Civil Procedure Code, 1908 law notes

By Rachit Garg - October 30, 2020

Table of Contents 
1. Definitions (Sec. 2)
1.1. Decree, Judgement, Order
1.1.1. Decree
1.1.2. Deemed Decree
1.1.3. Kinds of Decrees
1.1.4. Preliminary Decree
1.1.5. Final Decree
1.1.6. Partly preliminary and partly final Decree
1.1.7. The necessity of a Decree
1.1.8. Contents of a Decree
1.1.9. Drawing up of a Decree
1.1.10. Decrees in Special cases
1.2. Judgement
1.2.1. Pronouncement of a judgement
1.2.2. Copy of the judgement
1.2.3. Contents of the judgement
1.2.4. Alteration of a judgement
1.3. Foreign Court, Foreign Judgement (Sec. 13)
1.3.1. Nature and Scope of Foreign Judgments
1.3.2. Object of Recognizing Foreign Judgments
1.3.3. Jurisdiction of Foreign Courts
1.3.4. Presumption as to foreign judgments
1.3.5. Conclusiveness of Foreign Judgments
1.3.6. Foreign Judgment not by a competent court
1.3.7. Foreign Judgments not on Merits
1.3.8. Foreign Judgments against International or Indian Law
1.3.9. Foreign Judgments opposed to the principle of Natural Justice
1.3.10. Foreign judgment obtained by fraud
1.3.11. Foreign Judgments founded on breach of Indian Law
1.3.12. Enforcement of Foreign Judgments
1.4. Foreign Award
1.4.1. Effect of Foreign Judgment
1.4.2. Limitation period for Enforcement of Foreign Judgments
1.5. Other definitions: Affidavit, Suit, Plaint, Written Statement
1.5.1. Affidavits – Order 19
1.5.2. Evidence on affidavit
1.5.3. False affidavit
1.5.4. Meaning of suit
1.5.5. Plaint
1.5.6. Necessary Contents of A Plaint
2. Important Concepts
2.1. Res Sub-Judice and Res Judicata (Sec. 10,11)
2.1.1. Nature, Scope and Objective
2.1.2. Conditions
2.1.3. Where the matter in issue is same
2.1.4. Test
2.1.5. Suit pending in foreign court
2.1.6. Inherent power to stay
2.1.7. Consolidation of suits
2.1.8. Effect of contravention
2.1.9. Interim orders
2.2. Res Judicata meaning
2.2.1. Principle of Res Judicata
2.2.2. Prerequisites for Res Judicata
2.2.3. Nature and Scope of Res Judicata
2.2.4. Rationale
2.2.5. Failure to Apply
2.2.6. Doctrine of Res Judicata
2.2.7. Constructive Res Judicata
2.2.8. Res Judicata and Estoppel
2.2.9. Res judicata and Res Subjudice
2.2.10. Res judicata and Issue Estoppel
2.2.11. Res Judicata and Stare Decisis
2.2.12. What is Res Judicata and Collateral Estoppel?
2.2.13. Res Judicata landmark cases
2.2.14. Res Judicata landmark cases in India
2.2.15. Exceptions to res judicata
2.2.16. Can Res Judicata be waived?
2.2.17. How to defeat Res Judicata?
2.2.18. Criticism to Res Judicata
2.3. Restitution (Sec. 144)
2.3.1. Doctrine of restitution
2.3.2. Conditions
2.3.3. Who may apply?
2.3.4. Who may grant restitution?
2.3.5. What remedies can the court can grant?
2.3.6. Nature of proceeding
2.3.7. Extent of restitution
2.3.8. Inherent power to grant restitution
2.3.9. Bar of Suit
2.4. Caveat (Sec. 148A)
2.4.1. Meaning of Caveat
2.4.2. When to lodge a Caveat?
2.4.3. Who may lodge a caveat?
2.4.4. Where can a caveat be lodged?
2.4.5. How to file a caveat?
2.4.6. What does a caveat contain?
2.4.7. Right and duties
2.4.8. Rights and duties of the caveator
2.4.9. Rights and duties of court
2.4.10. Rights and duties of the applicant
2.4.11. Limitation of time
2.4.12. Common mistakes made while filing a caveat
2.5. Inherent power of Courts (sec – 148-153B)
2.5.1. Enlargement of time
2.5.2. Payment of court fees
2.5.3. Transfer of business
2.5.4. Section 151 of CPC
2.5.5. Ends of justice
2.5.6. Abuse of process of the court
2.5.7. Limitation
3. Execution of Judgement and Decree (Order 21)
3.1. Meaning, Nature and Scope
3.1.1. Execution proceedings under CPC
3.1.2. Courts which can execute decrees
3.1.3. Transfer of decree for execution
3.1.4. Execution of foreign decrees in India
3.1.5. What is a foreign judgment and a foreign decree?
3.1.6. Foreign judgment or decree needs to be conclusive
3.1.7. Mode of enforcement of a foreign judgment or decree
3.1.8. Execution of foreign decree of a reciprocating territory in India
3.1.9. Execution in case of decrees from non-reciprocating territories
3.1.10. Execution of Indian decrees in a foreign territory
3.1.11. Execution of decree at more than one place
3.1.12. Procedure in execution
3.1.13. Section 51
3.1.14. Mode of executing decree
3.1.15. Execution by appointing a receiver
3.1.16. Section 52
3.1.17. Section 53
3.1.18. Section 54
3.1.19. Powers of the transferor court
3.1.20. Powers of the transferee court
3.1.21. Powers of executing court
3.1.22. Mode of executing a decree
3.1.23. Execution by appointing a receiver.
4. Jurisdiction and Place of Suing (Sec. 15 to 20)
4.0.1. Meaning of jurisdiction
4.0.2. Jurisdiction of Civil Court (Section 9)
4.0.3. Pecuniary jurisdiction ( Section 15)
4.0.4. Territorial Jurisdiction (Section 16 to 20)
5. Institution of Suit (Sec. 26)
6. Pleadings: (Order 6)
6.0.1. What are the Pleadings?
6.0.2. What rules to be followed while drafting of pleadings?
6.0.3. In which stage of civil suit pleading can be amended?
6.0.4. Why do courts allow amendment of Pleadings?
6.0.5. What can be amended in pleading?
6.0.6. Can the pleadings be amended if the suit is debarred by the Limitation Act
6.0.7. Why is Order 6 Rule 17 criticized?
6.0.8. What happens when an applicant fails to amend in a prescribed time?
7. Plaint and Written Statement (Order 7,8)
7.0.1. Necessary Contents of A Plaint
7.0.2. Rejection of plaint
7.0.3. Provisions on the Rejection of Plaint under C.P.C.
7.0.4. Landmark Cases on Rejection of Plaint
8. Appearance and Non-Appearance of Parties (Order 9)
8.0.1. Appearance of defendant
8.0.2. Does the same provision apply to the non-appearance of the plaintiff due to death?
8.0.3. Application to set aside the dismissal
8.0.4. When summon is not served
8.0.5. Ex parte appearance
8.0.6. Remedies against an ex-parte decree
8.0.7. Setting aside an ex-parte decree
8.0.8. Sufficient Cause
9. Commissions (Sec. 75 to 78 Order 26)
9.0.1. Who can be appointed as a commissioner?
9.0.2. What is the procedure for appointment of commissioner?
9.0.3. When can a commissioner be appointed by the Court?
9.0.4. Powers of the commissioner: Order 26 Rule 16-18
9.0.5. Whether the commissioner will be entitled to a Remuneration?
9.0.6. What are the limitations on the commissioner?
10. Receiver (Order 40)
10.0.1. What is the purpose of the appointment of a receiver?
10.0.2. What is the role of a receiver?
10.0.3. Who can appoint a receiver?
10.0.4. How does the court decide whether to appoint a receiver or not?
10.0.5. Who can apply for the appointment of the receiver?
10.0.6. Who can be appointed as a receiver?
10.0.7. When can a receiver be appointed?
10.0.8. What is the process of appointment of a receiver?
10.0.9. What are the powers of the receiver?
10.0.10. What are the duties of the receiver?
10.0.11. What are the liabilities of a receiver?
10.0.12. Will a receiver be entitled to remuneration?
11. Temporary Injunctions (Order 39)
12. Summary Procedure (Order 37)
12.0.1. What is a bill of exchange?
12.0.2. Promissory notes
12.0.3. Institution of summary suits
12.0.4. Contents of plaint for summary procedure
12.0.5. Detailed procedures
12.0.6. Can a summary suit be tried after the institution of an ordinary suit on the same
cause of action?
12.0.7. Setting aside decree in summary suits
13. Appeals from Original Decree ( Section 96 to 99A; Order 41)
13.0.1. Essentials of appealing cases
13.0.2. Right to appeal
13.0.3. One right to appeal
13.0.4. No right to appeal
13.1. First appeal
13.1.1. Who may appeal?
13.1.2. Appeal by one plaintiff against another plaintiff
13.1.3. Appeal by one defendant against another defendant
13.1.4. Who cannot appeal?
13.1.5. The appeal against ex parte decree
13.1.6. No appeal against consent decree
13.1.7. No appeal in petty cases
13.1.8. The appeal against Preliminary Decree
13.1.9. The appeal against a dead person
13.1.10. Forms of appeal
13.1.11. Forum of appeal
14. Appeals from Appellate Decrees (Section 100; Order 42)
14.1. Nature and Scope
14.1.1. Nature of the second appeal
14.1.2. Scope of the Second Appeal
14.1.3. Cases Laws
14.1.4. The substantial question of law
14.1.5. No letters patent appeal
14.1.6. Forum of the second appeal
14.1.7. Appeal from order
14.1.8. Appeal from Appellate decree
14.1.9. Appeal to the Supreme Court
14.1.10. Grounds of Appeal
14.1.11. Power of High Court to decide the issue of fact
14.1.12. Procedure at hearing
14.1.13. After hearing the appeal the appellate court may-
14.1.14. Document to be submitted with the appeal
14.1.15. Pending appeals
14.1.16. Cases
 15. General Provisions relating to Appeals (Section 107,108)
15.1. Reference to High Court (Section 113; Order 46)
15.1.1. Nature and scope
15.1.2. Conditions
15.1.3. Who may apply?
15.1.4. Power and duty of referring court
15.1.5. Power and duty of the High Court
15.1.6. Article 228 and Section 113
15.1.7. Procedure at hearing
15.1.8. Costs
16. Review (Section 114; Order 47)
16.1. ORDER XLVII
16.1.1. CONDITIONS FOR APPLICABILITY
16.1.2. WHO CAN FILE A “REVIEW”
16.1.3. GROUNDS FOR REVIEW:
17. Revision (Section 115)
17.1. Meaning
17.1.1. Nature, Scope and Object
17.1.2. Who may file?
17.1.3. Conditions for Revision
17.1.4. Precedents
17.1.5. No appeal lies
17.1.6. Jurisdictional error
17.1.7. Subordinate court
17.1.8. Alternative remedy
17.1.9. Limitations on revisional jurisdiction
17.1.10. Suo moto exercise of power
17.1.11. Interlocutory Orders
17.1.12. Death of Applicant
17.1.13. Doctrine of Merger
17.1.14. Procedure of Revision
17.1.15. Recording of Reasons
17.1.16. Letters Patent Appeal
17.1.17. Conversion of Revision into Appeal
17.1.18. Law commission’s view on Revision
18. Case laws
18.1. Brijlal Ramjidas v. Govindram Gordhandas Seksaria(Judgement)
18.2. Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)
18.3. Lowe v. Haggerty(Res judicata)
18.4. Official Trustee vs Sachindra Nath(Jurisdiction and place of suing)
18.5. Annapoorani Ammal vs G.Thangapolam(Appeals from Appellate Decree)
18.6. A Sreenivasa Rao and Ors v. Govt of Andra Pradesh(Reference to High Court)

Definitions (Sec. 2)

Decree, Judgement, Order

Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree
always follows judgement and is based upon a judgement. It is divided into five types
unlike judgement which is final in itself. A decree may be final or preliminary. It is a
formal declaration or adjudication and is conclusive in nature. A decree is of three kinds
namely, preliminary decree, final decree and partly preliminary & partly final. A decree
may be delivered with an order. The decree contains the outcome of the suit and
conclusively determines the rights of the parties with regard to the issues in dispute in
the suit. After passing the decree, the suit stands disposed of since the rights of the
parties are finally determined by the court.

Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any question within
Section 144 of Code of Civil Procedure,1908 but shall not include:

Any such sentence(adjudication) from which it appears that an appeal lies as an appeal
from an order, or any such order of discharge(dismissal) of default.

Kinds of Decrees
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into
three categories:

Preliminary Decree
In general sense, the word preliminary means preparation for the main matter, initial,
introductory, preparatory. In a legal sense, a preliminary decree is a decree where
further proceedings have to take place before the suit can be completely disposed of. It
decides the rights of the parties in respect to all or any of the matters of discussion but it
does not completely dispose of the suit. In such a decree the rights and liabilities of the
parties are stated leaving the actual result or decision to be worked out in future
proceedings. A preliminary decree is passed in those cases where the proceedings are to
be carried out in two different stages. The first stage is when the rights of the parties are
adjudicated and the second stage is when those rights are implemented or executed.

Final Decree
In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal
sense, a final decree is a decree which completely disposes of the suit and settles all the
questions in discussion between the parties and nothing is left further for deciding
thereafter. It is only said to be final when such adjudication completely disposes of the
suit.

Partly preliminary and partly final Decree

A decree is said to be partly preliminary and partly final when the court decides two
questions by the same decree. For instance, if the court passes a decree in favour of one
party along with a direction of inquiry for the other party, the former part of the decree
is final while the latter part is a preliminary decree for which further proceedings have to
take place. For example, in a suit of possession of a property with company ‘C’, if the
court passes a decree of possession of the property in favour of the plaintiff and directs
an enquiry into the company ‘C’, then the former part of the decree is final decree while
the latter part is the preliminary decree.

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is
based upon judgement and it also follows a judgement which is the reason why it is an
indispensable and essential requisite. The decree is indispensable or an absolute
requisite. It is an essential part of the ultimate outcome of the suit. An appeal can be
made against a decree and not against a judgement. If the decree is absent an appeal
cannot be ‘put in motion’.

Contents of a Decree
A decree always follows the judgement, coincide with it and contains:
1. The suit’s number – Every suit has a particular number and it should be mentioned in
the decree.

2.  The names, description and registered addresses of the parties – Every decree shall
have the names of all the parties of that particular suit, the proper description of the
parties of the suit, and the registered addresses of all the parties of the suit.

3. The particulars of the parties claims or defence – Every decree shall contain the
details of the claims and the defences the parties are claiming as an outcome of the
said suit.

4. The relief or the remedy granted to the aggrieved party – The decree should in
particular mention the relief granted to the particular party as a remedy and not a
reward.

5. The total amount of cost incurred in the suit-

1.   by whom; or

2.   out of what property; and

3.   in what portions are they paid or are to be paid.

6. The judgement’s date of pronouncement or delivery date of the judgement – The

decree should mention the date on which the judgement was delivered followed by
the decree.

7. The judge’s signature on the decree – The judge’s signature is an essential and
indispensable element of any decree. The signature of the judge delivering the
judgement is an essential requisite.

Drawing up of a Decree
Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree shall be drawn
within 15 days of the judgement. An appeal can be favoured or preferred without filing a
copy of a decree if it is not drawn within 15 days of the judgement.

Decrees in Special cases

In a lawsuit for the recovery or process of regaining or repossession of an immovable
property(real estate), the decree shall include a description of such property so that it
is sufficient to recognise or identify it.

In a decree for movable property(personality), it must mention the exact amount of

money to be paid as an alternative in case the delivery is not made due to any reason
either it be reasonable or appropriate.

In a decree for payment of money, the Court may order that the payment of decretal
amount i.e., the  amount mentioned in the decree shall be:

1. postponed which is delayed to a future date; or

2. made by installments with or without interests.

In a suit for the recovery or process of regaining or repossession of immovable

property, the Court may pass a decree- for possession or gaining of property.
for past rents or mense profits. (mesne profits are the profits of an estate received by a
tenant in wrongful possession and recoverable by the landlord) that is a final decree in
respect of rent or mesne profits in accordance with results of such enquiry as mentioned.

Rule 12A of the Code of Civil Procedure,1908 states that a decree for specific
performance of a contract for sale or lease of an immovable property which can also be
termed as real estate shall specify the exact period within which the amount of money or
other sum is to be paid by the purchaser or lessee.

Rule 13 of the Code of Civil Procedure,1908  states that the final decree shall be passed
or delivered in accordance with the result of preliminary enquiry i.e., in a lawsuit for an
account of any property either movable or immovable and for its due administration
under the decree of Court, before passing a final decree, the court should pass a
preliminary decree ordering accounts to be taken and enquiries to be made.

Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-emption suit, it is a

suit where the displacement of a lower jurisdiction’s laws when they conflict with those of
a higher jurisdiction, where the purchase money has not been paid into Court, shall
specify a particular day on or before which the purchase money has to be paid and direct
that on payment to Court, the defendant shall deliver property to the plaintiff, but if the
payment is not made on a specific day, the lawsuit shall be dismissed with costs. In
cases the Court has settled upon rival claims to pre-emption, the decree shall direct:

The claim or defence of each pre-emptor shall take effect proportionately if the claims
decreed are equal in degree.

The claim or defence of the inferior pre-emptor will not take place till the superior pre-
emptor fails to make the payment if the claims decreed are different in degree.

In a lawsuit for dissolving of partnership or taking of partnership accounts, the Court can
pass a preliminary decree before passing a final decree declaring the exact shares of all
the parties, fixing of a particular day on which the partnership shall become dissolved
and directing the accounts to be taken and other necessary actions to be done. In a
lawsuit for accounts between a principal person and agent, the Court can pass a
preliminary decree before passing a final decree directing the accounts that have to be
taken and it can also provide special directions in regards to the mode of taking accounts
as well. In a decree passed in a lawsuit for partition of property either movable or
immovable or for separate possession of share in the property, The decree shall declare
the rights of several parties interested in that property but shall direct partition or
separation to be made by collector and in other cases of immovable property in case the
estate is assessed to the payment of revenue to the government.

The Court shall pass a preliminary decree declaring all the rights of the parties in estate
and giving necessary directions and then the final decree is passed, if separation or
partition cannot conveniently be made without further inquiry.

A decree where the defendant has been allowed leave or start with a  counterclaim
against the initial claim of the plaintiff shall state with what amount is due to the plaintiff
and what amount is due to the defendant thereafter.
Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the
parties, finding on issues (based on evidence and arguments). Every judgement shall
include a summary of the pleadings, issues, finding on each issue, ratio decidendi and
the relief granted by the court. On a daily basis, numerous judgements are pronounced
and various cases are disposed of. Judgements play a very important role in the working
of our judicial system because they act as precedents for cases to come in the near
future. A judge in the judgement pronounced, always states the reasons for such a
decision.

Pronouncement of a judgement
The word pronouncement means to make an official public announcement.
Pronouncement of a judgement means that after the hearing is completed i.e. after the
Court has heard the pleadings of the parties, the judgement shall be announced by the
Judges in an open Court, either at once or at some future day, after providing due notice
to the parties or their learned counsels.

If a judgement is not pronounced immediately then it must be pronounced within 30

days from the date of the conclusion of hearing. However, sometimes it so happens that
due to exceptional and some extraordinary reasons like a bank holiday, strike or some
other situation it may be delivered within 60 days from the conclusion of the hearing. It
is not mandatory for a judge to read out the whole judgement and it would be enough if
only the final order is pronounced. The judge shall put the date on which the judgement
was pronounced along with his signature. Rule 2 Order XX of Code of Civil Procedure,
1908 provides a judge with the right to pronounce the judgement which is already
written but is not pronounced by his predecessor.

After the Amendment Act of 1976, the time limit was provided between the hearing of
the arguments and the pronouncement of the judgement. Prior to this amendment no
time limit was provided as such. Such a time limit was provided because there was
indefinitely continuous imposition from all over India.

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be
immediately made available to the parties on payment of costs as specified, by the party
applying for such copy, of such charges as may be specified in the rules and orders made
by the High Court (H.C.) Such a rule is specified in Order XX Rule 6-B of the Code of Civil
Procedure, 1908.

Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:

Judgements of a Court of Small Causes are satisfactory if they contain the points for
determination and the decision thereon.

Judgments of other Courts shall contain:

Summary of the pleadings which is a concise statement of the case;

Issues which are the points for determination;

Findings on each issue and the decision thereon;

Ratio decidendi (reasons for such a decision); and

The remedy, which is the relief granted.

Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or amended if:

There are arithmetical or clerical errors. (clerical errors refer to the errors made by
clerks and arithmetical errors refer to errors made in numbers such as addition,
subtraction, multiplication and division). There are errors due to accidental slips or
omissions (these errors take place when some essential element is left unnoticed)
(Section 152) on review (Section 114).

Foreign Court, Foreign Judgement (Sec. 13)

The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for enforcement
of foreign judgments and decrees in India. CPC, 1908 had defined the following as-

Section 2(5) “foreign Court” means a Court situated outside India and not established or
continued by the authority of the Central Government.

Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Nature and Scope of Foreign Judgments

Section 13 embodies the principle of res judicata in foreign judgments. It embodies the
principle of Private International law that a judgment delivered by a foreign court of
competent jurisdiction can be executed and enforced in India.

Object of Recognizing Foreign Judgments

The judgment of a foreign court is enforced on the principle that where a foreign court of
competent jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy
that claim in the country where the judgment needed to be enforced. The rules of private
international law of each state differ in many respects, but by the comity of nations
certain rules are recognized as common to civilized Jurisdictions. Through part of the
judicial system of each state these common rules have been adopted to adjudicate upon
disputes involving a foreign element and to enforce judgments of foreign courts, or as a
result of International conventions. Such a recognition is accorded not as an act of
courtesy but on consideration of basic principles of justice, equity and good conscience.
An awareness of foreign law in the parallel jurisdiction would be a useful guideline in
determining our notions of justice and public policy. We are a Sovereign Nation within
our territory but “ it is not derogation of sovereignty to take accounts of foreign law”.

“We are not provincial as to say that every solution of the problem is wrong because we
deal with it otherwise at home”.Therefore, we shall not brush aside foreign judicial
processes unless doing so, “would violate some fundamental principle of justice & deep-
rooted traditions of common weal”.

Jurisdiction of Foreign Courts

In Private International Law, unless a foreign court has jurisdiction in the international
sense, a judgment delivered by that court would not be recognized in India. But it
considers only the territorial competence of the court over the subject-matter and
defendant. Its competence or jurisdiction in any other sense is not regarded as material
by the court in this country.

Presumption as to foreign judgments

Section 14 states the presumption that an Indian court takes when a document
supposing to be a certified copy of a foreign judgment is presented before it. The Indian
Courts presume that a foreign Court of competent jurisdiction pronounced the judgment
unless the contrary appears on the record, but by proving want of jurisdiction may
overrule such presumption.

