning in
the business or trade circles and the people have come to associate this name with
certain standard of goods and services, then any attempt by another person to use the
name in business and trade circles is likely to and in probability will create an
impression of a connection with the plaintiffs group of companies. Then the plaintiff is
entitled to an injunction restraining the defendant company which is yet to commence
its business from utilising the name of plaintiffs company for the purpose of its trade
and business.73
Subsequent event during suit pendency.—
In view of subsequent events taking place during pendency of the suit relating to
dispute of office bearers of union election, interim injunction was allowed to vocate.74
When the defendant was in possession of the premises on behalf of the company and
not on his own right, the plaintiff company is entitled to the grant of temporary
injunction.75
Interim injunction pending suit.—
In a suit for declaration of title simpliciter, the Court has power under these rules or
even in section 151 to grant an interim injunction pending suit. Where the appellant
seeks to protect his possession, if he is otherwise entitled according to law, necessarily
the Court has to consider whether protection is to be given to him pending the suit.
Merely because there is no dispute as regards the corporeal right to the property, it
does not necessarily follow that he is not entitled to avail the remedy under this
provision. Even otherwise also, it is settled law that under section 151 Code of Civil
Procedure the Court has got inherent power to protect the rights of the parties pending
the suit. Application under rules 1 and 2 is maintainable.76
The dismissal of suit on the ground that it has become infructuous cannot be refused
on ground that interim injunction granted in the suit would be vacated. Interim order is
in aid of final order and vice versa77
Injunction order, validity of.—
In an agreement for the sale of property, appellant proved that the respondent/owner
was trying to sell property to the third party. Grant of status quo by trial court, subject to
the condition of appellant's depositing balance amount of consideration on the basis of
said plea was held to be valid.78
Injunction order was liable to be set aside where order was passed without taking into
consideration several transferees who were to be adversely affected.79
Where there was no cause of action, interim order of injunction was not
maintainable.80
Where plaintiffs are ready to take steps for effecting valid sale deed in respect of the
suit premises, the court refusing to grant order of injunction would not be proper.81
Temporary injunction, not granted.—
In a bank guarantee case, an injunction cannot be granted where fraud or irretrievable

injury is not proved. A party seeking injunction from encashing of bank guarantee by
the suppliers has to show prima facie case of established fraud and irretrievable injury
i.e., where the plaintiff has no adequate remedy at law, and the allegations of
irreparable harm are not speculative but genuine and immediate, and the plaintiff will
suffer irreparable harm if the requested relief is not granted.82
The grant of unconditional order for temporary injunction in favour of new contractor,
ignoring huge investments made by the old contractor to operate mine under existing
agreement, would not be proper.83
No temporary injunction in a review petition.—
A temporary injunction restraining execution of eviction decree if refused by the trial

Court and the High Court, then it cannot be granted in a review petition.84
Where temporary injunction was granted under MRTP Act, 1969 against the display of
"Suraksha Chakra" in advertisement of a tooth-paste producing company whereas there
was no allegation that it was misleading or unfair trade practice. Such "Suraksha
Chakra" was displayed in advertisement for about 13 years and the complaint was only
a counter against the earlier application against the complainant. The order of
temporary injunction was held bad.85
Plaintiff is not entitled to injunction.—
Where the plaintiffs are not owners and they were not proceeding with the construction
in accordance with the building rules, they are not entitled to injunction against the
Municipal Corporation from demolishing the unauthorised construction.86
The present appeal was filed by the plaintiffs claiming temporary injunction to restrain
the electricity board from interfering with possession of suit property. In the earlier
round of litigation, the plaintiffs failed to establish a prima facie possession over the
suit land. Moreover, the construction of the electricity sub-station is fully constructed
on the suit property to provide electricity to the population over 1 lakh. Thus, balance of
convenience lies with the defendant electricity board. The plaintiff could be entitled to
compensation under section 67(3) of the Electricity Act, 2003, if they prove their title
and possession to the suit property. As the said sub-stations so constructed were not
likely to cause any hardships or prejudice to the plaintiffs, the temporary injunction was
not granted.87
Interim injunction, vacation of.—
It would be unjust if vacation of interim injunction based on an agreement is not acted

upon.88
Operation of injunction order.—

Where an injunction order is neither extended nor vacated after a particular date, it
shall not remain operative thereafter.89
Injunction suit—cause of action.—
If evidence shows that the plaintiff could not prove defendant's encroachment on suit
land then the suit will fail for want of cause of action and the plaintiff'shall not be
entitled to relief of injunction.90
A mandatory injunction, restraining one of riparian State (Karnataka) from raising dam
at Almatti to height of 524.256 meters height, was not granted in view of fact that there
was no infraction of decision of tribunal under which the allocation of water in river
Krishna was en bloc and not project-wise and no irreparable injury was caused to lower
riparian State of Andhra Pradesh.91
Where an order of interim injunction has been passed under rules 1 and 2, a writ
petition against it, is maintainable.92
The grant of injunction restraining Housing Board from making further allotment till
allottee's dispute regarding demand of higher price was finally decided, was not
proper.93
Injunction against dispossession.—
Where an injunction order was passed against dispossession in a suit for declaration
of sale deed as void and it continued for considerable length of time, recall thereof
would be improper.94
Remittance for fresh consideration.—
Where application by plaintiff for interim injunction restraining defendant from

interfering with possession of plaintiff and from taking forcible possession was
rejected on the ground of non-impleadment of three sons of the defendant.
Subsequently, an application by plaintiff, three sons of defendant were impleaded in the
suit. In view of changed circumstances, matter was remitted to trial court for fresh
consideration.95
Where interim mandatory injunction was granted at the time of admission of petition
directing decree holder to put judgment debtor in possession of suit property and
decree holder had taken possession in execution of decree. Order directing redelivery
of property was liable to be set aside.96
The power to grant mandatory injunction must be exercised, whether in favour of the
applicant or non-applicant, having regard to the scope of limited jurisdiction to be
exercised by the District judge. It is, therefore, difficult to comprehend that it has an
implied power to grant mandatory injunction and that too suo motu97
Grant of mandatory interim relief requires the highest degree of satisfaction of the
court - much higher than a case involving grant of prohibitory injunction. It is, indeed, a
rare power, the governing principles whereof would hardly require a reiteration in as
much as the same which had been evolved by the Supreme Court in Dorab Cawasji
Warden, (1990) 2 SCC 117 , has come to be firmly embedded in our jurisprudence.98
Ex parte, Mandatory injunction.—
At all events, the High Court will desist from issuing from ex parte mandatory
injunction. Such interim orders are issued in exceptional cases only where failure to do
so will load to an irreversible or irretrievable situation.99
Entitlement to ad-interim injunction.—
Where appellants were prior user of the trade mark, prima facie case was in his favour.
Besides balance of convenience was also in his favour as if respondents were
permitted to use that trade mark, it would result in passing off by the respondents of
their services as services of appellants injuring right of property of the appellant.
Hence, appellant was entitled to ad interim injunction restraining respondents from

using his trade mark.100
Court is empowered to grant ad interim ex parte order of temporary injunction.

—
Relief by way of temporary injunction particularly ad interim ex-parte injunction is

granted to mitigate the risk of injury that the plaintiff may suffer during the period of
uncertainty as pleaded in the plaint is resolved. The object of granting of ex parte ad
interim injunction is to protect the right of the plaintiff or prevent breach of violation of
his rights if any for which the plaintiff cannot be suitably compensated thereof. The
need of such protection has to be weighed against the corresponding claim, the
defendant may raise and thereby, the interest of the defendant would be also protected.
Thus, the court must weigh one need against another. It is this precise exercise that
trial court ought to carry out while exercising its discretionary power for granting of ex
parte ad interim order.101
Is writ petition maintainable against order refusing interim injunction.—
Writ Petition under Article 227 against order passed in civil court refusing to grant
interim injunction under O XXXIX, rules 1, 2, is maintainable.102
1 Rule 1 renumbered as sub-rule (1) of that rule by Act 46 of 1999, section 30. Section 30 of the
Act 46 of 1999, by which rule 1 was so re-numbered, has been omitted by Act 22 of 2002,
section 16 (w.e.f. 1-7-2002).
2 Subs. by Act 104 of 1976, for the word "defraud", section 86 (w.e.f. 1-2-1977).
5 Order XXXIX, rule. 1 so renumbered as sub-rule (1) and sub-rule (2) inserted by Code of Civil
Procedure (Amendment) Act, 1999 (46 of 1999), has been omitted by Code of Civil Procedure
(Amendment) Act, 2002 (22 of 2002) (w.e.f. 1-7-2002) vide Notfn. S.O. 604(E), dt. 6-6-2002. Prior
to its omission as inserted by Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) it
stood as under:
"(2) The Court shall, while granting a temporary injunction to restrain such act or to make such
other order for the purposes of staying and preventing the wasting, damaging, alienation, sale,
removal or disposition of property or dispossession of the plaintiff, or otherwise causing injury
to the plaintiff in relation to any property under disposition in the suit under sub-rule (1), direct
the plaintiff to give security or otherwise as the Court thinks fit."
6 Sunil Kakrama v Saltee Infrastructure Ltd, AIR 2009 Cal 260 : 2009 (3) Cal HN 417 (421-22)
(DB).
7 ESPN Stars Sports v Global Broadcast News Ltd, 2008 (36) PTC 492 .
8 Ryan vPN Juneja & Sons, 2009 (163) DLT 144 .
9 Modi Entertainment Network v WSG Cricket, AIR 2003 SC 1177 (1182) : (2003) 4 SCC 341 .
10 Shakunthalamma v Kanthamma, AIR 2015 Kar 13 (Full Bench).
11 Kishore Kr Khattau v Praveen Kr Singh, AIR 2006 SC 1474 (1476).
12 Municipal Corpn of Delhi v Suresh Chandra, AIR 1976 SC 2621 : (1976) 4 SCC 719 .
13 ONGC v Assocn. of NGC, Industries of Gujarat, AIR 1990 SC 1851 (1860) : 1990 Supp SCC
397 .
14 SD Anand v Shanti Devi, AIR 2005 SC 545 (546-547).
15 Kishor Singh Ratan Singh Jadeja v Maruti Corporation, (2009) 11 SCC 229 (238).
16 Amarjeet Singh v Devi Ratan, AIR 2010 SC 3676 (3681).
17 Kashi Math Sansthan v Srimad Sudhindra Tritha Swamy, AIR 2010 SC 296 (299) : (2010) 1
SCC 689 .
18 Govt of Goa v Jaisu Shipping Co, 2010 (6) Mah LJ 612 (622-625) (DB).
19 Neon Laboratories Ltd v Medical Technologies Ltd, (2016) 2 SCC 672 : 2016 (2) SCJ 260 :
(2015) 7 MLJ 618 : 2016 (1) AKR 20.
20 Mandali Ranganna v TRamchandra, AIR 2008 SC 2291 (2295).
21 Verson Trading Co v Sanjida Begum, 2009 (3) Cal HN 655 (DB).
22 Mandali Ranganna v TRamchandra, (2008) 11 SCC 1 (9-10).
23 Midnight Merchants v Julien E Trust, 2009 (4) Cal HN 720 (733) (DB); see also Unity Reality &
Developers Ltd v Amit Kr Mitra, 2010 (1) Cal LJ 229 (DB); Calcutta Swimming Club v Lalit Singh,
2009 (1) Cal LJ 692 (DB); Sanghati Pai v Prakash Adhuryya, 2009 (2) Cal LJ 153 (DB).
24 Poonam Kejriwal v Bhagwandas Auto Finance Ltd, 2009 (2) Cal LJ 301 (308) (DB) : 2009 (3)
Cal HN 195.
25 Shamrao Ganpat Chintamani v KL Gorde, 2008 AIHC 1798 (1801) (Bom); see also CS
Chandramathy v Devakey Amma, 2011 AIR CC 15 (Ker) (defendants raised plea of adverse
possession).
26 GTZ (India Pvt Ltd) v Power Electronic Engineers, 2009 (4) Cal HN 415 (418) (DB); see also
Shamili Das v Swadesh Ghosh, 2009 (4) Cal HN 15 (DB).
27 UOI v Era Education Trust, AIR 2000 SC 1573 : (2000) 5 SCC 57 : (2000) 2 SLR 628 ; see also
Morgan Stanley Mutual Fund v Kartick Das, (1994) 4 SCC 225 : (1994) 81 Com Cas 318 : (1994)
14 CLA 161 .
28 Dorab Cawasji Warden v Coomi Sorab Warden, AIR 1990 SC 867 (873) : (1990) 2 SCC 117 .
29 Jain Exports Pvt Ltd v UOI, AIR 1996 SC 2739 (2741) : (1996) 5 SCC 619 .
30 Delhi Development Authority v Skipper Construction Co Pvt Ltd, AIR 1996 SC 2005 (2018) :
(1996) 4 SCC 622 .
31 Gujarat Bottling Co Ltd v Coca Cola Co, AIR 1995 SC 2372 (2389).
32 State Trading Corpn of India v Joinsons Clothing Corpn, AIR 1994 SC 2778 (2783) : (1994) 6
SCC 597 .
33 Agricultural Produce Market Committee v Girdharbhai Ramjibhai Chhaniyara, AIR 1997 SC
2674 : (1997) 5 SCC 468 .
34 Dalpat Kumar v Prahlad Singh, AIR 1993 SC 276 (277, 278) : (1992) 1 SCC 719 .
35 Anand Associates v Nagpur Improvement Trust, AIR 2000 SC 3350 (3351) : 2000 AIR SCW 33.
36 Saharanpur Cane Development Union v Lord K Sugar Mills, AIR 1973 SC 1451 (1455) : (1973)
3 SCC 719 .
37 Neon Laboratories Ltd v Medical Technologies Ltd, (2016) 2 SCC 672 : 2015 (10) SCALE 505 :
2016 (2) SCJ 260 .
38 Odyssey Communications Pvt Ltd v Lokvidayan Sanghatana, AIR 1988 SC 1642 (1645) :
(1988) 3 SCC 410 .
39 United Commercial Bank v Bank oflndia, AIR 1981 SC 1426 (1438) : (1981) 2 SCC 766 .
40 Terene Traders v Ramesh Chandra J & Co, AIR 1987 SC 1492 .
41 Centax (India) Ltd v Vimmar Impex, AIR 1986 SC 1924 (1927).
42 Varanasi S Vishwaviddyalaya v Raj Kishore, AIR 1977 SC 615 (619).
43 Magna Publishing Co Ltd v Shilpa S Shetty, AIR 2008 SC 681 .
44 Shah Babulal v Jayaben D Kania, AIR 1981 SC 1786 (1813, 1816, 1818) : (1981) 4 SCC 8 .
45 Reliance Petrochemical Ltd v Proprietor's, Indian Express Newspapers, Bombay Pvt Ltd, AIR
1989 SC 190 (203) : (1989) 4 SCC 592 .
46 Cotton Corpn of India v United Industrial Bank, AIR 1983 SC 1272 (1281) : (1983) 4 SCC 625 .
47 A Venkatasubbiah Naidu v S Chellappan, AIR 2000 SC 3032 (3035) : (2000) 7 SCC 695 .
48 Manoharlal v Seth Hiralal, AIR 1962 SC 527 : 1962 Supp (1) SCR 450 : 1963 ALJ 169 .
49 Manoharlal v Seth Hiralal, AIR 1962 SC 527 : 1962 Supp (1) SCR 450 : 1963 ALJ 169 .
50 BALCO Employees Union v UOI, AIR 2002 SC 350 (353) : (2002) 2 SCC 333 : (2002) 108 Com
Cas 193 .
51 Kalabharti Advertising v Hemant Vimalnath Narichania, AIR 2010 SC 3745 (3750).
52 Sree Jain Swetambar Terapanthi v Phundan Singh, AIR 1999 SC 2322 (2324) : (1999) 2 SCC
377 .
53 Karjan Jalasay Yojna ASAS Samiti v State of Gujarat, AIR 1987 SC 532 : 1986 Supp SCC 350 .
54 MC Mehta v UOI, AIR 1988 SC 1115 (1126) : (1988) 1 SCC 471 : 1988 SCC (Cri) 141 .
55 Syndicate Bank v Vijai Kumar, AIR 1992 SC 1066 : (1992) 2 SCC 330 .
56 Satyabrata Biswas v Kalyan Kumar Kisku, AIR 1994 SC 1837 (1843) : (1994) 2 SCC 266 .
57 Skyline Education Institute Pvt Ltd v SL Vaswani, AIR 2010 SC 3221 (3228) : (2010) 2 SCC 142
.
58 Shelke Beverages Pvt Ltd v Rasiklal, MDhariwal, 2010 (4) Mah LJ 282 (293) (DB).
59 Gangubai B Chaudhary v Sitaram B Sukhtankar, AIR 1983 SC 742 : (1983) 4 SCC 31 .
60 N Umapathi v BV Muniyappa, AIR 1997 SC 2467 : (1997) 9 SCC 247 .
61 Bina Murlidhar Hemdev v Kanhiayalal Lokram Hemdev, AIR 1999 SC 2171 (2177, 2179) :
(1999) 5 SCC 222 .
62 Jugal Kishor Garg v Shri Anand Shrivastava, AIR 2013 Raj 56 .
63 Rajesh Gupta v Urvashi Marwaha, AIR 2012 MP 137 .
64 ANNagarajaiah vB Aravind, AIR 2014 Kar 140 .
65 Valji Shamji Chheda v Bhuderbhai Bajidas Patel, AIR 2013 Bom 1 .
66 Rajesh Kumar Agarwal v Abdul Muquit, AIR 2014 Meg 62 .
67 Calcutta Swimming Club v Lalit Singh, 2010 AIHC (NOC) 112 (Cal); FMA No 1903 of 2006, Dt
18 February 2009 (DB).
68 Shailaja v Nilkanth, 2010 (4) Mah LJ 160 (172-173) (DB).
69 Ajay Mohan vHNRai, (2008) 2 SCC 507 .
70 Adani Agri Fresh Ltd v Mahaboob Sharif, AIR 2016 SC 92 .
71 AD Padmasingh Isaac v Aachi Cargo Channels Pvt Ltd, Chennai, AIR 2014 Mad 2 .
72 State of MP v Brijesh Kumar Awasthi, AIR 1997 SC 2104 : (1997) 4 SCC 472 .
73 Mahendra & Mahendra Paper Mills Ltd v Mahindra & Mahindra Ltd, AIR 2002 SC 117 (125) :
(2002) 2 SCC 147 .
74 JMBiswas v NKBhattacharjee, AIR 2002 SC 1649 : (2002) 4 SCC 68 : (2002) 2 LLN 372 .
75 Southern Roadways Ltd v SMKrishnan, AIR 1990 SC 673 (678).
76 Rajnibai v Kamla Devi, AIR 1996 SC 1946 : (1996) 2 SCC 225 .
77 Shipping Corpn of India Ltd v Machando Brothers, AIR 2004 SC 2093 (2099).
78 N Srinivasa v Kattukaran Machine Tools Ltd, AIR 2009 SC 2217 .
79 Kishor Singh R Jadeja v Maruti Corpn, AIR 2009 SC 2882 .
80 Sakura Commr Pvt Ltd v Konica Traders Pvt Ltd, 2009 (4) Cal HN 199 (202-204) (DB).
81 Gopal Kr Bhalotia v Anirudh Trade and Agencies Pvt Ltd, (2010) 3 Cal LT 227 (230) (DB).
82 Svenska Handelsbanken v Indian Charge Chrome, AIR 1994 SC 626 (647) : (1994) 1 SCC 502 :
(1994) 79 Com Cas 589 : (1994) 1 An LT 37 (SC).
83 Hardesh Ores Pvt Ltd v Timblo Minerals Pvt Ltd, AIR 2004 SC 1884 .
84 Bate Krishna Domani v Kailash Chandra Srivastava, AIR 1995 SC 453 : 1995 Supp (1) SCC 477
.
85 Colgate Palmolive (India) Ltd v Hindustan, Lever Ltd, AIR 1999 SC 3105 : (1999) 7 SCC 1 .
86 Faridabad Complex Administration v Yadu, AIR 1997 SC 1985 : (1997) 3 SCC 491 .
87 State of Jharkhand v Surendra Kumar Srivastava, AIR 2019 SC 231 : 2019 (1) SCALE 140 :
2019 (1) PLJR 301 .
88 MB Enterprises v SRK Estates Pvt Ltd, 2009 (1) ALT 111 (113) (DB).
89 Arjan Singh v Punit Ahluwalia, (2008) 8 SCC 348 (355, 357).
90 KSeetharam vBUPapamma, AIR 2001 SC 2182 (2184) : (2001) 4 SCC 322 .
91 State of Andhra Pradesh v State of Karnataka, AIR 2001 SC 1560 . (1616, 1619).
92 Surya Dev Rai v Ram Chander Rai, AIR 2003 SC 3044 (3057) : (2003) 6 SCC 675 : (2003) 3 KLT
490 .
93 MP Housing Board v AKKhiwani, AIR 2005 SC 1863 (1865, 1866).
94 Ravi Prakash Agrawal v Rajesh Prasad Agrawal, AIR 2009 SC 365 .
95 Rabindra Kr Shaw LDl by LRs v Manick Lal Shaw, AIR 2008 SC 646 .
96 Inderjeet v Kulbhushan Jain, AIR 2009 SC 3167 .
97 Rikhabsao Nathurao v Copn of City of Nagpur, (2009) 1 SCC 240 (251).
98 Mohd Mehtab Khan v Khushnuma Ibrahim Khan, AIR 2013 SC 1099 .
99 State Bank of Patiala v Vincsh Kr Bhasin, AIR 2010 SC 1542 .
100 ACL Education Centre Pvt Ltd v Anglo American Centre for Languages, AIR 2009 (NOC) 1142
(DB) : 2009 (2) All LJ 339.
101 Madhu Product, Bangalore v Sundaram Files, AIR 2012 Kar 68 .
102 State of Jharkhand v Surendra Kumar Srivastava, AIR 2019 SC 231 2019 (1) SCALE 140 :
2019 (1) PLJR 301 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Injunction to restrain
repetition or continuance of breach
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 2.
Injunction to restrain repetition or continuance of breach
(1) In any suit for restraining the defendant from committing a breach of contract
or other injury of any kind, whether compensation is claimed in the suit or not,
the plaintiff may, at any time after the commencement of the suit, and either
before or after judgment, apply to the Court for a temporary injunction to
restrain the defendant from committing the breach of contract or injury
complained of, or any breach of contract or injury of a like kind arising out of
the same contract or relating to the same property or right.
(2) The Court may by order grant such injunction, on such terms as to the duration
of the injunction, keeping an account, giving security, or otherwise, as the
Court thinks fit.
103[* * * ]
STATE AMENDMENTS
1984, Section 8(a), dated 14-8-1984.
In its application to the State of Madhya Pradesh, in Order XXXIX, in rule 2, in sub-rule
(2), insert the following proviso:—
"Provided that no such injunction shall be granted—
(a) where no perpetual injunction could be granted in view of the provisions of Section
38 and Section 41 of the Specific Relief Act, 1963 (47 of 1963); or
(b) to stay the operation of an order for transfer, suspension, reduction in rank,
compulsory retirement, dismissal, removal or otherwise termination of service of, or
taking charge from any person appointed to public service and post in connection with
the affairs of the State including any employee of any Company or Corporation owned
or controlled by the State Government; or
(c) to stay, any disciplinary proceeding pending or intended or, the effect of any adverse
entry against any person appointed to public service and post in connection with the
affairs of the State including any employee of the Company owned or controlled by the
State Government; or
(d) to restrain any election; or
(e) to restrain any auction intended to be made or, to restrain the effect of any auction
made by the Government; or to stay the proceedings for the recovery of any dues
recoverable as land revenue unless adequate security is furnished;
and any order for injunction granted in contravention of these provisions shall be void."
Section 13(a), dated 1-1-1977.
In its application to the State of Uttar Pradesh, in rule 2, sub-rule 2, add the following
proviso, namely,—
"Provided that no such injunction shall be granted—
(a) where no perpetual injunction could be granted in view of the provisions of

Section 38 and Section 41 of the Specific Relief Act, 1963, (47 of 1963) or
(b) to stay the operation of an order for transfer, suspension, reduction in rank,
compulsory retirement, dismissal, removal or otherwise termination of service
of, or taking charge from, any employee including any employee of the
Government, or
(c) to stay any disciplinary proceeding pending or intended or, the effect of any
adverse entry, against any employee of the Government, or
(d) [Omitted]104
(e) to restrain any election, or
(f) to restrain, any auction intended to be made or, the effect of any auction made,
by the Government [unless adequate security is furnished,] or
(g) to stay the proceedings for the recovery of any dues recoverable as land revenue
unless adequate security is furnished, or
(h) in any matter where a reference can be made to the Chancellor of a University
under any enactment for the time being in force;
and any order for injunction granted in contravention of these provisions shall be
void."— U.P.Act 57 of 1976, Section 13 (w.e.f. 1-1-1977). 105Inserted w.e.f. 2-10-1981
(Vide Notfn dt 3-2-1981).
COMMENT.—
Rules 2 of this order deals with the grant of injunctions in a particular class of cases
not covered by the provisions of rule 1 i.e., cases of apprehended breach of contract or
other injury of any kind. Thus, where there is no such apprehended breach of contract
or other injury of any kind this rule will not apply. Another condition for the application
of this rule is that the suit itself must be one for injunction.106
Under this rule also, the Court must be fully satisfied that the plaintiff has a prima facie
case for the issue of an injunction. Where a claim for interim injunction was based on
the ground that claimant was holding property as member of joint family but no
evidence was adduced prima facie to show that the property was owned by joint family,
the interim injunction was refused.107
No injunction can be granted to restrain the breach or termination of a contract of

employment in view of section 41 (e) of Specific Relief Act, 1963. It has been held by
the Supreme Court that an employee of a public institution who has been wrongfully
dismissed from service is not entitled to reinstatement on the basis that the order of
dismissal is null and void. His only remedy is to claim damages.108
In an injunction against Housing Board which acquired land for public purpose, the suit
for injunction was filed by the landlord of small part of the acquired land. The land
acquisition officer took possession of whole land and delivered it to the Housing Board.
The LAO (Land Acquisition Officer) was not impleaded as party defendant to suit. The
landlord cannot be said to be in possession of the land. In such situation an injunction
cannot be issued against Housing Board in whom land stood vested.109
A Court cannot hold mini trial at stage of grant of temporary injunction and examine
various aspects of case under which a sale certificate was issued.110
Where the appellant purchased properties from the respondents and thus acquiesced
the assertion of their rights, he cannot raise the plea that no injunction can be granted
against the true owner of the property. Hence, order granting injunction against the
appellant was proper.111
The Supreme Court has held that a party even if it is a State is bound to obey the order
of injunction passed against it. The reference to "defendant" in the sub-rule precludes
the argument against the State being exempt from the statute.112 The word "person" in
sub-rule (3) would include every one in the group "defendant, his agents, servants and
workmen".113
It has been held by the Allahabad High Court that attachment of property can be made
only in the case of continued disobedience by the party against whom the order was
made, and when there is a solitary act of disobedience, the remedy by way of
attachment of the property under the first part of clause (3) of the rule is uncalled for
but the proper remedy would be in order the detention of the person in civil prison
under the second part of clause (3).114
In a case of violation of terms of agreement by the plaintiff and consequent revocation

of agreement by the defendant, grant of interim injunction of mandatory nature shall
not be proper.115
This rule is inapplicable and its enforcement is unthinkable where the party does not
have a concluded right.116
An order granting or refusing to grant a temporary injunction is appealable.117 The

principle that an appeal does not lie against orders passed under the Court's inherent
power, does not apply to the case.118
Where an order of interim injunction has been passed under rules 1 and 2 of the Code,
a writ petition under Article 226 against it, is maintainable.119
103 Sub-rule (3) and (4) omitted by Code of Civil Procedure (Amendment) Act 104 of 1976,
section 86, (w.e.f. 1-2-1977).
104 Clause (d) in U.P. Amendment which read: "to affect the internal management or affairs of
any educational institution including a University, or a Society, or" omitted by U.P. Act 17 of 1991,
Section 8 (w.e.f. 15-1-1991)—1991 LLT-IV-63.
105 Inserted by U.P. Govt. Gaz., dated 3-10-1981, pt 2, p.107.
106 1970 Cur LJ 188 ; see also Amma Shah v Ismail Shah, AIR 1972 J&K 79 .
107 Shatis Kapoor v Subhash Kapoor, AIR 1972 Del 84 ; see also Fatta Juglal v Karta Budhu, AIR
1972 Punj 299 and Raj Kumari v Prem Lal Dhiman, AIR 1972 HP 67 .
108 UPSWCorpn Lucknow v CK Tyagi, AIR 1970 SC 1244 : (1970) 1 LLJ 32 .
109 Tamil Nadu Housing Board v Viswam, AIR 1996 SC 3377 (3380); Balwant Narain Bhagde v
MD Bhagwat, AIR 1975 SC 1767 relied on.
110 Anand Prasad Agarwalla v Tarkeshwar Prasad, AIR 2001 SC 2367 : (2001) 5 SCC 568 .
111 Bhoomireddy Chenna Reddy v Bhoospalli Pedda Verrappa, AIR 1997 SC 2311 : (1997) 10
SCC 673 .
112 State of Bihar v Sonabai Kumari, AIR 1961 SC 221 : (1961) 1 SCR 728 : (1961) BLJR 285 :
1961 Pat LR (SC) 26.
113 State of Bihar v Sonabai Kumari, AIR 1961 SC 221 : (1961) 1 SCR 728 : (1961) BLJR 285 :
1961 Pat LR (SC) 26.
114 Indu Bhusan v State of UP, AIR 1972 All 556 .
115 Hindustan Petroleum Corpn Ltd v Sri Sriman Narain, AIR 2002 SC 2598 : (2002) 5 SCC 760 .
116 Agriculture Produce Market Committee v GR Chhaniyara, AIR 1997 SC 2674 : (1997) 5 SCC
468 .
117 Zila Parishad v BR Sharma, AIR 1970 All 376 (FB).
118 Firm Ishrardas v Prakash Chand, AIR 1969 SC 938 : (1969) 1 SCC 664 .
119 Surya Dev Rai v Ram Chander Rai, AIR 2003 SC 3044 (3057) : (2003) 6 SCC 675 : (2003) 3
KLT 490 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2A. Consequence of
disobedience or breach of injunction
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
120[R. 2A.
Consequence of disobedience or breach of injunction
(1) In the case of disobedience of any injunction granted or other order made
under rule 1 or rule 2 or breach of any of the terms in which the injunction was
granted or the order made, of the Court granting the injunction or making the
order, or any Court to which the suit or proceeding is transferred, may order the
property of the person guilty of such disobedience or breach to be attached,
and may also order such person to be detained in the civil prison for a term not
exceeding three months, unless in the meantime the Court directs his release.
(2) No attachment made under this rule shall remain in force for more than one
year, at the end of which time, if the disobedience or breach continues, the
property attached may be sold and out of the proceeds, the Court may award
such compensation as it thinks fit to the injured party and shall pay the balance,
if any, to the party entitled thereto.]
Patna.—
The following amendment were made by Bihar Government Gazette, dated 29-8- 1979.
In sub-rule (1), insert the words and figures "or Section 151" after the word and figure
"Rule 2" and before the words "or any". (29-8-1979)
COMMENT.—
Sub-rules (3) and (4) of this rule 2 were omitted as a consequence of addition of a new
rule 2-A.
Scope.—
Rule 2-A was added to provide for the consequence of a breach of an injunction issued
under rule 1 which is, at present, not covered. The amendment is intended to seek the
application of the provision for breach, which are, at present, available under an
injunction granted under rule 2, to the said class of cases as well. There existed a
controversy as to whether under the existing provisions, a Court to which a suit is
transferred can punish disobedience of an injunction issued by the predecessor Court.
New rule 2-A provides that the transferee Court can also exercise this power.
Undoing wrong done by violation of order of injunction, cannot be said to be contrary to

provisions of O XXXIX, rule 2-A.121
In case of breach of injunction the Court may either order detention of disobeying party
or attach his property. It can resort both the steps or one of them alone need be chosen
depending upon the facts of each case.122
A violation of an interim or interlocutory order passed by a court of competent

jurisdiction ought to be viewed strictly if the rule of law is to be maintained. No litigant
can be permitted to defy or decline adherence to an interim or interlocutory order of a
court merely because he or she is of the opinion that order is incorrect— that has to be
judged by a superior court or by another court having jurisdiction to do so.123
Exercise of discretionary power by the court to grant an ex parte order of temporary

injunction is unfettered and to prevent the injustice being caused to either of the
parties, court is empowered to exercise its discretionary power.124
Where interim order is passed pending decision on the question of jurisdiction, it has to
be enforced. Even if the question of jurisdiction is decided against the plaintiff, the
Court has power to punish for the violation of interim order, provided the violation is
committed before the decision of the Court on the question of jurisdiction.125
Order XXXIX, rule 2A of the Code is not applicable for the enforcement of
decree/direction/order for the payment of money.126
Condition precedent for applicability.—
Condition precedent of applicability of O XXXIX, rule 2A is the existence of an order of

injunction, specific and explicit.127
"Disobedience", meaning of.—
The word "disobedience" appearing in O XXXIX, rule 2A is not identical with the word
'disobedience' appearing in Contempt of Courts Act For disobedience of injunction
order there is scope to file application under O XXXIX, rule 2A for remedial
measures.128
"Detention", meaning of.—
Words "detention in civil prison" occurring in O XXXIX, rule 2A is not to be considered in

isolation, but only with purpose of executing/implementing injunction order by
association with word "attachment of property and sale thereof. Maxim noscitur a
sociis is to be applied.129
Interpretation of word "may" and "may also".—
The use of word "may" and "may also" shows that Court has option either to order civil
imprisonment or attach property of person committing breach of injunction. It is not
incumbent upon Court to first resort to option of attachment.130
Creation of thirdparty right.—
In violation of Court's order of injunction, third party right is created.131
The power under O XXXIX, rule A of the Code should be exercised with great caution
and responsibility.132
Remedy against interim order.—
Where interim order passed by the subordinate court was modified by the High Court,
the contempt jurisdiction cannot be exercised by the High Court. The appropriate
remedy is to move the Court which passed the interim order.133
Willful and deliberate disobedience of interim orders passed by the Supreme Court can
never be said to be bona fide, honest or in good faith. A party committing breach of
such interim order cannot escape the consequences of disobedience and violation
thereof.134
In case of disobedience of injunction order, the Courts are competent enough to issue
appropriate direction to district administration/police authorities to ensure compliance
of its order.135
Obedience to decree/compliance of.—
Unless decree passed without jurisdiction is set aside by the Civil Court, it would be
binding on parties.136
121 Dipti Ranjan Sahu v Nalini Kr Sahoo, AIR 2011 Ori 76 (77).
122 Samee Khan v Bindu Khan, AIR 1998 SC 2765 : (1998) 7 SCC 59 .
123 Surya Vadanan v State of Tamil Nadu, AIR 2015 SC 2243 .
124 Madhu Product, Bangalore v Sundaram File, AIR 2012 Kar 68 (para 19).
125 Tayabbhai M Bagasarwalla v Hind Rubber Industries Pvt Ltd, AIR 1997 SC 1240 (1250) :
(1997) 2 Mah LJ 1 : (1997) 3 SCC 443 .
126 Food Corporation of India v Sukha Deo Prasad, AIR 2009 SC 2330 : (2009) 5 SCC 665 .
127 Heinz India Pvt Ltd v GSC Healthcare Ltd, AIR 2008 (NOC) 1228 (Cal-DB); GA No 2466 of
2006 and etc dt 31 January 2008 : 2009 : AIHC (NOC) 81 (Cal-DB).
128 Heinz India Pvt Ltd v GSC Health care Ltd, AIR 2008 (NOC) 1228 (Cal-DB); GA No 2466 of
2006 and etc Dt 31 January 2008.
129 Heinz India Pvt Ltd v GSC Healthcare Ltd, AIR 2008 (NOC) 1228 (Cal-DB); GA No 2466 of
2006 and etc Dt 31 January 2008.
130 Patni Dhanjibhai Saybabhai v Patni Mohan Bhai Saybabahai, AIR 2009 Guj 178 .
131 CElumalai v AGLIrudayaraj, AIR 2009 SC 2214 .
132 Food Corpn of India v Sukha Deo Prasad AIR 2009 SC 2330 : (2009) 5 SCC 665 .
133 Indira Devi v Prasannan, 2009 (1) KLT 961 (963) (DB).
134 Patel Rajnikant Dhulabhai v Patel Chandrakant Dhulabhai, AIR 2008 SC 3016 (3026); see also
Arjun Singh v Punit Ahluwalia, AIR 2008 SC 2718 .
135 Sree Ram v State of UP, AIR 2011 All 72 (73) (DB).
136 Vijay Kr Pandey v UOI, 2008 (9) ALJ 117 (All-DB) : 2008 AIHC 2645 (All) : AIR 2008 (NOC)
1943 (All).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Before granting
injunction, Court to direct notice to opposite party
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 3.
Before granting injunction, Court to direct notice to opposite party
The Court shall in all cases, except where it appears that the object of granting the
injunction would be defeated by the delay, before granting an injunction, direct notice
of the application for the same to be given to the opposite party:
137[Provided that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its opinion that
the object of granting the injunction would be defeated by delay, and require the
applicant—
(a) to deliver to the opposite party, or to send to him by registered post,

immediately after the order granting the injunction has been made, a copy of
the application for injunction together with—
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day
immediately following that day, an affidavit stating that the copies aforesaid
have been so delivered or sent.]
[Rules 3A and 3B inserted in AP.]
COMMENT.—
The proviso has been added to rule 3. It has now been provided that copies of
applications etc., should be sent or delivered to the defendant immediately after the
injunction has been granted and an affidavit should be filed by the applicant for
injunction stating that it has been so sent.
Under this rule the Court have the jurisdiction to grant an injunction ex parte. But it
should not be granted without strong and grave reasons. Thus, in other words, except
where the delay involved in the issue of notice will defeat the object of injunction,
notice should be ordered to the party before injunction is ordered against him.138
Where the court proposes to grant an injunction without giving notice of the application
to the opposite party being of the opinion that the object of granting injunction itself
would be defeated by delay, it shall record the reasons as to why an ex parte order of
injunction is being passed. It is for the said reason that it is mandatory for a court
granting an order of ex parte injunction to record reasons.
Granting of temporary injunction mechanically is not correct.139
138 Hyderabad Municipality v Mohd Nooruddin, AIR 1972 AP 46 .
139 RK Jain vPG Chacko, AIR 2013 Kar 142 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Court to dispose of
application for injunction within thirty days
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
140[R. 3A.
Court to dispose of application for injunction within thirty days
Where an injunction has been granted without giving notice to the opposite party, the
Court shall make an endeavour to finally dispose of the application within thirty days
from the date on which the injunction was granted; and where it is unable so to do, it
shall record its reasons for such inability.]

Gazette, dated 3-10-1981, Part II, Page 107 (w.e.f. 3-10-1981).
In Order XXXIX, omit rule 3A.
Andhra Pradesh.—Insert rules 3A and 3B:—
"3A. In any case where a temporary injunction is granted, the Court may, at the time of
the order, or at any time during the pendency of the injunction, call upon the applicant
to furnish security for the amount of damages that the Court may determine as payable
by the party obtaining the injunction to the other party as compensation for any injury
or loss that may be sustained by the latter by reason of the injunction.
3B. The Court shall, on application made after the disposal of the suit, determine the
amount payable under rule 3A and make an order awarding it to the applicant" (12-7-
1962).
COMMENT.—
Rule 3-A was added newly. It was felt that in order to avoid delay in the disposal of
suits, it should be made obligatory on the part of the Court to dispose of the application
for temporary injunction before the expiry of thirty days from the date on which the ad
interim injunction was granted, and where it was not practicable to do so, the Court
should be required to record its reasons for such inability. Newly added rule 3-A fulfills
aforesaid purpose.
Vacation of injunction.—Where application for vacation of injunction was not disposed

of within 30 days affected party can prefer appeal.141
Order ipso facto not illegal.—This provision does not provide that the period of the ex
parte interim injunction order should be restricted by the Court to 30 days at the first
instance. The Court should, however, pass final order on it within 30 days from the day
on which the injunction was granted. The order does not ipso facto become illegal
merely because it was not restricted to a period of 30 days or less.142
In order to grant or refuse injunction, the judicial officer or the judge must carefully
examine the entire pleadings and documents with utmost care and seriousness. In
case of grave urgency, if it becomes imperative to grant an ex parte ad interim
injunction, it should be granted for a specified period, such as for two weeks. In those
cases the plaintiff will have no inherent interest in delaying disposal of injunction
application after obtaining an ex parte ad interim injunction. The court must make
serious endeavour to ensure that even handed justice is given to both the parties.143
140 Ins. by Code of Civl Procedure (Amendment) Act 104 of 1976, section 86, (w.e.f. 1-2-1977).
141 Ratna Commercial Enterprises Ltd v Vasutech Ltd, AIR 2008 Del 99 (DB).
142 A Venkatasubbiah Naidu v S Chellappan, AIR 2000 SC 3032 (3036) : (2000) 7 SCC 695 .
143 Maria Margarida Sequeira Fernandes v Erasmo Jack De Sequeira, AIR 2012 SC 1727 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Order for injunction may
be discharged, varied or set aside
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 4.
Order for injunction may be discharged, varied or set aside
Any order for an injunction may be discharged or varied, or set aside by the Court, on
application made thereto by any party dissatisfied with such order:
144[ Provided that if in an application for temporary injunction or in any affidavit

supporting such application, a party has knowingly made a false or misleading
statement in relation to a material particular and the injunction was granted without
giving notice to the opposite party, the Court shall vacate the injunction unless, for
reasons to be recorded, it considers that it is not necessary so to do in the interests of
justice:
Provided further that where an order for injunction has been passed after giving to a
party an opportunity of being heard, the order shall not be discharged, varied or set
aside on the application of that party except where such discharge, variation or
setting aside has been necessitated by a change in the circumstances, or unless the
Court is satisfied that the order has caused undue hardship to that party.]
STATE AMENDMENTS
Madhya Pradesh.—The following amendments were made by Madhya Pradesh Act, 29

of 1984, Section 8(b), dated 14-8-1984.
Same as that of Uttar Pradesh.
Uttar Pradesh.—The following amendments were made by Uttar Pradesh Act, 57 of

1976, Section 13, dated 1-1-1977.
In its application to the State of Uttar Pradesh, in Order XXXIX, rule 4,—
(i) after the words "by the Court", insert the words "for reasons to be recorded,
either on its own motion or"; and
(ii) at the end, add the following proviso, namely,—
"Provided that if at any stage of the suit it appears to the Court that the party in whose
favour the order of injunction exists is dilating the proceeding or is otherwise abusing
the process of Court, it shall set aside the order for injunction."
COMMENT.—
The provisions were inserted to rule 4 newly. This amendment has been made to
provide for the vacation of an ex parte injunction on the ground that a false or
misleading statement had been made in the application for injunction. A further proviso
has been added to the effect that, where an injunction has been granted after giving to
a party an opportunity of being heard, the order for injunction shall not be discharged,
varied or set aside on the application of that party except where such discharge,
variation or cancellation is necessitated by the change in the circumstances or by
reason of the hardship caused by it.
Power of Court passing decree.—
The restriction placed under OXXXIX(4) not to execute decree outside is jurisdiction
does not dilute the provision under rules 3 and 48 of O XXI of the Code, giving such
power on compliance of conditions stipulated in those provisions.145
Interim injunction, Vacation of.—
Where earlier licence was nearing expiry, letter bar renewal of licence of fresh
licence/tendering was sent mere expression of self serving willingness could not
amount to renewal of licence. Order allowing application for vacating interim injunction
was not interfered with.146
There was no material placed by the appellant to show that the building could
withstand the second floor nor there was any sanction for construction of second floor.
Merely because there was some purported inconvenience indicated by the appellant,
could not have been a ground to permit construction of second floor. Status quo as was
directed earlier was directed to continues.147
The interest of justice may be undermined if an opportunity to controvert or respond to

vital facts is not given. Hence, vacation of order without affording an opportunity to the
plaintiff to controvert the allegations would be improper and vacation order liable to be
quashed.148
Interim injunction, modification of.—
Under the second proviso to rule 4 of O XXXIX of the Code the Court is empowered to
discharge, vary or set aside the order of injunction on an application made by any party,
dissatisfied with the order of injunction, provided there is a change in the
circumstances or the Court satisfies that the order caused undue hardship to that
party.149
Ex parte injunction was granted for beyond the period of thirty days. Application was
filed under O XXXIX, rule 4 to oppose the extension of temporary injunction. The
hearing of the case was repeatedly adjourned. The order of temporary injunction was
extended from time to time without recording any reasons for such extensions. It was
held that the same resulted in miscarriage of justice and order granting ex parte
temporary injunction was bad in law.150
146 RC Goel v IRCTC Ltd, 2008 AIHC (NOC) 566 (Del-DB) FAO (OS) No 205 of 2007, Dt 12 June
2007 : AIR 2008 (NOC) 349 (Del-DB).
147 Peddi Ashok Kumar v Peddi Sudarshan Rao, (2009) 14 SCC 194 (195).
148 Tenxc Wireless Inc v Andrew LIC, 2011 AIR CC 698 (700) (Del) : 176 (2011) DLT 627 (629)
(DB) : 2011 (45) PTC 1 .
149 Hotel Leela Venture Ltd v Yaseen Begum, 2009 (1) ALT 386 (396) (DB), S Rama Lingiah v
Kumool Dt GMSaugam, 1970 AP LJ 205 (DB), relied on.
150 RKJain vP G Chacko, AIR 2013 Kar 142 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Injunction to corporation
binding on its officers
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 5.
Injunction to corporation binding on its officers
An injunction directed to a corporation is binding not only on the corporation itself,

but also on all members and officers of the corporation whose personal action it
seeks to restrain.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Power to order interim
sale
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
Interlocutory Orders
R. 6.
Power to order interim sale
The Court may, on the application of any party to a suit, order the sale, by any person
named in such order, and in such manner and on such terms as it thinks fit, of any
movable property, being the subject-matter of such suit, or attached before judgment
in such suit, which is subject to speedy and natural decay, or which for any other just
and sufficient cause may be desirable to have sold at once.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Detention, preservation,
inspection, etc, of subject-matter of suit
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 7.
Detention, preservation, inspection, etc, of subject-matter of suit
(1) The Court may, on the application of any party to a suit, and on such terms as it
thinks fit—
(a) make an order for the detention, preservation or inspection of any

property which is the subject-matter of such suit, or as to which any
question may arise therein;
(b) for all or any of the purposes aforesaid authorise any person to enter
upon or into any land or building in the possession of any other party to
such suit; and
(c) for all or any of the purposes aforesaid authorise any samples to be
taken, or any observation to be made or experiment to be tried, which
may seem necessary or expedient for the purpose of obtaining full
information or evidence.
(2) The provisions as to execution of process shall apply, mutatis mutandis, to

persons authorised to enter under this rule.
Gazette, dated 11-4-1975, Part III (L.S.), Page 305; Haryana Government Gazette, dated
25-3-1975, Part III (L.S.), Page 190; Chandigarh Administration Gazette, dated 1-5-1975,
Part 1, Page 96.
For existing sub-rule (1)(a), substitute the following:—
"(a) make an order for detention, preservation or inspection of any relevant

document(s), or other evidence, or of any property which is the subject-matter of such
suit or as to which any question may arise therein."
COMMENT.—
The word property occurring in clause (a) sub-rule (1) of this rule is a term of wide
import and covers both movable or immovable and corporeal or incorporeal property. It
has been held by the Supreme Court that the account books which may be a piece of
evidence in a suit for money, are not "property' within the meaning of this rule.151
A commissioner appointed under this rule to merely make an inventory cannot unless
the property was attached be directed to take possession of the property or entrust it
to the person in possession on his undertaking to produce the same in Court whenever
required.152
Although O XXXIX of the Code of Civil Procedure does not have a provision similar to
the provision of O XXVI, rule 10 it does not mean that any inspection report under O
XXXIX, rule 7 of the Code of Civil Procedure would not amount to an evidence. The
inspection report can be used as 'evidence" by the trial court.153
151 Padam Sen v State of UP, AIR 1961 SC 218 : (1961) 1 SCR 884 : 1961 BLJR 103 : (1961) 1
CrLJ 322 .
152 Chiman Lal v Lila Chand, AIR 1972 Guj 26 .
153 Shafiq Ahmed v Naseer Ahmed, AIR 2014 Raj 116 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 8. Application for such
orders to be after notice
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R 8.
Application for such orders to be after notice
(1) An application by the plaintiff for an order under rule 6 or rule 7 may be made
154[* * *] at any time after institution of the suit.
(2) An application by the defendant for a like order may be made 155[* * *] at any
time after appearance.
156
[(3) Before making an order under rule 6 or rule 7 on an application made for
the purpose, the Court shall, except where it appears that the object of
making such order would be defeated by the delay, direct notice thereof to
be given to the opposite party.]
COMMENT.—
Sub-rule (3) was inserted newly to this rule 8. The newly added rule provides that the
Court shall direct notices of the application to be given to the opposite parties in all
cases except in a case where it appears to the Court that the object of making the
order would be defeated by the delay caused thereby.
It was held by the Delhi High Court that when the opposite party appears, notice must
be given before an order is passed.157
Reference may be made to Rajbir Kaur v S Chokesiri & Co, AIR 1988 SC 1845 : (1989) 1
SCC 19 wherein it has been held that "it is true that some High Courts had taken the
view that no order appointing a Local Commissioner under O XXVI C.P.C. could be
passed ex parte.158 But subsequent pronouncements of several High Courts, including
the Madras High Court, have inclined to the better view that there might be
circumstances which may necessitate and justify even an ex parte order appointing a
commissioner. But the requirements of rule 9 of O XXVI are construed to apply to a
stage after the making of an order appointing the Commissioner."
It was further held as under:
But it is possible to construe the power to appoint a Commissioner to inspect the extant
state and nature of structures as not confined to rule 9 of Order XXVI but referable to rule 7
of Order XXXIX Code of Civil Procedure where the Court can dispense with prior notice,
should it appear to the Court that the very object of making of appointment of a
Commissioner would be defeated and frustrate by the issue of prior notice. On the scope of
rule 8 of Order XXXIX as it stood even prior to its amendment, High Courts have held that an
ex parte order appointing a Commissioner, is permissible.
154 The words "after notice to the defendant" omitted by Code of Civil Procedure (Amendment)
Act 104 of 1976,section 86, (w.e.f. 1-2-1977).
155 The words "after notice to the plaintiff omitted by Code of Civil Procedure (Amendment)
Act 104 of 1976, section 86, (w.e.f. 1-2-1977).
156 Ins by Code of Civil Procdure (Amendment) Act 104 of 1976, section 86, (w.e.f. 1-2-1977).
157 JA Taban v Khairul Nisa, AIR 1970 Del 205 .
158 See Latchan Naidu v Ram Krishan Ranga Rao Bahadur, AIR 1939 Mad 548 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. When party may be put
in immediate possession of land the subject-matter of suit
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 9.
When party may be put in immediate possession of land the subject-matter of
suit
Where land paying revenue to Government, or a tenure liable to sale, is the subject-
matter of a suit, if the party in possession of such land or tenure neglects to pay the
Government revenue, or the rent due to the proprietor of the tenure, as the case may
be, and such land or tenure is consequently ordered to be sold, any other party to the
suit claiming to have an interest in such land or tenure may, upon payment of the
revenue or rent due previously to the sale (and with or without security at the
discretion of the Court), be put in immediate possession of the land or tenure;
and the Court in its decree may award against the defaulter the amount so paid, with
interest thereon at such rate as the Court thinks fit, or may charge the amount so
paid, with interest thereon at such rate as the Court orders, in any adjustment of
accounts which may be directed in the decree passed in the suit.
COMMENT.—
This rule is an exception to what has been described as the elementary rule of
procedure that the same individual even in different capacities cannot both be a
plaintiff and a defendant. An adjustment of accounts under this rule need not be
sought in a separate suit, even if the decree in the first suit is silent about it.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Deposit of money, etc.,
in Court
© 2020 LexisNexis
THE FIRST SCHEDULE

Injunctions
R. 10.
Deposit of money, etc., in Court
Where the subject-matter of a suit is money or some other thing capable of delivery,
and any party thereto admits that he holds such money or other thing as a trustee for
another party, or that it belongs or is due to another party, the Court may order the
same to be deposited in Court or delivered to such last-named party, with or without
security, subject to the further direction of the Court.
1983, Part 4, Ka, Page 422, dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra.,
Section 1, No. 28, Page 388, dated 1-4-1987.
In Order XXXIX, after the existing rule 10, add the following rule:—
11. Procedure on parties defying orders of Court, and committing breach of

undertaking to the Court.— (1) Where the Court orders any party to a suit or proceeding
to do or not to do a thing during the pendency of the suit or proceeding, or where any
party to a suit or proceeding gives any undertaking to the Court to do or to refrain from
doing a thing during the pendency of the suit or proceeding, and such party commits
any default in respect of or contravenes such order or commits a breach of such
undertaking, the Court may dismiss the suit or proceeding, if the default or
contravention or breach is committed by the plaintiff or the applicant, or strike out the
defences, if the default or contravention or breach is committed by the defendant or the
opponent.
(2) The Court may, on sufficient cause being shown and on such terms and conditions
as it may deem fit to impose restore the suit or proceeding or may hear the party in
defence, as the case may be, if the party that has been responsible for the default or
contravention or breach as aforesaid makes amends for the default or contravention or
breach to the satisfaction of the Court:
Provided that before passing any order under this sub-rule notice shall be given to the
parties likely to be affected by the order so passed.
COMMENT.—
The object of the provision under rule 10, O XXXIX of the Code is to take care of the
cases of violation or breach of Court order.159
159 Unistal System Pvt Ltd v Prodata Doctor Pvt Ltd, 2009 (112) DRJ 345 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Appointment of receivers
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XL Appointment of Receivers
R. 1.
Appointment of receivers
(1) Where it appears to the Court to be just and convenient, the Court may by order
—
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the

receiver; and
(d) confer upon the receiver all such powers, as to bringing and defending
suits and for the realisation, management, protection, preservation and
improvement of the property, the collection of the rents and profits
thereof, the application and disposal of such rents and profits, and the
execution of documents as the owner himself has, or such of those
powers as the Court thinks fit.
(2) Nothing in this rule shall authorise the Court to remove from the possession or
custody of property any person [A, KNT] whom any party to the suit has not a
present right so to remove.
[Sub-rule (2) amended in All and Karnataka.]
Allahabad.—In Order XL, in rule (1), in sub-rule (2), after the words "any person", insert a
comma and the words "not being a party to the suit". [Vide Notification No.
2875/35(a)-5(2), dated 10th July, 1943].
Karnataka.—Same as in Allahabad.
COMMENT.—
The rule authorises a Court to appoint a receiver whenever it appears to it to just and
convenient to do so. The matter is left to the discretion of the Court. Such discretion
must, however, be exercised not arbitrarily but judicially according to principles.1
When a receiver is appointed pending the suit or appeal, the prime objective is to
preserve the property by taking possession or otherwise and to keep an account of rent
and profits that may be realised by the receiver and to submit it before the court till the
lis is finally decided. Ordinarily the function of receivers who are appointed comes to an
end with the final decision of the case. However, even after final decision, court has
discretion to take further assistance of receiver as and when the need arises.2
A receiver can only be appointed when it is just and convenient and also when there is
a prima facie case in favour of plaintiff calling for taking of an urgent measure.3
A revision as per rule 1 of O XL of the Code is appointed only when it is found to be just
and convenient to do so. Appointment of a Receiver pending suit is a matter which is
within the discretionary jurisdiction of the Court. Ordinarily the Court would not appoint
a Receiver save and except on a prime facie finding that the plaintiff has an excellent
chance of success in the suit.4
In partition suits between blood relations though appointment of a Receiver is not

prohibited, the Court should be very cautious as such appointment may result in
prejudia to both parties. Instead, it is always presumable for the Court to put the parties
to conditions with requiring the deposit of some amount in the Court depending on the
facts and circumstances of the case.
Where a dissolution of the partnership is inevitable, and the partners are on bad terms,
the usual way of guarding their interests is by appointing a receiver and by ordering the
goodwill of the business and the stock-in-trade to be sold; the partners being at liberty
to bid at the sale.
The object and purpose of appointing receiver is to ensure that rights of parties are not
jeopardised and that injury to suit property is prevented, pending judicial determination
of rights of parties to suit.
The Principle contained in O IX, rule 1(2) is also applicable to writ proceedings.5
If before a suit is terminated, the relevant Court is moved and permission to sue or to
prosecute further is granted, then the requirement of law is fulfilled. Failure to secure
such leave till the end of the lis may prove fatal. The leave of Court appointing the
receiver must be obtained either prior to filing suit or during its pendency. The grant of
leave is rule, refusal is exception. This rule is merely to prevent contempt of Court.6
It was held that a question, of having recourse to civil Court for adjudication of disputes
envisaged to be resolved through arbitral process or getting orders from the civil Court
for appointment of receiver or prohibitory orders, without evincing any intention to have
recourse to arbitration in terms of the agreement, may not arise.7
Where the motion to appoint receiver has been withdrawn, the legality of an
appointment of receiver at instance of a person who is not party to suit, cannot be
decided.8
This rule does not require any application by a party for the appointment of a receiver.
The Court can appoint a receiver suo motu9 and also do so on the application of third
party who is interested in the preservation of the property. A High Court cannot
exercise the power to appoint receiver suo motu, particularly when none of the parties
asks for it.10
The plaintiff was in possession of property under an agreement. He filed a suit for
perpetual injunction restraining the defendants from interfering with their possession.
The defendant filed an application for appointment of receiver which was rejected and
it was held that the plaintiff who held possession under an agreement was expected to
act as custodia legis pending the suit as receiver on behalf of the Court.11
Where an advocate was appointed as a receiver to supervise the work of collection of

toll for use of the national Highway, it was not proper. The obvious impracticalities
involved in the appointment of an advocate-receiver to supervise such a stupendous
task of the nature in question seems to have been overlooked and escaped the
attention of the Court and no serious thought seems to have been bestowed upon the
materials brought to its notice.12
No hard and fast rule can be laid down for the Court to exercise power under this rule.
This power is dependent on the facts and circumstances of each case. A Court may
appoint a receiver not as a matter of course but as a matter of prudence having regard
to the justice of the situation.13
Receiver, appointment of, validity.—
An order appointing receiver would not be proper where no prayer was made therefore,
no application was filed and no reason was assigned in support of such appointment.
Even show cause notice was not issued to party. Also these was no prima facie finding
arrived at warranting appointment of receiver.14
An order appointing the receiver would be liable to be set aside where it was passed on
allegation of either damage or waste or misuse of suit property by the defendant and
there was no title or right of suit property in favour of the plaintiff.15
Position of a receiver.—
A receiver is an officer of the Court. He is also "a public servant" within the meaning of
section 2, clause (17) of the Code of Civil Procedure.16
Receiver entitled to possession even after term.—
He functions under his directions. The Court can direct a party to put the receiver in
possession and the receiver is entitled to possession even after expiry of the term.17
He is nothing more than the hand of the Court for the purpose of holding the property
of the litigants whenever it is necessary that it should be kept in the grasp of the Court
in order to preserve the subject-matter of the suit pendente lite.18 He is a representative
of the Court and not of any of the parties to the suit, though he holds the property for
the benefit of those ultimately found to be rightful owners.19 Thus, a receiver in
execution proceedings is not the agent of the judgment debtor and moneys realised by
the receiver do not become ipso facto the moneys belonging to the judgment-
creditor.20 The tenant who claims under one of the sharers who owns only a minor
portion, cannot object to the receiver taking possession.21
Absence of appellant on the day when receiver reached the place to take possession of
property cannot be a ground to vacate order of appointment of receiver. What weighed
with Court to appoint receiver cannot get dissolved by absence of appellant.22
If any loss arises from the fault of the receiver, such loss subject to the receiver's
liability for his fault, must be borne by the estate and not by the party at whose instance
the receiver was appointed.23
A receiver was directed by the Court to sell the suit property. The Receiver accepted
offer of a party with the consent of parties to suit. Then 38 families residing in the
hutment, constructed on the property in question, offered to Court to purchase at
higher price than that offered to the receiver. The contract between the party making
first offer and the receiver was, indeed, not a concluded contract. Held, in the interest of
social justice higher offer of hut-dwellers should be accepted.24
Appointment of administrator with receiver's power.—
Where there was a distinct possibility of the suit properties, being held to be properties
of the HUF, the Karta of the family in contravention of the Court's order sold some of
the properties, the Supreme Court ordered appointment of an administrator to assume
control over the suit properties in order to prevent it from being further dissipated. The
administrator shall have same powers and duties as a receiver.25
Where a receiver is appointed by the Court, the property does not get vest in the
receiver or in Court free from all encumbrances. The rights and obligations of third
party in respect of property under custodia legis remain unaffected. The receiver or the
Court appointing him cannot interfere with rights of Third Party. A receiver appointed by
Court in respect of a premises occupied by a tenant reported about some unauthorised
structure and running of a permit room. The High Court authorised the receiver to
demolish the unauthorised structure and directed the concerned authority not to renew
the permit for serving liquor. The Supreme Court set aside this order and directed the
receiver to bring appropriate legal action and file a suit for eviction under Rent Act.26
Duration of the office of receivership.—
There is nothing in O XL for the termination of the office of receivership.27 However, the
law in this regard has been laid down by the Supreme Court28 as follows:
(a) If a receiver is appointed in a suit until judgment, the appointment is brought to

an end by the judgment, in the action;
(b) If a receiver is appointed in a suit without his tenure being expressly defined, he
will continue to be receiver till he is discharged;
(c) Although after the final disposal of the suit as between the parties to the
litigation, the receiver's functions are terminated he would still be answerable to
the Court as its officer till he is finally discharged;
(d) The Court has ample power to continue the receiver even after the final decree if
the exigencies of the case so require.
An appeal lies from an order granting or refusing an application to appoint a receiver.29
Appointment of Receiver, when comes to end.—The probate was granted in favour of

sisters and an appeal was filed by brothers. An Administrators-cum-joint Receivers was
appointed pendente lite. Appeal was dismissed. The property would no more remain
custodia legis and joint. Receivers stood discharged and the property vested with
sisters. Thus, High Court had no jurisdiction to pass any order or subsequent
application filed by the parties in the matter.30
Where there was default in the payment of instalment of Rice Mill directed to be
handed over. When the defaulted payments were made on appeal before the Supreme
Court, the Supreme Court ordered handing over of possession of the Rice Mill by the
receiver to the appellant. The order of appointment of a receiver to take charge of the
Rice Mill was set aside on condition of payment of amount due by regular
instalments.31
Receiver, accountability of.—

The Receivers appointed by the Court are expected to submit periodical
accounts/reports to the Court with copies to the parties. If their assigned task is
completed, they should be discharged. They cannot continue as Receivers for decades,
without doing anything and holding on to the amounts entrusted to them in trust. When
any money belonging to the parties is entrusted to the Receiver, he should deal with it
as per the directions of the Court.32
1 Jalal Mohd v Kakka Mohd, AIR 1972 Mad 86 .

