1 “Ambition Law Institute, 81, 11 Floor, Grrenasowachvg, Piping Tapia and Caylone Tea Cow, AIR 1990 SC 235, ivi held The erp eh aven by 2 statute, tee denne he person ote Ieetboce Sedicot Bry ether form thon given by the statute. Where an Act creates sn enteSy ond Suedegd te performance ina specified manner, that performanes c>3net be edlgrebd'in any ober manner ‘lary Aeteih suits, though of o civil nature, are barred from the cognizance of civil ao oe ound of public paicy. The principle underiying is that a court ought not eee en edyastters which are injurious to and against the public weal"Thus, no suk Sante tebvedbvery of costs incurred in a criminal prosecution or for enforcement of 3 | rei lio aren eer ee st coe crea aS RATE ES srred when its barred by general principles of 22s. for acts done in the course of his duties. Likewise, palitical questions belong to the domain of public administrative law arfd are outside the jurisdiction of civil courts. A civil court has. 0 ion to adjudicate us utes of 2 political natur Kian Yew fatitute, 81, I Ne Kingsway Camp Chowk, DellvV_—_—_——_O M Pre ears ns a 1. Discuss with the help of decided cases that ever kind of dispute is not entertainable by civil court. . Whatis a Suit of Civil Nature, Give few examples. [1998, 1995 (Har.), 1985 (Punj), 1989 (H.P.)] What do you understand by pecuniary jurisdiction ofa court. Will 2 to hear the suit exceeding its limits if the parties to the suit have, rt be competent fiveltheir consent. veg ‘questioning the punishment inflicted on a Government Proceeding taken against him? (A.P-3.S. 1978) 4 ‘A’ was refused to worship in a Hindu Temple though ‘A’ is 2) Civil Court to enforce his right? (A.P.J.S. 1989) Court decide the dispute? (A.P..S. 1989) 7. ‘There was a partnership firm which was unt due to the said firm for supply. Can the firg 8. Write short notes on “A suit of civil Have Delhi Courts territorial juri in followyig cases under Haryana, tut practices | Sy from whose factory at |. pt (i) A, and advocate resides aFaridabad) in Courts at Delhi by coy price at Delhi. Gil) A merchant nai pn of India at Delhi for short} delivery of 9 S Ghaziabad, (U.P) byNorthern { a til = (iv Zee <CHPATER -.4 is Saracen Res Sub Judics synopsis Meaning and Object 2. Conditions of Applicability - Two suits (one previously instituted) ~- Matter directly and substantially in Tssue = Same parties or their representative. - Previously instituted suit pending - Previous court’s authority to grant later relj - Same title in both suits 3. "Stages at which sect 4, Application for stay what is Res sub judice ? ceed with a zSntially in issue. in Wat the court in which the. oyfrrent: jurisdiction from Mo. parallé litigations in respect of simultaneously entertaining 2% ae ane 1e Same relief. The policy of the lawis same cause of action, the same.s of the same relief. For invoking Sec. 46, foysina fs (i). There must fn (ii) The eee As ‘ni) Bey bits % (8) Teorey | sherman Shunved by the Central Government or before the Supreme Cai A) YhexCourtin whith.the SreMous sult is instituted must have jurisdiction to grant igi sans ‘in tt S sec sit, and; Seen iS oni nea ih Keke oi licability of is ther the decision in a previously insti\yted Maes Pe a Serer eater eet eel eee ee aor seed bea epee eeseo eee ae areeh eet teen at ete ed contract are to be instituted in a specified court only. Such a stipulation is valid in law. a eee ea ee ete ares ates ons e ee ier Same k ox eae ASL TRAE Sea nau aan Me bcaie ae a or TT TC Se een eee eer San G MELE EO eS a ee en ecats eeclopereras oe arate Te Ta Fb aoa raeo tac ine soeaisscaysezywnere It was ; ba Manoharta! Vs. Sheth ill (AIR 262(S: E27) th aaa the earlier sult was. ult and that makes no diference hati © ng, ed In iain Doreen bemeen the Dates ge ERT ETT To ste Ines ea eh a A eves Ce Con ee nee meatcating opon two or more paralel Suns i Imater in issue fs substontolly the same ; R. Srinivasan Vs, Southern Petrochemical Industries Cor ‘ in Sec. 10 are ad. 363, The words “diectlv and substantially insu" in Sec. to the words “incidentally or collaterally in issue". That means that Se c he suits phe ont if there i entity of the matter in issue in both the suits pear whole of the subject-matter in both the proceedings is identicarnd not ‘many issues which arise for determination in the two sults in same. ‘Same parties The expression “same parties” in Sec. 10 conteffplates sam the addition of same persons as nominal or pro forma p4rties; \etract from the fact that parties are essentially the saihe i tae at which section can be invoked - Se the subsequent sult. Thus, where an objection at aNare {snot taken before the trial court and judg bee be taken in appeal and consequently, roceedinig with the hearing of the a 987 Guj. 213. Application statement. At best the gn beforafilindof the written statement, ithe Int of tMkerflier syit and-other docuthents, pute between the parties is. 102 Ex: Y Jurisdiction therSyinds eet act the ‘of the subsequent suit. if inheden powers under Si 13. dif 2 10-are not satisfied, the court én stay the roceedings in tye \ oS the inherent powers under Sec. 151 only when Sel Gar Sulbconstutes ankgbyse ¥ the process ofthe court. In Spproiate con eee 35, 2O\e tere dabanot apbly pd court under inherent poms eee power sdgsey yea Ses NG Seed thay in view ofthe specie provisions of Sec: 1sna eye, stoseayent Su coh be ed feted gieseotan ‘Sec. 151 can be applied in the magendhagce Ahaecited by te Supreme Cour in Shetty vs: Giriahen Ae eee Sca3, sorrel ing wire ges a cose or the application oc 20 recourse to the inherent the Coby ci2ee. 151 pt justified. However where the provisions of sec not appl the Court can ap; as inherent power to uit in the ends of Justi PREVIOUS YEAR QUESTIONS QI. Does Yhe Gode of Civil Procedure Soncurtept Jurisdiction from trying atthe samme time too same calise of action? If so what? Discuss (1986 Hav } Q.2. B residing in Calcutta has an agent at Calicut rom preventing courts of Paralled suits in respect of Scr hnied9in¢ PPS en pre by As alleged negligence can the Calt court oe 2 Gy 1 ‘Ambition Law Institute, 81, a Floor Phone: 011-27119150, 30913099: v7 as CHPATER - 5 RES TA (Sec. 11) Synopsi : tr Definition, concept, basis 2. Conditions of applicabitity = Same parties ~ Identical subject - matter of the suit . = Finally decided matter . ~ Decision by a court of competent jurisdiction, 3. Res judicata between Same Parties ©. = Res judicata between co-defendant. . > Res Judicata between co-plaintiffs 4, Representative suit S. Matter in issue ~ Directly & substantially in