Section 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 to competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by proving want of
jurisdiction[6].

Conclusiveness of Foreign Judgments

Section 13 lays down the fundamental rules which should not be violated by any foreign
court in passing a decree or judgment. The decree or judgment of foreign court will be
conclusive except where it comes under any of the clauses (a) to (f) of Section 13.

When foreign judgment is 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 recognize the law of 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) Were it sustains a claim founded on a breach of any law in force in India.

Foreign Judgments when cannot be Enforced in India

Before enforcing a foreign judgment or decree, the party enforcing it must ensure that
the foreign judgment or decree must not fall under these 6 cases. If the foreign
judgment or decree falls under any of these tests, it will not be regarded as conclusive
and hence not enforceable in India. Under Section 13, there are six cases when a foreign
judgment shall not be conclusive. Six tests are discussed below.

Foreign Judgment not by a competent court

It is a basic fundamental principle of law that the judgment or order passed by the court
which has no jurisdiction is void. Thus, a judgment of a foreign court to be conclusive
between the parties must be a judgment pronounced by a court of competent
jurisdiction. Such judgment must be by a court competent both by law of the state which
has constituted it and in an international sense and it must have directly adjudicated
upon the matter which is pleaded as Res judicata.

In the case of R.M.V. Vellachi Achi v. R.M.A. Ramanathan Chettiar, it was alleged by the
respondent that since he was not a subject of the foreign country, and that he had not
submitted to the jurisdiction of the Foreign Court (Singapore Court), the decree could
not be executed in India. The Appellant, in defense of this argument, stated that the
Respondent was a partner of a firm which was doing business in Singapore and had
instituted various suits in the Singapore Courts. Therefore, the Respondent had accepted
the Singapore Courts jurisdiction. The Court held that it was the firm which had accepted
the jurisdiction of the foreign Court and the Respondent, in an individual capacity, had
not accepted the jurisdiction. Thus, the High Court held that the decree against the
Respondent was not executable.

PROPOSITION

Under Section 13(a) of CPC, the following proposition may be laid

 In case of actions-in-personam, a foreign court may pass an order or judgment
against an Indian defendant, who is served with the summons but he remains ex
parte. But it may be enforceable against such Indian defendants, by fulfilling any of
the following conditions.

If the person is a subject of the foreign country in which the judgment or decree has
been obtained against him on prior occasions.

If the person is a resident in foreign country when the action is commenced.

If a person selects the foreign Court for taking action in the capacity of a plaintiff, in
which he is sued later

If the party on being summoned voluntarily appears before the foreign court

If by an agreement a person has contracted to submit himself to the Court in which

the judgment is obtained.

Foreign Judgments not on Merits

In order for a foreign judgment to operate as Res Judicata, it must have been given on
merits of the case. A judgment is said to have been given on merits when after taking
evidence and after applying his mind regarding the truth or falsity of the case.

The Actual test for deciding whether the judgment has been given on merits or not is to
see whether it was merely passed as a matter of course, or by way of penalty of any
conduct of the defendant, or is based upon a consideration of the truth or falsity of the
plaintiff”s claim.

In the case of Gurdas Mann v. Mohinder Singh Brar,he Punjab & Haryana High Court held
that an ex parte judgment and decree which did not show that the plaintiff had led
evidence to prove his claim before the Court, was not executable under Section 13(b) of
the CPC since it was not passed on the merits of the claim.

PROPOSITION

Under Section 13(b) of CPC the following proposition may be laid

A judgment or decree passed by a Foreign Court against an Indian defendant, who has
remained ex-parte, may not be enforceable against him, unless it can be shown that the
said judgment was passed after investigation into the plaintiff’s claim.

Foreign Judgments against International or Indian Law

A Judgment which is contrary to the basic fundamental rules of International law or a
refusal to recognize the law of India where such law is applicable is not conclusive.
Where a suit instituted in England on the basis of contract made in India, the English
court erroneously applied English law, thus, the judgment of the court is covered by this
clause as the general principle of Private International Law is that the rights and
liabilities of parties to a contract are governed by the place where the contract is made
(lex loci contractus).[12]
In the case of I & G Investment Trust v. Raja of Khalikote, a suit was filed under the
English Jurisdiction to avoid the consequences of the Orissa Money Lenders Act. The
Court held that the judgment was passed on an incorrect view of the international law.
The Court further observed that, although the judgment was based on the averment in
the plaint that the Indian law did not apply, however, there was no “refusal” to recognise
the local laws by the Court.

PROPOSITION

Under Section 13(c) of CPC, the following proposition may be laid

A judgment passed by a foreign Court upon a claim for immovable property, situated in
the Indian territory may not be enforceable since it violates International Law. A
judgment passed by the foreign Court, where before a contrary Indian law had been
shown, but the Court had refused to recognize such law, then that Judgment or decree
may not be enforceable, except where the proper law of contract is the foreign law.

Foreign Judgments opposed to the principle of Natural Justice

It is the essence of a judgment of court that it must be obtained after due observance of
the judicial procedure i.e., the court rendering the judgment must observe the minimum
requirements of natural justice. It must be composed of impartial persons, who must act
in a fair and justified manner, without bias, and in good faith, it must give reasonable
notice to the parties to the dispute and each party should be given equal opportunity to
present their case. A judgment which suffers from such infirmities on the part of a judge
will be regarded as a nullity and the trial “coram non judice”

In the case of Lalji Raja & Sons v. Firm Hansraj Nathuram, the Supreme Court held that
just because the suit was decreed ex-parte, although the defendants were served with
the summons, does not mean that the judgment was opposed to natural justice.

PROPOSITION

Under Section 13(d) of CPC, the following proposition may be laid The foreign court must
follow the principle of natural justice while delivering the judgment. Judgement must be
impartial, given fairly, moreover, the parties to the dispute should be given appropriate
notice of the initiation of legal proceedings. Equal opportunity of presenting their case, in
order to avoid any allegation of not fulfilling the principles of natural justice in case the
judgment or decree comes to the Indian court for enforcement. Unless this is done the
judgment or decree passed by a foreign Court may violate the Principles of Natural
Justice.

Foreign judgment obtained by fraud

It is a well settled principle of Private International Law that if foreign judgments are
obtained by fraud, it will not operate as res judicata.

It has been said “Fraud and Justice never Dwell together” (fraus et jus nunquam
cohabitant); or “ Fraud and deceit ought to benefit none” (fraus et dolus nemini
patrocinari debent).
In the case of Satya v. Teja SingH, the Supreme Court held that since the plaintiff had
misled the foreign court as to its having jurisdiction over the matter, although it could
not have had the jurisdiction, the judgment and decree was obtained by fraud and hence
inconclusive.

In S.P. Chengalvaraya Naidu v. Jagannath, Supreme Court held that it is a well settled
proposition of law that a judgment or decree obtained by playing fraud on the court is a
nullity and non est in the eyes of law.

PROPOSITION

Under Section 13(e) of CPC, the following proposition may be laid -Where the plaintiff
misleads the Foreign court and the judgment or decree is obtained on that basis, the
said Judgment may not be enforceable, however, if there is some error in the judgment
then the Indian courts will not sit as a Court of appeal to rectify the mistake or error.

Foreign Judgments founded on breach of Indian Law

When a law in force in India is wrongly construed so as to form the reasoning behind a
judgment delivered by a foreign court, in such cases the enforceability of the foreign
judgment in Indian courts will be under question.

China Shipping Development Co. Limited v. Lanyard Foods Limited, wherein the High
Court held that a petition for winding up of an Indian company would be maintainable on
the basis of judgment of foreign Court. In this case, the foreign company delivered cargo
to the Indian company in compliance with requests made by the Indian company and in
the process the foreign company had incurred certain liabilities towards third parties and
it had to pay certain amount in legal proceedings and therefore, in terms of the letter of
indemnity issued by the respondent Indian company, the foreign company claimed the
amount from the respondent Indian company, which denied its liability and therefore the
foreign petitioner company initiated legal proceedings against the Indian company in the
English Courts as provided in the Letter of Indemnity.

The respondent Indian company did not file defence and therefore the English Court
passed an ex-parte order awarding a certain amount in favor of the petitioner foreign
company on consideration of evidence and on the merits of the claim filed by the foreign
company. By a notice issued under sections 433 and 434 of the Companies Act, 1956,
the petitioner foreign company called upon the respondent Indian company to pay the
amount due under the order of the English Court.

After the respondent Indian company failed to honour the amount, the petitioner Foreign
Company filed a petition for winding up of the Indian company. In the above
circumstances since the records of the case manifestly revealed that the respondent
Indian company was unable to pay its debts, the petition for winding up was admitted
vide order dated 4.4.2007 under sections 433 and 434 of the Companies Act, 1956.

PROPOSITION

Under Section 13(f) of CPC, the following proposition may be laid -A judgment passed by
a foreign court, which breaches any law in force in India may not be enforceable, except
where it is based on a contract having a different “proper law of the contract”.

Enforcement of Foreign Judgments

A foreign Judgment which is conclusive and does not fall within section 13 (a) to (f), may
be enforced in India in either of the following ways.

By instituting execution proceedings

A foreign Judgment may be enforced by proceedings in execution in certain specified

cases mentioned in Section 44-A of the CPC.

Section 44A – Execution of decrees passed by Courts in reciprocating territory[20].-(1)

Where a certified copy of a decree of any of the superior courts of any reciprocating
territory has been filed in a District Court, the decree may be executed in 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 the decree falls within any of the exceptions specified in
clauses (a) to (f) of section 13.

Explanation I: “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 II: “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 penalties, but shall in no case include an arbitration award, even if such an award
is enforceable as a decree or judgment.

Moloji Nar Singh Rao vs Shankar Saran, Supreme Court held that a foreign judgment
which does not arise from the order of a superior court of a reciprocating territory cannot
be executed in India. It ruled that a fresh suit will have to be filed in India on the basis
of the foreign judgment.”

Therefore Under Section 44A of the CPC, a decree or judgment of any of the Superior
Courts of any reciprocating territory are executable as a decree or judgment passed by
the domestic Court. The judgment, once declared, will be executed in accordance with
section 51 of the Code. Thereafter, the court may order measures such as attachment
and sale of property or attachment without sale, and in some cases arrest (if needed) in
enforcement of a decree. This is done by the methods discussed below.

By instituting a suit on such foreign judgment

Where a judgment or decree is not of a superior court of a reciprocating territory, a suit

has to be filed in a court of competent jurisdiction in India on such foreign judgment.
The general principle of law is that any decision of a foreign court, tribunal or any other
quasi-judicial authority is not enforceable in a country unless such decision is embodied
in a decree of a court of that country. In such a suit, the court cannot go into the merits
of the original claim and it shall be conclusive as to any matter thereby directly
adjudicated between the same parties. Such a suit must be filed within a period of 3
years from the date of judgment[23].

In Marine Geotechnics LLC v/s Coastal Marine Construction & Engineering Ltd, the
Bombay High Court observed that in case of a decree from a non-reciprocating foreign
territory, the decree-holder should file, in a domestic Indian court of competent
jurisdiction, a suit on that foreign decree or on the original, underlying cause of action,
or both.

However, in both the cases, the decree has to pass the test of Section 13 CPC which
specifies certain exceptions under which the foreign judgment becomes inconclusive and
is therefore not executable or enforceable in India.

Foreign Award
An award passed by foreign arbitrator is enforceable in a country where it was made and
can also be enforced in India. Courts may refer to CPC or any other statute while
considering the procedure to be followed for enforcement of foreign awards under
Foreign Awards (Recognition and Enforcement) Act (45 of 1961)

Effect of Foreign Judgment

A foreign judgment is conclusive for any matter adjudicated between the parties. Such
judgment is conclusive and would create Res judicata between the same parties or
between parties under whom they or any of the claims.

Limitation period for Enforcement of Foreign Judgments

As per the provisions of the Code, foreign judgments from reciprocating territories are
enforceable in India in the same manner as the decrees passed by Indian courts. The
Limitation Act, 1963 prescribes the time limit for execution of a foreign decree and for
filing of a suit in the case of judgment passed by foreign court.
 Three years, commencing from the date of the decree or where a date is fixed for
performance; in case of a decree granting a mandatory injunction; and

Twelve years for execution of any other decree commencing from the date when the
decree becomes enforceable or where the decree directs any payment of money or
the delivery of any property to be made at a certain date, when default in making the
payment or delivery in respect of which execution is sought, takes place.

A judgment obtained from a non-reciprocating territory can be enforced by filing a new

suit in an Indian court for which a limitation period of 3 years has been specified under
the Limitation Act, 1963 commencing from the date of the said judgment passed by
foreign court.

Other definitions: Affidavit, Suit, Plaint, Written

Statement

Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the
person who is aware of the facts and circumstances which have taken place. The person
who makes and signs is known as ‘Deponent’. The deponent makes sure that the
contents are correct and true as per his knowledge and he thereby concealed no material
therefrom. After signing the document, the affidavit must be duly attested by the Oath
Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the
deponent is not forged. The affidavit shall be drafted as per the provisions of the code. It
must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a sworn
statement in writing made specifically under oath or affirmation before an authorized
officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the
affidavit in the court:

It must be a declaration by a person.

It shall not have any inferences, it shall contain facts only.

It must be in the first person.

It must be in writing.

It must be statements which are taken under oath or affirmed before any other
authorized officer or a Magistrate.

Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware
of as true to his personal knowledge. However, interlocutory applications can be filed
wherein he can admit his belief.

Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as evidence. When
there is a need to prove the facts, oral evidence is normally taken into consideration by
the court. However, Rule 1 Order 19 is invoked by the Court when it finds that it is
necessary to make an order for any particular fact which may be proved by affidavit. If a
person provides evidence under the affidavit then the opposing counsel has the right to
cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he
has true personal knowledge. If he gives a statement, not to his personal knowledge
then in such case he shall mention the true source. The counsel shall advise the
deponent to make sure that he puts facts which he knows rather than what he believes.

The court can reject the affidavit if it is not properly verified and not in conformity with
the rules of the code. At the same time the court can also give an opportunity to the
party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of receiver,

attachment of property wherein the rights of the parties are not determined conclusively,
can be decided on the basis of the affidavit.

False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence.
Giving a lenient view will undermine the value of the document and it will harm the
proceedings and will provide no justice to the parties. Criminal contempt of court
proceedings can be initiated by the court against the person who files false affidavits in
the court of law. Strict actions are taken against public officials who files false affidavits.

As per section 193 of the IPC:

a person who intentionally gives false evidence or fabricates false evidence during a
judicial proceeding, he shall be punished with seven years of imprisonment and fine;

and whoever intentionally gives or fabricates false evidence in any other case, shall be
punished with imprisonment of either description for a term which may extend to
three years, and shall also be liable to fine.

Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a proceeding which is
commenced by presentation of a plaint. In Hansraj Gupta and Ors. vs. Official
Liquidators of the DehraDun-Mussoorie Electric Tramway Co.Ltd., the Privy Council has
defined the expression “suit” as a civil proceeding instituted by presentation of a suit.
In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court has stated suit
is to be understood to apply on any proceeding in a court of justice by which an
individual pursues that remedy which the law affords.

Plaint
A Plaint is a legal document that contains the content of any civil suit which shows the
Plaintiff’s claim after filing suit. The plaintiff is the first step of the Plaintiff in the form of
a legal document for the commencement of suit and it shows what a Plaintiff wants from
that suit. The concept of a plaintiff is mentioned in the Civil Procedure Code. Through the
help of the plaintiff, the plaintiff narrates or describes the cause of action and related
information which is considered as essential from the viewpoint of the suit.

In the case of the plaintiff, the cause of action consists of two divisions, first is the legal
theory (the factual situation based on which the plaintiff claims to have suffered) and
second is the legal remedy that the plaintiff seeks from the court. A plaint is considered
an important concept because it is the foremost and initial stage to initiate any lawsuit
and helps to find a civil court of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of
CPC, there are many different rules which deal with different constituents of plaint. Rules
1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will
be admitted and after that Rule 10 to 10-B talks about the return of the plaint and the
appearance of parties. And the main Rules i.e 11 to 13 deal with the rejection of the
plaint and in which circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.” This section
clearly shows that plaint is very much necessary for the establishment of a suit before
the civil or commercial court.

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the absence of
which, it cannot be considered as a plaint. The contents necessary for a plaint are
mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:
 Plaint should contain the name of the commercial or civil court where a suit will be
initiated.

Plaint should contain details of the plaintiff such as the name, address, and
description.

Plaint should contain the name, residence, and description of the defendant.

When a plaintiff has some defects or problems in health or any type of disability, the
Plaint should contain a statement of these effects.

Plaint should contain the facts due to which cause of action arises and where the
cause of action arises it should also be mentioned.

Plaint should not only mention facts due to which cause of action arises but also those
facts which help in recognizing the jurisdiction.

Plaint should also contain about that relief which the plaintiff seeks from the court.

When the plaintiff is ready to set off a portion of his claim, the Plaint should contain
that amount which has been so allowed.

Plaint should contain a statement of the value of the subject-matter of suit not only
for the purpose of jurisdiction but also for the purpose of court-fees.At last, the
content that should be on plaint is the plaintiff verification on oath.

This shows that the plaint is a necessary component for the successful initiation of suits
in commercial or civil courts and plays a very important role throughout the suit. Some
additional particulars which were not mentioned above include the following: Plaintiff
shall state the exact amount of money to be obtained from the defendant as given under
Rule 2 of order VII whereas Rule 3 of order VII of CPC states that when the plaint
contains subject matter of immovable property, then the property must be duly
described.

Important Concepts

Res Sub-Judice and Res Judicata (Sec. 10,11)

Nature, Scope and Objective

The principle of res sub-judice prevents the court from proceeding with the trial of any
suit in which the matter in issue is directly or substantially the same with the previously
instituted suit between the same parties and the court where the issue is previously
instituted is pending has the power to grant the relief sought.

This rule is applicable to the trial of the suit and not the institution. It does not restrict
the court from passing interim orders like injunction or stay. However, it applies to
revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought
to prevent the plaintiff from getting two separate decisions from different courts in his
favour or two contradictory judgements. It also ensures to protect the litigant from
unnecessary harassment. The policy of law is to restrict the plaintiff to one legislation,
thus obviating the possibility of two conflicting verdicts by one and the same court in
respect of the same relief.

Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to apply
the principle of res sub judice. The conditions in the process of application of res sub-
judice are:

Where the matter in issue is same

Section 10 clearly states that the matter in issue in both the suits must be directly or
substantially be the same.In other words there must be two suits one that is previously
instituted and another that is subsequently substituted. The issues of both the suits
should be the same to get the benefit of this principle, it is not sufficient if only one or
two issues are common. In the circumstances where the entire issues are not the same,
the court may exercise its power under Section 151 and stay the trial in a subsequent
suit or the trial of the suit may be consolidated. The power of courts to stay the trial
under Section 151 is discretionary in nature and can be exercised only when there is an
abuse of process of court and if it defeats the ends of justice.

According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:

Matter directly and substantially in issue– Here “directly” means immediately i.e. without
any intervention. The word “substantially” implies essentially or materially.

Matter collaterally and incidentally in issue– It is just contrary to the matter directly or
substantially in issue.

Where the parties in suits are same

The two suits should have the same parties or their representatives.

Where the title of the suit is same

The title of both the suits for which the parties are litigating should also be same.

Where the suit must be pending

The former suit must be pending in the court while the latter suit is instituted. The word
pending is for the previously instituted suit, where the final decision has not been arrived
at.

In a competent court

Section 10 also specifies that the former suit must be pending before a court which is
competent to carry out the trial. If the former suit is pending before an incompetent
court, no legal effects can flow from it.

Illustrations:
‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the seller and ‘Y’
is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for
recovery of the entire amount in Bangalore. Subsequent to this, X filed another suit at
Bombay High Court demanding Rs. 20,000 as outstanding balance. In X’s suit Y took the
defence that X’s suit should be stayed since both the suits are on similar issue. However,
the Bombay court held that since X’s first suit and the second suit have similar issues
similar to the first suit, the subsequent suit is liable to be stayed.

‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent then
filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his
negligence in Odisha; while the case was pending in Patna. In this case, Patna court is
precluded from conducting trial and can petition Odisha Court to direct a stay of
proceedings in Patna Court.

The moment the above conditions are satisfied, a court cannot proceed with the
subsequently instituted suit since the provisions contained in Section 10 are mandatory
and the court cannot exercise its discretion. The order of stay can be made at any stage
of the proceedings.

However, Section 10 takes away the power of the court to examine the merits of the
case thoroughly. If the court is satisfied with the fact that the subsequent suit can be
decided purely on legal point, it is open for the court to decide in such a suit.

Test
The test of applicability for Section 10 is whether the decision in a former given suit
would operate as res judicata(decided case) in the subsequent suit. It this happens, then
the latter suit must be stayed. This can also be inferred from S.P.A Annamalay Chetty vs.
B.A Thornbill.

Suit pending in foreign court

The explanation clause of Section 10 clearly provides that there is no limitation on the
power of an Indian court to try a subsequent instituted suit if the previously instituted
suit is pending in a foreign suit. This also means that the cases can be carried on
simultaneously in two courts.

Inherent power to stay

The word inherent has very wide meaning which includes an inseparable part of
something or an attribute or quality which is permanent and essential. It is something
which is intrinsic and attached to a person or object. Therefore, inherent powers are the
powers of the courts which are inalienable i.e., something which can be separated or
taken away from the courts and they exercise it in order to provide complete justice to
the parties.

Even where the provisions of Section 10 do not strictly apply, a civil court has inherent
power under Section 151 to stay a suit to achieve justice. Additionally courts can also
consolidate different suits between the same parties in which the matter of issue is
substantially the same. In Bokaro and Ramgarh Ltd. vs. State of Bihar and
Another(1962) the matter in issue was regarding the ownership of a property. The court
in this case used its power and consolidated different issues having the same matter.

Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in the same
matter by different courts. To overcome this the courts can pass an order of
consolidation of both the suits. In the case of Anurag and Co. and Anr. vs. Additional
District Judge and Others, it was explained that consolidation of suits is ordered under
Section 151 for meeting the ends of justice as it saves the party from a multiplicity of
cases, delays and expenses. The parties are also relieved from producing the same
evidence at two different places.

Effect of contravention
Any decree passed in contravention of Section 10 is not null and therefore cannot be
disregarded completely. It is to be clearly understood here that it is only the trial and not
the institution of the subsequent suit which is barred under this section. But this right
which is given in favour of parties can be waived by them. Hence, if the parties in a suit
decides to waive their rights and ask the court to proceed with the subsequent suit, they
cannot afterwards challenge the validity of the subsequent proceedings.

Interim orders
Interim orders are the temporary orders which are passed for a limited duration just
before the final order. An order of stay under Section 10 does not take away the power
of the court to pass interim orders. Therefore, the courts can pass such interim orders as
it thinks fit like attachment of property, injunction etc.