2 Sherali Khan Mohamed Manekia v The State of Maharashtra, AIR 2015 SC 1394 .
3 S Saleema Bi v S Pyari Begum, AIR 2000 SC 3513 : (2000) 9 SCC 560 .
4 Parmanand Patel v Sudha A Changule, AIR 2009 SC 1593 : (2009) 11 SCC 127 (938); see also
NKodandarama Reddy v Graphite India Karmikare Sangh, 2008 AIHC 1385 (1389) (Kar).
5 Naushad Ahmed v Nirmala Agarwal, 2008 (1) Cal HM 388 (398) (DB).
6 Everest Coal Co v State of Bihar, AIR 1977 SC 2304 (2306, 2307) : (1978) 1 SCC 12 : (1978) 1
SCR 571 .
7 Kalpana Kothari v Sudha Yadav, AIR 2002 SC 404 (409) : (2002) 1 SCC 203 : (2002) 1 ALT 30 .
8 Parasrampuria Synthetics Ltd v CEAT Financial Services Ltd, AIR 2000 SC 3407 .
9 Ravi Lakshmaiah v N Lakshmi, AIR 1971 AP 380 .
10 Mahendra HPatel v Ram Narain Singh, AIR 2000 SC 3569 (1) : (2000) 9 SCC 190 .
11 Sawai Bhawani Singh v Indian Hotels Company Ltd, AIR 1997 SC 2183 : (1997) 1 SCC 260 .
12 State of West Bengal v MR Mondal, AIR 2001 SC 3471 (3477) : (2001) 8 SCC 443 .
13 ICICI v Karnataka Ball Bearings Corpn. Ltd, AIR 1999 SC 3438 ; see also Rameshwar Singh
Bahadur v Hitendra Singh, AIR 1924 PC 202 (204), State Bank of India v Trade Aid Paper & Allied
Products, (India) Ltd, AIR 1995 Bom 268 (FB) Distinguishing.
14 Three Cheers Entertainments Pvt Ltd v CESC Ltd, AIR 2009 SC 735 (740).
15 Sheela Arora v Madan Mohan Bajaj, AIR 2009 (NOC) 333 (Bom) : 2008 (6) AIR Bom R 307
(DB) : Appeal No 1320 of 1999 dt 7 June 2007 : 2009 AIHC 564 (Bom).
16 Madhubhai v UOI, AIR 1962 SC 21 ; SH Motor Transport Co v RT Authority, AIR 1962 Mad 59
(FB).
17 Hiralal v Loonkaran, AIR 1962 SC 21 (27) : (1962) 1 SCR 868 .
18 AIR 1962 Mad 59 (FB).
19 Lakshmi Reddy v L. Lakshmi Reddy, AIR 1957 SC 314 : 1957 SCR 195 .
20 AIR 1962 Mad 59 (FB).
21 Subhash Chand Jain v Hari Singh, AIR 1987 SC 1148 : (1986) 4 SCC 479 .
22 Balbir Singh Chib v Sanjay Dave, AIR 2000 SC 3563 .
23 AIR 1962 Mad 59 (FB).
24 Sadhuram Bansal v Pulin Bihari Sarkar, AIR 1984 SC 1471 (1477, 1491) : (1984) 3 SCC 410 .
25 Jagat Singh v Sawai Bhawani Singh, AIR 1993 SC 1721 : 1993 Supp (2) SCC 313 .
26 Anthony CLeo v Nandlal Bal Krishnan, AIR 1997 SC 173 (182) : (1996) 11 SCC 376 .
27 Hiralal Patni v Loonkaran Sethiya, AIR 1962 SC 21 : (1962) 1 SCR 868 : (1961) 2 All 389 .
28 Hiralal Patni v Loonkaran Sethiya, AIR 1962 SC 21 : (1962) 1 SCR 868 : (1961) 2 All 389 .
30 Subhadra Rani Pal Chaudhary v Sheirly Weigal Nani, AIR 2005 SC 3011 (3017); see also Satish
Shriram Patil v Jagdish S Patil, 2005 AIHC 2711 (Bom).
31 Chanumolu Nirmala v Indira Devi, AIR 1994 SC 662 : 1995 Supp (4) SCC 531 .
32 Amol Kumar Ghosh v Basant Kr, (2010) 11 SCC 78 (83).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Remuneration
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Remuneration
The Court may by general or special order fix the amount to be paid as remuneration
for the services of the receiver.
COMMENT.—
The property custodia legis does not vest in the receiver. The privileges of a member of
a company cannot be exercised by the receiver whose name has not been entered into
the register of members. Mere appointment of a receiver in respect of certain share of
company without more cannot deprive the recorded holder of the shares, of the right to
vote.33
33 Balkrishna Gupta v Swadeshi Polytex, AIR 1985 SC 520 : (1985) 2 SCC 167 : 1985 Tax LR
2066 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Duties
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Duties
Every receiver so appointed shall—
(a) furnish such security (if any) as the Court thinks fit, duly to account for what he
shall receive in respect of the property;
(b) submit his accounts at such periods and in such form as the Court directs;
(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the property by his wilful default or
gross negligence.
[Clauses (a) & (b) substituted in AP, Karnataka, Kerala and Mad].

1967.
"3. Every receiver so appointed shall.—
(a) unless the Court otherwise orders, furnish security in the moveable property for
such amount as the Court thinks fit, duly to account for what he shall receive in
respect of the property of which he is appointed as receiver;
(b) submit his accounts at such periods and in such form as the Court may direct or
may be prescribed;
(c) pay the amount due from him as the Court directs; and
(d) be responsible for any loss occasioned to the property by his wilful default or
gross negligence."
Kerala (Notfn No B1-3312/58; 7-4-1959).— Same as in Madras. Substituting the word

"movable" by "immovable". (9-6-1959)
Madras (P Dis No 577 of 1944).—For clauses (a) and (b) substitute the following:—
"(a) unless the Court otherwise orders, furnish security in the movable property for such
amount as the Court thinks fit duly to account for what he shall receive in respect of the
property of which he is appointed a receiver.
(b) submit his accounts at such periods and in such form as may be prescribed."
COMMENT.—
A receiver executed a surety bond whereby he rendered himself retrospectively liable

for any loss caused by his default to mortgaged property from date of his taking
possession. The property was damaged by fire prior to execution of bond due to
receiver's default. The receiver was liable.34
34 Howrah Insurance Co v Sachindra MD Gupta, AIR 1975 SC 2051 : (1975) 2 SCC 523 : (1976) 1
SCR 356 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Enforcement of
receiver’s duties
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Enforcement of receiver's duties
Where a receiver—
(a) fails to submit his accounts at such periods and in such form as the Court
directs, or
(b) fails to pay the amount due from him as the Court directs, or
(c) occasions loss to the property by his wilful defaults or gross negligence,
the Court may direct his property to be attached and may sell such property,
and may apply the proceeds to make good any amount found to be due from
him or any loss occasioned by him, and shall pay the balance (if any) to the
receiver [AP, B, KNT, K, M]
[Rule substituted in AP, Bom, Karnataka, Kerala and Mad].
1983, Part 4, Ka, Page 422 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 389, dated 1-4-1987.
In Order XL, for the existing rule 4 and its marginal note, substitute the following as rule
4 and marginal note:—
"4. Enforcement of Receiver's duties.—(1)If a Receiver fails to submit his account at

such periods and in such form as the Court directs, the Court may order his property to
be attached until he duly submits his accounts in the form ordered.
(2) The Court may, at the instance of any party to any suit or proceeding in which a
Receiver has been appointed or of its own motion, at any time not beyond three years
from the date of his discharge by the Court, make an enquiry as to what amount, if any,
is due from the Receiver as shown by his accounts or otherwise, or whether any loss to
the property has been occasioned by his wilful default or gross negligence, and may
order the amount found due or the amount of the loss so occasioned to be paid by the
Receiver into Court or otherwise within a period to be fixed by the Court. All parties to
the suit or proceeding and the Receiver shall be made parties to any such enquiry.
Notice of the enquiry shall be given by registered post prepaid for acknowledgment to
the surety, if any, for the Receiver; but the costs of his appearance shall be borne by the
surety himself, unless the Court otherwise directs:
Provided that the Court may, where the account is disputed by the parties and is of a
complicated nature, or where it is alleged that loss has been occasioned to the
property by the wilful default or gross negligence of the Receiver, refer the parties to a
suit. In all such cases, the Court shall state in writing the reasons for the reference.
(3) If the Receiver fails to pay any amount which he has been ordered to pay under sub-
rule (2) of this rule, within the period fixed in the order, the Court may direct such
amount to be recovered either from the security (if any) furnished by him under rule 3,
or by attachment and sale of his property, or, if the property has been attached under
sub-rule (1) of this rule, by sale of the property so attached, and may apply the
proceeds of the sale to make good any amount found due from him or any loss
occasioned by him and shall pay the balance (if any) of the sale proceeds to the
Receiver."
"4. (1) If a Receiver fails to submit his accounts at such periods and in such forms as
the Court directs, the Court may order his property to be attached until he duly submits
his accounts in the form ordered.
Receiver has been appointed or of its own motion, at any time make an enquiry as to
what amount, if any, is due from the Receiver as shown by his accounts or otherwise, or
whether any loss to the property has been occasioned by his wilful default or gross
negligence, and may order the amount found due or the amount of the loss so
occasioned to be paid by the Receiver into Court or otherwise within a period to be
fixed by the Court. All parties to the suit or proceeding and the Receiver shall be made
parties to any such enquiry. Notice of the enquiry shall be given by registered post
prepaid for acknowledgement to the surety, if any, for the Receiver, but the cost of his
appearance shall be borne by the surety himself, unless the Court otherwise directs:
complicated nature or where it is alleged that loss has been occasioned to the property
by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all
such cases the Court shall state in writing its reasons for the reference.
rule (2) within the period fixed in the order, the Court may direct such amount to be
recovered either from the security, if any, furnished by the Receiver under rule 3 or by
attachment and sale of his property, or if his property has been attached under sub-rule
(1) of this rule, by sale of the property so attached, and may apply the proceeds of the
sale to make good any amount found due from him or any loss occasioned by him and
shall pay the balance, if any, of the sale proceeds to the Receiver.". (1-10-1983 and 1-4-
1987)
Kerala (Notfn No B1-3312/58; 7-4-1959).— Same as in Madras with the addition of the
following marginal note to the rule:— "Enforcement of receiver's duties ".
Madras (P Dis No 60 of 1933).—Substitute the following for rule 4:—
"4. (1) If a receiver fails to submit his account at such periods and in such form as the
Court directs, the Court may order his property to be attached until he duly submits his
accounts in the form ordered.
Receiver has been appointed or of its own motion, at any time [B] make an enquiry as
to what amount, if any, is due from the Receiver as shown by his accounts or otherwise,
or whether any loss to the property has been occasioned by his wilful default or gross
negligence, and may order the amount found due or the amount of the loss so
occasioned to be paid by the Receiver into Court or otherwise within a period to be
fixed by the Court. All parties to the suit or proceeding and the Receiver shall be made
parties to any such enquiry. Notice of the enquiry shall be given by registered post
prepaid for acknowledge [B] to the surety, if any, for the Receiver, but the cost of his
appearance shall be borne by the surety himself unless the Court otherwise directs:
complicated nature or where it is alleged that loss has been occasioned to the property
by the wilful default or gross negligence of the Receiver, refer the parties to a suit. In all
such cases the Court shall state in writing its reasons for the reference.
rule (2) of this rule within the period fixed in the order, the Court may direct such
amount to be recovered either from the security (if any) furnished by him under rule 3,
or by attachment and sale of his property, or, if his property has been attached under
sub-rule (1) of this rule, by sale of the property so attached, and may apply the
proceeds of the sale to make good any amount found due from him or any loss
occasioned by him and shall pay the balance (if any) of the sale proceeds to the
Receiver." (1-10-1983 and 1-4-1987)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. When Collector may be
appointed receiver
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
When Collector may be appointed receiver
Where the property is land paying revenue to the Government, or land of which the
revenue has been assigned or redeemed, and the Court considers that the interests of
those concerned will be promoted by the management of the Collector, the Court may,
with the consent of the Collector, appoint him to be receiver of such property.
[Rule 5 amended in Mad; rule 6 added in AP, Karnataka and Madras].
Madras.—The following amendments were made by Madras Gazette, dated 9-7-1968.

Substitute for rule 5 the following:—
"R. 5. Where the property is land paying revenue to the Government, or land of which
revenue has been assigned or redeemed, and the Court considers that the interests of
those concerned will be promoted by the management of a Gazetted Officer of the
Revenue Department, the Court may, with the consent of the Collector, appoint a
Gazetted Officer of the Revenue Department to be receiver of such property."
"6. Where the property belongs to a co-operative society registered under the Madras
Co-operative Societies Act or to a member of such co-operative society, and the Court
considers that the interest of those concerned will be promoted by the management of
an officer of the co-operative department, the Court may, with the consent of the officer,
appoint him to be receiver of such property." (8-1-1987)
1967.
After rule 5 add the following as rule 6:—
"Rule 6. Where the property belongs to a co-operative society, registered under an

appropriate statute or to a member of such co-operative society and the Court
considers that the interest of those concerned will be promoted by the management
thereof an officer of the Co-operative Department, the Court may, with consent of such
officer, appoint him to be Receiver of such property."
Andhra Pradesh.—The following amendments were made by Andhra Pradesh Gazette,

dated 8-1-1987, Part II(AS), Page 2 (No. 2).
After rule 6, add as under—
"7. Where a receiver had been appointed by a Court under rule 1 of this Order, no such
Receiver may be sued by any person whether he is a party to the said suit or not, except
with the leave of the Court appointing the Receiver or successor Court on an
application made in this behalf and the notice of which is served upon the Receiver and
all other persons who may, in the opinion of the Court, be interested in the subject-
matter of the suit."
1983, Part 4 (Ka), Page 423, Goa Gazette, dated 12-10-1987, Extra., S. 1, No. 28, Page 389,
dated 1-4-1987.
Insert the following Order XL-A after Order XL (w.e.f. 1-10-1983).
ORDER XL-A
CAVEAT RULES
1. Every Caveat under Section 148A shall be signed by the Caveator or his Advocate
and shall be in the form prescribed.
2. Every Caveat shall be presented by the party in person or by his Advocate to the
Court or to the Officer authorised to receive the Caveat. Where the Caveator is
represented by an Advocate his Vakalatnama shall accompany the Caveat. When an
Advocate instructed by a party to act or appear in a matter has not been able to secure
a Vakalatnama in the prescribed form duly signed by the client, he may file a written
statement signed by him stating that he has instructions from or on behalf of his client
to act or appear in the matter and also undertaking to file within a week a Vakalatnama
in the prescribed form duly signed by the party.
3. The Caveat presented under rule 2 shall be registered in a Caveat Register in Form
given below. Before an application for any relief is made to the Court in any
proceedings, it shall bear an endorsement from the office of the Court whether a
Caveat has or has not been filed.
4. (1) A copy of the Caveat shall be served along with the notice required to be served
under Section 148A(2).
(2) On receipt of the notice of the Caveat, the applicant or his Advocate shall intimate
to the Caveator or his Advocate, the expenses for furnishing the copies and request
him to collect the copies on payment of the said expenses. The said expenses should
be at the rate of 25 paise per folio of 100 words inclusive of cost of paper.
5. Every application for any relief in a proceeding should be supported by a statement

on oath of the applicant stating that no notice under Section 148A(2) is received by him
or if received whether the applicant has furnished the copies of the application together
with the copies of the papers or documents which have been filed or may be filed in
support of the application to the Caveator as required by Section 148A(4).
6. A notice under Section 148A(3) may be served on the Caveator or his Advocate
personally or by post Under Certificate of Posting. The notice sent Under Certificate of
Posting at the address furnished by the Caveator shall be deemed to be sufficient
service on him.
7. Where it appears to the Court that the object of granting an interim relief on the
application would be defeated by delay, it may record reasons for such opinion and
grant ad interim relief on the application of the applicant till further orders after giving
the Caveator an opportunity of being heard.
(FORM OF CAVEAT)
IN THE COURT OF .............................................................................................................. .
AT ....................................................................................................................................
SUIT/PETITION/APPEAL NO ................................................................ 19/20 ...........
In the matter of Caveat under Section 148A of the Code of Civil Procedure
.......................................... Caveator
Pray that no orders be passed without due notice under Section 148A of the Code of
Civil Procedure to the Caveator abovenamed in any application
for..................................................(State in short reliefs to be prayed for) in
Suit/Petition/Appeal No ................................... of 19/20 ........... of this Court or in
Suit/Petition/ Appeal likely to be filed in this Court) wherein .............................. is/may
be Plaintiff/Petitioner/ Appellant and .......................is/may be the
Defendant/Respondent.
The Caveator's address for service is .............................................................................
The Caveator undertakes to the Court to give notice by Registered Post A.D. to
...................... .
The Plaintiff/Petitioner/Appellant abovementioned, at the following address .................

.
Caveator
REGISTER OF CAVEAT (O. XL-A. R. 3)
COURT OF THE ......................... OF ......................... AT ............ .
REGISTER OF CAVEAT IN THE YEAR 19/20 ..................... .
Sl. No. Date of Name of Nature of Name of Name of Date and Date of Remarks
Caveat Caveator proceeding plaintiff defendant number of notice
and his anticipated Applicant Respondent proceeding served on
address by in the in filed as Caveator
for caveator proceeding proceeding anticipated
service and its in column in column by
number if No. 4 No. 4 Caveator
same is
filed
1 2 3 4 5 6 7 8 9
Madras and Pondicherry.—For Caveat rules, see Order LII.
See Maharashtra Government Gazette, dated 15-9-1983, Part 4 (Ka), Page 423, Goa
Gazette, dated 12-10-1984, Ext., S. 1, No. 28, Page 389, dated 1-4- 1987.
COMMENT.—
Where a receiver was appointed in a mortgage suit and he had executed a surety bond
rendering himself liable retrospectively for any loss caused by his default to the
mortgaged property from the date of his taking possession it has been held by the
Supreme Court in Howrah Insurance Co Ltd v Shri Sochindra Mohan Das Gupta, AIR 1975
SC 2051 : (1975) 2 SCC 523 : (1976) 1 SCR 356 that the receiver was liable for the
damage caused to the property by fire ever prior to the execution bond due to receiver's
default.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Form of appeal, What to
accompany memorandum
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLI Appeals from Original Decrees
R. 1.
Form of appeal, What to accompany memorandum
(1) Every appeal shall be preferred in the form of a memorandum signed by the
appellant or his pleader and presented to the Court or to such officer as it
appoints in this behalf. The memorandum shall be accompanied by a copy of
the 1[ judgement ]:
2[ Provided that where two or more suits have been tried together and a
common judgment has been delivered therefor and two or more appeals are
filed against any decree covered by that judgment, whether by the same
appellant or by different appellants, the Appellate Court may dispense with the
filing of more than one copy of the judgment.]
Contents of memorandum
(2) The memorandum shall set forth, concisely and under distinct heads the
grounds of objection to the decree appealed from without any argument or
narrative; and such grounds shall be numbered consecutively. [A, AP, B, KNT, K,
M]
2
[(3) Where the appeal is against a decree for payment of money, the appellant
shall, within such time as the Appellate Court may allow, deposit the amount
disputed in the appeal or furnish such security in respect thereof as the Court
may think fit.]
Allahabad (Notfn No 303/VIId-64; 28-7-1969).—
(1) In sub-rule (1) of rule 1, after the proviso the following Explanation shall be inserted,
namely:
"Explanation.—The copy of the decree referred to in sub-rule (1) of rule 1 above shall
include a deemed decree as provided in Order XX in Clause (b) in sub-rule (2) of rule 6-
A. (Noti. No. 345-VIId-134, dt. 8-8-1994, w.e.f. 22-10-1994)
(2) Add the following proviso to sub-rule (2) of rule 1:
"Provided that the Court may, for sufficient reasons, accept a memorandum of appeal
without a copy of the decree appealed from if the counsel for the appellant certifies
that the copy has been applied for and has not yet been issued, subject to the copy
being filed subsequently within the time granted by the Court." (13-12-1969). [Note.—
This amendment shall come into force with effect from the date of its publication in the
Uttar Pradesh Gazette.] (Notification No. 303/VIId-64, 13-12-1969)
(3) Sub-rule (3) of rule 1 deleted [Notification No. 552/VIId-184 dt. 30-10-1993
published in U.P.Gaz. Pt. 2, dt. 1-1-1994 pp. 1-2.]
dated 2-8-1988, Part II (RS) Extra., Page 1 (No. 31).
Existing rule 1 deleted, and, substituted as under:—
"Every appeal shall be preferred in the form of a memorandum signed by the appellant
or his pleader and presented to the Court or to such officer as it appoints in this behalf.
The memorandum shall be accompanied by such number of copies of judgment as
may be required by the rules or the Notifications issued by the High Court and (unless
the appellate Court dispenses with the filing of the decree or judgment or both for the
time being) the decree drawn pursuant to the said judgment."
Bombay.—Add the following as sub-rule (3) :—
(3) The appellant shall file along with the memorandum of appeal as many copies
thereof on plain paper as there are respondents for being served on the respondents
along with the notice of appeal:
Provided that the Court in its discretion may permit the appellant to file the necessary
number of copies of the memorandum of appeal after the appeal is admitted, within
such time as the Court may grant in this behalf." (1-11-1966).
were made by Maharashtra Government Gazette, dated 15-9-1983, Part 4, Ka, Page 399
(1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page 390, dated 1-
4-1987.
For the existing rule 1, substitute the following:—
1. Form of appeal. What to accompany memorandum.—(1) Every appeal shall be

preferred in the form of a memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints in this behalf. The memorandum
shall be accompanied by a copy of the decree appealed from and (unless the Appellate
Court dispenses therewith) of the judgment on which it is founded:
Provided that where two or more suits have been tried together and a common
judgment has been delivered therefor and two or more appeals are filed against any
decree covered by that judgment, whether by the same appellant or by different
appellants, the Appellate Court may dispense with the filing of more than one copy of
the judgment.
"Explanation.—The copy of decree referred to in sub-rule (1) of rule 1 above shall

include a deemed decree as provided in Order XX in Clause (b) in sub-rule (2) of rule 6-
A.
(2) Contents of memorandum.—The memorandum shall set forth, concisely and under
distinct heads, the grounds of objection to the decree appealed from without any
argument or narrative; and such grounds shall be numbered consecutively.
(3) Where the appeal is against a decree for payment of money, the appellant shall,
within such time as the Appellate Court may allow, deposit the amount disputed in the
appeal or furnish such security in respect thereof as the Court may think fit:
Provided that the Court may dispense with the deposit or security where it deems fit to
do so for sufficient cause.
(4) The appellant shall file along with the memorandum of appeal as many copies
thereof on plain paper as there are respondents for being served on the respondents
along with the notice of appeal:
Provided that the Court in its discretion may permit the appellant to file the necessary
number of copies of the memorandum of appeal after the appeal is admitted, within
such time as the Court may grant in this behalf.—Maharashtra Government Gazette,
dated 15-9-1983, Part 4 (Ka), Page 399, Goa Gazette, dated 12-10- 1987, Extra., Section
1, No. 28, Page 390, dated 1-4-1987.
Karnataka (Notfn No ROC 2296/59; 6-10-1959).—
(i) Add the following proviso to sub-rule (1):
"Provided that in appeals from decrees or orders under any special or local Act to which
the provisions of Parts II and III of the Limitation Act, 1908, do not apply and in which
certified copies of such decrees or orders have not been granted within the time
prescribed for preferring an appeal, the Appellate Court may admit a memorandum of
appeal subject to the production of the copy of the decree order appealed from within
such time as may be fixed by the Court."
(ii) Add the following to sub-rule (2):
"The memorandum shall also contain a statement of the amount or value of the
subject-matter in dispute in the Court of first instance and in the appeal and a
statement of the amount of Court-fee paid or payable on the appeal together with the
provision of law under which it is calculated.
(iii) Add the following to sub-rule (3):
"When an appeal is presented after the period of limitation prescribed therefore it shall
be accompanied by an application supported by affidavit setting forth the facts on
which the appellant relies to satisfy the Court that he had sufficient cause for not
preferring the appeal within such period, and the Court shall not proceed to deal with
the appeal in any way (otherwise than by dismissing it either under rule 11 of this Order
or on the ground that it is not satisfied as to the sufficiency of the reason for the delay)
until notice has been given to the respondent and his objections, if any, are heard." (5-
11-1959)
Kerala (Notfn No B1-3312/58; 7-4-1959).— Same as items (ii), (iii) and (v) in Madras
with the following modifications:—
(i) To item (ii) add the following marginal note:
"Copy of judgment to be printed for appeal".
(ii) to item (iii) add the following marginal note:
"Power to admit appeal subject to production of copy of decree or order under special or
local Act."
Madras.—
(i) In sub-rule (1) before the word "copy" insert the word "certified" (25-12-1963).
(ii) (GO No 933, Home (Judl), of 3-5-1917)—To sub-rule (1) add the following:—
"The copy of the judgment shall be printed copy in every case in which the High Court
has prescribed that the judgment shall be printed when a copy is applied for, for the
purpose of appeal."
(iii) (Dis No 2135 of 1918) To sub-rule (1) add the following proviso:—
"Provided that, in appeals from decrees or orders under any special or local Act to
which the provisions of Parts II and III of the Limitation Act, IX of 1908, do not apply
and in which certified copies of such decrees or orders have not been granted within
the time prescribed for preferring an appeal, the Appellate Court may admit the
memorandum of appeal subject to the production of the copy of the decree or order
appealed from within such time as may be fixed by the Court."
(iv) Add the following further proviso and Explanation to sub-rule (1) :
Provided further that when the decree appealed from is a final decree in partition suit
with schedules attached thereto, the appellate Court may dispense with the production
of the copy of the decree, if the appellant files a certified copy of the judgment
appealed against and produces also a certificate from the lower Court as to the value
of the subject-matter of the proposed appeal." (P Dis No. 97 of 1963 of 20-3-1963).
"Explanation.—The words 'Appellate Court' in sub-rule (1) be deemed to include the

Registrar of the High Court, where the appeal is preferred to the High Court." (25-12-
1963).
(v) (Dis No 2057 of 1917).—To sub-rule (2) add the following:—"The memorandum shall
also contain a statement of the valuation of the appeal for the purposes of the Court-
fees Act.
Madras (Pondicherry).—
(i) The following amendments were made by Tamil Nadu Government Gazette, dated 4-1-
1984 Pt. III, S. 2, p. 2 (No. 1). In Order XLI, for sub-rule (1) substitute the following:—
"(1) Every appeal shall be preferred in the form of a memorandum signed by the
appellant or his pleader and presented to the Court or to such officer, as it appoints in
this behalf. The memorandum of appeal shall be accompanied by a certified copy of
the decree appealed from and (unless the Appellate Court dispenses therewith) by a
certified copy of the judgment on which it is founded and by such number of type-
written or cyclostyled or printed or mechanically reproduced copies of the judgments
as are necessary to serve on the respondents to the appeal and four additional copies
for the use of the Court. The copies so filed shall be neatly and legibly prepared without
any error, of which four copies intended for the use of the Court, shall be on thick paper,
in case the judgment is typed or cyclostyled, the four copies intended for the use of the
Court must be typed or cyclostyled on one side of the paper only:
Provided that where two or more suits have been tried together and a common
judgment has been delivered therefor and two or more appeals are filed against any
decree covered by that judgment, whether by the same appellant or by different
appellants, it shall not be necessary to file more than one set of copies of the judgment
as provided for in this rule:
Provided further that the Court shall have the copies of the judgment so filed compared
with the certified copy of the judgment on payment of the prescribed charges."
(ii) The following amendments were made by Tamil Nadu Government Gazette, dated
179-1980, Part III, Section 2, p 222 and Pondicherry Government Gazette, dated 14-10-
1980, p 758.
Sub-rule (3) omitted.
III-A, page 70.
Same as that of Patna. The second proviso as added to rule 1 by previous amendment
of the High Court deleted.
Patna (i) (Notfn No 85-R, of 12-2-1935).—To sub-rule (1) add the following proviso:—
"Provided that when the decree appealed from is a final decree in a partition suit and
embodies the allotment papers, the appellate Court may accept a copy of the decree
containing only a portion of the allotment papers; provided further that the appellate
Court may, subsequently, on the application of the respondent require a copy of the
remaining or any further portion of the allotment papers to be filed by the appellant."
(ii) To sub-rule (1) and the following as second proviso:—
"Provided further that, in appeals from decrees or orders under any special or local Act
to which the provisions of Parts II and III of the Limitation Act, 1908, do not apply and in
which certified copies of such decrees or orders have not been granted within the time
prescribed for preferring an appeal, the appellate Court may admit the memorandum of
appeal subject to the production of the copy of the decree or order appealed from
within such time as may be fixed by the Court." (5-4-1961).
Gazette, dated 11-4-1975, Part III (L.S.), Page 305 and Haryana Gazette, dated 25-3-1975,
Part III (L.S.), Page 190; Chandigarh Administration Gazette, dated 1-5-1975, Part I, Page
96.
Provided that when two or more cases are tried together and decided by the same
judgment and two or more appeals are filed against the decree, whether by the same or
different appellants, the officer appointed in this behalf may, if satisfied that the
questions for decision are analogous in each appeal, dispense with the production of
more than one copy of the judgement."
Add the following as further proviso to sub-rule (1) :—
"Provided further that the Court may permit the appeal to be filed with true copies duly
authenticated by an Advocate as correct."
Rajasthan (Notfn No 4-A/SRO: 6-10-1970).—
Add the following proviso to rule 1:—
"Provided that when the decree appealed from is a final decree in a partition suit, the
appellate Court may dispense with the production of the copy of the decree if the
appellant files a certified copy of the judgment appealed against."
COMMENT.—Code of Civil Procedure (Amendment) Act, 1999 (46 of

1999) (w.e.f. 1-7-2002).—
In O XLI, in sub-rule (1) of rule 1, for the words and brackets "decree appealed from and
(unless the Appellate Court dispenses therewith) of the judgment on which it is
founded", the word "judgment" shall be substituted. The amendment has been made so
as to provide for filing of appeal on the basis of the copy of the judgment, to avoid
delay as obtaining copy of decree takes considerable time.

1999 stated thus:-
The Amendment proposes to amend Order XLI of the First Schedule so as to provide for
filing of appeal on the basis of the copy of the judgment, to avoid delay as obtaining a copy
of decree takes considerable time. Further to avoid delay it is proposed that an appeal may
be filed in the same Court which passed the judgment and that Court shall direct the parties
to appear before appellate Court. [Clause 31]

(v) (of the repeal and savings section) stipulates that the provisions of rules 1, 9, 11, 12,
13, 15, 18, 19 and 22 of O XLI of the First Schedule, as amended, substituted and
omitted by section 31 of the Amendment Act, 1999 shall not affect any appeal filed
before the commencement of section 31 of the Amendment Act, 1999 and every
appeal pending before the commencement of section 31 of the Amendment Act, 1999
shall be disposed of as if section 31 of this Amendment Act, 1999 had not come into
force.
Appeals to be filed with copy of judgment.—
The amendment made in sub-rule (1) of rule 1 dispenses with the requirement of
annexing a copy of the decree appealed from. Now appeal can be filed on the basis of
the copy of the judgment alone. This is intended to eliminate delay which was
inevitably involved in obtaining a copy of the decree. See also new rule 6A of O XX.
Justice Malimath Committee Recommendations.—
In this connection reference may be made to the report of Justice Malimath Committee
(Arrears Committee) in Ch III at pp 21 to 23:—
Certified Copy of Decree Need Not Accompany Memorandum of Appeal
The Law Commission of India in its One Hundred Twenty Fourth report expressed the
view that O XLI rule 1 of the Code of Civil Procedure should be amended so as to
dispense with the requirement of annexing a certified copy of the decree to the
memorandum of appeal and to allow the appeal being filed by producing the operative
part of the judgment along with the memorandum of appeal. It was observed in the
report that the period of limitation within which the appeal is to be preferred gets
extended to the extent of the time-lag between the date the copy of the decree is
applied for and is made ready and that occasionally the delay is such that the limitation
gets extended twice, thrice and in rare cases even ten times. The copy of the decree,
according to the report, is hardly relevant or necessary or even looked into for the
purpose of deciding whether the appeal should or should not be admitted under O XLI,
rule 11 of the Code of Civil Procedure and, therefore, the provision regarding the
annexation of a copy of the decree to the memorandum of appeal has become
anachronic and is of doubtful utility. [Para 3.26]
We are in agreement with the view that the requirement of annexing a certified copy of
the decree to the memorandum of appeal is of doubtful utility, having regard to the fact
that for the purposes of deciding the appeal, whether at the preliminary stage or at the
stage of final hearing, the decree is hardly ever referred to. However, since the law
requires the compliance of this formality and the drawing up of a decree by the trial
Court often takes considerable time after the judgment is ready and pronounced, the
period of limitation within which the appeal is to be preferred gets extended and
thereby the duration of litigation is also increased. [Para 3.27]
It may be pointed out in this connection that under sections 96 and 100 of the Code of
Civil Procedure, an appeal lies from a decree. Order XLI, rule 1 of the Code, inter alia,
provides that the memorandum of appeal shall be accompanied by a copy of the
decree appealed from. Order XX, rule 6 of the Code, which deals with the contents of
decree, provides, inter alia, that the decree shall agree with the judgment and that it
shall contain the number of the suit, the names and descriptions of the parties, their
registered addresses, particulars of the claim and the amount of costs incurred in the
suit. Order XX, rule 7 of the Code provides, inter alia, that the decree shall bear date the
day on which the judgment was pronounced. Article 116 appearing in the Second
Division of the Schedule to the Limitation Act prescribes the period of limitation for
preferring an appeal to a High Court from any decree or order under the Code of Civil
Procedure and the time from which the period begins to run is the date of the decree or
order. Section 12 of the Limitation Act provides, inter alia, that in computing the period
of limitation for an appeal the time requisite for obtaining a copy of the decree
appealed from shall be excluded. [Para 3.28]
On a combined reading of these various statutory provisions it is apparent that an

appeal lies from a decree, that the requirement of annexing a copy of the decree
appealed from to the memorandum of appeal is mandatory, that the period of limitation
is computed with reference to the date of decree and that the time requisite for
obtaining a copy of the decree is excluded while computing such period. [Para 3.29]
It is, thus, apparent that the requirement of annexing a copy of the decree along with
the memorandum appeal is relaxable if the decree is not drawn up provided a party
desirous of appealing against the decree obtains the requisite certificate from the
Court passing the decree. [Para 3.30]
Taking into consideration the various statutory provisions bearing upon the point under
consideration, we are of the view that the requirement of annexing a copy of the decree
to the memorandum of appeal needs to be dispensed with. We, therefore, recommend
that not only O XLI rule 1 of the Code of Civil Procedure but also sections 96 and 100 of
the Code of Civil Procedure and section 12 and Article 116 of the Limitation Act will
require to be suitably amended in order to achieve the purpose of cutting short the
length of litigation and the extension of the period of limitation on account of the
requirement of annexing a copy of the decree to the memorandum of appeal. A portion
of O XX, rule 6A will also have to be deleted. The amendment can take the form of a
deeming provision similar to the one found in O XX, rule 6A, sub-rule (2) Clauses (a)
and (b) which enables the last or operative part of the judgment being treated as
decree. At the same time, however, the requirement of annexing a certified copy of the
judgment to the memorandum of appeal will have to be made mandatory and it will
also have to be provided that the judgment shall indicate the names, descriptions and
registered addresses of all the parties to the suit and particulars of the claim including
the valuation for the purpose of jurisdiction and Court fee. Such a provision, in our
opinion, will go a long way in minimising the length of period between the date of
pronouncement of judgment and the presentation of appeal. [Para 3.31]
Any
amendment made, or any provision inserted in the principal Code by a State Legislature
or High Court before the commencement of the Amendment Act, 1999 shall, except in
so far as such amendment or provision is consistent with the provisions of the
principal Code as amended by this Amendment Act, 1999, stand repealed. [section
32(1) Code of Civil Procedure (Amendment) Act, 1999].
In sub-rule (2) of this rule, the proviso was inserted. This has been done to provide for
the deposit or the furnishing of security for decretal amount by judgment-debtor when
the appeal is against an order made in execution of a money decree. Sub-rule (3) has
also been added newly.
This rule contemplates the following formalities to be completed before any appeal is
said to be validly preferred:
(1) The appeal must be only signed by the appellant or his pleader;
(2) The appeal must be in the form of a memorandum setting forth the grounds of
objection to the decree appealed from;
(3) The appeal must be presented to the Court or to such officer as it appoints in
that behalf.
(4) The memorandum must be accompanied by a copy of the decree.
(5) It must be accompanied by a copy of the judgment unless the Court dispenses
therewith.
Power of Court.—
Deposit of money or giving security is not a condition precedent for entertaining an

appeal. The Court may grant time to deposit money or give security.3
Direction to appellant to deposit certain sum in trial court within particular time could
not be passed by High Court in absence of application far stay.4
Copy of formal decree to be filed with appeal.—
By fiction of law the award of the civil Court made under section 26(1) of the Land
Acquisition Act shall be deemed to be a decree. But a formal decree in terms of section
2(2) Code of Civil Procedure shall be drawn and a copy of that decree should be filed
along with the appeal filed under section 54 of the Land Acquisition Act.5
Where the vakalatnama is signed by the authorised pleader but by his assistant and is
duly accepted by the Court or the officer of the Court, the defect is only an irregularity
which can be cured by allowing the authorised advocate to sign the vakalatnama.6
The Present rule is mandatory in its requirements. Where, therefore, at the time of the
presentation of the appeal a decree has been framed, it is imperative under the rule that
it must be accompanied by a copy of the decree.7 A memorandum of appeal not so
accompanied by a copy of the decree would be incompetent and invalid.8 This would
be so even if the appellant is under an erroneous impression that the decree has not
been drawn up.9
The requirement of O XLI, rule 1 is mandatory. In the absence of a copy of the decree,
the filing of appeal would be incomplete defective and incompetent. There may be
circumstances where an appeal may be competent, even though a copy of the decree
may not have been filed along with the memorandum of appeal.10
It has been held by the Supreme Court that where a decree consists of two distinct
parts and appeal is in respect of one such part, it is sufficient to file a copy of that part
only which is being challenged in the appeal.11
The copy that should be filed along with the memorandum of appeal must be a
certified copy.12
Date of receipt by the appellate authority of the memorandum of appeal is the date of
filing appeal and not the date of posting the memorandum.13
Where the Court is made aware of the fact that the judgment has not been filed with
the memorandum of appeal and nevertheless, admits it, it may be presumed that it has
dispensed with the production of such copy14 but not otherwise.15
Court not precluded from giving directions.—
In a money suit part of the claim was decreed with a direction to the receiver to attach
securities on non-payment. The Bank filed appeal for balance claim. In order to protect
its interest the Bank can ask the appellate Court to issue directions for attachment of
securities. The fact that a direction can also be obtained by the Bank by executing the
decree does not preclude the Court from giving such direction.16
Grounds of objection.—
The grounds of objection must be such as arise from the pleadings and evidence and
are necessary for the decision of the case. The appellant cannot raise a new case not
set up by him in the trial Court.17 He cannot raise a ground in the memorandum of
appeal, which he had abandoned in the lower Court.18 An order of the trial Court,
appealed against, was a combined order. It granted the review and disposed of the
application for injunction on merits. The appellants were not only entitled to challenge
the order in accordance with O XLVII, rule 7 but also on any other ground open to them,
namely that on merits, the order of injunction should not have been passed.19
Filing of appeal, not a stay.—
Rule 1 of O XLI of the Code stipulates that filing of an appeal would not amount to
automatic stay of execution of the decree.20
New case.—
A party cannot change its case at the appellate stage. The plea of licence or its
irrevocability was not raised in the trial Court nor adjudicated upon. It cannot be raised
for the first time in appeal.21
A new plea depending upon further investigation of facts cannot be raised for the first
time in appeal before the High Court and Supreme Court.22
The contention raised in the lower Court was only with respect to one matter, forming
part of an agreement, consisting of three distinct matters. The Supreme Court declined
to consider the question in respect of other matters when raised for the first time
before it.23
The respondents raised no objection when the appellant sought to raise a contention
regarding the time nature of a grant for the first time in appeal. The appellate Court is
right in allowing the point to be taken.24
The burden of proof is on the appellant to show that the judgment of the lower Court is
wrong.25 The appellant cannot ask for a re-assessment of the evidence.26
Limitation time, three years.—
If an application for setting aside the order of dismissal of appeal and for impleadment
is filed within three years from the date of order of dismissal for non prosecution then it
is with in time. Such an application would be governed by Article 137 of the Limitation
Act, 1963 and not by Article 122 of the Act.27
The provision has no relevance nor can control the provisions of limitation which are
separately contained in the Limitation Act, 1963.28
An appellant was granted time by a High Court at the time of admission of the second
appeal and was allowed to file a certified copy "as soon as it is available". He filed the
copy seven days after obtaining it, alongwith an application for condonation of delay.
The appeal was dismissed. The High Court committed an error in dismissing the
appeal. It should have exercised power under section 148 of Code of Civil Procedure. In
such a case O XLI rule 1(2) (as amended by Punjab, Haryana and Chandigarh) would
have no application.29
Subsequent appeal, not barred.—
Where an appeal against direction for the payment of decretal amount in instalments
was withdrawn immediately after filing, subsequent appeal against decree on merits is
not barred. As the earlier appeal was an appeal against "Order" and not against "decree"
or "judgment" within meaning of Clause 15 of Letters Patent.30
"Appeal" & memorandum of appeal.—
Under this rule the expressions "appeal" and "memorandum of appeal" are used to
denote two distinct things. The appeal is the judicial examination and the
memorandum of appeal contains the grounds on which the judicial examination is
invited.31
Signing of memorandum of appeal by appellant or his pleader is mandatory but it is a
procedural provision. Non compliance would not entail automatic rejection of appeal
without giving opportunity to rectify the defect.32
Money decree, stay of execution.—
Where an appeal is filed without making deposit or furnishing the security, stay to
execution of decree cannot be granted unless it is made out an exceptional case by the
Court. An exceptional case has to be made out for stay of execution of money
decree.33
Preparation of decree, not necessary.—
It is not necessary to prepare a decree at the conclusion of the trial of an election

petition. In an appeal under section 116-A of the Representation of the People Act,
1951, all that is necessary is to be filed a copy of the judgment of the tribunal and no
more O XLI, rule 1(1) does not apply.34
Decree of appellate Court to be executed.—
Where the decree of the trial Court is carried in appeal and the appellate Court
disposes of the appeal after a contested hearing, the decree to be executed is the
decree of the appellate Court and not of the trial Court. The reason being that in such
cases the decree of the trial Court is merged in the decree of the appellate Court.35
1 Subs. for 'decree appealed from and (unless the Appellate Court dispenses therewith) of the
judgment on which it is founded' by the Code of Civil Procedure (Amendment) Act, 1999 (46 of
3 Zoological Survey of India v Piscean Enterprises, 2008 (2) Cal HN 116 (DB).
4 BP Agarwal v Dhanalaxmi Bank Ltd, AIR 2008 SC 1931 (DB).
5 State of Rajasthan v Raj Singh, AIR 1996 SC 2812 (2814) : (1996) 5 SCC 516 .
6 Yognapurushadasi v Muldas, AIR 1966 SC 1119 : (1966) 3 SCR 242 : 1967 Mah LJ 289 .
7 AIR 1957 SC 1470 .
8 Shakuntala Devi v Kuntal Kumari, AIR 1969 SC 575 : (1969) 1 SCR 1006 ; see also State v
Mutharethinam, AIR 1970 Mad 353 (FB) and Labhmal v Lal Chand, AIR 1972 Raj 123 (DB).
9 Labhmal v Lal Chand, AIR 1972 Raj 123 (DB).
10 Phoolchand v Gopal Lal, AIR 1967 SC 1470 (1472) : (1967) 3 SCR 153 .
11 Jagat Dhish v Jawaharlal, AIR 1961 SC 832 : (1961) 2 SCR 918 .
12 AIR 1969 SC 575 : (1969) 1 SCR 1006 (supra).
13 FN Roy v Collector of Customs, AIR 1957 SC 648 (652).
14 AIR 1969 SC 575 : (1969) 1 SCR 1006 (supra).
15 AIR 1969 SC 575 : (1969) 1 SCR 1006 (supra).
16 United Bank of India v BTW Industries Ltd, AIR 1998 SC 2354 (2356) : (1998) 1 SCC 630 :
(1998) 91 Com Cas 819 .
17 MP Shreevastava v Veena, AIR 1967 SC 1193 : (1967) 1 SCR 147 : 1967 ALJ 423 ; see also
Iyyappan v Dharmodayam, AIR 1966 SC 1017 : (1963) 1 SCR 85 .
18 New Marine Coal Co v UOI, 1964 SC 152 : (1964) 2 SCR 859 .
19 Sohan Lal v Amin Chand, AIR 1973 SC 2572 (2574) : (1973) 2 SCC 608 .
21 Iyyappan v Dharmodayan, AIR 1966 SC 1017 (1020).
22 Karpagathachi v Nagarathinathachi, AIR 1965 SC 1752 (1754).
23 Raj Nath v Pramod C Bhatt, AIR 1956 SC 105 (108).
24 Radha Sundar v Mohd Jahadur Rahim, AIR 1959 SC 24 (26) : 1959 SCR 1309 .
25 Narbada Prasad v Chagan Lal, AIR 1969 SC 395 .
26 Narbada Prasad v Chagan Lal, AIR 1969 SC 395 .
28 PA Oommen v Moran Mar B Marthoma, AIR 1992 SC 1977 (1980) : (1992) 3 SCC 503 : (1992)
2 KLT 293 .
29 Jogdhyan v Babu Ram, AIR 1983 SC 57 (59) : (1983) 1 SCC 26 .
30 MRamanarayan v State Trading Corpn, AIR 1983 SC 786 (797, 802) : (1983) 3 SCC 75 : (1983)
2 Comp LJ 163 .
31 Lakshimiratan v Asstt Commr, AIR 1968 SC 488 (492).
32 Uday Shanhar Triyar v Ram Kalewar Prasad Singh, AIR 2006 SC 269 (273).
33 Malva Strips Pvt Ltd v Jyoti Ltd, AIR 2009 SC 1581 (1584) : (2009) 2 SCC 426 .
34 Shyam Sunder v Satya Ketu, AIR 1967 SC 923 (926) : (1967) 1 SCR 752 .
35 Gojer Brothers v Ratan Lal Singh, AIR 1974 SC 1380 (1384) : (1974) 2 SCC 453 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Grounds which may be
taken in appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Grounds which may be taken in appeal
The appellant shall not, except by leave of the Court, urge or be heard in support of
any ground of objection not set forth in the memorandum of appeal; but the Appellate
Court, in deciding the appeal, shall not be confined to the grounds of objections set
forth in the memorandum of appeal or taken by leave of the Court under this rule:
Provided that the Court shall not rest its decision on any other ground unless the party
who may be affected thereby has had a sufficient opportunity of contesting the case
on that ground.
COMMENT.—
An appellant is confined to the grounds set forth in the memorandum of appeal or

taken at the hearing with the permission of the Court. He cannot advance at the
hearing a point not so raised or taken.
Order XLI, rule 2 provides that opportunity shall not, except by leave of court, be
allowed to urge ground in appeal, which is not set forth in memorandum of appeal.
Proviso to O XLI, rule 2 engrafts the rule, which obliged the court to grant sufficient
opportunity to contesting party, if any new ground is allowed to be urged by another
party, which may affect contesting party. Provision engrafts rule of natural justice and
fair play.36
Additional grounds may be raised.—
Where both the High Court and the Tribunal have pointed out that the additional ground
sought to be raised was purely of law and was only an aspect of question raised at
earlier stages, it can be permitted to be raised in appeal.37
Plea of law.—
The plea raised is a plea of law. It is competent to the appellate Court to allow such a
plea to be raised under O XLI, rule 2 of Code of Civil Procedure.38
Plea of special period of limitation.—
The plea of special period of limitation as defence which was not taken in pleadings or
in trial Court should not be entertained by an appellate Court.39
New plea.—
The questions never raised in Courts below cannot be allowed to be raised for the first
time in appeal before the Supreme Court.40
A contention neither raised before the Tribunal nor before the High Court, cannot be
raised for the first time in appeal before the Supreme Court.41
Where a new plea not taken in the ground of appeal is sought to be raised as an
additional ground by a substantive application for that purpose, the High Court has
discretion to allow the application or refuse it. But the discretion exercised by the High
Court will not be interfered with except for good reasons.42
It was held by the Supreme Court that opportunity of hearing ought to have been
granted to counsel appearing for appellant/plaintiffs to present their case. The matter
was remanded to the High Court for fresh disposal in accordance with law, after
affording opportunity of hearing to both parties.43
36 Akhilesh Singh v Lal Babu Singh, AIR 2018 SC 1240 : 2018 (4) SCALE 378 : (2018) 4 SCC 659
.
37 Addl CIT v East Coast Floor Mills Pvt Ltd, AIR 1994 SC 1513 .
38 Keshavlal v Lalbhai, AIR 1958 SC 512 (517) : 1959 SCR 213 : 60 Bom LR 948.
39 Indore Municipality v Niyamatullah, AIR 1971 SC 97 (99).
40 MP Srivastava v Veena, AIR 1967 SC 1193 : (1967) 1 SCR 147 : 1967 ALJ 423 .
41 State of Mysore v G Thimappa, AIR 1967 SC 1131 (1134) : (1967) 1 SCR 627 : 19 STC 35.
42 Subbanna v Subbanna, AIR 1965 SC 1325 (1328) : (1965) 2 SCR 661 : (1966) 1 MLJ (SC) 67.
43 Daropti v Harphool Singh, (2013) 10 SCC 622 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Rejection or amendment
of memorandum
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Rejection or amendment of memorandum
(1) Where the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, it may be rejected, or be returned to the appellant for the purpose
of being amended within a time to be fixed by the Court or be amended then
and there. [A]
(2) Where the Court rejects any memorandum, it shall record the reasons for such
rejection.
(3) Where a memorandum of appeal is amended the Judge, or such officer as he

appoints in this behalf, shall sign or initial the amendment.
[Sub-rule (1) substituted in All].
Allahabad (Notfn No 2058/35(a); 17-6-1916).—For sub-rule (1) substitute the following:

—
"3. (1) Where the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, or accompanied by the copies mentioned in rule 1(1), it may be rejected, or
where the memorandum of appeal is not drawn up in the manner prescribed, it may be
returned to the appellant for the purpose of being amended within a time to be fixed by
the Court or be amended then and there."
Bombay : Dadra and Nagar Haveli.—
In Order XLI, after the existing rule 3, insert the following rule with marginal note as new
rule 3-A and its marginal note—
"3-A. Procedure where appellant applies for condonation of delay in filing the appeal.—
Where an appellant applies for delay in filing the appeal to be excused, notice to show
cause shall be issued to the respondent and the application shall be decided before
notice is issued to the Court, from whose decree the appeal is preferred, under rule 13."
Gujarat.—Same as in Bombay with following modifications—
(i) Add 'at once' between 'shall' be issued.
(ii) for 'application' read 'matter' and add 'finally' between the words 'shall be' and
'decided'.
From the provisions of Order XLI, rule 3 it is clear that if a memorandum of appeal
arising out from an appellate decree is not drawn up in the manner provided in the
Code, the Court may reject the memorandum of appeal or return the same for the
purposes of being amended within the time fixed by the court. Thus, the jurisdiction of
the High Court to entertain a second appeal is confined only to such appeals which
involves substantial question of law.44

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 3A. Application for
condonation of delay
© 2020 LexisNexis
THE FIRST SCHEDULE
45[R. 3A.
Application for condonation of delay
(1) When an appeal is presented after the expiry of the period of limitation
specified therefor, it shall be accompanied by an application supported by
affidavit setting forth the facts on which the appellant relies to satisfy the
Court that he had sufficient cause for not preferring the appeal within such
period.
(2) If the Court sees no reason to reject the application without the issue of a
notice to the respondent, notice thereof shall be issued to the respondent and
the matter shall be finally decided by the Court before it proceeds to deal with
the appeal under rule 11 or rule 13, as the case may be.
(3) Where an application has been made under sub-rule (1), the Court shall not
make an order for the stay of execution of the decree against which the appeal
is proposed to be filed so long as the Court does not, after hearing under rule
11, decide to hear the appeal.]
COMMENT.—
Rule 3-A was inserted which deals with the "Application for condonation of delay".
Admission of an appeal as to part and rejection as to other part is illegal. An appeal

can be admitted wholly or rejected wholly.46 In a land acquisition case an application
for amendment of memo of appeal was rejected by the High Court on the sole ground
of delay. Such an order rejecting the application was set aside as being illegal.47
Where an appeal against exparte decree was dismissed as time barred by rejecting
application for condonation of delay, Explanation to O IX, rule 13 of the Code would be
attracted. An application for setting aside ex parte decree would not be maintainable.
The fact that the appeal was filed subsequent to application under rule 13 of O IX
would be of no consequence. Explanation to rule 13 applies to cases where appeal is
filed subsequent to application under rule 13 also.48
Sufficient cause.—
Appeal, cross objection.—
The Cross objections should be filed within a period of one month from the day of
service of notice either upon himself or his pleader. It is settled law that service of
notice regarding hearing of the appeal can be waived either by the respondent or his
pleader when such notice is waived the period of limitation for taking cross objection
would be deemed to have commenced from the date of waiver of the notice.49
Appeal was filed after the expiry of limitation period. It was held that compliance with
rule 3A requiring filing of application for condonation of delay along with appear
appeal, not mandatory.50
46 Ramji Bhagale v Krishnarao, AIR 1982 SC 1223 : (1982) 1 SCC 350 .
47 Harcharan v State of Haryana, AIR 1983 SC 43 (45) : (1982) 3 SCC 408 .
48 Shyam Sunder Sarma v Pannalal Jaiswal, AIR 2005 SC 226 (229).
49 ONGC Ltd v Punjsons Ltd, AIR 2008 (NOC) 2734 (Bom) : 2008 (5) AIR Bom R 262 (DB).
50 Shankar Ram Ravidas v Shyam Nandan Sahay, AIR 2014 Jhar 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. One of several plaintiffs
or defendants may obtain reversal of whole decree where it proceeds on ground common to all
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
One of several plaintiffs or defendants may obtain reversal of whole decree
where it proceeds on ground common to all
Where there are more plaintiffs or more defendants than one in a suit, and the decree
appealed from proceeds on any ground common to all the plaintiffs or to all the
defendants, anyone of the plaintiffs or of the defendants may appeal from the whole
decree, and thereupon the Appellate Court may reverse or vary the decree in favour of
all the plaintiffs or defendants, as the case may be.
COMMENT.—
The object of rule 4 of O XLI is to enable one of the parties to a suit to obtain relief in
appeal when the decree appealed from proceeds on a ground common to him and
others. The Court in such an appeal may reverse or vary the decree in favour of all the
parties who are in the same interest as the appellant.51
There was a difference of opinion on the point whether this rule could be invoked when
on the death of one of the several appellants his legal representatives are not brought
on record and in consequence the appeal abates as against him. The object of rule 4 is
to enable one of the parties to a suit to obtain relief in appeal when the decree
appealed from proceeds on a ground common to him and others. The Court may
reverse or vary the decree in favour of all the parties who are in same interest as the
appellant. Rule 4 does not override the provisions of O XXII rule 9.
When the decree proceeds on a ground common to all the plaintiff or defendants, if all
the plaintiffs or defendants appeal from that decree then rule 4 is not applicable. If any
of them dies and the appeal abates so far as he is concerned under O XXII, rule 3, then
the appellate Court has no power to proceed with the appeal and to reverse and vary
the decree in favour of all the plaintiffs or defendants.52
The principle of law laid down in the aforesaid decision of the Supreme Court applies
only to cases where an appellant dies during the pendency of the appeal. The person
jointly interested in decree has been made a party respondent. On his death his heirs
have not been brought on record. This fact does not per se divest the appellate Court of
its jurisdiction to pass decree in appeal under O XLI, rule 4.53 In another decision where
a suit by A's partner for accounts against other partners B, C, D, and E was decreed in
the first Court fixing in the shares of A and B, C, D and E but on appeal by B the suit was
dismissed on the ground that neither A nor C, D and E were partner, but that the whole
concern belonged to B alone, and A filed a second appeal making B, C, D and E
respondents and C died thereafter and his legal representatives were not brought on
record, it was held by majority of the Supreme Court without reference to this rule that
the appeal had abated. The minority held that the appeal did not abate and no Court
could under this rule decree the appeal even in favour of C's legal representative.54
In a suit for specific performance against vendor and subsequent purchaser, the
plaintiff in the alternative claimed, a decree for certain amount, consisting of part
consideration paid and certain other amount against the vendor alone. During the
pendency of appeal the vendor died and his legal representatives were not brought on
record. Rule 4 could not be invoked as abatement of appeal against the vendor was
fatal to the entire appeal. Because either inconsistent or contradictory decrees would
have to be passed or proper relief could not be granted in the absence of legal
representative.55
Sub-tenant alone entitled to have decree set aside.—
Against a decree for ejectment, both against tenant and sub-tenant on ground of
subletting without consent of the landlord, the sub-tenant alone is entitled to have the
decree set aside, even though thereby the tenant would also be freed from that
decree.56
A suit for partition was dismissed. An appeal against the dismissal order was filed by
some of the plaintiffs. The Court is empowered to reverse the decree and grant relief to
non-appealing plaintiffs. The Court can vary the decree in favour of all the parties who
are in the same interest as the appellant.57
Appeal by some of the defendants.—
Where a joint eviction decree was passed against several defendants and one of the
defendants died, if an appeal is filed by remaining defendants against whole decree
then it would be maintainable.58
Abatement of appeal in joint decree.—
One of the appellants had died pending the appeal and his legal representatives were
not brought on record. If the decree was joint one and part of the decree had become
final by reason of abatement then the entire appeal must be held to have abated. But if
the decree of trial Court was one, three appeals were filed by three sets of parties, one
of the appellants died and his legal representatives were not brought on record, then
the appeal might abate as far as he was concerned but not as regards the other
appellants.59
In order to avoid inconsistent situations and possibility of incongruous orders, the

Supreme Court dismissed the suit not only against the appellant-purchaser but also
other purchasers who had not appealed, by exercising powers under this rule.60
Appellate Court, power of.—
In terms of O XLI, rule 4 of the Code, the appellate Court, in the event, finds merit in the
appeal at the instance of one of the respondents, may set aside entire judgment
although another respondent had not appealed there against.61
51 Ratan Lal Shah v Firm Lalman Das, AIR 1970 SC 108 : (1969) 2 SCC 70 : 1970 ALJ 53 .
52 Rameshwar Singh v Shambihari, AIR 1963 SC 1901 (1904) : (1964) 3 SCR 549 : (1963) 2 All
933 ; Srichandv Jagdish Chand, AIR 1966 SC 1427 .
53 Mahabir Prasad v Jage Ram, AIR 1971 SC 742 (744) : (1971) 1 SCC 265 ; see also Ratan L
Shah v L Chhadammalal, AIR 1970 SC 108 ; Rameshwar, Pd v SB Jagannath, AIR 1963 SC 1901
distinguished.
54 RP Gupta v Murli Prasad AIR 1972 SC 1181 : (1973) 2 SCC 9 .
55 Dwarka Prasad v Harikant Prasad, AIR 1973 SC 655 : (1973) 1 SCC 179 ; see also Pt Siri
Chand v Jagdish Pd, AIR 1966 SC 1427 ; Rameshwar Pd v Shyam B Jagannath, AIR 1963 SC 1901
: (1964) 3 SCR 549 .
56 Karam Singh Sobti v Pratap Chand, AIR 1964 SC 1305 (1313) : (1964) 4 SCR 467 : 1963 Cur
LJ (SC) 174 .
57 Chandramohan Ramchandra Patil v Bapu Koyappa Patil, AIR 2003 SC 1754 (1758) : (2003) 3
SCC 552 .
58 Lal Chand v Radha Krishna, AIR 1977 SC 789 (792) : (1977) 2 SCC 88 : (1977) 2 SCR 522 .
59 Harihar Prasad v Balmiki Prasad, AIR 1975 SC 733 (748) : (1975) 1 SCC 212 : (1975) 2 SCR
932 .
60 Sindav Hari Ranchhod v Jadav Lalji Jaymal, AIR 1997 SC 3479 (3482) : (1997) 7 SCC 95 .
61 AP Public Service Commission v Baloji Badhavatt, (2009) 5 SCC 01 (20).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Stay by Appellate Court
© 2020 LexisNexis
THE FIRST SCHEDULE
Stay of Proceedings and of Execution
R. 5.
Stay by Appellate Court
(1) An appeal shall not operate as a stay of proceedings under a decree or order
appealed from except so far as the Appellate Court may order, nor shall
execution of a decree be stayed by reason only of an appeal having been
preferred from the decree; [C] but the Appellate Court may for sufficient cause
order stay of execution of such decree. [AP, KNT, K, M]
62[ Explanation. —An order by the Appellate Court for the stay of execution of
the decree shall be effective from the date of the communication of such order
to the Court of first instance, but an affidavit sworn by the appellant, based on
his personal knowledge, stating that an order for the stay of execution of the
decree has been made by the Appellate Court shall, pending the receipt from
the Appellate Court of the order for the stay of execution or any order to the
contrary, be acted upon by the Court of first instance.]
Stay by Court which passed the decree
(2) Where an application is made for stay of execution of an appealable decree

before the expiration of the time allowed for appealing therefrom, the Court
which passed the decree may on sufficient cause being shown order the
execution to be stayed.
(3) No order for stay of execution shall be made under sub-rule (1) or sub-rule (2)
unless the Court making it is satisfied—
(a) that substantial loss may result to the party applying for stay of
execution unless the order is made;
(b) that the application has been made without unreasonable delay; and
(c) that security has been given by the applicant for the due performance of
such decree or order as may ultimately be binding upon him. [K]
(4) 63[Subject to the provisions of sub-rule (3),] the Court may make an ex parte
order for stay of execution pending the hearing of the application.
64
[(5) Notwithstanding anything contained in the foregoing sub-rules, where the
appellant fails to make the deposit or furnish the security specified in sub-
rule (3) of rule 1, the Court shall not make an order staying the execution of
the decree.]