issfe. - Collaterally & incidentally j6 issue: 6: Constructive Res Judicats 7. Heard and finally decide ae 8. Competent court 8. Writ Petition & nsf ual 2) ry Sidse) nang . Summary Proves aoe 22 non aon ale panos 44, DittgFEnce bel gednedudicata znd Res-Subjudice’ 15, wakto rurthede set sabi Beh ook dei Needure embodies the docrng of res judlets ort sult concTagte eg of SIGs tothe points deeded Wreren) seeecoent ote “Detweehnthe sarge Bat ss. INgays that once the res is judicata it shall not be adjudaed ratte oe he tarantula stasis lara molsacis ceca ee the rigs of person Woulthbe involved in endless confusion and great injustice welutd bo othurlaghgover SrgRiyG However Sec 115 nt exhoustve asthe provision eset tne Bgcib of ses jueata is embodied under Sec: 12, 13 and See. 14 is priripnes based on jtwand good conscience. It prevents the parties fom a setgnd Yetermination even ifthe first is demonstrably wrong. When earlier proceedings had obtaitgd finality, parties were bound by the judgement and were stopped [rom questioning'tré same. Rule of constructive res judicata is also based on the same principle ple of res judicata is based on three maxims () to man should be vexed twice over for the same cause (i) [eigin the is {state that there should be an end to litigation.(ii a Conditions of Applicability: a ) That the ligating paities are same. (") That the subject matter of is in issu itsuit or issue 20 Substantially in issue we (2) That the matter nas been fin stantial matter which was directly tively in the former suit. | ally decided between the partes. re either actually or construct 426 bhe court saig bind him, But The latter eS inthe Fe identica} suit by a Party earlier suit issue h, sssue.¢ Res Dlaintifis: ond defendant and the £o-plaintift in thesF 19 #f.3' «Ia Ferro Alloys Corporation itd. Vs. Union of India, AIR 1999 SC 1235,Court $2y5 that previous decision operates as res judicata between co-plaintiffs if all the + conditions are "mutatis mutandis’ Satisfied. ag {*Mistats mutondié means with the neceskary changes in points of detail; with uch change as may be necessary satisfied). Representative suit: Explanation VI deals with Representative suit i.e. suits instituted by or against the person in his representative as distinguished from individual capacity. (Explanation VI} Matter in Issue: “The expression “matter in issue’ means the right itigated petwohe the facts on which the right is claimed and the law applicable ty ise" Such issue may be an issue of Tatt, issue oF law or mixh Matter in issue may be clastified a5 follows: ~ Matter in issue Matters directly and ‘substantially In issue Actually in issue hss ld-was alleged by one other. (Explanation 111). eds ‘difectly and substantially in ds collaterally or incidentally in, 1¢ main issues in the case will Fes Mdicata, it is essential that it must, SSUa\B5 distinguished from collaterally or somematter sai on pstan| ally issue, ether actualy or constructively, a oflv requires theideatty ofthe matter ins, a Yybe Tuifill gaic ‘must have been alleged by one party and ey oF YF necessary implication, by the other. ts enough esa the former su a ao in the subsequent suit, «ig es cision should be looked at. Tt is essential that the lyin the suit under trial and nat collaterally > 1ect_of which reliefs claimed by the piaintife ari matters which are “directly and substantially in issue". Homever, niattes in respect of which reliel is not claimed but which arc /-DUEDgSe-Of Eciding matters for which relief is claimed, The latter ‘be collaterally or incid iples are illustrative to make distinction between matter directly and jssue and matter collaterally or incidentally in issue” (i) for a declaration of title to certain lands, and (li) for the rent of those lands foF the year 2001. 8 denies A’s title to the lands and contends that no rer is ‘due. In this case, there are two matters in respect of which relief is claimed. Vie., the title to the fands end the claim for rent. Both these matters are, therefore, directly ‘and substantially in issue. ° (®) Asues 6 for rent: 6 pleads that Jesser-rent is playable, because the actual area of the land is lesser then what is mentioned In there lease-deed. THe wort, lusnese Ambition Law Institute, 81, 1 Floor, Kingsway Camp Chowk, Deihi-110005-w e Jease,, This:tingyng as to shown in th “ 1 jentall thatthe actual area is greater than-thelene BONE! Ay cliatealy oF Incidentally excess area isnot res judicata, because in issue. ey vn enn tkDATs pate re 1951 Pat. 472. The ‘singh, AZ! fe In Gauri Shankar Sing Vs Ram Singhasan SINT ether the cause of action courtheld that the principle or res judi In the two sults are identical. Causes of test is whether the matter directly and substat pes are the same or the suit iieiey e may be different, but the action he ste adme in both suits and es ties claiming under them and figsome, end the tter in the previ te ong onde pression “cause | Iingating under the some tte, The expression "ease of pariermethezoe or gating under Ue samesle, ae nai Prakash Vs, Bishambhar Das, 1953 A.L.J. 696, Ibe tha Is well-established that it is the decisi Judicata and not the reason or the basis of the. decision that operakcs 25. ‘tie title ofthe plaintiff to the entire property covering the subject wi dnd the subject-matter of the subsequent suit ts not dre Suit, the dedsion in the previous sult in which observa if over the entire subject-matter of the Folding thatthe plaintiff wos entitled to the subject-matter Yl {What one has to decide i, whether in words of section 1 C Subsequent sultwas drecly and substantially ‘ In Shree Ramaiah'Venkiteshiah & CS 237. The court held that itis the matter in joe Wee Or constructively, and not the subject Bano cause of action in the two suits are diff i of the pla ‘same and ence the decision in the {section 11 also clearly imply th ‘granted in the forrmer suit or whi been directly or substantially i granted in a suit to the subsequent Suit which, Collateral in issue" means respect of wig no Sajuateate tipo incidental ita eaves ones. Itis Xe re ju matter webs apa fact incloSrgtyintgus (the yas 1943, 5 "espa oP tc lech 18 ithe. h are oi ign gfe in issue ony collaterally or fondly in issue ifthe issue was decided and judgment tiggfare mad decisions cannot be said to have: us where certain reliefs were ndant to raise any plea ina ‘The principle of res préssion “collaterally'or incidentally tantial issue and refer to @ matter in ig put in issue to enable the court to sMuhile glirect and substantial issues are the principal fectly and substantially in issue that