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and together it
means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a court has
already been decided by another court and between the same parties. Hence, the court
will dismiss the case as it has been decided by another court. Res judicata applies to
both civil and criminal legal systems. No suit which has been directly or indirectly tried in
a former suit can be tried again.

Res Judicata example

‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as
the area of the land was less than the mentioned on the lease. The Court found that the
area was greater than shown in the lease. The area was excess and the principles of res
judicata will not be applied.

In a case, ‘A’ new lawsuit was filed in which the defendants requested that the Court
dismiss the lawsuit with a plea of res judicata. She was barred from bringing a claim of
res judicata because her previous claim was dismissed for fraud. The Court said that the
defence of res judicata must be proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of justice and
honesty and to prevent the law from abuse. The principle of res judicata applies when a
litigant attempts to file a subsequent lawsuit on the same matter, after having received a
judgment in a previous case involving the same parties. In many jurisdictions, this
applies not only to the specific claims made in the first case but also to claims that could
have been made during the same case.

Prerequisites for Res Judicata

A judicial decision by proficient court or tribunal,

Final and binding and

Any decision made on the merits

A fair hearing

Earlier decisions right or wrong are not relevant.

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion. Issue
preclusion is also known as collateral estoppel. Parties cannot sue each other again after
the final judgment on the basis of merits has reached in civil litigation. For example, if a
plaintiff wins or loses a case against the defendant in the case say A, he cannot probably
sue the defendant again in case B based on the same facts and events. Not even in a
different court with the same facts and events. Whereas in issue preclusion it prohibits
the relitigation of issues of law that have already been determined by the judge as part
of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh. In
this case the court incorporated the rules as evidence as a plea of an issue already tried
in an earlier case. Judgment of this case was difficult as the judges should apply res
judicata. It was decided that res judicata is not exhaustive and even if the matter is not
directly covered under the provisions of the section it will be considered as a case of res
judicata on general principles.

Rationale
The principle of res judicata is founded upon the principles of justice, equity, and good
conscience and it applies to various civil suits and criminal proceedings. The purpose of
this principle was to inculcate finality into litigation.

Failure to Apply
When a  court fails to apply Res Judicata and renders a divergent verdict on the same
claim or issue and if the third court faces the same issue, it will apply a “last in time”
rule. It gives effect to the later judgment and it does not matter about the result that
came differently the second time. This situation is typically the responsibility of the
parties to the suit to bring the earlier case to the judge’s attention, and the judge must
decide how to apply it, whether to recognize it in the first place.

Doctrine of Res Judicata

The double jeopardy provision of the Fifth Amendment to the U.S. Constitution protects
people from being put on a second trial after the case has been judged. So the doctrine
of res judicata addresses this issue and it bars any party to retry a judgment once it has
been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also
known as “ rule of conclusiveness of judgment”. The doctrine of res judicata has been
explained in the case of Satyadhyan Ghosal v. Deorjin Debi. The judgment of the court
was delivered by Das Gupta, J. An appeal was made by landlords who attained a decree
for ejectment against the tenants who were Deorajin Debi and her minor son. However,
they have not been yet able to get possession in execution soon after the decree was
made. An application was made by the tenant under Section 28 of the Calcutta Thika
Tenancy Act and alleged that they were the Thika tenants. This application was resisted
by the landlords saying they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The
court applied the principle of res judicata to achieve the finality in litigation. The result
came that the original court, as well as the higher court, can proceed for any future
litigation on the basis that the previous decision was correct.

The doctrine of res judicata says –

That no person should be disputed twice for the same reason.

It is the State that decides there should be an end to a litigation

A judicial decision must be accepted as the correct decision.

Constructive Res Judicata

The rule of constructive res judicata in Section 11 of the Civil Procedure Code is an
artificial form of res judicata. It provides that if a plea has been taken by a party in a
proceeding between him and the defendant he will not be permitted to take pleas
against the same party in the following proceeding with reference to the same matter.  It
is opposed to public policies on which the principle of res judicata is based. It would
mean harassment and hardship to the defendant. The rule of constructive res judicata
helps in raising the bar. Hence this rule is known as the rule of constructive res judicata
which in reality is an aspect of augmentation of the general principles of res judicata.

In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-inspector and was
dismissed from the service of D.I.G. he challenged the order of dismissal by filing a writ
petition in the High Court. He said that he did not get a reasonable opportunity of being
heard before the passing of the order. However, the argument was negative and the
petition was dismissed. He again filed a petition on the ground that he was appointed by
the I.G.P. and had no power to dismiss him. The defendant argued that the suit was
barred by constructive res judicata. However, the trial court, the first appellate court as
well as the High Court held that the suit was not barred by the doctrine of res judicata.
The Supreme Court held that the suit was barred by constructive res judicata as the plea
was within the knowledge of the plaintiff, M and he could have taken this argument in his
earlier suit.

Res Judicata and Estoppel

Estoppel means the principle which prevents a person from asserting something that is
contrary to what is implied by a previous action. It deals in Section 115 to Section 117 of
the Indian Evidence act. The rule of constructive res judicata is the rule of estoppel. In
some areas the doctrine of res judicata differs from the doctrine of estoppel –

Estoppel flows from the act of parties whereas res judicata is the result of the decision
of the court.

Estoppel proceeds upon the doctrine of equity, a person who has induced another to
alter his position to his disadvantage can not turn around and take advantage of such
alteration. In other words, res judicata bars multiplicity of suits and estoppel
precludes multiplicity of representation of cases.

Estoppel is a rule of evidence and is enough for the party whereas res judicata expels
the jurisdiction of a court to try a case and prevents an enquiry at the threshold (in
limine).

Res judicata forbids a person averring the same thing twice in the litigations and
estoppel prevents the person from saying two opposite things at a time.

According to the principle of res judicata, it presumes the truth of decision in the
former suit while the rule of estoppel precludes the party ton deny what he or she has
once called truth.

Res judicata and Res Subjudice

The doctrine of res judicata and res subjudice varies in some factors –

Res sub judice applies to a matter that is pending trial whereas res judicata applies to
a matter adjudicated or arbitrated.

Res subjudice prohibits the trial of a suit that is pending decision in a previous suit
whereas res judicata prohibits the trial of a suit that has been decided in a former
suit.

Res judicata and Issue Estoppel

A person who has once been tried by a court of proficient jurisdiction for an offence and
convicted of that offence cannot be tried again for the same offence as long as acquittal
operates. This is given under Section 300(1) of the Civil Procedure Court. A party cannot
proceed to reopen the case if the matter is finally decided by a competent or proficient
court. This principle applies to criminal proceedings and it is not allowed in the stage of
the same proceedings to try a person for an offence for which he has been acquitted.

Res Judicata and Stare Decisis

Res judicata means a case that has already been decided or a matter settled by a
decision or judgment. Res judicata and stare decisis both are related to matters of
adjudication (arbitration). Stare decisis rests on legal principles whereas res judicata is
based on the conclusiveness of judgment. Res judicata binds the parties while stare
decisis operates between strangers and bins the courts to take a contrary view on the
law already decided. Stare decisis is mostly about legal principle while res judicata
relates to controversy.

What is Res Judicata and Collateral Estoppel?

The doctrine of collateral estoppel says that an issue or case that has been litigated
cannot be litigated again. For collateral estoppel to apply, the following requirements are
required.

The issue in the first and second case is the same; The party against whom the doctrine
is invoked had the full opportunity to litigate the issue; That party actually litigated the
issue; The issue litigated must have been necessary to the final judgment.

The doctrine of res judicata bars the re-litigation of a claim that has already been
litigated. There are four factors that must be satisfied for res judicata to apply:

A previous case in which the same claim was raised or could have been raised;

The judgment in the prior case involved the same parties or their privies;

The previous case was resolved by a final judgment on the merits;

The parties should have a fair opportunity to be heard.

For example, Abela sued John who is a supervisor for sexually harassing her and due to
that, she had to quit her job. Abela provided the evidence by producing emails written by
him. But John argued that the emails were not real but the judge said that the emails
were real and could be submitted as evidence. After a few months after the trial, Abela
filed a lawsuit against her employer as he did not take any action about the complaint. If
the emails that were submitted by Abela, were not genuine the issue would fall under
collateral estoppel. The issue of authenticity of the emails was already decided in the
previous case and hence the court cannot redecide the issue.

Res Judicata landmark cases

Brobston v. Darby Borough

In the case of Brobston v. Darby Borough,  Brobston was the plaintiff who was injured
while driving a vehicle on a public highway in the Borough of Darby. Due to a transit
company that was occupying the street, the steering wheel of the machine was pulled by
the driver’s hand. This resulted in injury to the complainant.

A suit was filed against the street railway in the Court of Philadelphia to recover
damages. It was proved that negligence was there on the part of both the parties also
known as contributory negligence. The judgment was passed in favour of the defendant.
Later action was again brought against the same defendant based on the same cause of
action and against the same transit company. The judgment in the first proceeding was
brought to the attention of the court. The plaintiff admitted that Brobston was the same
person who was the plaintiff in the action brought earlier in Philadelphia.

The action was brought for injuries occurring at the same place and the verdict of the
court was in favour of the defendant. The facts and cause of action were the same but
the only difference was the name of the defendant. The legal question involved was what
are the rights of the plaintiff in this case. The court refused the facts which were proven
by the counsel. Hence a nonsuit was entered because of the earlier judgment. The
plaintiff should have been permitted to call the witness but no merit was seen.

These conditions were entered in the record to enable the Court to pass the legal
question involved. The plaintiff had the right to recover under the circumstances. The
counsel made an offer to prove the facts which the court had refused to do. A complaint
was made that the plaintiff must have been permitted to call the witness to establish the
matters. The facts were essential for the legal determination of liability before the court
and consent of both the parties were needed.

Henderson v. Henderson

Henderson v Henderson was a case in which the English Court confirmed that a party
can not raise a claim in litigation which was raised in the previous suit. In 1808, two
brothers Bethel and Jordan Henderson became business partners and they operated in
both Bristol and Newfoundland. In 1817, their father died on a date that was not
recorded. The wife of Jordan Henderson was appointed as the administrator and she
brought legal proceedings in the Court. She also brought separate proceedings and
claimed that he had failed to provide an account as executor of the will. The Court of
Appeal held that there was no estoppel by convention and that the proceedings were an
abuse under the rule in Henderson v Henderson. The Court of Appeal held that just one
of Mr Johnson’s claims should be struck out for a reflective loss.

Johnson v. Gore Wood and Company

Johnson v Gore Wood and Company is a leading UK case in which the House of Lords
decided the case relating to litigating issues that had already been determined in the
previous litigation.  Mr Johnson was a director and majority shareholder in a lot of
companies, including Westway Homes Limited and Gore Wood & Co were a firm of
lawyers who acted for the companies and also occasionally worked for Mr Johnson in his
personal capacity.

In 1998, Gore Wood was acting for the company and served notice to acquire land from
a third party upon the lawyers for that third party. The third-party alleged that this was
not service, and refused to convey the land. Legal proceedings followed and ultimately
the company succeeded. However, because the third party was penurious and was
funded by legal aid, the wood company was unable to regain the full amount of its losses
and legal costs.

Accordingly, the wood company issued proceedings against Gore Wood for negligence
and alleged that their losses would have been entirely prevented if Gore Wood had
properly served the original notice on the third party instead of the third party’s lawyers.
Gore Wood ultimately settled those claims, and the settlement agreement included two
provisions that were later proved that they were important. Firstly, it included a clause
stating that any amount which Mr Johnson wished to subsequently claim against Gore
Wood in his personal capacity would be limited to an amount, excluding interest and
costs. The confidentiality clause contained an exception which permitted the settlement
agreement to be referred which Mr Johnson brought against Gore Wood.

Mr Johnson then issued proceedings against Gore Wood in his personal name, and Gore
Wood made applications to dismiss some or all of the claims on the basis that it was an
abuse of process to seek to litigate again the issues which had already been
compromised in the agreement.

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res judicata is of
universal application. The Supreme Court of India placed the doctrine of res judicata on
a still broader foundation. In this case, petitioners filed a writ petition in the High Court
of Allahabad under Article 226 of the Constitution. But the suit was dismissed. Then they
filed independent petitions in the Supreme Court under the writ jurisdiction of Article 32
of the Constitution. The defendants raised an objection regarding the petition by
asserting that the prior decision of the High Court would be operated as res judicata to a
petition under Article 32. The Supreme Court dismissed and disagreed with the petitions.

The court held that the rule of res judicata applies to a petition under Article 32 of the
Constitution. If a petition is filed by the petitioner in the High Court under Article 226  of
the Constitution and it is dismissed on the basis of merits, it would be operated as res
judicata to bar a similar petition in the Supreme Court under Article 32 of the
Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi vs. STO, B challenged the validity of an order of
assessment under Article 226. The petition was dismissed on the basis of merits. The
Supreme Court also dismissed the appeal that was made against the order on the basis
of merits. B again filed another writ petition in the same High Court against the same
order of assessment. This time the petition was dismissed by the High Court. The
Supreme Court held that the petition was barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a civil suit, a
contention regarding the arbitration of the Court was taken by B. The objection was
sustained and the plaint was returned to the plaintiff for the presentation. The Revenue
Court did not have any jurisdiction when A approached the Revenue Court so he
returned the petition. Once again A filed a suit in the Civil Court. B contended that the
suit was barred by the doctrine of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of  Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that res judicata
constitutes between the parties to the previous case and cannot move again in collateral
proceedings. Generally, a decision by a competent court operates as res judicata even on
point of law. However, a question of law which is not related to facts that gives rise to
the right, will not operate as res judicata. When the cause of action is different or the
law is different, the decision has been already altered by an authority. The decision made
will be declared as valid and res judicata will not operate in the subsequent proceeding.

Exceptions to res judicata

Cases where Res Judicata does not apply-

The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High
Courts are concerned. Article 32 gives power to the Supreme Court to issue writs and
some power is given to High Courts under Article 226. The Courts need to give proper
reasoning while applying the doctrine of res judicata. There are some exceptions to res
judicata which allow the party to challenge the validity of the original judgment even
outside the appeals. These exceptions are usually known as collateral attacks and are
based on jurisdictional issues. It is not based on the wisdom of the earlier decision of the
court but the authority to issue it. Res judicata may not be applicable when cases appear
that they need relitigation.

Instalment Supply private limited vs. Union of India

In cases of income tax or sales tax, the doctrine of res judicata does not apply. It was
discussed in the case of Instalment Supply private limited vs. Union of India where the
Supreme Court held that assessment of each year is final for that year and it will not
govern in the subsequent years. As it determines the tax only for that particular period.

Bandhopadhya and others v. Union of India and others

In the case of P. Bandhopadhya and others v. Union of India and others, The appeal was
made in the Bombay High Court and the appellants asserted that they will be entitled to
receive an amount as damages. The Supreme Court bench held that the appellants were
not entitled to receive damages which were pensionary benefits under the Pension Rules
1972. They were entitled to receive benefits as the case was barred by the principle of
res judicata.

In the case of Public Interest Litigation, the doctrine of res judicata does not apply. As
the primary object of res judicata is to bring an end to litigation so there is no reason to
extend the principle of public interest litigation.

Dismissal of special leave petition in limine does not operate as res judicata between the
parties. A fresh petition will not be filed either under Article 32 or under Article 226 of
the Constitution.

Beliram and Brothers v. Chaudhari Mohammed Afzal

In the case of Beliram and Brothers v. Chaudhari Mohammed Afzal, it was held that a
minors suit cannot be brought by the guardian of the minors. However, it was brought in
collaboration with the defendants and the decree obtained was by fraud within the Indian
Evidence Act, 1872 and it will not operate res judicata.

Jallur Venkata Seshayya v. Thadviconda Koteswara Rao

In the case of Jallur Venkata Seshayya vs. Thadviconda Koteswara Rao, a suit was filed
in the Court so that certain temples are called public temples. A similar suit was
dismissed by the Court two years ago and the plaintiff contended that it was negligence
on the part of the plaintiffs (of the previous suit) and therefore the doctrine of res
judicata can not be applied. However, the privy council said that the documents were
suppressed which means that the plaintiff in the earlier suit had bona fide intention(
something that is genuine and there is no intention to deceive).

Can Res Judicata be waived?

In the case of P.C. Ray and Company Private Limited v. Union of India it was held that
the plea of res judicata may be waived by a party to a proceeding. If a defendant does
not raise the defence of res judicata then it will be waived. The principle of res judicata
belongs to the procedure and either party can waive the plea of res judicata. The court
can decline the question of res judicata on the ground that it has not been raised in the
proceedings.

How to defeat Res Judicata?

The doctrine of res judicata would not apply to the case until the conditions are met. The
essential condition for the applicability is that the succeeding suit or proceeding is
founded on the same cause of action on which the former suit was founded. The
principle of res judicata can be defeated when the party has filed the suit on a
reasonable ground for example in case a public interest litigation has been filed there is
no reason not to extend the doctrine of res judicata. The PIL has been filed with a bona
fide intention and the litigation cannot end.

Criticism to Res Judicata

Res judicata can also be applied to judgment that may be contrary to law. The doctrine
of res judicata has been used for a long time and it encloses the general effect of one
judgement upon another trial or proceeding. It includes matters not only those of bar
but also those matters which should be litigated. For example, if a case has been
dismissed on a specific ground by a court of law or equity and it is not deemed as a final
judgment and technically res judicata will apply but it is not justified. If the chancellor
has denied equitable relief on a principle but it was held by the court that the plaintiff is
barred from proceeding as a legal remedy. Most of the equity cases involve res judicata
and do not get beyond collateral estoppel. As it raises the difficulty of overlapping more
than the failure to litigate issues.

The title to real estate and the right to collect rent depended upon one and the same
construction of a will. In an interpleader over the rents, A got the decree. B appealed,
without supersedeas, and secured a reversal, but, before his appeal was decided, A had
sued him in ejectment, invoking the decree, and recovered a judgment for the real
estate. B did not appeal from this judgment, but, after the reversal of the decree, he
sued A in ejectment for the land, relying upon the reversal.

Restitution (Sec. 144)

Doctrine of restitution
The doctrine of restitution implies to brings the aggrieved party to the original position
where the benefit of the erroneous judgment of the court is received by the other party
who was not entitled to such benefit.  Restitution is not a new concept and Section 144
merely gives statutory recognition to this principle. Section 144 of CPC deals with the
application for restitution.

Section 144 states that:

When a decree or order of the Court has been:

varied/reversed in any appeal, revision or other proceedings;

is set aside/ modified in any suit instituted for that purpose.

The Court that passed the decree/order will grant restitution on receiving an application
of the party entitled to the benefit

The court in the case of Mahjibhai Mohanbhai Barot vs Patel Manibhai Gokalbhai held
that an application for restitution is an application for execution of a decree.

The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das
held that the party who received the benefit of the erroneous judgment is by law under
an obligation to make restitution to the other party for his loss.

The same view was reiterated by the court in the case of Binayak Swain vs Ramesh
Chandra Panigrahi, the doctrine of restitution means that, on reversal of a decree or
order, an obligation is imposed by law on the party who has received the benefit of the
erroneous decree to make restitution to the other party for his loss. This obligation
automatically arises when the decree or order is reversed or modified by the Court. It
necessarily carries with it the right of restitution for all the things that have been done
under the erroneous decree. The Court while making restitution is under a duty to
restore the parties, as far as possible, at the time when the erroneous action of the
Court displaced them.

The Apex Court in the case of Union Carbide Corporation v. Union of India held that
restitution is a principle of equity and is subject to the Court’s discretion. Section 144 of
CPC doesn’t grant any new substantive right to the party not already obtained under the
general law. The Court is obliged to ensure that no one goes back with a feeling that he
was impaired by an act which he did on the faith of the Court’s order.

Actus curiae neminem gravabit

The Latin maxim actus curiae neminem gravabit means the act of court should not affect
anyone and is founded upon the principle of equity. The Court is obliged to ensure that
no one is endured by its order and it should not pass any order to the prejudice of any
person. The apex court reiterated the maxim of actus curiae neminem gravabit in the
case of Odisha Forest Development Corporation v. M/s Anupam Traders.

Conditions
In applying for restitution, the following conditions must be fulfilled:

The decree/order must have been varied or reversed in any appeal, revision or is set
aside or modified. The party in respect of the reversed or modified decree/order must be
entitled to benefit by way of restitution or otherwise. The relief claimed by the party
must be properly consequential of the variation, reversal, setting aside or modification of
the decree/order.

The Orissa High Court in Banchhanidhi Das vs Bhanu Sahuani laid down certain
principles to be followed for the application of restitution:

There should be an erroneous judgment passed by the court. The party to the record
must have received the benefit of the erroneous judgment. The party applying for
restitution must show that as a consequence of the erroneous judgment or decree, a
party received the benefit.

The erroneous judgment or decree must have been reversed in appeal.

Who may apply?

A person may apply for restitution who:

Was a party to the order or decree being varied, reversed, set aside, or modified. Is
entitled to any benefit by way of restitution or otherwise in respect of the order or
decree being varied, reversed, set aside, or modified.

Against whom restitution may be granted?

The court may grant restitution against the party who has wrongly received the benefit
under the erroneous decree or order of the court. The party receiving the benefit is
under an obligation to make restitution to the party for what he has lost.

Who may grant restitution?

The court which has passed the original decree or order may grant restitution on an
application being made to it by the party who is entitled to benefit from such reversed or
varied decree or order.

What remedies can the court can grant?

The court under Section 144 can make any orders as a consequence of a decree or order
being varied, reversed, modified, set aside for the refund of costs and for payment of
interest, damages, compensation, and mesne profit.

Nature of proceeding
The nature of proceeding under Section 144 is execution proceedings. The process to get
an order or decree into effect is called execution proceedings.

Extent of restitution
Section 144 is not exhaustive but inclusive. Even if a matter does not fall within the
scope of Section 144, the court has the power to grant restitution on its discretion.

Inherent power to grant restitution

Under Section 151, a court has an inherent power to make such order as may be
necessary for meeting the ends of justice or to prevent the abuse of the process of Court
other than the power to grant restitution under Section 144. The power of the court to
grant restitution is not confined only to Section 144, the court has an inherent power to
grant the remedy of restitution where Section 144 does not apply. There are different
circumstances in which the court can order to restore the status quo ante (previously
existing state of affairs) to meet the ends of justice.

It was held in K.N. Krishnappa vs T.R. Gopalkrishna Setty that under Section 151 C.P.C,
the inherent powers of the Court can be invoked for restoring the parties to the position
in which they were, prior to the execution.

Bar of Suit
Section 144(2) bars a separate suit instituted for obtaining any remedy if restitution or
other relief could be obtained by making an application under Section 144(1).