Allahabad.— Substitute the following for sub-rule (5) of rule 5, namely:—
"Notwithstanding anything contained in the foregoing sub-rules, where the appeal is

against a decree for payment of money, the appellate Court shall not make an order
staying the execution of the decree, unless the appellant shall, within such time as the
appellate Court may allow, deposit the amount disputed in the appeal or furnish such
security in respect thereof as the appellate Court may think fit".—(1-1-1994).
Calcutta (Notfn No 6874-G; 5th Oct, 1948).—For the words "but the appellate Court may
such decree" at the end of sub-rule (1) substitute "but the Appellate Court may subject
to sub-rule (3) of rule 6 of this Order, for sufficient cause order stay of execution of
such decree".
At the end of sub-rule (1) add the following:—
"and may, when the appeal is against a preliminary decree, stay the making of a final
decree in pursuance of the said preliminary decree or the execution of any such final
decree if already made or when made or stay all or any of the further proceedings to be
taken pursuant to such preliminary decree.
Nothing herein contained shall affect or limit the inherent power of the Court to stay
other proceedings either before it or any Court subordinate to it in appropriate cases."
(5-11-1959)
Kerala (Notfn No B1-3312/58; 7-4-1959).—
(a) At the end of sub-rule (1) add words as in Madras.
(b) Insert the following proviso to sub-rule (3) :—
"Provided that in the case of decree charging immovable properties the appellate Court
may in its discretion dispense with such security in whole or in part." (9-6-1959)

Government Gazette, dated 17-9-1980, Part III, Section 2, Page 222.
Delete the full stop at the end of sub-rule (1) and add the following to the sub-rule:—
(1) "and may, when the appeal is against a preliminary decree, stay the making of a final
decree in pursuance of the preliminary decree or the execution of any such final decree
if already made." [P. Dis. No. 164 of 1932].
(2) In sub-rule (1) after the words "but the Appellate Court may for sufficient cause
order stay of execution of such decree" add the following—
"On such terms and conditions as the Court deems fit." (3) Sub-rule (5) omitted.
COMMENT.—
This rule has been amended and it non-empowers the Court to order stay of
proceedings for final decree or the making of final decree.
Once an appeal is filed from a decree, it is the Appellate Court alone that is seized of
the matter and an application for a stay of execution should be made to that Court.
Where no appeal is filed, the application should be made to the judge who decided the
case without any unreasonable delay.
Order staying execution at appellate stage.—
A composite application asking for execution of decree passed an appeal as to

possession and for the relief by way of mesne profits under the stay order of appellate
Court, is maintainable.65
The stay of execution of decree by the first Court, upon depositing title deeds of certain
properties by way of security, pending the appeal before the Apex Court is not
tenable.66
The Court has power under this rule to make an order for stay of execution for
"sufficient cause". But no order should be made for a stay of execution unless the Court
is satisfied that substantial loss may result to the party applying for a stay of execution
if the execution is not stayed.
There was no order of stay of execution of decree when execution was levied and the
judgment-debtor deposited the decretal dues in the Executing Court. Once the decretal
dues had come into the Executing Court, there was indeed, no justification for the
direction to refund the same to the judgment-debtor. On the other hand the High Court
could either, direct payment of the amount to the decree-holder, subject to terms
safeguarding the interest of the judgment-debtor if decree was reversed. Or it could
direct the amount to be deposited or invested on terms of interest so that on the
disposal of First Appeal appropriate directions could be given.67
This rule does not apply to a proceeding not taken under the decree of order appealed
from.
Stay of execution proceedings by the appellate Court may be refused only for special
reasons.68
A final order staying the execution should not be made without notice to the decree-
holder and if it is made without notice, it is illegal and it may be set aside. An interim
stay order may be granted ex parte.
The Supreme Court in a special leave petition will not ordinarily interfere with the
interim orders passed by the High Court. It can, however, do so to a limited extent so
that the impression that the Court's process can be lightly trifled with, may be
avoided.69
What amounts to stay?.—
Filing of an appeal operates as a stay automatically for a decree or order.70
Proceedings can be set aside even after stay.—
Even after stay is brought to a Court's notice it has power to set aside proceedings
taken between time when stay was issued and time when it was brought to its notice, if
it is asked to do and if it considers to be necessary in the interest of justice.71
Fixation of mesne profit.—
Where tenant had used dilatory tactics, fixation of Rs. 4,000/- p.m. as mesne profit was
held to be not excessive.72
Interim stay of money decree earlier granted in favour of plaintiff by High Court in
appeal, vacated by it on the ground that under O XLI, rule 5 there cannot be
unconditional stay of money decree and in view of fact that appellant judgment-debtor
was not willing to deposit decretal amount in court. It was held that High Court not
justified in vacating the interim order.73
62 Ins. by Act 104 of 1976, Section 87 (w.e.f. 1-2-1977).

words (w.e.f. 1-2-1977).
64 Subs. by Code oof Civil Procedure (Amendment) Act 104 of 1976, Section 87, for certain
words (w.e.f. 1-2-1977).
65 Pushpawatibai v Ratansi, AIR 1967 SC 761 : 1963 Mah LJ 681 .
66 Nepal Food Corpn v Thye Shipping Panama SA, 2010 (2) Cal LJ 707 (DB).
67 Central Bank of India v State of Gujarat, AIR 1987 SC 2320 : (1987) 4 SCC 407 .
68 Rajaram Pd Gupta v Ram Chandra Pd, (2008) 10 SCC 796 (797).
69 Jethabhai Khatau & Co v LN Cotton Mills Ltd, AIR 1981 SC 1201 (1203, 1205) : (1981) 3 SCC
61 : (1981) 3 SCR 449 .
70 UOI v Sanjoy Gupta, 2008 (3) Cal HN 775 (777-78) (DB).
71 Mulraj v Murti Raghunathji, AIR 1967 SC 1386 (1388) : (1967) 3 SCR 84 : 1967 BLJR 665 .
72 Pradeep Kumar v Hajari Lal, AIR 2008 SC 1689 .
73 Gazal Taneja vMTNL, (2013) 7 SCC 543 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Security in case of order
for execution of decree appealed from
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Security in case of order for execution of decree appealed from
(1) Where an order is made for the execution of a decree from which an appeal is
pending, the Court which passed the decree shall, on sufficient cause being
shown by the appellant, require security to be taken for the restitution of any
property which may be or has been taken in execution of the decree or for the
payment of the value of such property and for the due performance of the
decree or order of the Appellate Court, or the Appellate Court may for like
cause direct the Court which passed the decree to take such security.
(2) Where an order has been made for the sale of immovable property in execution
of a decree, and an appeal is pending from such decree, the sale shall, on the
application of the judgment-debtor to the Court which made the order, be
stayed on such terms as to giving security or otherwise as the Court thinks fit
until the appeal is disposed of. [C]
[Sub-rule (3) added in Cal].
Calcutta (Notfn No 6874-G, 5th Oct 1948).—
Add as sub-rule (3) :—
"(3) Where no such application has been presented to the Court which made the order,
an application for stay of the sale shall not be entertained by the Appellate Court."
COMMENT.—
Before any action can be taken by the Court under this rule, there must be an
appropriate application. A mere request is not sufficient. This rule does not apply
unless there is an order made for the execution of a decree and secondly there is an
appeal pending from that decree.
Sub-rule (2) is a mandatory provision. Hence, the Court is bound to stay the sale of
immovable property on such terms as to giving security or otherwise as it thinks fit.74
In the execution of a decree for specific performance of agreement to sell an

immovable property, the appellate Court directed stay of execution subject to appellate-
plaintiff depositing certain amount by way of security. If the High Court allowed this
amount to be withdrawn by defendant-respondents in appeal then it would not be
proper. Where no order was made by the High Court while disposing of appeal finally
for forfeiture of amount in favour of the plaintiff, the security amount shou ld be
returned to defendant judgment debtor in absence of specific order.75
74 Firm Lalmiya v SKAhmad, AIR 1969 Guj 166 .


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Omitted by para 3 and
Sch 1 AILO 1937
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Omitted by para 3 and Sch 1 AILO 1937
[Omitted by para 3 and Sch 1 AILO 1937]. Former rule 7 is now r 8-A of Or 27.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Exercise of powers in
appeal from order made in execution of decree
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Exercise of powers in appeal from order made in execution of decree
The powers conferred by rules 5 and 6 shall be exercisable where an appeal may be or
has been preferred not from decree but from an order made in execution of such
decree.
COMMENT.—
This rule has been added to meet particularly the case where the litigant does not
quarrel with the decree but appeals from an order passed in execution of that decree.
In such a case the rule provides that the appellant may apply for a stay of execution of
the decree under rule 5 or for security for restitution under rule 6.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9. Registry of
memorandum of appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
Procedure on Admission of Appeal
76[R. 9.
Registry of memorandum of appeal
(1) The Court from whose decree an appeal lies shall entertain the memorandum of
appeal and shall endorse thereon the date of presentation and shall register the
appeal in a book of appeal kept for that purpose.
(2) Such book shall be called the register of appeal.]
COMMENT.—
Important Note—
Act, 1999 (w.e.f. 1-7-2002).
Code of Civil Prorcedure (Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-
2002).—
Modifications.—This rule has been substituted with the following modifications:
1. Rule 9 of O XLI has been substituted by a new rule.
2. Under rule 9, as amended, provides that the memorandum of appeal shall be

entertained by the Court against whose decree an appeal is to be filed. See also rule 1
supra.

1999 stated thus:-
This clause proposes to amend Order XLI of the First Schedule so as to provide for filing of
appeal on the basis of the copy of the judgment, to avoid delay as obtaining copy of decree
takes considerable time. Further to avoid delay it is proposed that an appeal may be filed in
the same Court which passed the judgment and that Court shall direct the parties to appear
before appellate Court. [Clause 31]

force.
Duty of Court to entertain appeal and maintain register of appeal.—
The Court against whose judgment an appeal is being preferred has to entertain the
appeal, to endorse on it the date of appeal and to enter it in the register of appeal to be
maintained for that purpose.

Non-filing of memorandum of appeal will not make appeal defective.—
The provisions of this rule do not require that an appeal be filed in the Court from
whose decree the appeal is sought to be filed. An appeal is to be filed in the Court in
which it is maintainable. Only a copy of Memorandum of Appeal should also be
presented before the Court against whose decree the appeal has been filed. If such a
memorandum is not filed then it will not make the appeal filed in the appellate Court
defective.77
76 Subs. by the Code of Civil Procedure (Amendment) Act 1999 (46 of 1999) (w.e.f. 1-7-2002)
'Rule 9. Registry of memorandum of appeal.—(1) Where a memorandum of appeal is admitted,

the Appellate Court or the proper officer of that Court shall endorse thereon the date of
presentation, and shall register the appeal in a book to be kept for the purpose.
Register of Appeals.—(2) Such book shall be called Register of Appeals.'
77 Salem Advocate Bar Association, TN v UOI, AIR 2003 SC 189 (195) : (2003) 1 SCC 49 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Appellate Court may
require appellant to furnish security for costs
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Appellate Court may require appellant to furnish security for costs
(1) The Appellate Court may, in its discretion either before the respondent is called
upon to appear and answer or afterwards on the application of the respondent,
demand from the appellant security for the costs of the appeal, or of the
original suit, or of both.
Where appellant resides out of India
Provided that the Court shall demand such security in all cases in which the appellant
is residing out of 78[India], and is not possessed of any sufficient immovable property
within 79[India] other than the property (if any) to which the appeal relates.
(2) Where such security is not furnished within such time as the Court orders, the
Court shall reject the appeal.
Allahabad (Notfn No 43/VII-d-29 of 1-6-1957).—In the Proviso to sub-rule (1) for the
word "India" occurring for the second time substitute "the State".
COMMENT.—
The object of this rule is to secure the respondent in an appeal from the risk of having
to incur further costs which he might never succeed in getting out of the appellant.
78 Subs. by Code of Civil Procedure (Amendment) Act 2 of 1951, Section 3, for "the States"
(w.e.f. 1-2-1977).
79 Subs. by Code of Civl Procedure (Amendment) Act 2 of 1951, Section 3 for "the States"
(w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Power to dismiss
appeal without sending notice to Lower Court
© 2020 LexisNexis
THE FIRST SCHEDULE
80R. 11.
Power to dismiss appeal without sending notice to Lower Court
[(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and
hearing him accordingly if he appears on that day may dismiss the appeal],
(2) If on the day fixed or any other day to which the hearing may be adjourned the
appellant does not appear when the appeal is called on for hearing, the Court
may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from
whose decree the appeal is preferred.
81
[(4) Where an Appellate Court, not being the High Court, dismisses an appeal
under sub-rule (1), it shall deliver a judgment, recording in brief its grounds
for doing so, and a decree shall be drawn up in accordance with the
judgment.]
Orissa.—
The following amendments were made by Orissa Gazette, Part III-A, Page 70, dated 25-5-
1984.
COMMENT.—
Important Note—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In rule 11, for sub-rule (1), the following sub-rule shall be substituted, namely:—
(1) The Appellate Court after fixing a day for hearing the appellant or his pleader and
hearing him accordingly if he appears on that day may dismiss the appeal.
The appellate Court has to fix a date for the hearing of the appellant or his pleader. The
Court may hear him, if he does appear and dismiss the appeal without giving notice to
the lower Court.
1. In O XLI, in rule 11, sub-rule (1) has been substituted by a new rule.
2. The effect of the amendment is that an appeal can be dismissed without sending
notice to the lower Court.
See also Notes under O XLI, rule 1.

1999 stated thus:-
Clause 31 proposes to amend Order XLI of the First Schedule so as to provide for filing of
takes considerable time. Further, to avoid delay it is proposed that an appeal may be filed in

force.
Power to dismiss appeal.—
The appellate Court has to fix a date for hearing the appellant or his pleader. The Court
may hear him if he does appear and dismiss the appeal without giving notice to the
lower Court.
In this connection reference may be made to the report of Justice Malimath

Committees Ch. III, p 20.
Indeed, the provisions of Order XLI, rules 11, 11A and 12 of the Code of Civil Procedure read
together make it obligatory for the appellate Court to fix a day for the preliminary hearing of
appeal as expeditiously as possible and to make endeavour to conclude such hearing within
sixty days from the date of which the memorandum of appeal is filed and, unless the appeal
is summarily dismissed at preliminary hearing, to fix a day for final hearing. In other words,
the question of fixing a day for the final hearing of appeal arises only if the appeal is not
summarily dismissed at the preliminary hearing which has to be fixed as expeditiously as
possible after the memorandum of appeal is filed. In our view, these provisions should be
strictly followed. However, care should be taken that an appeal which raises triable issue is
not dismissed in limine. We would also like to emphasise that when an appeal is dismissed
in limine, a brief order giving reasons for dismissal at the preliminary stage should invariably
be recorded. A similar recommendation has been made by the Law Commission of India in
its 79th report.

If counsel for appellants does not appear on the day fixed for hearing despite of
adequate opportunities but High Court considers merits of the case and dismisses
appeal on merits. It has been held by the Supreme Court as not proper. The only course
open to the High Court was to dismiss the appeal on non prosecution or for default.82
Where appeals arose out of disputes under repealed Railways Act of 1890, it does not
enquire hearing under O XLI, rule 11 of Code of Civil Procedure.83
Appeal, summary dismissal.—
An appeal raising triable issue should not be summarily dismissed. A will was executed
by an old and literate man of 80 years. The will bore his thumb impression and not his
signature. Out of six attesting witnesses only two were examined. An evidence of the
doctor was also not convincing. The trial Court held the will as genuine and on appeal
the High Court summarily dismissed it. There was triable issue involved in the appeal
and the High Court was not justified in summarily dismissing it.84
Summary dismissal of first appeal.—
An appeal raising triable issues should not be summarily dismissed.85
An appeal can be admitted wholly or rejected wholly.—
Admission of an appeal as to part and rejection as to other part is illegal. An appeal

can be admitted wholly or rejected wholly.86
No discretion, to avoid recording reasons.—
In a dismissal of appeal without notice to lower Court a High Court though is not
required under sub-rule (4) to record the ground for doing so but this provision does not
give full discretionary powers to avoid recording every reasons.87
Appeal, condition for admission of.—
Imposition of condition of deposit for admission of appeal is not permissible.88
Defective appeal was presented and the same was listed. However, the appeal could
not reach on the day it was listed and therefore the same was listed again. As nobody
appeared on behalf of appellants, when it was listed again, the appeal was dismissed
on merits. It was held that the power to dismiss the appeal summarily, has been
conferred by the legislatures on the appellate court in terms of O XLI, rule 11. The court
was thus justified in rejecting the appeal summarily in terms of aforesaid provisions of
law.89
Dismissal of appeal for non-filing of certified copy--not proper.—
Once an appeal is not dismissed under the provisions of rule 11 of O XLI, appeal is to
be admitted and a date of hearing is to be fixed and notice of such date of hearing is to
be served on respondent. Only provision, which authorises appellate court to dismiss
the appeal thereafter is under rule 17 for non- appearance of appellant. Therefore,
dismissal of appeal for improper presentation of appeal not proper.90
'(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day
for hearing the appellant or his pleader and hearing him accordingly if he appears on that day,
may dismiss the appeal without sending notice to the Court from whose decree the appeal is
preferred and without serving notice on the respondent or his pleader.'
82 Ajit Kumar Singh v Chiranjibi Lal, AIR 2002 SC 1447 (2) : (2002) 3 SCC 609 .
83 UOI v Santi Ranjan Dutta, AIR 2008 Cal 16 (DB).
84 Mahadev Tukaram Vetale v Sugandha, AIR 1972 SC 1932 : (1973) 3 SCC 746 .
85 Umahant VJunnarhar v Parashuram Damodar Vaidya, AIR 1973 SC 218 (220); see also
Mahadev Tukaram Vetale v Sugandha, AIR 1972 SC 1932 : (1973) 3 SCC 746 .
86 Ramji Bhagala v Krishnarao, AIR 1982 SC 1223 : (1982) 1 SCC 433 .
87 Jayanmti De v Abani Kanta Barat, AIR 2000 SC 3578 (2).
88 MGMT of Devi Theatre v Vishwanath Raju, AIR 2004 SC 3325 .
89 Sudesh Kumar Sharma v State of J&K, AIR 2014 J&K 52 .
90 Satyabhama Pattanaik v Bijendra Mohapatra, AIR 2013 Ori 26 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 11A. Time within which
hearing under rule should be concluded
© 2020 LexisNexis
THE FIRST SCHEDULE
91[R. 11A.
Time within which hearing under rule should be concluded
Every appeal shall be heard under rule 11 as expeditiously as possible and endeavour
shall be made to conclude such hearing within sixty days from the date on which the
memorandum of appeal is filed.]
COMMENT.—
Rule 11-A has been inserted which lays down that every appeal shall be heard as
expeditiously as possible and endeavour shall be made to conclude such hearing
within sixty days from the date on which the memorandum of appeal is filed.
Reversing a Division Bench decision of Bombay High Court, it has been held by the
Supreme Court in Ramji v Krishnarao, AIR 1982 SC 1223 : (1982) 1 SCC 433 . that
admission of an appeal as to part or rejection as to other part is illegal. An appeal can
be admitted wholly or rejected wholly.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Day for hearing appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Day for hearing appeal
(1) Unless the Appellate Court dismisses the appeal under rule 11, it shall fix a day
for hearing the appeal.
92
[(2) Such day shall be fixed with reference to the current business of the Court].
COMMENT.—
Important Note—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
In rule 12, for sub-rule (2), the following sub-rule shall be substituted, namely:—
(2) Such day shall be fixed with reference to the current business of the Court.
Modifications.—This rule has been amended with the following modifications:
1. In O XLI, in rule 12 a new sub-rule (2) has been substituted.
2. Under rule 12, as amended, the day for hearing the appeal shall be fixed with
reference to the current business of the Court.
3. See also Notes under O XLI, rules 1 and 2.

1999 stated thus:-
takes considerable time. Further to avoid delay it is proposed that an appeal may be filed in
force.
Matters to be considered in fixing day of hearing.—As per the amended rule 12(1), the
only consideration for fixing the day of hearing appeal is the current business of the
Court. The other matters (place of residence of the respondent and the time necessary
for service of the notice of appeal) with reference to which the day was to be fixed
under the pre-amendment rule 12(1) have been omitted.
92 Subs. by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 31 (w.e.f.
1-72002) vide Notfn. S.O. 603(E), dt. 6-6-2002 for the following:
'(2) Such day shall be fixed with reference to the current business of the Court, the place of
residence of the respondent, and the time necessary for the service of the notice of appeal, so
as to allow the respondent sufficient time to appear and answer the appeal on such day.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 13. Appellate Court to give
notice to Court whose decree appealed from
© 2020 LexisNexis
THE FIRST SCHEDULE
93[R. 13.
Appellate Court to give notice to Court whose decree appealed from
*****]
COMMENT.—
Important Note—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Modification.—This rule has been amended to introduce the following modification:
Rule 13 of O XLI has been omitted.
See further Notes under O XLI, rule 1.

1999 stated thus:-
appeal on the basis of the copy of the judgment to avoid delay as obtaining copy of decree

force.
Dismissal of appeal on the basis of judgment without giving notice to lower

Court.—
Rule 13 which provided for issue of notice by the Appellate Court to the Court against
whose decree appeal was made and related matters has been deleted. In this context.
reference may be made to rule 11(1) which empowers the Court to dismiss the appeal
on the day fixed for the hearing if the appellant is present or represented on that day, on
the basis of the judgement only and without giving notice to the lower Court.
93 Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section 31
(w.e.f. 1-72002) vide Notfn. S.O. 603(E), dt. 6-6-2002, prior to its omission rule 13 stood as under
:
'(1) Where the appeal is not dismissed under rule 11, the Appellate Court shall send notice of
the appeal to the Court from whose decree the appeal is preferred.
Transmission of papers to Appellate Court.—(2) Where the appeal is from the decree of a Court,
the records of which are not deposited in the Appellate Court, the Court receiving such notice
shall send with all practicable despatch all material papers in the suit, or such papers as may be
specially called for by the Appellate Court.
Copies of exhibits in Court whose decree appealed from.—(3) Either party may apply in writing to
the Court from whose decree the appeal is preferred, specifying any of the papers in such Court
of which he requires copies to be made; and copies of such papers shall be made at the
expense of, and given to, the applicant.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Publication and service
of notice of day for hearing appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Publication and service of notice of day for hearing appeal
(1) Notice of the day fixed under rule 12 shall be affixed in the Appellate Court-
house, and a like notice shall be sent by the Appellate Court to the Court from
whose decree the appeal is preferred, and shall be served on the respondent or
on his pleader in the Appellate Court in the manner provided for the service on
a defendant of a summons to appear and answer; and all the provisions
applicable to such summons, and to proceedings with reference to the service
thereof, shall apply to the service of such notice.
Appellate Court may itself cause notice to be served
(2) Instead of sending the notice to the Court from whose decree the appeal is
preferred, the Appellate Court may itself cause the notice to be served on the
respondent or his pleader under the provisions above referred to.
94
[(3) The notice to be served on the respondent shall be accompanied by a copy
of the memorandum of appeal.
(4) Notwithstanding anything to the contrary contained in sub-rule (1), it shall not
be necessary to serve notice of any proceeding incidental to an appeal on any
respondent other than a person impleaded for the first time in the Appellate
Court, unless he has appeared and filed an address for the service in the Court
of first instance or has appeared in the appeal.
(5) Nothing in sub-rule (4) shall bar the respondent referred to in the appeal from
defending it.]
[Sub-rules (4) and (5) added in Delhi, HP and Punjab; sub-rule (3) added in Orissa. Rule
14A added in Kerala.]

In Order XLI in rule 14, in sub-rule (1), for the words "or on his pleader in the Appellate
Court'—Substitute the following:
"Or on his pleader competent to receive the notice on his behalf.".
Andhra Pradesh.— The following amendments were made by Andhra Pradesh, P. Dis. No.
4 of 1927.
Insert the following as a proviso to sub-rule (1):
Provided that the Appellate Court may dispense with service of notice on respondents,
against whom the suit has proceeded ex parte in the Court from whose decree the
appeal is preferred.

Same as that of Andhra Pradesh.
Kerala (Notfn No BI-9327/61; 20-6-1963).—Add the following as rule 14A:—
"14A. Substitution of letter for notice.—(1) The Court may, notwithstanding anything
hereinbefore contained, substitute for notice a letter signed by the Judge or such
officer as he may appoint in this behalf, where the respondent is the presiding officer of
a House of Parliament or of a State Legislature or the Chairman of a Committee
thereof or, in the opinion of the Court of a rank entitling him to such mark of
consideration.
(2) A letter substituted under sub-rule (1) shall contain all the particulars required to be
stated in a notice and, subject to the provisions of sub-rule (3), shall be treated in all
respects as a notice.
(3) A letter so substituted may be sent to the respondent by post or by a special

messenger selected by the Court, or in any other manner which the Court thinks fit; and
where the respondent has an agent empowered to accept service, the letter may be
delivered or sent to such agent." (16-7-1963)
dated 17-11-1976, Part III, Section 2, Page 108.
Insert the following as a proviso to sub-rule (1):
"Provided that the Appellate Court may dispense with service of notice on respondents,
who have remained absent, against whom the suit has proceeded ex parte in the Court
from whose decree the appeal is preferred or who have been declared absent by the
said Court." (P. Dis. No. 221 of 1976).
Orissa.—
The following amendments were made by Orissa Gazette, dated 10-7-1954.
"95(2A)Where the passing of an ex parte interlocutory order has, in the opinion of the
Court, the effect of causing delay in any proceeding pending in a subordinate Court,
notice shall issue simultaneously both to the respondent and to his pleader in the said
proceeding in the subordinate Court, fixing a short date for return of the service. If the
pleader has been served with the notice but the notice to the respondent is returned
unserved and no appearance is made on his behalf the appellate Court may in its
discretion declare the service on the pleader to be sufficient service on the respondent
and shall intimate the same to the respondent by registered post at the cost of the
appellant."
Punjab (Notfn No 19-Genl/XI-Y; 3-2-1950).—
Insert the following as sub-rules (3),(4),(5) and (6):—

"(3) it shall be in the discretion of the Appellate Court to make an order, at any stage of
the appeal whether on the application of any party or on its own motion, dispensing
with service of such notice on any respondent who did not appear, either at the hearing
in the Court whose decree is complained of, or at any proceedings subsequent to the
decree of that Court, or on the legal representatives of any such respondent:
Provided that—
(a) that Court may require notice of the appeal to be published in any newspapers
or in such other manner as it may direct;
(b) no such order shall preclude any such respondent or legal representative from
appearing to contest the appeal."
"(4) Where the respondent or any of the respondents has migrated to Pakistan and he
cannot be served in the ordinary way, if the appeal has arisen out of a suit to obtain
relief respecting, or compensation for wrong to, immovable property, the notice shall be
served on the Custodian of Evacuee Property, Punjab or Delhi, as the case may be. In all
other cases, the notice shall be served on such Custodian and a copy of the notice
shall be sent, by registered post, to the Secretary-General to the Pakistan Government.
(5) The provisions of sub-rule (4) shall mutatis mutandis apply to appellants, who have
migrated to Pakistan and who cannot be served in the ordinary way."
(6) Every notice of appeal to a respondent other than a respondent stated to be pro
forma shall be accompanied by a copy of the memorandum of appeal or, if so
permitted, by a concise statement.
Patna.—
Add the following as rule 14A.
"Rule 14A. The Appellate Court may, in its discretion, dispense with the service of
notice hereinbefore required on a respondent, or on the legal representative of a
deceased respondent, in a case where such respondent did not appear, either at any
stage of the proceedings in the Court whose decree is appealed from or in any
proceedings subsequent to the decree of that Court and no relief is claimed against
such opposite party or respondent or his legal representative either in the original case
or appeal."
94 Ins. by Code of Civil Procedure (Amendment) Act 104 of 1976, section. 87, (w.e.f. 1-2-1977).
95 Sub-rule (3) renumbered as sub-rule (2A) sub-rule (4) which was added for 25-6-1966, is
omitted vide Orissa Gaz., 25-5-1984. Pt. III-A, P. 70.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 15. Contents of notice
© 2020 LexisNexis
THE FIRST SCHEDULE
96[R. 15.
Contents of notice
* * * * *].
COMMENT.—
Important Note—
Act, 1999 (w.e.f. 1-7-2002).
2002).—
Omission.—Rule 15 of O XLI has been omitted. See further Notes under O XLI, rule 1.

1999 stated thus:-
Clause 31 proposes to amend Order XLI of the First Schedule so as to provide for filing
of appeal on the basis of the copy of the judgment to avoid delay as obtaining copy of
decree takes considerable time. Further, to avoid delay it is proposed that an appeal
may be filed in the same Court which passed the judgment and that Court shall direct
the parties to appear before the appellate Court. [Clause 31]

force.
Ex parte hearing of appeal.—Rule 15 [before its repeal] provided for a declaration in the
notice to the respondent that the appeal would be heard ex parte if the respondent
failed to appear on the day fixed for the hearing. This rule has been omitted by the
Amendment Act, 1999. Reference may be made to the new rule 11(1).

HIGH COURT AMENDMENTS UNDER THE OLD RULE
Bombay.—
Add the following as rule 15A:—
"15A. Dismissal for want of prosecution.—Where after the admission of an appeal the
rules or the special directions of the Court require the appellant to take any steps in the
prosecution of the appeal before a fixed date and where after due notice intimating the
steps to be taken the appellant fails to take such steps within the time prescribed by
the rules or allowed by the Court, the Court may direct the appeal to be dismissed for
want of prosecution or may pass such other order as it thinks fit." (1-11-1966).
Insert the following as rule 15A:—
"15A. Failure to take necessary steps after admission of an appeal in the High Court.—
Where, after admission of an appeal in the High Court, the rules of the High Court
require that appellant to take any steps in the prosecution of the appeal [before a fixed
date, and where, after due service of a notice intimating the steps to be taken and the
date before which they must be taken, the appellant fails to take such steps within the
prescribed time], the Court may direct the appeal to be dismissed for want of
prosecution or may pass such other order as it thinks fit." (16-9-1960)
Madhya Pradesh Amendment.—
Where there was an order by the Court in terrorem and not an order compelling the
appellant to any course of conduct, the dismissal of appeal for default cannot be
carried beyond rule 15A. So an application for restoration can be judged under Order
XLI, rule 19.97
96 Rule 15 omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999), section
31 (w.e.f. 1-7-2002) vide Notfn SO 603(E), dt. 6-6-2002, prior to its omission it stood as under:
CR. 15. Contents of notice.—The notice to the respondent shall declare that, if he does not
appear in the Appellate Court on the day so fixed the appeal will be heard ex parte.'
97 Manohar v Chandulal, AIR 1958 MP 257 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Right to begin
© 2020 LexisNexis
THE FIRST SCHEDULE
Procedure on Hearing
R. 16.
Right to begin
(1) On the day fixed, or on any other day to which the hearing may be adjourned,
the appellant shall be heard in support of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at once, hear the
respondent against the appeal, and in such case the appellant shall be entitled
to reply.
Allahabad (Notfn No 14186/VIId-147; 22-12-1951).—In sub-rule (1), for "On the day
fixed be adjourned" substitute "When the appeal is called on for hearing".
COMMENT.—
It has been held by the Supreme Court that the burden is always on the appellant to
show that the judgment of the lower Court is wrong.98 When the respondent intends to
raise a preliminary objection as to the maintainability of the appeal should be according
to well established conventions resisting on principle and convenience, raise the object
at the beginning of the hearing of the appeal otherwise the Court's time will be
unnecessarily wasted.99
98 Sukhpal Singh v Kalyan Singh, AIR 1963 SC 146 : (1963) 2 SCR 733 : 1962 ALJ 1075 : 1962
BLJR 977 , see also Rattan Chand v Sharab Chhozam, AIR 1972 HP 87 .
99 Ramayya v Venkanraju, AIR 1954 Mad 861 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. Dismissal of appeal for
appellant’s default
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
Dismissal of appeal for appellant's default
(1) Where on the day fixed, or on any other day to which the hearing may be
adjourned, the appellant does not appear when the appeal is called on for
hearing, the Court may make an order that the appeal be dismissed.
100[ Explanation. —Nothing in this sub-rule shall be construed as empowering

the Court to dismiss the appeal on the merits.]
Hearing appeal ex parte
(2) Where the appellant appears and the respondent does not appear, the appeal
shall be heard ex parte.
Allahabad (Notfn No 14186/VIId-147; 22-12-1951).—In sub-rule (1) delete the words "on
the day fixed may be adjourned".
COMMENT.—
The Explanation to sub-rule (1) of this rule has been added by the Amending Act of
1976. There existed a conflict of judicial decisions. This rule has now been made more
explicit by adding the Explanation thereto to the effect that the dismissal of an appeal
on the merits would not be permissible.
The Court has every power to dismiss the appeal for default of appearance of the
appellant. But it has no power to dismiss it on the merits. The Supreme Court has held
in Sukhpal Singh v Kalyan Singh, AIR 1963 SC 146 : 1963 (2) SCR 733 : 1962 ALJ 1075
that when the appellant does not address any argument, the Court is not bound to go
through the materials and judgment and decide the case on the merits and that it was
competent to dismiss the appeal for default.
When the appeal was called on for hearing, neither the counsel for the appellant nor the
counsel for the respondent was present but High Court decided the appeal with cryptic
reasoning. Held that, High Court should have taken recourse to the powers under O XLI,
rule 17 of the Code of Civil Procedure for passing appropriate order as contemplated in
O XLI, rule 17 of the Code of Civil Procedure i.e. dismissal of appeal for appellant's
default.101
Where an appeal was dismissed for default of appellant's council, the party should not
suffer for misdemeanour or inaction of his counsel.102
Once an appeal is admitted and placed for hearing i.e., hearing on merits it can be
dismissed for default but cannot be decided on merits in absence of appellant or his
advocate.103
If appellant does not appear, appeal has to be dismissed for default without going into
merits under rule 17(1). But if the respondent does not appear, appeal can be heard ex
parte on merits under rule 17 (2). If appellant applies under rule 19 for re-admission of
appeal or respondent applies under rule 21 for rehearing court has to be satisfied that
appellant or respondent was prevented by sufficient cause from appearing. However, if
the appellate courts find no sufficient cause shown by appellant or respondent,
application is liable to be rejected.104
Explanation makes it clear that nothing in rule 17(1) of the O XLI of the Code of Civil
Procedure should be construed as empowering appellate court to dismiss appeal on
merits where appellant remained absent or was left unrepresented in date for hearing.
The said explanation has been added because it gives an opportunity to appellant to
convince appellate court that there was sufficient cause for non-appearance.105
101 Navnirman Development Consultants (India) (P) Ltd v District Sports Complex, Pune, (2017) 8
SCC 603 : 2018 (3) CTC 303 : 2017 (7) SCALE 636 : 2017 (10) SCJ 91 .
102 Rafiq v Munshilal, AIR 1981 SC 1400 : (1981) 2 SCC 788 : (1981) 3 SCR 509 .
103 Secy Deptt of Horticulture, Chandigarh v Raghu Raj, AIR 2009 SC 514 (520).
104 Harbans Pershad Jaiswal v Urmila Devi Jaiswal, AIR 2014 SC 3032 .
105 Ashwathamma v Lakshmamma, (2016) 16 SCC 615 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 18. Dismissal of appeal
where notice not served in consequence of appellant’s failure to deposit costs
© 2020 LexisNexis
THE FIRST SCHEDULE
106[R. 18.
Dismissal of appeal where notice not served in consequence of appellant's
failure to deposit costs
* * * * *]
HIGH COURT AMENDMENT UNDER THE OLD RULE
Allahabad (Notfn No 14186/VIId-147 ; 22-12-1951).—In sub-rule (1) delete the words

"on the day fixed may be adjourned".
1983, Part 4 Ka, Page 426 (1-10-1983); Goa Gazette, dated 10-12-1987 Extra., Section 1,
No. 28, Page 390, dated 1-4-1987.
After the existing rule 18, insert the following rule 18A—
"18A. Dismissal for want of prosecution.—
Where after the admission of an appeal the rules or the special directions of the Court
require the appellant to take any steps in the prosecution of the appeal before a fixed
date, and where after due notice intimating the steps to be taken the appellant fails to
take such steps within the time prescribed by the rules or allowed by the Court, the
Court may direct the appeal to be dismissed for want of prosecution or may pass such
other order as it thinks fit."
"Madras and Pondicherry.—
After the words "Costs of serving the notice" insert the words "or if the notice is
returned unserved, to deposit within any subsequent period fixed, the sum required to
defray the costs of any further attempt to serve the notice".
COMMENT.—
2002).—
Omission.—rule 18 of O XLI has been omitted. See also Notes under O XLI, rule 1.

1999 stated thus:-
before the appellate Court. [Clause 31]

force.
Default in depositing costs of notice.—
Rule 18 providing for dismissal of appeal for default in depositing the costs of notice
has been omitted.

This rule 18 has been amended in order to expedite the disposal of appeals. It has been
provided that if on the day of hearing of the appeal it is found that the notice to the
respondent has not been served and the appellant fails to deposit the expenses of
serving the notice once again, the appeal may be dismissed.
106 Rule 18 Omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999) (w.e.f.
1-72002) vide Notfn. S.O. 603(E), dt. 6-6-2002, prior to its omission rule stood as under:
'Where on the day fixed, or on any other day to which the hearing may be adjourned [A] it is
found that the notice to the respondent has not been served in consequence of the failure of the
appellant to deposit within the period fixed, the sum required to defray the cost of serving the
notice, or, if the notice is returned unserved, and it is found that the notice to the respondent has
not been issued in consequence of the failure of the appellant to deposit, within any subsequent
period fixed, the sum required to defray the cost of any further attempt to serve the notice, the
Court may make an order that the appeal be dismissed:
Provided that no such order shall be made although the notice has not been served upon the
respondent, if on any such day the respondent appears when the appeal is called on for hearing.'

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 19. Re-admission of appeal
dismissed for default
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 19.
Re-admission of appeal dismissed for default
Where an appeal is dismissed under rule 11, sub-rule (2), or rule 17 107[* * *], the
appellant may apply to the Appellate Court for the re-admission of the appeal, and,
where it is proved that he was prevented by any sufficient cause from appearing when
the appeal was called on for hearing or from depositing the sum so required, the
Court shall re-admit the appeal on such terms as to costs or otherwise as it thinks fit.
[Rule amended in Bom & MP]
1983, Part 4 (Ka), Page 297 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 390, dated 1-4- 1987.
In Order XLI, for the existing rule 19 and its marginal note, substitute the following as
"19. Re-admission of appeal dismissal for default.—
Where an appeal is dismissed under rule 11, sub-rule (2) or rule 18A or rule 17 or rule
18, the appellant may apply to the Appellate Court for the re-admission of the appeal
and where it is proved that he was prevented by any sufficient cause from appearing
when the appeal was called on for hearing or in taking the necessary steps in the
prosecution of the appeal or from depositing the sum so required, the Court shall re-
admit the appeal on such terms as to costs or otherwise as it thinks fit."
1959.

The following amendments were made by Kerala Gazette, dated 9-6-1959.
Madhya Pradesh.— The following Amendments were made by Notification No. 3409,
dated 29-6-1943.
After "sub-rule (2)", insert "or rule 15A".
Madras (Pondicherry).— The following amendments were made by Dis. No. 612 of 1926.
Renumber rule 19 as rule 19(1) and insert the following as sub-rule (2):—
"(2) The provisions of Section 5 of the Indian Limitation Act, 1908, shall apply to
applications under sub-rule (1)." (15th April, 1955)
Orissa.—
Page 70.

Gazette, dated 15-4-1955. Same as that of Madras.
COMMENT.—
2002).—

1999 stated thus:-

force.

Readmission of petition.—Rule 18 which enabled the Court to dismiss an appeal for
default in depositing costs of notice has been deleted by the Amendment Act, 1999.
Consequently, the reference to that rule in rule 19 has also been omitted. Now,
readmission of appeal for defaults is allowed only where the appeal is dismissed under
rule 11(2) or rule 17.

The Court has inherent powers to pass an order of restoration if it considers that a
case for restoration has been made out. The applicant is not confined to the remedy of
restoration but may also file another appeal if the appeal is still not time barred under
the law of limitation. Where the parties are not negligent, they should not be punished
for the negligence of their counsels. Thus, where on the date of hearing, the case was
shown rather low down in the list and by the time the counsel came, the Court had risen
after dismissing the appeal for default, it was held by the Supreme Court that the
appeal must be reheard.108
An application for restoration of an appeal under this rule is governed by Article 122 of
the Limitation Act of 1963 and thus must be filed within thirty days from the date of the
dismissal of the appeal.109
Where the High Court rejected three applications filed for restoration of appeal and
dismissed the appeal and the appellants filed appeal only against first application, the
apex Court directed that the petition be restored to its original life subject to payment
or deposit of Rs. 10,000 as the costs to the respondent.110
An appellant was held justified in moving the application for restoration of the appeal
and setting aside of ex parte order particularly when his brother had died and his wife
had met with an accident during the relevant time.111
Where application for restoration was filed after limitation, the delay was condoned,
inspite of absence of sufficient cause.112
Where respondent had died but her legal representatives were already on record, the
appeal would not abate against the respondent.113
107 The words 'or rule 18' omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46
of 1999) (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002.
108 1970 Punj LJ 493 (SC).
109 VS Nayak v State of Gujarat, AIR 1967 SC 148 : (1966) 7 Guj LR 939 : 1966 Supp SCR 139.
110 Shiv Kumar v Darshan Kumar, (2009) 2 SCC 116 (117).
111 Satpal Singh v Chunni Lal, (2009) 6 SCC 607 (608).
112 State of Rajasthan v Shankerlal, 2008 (1) Raj LW 563 (564) (DB).
113 Ramdas Shivram Sattur v Ramesh Chandra Popatlal Shah, (2007) 8 SCC 400 (404).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 20. Power to adjourn
hearing and direct persons appearing interested to be made respondents
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 20.
Power to adjourn hearing and direct persons appearing interested to be made
respondents
114
[(1)] Where it appears to the Court at the hearing that any person who was a
party to the suit in the Court from whose decree the appeal is preferred,
but who has not been made a party to the appeal, is interested in the result
of the appeal, the Court may adjourn the hearing to a future day to be fixed
by the Court and direct that such person be made a respondent.
115
[(2) No respondent shall be added under this rule, after the expiry of the period
of limitation for appeal, unless the Court, for reasons to be recorded, allows
that to be done, on such terms as to costs as it thinks fit.]
COMMENT.—
The existing rule 20 has been re-numbered as sub-rule (1) and after the sub-rule (1) so
re-numbered another sub-rule (2) has been added to make it clear that no respondent
shall be added after the expiry of the period of limitation for appeal, unless the Court
for reasons to be recorded, allows that to be done, on such terms as to costs as it
thinks fit.
Parties to appeal.—
A suit was filed by a bank for money decree against a partnership firm and its four
partners. It was decreed only against the firm and two of the partners. Against
remaining two partners, the suit was dismissed. No appeal was filed by the firm and
two partners. However, the bank filed an appeal and challenged the decree so far as it
dismissed claim, against two partners. The firm and two partners against whom decree
was passed were not necessary parties.116
If necessary parties have not been joined, the effect of the non-joinder on the appeal is
fatal to the appeal, because in such cases there is no proper appeal before the Court at
all. During pendency of an appeal before the High Court, on plaintiff's death his son
was substituted. He was not impleaded as a party in appeal before the Supreme Court.
An application filed on the date of decision to implead him was not entertained being,
highly belated. The appeal was dismissed for want of necessary partyto appeal.117
114 Rule 20 re-numbered as sub-rule (1) by Code of Civil Procedure (Amendment) Act 104 of
1976, section 87, (w.e./1-2-1977).
116 State Bank of India v Ram Krishna P Barve, AIR 1990 SC 1981 : 1990 Supp SCC 801 .
117 Surat Singh v Manohar Lal, AIR 1971 SC 240 : (1971) 3 SCC 889 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 21. Re-hearing on
application of respondent against whom ex parte decree made
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 21.
Re-hearing on application of respondent against whom ex parte decree made
Where an appeal is heard ex parte and judgment is pronounced against the

respondent, he may apply to the Appellate Court to re-hear the appeal; and, if he
satisfies the Court that the notice was not duly served or that he was prevented by
sufficient cause from appearing when the appeal was called on for hearing, the Court
shall re-hear the appeal on such terms as to costs or otherwise as it thinks fit to
impose upon him.
Andhra Pradesh.—Same as that of Madhya Pradesh.

Same as that of Madhya Pradesh.
1959.
dated 16-9-1960.
Re-number the existing rule as sub-rule (1) and add the following sub-rule (2).
"(2) The provisions of Section 5 of the Indian Limitation Act IX of 1908, shall apply to
applications under sub-rule (1)."
Madras (Pondicherry).—Same as that of Madhya Pradesh.
Orissa.—
The following amendments were made by Orissa Gazette, dated 25-5-1984, Part IIIA, Page
70.

COMMENT.—
A revision application was heard and decided against a non-applicant ex parte but the
counsel of the non-applicant, being occupied in another Court, had sufficient cause for
not being at the hearing. The High Court ought to have allowed re-hearing applying the
principle under Order, rule 21 of Code of Civil Procedure.118
118 Savithri Amma Seethamma v Aratha Karthy, AIR 1983 SC 318 : (1983) 1 SCC 401 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 22. Upon hearing
respondent may object to decree as if he had preferred a separate appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 22.
Upon hearing respondent may object to decree as if he had preferred a
separate appeal
(1) Any respondent, though he may not have appealed from any part of the decree,
may not only support the decree 119[but may also state that the finding against
him in the Court below in respect of any issue ought to have been in his favour;
and may also take any cross-objection] to the decree which he could have
taken by way of appeal:
Provided he has filed such objection in the Appellate Court within one month
from the date of service on him or his pleader of notice of the day fixed for
hearing the appeal, or within such further time as the Appellate Court may see
fit to allow.
120[ Explanation. —A respondent aggrieved by a finding of the Court in the

judgment on which the decree appealed against is based may, under this rule,
file cross-objection in respect of the decree in so far as it is based on that
finding, notwithstanding that by reason of the decision of the Court on any
other finding which is sufficient for the decision of the suit, the decree, is,
wholly or in part, in favour of that respondent.]
Form of objection and provisions applicable thereto
(2) Such cross-objection shall be in the form of a memorandum, and the

provisions of rule 1, so far as they relate to the form and contents of the
memorandum of appeal, shall apply thereto.
121
[(3) * * * * *]
(4) Where, in any case in which any respondent has under this rule filed a
memorandum of objection, the original appeal is withdrawn or is dismissed for
default, the objection so filed may nevertheless be heard and determined after
such notice to the other parties as the Court thinks fit.
(5) The provisions relating to appeals by indigent persons shall, so far as they can
be made applicable, apply to an objection under this rule.
Allahabad.—In rule 22, after the words "hearing" and before the word "the" insert the
following words, namely "or appearance in".—(22-10-1994).
COMMENT.—
2002).—
Omission.—Sub-rule (3) of rule 22 of Order XLI has been omitted. See also Notes under
rule 1, Order XLI.

1999 stated thus:-
No retrospective effect.—Code of Civil Procedure (Amendment) Act, 1999, Section 32(2)

13, 15, 18, 19 and 22 of Order XLI of the First Schedule, as amended, substituted and
omitted by Section 31 of the Amendment Act, 1999 shall not affect any appeal filed
before the commencement of Section 31 of the Amendment Act, 1999 and every
appeal pending before the commencement of Section 31 of the Amendment Act, 1999
shall be disposed of as if Section 31 of this Amendment Act, 1999 had not come into
force.
Effective date (1-7-2002).—The amendments of the provision have come into force
w.e.f. 1-7-2002 vide Notfn. S.O. 603(E), dt. 6-6-2002.
Service of objections.—
Sub-rule (3) of rule 22 of O XLI required that acknowledgement of receipt of objections

by the party who was affected by them should be filed alongwith the objections or the
Court would cause service to be made. This sub-rule has been deleted by the
amendment.

