UNIT 3

Q: INDIGENT PERSON
Suits by Indigent Person
Order XXXIII of the Civil Procedure Code talks about suits by indigent
persons. Section 304 of Criminal Procedure Code, and Article 39A of the Indian
Constitution respectively mention, legal aid to accused at state expense in certain
cases, and equal justice and free legal aid.
Who is an Indigent Person?
Indigent means poor, penniless, pauper. A person is an indigent person who is not
having sufficient means to pay the fee for the plaint or where no such fee is
prescribed, he is not entitled to property worth rupees 1,000.

Order XXXIII of the Civil Procedure Code provides remedy to those who need to
institute a suit for the enforcement of their rights but are so poor that they cannot
afford expenses on court fees etc. The object behind this order is that poverty
should not come in the way of getting justice. 
Application for Permission to Sue as Indigent
A person may sue as an indigent person only when the court so permits him. When
the application is made for permission to sue as an indigent person, every inquiry
shall be made in the first instance.
An application for permission to sue as an indigent person shall contain the following
particulars-
1. Particulars received in regard to plaint in a suit.
2. List of movable/immovable property belonging to the applicant with the
estimated value.
3. Signature and Verification.
Presentation of Application
The application shall be presented to the court by the applicant in person (not by
any third party), but if he is exempted from personal appearance, an application may
be presented by an authorised agent. But the agent must be able to answer the
questions regarding the application.
Examination of Applicant
Where the application is in proper form and duly presented, the court may examine
the applicant or his agent regarding the merits of the claims and property of the
applicant.
To sue as an indigent person, 7 days before notice in writing shall be given to the
defendant. The court shall decide a date for adducing evidence in support of the
application. After the satisfaction of the court, it shall be deemed the plaint in the
suit, and the suit shall proceed as a suit instituted in an ordinary manner.
Who may Appeal as an Indigent Person?
Order XLIV of the Civil Procedure Code talks about appeals by indigent persons.
Any person who is entitled to file an appeal but unable to pay the necessary court
fee may obtain the permission of the court to appeal as an indigent person.
For this purpose, he may present an application to the court, along with a
memorandum of appeal. The court may allow the applicant to appeal as an indigent
person, subject to the provisions relating to suits by indigent persons.
Period of Limitation
The application for leave to appeal as an indigent person must be filed within 30
days. But in case of appeal before the High Court, such a period is 60 days from the
date of the decree when passed.
If there is no reason to reject the application, the court shall fix a day for receiving
evidence in proof or disproof of the indigence of the applicant. At least 10 days clear
notice shall be given to the opposite party and the government pleader.
Procedure to Sue as an Indigent Person if Application is Admitted
Where the application for permission to sue as an indigent person is granted, it shall
be numbered and registered. It shall be deemed the plaint in the suit, and the suit
shall proceed as if it was instituted in an ordinary manner.
But the plaintiff shall not be liable to pay any court fee or process fee. The plaintiff
shall also not be liable for any fee for the appointment of a pleader.
If a person has been allowed to sue as an indigent person, but he is not represented
by a pleader, the court may assign a pleader to him.
Withdrawal of Permission to Sue as an Indigent Person
The defendant or government pleader may apply to the court for the withdrawal of
permission granted to the plaintiff.
Rejection of Application
The Court shall reject an application for permission to sue as an indigent person-
1. Where it is not framed and presented in the manner prescribed by rule 2 and rule
3, or
2. Where the applicant is not an indigent person, or
3. 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 an indigent person:
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
4. Where his allegations do not show a cause of action, or
5. 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, or
6. 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
7. Where any other person has entered into an agreement with him to finance the
litigation.
“This is the beauty of our Constitution and our laws, which ensure that even the poor
and needy are not left behind when it comes to getting justice.”