Caveat (Sec. 148A)

Meaning of Caveat
The caveat in Latin means “let a person be aware” and in law, it may be understood as a
notice given asking not to act in a certain manner without informing the person who
gave such a notice. Under the Civil Procedure Court, the provision of caveat is dealt with
in Section 148A. Even Though CPC does not define caveat in the case of Nirmal Chand v.
Girindra Narayan, the court defined caveat as a warning given by an individual to the
court that no order or judgment shall be passed without giving notice or without hearing
the caveator. The person who files a caveat is called the Caveator and the person who
has instituted a suit or is likely to do so is called caveatee. The main object of caveat is
to ensure that the court does not pass ex parte orders and that the interests of the
caveator are protected. Caveat also reduces the burden of court and brings an end to the
litigation as it reduces the multiplicity of proceedings. As the purpose of the caveat was
to save the cost and convenience of the court, in Kattil Vayalil Parkkum Koiloth v. Mannil
Paadikayil Kadeesa Umma, the court held that no caveat can be lodged by a total
stranger to the suit.
When to lodge a Caveat?
According to Section 148A, when people apprehend that some case against them is filed
or is about to be filed in any court of law in any manner, they have a right to lodge a
caveat. The Caveat may be lodged in the form of a petition under the following
circumstances:

During an ongoing suit or litigation and in that the application is already been made or is
expected to be made; The suit is about to be instituted and in that suit, an application is
expected to be made.

Thus, firstly it is always about an application in a suit of the proceeding and secondly
that suit or proceeding can be in the present which is already instituted or it can be in
the future where a suit is not instituted yet but the same is expected. In all such
situations the right to lodge a caveat arises.

Who may lodge a caveat?

Section 148A further provides that a caveat may be filed by any person, whether a party
to the suit or not, as long as the person filing the caveat has the right to appear before
the court in regard to the suit in question. Thus caveat can be filed by a third party as
well, if they in any manner are connected to the suit in question. However, as it is
already discussed that a caveat cannot be lodged by a person who is a total stranger to
the case and the same principle was laid down in Kattil Vayalil Parkkum Koiloth v. Mannil
Paadikayil Kadeesa Umma. To conclude, this clause is substantive in nature and caveat
may be filed by any person claiming a right to appear before the Court.

Where can a caveat be lodged?

As and when the caveator anticipates some legal proceedings to be filed against him in
the near future, he can file a petition for a caveat in any Civil Court of original
jurisdiction, Appellate Court, High Court as well as Supreme Court. Civil Courts include
Courts of Small Causes, Tribunals, Forums, and Commissions. However, in Deepak
Khosla v. Union of India & Ors, the court held that Section 148A of the code applies to
civil proceedings only and caveat cannot be made against petitions made under the
Criminal Procedure Code or petition made under Article 226 of the Constitution of India.

How to file a caveat?

A caveat under Section 148A shall be signed by the caveator or his advocate. Where the
caveator is represented by an advocate, it should be accompanied by his Vakalatnama.
The caveat presented shall be registered in a caveat register maintained by the courts in
the form of a petition or any other form that may be prescribed. The register of caveat
contains the date of caveat, name, and address of caveator, name of the plaintiff, the
name of the defendant and date and a number of proceedings filed as anticipated by the
caveator. A caveat is always filed with a copy, the postal proof and an application
explaining to the court that a copy of the caveat has been sent to all the parties and thus
the court need not do the same. Even though the court fees of filing a caveat varies for
different courts, it is generally a nominal amount of less than INR 100. The rules and
format of the caveat are similar for most of the courts.
While filing a petition of caveat in Delhi High Court, follow the below-mentioned steps:

Support the caveat petition with an affidavit. Both petition and the affidavit should be
signed by the caveator; Apart from this, a vakalatnama, impugned order (if any), and
proof of service of notice of caveat is also to be submitted to the Court.

What does a caveat contain?

A caveat or a notice given to the court that certain actions may not be taken without
informing the caveator should contain the following information:

Name of the caveator;

Address of the caveator where the notice would be sent;

The name of the court where such caveat is filed;

The number of the suit and the number of the appeal if applicable;

Brief details about suit or appeal likely to be filed;

Name of the probable plaintiffs or appellants and the respondents.

If subsequent to the filing of a caveat, any application is made in any suit or legal
proceeding, the court is required to give notice about such an application to the caveator.
When a notice has been served on the applicant, the applicant at the expense of the
caveator is required to provide the caveator with a copy of the application made by him
along with any document that may have been submitted with the application. If the
court or applicant ignores the caveat and does not inform the caveator, the decree or
judgment passed becomes null and void.

The Reserve Bank of India Employees association & anr. V. The Reserve Bank of India &
Ors, a caveat petition was filed by the appellants apprehending an injunction order by
the respondent. For the caveat filed, the plaintiffs were served with a notice and all other
relevant papers or documents. They were also informed that the application will be
moved on 28-10-1980. However, the application was not heard on the said date, rather
heard later on 30-10-1980. The petitioners argued that as the court failed to provide the
plaintiff with the notice of the order, the judgment would be void and null, in accordance
with clause (3) of Section 148A. The court disagreed with the appellants and held that
caveat gives the right to be informed about hearing of the case and not takes away the
right of a court to deliver a judgment or order on the merits of the case. Mere lodging of
caveat does not deprive the court of its power to deliver orders or judgments.

However, the precedent set in the above case was overruled in C.G.C Slddalingappa v.
G.C Veeranna, wherein the applicant on filing a caveat was served with a notice.
However, the case was decided on a later date without giving notice to the appellant
about the same. The court held that the provision regarding notice under Section
148A(3) is mandatory and non-compliance of the same defeats the very object of 148A,
thus the order passed is void and null.

Right and duties

When a caveat is filed, it gives certain rights and duties to the caveator, applicant as well
as the court. Let’s consider all these rights and duties separately:

Rights and duties of the caveator

Clause (2) of the section provides that when a caveat has been lodged under sub-section
(1), the caveator shall serve a notice of the caveat to the person by whom the
application has been made or is expected to be made under sub-section (1). The
caveator at the time of lodging the suit says that either there is a suit in the present and
in which I expect an application is going to be made or there is an application existing in
the suit and I want to be represented, or he says that a suit is going to be filed in the
future and in that suit an application will be made and in that application I want to be
represented. So whenever such an application comes, the caveator has the right to be
informed. However, before he becomes entitled to notice, he has to give a notice saying
that I have lodged a caveat to the person from whom he is expecting such an application
to be made. In other words, the caveator has to serve notice by registered post, on the
applicant who is going to file this application or who has already filed an application,
saying that whenever you file an application, you are bound to give notice.

Rights and duties of court

The duty of the court arises, once the caveat is lodged and notice is served upon the
applicant. Clause (3) of the Section provides that after a caveat has been lodged and
thereafter any application is filed in any suit or proceeding, the court has to serve a
notice to the caveator. This means that once the caveator has filed the caveat saying I
want to be represented and after that, an actual application has been filed within the
next 90 days, in that case, the court will serve a notice to the caveator, informing him
that the application that was expected by him has been filed and the caveator thereby
has the right to be heard before the court.

Rights and duties of the applicant

In addition to the court giving notice, the applicant is also required to serve a notice to
the caveator, informing that an application in regard to the caveat filed has been made.
Clause (4) of the section, directs the applicant to provide a copy of the application made
by him along with any other document or paper that may have been fled by him in
support of his application to the caveator. The Court will not move forward with the
application unless an affidavit is submitted by the applicant that a notice has been
served to the caveator.

Limitation of time
As provided by the section in clause 5, the caveat stays in force for a period of 90 days.
If within these 90 days an application is filed, then the court, as well as the applicant,
has to give notice to the caveator. However, if no caveat is filed within these 90 days,
then no one has the duty to inform the caveator, i.e. if the application is filed after the
expiration of such period the caveat stands null and void. If the caveator still wants to be
informed then a fresh caveat needs to be lodged for the next 90 days.

Common mistakes made while filing a caveat

Some of the common mistakes made while filing caveat are as follows:

The caveat is often filed in support of an application, it is important to remember that

caveat can be made only against an application; Caveator forgets to serve a notice to
the applicant, which is mandatory under Section 148A of CPC. Caveators often claim that
the order or judgment was incorrect because the notice was given, even after the
expiration period. It is important to remember that after 90 days, a fresh caveat needs
to be filed.

Inherent power of Courts (sec – 148-153B)

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable,
essential or characteristic attribute. Inherent powers of courts are those powers which
may be applied by the court to perform full and complete justice between the parties
before it. It is the duty of the Courts to serve justice in every case, whether given in this
code or not, brings with it the important power to do justice in the absence of a definite
or separate provision. This power is said to be the inherent power that is maintained by
the court, though not conferred. Section 151 of the Civil Procedure Code deals with the
inherent powers of the court.

Provisions of Section 148 to 153B of CPC

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A
of the Civil Procedure Code, which deals with the exercise of powers in different
situations. Following are the provisions of Inherent powers of Courts:

Section 148 and Section 149 deals with grant or enlargement of time;

Section 150 deals with the transfer of business;

Section 151 protects the inherent powers of the courts; and

Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for
the doing of any act provided by CPC, it is the discretionary power of the Court that the
Court may enlarge such period from time to time, even though the term originally fixed
or awarded may have departed.

In simple words, when a term is fixed by provision for the doing of any act, the Court
has the power to extend such period up to 30 days. This power is exercisable in the
deficiency of any specific provision to the contrary which reduces or rejects or withholds
the period. The power is limited to the extension of the time fixed by it and is of a
discretionary nature.

Payment of court fees

According to Section 149 of CPC, “Where the entire or a portion of any fee commanded
for any certificate by the law for the time being in force relating to court-fees has not
been met, the Court may, in its discretion, at any step, permit 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 regard of which such fee is payable, shall have the
same force and result as if such fee had been paid in the initial situation.”

It permits the court to allow a party to make up for the lack of court fees due on a
complaint or notice of appeal etc., even after the expiry of the limitation period for filing
of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any
document imputable with court-fee to be presented in the court. If the necessary court
fee is paid within the time set by the court, it cannot be negotiated as time-barred. Such
payment made within the time fixed by the court retrospectively validates a faulty
document. The power of the court is discretionary and must be exercised only in the
importance of justice.

Transfer of business
According to Section 150 of CPC, “Save as otherwise granted, where the business of any
Court is assigned to any other Court, the Court to which the business is so assigned shall
have the same authority and shall make the same duties as those sequentially presented
and forced by or under this Code upon the Court from which the business was so
assigned.”

For example- When the business of a court A is transferred to any other court B, the
court B will exercise the same power or perform the same duties given or commanded
by CPC upon the transfer court.

Section 151 of CPC

Section 151 deals with “Saving of inherent powers of Court.” This Section states that
‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of
the Court to make such orders as may be important for the ends of justice or to limit
abuse of the method of the Court.’ It is not obligatory for the court to wait for the law
made by parliament or order from the higher judiciary. Court has discretionary or
inherent power to make such an order which is not given in terms of laws for the
security of justice or to check misuse of the method of the Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as
follows:
 The court may recheck its orders and resolve errors;

Issuance of provisional sanctions when the case is not included by order 39 or to

place alongside an ‘ex parte’ order;

Illegal orders or orders passed without jurisdiction can be set-aside;

Subsequent events in the case can be taken into consideration by the court;

Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;

The court can erase remarks made against a Judge; and

The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was
explained. It was held that “ends of justice” are solemn words, also there’s words that
are not merely a polite expression as per juristic methodology. These words also indicate
that Justice is the pursuit and end of all law. However, this expression is not vague and
indeterminate notion of justice according to laws of the land and statutes.

The Court is allowed to exercise these inherent powers in cases like- to recheck its own
order and correct its error, to pass injunction in case not included by Order 39, and an ex
parte order against the party, etc.

Abuse of process of the court

Section 151 of the CPC provides for the exercise of inherent powers to check the
infringement of the process of the court. Abuse of the powers of the court which happens
in unfairness to the party needs to get relief on the ground that the act of a court shall
not prejudice anyone. When a party practices fraud on the court or on a party to a
proceeding, the remedies have to be provided on the basis of inherent power.

The word ‘abuse’ is said to occur when a Court uses a method in doing something that it
is never expected to do is the perpetrator of the said abuse and there is a failure of
justice. The injustice done to the party must be given relief on the basis of the doctrine
of actus curiae neminem gravabit (an act of the court shall prejudice no one). A party to
a case will become the perpetrator of the abuse in cases when the said party does acts
like obtaining benefits by functioning fraud on the Court or a party to the proceedings,
prompting the multiplicity of proceedings, etc.

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.”
According to Section 152 of CPC, the Court has the power to change (either by own
actions or on the application of any of the parties) written or arithmetical mistakes in
judgments, decrees or orders or faults arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend.” This Section empowers the
court to amend any fault and error in any proceedings in suits and all required
improvements shall be made for the purpose of arranging raised issues or depending on
such proceeding.
Section 152 and 153 of the CPC makes it clear that the court may set correct any
blunders in their experiences at any time.

Power to amend decree or order where an appeal is summarily dismissed and place of
the trial to be deemed to be open Court are defined under Section 153A and 153B of
CPC,1908.

Limitation
The exercise of inherent powers carries with it certain barriers such as:

They can be applied only in the deficiency of particular provisions in the Code; They
cannot be applied in dispute with what has been expressly given in the code;

They can be applied in rare or exceptional cases; While operating the powers, the court
has to follow the method shown by the legislature; Courts can neither exercise
jurisdiction nor entrust in them by law; To abide by the principle of Res Judicata i.e., not
to open the issues which have already been decided finally; To pick a mediator to make
an award afresh; Substantive rights of the parties shall not be taken away; To limit a
party from taking proceedings in a court of law; and To set apart an order which was
valid at the moment of its issuance.

Execution of Judgement and Decree (Order 21)

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means
implementing or enforcing or giving effect to an order or a  judgment passed by the
court of justice. In simple words “execution” means the process of enforcing or giving
effect to the decree or judgment of the court, by compelling the judgment-debtor to
carry out the mandate of the decree or order and enable the decree-holder to recover
the thing granted to him by judgment.

Illustration:

X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be
called the decree-holder,  Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a
decree or order are given in Section 36 to Section 74 (substantive law) and Order 21 of
the code which provides for procedural law.

Execution proceedings under CPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions
of the code relating to the execution of orders and decree and stated that the Code
contains elaborate provisions which deal with all questions regarding executability of a
decree in all aspects.
The Court further observed that numerous provisions of Order 21 take care of various
situations providing effective remedies to judgment-debtors, decree-holders and
claimant objectors. In the cases, where provisions are not capable of giving relief
inadequate measures and appropriate time, to an aggrieved party, then filing a regular
suit in the civil court is the solution. The Court further explained that the judicial quality
of the remedy under Civil Procedure Code is considered to be superior as compared to
other statutes therefore, the judges are expected to do better as they are entrusted with
the administration of justice

Courts which can execute decrees

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

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

The court of the first instance;

The court which actually passed the decree in case of appellate decrees;

The court which has jurisdiction to try the suit at the time of execution, if the court of
first instance ceased to exist; The court which at the time of execution had jurisdiction to
try the suit, if the court of first instance has ceased to have jurisdiction to execute the
decree.

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

Transfer of decree for execution

Section 39 provides that when a decree-holder makes an application to the court of the
first instance to send the decree for execution to another court, the court of first instance
may do the same if any of the following grounds exist:

If the judgment-debtor carries on business, or resides or personally works for gain,

within the jurisdiction of such Court; if the property of judgment-debtor does not come
under the jurisdiction of the Court of the first instance but it comes under the local limits
of the jurisdiction of such Court;

If the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same; If the Court which had passed the
decree considers that the decree should be executed by another court, but it shall record
the reasons in writing for doing the same.
Section 39(2) states that the Court of the first instance may suo motu send it for
execution to any subordinate Court of competent jurisdiction.

The Section further states that if the execution of the decree is against a person or
property outside the territorial jurisdiction of the court passing the decree, then such
Court has no power to execute the decree.

In Mahadeo Prasad Singh v. Ram Lochan, the Supreme court held that the provisions of
Section 39 are not mandatory because the court will have discretion in the matter which
can be exercised by it, judicially. The decree-holder would not have any vested or
substantive right to get the decree transferred to another court.

Execution of foreign decrees in India

The Code lays down the procedure for execution of foreign judgments and decrees in
India. While enforcing a foreign judgment or decree in India it should be ensured that
the judgment or decree is a conclusive one, given on the merits of the case and by a
court having competent jurisdiction.

What is a foreign judgment and a foreign decree?

Section 2 (6) of the CPC defines a foreign judgment as a judgment of a foreign court. As
per section 2(5) of CPC, a foreign court implies a court which is situated outside India
and which is not established or continued by the authority of the Central Government.

A foreign decree is defined in Explanation II to section 44A of the CPC as a decree or

judgment of such court and which directs that a sum of money is payable. However, such
sum of money shall not be a sum payable in respect of taxes or other charges of a like
nature or in respect of any penalty or fine. It should not include an arbitral award, even
if such an award is enforceable as a decree or judgment.

Foreign judgment or decree needs to be conclusive

A foreign decree or judgment needs to be conclusive in nature. Section 13 of the CPC
lays down the test for conclusiveness of a foreign judgment or decree, which says that a
foreign judgment would be conclusive in all cases except the following:

When a court of competent jurisdiction has not pronounced it;

When it has not been pronounced on the merits of the case;

When it has been based on a wrong view of international law or a refusal to recognize
the law of India in cases in which such law is applicable;

When the proceedings carried out while obtaining the judgment are opposed to
natural justice; When such judgment has been obtained by fraud;

When it sustains a claim that had been based on a breach of any law in force in India.

Thus, a foreign judgement or decree shall pass the seven tests mentioned above.
Otherwise, such foreign judgment or decree cannot be enforced in India as such
judgment or decree will not be regarded as conclusive if it fails any of these tests.
Mode of enforcement of a foreign judgment or decree
Two ways in which a decree or foreign judgment can be enforced in India are as follows:

Where the decree or judgment has been given by a court in a reciprocating territory;

Where decree or judgment has been given by a court in a non-reciprocating territory.

Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a reciprocating
territory shall be executed in India as that has been passed by the district court.

“Reciprocating territory“ signifies, any territory or country outside India which the
Central Government has declared to be a reciprocating territory, by notification in the
Official Gazette, and “superior courts“, with reference to any reciprocating territory,
means such courts that would be specified in the said notification.

Therefore, a judgment which has been pronounced by a court of a reciprocating territory

can be enforced in India as an Indian decree by filing an execution application. A
certified copy of a decree of any superior court of a reciprocating territory should be filed
in a District Court, once this is done, the decree shall be executed as if it had been
passed by the District Court of India and the provisions governing execution which are
laid down in Order 21 of the CPC will be applicable to the decree.

While filing the execution application the original certified copy of the decree shall be
filed along with a certificate from the superior court stating the extent to which the
decree has been satisfied or adjusted.

Execution in case of decrees from non-reciprocating territories

In the cases where a judgment or decree has not been pronounced by a court of a
reciprocating territory, it can be executed only when a fresh suit on that foreign
judgment is filed in a court of  India which has competent jurisdiction to entertain the
same.

The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine Construction &
Engineering Ltd., observed that when a decree has been pronounced by a court of a non-
reciprocating foreign territory, it can not be executed unless a fresh suit has been filed
by the decree-holder on that foreign decree or on the original cause of action, or both.
The suit must be filed within a period of three years from the date of the judgment or
decree. The person seeking execution shall show that the foreign decree passes the tests
of Section 13.

The court further observed that Section 13 of the Code provides substantive law and
Section 44A of the Code is an enabling provision and it enables a decree-holder to put a
decree obtained from a court of a reciprocating territory into execution. Section 13
clearly expresses the principles of private international law, that a court will not enforce
a foreign judgment of a competent court.
Execution of Indian decrees in a foreign territory
Section 45 of the Code is related to the execution of decrees outside the territory of
India. It states that a Court has the power to send a decree for execution to a Court
outside India which has been established by the Central Government’s authority. It
should be ensured that the State has, by notification in the Official Gazette, declared the
said section can apply to such Court. A plain reading of the aforesaid  provision yields
the following features:

The decree which has to be executed should be of an Indian Court and it should be for
execution in a foreign territory.

The Central Government should have established the transferee court in such foreign
territory. The State Government should have declared by notification in the Official
Gazette that this section will apply to the said foreign Court.

The provision, therefore, prescribes the prerequisite conditions for the execution of an
Indian decree outside the country. Therefore, in the absence of either of the aforesaid
conditions in Section 45, an Indian Court has no jurisdiction to send its decree for
execution to a Court not situated in India.

Execution of decree at more than one place

There is no provision in the Code which prevents a decree-holder from executing a
decree simultaneously at more than one place against the property of the judgment-
debtor.

In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court observed that
“simultaneous execution proceeding in more than one place is possible but the power
shall be used in a restricted manner, in exceptional cases by imposing proper terms so
that the judgment debtors do not face any hardship because of several executions are
being allowed to be proceeded with at the same time.” Therefore, simultaneous
execution proceedings are not without jurisdiction or illegal.

Moreover, as per Section 39 of the Code, simultaneous execution of a decree is

permissive in nature as it provides for execution of a decree either by the Court of first
instance or by the Court to which it is sent for execution.

Procedure in execution
Section 51 to 54 of the Code talks about the procedure in execution.

Section 51
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as
the court deems fit.

Mode of executing decree

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

By sale of the property with or without the attachment of the property. If the property
is situated within the jurisdiction of the court then it has the power to attach the
property.

By arrest and detention. However, this mode should not be exercised without giving a
reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as
to why he should not be imprisoned.

Execution by appointing a receiver

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in
the execution of a decree then clause(e) comes into play.

Section 52
This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the
deceased remains in the hands of a legal representative, a decree can be executed
against the property, if it is for the payment of money out of the property of the
deceased and if the decree has been passed against the party as the legal representative
of the deceased person.

In a situation where the property which is in the possession of the judgement-debtor

came in the hands of the legal representative and it has not been duly applied by him,
the court will enforce the execution of the decree against him as if the decree was to the
extent passed against him personally.

Section 53
The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be
deemed to be of the deceased which has as his legal representative come into the hands
of the son or other descendants.

Section 54
When a decree has been passed for partition or for the separate possession of a share of
an undivided estate for the payment of revenue to the government, this section comes
into play. The partition of the estate or share needs to be made by the collector,  but if
the collector denies making the partition of the revenue paying property, then the civil
court can do so. To attract the provisions of this section, the plaintiff asking for the
division of government revenue is not deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of competent
jurisdiction, it would cease to have jurisdiction over that decree and it cannot execute
the decree. Then, only the transferee court can entertain an application for execution.
Powers of the transferee court
Under Order 21 Rule 8 of the Code, if a decree under the provisions of section 39 has
been sent for execution to another district, it may be executed by either the district court
to which it was sent or by a subordinate court which has competent jurisdiction, to which
the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the Court to
which a decree has been sent for execution shall have the same powers in execution of
such decree as if it had been passed by itself.

The Court has the power to punish the persons who cause obstructions in the execution
of the decree and the power shall be exercised by the court as if the decree has been
passed by it. The main object of giving such powers to the transferee court is to ensure
that the judgment-debtor pays the money or gives such other thing to the decree-holder
as would be directed by the decree.