Any
amendment made, or any provision inserted in the principal Code by a State Legislature
or High Court before the commencement of the Amendment Act, 1999 shall, except in
so far as such amendment or provision is consistent with the provisions of the
principal Code as amended by this Amendment Act, 1999, stand repealed. [Section
32(1) Code of Civil Procedure (Amendment) Act, 1999].
Rule 22(4) of the Code provides for only two situations in which the cross-objection
may be heard inspite of the original appeal having not been heard on merits. (1) The
original appeal being dismissed as withdrawn, (2) the original appeal being dismissed
for default (default in appearance or any other default). Right to take a cross-objection
is the exercise of substantive right of appeal conferred by a statute. Available grounds
of challenge against the judgment, decree or order impugned remain the same whether
it is an appeal or cross-objection. The difference lies in the form and manner of
exercising the right; the terminus a quo (the starting point) of limitation also differs.122
In sub-rule (1) of this rule 22, for the words "on any of the grounds decided against him
in the Court below but take any cross-objection", the words "but may also state that the
finding against him in the Court below in respect of any issue ought to have been in his
favour and may also take any cross-objection" have been substituted. The explanation
has been added newly and it empowers the respondent to file cross-objection in
respect to a finding adverse to him notwithstanding that the ultimate decision is wholly
or partly in his favour.
Right to file cross-objection is substantive.—
The cross-objection is in fact a cross appeal. Right to file cross-objection is a

substantive right. Court fee is payable on cross-objection. Even where the appeal is
withdrawn or is dismissed for default, cross-objection may be heard and determined.
The statute gives the respondent a second chance to file an appeal by way of cross-
objection if he still feels aggrieved by the judgment and decree or order.123
SLP treated as cross-objection.—
The union of India which was not a party before the arbitrator or the High Court filed a
special leave petition before the Supreme Court objecting to grant of solatium and
interest. This petition was ordered to be treated as cross-objections before the High
Court.124
By this rule the respondent is permitted in an appeal to support the decree of the lower
Court on any ground decided against him by the lower Court.125
Filing of cross-objections is optional.—
The filing of cross-objection is purely optional and not mandatory. The respondent can
question adverse finding without filing cross-objection in an appeal.126
There is no scope for filing cross objection under O XLI, rule 22 where suit has been
dismissed in entirety.127
Cross-plea by respondent.—
The bar against urging the plea of the invalidity of an order of sanction would apply
only if the respondent minor seeks to impugn the decree already obtained by the
appellant-mortgagee. It would not apply when the latter seeks to obtain further reliefs
in the appeal on the basis of the orders.128
Exception.—
The cross-objection can be urged against the appellant. It is only by way of exception
to this general rule that a respondent may urge objection as against the other
respondent. The type of such exceptional cases are very limited. The Court in such
cases entertain cross-objection against the co-respondent.129
This rule is applicable to appeals under the Representation of the People Act, (1951). A
respondent may support a judgment under appeal on any ground even though decided
against him.130 The provision of rule 22 has no application to an appeal granted by
special leave under Article 136 of the Constitution.131 This is also applicable to appeal
by Special leave under Article 136 of the Constitution of India.132
Rule 22 permits a respondent to prefer an objection directed against the appellant. It is

only in exceptional cases like where the relief sought against the appellant in such an
objection is intermixed with the relief granted to the other respondents. The use of the
word "cross objection" in rule 22 expresses unmistakably the intention of legislature
that the objection has to be directed against the appellant.133
Maintainability of cross-objection.—
Cross objection is not maintainable where original appeal is found to be non

maintainable.134
Filing of memorandum of cross-objection.—
The memorandum of cross-objections is needed only if respondent claims any relief,

negatived to him by the trial court and in addition to what he has already been given by
decree under challenge.135
Cross-objections, effect of non-filing of.—
It is a settled principle of law that before the first appellate Court the party cannot
challenge the findings of trial court without filing cross-objections.136
Appeal and cross objection.—
An appeal was allowed and the matter was remanded for fresh trial but the cross-
objection was dismissed as becoming infructuous. Such dismissal of cross-objection
does not and cannot mean that finding of lower Court against which cross-objection
was filed has been confirmed and Court trying suit afresh as per remand cannot give
contrary finding on that issue.137
Supreme Court can device appropriate procedure.—

The Supreme Court has power to decide all the points arising from the judgment
appealed against. Even in the absence of an express provision like O XLI, rule 22 of
Code of Civil Procedure it can device the appropriate procedure to be adopted at the
hearing. There could be no better way of supplying the deficiency than by drawing up
on the provisions of the general law like the Code of Civil Procedure and adopting such
of those provisions as are suitable.138
A respondent cannot support decree on ground not available to him as appellant.139
The collector allowed certain units to landholders and no appeal was filed by the State.
However, in an appeal filed by the landholder, the Commissioner was, held, to have no
power to interfere with the finding in favour of landholder. In view of rule 22(1) the State
could only support the decree not only on the grounds decided in its favour but also on
the grounds decided against it.140
In the absence of cross appeal preferred or cross-objection taken by the plaintiff

respondent, the first appellate Court while dismissing defendant's appeal, did not have
jurisdiction to modify the decree by decreeing plaintiff'suit for specific performance.141
The Supreme Court rules do not contain any provision analogous to rule 22. The
provision nearest to it is O XVIII, rule 3 of the rules of this Court. There is no reason to
limit the provisions of this rule only to those contentious which deal with the points
found in favour of that party in the judgment appealed from. Even in the absence of any
express provision like O XLI, rule 22, the Supreme Court can devise the appropriate
procedure to be adopted at the hearing.142
words (w.e.f. 1-2-1977).
121 Sub-rule (3) omitted by the Code of Civil Procedure (Amendment) Act, 1999 (46 of 1999),
section 31 (w.e.f. 1-7-2002) vide Notfn. S.O. 603(E), dt. 6-6-2002, prior to its omission it stood as
under: '(3) Unless the respondent files with the objection a written acknowledgement from the
party who may be affected by such objection or his pleader of having received a copy thereof
the Appellate Court shall cause a copy to be served, as soon as may be after the filing of the
objection, on such party or his pleader at the expense of the respondent.'
122 Municipal Corpn of Delhi v Intnl Security & Intelligence Agency, AIR 2003 SC 1515 (1520,
1521) : (2004) 3 SCC 250 : (2003) 102 DLT 922 .
123 Superintending Engineer v B Subba Reddy, AIR 1999 SC 1747 (1754) : (1999) 4 SCC 423 :
(1999) 2 Mah LJ 858 .
124 UOI v Kolluni Ramaiah, AIR 1994 SC 1149 (1151) : (1994) 1 SCC 367 .
125 Virdhachalam Pillai v Chaldean Bank, AIR 1964 SC 1425 .
126 Ravinder Kumar Sharma v State of Assam, AIR 1999 SC 3571 (3576) : (1999) 7 SCC 435 .
127 Kanchilal Paul v Sasthi Charan Banerjee, 2009 (1) Cal HN 723 (DB).
128 Sri Chandra Prabhuji Jain Temple v Harikrishna, AIR 1973 SC 2565 (2570) : (1973) 2 SCC
2565 : (1974) 1 SCR 442 .
129 Mohant Dhangir v Madan Gopal, AIR 1988 SC 54 (57) : 1988 Supp SCR 528.
130 Bhanu K Shashtri v M Sukhadia, AIR 1971 SC 2025 (2037) : (1971) 1 SCC 370 ; Ramanbhai
Ashabhai Patel v Dabhi A Fulsinji, AIR 1965 SC 669 relied on.
131 Vashist Narain Sharma v Dev Chandra, AIR 1954 SC 513 (516).
132 Indian Cable Co v Workmen, AIR 1972 SC 2195 : (1974) 3 SCC 11 .
133 Panna Lal v State of Bombay, AIR 1963 SC 1516 (1520) : (1964) 1 SCR 980 ; see also Amar
Nath v Dwarka Nath, AIR 1939 PC 86 .
134 Oriental Insurance Co Ltd v Pusi Modi, AIR 2010 (NOC) 168 (DB) : 2009 (4) Cal WN 295 (298,
300).
135 S Nazeer Ahmed v State Bank of Mysore, (2007) 11 SCC 75 (80).
136 Laxman Tatyaba Kankati v Taramati H Dhatrak, (2010) 7 SCC 717 (725).
138 Thepfulo Nakhro Angami v Ravoluei, AIR 1972 SC 43 : (1971) 2 SCR 424 .
139 Itakhoolie Tea Estate v Workmen, AIR 1960 SC 1349 (1351) : (1960) 2 LLJ 95 .
140 Choudhary Sahu v State of Bihar, AIR 1982 SC 98 : (1982) 1 SCC 232 .
142 Ramanbhai v Dabhi Ajit Kumar, AIR 1965 SC 669 (676) : (1965) 1 SCR 712 : (1965) 6 Guj LR
423.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 23. Remand of case by
Appellate Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 23.
Remand of case by Appellate Court
Where the Court from whose decree an appeal is preferred has disposed of the suit
upon a preliminary point and the decree is reversed in appeal, the Appellate Court
may, if it thinks fit, by order remand the case, and may further direct what issue or
issues shall be tried in the case so remanded, and shall send a copy of its judgment
and order to the Court from whose decree the appeal is preferred, with directions to
re-admit the suit under its original number in the register of civil suits, and proceed to
determine the suit; and the evidence (if any) recorded during the original trial shall,
subject to all just exceptions, be evidence during the trial after remand.
Allahabad.— The following amendments were made by Uttar Pradesh Gazette, dated 1-6-
1957.
In rule 23,—
(i) Insert the following after the words "and the decree is reversed in appeal", namely:—
"or where the Appellate Court while reversing or setting aside the decree under appeal
considers it necessary in the interest of justice to remand the case, it"; and
(ii) delete the words "the Appellate Court" occurring thereafter and delete also the
words "if it thinks fit", occurring after the word "may".
1959.
(i) Same as that of Madras (a) and (b).
(ii) After the words "in the case so remanded", insert the words "and whether any
further evidence shall or shall not be taken after remand".
(iii) For the words "judgment and order", substitute the words "judgment or order".
Madras (Pondicherry).— The following amendments were made by R.O.C. No. 5105 of
1930.
(a) After the words "the decree is reversed in appeal", insert the words "or where the
Appellate Court while reversing or setting aside the decree under appeal considers it
necessary in the interest of justice to remand the case"; and
(b) delete the words "if it thinks fit", occurring after the words "the Appellate Court
may".
Rajasthan.—
The following amendments were made by Rajasthan Gazette, dated 11-3-1965.
For rule 23, the following rule shall be substituted, namely:—
"23. Remand of case by Appellate Court.—
Where the Court from whose decree an appeal is preferred has disposed of the suit on
a preliminary point and the decree is reversed in appeal, or where the Appellate Court,
while reversing or setting aside the decree under appeal, considers it necessary in the
interests of justice to remand the case, it may by order remand the case, and may
further direct what issue or issues shall be tried in the case so remanded, and shall
send a copy of its judgment and order to the Court from whose decree the appeal is
preferred with direction to re-admit the suit under its original number in the register of
civil suits, and proceed to determine the suit; and the evidence (if any) recorded during
the original trial shall, subject to all just exceptions, be evidence during the trial after
remand."
COMMENT.—
This rule empowers the Appellate Court to remand the case only where the Lower
Court has disposed of the suit upon a preliminary point.143
The scope of remand in terms of O XLI, rule 23 of the code is very limited. Where the
suit was not decided on a preliminary issue, the rule 23 of O XLI would not be
available.144
Under the code a remand of proceeding is permissible only in specific situation as

covered by O XLI, rules 23, 23A and 25. Unless a case falls within any of the parameters
of O XLI, rule. 23, 23A or 25 of the Code, there is no inherent power in the appellate
Court to remand the matter.145
A High Court brushed aside the finding of the trial Court, in appeal, without giving any
reason, without any appreciation of the documents, and without any appreciation of the
contentions of the parties. It gave a perfunctory judgment. The High Court failed to
exercise the duties as an appellate Court. The matter was remanded to the High Court
by the Supreme Court.146
In a case no contention was raised by the plaintiff that the allegations were not
traversed in written statement, and no objection was also taken of framing issues on
that matter. As the allegations were traversed and denied in written statement. The
case was remanded to dispose on merits.147
It has been held by the Supreme Court of India that where the appellate Court remands
a case with a direction that the findings of the Lower Court are set aside the direction
refers to the findings considered by it and on which it differed from the lower Court.
The findings which the appellate Court was not called upon to consider cannot be
deemed to have been set aside.148
It was also laid down by the Supreme Court in the aforesaid case that where the
appellate Court orders remand with a direction to the lower Court to consider a
particular plea and giving liberty to the appellant to amend his pleading, the order
cannot be construed as allowing the appellant to raise any new plea. The amendments
which could be allowed must relate and be consequential to the plea directed to be
considered by the appellate Court.
It was alleged by the landlord that a copy of compensation statement was not sent to
him. If the allegation is true, then he is not debarred from pressing his claim in relation
to land. The issue has to be decided on the basis of relevant materials. The case was
remanded.149
Remand—scheme suit in respect of wakf of certain reliefs.—
A party claimed to succeed as life trustee under scheme decree framed before coming
into force of Wakf Act, 1954. The judge accepted party's petition without recording
evidence and examining legal position as to whether scheme decree remained
operative after the Wakf Act had come into force. He also set aside compromise in
respect of certain property of Wakf entered into by Mutawalli, thereof appointed by
Wakf Board. The matter was remanded to the judge for fresh disposal.150
In remand of matter to High Court by Supreme Court to take final decision keeping in
view order passed by Joint Secretary, High Court is not supposed to entertain any fresh
material. The material in relation to claim by industrial unit that it was entitled for
maximum subsidy of Rs. 25 lacs was not placed before Joint Secretary, could not be
taken into consideration by High Court.151
The order of remand passed in 1966 was challenged in 1999 after the final judgment. It
being an interlocutory order which did not terminate the proceedings, it is open to the
aggrieved party to challenge it after the final judgment.152
Proceedings after the order of remand is to be completed by the original authority

accordance with law and the law must take its own course. Giving directions by the
High Court while passing order of remand was improper.153
Where the matter was remitted to the High Court, and it assumed wider field of
jurisdiction than one had been permitted by the Supreme Court and entered into
examining whole controversy afresh as if all contentions of all parties were open
before it, the view of High Court cannot be countenanced.154
Rules 23 & 23-A distinguished.—
Refund of Court-fee paid in appeal can be ordered even where remand is made in the
interest of justice as provided by the provisions of O XLI, rule 23 as amended by the
High Court of Allahabad. No order of remand can be made under rule 23 unless the trial
Court has disposed of the whole suit, and not a portion of it, on the preliminary point
and the Court reverses the decree in appeal. Rule 23-A will come in when the trial Court
has disposed of the entire case otherwise than a preliminary point and that decree is
reversed in appeal and a retrial is considered unnecessary. In that contingency the
appellate Court will have all the powers mentioned in rule 23 of Code of Civil
Procedure.155
Remand order can be passed in three situations:
(i) Under O XLI, rule 23, matter can be remanded where trial court disposed of suit
upon preliminary point; under such condition, appellate court can direct trial
court to decide all issues based on evidence;
(ii) Under O XLI, rule 23-A, even though trial court decided all issues but appellate
court considers necessity of retrial of matter after reversal of decree passed by
trial court; and
(iii) Under O XLI, rule 25, appellate court can frame or try an issue if it finds that
such issues is essential for right decisions in suit and that issue was not
framed by trial court. In these situations, appellate court can frame issue and
refer the same to trial court for taking evidence and record findings on such
issues, and return the same to appellate court for deciding appeal.156
A appeal against a wrong order of remand by a High Court is not competent before the
Supreme Court. It can, however, be challenged in the appeal before the Supreme Court
arising out of the final judgment.157
A High Court should not ordinarily remand a case to the lower Court on the ground that
the reasoning of that Court in some respect was wrong.158
Where, if one takes measurements in the plan annexed to the sale deed then there
would be discrepancy in the description of the properties as sold to the respondents
and the appellants. A Court trying suit on remand cannot rely on plan annexed to sale
deed, containing measurements of property on which the plaintiff'seeks in subsequent
amendment to rely. The case should be tried on the pleadings as they exist.159
Court becomes functus officio after disposal of appeal.—
The appellate Court becomes functus officio after the disposal of appeal. Disposal of
application under this rule subsequent to disposal of appeal is improper.160
Subsequent events, Court can take notice of.—
The Court can take notice of subsequent events but such an event should (1) be
brought promptly to the notice of the Court, (2) be brought to the notice of the Court
consistently with rule of procedure enabling Court to take note of such events and
affording the opposite party an opportunity of meeting or explaining such events and
(3) it must have a material bearing on right to relief of any party.161
Where an eviction petition was pending on the ground of requirement for

reconstruction and the tenant himself carried out the repairs and replaced that part of
the roof which was stated to be unsafe, the subsequent event can be taken into
consideration for dismissing the eviction petition.162
The appellate Court is entitled to take into account even facts and events which have
come into existence after the passing of the decree appealed against.163
Permitting evidence to be adduced.—

When the subsequent events are pleaded in the course of an appeal or proceedings of
revision, the Court may permit evidence to be adduced by means of affidavits as
envisaged in O XIX, rule 1 of the Code. The Court will have regard to the nature of
allegations of the fact on which the plea is based.164
In the instant case most of the documents which are sought to be adduced by way of
evidence were on record and the High Court being the first appellate court, is a court of
both fact and law and it was held that it would be in the interest of justice for the High
Court to decide the controversy in accordance with law as early as possible and an
order of remand will merely prolong the proceedings between the parties.165
It is a settled principle of law that in order to claim remand of the case to the trial court,
it is necessary for the appellant to first raise such plea and then make out a case of
remand on facts. The power of the appellate court to remand the case to the
subordinate court is contained in O XLI, rules 23, 23-A and 25 of the Code of Civil
Procedure. It is, therefore, obligatory upon the appellant to bring the case under any of
these provisions before claiming a remand. The appellate court is required to record
reasons as to why it has taken recourse to any one out of the three rules of O XLI of the
Code of Civil Procedure for remanding the case to the trial court. In the absence of any
ground taken by the respondents (the appellants before the first appellate court and the
High Court) before the first appellate court and the High Court. There was no
justification on the part of the High Court to remand the case to the trial court.166
143 Habibur Rahman v Tetri, AIR 1972 Pat 43 .

144 Municipal Corpn. Hyderabad v Sunder Singh, (2008) 8 SCC 495 (491) : AIR 2008 SC 2579
(2585); see also Jaswant Kaur v Subhash Paliwal, (2010) 2 SCC 124 ].
145 Ketha Sujathamma v B Ramamurthy, 2009 (3) ALT 747 (755) (DB).
146 State of TN v SKumaraswami, AIR 1977 SC 2026 .
147 Shipping Corpn of India v Nissar Export Corpn, AIR 1981 SC 1212 (1214) : (1981) 1 SCC 564
.
148 Mohanlal v Anandi Bai, AIR 1971 SC 2177 : (1971) 1 SCC 813 .
149 Ram Autar v Dy Director of Consolidation, AIR 1991 SC 480 (482) : 1991 Supp (1) SCC 552 .
150 AP Wakf Board v Mirza Nzamuddin Baig, AIR 1991 SC 87 : (1991) 1 SCC 73 .
151 UOI v Krimpex Synthetics Ltd, AIR 2005 SC 3479 (3482); see also Surendranath SS Dessai v
SPL LAO, Panji, 2005 AIHC 2778 (Bom).
152 MPTamoli v NMishra, AIR 2005 SC 1964 (1967); Satyadhyan v Deorajin, AIR 1960 SC 941
and Kshitish Ch Bose v Commr, AIR 1981 SC 707 (followed).
153 KSatyanarayana v N Atchutaramayya, AIR 2005 SC 2010 (2013).
154 Jamshed Hormusji, Wadia v Board of Trustees, AIR 2004 SC 1815 (1827).
155 State of UP v Chandra Bhushan Misra, AIR 1980 SC 591 : (1980) 1 SCC 198 : (1980) ALJ 246
.
156 Balaji Singh v Diwakar Cole, AIR 2017 SC 2402 : 2017 (6) SCJ 206 : (2017) 14 SCC 207 :
(2017) 3 MLJ 839 .
157 Margaret Lalita v Indo Commrl Bank Ltd, AIR 1979 SC 102 (108) : (1979) 2 SCC 396 : (1979)
49 Com Cas 86 .
158 Ashwanikumar K Patel v Upendra J Patel, AIR 1999 SC 1125 (1127) : (1999) 3 SCC 161 .
159 Ayyapally Mohd Haji v MM Abdul Salam, AIR 2001 SC 797 (799) : (2001) 2 SCC 428 .
160 Premier Automobiles Ltd v Kabirunissa, AIR 1991 SC 91 : 1991 Supp (2) SCC 282 .
161 Atma S Berar v Mukhtiar Singh, AIR 2003 SC 624 (630) : (2003) 2 SCC 3 .
162 Shadi Singh v Rakha, AIR 1994 SC 800 (804) : (1992) 3 SCC 55 .
163 Mithilesh Kumari v Prem Bihari Khare, AIR 1989 SC 1247 (1253).
164 Ramesh Kumar v Keso Ram, AIR 1992 SC 700 (703); see also Pundlik Krishnaji v TB Patil, AIR
1992 SC 1338 : 1992 Supp (2) SCC 290 ; UOI v Chougule & Co, AIR 1992 SC 1376 (1379) : 1992
Supp (3) SCC 141 .
165 Rajinder Sharma v Arpana Sharma, AIR 2011 SC 3161 .
166 Syeda Rahimunnisa v Malan Bi, AIR 2016 SC 4653 : 2016 (9) SCALE 473 : 2016 (9) SCJ 1 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 23A. Remand in other
cases
© 2020 LexisNexis
THE FIRST SCHEDULE
167[R. 23A.
Remand in other cases
Where the Court from whose decree an appeal is preferred has disposed of the case
otherwise than on a preliminary point, and the decree is reversed in appeal and a re-
trial is considered necessary, the Appellate Court shall have the same powers as it
has under rule 23.]
COMMENT.—
Rule 23-A was inserted which is intended to widen the powers of the appellate Court to
remand a case in the interest of justice.
Remand only in exceptional cases.—
A High Court cannot have recourse to its inherent powers to make a remand. It is only
in exceptional cases where the Court may exercise the power of remand. An appellate
Court should be circumspect in ordering a remand when the case is not covered either
by rule 23 or rule 23-A or rule 25 of Code of Civil Procedure.168
Under the code a remand of proceeding is permissible only in specific situation as

covered by O XLI, rules 23, 23A and 25. Unless a case falls within any of the parameters
of O XLI, rule 23, 23A or 25 of the Code, there is no inherent power in the appellate
Court to remand the matter.169
The provision under rule 23A of O XLI of the Code is not attracted where on what basis
the secondary evidence was allowed to be led, is not clear, and the High Court has not
arrived at a finding that the decree is liable to be reversed.170
No scope for inherent power.—
The power of remand so long exercised by the Court under inherent power will now be
exercised under rule 23-A. Now there will be no scope for exercise of inherent power.
Review of remand order in exercise of inherent power is erroneous.171
However, it has been held by the Supreme Court in Bachan Pandey v Dulhin Janki Devi,
AIR 1976 SC 286 : (1976) 2 SCC 286 (290) as follows:-
To remand the suit to the trial Court would necessarily have the effect of keeping alive the
strife between the parties and prolonging this long-drawn litigation by another round of legal
battle in the trial Court, and thereafter in appeal. It is time, in our opinion, that we draw the
final curtain and put an end to this long meandering course of litigation between the parties.
If the passage of time and the laws of nature bring to an end the lives of men and women, it
would perhaps be the demand of reason and dictate of prudence not to keep alive after so
many years, the strife and conflict started by the dead. To do so would in effect be defying
the laws of nature and offering a futile resistance to the ravage of time. If human life has a
short span, it would be irrational to entertain a taller claim for disputes and conflicts which
are a manifestation of human life frailty. The Courts should be loath to entertain a plea in a
case like the present which would have the effect of condemning succeeding generation of
families to spend major part of their lives in protracted litigation.
Appellate powers to remand.—
The appellate power to remand was not inhibited by acts or omission of parties. The
suit for possession was filed on the basis of occupancy rights. An issue of effect of
earlier grant in favour of the tenant, on the subsequent grant in favour of
plaintiff/purchaser from Inamidar was neither addressed to by any of the Courts below
nor any decision had been rendered on the same. Issue of effect and the identity of the
land under the two grants is vital to the just decision of the case. The appellate Court
was empowered to remand the whole suit for retrial.172
In the instant case, suits were filed by appellant against the respondent for recovery of
money. Several applications were made, various disputes were raised and orders were
passed by the trial court, High Court and the Supreme Court in the said proceedings on
different occasions. Considering these aspects and in order to shorten the litigation,
taking note of the stand taken by the respondents in the form of affidavit it was held
that interference with the order of High Court remanding the matter to the trial court for
de novo consideration not called for.173
An appeal under O XLIII, rule 1 (u) from an order of remand under O XLI, rule 23A is
maintainable. However, the said appeal under O XLIII, rule 1 (u) can only be heard on
the grounds on which a second appeal may be heard under section 100.174
De Novo trail/Re trial when permissible.—
The trial court had disposed of the matter on merits and not on any preliminary issue,
however, the appellate court directed re trial/de novo trial. It was held that such a
direction of the appellate court is valid in terms of its powers under O XLIII, rule 23
A.175
168 P Purushottam Reddy v Pratap Steels Ltd, AIR 2002 SC 771 (776) : (2002) 2 SCC 686 .
169 Ketha Sujathamma v B Ramamurthy, 2009 (3) ALT 747 (755) (DB).
170 Municipal Corpn. Hyderabad v Sunder Singh, AIR 2008 SC 2579 (2585) : (2008) 8 SCC 485
(491).
171 Nainsingh v Koonwarjee, AIR 1970 SC 997 : (1970) 1 SCC 732 .
172 REMCO Workers House Bldg Coop Society v Lakshmeesha, AIR 2003 SC 3167 (3171) :
(2003) 11 SCC 666 .
173 Bandekar Bros (P) Ltd v VG. Quenim, AIR 2012 SC 2791 .
174 Jagannathan v Raju Sigamani, (2012) 5 SCC 540 .
175 Jagannathan v Raju Sigamani, (2012) 5 SCC 540 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 24. Where evidence on
record sufficient, Appellate Court may determine case finally
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 24.
Where evidence on record sufficient, Appellate Court may determine case
finally
Where the evidence upon the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may, after resettling the issues, if
necessary, finally determine the suit, notwithstanding that the judgment of the Court
from whose decree the appeal is preferred has proceeded wholly upon some ground
other than that on which the Appellate Court proceeds.
COMMENT.—
Under this rule the appellate Court is empowered to dispose of a case finally without a
remand if the evidence on the record is sufficient for the purpose, notwithstanding the
fact that the appellate Court proceeds on a ground entirely different from that on which
the lower Court proceeded.176
If no issue is framed on a certain point and the parties after resettling issues have
produced their evidence on it, then the appellate Court is competent to record a
finding.177
Payment of compensation, justified.—
Where the age and monthly income of the deceased is not disputed, calculation of the
amount of compensation by the High Court instead of remanding back to the tribunal
for such purpose was justified.178
Power of appellate court.—
Where trial court failed to frame an issue on the question of ownership, and no
conclusion on that point was arrived at by the trial court. The appellate court has the
power to answer the issue on the basis of materials on record.179
Order XLI, rule 24 provides that where evidence on record is sufficient, appellate court
may determine the case finally. It is not a healthy practice to remand a case to trial
court unless it is necessary to do so as it makes the parties to wait for the final
decision of a case for the period which is avoidable. Only in rare situations, a case
should be remanded for example, when the trial court has disposed off a suit on a
preliminary issue without recording evidence and giving its decisions on the rest of the
issues.180
Remand can be ordered only if judgment of trial Court was erroneous and therefore, the
appeallate Court cannot decide matter and not merely on an amendment being
allowed.181
176 Annamalai vNPillai, AIR 1972 Mad 316 .

177 Bhairab Chandra Nandan v Ranadhir Chandra Dutta, AIR 1988 SC 396 (399) : (1988) 1 SCC
383 .
178 Dipa Ganguly v New India Assurance Co Ltd, 2009 (1) Cal LJ 647 (654) (DB).
179 NFDC Ltd v Shantilal Bakliwal, 2008 (4) Cal HN 162 (168-176) (DB) : 2008 AIHC (NOC) 612
(Cal) : AIR 2008 Cal 157 (DB).
181 AA Prakasan v Anupama, (2017) 11 SCC 392 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 25. Where Appellate Court
may frame issues and refer them for trial to Court whose decree appealed from
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 25.
Where Appellate Court may frame issues and refer them for trial to Court
whose decree appealed from
Where the Court from whose decree the appeal is preferred has omitted to frame or
try any issue, or to determine any question of fact, which appears to the Appellate
Court essential to the right decision of the suit upon the merits, the Appellate Court
may, if necessary, frame issues, and refer the same for trial to the Court from whose
decree the appeal is preferred, and in such case shall direct such Court to take the
additional evidence required; and such Court shall proceed to try such issues, and
shall return the evidence to the Appellate Court together with its findings thereon and
the reasons therefor, 182[within such time as may be fixed by the Appellate Court or
extended by it from time to time].
COMMENT.—
Rule 25 was amended to provide that the Appellate Court while remanding the case,
may provide for a time-limit for returning the evidence and findings.
Legal necessity.—
An alienation by a Hindu father was challenged after twelve years. The purchasers had
done their best to prove legal necessity and that substantial portion went to the
discharge of the antecedent debts and the lower appellate Court accepted this fact. It
was held that the High Court was not justified in remanding the matter on the question
of legal necessity.183 The legal necessity does not mean "actual compulsions : it
means pressure on the estate which in law may be regarded as serious and
sufficient".184 On the point of obligation to make enquiries into application of surplus in
Krishan Das v Nathu Ram, AIR 1927 PC 37 after referring to earlier cases in Hunooman
Persaud Pandey v Musamat Babooee, (1856) 6 Moo Ind App 393 the Court held that
where the purchaser acts in good faith and after due enquiry and is able to show that
the sale itself was justified by legal necessity, he is under no obligation to enquire into
the application of any surplus and is, therefore, not bound to make repayment of such
surplus to the members of the family challenging the sale.
Effect of use of words "may" and "shall" in same provision.—
The use of words "may" and "shall" in some provision manifest intention of Legislature
to make one part "directory" and another as "mandatory". But it was not affect power of
Court to find out whether provision is directory or mandatory.185
Entire appeal to be considered.—
Where a finding is called for on the basis of certain issues framed by the appellate
Court, the appeal is not disposed of either in whole or in part. Therefore, the parties
cannot be barred from arguing the whole appeal after the findings are received from
the trial Court. Where a High Court had merely framed issues and referred them for trial
to the Court of first instance under rule 25 and not remanded the whole case under rule
23, the High Court should have heard the whole appeal. It should not have confined the
hearing merely to the points on which the finding was called for.186
Trial Court, directed to take evidence.—
The trial court was directed to take evidence on two issues namely: whether the
appellant could claim to be a legal representative and whether or not the will
propounded by the appellant was a legal and valid document in the eyes of the law.187
Remittal of whole case is illegal.—
If a finding on a specific point is required then the remittal of whole case would be
illegal, whereas under rule 23-A the whole case is remitted for retrial.188
Distinction between rule 23 and this rule.—
(i) Where an order of remand is made under rule 23, the whole case goes back for
decision to the lower Court (except on the point on which the appellate Court has
reversed the finding of the lower Court); whereas in the case of an order under
rule 25, the case is retained on the file of the appellate Court and only issues are
remitted to the lower Court for findings.
(ii) An order of remand under rule 23 is appealable but not an order under rule 25.
(iii) An order of remand under rule 3 is a final order which cannot be re-considered
by the Court which passed it except on review, whereas an order under rule 25
is, according to great majority of cases on interlocutory order which it is open to
the Court to reconsider.
Rule 25 does not enable the appellate Court to remand the suit for retrial merely on the
ground that reception of additional evidence is necessary.189
Circumscribing the powers of appellate Court.—
Under this rule specific issues are sent to the trial Court for findings and not to re-try or
decide the case. After the return of the findings, the appeal is to be heard under rule 26.
Rule 25 circumscribes the powers of the appellate Court to frame an issue and send to
Court below for trial, if need be by taking additional evidence, and permits to adopt this
course only if (a) the trial Court had omitted to frame an issue, (b) try an issue or (c) to
determine any question of fact essential to the right decision of the suit on merits.
Section 151 of Code of Civil Procedure cannot be invoked in a case covered by O XLI,
rule 25.190
Power of Appellate Court to frame fresh issues.—
The Appellate Court can exercise discretion under O XLI rule 25 and it can record
evidence itself, therefore order remanding matter to trial court for fresh decision was
held to be illegal.191
Remand, scope of.—
An employee of a company was discharged from the service on the charge relating
only to allegations made by him in his letter after he became a share-holder. The High
Court remanded the case to appellate authority for deciding whether as an employee
he was liable for allegation which he made as a share-holder. The scope of remand was
held to be limited to a finding whether he had committed any act in his capacity as an
employee that would entail his discharge from service which writing the offending
letter as a share-holder. In the appeal by special leave the Supreme Court refused to set
aside the order.192
The validity of Clause (WW) of section 68(2) of Motor Vehicles Act, 1939 was
challenged. The High Court struck down Clause (WW) on the ground that there was no
other provision of law in the body of the Act requiring the taking out of licenses.
Then in Supreme Court it was challenged as being invalid on the ground that it was law
on the subject on which the legislature was not competent to legislate. Also as bad on
the ground of excessive delegation of legislative power. It held that the clause could
not be struck down on such ground. The High Court had not struck down the clause on
either of the grounds. The matter was remanded to the High Court.193
It has been held by the Supreme Court in Kshitish Chandra v Commissioner of Ranchi,
AIR 1981 SC 707 : (1981) 2 SCC 103 : (1981) 2 SCR 764 that where the High Court in
second appeal though not having jurisdiction illegally reversed the concurrent finding of
fact and ordered remand, the aggrieved party can, in an appeal to the Supreme Court
from the final order of the High Court after remand, challenge even the first order of the
High Court making remand and all the proceedings taken thereafter as a result of the
illegal order of remand. The first judgment of the High Court ordering remand being
illegal all the proceedings taken thereafter would become void ab initio.
The matter was remanded back where High Court was not justified in not considering
the only issue of whether the transaction was out and out a sale or a loan in
substance.194
If it was a lease or licence?—
A suit for eviction involved the question whether there was a lease or licence. The
substance of the plea in defence was covered by certain issues framed by the Court.
The lower Court negatived the case of licence. The question regarding lease was left
ambiguous. The High Court "did no better" in appeal. Specific consideration on the
issue about lease and a finding therein was necessary. The case was remanded by the
Supreme Court to the District Court for fresh disposal of appeal after recordings on
above issues.195
A suit for recovery of possession by other trustees within 12 years of the death of the
executor is not barred.196
183 Gangadharan v Janardhana Mallan, AIR 1996 SC 2127 (2130) : (1996) 9 SCC 53 .
184 Rani v Shanti Bala Dev Nath, AIR 1971 SC 1028 : (1970) 3 SCC 722 .
185 Bachchan Devi v Nagar Nigam, Gorakhpur, AIR 2008 SC 1282 .
186 Gogula Gurumurthy vKAyyappa, AIR 1974 SC 1702 : (1975) 4 SCC 458 : (1974) 3 SCR 595 .
187 Ajambi v Roshanbi, (2010) 11 SCC 168 (174).
188 Pasupuleti v Motor & General Traders, AIR 1975 SC 1409 : (1975) 1 SCC 770 .
189 Jethalal v State, AIR 1970 Guj 1931 .
190 Mahendra M Nanavati v Sushila M Nanavati, AIR 1965 SC 364 (399) : (1964) 7 SCR 267 : 66
Bom LR 681.
191 Bachchan Devi v Nagar Nigam, Gorakhpur, (2008) 12 SCC 372 (377).
192 Rallis India Ltd v GL Kanthan, AIR 1976 SC 2330 : (1976) 1 LLJ 7 : 1976 Lab IC 1495 .
193 Chief Commr, Delhi v CM Transport Co, AIR 1968 SC 1199 : (1968) 3 SCR 359 .
194 Vij Kumar v Sukhdev, (2008) 11 SCC 16 (17).
195 Badri Pd Bhola Nath v Ganesh Prasad, AIR 1977 SC 2047 .
196 Peria Nachi Muthu v Raju Thevar, AIR 1985 SC 821 : (1985) 2 SCC 290 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 26. Findings and evidence
to be put on record Objections to finding
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 26.
Findings and evidence to be put on record Objections to finding
(1) Such evidence and findings shall form part of the record in the suit; and either
party may, within a time to be fixed by the Appellate Court, present a
memorandum of objections to any finding.
Determination of Appeal
(2) After the expiration of the period so fixed for presenting such memorandum
the Appellate Court shall proceed to determine the appeal.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 26A. Order of remand to
mention date of next hearing
© 2020 LexisNexis
THE FIRST SCHEDULE
197[R. 26A.
Order of remand to mention date of next hearing
Where the Appellate Court remands a case under rule 23 or rule 23A, or frames issues
and refers them for trial under rule 25, it shall fix a date for the appearance of the
parties before the Court from whose decree the appeal was preferred for the purpose
of receiving the d irections of that Court as to further proceedings in the suit.]
COMMENT.—
Rule 26-A was added by the Amending Act of 1976, which requires the appellate Court,
while remanding a case under rule 23 or rule 23-A or rule 25 to fix a date for the
appearance of the parties before the lower Court so as to avoid delay that may be
caused by the issue of further notices.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 27. Production of
additional evidence in Appellate Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 27.
Production of additional evidence in Appellate Court
(1) The parties to an appeal shall not be entitled to produce additional evidence,
whether oral or documentary, in the Appellate Court. But if—
(a) the Court from whose decree the appeal is preferred has refused to
admit evidence which ought to have been admitted, or
198
[(aa) the party seeking to produce additional evidence, establishes that
notwithstanding the exercise of due diligence, such evidence was
not within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree
appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any

witness to be examined to enable it to pronounce judgment, or for any
other substantial cause,
the Appellate Court may allow such evidence or document to be

produced or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court,

the Court shall record the reason for its admission.
Orissa.—
Page 70.
COMMENT.—
The general principle of this rule which has been laid down by the Supreme Court, is
that the appellate Court should not travel outside the record of the lower Court199 and
cannot take any evidence in appeal.
The provisions of O XLI, rule 27 have not been engrafted in the code so as to patch up
the weak points in the case and to fill up the omission in the court of appeal-it does not
authorise any lacunae or gaps in the evidence to be filled up. The authority and
jurisdiction as conferred on to the appellate court to let in fresh evidence is restricted
to the purpose of pronouncement of judgment in a particular way.200
Where the validity of a Will was challenged by way of amendment, the plaintiff acquired
a right to lead the evidence to prove its authenticity. Otherwise also when the basis of
the suit was Will, the interest of justice demanded that the plaintiff'should have been
allowed to lead an additional evidence to prove its validity. Hence, the rejection of
prayer of the plaintiff to lead additional evidence to prove testamentary succession by
producing the Will in question was not proper.201
Inadvertence or lack of proper legal advice is not a ground to admit additional evidence
in appeal.202
It has been held by the Supreme Court in Radha Kishan v Gopal Modi, AIR 1977 SC 1217
: (1977) 2 SCC 656 : (1977) 2 SCR 984 that the High Court should not have permitted
additional documentary evidence under O XLV, rule 27 as it resulted in prejudice to the
defendant.
For the adduction of additional evidence, the jurisdiction of the appellate court is to be
exercised not only when clause (a) or clause (aa) of sub-rule (1) of rule 27 of O XXI of
the Code is attracted but also when such a document is required by the appellate court
itself to pronounce judgment or for any other substantial cause.203
Remand for adducing additional evidence is not warranted.—
The remand under O XLI rule 27 for adducing additional evidence is not warranted
where additional evidence as to value of land, though available, was not adduced
before the Courts below.204
In a suit for declaration of Gift deed as null and void, the decree was passed. The
defendant sought permission to produce original gift deed in appeal. The order passed
by first Appellate Court for taking documents on record and disposal of matter afresh
was not liable to be interfered with.205
Additional Evidence can be allowed.—
Under O XLI, rule 27 of the code, additional evidence can be adduced in one of three
situations, namely, (a) whether the trial court has illegally refused the evidence
although it ought to have been permitted, (b) whether the evidence sought to be
adduced by the party was not available to it despite the exercise of due diligence, (c)
whether additional evidence was necessary in order to enable the appellant court to
pronoun the judgment or any other substantial cause of similar nature.206
The Parties to the lis are not entitled to produce additional evidence as a matter of
course or routine, they must satisfy the condition said down in O XLI, rule 27 of the
code.207
Documents such as notifications under Land Acquisition Act were filed by way of
additional evidence. Documents not requiring proof being public documents and
necessary for deciding rights of parties. Allowing party to produce such document as
additional evidence is proper.208
Document relevant for deciding controversy between parties was not in possession of
landlord at time of trial and came in possession at latter stage. Hence, permission to
adduce additional evidence, was granted.209
Under rule 27 of O XLI of the Code a party is permitted to adduce additional evidence
only if he establishes that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of due diligence be
produced by him at the time when the decree appealed against him was passed.210
In a writ appeal, additional documents were produced which were permitted and order
granting permission was not challenged. The opposite party was given sufficient time
to acquaint with new document and no prejudice was caused to it. In these
circumstances if Court consider new documents then it would have no vitiating effect
on the final decision.211
After allowing application for filing additional evidence, appellate court is obliged to
afford opportunity to opposite party to file additional evidence by way of rebuttal. When
additional evidence sought to be filed is in nature of public document, same is required
to be taken on record.212
Additional evidence when cannot be allowed.—
When no cogent ground is shown to permit any additional evidence, no attempt was
made to produce any evidence in any of the Courts upto Supreme Court till conclusion
of hearing, additional evidence cannot be permitted.213
Additional evidence cannot be permitted to fill in lacunae or to patch up weak points in

the case.214
An application in appeal for amendment of written statement introducing new case and
adducing additional evidence is not to be allowed.215
In a suit for permanent injunction against dispossession based on long possession,

where title is not in issue, a High Court cannot permit additional evidence about title to
be filed in appeal.216
Where objection of appellant in application was not spelt out, inspite of due diligence,
documents were beyond Control of party and should not have allowed.217
The request to produce a private report as additional evidence was rightly rejected by
the appellate court where it was to contend that actual constructed area was more
than sanctioned are while the report of the senior officers of the Municipal Corporation
had already been accepted and acted upon as it confirmed that area constructed was
less than sanctioned one.218
Discretion, not to be arbitrary but judicial.—
The discretion given to the appellate Court to receive and admit additional evidence
under rule 27 is not an arbitrary one. It is a judicial one, circumscribed by the limitations
specified in that provision. The true test to be applied in dealing with application for
additional evidence is whether the appellate Court is able to pronounce judgment on
the materials before it, without taking into consideration the additional evidence sought
to be adduced.219
The discretion given to the appellate Court by O XLI, rule 27 to receive and admit
additional evidence is not an arbitrary one. It is a judicial one, circumscribed by the
limitations specified in that rule. If the additional evidence is allowed to be adduced
contrary to the principles governing the reception of such evidence then it will be a
case of improper exercise of discretion. The additional evidence so brought on record
will have to be ignored and the case decided as if it is non-existent.220
Discretion to allow additional evidence, to be exercised judicially and sparingly.

—
Additional evidence can be taken only when the conditions and limitations laid down in
this rule exist. The Court is not bound under the circumstances of this rule to permit
additional evidence. The parties are not entitled as of right to the admission of such
evidence. The matter is entirely in the discretion of the Court. This discretion should be
exercised judicially and sparingly.221
Permission to adduce an additional evidence cannot be refused on the ground that the
party has not adduced any evidence in trial Court.222
The authority and jurisdiction as conferred on the appellate Court to let in fresh
evidence is restricted to the purpose of pronouncement ofjudgment in a particular
way.223
Application made under O XLI, rule 27(1), clause (aa) cannot be proceeded with as if it
is one under clause (b) of O XLI, rule 27(1), conditions precedent for application of
clause (aa) and clause (b) are different.224
Requirement must be of Court.—
Under rule 27(1) the appellate Court has the power to allow additional evidence not
only if it requires such evidence "to enable it to pronounce judgment" but also for "any
other substantial cause." Where the Court cannot strictly say that it requires additional
evidence to enable it pronounce judgment, it still considers that in the interest of justice
something which remains obscure should be filled up so that it can pronounce its
judgment in a more satisfactory manner. Such a case will be one for allowing additional
evidence for "any other substantial cause" under rule 27(1)(b) of Code of Civil
Procedure.225
This rule does not confer a right on the party to produce additional evidence. But if a
High Court requires any document so as to enable it to pronounce judgment then it can
permit additional evidence to be produced. Where a High Court considered the
production of registered sale deeds essential so as to enable it to pronounce judgment,
the Supreme Court would not interfere with the exercise of discretionary power by the
High Court in the interest of justice.226
Production of additional evidence, High Court's duty.—
When an application for reception of additional evidence under O XLI, rule 27 of the
code is filed by the parties, it is the duty of the High Court to deal with the same on
merits so as to find out whether the documents or evidence sought to be adduced have
any relevance/bearing in the issues involved.227
When an application for acceptance of additional evidence under O XLI, rule 27 of the
Code is filed by the appellants, it becomes the duty High Court to deal with the same on
merits.228
When appellate Court admits additional evidence (registered sale deeds) under O XLI,
rule 27 then there would be no reason for not following the same course of granting
opportunity to contesting party, which may be affected by acceptance of additional
evidence. High Court erred in simultaneously proceeding with hearing of appeal
without opportunity to the other party to lead evidence in rebuttal.229
The High Court was not justified while dealing with the application for acceptance of
additional evidence to direct the husband-appellant to pay maintenance to the wife
respondent at the rate of Rs. 3,500 of per month and to dear the arrears within two
weeks from the date of passing of the impugned order. The impugned order was set
aside and the application for acceptance of additional evidence was restored.230
In order to decide the pending appeal in which the application under O XLI, rule 27 of
the Code was filed ought to have been taken by the appellate Court along with the
application for the acceptance of additional evidence under O XLI, rule 27 of the
Code.231
Court is bound to consider the application under O XLI, rule 27, when appeal is to be
decided on merits.232
Additional evidence in appellate Court.—
Under rule 27(1)(a) an appellate Court can direct additional evidence to be recorded if
the trial Court had improperly rejected to record evidence which a party was prepared
to produce.233
Where the appellate Court allows the additional evidence to be given in order to clear
up certain matter and for the purpose of enabling it to come to a proper decision on the
point, the matter is fully covered by O XLI, rule 27 of Code of Civil Procedure. No
objection can be taken to the course adopted by the appellate Court in second appeal
as there is no reason to interfere in the exercise of the Court's discretion.234
Defendant can file an application for adducing additional evidence at appellate

stage.235
The question of execution of lease was raised at a belated stage in appeal. Xerox copy
of lease deed was filed. It was held that a Xerox copy cannot be entertained as a piece
of evidence and marked as exhibit. Therefore, the petition for adducing additional
evidence rejected.236
In the question whether the first appellate court was correct in not deciding the
application filed under O XLI rule 27 for additional documents before deciding the
appeal, it was held that it is not mandatory to decide the application before disposing
the appeal.237
Sufficient cause—what is.—
Affidavit regarding adoption of rules concerned by Appellant Corporation was filed for
the first time before the Supreme Court. There was no reason for not filing said
information before the High Court. It was held that documents now relied on are
additional evidence in terms of O XLI, rule 27 of the Code of Civil Procedure, and
therefore, in the circumstances, parameters for admitting additional evidence not
satisfied.238
Production of additional evidence at appellate stage.—
Where the evidence sought to be produced in first appeal by the party concerned was
within the knowledge of that party at the stage of trial then, the High Court was justified
in rejecting that party's application to adduce the said evidence at the appellate
stage.239
Additional evidence when should be allowed—test to determine.—
If additional evidence is found to have important bearing on main issue, or found to be

necessary to remove any lacunae in evidence, and for clearing any doubt for
pronouncing judgment and required in the interest of justice, it may be allowed.240
Significance of recording reasons.—
Though reasons need not be recorded in a separate order but they should be embodied
in appellate judgment.241
Permissibility.—The certified copies of public documents already on record were at

variance with the originals or were not complete copies thereof. The appellants
seemed another set of certified copies of said documents and sought to produce those
copies as additional evidence when the said fact came to their knowledge. Their case
fell under rule 27(1)(aa). The permissions to produce additional evidence was
granted.242
Rule not mandatory.—
The object of rule 27(2) clearly is to keep a clear record of what weighed with appellate
Court in allowing the additional evidence to be produced— whether this was done on
the ground (1) that the Court appealed from had refused to admit evidence which
ought to have been admitted, or (2) it allowed it because it required it to enable it to
pronounce judgment in the appeal or, (3) it allowed this for any other substantial cause.
Where a further appeal lies from the decision of the appellate Court, such recording of
the reasons is necessary and useful also to the Court of further appeal for deciding
whether the discretion under the rule has been judicially exercised by the Court below.
The omission to record the reason must, therefore, be treated as a serious defect. Even
so, the provision is not mandatory and the omission of the High Court to record reason
for allowing additional evidence does not vitiate such admission. It is true that the word
"shall" is used in rule 27(2) but that by itself does not make it mandatory.243
In City Improvement Trust Banglore v H Narayaniah, AIR 1976 SC 2403 (2414) the
Supreme Court held that O XLI, rule 27 of the CPC. requires "that an appellate Court
should be satisfied that the additional evidence is required to enable then either to
pronounce the judgment or for any other substantial cause. It has recorded no reason
to show that it had considered the requirements of rule 27, O XLI of the Code of Civil
Procedure..
According to the Supreme Court, the appellate Court (High Court) should have recorded
the reasons to show why it found the admission of such evidence to be necessary for
some substantial reason. And if it found it necessary to admit it an opportunity should
have been given to the appellant to rebut any inference arising from its existence by
leading other evidence.244
When there is no satisfactory explanation for not producing the additional documents
either in the Courts below or even in the High Court they cannot be received in the
Supreme Court.245
An affidavit sworn at the foot of application for additional evidence is sufficient

compliance with rule 27 of O XLI of Code of Civil Procedure.246
Additional evidence admitted, without objection.—
When additional evidence was taken with the assent of both sides or without objection
at the time it was taken, it is not open to a party to complain of it later on.247
In an appropriate case whenever the district judge feels satisfied, he may give an
opportunity to the parties to lead additional evidence. He may apply the procedure as
far as it can be made applicable in the facts and circumstances of each case.248
An application for allowing additional evidence in an appeal was filed before the High
Court after several years of the suit, also after long time of the filing of appeal before
the High Court. The application was not allowed by the High Court. The Supreme Court
did not interfere with the discretion exercised by the High Court.249
Powers of Appellate Court.—
High Court has no jurisdiction to direct the case be decided on the basis of existing
material and that no party be allowed to lead further evidence.230
No additional evidence in second appeal.—
In a suit for eviction on ground of bona fide personal requirement of landlords the High
Court was justified in not permitting the tenants to adduce any additional evidence in
second appeal.251
An appellate authority under Rent Control Act can admit additional evidence in
appropriate cases. The appellate authority was held not in error in admitting an
additional evidence which was warranted by the facts and pleadings of the case.252
An order would be liable to set aside where an application was made for accepting
additional evidence but appeal was dismissed by the Court without considering the
application.253
Restriction to additional evidence.—

Additional evidence is to be restricted in respect of defence taken by the newly
impleaded defendant in written statement and parties cannot lead evidence afresh on
other issues.254
Subsequent events.—
In an appeal against an eviction order that an alternate accommodation was available,

the appellant-husband could have been permitted to adduce evidence about the
strained relationship between him and his wife, and the fact that a flat was allotted to
the wife to enable to live separately from her husband.255
An event of the death of the first wife of the landlord subsequent to the decision of the
High Court can be taken into consideration in finding out the bona fide of the landlord to
evict the tenant.256
A Court is bound to take into consideration the subsequent events and mould the relief
accordingly.257
Where a High Court is of opinion that subsequent events should not be looked into by
the executing Court and does not dispose the application filed under O XLI rule 27 by
the appellant, the lease in favour of respondent has been cancelled and the land in
question included in the municipal area, the whole case is to be remanded to the
executing Court to decide the execution of decree.258
Subsequent changes in law.—
It is well settled that an appellate Court is entitled to take into consideration any
change in the law.259
When on account of subsequent change in law, amendment of the pleadings is granted

which raises disputed question of fact which necessitates additional evidence for
being resolved, the situation would not be governed by rule 27. The matter would have
to be remanded to lower Court.260
However, where the prayer to adduce additional evidence showing involvement of Chief
Minister of Maharashtra in matter of careers of his son, son-in-law, etc. was rejected by
the High Court, the Supreme Court in appeal under Article 136 declined to consider the
additional evidence as Chief Minister had no opportunity to deal with it. The basic
principles for admission of additional evidence are: (i) with best efforts such evidence
could not have been adduced at first instance, (ii) the party affected should have an
opportunity to rebut such additional evidence, and (iii) such evidence is relevant for
determination of the issue.261
An additional evidence may be permitted to be produced in appellate court when there

is substantial cause.262
"Other substantial cause".—
The plea that the importance of the document was not realised by those in charge of
the case, would not bring the case within the expression "other substantial cause".263
Request for production of a register before Supreme Court not allowed.—
The Supreme Court did not allow request for production of certain register as oral
evidence to prove the register and to meet inferences following from that register
would be necessary.264
Permission rejected, propriety.—
A suit was filed by appellants predecessor challenging acquisition of his land and
injunction against dispossession but evidence as to ownership of land could not be
produced by the plaintiff due to death. This suit was dismissed and an appeal was filed
against the dismissal wherein appellant filed application to adduce additional evidence
relating to ownership of land. It was rejected. The rejection was improper.265
The High Court committed an error by not entertaining the application filed by the
appellant under O XLI, rule 27 of the code for producing additional evidence to show
that the possession of the major portion of the land covered by the Scheme was taken
after paying compensation to the landowners and the scheme has been
implemented.266
An appeal in which an application under rule 27 of O XLI of the Code has been filed
should be decided by appellate court alongwith application for acceptance of
additional evidence under O XLI, rule 27 of the Code. The rejection of such an
application would not be proper.267
The prayer for admitting new evidence was rejected as unnecessary where contention
was not within the scope of the appeal.268
Appellate Court cannot order fresh trial.—
Under rule 27 the appellate Court has the power to allow a document to be produced
and a witness to be examined. The requirement of the Court must be limited to those
cases where it found it necessary to obtain such evidence for enabling it to pronounce
judgment. The power under Clause (b) of sub-rule (1) of rule 27 of O XLI cannot be
exercised for adding to the evidence already on record except upon one of the grounds
specified in the provision. If the documents on record are relevant on the issue of fraud
the Court could well proceed to consider them and decide the issue. But the appellate
Court cannot order a fresh trial. Such a course is not permissible under O XLI, rule 27
when it was not proceeded under O XLI, rule 25 or remanded the case under O XLI, rule
23.269
An appellate Court has jurisdiction to pass order under this rule one way or other which
can be challenged in second appeal against the appellate decree.270
Second appeal can be decided in absence of additional evidence.—
Even in the absence of the additional evidence, the second appeal could be decided on
merits on the evidence already on record.271
199 Chaturbhuj Panday v Collector of Raigarh, AIR 1969 SC 255 : (1969) 1 SCR 412 : 1969 ALJ
159 : 1969 Ker LJ 212 .
200 A Andisamy Chettiar v A Subburaj Chettiar, AIR 2016 SC 79 : 2015 (13) SCALE 378 : 2016 (2)
SCJ 435 : (2015) 17 SCC 713 .
201 Dondapati Narayana Reddy v Duggireddy V Reddy, AIR 2001 SC 3685 : (2001) 8 SCC 115 .
202 Haryana State Industrial Development Corpn v Cork Manufacturing Co, AIR 2008 SC 56 .
203 Lachhman Singh v Hazara Singh, (2008) 5 SCC 444 (446-447).
204 Koyappathodi MA Umma v State of Kerala, AIR 1991 SC 2027 (2029) : (1991) 4 SCC 8 .
205 Jagdish Pd Saxena v Narayan Devi, 2011 AIR CC 1287 (1288) (MP).
206 Malayalam Plantations Ltd v State of Kerala, (2010) 13 SCC 487 (493); see also Mohan
Toppo v Sanjai Munda, 2009 (57) 1 BLJR (694 (Jhar).
207 Basayya IMathad v Rudrayya S Mathad, (2008) 3 SCC 120 .
208 YP Sudhanva Reddy v Chairman & MD, Karnataka Milk Federation, AIR 2018 SC 2176 : 2018
(3) AKR 414 : (2018) 6 SCC 574 : 2018 (7) SCJ 161 .
209 Satyavati Ramprasad Ruia v New India Assurance Co Ltd, AIR 2017 SC 2596 : 2018 (3) WLN
103 (SC) : 2017 (5) ABR 52 : 2018 (1) RLW 38 (SC).
210 MHarinarayana v P Swaroopa Rani, 2008 (6) ALT 378 (387) (DB).
211 Punjab State Electricity Board v Narata Singh, AIR 2010 SC 1467 (1476).
212 UOI v KV Lakshman, AIR 2016 SC 3139 : 2016 (6) SCALE 146 : 2016 (7) SCJ 325 : 2016 (3)
AKR 519.
213 Shiv Chander Kapoor v Amar Bose, AIR 1990 SC 325 (333) : (1990) 1 SCC 234 .
214 Satish Kumar Gupta v State of Haryana, AIR 2017 SC 1072 : 2017 (3) SCALE 53 : (2017) 4
SCC 760 : 2017 (3) SCJ 716 .
215 Mohd Ishaq v Mohd Iqbal & Mohd Ali, AIR 1978 SC 798 (800) : (1978) 2 SCC 493 .
216 Prataparai N Kothari v John Braganza, AIR 1999 SC 1666 (1668) : (1999) 4 SCC 403 .
217 Abdul Aziz AR Kadri v Mohd Yusuf Shaikh, 2010 (2) Bom CR 1 : AIR 2010 (NOC) 758 (DB).
218 Indore Municipal Corpn v Hemlata, AIR 2010 SC 1758 .
219 Natha Singh v Financial Commr, Taxation, AIR 1976 SC 1053 (1506).
220 Arjan Singh v Kartar Singh, AIR 1951 SC 193 (195) : 1951 SCR 258 .
221 Mahabir Singh v Naresh Chandra, AIR 2001 SC 134 (136) : (2001) 1 SCC 309 : (2001) 1 AnLT
60 (SC).
222 Jaipur Development Authority v Kailashwati Devi, AIR 1997 SC 3243 : (1997) 7 SCC 297 :
(1997) 2 KLT 902 ; Gurbaksh Singh v Shankar Das, AIR 1936 Lah 71 ; Md Saifur Rahman v State of
Assam, AIR 1985 Gau 107 overruled.
223 NKamalam v Ayyaswamy, AIR 2001 SC 2802 (2808) : (2001) 7 SCC 503 .
224 KR Mohan Reddy v Network Inc, AIR 2008 SC 579 .
225 K Venkataramiah v Seetarama Reddy, AIR 1963 SC 1526 (1530); Parsotmi Thakur v LM
Thakur, AIR 1931 PC 143 relied on.
226 Syed Abdul Khadar v Rami Reddi, AIR 1979 SC 553 (562) : (1979) 2 SCC 601 .
227 Malyalam Plantations Ltd v State of Kerala, AIR 2011 SC 559 (563).
228 Jatinder Singh v Mehar Singh, AIR 2009 SC 354 ; see also Karuna Chaterjee v Rakesh Kumar,
AIR 2009 (NOC) 343 (Jhar); Jaswinder Kaur v Kapoor Singh, AIR 2009 (NOC) 1497 (P&H).
229 Akhilesh Singh v Lal Babu Singh, AIR 2018 SC 1240 : 2018 (4) SCALE 378 : (2018) 4 SCC
659 : 2018 141 RD 98.
230 Anupam Gupta v Sumeet Gupta, AIR 2009 SC 918 (919) : (2009) 1 SCC 254 .
231 Eastern Equipment & Sales Ltd v Ing Yash Kr Khanna, (2008) 12 SCC 739 (740).
232 North Eastern Rly Admn v Bhagwan Das, (2008) 8 SCC 511 (517).
233 Official Liquidator v Raghava, AIR 1974 SC 2069 : (1974) 2 SCC 741 : (1975) 1 SCR 890 .
234 Kamala Ranjan Roy v Baijnath Bajoria, AIR 1951 SC 1 (4) : 1950 SCR 840 .
235 Dwarka Prasad v ADJ, Bharatpur, AIR 2008 (NOC) 1482 (Raj-DB); CSA No 502 of 2005, Dt 2
August 2007.
236 Kartar Singh v Steel Authority of India Ltd, AIR 2012 Ori 145 .
237 S Sornam v N Selvaraj, AIR 2012 Mad 269 .
238 Girijan Co-op Corpn Ltd v K Satyanarayana Rao, (2010) 15 SCC 322 .
239 State of Karnataka vKC Subramanya, (2014) 13 SCC 468 .
242 Jayaramdas v Mirza Refatullah Baig, AIR 2004 SC 3685 (3687).
243 K Venkataramaiah v Seetharama Reddy, AIR 1963 SC 1526 (1529) : (1964) 2 SCR 35 : 1963
ALJ 903 : 24 ELR 42.
244 AIR 1976 SC 2403 (2414).
245 Roop Chand v Gopi Chand Thilia, AIR 1989 SC 1416 (1420).
246 MM Quasim v Manohar Lal Sharma, AIR 1981 SC 1113 (1117) : (1981) 3 SCC 36 .
247 K Venkatrawiah v Seetarama Reddy, AIR 1963 SC 1526 (1531); Jaganath Pd v Hanuman Pd,
36 IA 221 (PC) relied on.
248 Tarlok Singh v Municipal Corpn, Amritsar, AIR 1986 SC 1957 (1961) : (1986) 4 SCC 27 .
249 Pramod Kumari v Om Prakash, AIR 1980 SC 446 (448).
230 Anupam Gupta v Sumeet Gupta, AIR 2009 SC 918 (919) : (2009) 1 SCC 254 .
251 Soondaram v Rameswaralal, AIR 1975 SC 479 : (1975) 3 SCC 698 .
252 Yudhishter v Ashok Kumar, AIR 1987 SC 558 (560) : (1987) 1 SC 204 .
253 Mohinder Kaur v State of Haryana, AIR 2008 SC 2990 ; see also Muzaffar Ali v Dasaram,
(2009) 2 SCC 654 .
254 KS Krishna Sarma v Kifayat Ali, AIR 2008 SC 1337 .
255 BR Mehta v Atma Devi, AIR 1987 SC 2220 , 2222 : (1987) 4 SCC 183 .
256 Govind v Dr Jeetsingh, AIR 1988 SC 365 (367) : (1988) 1 SCC 198 .
257 Kanaya Ram v Rajender Kumar, AIR 1985 SC 371 : (1985) 1 SCC 436 .
258 Municipal Board, Kishangarh v Chand Mal, AIR 2000 SC 3611 : (1999) 9 SCC 198 .
259 Kothuruswami v Veerawa, AIR 1959 SC 577 (579); LP Shukul v KL Chaudhary, AIR 1941 FC 5
relied on.
260 Balai Chandra v Shewdhari, AIR 1978 SC 1062 (1067) : (1978) 2 SCC 559 .
261 Shivaji Rao Nilangekar Patil v Mahesh Madhav Gosavi, AIR 1987 SC 294 : (1987) 1 SCC 227 .
262 Shalimar Chemical Works Ltd v Surendra Oil & Dal Mills, (2010) 8 SCC 423 (430).
263 Sunderlal v Bharat Handicrafts, AIR 1968 SC 406 (408) : (1968) 1 SCR 608 .
264 S Rajagopal v Arumugam, AIR 1969 SC 101 (104) : (1969) 1 SCR 254 .
265 Shyam Gopal Buinlal v Land Acquisition Officer, AIR 2010 SC 690 : (2010) 2 SCC 316 .
266 Jabalpur Development Authority v VV Shrivastava, (2010) 13 SCC 84 (87).
267 Eastern Equipment & Sales Ltd v Yash Kumar Khanna, AIR 2008 SC 2360 ; see also Vimal
Chand Ghevarchand Jain v REaknath Jadoo, (2009) 5 SCC 713 .
268 State of WB v Krishnapada Pramanik, 2008 (2) Cal LJ 864 (866-67) (DB).
269 Municipal Corpn. of Greater Bombay v Lala Puncham, AIR 1965 SC 1008 (1011) : (1965) 1
SCR 542 : 67 Bom LR 782.
270 Gurdev Singh v Mehnga Singh, AIR 1997 SC 3572 : (1997) 6 SCC 507 .
271 Haryana State Industrial Development Corpn v Cork Manufacturing Co, (2007) 8 SCC 120 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 28. Mode of taking
additional evidence
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 28.
Mode of taking additional evidence
Wherever additional evidence is allowed to be produced, the Appellate Court may

either take such evidence, or direct the Court from whose decree the appeal is
preferred, or any other subordinate Court, to take such evidence and to send it when
taken to the Appellate Court.
COMMENT.—
This rule permits the Appellate Court to either take the additional evidence itself or
direct the lower Court to take it.
When an application for adducing additional evidence is allowed, the appellate court
has two options open to it. It may record the evidence itself or it may direct the trial
court to do so.272
The Supreme Court has held in Radha Kishan v Gopal Modi, AIR 1977 SC 1217 : (1977)
2 SCC 656 : (1977) 2 SCR 984 that while proceeding under O XLI, rule 28 the High Court
should afford proper and adequate opportunity to both the parties in the interest of
justice.
It is necessary to follow procedure under O XLI, rule 28 while allowing additional

evidence. The document should have been proved. Passing of decree by its first
appellate court simply by acting upon document, without following procedure is
erroneous.273
The case was relegated to the trial court to re-decide the suit is erroneous. High Court
could have issued directions to the first appellate court to determine any question of
fact including the existence and genuineness of the additional evidence. Such a course
is permissible in terms of rule 28 O XLI of the Code of Civil Procedure. Thus, the order
of the High Court allowing application and thereafter, relegating parties before the trial
court to re-decide suit is erroneous.274
272 HP Vedavyasachar v Shivashankara, (2009) 8 SCC 231 (234).

273 Almelu Ammal v S Rani, AIR 2017 SC 2612 : 2017 (3) AJR 340 : 2018 (3) WLN 84 (SC).
274 Uttaradi Mutt v Raghavendra Swamy Mutt, AIR 2018 SC 4796 : 2018 (13) SCALE 538 : 2018
(5) ALT 79 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 29. Points to be defined
and recorded
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 29.
Points to be defined and recorded
Where additional evidence is directed or allowed to be taken, the Appellate Court shall
specify the points to which the evidence is to be confined, and record on its
proceedings the points so specified.
COMMENT.—
When additional evidence is allowed to be given, this rule then requires that the
appellate Court should specify and record on the proceedings the points to which the
evidence should be confined.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 30. Judgment when and
where pronounced
© 2020 LexisNexis
THE FIRST SCHEDULE
Judgment in Appeal
R. 30.
Judgment when and where pronounced
275
[(1)] The Appellate Court, after hearing the parties or their pleaders and
referring to any part of the proceedings, whether on appeal or in the Court
from whose decree the appeal is preferred, to which reference may be
considered necessary, shall pronounce judgment in open Court, either at
once or on some future day of which notice shall be given to the parties or
their pleaders.
276
[(2) Where a written judgment is to be pronounced, it shall be sufficient if the
points for determination, the decision thereon and the final order passed in
the appeal are read out and it shall not be necessary for the Court to read
out the whole judgment, but a copy of the whole judgment shall be made
available for the perusal of the parties or their pleaders immediately after
the judgment is pronounced.]
COMMENT.—
The appellate Court hearing an appeal against the preliminary decree can take into
consideration such evidence as is adduced or admitted in proceedings for the
preparation of the final decree.277 The proceedings for the final decree are proceedings
in the same suit and in the "Court from whose decree the appeal is preferred" as
contemplated by this rule. The parties are equally entitled to refer such proceedings at
the hearing of the appeal.278
Auction purchaser can be brought on record of appeal before Supreme Court.