Q: WHAT IS INTERPLEADER SUIT, ITS CONDITIONS AND PROCEDURE

In an interpleader suit, the actual dispute isn’t between the plaintiff and the
defendant but between the defendant who interpleads against each other. It is
unlike an ordinary suit.
‘To interplead‘ means to litigate with each other to settle a point concerning a third
party.
According to section 88 of the Civil Procedure Code, two or more persons claiming
adversely to each other the same debt, sum of money, or other property (movable
or immovable) from a person who does not claim any interest therein except the
charges and costs incurred by him, and such person is ready to pay or deliver the
same to the rightful claimant may file an interpleader suit.
For instance, X is in possession of some goods which is claimed by Y as well as Z. X
does not hold any interest in the goods and is willing to deliver the goods to the
rightful owner of the goods. X may institute an interpleader suit. Now, the court will
decide the rightful owner between Y and Z.
Conditions for Instituting an Interpleader Suit
 There must be some debt sum of money or other property movable or
immovable in dispute.
 There must be two or more persons claiming it against each other.
 The person from whom such money or property is being claimed must not be
claiming an interest therein other than the charges and costs.
 Such a third person must be ready and willing to pay or deliver it to the rightful
claimant.
 There must be no suit pending wherein the rights of the rival claimant can be
properly adjudicated.
Who May Institute an Interpleader Suit?
In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr (1937), it was
observed that a person who has no interest in any debt, the sum of money or
property except the charges or cost and such person is willingly ready to pay or
deliver the property to the rightful claimant may file an interpleader suit.
Procedure for Interpleader Suit
The procedure to file an interpleader suit has been laid out in Order 35 of the Civil
Procedure Code. The following additional facts must be stated in the plaint of an
interpleader suit:
 The plaintiff claims no interest in the subject matter in dispute other than the
charges and cost.
  The claims have been made by the defendants severally.
 There is no collusion between the plaintiff and any of the defendants.
At the first hearing, the court may declare the plaintiff discharged from all liability,
award him the cost and dismiss him from the suit. And based on available evidence,
the court may adjudicate the matter. In case of lack of evidence, the court may
frame issues and try them by making one of the claimants, the plaintiff, in lieu of or
in addition to the original plaintiff and shall proceed in the suit in an ordinary
manner.
It was held in Jagganath vs Tulka Hera (1908) that a suit does not become an
interpleader suit simply because the plaintiff requires the defendants to interplead
with each other on one of the plaint’s prayers
The Person Who May Not Institute Interpleader Suit
According to Rule 5 of Order 35 of the Civil Procedure Code:
 An agent cannot sue his principal,
 A tenant cannot sue his landlord,
for the purpose of compelling them to interplead.
An exception to this general rule is that where the claim is made through the
principal or landlord, the agent or tenant may file an interpleader suit against their
principal or landlord, respectively.
Charge for Plaintiff’s Cost
The court may provide for the cost of the original plaintiff by giving him a charge on
the things claimed or in some other effectual way.

Q: APPOINTMENT OF RECEIVERS
WHO IS A RECEIVER?
The Receiver is an independent and impartial person under order 40 of the Civil
Procedure Code, 1908 who is appointed by the court to administer, that is, to
safeguard and maintain the disputed property involved in a lawsuit. He is not a
representative of either of the parties to the action and is uniformly regarded as a
court officer working in the interests of neither the plaintiff nor the defendant, but
for the common purpose of the court and benefit of all parties involved.
ROLE OF A RECEIVER
The Receiver is regarded as a court officer and is the court’s extension. He is
responsible for receiving disputed property or money provided by the court and
managing such property or money until a decree is passed or the parties have
compromised, or any other period considered appropriate by the court. Custodia
legis, i.e. in the custody of the law, is considered to be the property or fund
entrusted to the receiver. The Receiver has no authority other than what is
entrusted to him during his appointment by the court.
APPOINTMENT OF RECEIVER
According to the Code of Civil Procedure, if it appears fair and convenient for the
court to appoint such a recipient [section 51(d)], the court before whom the
proceedings are pending may appoint the recipient. It is within the court’s
discretionary authority to appoint the receiver. In a suit, for instance, a receiver can
be appointed by the trial court. Whereas the appeal court can appoint a receiver.
However, there is no absolute, arbitrary, or unregulated discretion. The phrase “just
and convenient” does not mean that the appointment is based on the judge’s whims
and fancies on any ground that stands against equity.
PROCESS OF APPOINTMENT
Before naming a receiver, the Court must keep the following principles in mind:
1. A receiver’s appointment is a discretionary power.
2. To the complainant, it is a defensive relief. The aim is to safeguard and retain
the disputed property until the court is awaiting the suit.
3. Unless the plaintiff shows prima facie that he has a good argument against the
defendant and it is more than probable that he will prevail in the action, a
receiver should not be named.
4. One of the most challenging remedies is the appointment of a receiver since it
deprives the defendant of his right of ownership before the final decree. The
court should not, therefore, appeal to it solely on the ground that it would do
no harm. There should be strong concern that if the appointment of a recipient
is postponed, there is a risk to the property, or the complainant will be in a
worse position.
5. And where there is a risk of mistake or injury should the court assign a
recipient. It is also shown that the subject-matter is not in the hands of either
 party and that it is in the best interest of all parties to appoint a receiver to
secure and retain the properties.
6. The court should look at the actions of the party making the motion for a
receiver’s appointment. The group should come to the court with clean hands
and their actions should be such that this equal relief is not disenfranchised.
The process of appointment of receiver is:
The process of appointment of a receiver is provided by the courts in their individual
court rules.
1. Application for appointment shall be created in writing and shall be supported
by official document.
2. Receiver aside from the official receiver has got to provide security.
3. The security is to lean to the satisfaction of the registrar.
4. He has got to offer personal bonds with the amount of surety needed by the
registrar the non-public bond are going to be double the number of annual
rental worth of the property or the full worth of the property that the receiver
goes to administer.
5. Within per week of appointment, the receiver can ought to submit a report
providing the main points relating to the property like inventory of property or
books of account etc.
6. The registrar can provide directions on wherever to speculate the cash
received by the receiver from the property. Generally, such cash is submitted in
scheduled banks or government bonds.
POWERS AND DUTIES OF A RECEIVER:
Powers:
Under order forty rule 1(d) powers of the receiver are provided as following:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents because the owner himself.
4. To institute and defend the suit.
5. Such powers because the court could reckon match.
Duties:
Under order forty rule (3), duties of a receiver area unit provided as follows:
1. Furnish security to account for what he can receive from the property as
financial gain.
2. Submit accounts (half yearly) for such amount or kind as directed by the court.
The account essentially includes the financial gain received and expenses
incurred for the protection and preservation of the property.
3. Pay the quantity thanks to the court.
4. Take responsibility for any reduction within the price of the property
attributable to the receiver’s willful negligence.
5. Discharge the duties in person and may not delegate or assign any of the rights
entrusted to him by the court.
The receiver needs to fulfill all the duties and responsibilities entrusted to him by the
court. Otherwise, the court will act against him and create him in person answerable
for any loss which could occur thanks to his negligence or willful failure to shield and
preserve the property.