The Court will have the following powers, namely:—

To send the decree for execution to another Court under section 39.

To enforce execution of a decree against the legal representative of the deceased

judgment-debtor under section 50.

To order attachment of a decree.

However, the court to which a decree is sent for execution will not have the power to
order execution at the instance of the transferee of the decree and the power to grant
leave to execute a decree passed against a firm against any person, other than a person
referred to in Rule 50 of Order XXI.

Powers of executing court

The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as
the court deems fit.

Mode of executing a decree

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

By sale of the property with or without the attachment of the property. If the property is
situated within the jurisdiction of the court then it has the power to attach the property.

By arrest and detention. However, this mode should not be exercised without giving a
reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as to
why he should not be imprisoned.

Execution by appointing a receiver.

If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used in
the execution of a decree then clause(e) comes into play.

Jurisdiction and Place of Suing (Sec. 15 to 20)

Meaning of jurisdiction
In general meaning, Jurisdiction is the power of the Court to take the cognizance of an
offence and to determine the cause of action.

According to Black’s Law dictionary Jurisdiction means “A court’s power to decide on a

case or issue a decree.”

The jurisdiction was defined in the case of Hirday Nath vs  Ram Chandra. The High Court
of Calcutta stated that jurisdiction may be defined as judicial power of Court to hear and
determine the cause and adjudicate upon it.

Jurisdiction is decided mainly on the basis of:-

Pecuniary value

Local limits of Court

The subject matter of Court

So the Court before taking the cognizance of offence, the following points needs to be
taken into consideration:-

The pecuniary value of the suit

The nature of the case

The territorial limits of the court

It is not only sufficient that forum must have an authority to deal with the matter or that
the court has a pecuniary jurisdiction or the court has a local jurisdiction but the court
must be competent enough to grant the relief in such matter.

Jurisdiction of Civil Court (Section 9)

The word civil is not defined in section 9 itself. According to Dictionary “civil rights is
private rights and remedies that are different from the criminal and political”. The word
“nature”  indicates the identity or essential character of a person or thing. So, we can
draw the definition of suits of civil nature means that the suit in a dispute relating to
private rights and the suit must not be related to a political or criminal matter.

The civil court shall have jurisdiction to try all the suits except the suit which is impliedly
or expressly barred.

A suit which is related to the right to property or suit in which office is contested is of
civil nature suit, notwithstanding that such right may depend entirely on the decisions of
questions as to religious ceremonies or rites. It is immaterial whether the fees to the
office are attached or not, or whether such an office is attached to a particular place or
not.

The suit which is expressly barred means the suit which is barred by any statute or any
other law for the time being in force. The legislature has an option to bar the jurisdiction
of the civil court with respect to a particular class of suit keeping itself with the ambit of
the power conferred on the Constitution of India. The establishment of the tribunal has
taken away the jurisdiction of the civil court with regard to the subject matter that is
allotted to the tribunal on the first instance, however, if any questions related to law
raised, or any provision of the act so created the tribunal can be looked into by the civil
court.  The civil court has no jurisdiction over the matter in which court under the Code
of Criminal Procedure, Revenue Court has exclusive jurisdiction, or matter is dealt with
special tribunal dealt under special statutes. example Motor Accidents Claims Tribunal,
Cooperative Tribunal.

A suit is impliedly barred when it is barred by either the general principle of law or
general conduct of law. The basic purpose of barred impliedly is that the court should not
deal with the matter which causes injurious to the public or which is against the public
will.

In the case of P.M.A Metropolitan vs Moran Mar Marthoma [2],

The Supreme Court observed that:-

The phrases used in section 9 has a positive and negative meaning

The earlier part has a wider sense as it covers all the matter of civil nature; on the
other hand, the latter part has a wider sense as it excludes the matter which is
impliedly or expressly barred.

The two explanations mentioned in Section 9 expresses the legislative intentions.

It cast an obligation on the court to exercise the jurisdiction for the enforcement of
private rights

No court is at discretion to refuse the matter which falls under this section

It is mandatory to take the cognizance of matter because the word “shall” is used
which means that it is a mandatory section.

In the case of  Shankar Narayanan Potti vs K. Sreedevi

The Supreme Court held that the ‘Civil Court has inherent jurisdiction in all types of civil
matter as per Section 9 of CPC unless the suit is expressly or impliedly barred.”

This means that Legislature can exclude the jurisdiction of the civil court by inserting a
provision or clause in any Act itself.

In the case of State of A.P VS Manjeti Laxmikanth Rao, the court held that for the
purpose of constructing the test to determine the exclusion of civil court it is necessary
to look into the intent of the legislature to exclude the jurisdiction. It means that the test
is done to determine whether there is any reason for the exclusion of jurisdiction and if
there is any reason, to further find out whether the just reason is justified or not.
Although justification is not subjected to judicial review. Once the court satisfies itself of
the reason, then it needs to determine whether the Act which excludes the jurisdiction
provides an alternative remedy for the same or not. An alternative remedy must be in
regard to such function which civil court must exercise in absence of such exclusion and
would be empowered to pass any order which the civil court in similar circumstances
would have passed.

In the case of Bar Council of West Bengal vs A. Austin. The High Court of Calcutta states
that when the statute which bars the jurisdiction does not provide an alternative remedy
then the jurisdiction of the civil court cannot be excluded.

In the case of Balawwa vs Hasanabi

If a part of the suit is excluded from the jurisdiction of civil court then it is not necessary
that the entire suit cannot be instituted in the civil court.

In the case of Shri Panch Nagar Parak vs Purushottam Das. If there are no express
provisions in any statute the court needs to look into the purpose, scheme and relevant
provisions of the Act in order to determine implied exclusion of the jurisdiction of a civil
court. Section 15 to 20 deals with the place of suing.

There are three kinds of jurisdiction to determine the place of suing:-

Territorial jurisdictions

Pecuniary jurisdictions

Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine whether
the court has jurisdiction to deal with the matter. If the court has all these (territorial,
pecuniary, or subject matter jurisdiction then only the court has the power to deal with
the case. In the case, if the court does not have any of the above-mentioned factors
then it will be considered as lack of jurisdiction or the irregular exercise of jurisdiction.
when the court who does not have jurisdiction decide the case and give a decision then
such decision will be considered as void or voidable depending upon the different
circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it. The word
competent denotes that the court must have the power to hear the case with regards to
pecuniary jurisdiction. The court of lowest grade who has a jurisdiction with regards to
pecuniary value shall deal with the case at first instance.

The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the
pecuniary jurisdiction of the court unless it prima facie appears to the court that the
valuation was not done correctly.  When the court finds that the valuation was either
done overvalued or undervalued, then the valuation will be done by the Court and the
court will direct the party to approach the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the amount for
which decree is passed.

Lets us understand from an example, if the court has a pecuniary jurisdiction of Rs

15000 and the suit for recovery of accounts is filed on the valuation of suit done by the
plaintiff. The valuation was of Rs 15000. Later the courts find that Rs 20000 is due, in
this case, the court is not deprived of its jurisdiction to pass a decree for that amount.

It is the valuation done by the plaintiff to determine the jurisdiction of the court. But this
does not mean that the plaintiff is set free to file for any arbitrary value and to choose
the court in which he wants to file a suit.

When the court finds that valuation is done improperly for the purpose of avoiding the
jurisdiction of the appropriate court, the court may require the plaintiff to prove that
valuation was done in a proper manner.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

Suits related to immovable property ( Section 16 to 18)

Suits related to Movable property ( Section 19)

Other suits( Section 20)

Section 16 states that the suit related to immovable property shall be instituted where
such immovable property is situated.

It talks about the institution of the suit with respect to:-

Recovery of immovable property with or without profit or rent

Partition of immovable property

Foreclosure, sale or redemption in case of charge or mortgage upon immovable

property

Compensation for a  wrong caused to immovable property

Determination of any interest or rights related to immovable property

Recovery of movable property under attachment or distraint, for all the above-
mentioned purpose.

When the suit is filed for the relief or compensation for wrong caused to immovable
property held by a defendant or any other person on the behalf of a defendant where the
relief can be obtained through his personal attendance then suits may be instituted in a
court within whose local jurisdiction:-
 the property is situated, or

the defendant voluntarily and actually resides or carries on business or personally for
gains.

Section 17:-Cases in which the immovable property is situated within the local limits of
the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong caused to
immovable property situated within the jurisdiction of two or more courts, the suit may
be filed in any court within whose local jurisdiction a portion of the property is situated.
But in respect for the value of subject matter of the suit, the entire claim is cognizable
by such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of courts,
and any of the courts has satisfied that there is a ground for uncertainty, record the
statement and may proceed with the case to entertain and dispose of the case. The
decree passed by such court will have the same effect as if the property was situated
within the local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the statement
and objection is brought before Appellate or Revisional Court, the Appellate or Revisional
court shall not allow the objections unless it is satisfied that at the time of institution of
suit there was no reasonable ground for uncertainty as regards to jurisdiction of Court
and there has been a failure of justice.

Section 19– Suits with regard to movable property when Applicable where the suit is for
the wrong caused to the person or property.

Conditions

If the wrong was done within the local limits of the jurisdiction of one courtand the
defendant voluntarily resides or carries on his business or works for personal gain within
the local limits of the jurisdiction of another court then the plaintiff has an option to file
at either court.

Lets us understand through an example.

A, residing in Delhi, beats B in  Bangalore. B may institute the suit either in Delhi or
Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue A in

Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises (Section
20) when Applicable when there is a breach of contract or commercial transactions.

Conditions
If the breach of contract was done or cause of action arises within the local limits of the
jurisdiction of one court and defendant voluntarily resides, carries on his business or
works for personal gains  within the local limits of the jurisdiction of another court the
plaintiff has an option to file at either court

Example

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in

Bangalore, buys goods from C and requests C to deliver them to Amarchand Company. C
delivers the goods in Bangalore accordingly. C may sue for the price of goods either in
Bangalore where the cause of action arises or in Hyderabad where D carries on his
business.

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

pecuniary limits

competence of the executing court with regards to local limits of its jurisdiction

is not brought in the Court at the first instance, before settlement or in a case where the
issues are settled, then no objection will be allowed by the Revisional or Appellate Court
unless there is a failure of justice.

Non- Applicability

Territorial jurisdiction

Pecuniary jurisdiction

In the case of Karan Singh vs Chaman Paswan

When the court commits an error in entertaining the suit with regard to pecuniary or
territorial jurisdiction then the decision given by such court will not be void but will be
considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section 21A)

No suit shall be brought up challenging the validity of decree passed in a former suit
between the same parties or between the parties litigating under the same title on any
ground based on an objection as to a place of suing.

Institution of Suit (Sec. 26)

Pleadings: (Order 6)

What are the Pleadings?

Before understanding amendment of pleadings, there is a need to explain what is
Pleadings and its Rule. Pleadings are the statements which are the backbone of every
civil suit. No civil suit will come into existence if there are no Pleadings. Pleadings have
been defined under Order 6 Rule 1 of CPC which states that Pleading shall be Plaint or
Written Statements. Plaint is the statements filed by the Plaintiff in a Civil Court to prove
his claim whereas Writtefeen statements are the statements defined in Order 8 Rule 1 of
CPC which states that dndant should file written statements in 30 days from the date of
issuance of the summons. Written statements are filed by the defendant for his defense.
Plaint has not been defined in CPC but it can be termed as pleadings of Plaintiff from
which civil suit is initiated.  Pleadings should be properly drafted and it should not
contain any vague or unambiguous statements. Pleadings are those material facts which
helps plaintiff to define the cause of action and the defendant to establish his defense in
a civil suit.

What rules to be followed while drafting of pleadings?

Pleading should contain the facts but no law should be applied in pleadings. Only the
court has the power to apply the law on the basis of fact stated in the Pleadings. In the
case of Gouri Dutt Ganesh Lal Firm v. Madho Prasad,1 honorable court stated that
Pleadings should be defined in four words – “Plead Facts, not laws”.

Pleadings should contain material facts. Parties should avoid using immaterial or
irrelevant facts in the Pleadings. In the case of Virender Nath v. Satpal Singh2, the court
stated that material facts are those facts which helps Plaintiff to define his cause of
action or defendant to strong his defense.

Parties should not give the evidence in the pleadings from which facts are proved.

Pleadings should contain the material facts in the brief form. Parties should avoid using
irrelevant or immaterial statements while drafting the Plaint.

Order VI Rule 17 Code of Civil Procedure :

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.”

In which stage of civil suit pleading can be amended?

The Provision related to Amendment of Pleadings gives power to the civil court to allow
parties to alter, amend or modify the pleadings at any stage of proceedings1.  Provision
for Amendment of pleadings has been stated in Order 6 Rule 17 of the Code of civil
procedure. But the court will allow amendment only if this amendment is necessary to
determine the controversy between the parties. The purpose of this provision is to
promote ends of justice and not to defeat the law.
The Proviso of Order 6 Rule 17 states that court will not allow application of amendment
after the trial has been commenced unless court comes to the conclusion that party did
not raise the relevant facts before the commencement of the trial. This proviso gives
discretionary power to the court to decide on the application of pleadings after the
commencement of the Trial. An institution of the suit is necessary for applying for
amendment of pleadings.

This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This
omission was made to ensure consistency in new changes in the civil code. But later, it
was restored by the Civil Procedure (Amendment) Code, 2000. This amendment has
given power to the court to allow application of the pleadings with some limitation.

In the case of Gurdial Singh v. Raj Kumar Aneja, the court stated that any person who is
applying for the amendment of pleadings should state that what is to be altered,
amended or modified in the original pleadings.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors5,  the court stated
that Amendment of pleadings consists of two parts :

In the first part, the word ‘may’ gives discretionary power to the court to allow or
disallow application of pleadings.

In the second part, the word ‘shall’ gives obligatory direction to the civil court to allow
the application of pleadings if this amendment is necessary for the purpose of
determining the real questions in controversy between the parties.

Why do courts allow amendment of Pleadings?

The primary objective for the court to allow application for  Amendment of Pleadings is
secure the ends of the justice and prevent injustice to other parties. Also, this
amendment is necessary for the purpose of determining the real questions in
controversy between the parties.  Amendments of pleadings help the parties to correct
its mistakes in the pleadings. In the case of Cropper v. Smith, the court stated that the
object behind amendment of pleadings is to protect the rights of the parties and not to
punish them for the mistake made by them in the pleadings.

What can be amended in pleading?

Plaint filed by the Plaintiff

Written Statements filed by the Defendant

Importance of the Doctrine of Relation back in Amendment of Pleadings

When the court allows the application of the Amendment of Pleadings then it relates
back to the date of suit. But in the case of Sampath Kumar v. Ayyakannu6,  the court
stated that in some special cases, the court can direct that amendment of pleadings will
not relate back to the date of suit.

Amendment of Pleadings when granted:

In the case of Kishan Das  Vithoba Bachelor, the court stated that there are two
necessary conditions to be satisfied before granting leave for amendment of pleadings:

This grant of leave should not leads to the injustice to other party.

This Amendment of pleadings is necessary for determining the real question of

controversy between parties.

In the case of  Rajkumar Gurawara (Dead) Thr. L.Rs. vs S.K. Sarawagi And Co. Pvt. Ltd.
And Anr, the honorable Supreme Court stated certain conditions when amendments of
Pleadings can be allowed they are:

When nature of the case will change by allowing application for amendment of appeal

When a new cause of action arise by allowing application of an amendment

When Amendments of Pleadings defeats the law of limitation.

Other points on which Amendments of Pleadings is granted:

When the application of amendment is filed to avoid multiplicity of suits.

When parties in the plaint or written statements are wrongfully described.

When the plaintiff omits to add some properties to the plaint.

Amendment of Pleadings when refused:

Application of amendment of Pleadings is rejected by the court when this amendment

is not necessary for determining the real question of controversy between parties.

Application of amendment of pleadings is rejected when it leads to the introduction of

a totally new case. In the case of the Modi Spg. Mills v. Ladha Ram & sons7 Supreme
Court held 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”.

When the Plaintiff or defendant is negligent

When proposed alteration or modification is unjust

Application for Amendments of Pleadings is refused when it violates the legal rights or
cause injustice to the other party

Leave to amend is refused when it leads to the needless complications in the case.

Leave to amend is refused when there has been excessive delay by the parties in
filing the suit.

Application of Amendment is refused when it changes the nature of the disputes

The court will not grant application of amendment of pleadings if it is made with mala
fide intention.

Where several opportunities are given to parties to apply for amendment of pleadings.
But they failed to make an application.

Step by Step procedure for filing an application for Amendment of Pleadings:

Step 1 – Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an
application for the  amendment of pleadings to the concerned civil court

Step 2 –  After drafting the application applicant needs to produce the application before
the concerned civil judge.

Step 3 – He has to pay a required court fee under court fees Act, 1870.

Step 4- Applicant needs to tell the purpose of the alteration in his application.

Step 5 – Judge will read the application and if he thinks fit that this alteration or
amendment is necessary for the purpose of determining the real questions in
controversy between the parties Than he will grant permission for amendment for
pleading.

Step 6 – After getting the order from the court, the applicant needs to file new pleadings
within the prescribed time and if no time has been prescribed by the court then he needs
to file it in 14 days from the date of order.

Step 7 – He also needs to give a copy of altered pleadings to the opposite party

Can the pleadings be amended if the suit is debarred by the

Limitation Act
In the case of  L.J. Leach & Co. Ltd. v. Jardine Skinner & Co, the Supreme Court stated
that court can decline the application of amendment of pleadings if it is debarred by the
Limitation Act. But the court has discretionary power to allow this application to secure
ends of justice. The limitation can be ground for rejecting the application but the court
can allow if the court thinks that amendment is necessary.

In the case of South Konkan Distilleries & Anr v. Prabhakar Gajanan Naik & Ors9,  the
court stated that it is settled principle that court can disallow the application of
amendment if on the date of the filing of Application it is barred by the limitation. But
this not mean that court cannot order grant for Application. For securing the interest of
justice, the court has discretionary power to allow application of amendment of pleading.

In the case of Pankaja & Anr v. Yellappa (D) by LRs & Ors,  the court held that there is
no settled principle that which states that court can reject the application of amendment
if on the date of filing the application it is barred by limitation. The court stated the
discretion to allow or not to allow application depends on the factual background of the
case. If facts & circumstance of the case clearly establishes that this amendment is
necessary to determine the cause of action and to avoid further litigation then the court
should allow this application.

In the case of Ragu Thilak D. John v. S. Rayappan,  the court stated that it is disputed
fact that application of amendment will be allowed or not when it is barred by the
Limitation. But in many cases, the issue of limitation is made an issue in the suit, In
those cases, application of amendment is allowed for disposing of the case.
In the case of Vishwambhar v. Laxminarayan12,  the court held that application for
amendment of Pleading is to the relate back to a filling of the date of application not to
the date of filing of the suit.

Why is Order 6 Rule 17 criticized?

Application of the Amendments delays Justice. Arun Mohan, senior lawyer-author of
the book called “Justice, Courts, and delays” tells in his book that almost 80% of the
application for the amendment is filed with the sole objective of delaying the
proceedings.

One of the big challenges faced by the Indian courts is the backlog of the cases. Civil
court is already burdened with lot many cases and amendment of pleadings puts more
burden on the civil courts.

Order 6 Rule 17 is the most misused law.

 It is a hindrance to speedy disposal of the matter

 It has more possibilities & chances of violation of legal rights on the other side.

 Sometimes it is difficult to find the real question of controversy between parties

The controversy between the Amendment of proceedings and the Limitation is still not
settled. In different cases, there are different interpretations of this rule.

 Many applicants with the mala fide intention are filing the application for amendment.
It is not easy for the civil court to establish mala fide intention of the parties.

What happens when an applicant fails to amend in a prescribed time?

Provisionon : Order VI Rule 18 Civil Procedure

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.

Order VI rule 18 states that when a party had application for amendment and it is
allowed by the court through an order. But the party does not amend it within the time
prescribed in the order or if no time is prescribed, within the fourteen days from issuance
of order then the party will be not permitted to amend.

Plaint and Written Statement (Order 7,8)

Plaint

A Plaint is a legal document that contains the content of any civil suit which shows the
Plaintiff’s claim after filing suit. The plaint is the first step of the Plaintiff in the form of a
legal document for the commencement of suit and it shows what a Plaintiff wants from
that suit. The concept of a plaint is mentioned in the Civil Procedure Code. Through the
help of plaint, the plaintiff narrates or describes the cause of action and related
information which is considered as essential from the viewpoint of the suit.

In the case of plaint, the cause of action consists of two divisions, first is the legal theory
(the factual situation based on which the plaintiff claims to have suffered) and second is
the legal remedy that the plaintiff seeks from the court. A plaint is considered an
important concept because it is the foremost and initial stage to initiate any lawsuit and
helps to find a civil court of appropriate jurisdiction.

Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of
CPC, there are many different rules which deal with different constituents of plaint. Rules
1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will
be admitted and after that Rule 10 to 10-B talks about the return of the plaint and the
appearance of parties. And the main Rules i.e 11 to 13 deal with the rejection of the
plaint and in which circumstances the plaint can be rejected.

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.” This section
clearly shows that plaint is very much necessary for the establishment of a suit before
the civil or commercial court.

Necessary Contents of A Plaint

A plaint is a legal document that contains a lot of necessary contents in the absence of
which, it cannot be considered as a plaint. The contents necessary for a plaint are
mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:

Plaint should contain the name of the commercial or civil court where a suit will be
initiated.

Plaint should contain details of the plaintiff such as the name, address, and
description.

Plaint should contain the name, residence, and description of the defendant.

When a plaintiff has some defects or problems in health or any type of disability, the
Plaint should contain a statement of these effects.

Plaint should contain the facts due to which cause of action arises and where the
cause of action arises it should also be mentioned.

Plaint should not only mention facts due to which cause of action arises but also those
facts which help in recognizing the jurisdiction.

Plaint should also contain about that relief which the plaintiff seeks from the court.

When the plaintiff is ready to set off a portion of his claim, the Plaint should contain
that amount which has been so allowed.

Plaint should contain a statement of the value of the subject-matter of suit not only
for the purpose of jurisdiction but also for the purpose of court-fees.

At last, the content that should be on plaint is the plaintiff verification on oath.
This shows that the plaint is a necessary component for the successful initiation of suits
in commercial or civil courts and plays a very important role throughout the suit. Some
additional particulars which were not mentioned above include the following: Plaintiff
shall state the exact amount of money to be obtained from the defendant as given under
Rule 2 of order VII whereas Rule 3 of order VII of CPC states that when the plaint
contains subject matter of immovable property, then the property must be duly
described.