constitute \cidentally= The jon. Otherwise it would be a matter collaterally or ‘wo will make the point clear, A sues B for the rent due {that no rents due. Here the claim for rent is the matter This, therefore, is a matter directly and substantially in Heelan ‘ KS Shen A sues B for rent and B claim abatement of Hn pan na oso ent of rent on the arovhg tetipe atoaSuepberthan that shownin the lease, the facing secon cece, area ino jucicats cniyaNaty iy shown ine ede ny fF this was: OPfess. In Syjjadgnashin Sayed Vs. expression “toljéteral ly or incidentall 's directly and/substancially in issue. In drder to operate, directly and substantially in and finally decided by the court t in fssue for the purpose of decidi be made the basis of a plea or ite, 81, Phone: 011-27119150, 30a4 fect and substantial issue, 8s res judicata the finding must be 'ssue in the former suit and the iss 30913949 Email not the matter directly and substantially in issue but viz., whether the area is equal to that ‘Musa Dadabhai Ummer AIR 2000 5 ly” in issue implies thal there is anoth; °C 1238 - The ler matter which Floor, Ki2 ding 2 to tile to Immovable property is rendered by a Court Sf Small Couses <2 ~“eWiacat cannot be pleaded asa brinsabeqent regs i out ore eecminasee “Bir entorcerent of any right or interest inirmevable propery, Cxplonation VI to section “SAB orthe Coce tas inserted by the Code oe rocedure (Amendment) Act, 3376) canbe cf no assistance, becouse operates any were an sue has Deen heard and finaly eed Inthe ear sult: (Smt Gangod/vs Chnebuber (1902) 1"SCC §} PF constructive Res Sudicata Explanation IV is a deeming provision which provides that mattey in issue when it might and ought to have been made a ground of former suit.but which has .not been made. ground of attack or defer tohave been matter directly.and substantially in issue.in such suit. Explanation 1V draws no distinction between acim that was act hich might Bnd ought to have been made. Ite parties Te the some ting as Ifthe matter Too een cally cont Thus, the rule of res judicata is not limited to matter S. either denied or admitted, expressly or impliedly by t trial of a subsequent suit on the ground that the matters di which has been decided between the same pa res judicata (Explanation IV to Sec. 11) Heard And Finally Decided: The matter directly and been heard and finally decided b The words “has been heagd of doubt that the rule of res ju former suit has been heard ark finaly decide by Explanation IV to Sec. 11, thus, will be available “only when\t ‘2nd fina disposal ofthe issues of facts between the paryé a 2 in such former suit, th 1994 Raj. 11. In this case court held rng the parties, itcanot be considered inti ALR. 1980'S.C. 164. It was held that flaintift the appearance of the defendant, the matter 1s fes of constructive res judicata do not then apply. {to disruption of joint family and business by the brothers by specific contention raised would operate res jucicata in ther for a declaration that he alongwith other brothers was t family and as such entitled to a share in the business and J. Explanation V provides that if relie is claimed in competentCourt: The Court which decided the former suit must have been 2 court competent to try the subsequent sult. Thus the decision in previous suit by a court not ‘competent to try the subsequent suit wil not operate as res judicata. Explanation VIII, It was consistent view before amendment of 1976, that both the courts, one deciding earlier case and the one in which second suit is pending must have iT jor, Kingsway Camp Chowk, bel22 a iseue dembetence. To overcome th Eq VII was added to maRe concusveness of tang Sed Ina former sult by ay cuttin Suton. Isshveney rote, Land acquisition, rent control tibunal. Narapsatiog of "Court of limited jurisdiction”: was gven in Sulochana Amma Vs, in caratan Nair ALR. 1994'S 152, Theexpression the Cour of lnited jorediaions pecuanation VIM is wide enough toindude 6 Court whose Juttadition i subject Trista ce imtation and other cognate expresions analogous thereto. Therefor, cecte, Mow 2s (22450 combination ad harmony wth Explanation Vil pertc; "220 Order or an issue whlch had sien dees ted ec Timitea of thei Brvies and decided nally by a competent Court ow Wears f SP&cal Jurisdiction, which incides pecortor Joie Aedicata in 8 subsequent sult or proceedings notwithstanding Ae fact t NnNG¢ oF Special jurisdiction was neta competent Court to ey 9 ‘Same Title: The next condition of rs judicata is canchtve litigated under the same title as in the fa Taenany Me test of res judicata is identity of title fr ‘Gentty of subject matter Involved in the ten eece hrough of Farmer suit: Explanation 1 provides Suit which has been decided prior thereto [E4e Its the court which decides the Sut has to be considered and nat the ea cayna Prabhu Krishna ackgrding to Explanation 1, borred by res je ie Sroceeding sought to be | Sito so gwetio Bare nnd or Becomes Hal by operstion ot ear g bar of res jucicata would enp res yaicata does not depend on the existence of right of appey ‘ For re¥judicata does not depend on the’ Bq whether the same issue under the Bs been heard and finally decided, | | Apphicabty arbiagn i sz oan iggsXRule of res udjfata can be invoked not only in ‘Subsequent separate ICarcupstgutnt stage ofthe same suit SRS sone ne re ahyerSien whicharmery prevailed inInion Court wee thot this secon wax nal gpotclicw exgdray proccanar tones nae eee a en wo ra Kauri (1813-24 1.4. B7), the Privy Council held that thought ‘the section in terms does| not opal endton orden hepa essa ee hens Je matteAs pb Set et rest by Explanation Vit (onus one nea Peet Arendment dn tay don tat he econ ae opie teak thereby contrming the View of the Pky Cassa eee 2 SUMMARY PROCEEDINGS: The Coat High Court hd ears held thot he qeston fas Judea can are in conserueer ot antredent smry ences aes Lahore igh Court had ne that the decnanofs Bsr ooee reese Heme nature does nt aperate a es udcta to ara sbseqsee sa isms aT the sme ueston te contony ws a est nen the ey Soe nRitian aw Tretiyitcn the Lahore High Coit a Babu Bhagwan Dia Vs. Gis Har Sroop (67 1. 