—
In an execution appeal pending before the Supreme Court the subject matter of the
appeal was mortgaged by the judgment-debtor. The mortgagee obtained mortgage
decree and executing same subsequent to filing of execution appeal in the Supreme
Court. The auction purchaser can be brought on record of appeal before the Supreme
Court.279
Dismissing appeal in default.—
The appellate Court is not bound to decide an appeal on merits on the basis of the
material on record when the appellant or his pleader appears at the hearing but does
not address the Court. It can then dismiss the appeal in default.280
Having consented, parties cannot plead concession.—
If the parties agree that instead of remanding the matter, the appellate Court should
consider material on record and render verdict then it is not open for any party to take
plea that no concession was given. The only course open to the appellant is to move to
High Court. Where the defendant was in unauthorised occupation of premises, the
appellate Court exercised powers under O XLI, rules 30, 32, 33 by consent of parties. It
took note of realities that rentals in concerned area had increased leaps and bounds
after judgment of trial Court. It chanced the rate of damages from Rs. 500/- pm to Rs.
1,200/-pm. It was justified.281
275 Rule 30 re-numbered as sub-rule (1) of rule by Code of Civil Procedure (Amendment) Act
104 of 1976, section 87, (w.e.f. 1-2-1977).
277 Ram Kishore v Kesho Ram, AIR 1972 All 336 .
278 Ram Kishore v Kesho Ram, AIR 1972 All 336.
279 Shew Bux v Bengal Breweries Ltd, AIR 1961 SC 137 (141) : (1961) 1 SCR 680 .
280 Sukhpal Singh v Kalyan Singh, AIR 1963 SC 146 (148) : (1963) 2 SCR 733 : 1962 ALJ 1075 .
281 Roop Kumar v Mohan Thedani, AIR 2003 SC 2418 (2423, 2426) : (2003) 6 SCC 595 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 31. Contents, date and
signature of judgment
© 2020 LexisNexis
THE FIRST SCHEDULE
Judgment in Appeal
R. 31.
Contents, date and signature of judgment
The judgment of the Appellate Court shall be in writing and shall state—
(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or varied, the relief to which the
appellant is entitled;
and shall at the time that it is pronounced be signed and dated by the Judge or
by the Judges concurring therein. [A, AP, B, G, KNT, K, M, OR, P, RAJ].
[Rule amended in All, AP, Bom, Gujarat, Karnataka, Mad, Orissa & Patna; Rule
renumbered and sub-rules (2), (3) added in Kerala and Rajasthan].
Allahabad (Notfn No 8799; 13-1-39). — At the end of rule 31 substitute a semicolon for
the full stop and add the following:—
"Provided that where the Presiding Judge pronounces his judgment by dictation to a
shorthand writer in open Court, the transcript of the judgment so pronounced shall,
after such revision as may be deemed necessary, be signed by the Judge and shall
bear the date of its pronouncement." (14-1-1939)
1983, Part 4 Ka, Page 427 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 39, dated 1-4-1987.
In Order XLI rule 31, substitute a colon for the full stop appearing at the end of the rule
and add thereafter the following proviso:—
"Provided that where the judgment is pronounced by dictation to a shorthand-writer in

open Court the transcript of the judgment so pronounced shall, after making such
corrections therein as may be necessary, be signed by the Judge or the Judges
concerned and shall bear the date of its pronouncement."
Gujarat.—Same as in Allahabad. (17-8-1961)
Add the following proviso:—
"Provided that where the Presiding Judge is specially empowered by the High Court to
pronounce his judgments by dictation to a shorthand writer in open Court, the
transcript of the judgment so pronounced shall after such revision as may be deemed
necessary be signed by the Judge." (5-11-1959)
Kerala (Notfn No B1-3312/58; 7-4-1959).—Renumber rule 31 as sub-rule (1) and add the
following sub-rules (2) and (3):—
"(2) In cases where a judgment is not written by the Judge in his own hand, but dictated
initialled by him.
(3) Where the judgment is pronounced by dictation to a shorthand-writer in open Court,

deemed necessary, be signed by the Judge." (9-6-1959)
Madras (GO No 1852-Home (Judl), of 4-9-1917).—Rule 31 has been substituted by

another rule which contains the following change in the existing rule:—
For the sentence "and shall at the time therein" at the end of the rule substitute "and
shall bear the date on which it is pronounced and shall be signed by the Judge or the
Judges concurring therein:
Provided that, where the Presiding Judge is specially empowered by the High Court to
pronounce his judgment by dictation to a shorthand-writer in open Court the transcript
of the judgment so pronounced shall, after such revision as may be deemed necessary,
be signed by the Judge".
Orissa.—Same as in Allahabad. (21-9-1960).
Patna.—Same as in Allahabad inserting after the words "signed by the Judge" the
words "or by Judges concurring therein".
Rajasthan.—
The following amendments were made by Rajasthan Act, dated 11-3-1965.
In Order XLI, rule 31, the existing rule 31 shall be renumbered as sub-rule (1) of that
rule, and after sub-rule (1) as so renumbered, the following sub-rules shall be inserted:
—
"(2) Where the judgment is pronounced by dictation to a shorthand-writer in open Court,

deemed necessary, be signed by the Judge and shall bear the date of its
pronouncement.
(3) In cases where a judgment is not written by the Judge in his own hand, but dictated
initiated by him."
COMMENT.—
Where the case is a simple one and the Trial Court has dealt with it fully and accurately
and it is evident from the Appellate Court's Judgment that it has appreciated the case
properly and has decided it after considering the evidence; the mere fact that it has not
repeated the reasons given by the Trial Court which it approves of, does not vitiate the
judgment.
The provision under O XLI, rule 31 of the Code casts an obligation on the author of the
appellate judgment to state the points for determination, the decision thereon, the
reasons for the decision and when the decree appealed from is reversed or varied, the
relief to which the appellant would be entitled.282
The judgment of appellate court must reflect its conscious application of mind and
record findings supported by reasons, on all the issues arising along with the
constructions put forth, and pressed by the parties for decision of the appellate court.
It is the duty of High Court when sitting as Court of first appeal to deal with all the
issues and the evidence led by the parties before recording its findings.283
The lower appellate court has not stated in its judgment the points for determination
and the judgment is also not well discussed. Therefore the judgment of the Lower
appellate court is not in accordance with O XLI, rule 31.284
The basic requirement in the suit pertaining to immovable property is that plaint shall
contain description of property sufficient to identify it. However, when the said
requirement is not met in the plaint the trial court should not have decreed the suit. The
appellate court also without considering the provisions of O XLI rule 31 affirmed the
findings of the subordinate court and passed cryptic judgment. It was held that the
judgment of affirmance by appellate court improper.285
Relief given must be clearly specified.—
A Court must clearly specify the relief to which a successful party has been found
entitled to merely observing in operative part of judgment that "suit is decreed" or
"appeal is allowed" is not proper. It rather tantamounts to failure on the part of the
judge to discharge obligations cast on him by the Code. A self contained decree drawn
up in conformity with judgment excludes objections and complexities arising at the
stage of execution.286
The provisions of O XLI, rule 31 provide guidelines for the Appellate Court as to how the
Court has to proceed and decide the case.287
Where an appellate Court agrees with the view of the trial Court on evidence it need not
restate effect of evidence or reiterate reasons given by trial Court. Expression of
general agreement with reason given by the trial Court would ordinarily suffice.288
It has been held by the Bombay High Court in Vishwas Babu v Ghasiram Ram-ratan
Tajum, AIR 1975 Bom 278 that when the High Court is sitting in exercise of its power of
superintendence and when it is shown that the judgment of the first appellate Court
has failed to comply with the legal requirements (of O XLI, rule 31) it should not be
sustained by the High Court looking into the facts and arrogating to itself the role of a
facts finding Court.
Content of judgment.—
In order to succeed in a suit for declaration of his title to the property in dispute, the
plaintiff'sought to establish that the property was the private property of the deceased
mahant and he was duly appointed chela of the deceased mahant. Once it was found
that the property in dispute was endowment property and was not the property of the
deceased mahant. This finding was not open to challenge. The question whether the
plaintiff was duly appointed chela or not, of the deceased mahant would not survive for
decision and hence it was hardly necessary to record a finding on that aspect.289
It was further held that "the provisions of O XLI, rule 31 of the Code of Civil Procedure
are mandatory".290
Dismissal of letter patent appeal cursorily without any discussion, appreciation,

reasoning and categorical findings on the issues and without application of judicial
mind to factual and legal controversy involved in it is unsustainable being not in
conformity with the requirements of O XLI, rule 31 of the Code of Civil Procedure.291
Where an appeal is decided after a delay of five years and the judgment gives rise to an
apprehension in the mind of appellant that the arguments raised at bar have not been
reflected or appreciated, the judgment is to be set aside and the matter be remitted to
High Court for the appeal afresh.292
Determination of point.—
The Appellate Court formulated point of validity of execution of power of attorney as

point (a), it could not proceed to decide point (b) without dealing with first point.293
Framing of additional issue of its own.—
Non-framing of appropriate points for determination.—
Where necessity of framing of appropriate points for determination by the appellate

Court in the light of submissions made by the appellants was emphasised, but the
same not having been done, matter was remanded for decision afresh on certain
issues for their proper determination and disposal.294
Where that trial court had granted the alternative relief of return of money under
section 16 of the Specific Relief Act, but the appellate court did not accept the same
and considered the main relief of specific performance and this being only the point of
determination before the appellate court and as the same was properly determined
before passing judgment, the High Court has complied with the mandates of O XLI, rule
31. Non-framing of point of determination will not vitiate the judgment of the appellate
court.295
Decree of trial Court, not to be modified.—
The first Appellate Court should not disturb and interfere with the valuable rights of the
parties which stood crystallised by the trial Court's judgment without opening the
whole case for rehearing both on question of facts and law. More so, it should not
modify the decree of the trial Court by a crytic order without taking note of all relevant
aspects.296
In the instant case High Court neither set out the facts of the case of the parties, nor
dealt with any of the submissions urged, nor took note of the grounds raised by the
appellant and nor made any attempt to appreciate the evidence in the light of the
settled legal principles applicable to the issues arising in the case to find out as to
whether the award of the tribunal is legally sustainable or not. As a first appellate court
it was the duty of the High Court to have decided the appeal as per O XLI, rule 31 hence,
the case was remanded to High Court for deciding appeal afresh on merits and as per
law.297
282 Om Prakash Verma v State of AP, (2010) 13 SCC 158 (188).

283 BV Nagesh v HV Sreenivas Murthy, (2010) 13 SCC 530 (531).
284 Sehkari Matsya Vidhi Samiti v Kushal Pal, AIR 2012 Utr 116 .
285 Saljing A Sangma v Bilmoni A Sangma, AIR 2014 Meg 15 .
286 Lakshmi Ram Bhuyan v Hari Prasad Bhuyan, AIR 2003 SC 351 (354) : (2003) 1 SCC 197 .
287 H Siddiqui v A Ramalingam, AIR 2011 SC 1492 (1497).
288 Girijanandini v Bijendra, AIR 1967 SC 1124 : (1967) 1 SCR 93 : 46 Pat 193.
289 Narayangiri v State of Maharashtra, AIR 1977 SC 628 : (1976) 4 SCC 534 .
290 AIR 1975 Bom 278 , at p 280.
291 G Saraswathi v Rathinammal, AIR 2018 SC 949 .
292 Bhagwandas Fatehchand Daswani v HPA International, AIR 2000 SC 775 : (2000) 2 SCC 13 .
293 H Siddiqui v A Ramalingam, 2011 AIR CC 1221 (1225) (SC).
294 Gaunmani Anasuya v Parvatini A Chowdhary, (2007) 10 SCC 296 (302).
295 Dharamveer v Suresh Chandra Bharadwaj, AIR 2016 All 48 .
296 Parimal v Veena, AIR 2011 SC 1150 (1157) : 2011 AIR CC 1073 (1079) (SC) : (2011) 3 SCC
545 (554); G Amalorpavam v RC Diocese of Madurai, (2006) 3 SCC 224 ; Shiv Kumar Sharma v
Shantosh Kumari, (2007) 8 SCC 600 and Gaunmani Anasuya v Parvatini Amarendra Chowdhary,
297 UPSRTC v Mamta, AIR 2016 SC 948 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 32. What judgment may
direct
© 2020 LexisNexis
THE FIRST SCHEDULE
Judgment in Appeal
R. 32.
What judgment may direct
The judgment may be for confirming, varying or reversing the decree from which the
appeal is preferred, or, if the parties to the appeal agree as to the form which the
decree in appeal shall take, or as to the order to be made in appeal, the Appellate
Court may pass a decree or make an order accordingly.
COMMENT.—
plea that no concession was given. Where the defendant was in unauthorised
occupation of premises, the appellate Court exercised powers under O XLI, rules 30, 32
& 33 by consent of parties. It took note of realities that rentals in concerned area had
increased leaps and bounds. It enhanced the rate of damages from Rs 500/- pm to Rs
1,200/- pm which was justified.298

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 33. Power of Court of
Appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
Judgment in Appeal
R. 33.
Power of Court of Appeal
The Appellate Court shall have power to pass any decree and 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, and this power may be exercised by the Court
notwithstanding that the appeal is as to part only of the decree and may be exercised
in favour of all or any of the respondents or parties, although such respondents or
parties may not have filed any appeal or objection 299[and may, where there have been
decrees in cross-suits or where two or more decrees are passed in one suit, be
exercised in respect of all or any of the decrees, although an appeal may not have
been filed against such decrees]:
300[ Provided that the Appellate Court shall not make any order under Section 35A, in
pursuance of any objection on which the Court from whose decree the appeal is
preferred has omitted or refused to make such order].
ILLUSTRATION
A claims a sum of money as due to him from X or Y, and in a suit against both obtains a
decree against X. X appeals and A and Y are respondents. The Appellate Court decides
in favour of X. It has power to pass a decree against Y.
COMMENT.—
This rule 33 has been amended to cover cross-suits and also a suit in which two
decrees are passed. This was considered desirable in order to remove the uncertainty
with regard to res judicata. The powers under rule 33 can be exercised only if the Court
finds that the appeal on it merits must succeed. Such a discretionary power cannot be
exercised to nullify effect of abatement of appeal. It is to be exercised in exceptional
cases.301
While exercising power as the first appellate Court, the High Court can enter into not
only questions of law but also questions of fact as well. It can reappraise, reappreciate
and review the entire evidence, oral as well as documentary.302
Rule 33 is intended to empower to appellate Court to make whatever order it thinks fit,
not only as between the appellant and the respondent but also as between a
respondent and a respondent. It empowers the appellate Court not only to give or
refuse relief to the appellant by allowing or dismissing the appeal but also to give such
other relief to any of the respondents as "the case may require".
The provision of O XLI, rule 33 of the Code 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. This is very wide and enabling provision. The expression
"order ought to have been made" would obviously mean an order which justice of the
case requires to be made. This power cannot be exercised ignoring a legal interdict or a
provision clamped by.303
If a party who could have filed a cross-objection under O XLI, rule 22 has not done so
then it cannot be said that the appeal Court can under no circumstances give him relief
under rule 33.304
Rules 22 and 33 are not mutually exclusive. They are closely related with each other. If
an objection cannot be urged under rule 22 against co-respondent then rule 33 can take
over and come to the rescue of the objector. The sweep of power under rule 33 is wide
enough to determine any question not only between appellant and respondent but also
between respondent and co-respondents. The words "as the case may require" used in
this rule enable the appellate Court to pass any order or decree to meet the ends of
justice. The only constraints on this power are that the parties before the lower Court
should be there before the appellate Court and the question raised must properly arise
out of the judgment of the lower Court. If these two requirements are there, then the
appellate Court can consider any objection against any part of thejudgment or decree
of the lower Court. It may be urged by any party to the appeal.305
Object of.—
The object of rule 33 of O XLI of the Code is to empower the appellate Court to do
complete justice between the parties.306
Order XLI, rule 33 enables the appellate Court to pass any decree that ought to have
been passed by trial Court or grant any further decree as the case may require. The
power could be exercised notwithstanding that appeal was only against a part of
decree. It could even be exercised in favour of respondents, though respondents might
not have filed any appeal or objection against what has been exercised.307
Order XLI, rule 33 has limited application, when there exists a legal interdict, the same
would not apply.308
When the application under O XLI, rule 33 of the Code of Civil Procedure is made is an
afterthought and the application has been filed merely to fill up the legal lacunae and
so also the application should have been filed at the earliest then the affidavit in
support cannot be read as evidence. Hence, the same is liable to be rejected.309
Though it is possible to take the view that even in the absence of an appeal having with
preferred by respondent 1, relief could be granted in exercise of the power under O XLI,
rule 33, the High Court's judgment cannot be sustained, relying on rule 33. The
approach adopted by the High Court in dealing with the claim of Respondent 1 for
partition of suit property despite her failure to prove case set up in plaint cannot be
approved. Substantial portions of the judgments of the trial court as well as of the High
Court are based on pure conjectures and surmises. Hence, instead of remanding the
matter to the High Court for fresh disposal of appeals, ends of justice would be met by
setting aside the judgment of the High Court and remitting the matter to trial court for
fresh disposal of suits filed by Respondent 1 and 2.310
"Which ought to have been passed."—

The expression "which ought to have been passed" means "which ought in law to have
been passed." If the appellate Court is of view that any decree which ought in law to
have been passed, but was in fact not passed by the subordinate Court, then it may
pass or make such further or other decree or order as the justice of the case may
require.311
Right of appeal.—
The powers under this rule can be exercised only if the Court finds that the appeal on
its merits must succeed.
When a party allows a decree to become final by not appealing, it would not be open to
another party to the litigation, whose rights are otherwise not affected by the decree, to
invoke the powers of the appellate Court under rule 33, to pass a decree in favour of a
party not appealing so as to give the latter benefit which he has not claimed. The rule is
primarily intended to confer power upon the appellate Court to do justice by granting
relief to non-appealing party. Refusing to do so would result in making inconsistent,
contradictory or unworkable order.312
Under this rule, the appellate Court has the power to pass not only any decree or order
which ought to have been passed but also such further or other decree or order as the
nature of the case may require. The Supreme Court in exercise of powers under O XLI,
rule 33 of Code of Civil Procedure can direct the Court of first instance to frame a
scheme for management of the temple and its properties to make the decree for
possession effective.313
Several defendants in a suit were equally aggrieved by decree on ground common to all
of them. An appeal by one of them failed for non-compliance with office objection
could not have consequence of defeating appeal by other party.314
No originals to be called for by first appellate Court.—
An evidence based on unverified copy of extracts of accounts is inadmissible even in

the trial Court. The first appellate Court therefore, has no power to call for the
originals.315
If the interest of the plaintiff in respect of the self acquired properties is fully protected
by the observations in the judgment, then there is nothing wrong in the dismissal of the
suit in its entirety.316
Interim order was passed by the High Court directing that the amount deposited by the
appellant be released in favour of respondent subject to furnishing of security. SLP
(Special Leave Petition) against interim order was dismissed by the Supreme Court.
Subsequently, High Court, being of the view that appeal had become infructuous,
passed another order directing that amount deposited be released without furnishing
security. It was held by the Supreme Court that dismissal of SLP would mean that
parties were relegated back to initial interim order, hence High Court not justified in
passing another order directing release of the amount without security.317
If the Court finds that the judgment of the Court be carried into effect because of the
change of circumstances, the Court can take notice of the same. If the Court finds that
the matter is no longer in controversy, the Court also takes notice of such event. If the
property which is subject-matter of suit is no longer available, the Court will take notice
of such event.318
The Court has power to take a note of subsequent events and mould the relief
accordingly subject to the conditions that the relief as claimed originally has, become
inappropriate or cannot be granted, taking note of such subsequent events or changed
circumstances would shorten litigation and enable complete justice being done to the
parties such subsequent event is brought to the notice of the Court promptly and in
accordance with the rules of procedure.319
An order for eviction of tenant had become final by the order of Supreme Court. The
landlord died before obtaining possession. The proceedings could not be reopened on
the ground of landlord's death. In such circumstances, subsequent events could not be
taken into consideration.320
Subsequent changes in law.—
It is well settled that the appellate Court is entitled to take into consideration any
change in law by a supervening statute and give proper relief on its basis.321
Power of Court of appeal.—
It is well settled that if a finding of fact is arrived at ignoring important and relevant
evidence, then the finding is bad in law. The High Court was, therefore, within its
jurisdiction in setting aside the finding of the lower appellate Court.322
Concurrent findings of Court below based on material evidence cannot be interfered

with, by the Appellate Court.323
By virtue of O XLI, rule 33 of the Code the appellate Court can examine the point of
limitation though no separate appeal or cross objection has been filed.324
The Court shall be totally unjustified in weaving out a new case which is not borne out
from the evidence on record.325
Where the collector allowed certain units to landholders and no appeal was filed by the
State, however, in an appeal filed by the landholder the commissioner was, held, to have
no power to interfere with the finding in favour of landholders. The commissioner could
not do in by even invoking O XLI, rule 33 as the rule did not confer an unrestricted right
to reopen decrees which had become final.326
It has been held by the Supreme Court in Mohd Salamatullah v Government of AP, AIR
1977 SC 1481 : (1977) 3 SCC 590 that there would be "no justification for the appellate
Court to interfere with a finding of fact given by the trial Court unless some reason,
based on some fact, is traceable on record".327 Accordingly, the judgment of the High
Court in regard to the assessment of damages for breach of contract was set aside.
In Koksingh v Deokabai, AIR 1976 SC 634 (636) : (1976) 1 SCC 383 (384) it was held
that "Under O XLI, rule 3, of the Code of Civil Procedure, the High Court was competent
to pass a decree for the enforcement of the charge in favour of the respondent
notwithstanding the fact that the respondent did not file any appeal from the decree."
Where a pre-emption suit against joint purchasers was decreed and an appeal against
this decree was filed only by one of the joint purchasers, non-appealing joint
purchasers were also held, parties to appeal.328
Appreciation of evidence by appellate Court.—
The knowledge that another view is possible on the evidence adduced in a case, acts
as a sobering factor and leads to the use of temperate language in recording judicial
conclusions. The judicial approach should always be based on the consciousness that
one may make a mistake, that is why the use of unduly strong words in expressing
conclusions or the adoption of unduly strong intemperate or extravagant criticism,
against the contrary view, should always be avoided. The use of such intemperate
language may, in some cases, tend to show either a lack of experience in judicial
matters or an absence of judicial poise and balance.329
In the absence of cross appeal preferred or cross-objection taken by the plaintiff

respondent, the first appellate Court while dismissing defendant's appeal, did not have
jurisdiction to modify the decree by decreeing plaintiff'suit for specific performance.330
It has been held by the Supreme Court in Tummalla Atchaiah v Venkta Narasingarao, AIR
1978 SC 725 judgment of Kerala High Court reversed that the High Court was wrong in
taking recourse to O XLI, rule 33, Code of Civil Procedure in interfering with the decree
of the trial Court in relation to payment without a special ground in the cross-objection
and without payment of Court-fees on the said amount, the plaintiff was not entitled to
get any relief under O XLI, rule 33, Code of civil Procedure.
Having consented, parties cannot plead concession.—
plea that no concession was given. Where the defendant was in unauthorised
occupation of premises the appellate Court exercised powers under O XLI, rules 30, 32
& 33 by consent of parties. It took note of realities that rentals in concerned area had
increased in leaps and bounds. It enhanced the rate of damages from Rs. 500/- p.m. to
Rs. 1,200/- pm which was justified.331
Where no cause of action is established against one of the defendants, the appellate
Court can exercise the power under this rule to set aside the decree passed against
such defendant by the trial Court.332
In exceptional cases an appellate Court can pass such decree or order as ought to
have been passed even in favour of a party who had not preferred any appeal.333
Where an appeal is decided after a delay of five years and the judgment gives rise to an
apprehension in the mind of appellant that the arguments raised at bar have not been
reflected or appreciated, the judgment is to be set aside and the matter be remitted to
High Court for deciding appeal afresh.334
In salary saving scheme of Life Insurance Corporation where the employer is to deduct
the premium from salary and remit to LIC, if he fails to merit the premium then he will
be liable to pay costs of proceedings to the heirs of employee.335
A High Court cannot dismiss second appeal summarily without adverting to
inconsistent judgment. Such an order of dismissal is to be set aside.336
Cognizance of new laws.—
When a decree is in substance a combination of several decrees against several

defendants, there is no reason why an appeal by one of the defendants in respect of his
interest should ensure for the benefit of the other defendants with reference to their
interest.337
Order of appellate Court Propriety.—
Where appellate Court, considering valuation of properties arrived at by the Advocate

Commissioner and valuation suggested by parties and also decision arrived at by the
Court below passing final decree and coming to conclusion that there was no infirmity
in the determination of value of property, the order of Appellate Court was held to be
proper.338
Without taking leave under section 170 of the Motor Vehicles Act, 1988, insures cannot
question quantum of compensation by taking umbrage under rule 33 of O XLI of the
Code as no independent appeal by it would be maintainable.339
300 Ins. by Act 9 of 1922 section 4 which under sections 1(2) thereof, may be brought into
force in any State by the State Government on any specified date. The Act has been brought into
force in Bombay, Bengal, UP, Punjab, Bihar, CP, Assam, Orissa and Tamil Nadu.
301 Rameshwar Prasad v Shambehari, AIR 1963 SC 1901 : (1964) 3 SCR 549 : 1964 ALJ 109 :
(1963) 2 All 933 .
302 Jagdish Singh v Madhuri Devi, (2008) 10 SCC 497 (504).
303 Prahladv State of Maharashtra, (2010) 10 SCC 458 (462, 463).
304 Panna Lal v State of Bombay, AIR 1963 SC 1516 (1519) : (1964) 1 SCR 980 : 66 Bom LR 100.
305 Mahant Dhangir v Madan Gopal, AIR 1988 SC 54 (58) : 1987 Supp SCC 528 .
306 Ravi Kumar v Julmidevi, (2010) 4 SCC 476 (480); see also C Cheriathan v P Narayanan
Embranthiri, (2009) 2 SCC 673 (Applicability of).
307 S Nazeer Ahmed v State Bank of Mysore, (2007) 11 SCC 75 (81).
308 Samundra Devi v Narendra Kaur, (2008) 9 SCC 100 (104-105).
309 Dhameshwar v Gish Pati, AIR 2015 HP 77 .
310 Y Nagaraj v Jalajakshi, (2012) 2 SCC 161 .
311 Giani Ram v Ramji Lal, AIR 1969 SC 1144 : (1969) 1 SCC 813 .
312 Nirmala Bala v Balai Chand, AIR 1965 SC 1874 (1884) : (1965) 3 SCR 550 .
313 Ramchandv Janki, AIR 1970 SC 532 , (534) : (1969) 2 SCC 313 .
314 Bajranglal S Ruta v Shashikant NRuta, AIR 2004 SC 2546 (2555).
315 TNHardas v Babulal, AIR 1973 SC 1363 (1369) : (1973) 2 SCC 154 .
316 Shanharrao Dajisahab Shinde v Vithalrao Ganpatrao Shinde, AIR 1989 SC 879 (884) : (1989)
Supp (2) SCC 162 .
317 Delhi Cantonment Board v RN Goel, (2010) 15 SCC 784 .
318 Laxmi & Co v AR Deshpande, AIR 1973 SC 171 : (1973) 1 SCC 37 : (1973) 2 SCR 172 .
319 Om Prakash Gupta v Ranbir B Goyal, AIR 2002 SC 665 (670) : (2002) 2 SCC 256 .
320 Sayed Asadullah Kazim v Addl Distt Judge, Allahabad AIR 1981 SC 1724 : (1981) 3 SCC 483 .
321 Amarjit Kaur v Pritam Singh, AIR 1974 SC 2068 ; see also Raghunath v Kedarnath, AIR 1969
SC 1316 ; See also Mohanlal v Tribhuvan, AIR 1963 SC 358 (360); Narhari Shivram Shet Narvehar
v Pannalal, AIR 1977 SC 164 : (1976) 3 SCC 203 : (1976) 3 SCR 149 .
322 Damadilal v Parashram, AIR 1976 SC 2229 (2236) : (1976) 4 SCC 855 .
323 Aratibala Dash v State of Orissa, 2009 AIHC (NOC) 803 (Ori-DB); WA No 148 of 2008, Dt 5
December 2008.
324 Soumen KKar v Swapan KKar, 2008 (4) Cal HN 859 (866) (DB).
325 Manam Saraswathi Sampoorna Kalavathi v AP, SRTC, (2010) 5 SCC 785 .
326 Choudhary Sahu v State of Bihar, AIR 1982 SC 98 (100) : (1982) 1 SCC 232 .
327 Ibid.
328 Har Narain v Chandgi, AIR 1987 SC 1325 : 1987 Supp SCC 738 .
329 Ishwari Pd Misra v Mohd Isa, AIR 1963 SC 1728 (1736) : (1963) 3 SCR 722 : 1963 BLJR 226 .
332 Bihar Supply Syndicate v Asiatic Navigation, AIR 1993 SC 2054 (2063) : (1993) 2 SCC 639 :
(1993) 1 BLJR 731 .
333 K Muthuswami Gounder v N Palaniappa Gounder, AIR 1998 SC 3118 (3122) : (1998) 7 SCC
327 .
334 Bhagwandas Fatehchand Daswami v HPA International, AIR 2000 SC 775 : (2000) 2 SCC 13 .
335 Delhi Electric Supply Undertaking v Basanti Devi, AIR 2000 SC 43 (50).
336 State of Punjab v Bakshish Singh, AIR 1999 SC 2626 (2628) : (1998) 8 SCC 222 .
337 Harihar Prasad v Balmiki Prasad, AIR 1975 SC 733 : (1975) 1 SCC 212 : (1975) 2 SCR 932 .
338 TNRajasekar v NKasiviswanathan, AIR 2005 SC 3794 (3796).
339 Samundra Devi v Narendra Kaur, AIR 2008 SC 3205 (3208).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 34. Dissent to be recorded
© 2020 LexisNexis
THE FIRST SCHEDULE
Judgment in Appeal
R. 34.
Dissent to be recorded
Where the appeal is heard by more Judges than one, any Judge dissenting from the
judgment of the Court shall state in writing the decision or order which he thinks
should be passed on the appeal and he may state his reasons for the same.
See S. 98 and Notes thereto.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 35. Date and contents of
decree
© 2020 LexisNexis
THE FIRST SCHEDULE
Decree in Appeal
340R. 35.
Date and contents of decree
(1) The decree of the Appellate Court shall bear date the day on which the
judgment was pronounced.
(2) The decree shall contain the number of the appeal, the names and descriptions
of the appellant and respondent, [AP, B, M] and a clear specification of the
relief granted or other adjudication made. [K]
(3) The decree shall also state the amount of costs incurred in the appeal, and by
whom, or out of what property, and in what proportions such costs and the
costs in the suit are to be paid.
(4) The decree shall be signed and dated by the Judge or Judges who passed it:
Judge dissenting from judgment need not sign decree
Provided that where there are more Judges than one and there is a difference of
opinion among them, it shall not be necessary for any Judge dissenting from the
judgment of the Court to sign the decree. [D, HP, K, PU]
[Sub-rule (2) amended in AP, Bom, Kerala & Mad; further proviso added in Delhi, HP,
Kerala & Punjab.]
Bombay (Dadra and Nagar Haveli).—
1983, Part 4 Ka, Page 427 (1-10-1983).
In Order XLI, rule 35, for the existing sub-rule (2), substitute the following as sub-rule
(2):—
"(2) The decree shall contain the number of the appeal, the names and descriptions of
the appellant and the respondent, their registered addresses, and a clear specification
of the relief granted or the adjudication made."
Himachal Pradesh.—Same as in Punjab, except that for the words "High Court" the
words "Judicial Commissioner's Court" are substituted.
Kerala (Notfn No B1-3312/58; 7-4-1959).— (i) Delete full stop at the end of sub-rule (2)
and add "in appeal as also in the decree appealed from."
(ii) To sub-rule (4) add the following proviso:—
"Provided that the provisions of the sub-rule shall not apply to decrees passed by the
High Court." (9-6-1959)
Madras (Pondicherry).— The following amendments were made by B.O.C. No. 3299 B-1
of 1930.
Substitute the following for sub-rule (2):
"(2) The decree shall contain the number of the appeal, the names and descriptions of
the appellant and the respondent, their registered addresses for service and a clear
specification of the relief granted or other adjudication made."
Punjab (Notfn No 20-R-XI-Y-I of 29-1-1937).— Add the following further proviso at the
end:—
"Provided also in the case of the High Court that the Registrar, or such other officer as
may be in charge of the Judicial Department from time to time, shall sign the decree on
behalf of the Judge or Judges who passed it; but that such Registrar, or such officer,
shall not sign such decree on behalf of a dissenting Judge."
340 This rule is not applicable to the Chief Court of Oudh in the exercise of its appellate
jurisdiction; see the Oudh Courts Act, 1925 (U.P. 4 of 1925), section 16(3).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 36. Copies of judgment and
decree to be furnished to parties
© 2020 LexisNexis
THE FIRST SCHEDULE
Decree in Appeal
R. 36.
Copies of judgment and decree to be furnished to parties
Certified copies of the judgment and decree in appeal shall be furnished to the parties
on application to the Appellate Court and at their expense.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 37. Certified copy of decree
to be sent to Court whose decree appealed from
© 2020 LexisNexis
THE FIRST SCHEDULE
Decree in Appeal
R. 37.
Certified copy of decree to be sent to Court whose decree appealed from
A copy of the judgment and of the decree, certified by the Appellate Court or such
officer as it appoints in this behalf, shall be sent to the Court which passed the decree
appealed from [A] and shall be filed with the original proceedings in the suit, and an
entry of the judgment of the Appellate Court shall be made in the register of civil
suits. [A]
[Rule amended in All; rule 38 added in All, Bom, Gujarat, Orissa & Patna: Order XLI-A
added in All, Karnataka & Kerala: Order XLI-A and Order XLI-B added in AP and Mad.]
Allahabad.—(i) Delete the words "and shall be filed with the original proceedings in the
suit" and add a new para as below:
"Where the Appellate Court is the High Court the copies aforesaid shall be filed with the
original proceedings in the Suit."
(ii) (Notfn No. 1464/35 (a)-5(4) of 1-6-1918).—Add the following new rule 38:—
"R. 38. (1) An address for service filed under Order VII, rule 19 or Order VIII, rule 11 or
subsequently altered under Order VII, rule 24, or Order VIII, rule 12, shall hold good
during appellate proceedings arising out of the original suit or petition.
(2) Every memorandum of appeal shall state the addresses for service given by the
opposite parties in the Court below, and notices, and processes shall issue from the
Appellate Court to such addresses.
(3) Rules 21, 22, 23 and 24 of Order VII shall apply, so far as may be, to appellate
proceedings."
1983, Part 4 Ka, Page 427 (1-10-1983); Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 391 dated 1-4-1987.
In Order XLI, after the existing rule 37, add the following rule and marginal note as new
rule 38 and its marginal note:—
341[38. Registered address to hold good during appellate proceedings.—(1) The
registered address filed under Order VI, rule 14A shall hold good during all appellate
proceedings arising out of the original suit or petition, subject to any alteration under
sub-rule (3) hereof.
(2) Every memorandum of appeal shall state the registered addresses given by the
opposite parties in the Court below, and notices and processes shall issue from the
(3) Sub-rules (2) and (4)(i) and (ii) of rule 14-A of Order VI shall apply, so far as may be,
to appellate proceedings].

"R. 38. Every memorandum of appeal shall state that addresses for service given by the
Appellate Court to such addresses."
Himachal Pradesh.—Same as Delhi.
Patna.—
"R. 38. (1) An address for service filed under Order VII, rule 19 or Order VIII, R. 11, or
subsequently altered under Order VII, rule 22, or Order VIII, rule 12 shall hold good for
all notices of appeals during appellate proceedings arising out of the original suit or
petition.
(2) Every memorandum of appeal shall state the addresses for service given by the
(3) Rules 21 and 22 of Order VII shall apply, so far as may be, to appellate proceedings."
Gazette, dated 24-11-1927 and 29-1-1937.
The following shall be added as rule 38:
"R. 38. (1) An address for service filed under Order VII, rule 19 or Order VIII, rule 11, or
subsequently altered under Order VII, rule 24 or Order VIII, rule 12, shall hold good
during all appellate proceedings arising out of the original suit or petition.
(2) The notice of appeal and other processes connected with proceedings therein, shall
issue to the addresses mentioned in Clause (1), above and service effected at such
addresses shall be as effective as if it had been made personally on the appellant or
respondent, as the case may be.
(3) Rules 21, 22, 23, 24 and 25 of Order VII shall apply, so far as may be, to appellate
proceedings."
Allahabad (Notfn No 14186/VIId-147 : 22-12-1951).— After Order XLI insert the

following as Order XLI-A:—
ORDER XLI-A
APPEALS FROM ORIGINAL DECRESS IN THE HIGH COURT

Extent.—(1) The rules contained in this Order shall apply to appeals in the High Court
notwithstanding anything to the contrary contained in Order XLI or any other Order and
the rules contained in Order XLI shall be deemed to have been modified or repealed in
their application to such appeals to the extent of their inconsistency or repugnancy or
as indicated herein.
Service of notice on pleader.—(2) If a party appears by a pleader, all notices to him shall
be served upon such pleader, unless the Court directs otherwise.
Hearing appeal under rule 11 of Order XLI on date of presentation.—(3) Where a

memorandum of appeal is admitted on presentation the Court may, if it deems fit,
proceed to hear the appeal under rule 11 of Order XLI on the date of which it is
presented.
Day for appearance of respondent.—(4) Unless the appeal is dismissed under rule 11 of
Order XLI a day shall be fixed for the appearance of the respondent and notice thereof
shall be given to him. The notice shall call upon him to enter appearance on or before
the day so fixed and answer the appeal and inform him that the appeal shall be heard
on such day thereafter as may be subsequently notified.
Mode of entering appearance.—(5) The respondent shall enter appearance by filing a

memorandum of appearance in such form as may be prescribed by the Court.
Notice of day for hearing appeal.—(6) Notice of the day fixed for the hearing of the
appeal shall be given by making an entry thereof in the day's cause list of the Court for
that day and no other notice to the parties shall be necessary.
Application of rules 14 and 15 of Order XLI.—(7) Rules 14 and 15 of Order XLI shall not
apply in so far as they may be inconsistent with the rules of the Court regarding the
nature, service or publication of notices.
Amendment of rules 16, 17 and 18 of Order XLI.—(8) The following amendments shall be
deemed to have been made in Order XLI, namely:—[The amendments to the rules have
been incorporated in the rules themselves (see ante)].
Dismissal of appeal for default.—(9) Where default is made in compliance with any rules
of the Court which provide for the dismissal of an appeal for such default, the Court
may dismiss the appeal.
Upon hearing, respondent may object to decree as if he had preferred separate appeal.—
(10) Any respondent, though he may not have appealed from any part of the decree,
may not only support the decree on any of the grounds decided against him in the
Court below, but take any cross-objection to the decree which he could have taken by
way of appeal, provided he has filed such objection within one month from the day
fixed for his appearance in the notice served upon him in accordance with rule 4 or
within such further time as the Court may deem fit to allow.
Application of rule 31 of Order XLI.—(11) rule 31 of Order XLI shall not apply when the
Court dismisses an appeal under rule 11 of that Order. [Noti. No. 14186/VII(d)-147,
dated 22-12-1951]
Andhra Pradesh.—
(1) The following amendments were made by Andhra Pradesh Gazette, dated 10-2-1977,
Part II, (R.S.), Page 132.
For sub-rule (1) of rule 2 of Order XLI-A (see Madras Amendment) substitute the
following:—
"(1) The memorandum of appeal shall be accompanied by as many neatly type-written
or in any other way mechanically reproduced copies of judgment as there are
respondents plus two copies for the Court subject to a maximum of twelve in any case
one of such copies being a certified copy. The judgment shall be type-written or
mechanically reproduced in any other way on both sides of white foolscap folio paper
with double spacing and with two inches wide outer margin and about one inch wide
inner margin, each page containing not more than 32 lines. The memorandum shall
also be accompanied by the prescribed fees for service of notice of appeal and the
receipt of the account of the Court for the sum prescribed by the rules of Court."
(2) Rest same as in Madras, except that in rule 11 after the words "awarded" in line 1
add "unless the Court otherwise orders" and after the words "before the Registrar" add
"or the Court" for "Rs. 25" substitute "Rs. 15" and add thereafter, "and the cost of
appearing when the appeal is in the daily cause list for final hearing and is adjourned
shall be Rs. 30".
After Order XLI insert the following as OrderXLI-A:—
ORDER XLI-A
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE

COURTS
1. Rules contained in Order XLI shall apply to appeals in the High Court of Mysore with
the modifications contained in this Order.
2. Where the memorandum of appeal is presented through an Advocate the

memorandum shall state his address for service within the City of Bangalore and such
address shall be the address for service of the appellant for all notices and processes
issued in or in connection with the appeal or any Interlocutory Application in the appeal.
3. When any notice issued in an appeal preferred to the High Court fixes a date on
which or a period within which the parties served with the notice shall enter
appearance in the appeal such notice shall be deemed to be a notice fixing a day for
hearing the appeal within the meaning of rule 12 of Order XLI.
4. The Court may direct that service of a notice of appeal or other notice of process
shall be made by sending the same by post in a registered cover prepaid for
acknowledgment and addressed to the addressee for service of the party to be served
which has been filed by him in the lower Court or in the High Court. A notice sent in
accordance with this rule shall be deemed to be served on the day on which it would in
ordinary course of post be delivered to him if the postal cover is not returned within a
period of 15 days. When the cover is actually delivered to the party the postal
acknowledgment purporting to contain the signature of the party may be deemed to be
proof of sufficient service of the notice on the party on the day on which it is actually
delivered to him. If the postal cover is returned unserved, any endorsement purporting
to have been made thereon by delivery peon or other employee or officer of the postal
department shall be prima facie evidence of the statements made therein.
5. If any party or his Advocate to whom a memorandum of cross-objections has been

tendered has refused or neglected for three days from the date of such tender to give
the acknowledgment mentioned in rule 22(3) of Order XLI, the respondent preferring
such memorandum of cross-objections may file into Court an affidavit stating the facts
and the Registrar may dispense with service of the copies of the memorandum.
6. (1) Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally a
shorthand note thereof shall be taken by a shorthand-writer appointed for the purpose
and a transcript made by him shall be signed or initialled by the Judge or Judges
concurring therein after making such corrections as may be considered necessary.
(2) Sub-rule (4) of rule 35 of Order XLI shall not apply to the High Court. Decrees of the
High Court shall be signed by the Registrar, Deputy Registrar or Assistant Registrar, as
indicated by the Chief Justice.
7. (1) If an appellant or petitioner fails to show due diligence in making all deposits or
payments or in taking all necessary steps as required by the rules of the High Court in
the matter of the preparation of the paper book of any appeal or petition, the Registrar
may in his discretion, and shall, if the maximum period of extension of the time
permissible under sub-rule (9) of rule 1, Chapter IV has expired, post the appeal or
petition before the appropriate Bench for orders. The Bench may either grant further
time for rectifying the default or omission, or if it thinks fit dismiss the appeal or
petition.
(2) Any appeal or petition dismissed under sub-rule (1) may be re-admitted by Court if
an application for readmission is made accompanied by a certificate signed by the
Registrar certifying that the default or omission for which the order of dismissal was
passed has been rectified.
The following amendments were made by Kerala Act, dated 9-6-1959 and 20-1-1970.
After Order XLI the following Order shall be added, namely:
"ORDER XLI-A
APPEAL TO THE HIGH COURT FROM ORIGINAL DECREES OR SUBORDINATE COURTS
1. Modification in first appeals to High Court.—
The rules contained in Order XLI shall apply to appeals in the High Court of Kerala with
the modifications contained in this order.
2. Notice fee, etc., to accompany Appeal Memo.—
(1) The memorandum of appeal shall be accompanied by twelve printed copies of the
judgment, one of such copies being a certified copy, the prescribed fees for service of
notice of appeal and the receipt of the accountant of the Court for the sum prescribed
by the rules of Court.
Time for respondent's appearance.—
(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for
entry of appearance by the respondent and filing by him of Memorandum of Cross-
objections, if any, shall unless otherwise ordered, be thirty days from the service of
notice upon him.
3. Appearance to be filed by respondent.—
(1) If the respondent intends to appear and defend the appeal he shall within the period
specified in the notice of appeal enter an appearance by filing in Court a memorandum
of appearance.
Penalty for default.—
(2) If a respondent fails to enter an appearance within the time and in the manner
provided by the sub-rule above, he shall not be allowed to translate or print any part of
the record.
Petition for enlargement of time and procedure thereon.—
(3) Provided that a respondent may apply by petition for further time; and the Court may
thereupon make such order as it thinks fit. The application shall be supported by
evidence to be given on affidavit as to the reason for the applicant's default and notice
thereof shall be given to the appellant and all parties who have entered an appearance.
Unless otherwise ordered the applicant shall pay the costs of all parties appearing
upon the application.
4. Address for service.—
(1) The memorandum of appeal and the memorandum of appearance shall state an
address for service within the town of Ernakulam at which service of any notice, order
or process may be made on the party filing such memorandum.
When party appears in person or by pleader.—(2) If a party appears in person, the

address for service may be within the local limits of the jurisdiction of the Court from
whose decree the appeal is preferred:
Provided that if such party subsequently appears by a pleader, he shall state in the
vakalat an address for service within the town of Ernakulam and shall give notice
thereof to each party who has appeared.
Service at Pleader's Address.—(3) If a party appears by a pleader, his address for

service shall be that of his pleader, and all notices to the party shall be served on his
pleader at that address.
5. Service by Registered Post.—The Court may direct that service of a notice of appeal
or other notice or process shall be made by sending the same in a registered cover
prepaid for acknowledgment and addressed to the addressee for service of the party to
be served, which has been filed by him in the lower Court:
Provided that, after a party has given notice of an address for service in accordance
with rule 4, service of any notice or process shall be made at such address.
6. Notice to respondents appearing separately.—If there are several respondents, and

all do not appear by the same pleader, they shall give notice of appearance to such of
the other respondents as appear separately.
7. Procedure where record not translated and printed before hearing.—(1) If, upon a
case being called on for hearing, by the Court, it appears that the record has not been
translated or printed in accordance with the rules of Court, the Court may dismiss the
appeal or may adjourn the hearing and direct the party in default to pay costs, or may
make such order as it thinks fit.
(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of
the record which is not included in the printed papers.
(3) When an appeal is dismissed under sub-rule (1), the appellant may apply to the
Court for re-admission of the appeal; and when the Court is satisfied that there was
sufficient cause for the default, it shall re-admit the appeal on such terms as to costs or
otherwise as it thinks fit. (dated 20-1-1970).
8. Costs of application and of adjournment.—When costs are awarded, unless the

Court otherwise orders, the costs of a party appearing upon any application before the
Registrar or the Court shall be Rs. 15 and the costs of appearing when the appeal is in
the daily cause list for final hearing and is adjourned shall be Rs. 30. At the request of
any party the Registrar shall cause the order to be drawn up and the said costs to be
inserted therein.
MEMORANDUM OF OBJECTIONS
9. Copies of Memorandum of Objections when to be filed.—(1) If the acknowledgment

mentioned in rule 22(3) of Order XLI is not filed, the respondent shall together with the
Memorandum of Objections file so many copies thereof as there are parties affected
thereby.
Prescribed fees for service.—(2) The prescribed fees for service shall be presented
together with the memorandum to the Registrar." (dated 9-6-1959).
Madras and Pondicherry (GO No. 2128-Home (Judl) of 18-10-1917).—After Order XLI
insert the following as Order XLI-A and Order XLI-B:—
"ORDER XLI-A
APPEALS TO THE HIGH COURT FROM ORIGINAL DECREES OF SUBORDINATE

COURTS
1. The rules contained in Order XLI shall apply to appeals in the High Court of
Judicature at Madras with the modification contained in this Order.
2. (1) The memorandum of appeal shall be accompanied by twelve printed copies of

the judgment, one of such copies being a certified copy, the prescribed fees for service
of notice of appeal and the receipt of the accountant of the Court for the sum
prescribed by the rules of Court.
(2) Notwithstanding anything contained in rule 22 of Order XLI the period prescribed for
entry of appearance by the respondent and filing by him of Memorandum of Cross-
objections, if any, shall unless otherwise ordered, by thirty days from the service of
notice upon him.
3. (1) If the respondent intends to appear and defend the appeal he shall within the
period specified in the notice of appeal enter an appearance by filing in Court a
memorandum of appearance.
(2) If a respondent fails to enter an appearance within the time and in the manner
provided by the sub-rule above, he shall not be allowed to translate or print any part of
the record:
Provided that a respondent may apply by petition for further time, and the Court may
thereupon make such order as it thinks fit. The application shall be supported by
evidence to be given on affidavit as to the reason for the applicant's default, and notice
thereof shall be given to the appellant and all parties who have entered an appearance.
Unless otherwise ordered the applicant shall pay the costs of all parties appearing
upon the application.
4. (1) The memorandum of appeal and the memorandum of appearance shall state an
address for service within the City of Madras at which service of any notice, order or
process may be made on the party filing such memorandum.
(2) If a party appears in person, the address for service may be within the local limits of
the jurisdiction of the Court from whose decree the appeal is preferred:
Provided that if such party subsequently appears by a pleader he shall state in the
vakalat an address for service within the City of Madras, and shall give notice thereof to
each party who has appeared.
(3) If a party appears by a pleader, his address for service shall be that of his pleader,
and all notices to the party shall be served on his pleader at that address.
5. The Court may direct that service of a notice of appeal or other notice or process
shall be made by sending the same in a registered cover prepaid for acknowledgment
and addressed to the addressee for service of the party to be served, which has been
filed by him in the lower Court:
Provided that, after a party has given notice of an address for service in accordance
with rule 4, service of any notice or process shall be made at such address.
6. All notices and processes, other than a notice of appeal, shall be sufficiently served if
left by a party or his pleader, or by a person employed by the pleader, or by an officer of
the Court, between the hours of 11 a.m. and 5 p.m. at the address for service of the
party to be served.
7. Notices which may be served by a party or his pleader under rule 6, or which are sent
from the office of the Registrar, may, unless the Court otherwise directs, be sent by
registered post; and the time at which the notice so posted would be delivered in the
ordinary course of post shall be considered as the time of service thereof and posting
thereof shall be a sufficient service.
8. If there are several respondents, and all do not appear by the same pleader, they shall
give notice of appearance to such of the other respondents as appear separately.
9. A list of all cases in which notice is to be issued to the respondent shall be affixed to
the Court notice board after the case has been registered.
10. (1) If upon a case being called on for hearing by the Court, it appears that the
record has not been translated and printed in accordance with the rules of Court, the
Court may hear the appeal or dismiss it, or may adjourn the hearing and direct the party
in default to pay costs, or may make such order as it thinks fit.
(2) If the Court proceeds to hear the appeal, it may refuse to read or refer to any part of
the record which is not included in the printed papers.
11. When costs are awarded, the costs of a party appearing upon any application
before the Registrar shall be Rs. 25. At the request of any party the Registrar shall
cause the order to be drawn up and the said costs to be inserted therein. (Amended on
14-11-63).
MEMORANDUM OF OBJECTIONS
12. (1) If the acknowledgment mentioned in rule 22(3) of Order XLI is not filed, the
respondent shall together with the memorandum of objections file so many copies
thereof as there are parties affected thereby.
(2) The prescribed fees for service shall be presented together with the memorandum
to the Registrar.
13. If any party or the pleader of any party to whom a memorandum of objections has
been tendered has refused or neglected for three days from the date of tender to give
the acknowledgment mentioned in rule 22 (3) of Order XLI, the respondent may file an
affidavit stating the facts and the Registrar may dispense with service of the copies
mentioned in rule 12(1).
14. Rule 31 of Order XLI shall not apply to the High Court. If judgment is given orally a
shorthand note thereof shall be taken by an officer of the Court and a transcript made
by him shall be signed or initialled by the Judge or by the Judges concurring therein
after making such corrections as may be considered necessary."
Madras (Go No 2128 - Home (Judl) of 18-10-1917).—
After Order XLI-A insert the following as Order XLI-B:—
"ORDER XLI-B
LETTERS PATENT APPEALS
1. The rules of Order XLI-A shall apply, so far as may be, to appeals to the High Court of
Madras under Clause 15 of the Letters Patent of the said Court:
Provided that it shall not be necessary to file copies of the judgment and decree
appealed from.
341 See Mah. Govt. Gaz., 15-9-1983, Pt. 4 Ka, P. 427, Goa Gaz., 12-10-1987, Ext., section 1, No.
28, P. 391, (1-4-1987).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Procedure
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLII Appeals from Appellate Decrees
R. 1.
Procedure
The rules of Order XLI shall apply, so far as may be, to appeals from appellate
decrees. [A, AP, C, D, GAU, HP, KNT, K, M, PU, RAJ]
[Rule substituted in All, AP, Gauhati, Cal, Karnataka, Madras & Rajasthan; rule 2 added in
Delhi, HP & Punjab; rule 1 amended, rule 2 and Order XLII-A inserted in Kerala.]
Allahabad (Notfn No 2058/35(a) of 17-6-1916; No 3922/VII-d-107 of 14-8-1948; No

14186/VII-d-147 of 22-12-1951).— For rule 1 substitute the following:—
"1. The rules of Order XLI and Order XLI-A shall apply, so far as may be, to appeals from
appellate decrees, subject to the following proviso:
Every memorandum of appeal from an appellate decree shall be accompanied by a

copy of the decree appealed from and unless the Court sees fit to dispense with either
or all of them—
(1) a copy of the judgment on which the said decree is found,
(2) a copy of the judgment of the Court of the first instance, and
(3) a copy of the finding of the civil or the revenue Court, as the case may be, where
an issue was remitted to such Court for decision."
dated 10-2-1977, Part (R.S.), Page 132.
(1) For sub-rule (1) of rule 2 of Order XLII, substitute the following—
"(1) The memorandum of appeal shall be printed or typewritten and shall be

accompanied by the following papers:—
One certified copy of the decree of Court of first instance and of the appellate Court
and four neatly typewritten or in any other way mechanically reproduced copies of each
of the judgments of the said Courts, one copy of each judgment being a certified copy.
The judgment shall be neatly typewritten or mechanically reproduced in any other way
on both sides of white foolscap folio paper with double spacing and with two inches
wide outer margin and about one inch wide inner margin, each page containing not
more than 32 lines.
(2) Rest same as in Madras.
Calcutta (Notfn No 1750-G, of 15-2-1938). — For rule 1, substitute the following:—
"1. The rules of Order XLI shall apply, so far as may be, to appeals from appellate
decrees:
Provided that every memorandum of appeal from an appellate decree shall be
accompanied by a copy of the decree appealed from and also (unless the Court sees fit
to dispense with any or all of them), by copies of the judgment on which the said
decree is founded and of the judgment and decree of the Court of first instance."
Omit Order XLII and substitute the following therefor:—
"1.The Rules contained in Order XLI and Order XLI-A shall apply, so far as may be, to
appeals to the High Court of Mysore from appellate decrees with the modifications
contained in this order.
2.The memorandum of appeal shall be accompanied by one certified copy each of the
decree and judgment of the Court of the first instance and one certified copy each of
the decree and judgment of the Appellate Court.
3.If any ground of appeal is based upon the construction of a document a copy of such
document shall be presented with the memorandum of appeal, and if such document is
not in the language of the Court a translation thereof or of a material portion thereof
certified to be a true translation by the appellant's Advocate shall be presented."
Kerala (i) (Notfn No D1-32897/68 d/-5-1-70).—
After "order XLI" insert "as modified by Order XLI-A".
(ii) (Notfn No B1-3312/58; 7-4-1958).—
After rule 1 insert the following rule:—
"2. Memo to be typed or printed. What to accompany memorandum.—(1) The

memorandum of appeal shall be printed or typewritten and shall be accompanied by a
certified copy of the decree and judgment of the appellate Court and (unless the Court
dispenses therewith) a certified copy of the decree and judgment of the Court of first
instance.
Copies of documents to be construed (2).—If any ground of appeal is based upon the
construction of a document, a true copy of such document shall be presented with the
memorandum of appeal."
Madras (GO No 2128-Home (Judl), of 18-10-1917; P Dis No 101 of 1943).—
For present rule 1 substitute the following rules:—
"1. The rules of Order XLI and Order XLI-A shall apply, so far as may be, to appeal to the
High Court of judicature at Madras from appellate decrees with the modifications
contained in this Order:
2. (1) The memorandum of appeal shall be printed or typewritten and shall be

One certified copy of the decrees of the Court of first instance and of the Appellate
Court; and four printed copies of each of the judgments of the said Courts, one copy of
each judgment being a certified copy.
(2) If any ground of appeal is based upon the construction of a document, a printed or
typewritten copy of such document shall be presented with the memorandum of
appeal:
Provided that if such document is not in the English language and the appellant
appears by a pleader, an English translation of the document certified by the pleader to
be correct translation shall be presented.
(3) If the appellant fails to comply with this rule, the appeal may be dismissed."
Punjab (Notfn No 4685-G of 17-10-1919 and No 138-G of 19-3-1926).—
"2.In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal
shall be accompanied by a copy of the judgment of the Court of first instance, unless
the Appellate Court dispenses therewith."
Rajasthan.—
The following amendments were made by Rajasthan Act, dated 30-5-1956.
Rule 1 shall be amended as follows:
"1. Procedure.—The rules of Order XLI shall apply so far as may be, to appeals from
appellate decrees, subject to the following proviso—
Every memorandum of appeal from an appellated decree shall be accompanied by a

copy of the decree appealed from and unless the Court sees fit to dispense with either
or all of them—
(1) a copy of the judgment on which the said decree is founded;
(2) a copy of the judgment of the Court of first instance; and
(3) a copy of the finding of the Civil or the Revenue Court as the case may be where
an issue is remitted to such Court for decision".
Kerala (Notfn No B1-3312/58; 7-4-1959).— After Order XLII insert the following Order:—
"ORDER XLII-A
APPEALS FROM DECREES AND ORDERS OF SINGLE JUDGE TO DIVISION BENCH OF

THE HIGH COURT
Procedure.—The Rules of Order XLI and XLI-A shall apply so far as may be to appeals
from decrees and orders of a single Judge to a Division Bench".
COMMENT.—
As to grounds which may be raised in second appeal, reference may be made to the
sections 100 and 101 of the Code. It has been held by the Supreme Court that the High
Court in second appeal is bound to consider important questions of law that may be
raised for the first time in argument.1 Where the trial Court decreed, in a redemption
suit that a certain amount was due by the plaintiff as the redemption amount and the
plaintiff did not appeal against this, it was held by the Supreme Court that the High
Court could not interfere with the finding of the trial Court as to the amount due.
1 Ram Krishto v Dhankisto, AIR 1969 SC 204 : (1969) 1 SCR 342 : 1969 BLJR 270 ; see also
Santa Singh v Rajinder Singh, AIR 1965 Punj 415 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Power of Court to direct
that the appeal be heard on the question formulated by it
© 2020 LexisNexis
THE FIRST SCHEDULE
2[R. 2.
Power of Court to direct that the appeal be heard on the question formulated
by it
At the time of making an order under rule 11 of Order XLI for the hearing of a second
appeal, the Court shall formulate the substantial question of law as required by
section 100, and in doing so, the Court may direct that the second appeal be heard on
the question so formulated and it shall not be open to the appellant to urge any other
ground in the appeal without the leave of the Court, given in accordance with the
provision of Section 100.
Andhra Pradesh.—
(i) Same as that of Madras except for sub-rule (1) of rule 2 (see infra).
(ii) For sub-rule (1) of rule 2, substitute the following:—
"(1) The memorandum of appeal shall be printed or typewritten and shall be

accompanied by the following papers:
One certified copy of the decrees of the Court of first instance and of the appellate
Court and four neatly typewritten or in any other way mechanically reproduced copies
of each of the judgment of the said Courts, one copy of each judgment being a certified
copy. The judgment shall be neatly typewritten or mechanically reproduced in any other
way on both sides of white fulscap folio paper with double spacing and with two inches
wide outer margin and about one inch wide inner margin, each page containing not
more than thirty-two lines."—(10-2-1977).
Delhi.—Same as that of Punjab—(31-10-1966).
Himachal Pradesh.—Same as that of Punjab—(25-1-1971).
Kerala.—
In Order XLII, after rule 1, the following rule shall be inserted:—
"2. (1) Memo. to be typed or printed. What to accompany memorandum.—The

memorandum of appeal shall be printed or typewritten and shall be accompanied by a
certified copy of the decree and judgment of the appellate Court and (unless the Court
dispenses therewith) a certified copy of the decree and judgement of the Court of first
instance.
(2) Copies of documents to be construed.—If any ground of appeal is based upon the
construction of a document, a true copy of such document shall be presented with the
memorandum of appeal."—(9-6-1959).
Punjab.—
"2. In addition to the copies specified in Order XLI, rule 1, the memorandum of appeal
shall be accompanied by a copy of the judgment of the Court of first instance, unless
the appellate Court dispenses therewith."—(19-3-1926).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Application of rule 14 of
Order XLI
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Application of rule 14 of Order XLI
References in sub-rule (4) of rule 14 of Order XLI to the Court of first instance shall, in
the case of an appeal from an appellate decree or order, be construed as a reference
to the Court to which the appeal was preferred from the original decree or order.]
Karnataka.— Omit Order XLII and substitute the following therefor:—
"ORDER XLII
1. The rules contained in Order XLI and Order XLI-A shall apply, so far as may be, to
appeals to the High Court of Mysore from appellate decrees with the modifications
contained in this Order.
2. The memorandum of appeal shall be accompanied by one certified copy each of the
decree and judgment of the Court of the first instance and one certified copy each of
the decree and judgment of the appellate Court.
3. If any ground of appeal is based upon the construction of a document a copy of such
document shall be presented with the memorandum of appeal, and if such document is
not in the language of the Court a translation thereof or of a material portion thereof
certified to be a true translation by the appellant's Advocate shall be presented."—(5-11-
1959). Madras.—
Substitute the following for the existing Order XLII:—
"ORDER XLII
APPEALS FROM APPELLATE DECREES
1. The rules of Order XLI and Order XLI-A shall apply, so far as may be, to appeals to the
High Court of Judicature at Madras from appellate decrees with the modifications
contained in this Order.
2. (1) The memorandum of appeal shall be printed or typewritten and shall be

One certified copy of the decrees of the Court of first instance and of the appellate
Court and four printed copies of each of the judgments of the said Courts, one copy of
each judgment being a certified copy.
appeal : Provided that if such document is not in the English language and the appellant
appears by a pleader, an English translation of the document certified by the pleader, to
be a correct translation shall be presented.
(3) If the appellant fails to comply with this rule, the appeal may be dismissed."
O rder XLII-A
Kerala.—
After Order XLII, the following Order shall be added, namely:—
"O rder XLII-A
APPEALS FROM DECREES AND ORDERS OF SINGLE JUDGE TO DIVISION BENCH OF

THE HIGH COURT
Procedure.—The rules of Orders XLI and XLI-A shall apply, so far as may be, to appeals
from decrees and orders of a Single Judge to a Division Bench."—(9-6-1959).
COMMENT.—
Rules 2 and 3 have been added newly by the Amending Act of 1976. Rule 2 has been
added in order to provide that where a second appeal is admitted, the Court shall
record reasons for the admission of the appeal; but where the appeal is not admitted,
no reasons need be recorded.
Rule 3 provides that it shall not be necessary to serve notice of any proceeding
incidental to an appeal on any respondent other than a person impleaded for the first
time in second appellate Court unless the respondent has appeared and filed an
address for the service in the Court of second appeal or has appeared in the second
appeal.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Appeals from orders
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLIII Appeals from Orders
R. 1.
Appeals from orders
An appeal shall lie from the following orders under the provisions of section 104,
namely:—
(a) an order under rule 10 of Order VII returning a plaint to be presented to the
proper Court 1[except where the procedure specified in rule 10A of Order VII
has been followed];
2
(b) omitted by Act 104 of 1976;
(c) an order under rule 9 of Order IX rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
(d) an order under rule 13 of Order IX rejecting an application (in a case open to
appeal) for an order to set aside a decree passed ex parte;
2
(e) omitted by Act 104 of 1976;
(f) an order under rule 21 of Order XI;
2
(g) and (h) omitted by Act 104 of 1976;
(i) an order under rule 34 of Order XXI on an objection to the draft of a document
or of an endorsement; [A, C, GAU, M]
(j) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set
aside a sale; [AP]
3
[(ja) an order rejecting an application made under sub-rule (1) of rule 106 of Order
XXI, provided that an order on the original application, that is to say, the
application referred to in sub-rule (1) of rule 105 of that Order is appealable;]
(k) an order under rule 9 of Order XXII refusing to set aside the abatement or
dismissal of a suit;
(l) an order under rule 10 of Order XXII giving or refusing to give leave;
(m) omitted by Act 104 of 1976;

(n) an order under rule 2 of Order XXV rejecting an application (in a case open to
appeal) for an order to set aside the dismissal of a suit;
4
[(na) an order under rule 5 or rule 7 or Order XXXIII rejecting an application for
permission to sue as an indigent person;]
5
[(o) * * * ];
(p) orders in interpleader-suits under rule 3, rule 4 or rule 6 of Order XXXV;
(q) an order under rule 2, rule 3 or rule 6 of Order XXXVIII;
(r) an order under rule 1, rule 2, 6[rule 2A], [AP] rule 4 [B] or rule 10 of Order XXXIX;
(s) an order under rule 1 or rule 4 of Order XL; [AP, K, M]
(t) an order of refusal under rule 19 of Order XLI to re-admit, or under rule 21 of
Order XLI to re-hear an appeal;
(u) an order under rule 23 7[or rule 23A] of Order XLI remanding a case, where an
appeal would lie from the decree of the Appellate Court;
5
(v) [* * * ];
(w) an order under rule 4 of Order XLVII granting an application for review. [B, G]
Allahabad.— [Notfn No 43/VII-d-29; 1-6-1957] Delete clauses (g),(i),and (o).
The following amendments were made by Allahabad Gazette, dated 19-4-1958.
In order XLIII, rule 1—
Add in clause (r) the words and figure "rule 2A" between the words and figures "rule 2"
and "rule 4".
Andhra Pradesh.—
(i) Same as those of Madras items (2),(3),and (4).
(ii) (Notfn No P Dis 229/56; 2-4-1956).—After clause (ii) insert the following:— "(iii) An
order under rule 106 of Order XXI".
(iii) In clause (r) after "rule 2" insert "rule 3A, rule 3B". (12-7-1962).
Bombay.—
(i) In clause (r) for "or rule 10" substitute "rule 10 and rule 11". (1-11-1966). (ii) (Notfn No
1646 of 9-3-1926).—Delete clause (w).