Rejection of plaint
The Plaint shall be rejected in certain situations when requirements are not fulfilled.
Some of the situations in which the plaint is rejected are as follows:

The plaint is rejected in a case where the cause of action is not disclosed. If the cause
of action is not disclosed then it is not possible to prove the damage caused to the
plaintiff. To seek relief against the defendant, the facts need to be mentioned clearly.
In the case of Snp Shipping Service Pvt. Ltd. v. World Tanker Carrier Corporation, the
plaint was rejected and the suit dismissed under Order 7, Rule 1(a) of the
C.P.C.,1908.

The plaint is also rejected in a case where the plaintiff relief is undervalued and the
plaintiff is requested by the court to correct the valuation within the given time frame
but the plaintiff fails to do so.

The plaint is rejected in a case where all the documents are not properly stamped and
the plaintiff on being required by the court to supply the required stamp paper within
a time to be fixed by court fails to do so.

The plaint is mostly rejected due to the statement mentioned in the plaint secured by
any law or statute that doesn’t give any right to the plaintiff to file the suit.

When a duplicate copy of the plaint is not submitted whereas it is mentioned that it is
mandatory to submit the duplicate copy then in that condition plaint is liable to be
dismissed.

The plaint is rejected when the plaintiff fails to comply with the provisions of Rule 9 of
Order VII of C.P.C.

Provisions on the Rejection of Plaint under C.P.C.

As we have already said in what circumstances the plaint can be rejected and now what
are the provisions that are related to the rejection of the plaint under Code of Civil
Procedure. Some of the provisions regarding the rejection of a plaint are mentioned
below:

Order VII Rule 12 of C.P.C states the procedure on rejecting the plaint so that it can
be used as a precedent for future cases.

Order VII Rule 13 of C.P.C states that rejection of the plaint does not stop the
presentation or filling of the fresh plaint.

Two modes which are mentioned to show the manner in which the plaint can be
rejected:
 The defendant has the right to file an application in the form of an interlocutory
application at any stage of proceedings for the rejection of the plaint.

Suo moto (on its own): The meaning of the suo moto itself defines the way of
rejection of the plaint. Suo moto rejection is under Order 7 Rule 11 which states
Rejection of the plaint. A court can itself try a suit under Order 7 Rule 11 if the plaint
fulfills the conditions discussed in the first point.

Landmark Cases on Rejection of Plaint

Many cases came in front of court related to the rejection of plaint but some of the cases
given below are now considered as a landmark for other cases on the rejection of plaint:

Kalepur Pala Subrahmanyam v Tiguti Venkata: In this case, it was said that a plaint
cannot be rejected in part and retained part under this rule. It must be rejected as a
whole and not with the rejection of one part and acceptance of another. This judgment is
considered as a landmark judgment on the rejection of the plaint.

Sopan Sukhdeo Sable v. Asstt. Charity Commr.: In this case, it was held that where the
suit was at the stage of recording of evidence and an application under Order 7 Rule 11
of the code was filed to delay the proceedings of the suit, the application under Order 7
rule 11 of the code was rejected.

Bibhas Mohan Mukherjee v. Hari Charan Banerjee: In this case, it was held that an Order
rejecting a plaint is a decree and hence it is applicable and binding in other cases which
involves the rejection of the plaint.

1. ROJA vs. U.S. RAYU: Court, in this case, held that any application for the rejection of
the plaint under Order 7 Rule 11 of the code of civil procedure can be filed at any
stage and the court has to dispose of the same before proceeding with the trial.

Kuldeep Singh Pathania vs. Bikram Singh Jarya: In this, the court held that for an
application under Order VII Rule 11(a) of Code of Civil Procedure, only the pleadings of
the plaintiff can be looked into and neither the written statement nor averments can be
considered for inquiry.

Appearance and Non-Appearance of Parties (Order

9)
The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit
are required to attend the court either in person or by their pleaders on the day which
has been fixed in the summons. If the plaintiff or a defendant, when ordered to appear
in person, do not appear before the court and neither show the sufficient cause for his
non-appearance, the court is empowered under Rule 12 of Order IX as follows.

If the plaintiff does not appear, dismiss the suit.

If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is
called for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order
IX. The dismissal of the suit under this rule does not put a bar on filing a fresh suit on
the same cause of action as per Rule 4.

The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court
that there was sufficient behind his non-appearance. If the court is satisfied with the
cause of non-appearance then it may set aside the order of dismissal and schedule a day
for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte
order can be passed against the defendant. But, the plaintiff has to prove that the
summon was served to the defendant.

If service of the summons is proved then only the court can proceed for an ex-parte
against the defendant and the court may pass a decree in favour of the plaintiff. This
provision applies only for the first hearing and not for the subsequent hearings of the
matter and the same has been held in the case of Sangram Singh v. Election Tribunal.

Even while passing an ex-parte order it is the duty of the court to secure the end of
justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it
has been held by the Supreme Court that -It is the duty of the court to ensure that
statements in the plaint stand proven and the prayers asked before the court are worthy
of being granted. This provision of passing ex parte order cannot be passed when there
are more than one defendants in the case and any of them appears.

Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid
down from rule 7-11 of Order IX. When the defendant appears but there is non-
appearance of the plaintiff, then there can be two situations:

The defendant does not admit the claim of the plaintiff, either wholly or any part of it.

The defendant admits the plaintiff claim.

If the defendant does not admit the claim of the plaintiff, then the court shall order for
dismissal of the suit. But, when the defendant admits completely or any part of the claim
made by the plaintiff then the court is empowered to pass a decree against the
defendant on the ground of such admission and for rest of the claim, the suit will be
dismissed.

Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should
not be adopted unless the court gets satisfied that in the interest of justice such
dismissal is required, as cited by Beaumont, C.J. in the case of Shamdasani v. Central
Bank of India.
Does the same provision apply to the non-appearance of the plaintiff
due to death?
When the plaintiff does not appear because of death, the court has no power to dismiss
the suit. Even if such order is passed it will amount to a nullity as held in the case of
P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then
he can make an application to set aside the order of dismissal. If the court is satisfied
with the reason of non-appearance as a sufficient cause then the court can set aside the
order dismissing the suit and fix a day for the proceeding of the suit.

Sufficient cause

For considering the sufficient cause of non-appearance of the plaintiff the main point to
be considered is whether the plaintiff really tried to appear on the day which was fixed
for hearing or not. When sufficient cause is shown by the plaintiff for his non-
appearance, then it is mandatory for the court to reopen the suit. In absence of
sufficient cause, it is upon the discretion of the court to set aside the dismissal or not as
held in the case of P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar.
Sufficient cause depends upon the facts and circumstances of each and every case.

In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if
the party arrives late and find its suit dismissed due to his non-appearance then he is
entitled to have his suit or application restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not
served to the defendant. One of the fundamental procedural law is that a party must be
given a fair opportunity to represent his case. And, for this, a notice of the legal
proceedings initiated against him is obligatory. Therefore, service summons to the
defendant is mandatory and it is a conditional precedent.

When there is no service of summons or it does not give him sufficient time for effective
presentation of the case then a decree cannot be passed against him as held in the case
of Begum Para v. Luiza Matilda Fernandes.

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of
summons to the defendant then the suit may be dismissed. But, no dismissal can be
made even in the presence of such failure if the defendant appears on the day of hearing
either in person or through his pleader. However, the plaintiff is entitled to file a fresh
suit when the suit is dismissed under this rule. and, if the court is satisfied that there is a
reasonable reason behind such failure to pay costs then the court may set aside the
order of dismissal.

When the summon is returned unserved and the plaintiff does not apply for fresh
summons for 7 days from which the summon is returned unserved by the defendant or
any of the defendants, then the court can dismiss the suit against the defendant or such
defendants

When the summon was not duly served to the defendant is not proved then the court
can direct to issue a fresh summon to the defendant for service. When the service of the
summons is proved before the court but the time prescribed in the summon is not
sufficient for him to answer on the day which has been fixed, then the hearing can be
postponed by the court to a future date and notice will be given to the defendant.

Ex parte appearance
Ex-parte Decree

When the defendant is absent on the day of the hearing as fixed in the summon an ex-
parte decree can be passed. The ex-parte order is passed when the plaintiff appears
before the court on the day of the hearing but the defendant does not even after the
summon has been duly served. The court can hear the suit ex-parte and give ex-parte
decree against the defendant.

An ex-parte decree is a valid one and it is not null and void but can be merely voidable
unless it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-
parte decree and it has all the forces as a valid decree as held in the case of Panduranga
Ramchandra v. Shantibai Ramchandra.

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies
are available to him.

He can apply to the court under rule 13 of Order IX for setting aside the ex-parte
decree passed by the court.

He can appeal against that decree under section 96(2) of the Code or, prefer revision
under section 115 of the code when no appeal lies.

He can apply for a review under Order 47 Rule 1.

A suit on the ground of fraud can be filed.

Setting aside an ex-parte decree

For setting aside an ex-parte decree an application may be made by the defendant. An
application to set aside decree can be made to the court passing that decree. There are
certain rules to be followed for setting aside an ex-parte decree and if the defendant
satisfies the court with sufficient reason, then only the ex-parte decree which has been
passed can be set aside.

The limitation period for making an application for setting aside an ex-parte decree is of
30 days.

The grounds on which an ex-parte decree can be set aside are:

When the summons has not been duly served. Due to any “sufficient cause”, he could
not appear on the day of the hearing.

Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO
Bank v. Iyengar Consultancy, it is a question which is determined upon the facts and
circumstances of the cases. The test to be applied for this is whether or not the party
actually and honestly intended to be present at the hearing and tried his best to do so.
There are several instances which have been considered as sufficient cause such as late
arrival of the train, sickness of the council, the strike of advocates, death of a relative of
party etc.

The burden of proof that there was a sufficient cause of non-appearance is upon the
defendant.

Commissions (Sec. 75 to 78 Order 26)

What is meant by issue of commission by the Court?

Commission is instruction or role given by the Court to a person to act on behalf of the
Court and to do everything that the Court requires to deliver full and complete justice.
Such person who carries out the commission is known as a Court commissioner.

For example, whenever the Court has to do a local investigation, a commissioner is

appointed who conducts the local investigation. Similarly, to record the evidence of a
witness who cannot come to the Court for evidence, the Court can issue a commission
for recording of such evidence.

Who can appoint a commissioner?

Under CPC, the Court which issues the commission can appoint the commissioner.
Section 75, provides that “the Court” can issue commission provided the limitations and
restrictions applicable. Therefore, the Court who has to decide the suit can appoint the
commissioner. Commissioner is appointed to carry out the functions for which the
commission is issued. Court has the discretionary power to appoint the commissioner
and such power can be exercised on the application of any of the parties or the Court
can issue the commission suo moto.

We will understand the procedure followed by the Courts to appoint the commissioner
later in this article.

Who can be appointed as a commissioner?

Generally, there is a panel of commissioners which is formed by the High Court in which
advocates are selected who are competent to carry out the commission issued by the
Court.

The person appointed as commissioner should be independent, impartial, disinterested in

the suit and the parties involved in it. Such a person should have the requisite skills to
carry out the commission.

It will be a complete waste of time and resources of the Court and the parties if a person
who cannot read and understand the accounts and documents is appointed as
commissioner to adjust accounts. Similarly, a person who does not have the
qualifications to conduct scientific investigation should not be appointed as a
commissioner for such task.

The District judge supervises the subordinate Courts who have to take special care while
appointing a commissioner(1). The same person should not be appointed by the Court in
all commissions and a person who hangs about the Court should not be appointed.

What is the procedure for appointment of commissioner?

Every High Court has the power (Article 227) to make rules and regulations which is to
be followed by the subordinate Courts. Procedure for appointment of a commissioner is
provided in High Court rules each state.

For instance, in Delhi, Chapter 10 of Delhi High Court rules, 1967, provides procedure for
appointment of Commissioner. The following procedure is followed by the Delhi High
Court(2):

A panel of not more than 4 commissioners is to be formed which consists of young

persons including a lady lawyer, appointed by the Court for recording of evidence.

The District Court notifies the bar about the number of vacancies of commissioners
and the bar forward the applications received for the same to the Court who then
forwards it to the High Court with their recommendation.

The term of such appointment is generally 3 years which can be extended by an order
of the High Court but no commissioner can be appointed after 6 years of such
appointment.

When can a commissioner be appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued by the
Court. According to Section 75 of CPC, the Court has the power to issue a commission to
carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be
recorded in open Court. But in extraordinary circumstances, the appearance of witness is
dispensed and the witness is allowed to depose evidence without appearing in Court.

Appearance is exempted if:

 A witness is bedridden or is unable to attend the Court due to sickness or infirmity, in
such circumstances the Court can exempt the appearance of witness and allow the
witness to depose evidence to a commissioner appointed for the same.  Such a
witness will have to submit a certificate signed by a registered medical practitioner as
evidence of sickness or infirmity. (Order XXVI Rule 1, C.P.C.) In such situations the
Court will exercise its powers provided under order 18 rule 4 and appoint a
commissioner for examination on interrogatories(3).

A witness apprehends danger to his life and informs the Court about such danger and
if the Court thinks that recording evidence of the witness is necessary, the Court may
issue commission to record evidence of such witness. Where a party accused of fraud
seeks himself to be examined with commission, the Court must not issue commission
and avoid person of such demeanor to abuse the procedure.

The witness is a pardanashin lady whose attendance is exempted under Section 132
of the code.

The witness is a Civil or Military Officer of the Government, cannot attend without
detriment to the Public Service. (Order XXVI Rule 4)

If the Court thinks that it is in the interest of justice or expeditious disposal of the
case or for any other reason, the Court can issue a commission notwithstanding any
of the rules provided in the order. (order 26 rule 4A)

A person who cannot be ordered to attend the Court in person under Order 16 rule 19
can be examined by the Court by issuing a commission. (order 26 rule 4 proviso)

A commission can be issued for examination of a person detained in prison. (order

16A rule 7)

The Court will issue an order of commission for examination of a witness on following
grounds  if such person: (order 26 rule 4)

Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]

About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]

A government servant and cannot attend without affecting the public service [order
26 rule 4(c)].

Resides outside India and the Court decides that his evidence is necessary.

The commission will be issued to any other Court within whose local limits such
person is residing and if the person resides within the local limits of the Court issuing
it, a commissioner can be appointed to carry out such commission.

The provisions of the Court relating to summoning, attendance examination of

witnesses, penalties imposed on the witness will apply on the person who has to give
evidence or produce documents before the commissioner. The commissioner who is
executing the order of the Court, within whose local limit such person resides or by the
Court beyond whose jurisdiction such person resides, will be deemed to be a civil Court.

If the commissioner is not a judge of the civil Court, the commissioner cannot impose
penalties but can make an application to the Court which has issued commission to
impose penalties on the person. (order 26 rule 17)
To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion
that a local investigation is necessary:

For proper clarity of any matter in dispute, or

In ascertaining the market value of any property, or

To know the amount of mens rea or annual net profits.

While appointing a commissioner for, the Court has to examine (4).

The pleadings of both the parties,

Relief claimed,

The real controversy between the parties.

It is important to note that the object of a commission is not to collect evidence which
can be brought to the Court by the parties but to acquire evidence from a fixed spot. It
is also used to enable the Court to have more clarity regarding the facts of the case.

Commissioner should not be appointed to provide pre-trial decree against the defendant,
that is, the Court should not appoint a commissioner to provide the relief claimed,
directly or indirectly, by the plaintiff before the final decree is passed. It is important
because such commission will prejudice the rights of the defendant to a fair trial.

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the
suit, the Court may issue a commission to make the examination of such accounts and
may appoint a commissioner. (rule 11) The Court takes special care while making such
an appointment. The Court appoints only such a person who is competent to examine
such records. The reports submitted by the commissioner is considered evidence by the
Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the Court has
passed a preliminary decree for partition of the suit property, in such a situation, the
Court can appoint a commissioner to carry out the decree. (rule 13) The commissioner
has to divide the property in shares and distribute it among the parties according to the
suit decree. Commissioner has to submit a report after such partition is completed. (rule
14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint a
commissioner who will then be responsible for such investigation. For example, to
identify the substance used as a raw material in the subject matter, the Court may issue
commission to hold scientific investigation. (rule 10-A)
After conducting such investigation the commissioner has to submit the report within the
time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be preserved
by the commissioner and if it is not sold, its value cannot be recovered. Therefore, the
Court appoints a commissioner who is given the responsibility to sell the property and
submit a report along with the proceeds received from the sale of such property.

To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but are not of
judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of
the Court which can be used in other important judicial functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the Court. It
is important to note that commissioners cannot do judicial functions. (5)

Procedure for carrying out the commission:

The commissioner will conduct the local investigation, examination of witnesses,

adjust accounts and other functions as ordered in the commission.

After completion of the function, the commissioner will reduce the findings in writing
and will make a report.

The commissioner will submit the report signed by him along with the evidence
recorded in the Court.

The report of commissioner will form a part of the record.

While examining the report, the Court or the concerned parties, after prior
permission, can examine the commissioner personally in open Court.

If the Court is dissatisfied with the proceedings of the commissioner the Court can
order a further inquiry on the commission or can issue a fresh commission and
appoint a new commissioner.

To summarize, the commission can be issued in the following circumstances:

1. To make a local investigation.

2. To adjust accounts.

3. To make partition.

4. To hold investigation.

5. To conduct sales.

6. To perform ministerial work.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:
 Commissioner has the authority to examine the parties and the witnesses and any
other person who the commissioner thinks can give evidence in the matter referred to
him.

Commissioner can direct the parties to produce any documents which is required to
be examined.

Commissioner also has the power to enter and search any land or building with the
permission of the Court.

If the party fails to appear before the commissioner after the order of the Court, the
commissioner can proceed ex parte.

Whether the commissioner will be entitled to a Remuneration?

There is no provision in the CPC which expressly provides for remuneration to the
commissioner but Rule 15 of order 26 provide for the expenses which might be incurred
by the commissioner. While issuing commission, the Court directs the applicant to
deposit a sum of amount which can be used by the commissioner to account for the
expenses which might be incurred by him while carrying out the commission. The Court
has the discretionary power to make directions regarding the remuneration.

What are the limitations on the commissioner?

Commissioner has to assist the Court in carrying out the judicial functions but he cannot
do the judicial functions on behalf of the Court. For example, a commissioner cannot
value the suit property because it is a judicial function and only the Court has the power
to do so. A commissioner can assist the Court by producing the documents such as plans
of the suit property by which the Court can ascertain the value.

It is not the objective of issuing a commission to procure evidence for the parties.
Therefore, if a party has the apprehension that the opposite party will tamper with a
document which is relevant to the case, the Court should not appoint a commissioner to
seize such documents.

What is the evidentiary value of the report submitted by the commissioner?

According to order 26 rule 10 (2) of the CPC, the report and the evidence submitted by
commissioners forms a part of the record but if the evidence is submitted without the
report of the commissioner, such evidence does not form part of the record. (6)

The report forms an important part of the case and can only be challenged on sufficient
grounds.The Court has the final say on how much reliance should be placed on the
report submitted by the Court.

Receiver (Order 40)

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is
appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit.
For example, in a dispute between A and B for an immovable property, if the court thinks
that it is in the best interest of both the parties that possession should be taken from B
and given to an independent person, the court may appoint a receiver who can manage
the property till the time the suit is being decided. Such a receiver appointed by the
court would be responsible for the maintenance of the property. He can collect the
income accruing like rent or any other profits and utilize it to maintain the property. After
deducting the expenses incurred in maintenance from the income received from the
property, the receiver will have to submit the remaining income, if any, in the court.

He is not representative of either of the parties in the action, is uniformly regarded as an

officer of the court working in the interest of neither plaintiff nor defendant but for the
common benefit of all the parties.

What is the purpose of the appointment of a receiver?

When a party in possession of the disputed property exhausts the property or causes
irreparable damages to it, the whole object of the suit gets defeated because the subject
matter ceases to exist or its value gets affected. Therefore, when the court is of the
opinion that the property in dispute must not go to either of the parties, pendente lite,
the court appoints a receiver who is entrusted with the protection and preservation of
such property. It is a form of interim protection which the court provides to the parties
who makes the application till the time the court adjudicates the matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and hand of
the court. He is entrusted with the responsibility to receive disputed property or money
given by the court and manage such property or money till the time a decree is passed
or the parties have compromised or any other period as the court deems fit. The
property or fund entrusted to the receiver is considered to be custodia legis i.e. in the
custody of the law. The Receiver has no power other than those entrusted to him by the
court while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings are
pending can appoint a receiver if it appears just and convenient to the court to appoint
such receiver [section 51(d)]. It is within the discretionary power of the court to appoint
the receiver. For example, in a suit, the trial court can appoint a receiver. Whereas, in
appeal, the appellate court can appoint a receiver.

However, the discretion is not absolute, arbitrary or unregulated. The expression “just
and convenient” does not mean the appointment is based on the whims and wishes of
the judge on any grounds which stand against equity.

How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a receiver:
 Appointment of a receiver is a discretionary power.

It is a protective relief to the plaintiff. The object is to protect and preserve the
disputed property till the time the suit is pending in the court.

A receiver should not be appointed unless the plaintiff shows prima facie that he has a
strong case against the defendant and it is more than likely that he will succeed in the
suit.

Appointment of a receiver is one of the hardest remedies as it deprives the defendant

of his right to possession before the final decree. Therefore, the court should not
resort to it merely on the ground that it will do no harm.

There should be strong apprehension that there is a danger to the property or the
plaintiff will be in worse of a situation if the appointment of a receiver is delayed.

The court should appoint a receiver only when there is a possibility of wrong or injury.
Also, if it is shown that the subject matter is not in the possession of any of the
parties and it is in the common interest of both the parties to appoint a receiver for
the protection and preservation of the property.

The court should look at the conduct of the party who makes the application for
appointment of a receiver. The party should come to the court with clean hands and
their conduct should be such that they are not disentitled to this equitable relief.

The above principles were introduced by the Madras Court in the case of T.
Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430. These
principles are now well established in the Indian jurisprudence.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants
can also file such application. A third party is not allowed to file the application but if he
is interested in the protection and preservation of the property, he can also make an
application after taking permission from the court.

Who can be appointed as a receiver?

A person who is independent, impartial and totally disinterested should be appointed as
a receiver. Such a person should not have any stake in the disputed property. Generally,
parties to the suit are not appointed as receiver by the court. But in extraordinary
circumstances, a party to suit can be appointed as receiver.

When can a receiver be appointed?

The court can appoint a receiver whenever the court is of the opinion that either party
should not hold the property in dispute. The court can appoint a receiver before or after
a decree and can remove any person from the possession or custody of the property and
commit the same property in the custody or management of the receiver.

Under the code itself, the receiver can be appointed to prevent the ends of justice being
defeated. [section 94(d)]. Similarly, for the execution of a decree, the court has the
power to appoint a receiver. [section 51(d)].
There are provisions in special acts which provides for the appointment of a receiver by
the court. For example, section 84 of the Companies Act, 2013 provides for the
appointment of a receiver.  Similarly, section 69A of the Transfer of Property Act, 1882
also provides for the appointment.