1). "i pre this decsico, the Caledta High Court tas aco held the re. of res judicata does nok © non Application of Rate of Resjudicata (Where does Resfudicata not apply 7) () When there is no adjedication between parties. (3) Where the comectitexprettion of provision flan was neck in question bebween the parties. Finding on tithe by small cout Goes nck bar second suit (™) Uf finding is ultra vires the powers, then it does not operate as {es (@) When 2 suit is Csmiased on technical ground then sry Finding * binding. DIFFERENCE BETWEEN RES JUDICATA AND ESTOPPEL. Res judicata « 2 Concept: . ‘suit filly heard and decided cannct bbe presented further as 2 sat. 2 Objectively public policy and of multiplicity of tigation. . Ne we, se Contained in Section 12 is that if 2 plaintiff yas been restrained to fle 2 suit “speotic cause of action then he cannot file a satya any other court for the $316 Cogs action. In this ‘fetion fallowing provisions of CPC may be examined:- Order 2 Rute 2 A pani must om af elie for which he seated bef to ix SERA 2 Aes ees wary roped are puatce fr ttre he cannot tal sseperote so Order 9 Rigle 9: If on the date of hearing the plaintiffs absent, the sut is rejected by theSAS i i cn Ce cncveimaetie Court, then second suit canct be instute fo saié Last Of this rules. 2p SESS age a ‘Order 22 Rule 9: When a sutis abated or rejected no further sults allowed In relation to same cause of action, Sr Be a Order 23 cule 4: Ifthe plaintit withdraws his suit he cannot fe further'suit without Permission of court on same cause of action. REVIOUS. LON 1. A the owner ofthe shop and ajoining vacant ste, brought a: 200/- as arrears or rent on the allegations that B has been! fenant at a rental of Rs. 100/- per months and that he had 8 contested the suit and pleaded that he fesPect of the shop, but also of the vacant site, a| {that he had already paid the rent in suit. The co (Whether the vacant site Is included in the Gi) Whether the defendant has already p [The Court finally heard and decided these in the defendant's tenancy and the de fant site on the tthe decision on could not be res judicata How wouta you deciag tha the interpretation of word Ni in issue? (D.2.S., 1971 Q1) 2. “A mortgaged a proy A, Brgad Qrought a suit for a declaration’ to the extent of 1/3rd and that got Bhyding on'any of A and C.K. contended thet 1S eropeley. That contention was upheld and the XC Dfought a suit against A Claiming them (or¥srd property.A pleaded that the suit was. | smissal of their suit aginst K. Deci . 3. 8 ng to A. In march, 1981, A had filed 2 suit for pobsessie SpSSposser In the house. The suit was contested byB QUA. | who le ‘the owner of the house by adverse possession. The » ft PGi WAR Gi 13th July, 1981, on which date B appeared in the court but |i Q Qs. Bmbie Tscos nokend « pang Sees remenc unary att A hea 2s sur \ iS ions ereezon gh 2ncpdy fied NaMit for recovery of possession and mesne profits from her tenant. Peron legis at ent onus rte Gn aes ose aigion gd pans zal ere tan oe as ecion eran {aur ebiction petitions were rejected by the Rent Controller on the objection ofthe fenank thot it was Civil Court and not the Rent Control, which had Jorisolc ny EntertSiprevicuon suit against him and Rent Act did nat apply on hs tenance eh ded that those Judgements of the Rent Controller constitute: resjosions | ora se Parties and the tenant cannot be allowed to approbate and reprobate 2nd he is also estopped from taking Inconsistent pleas inthe civil cain t i Dispose of the pleas of tenant and landlady by a reasoned order. Ad toS 2 ciel sult for electment ancterrears of rent against 8, C and D alleging that is tenant ® was in arrears of rent ahd C and D weit his sub-tendnts.. Only Cone, na 8x, IT Floor. Kingsway Camp Chowk, Delhi-1i6005~ ambi Phone: 011-27119150, 36913949 Email : law_at ‘anibltionGhotaincee ce Pr25 Speak Tl Court decreed the sult for arreas of rent against 8. It was held c ag were not sub-tenants. Only B filed appeal which was dismissed but the Appellate rt wile observing that any evience led by Cand D coule rot o2 read ogeinst © observedthat it appeared that C and D being dosely related to B were in possession gnhis behal A filed second civil suit for ejectment and arrears of rent now pleading, inter alia, that Cand D were licencees of B and that the Judgement ofthe Appellate ._ Court in earier case will operate as resjudicate. 1s the plea of A about resjudicata correct? Give reasons for your view. 6. Bank fled suit for money decree against the partnership Partners, B,C D and E. Trial Court passed a decree against thee Partners, B and C and dismissed the sul against remaining po went in dppeal challenging the decision of the ial cou claim against partners O and E but did not iplead frm ond Parties tothe appeal The question is whether A, Band Jo their absence the appeal is not maintainable? ‘Give deision and reason for it. 7. Discuss wheter the rule of res judicata lad drow in ‘and can be extended to execution proceedings psa 98. Distinguish, with illustrations, between of possession. C's contention is that tenant of 8, Discuss the val QS. Does the principle of Re-judl QU0.. what matter can be adjudi what case a plaintiff is precluded from instituted suit has: Pout the suit itself was dismissed? fe case that the suit was not jon. Ip further held that the suit should (Ae neerg-memcrneacoEy dead rvuen enetdon 9s dishes comgromg DDeneft of success in trial court and recognized A as provicing ve pate il fo evernment was passed. A apprehending loss of all lands, even revere ter than rivesypeds, filed @ sult In 1962 tothe effect that he was ruling chico K tent raféed peas as Unger: (\sul\s barred by red judiciate, because, on basis of admission of A, it had been vious suit that he was’not a ruling chief. Suit is barred by principle of few\o Estrobpl. (Q1. (Ii) B3S 1973)) ‘Ambition Law institute, RE Floor, Kingsway Camp Chowk, Delhi-120009.CHAPTER - 6 = 4 FO! JUDGMENT Synopsis (Sec. 13 - 14) 1. Definition & intent 2. Scope of a Foreign Judgment. Conclusiveness of foreign Judgement 3. Foreign judgment in case of exparte decree 4. Presumption ac to foreign judgments (See. 14) Section 2(6) of cPC says that: ‘oreign Judgment’ means a judgment ofa forelgn 2edament means an adjudication by a foreign court Fourt Of competent jurisdiction cam be enforced by an Ipdta Judicata between the parties.thereto except in Wes Accordina'to ?) not by a! competent court. ) not on merit. ©) against International or Indian la 4). opposed to natural justice. ©) obtained by fraud. ‘1 founded on & breach In Padimini mise Vs. RS Judgment cannot be bd tofeyot Facts bringing the ops In short wwaé neither 2 Retions AIR‘ 1991 011 263; A forsign absence of pleas or proof of materiak ted in clauses (a) to (f} of section 13. ee Del 22. The defendant dofRicil nor} resident of Pakistan on the date of the ‘commence c athe dat@ of tye decree. Moreover, the defendant did not also Submit: t haxistarr Cobre and he was not served with summons while in Pakist&, gs ofthe case