1983, Part 4 Ka, Page 427 (1-10-1983) ; Goa Gazette, dated 12-10-1987, Extra. Section 1,
No. 28, Page 391, dated 1-4-1987.
(1) Substitute the following clause (r) :—
"(r) an order under rule 1, rule 2, rule 4, rule 10 and rule 11 of Order XXXIX."
Calcutta (Notfn No 3516-G, of 3-2-1933).— Insert the following after clause (i) :—
"(i) (a) An order under rule 57 of Order XXI, directing that an attachment shall cease or
directing or omitting to direct that an attachment shall continue".
Gujarat.—Same as in Bombay (ii).
Kerala (Notfn No B1-3312/58; 7-4-1959).— Clauses (jj), (nn) and (s)—Insert the Madras
item (b). (9-6-1959)
Madras (a) [19-5-1954].—After clause (i) insert the following:—
"(ii) an order under rule 106 of Order XXI."
(b) (P Dis No 60 of 1933).—Add the following to clause(s):—"except an order under the

proviso to sub-rule (2) of rule 4".
Madras (Pondicherry).— The following amendments were made by P. Dis. No. 60 of 1933
P. Dis. No. 397 of 1945 and P. Dis. No. 108 of 1947.
(1) Add the following after rule 1(i) :
"(ii) an order under rule 106 of Order XXI".
(2) Add the following after rule 1(j) :
"(jj) An order rejecting an application made under sub-rule (1) of rule 105 of Order XXI
provided an order on the main application referred to in sub-rule (1) or rule 104 of that
Order is appealable;". (P. Dis No. 397 of 1945)."
(3) Add the following after rule 1(n) :
"(nn) An order under rule 5 or rule 7 of Order XXXIII rejecting an application for
permission to sue as a pauper on the ground specified in clause (d) or clause (d-1) of
rule 5 aforesaid." (P. Dis. No. 108 of 1947)."
(4) Substitute the following for clause (s) of rule 1:
"(s) An order under rule 1 or rule 4 of Order XL, except an order under the provision to
sub-rule (2) of rule 4."
Orissa.—
The following amendments were made by Orissa Gazette, dated 25-5-1984, Part III-A
Page 70.
Patna.—
The following amendments were made by Patna Act, dated 7-1-1936. Add the following
as clause (ii) after clause (i):
"(ii) An order in garnishee proceedings other than an order referred to in rule 63H(1) of
Order XXI".
Act, dated 3-8-1928.
In clause (u) after the words and figure "Rule 23" insert the words and figures "or rule
23A".
COMMENT.—
In clause (a) of rule 1, the word "except where the procedure specified in rule 10-A of O
VII has been followed", have been added at the end. This has been done to provide that
no appeal shall lie where the procedure specified in rule 10-A of O VII has been
followed.
Clause (b) of this rule has been omitted with the view to reducing two appeals because
the defendant can in an appeal from decree passed as a result of the order take the
same point as he can take in an appeal.
Clause (e) has been omitted in view of the provisions of rule 11, O XVI under which the
person concerned may apply to the Court for vacating the order for attachment.
No appeal lies against a mere finding.—
The provisions of sections 96, 100, 104(1) and 105 read with O XLIII, rule 1 show that
an appeal lies only as against a decree or an order passed under rules from which an
appeal is expressly allowed by O XLIII, rule 1.8
On refusing to appoint a receiver or to grant interim injunction is a "judgment" and

hence appeal lies from such an order.9
An order of District Judge setting aside or refusing to set aside sale under section
32(8) of State Financial Corporation Act, 1951 is appealable under rule 1(j). The word
"in the manner provided in the Code of Civil Procedure" in section 32(8) include also the
provisions in the Code dealing with appeals. "Manner" means method of procedure and
to provide for an appeal is to provide for a mode of procedure.
Abatement of appeal for non substitution does not imply adjudication on merits. When
an appeal abates there is no decree under section 2(2) of Code of Civil Procedure and a
second appeal against such an order is therefore, incompetent. An order refusing to set
aside abatement under O XXII, rule 9(2) is appealable under O XLIII. Rule 1(k). The
provision under section 100 is not applicable to an order under O XLIII, rule l(k).11
New plea, maintainability of.—

The plea which was not taken in an application for setting aside ex parte decree under
O IX, rule 13 of the Code before the trial Judge, cannot be taken in appeal before the
higher forum.12
Appeal against order of remand.—
Where no appeal has been filed against an order of remand, the correctness of the
order cannot be challenged in appeal from the final decree in view of section 105(2) of
Order 43 1(u) provides limited power.—
Under this provision, only legality and correctness of remand order passed by lower
appellate Court can be examined but not beyond that.14
Power of appellate Court.—
Allowing the changes of status quo of property during pendency of litigation is not
justified except in exceptional circumstances. The ground that the legal proceedings
are likely to take long time is no exceptional circumstance to allow changes by
imposing conditions.15
While considering appeal under O XLIII, rule 1(w), the appellate Court can examine the
merits of the case to a limited extent.16
The first Appellate Court should be slow in interfering with the discretionary order of
the trial Court.17
Where averments were made in application constituting sufficient cause for

condonation and delay was to be condoned on condition of payment of costs within
stipulated time. Order dismissing appeal was liable to be set aside on satisfaction of
condition.18
Appeal against interim injunction order.—
First appeal against the interim injunction order is maintainable.
Maintenance of status quo.—
Where order of status quo continued for considerable length of time, it would be
appropriate to direct maintenance of status quo as was originally granted.20
Infructuous interim appeal.—
Appeal against interim order becomes infructuous when main matter is disposed of.21
2 Following clauses have been omitted by Act 104 of 1976:—
(b) an order under rule 10 of Order VIII pronouncing judgment against a party; (e) an order under
rule 4 of Order X pronouncing judgment against a party;
(g) an order under rule 10 of Order XVI for the attachment of property;
(h) an order under rule 20 of Order XVI pronouncing judgment against a party.
5 Following clauses also have been omitted by Act 104 of 1976:—
(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement,
compromise or satisfaction;
(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the
payment of mortgage-money;
(v) an order made by any Court other than a High Court refusing the grant of a certificate under
rule 6 of Order XLV;

5 Following clauses also have been omitted by Act 104 of 1976:—
(m) an order under rule 3 of Order XXIII recording or refusing to record an agreement,
compromise or satisfaction;
(o) an order under rule 2, rule 4 or rule 7 of Order XXXIV refusing to extend the time for the
payment of mortgage-money;
(v) an order made by any Court other than a High Court refusing the grant of a certificate under
rule 6 of Order XLV;
8 Ganga Bai v VijaiKumar, AIR 1974 SC 1126 (1129) : (1974) 2 SCC 393 : (1974) 3 SCR 882 .
11 Madan Naikv Hansubala, AIR 1983 SC 676 (680) : (1983) 3 SCC 15 .
12 John Impex (P) Ltd v Athul Kumar, (2009) 15 SCC 285 (292).
13 Sita Ram Goel v Sukhnandi Dayal, AIR 1972 SC 1612 (1617) : (1971) 3 SCC 488 : 1973 ALJ
145 .
14 Balaji Singh v Diwakar Cole, AIR 2017 SC 2402 : 2017 (5) SCALE 194 : (2017) 14 SCC 207 :
2017 (6) SCJ 206 .
15 Maharwal Khewaji Trust, Faridicot v Baldev Dass, AIR 2005 SC 104 .
16 Kamal v Hindustan Petroleum, 2010 (1) MP LJ 354 (358) (DB).
17 Prasaun Kr Jain v Basant B Rao, 2009 (3) MP LJ 67 (72-73) (DB).
18 Sainik Security v Sheel Bai, AIR 2008 SC 1688 .
20 Bal Krishna v Bhagwan Das, (2008) 12 SCC 144 (145).
21 Carborundum Universal Ltd v DG Investigation & Registration, (2008) 3 SCC 263 (DB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 1A. Right to challenge non-
appealable orders in appeal against decrees
© 2020 LexisNexis
THE FIRST SCHEDULE
22[R. 1A.
Right to challenge non-appealable orders in appeal against decrees
(1) Where any order is made under this Code against a party and thereupon any
judgment is pronounced against such party and a decree is drawn up, such
party may, in an appeal against the decree contend that such order should not
have been made and the judgment should not have been pronounced.
(2) In an appeal against a decree passed in a suit after recording a compromise or

refusing to record a compromise, it shall be open to the appellant to contest
the decree on the ground that the compromise should, or should not, have
been recorded.]
COMMENT.—
Rule 1-A has been added newly. This newly added rule provides that certain orders
which are appealable may be challenged in an appeal against the decree.
Validity of compromise may be questioned.—
A party challenging a compromise in a suit can file a petition under proviso to rule 3 of
O XXIII or an appeal under section 96(1) of Code of Civil Procedure, in which he can
question the validity of the compromise in view of rule 1A of O XLIII of Code of Civil
Procedure.23
.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Procedure
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Procedure
The rules of Order XLI [A] shall apply, so far as may be, to appeals from orders. [AP,
KNT, K, M]
Rule amended in All; rule substituted and rule 3 added in AP, Karnataka & Mad; rule
substituted in Kerala.]
Allahabad.— The following amendments were made by Allahabad Gazette, dated 22-12-
1951.
In rule 2 between the words "the rules of order XLI" and "shall apply" insert the words
"and order XLI-A".
Omit rule 2 and add the following rules:—
"2.The rules contained in Orders XLI and XLI-A shall apply, so far as may be, to appeals
from the orders specified in rule 1 and other orders of any subordinate Court from
which an appeal to the High Court is allowed under the provisions of any law:
Provided that in the case of appeals against interlocutory orders made prior to decree
or final order, the Court which passed the order appealed from need not send the
records of the case unless an order has been made by the High Court for stay of further
proceedings in that Court but send only such records as may be called by the High
Court.
3. Rules contained in Order XLII shall apply, so far as may be, to appeals from appellate
Orders."
Kerala (Notfn No B1-3312/58: 7-4-1959 & Notfn No D1-855/67 of 23-9-1968).—
Same as Madras rule 2 substituting "and of Order XLI-A" by "Order XLI-A and Order XLII,
rule 2(2)".
Madras (P Dis No 788 of 1932).—(a) Substitute the following for rule 2:—
"2. The rules of Order XLI and of Order XLI-A shall apply, so far as may be, to appeals
from the orders specified in rule 1 and other orders of any Civil Court from which an
appeal to the High Court is allowed under any provision of law:
Provided that in the case of appeals against interlocutory orders made prior to decree,
the Court which passed the order appealed from shall not send the records of the case
unless an order has been made for stay of further proceedings in that Court."
(b) Add the following as rule 3:—
"3.(1) Appeals from Appellate Orders.—The provisions of Order XLII shall apply, so far as
may be, to appeals from Appellate Orders.
(2) A memorandum of appeal from an appellate order shall be accompanied by a

certified copy of the judgment and of the decree or order of the Court of first instance,
and by a certified copy of the judgment and of the order of the Appellate Court.
appeal:
Provided that, if such document is not in the English language and the appellant
appears by a pleader, an English translation of the document certified by the pleader to
be a correct translation shall be presented."
Gazette, dated 25-1-1983, Part III (L.S.), Page 107; Chandigarh Administration Gazette,
dated 1-4-1983, Part II, Page 34.
In Order XLIII, substitute rule 2 as follows:—
"The rules of Order XLI shall apply, so far as may be, to appeals from orders:
Provided that in the case of appeals against interlocutory Orders, the Court which
passed the order appealed from shall not send the records of the case unless
summoned by the appellate Court."
An order passed by the trial court issuing notice in an injunction application without
granting ex parte injunction, with or without recording reasons, is appealable under
Order XLIII, rule 3.24
24 Sandesh Limited v Transmedia Software Limited, AIR 2016 Guj 20 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Who may appeal as [an
indigent person]
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLIV 1[Appeals by Indigent Persons]
R. 1.
Who may appeal as 2[an indigent person]
3
[(1)] Any person entitled to prefer an appeal, who is unable to pay the fee required
for the memorandum of appeal, may present an application accompanied by
a memorandum of appeal, and may be allowed to appeal as an 4[indigent
person], subject in all matters, including the presentation of such application,
to the provisions relating to suits by 5[indigent persons,] insofar as those
provisions are applicable:
6[* * *]
7
(2) * * *
dated 30-4-1970.
Add the following proviso to sub-rule (1)—
"Provided that in case where the appeal is presented in the High Court, the application
for permission to appeal as pauper may be presented by the applicant in person or by
his or her authorised agent or by an Advocate." (ROC No. 338 of 69-B)
1954.
Add the following as rule 1A.—
"R. 1A. Where an application is rejected under rule 1, the Court may while rejecting the
application allow the applicant to pay the requisite Court-fee within a time to be fixed by
it; and upon such payment the memorandum of appeal in respect of which such fee is
payable shall have the same force and effect as if such fee had been paid in the first
instance."
COMMENT.—
In the marginal heading of rule 1 of this O XLIV for the words "as pauper", the words "as
an indigent person" have been substituted. In sub-rule (1) the words "pauper" or
"paupers" have been substituted by "indigent person."
It has been held by a Full Bench of Travancore Cochin High Court that the rejection of
an application for leave to appeal as a pauper does not ipso facto carry with it the
rejection of the memorandum of appeal filed along with it.8
Where an application to sue in forma pauperis has been rejected by the Trial Court for
non-payment of Court-fee ordered, and plaintiff appeals against such order, the app
ellate Court can under section 49 of the Code, grant time for the payment of the Court-
fee.9
A party who has been granted leave to appeal under the Letters Patent can apply under
this Order, for leave to appeal in forma pauperis.10
It has been held by the Supreme Court in Ram Sarup v UOI, AIR 1983 SC 1196 : (1983) 4
SCC 413 that by the amendment made in the year 1976, sub-rule (2) of rule 1 of O LXIV
Code of Civil Procedure is deleted and the result is that when an application made
under rule 1 of O LXIV comes up for hearing, the only question which has now to be
considered is whether the applicant is an indigent person or not. Any question relating
to the merits of the case does not arise for consideration at that stage. A rejection of
the application made under rule 1 of O LXIV now can only mean that the Court is not
satisfied about the claim of the applicant that he is an indigent person and nothing
more. It does not amount to a finding that the appeal is not a fit one for admission on
merits.
As against the judgment and decree passed by the single judge in the first appeals filed
against the land acquisition cases, letter patent appeal is not maintainable.11
The dismissal of application made under O XXXIII, rule 1 of the Code of Civil Procedure
by the trial court in the earlier round of litigation is not a bar against the plaintiff to file
an application/appeal under the O XLIV, rule 1 before the appellate court. The grant or
rejection of such prayer by the trial court is confined only upto the disposal of the suit.
This is clear from the reading of rule 3(1) and 3(2) of the O XLIV, which contemplates
holding of inquiry again into the question at the appellate stage as to whether the
applicant is an indigent person or not since the date from the decree appealed from.
Hence, matter remitted back to appellate court for holding inquiry under O XLIV, rule
3(2).12

2 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 90, for "as pauper"
(w.e.f. 1-2-1977).
3 Rule 1 re-numbered as sub-rule (1) of that rule by Code of Civil Procedure (Amendment) Act
66 of 1956, section 14 (w.e.f. 1-1-1957).
4 Subs. by Act 104 of 1976, section 90 for "pauper" (w.e.f. 1-2-1977).
5 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, section 90, for "pauper" and
"paupers" respectively (w.e.f. 1-2-1977).
6 Proviso omitted by Code of Civil Procedure (Amendment) Act 66 of 1956, section 14 (w.e.f. 1-
1-1957).
7 Sub-rule (2) which was omitted by 1976 Amendment Act ran as below (w.e.f. 1-2-1977):—
"Procedure on application for admission of appeal.—(2) The Appellate Court, after fixing a day for
hearing the applicant or his pleader and hearing him accordingly if he appears on that day, and
upon a perusal of the application and of the judgment and decree appealed from, shall reject the
application, unless it sees reason to think that the decree is contrary to law or to some usage
having the force of law, or is otherwise erroneous or unjust."
8 D Desireddi v Y Rama Rao, AIR 1972 AP 55 .
9 CK Kumar v Hiralal, AIR 1979 MP 143 (1) (FB).
10 Subs by CPC (Amendment) Act, 1976.
11 Agricultural Produce Market Committee v Saryu Prasad Gupta, AIR 2015 Jhar 19 .
12 Sushil Thomas Abraham v M/s Skyline Build, AIR 2019 SC 512 : 2019 (1) SCALE 178 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 2. Grant of time for
payment ot Court-fee
© 2020 LexisNexis
THE FIRST SCHEDULE
13[R. 2.
Grant of time for payment ot Court-fee
Where an application is rejected under rule 1, the Court may, while rejecting the
application allow the applicant to pay the requisite Court-fee, within such time as may
be fixed by the Court or, extended by it from time to time; and upon such payment, the
memorandum of appeal in respect of which such fee is payable shall have the same
force and effect as if such fee had been paid in the first instance.

13 Subs. by Code of Civil Procedure (Amendment) Act 104 of 1976, Section 90, for rules 2 and
3 (w.e.f. 1-2-1977).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Inquiry as to whether
applicant is an indigent person
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Inquiry as to whether applicant is an indigent person
(1) Where an applicant, referred to in rule 1, allowed to sue or appeal as an

indigent person in the Court from whose decree the appeal is preferred, no
further inquiry in respect of the question whether or not he is an indigent
person shall be necessary if the applicant has made an affidavit stating that he
has not ceased to be an indigent person since the date of the decree appealed
from; but if the Government Pleader or the respondent disputes the truth of the
statement made in such affidavit, an inquiry into the question aforesaid shall
be held by the Appellate Court, or, under the orders of the Appellate Court, by
an officer of that Court.
(2) Where the applicant, referred to in [rule 11]14 is allowed to have become an
indigent person since the date of the decree appealed from, the inquiry into the
question whether or not he is an indigent person shall be made by the
Appellate Court or, under the orders of the Appellate Court, by an officer of that
Court unless the Appellate Court considers it necessary in the circumstances
of the case that the inquiry should be held by the Court from whose decision
the appeal is preferred.]

For rule 3, substitute as under:—
"3. Inquiry as to whether applicant is an indigent person.—The inquiry into the question
whether or not the applicant referred to in rule 1 is an indigent person shall be made by
the appellate Court or under the orders of the appellate Court by an officer of that Court
unless the appellate Court considers it necessary, in the circumstances of the case,
that the inquiry should be held by the Court from whose decision the appeal is
preferred:
Provided that if such applicant was allowed to sue or appeal as an indigent person in
the Court from whose decree the appeal is preferred, no further inquiry in respect of the
question whether or not he is an indigent person shall be necessary if the applicant has
made an affidavit stating that he has not ceased to be an indigent person since the
date of the decree appealed from, but if the Government pleader or the respondent
disputes the truth of the statement made in such affidavit, an inquiry into the question
aforesaid shall be made in the manner stated above."
COMMENT.—
Rules 2 and 3 have been added for the previous rule 2. This has been done in the
interests of expedition. It has now been provided that where the appellant was allowed
to sue as an indigent person, no further inquiry shall be made if the applicant has made
an affidavit to the effect that he has not ceased to be an indigent person since the date
of the decree appealed from; but if the Government Pleader or the respondent disputes
the truth of such statement in the affidavit, an inquiry into the question whether or not
he is an indigent person after the date of the decree appealed from, the inquiry into the
means of the appellant should be made by the Appellate Court or by an officer of that
Court unless the Appellate Court considers that the inquiry should be made by the
Court from whose decree the appeal has been preferred. As such for the existing rule 2,
two new rules 2 and 3 have been added.

14 It should be rule 1.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. “Decree” defined
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLV Appeals to the 1[Supreme Court]
R. 1.
"Decree" defined
In this Order, unless there is something repugnant in the subject or context, the
expression "decree" shall include a final order.
COMMENT.—
It was held by the Punjab High Court that an order dismissing writpetition in limine for
existence of other remedy is not a "final order."2
1 Subs. for "King in Council" by IAO 1950.

2 Ratan Chand v Central Board of Direct Taxes, AIR 1968 Punj 81 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Application to Court
whose decree complained of
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Application to Court whose decree complained of
3
[(1)] Whoever desires to appeal to 4[the Supreme Court] shall apply by petition to
the Court whose decree is complained of [B].
5
[(2) Every petition under sub-rule (1) shall be heard as expeditiously as possible
and endeavour shall be made to conclude the disposal of the petition within
sixty days from the date on which the petition is presented to the Court under
sub-rule (1).]
dated 10-2-1977, part II, (R.S.) Page 132.
For rule 2 in Order XLV, substitute the following namely:—
"2. Application to Court whose decree or judgment complained of.—
Whoever desires to appeal to the Supreme Court under clause (1) of Article 133 of the
Constitution shall apply for a certificate by petition to the Court whose decree or
judgment is complained of:
Provided that an application may be made orally for the purpose, immediately after the
judgment has been delivered:
Provided further where the certificate has been refused on an oral application no
subsequent petition for the certificate shall lie".
"3. Contents of the petition.—
Every such petition shall state the grounds of appeal and pray for a certificate to appeal
to the Supreme Court under Clause (1) of Article 133 of the Constitution." (A.P.Gaz. 10-
2-1977, Pt. II (RS.) p. 132.
Bombay.—Renumbered the rule as sub-rule (1) and add the following as sub-rule (2) :—
"(2) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the
Supreme Court may apply orally immediately after the pronouncement of the judgment
by the Court, and the Court may grant or refuse leave to the party to appeal to the
Supreme Court or direct the party to file a petition as required by sub-rule (1) :
Provided, however, that if an oral application for leave under sub-rule (2) is made and
rejected, no written petition under sub-rule (1) shall lie." (1-11-1966).
Punjab, Haryana and Chandigarh.— Omit sub-rule (2).

Uttar Pradesh.— The following amendments were made by Uttar Pradesh Gazette, 57 of
1976, Section 14, dated 1-1-1977.
In its application to the State of Uttar Pradesh, in Order XLV, after sub-rule (2), insert the
following sub-rule namely:—
"(3) Notwithstanding anything contained in sub-rule (1), whoever desires to appeal to

the Supreme Court, may apply orally to the Court whose decree is to be complained of,
immediately before or after the pronouncement of the judgment by the Court, for a
certificate contemplated in sub-rule (1) of rule 3, and the Court may either grant or
refuse the certificate, or direct the applicant to file petition as required by sub-rule (1):
Provided that if an oral application is entertained and rejected, no written petition under
sub-rule (1) shall lie."
1983, Part 4 Ka, Page 427 (1-10-1983) ; Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 391, dated 1-4-1987.
After sub-rule (2) of rule 2 insert the following as sub-rule (3):—
"(3) Application to Court whose decree is complained of.—(i) Whoever desires to

appeal to the Supreme Court shall apply by petition to the Court whose decree is
complained of.
(ii) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the
by the Court, and the Court may grant or refuse leave to the party to appeal to the
Supreme Court or direct the party to file a petition as required by sub-rule (1):
Provided, however, that if an oral application for leave under sub-rule (2) is made and
rejected, no written petition under sub-rule (1) shall lie."
Madras.— The following amendments were made by Tamil Nadu Government Gazette,
dated 16-11-1988, Part III, Section 2, Page 136.
Substitute sub-rule (1) as under—
"(1) Whoever desires to appeal to the Supreme Court, may, make an oral application to
the Court whose decree is complained of, immediately after the pronouncement of the
judgment and in such a case, it shall be heard and disposed of immediately, or may
apply by petitions to the Court, whose decree is complained of."
Patna.—
The following amendments were made by Bihar Gazette, dated 11-1-1978, Part III, Page 3.
In its application to the Patna High Court, for rule 2 and its marginal note substitute the
following:—
"2. Application to Court whose judgment, decree or final order is complained of.— (1)
Whoever desires to appeal to the Supreme Court may apply by petition to the Court
whose judgment, decree or final order is complained of.
(2) Notwithstanding anything contained in sub-rule (1) a party desiring to appeal to the
or final order by the Court and the Court may grant or refuse leave to the party to
appeal to the Supreme Court or direct the party to file a petition as required by sub-rule
(1) :
Provided that if an oral application for leave under the sub-rule (2) is made and rejected,
no written petition under sub-rule (1) shall lie".
COMMENT.—
The previous rule 2 has been renumbered as sub-rule (1) and sub-rule (2) has been
added newly to this rule 2. This has been done to provide that every petition for leave to
appeal to the Supreme Court should be disposed of as expeditiously as possible and
endeavour shall be made to conclude the disposal of the petition within sixty days from
the date of its presentation to the Court.
The Andhra Pradesh High Court has held that no certificate can be granted by the High
Court for leave to appeal to the Supreme Court, where the judgment appealed against
is delivered by a Single Bench of a High Court.6

3 Rule 2 re-numbered as sub-rule (1) by Code of Civil Procedure (Amendment) Act, 104 of 1976,
section 91, (w.e.f. 1-2-1977).
4 Subs. for "His Majesty in Council" by IAO, 1950.
6 Sitaramasastry v Sundaramma, AIR 1966 AP 173 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Certificate as to value or
fitness
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Certificate as to value or fitness
7
[(1) Every petition shall state the grounds of appeal and pray for a certificate—
(i) that the case involves a substantial question of law of general

importance, and
(ii) that in the opinion of the Court the said question needs to be decided
by the Supreme Court.]
(2) Upon receipt of such petition, the Court shall direct notice to be served on the
opposite party to show cause why the said certificate should not be granted.
[A, AP, B, G, K, MP, M, OR]
[Sub-rule (2) omitted in AP; Sub-rule (2) amended in All, Bom and Gujarat; Sub-rule (2)
substituted and sub-rule (3) added in Kerala, MP & Orissa; Proviso added to sub-rule (2)
in Mad.]
Allahabad (Notfn No I/VII d-158 4-1-1960).—At the end omit full stop and insert "unless
it thinks fit to refuse the certificate".
Andhra Pradesh (Notfn No ROC No 259/56-B1; 11-11-1957).—Omit sub-rule (2).
The following amendments were made by Andhra Pradesh Gazette, dated 10-2-1977, Part
II, (R.S.), Page 132.
For rule 3 in Order XLV, substitute the following:
"3. Contents of the petition.—Every such petition shall state the grounds of appeal and
pray for a certificate to appeal to the Supreme Court under clause (1) of Article 133 of
the Constitution."
1983, Part 4 Ka., Page 428, dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra.,
Section 1, No. 28, Page 391, dated 1-4-1987.
For existing sub-rule (2), substitute the following as sub-rule (2):
(Words of sub-rule (2) are the same as in the Code, except for the addition of "unless it
thinks fit to refuse the certificate" at the end).
At the end of sub-rule (2) substitute a comma for the full stop and add the following:
"Unless it thinks fit to refuse the certificate".

In rule 3—
(i) for sub-rule (2) the following sub-rule shall be substituted, namely:—
"Upon receipt of such petition, the Court after fixing a day for hearing the applicant or
his pleader and hearing him, if he appears, may dismiss the petition."
(ii) after sub-rule (2), the following sub-rule shall be inserted namely:—
"(3) Unless the Court dismisses such petition under sub-rule (2), it shall direct notice to
be served on the opposite party to show cause why the said certificate should not be
granted."
dated 16-9-1960.
(1) Substitute the following for the existing sub-rule (2):
"(2) Upon receipt of such petition the Court, after sending for the record, and after fixing
a day for hearing the applicant or his pleader and hearing him accordingly if he appears
on that day, may dismiss the petition."
(2) Add the following as sub-rule (3) :
"(3) Unless the Court dismisses the petition under sub-rule (2) it shall direct notice to
granted."
(b) Add the following as sub-rule (3) :—
"(3) Unless the Court dismisses the petition under sub-rule (2), it shall direct notice to
granted."

Government Gazette, dated 16-11-1988, Part III, Section 2, Page 136 (16-7-1969).
To sub-rule (2) of rule 3, add the following proviso:
"Provided that where leave to appeal is sought from a decree dismissing a proceeding
in limine notice shall not be necessary unless the Court otherwise directs."
In rule 3, in the marginal teaching, the words "value or" shall be omitted.
Orissa (Notfn No 57-R-X-7/52; 10-7-1954).—For sub-rule (2) substitute the following

sub-rules:—
"(2) Upon receipt of such petition, the Court may, after giving the applicant or his
pleader an opportunity of being heard, dismiss the petition summarily.
(3) Unless the Court dismisses the petition under sub-rule (2) it shall direct notice to be
served on the opposite party to show cause why the said certificate should not be
granted:
Provided that where a party has appeared through a pleader in the High Court, service
of notice on such pleader either in the manner provided in this Code or by sending a
copy of such notice by registered post shall be deemed to be sufficient notice to the
party." (14-5-1984)
Punjab, Haryana (Chandigarh).—
The following amendments were made by Punjab Government Gazette, dated 4-1-1974,
Part III (L.S.), Extra, Page 3 (No. 1).

7 Subs. by C P Code (Amendment) Act, 1973 (49 of 1973), section 4, for sub-rule (1) which ran
as follows:—
"(1) Every petition shall state the grounds of appeal and pray for a certificate either that, as
regards amount or value and nature, the case fulfils the requirements of section 110, or that it is
otherwise a fit one for appeal to the Supreme Court.
In view of the substitution, the marginal heading of rule 3 should have also been changed.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / “R. 3. Same as Central except
the marginal note certificate as to the fitness and sub-rule (2) as under:—
© 2020 LexisNexis
THE FIRST SCHEDULE
"R. 3.
Same as Central except the marginal note certificate as to the fitness and sub-
rule (2) as under:—
(2) Upon receipt of such petition, the Court shall, unless it dismisses the petition at the
preliminary hearing, direct notice to be served on the opposite party to show cause why
the said certificate should not be granted."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Omitted by C P Code of
(Amendment) Act 49 of 1973
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Omitted by C P Code of (Amendment) Act 49 of 1973
[Omitted by C P Code (Amendment) Act 49 of 19 73, s. 4 (w.e.f. 1-2-1977)].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Omitted by C P Code of
(Amendment) Act 49 of 1973
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Omitted by C P Code of (Amendment) Act 49 of 1973
[Omitted by C P Code (Amendment) Act 49 of 19 73, s. 4 (w.e.f. 1-2-1977)].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Effect of refusal of
certificate
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 6.
Effect of refusal of certificate
Where such certificate is refused, the petition shall be dismissed

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Security and deposit
required on grant of certificate
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Security and deposit required on grant of certificate
(1) Where the certificate is granted, the applicant shall, within 8[ninety days or
such further period, not exceeding sixty days, as the Court may upon cause
shown allow] from the date of the decree complained of, or within six weeks
from the date of the grant of the certificate, whichever is the later date,—
(a) furnish security 9[in cash or in Government securities] for the costs of
the respondent, [A] and
(b) deposit the amount required to defray the expense of translating,

transcribing, indexing, 10[printing] and transmitting to 11[the Supreme
Court] a correct copy of the whole record of the suit, except—
(1) formal documents directed to be excluded by any 12[Rule of the

Supreme Court] in force for the time being;
(2) papers which the parties agree to exclude;
(3) accounts, or portions of the accounts, which the officer

empowered by the Court for that purpose considers unnecessary,
and which the parties have not specifically asked to be included;
and
(4) such other documents as the High Court may direct to be

excluded:
13 [Provided that the Court [A] at the time of granting the

certificate may, after hearing any opposite party who appears,
order on the ground of special hardship that some other form of
security may be furnished: [AP]
Provided further, that no adjournment shall be granted to an

opposite party to contest the nature of such security.]
14
[(2) * * *]. [AP, B, G, K, MP, M].
[Sub-rule (1)(a) and First proviso amended in All; Proviso and new sub-rule (2) added in
AP; Sub-rule (2) inserted in Kerala; Sub-rule (2) substituted in Mad; rule 7-A added in
Bom, Gujarat and MP.]
Allahabad (Notfn No 3713-45-4(7) of 20-6-1936 and No 676/35(a)-1 (2) of 4-2-1939).—

(a) In rule 7(1)(a) between the words "the respondent" and the word 'and' insert the
following words:—
"except when the Government is the applicant".

(b) In the first proviso to the rule 7(1) for the words "at the time of granting the
certificate" substitute the words "at any time before expiry of the period for furnishing
security".
Andhra Pradesh.— (i) In sub-rule (1) after the first proviso insert the following:—
"Provided further that where the High Court for special reasons permits immovable
property to be offered as security, the appellant shall file a duly registered mortgage
bond together with a specification of the surety's title.
When the bond has been filed, the Court shall direct the security to be tested either by
the Registrar, or by the Judge of the Court subordinate to the High Court in which the
immovable property pledged is situated and if the security be found insufficient, the
appellant shall within three weeks deposit cash or Government securities as prescribed
by the rules of the Supreme Court or deposit such lesser amount in cash or
Government securities as would, with the immovable property offered as security, raise
the value of such security to the prescribed amount." [Notfn No. P Dis 464/56; 5-7-1956].
(ii) for the existing sub-rule (2) as was inserted in Madras substitute the following:—
"No such security or deposit as is mentioned in rule 7 Clause (I) (a) or (b) shall be
required from the Government or where the Government has undertaken the defence of
the suit, from any public officer sued in respect of an act purporting to be done by him
in his official capacity." [Notfn No. ROC No 6842/51-B-1; 9-8-1957].
(iii) Delete sub-rule (3) [Notfn ibid].
NB.—Sub-rule (2) of the rule was renumbered as sub-rule (3) in Madras. That sub-rule
was deleted by IAO 1950.
II (R.S.) Page 911.
Delete rule 7.
Bombay.—
After rule 7 insert the following as rule 7-A:
"7-A. Security not to be demanded from Union or State Government or Government

servant defended by Government.—No such security as is mentioned in clause (a) of
sub-rule (I) of rule 7 above shall be required from the Union of India or [a State
Government or where] Government has undertaken the defence of the suit, from any
public officer sued in respect of an act alleged to [have been] done by him in his official
capacity." (1-10-1983)
Gujarat.—Same as in Bombay, substituting the words "a State Government or where" by

"or where the State" and in the last line the words "have been" by "be".
Kerala (Notfn No B1-3312/58; 7-4-1959).— Insert the following as sub-rule (2) :—
"(2) No such security as is mentioned in rule 7(7) clause (a) shall be required from the
Government or, where State Government has undertaken the defence of the suit, from
any public officer and in respect of an Act purporting to be done by him in his official
capacity." (9-6-1959)
Insert rule 7A as in Gujarat.

Madras [28-5-1958].—
(i) Substitute the following for the existing sub-rule (2) :—
"(2) No such security as is mentioned in clause (a) of the foregoing sub-rule shall be
required from the Government or a public officer sued in respect of an act purporting to
be done by him in his official capacity where the Government has undertaken the
defence of the suit."
(ii) Delete sub-rule (3).
NB. Sub-rule (2) of the rule was renumbered as sub-rule (3) previously. That sub-rule
was deleted by IAO 1950.
Part III (L.S.), Page 3.
"R. 7. Deposit required on grant of certificate.— (1) Where the certificate is granted, the
applicant shall within ninety days of the order of the Supreme Court under rule 14(1) of
the Supreme Court rules for the time being in force or such further period not
exceeding sixty days as the Court may upon cause shown allow from the date of the
Supreme Court order under rule 14(1), whichever is later:—
(a) deposit the amount required to defray the expense of translating, transcribing,
indexing, printing and transmitting to the Supreme Court three copies of the whole
record of the suit except—
(1) formal documents directed to be excluded by any rule of the Supreme Court in
force for the time being;
(3) accounts or portions of accounts which the officer empowered by the Court for
that purpose considers unnecessary, and which the parties have not specifically
asked to be included; and
(4) such other documents as the High Court may direct to be excluded."
COMMENT.—
There existed a controversy whether the High Court can extend the period of six weeks
or the period of sixty days as laid down under this rule? This has been set at rest by a
decision of Supreme Court in Shew Bux Mohanta v Tulsimanjari Dasi, AIR 1961 SC 1453
: (1962) 1 SCR 643 : (1961) 2 KerLR 148 : 1962 ALJ 79 wherein it has been held that the
High Court has the power to extend such time under O XII rule 3 of the Supreme Court
rules as well as under this rule.

8 Subs. by Code of Civil Procedure (Amendment) Act 26 of 1920, section 3, for "six month"
(w.e.f. 1-2-1977).
9 Subs. by Code of Civil Procedure (Amendment) Act 26 of 1920, section 3, for "six month"
(w.e.f. 1-2-1977).
10 Ins. by IAO 1950.
11 Subs. for "His Majesty in Council" by IAO 1950.
12 Subs. for "Order of His Majesty in Council" by IAO 1950.
14 Sub-rule (2) omitted by IAO 1950.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Admission of appeal and
procedure thereon
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 8.
Admission of appeal and procedure thereon
Where such security has been furnished and deposit made to the satisfaction of the
Court, the Court shall—
(a) declare the appeal admitted,
(b) give notice thereof to the respondent, [AP, M]
(c) transmit to 15[the Supreme Court] under the seal of the Court a correct copy of
the said record, except as aforesaid, and [M]
(d) give to either party one or more authenticated copies of any of the papers in
the suit on his applying therefor and paying the reasonable expenses incurred
in preparing them.
[Clause (b) substituted in AP & Madras and clause (c) amended in Madras.]
Andhra Pradesh.—For clause (b) substitute the following:—
"(b) give notice to such of the respondents as have entered appearance at the hearing
of the appeal in the High Court." (22-2-1962).
II (R.S.), Page 911.
For existing rule 8, substitute the following:—
"8. On receipt from the Supreme Court of the copy of the petition of appeal the
Registrar of the Court shall—
(i) cause notice of the lodgment of the petition of appeal to be served on the
respondent personally or in such manner as provided for service of its own
processes or as the Court may prescribe or order;
(ii) unless otherwise ordered by the Supreme Court, transmit to the Supreme Court
at the expense of the appellant the original record of the case; and
(iii) as soon as notice as aforementioned is served, to send a certificate as to the

date or dates on which the notice was served."
Madras.—
(i) For clause (b) substitute the following:—

"(b) give notice to such of the respondents as have entered appearance at the hearing,
of the appeal in the High Court and such of the respondents who have entered
appearance in pursuance of notice issued under rule 3(2) supra,"
(ii) In clause (c) add the following at the end:—
"give notice of such transmission to the respondents specified in rule 8(b) above and".
(28-1-1959)
Part III (L.S.), Page 4.


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / “R. 8. Power to order further
payment.—
© 2020 LexisNexis
THE FIRST SCHEDULE
"R. 8.
Power to order further payment.—
Where at any time after the admission of an appeal but before the transmission of the
copy of the record to the Supreme Court, further payment is required for the purpose of
translating, transcribing, printing, indexing or transmitting the copy of the record except
as aforesaid.
The Court may order the appellant to make, within a time to be specified by the Court,
the required payment."
COMMENT.—
The Supreme Court has held that the jurisdiction of the Supreme Court begins after
appeal is finally admitted.16

16 Shiva Jute Baling Ltd v Hindley & Co, AIR 1955 SC 464 : (1955) 2 SCR 243 : (1955) 2 MLJ (SC)
36.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Revocation of
acceptance of security
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 9.
Revocation of acceptance of security
At any time before the admission of the appeal the Court may, upon cause shown,
revoke the acceptance of any such security, and make further directions thereon.
dated 21-8-1975, Part II, (R.S.).
Delete rule 9.
Government Gazette, dated 4-1-1974, Part III, (L.S.), Page 4.
Rule 9. Effect of failure to comply with Order.— Where the appellant fails to comply
with such order, the proceedings shall be stayed.
And the appeal shall not proceed without an order in this behalf of the Supreme Court.
And in the meantime execution of the decree appealed from shall not be stayed.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / [R. 9A. Power to dispense
with notice in cases of deceased parties
© 2020 LexisNexis
THE FIRST SCHEDULE
17[R. 9A.
Power to dispense with notice in cases of deceased parties
Nothing in these rules requiring any notice to be served on or given to an opposite

party or respondent shall be deemed to require any notice to be served on or given to
the legal representative of any deceased opposite party or deceased respondent in a
case, where such opposite party or respondent did not appear either at the hearing in
the Court whose decree is complained of or at any proceedings subsequent to the
decree of that Court:
Provided that notices under sub-rule (2) [K] of rule 3 and under rule 8 shall be given by
affixing the same in some conspicuous place in the Court-house of the Judge of the
district in which the suit was originally brought, and by publication in such
newspapers as the Court may direct.]
Rule amended in Kerala.
Kerala.—
(Notfn No B1-3312/58; 7-4-1959).—In the proviso after the words "sub-rule" for the figure
"(2)" substitute "(3)".
Government Gazette, dated 4-1-1974, Part III (L.S.), Page 4.
"R. 9A. Power to dispense with notice in case of deceased.—
Nothing in these rules requiring any notice to be served on or given to an opposite party
or respondent shall be deemed to require any notice to be served on or given to the
legal representative of any deceased opposite party or deceased respondent in a case,
where such opposite party or respondent did not appear either at the hearing in the
Court whose decree complained of or at any proceedings subsequent to the decree of
that Court:
Provided that notice under sub-rule (2) of rule 3 shall be given by affixing the same in
some conspicious place in the Court-house of the Judge of the district in which the suit
was originally brought, and by publication in such newspapers as the Court may direct."

17 Ins. by section. 4 of the Indian Limitation and Code of Civil Procedure (Amendment) Act 26
of 1920.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 10. Power to order further
security or payment
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 10.
Power to order further security or payment
copy of the record, except as aforesaid to 18[the Supreme Court] such security
appears inadequate,
or further payment is required for the purpose of translating, transcribing, printing,

indexing or transmitting the copy of the record, except as aforesaid,
the Court may order the appellant to furnish, within a time to be fixed by the Court,
other and sufficient security, or to make, within like time, the required payment.
dated 21-8-1975, Part II (R.S.) Page 911.
Delete rule 10.
Government Gazette, dated 4-1-1974, Part III (L.S.) Page 4.
"Rule 10. Refund of balance deposit.—
When the copy of the record, except as aforesaid, has been transmitted to the Supreme
Court, the appellant may obtain a refund of the balance, if any, of the amount which he
has deposited under rule 7."
COMMENT.—
An amount deposited as the security for costs, is available only to meet costs. That
sum cannot be touched for payment of other sums due.19

19 State of Maharashtra v MN Kaul, AIR 1967 SC 1634 (1637) : 1967 MPLJ 937 : (1968) 38 Com
Cas 1 : 1967 Mah LJ 998 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 11. Effect of failure to
comply with order
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 11.
Effect of failure to comply with order
Where the appellant fails to comply with such order, the proceedings shall be stayed;
and the appeal shall not proceed without an order in this behalf of 20[the Supreme
Court];
and in the meantime execution of the decree appealed from shall not be stayed.
dated 21-8-1975, Part II (R.S) Page 911.
Delete rule 11.
"R. 11. Powers of Court pending appeal.— Notwithstanding the grant of a certificate for
the admission of any appeal, the decree appealed from shall be unconditionally
executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the
suit, or otherwise appearing to the Court:—
(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such security from the
respondent as the Court thinks fit for the due performance of the decree
appealed from, or of any decree or order which the Supreme Court may make on
the appeal, or
(c) stay the execution of the decree appealed from, taking such security from the
appellant as the Court thinks fit for the due performance of the decree appealed
from, or of any decree or order which the Supreme Court may make on the
appeal, or
(d) place any party seeking the assistance of the Court under such conditions or
give such other direction respecting the subject-matter of the appeal, as it thinks
fit, by the appo intment of a receiver or otherwise."


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 12. Refund of balance
deposit
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 12.
Refund of balance deposit
When the copy of the record, except as aforesaid, has been transmitted to 21[the
Supreme Court], the appellant may obtain a refund of the balance (if any) of the
amount which he has deposited under rule 7.
dated 21-8-1975, Part II, (R.S), Page 911.
Delete rule 12.
"R. 12. Procedures to enforce orders of the Supreme Court.—
(1) Whoever desires to obtain execution of any decree or order of the Supreme Court
shall apply by petition, accompanied by a certified copy of the decree passed or order
made in appeal and sought to be executed, to the Court from which the appeal to the
Supreme Court was preferred.
(2) Such Court shall transmit the decree or order of the Supreme Court to the Court
which passed the first decree appealed from, or to such other Court as the Supreme
Court by such decree or order may direct, and shall upon the application of either party
give such directions as may be required for the execution of the same, and the Court to
which the said decree or order is so transmitted shall execute it accordingly, in the
manner and according to the provisions applicable to the execution of the original
decrees.
(3) Unless the Supreme Court otherwise directs, no decree or order of that Court shall
be inoperative on the ground that no notice has been served on or given to the legal
representative of any deceased opposite party or deceased respondent in a case,
where such opposite party or respondent did not appear either at hearing in the Court
whose decree was complained of or at any proceedings subsequent to the decree of
that Court, but such order shall have the same force and effect as if it had been made
before the death took place."


MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 13. Powers of Court
pending appeal
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 13.
Powers of Court pending appeal
(1) Notwithstanding the grant of a certificate the admission of any appeal, the
decree appealed from shall be unconditionally executed, unless the Court
otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in
the suit, or otherwise appearing to the Court,—
(b) allow the decree appealed from to be executed, taking such security
from the respondent as the Court thinks fit for the due performance of
any order which 22[the Supreme Court] may make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security
from the appellant as the Court thinks fit for the due performance of the
decree appealed from, or of 23[any decree or order] which 24[the
Supreme Court] may make on the appeal, or
(d) place any party seeking the assistance of the Court under such
conditions or give such other direction respecting the subject-matter of
the appeal, as it thinks fit, by the appointment of a receiver or otherwise.
"R. 13."Appeal from order relating to execution.—
The orders made by the Court which executes the decree or order of the Supreme
Court, relating to such execution, shall be applicable in the same manner and subject to
the same rules as the orders of such Court relating to the execution of its own
decrees."
COMMENT.—
The question of exercising inherent power does not arise where in the absence of an
application under this rule, the decree is executed and the decree holder has been
placed in possession, for asking the decree-holder to give any security or putting upon
him any restraint. Accordingly, it was held by the Supreme Court in Deo Chand v Shiv
Ram, AIR 1965 SC 615 : (1965) 1 SCR 109 : (1965) 2 MLJ (SC) 1 : 1965 Mah LJ 491 as
follows:—
To exercise any such inherent power would be not for the prevention of the abuse of the
process of the Court but may be to encourage it inasmuch as the judgment debtor who had
been in default in taking necessary action at the proper time would be encouraged to ask for
that action after the execution of the decree and during the pendency of the appeal in this
Court. Law contemplates transfer by a party pending litigation, does not prohibit them but
makes them subject to the result of the litigation. To pass orders restraining a party in
possession delivered by the Court cannot, prima facie, be in the interests of justice.25

23 Subs. for "any order" by IAO 1950.
25 AIR 1965 SC 615 , at p 618 : (1965) 1 SCR 109 : (1965) 2 MLJ (SC) 1 : 1965 Mah LJ 491 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 14. Increase of security
found inadequate
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 14.
Increase of security found inadequate
(1) Where at any time during the pendency of the appeal the security furnished by
either party appears inadequate, the Court may, on the application of the other
party, require further security.
(2) In default of such further security being furnished as required by the Court,—
(a) if the original security was furnished by the appellant, the Court may, on
the application of the respondent, execute the decree appealed from as
if the appellant had furnished no such security;
(b) if the original security was furnished by the respondent, the Court shall,
so far as may be practicable, stay the further execution of the decree,
and restore the parties to the position in which they respectively were
when the security which appears inadequate was furnished, or give such
direction respecting the subject-matter of the appeal as it thinks fit.
dated 21-8-1975, Part II (R.S.), Page 911.
Delete rule H 4.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 15. Procedure to enforce
orders of [the Supreme Court]
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 15.
Procedure to enforce orders of 26[the Supreme Court]
(1) Whoever desires to obtain execution of any 27[decree or order] of 28[the Supreme
Court] shall apply by petition, accompanied by a certified copy of the decree passed
or order made in appeal and sought to be executed, to the Court from which the
appeal to 29[the Supreme Court] was preferred. [A, AP, KNT, M]
(2) Such Court shall transmit the 30[decree or order] of 31[the Supreme Court] to the
Court which passed the first decree appealed from, or to such other Court as 32[the
Supreme Court] by such 33[decree or order] may direct, and shall (upon the
application of either party) give such directions as may be required for the execution
of the same; and the Court to which the said 34[decree or order] is so transmitted shall
execute it accordingly, in the manner and according to the provisions applicable to the
execution of its original decrees. [A, AP, KNT, M]
(3) 35[* * *]
36[(4) 37[Unless the Supreme Court otherwise directs, no decree or order of that
Court] shall be inoperative on the ground that no notice has been served on or given
to the legal representative of any deceased opposite party or deceased respondent in
a case, where such opposite party or respondent did not appear either at the hearing
in the Court whose decree was complained of or at any proceedings subsequent to
the decree of that Court, but such order shall have the same force and effect as if it
had been made before the death took place.] [AP, B, M].
[Sub-rule (1) substituted in All; Sub-rule (1) substituted, sub-rule (2) deleted and sub-
rule (4) renumbered in AP and Mad; Sub-rules (1) and (2) deleted in Karnataka; Rule
substituted in Bom.]
Allahabad (Notfn No 1591/35(a); 7-4-1928).—For sub-rule (1) of rule 15 substitute:—
"15. (1) Whoever desires to obtain:—
(a) execution of any order of the Supreme Court; or,
(b) where an appeal has been dismissed by the Supreme Court for want of prosecution,
an order of the Court from which the appeal to [the Supreme Court] was preferred
terminating proceedings and determining the costs, shall apply to the said Court by a
petition, accompanied by a certified copy of the decree passed or order made by the
Supreme Court of which execution is desired or to which the effect is to be given and a
memorandum of all costs incurred in India that are claimed in pursuance thereof.
Andhra Pradesh (Notfn No ROC No 6842/51-B-1; 9-8-1957).—
(i) Substitute the following for sub-rule (1):—

"15. (1) Whoever desires to obtain execution of any appellate decree or order of the
Supreme Court shall apply by petition accompanied by a certified copy of the said
decree or order, to the Court of first instance.
Explanation.—The Court of first instance in this rule shall mean the Court in which the
suit or proceedings was first instituted and where such Court has ceased to exist or to
have jurisdiction to execute it, the Court which if the suit wherein the decree was
passed was instituted at the time of making the application for the execution of the
decree, would have jurisdiction to try such suit."
(ii) Delete sub-rule (2);
(iii) Renumber sub-rule (4) as sub-rule (2). (28-9-1957)
1983, (1-10-1983), Part 4 Ka, Page 428; Goa Gazette, dated 12-10-1987, Extra., Section 1,
No. 28, Page 391, dated 1-4-1987.
In order XLV, for the existing rule 15 and its marginal note, substitute the following as
"15. Procedure to enforce order of the Supreme Court.—
(1)(a) Any decree passed or order made by the Supreme Court in exercise of the
appellate jurisdiction including any order as to the costs of and incidental to, any
proceedings in that Court shall be enforceable in accordance with the provisions of law
for the time being in force relating to the enforcement of the decrees or orders of the
Court or Tribunal from which the appeal to the Supreme Court was preferred or sought
to be preferred.
(b) The costs incurred in the High Court as incidental to the Supreme Court Appeal
including the costs in the application for leave to appeal to the Supreme Court shall be
recoverable where awarded, by execution of the order of the High Court in the same
manner in which the decree or order of the High Court, from which the appeal to the
Supreme Court was preferred or sought to be preferred, would have been executed.
(2) Unless the Supreme Court otherwise directs no decree or order of that Court shall
representative of any deceased opposite party or deceased respondent in a case,
where such opposite party or respondent did not appear either at the hearing of the
Court whose decree was complained of or at any proceedings subsequent to the
decree of that Court but such order shall have the same force and effect as if it had
been made before the death took place."
Karnataka.—Delete sub-rules (1) and (2). (30-3-1961).
dated 28-5-1958.
(i) Substitute the following for the existing sub-rule (1):
"15. (1) Whoever desires to obtain execution of any appellate decree or order of the
decree or order to the Court of first instance.
Explanation:—The Court of first instance in this rule shall mean the Court in which the
suit or proceeding was first instituted and where such Court has ceased to exist or to
have jurisdiction to execute it, the Court which if the suit wherein the decree was
decree would have jurisdiction to try such suit."
(ii) Delete sub-rules (2) and (3) and re-number the present sub-rule (4) as sub-rule (2).
Government Gazette, dated 1-1-1974, Part III (L.S.) Section 3.
For Order XLV substitute the following:—
"ORDER XLV
APPEALS TO THE SUPREME COURT
Rule 1.
"Decree" defined.—
In this Order unless there is something repugnant in the subject or context, the
expression "decree" shall include a final order. Rule 2.
Application to Court whose decree complained of.—
Whoever desires to appeal to the Supreme Court shall apply by petition to the Court
whose decree is complained of.
Rule 3.
Certificate as to the fitness.—
(1) Every petition shall state the grounds of appeal and pray for a certificate—
(i) that the case involves a substantial question of law of general importance, and
(ii) that in the opinion of the Court the said question needs to be decided by the
Supreme Court.
(2) Upon receipt of such petition, the Court shall, unless it dismisses the petition at the
preliminary hearing, direct notice to be served on the opposite party to show cause why
the said certificate should not be granted.
Rule 4.
Omitted.
Rule 5.
Omitted.
Rule 6.
Effect of refusal of certificate.—
Where such certificate is refused, the petition shall be dismissed.
Rule 7.
Deposit required on grant of certificate.—

(1) Where the certificate is granted, the applicant shall within ninety days of the order of
the Supreme Court under rule 14(1) of the Supreme Court Rules, for the time being in
force, or such further period not exceeding sixty days as the Court may upon cause
shown allow, from the date of the Supreme Court order under rule 14(1), whichever is
later—
(a) deposit the amount required to defray the expense of translating, transcribing,
indexing, printing and transmitting to the Supreme Court three copies of the
whole record of the suit except—
(1) formal documents directed to be excluded by any rule of the Supreme

Court in force for the time being;
(3) accounts or portions of accounts which the officer empowered by the

Court for that purposes considers unnecessary, and which the parties
have not specifically asked to be included; and
(4) such other documents as the High Court may direct to be excluded.
Rule 8.
Power to order further payment.—
copy of the record, to the Supreme Court, further payment is required for the purpose of
translating, transcribing, printing, indexing or transmitting the copy of the record, except
as aforesaid, the Court may order the appellant to make within a time to be specified by
the Court, the required payment.
Rule 9.
Effect of failure to comply with order.—
Where the appellant fails to comply with such order, the proceedings shall be stayed
and the appeal shall not proceed without an order in this behalf of the Supreme Court,
and in the meantime execution of the decree appealed from shall not be stayed.
Rule 9-A.
Power to dispense with notice in case of deceased.—
Nothing in these rules requiring any notice to be served on or given to an opposite party
or respondent shall be deemed to require any notice to be served on or given to the
legal representative of any deceased opposite party or deceased respondent in a case,
where such opposite party or respondent did not appear either at the hearing in the
Court whose decree is complained of or at any proceedings subsequent to the decree
of that Court:
Provided that notice under sub-rule (2) of rule 3 shall be given by affixing the same in
some conspicuous place in the Court-house of the Judge of the district in which the
suit was originally brought, and by publication in such newspapers as the Court may
direct.
Rule 10.
Refund of balance deposit.—

When the copy of the record, except as aforesaid, has been transmitted to the Supreme
Court the appellant may obtain a refund of the balance, if any, of the amount which he
has deposited under rule 7.
Rule 11.
Powers of Court Pending appeal.—
(1) Notwithstanding the grant of a certificate for the admission of any appeal, the
decree appealed from shall be unconditionally executed, unless the Court otherwise
directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the
suit, or otherwise appearing to the Court:—
(a) impound any movable property in dispute or any part thereof; or
respondent as the Court thinks fit for the due performance of any order which
the Supreme Court may make on the appeal, or
appeal, or
give such other directions respecting the subject-matter of the appeal, as it
thinks fit, by the appointment of a receiver or otherwise.
Rule 12.
Procedure to enforce orders of the Supreme Court.—
(1) Whoever desires to obtain execution of any decree or order of the Supreme Court
shall apply by petition accompanied by a certified copy of the decree passed or order
made in appeal and sought to be executed, to the Court from which the appeal to the
Supreme Court was preferred.
(2) Such Court shall transmit the decree or order of the Supreme Court to the Court
which passed the first decree appealed from or to such other Court as the Supreme
Court by such decree or order may direct, and shall upon the application of either party
give such directions as may be required for the execution of the same, and the Court to
which the said decree or order is so transmitted shall execute it accordingly, in the
manner and according to the provisions applicable to the execution of the original
decrees.
representative of any deceased opposite party or deceased respondent in a case where
such opposite party or respondent did not appear either at hearing in the Court whose
decree was complained of or at any proceedings subsequent to the decree of that
Court, but such order shall have the same force and effect as if it had been made
before the death took place.
Rule 13.
Appeal from order relating to execution.—

Court, relating to such execution shall be appealable in the same manner and subject
to the same rules as the orders of such Court relating to the execution of its own
decrees." [No. GSR CA/5/1908/S. 122/73 dt. 21-12-1973 published in Punj. Govt. Gaz.
L.S. dated 4-1-1974.]