What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their respective
court rules. The high court has the power to make rules for the superintendence and
control of the subordinate courts.

For instance,

In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process
is provided:

Application for appointment shall be made in writing and shall be supported by

affidavit.

Receiver other than the official receiver has to give security.

The security is to be given to the satisfaction of the registrar.

He has to provide personal bonds with the number of surety required by the registrar.
The personal bond will be double the amount of annual rental value of the property or
the total value of the property which the receiver is going to administer.

Within a week of appointment, the receiver will have to submit a report providing the
details regarding the property such as inventory of property or books of account etc.

The registrar will give directions on where to invest the money received by the
receiver from the property. Generally, such money is submitted in scheduled banks or
government bonds.

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:

Collection of rents and profits arising out of the property.

Application and disposal of such rents and profits.

Execution of documents as the owner himself.

To institute and defend the suit.

Such powers as the court may deem fit.

Also, there are indirect powers which a receiver enjoys being the hand of the court. For
example, If a person obstructs or interferes with the receiver’s right to possession, it will
amount to obstruction in a court proceeding and such a person can be made liable for
contempt of court. Similarly, property in the hands of the receiver cannot be attached
without the leave of the court.

The court has the discretionary power to not confer all the rights on the receiver. Even if
the court has given all the powers to him, he should take the advice of the court in all
important decisions related to the property to protect himself.

Without the permission of the court, the receiver cannot:

Grant lease on the property.

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

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:

Furnish security to account for what he will receive from the property as income.

Submit accounts (half yearly) for such period or form as directed by the court. The
account basically includes the income received and expenses incurred for the
protection and preservation of the property.

Pay the amount due to the court.

Take responsibility for any reduction in the value of the property because of the
receiver’s willful negligence.

Discharge the duties personally and should not delegate or assign any of the rights
entrusted to him by the court.

The receiver has to fulfil all the duties and responsibilities entrusted to him by the court.
Otherwise, the court can take action against him and make him personally liable for any
loss which might occur due to his negligence or wilful failure to protect and preserve the
property.

What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:

To submit the reports as specified by the court or,

To pay the amount due from him as directed by the court or,

Causes loss to the property due to gross negligence.

Any other duty which court directed him to do,

The court may order the attachment of property of the receiver to recover the loss
caused due to his willful default or negligence.

The court, after recovering all the losses from the proceeds received after selling
receiver’s property, will pay the balance (if any) to the receiver.

The receiver is bound in keeping down the expenses and taking care of the property in
his possession as a prudent man would observe in connection with his own property
under similar circumstances.

Will a receiver be entitled to remuneration?

Receivers are entitled to remuneration as fixed by the court for the services rendered by
them. Also, a receiver has to be provided for the loss or expenses incurred by him for
maintaining the property.

Under order 40 rule (2), the court can fix the remuneration to be paid to the receiver for
the services provided by him. The court can pass a general or specific order regarding
the same.

For example, The Delhi high court has provided in Delhi High Court (original side)
rules,1967, the  for remuneration of the receiver as follows:

Rents recovered, outstanding recovered, the value realised on the sale of movable and
immovable properties calculated on anyone estate:

On First Rs. 10,000 : 5 %

Above Rs. 10,000 up to Rs. 20,000 : 3 %

Above Rs. 20,000 up to Rs. 50,000 : 2 %

Above Rs. 50,000 up to Rs. 1,00,000 : 1 %

Above Rs. 1,00,000 : ½ %

Similarly, for taking custody of money, 1 %, for taking custody of Government securities
of stocks, shares, 1 % of the estimated value.

If no remuneration is specified for any work, such remuneration can be granted, as the
court may think reasonable, on the application of the receiver.

Can a collector be appointed as a receiver?

Yes, according to (Order 40 rule 5), a collector can be appointed as a receiver if the
revenue generated from the property is received by the government, the court can
appoint a collector as a receiver with his consent if the court thinks that management of
such property by collector will promote the interests of those who are concerned.

Temporary Injunctions (Order 39)

What is a Temporary injunction?

Under the Specific Relief Act, 1963, Section 37 deals with a temporary injunction.
Temporary injunctions continue for a specified period of time or until the further order of
the court. They may be allowed at any stage in a suit and are managed by the Code of
Civil Procedure (1908).

The essential purpose for granting this injunction is to secure the interests of an
individual or the property of the suit until the final judgment is passed. The factors
looked into while providing such an injunction are:
1. If a party has a case of prima facie?

2. If the balance of convenience is in favor of the complainant?

III. Whether the plaintiff would suffer irreparable damages before the judgment is
passed?

The time period of such an injunction is dependent on the discretion of the court. This
kind of injunction was also provided as under the case Union of India v. Bhuneshwar
Prasad.

Some examples of cases stated in the CPC where temporary injunction can be granted
are:

Where any property in dispute in a suit, which is probable of getting wasted,

destroyed or estranged by any party to the suit, or illegally sold in execution of a
decree; or

Where the defendant threatens to remove or dispose of his property in order to

defraud his creditors; or

Where the defendant threatens to deprive the plaintiff of his property or threatens to
cause injury to the plaintiff in connection with the property in dispute in the suit; or

In any case to prevent the defendant from committing a breach of a contract or any
other injury;

Where pursuant to sections 38 and 41 of the Specific Relief Act, no perpetual

injunction or mandatory injunction could be granted;

Where to stay, the operation of an order for the transfer, suspension, reduction of
rank, obligatory retirement, dismissal, removal or otherwise termination of service of
any person appointed to public service and post in connection with State affairs,
including any employee of any company or company-owned or controlled by the
Government of the State;

Where to stay any disciplinary proceedings, pending or intended or having the effect
of any adverse entry against any person appointed to the public service and to post in
connection with the State’s affairs, including any employee of the company owned or
controlled by the State’s government; or

To restrict any election;

Where to restrain any auction intended to be made or restrain the effect of any
Government auction; or stay the proceedings for the recovery of any dues recoverable
as revenue on land unless adequate security is provided, and any injunction order
granted in breach of these provisions shall be void.

In all cases, except where the object of granting the injunction appears to be defeated
by the delay even before the injunction is granted, the Court shall issue a direct notice of
the request for the same to be given to the other party:

Provided that, where it is proposed to grant an injunction without notice to the other
party, the Court records the reasons for its view that the purpose of granting the
injunction would be defeated by delay and requires the applicant to:
(a) deliver to or send to the other party by registered post, immediately after the order
of granting the injunction,

(i) a copy of the request for the injunction together with a copy of the affidavit filed in
support of the request;

(ii) a copy of the complaint; and

(iii) a copy of the documents on which the applicant relies;

(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.

However, the court must dispose of such suits within a period of thirty days from the
date of granting an injunction and in instances where it is not able to do so, it must
specify the reasons for its inability.

Order for injunction may be discharged, varied or set aside– The CPC also states that, at
the request of any party who is dissatisfied with the order, any order for injunction may
be discharged or varied or set aside by the Court; subject to the knowledge that if a
party made a false or misleading statement in a request for a temporary injunction or in
any affidavit support, for such a request.

Furthermore, where an injunction has been issued after giving a party the opportunity to
be heard, the order shall not be discharged, varied or set aside on the request of that
party unless such discharge, variation or set-aside is necessitated by a change of
circumstances or unless the Court is satisfied that the order has caused that party
difficulty and hardship.

Injunction to a binding corporation on its officer– An injunction to a corporation is

binding not only on the corporation itself but also on all members and officers of the
corporation whose personal actions it seeks to curtail.

The interlocutory orders passed with regard to injunctions as stated in the CPC are as
follows:

Power to order interim sale– Upon application by any party to a lawsuit, the Court may
order the sale by any person named in that order, and on such terms as it considers fit,
of any movable property that is the subject of such a lawsuit or that is attached before a
judgment in such a lawsuit, which is subject to rapid and natural decline or which it may,
for any other just and sufficient reason may be desirable to be sold off.

Detention, preservation, inspection, etc. of the subject-matter of the lawsuit:

(1) the Court may, at the request of any party to the proceedings and under such
conditions as it considers fit:

(a) make an order for the detention, preservation or inspection of any property that is
the subject of the proceedings or as to which any question may arise therein;
(b) for all or any of the aforementioned purposes authorize any such person for any such
purpose;

(c) authorize samples to be taken or any observations to be made or experiments to be

tested for all or any of the aforementioned purposes which may seem necessary or
useful for the purpose of obtaining full information or evidence.

(2) The provisions governing the execution of the proceedings shall, mutatis mutandis
(making necessary alterations while not affecting the main point at issue), apply to a
person authorized to enter under this rule.

Application for such orders to be made after notice:

(1) The plaintiff may request an order under Rule 6 at any time after the suit has been
instituted.

(2) An application by the defendant for a similar order may be made at any time after its
appearance.

(3) Before making an order pursuant to Rule 6 or Rule 7 on an application for that
purpose, the Court shall, except where it appears that the purpose of making such an
order would be defeated by a delay, issue a direct notice to the other party.

When a party may be put in immediate possession of land which is the subject-matter of
a suit: Where land paying revenue to Government, or a tenure liable to sale, is the
subject-matter of a lawsuit, if the party in possession of such land or tenure fails to pay
the Government revenue, or the rent due of the tenure to the proprietor, as the case
may be, and such land or tenure is consequently ordered to be sold, any other party to
the lawsuit 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 placed in immediate possession of the land or tenure; and the Court in
its decree, may award to the defaulting party the amount so paid, with interest thereon
at the rate that the Court considers fit, or may charge the amount so paid, with interest
thereon at the rate ordered by the Court, in any adjustment of the accounts may be
directed by the decree passed in the suit.

Deposit of money, etc. in Court: Where the object of a lawsuit is money or anything else
capable of delivery and any party thereof admits that it holds such money or anything
else as a trustee for another party or that it belongs to or is due to another party, the
Court may order the same to be deposited in court or delivered to that last-named party,
with or without security, subject to the provisions of the judgment.

Summary Procedure (Order 37)

Summary suit or summary procedure is given in order XXXVII of the Code of Civil
Procedure, 1908. Summary procedure is a legal procedure used for enforcing a right that
takes effect faster and more efficiently than ordinary methods. [1] Its object is to
summarise the procedure of suits in case the defendant is not having any defence.
A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small
Causes and any other court notified by the High Court. High Courts can restrict, enlarge
or vary the categories of suits to be brought under this order. [2]

Classes of suits where summary procedure is applied

Summary suits can be instituted in case of certain specified documents such as a bill of
exchange, hundies, and promissory notes. Summary procedure is applicable to recover a
debt or liquidated demand in money arising on a written contract, an enactment or on a
guarantee.[3]

What is a bill of exchange?

A bill of exchange is a written unconditional order by one party (the drawer) to another
(the drawee) to pay a certain sum either immediately or on a fixed date for payment of
goods and/or services received. [4] If the sum is to be paid immediately it is called a
sight bill. Term bill is the bill of exchange where the sum is to be paid on a fixed date.

Hundies

A Hundie is an unconditional order in writing made by a person directing another to pay

a certain sum of money to a person named in the order. It is a financial instrument
evolved on the Indian sub-continent and used for trade and credit purposes.[5]

Promissory notes
A promissory note contains an unconditional promise to pay a certain sum to the order
of a specifically named person or to bearer—that is, to any individual presenting the
note. A promissory note can be either payable on demand or at a specific time. [6]

Liquidated demand in money

Liquidated demand is a demand for a fixed sum e.g. a debt of Rs. 50. It is distinguished
from a claim of unliquidated damages, which is a subject of the discretionary assessment
by the court. [7]

Institution of summary suits

In order to institute a suit under summary procedure, the nature of suit must be among
the following classes:-

Suits upon bill of exchange, hundies and promissory notes

Suits for recovering a debt or liquidated demand in money, with or without interest,
arising:-
 On a written contract, or

On an enactment (the recoverable sum should be fixed in money or it should be in the

nature of a debt other than a penalty), Or

On a guarantee (here the claim should be in respect of a debt or liquidated demand

only)

A summary suit is instituted by presenting a plaint in an appropriate civil court.

Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific affirmation
that the suit is filed under this order. It should also contain that no such relief has been
claimed which does not fall under the ambit of rule XXXVII of the CPC. In the title of the
suit, following inscription must be there under the number of the suit:-

“(Under Order XXXVII of the Code of Civil Procedure, 1908)”  [8]

Procedures after institution of Summary suit

Under summary procedures, the defendant has to get the leave to defend from the
court. A burden is placed upon the defendant to disclose the facts sufficient to entitle
him to defend in the application for leave to defend.

Detailed procedures
After institution of a summary suit, the defendant is required to be served with a copy
of the plaint and summons in the prescribed form.

Within 10 days of service of summons, the defendant has to enter an appearance.

If the defendant enters an appearance, the plaintiff shall serve on the defendant a
summons for judgment.

Within 10 days of service of such summons, the defendant has to apply for leave to
defend the suit.

Leave to defend may be granted to him unconditionally or upon such terms as may
appear to the Court or Judge to be just.

If the defendant has not applied for leave to defend, or if such an application has been
made and refused, the plaintiff becomes entitled to the judgment forthwith.

If the conditions on which leave was granted are not complied with by the defendant
then also the plaintiff becomes entitled to judgment forthwith.

Sub-rule (7) of Order 37 provides that save as provided by that order the procedure
in summary suits shall be the same as the procedure in suits instituted in an ordinary
manner. [9]

Can a summary suit be tried after the institution of an ordinary suit on

the same cause of action?
According to section 10 of the CPC, a court cannot proceed with the trial of a suit in
which the matter in issue is also directly and substantially in issue in a previously
instituted suit between the same parties. It is called the principle of res sub-judice.The
provision contained in the section is mandatory and no discretion is left with the court.
[10]

However, the word trial, in this case, has not been used in its widest sense. The concept
of res sub-judice is not applicable to subsequently instituted summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage of
hearing the summons for judgment. Judgment can also be passed in favor of the plaintiff
if:-

(a) The defendant has not applied for leave to defend or if such application has been
made and refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions on
which leave to defend is granted. [11]

When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave to defend
in summary suits:

(a) If the defendant satisfies the court that he has a substantial defence, the defendant
is entitled to an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or reasonable
defence, although not a positively good defence, the defendant is ordinarily entitled to
unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge about the
defendant’s good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial judge
may grant conditional leave to defend with conditions as to time or mode of trial, as well
as payment into court, or furnishing security.

(e) If the defendant has no substantial defence and raises no genuine triable issue, then
no leave to defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the defendant to be
due from him, leave to defend shall not be granted unless the amount so admitted to be
due is deposited by the defendant in Court.[12]

Decree in summary suits

The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint,
together with interest and cost in following conditions:-
 If the defendant does not enter an appearance (ex parte decree)

If the defendant has not applied for leave to defend

If the defendant has applied for leave to defend but it is refused

If the leave to defend is granted then the suit proceeds as an ordinary suit and decree
is granted as per the CPC.[13]

Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The
defendant has to satisfy the court that the summons was not duly served or he was
prevented by any sufficient cause from appearing in the hearing.

Rule 7 of Order 37 says that except as provided in the order, the procedure in suits
under Order 37 shall be the same as the procedure in suits instituted in an ordinary
manner. Rule 4 of Order 37 specifically provides for setting aside the decree, therefore,
provisions of Rule 13 of Order 9 will not apply to a suit filed under Order 37.

Under rule 4 of order XXXVII, the court has the power to set aside the ex parte decree
passed in summary suit. The court is empowered to stay the execution of such a decree.
Under this rule, an application is made 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. To set aside ex parte decree, the defendant
has not only to show special circumstances which prevented him from appearing but also
facts which would entitle him to leave to defend.[14]

Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the
court with sufficient cause for his non-appearance. In summary suits, the ex parte
decree may be set aside if the defendant shows special circumstances.

The reasons offered by the defendant to explain the special circumstances should be
such that he had no possibility of appearing before the Court on a relevant day. For
instance, there was a strike and all the buses were withdrawn and there was no other
mode of transport. This may constitute “special circumstances”. But if he were to plead
that he missed the bus he wanted to board and consequently he could not appear before
the Court. It may constitute a ‘sufficient cause’, but not a ‘special circumstance’.

Thus a ‘special circumstance’ would take with it a ’cause’ or ‘reason’, which prevents a
person in such a way that it is almost impossible for him to attend the Court or to
perform certain acts which he is required to do. Thus the ‘reason’ or ’cause’ found in
“special circumstances” is more strict or more stringent than in “sufficient cause”. What
would constitute ‘special circumstances’, would depend upon the facts of each case.
Special circumstances (for the purpose of setting aside the ex parte decree) may
constitute a ‘sufficient cause’, but not vice versa. [15]

Appeals from Original Decree ( Section 96 to 99A;

Order 41)
Meaning of appeal

The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary,
while construing the concept of ‘appeal’ in its most original and natural sense, explains it
as “the complaint to a superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the Court above is called upon to correct or
reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of
superior jurisdiction, for the purpose of obtaining a review and retrial”.

Essentials of appealing cases

An appeal is a proceeding where a higher forum reconsiders the decision of a lower
forum, on questions of law & fact with jurisdiction to confirm, reverse, modify the
decision or remand the matter to the lower forum for fresh decision in compliance of its
directions. The essentials of appealing cases can be narrowed down to 3 elements:

A decree passed by a judicial/administrative authority;

An aggrieved person, not necessarily a party to the original proceeding; and

A reviewing body instituted for the purposes of entertaining such appeals.

Right to appeal
The right to appeal is a statutory & substantive one. The statutory nature of an appeal
implies that it has to be specifically conferred by a statute along with the operative
appellate machinery as opposed to the right to institute a suit, which is an inherent right.
It is substantive in the sense that it has to be taken prospectively unless provided
otherwise by any statute. This right could be waived off via an agreement, and if a party
accepts the benefits under a decree, it can be estopped from challenging its legality.
However, an appeal accrues to the law as found on the date of the institution of the
original suit.

One right to appeal

Section 96 of the CPC provides that an aggrieved party to any decree, which was passed
by a Court while exercising its original jurisdiction, is conferred with at least one right to
appeal to a higher authority designated for this purpose, unless the provisions of any
statute make an exception for it. Section 97, 98 and 102 of the CPC enumerate certain
conditions under which no further appeal is permitted, hence attributing to a single right
of appeal.

No right to appeal
No person has a right to appeal against a decision unless he is a party to the suit, except
on special leave of the Court. An essential element to be taken into account while
considering one’s right to appeal is whether such person is adversely affected by the
decision/suit, which is a question of fact to be determined in each case.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court
continued to exist and the old law which created such a right also continued to exist. It
construed to the preservation of this right while recognizing the change in its judicial
machinery from the Federal Court to the Supreme Court. However, the continuance of
the old law is subject to the provisions of the Constitution.

First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed by any
Court exercising original jurisdiction to the authorized appellate Courts, except where
expressly prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC
indicates that a regular First appeal may/may not be maintainable against certain
adjudications.

Who may appeal?

A regular first appeal may be preferred by one of the following:

Any party to the suit adversely affected by a decree, or if such party is dead, by his
legal representatives under Section 146;

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;

An auction purchaser may appeal against an order in execution setting aside the sale
on the ground of fraud;

No other person, unless he is a party to the suit, is entitled to appeal under Section
96.

A person, who is not a party to the suit, may prefer an appeal from a decree/order if he’s
bound/aggrieved/prejudicially affected by it via special leave of the appellate Court.

Appeal by one plaintiff against another plaintiff

In Iftikhar Ahmed v. Syed Meherban Ali, it was concurred that if there exists a conflict of
interest between plaintiffs and it is necessary to resolve it via a Court to relieve the
defendant, and if it is in fact decided, it will operate on the lines of res judicata between
co-plaintiffs in the subsequent suit.

Appeal by one defendant against another defendant

The rule in a case where an appeal is preferred not against the originally opposite parties
but against a co-defendant on a question of law, it could be allowed. Such an appeal
would lie even against a finding if it’s necessary while operating as res judicata (a matter
that has been adjudicated by a competent Court and hence may not be pursued further
by the same parties).

Who cannot appeal?

A party who waives his/her right to prefer an appeal against a judgment cannot file it at
a later stage. Further, as inferred from Scrutton L.J.’s words:
“It startles me that a person can say the judgment is wrong and at the same time accept
the payment under the judgment as being right….In my opinion, you cannot take the
benefit of judgment as being good and then appeal against it as being bad”,

If a party ratifies any decision of the Court by accepting and acknowledging the
provisions under it, it may be estopped from appealing that judgment in a higher forum.

The appeal against ex parte decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can
contend that the materials brought on record by the plaintiff were insufficient for passing
a decree in his favour or that the suit was not otherwise maintainable. Alternatively, an
application may be presented to set aside such ex parte decree (it is a decree passed
against a defendant in absentia). Both of these remedies are concurrent in nature.
Moreover, in an appeal against an ex parte decree, the appellate court is compe­tent to
go into the question of the propriety or otherwise of the ex parte decree passed by the
trial court.

No appeal against consent decree

Section 96(3), based on the broad principle of estoppel, 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 council had no authority.

No appeal in petty cases

Section 96(4) bars appeals except on points of law in cases where the value of the
subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the
Court of Small Causes. The underlying objective of this provision is to reduce the number
of appeals in petty cases.

The appeal against Preliminary Decree

Section 97 provides that the failure to appeal against a preliminary decree is a bar to
raising any objection to it in the appeal against a final decree. The Court in the case of
Subbanna v. Subbanna provides that, the object of the section is that questions which
have been urged by the parties & 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’d be considered as finally decided if no appeal is preferred against it.

No appeal against a finding

The language of Section 98(2) is imperative & mandatory in terms. The object appears
to be that on a question of fact, in the event of a difference of opinion, views expressed
by the lower court needs to be given primacy & confirmed. The appellate court cannot
examine the correctness of the finding of facts and decide upon the correctness of either
view.

The appeal against a dead person

A person who has unknowingly filed an appeal against a person who was dead at the
time of its presentation shall have a remedy of filing an appeal afresh against the legal
heirs of such deceased in compliance of the Limitation Act.

Forms of appeal
Appeals may be broadly classified into two kinds:

First appeal; and

Second appeal.

The sub-categories under appeals are:

Appeal from original decree;

Appeal from order;

Appeal from appellate decree/second appeal/to High Court;

Appeal to the Supreme Court.

Forum of appeal
It is the amount/value of the subject-matter of the suit which determines the forum in
which the suit is to be filed, and the forum of appeal. The first appeal lies to the District
Court if the value of the subject matter of the suit is below Rs. 2,00,000; and to the High
Court in all other cases.

Appeals from Appellate Decrees (Section 100;

Order 42)
As per Section 100 of the Civil Procedure Code, 1908:

An appeal shall lie to the High Court for the decision made by the District Court.

An appeal lies if the decree is passed ex-parte.

If High Court is satisfied that substantial question of law is involved it shall formulate
the decisions.

It is to be noted that the second appeal is on the grounds of a substantial question of

law not on finding errors of facts.