the decree of the foreign Court was held to be a nul int that the foreign Judgment has to be passed only to operate as res judicata in the Indian Courts. Windia Trading Co. AIR 1964 SC 538; the court held byantgeign C Tngadat afae tng seBbcyender NGitigd cour is enforced on the principle tht where S cou at contpetSeejurticedr hadyedjucicated upon a claim, a legal obligation arses to sets, thot Wein pe esSnQrptate ncmotonl an cece see eee es say comity of nations certain rules ae recognized os common to .Ahroush part of judicel system ofeach state these common ves brave beehadorfed to adjudicate upon dispute loving foreign element ond to eoctone suldgments\e opin courts in certain matter, or a5 a result of international convention ee eee eee ae St es uae orn nh rat ih ee eciraen ec neigremnnemnsiecmnievemeentinestotemcrees ; 27 3. Assues B in a foreign court and obtains a decree. He then sues B on that judgment in India. Bis not precluded trom ring apa that the judgment of the foreign court isnot conclusive and does not operate as res Judcata since twas obtained by fraud. InAnoop Vs. Jagbir Singh AIR 1990 Del. 305; the court held that, Where 2 decree of vere was passed by & Court in England whch was competent to entertain the proceedings | under the law of England, and which had taken the correct view of international law, had frovided opportunity to the wife to record defence evidence, and passed the judgment on | merit was not opposed tothe principle of natural justice, held the dec oer tn Jacquieline Kapoor Vs. Surinder Pal Kapoor AIR 1994/R.& Nuyere the Gtil's mother, a foreign national, was granted child's.custody 2 fo Sednone | of the exceptions detracting from the binding nature of the for a been pleaded or sought to be proved, held, the foreign judament Swen byathe family Soy ofthe foreign country were binding on the respondent jisbana In case of ex parte decree-A decree of forefn be binding on the parties thereto and wil be condusive undef {and decisions were given'by the foreign court on an ex: |, porte foreign decree passed in 8 summary mag ° toot | going into the merts ofthe case or taling oy erfoee 1300) nd | cannot be execited in India, Where the inatens onthe | points at controversy between the pari ond § Deen siveg/ex parte on the! Bleading and documents, of the plant Setween the parties, 25 the defendant was nat present, x meth, it was not conclusive. ae fen by a foreign court conclusive as to matters decided therein and ich a judgment be enforced in India? 3.4, HA on married B, Hindu female, at Delhi on 1st March 1970, according to No ecen araane ee RSS ee an een ar ere iq Slbaderof hs High Court of Republic of Btseens hod rder but produced only a simple copy held, no implicit ‘corpus proceedings, on an uncertified copy ofthe order. 'A migrated to New York (U.S.A.) on 1st January 1972, leaving behind 6 in India A ¥pplied in a court at New York against & and obtained an exparte judgment and decree of divorce, without due service of notice on B, who all along remained in a india. B brought 2 suit at DELHI for maintenance as wife against A.A pleaded that in view of decree and judgment of divorce, B was not his wife for the reasons os unciens (i) Decree having been based upon a foreign judgment is blading’ under section 13 of Cage of Civil Procedure jon Law Institute, 81, 1 Floor, Kingsway Camp Chowl, DelhlAi0005.CHAPTER -7 a | LACE OF SUING’ (Secs. 15 - 25) ‘Suits relating to immovable property (Sec. 16) Suit relating to jurisdiction of two or more courts (for immovable 1 2 3 4. Local limits of jurisdiction of court (in case of uncertal 5, 6. ) (Sec.17) Suits relsting to wrong against a person or propert Suits in other matters (See. 20) Hing to jurisdiction. 8. Objections relating to Jurisdiction 9: Transfer or withdrawal of cases 20. Power of the Supreme Court to transfe 7. Agreement rei General Principle: pains Jurisdiction in that matter: (The t Of the Court, pecuniary or territoriah i Location of the 1A Suit relating'te immovabio whose local area thi ther limitation means any special jurisdiction. ‘mp be the suit 7elating. to immovable property Ia hose jurisdiction the property is situated, aT (Grader erdBele Ay (ith eet rents ores. Branton eee eDeecr nopey ef wanes fr 39 redemption (in case of mortgage and charge on immovable propety). est in immovable property. (Right to fishing in a pond for one year t; Right to-do boating work in Jhee’s occupied through government) ‘givdg by som (e) Damages wrong against immovable property. (a neconeh of tached movable property. ~ fiben 2 Suit for damages against defendant on the basis of wrong against immovable Property is to be filed then such suit may be filed (2) either in the Court within whose local limit the property is (2) or in the court within whose local area the defendant resides or works, (c) SuitFoprocecios (2) any othef right or i) howk, Delhi-Ai0003, bition@hotmall:comE Section 17: 29 When any suit relating to any subject prescribed in Sec. 16 Is required to be filed and the property Is situated within the local Jurisdiction of two or more courts, then the suit Frey wed any one of such courts (keeping in mind petunlary and other mits prescribed Mee Suits filed, the valuation of ail such properties is considered together and Court fee is afted accordingly. However, its a recognized principle of pleadings that a paintif may relinquish any part of his daim so as to brng the sut within Jurisdiction of particular Court. Section 18: Where the immovable property in relation to which a suit isto be’ two or more court's jurisdiction and it is not certain as to whieh jurisdiction. Such problems arise when jurisdiction of Court is a&ended mah boundaries or areas of administrative units of the state are changedspy the stat Insuch matters a suit may be filed in any court in relation tay g00d faith that such Court enjoys jurisdiction in such mpétter. es within the real or the ways open, the aggrieved party 5x3) cases CPC is not applicable ang Ifhe opts to bring Civil prod him for claiming compen: such suit may. be filed in gongdger-a civil suit may be filed against Hag or wamadies as theese %25 on business or works for gai fe Zefendants, and such defendants are living or carrying for gair in jurisdiction of different Courts. The suit may be filed ose leal limits any of such defendant resides or carries on ‘BLE (a) with the permission of the Court or (b) with the os colgent of, CAUSE OF acTro! ‘The term "cause of action’ means 20 act or omission-giving rise to aright to plaintiffta file a.suit basieally connected wit In matters of contract a sult may be filled where the ora case In which no writ the court has to write 9 Code. represented by pleaders, the court sho 3S to the c made to ensure that the decree and in any case; within fi is further provided that copy of a decree. In s when a joer partes immealeOa fon such chargés as mal ements Soenmanmaiem The judgments of a Court of Small Cou it ; a creer of 8 cu Causes need not contain more than the points (il) and ; decisions thereon (i) In Sea the cour must record ta eree Insults whi esues hove ben Warne, Whether it is a case contested by the defendant tten statement was filed and judgment which must be in wire prcticabie, ine fortes ore nok ito which an aati or ting such Rule GA (as amended by t ‘every endeavour is to be 1 UP a5 expeditiously as possible, the judgment is pronounced. 