Q: ARREST AND ATTACHMENT BEFORE JUDGEMENT

The main objective of justice and judicial procedure is to protect preserve and
enforce the rights of parties. This is done through the judgment and decree. So long
as judgment and decree are not executed, they are meaningless. Many times, the
defendant try to defeat the execution of judgment and decree of the court. Before
judgment, they make such a plan such as consumption of property, transferring it
elsewhere or running away.

When the defendant becomes successful in doing this, the decree of court becomes
meaningless. Therefore, to defeat such plan of the defendant, provision has been
made under order 38 of Civil Procedure Code 1908 for arrest and attachment before
judgment.
1. Arrest before judgment:
1. Under rules 1 to 4 of order 38 of the code, provision has been made for
arrest before judgment.
 a. Demand for security- when at any stage of the case, if it appears
from the affidavit of the court or otherwise that the defendant with
the intention of:
i. delaying the trial of the suit;
ii. avoiding the order of the court;
iii. creating obstacles in the execution of the decree being passed
against him:
 has run away
 about to run away
 has left the jurisdiction of the court; or
 about to leave the jurisdiction of the court; or
 remove the property from the jurisdiction of the court;
or
 has consumed the property or
 about to leave India so that delay or obstacle may be
caused in the execution of the decree.
Then the court will issue warrant of arrest with the intention that he should be
brought before the court and he should explain as to why he should not give security
to the court for his appearance.

If the defendant presents himself in the court and assures the court that he is willing
to give security or deposits the amount of claim of the plaintiff in the court, he will
not be arrested and the warrant of arrest will be cancelled. (order 38, Rule 1).

In Chimanlal Vs Radhy Shayam (1972 JIJ 36), it has been said that for the purpose of
rule 1, it is not sufficient to give security, but the security must be sufficient.
b. Procedure when be becomes unsuccessful in giving security- if the
defendant remains unsuccessful in giving the desired security then
under Rule 4, order 38, the defendant will be put to civil prison till:
i. The case is decide finally; or
ii. If the decree has been passed against the defendant, the
decree is not satisfied.
The period of detention in civil prison will not exceed six weeks if the value of suit
does not exceed Rs. 50/- and six months, in other cases.

It is to be mentioned that in case of suits for recovery of money, no woman can be

arrested. (M/s Chelsia Mills V/s M/s Choras girl, A.I.R. 1991, Delhi 129).
It is to be mentioned here that in case of suits instituted under section 16 of the
code, no order of arrest can be passed before judgment in the following cases:

2. suit for re-possession of immoveable property;

3. suit for partition of immoveable property;
4. suit of prohibition or redemption or for redemption of mortgage of such
immoveable property;
5. suit for acquiring rights for benefits in any immoveable property;
6. suit for sale of immoveable property; and
7. Suit for creating charge on immoveable property. (Order 38, Rule 1 and
section 16).
 
2. Attachment before judgment
The second method of defeating the obstacles to be created by the defendant
in execution of decree is passing order by the court for attachment of the
property before judgment. Provision has been made in this regard under rules
5 to 13 or order 38 of the code.