27 Subs. for "order" by IAO 1950.
29 Subs. for "His Majesty" by IAO 1950.
35 Sub-rule (3) omitted by IAO 1950.
37 Subs. for "Unless His Majesty in Council is pleased otherwise to direct, no order of His
Majesty in Council" by IAO 1950.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 16. Appeal from order
relating to execution
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 16.
Appeal from order relating to execution
The orders made by the Court which executes the 38[decree or order] of 39[the
Supreme Court], relating to such execution shall be appealable in the same manner
and subject to the same rules as the orders of such Court relating to the execution of
its own decrees.
Rule 16-A added in AP, Kerala and Madras; rule 17 added in All & MP; Order XIV-A added
in Cal.

39 Subs. for "His Majesty in Council" by IAO 1950 & Pak Ord 1, 1961.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 17. [Appeals to Federal
Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 17.
40[Appeals to Federal Court
Repealed by the Federal Court Act, 1941 (21 of 1941), Section 2.]
Allahabad (Notfn No 3922/VII(d) 107 dated 14-8-1948).—After rule 16 add the following
as r 17:—
"17. The provisions of sub-rules (1) and (2) of rule 15 shall apply mutatis mutandis, to
the execution of decrees or orders for costs passed by the Federal Court in appeals
from the High Court."
Calcutta (Notfn No 4575-G: 30th July 1948).—
Insert the following as Order XLV-A:—
"ORDER XLV-A
Appeals to the 41Federal Court
1. The High Court shall, on receipt of a declaratory order of the 42Federal Court, cause
notice to be issued and served on the parties intimating that it will proceed to deal with
the matter on a specified date and shall, after hearing the parties appearing, if any, pass
a decree or order in terms of the declaratory order of the Federal Court in substitution
of the decree or order which formed the subject-matter of the appeal to the Federal
Court.
The substituted decree or order so passed shall thereupon be transmitted, with such
directions as may be required, to the Court which passed the first decree appealed
from; and the Court to which the said decree or order is transmitted shall execute it in
the manner and according to the provisions applicable to the execution of its original
decrees.
If the Court which passed the first decree or order be the High Court, such substituted
decree or order as aforesaid shall be executed in the manner and according to the
provisions applicable to the execution of its original decrees.
2. Whoever desires to obtain execution of an order of the Federal Court awarding costs
under section 209(2) of the Government of India Act, 1935 shall apply to the High Court
by petition accompanied by a certified copy of the order passed by the Federal Court
and sought to be executed, and the High Court shall direct such order to be filed and
thereupon transmit the certified copy of the said order for execution in the manner
prescribed in rule 1 of this Order.
If such order of the Federal Court relates to an appeal arising out of a decree or order
made by the High Court, in its Original jurisdiction, it shall be executed in the manner
and according to the provisions applicable to the execution of its original orders."
Kerala (Notfn No BI-3312/58; 7-4-59).—Insert rule 16A which is same as in Allahabad

rule 17.
Madhya Pradesh (Notfn No 3409; 20-6-1943).—Insert rule 17 which is same as in

Allahabad with insertion of the words "in accordance with the declaration or order
made" after "orders for costs passed".
Madras (ROCNo 280 of 1945).—
Add the following as r 16A:—
"16-A. The provisions of sub-rules (1) and (2) of rule 15 and the provisions of rule 16
shall apply mutatis mutandis to the execution of decrees or orders for costs passed in
the Federal Court in appeals from the High Court."
Madras.— The following amendments were made by Tamil Nadu Government Gazette,
dated 21-4-1971.
Insert the following after Order XLV—
"ORDER XLV-A
1. Decree defined.—
In this Order, unless there is something repugnant in the subject or context, the
expression "decree" shall include a final order.
43[2. Application to Court whose decree is complained of.—Whoever desires to appeal

to the Supreme Court may make an oral application to the Court whose decree is
complained of immediately after the pronouncement of the judgment and in such a
case, it shall be heard and disposed of immediately or may apply by petition to the
Court whose decree is complained of.
3. 43[Certificate as to fitness].—
43[(1) Every petition shall state the grounds of appeal and pray for a certificate:
(i) that the case involves substantial question of law of general importance; and
(ii) that in the opinion of the Court, the said question needs to be decided by the
Supreme Court.]
(2) Upon receipt of such petition the Court shall direct notice to be served on the
opposite party to show cause why the said certificate should not be granted:
Provided that where leave to appeal is sought from a decree dismissing a proceeding in
limine notice shall not be necessary unless the Court otherwise directs.
4. Consolidation of suits.—
For the purpose of pecuniary valuation, suits involving substantially the same
questions for determination and decided by the judgment may be consolidated; but
suits decided by separate judgments shall not be consolidated, notwithstanding that
they involve substantially the same questions for determination.
5. Remission of dispute to Court of first instance.—
In the event of any dispute arising between the parties as to the amount or value of the
subject-matter of the suit in the Court of first instance, or as to the amount of value of
the subject-matter in dispute on appeal to the Supreme Court, the Court to which a
petition for a certificate is made under rule 2 may, if it thinks fit, refer such dispute for
report to the Court of first instance, which last mentioned Court shall proceed to
determine such amount or value and shall return its report together with the evidence
to the Court by which the reference was made.
6. Effect of refusal of certificate.—
Where a certificate is refused, the petition shall be dismissed.
7. Power of Court pending appeal.—
(1) Notwithstanding the grant of leave to appeal to the Supreme Court, the decree
appealed from shall be unconditionally executed unless the Court otherwise directs.
(2) The Court may, if it thinks fit on special cause shown by any party interested in the
suit, or otherwise appearing to the Court.
respondent as the Court thinks fit for the due performance of the decree
appealed from or of any decree or order which the Supreme Court may make on
appeal, or
appeal, or
give such other direction respecting the subject-matter of appeal, as it thinks fit,
by the appointment of a receiver or otherwise, till the petition for leave to appeal
is disposed of or till the appeal is filed in the Supreme Court.
8. Procedure to enforce orders of the Supreme Court.—
(1) Whoever desires to obtain execution of any appellate decree or order of the
decree or order to the Court of first instance.
Explanation.—The Court of first instance in this rule shall mean the Court in which the
suit or proceedings was first instituted and where such Court has ceased to exist or to
have jurisdiction to execute it, the Court, which if the suit wherein the decree was
decree, would have jurisdiction to try the suit.
be inoperative on the ground, that no notice has been served on or given to the legal
representative of the deceased opposite party or deceased respondent in a case, where
such opposite party or respondent did not appear either at the hearing in Court whose
decree was complained of or at any proceedings subsequent to the decree of that
Court but such order shall have the same force and effect as if it had been made before
the death took place.
9. Appeal from order relating to execution.—
Court relating to such execution, shall be appealable in the same manner as the orders
of such Court relating to the execution of its own decrees."
Punjab (Notfn No 254-R/XI-Y26 of 13-12-1946).—
Insert the following as Order XLV-A:—
"ORDER XLV-A
1. (1) Whoever desires to obtain execution of an order of the 44Federal Court made
under sub-section (2) of Section 209 of the Government of India Act, 1935, shall apply
by petition, accompanied by a certified copy of the order sought to be executed to the
High Court from which appeal to the 45Federal Court was preferred.
(2) The High Court shall transmit the order of the 45Federal Court to the Court which
passed the first decree appealed from or to such other Court as the High Court may
deem fit and may give such directions as may be required for the execution of the
same. The Court to which the said order is transmitted shall execute it accordingly, in
the manner and according to the provisions applicable to the execution of its original
decrees.
2. The provisions of rule 16 of Order XLV shall apply mutandis, to the execution of
decrees or orders for costs passed by the 45Federal Court in appeals from the High
Court."

40 Ins. by the A.O. 1937.
41 Reference to the Federal Court should now be regarded as reference to the Supreme Court.
43 Substituted—See T.N. Govt. Gaz., dated 16-11-1988, Pt. III, section 2, P. 136.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Reference of question to
High Court
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVI Reference
R. 1.
Reference of question to High Court
Where, before or on the hearing of a suit or an appeal in which the decree is not
subject to appeal, or where, in the execution of any such decree, any question of law
or usage having the force of law arises, on which the Court trying the suit or appeal, or
executing the decree, entertains reasonable doubt, the Court may, either of its own
motion or on the application of any of the parties, draw up a statement of the facts of
the case and the point on which doubt is entertained, and refer such statement with
its own opinion on the point for the decision of the High Court.
COMMENT.—
It was held by a Full Bench of Patna High Court that a reference can be made only in a
suit or appeal or in execution of a decree.1
Where only a specific question is referred to a Full Bench by a Division Bench, the Full
Bench has jurisdiction to answer only that question. It is not open to it to enter into a
question of fact which is before the division bench for decision.2
1 Banarsi Yadav v RC Das, AIR 1972 Pat 49 (FB).

2 State of UP v Abdul Karim, AIR 1963 All 556 (FB).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Court may pass decree
contingent upon decision of High Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Court may pass decree contingent upon decision of High Court
The Court may either stay the proceedings or proceed in the case notwithstanding
such reference, and may pass a decree or make an order contingent upon the decision
of the High Court on the point referred; but no decree or order shall be executed in
any case in which such reference is made until the receipt of a copy of the judgment
of the High Court up on the reference.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Judgment of High Court
to be transmitted and case disposed of accordingly
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Judgment of High Court to be transmitted and case disposed of accordingly
The High Court, after hearing the parties if they appear and desire to be heard, shall
decide the point so referred, and shall transmit a copy of its judgment, under the
signature of the Registrar, to the Court by which the reference was made; and such
Court shall, on the receipt thereof, proceed to dispose of the case in conformity with
the decision of the High Court.
COMMENT.—
Unnecessary observation made by a High Court while disposing of a reference having

no legal effect must be treated to have been infructuous and superfluous. Reference
should be decided within four corners of section 113 and O XLVI, rule 3.3
3 Municipal Corpn of City v Shivshankar Gaurishankar Mehta, AIR 1999 SC 2874 (2876) : (1998)
9 SCC 197 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Costs of reference to
High Court
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 4.
Costs of reference to High Court
The costs (if any) consequent on a reference for the decision of the High Court shall
be costs in the case.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4A. Reference to High
Court under proviso to Section 113
© 2020 LexisNexis
THE FIRST SCHEDULE
4R. 4A.
Reference to High Court under proviso to Section 113
The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the
proviso to section 113 as they apply to a reference under rule 1].
4 Ins. by Code of Civil and Criminal Procedure (Amendment) Act 24 of 1951, section 2 (w.e.f. 1-
5-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Power to alter etc.,
decree of Court making reference
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 5.
Power to alter etc., decree of Court making reference
Where a case is referred to the High Court under rule 1 5[or under the proviso to
section 113], the High Court may return the case for amendment, and may alter,
cancel or set aside any decree or order which the Court making the reference has
passed or made in the case out of which the reference aros e, and make such order as
it thinks fit.
5 Ins. by Code of Civil and Criminal Procedure (Amendment) Act 24 of 1951, section 2 (w.e.f. 1-
5-1951).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 6. Power to refer to High
Court questions as to jurisdiction in small causes
© 2020 LexisNexis
THE FIRST SCHEDULE
R 6.
Power to refer to High Court questions as to jurisdiction in small causes
(1) Where at any time before judgment a Court in which a suit has been instituted
doubts whether the suit is cognizable by a [K] Court of Small Causes or is not
so cognizable, it may submit the record to the High Court with a statement of
its reasons for the doubt as to the nature of the suit.
(2) On receiving the record and statement, the High Court may order the Court
either to proceed with the suit or to return the plaint for presentation to such
other Court as it may in its order declare to be competent to take cognizance of
the suit.
[Sub-rule (1) amended in Kerala.]
Kerala (Notfn No B1-3312/58; 7-4-1959).—
In sub-rule (1) for "Court of Small Causes" substitute "Court exercising Small Cause
Jurisdiction". (9-6-1959)

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Power to District Court
to submit for revision proceedings had under mistake as to jurisdiction in small causes
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 7.
Power to District Court to submit for revision proceedings had under mistake
as to jurisdiction in small causes
(1) Where it appears to a District Court that a Court subordinate thereto has, by
reason of erroneously holding a suit to be cognizable by a Court of Small
Causes or not to be so cognizable, failed to exercise a jurisdiction vested in it
by law, or exercised a jurisdiction not so vested, the District Court may, and if
required by a party shall, submit the record to the High Court with a statement
of its reasons for considering the opinion of the subordinate Court with respect
to the nature of the suit to be erroneous.
(2) On receiving the record and statement the High Court may make such order in
the case as it thinks fit.
(3) With respect to any proceedings subsequent to decree in any case submitted
to the High Court under this rule, the High Court may make such order as in the
circumstance appears to it to be just and proper.
(4) A Court subordinate to a District Court shall comply with any requisition which
the District Court may make for any record or information for the purposes of
this rule.
[Rule omitted in Kerala; rule 8 added in All, Bom and Gujarat.]
Allahabad (Notfn No 1465/35(a)-5(4); 1-6-1918).— Add the following new rule 8:—
"8. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order".
Bombay (Dadra and Nagar Haveli) (Goa, Daman and Diu). — The following amendments
Page 429; Goa Gazette, dated 12-10-1987, Extra., Section 1., No. 28, Page 391, dated 1-4-
1987.
In Order XLVI, after the existing rule 7, add the following rule with marginal note as new
"8. Applicability of rule 38 of Order XLI.—
Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this order."
Gujarat.—Same as in Allahabad. (17-8-1961)
Kerala (Notfn No B1-3312/58; 7-4-1959).—Omit the rule.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Application for review of
Judgment
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 1.
Application for review of Judgment
(1) Any person considering himself aggrieved
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a [K] Court of Small Causes,
and who from the discovery of new and important matter or evidence
which after the exercise of due diligence, was not within his knowledge
or could not be produced by him at the time when the decree was
passed or order made, or on account of some mistake or error apparent
on the face of the record, or for any other sufficient reason, desires to
obtain a review of the decree passed or order made against him, may
apply for a review of judgment to the Court which passed the decree or
made the order.
(2) A party who is not appealing from a decree or order may apply for a review of
judgment notwithstanding the pendency of an appeal by some other party
except where the ground of such appeal is common to the applicant and the
appellant, or when, being respondent, he can present to the Appellate Court the
case of which he applies for the review.
1[ Explanation. —The fact that the decision on a question of law on which the judgment
of the Court is based has been reversed or modified by the subsequent decision of a
superior Court in any other case, shall not be a ground for the review of such
judgment.]
Kerala (Notfn No B1-3312/58; 7-4-1959).—
In sub-rule (1)(c) for "Court of Small Causes" substitute "Court exercising Small Cause
Jurisdiction".
Patna.—
The following amendments were made by Bihar Gazette, dated 5-12-1973, Part III, No. 39.
Delete the words "or on account of non-payment, in spite of due diligence, of Court-fee
within time allowed by the Court" as were inserted in 1958 in the paragraph below
clause (c).
COMMENT.—
The Explanation to this rule was inserted by the Amending Act of 1976. This provides
for the review ofjudgments. But the scope of such review is very limited. Review of
judgments may be allowed on three grounds namely;
(i) discovery of new and important matter of evidence which after the exercise of
due diligence was not within the knowledge of the applicant or could not be
produced by him at the time when the decree was passed or order was made, or
(ii) some mistake or error apparent on the face of the record, or
(iii) for any other sufficient reasons (which has been interpreted to be analogous to
the other reasons specified above).
Factual inquiry cannot be undertaken by the executing court under section 47 at the
instance of the judgment-debtor for holding decree anullity.
Decree once passed can be challenged by the Judgment-debtor in appeal or review.2
Jurisdiction of court.—
The jurisdiction of review court is limited to examining as to whether the order sought
to be reviewed contains any apparent error within the meaning of O XLVII, rule 1 or not?
If it contains, then the order has to be recalled but if the order does not contain any
error then the court has to simply dismiss the review petition and in turn uphold the
order.3
The scope of review is very limited under O XLVII, rule 1 of the Code.4
A review is not maintainable relating to an order/judgment wherein the relief sought for
has already been negated, in the name of clarification/modification and/or alteration of
the said order. Where the petitioners in the name of review actually prayed for rehearing
of the earlier writ petition, the same is not permissible.5
An order of dismissal of review petition is also not appealable as it would tantamount

to indirect route to appeal.6
In case the contentions raised by the appellant were not considered by the High Court,
the proper course available to the appellants was to bring to the notice of the High
Court this aspect by filing a review application. But such a course was never adopted.
In view of this, the appellants cannot be permitted to challenge the orders past by the
trial court on the interlocutory applications now, and argue that the trial court erred in
not adhering to the pre-trial procedures.7
The court has power to enlarge the time in favour of the Judgment-Debtor to pay the
amount or to perform the conditions mentioned in the decree for specific performance,
in spite of an application for rescission of the decree having been filed by the judgment-
debtor and rejected. The court has the discretion to extend time for compliance of the
conditional decree as mentioned in the decree for specific performance. In view of the
aforesaid settled position of law, the court below has rightly extended the time, which
is within its jurisdiction and hence no error apparent of the face of the record is
committed by the Trial Court.8
Error apparent on the face of record.—

The opening lines of para 34 of the judgment emphasised that there is no reservation
in promotion by selection within group A posts in bank. Office Memorandum dated 13
August 1997 only provides for concession. However, in the very next line of the same
para i.e., para 34 it was observed that reservation is provided in promotion by selection
in respect of posts carrying salary of less than Rs. 5,700 per month. It was held that it
is clearly an error on the face of the record and it has led to further error that such
reservation in matter of promotion is applicable from scale I upward to scale IV. The
court rectified the error and the erred paras were deleted and new paras were
inserted.9
Section 114 or O XLVII, rule 1 does not apply to mandamus appeal.10
Relief withdrawn, as order was incorrect.—
A writ petition was allowed granting the relief of re-instatement of the petitioner in the
service. In a later petition by another person in which the earlier petitioner was
unnecessarily impleaded, while dismissing the later petition the judge held that his
order in the earlier case was not correct and withdrew the relief granted to that
petitioner. Such a review in a totally unconnected subsequent proceeding was set
aside.11
No superior Court should have been moved for self-same relief before filing review
petition. The expression "from which an appeal is allowed" appearing in this rule should
be construed liberally.12
Unreviewable finding not to be reversed in review.—
In a dispute whether plaintiff and the defendant had jointly purchased the disputed plot,
the finding given by the appellate Court is not reviewable. Where the review Court
reappreciated entire evidence and reversed the finding of the appellate Court, it
exceeded its jurisdiction. The review order is to be set aside.13
The Explanation now added makes it clear that the view taken on a question of law in a
subsequent decision of a superior Court in any other case shall not be a ground for the
review of the judgment.
Grounds of review.—
The words "any other sufficient reason" in O XLVII of the Code mean a reason sufficient
on grounds analogous to those specified immediately previously in that order. The
grounds of review are the discovery of new matters or evidence which, after the
exercise of due diligence, was not within his knowledge or could not be produced by
him at time when the decree was passed or order made. The review may also be asked
for on account of some mistake or error apparent on the face of the record.14
Three grounds for allowing review application prescribed, namely:
(1) discovery of new and important matter, under certain circumstances,
(2) mistake or error apparent on the face of record,

(3) any other sufficient reason.15
In a maintenance suit, the petitioner sought review of judgment on the ground inter alia
that he is not in a position to pay amount fixed by the Court. He pleaded that there was
no prayer made by the respondent for the payment of any amount for the marriage of
her daughter and, therefore, such conditions imposed in judgment will amount to
hardship. Hence, ground set forth by the petitioner cannot be a ground to review the
judgment.16
Any other sufficient reason.—
The words "any other sufficient reason" must mean a reason sufficient on grounds, at
least analogous to those specified in the rule. The misconception of the Court must be
regarded as sufficient reason analogous to an error on the face of the record. There is
no reason to construe the word "record" in very restricted sense and include within that
term only the document which initiates the proceedings, the pleadings and the
adjudication and exclude the evidence and other parts of the record.17
Application for modification of Supreme Court order is not for review of such
order.—
An interim application filed by the petitioner for the modification of Supreme Court
Order is not an application for a review of order of the Supreme Court.18
Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has
been invoked the order passed in appeal is to attract the doctrine of merger. The order
may be of reversal, modification or merely affirmation.19
The power of review is to correct the mistake apparent on the face of record and does
not mean error which has to be searched and fished out. The words "any other
sufficient reason" mean a reason sufficient on ground at least analogous to those
specified in the rule.20
A High Court has no power or jurisdiction to review the self same order which was the
subject matter of challenge in the SLPs, after the challenge had failed. Any
entertainment of review petition by High Court against self same orders, after
dismissal of SLPs, is subversive of judicial discipline.21
The power to review is not an inherent power. It must be conferred by law either
specifically or by necessary implication.22
Where a special leave petition filed against judgment of tribunal is dismissed, the
judgment of tribunal becomes final and binding between the parties. Its review is not
permissible. The person aggrieved by it and who is not a party to main petition and SLP
cannot also challenge it by filing review petition. The person not directly affected by
impugned order cannot be considered as person aggrieved.23
Where the respondents who were not the parties to earlier proceedings, not only filed
an application for review but also filed an independent application and the tribunal,
being of the view that independent application will not be maintainable, reviewed its
earlier order and the impugned order has been passed. While the appellants have
challenged the reviewed order of the tribunal, respondents have filed a SLP against the
order of the tribunal dismissing their original application holding the same to be not
maintainable. The Supreme Court held that the question that review is not maintain
able, does not arise.24
Section 114 and this Code expressly give a right of review in certain cases. The section
of the Code is a substantive provision, and this order provides the details of
procedure.25
Inherent power to review vests in Courts only. A Government or an Officer of the

Government has no inherent power to review its or his orders.26 Where a suit for
specific performance of contract is dismissed by Division Bench of High Court and
refund of amount deposited with the Court receiver is ordered, it was not proper for a
judge in review, to hold that direction for refund of money was bad. The proper remedy
was to file an appeal against Division Bench judgment.27
Where the claim of temporary employees in a bank for permanent absorption is

rejected on the ground that the panel expired after one year with direction to consider
them for future vacancies if within age limit. In a subsequent scheme by the bank for
employment of temporary employees eligibility criteria as to age limit stipulate was
more favourable than under Court direction. The High Court thereupon reviewed its
earlier direction and directed consideration of the petitioners first. Such a direction is
contrary to scheme evolved by the bank and so to be set aside.28
Review petition, maintainability.—
The provisions under O XLVII, rule 1 mandates that motion for review may be
entertained if the applicant satisfies the Court that—
(i) it has discovered new and important matter of evidence which, after exercise of
due diligence was not within his knowledge or could not be produced by him at
the time when the order under review was made,
(ii) there was some mistake or error apparent on the face of the record and because
of that a wrong order has been passed, and
(iii) for any other sufficient reason, it is necessary to make a review of the order. It
means review may be made on exceptional circumstances in furtherance of
ends of justice.29
The review means to reconsider the same material. When it appears that an error on
the face of the record has occurred and it can be verified by mere looking at the record,
a review application is maintainable.30
Review application after dismissal of SLP is not maintainable.31
Granting benefits by High Court under amended Madras City Tenants Protection Act,
1996 by allowing review application was held to be proper.32
Where maintainability of the review petition is yet to be decided, an interim order

cannot be passed by the High Court as it would virtually mean allowing the writ petition
with out deciding the question of its maintainability. Such a course of action is not
permissible in law.33
Review power & appellate power.—

A power of review is not to be confused with appellate power which may enable an
Appellate Court to correct all kinds of errors committed by the subordinate Court.
Whereas, the power of review may be exercised on the discovery of new and important
matter or evidence which the person seeking review could not know and which could
not be produced before the order was made. It cannot be exercised on the ground that
the decision was erroneous on merits. That would be a province of Court of appeal.34
The High Court while exercising its review jurisdiction was not bound to consider the
review ability or correctness of all prior orders.35
No review if alternative situations not disclosed.—
A review proceeding cannot be equated with the original hearing of the case and the
finality of the judgment will be reconsidered only where a glaring omission or patent
mistake or like grave error has crept into by judicial fallibility. A judgment based on
factual foundation is not open to review merely because some alternative situations
were not presented before the Court.36
Doctrine of merger and right of review.—
The doctrine of merger and the right of review are concepts which are closely
interlinked.37
New grounds, not to be considered.—
A plea, that the society for whom the land was acquired was not in existence and the
land was not required for the public purpose, was raised for the first time in review
petition. It could not be considered as it would also involve investigation of new facts.
New grounds cannot be considered in review.38
The contention that had never been raised before the appellate Court cannot be raised
in review as it would amount to reappreciation of evidence.39
The pleas based on facts outside pleadings cannot be raised in review petition.40
Transgressing of Jurisdiction.—
An order of detention specifically indicated authority to whom representation was to be

made. The representation, instead, was made to the President of India. In writ petition
the fact of making representation to the President was suppressed and it was averred
that representation was made to State of Tamil Nadu. The fact was disclosed for the
first time in review petition. It was thus deliberate attempt to create confusion and reap
undeserved benefit. Entertaining such review petition by High Court with entirely a new
substratum of issues amounts to transgressing its jurisdiction.41
The crucial date of determining whether or not the terms of O XLVII rule 1(1) are
satisfied is the date where the application for review is filed. If on that date no appeal
has been filed it is competent for the Court hearing the petition for review to dispose of
the application on merits.
The review application should not be an appeal in disguise. The power of review is to
be exercised with extreme care, caution and circumspection only in exceptional
cases.42
Error apparent.—
There is a distinction between a mere erroneous decision and a decision which could
be characterised as vitiated by "error apparent." A review is by no means an appeal in
disguise whereby an erroneous decision is reheard and corrected, but lies only for
patent error.43
It has been held by a Full Bench of Himachal Pradesh High Court in ND Cooperative
Transport Society Ltd v Beli Ram, AIR 1981 HP 1 (FB) that failure of the Court to take
into consideration an existing decision of the Supreme Court taking a different or
contrary view on a point covered by its judgment would amount to a mistake or error
apparent on the face of the record. But a failure to take into consideration a decision of
the High Court would not amount to any mistake or error apparent on the face of the
record.44
Review by reference Court.—
The reference Court review its earlier order in terms of O XLVII,rule 1 if there exists an
error apparent on the face of record.45
Applicability of review in proceeding under other Acts.—
As the Code of Civil Procedure applied to the proceedings before the Labour Appellate
Tribunal, it has jurisdiction to review its own order under the provisions of O XLVII.46
The scope of jurisdiction under section 154 of the Income Tax Act (43 of 1961) is wider
than provided under O XLVII, rule 1 of Code of Civil Procedure but there must be
material to support the claim.47
The restrictive operation of the power of review under O XLVII, rule 1 of Code of Civil
Procedure is not applicable in the case of section 35 of the Income Tax Act, 1922.48
It is not correct to say that the later order of the RTA is an order of review of the
previous, order, because the later order of the RTA fixed the date of commencement of
the service which was not given in previous order. The later order is only supplemental
and filled up an omission in the previous order which was left entact.49
Dismissal of review petition.—
The review petition was dismissed by the High Court where it was filed on the premise
that the decision of the High Court resulted in the loss of his seniority, as seniority is
not a fundamental right but merely civil right.50
The review petition is dismissed where there is no error apparent on the face of
record.51
Permissibility of review.—
The power of review under O XLVII rule 1 of the Code of Civil Procedure 1908, is very
limited and it may be exercised if there is a mistake or an error apparent on the fact of
the record. The power of review is not to be confused with the appellate power. The
review petition/application cannot be decided like a regular intra court appeal. A
Fortiori, what was not decided in the appeal by the division bench could not be decided
by the division bench while deciding the review application.52
Review application was allowed where no notice of writ petition was served upon the
borgadar.53
The review is permissible only if (1) there is discovery of, new evidence (2) there is
some mistake or error apparent on the face of the record, and there is any other
sufficient reason. The "sufficient reason" must have nexus with other grounds
enumerated under rule 1 of O XLVII of the Code.54
In absence of any statutory provision providing for review, entertaining an application

for review or under the garb of clarification/modification/correction is not
permissible.55
If there is recourse to successive review petitions against the same order but no error
apparent on the record is brought out then unexplained inordinate delay in filing second
review petition is not permissible.56
According to the Registry of the High Court, the review application had some defects in
filing. The appellants were therefore directed to cure the defects so that review
application could be listed for orders. The appellants failed to cure the defects, so
application was dismissed due to non-compliance. It was held that having regard to the
nature of the controversy involved in the case, High Court ought to have condoned the
delay and granted one more opportunity to cure the defects.57
Error apparent, explained.—
An error apparent on the face of record must be such an error which must strike one on
mere looking at the record and would not require any long drawn process of reasoning
on points where there may conceivably be two opinions.58
Error apparent on the face of record.—
Where the material on record escaped notice of High Court which considering question
of compensation to be awarded in land acquisition case, in fairness and interest of
justice the matter was remitted to the High Court for second look to its own
judgment.59
Once error is found in order/ judgment which is apparent on face of record, same must
be corrected. Court while adopting such course is guided by doctrine of ex debito
justitiae as well as fundamental principle of administration of justice that no one should
suffer because of court's mistake.60
It cannot be said that the powers of revision under section 7 of Orissa Board of
Revenue Act, 1951 are wider than O XLVII, rule 1 of Code of Civil Procedure.61
Concluded question not to be reopened in review by HC.—
Where the question regarding concession in respect of profit and overhead charges
was concluded in the earlier writ petitions by the allottees and the special leave
petitioners to the Supreme Court were also dismissed, the High Court cannot reopen
the same matter by way of review petition.62
No review by tribunal when dismissal confirmed by Supreme Court.—
Where an order of dismissal of employees has been confirmed by the Supreme Court in
Special Leave Petition by refusing to grant leave is final and cannot be reviewed by the
Tribunal.63
Final decree not to be amended in execution.—
Where a decree has become final, it cannot be amended by executing Court or

reference Court by exercising powers under this rule and section 151. Even entertaining
an application for amendment of decree by reference Court is devoid of power and
jurisdiction.64
Appeal, maintainability.—
Regarding the maintainability of appeal against the review petition, preferred by

appellants themselves, having invoked the jurisdiction of the Appellate Court, it would
not be open to the appellants to take a contrary view and to urge that such appeal was
not maintainable having being filed against an order passed in review petition.65
Effect of allowing review.—
A decree that is subsequently passed, on review of a decree, whether it modifies,

reverses or confirms the original decree, is a new decree, superseding the original
one.66
Non-compliance, effect.—
Where principles laid down under O XLVII, rule 1 were completely ignored, order in
review was liable to be set aside.67
Erroneous statement in judgment.—
A statement in a judgment that a particular thing happened or did not happen before a
Court ought not be ordinarily challenged by a party unless both the parties agree that
the statement is wrong or the Court itself admits that it is erroneous. The remedy of the
aggrieved party is by way of review.68
Review of judgment of a single judge of the High Court by another judge is not
maintainable. Appropriate remedy for the aggrieved party lies in appeal.69
In a review application the Court found that there was in fact a clause in Rate Contract
stipulating reimbursement of the amount of sales tax legally leviable. The Central
Government was plainly liable to pay the amount of sales tax.70
A single judge remanded the case to the first Court setting aside not only his own
judgment but also the judgments of two lower Courts. It was held erroneous. A single
judge ought to have framed some additional issues, if any, arising strictly on the
pleadings and calling for finding on then with liberty to both the parties for adducing
evidence.71
If all the parties were not present who could have been impleaded then the judgment
rendered thereto would not be one which was decided in the presence of all the parties.
Therefore, recalling of an earlier order in second appeal would make entire judgment to
stand upset and would no longer be available for Court to concur or accept reasoning
in earlier order.72
Limitation for review application.—
There is no prescribed period of limitation fixed under law. Review application cannot
be dismissed as barred by limitation simply because it has been filed after a lapse of
one year.73
Provisions contained in Limitation Act for filing review application will not be
applicable.74
Grant of relief.—
The application for review has been described as one for

clarification/modification/variation. Such fact will not create any impeadiment on
granting appropriate relief of review to a litigant if he deserves such relief.75
2 P N Pharma Marketing Service Pvt Ltd Gauhati v Nicholas Piramal India Ltd, Mumbai, AIR 2014
Gau 84 .
3 State of Manipur v Naga Hindi Vidyapith, Manipur, AIR 2014 Mpr 8 .
4 Oriental Insurance Company v Kalawati Devi, (2009) 13 SCC 767 (768).
5 Krajoy Mog Choudury v State of Tripura, AIR 2014 Tri 33 .
6 Heerachand Swarankar v Sri Radhe Shyam Jee Maharaj Virajman, AIR 2016 Pat 64 .
7 Rasiklal Manikchand Dhariwal v MSS Food Products, (2012) 2 SCC 196 .
8 Dilip Kumar Patro v M Gopi Krishna Rao, AIR 2015 Ori 15 .
9 Chairman & MD Central Bank oflndia v Its SC/STEmp Welfare Association, AIR 2016 SC 326 .
10 Maruti Real Estate Pvt Ltd v Life Insurance Corpn of India, AIR 2008 (NOC) 345 (Cal-DB); GA
Nos 421, 2733 of 1997 and etc Dt 16 October 2007 : AIR 1999 Cal 29 (FB), relied on.
11 Jaya Devi v State of Bihar, AIR 1996 SC 1174 : (1996) 7 SCC 757 .
12 Kabari Pvt Ltd v Shivnath Shroff AIR 1996 SC 742 (749) : (1996) 1 SCC 690 .
13 Meera Bhanja v Nirmala Kumari Chaudhary, AIR 1995 SC 455 (460) : (1995) 1 SCC 170 .
14 Raja Shatrunjit v Mohd A Azim Khan, AIR 1971 SC 1474 (1476) : (1971) 2 SCC 200 ; see also
Rajah Kotagiri VSRao v Rajah VV Rao, (1900) 27 IA 197 (PC).
15 Cogent Emr Solutions Ltd v Virendra Kr Sharma, 2009 (111) DRJ 673 .
16 Anil Kr Tirkey v Nilam K Kachhap, 2011 AIR CC 1177 (1178) (DB).
17 Moran MB Catholicos v Mar Poulose, AIR 1954 SC 526 (538, 543) : (1955) 1 SCR 520 : (1954)
TC 867 ; Chhajju Ram v Neki, AIR 1922 PC 112 ; BP Sahi v P Nath, AIR 1934 PC 213 ; Hari Shankar
v A Nath, AIR 1949 FC 106 relied on.
18 Sudarshan Trading Co. Ltd v PP Saffiya, AIR 1991 SC 716 (718).
19 Kunhayammed v State of Kerala, AIR 2000 SC 2587 (2601) : (2000) 6 SCC 359 : (2000) 119
STC 505 .
20 Lily Thomas v UOI, AIR 2000 SC 1650 (1665) : (2000) 6 SCC 224 : 2000 CrLJ 2433 .
21 Abbai Maligai Partnership Firm v K Santhakumaran, AIR 1999 SC 1486 : (1998) 7 SCC 386 .
22 Patel Narshi Thaharshi v Pradyuman Singhji, AIR 1970 SC 1273 (1275).
23 Gopabandhu Biswal v Krishna Chandra Mohanty, AIR 1998 SC 1872 (1875, 1877) : (1998) 4
SCC 447 : (1998) 3 LLN 68 .
24 Jagdish Ch Patnaik v State of Orissa, AIR 1998 SC 1926 (1933).
25 Jwala Prasad v Jwala Bank Ltd, AIR 1961 All 381 (FB).
26 PN Thakeeshi v Padyamunsingji, AIR 1970 SC 1273 : (1971) 3 SCC 844 .
27 Avijit Tea Co Pvt Ltd v Terai Tea Co, AIR 1997 SC 11 : AIR 1995 Cal 316 : (1996) 10 SCC 174
reversed.
28 Syndicate Bank v Shankar Paul, AIR 1997 SC 3091 (3093, 3094) : (1997) 6 SCC 584 .
29 Narayan Pd Mishra v State of Orissa, (2008) 105 Cut LT 792 (798) (DB).
30 Lakshmi Narain v Secretary of Govt, Deptt of Survey & Land Records, 2010 (4) ALT 774 (781)
(DB); see also High Court of AP v Virupaksha D Gowda, 2010 (1) ALT 210 (DB).
31 WB Dairy & Poultry Development Corpn Ltd v Senior Regional Manager, FCI, 2009 (4) Cal HN
288 (291) (DB); Abbai Maligai Partnership Firm v K Santhakumaran, AIR 1998 SCW 4061 , relied
on.
32 S Bagirathi Ammal v Palani Raman Catholic Mission, AIR 2008 SC 719 .
33 Director General of Police, CRP F v PM Ramalingam, AIR 2009 SC 956 (957) : (2009) 1 SCC
193 .
34 AT Sharma v AP Sharma, AIR 1979 SC 1047 : (1979) 4 SCC 389 .
35 Avinash H. Gajbhiye v Official Liquidator, AIR 2006 SC 1317 (1318).
36 Northern India Caterers v Lt Governor Delhi, AIR 1980 SC 674 (677, 679) : (1980) 45 STC 212 :
(1980) 2 SCC 167 .
37 Amar Singh v State of Haryana, 2008 (4) Punj LR 12 (14) (DB).
38 Collector of 24Parganas v Lalit Mohan Mullick, AIR 1988 SC 2121 : 1988 Supp SCC 578 .
40 Vidya Vinod Pathak v State of Bihar, 2008 (2) Pat LJR 641 (643) (DB).
41 UOI v Paul Manickram, AIR 2003 SC 4622 (4629) : (2003) 8 SCC 342 .
42 Lili Behera v Premalata Mallick, (2010) 110 Cut LT 607 (611) (DB).
43 Thungabhadra Industries v Govt of AP, AIR 1964 SC 1372 (1376, 1377) : (1964) 5 SCR 174 .
44 AIR 1981 HP 1 (FB), at p 6.
45 Jaya Ch Mohapatra v Land Acquisition Officer, AIR 2006 SC 4165 (4167).
46 Martin Buru v RN Banerjee, AIR 1958 SC 79 : 1958 SCR 514 : (1958) 1 LLJ 247 ; see also
Meenakshi Mills v Workmen, AIR 1958 SC 153 (158).
47 Anchor Pressing v CIT, UP, AIR 1987 SC 575 (577) : (1986) 3 SCC 439 : (1986) 161 ITR 159 .
48 ITO v Ashoka Textiles, AIR 1961 SC 699 ; Maharana Mills v ITO, AIR 1959 SC 881 ; MK
Venhatachalam v Bombay Dyeing & Manufacturing Co, AIR 1958 SC 875 relied on.
49 Maharashtra SRT Corpn v BRMService, AIR 1969 SC 329 (334).
50 Jaswant Singh Lamba v Haryana Agricultural University, (2008) 5 SCC 656 (661-62).
51 G Venkatesh v C Gangaiah, 2008 (3) Kar LJ 567 (571) (DB).
52 Sivakami v State of Tamil Nadu, AIR 2018 SC 2637 : 2018 (4) SCALE 266 : (2018) 4 SCC 587 .
53 Ajit Kr Sen v State of WB, 2008 (2) Cal LJ 477 (480) (DB).
54 Pannalal Ghosh v Iresh Das, AIR 2009 (NOC) 73 (Gau) : RP No 23 of 2007 dt 13 August 2008;
see also Ashim Kumar Dutta v Swapan Dutta, AIR 2008 (NOC) 2485 (Cal); Pinninti Kistamma v
Duvvada P Chaudary, (2010) 2 SCC 452 (a clarification inserted as operative part of judgment,
proper); S Bhagirathi Ammal v Palani Roman Catholic Mission, (2009) 10 SCC 464 .
55 Kalabharti Advertising v Hemant Vimalnath Narichania, AIR 2010 SC 3745 (3749).
56 MS Murthi v Mandal Revenue Officer-cum-Land Acquisition Officer, AIR 1999 SC 40 : (1998) 7
SCC 445 .
57 Pralhad Shankarrao Tajale v State of Maharashtra, AIR 2018 SC 1313 : 2018 (3) ABR 59 : 2018
(4) SCALE 233 : (2018) 4 SCC 615 .
58 Meera Bhanja v Nirmala Kumari Chaudhary, AIR 1995 SC 455 (457) : (1995) 1 SCC 170 .
59 Green View Tea & Industries v Collector, Golaghat, AIR 2004 SC 1738 (1742).
60 Central Bank of India v SC/STEmployees Welfare Assn, AIR 2016 SC 326 .
61 State of Orissa v Commr. of Land Records, AIR 1998 SC 3067 (3076) : (1998) 7 SCC 162 .
62 UP Avas Vikas Parishad v Ravi Kumar Anand, AIR 1995 SC 2076 (2078) : 1995 Supp (3) SCC
182 .
63 State of Maharashtra v Prabhakar Bhikhaji Ingle, AIR 1996 SC 3069 : (1996) 3 SCC 463 .
64 Bai Shakriben v Special Land Acquisition Officer, AIR 1996 SC 3323 : (1996) 4 SCC 533 ; see
also UOI v Raghubir Singh, AIR 1989 SC 1933 : (1989) 2 SCC 754 : (1989) 178 ITR 548 .
65 Indian Overseas Bank v Ashok Saw Mill, (2009) 8 SCC 366 (376).
66 Sushil Kumar Sen v State of Bihar, AIR 1975 SC 1185 .
67 T Thimmaiah v Venkatachala Raju, (2008) 11 SCC 107 (108).
68 Bank of Bihar v Mahabir Lal, AIR 1964 SC 377 (380).
69 Devaraju Pillai v Sellaya Pillai, AIR 1987 SC 1160 : (1987) 1 SCC 61 .
70 Hindustan Sugar Mills v State of Rajasthan, AIR 1981 SC 1681 : (1981) 1 SCC 599 .
71 Soundaraj v Devasahayam, AIR 1984 SC 133 .
72 Laxmappa Bhimappa Hulsgeri v HS Korwar, AIR 2004 SC 2445 (2447).
73 Maruti Real Estate Pvt Ltd v Life Insurance Corpn of India, AIR 2008 (NOC) 345 (Cal-DB); GA
Nos 421, 2733 of 1997 and etc, Dt 16 October 2007.
74 Maruti Real Estate Pvt Ltd v LIC of India, 2008 AIHC (NOC) 562 (Cal-DB); GA Nos 421, 2733 of
1997 and etc, Dt 16 October 2007.
75 Maruti Real Estate Pvt Ltd v LIC of India, 2008 AIHC (NOC) 562 (Cal-DB); GA Nos 424, 2733 of
1997 and etc dt 16 October 2007.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. To whom applications
for review may be made
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 2.
To whom applications for review may be made
[Omitted by the C P Code (Amendment) Act, 1956 (66 of 1956), S. 14(10) (w.e.f. 1-1-
1957)]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Form of applications for
review
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 3.
Form of applications for review
The provisions as to the form of preferring appeals shall apply, mutatis mutandis, to
applications for review.
COMMENT.—
While exercising original jurisdiction under contempt of Courts Act, 1971 in connection
with civil contempt of its own orders the High Court is not exercising any review
jurisdiction.76
Review without jurisdiction.—
A suit for possession was decreed ex parte but with a rider directing the plaintiff to pay
certain amount to the defendant or deposit the same in Court. In terms of the
agreement, the obligation to make payment was held to be concurrent with the
obligation to hand over possession. On review application, the lower Courts directed
deletion of the aforesaid direction. It was held, that the High Court as well as the
concerned subjudge were-error in allowing the review application and ordering that the
direction requiring the respondent, to pay to the appellant or to deposit a sum of Rs.
7,500/- in payment of the amount of loan should be deleted. It was a correct and valid
direction and it was rightly introducted in the original ex parte decree passed by the
subjudge. The order allowing review application was set aside.77
Where an order by Supreme Court dismissing eviction suit is based on erroneous

assumption, its interference in review jurisdiction is justified.78
76 High Court of Judicature at Allahabad v Raj Kishore, AIR 1997 SC 1186 (1193) : (1997) 3 SCC
11 : 1997 All LJ 795.
77 Viddyawati v Devi Das, AIR 1977 SC 397 (401) : (1977) 1 SCC 293 : (1977) 2 SCR 182 .
78 Srinivasiah v Balaji Krishna Hardware Store, AIR 1999 SC 462 : (1998) 8 SCC 312 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 4. Application where
rejected
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 4.
Application where rejected
(1) Where it appears to the Court that there is not sufficient ground for a review, it
shall reject the application.
Application where granted
(2) Where the Court is of opinion that the application for review should be granted,
it shall grant the same:
Provided that—
(a) no such application shall be granted without previous notice to the

opposite party, to enable him to appear and be heard in support of the
decree or order, a review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new

matter or evidence which the applicant alleges was not within his
knowledge, or could not be adduced by him when the decree or order
was passed or made, without strict proof of such allegation.
COMMENT.—
On a difference of opinion between the two judges constituting the Review Bench,
reference was required to be made to third judge for resolving the conflict. The Division
Bench is not justified in dismissing the review petition under this rule.79
Requirement for entertaining review.—
An order to be reviewed must suffer from error apparent on face of order and
permitting the order to stand will lead to failure of justice. An order determining
compensation payable to a victim of a motor accident does not suffer from any error. If
such a compensation is reduced by entertaining review then it would not be proper.80
79 Reliance Industries Ltd v Pravinbhai Jasbhai Patel, AIR 1997 SC 3892 (3897, 3898) : (1997) 7
SCC 300 .
80 Rajendra Kumar v Rambhai, AIR 2003 SC 2095 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 5. Application for review in
Court consisting of two or more judges
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 5.
Application for review in Court consisting of two or more judges
Where the Judge or Judges, or any one of the Judges, who passed the decree or
made the order, a review of which is applied for, continues or continue attached to the
Court at the time when the application for a review is presented, and is not or are not
precluded by absence or other cause for a period of six months next after the
application from considering the decree or order to which the application refers, such
Judge or Judges or any of them shall hear the application, and no other Judge or
Judges of the Court shall hear the same. [B,G].
[Rule amended in Bombay and Gujarat].
1983, Part 4 Ka, Page 429, dated 1-10-1983; Goa Gazette, dated 12-10-1987, Extra., No.
28, Page 392, dated 1-4-1987.
In Order XLVII, for the existing rule and its marginal note substitute the following as rule
5 and marginal note:
"5. Application for review in Court consisting of two or more Judges.—
Where the Judge or Judges, or any one of the Judges, who passed the decree or made
the order, a review of which is applied for, continues or continue to be attached to the
Court at the time when the application for a review is presented, and is not or are not
precluded by absence or other cause for a period of two months next after application
from considering the decree or order to which the application refers, such Judge or
Judges or any of them shall hear the application, and no other Judge or Judges of the
Court shall hear the same:
Provided that if in the case of a decree or order passed by a Division Bench of two or
more Judges of the High Court sitting at any place in the State of Maharashtra, all the
said Judges are not available for sitting together at one place when the review
application is ready for hearing the application may be heard by a Division Bench of two
or more Judges, at least one of whom, if available, should be the Judge who had
passed the decree or order a review of which is applied for."
Gujarat.—Same as in Bombay substituting "Gujarat" for "Maharashtra" in the proviso.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 6. Application where
rejected
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 6.
Application where rejected
(1) Where the application for a review is heard by more than one Judge and the
Court is equally divided, the application shall be rejected.
(2) Where there is a majority, the decision shall be according to the opinion of the
majority.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 7. Order of rejection not
appealable, Objections to order granting application
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 7.
Order of rejection not appealable, Objections to order granting application
81
[(1) An order of the Court rejecting the application shall not be appealable; but
an order granting an application may be objected to 82[* * *] at once by an
appeal from the order granting the application or in any appeal from the final
decree or order passed or made in the suit.]
(2) Where the application has been rejected in consequence of the failure of the
applicant to appear, he may apply for an order to have the rejected application
restored to the file, and, where it is proved to the satisfaction of the Court that
he was prevented by any sufficient cause from appearing when such
application was called on for hearing, the Court shall order it to be restored to
the file upon such terms as to costs or otherwise as it thinks fit, and shall
appoint a day for hearing the same.
(3) No order shall be made under sub-rule (2) unless notice of the application has
been served on the opposite party.
COMMENT.—
Sub-rule (1) of this rule 7 has been substituted by the new sub-rule. This newly added
sub-rule (1) above gives a right of appeal in all cases where an order for the review of a
judgment is made on any ground.
Cross-objections by the party filing review—Maintainability.—
Where plaintiff filed a review petition on the dismissal of suit, the Court allowed the
review petition and restored the suit to its original file and number. The appeal against
the said order by the opposite party was maintainable. However, no cross-objections at
the instance of the party filing review petition would lie.83
If the basic judgment is not assailed and the challenge is only to the order passed in
review, then the court is obliged not to entertain SLP against the said order.84
An order of the court rejecting an application for review is not appealable but if a fresh
decree is passed in the review petition by modifying the earlier decree, an appeal as
well as cross appeal are maintainable against the fresh decree passed in the review
petition.85
(w.e.f. 1-2-1977).
82 Words omitted by 1976 Amendment Act are given below:— "on the ground that the
application was—
(b) in contravention of the provisions of rule 4, or
(c) after the expiration of the period of limitation prescribed therefor and without sufficient
cause. Such objection may be taken."
83 R Mukherjee v AKDas, AIR 2005 SC 1944 (1949).

84 Bussa Overseas & Properties (P) Ltd v UOI, AIR 2016 SC 938 .
85 Lairenmayum Rashmandal Singh v Khwairakpam Jayentakumar Singh, AIR 2014 Mpr 51 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 8. Registry of application
granted and order for re-hearing
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 8.
Registry of application granted and order for re-hearing
When an application for review is granted, a note thereof shall be made in the register
and the Court may at once re-hear the case or make such order in regard to the re-
hearing as it thinks fit.
COMMENT.—
A judgment of the Court cannot be regarded as having any bearing after that judgment
was set aside in review subject to the points which were taken as binding.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 9. Bar of certain
applications
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVII Review
R. 9.
Bar of certain applications
No application to review an order made on an application for a review or a decree or

order passed or made on a review shall be entertained.
[Rule 10 added in All, Bom and Gujarat].
Allahabad (Notfn No 1465/35(a)-5(4); 1-6-1918).— Add the following new rule 10:—
"10. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this order."
(1-10-1983)
No. 28, Page 392, dated 1-4-1987.
In Order XLVII, after the existing rule 9, add the following rule with marginal note as new
10. "Applicability of rule 38 of Order XLI.—
Rule 38 of Order XLI shall apply, so far as may be, to proceedings under this Order".
Same as that of Allahabad except that for the words "so" read "as".
1983, (1-10-1983), Part 4 Ka., Page 429; Goa Gazette, dated 12-10-1987 Extra., Section 1,
No. 28, Page 392, dated 1-4-1987.
Order XLVII-A
After the existing Order XLVII, add the following Order with heading as new Order XLVII-
A and its headings:—
"ORDER XLVII-A
REVISION
1. Applicability of rule 38 of Order XLI.—
Rule 38 of Order XLI shall apply, so far as may be, to proceedings under Section 115 of
this Code."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Process to be served at
expense of party issuing
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLVIII Miscellaneous
R. 1.
Process to be served at expense of party issuing
(1) Every process issued under this Code shall be served at the expense of the
party on whose behalf it is issued, unless the Court otherwise directs.
Costs of service
(2) The Court-fee chargeable for such service shall be paid within a time to be
fixed before the process is issued. [B, C, GAU, G]
[Sub-rule (1) amended in All: Sub-rule (2) amended in MP; Sub-rule (2) substituted in
Bom, Cal, Gauhati & Gujarat].
Allahabad (Notfn No. 4084/35(a)-3(7); 24-7-1926).—In sub-rule (1) before the words
"Every process issued" prefix the words "Except as provided in Order IV rule 1(2)".
The following amendments were made by Maharashtra Gazette, dated 15-9-1983, (1-10-
1983), Part 4 Ka, Page 430; Goa Gazette, dated 12-10-1987, Extra., Section 1, No. 28, Page
392, dated 1-4-1987.
For the existing sub-rule (2) of rule 1 substitute the following:
"(2) Costs of service.—
The Court-fee chargeable for service of the process of the Court shall, except as
provided for in sub-rule (2) of rule 1 of Order IV, be paid when the process is applied for,
or within such time as may be fixed by the Court".
Calcutta (Notfn No. 1154-G of 17-1-1934).—Cancel sub-rule (2) and substitute therefor:
—
"(2) The Court-fee chargeable for such service shall be paid when the process is
applied for, or within such time, if any, as the Court may, when ordering its issue fix for
the purpose."
Gujarat.—Same as in Bombay substituting the words, "shall, except as provided for in

sub-rule (2) of rule 1 of Order IV" by the words, "other than the summons to the
defendants, shall".
Madhya Pradesh (Notfn No. 3409; 29-6-1943).—

In sub-rule (2) for the words "The Court-fee" substitute:—"Except as provided in Order IV,
rule 1(2) the Court-fee".

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R 2. Orders and notices how
served
© 2020 LexisNexis
THE FIRST SCHEDULE
R 2.
Orders and notices how served
All orders, notices and other documents required by this Code to be given to or served
on any person shall be served in the manner provided for the service of summons.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Use of forms in
appendices
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Use of forms in appendices
The forms given in the appendices, with such variation as the circumstances of each
case may require, shall be used for the purposes therein mentioned.
[Rule amended in Cal and Gauhati].
Calcutta (Notfn No. 7987-G of 18-4-1935).—After the word "appendices" insert the
following:— "or such other forms as may be prescribed by the High Court of Judicature
at Fort William in Bengal."
Punjab, Haryana and Chandigarh.— The following amendments were made by Haryana
After existing rule 3, add the following:—
"4. The provisions of rules 11(2), 17, 18, 19 and 21 of Order XLI1of the Code of Civil
Procedure 1908, shall apply mutatis mutandis to Civil Revision Petitions."
1 Corrected as per corrigendum published in Haryana Gaz., dated 4-8-1971, Pt. III (L.S.), p. 489,
originally published in Haryana Gaz., dated 10-11-1970, Pt. II (L.S.), p. 967.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Who may serve
processes of High Court
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER XLIX Chartered High Courts
R. 1.
Who may serve processes of High Court
Notice to produce documents, summonses to witnesses, and every other judicial

process, issued in the exercise of the original civil jurisdiction of the High Court, and
of its matrimonial, testamentary and intestate jurisdictions, except summonses to
defendants, writs of execution and notices to respondents may be served by the
attorneys in the suits, or by persons employed by them, or by such other persons as
the High Court, by any rule or order, directs.
Kerala (Notfn No. B1—3312/58; 7-4-1959).—
Omit the whole Order.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 2. Saving in respect of
Chartered High Courts
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 2.
Saving in respect of Chartered High Courts
Nothing in this schedule shall be deemed to limit or otherwise affect an rules in force
at the commencement of this Code for the taking of evidence or the recording of
judgments and orders by a Chartered High Court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 3. Application of rules
© 2020 LexisNexis
THE FIRST SCHEDULE
R. 3.
Application of rules
The following rules shall not apply to any Chartered High Court in the exercise of its
ordinary or extraordinary original Civil jurisdiction, namely:—
(1) rule 10 and rule 11, clauses (b) and (c), of Order VII;
(2) rule 3 of Order X;
(3) rule 2 of Order XVI;
(4) rules 5, 6, 8, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of
taking evidence) of Order XVIII;
(5) rules 1 to 8 of Order XX; and
(6) rule 7 of Order XXXIII (so far as relates to the making of a memorandum);
and rule 35 of Order XLI shall not apply to any such High Court in the exercise of its
appellate jurisdiction.
[Rule substituted in Bom & Gujarat, Last para amended in Cal; rule 4 added in Cal &
Gauhati].
No. 28, Page 392, dated 1-4-1987.
In Order XLIX, for the existing rule 3 and its marginal note, substitute the following as
rule 3 and marginal note and after rule 3, add new rule 4:—
"3. Application of Rules.—The following rules shall not apply to any Chartered High
Court in the exercise of its ordinary or extraordinary civil jurisdiction, namely:—
(1) Rule 19A. Order V,
(2) Rule 10, Clauses (b) and (c) of rule 11 and rule 14A of Order VI,
(3) Rule 14A of Order VI,
(4) Rule 3 of Order X,

(5) Rule 2 of Order XVI,
(6) Rules 5, 6, 9, 10, 11, 13, 14, 15 and 16 (so far as relates to the manner of taking
evidence) of Order XVIII,
(7) Rules 1 to 8 (both inclusive) of Order XX,
(8) Rule 72A of Order XXI,
(9) Rule 7 of Order XXXIII (so far as relates to the making of a memorandum), and
(10) Rule 38 of Order XLI,
and rules 31 and 35(4) of Order XLI shall not apply to any such High Court in the
exercise of its appellate jurisdiction.
"4. Powers of the Registrar of the High Court to accept Court-fees after the
presentation of the appeal.—Where on a memorandum of appeal presented to the High
Court within the time prescribed for the same the whole or any part of the fee
prescribed by the law for the time being in force relating to Court-fees has not been
paid, the Registrar may, in his discretion, allow the appellant to pay the whole or part, as
the case may be, of such Court-fee after the presentation of the memorandum of
appeal, and may admit the appeal to the register even though the Court-fee or part of it
may have been paid after the time prescribed for the presentation of the appeal."
Calcutta (Andaman and Nicobar Islands).—
The following amendments were made by Calcutta Gazette, dated 1-8-1974, Part 1, Page,
1099.
(i) In rule 3 delete the words "rule" before the figure "35" and insert the words and
figures "Rules 12, 14, 15 and" before the figure "35".
(ii) Clause (1) deleted.
"(iii) (Notfn No. 7376-G of 8-8-1940).—Add the following as new rule:—
"4. A Judge of the High Court may pronounce the written judgment or opinion of any
other Judge of the said Court signed by him when such Judge continues to be a Judge
of such Court but is prevented by absence or any other reason from pronouncing that
judgment or opinion in open Court".
Gauhati.—Insert rule 4 as in Calcutta (ii).
Gujarat.—(i) Substitute rule as in Bombay renumbering rules (2), (3), (4), (5), (6), (7), (8),
(9) and (10) as rules (la), (lb), (2),(3),(4),(5),(6) and (7) respectively.
(ii) Add rule 4 as in Bombay with the following modifications: (a) omit the words "to the
High Court" and "after the presentation of the memorandum of appeal".
(b) for the words "Court-fee or part of it may have been paid" substitute "subsequent
payment of Court-fee may have been made".
COMMENT.—
The rule 3 applies to the trial of suits, but the question is not one merely of power but of
exercise of judicial discretion in the exercise of that power. The function of judicial trial
is to hear and decide a matter in contest between the parties, in open Court, in the
presence of parties, according to the procedure prescribed for investigation of the
dispute and the rules of evidence. The conclusion of the Court ought normally to be
supported by reasons duly recorded. This requirement transcends all technical rules of
procedure.1
1 Swarnlata v Harendra, AIR 1969 SC 1167 (1170) : (1969) 1 SCC 709 .