1¢ prefetred Against a decree without filing a ‘theSydamen’made available to the party by tie: rok Of Order XLI. Itis also made clear thot ment should be made available f the ‘Judgment (to enable the party to appeat) ‘made by the High Cour. ries -e Pyus the date ay/which the judgment was Pronounced, and the | Qkene ASS offige after pronouncing the judgment, but without signing fn up in accordance with such judgment, and the sane Sdgment ond the decree are to be furnished to the parties on yf. and at their expense. (Rule 20) one ‘ovisigns fpr Decrees in specific matters - Ri which my beqummarised as follows: 1 1 the Xubjéct matter of the suit is immovable property, the decree must contoin @ description of such property sufficient to identity the same (including boundaries cna survey number, if any). I the decree is for delivery of movable property, it must also state the amount of ‘money to be paid as an alternative, if delivery is not made. Ifthe 4 a0 is for payment nf money, the Court may, for sill restan ee | Auibition Law Tastitute, 81, 1 Foot, Kingsway Camp Chowk, Gein-aToaoo—as” 5. a 2SFER an Ss that payment ofthe decretal amount should be pastponed, or fiade ee ‘with or without interest, notwithstanding thé contract between the par ae ca or egebeen ng Pavment orallowing payment by instalments ts aplied fr by the judgment He BROT ater the passing of a money-decree; such an order cen be passed only with the consent of the decree holder . Hike sults for receiving of possession of immovable property and for rent or ‘mesne profits the Court may pass deco, (2) For the possession of the property. (®) For the rents to the institution of suit, or directing an inqui which have accrued on the Property during the period, 3 For the mesne profits or directing an inguly as to Directing an inquiry as to rent’or mesne profits fro “CO The delivery of Possession to the decree ii) The relinquishment of possession by tf ‘decree-holder through the Court d (ill The expiry Of three years from ty occurs, © @ Ifthe suit fora n account ofany the decree of the: ie Court, (Le. admig niary, where the legacy is, not paid to him by feceased. . 4, for their share in the estate of the deceased. together with the costs (if referred to in clause (a). In suit for dissolution of a partnership or for takin, before passing a final decree, the Court may pass a prel proportionate shares of the parties fixing the day dissolved and directing such ietninks it. > 1g Of partnership accounts, liminary decree, dectaring the ‘on which the partnership stands ‘accounts to be taken, and Such other acts to be done, as10, a. Cos a7 In suit for accounts between a principal and an agent, and in other suits where it becomes necessary to take accounts, before passing the final decree, the Court ‘must pass a preliminary tecree directing such accounts to be taken as it thinks fit. If the decree is for partition of property or for separate possession of 2 share therein, then- {@) if and in so far as the decree relates to an estate assessed to payment of Government revenue, the decree must declare the rights of the parties and direct the partition or separation to be made by the Collector of An other gazetted officer subordinate to him; (b) if and in so far as such a decree relates to any other i Court may pass a preliminary decree declaring the’ giving such further directions as may be requiredCHAPTER - 9 . EXECUTION (Order XXI - Sec. 36 TO 74) ‘Synopsis 1. Definition of Execution 2." Executable decree 3. Meaning of expression “Court which passed a decree” 4. Courts by which decree may be executed y 5+ Documents required for sending a decree for execute adh S- Transfer of decree for Exceution 7 Precepts S. Questions determined by the executing cot 9. Constructive Res judicata and execating proteed 20. Transferse of a Decree 34. Legal Representative 32, Process of Payment under a de 13. Application for execution 14. Notice before Execution 45. Execution of Cross-Decres 46. Mode of Execution. 17. Stay of Execution . Distribution of ass, . According to the the Oxford Dictionary ifes the enforcement or giving effect to a judgment or order words execution is the enfe decree an f execution, tt know certain Basic concepts involved In execute Sxecutable decree: Executable decree or decree to be executed is the decr of the Court of th vastance, iLno appeal is preferred. If an appeal is preferred, tna shedecree of the | te Cour The two important requisites of an executabigldderee are: .r . 5 . ) The decree to be executed must be a subsisting decree. (decree passed by court & still alive) (0) Its execution must not have been barred by the Limitation Act. ‘This provision is applicable to all orders, and is not limited to orders under the Code only. what fs meaning of the expression “Court which passed a decree?” cording to Sec. 37 of C.P.. following are the courts which pass 2 decree - (0 The Court of first instance which actually passed the decree. (@) The Court of first instance in case of appellate decrees. (i) Where the Court of fist instance has ceased to exist, tl jurisdiction to try the suit at the time of execution, and the court which at the time of execution would urt can ex decree? ‘Sec. 38 contains the general principle that 2 del ‘court which passed It or by the court to which it with the help of following cases. In case of Narhari Vs. Pannalal AIR 24 as amended by the C.P.C. (Amends too may be tvansferred for execution. Such court tgbcan ‘Court, however must be one governed. by the C.ACof 2 under the code. In Hamnir Singh Vs. Bh 1 627. Calcutta high court held that a court decree and must execute it as it stands. The fain any objection as to the validity of the decree, or 1e decree, as for instance an objection that the decree Wf against 2 wrong