1. Demand for Security: under Rule 5, order 38 of the code, if the court

comes to the conclusion at any stage of the suit either from the affidavit
or otherwise, that the defendant with the intention of creating
obstruction in the execution of decree passed against him:

a. intends to consume his property; or

b. about to remove that property from the jurisdiction of the court;
then the court will direct the defendant that he should explain why
security should not be taken from him he should surrender that
property or its value or any portion of it at the disposal of the court
or to give security for that (Sub rule 2 of Rule 5).
 It is to be mentioned that until the court gives direction or passes
orders otherwise, the plaintiff can make demand for attachment of
the property (Sub-rule 2, Rule 5)
Further, the court can pass order for conditional attachment of any
property (Sub-rule 3 of Rule 5).
 
b. Procedure in case the defendant remains unsuccessful in giving security:
when the defendant remains unsuccessful in submission of proper
security or could not show any cause for it, then court under Rule 6,
Order 38, will attach the property or any portion of it which can satisfy
the claim of the plaintiff (Sub-rule 1, Rule 6).

But during this period, if cause is shown by the defendant or security is

given, then the court will withdraw such order (Sub-rule 2 of Rule 6).

Thus under rules 5 and 6 of Order 38 of the code, provision has been
made for attachment of property before judgment.

The provision of rule 5, order 38 are mandatory. In Poldhar Rolling Mills

Pvt. Ltd. Vs Vishvasaraiyya Iron and Steel Company Ltd. (A.I.R. 1985,
Karnataka 282), has been decided by the court that before passing orders
for attachment by any court, it should be ascertained that strong
possibility exists of creating obstacles in the execution of the decree by
the defendant.

The plaintiff will have to prove that the defendant will create obstacles in
the execution of decree (Tatanagar Transport corporation vs M/s Ajanta
Enterprises, A.I.R. 1987, Orissa 107).

In M/S K.C.V. Airways limited Vs Wing Commander R.K. Balgana (A.I.R.

1998, Delhi 70), it has been decide that the order for attachment before
judgment cannot be issued so long as all the conditions of Rule 5, Order
38 are fulfilled.
Q: TEMPORARY INJUCTIONS
1. Cases in which temporary injunction may be granted.
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 a execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property
with a view to defrauding his creditors,
(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 be
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, 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.
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 be 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.
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 on which the injunction was granted or
the order made, 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.
3. Before granting injunction, Court to direct notice to opposite party.
The Court shall in all case, 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:
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.
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
day 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.
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:
Provided that if in an application for temporary injunction or in any affidavit support
such application a part 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 under hardship to that party.
5. Injunction to corporation binding on its officer.
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.

Q: SUITS AGAINST GOVT

Sections 79-82 and Order 27 of the Code of Civil Procedure, 1908
Section 79
 Whenever the case is instituted by or against the central government, the
Union of India will be represented as the required plaintiff or defendant
respectively.
 Whenever the suit is filed by or against the state government, the state
government will be required to act as the plaintiff or the defendant.
 Section 80- This section deals with the concept of Notice.
 The notice should be served two months prior to the institution of the suit.
 against central government, does not relate to the railways, notice
secretary of the government.
 against the central government relates to the railways then, notice
general manager of that railways.
 against any of the state governments, notice
secretary to that government or to the collector of the district.
Main objective
 knows the reasons, demands or the concern of the Plaintiff
 Public official can act upon it and rectify the situation 
State of Madras v. C.P. Agency and Bihari Chowdhary v. State of Bihar.
Contents of the notice
 name, description, place of residence of the plaintiff.
 cause of action.
 relief sought
Effect of Non-Compliance
 Non-compliance result in the rejection of the plaint under Order 7, Rule 11.
 If the suit is against a public official and a private individual, and no notice is
served on the public officer, the plaint is not to be rejected but the suit is
carried on with the name of the public officer struck off.
80(3) no suit against the government or a public officer can be dismissed merely on
the grounds of existence of defect or error in the notice.
Exception to give notice.
 Section 80(2) of the Code of Civil Procedure,  allows private individuals to file
a suit against the government without serving the notice to the public officer
if the matter is of an urgent nature.
 Writ Petitions against the Government is exempted from the service of notice
under Section 80 of CPC as writ petitions do not fall under the category of
suits.
Order 27 of the Code of Civil Procedure
in any suit by or against the government, the plaint or the written statement
should be signed by such a person, as the government by general or special order,
appoint in this behalf.
Conclusion
 Protection and defenses to the Government.
 Abuse and misuse of the concerned section.
The Court should judge the facts and circumstances of the case suo moto and come
to the conclusion to whether the service of notice is a necessity in the case.