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Provincial Small Cause
Courts
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER L Provincial Small Cause Courts
R. 1.
Provincial Small Cause Courts
The provisions hereinafter specified shall not extend to Courts constituted under the
Provincial Small Cause Courts Act, 1887 (IX of 1887), 1[or under the Berar Small
Cause Courts Law, 1905], or to Courts exercising the jurisdiction of a Court of Small
Causes 2[under the said Act or Law], 3[or to Courts]; in 4[any part of India to which the
said Act does not extend] exercising a corresponding jurisdiction], that is to say—
(a) so much of this schedule as relates to—
(i) suits excepted from the cognizance of a Court of Small Causes or the
execution of decrees in such suits;
(ii) the execution of decrees against immovable property or the interest of a

partner in partnership property;
(iii) the settlement of issues; and
(b) the following rules and orders,—
Order II, rule 1 (frame of suits);
Order X, rule 3 (record of examination of parties);
Order XV, except so much of rule 4 as provides for the pronouncement at once of
judgment;
Order XVIII, rules 5 to 12 (evidence);
Orders XLI to XLV (appeals);
Order XLVII, rules 2,3,5,6,7, (review);
Order LI.
Kerala (Notfn No. BI-3312/58; 7-4-1955).—
(a) Substitute the heading by the following:—
"Suits Triable as Small Causes".
(b) Substitute for the first para the following:—
"1. The provisions contained hereinafter specified shall not extend to Civil Courts
exercising Small Cause Jurisdiction"—(9-6-1959)
(c) Delete the words "Order XLI" from clause (b).

STATE AMENDMENTS
Uttar Pradesh.— The following amendments were made by President's Act 19 of 1973,
Section 3 (w.e.f. 20-9-1972).
In its application to the State of Uttar Pradesh, in rule (1) of Order L, for the words
"Order XV, except so much of rule 4 as provides for pronouncement at once of
judgment", in clause (b), substitute the words "Order XV, except so much of rule 4 as
provides for the pronouncement at once of judgment and rules 5".
1 Ins. by Berar Laws Act 4 of 1941, section 2 and Sch III.

2 Subs. for "under that Act" by Berar Laws Act 4 of 1941, section 2 and Schedule III.
3 Ins. by Act 2 of 1951 section 18.
4 Subs. for "Part B States" by AL (No. 2) Order, 1956.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / R. 1. Presidency Small Cause
Courts
© 2020 LexisNexis
THE FIRST SCHEDULE
ORDER LI Presidency Small Cause Courts
R. 1.
Presidency Small Cause Courts
Save as provided in rules 22 and 23 of Order V, rules 4 and 7 of Order XXI, and rule 4
of Order XXVI, and by the Presidency Small Cause Courts Act, 1882 (XV of 1882), this
schedule shall not extend to any suit or proceeding in any Court of Small Causes
established in the towns of Calcutta, Madras and Bombay.
[Rule amended in Gujarat; Or 51 omitted in Kerala; Or 52 added in All, Bom and Gujarat].
Bombay.—In sub-rule (1) after the proviso insert:
"Explanation.—The copy of decree referred to in sub-rule (1) of rule (1) above shall
include a deemed decree as provided in Order XX in clause (b) in sub-rule (2) of rule 6-
A". Mah. Govt. Gaz., 31-12-1987 Pt. IV Ka p.788.
Gujarat.—For "in the towns of Calcutta, Madras and Bombay, substitute "in the cities of
Ahmedabad, Bombay, Calcutta and Madras". (10-3-1962).
Kerala (Notfn No. B1-3312/58; 7-4-1959).—
Omit Order LI.
Tamil Nadu.—
The following amendments were made by Tamil Nadu Act 43 of 1979, Section 4, dated 1-
1-1980.
In Order LI, in R. 1 for the expression "and rule 4 of Order XXVI" substitute the
expression "Rule 4 of Order XXVI and Order XXXIII".
Allahabad (Notfn No. 1465/35(a)-5(4); 1-6-1918). — The following shall be added as

Order LII:—
"ORDER LII
1. Rule 38 of Order XLI shall apply, so far as may be, to proceedings under Section 115
of the code."

Same as that of Allahabad.
Madras and Pondicherry.— The following amendments were made by Tamil Nadu
Gazette, dated 6-8-1980, Part III, Section 2, Page 202.
After Order LI, add Order LII as follows:—
"ORDER LII—LODGING OF CAVEAT

1. Any person claiming a right to appear before the Court on the hearing of an
application which is expected to be made or has been made in a suit, appeal, revision
or any proceeding instituted or about to be instituted in a Court to which the Code
applies, may lodge a Caveat in the Court. The Caveat shall be in the form prescribed in
Appendix D-1. The Caveat shall be accompanied by—
(a) as many copies of the notice of caveat as will be required to be served on the
applicant or applicants;
(b) the Court-fees prescribed for the caveat; and
(c) the fees prescribed for service of such notice of Caveat.
2. Every Court shall maintain a Register hereafter called the Register of Caveats
containing the following particulars, namely:—
(1) Serial Number.
(2) Date of presentation of Caveat.
(3) Date up to which the caveat will remain in force.
(4) Name and address of Caveator.
(5) Address for service of the Caveator within the Jurisdiction of the Court.
(6) Name and address of the Pleader, if any, for the Caveator.
(7) The number of the proceedings if any, on the file of the Court in which the
caveat is filed.
(8) The number of the proceedings in the lower Court against which further
proceedings are taken or contemplated to be taken in the appellate or revisional
Court (This will not apply to the Court of first instance).
(9) Name and address of the applicant or petitioner or the expected applicant or
petitioner.
(10) Date of service on the applicant or petitioner or expected applicant or petitioner

by the Caveator.
(11) Signature of the Caveator or his pleader, if any.
3. As soon as a person lodges a Caveat as provided in rule 1 above, an entry shall be

made in the Register of Caveats in the presence of the Caveator himself or his pleader,
who shall sign the register aforesaid.
4. When a person makes an application for any interlocutory orders in a suit, appeal,
revision or any other proceedings, he shall look into the Register of Caveats and make
an endorsement in the application as to whether or not caveat has been entered with
respect to his application as verified from the Register of Caveats.
5. As soon as the Caveator lodges a Caveat, he shall forthwith serve notice of the
Caveat by registered post acknowledgment due on the person by whom the application
has been made or is expected to be made, and file proof of such service.
6. Where after a Caveat has been lodged any application is filed in a suit, appeal,
revision or any other proceedings, the Court shall serve a notice of application on the
Pleader for the Caveator, if any, or on the Caveator in the manner provided for service
on a defendant respondent or opposite party, of summons to appeal. All provisions
applicable to such summons shall apply to the service of such notice:
Provided that at the time when an application comes up for hearing, the Caveator or his
Pleader takes notice, it shall not be necessary for the Court to serve a notice on the
Caveator.
7. (a) In respect of proceedings in the subordinate Civil Courts in the State and in the
appellate jurisdiction of the High Court of Judicature at Madras, Court-fee payable on
the caveat shall be that provided for in the Tamil Nadu Court-fees and Suits Valuation
Act, 1955.
(b) In respect of the proceedings on the file of the Original Side of the High Court, the
said fee shall be that provided for in the High Court-fees rules.
8. The fees for service of notice of the caveat shall be those provided for in the rules of
the High Court, Madras, Original Side, 1956, or in the rules of the High Court, Madras,
Appellate Side, 1965 or in the rules relating to service and execution of processes
made under subsection (1) of Section 80 of the Tamil Nadu Court-fees and Suits
Valuation Act, 1955, as the case may be.
9. If the Caveat is not lodged in accordance with these rules, it is liable to be rejected in
limine.
APPENDIX D-1
Form of Caveat
IN THE COURT OF
Application/Petition No ............................. of 19 .......... .............. in ........................

............... . of 19 ........................ No ........... .... .... ..... Caveator
Versus
........................ ........................ Applicant/Petitioner or

expected applicant or
petitioner.
The address of the caveator for service of notice within the jurisdiction of this Court is
........................
The address of the applicant/petitioner or expected applicant/petitioner for service is

........................
Let nothing be done in the above matter without notice to the Caveator.
The Caveator abovenamed undertakes to forthwith serve a notice of the Caveat by

Registered Post with acknowledgment due on the applicant/petitioner or expected
applicant/petitioner and file proof of such service.
DATED ........................
Counsel for Caveator
CAVEATOR."

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 1. Short title, extent
and commencement.—
© 2020 LexisNexis
APPENDIX
The Limitation Act, 1963
(Act No. 36 of 1963)
[5th October, 1963]
An Act to consolidate and amend the law for the limitation of suits and other proceedings
and for purposes connected therewith.
BE it enacted by Parliament in the Fourteenth Year of the Republic of India as follows:—
PART I PRELIMINARY
SECTION 1. Short title, extent and commencement.—
(1) This Act may be called the Limitation Act, 1963.
(2) It extends to the whole of India except, the State of Jammu and Kashmir.
(3) It shall come into force on such date1 as the Central Government may, by
notification in the Official Gazette, appoint.
1 1st January, 1964; Vide Notification No. SO. 3118, dated 29.10.1963, see Gazette of India,
Part II, Section 3(ii), p 3918.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 2. Definitions.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
PART I PRELIMINARY
SECTION 2. Definitions.—
In this Act, unless the context otherwise requires,—
(a) "applicant" includes—
(i) a petitioner;
(ii) any person from or through whom an applicant derives his right to apply;
(iii) any person whose estate is represented by the applicant as executor,

administrator or other representative;
(b) "application" includes a petition;
(c) "bill of exchange" includes a hundi and a cheque;
(d) "bond" includes any instrument whereby a person obliges himself to pay money
to another, on condition that the obligation shall be void if a specified act is
performed, or is not performed, as the case may be;
(e) "defendant" includes—
(i) any person from or through whom a defendant derives his liability to be
sued;
(ii) any person whose estate is represented by the defendant as executor,

(f) "easement" includes a right not arising from contract, by which one person is
entitled to remove and appropriate for his own profit any part of the soil
belonging to another or anything growing in, or attached to, or subsisting, upon
the land of another;
(g) "foreign country" means any country other than India;

(h) "good faith"—nothing shall be deemed to be done in good faith which is not done
with due care and attention;
(i) "plaintiff includes—
(i) any person from or through whom a plaintiff derives his right to sue;
(ii) any person whose estate is represented by the plaintiff as executor,

(j) "period of limitation" means the period of limitation prescribed for any suit,
appeal or application by the Schedule, and "prescribed period" means the period
of limitation computed in accordance with the provisions of this Act;
(k) "promissory note" means any instrument whereby the maker engages absolutely
to pay a specified sum of money to another at a time therein limited, or on
demand, or at sight;
(l) "suit" does not include an appeal or an application;
(m) "tort" means a civil wrong which is not exclusively the breach of a contract or
the breach of a trust;
(n) "trustee" does not include a benamidar, a mortgagee remaining in possession

after the mortgage has been satisfied or a person in a wrongful possession
without title.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 3. Bar of limitation.
—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
PART II LIMITATION OF SUITS, APPEALS AND APPLICATIONS
SECTION 3. Bar of limitation.—
(1) Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit

instituted, appeal preferred, and application made after the prescribed period
shall be dismissed, although limitation has not been set up as a defence.
(2) For the purposes of this Act,—
(a) a suit is instituted,—
(i) in an ordinary case, when the plaint is presented to the proper

officer;
(ii) in the case of a pauper, when his application for leave to sue as a
pauper is made; and
(iii) in the case of a claim against a company which is being wound up

by the court, when the claimant first sends in his claim to the
official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a
separate suit and shall be deemed to have been instituted—
(i) in the case of a set off, on the same date as the suit in which the
set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter
claim is made in court;
(c) an application by notice of motion in a High Court is made when the

application is presented to the proper officer of that court.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 4. Expiry of
prescribed period when court is closed.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 4. Expiry of prescribed period when court is closed.—
Where the prescribed period for any suit, appeal or application expires on a day when
the court is closed, the suit, appeal or application may be instituted, preferred or made
on the day when the court reopens.
Explanation.—A court shall be deemed to be closed on any day within the meaning of
this section if during any part of its normal working hours it remains closed on that day.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 5. Extension of
prescribed period in certain cases.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 5. Extension of prescribed period in certain cases.—
Any appeal or any application, other than an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5 of 1908) may, be admitted after the
prescribed period, if the appellant or the applicant satisfies the court that he had
sufficient cause for not preferring the appeal or making the application within such
period.
Explanation.—The fact that the appellant or the applicant was misled by any order,
practice or judgment of the High Court in ascertaining or computing the prescribed
period may be sufficient cause within the meaning of this section.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 6. Legal disability.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 6. Legal disability.—
(1) Where a person entitled to institute a suit or make an application for the
execution of a decree is, at the time from which the prescribed period is to be
reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the same period after the disability has ceased, as would
otherwise have been allowed from the time specified therefore in the third
column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be
reckoned, affected by two such disabilities, or where, before his disability has
ceased, he is affected by another disability, he may institute the suit or make the
application within the same period after both disabilities have ceased, as would
otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal
representative may institute the suit or make the application within the same
period after the death, as would otherwise have been allowed from the time so
specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the
death of the person whom he represents, affected by any such disability, the
rules contained in subsections (1) and (2) shall apply.
(5) Where a person under disability dies after the disability ceases but within the
period allowed to him under this section, his legal representative may institute
the suit or make the application within the same period after the death, as would
otherwise have been available to that person had he not died.
Explanation.—For the purposes of this section, 'minor' includes a child in the womb.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 7. Disability of one
of several persons.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 7. Disability of one of several persons.—
Where one of several persons jointly entitled to institute a suit or make an application
for the execution of a decree is under any such disability, and a discharge can be given
without the concurrence of such person, time will run against them all; but, where no
such discharge can be given, time will not run as against any of them until one of them
becomes capable of giving such discharge without the concurrence of the others or
until the disability has ceased.
Explanation I.—This section applies to a discharge from every kind of liability, including
a liability in respect of any immovable property.
Explanation II.—For the purposes of this section, the manager of a Hindu undivided
family governed by the Mitakshara law shall be deemed to be capable of giving a
discharge without the concurrence of the other members of the family only if he is in
management of the joint family property.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 8. Special
exceptions.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 8. Special exceptions.—
Nothing in Section 6 or in Section 7 applies to suits to enforce rights of pre-emption, or

shall be deemed to extend, for more than three years from the cessation of the
disability or the death of the person affected thereby, the period of limitation for any
suit or application.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 9. Continuous
running of time.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 9. Continuous running of time.—
Where once time has begun to run, no subsequent disability or inability to institute a
suit or make an application stops it:
Provided that where letters of administration to the estate of a creditor have been
granted to his debtor, the running of the period of limitation for a suit to recover the
debt shall be suspended while the administration continues.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 10. Suits against
trustees and their representatives.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 10. Suits against trustees and their representatives.—
Notwithstanding anything contained in the foregoing provisions of this Act, no suit

against a person in whom property has become vested in trust for any specific
purpose, or against his legal representatives or assigns (not being assigns for valuable
consideration), for the purpose of following in his or their hands such property, or the
proceeds thereof, or for an account of such property or proceeds, shall be barred by
any length of time.
Explanation.—For the purposes of this section any property comprised in a Hindu,

Muslim or Buddhist religious or charitable endowment shall be deemed to be property
vested in trust for a specific purpose and the manager of the property shall be deemed
to be the trustee thereof.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 11. Suits on
contracts entered into outside the territories to which the Act extends.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 11. Suits on contracts entered into outside the territories to which
the Act extends.—
(1) Suits instituted in the territories to which this Act extends on contracts entered
into in the State of Jammu and Kashmir or in a foreign country shall be subject
to the rules of limitation contained in this Act.
(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign
country shall be a defence to a suit instituted in the said territories on a contract
entered into in that State or in a foreign country unless—
(a) the rule has extinguished the contact; and
(b) the parties where domiciled in that State or in the foreign country during
the period prescribed by such rule.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 12. Exclusion of
time in legal proceedings.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
PART III COMPUTATION OF PERIOD OF LIMITATION
SECTION 12. Exclusion of time in legal proceedings.—
(1) In computing the period of limitation for any suit, appeal or application, the day
from which such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to
appeal or for revision or for review of a judgment, the day on which the judgment
complained of was pronounced and the time requisite for obtaining a copy of
the decree, sentence or order appealed from or sought to be revised or reviewed
shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or

where an application is made for leave to appeal from a decree or order, the
time requisite for obtaining a copy of the judgment 2[***] shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award,
the time requisite for obtaining a copy of the award shall be excluded.
Explanation.—In computing under this section the time requisite for obtaining a
copy of a decree or an order, any time taken by the court to prepare the decree
or order before an application for a copy thereof is made shall not be excluded.
2 The words "on which the decree or order is founded" omitted by the Code of Civil Procedure
(Amendment) Act, 1999 (46 of 1999), Sec. 33 (w.e.f. 1-7-2002).

time in cases where leave to sue or appeal as a pauper is applied for.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 13. Exclusion of time in cases where leave to sue or appeal as a

pauper is applied for.—
In computing the period of limitation prescribed for any suit or appeal in any case
where an application for leave to sue or appeal as a pauper has been made and
rejected, the time during which the applicant has been prosecuting in good faith his
application for such leave shall be excluded, and the court may, on payment of the
court fees prescribed for such suit or appeal, treat the suit or appeal as having the
same force and effect as if the court fees had been paid in the first instance.

time of proceeding bona fide in court without jurisdiction.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 14. Exclusion of time of proceeding bona fide in court without

jurisdiction.—
(1) In computing the period of limitation for any suit the time during which the
plaintiff has been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision, against the
defendant shall be excluded, where the proceeding relates to the same matter in
issue and is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which
the applicant has been prosecuting with due diligence another civil proceeding,
whether in a court of first instance or of appeal or revision, against the same
party for the same relief shall be excluded, where such proceeding is prosecuted
in good faith in a court which, from defect of jurisdiction or other cause of a like
nature, is unable to entertain it.
(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil
Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in
relation to a fresh suit instituted on permission granted by the court under rule 1
of that Order, where such permission is granted on the ground that the first suit
must fail by reason of a defect in the jurisdiction of the court or other cause of a
like nature.
Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding was pending,
the day on which that proceeding was instituted and the day on which it
ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be

prosecuting a proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a

cause of a like nature with defect of jurisdiction.

time in certain other cases.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 15. Exclusion of time in certain other cases.—
(1) In computing the period of limitation of any suit or application for the execution
of a decree, the institution or execution of which has been stayed by injunction
or order, the time of the continuance of the injunction or order, the day on which
it was issued or made, and the day on which it was withdrawn, shall be
excluded.
(2) In computing the period of limitation for any suit of which notice has been given,
or for which the previous consent or sanction of the Government or any other
authority is required, in accordance with the requirements of any law for the
time being in force, the period of such notice or, as the case may be, the time
required for obtaining such consent or sanction shall be excluded.
Explanation.—In excluding the time required for obtaining the consent or sanction of the
Government or any other authority, the date on which the application was made for
obtaining the consent or sanction and the date of receipt of the order of the
Government or other authority shall both be counted.
(3) In computing the period of limitation for any suit or application for execution of
a decree by any receiver or interim receiver appointed in proceedings for the
adjudication of a person as an insolvent or by any liquidator or provisional
liquidator appointed in proceedings for the winding up of a company, the period
beginning with the date of institution of such proceeding and ending with the
expiry of three months from the date of appointment of such receiver or
liquidator, as the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a purchaser at
a sale in execution of a decree, the time during which a proceeding to set aside
the sale has been prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the
defendant has been absent from India and from the territories outside India
under the administration of the Central Government, shall be excluded.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 16. Effect of death
on or before the accrual of the right to sue.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 16. Effect of death on or before the accrual of the right to sue.—
(1) Where a person who would, if he were living, have a right to institute a suit or
make an application dies before the right accrues, or where a right to institute a
suit or make an application accrues only on the death of a person, the period of
limitation shall be computed from the time when there is a legal representative
of the deceased capable of instituting such suit or making such application.
(2) Where a person against whom, if he were living, a right to institute a suit or
make an application would have accrued dies before the right accrues, or where
a right to institute a suit or make an application against any person accrues on
the death of such person, the period of limitation shall be computed from the
time when there is a legal representative of the deceased against whom the
plaintiff may institute such suit or make such application.
(3) Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of
preemption or to suits for the possession of immovable property or of a
hereditary office.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 17. Effect of fraud
or mistake.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 17. Effect of fraud or mistake.—
(1) Where, in the case of any suit or application for which a period of limitation is
prescribed by this Act,—
(a) the suit or application is based upon the fraud of the defendant or
respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is

founded is concealed by the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or
applicant has been fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has
discovered the fraud or the mistake or could, with reasonable diligence, have
discovered it; or in the case of a concealed document, until the plaintiff or the
applicant first had the means of producing the concealed document or
compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or
application to be made to recover or enforce any charge against, or set aside
any transaction affecting, any property which—
(i) in the case of fraud, has been purchased for valuable consideration by a
person who was not a party to the fraud and did not at the time of the
purchase know, or have reason to believe, that any fraud had been
committed, or
(ii) in the case of mistake, has been purchased for valuable consideration
subsequently to the transaction in which the mistake was made, by a
person who did not know, or have reason to believe, that the mistake had
been made, or
(iii) in the case of a concealed document, has been purchased for valuable
consideration by a person who was not a party to the concealment and,
did not at the time of purchase know, or have reason to believe, that the
document had been concealed.
(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a
decree or order within the period of limitation, the court may, on the application
of the judgment-creditor made after the expiry of the said period extend the
period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery
of the fraud or the cessation of force, as the case may be.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 18. Effect of
acknowledgment in writing.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 18. Effect of acknowledgment in writing.—
(1) Where, before the expiration of the prescribed period for a suit or application in
respect of any property or right, an acknowledgment of liability in respect of
such property or right has been made in writing signed by the party against
whom such property or right is claimed, or by any person through whom he
derives his title or liability, a fresh period of limitation shall be computed from
the time when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may
be given of the time when it was signed; but subject to the provisions of the
Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be
received.
(a) an acknowledgment may be sufficient though it omits to specify the

exact nature of the property or right, or avers that the time for payment,
delivery, performance or enjoyment has not yet come or is accompanied
by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a
claim to set-off, or is addressed to a person other than a person entitled
to the property or right;
(b) the word "signed" means signed either personally or by an agent duly
authorised in this behalf; and
(c) an application for the execution of a decree or order shall not be deemed
to be an application in respect of any property or right.

payment on account of debt or of interest on legacy.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 19. Effect of payment on account of debt or of interest on legacy.—
Where payment on account of a debt or of interest on a legacy is made before the

expiration of the prescribed period by the person liable to pay the debt or legacy or by
his agent duly authorised in this behalf, a fresh period of limitation shall be computed
from the time when the payment was made:
Provided that, save in the case of payment of interest made before the 1 st day of
January, 1928, an acknowledgment of the payment appears in the handwriting of, or in
a writing signed by, the person making the payment.
(a) where mortgaged land is in the possession of the mortgagee, the receipt of the
rent or produce of such land shall be deemed to be a payment;
(b) "debt" does not include money payable under a decree or order of a Court.

acknowledgment or payment by another person.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 20. Effect of acknowledgment or payment by another person.—
(1) The expression "agent duly authorised in this behalf in Sections 18 and 19 shall,
in the case of a person under disability, include his lawful guardian, committee
or manager or an agent duly authorised by such guardian, committee or
manager to sign the acknowledgment or make the payment.
(2) Nothing in the said sections renders one of several joint contractors, partners,
executors or mortgagees chargeable by reason only of a written
acknowledgment signed by, or of a payment made by, or by the agent, of, any
other or others of them.
(3) For the purposes of the said sections,—
(a) an acknowledgment signed or a payment made in respect of any liability

by or by the duly authorised agent of, any limited owner of property who
is governed by Hindu law, shall be a valid acknowledgment or payment,
as the case may be, against a reversioner succeeding to such liability;
and
(b) where a liability has been incurred by or on behalf of a Hindu undivided

family as such, an acknowledgment or payment made by, or by the duly
authorised agent of, the manager of the family for the time being shall be
deemed to have been made on behalf of the whole family.

substituting or adding new plaintiff or defendant.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 21. Effect of substituting or adding new plaintiff or defendant.—
(1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or
added, the suit shall, as regards him, be deemed to have been instituted when
he was so made a party:
Provided that where the Court is satisfied that the omission to include a new plaintiff or
defendant was due to a mistake made in good faith it may direct that the suit as
regards such plaintiff or defendant shall be deemed to have been instituted on any
earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or
substituted owing to assignment or devolution of any interest during the
pendency of a suit or where a plaintiff is made a defendant or a defendant is
made a plaintiff.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 22. Continuing
breaches and torts.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 22. Continuing breaches and torts.—
In the case of a continuing breach of contract or in the case of a continuing tort, a fresh
period of limitation begins to run at every moment of the time during which the breach
or the tort, as the case may be, continues.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 23. Suits for
compensation for acts not actionable without special damage.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 23. Suits for compensation for acts not actionable without special
damage.—
In the case of a suit for compensation for an act which does not give rise to a cause of
action unless some specific injury actually results therefrom, the period of limitation
shall be computed from the time when the injury results.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 24. Computation of
time mentioned in instruments.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 24. Computation of time mentioned in instruments.—
All instruments shall for the purposes of this Act be deemed to be made with reference
to the Gregorian calendar.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 25. Acquisition of
easements by prescription.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
PART IV ACQUISITION OF OWNERSHIP BY POSSESSION
SECTION 25. Acquisition of easements by prescription.—
(1) Where the access and use of light or air to and for any building have been
peaceably enjoyed therewith as an easement, and as of right, without
interruption, and for twenty years, and where any way or watercourse or the use
of any water or any other easement (whether affirmative or negative) has been
peaceably and openly enjoyed by any person claiming title thereto as an
easement and as of right without interruption and for twenty years, the right to
such access and use of light or air, way, watercourse, use of water, or other
easement shall be absolute and indefeasible.
(2) Each of the said periods of twenty years shall be taken to be a period ending
within two years next before the institution of the suit wherein the claim to
which such period relates is contested.
(3) Where the property over which a right is claimed under sub-section (1) belongs
to the Government that sub-section shall be read as if for the words "twenty
years" the words "thirty years" were substituted.
Explanation.—Nothing is an interruption within the meaning of this section, unless

where there is an actual discontinuance of the possession or enjoyment by reason of
an obstruction by the act of some person other than the claimant, and unless such
obstruction is submitted to or acquiesced in for one year after the claimant has notice
thereof and of the person making or authorising the same to be made.
STATE AMENDMENT
Orissa.—Section 25 is repealed.
[Vide Orissa Act 24 of 1967, sec. 3 (w.e.f. 31-8-1967)].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 26. Exclusion in
favour of reversioner of servient tenement.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 26. Exclusion in favour of reversioner of servient tenement.—
Where any land or water upon, over or from, which any easement has been enjoyed or
derived has been held under or by virtue of any interest for life or in terms of years
exceeding three years from the granting thereof the time of the enjoyment of such
easement during the continuance of such interest or term shall be excluded in the
computation of the period of twenty years in case the claim is, within three years next
after the determination of such interest or term, resisted by the person entitled on such
determination to the said land or water.
STATE AMENDMENT
Orissa.—Section 26 is repealed.
[Vide Orissa Act 24 of 1967, sec. 3 (w.e.f. 31-8-1967)].

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 27. Extinguishment
of right to property.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 27. Extinguishment of right to property.—
At the determination of the period hereby limited to any person for instituting a suit for
possession of any property, his right to such property shall be extinguished.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 28. Amendment of
certain Acts.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
PART V Miscellaneous
SECTION 28. Amendment of certain Acts.—
[Repealed by the Repealing and Amending Act, 1974 (56 of 1974), S. 2 and First Sch.
(w.e.f. 20-12-1974).]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 29. Savings.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 29. Savings.—
(1) Nothing in this Act shall affect Section 25 of the Indian Contract Act, 1872 (9 of
1872).
(2) Where any special or local law prescribes for any suit, appeal or application a
period of limitation different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply as if such period were the period prescribed
by the Schedule and for the purpose of determining any period of limitation
prescribed for any suit, appeal or application by any special or local law, the
provisions contained in Sections 4 to 24 (inclusive) shall apply only in so far as,
and to the extent to which, they are not expressly excluded by such special or
local law.
(3) Save as otherwise provided in any law for the time being in force with respect to
marriage and divorce, nothing in this Act shall apply to any suit or other
proceeding under any such law.
(4) Sections 25 and 26 and the definition of "easement" in Section 2 shall not apply
to cases arising in the territories to which the Indian Easements Act, 1882 (5 of
1882), may for the time being extend.

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 30. Provision for
suits, etc., for which the prescribed period is shorter than the period prescribed by the Indian Limitation Act,
1908.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 30. Provision for suits, etc., for which the prescribed period is
shorter than the period prescribed by the Indian Limitation Act, 1908.—
Notwithstanding anything contained in this Act,—
(a) any suit for which the period of limitation is shorter than the period of limitation
prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be instituted
within a period of 3[seven years] next after the commencement of this Act or
within the period prescribed for such suit by the Indian Limitation Act, 1908 (9 of
1908), whichever period expires earlier:
4[Provided that if in respect of any such suit, the said period of seven years
expires earlier than the period of limitation prescribed therefor under the Indian
Limitation Act, 1908 (9 of 1908), and the said period of seven years together
with so much of the period of limitation in respect of such suit under the Indian
Limitation Act, 1908 (9 of 1908), as has already expired before the
commencement of this Act is shorter than the period prescribed for such suit
under this Act, then, the suit may be instituted within the period of limitation
prescribed therefor under this Act;]
(b) any appeal or application for which the period of limitation is shorter than the
period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908),
may be preferred or made within a period of ninety days next after the
commencement of this Act or within the period prescribed for such appeal or
application by the Indian Limitation Act, 1908, whichever period expires earlier.
STATE AMENDMENT
(Modification under Article 371F of the Constitution of India)
Sikkim.—For section 30, substitute the following section, namely:—
"30. Notwithstanding anything contained in this Act, any suit, appeal or application,
which could be instituted, preferred or made before the commencement of this Act and
for which the period of limitation is shorter than the period provided therefor by the law
in Sikkim immediately before such commencement, may be instituted, preferred or
made within the period provided by such law."
[Vide Gazette of India, Extra., Pt. II, Sec. 3(ii), p. 4 (No. 329), dated 29th July, 1983 (w.e.f.
22-7-1983).]
3 Substituted by Act 10 of 1969, section 2(a), for "five years" (w.e.f. 26-3-1969).
4 Inserted, by Act 10 of 1969, section 2(b), (w.e.f. 26-3-1969).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / SECTION 31. Provisions as to
barred or pending suits, etc.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
SECTION 31. Provisions as to barred or pending suits, etc.—
Nothing in this Act shall,—
(a) enable any suit, appeal or application to be instituted, preferred or made, for
which the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of
1908), expired before the commencement of this Act; or
(b) affect any suit, appeal or application instituted, preferred or made before, and
pending at, such commencement.
STATE AMENDMENT
(Modification under Article 371F of the Constitution of India)
Sikkim.—In section 31, in clause (a), for the words "Indian Limitation Act, 1908 (9 of
1908), expired before the commencement of this Act", substitute the words "law in
force in Sikkim immediately before the commencement of this Act, expired before such
commencement".
[Vide Gazette of India, Extra., Pt. II, Sec. 3(h), p. 4 (No. 329), dated 29th July, 1983 (w.e.f.
22-7-1983).]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / Section 32. Repeal.—
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
Section 32. Repeal.—
[Repealed by the Repealing and Amending Act, 1974 (Act 56 of 1974). S. 2 and Sch. I
(w.e.f. 20-12-1974).]

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / The Schedule PERIODS OF
LIMITATION
© 2020 LexisNexis
APPENDIX
(Act No. 36 of 1963)
[5th October, 1963]
The Schedule PERIODS OF LIMITATION
[See Sections 2(f) and 3]
First Division—Suits
Description of suit Period of limitation Time from which period

begins to run.
Part I—Suits Relating to Accounts
1. For the balance due on Three years The close of the year in
a mutual, open and which the last item
current account, where admitted or proved is
there have been entered in the account;
reciprocal demands such year to be
between the parties. computed as in the
account.
2. Against a factor for an Three years When the account is,
account. during the continuance
of the agency,
demanded and refused
or, where no such
demand is made, when
the agency terminates.
3. By a principal against Three years When the account is,
his agent for movable during the continuance
property received by of the agency,
the latter and not demanded and refused
accounted for. or, where no such
demand is made, when
the agency terminates.
4. Other suits by Three years When the neglect or
principals against misconduct becomes
agents for neglect or known to the plaintiff.
misconduct.
5. For an account and a Three years The date of the
share of the profits of a dissolution.
dissolved partnership.
Part II—Suits Relating to Contracts
6. For a Seaman's wages Three years The end of the voyage
during which the
wages are earned.
7. For wages in the case Three years When the wages
of any other person. accrue due.
8. For the price of food or Three years When the food or drink
drink sold by the is delivered.
keeper of a hotel,
tavern or lodging
house.
9. For the price of Three years When the price
lodging. becomes payable.
10. Against a carrier for Three years When the loss or injury
compensation for occurs.
losing or injuring
goods.
11. Against a carrier for Three years When the goods ought
compensation for non- to be delivered.
delivery of, or delay in
delivering, goods.
12. For the hire of animals, Three years When the hire
vehicles, boats or becomes payable.
house-hold furniture.
13. For the balance of Three years When the goods ought
money advanced in to be delivered.
payment of goods to
be delivered.
14. For the price of goods Three years The date of the delivery
sold and delivered of the goods.
where no fixed period
of credit is agreed
upon.
15. For the price of goods Three years When the period of
sold and delivered to credit expires.
be paid for after the
expiry of a fixed period
of credit.
16. For the price of goods Three years When the period of the
sold and delivered to proposed bill elapses.
be paid for by a bill of
exchange, no such bill
being given.
17. For the price of trees or Three years The date of the sale.
growing crops sold by
the plaintiff to the
defendant where no
fixed period of credit is
agreed upon.
18. For the price of work Three years When the work is done.
done by the plaintiff for
the defendant at his
request, where no time
has been fixed for
payment.
19. For money pay-able for Three years When the loan is made.
money lent.
20. Like suit when the Three years When the cheque is
lender has given a paid.
cheque for the money
21. For money lent under Three years When the loan is made.
an agreement that it
shall be payable on
demand
22. For money deposited Three years When the demand is
under an agreement made.
that it shall be payable
on demand, including
money of a customer
in the hands of his
banker so payable.
23. For money payable to Three years When the money is
the plaintiff for money paid.
paid for the defendant.
24 For money payable by Three years When the money is
the defendant to the received.
plaintiff for money
received by the
defendant, for the
plaintiff's use.
25. For money payable for Three years When the interest
interest upon money becomes due.
due from the defendant
to the plaintiff.
26. For money payable to Three years When the accounts are
the plaintiff for money stated in writing signed
found to be due from by the defendant or his
the defendant to the agent duly authorised
plaintiff on accounts in this behalf, unless
stated between them. where the debt is, by a
simultaneous
agreement in writing
signed as aforesaid,
made payable at a
future time, and then
when that time arrives.
27 For compensation for Three years When the time
breach of a promise to specified arrives or the
do anything at a contingency happens.
specified time, or upon
the happening of a
specified contingency.
28 On a single bond, Three years The day so specified.
where a day is
specified for payment.
29. On a single bond, Three years The date of executing
where no such day is the bond.
specified.
30 On a bond subject to a Three years When the condition is
condition. broken.
31. On a bill of exchange or Three years When the bill or note
promissory note falls due.
payable at a fixed time
after date.
32. On a bill of exchange Three years When the bill is
payable at sight, or presented.
after sight, but not at a
fixed time.
33. On a bill of exchange Three years When the bill is
accepted payable at a presented at that
particular place. place.
34. On a bill of exchange or Three years When the fixed time
promissory note expires.
payable at a fixed time
after sight or after
demand.
35. On a bill of exchange or Three years The date of the bill or
promissory note note.
payable on demand
and not accompanied
by any writing
restraining or
postponing the right to
sue.
36. On a promissory note Three years The expiration of the
or bond payable by first term of payment
instalments. as to the part then
payable; and for the
other parts, the
expiration of the
respective terms of
payment.
37. On a promissory note Three years When the default is
or bond payable by made, unless where
instalments, which the payee or obligee
provides that, if default waives the benefit of
be made in payment of the provision and then
one or more when fresh default is
made in respect of
instalments, the whole which there is no such
shall be due. waiver.
38. Art. 38. On a Three years The date of the delivery
promissory note given to the payee.
by the maker to a third
person to be delivered
to the payee after a
certain event should
happen.
39. On a dishonoured Three years When the notice is
foreign bill where given.
protest has been made
and notice given.
40. By the payee against Three years The date of the refusal
the drawer of a bill of to accept.
exchange, which has
been dishonoured by
non-acceptance.
41. By the acceptor of an Three years When the acceptor
accommodation bill pays the amount of the
against the drawer. bill.
42. By a surety against the Three years When the surety pays
principal debtor. the creditor.
43. By a surety against a Three years When the surety pays
co-surety. anything in excess of
his own share.
44. (a) On a policy of Three years The date of the death
insurance when the of the deceased, or
sum insured is payable where the claim on the
after proof of the death policy is denied, either
has been given to or partly or wholly, the
received by the date of such denial.
insurers.
(b) On a policy of Three years The date of the
insurance when the occurrence causing the
sum insured is payable loss, or where the
after proof of the loss claim on the policy is
has been given to or denied, either partly or
received by the wholly, the date of such
insurers. denial.
45. By the assured to Three years When the insurers elect
recover premia paid to avoid the policy.
under a policy voidable
at the election of the
insurers.
46. Under the Indian Three years The date of the
Succession Act, 1925 payment or
(39 of 1925). Section distribution.
360 or Section 361, to
compel a refund by a
person to whom an
executor or
administrator has paid
a legacy or distributed
assets.
47. For money paid upon Three years The date of the failure.
an existing
consideration which
afterwards fails.
48. For contribution by a Three years The date of the
party who has paid the payment in excess of
whole or more than his the plaintiff's own
share of the amount share.
due under a joint
decree, or by a sharer
in a joint estate who
has paid the whole or
more than his share of
the amount of revenue
due from himself and
his co-sharers.
49. By a co-trustee to Three years When the right to
enforce against the contribution accrues.
estate of a deceased
trustee a claim for
contribution.
50. By the manager of a Three years The date of the
joint estate of an payment.
undivided family for
contribution, in respect
of a payment made by
him on account of the
estate.
51. For the profits of Three years When the profits are
immovable property received.
belonging to the
plaintiff which have
been wrongfully
received by the
defendant.
52. For arrears of rent. Three years When the arrears
become due.
53. By a vendor of Three years The time fixed for
immovable property for completing the sale, or
personal payment of (where the title is
unpaid purchase accepted after the time
money. fixed for completion)
the date of the
acceptance.
54. For specific Three years The date fixed for the
performance of a performance, or if no
contract. such date is fixed,
when the plaintiff has
noticed that
performance is
refused.
55. For compensation for Three years When the contract is
the breach of any broken or (where there
contract, express or are successive
implied not herein breaches) when the
specially provided for. breach in respect of
which the suit is
instituted occurs or
(where the breach is
continuing) when it
ceases.
Part III—Suits Relating to Declarations
56. To declare the forgery Three years When the issue or
of an instrument registration becomes
issued or registered. known to the plaintiff.
57. To obtain a declaration Three years When the alleged
that an alleged adoption becomes
adoption is invalid, or known to the plaintiff.
never, in fact, took
place.
58. To obtain any other Three years When the right to sue
declaration. first accrues.
Part IV—Suits Relating to Decrees and Instruments
59. To cancel or set aside Three years When the facts
an instrument or entitling the plaintiff to
decree or for the have the instrument or
rescission of a decree cancelled or set
contract. aside or the contract
rescinded first become
known to him.
60. To set aside a transfer
of property made by
the guardian of a ward
—
(a) By the ward who Three years When the ward attains
has attained majority; majority.
(b) by the ward's legal
representative—
(i) When the ward dies Three years When the ward attains
within three years from majority.
the date of attaining
majority;
(ii) when the ward dies Three years When the ward dies.
before attaining
majority.
Part V— Suits Relating
to Immovable Property
61. By a mortgagor— (a) to Thirty years When the right to
redeem or recover redeem or to recover
possession of possession accrues.
immovable property
mortgaged;
(b) to recover Twelve years When the transfer
possession of becomes known to the
immovable property plaintiff.
mortgaged and
afterwards transferred
by the mortgagee for a
valuable consideration;
(c) to recover surplus Three years When the mortgagor
collections received by re-enters on the
the mortgagee after mortgaged property.
the mortgage has been
satisfied.
62. To enforce payment of Twelve years When the money sued
money secured by a for becomes due.
mortgage or otherwise
charged upon
immovable property.
63. By a mortgagee—
(a) for foreclosure; Thirty years When the money
secured by the
mortgage becomes
due.
(b) for possession of Twelve years When the mortgagee
immovable property becomes entitled to
mortgaged. possessions.
64. For possession of Twelve years The date of
immovable property dispossession.
based on previous
possession and not on
title, when the plaintiff
while in possession of
the property has been
dispossessed.
65. For possession of Twelve years When the possession
immovable property or of the defendant
any interest herein becomes adverse to
based on title. the plaintiff.
Explanation.—For the
purposes of this article
—
(a) where the suit is by
a remainderman, a
reversioner (other than
a landlord) or a
devisee, the
possession of the
defendant shall be
deemed to become
adverse only when the
estate of the
remainderman,
reversioner or devisee,
as the case may be,
falls into possession;
(b) where the suit is by
a Hindu or Muslim
entitled to the
possession of
immovable property on
the death of a Hindu or
Muslim female, the
possession of the
defendant shall be
deemed to become
adverse only when the
female dies;
(c) where the suit is by
a purchaser at a sale in
execution of a decree
when the judgment-
debtor was out of
possession at the date
of the sale, the
purchaser
shall be deemed to be
a representative of the
judgment-debtor who
was out of possession.
STATE AMENDMENTS
Bihar:
In its application to the
Scheduled Areas, in
Article 65, in the
second column, the
following words shall
be added at the end,
namely:— "but 30 years
in respect of
immovable property
belonging to a member
of the Schedule Tribes
as specified in Part III
to the Schedule to the
Constitution
(Scheduled Tribes)
Order, 1950". [Vide
Bihar Regulation 1 of
1969, sec. 3 and Sch.
(w.e.f. 8-2-1969).]
Orissa:
In its application to the [Vide Orissa Regulation
Scheduled Areas, in 1 of 1975, sec. 5 (w.e.f.
Article 65, second 1212-1975).]
column, following
words shall be added
at the end, namely:—
"but thirty years in
relation to immovable
property belonging to a
member of a
Scheduled Tribe
specified in respect of
the State of Orissa in
the Constitution
(Scheduled Tribes)
Order, 1950".
66. For possession of When the forfeiture is
immovable Twelve incurred or the
years property when condition is broken.
the plaintiff has
become entitled to
possession by reason
of any forfeiture or
breach of condition.
67. By a landlord to recover When the tenancy is
Twelve years determined.
possession from a
tenant.
Part VI—Suits Relating to Movable Property
68. For specific movable Three years When the person
property lost, or having the right to the
acquired by theft, or possession of the
dishonest property first learns in
misappropriation or whose possession it is.
conversion.
69 For other specific Three years When the property is
movable property. wrongfully taken.
70 To recover movable Three years The date of refusal
property deposited or after demand.
pawned from a
depositary or pawnee.
71. To recover movable Three years When the sale
property deposited or becomes known to the
pawned, and plaintiff.
afterwards bought
from the depositary or
pawnee for a valuable
consideration.
Part VII—Suits Relating to Tort
72. For compensation for One year When the act or
doing or for omitting to omission takes place.
do an act alleged to be
in pursuance of any
enactment in force for
the time being in the
territories to which this
Act extends.
73. For compensation for One year When the
false imprisonment. imprisonment ends.
74. For compensation for a One year When the plaintiff is
malicious prosecution. acquitted or the
prosecution is
otherwise terminated.
75. For compensation for One year When the libel is
libel. published.
76. For compensation for One year When the words are
slander. spoken or, if the words
are not actionable in
them-selves, when the
special damage
complained of results.
77. For compensation for One year When the loss occurs.
loss of service
occasioned by the
seduction of the
plaintiff's servant or
daughter.
78. For compensation for One year The date of the breach.
inducing a person to
break a contract with
the plaintiff.
79 For compensation for One year The date of the
an illegal, irregular or distress.
excessive distress.
80. For compensation for One year The date of the seizure.
wrongful seizure of
movable property
under legal process
81. By executors, One year The date of the death
administrators or of the person wronged.
representatives under
the Legal
Representatives' Suits
Act, 1855 (12 of 1855).
82. By executors, Two years The date of the death
administrators or of the person killed.
representatives under
the Indian Fatal
Accidents Act, 1855
(13 of 1855).
83. Under the Legal Two years When the wrong
Representatives Suits complained of is done.
Act, 1855 (12 of 1855)
against an executor, an
administrator or any
other representative.
84. Against one who, Two years When the perversion
having a right to use first becomes known to
property for specific the person injured
purposes, perverts it to thereby.
other purposes.
85. For compensation for Three years The date of the
obstructing a way or a obstruction.
watercourse.
diverting a diversion.
watercourse.
trespass upon trespass.
immovable property.
infringing copyright or infringement.
any other exclusive
privilege.
89. To restrain waste. Three years When the waste
begins.
90. For compensation for Three years When the injunction
injury caused by an ceases
injunction wrongfully
obtained.
91. For compensation,—
(a) for wrongfully Three years When the person
taking or detaining any having the right to the
specific movable possession of the
property lost, or property first learnt in
acquired by theft, or whose possession it is.
dishonest
misappropriation, or
conversion;
(b) for wrongfully Three years When the property is
taking or injuring or wrongfully taken or
wrongfully detaining injured or when the
any other specific detainer's possession
movable property. becomes unlawful.
Part VIII—Suits Relating to Trusts and Trust Property
92. To recover possession Twelve years When the transfer
of immovable property becomes known to the
conveyed or plaintiff.
bequeathed in trust
and after-wards
transferred by the
trustee for a valuable
consideration.
93. To recover possession Three years When the transfer
of movable property becomes known to the
conveyed or plaintiff.
bequeathed in trust
and afterwards
transferred by the
trustee for a valuable
consideration.
94. To set aside a transfer Twelve years When the transfer
of immovable property becomes known to the
comprised in a Hindu, plaintiff.
Muslim or Buddhist
religious or charitable
endowment, made by a
manager thereof for a
valuable consideration.
95. To set aside a transfer Three years When the transfer
of movable property becomes known to the
comprised in a Hindu, plaintiff.
Muslim or Buddhist
religious or charitable
endowment, made by a
manager thereof for a
96. By the manager of a Twelve years The date of death,
Hindu, Muslim or resignation or removal
Buddhist religious or of the transferor or the
charitable endowment date of appointment of
to recover possession the plaintiff as
of movable or manager of the
immovable property endowment, whichever
comprised in the is later.
endowment which has
been transferred by a
previous manager for a
Part IX—Suits Relating to Miscellaneous Matters
97. To enforce a right of One year When the purchaser
preemption whether takes under the sale
the right is founded on sought to be
law or general usage or impeached, physical
on special contract. possession of the
whole or part of the
property sold, or, where
the subject-matter of
the sale does not admit
of physical possession
of the whole or part of
the property, when the
instrument of sale is
registered.
98. By a person against One year The date of the final
whom 5[an order order.
referred to in rule 63 or
in rule 103] of Order 21
of the Code of Civil
Procedure, 1908 (5 of
1908), or an order
under Section 28 of the
Presidency Small
Cause Courts Act,
1882 (5 of 1882), has
been made, to
establish the right
which he claims to the
property comprised in
the order.
99. To set aside a sale by a One year When the sale is
Civil or Revenue Court confirmed or would
or a sale for arrears of otherwise have
Government revenue or become final and
for any demand conclusive had no such
recoverable as such suit been brought.
arrears.
100. To alter or set aside One year The date of the final
any decision or order decision or order by the
of a civil court in any court or the date of the
proceeding other than act or order of the
a suit or any act or officer as the case may
order of an officer of be.
Government in his
official capacity.
101. Upon a judgment Three years The date of the
including a foreign judgment or
judgment, or a recognisance.
recognisance.
102. For property which the Three years When the plaintiff is
plaintiff has conveyed restored to sanity and
while insane.
has knowledge of the
conveyance.
103. To make good out of Three years The date of the
the general estate of a trustee's death or if the
deceased trustee the loss has not then
loss occasioned by a resulted, the date of
breach of trust. the loss.
104. To establish a Three years When the plaintiff is
periodically recurring first refused the
right. enjoyment of the right.
105. By a Hindu for arrears Three years When the arrears are
of maintenance. payable.
106. For a legacy or for a Twelve years When the legacy or
share of a residue share becomes
bequeathed by a payable or deliverable.
testator or for a
distributive share of
the property of an
intestate against an
executor or an
administrator or some
other person legally
charged with the duty
of distributing the
estate.
107. For possession of a Twelve years When the defendant
hereditary office. takes possession of
the office adversely to
the plaintiff.
Explanation—A
hereditary office is
possessed when the
properties thereof are
usually received, or (if
there are no properties)
when the duties
thereof are usually
performed.
108. Suit during the life of a Twelve years The date of the
Hindu or Muslim alienation.
female by a Hindu or
Muslim who, if the
female died at the date
of instituting the suit,
would be entitled to the
possession of land, to
have an alienation of
such land made by the
female declared to be
void except for her life
or until her re-marriage.
109. By a Hindu governed by Twelve years When the alienee takes
Mitakshara law to set possession of the
aside his father's property.
alienation of ancestral
property.
110. By a person excluded Twelve years When the exclusion
from a joint family becomes known to the
property to enforce a plaintiff.
right to share therein.
111. By or on behalf of any Thirty years The date of the
local authority for dispossession or
possession of any discontinuance.
public street or road or
any part thereof from
which it has been
dispossessed or of
which it has
discontinued the
possession.
112. Any suit (except a suit Thirty years When the period of
before the Supreme limitation would begin
Court in the exercise of to run under this Act
its original jurisdiction) against a like suit by a
by or on behalf of the private person.
Central Government or
any State Government,
including the
Government of the
State of Jammu and
Kashmir.
STATE AMENDMENT
West Bengal:
In entry 112, in the first
column, after the
words "Jammu and
Kashmir" the following
words shall be and
shall be deemed
always to have been
added, namely:— "of a
Government company
owned wholly either by
the Central
Government or by the
State Government or
jointly by the Central
and the State
Government".
[Vide West Bengal Act
18 of 1977, sec. 3
(w.e.f. 4-8-1977).]
Part X—Suits for which there is no Prescribed Period
113. Any suit for which no Three years When the right to sue
period of limitation is accrues.
provided elsewhere in
this Schedule.
Second Division—Appeals
Description of appeal Period of limitation Time from which period
begins to run
114. Appeal from an order
of acquittal,—
(a) under sub-section Ninety days The date of the order
(1) or sub-section (2) appealed from.
of Section 417 of the
Code of Criminal
1898);
(b) under sub-section Thirty days The date of the grant of
(3) of section 417 of special leave.
that Code.
115. Under the Code of
Criminal Procedure,
1898 (5 of 1898),—
(a) from a sentence of Thirty days The date of the
death passed by a sentence.
court of session or by a
High Court in the
exercise of its original
criminal jurisdiction;
(b) from any other
sentence or any order
not being an order of
acquittal—
(i) to the High Court Sixty days The date of the
sentence or order.
(ii) to any other court. Thirty days The date of the
sentence or order.
116. Under the Code of Civil
1908),—
(a) to a High Court Ninety days The date of the decree
from any decree or or order.
order;
(b) to any other court Thirty days The date of the decree
from any decree or or order.
order.
117. From a decree or order Thirty days The date of the decree
of any High Court to or order.
the same Court.
Third Division—Applications
Description of Period of limitation Time from which period
application begins to run
Part I—Applications in Specified Cases
118. For leave to appear and Ten days When the summons is
defend a suit under served.
summary procedure.
119. Under the Arbitration
Act, 1940 (10 of 1940),
—
(a) for the filing in court Thirty days The date of service of
of an award; the notice of the
making of the award.
(b) for setting aside an Thirty days The date of service of
award or getting an the notice of the filing
award remitted for of the award.
reconsideration.
120. Under the Code of Civil Ninety days The date of death of
Procedure, 1908 (5 of the plaintiff, appellant,
1908), to have the legal defendant or
representative of a respondent as the case
deceased plaintiff or may be.
appellant or of a
deceased defendant or
respondent, made a
party.
121. Under the same Code Sixty days The date of abatement.
for an order to set
aside an abatement.
122. To restore a suit or Thirty days The date of dismissal
appeal or application
for review or revision
dismissed for default
of appearance or for
want of prosecution or
for failure to pay costs
of service of process
or to furnish security
for costs.
123. To set aside a decree Thirty days The date of the decree
passed ex-parte or to or where the summons
rehear an appeal or notice was not duly
decreed or heard ex served, when the
parte. applicant had
knowledge of the
decree.
Explanation.—For the
purpose of this article,
substituted service
under rule 20 of Order
5 of the Code of Civil
1908), shall not be
deemed to be due
service.
124. For a review of Thirty days The date of the decree
judgment by a court or order.
other than the Supreme
Court.
125. To record an Thirty days When he payment or
adjustment or adjustment is made.
satisfaction of a
decree.
126. For the payment of the Thirty days The date of the decree.
amount of a decree by
instalments.
127. To set aside a sale in 6
[Sixty days] The date of the sale.
execution of a decree,
including any such
application by a
judgment-debtor.
128. For possession by one Thirty days The date of the
dispossessed of dispossession.
immovable property
and disputing the right
of the decree-holder or
purchaser at a sale in
129. For possession after Thirty days The date of resistance
removing resistance or or obstruction.
obstruction to delivery
of possession of
immovable property
decreed or sold in
130. For leave to appeal as
a pauper—
(a) to the High Court; Sixty days The date of decree
appealed from.
(b) to any other Court Thirty days The date of decree
appealed from.
131. To any court for the Ninety days The date of the decree
exercise of its powers or order or sentence
of revision under the sought to be revised.
Code of Civil
1908), or the Code of
Criminal Procedure,
1898 (5 of 1898).
132. To the High Court for a Sixty days The date of the decree,
certificate of fitness to order or sentence.
appeal to the Supreme
Court under clause (1)
of Article 132, Article
133 or sub-clause (c)
of clause (1) of Article
134 of the Constitution
or under any other law
for the time being in
force.
133. To the Supreme Court
for special leave to
appeal,—
(a) in a case involving Sixty days The date of the
death sentence; judgment, final order or
sentence.
(b) in a case where Sixty days The date of the order
leave to appeal was of refusal.
refused by the High
Court;
(c) in any other case. Ninety days The date of the
judgment or order.
134. For delivery of One year When the sale
possession by a becomes absolute.
purchaser of
immovable property at
a sale in execution of a
decree.
135. For the enforcement of Three years The date of the decree
a decree granting a or where a date is fixed
mandatory injunction. for performance, such
date.
136. For the execution of Twelve years 7
[When] the decree or
any decree (other than order becomes
a decree granting a enforceable or where
mandatory injunction) the decree or any
or order of any civil subsequent order
court. directs any payment of
money or the delivery
of any property to be
made at a certain date
or at recurring periods,
when default in making
the payment or delivery
in respect of which
execution is sought,
takes place:
Provided that an
application for the
enforcement or
execution of a decree
granting a perpetual
injunction shall not be
subject to any period of
limitation.
Part II—Other Applications
137. Any other application Three years When the right to apply
for which no period of accrues.
limitation is provided
elsewhere in this
division.
5 Substituted by Act 52 of 1964, section 3 and Second Sch. For "an Order under rule 63 or rule
103" (w.e.f. 29-12-1964).
6 Substituted for "thirty days" by the Civil Procedure Code (Amendment) Act, 1976 (104 of
1976), Sec. 98 (w.e.f. 1-2-1977). Section 98(2) provides as follows:
"(2) Where the period specified in Article 127 of the Schedule to the Limitation Act, 1963, had
expired on or before the commencement of this Act, nothing contained in sub-section (1) shall
be construed as enabling such application as is referred in the article to be filed after the
commencement of this Act by reason only of the fact that a longer period, therefor is specified
in the Act aforesaid by reason of provisions of sub-section (1)."
7 Substituted for the word "where" by the Repealing and Amending Act, 1964 (52 of 1964) Sec.
3 and Second Schedule (w.e.f. 29-12-1964).

MP Jain: The Code of Civil Procedure including Limitation Act, 1963, 5th ed / The Code of Civil Procedure
© 2020 LexisNexis
(Act No V of 1908)1
[21 March 1908]
An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature.
WHEREAS it is expedient to consolidate and amend the laws relating to the procedure
of the Courts of Civil Judicature; it is hereby enacted as follows:
1 For Statement of Objects and Reasons, see Gazette of India, 1907, Pt V, p. 179; for Report of
Select Committee, see ibid, 1908, Pt V, p 35 and for Proceedings in Council see ibid, 1907, Pt VI,
p 135 and ibid, 1908, pp 8 and 212.

CPC and Law of Limitation

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

CPC and Law of Limitation

Uploaded by

Copyright:

Available Formats

The Code of Civil Procedure, 5th ed

Currency Date: 28 April 2020

[21 March 1908]

The Code of Civil Procedure, 5th ed

Currency Date: 28 April 2020

S. 1. Short title, commencement and extent.

(a) the State of Jammu and Kashmir;

(b) the State of Nagaland and the tribal areas:

Provided that the State Government concerned may, by notiﬁcation in

Rights and obligations of the members of a civilised society would be meaningless

History of the Code.—

Scheme of the Code.—

Statement of objects and reasons.—

Changes made by the Amending Act of 1976.—

(ii) The doctrine of res judicata has been extended to independent

(4) The freedom from attachment of a portion of salary is now available to a

(14) The scope of summary trials has been substantially widened.

(iii) the non-attachable portion of the salary of the judgment-debtor has

(a) house and other buildings of a labourer or a domestic servant;

(b) moneys payable under a policy of insurance on the life of the

(c) the interest of a lessee of a residential building, to which the

(v) while pronouncing judgment in an appealable case, it would be the duty

(vii) where a person is permitted to sue as an indigent person, a duty has

The Code has been extended to the Union territories of:

(i) Goa, Daman and Diu.11

(ii) Laccadive, Minicoy and Amindivi Islands.12

(iv) Dadra and Nagar Haveli.14

General principles of pleading in suits including the maxim—"Secundum Allegata et non

Applicability of Code of Civil Procedure.—

Whether the Code exhaustive?—

Interpretation of the Code.—

Conﬂicting Bench decisions.—

The Code of Civil Procedure, 5th ed

Currency Date: 28 April 2020

In this Act, unless there is anything repugnant in the subject or context,—

(1) "Code" includes rules;

HIGH COURT AMENDMENT

(2) "decree" means the formal expression of an adjudication which, so far as

(b) any order of dismissal for default.

Explanation.— A decree is preliminary when further proceedings have to

HIGH COURT AMENDMENT

(7) "Government Pleader" includes any oﬃcer appointed by the 46[State

(8) "Judge" means the presiding oﬃcer of a Civil Court;

(13) "moveable property" includes growing crops;

HIGH COURT AMENDMENT

(16) "prescribed" means prescribed by rules;

(a) every Judge;

(b) every member of 49[an All India Service];

(c) every commissioned or gazetted oﬃcer in the military, 50[naval or air]

(h) every oﬃcer in the service or pay of the Government, or remunerated

HIGH COURT AMENDMENT

(19) "share in a corporation" shall be deemed to include stock, debenture stock,

(20) "signed", save in the case of a judgment or decree, includes stamped.53[* * *]

While interpreting a deﬁnition, the interpretation should not be repugnant to context

A decree must satisfy the following tests:

— There must be an adjudication,

— Such adjudication must have been given in suit,

— Such determination must be of a conclusive nature and

— There must be a formal expression of such adjudication.62

Decree and order—Distinction.—As the words "formal expression" appear in the

A decision on a matter of administration is not a decree. Thus, order by which an

Thus, suit means a civil proceeding which is instituted by means of a plaint. A

(4) Right must be conclusively determined.—The decision of the Court must be