person, or that it was passed against 2 roperly represented. But if the decree passed by a court iédiction to pass it, is the executing court entitled to refuse to fe was conflict in opinion between various high courts. Later on anendra Mohan Vs. Rabindra Nath 1933, 60, 1A. 71 and the in Karan Singh Vs. Chaman Paswan 1955, 1, SCR 117 resolved the npn. It was held that a decree passed by a court without Jurisdiction is o favalidity can be set upwhenever and wherever it is sought to be enforced relied upon, including the stage of its execution. court cai fer dec executior According to See. 39, the Court which has passed a decree may, on the application ane desree-halder, send it for execution to another Court of tompetent wncacron aor ‘Question is when it can do so? It can do $0 in following eases. —TE TT ally and voluntary resides, op (Oliree pesos sons whom ee in te focal Mana ‘cartiers_on business, of personally works for jurisdletion of such ater Cou oro, ere » enorme keene such person has no oro win ree and has propery within efor ece are a a ec the local limits ofthe furisdiction of such other courts: or lin iu sityated the | (©) If the decree directs the sale or delivery of immovable sen Sutside t ‘cal limits of the jurisdiction of the Court which passed it; (4) If the court wi te dace considers, for any other rl record in writing that the decree should be executed bys Ukewise, the court which decree for execution to ai passed decree may, also ors own ny Subordinate court of competent jurisdic Sent for execution to another Sta Rules 5 and 6 of 0. court, the court passin lirespective of whether: {0 which the decree is sent) has no jurisdietj the court hving such jurisdiction, When a court sends a decree for document are required? XXI providesthat if a decree isto b Temust send the following threg (@) 2 copy of the decree: ()..2 certificate that the decre Ys the extent to which s; ascoun ee has the in exécuting such 2 decree ast Me dderce self. Thus, all persons disobeying or obstructing theexecuth fe Punishable by the’ executing court in the Fee: Likewise, the orders of such a court in the same rules i in respect of appeal, as if the , namely, - to der execution at the instence of the transferee of the decree; and filed to appear. | Tinetes a transferee Court can further transfer the decree to anéther Court for execution or not? ai 5 8 ,a1 ‘Amendment of the Code, the Courts had taken the view that since transferee Court was limited to the execution ofthe decree transferred tof could not again transfer the decree for execution to another Court. However, this Wer es been altered by 1976 Amendment, Sec. 42 now expressly confers the power on the tansferee Court to send the decree for execution to another Court. Provisions are also made in the Code for execution of - (2) decrees passed by a vil Court in India to which Civil Procedure Code does not extend, or to any Court established by the Central Government outside Ij (P) decrees passed by Revenue Courts in any part of India, to whichpe Code does not extend (Sec. 4 (©) decrees passed by superior courts of a reciprocating t territory outside India which is declared by the Central territory for this purpose. (Sec. 444) Precepts (A written order or a mandate) : See. 46 of the Code provides that the court which passes f of the decree holder, issue a precept to any otker churt execute such decree to attach any property bely Inthe precept. The court to which such a pr the same manner as property is to be Before the 1976, P the jurisdiction of the all quest in which the decree was passed, oRtheiy discharge or setistoction of the Ao decree and not by a separate &% nthe parties to the suit ting to the execution, he-Court executing the Condition for applica ordNpetween the parties’ do not necessarily pEtendent, butalso cover parties opposed not Included in the decree, or in excess of the decree, the 7? apply under this section for the recovery of such land, and 2 purpose will not be. Cress : (0) prigeny seDrih execition of an exparte decree which i set aside-! propery is realSqsnQeciton oon ex pate dazee wits atonal ese te odor sebes ruse resto under hs econ He cat le separate sat for te rere QestioNnot relating to execution discharge or satisfaction (2) Payment before decree-when a decree isbeing executed, itis not open to the judgment debtor to contend that he should get credit for the amount paid before the decree. (8) Second suit for redemption - If 2 mortgagor's, n ettéct, ringing a Suit to excite ® previous mortgage-decree for redemption, the suit would be barred under Sec. 4? If —a2 however, the right to redeem was reserved to him by the decreein 2 fresh suit for redemption can be filed. Agreement waiving right to execute decree: Trent oe ee nore, after the passing of the decree, the parties eter Into on 2areement Dot 9 Execute the decree, the question whether such an agreement con eeleeecea (geution depends upon the nature ofthe agreement and the intention of the partes. Ii [5 clearly the intention ofthe parties to abandon the decree, and to entgy Into 2 new an Gifferent contract in supersession of the decree, the contract may {4 Subsequent Suit, and the section is no ber. Where however, the 29 Suersede the decree, but is merely pleaded as a bar to exeastog induire into and decide the matter under this section, section t Rule 2, where such an agreement amounts to an adjustment Constructive res judicata and execitiof proceeding White itis true that the doctrine of constructive res Proceedings, the Court should be cautious in its applic on the principle of constructive res judicata, ‘Fespresentatives of the deceased sought to be soya allow the property sought to be sold as property ‘and{then qeustion the sale. But this bar will be attracted ‘representatives were made aware that 3 3 may be noted that Sec. 11 of the Act (ded ij ag also péen amended to Provide that the section also applies, In matters falling under Sec. 4p Sxthe 2 he Court may, subject {6 any geustion of limitation or, Nog 05 2 suit: Likewise, 9 suit filed in relation to a matter’ be'freated by the Court as a Proceeding underthe said rder.in execution mechanically, without tiestowing careful ‘of interlocutory proceedings, Jeading to unnecessary aW/as High Court in one case. In thé. same case, the Cou 1 of Sec. 47 isto prevent wasteful and prolonged ar fi the previous sult, insferee of a decree holds the same subject to daqen/debtor might have enforced against the original sduifist B for Rs. 5000. B holds a decree against A for Rs. not execute the decree against & for more than 2000. 2 Whatis the Scope of Sec. 50 for legal representative? Who isa leg3tcepr || n awcepdgaBnts the Bie of deceased person, including any person who interned |] with tnd estate fp/twe deceased. | sec. Bgorecoe rovtes nati jugment bodes etre the ee hs been {lf susie ob ker crtnedeces nevapnymiecatenmneser execute tne same ageipe te legal representative of the deceased, When suchs donee le Seas |[fogainst such 8 legal representative he Is liable only to the extent of the property of the Wifbscserecsletoc hae ctaaloola ands oncllnestyotne Uaafacse cr ose oie |Poroose of ascertaining such habit, the court executing the decree ay of cen nee |r on the application of the decree holder, compel such legal representative to produce ‘uch accounts as it thinks fit. : inst a dead person is nullity and || Pinpltion tow insite 82, Tt Floor, Kingsway Camp Chowk, Delhi-110009- home: 01 4-9712075ASANOAZOAD Kemall sata ne mene ODaa ‘not executable against legal representatives of a deceased defendent. 1 Miya Peddakka Vs. Jangiti Bala Thimmaiah (1996) 4 An L.T.74 court says [Ret Where even prior to issuance of sale proclamation the judgment debtor had died but, ltrespective of that execution proceedings were continued and sale was held and was cenfitmed held the entire proceedings were nonest for want of notice to the legal representatives. The sale cannot be held valid without bringing the legal representatives (on record. Therefore, the sale was not valid. Its to be noted that Sec. 50 has to be read along with Sec. 52 and What is the process of payment under a decree? ‘According to Order 21, R 1, all money payable under a decree Is to, (2) By deposit into the Court whose duty itis to execute the by postal money Order or through a bank. (®) Outof Cour, to the decree holder by postal moneyErder O ‘other mode wherein payment in evidenced in (©) Otherwise, as the Court which made a decree, If money is paid by a pastal money Order or should be accurately stated (2) The number of the original suit. @) To defendant. © ether it Is towards the @ (if any) oppointed in this bell or if the decree hos ‘oral application of the decree holder. In ell other eases the "ofa decree must be Inwriting, signed and verified by the applicant iso contain the following ten particulars in e tabular form: (@) whether any appeal has been preferred from the decree. (saat, and on) sate payment ater efter of me mar 5 ae Controversy has been made between the parties subsequent to. the decree, as .44 Of the decree, the dates of stich applications and their results. (9) the amount with interest (if any) due upon the decree or other rellef granted thereby, together with particulars of any erass-decree, whether passed before or after the decree sought to be executed. () the amount of the costs (if any) awarded. (0 the name of the person against whom éxeaiton ofthe decree is sought, and, @) _the mode in which the assistance of the Court is required, whet (2) by the delivery of any property specifically decreed, (2) by the attachment and sale, or by the sale with atta (3) by the arrest and detention in prison of any person. (4) by the appointment of a rezeiver (5) otherwise, as the nature ofthe relief granted fay requite st whom execution may be taken out Execution may be taken out against the folowing (2) sudgment debtor (2) Legal representatives of the judgr (3). Representative of or the person cath , (4) Surety of the judament debtor According to Orde a . tion of a decree the. court must first ascertain if all tee been compiled with. If IRIs 50 satisfied, it Orders execud been complied with it may eit «the application within a ¥ ty; le as surety or the performance of a decree on for the oF for the payment of any money notice must be given to nis issuec against him. (Sec. 145). bpen transferrec by assignment, and the transferee has applied tion fecree, notice of such application must be given to the transferor the uggregyredtor (Rule 16, Order 21). For applying the provision of this rule the following conditions must be satisfied (2) the cross-decrees are for the payment of two sums of money. i (2) the cross-decrees were passed in'separate sults, ; | (3)_ both the coss-decrees. mustibe capatie of execution a the same time and bythe same courtand, —- 4 ° ee4s (4) the parties are same in both the suits, Tels defined under Order21, Rule 19.In case of Mahendra Singh Jaggi Vs. Dataram {arnath ATR 1999 Sc 1219; R must be shown by the party seeking relief there-under taklte is entitled to recover a sum of money under the very same decree which s sought wie racuted by the other side. The words “application for execution ofa decree under which two parties are entitled to recover sums of money” in the opening part of the rule Carly indicate that there should be two rival claims by contesting pres against each other arising out of the very same decree which is sought to be ext ‘ong of the parties against the other pa ~ Simultaneous executio ‘According to Order Rule 21. The Court may in its discreat hq seme time against the person and property of judgment Even if judoment debtor had been in Civil pri attachment of property to realise his dues. ‘Modes of Execution: Rules 30 to 36, of Order xxi lay down the mog Under Rule 32 if a-decree is passed Contract or is in the nature of an injunction’ a Q y italthough hhe has had an opportunity of obeying yf the gRcro cans is detention in Civil prisons or by the attachment of fs propefty, or DKD.. the-court may, also order that the act which is to be de es ityacticable by the decree holder or some ather person 9 at thd gost bf the judgment debtor In Yashpal Singh Vs. Yetrke sudgdY1992)2 S.c.¢. 502. The Supreme Court held that & 32." aly to a party against whom 3 ecree for injunction ha: In Govindan Thdaka, that (Disregarding(gart and it can be invol of property canbe In Ajasi Kaur V3 directed 0) Ker. L. 88. was decided {ended to punish a conimaccs party Detention in vl picon or atochment ee stands unenforced 5 Pigsgh (2377) 2 am sox. in this case, 2 woman wos Sevens he daughter rm eterngte heehee ers eDater( 0 was of full age) to reside in her house. The* (stitute a breach of the direction under the decree, Under Rule 26 of order XXI, if suficient cause is shown, the Court to which @ scree has been sent for execution can stay the execution of the decree for a eesonable time to enabieltiie Judament debtor to apaly to the Court which passed the cries cee ‘{epeliate Court for an order staying execution of the decree. However, belore ordering 0 S2y of execution proceedings. the Court must reauire such security from, er imooce & lS