Nature and Scope

Nature of the second appeal

 The right to appeal is not inherited but it is created by statute. The right to file suits is
inherent in nature.

This right starts from the date of filing suits.

The decision of Appellate Court is final.

The rights cannot be declared void until and unless declared by the statue.

Scope of the Second Appeal

The Second appeal can be exercised only when the case falls under these categories-

(a) Question of law is involved.

(b)  Question of law should be substantial.

Other justification defined as under Section 100 of CPC.

Question of fact wrongly determined should not be the criteria for the second appeal

Cases Laws
In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held thatThe
High Court can not set aside the finding of facts by the First Appellate Court.

In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that finding of
fact is against the weight of evidence and there is no question of law in this.

The substantial question of law

The term substantial question of law has not been defined anywhere under CPC but it
was first time interpreted by Supreme Court in the case of Sir Chunni Lal Mehta &Sons
Ltd vs Century Spg & Mfg co.Ltd.

The proper test in case of determining the substantial question of law differs from our
opinion and opinion of the court, in our opinion, it is of general public importance or if it
affects the rights of parties and also when decisions are not finally settled by the court or
federal body and in cases wherein the court perceives that there involves a principle then
that principle to be applied when there is a substantial question of law.

The question of law to be substantial it should be questionable, it will also depend upon
the facts and circumstances of the case.

In the case of Mahindra and Mahindra Ltd. vs. Union of India, it was held that case
should involve questions of law not merely question of law.

The court should record the reason for the substantial question of law.

In the case of M.S. V Raja vs. Seeni Thevar, it was held by the Supreme Court that
formulation of a substantial question of law may be inferred from the kinds of questions
actually considered and decided by the court in the second appeal, even though the
substantial question of law is not specifically and separately formulated.

Question of the law of general importance

The second appeal can only be filed when there involves a question of law and question
of law should be substantial. If it is of general public importance or if it affects the rights
of parties substantially. Section 100 Of CPC also deals with the importance of the
question of law;

Clause (3) states The memorandum of appeal shall state that a substantial question of
law is involved.

Clause (4) states the High Court is satisfied that it involves a substantial question of law
in any case and it shall formulate the question.No second appeal in certain cases. This is
defined under Section 102 of CPC:

No second appeal shall lie when it is of cognizable nature by courts of small issues.

No second appeal shall lie when there is the finding of errors in the jurisdiction.

No letters patent appeal

Letter Patent Appeal is an appeal against the decision of a single judge in the same
court. This saves the petitioner from going to the Supreme Court, saving a lot of costs.

In this, the petitioner has the option to move the case to another bench where there is
more than one judge.

Article 226 and Article 227 of the Indian Constitution has provision and judgement
passed in Article  226 states that it can be issued to any person or authority in any cases
and Article 227. It empowers The High Court to have superintendence over subordinate
courts and tribunals. The judgement of Article 227 does not fall in this category.

The intra-court appeal in case of High Court is for 30 days and it is for 90 days in case of
Supreme Court.

Letter of Patent Appeal is not maintainable in the Arbitration Act:

The high court of Bombay held that LPA is not maintainable under Section 8 of
arbitration.

Only section 37 of the arbitration act would apply.

Restoration application along with the application of condonation is not maintainable.

LPA shall not lie from the decree, judgement of the single bench under section 100.

Order of suit, not a judgement from one court to another is not maintainable.

Forum of the second appeal

Appeal from original decree– Generally every decree passed by subordinate court firstly
appeal has to lies to High Court. But appeal shall not lie if it has been passed by the
consent of the parties under Section 96 of CPC.

Appeal from order

An appeal shall lie from the order which is appealable;

It is an order made under section 35A,i.e Compensatory cost.

Refusing leave to institute a suit under nature of section 91 and 92.

 An order under section 95 i.e compensation for obtaining arrest, or injunction.

 Insufficient grounds.

 Any order made under rules from which an appeal is expressly allowed by rules.

 An order made under this code imposing a fine or directing the arrest.

Appeal from Appellate decree

 An appeal shall lie to High Court if decree passed by the appellate court.

 If the judgement is ex-parte.

 If it involves a substantial question of law.

 The substantial question of law has to be formulated otherwise appeal would  be

dismissed.

Appeal to the Supreme Court

An appeal shall lie to the Supreme Court if-

The case involves a substantial question of law which is of general importance.

When the High Court thinks of themselves the case is deemed to be fit and decided by
the Supreme Court.

Grounds of Appeal
Appellant has to mention grounds of appeal in the memorandum of appeal.

Appellant has to mention the ground of objection and present it before the Appellate
Court.

The new ground can be raised by additional application later on, and the High Court
has the power to reject or accept the application.

Power of High Court to decide the issue of fact

This is defined under Section 103:

The High Court can decide the issue of facts if sufficient evidence is found and the court
thinks it is necessary for the disposal of an appeal –
If it has not been decided by lower Appellate Court or both by the Court at the first
instance and to the lower Appellate Court or if it has been wrongly decided by Court and
there involves a substantial question of the law which is defined under section 100 of
CPC.

Procedure at hearing
Every appeal shall be in the form of a memorandum signed by the appellant and to be
presented before the court.

Where memorandum is not made as per prescribed by law then the court has the
power to either reject or return the application to the appellant and can give the party
prescribed time to submit an application again.

When an appeal is not made on time then a statement of reason along with some
proof should be submitted to court and court must satisfy from the application that
there is reasonable cause for the application not made on time.

No order of stay of execution of a decree shall be made unless the court decides to
hear the appeals.

Registry of Memorandum of appeal is necessary.

The Appellate Court, after calling the respondent to present before the court and ask
to give an answer and also ask him to give application after application court may call
the Appellant to pay the Security Cost.

The appellant Court after hearing to the appellant may dismiss the application without
sending the notice to the lower court and also without sending a notice to the
respondent.

The appellate court should fix a day for hearing and give notice to the respondent if
the respondent does not appear on a given day then case will be ex- parte.

The respondent may do any cross objection.

After hearing the appeal the appellate court may-

Remand the case.

May frame the issue and refer it to for trial.

Take additional evidence or requires such evidence to be taken.

The appellate court after resetting the issue may pronounce the judgement.

Document to be submitted with the appeal

Form No.

The order appealed against -2 copies.

Order of Assessing Officer- 2 Copies.

Grounds of appeal.etc.

Pending appeals
An appeal itself does not operate as a stay of proceedings until the decree/ judgement
appealed and execution of decree not stayed. An appeal is filed to appellate court
however the appellate court can order a stay of execution if the court thinks it necessary.

If the application is made for seeking stay before the expiration of time and if the court
thinks it necessary can grant the execution of stay.

The probability of loss or party suffering loss and the party has filed an application to
grant a stay and that too without delay then the court can grant a stay.

Cases
In the case of Atma Ram Properties (p) Ltd. v. M/s. Federal Motors Pvt.Ltd

Stay order can be made conditional too. But the condition attached to stay order must
be reasonable.

In an appellate court stay of proceedings can not be in operation for more than six
months it has been held by the Supreme Court, in Asian Resurfacing of Road Agency Pvt.
Ltd.& Anr. V. Central Bureau of Investigation.

General Provisions relating to Appeals (Section

107,108)

Reference to High Court (Section 113; Order 46)

Nature and scope

A court subordinate to the High Court is empowered to refer the case under Section 113.
The court in relation to Section 113 means a court having Original Civil Jurisdiction. A
reference can be made only when there is a question of law or validity of any Act or
Ordinance or of any provision of the Act is involved and can be sought only in a pending
suit, appeal, or other proceedings. Section 115 deals with revision. It empowers the High
Court to call for the record of any case decided by a court subordinate to it.

Conditions
Where any matter involving a substantial question of law is referred by the subordinate
court to the High Court for its opinion upon that matter it is known as a reference.
According to Section 113, any court can refer the case to the High Court for its opinion
and the High Court may then make an order as it deems fit subject to certain conditions
and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions and
limitations that are needed to be satisfied for the High Court to entertain the reference
from the subordinate court. These conditions are given below :
 There should be a pending suit or appeal where the decree is not subject to appeal.

There must be a question of law or usage having the force of law.

The Court that is trying the suit or appeal or executing the decree must entertain
reasonable doubt on that question of law.

As per proviso to Section 113, the question of law involves questions relating to the
validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to High Court
either on its own motion or; on the application of any of the parties.

In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled that Section 113
is not a provision that enables the High Court to take reference suo moto or to order a
reference. It is a provision that enables the subordinate court to refer the case to the
High Court.

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna Chandra
Dass, it was held that a subordinate court may refer a case to the High Court when there
is reasonable doubt regarding the constitutional validity of an Act.

Power and duty of the High Court

To make any order as it thinks fit to when the case is referred to it by the subordinate
court.

Answer or refuse to answer the question in a case and send the case back to the
referring court for disposing it.

To quash the case referred to it.

Article 228 and Section 113

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed, Section 113 of the
Civil Procedure Code is a statutory provision whereas Article 228 is a constitutional
provision. Section 113 does not relate to the interpretation of the constitutional
provisions but to the question of the validity of an Act. Both Section 113 and Article 228
may relate to a common case but are not coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113 the court,
subject to certain conditions, may state and refer the case to the High Court for its
opinion and the proviso to this section specifically mentions the case relating to the
validity of an Act. Whereas under Article 228, if the High Court is satisfied that a case is
pending in a subordinate court that involves the determination of the substantial
question of law for the interpretation of the Constitution. The High Court shall withdraw
the case and either dispose of the case itself or determine the question of law and return
the case to the court from which the case has been withdrawn.
Procedure at hearing
The following procedure has to be followed at the time of hearing:

As per Rule 1, the court trying the suit or appeal or executing the decree either on its
own or on an application of the parties will draw up the statement of facts and point
of doubt of the case and pass a decree or order contingent upon the high court on the
points referred.

After hearing the parties the High Court will decide the points so referred. A copy of
the judgment along with the signature of the registrar will be transmitted to the
referring court as per Rule 3.

The referring court on receiving the copy will proceed in confirmation with the High
Court’s decision to dispose of the case.

The High Court has been vested with the power under Rule 5 to make such orders and
to amend, alter, cancel, set aside any decree or order the referring court has passed
or made.

As per Rule 7, In case the question arises as to the jurisdiction of small causes court, a
record with the statements of the reasons for doubt will be submitted to the High Court.

Costs
Rule 4 of Order XLVI talks about the costs of reference to the High Court. It says that if
any cost is consequent upon a reference for the decision of the High Court, it shall be
deemed to be the costs in the case.

Review (Section 114; Order 47)

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the
Act, provides the procedure for Review. Section 114 merely produces the conditions
necessary for the filing the application for Review to the ‘court’ by which decree or order,
sought to be reviewed under the application, was passed or made. While Order XLVII
along with the same conditions as enumerated in the section, lays down grounds for
Review and other procedural rules governing the same.

In order to understand the legal procedure, Two Primary Aspects of the concept need to
be borne in the mind, which are as follows –

“Same Court” – Rule 1 of the Order specifically provide that application for Review of the
decree or order has to be made to the very same court which passed such decree or
made such order.

“Court” – The term has not been defined in the CPC, but impliedly interpreted as “Any
Court having the jurisdiction to try the suits of a civil nature”[i], now such civil
jurisdiction may be such as conferred upon the courts by the CPC itself, or upon the
Tribunals by the special statues, or upon the Supreme Court and High Courts under their
civil appellate jurisdiction[ii], by the Constitution of India.
Review Jurisdiction for the Supreme Court – The Apex Court, therefore also falls within
the meaning of the term “Court” while hearing any suit of a civil nature. It however has
been separately empowered with the review jurisdiction under Article 137 of the
Constitution, but for the cases other than that of civil and criminal, since for such cases,
it is being governed by the CPC and Criminal Procedure Code only[iii].

Review Jurisdiction for the High Courts – Apart from the power conferred upon it as a
“Civil Court” under the CPC, it has been held by the Apex Court in the case of Shivdeo
Singh v. State of Punjab[iv] :

“It is sufficient to say that there is nothing in Article 226 of the Constitution to preclude a
High Court from exercising the power of review which inheres in every Court of plenary
jurisdiction to prevent miscarriage of justice or to correct grave and palpable errors
committed by it.”

ORDER XLVII

CONDITIONS FOR APPLICABILITY

An application for Review may be filed by any person, if such person perceive himself as
aggrieved by[v] –

“A decree or order which has been passed or made, by any civil court, And from such
decree or order, an appeal is allowed, But no appeal has been filed yet, at the time of
filing of the Review application”,

However once, the review application is filed thereafter, there is no legal bar on filing of
an appeal from such decree or order. If appeal is so preferred and decided by the
speaking order i.e. on merits, before the Review application, then the Review application
cannot be continued with[vi]. And vice versa i.e. where review application is heard and
decided before the appeal then appeal becomes liable to be dismissed. So, where both
are pending, whichever is decided first, will be said to have superseded the original
decree or order, operationally therefore, such original decree or order no longer stands
and hence the other pending proceeding will be estopped.

Although, if appeal or even Special Leave Petition (SLP) is preferred, whether before the
institution of Review or after it, but is not heard and gets dismissed for the reason being
legally incompetent or due to the “application of Law of Limitation”[vii], such dismissal
does not create any legal obstruction for the filing of Review or proceeding thereof, if the
decision is otherwise competent to get reviewed on the grounds provided in the
Order[viii].

Or, “a decree or order has been passed or made, by any civil court And, from such
decree or order, no appeal is allowed”,

This point of application provides the opportunity to an aggrieved person, in presence of

a legal prohibition on filing of an appeal, to get his case reheard on any of the grounds
as set out in the Order.
Since this condition being Non-Appealable, is one which is condition precedent for the
Revision as well[ix], and so the confusion may arise for a layman if he is aggrieved by a
decree or order, that which of the recourse available, should be opted. To consider the
issue, it has to be understood that Review is wider in scope than Revision, since Revision
can be done only on the grounds of jurisdictional or procedural error by the High Court,
while, as already discussed that Review can be done only by the same court and grounds
for Review, as explained below in this article, are much wider than merely jurisdictional
or procedural error.

In fact, it may technically be said that, if a decree or order, is eligible to get revised
under the “Revision” then it is mechanically eligible to get reviewed under the “Review”
as well, provided such decree or order is Non-Appealable, but so is not the other way
round, due to the very specific scope of Revision.

Or, “a decision on a reference from a court of a small cause”.

Where, reference has been made by a court of a small cause, to the High Court under
Order XLVI, the decision of the High Court, on such reference is binding, but person
aggrieved by such decision may apply for review of such decision.

WHO CAN FILE A “REVIEW”

“Any person who consider himself aggrieved” is what the rule provides, and it being
legally clear in terms, on the face, gives the interpretation that person filing a review
need not necessarily be a party to the suit, rather may be one who simply derives a
legitimate interest in the suit or according to him, such interest has been adversely
affected by the decision of such suit. And therefore any such person would have locus
standi to file a review.

Supreme Court in the case of Union of India v. Nareshkumar Badrikumar Jagad & ors.
[x], held:

“Even a third party to the proceedings, if he considers himself an aggrieved person, may
take recourse to the remedy of review petition. The quintessence is that the person
should be aggrieved by the judgment and order passed by this Court in some respect”.

GROUNDS FOR REVIEW:

Review can be filed, if there is[xi]:

“Discovery of New and Important matter or evidence, which, after the exercise of due
diligence was not within the knowledge of the person seeking review or could not be
produced by him at any time when the decree was passed or order made”,

Discovery of any new matter or evidence necessarily has to be an important or relevant

as such to the extent that had it been brought on record at any time when the decree
was passed or order made, it would have an impact and might have altered the
decision[xii]. Moreover, absence of such important matter or evidence on record at the
time of decision, must not be the result of negligent attitude of the concerned person
and therefore such person applying for Review is required by law to strictly prove that
such matter or evidence was not within his knowledge or could not be adduced, even
after exercising due diligence and unless such proof is given, application shall not be
granted[xiii].

Court may take subsequent events into consideration while reviewing a decision[xiv],
however the fact that the question of law on which decision, sought be reviewed, is
based has been reversed or modified subsequently by the higher authority in any other
case, would not make it a new and important matter, to review the decision[xv].

Illustration – “A sued B for a sum of money alleged to be due under an agreement and
obtained the decree for the same, against which B, subsequently filed an appeal in the
Privy Council, and while the appeal was pending, A obtained another decree against B on
the strength of the former decree, for another sum of money alleged by him to have
become due under the same agreement and later Privy Council reversed the former
decree in the appeal, on the basis of which B applied to the court which had passed the
second decree, for the Review on the ground of the decision of Privy Council and so was
accepted and held by the court to be a new and important matter”[xvi].

Or, “some mistake or error apparent on the face of the record”,

The mistake or error should be such, which is very obvious and visible itself on the face
of it, and therefore any error found out from the judgment after a long reasoning and
law based analysis, cannot be said to be one apparent on the face of record, as a ground
for review. However, such mistake or error can be of fact and as well as of law.

Illustrations – “Non-consideration of the very obvious application of particular law, such

as law of limitation or particular provision to the facts of the case, setting aside of the ex
parte decree without being satisfied of the any of the conditions laid down in Order 9
Rule 13, application of religious law which has not been legally recognized, wrong
interpretation of a settled legal issue, where a commission was issued to examine a
witness in a country where no reciprocal arrangement exists, have been held to be an
error apparent on the face of record”[xvii].

Or, “any other sufficient reason”.

Before 1922, the application of the term “Sufficient reason” was unrestricted and
unregulated, finally in that year a principle came to be laid down by the Privy Council in
the case of Chhajju Ram V. Neki[xviii], which can be summarized as that “the third
ground mentioned, is no doubt giving wide scope to the grounds for review, but at the
same time that “sufficient reason” has to be at least analogous (ejusdem generis) to
either of the other two grounds and the mere reason that decree was passed or order
made on erroneous ground that court failed to appreciate the important matter or
evidence, would not make any good ground for review, and therefore in such cases, the
appeal and not review, is the remedy to get such erroneous decree or order
corrected”[xix].

Illustrations – Failure to adhere to legal provision which required the court to act in a
particular manner would fall within the meaning of “Sufficient Reason” as analogous to
the “Error Apparent on the Face of the Record”[xx]. Order of the dismissal of a suit due
to default of the plaintiff, cannot be reviewed on the ground of misapprehension of the
counsel as sufficient reason, but if order was on its face illegal then such order may be
reviewed on the ground as error of the law apparent on the face of the record.

RESTRICTIONS

The order under its Rule 9 excludes two following kinds of application, from the
consideration –

“An order made on the application for a review”e. grant or rejection of the application,
either case cannot be reviewed.

“Decree passed or order made on review”e. where application is granted, case is re-
heard and the decree or order which is passed or made on merits of the case,
superseding the original one, cannot be further sought to be reviewed for the second
time.

Revision (Section 115)

Meaning
Revision means to go through something carefully, thoroughly and diligently. Cases can
be revised by the High Court as it possesses revisional jurisdiction as defined under
Section 115 of the Code of Civil Procedure. The High Court has the right to revise cases
decided by subordinate courts to ensure delivery of justice and maintenance of fairness.

Nature, Scope and Object

The primary objective of a revisional authority of the High Court empowered by Section
115 is to ensure that no subordinate court acts arbitrarily, illegally, capriciously,
irregularly or exceeds its jurisdiction; and allows the High Court to guarantee the
delivery of justice while ensuring that the proceedings are conducted in accordance with
the rule of law and furtherance of fairness. It must be noted that the judges of
subordinate courts have the absolute authority to decide on cases. They do not commit
any “jurisdictional error” even when they wrongfully or extra-judicially decide a case.
The High Court has the power to revise these jurisdictional errors committed by
subordinate courts. This provides an opportunity to any aggrieved party to rectify a non-
appealable order by a subordinate court.

The High Court can revise any case by a subordinate court in which no appeal lies when:

The subordinate court has exercised jurisdiction not vested in it by law.

The subordinate court has failed to exercise jurisdiction vested in it by law.

The subordinate court exercises its jurisdiction illegally or with material irregularity or
in breach of some provision of the law or by committing some errors of procedure in
the course of the trial which may have affected the ultimate decision.

Who may file?

The application for revision can be filed by any aggrieved party once the case is decided,
provided that there is no appeal against the case presently. The High Court may then
decide to revise the case if the proper cause is discovered such as extra-judicial activity
or illegal and erroneous procedure practised by the subordinate court. The High Court
may also exercise revisional jurisdiction suo moto under the Code of Civil Procedure.

In the case of S.Muthu Narayanan V. Paulraj Naicker, 2018, the revision petition is
dismissed and the order passed previously is confirmed as the revision petitioner has no
right to challenge the executability of the decree.

Conditions for Revision

The conditions when the High Court can exercise its revisional jurisdiction is laid down in
Section 115 of the Code of Civil Procedure. All these conditions must be met for the High
Court to exercise its revisional jurisdiction. These are as follows:

Precedents
The case must have already been decided and judgement declared by the subordinate
court. A case cannot be revised if it has not been decided in the first place and no
judgement is given. The expression “case decided” was not defined in the CPC, 1908.
This gave rise to a number of conflicting decisions on the question of whether the said
expression included an interlocutory order also. This conflict was resolved in the case of
Major S.S. Khanna V. Brig. F.J. Dillon, 1963 which declared that Section 115 applies
even to interlocutory orders. It was observed by Shah J.,“The expression ‘case’ is a word
of comprehensive import; it includes civil proceedings other than suits, and is not
restricted by anything contained in Section 115 to the entirety of the proceedings in a
civil court. To interpret the expression “case” as an entire  proceeding only and not a
part of the proceeding would be to impose an unwarranted restriction on the exercise of
powers of superintendence and may result in certain cases in denying relief to the
aggrieved litigant where it is most needed and may result in the ‘perpetration of gross
injustice.”

In the case of Baldevdas Shivlal V. Filmistan Distributors (India) (P) Ltd., 1969, the
Supreme Court held that a case may be said to have been decided if the court
adjudicates for the purpose of the suit some right or obligation of the parties in
controversy. Every order in the suit cannot be recorded as a case decided.

An explanation was added to Section 115 by the Amendment Act of 1976, on the
recommendation of the Joint Committee of Parliament. This makes it clear that the
expression, “case decided” includes any order made, or any order deciding an issue, in
the course of a suit or any other proceeding. Thus, “any case which has been decided”
means each decision which terminates a part of the controversy involving the question of
jurisdiction.

No appeal lies
There must not be any appeal lying against the case decided by the subordinate court.
The High Court cannot revise a case if there is a pre-existing appeal against the case as
the revision interferes with the appeal and vice-versa. The revision can only be filed once
the appeal is dismissed. The word “appeal” includes both the first appeal and second
appeal. Therefore, the revision can only lie when the appeal is dismissed or does not lie.

Jurisdictional error
The revisional jurisdiction can be applied by the High Court when the subordinate court
appears to have:

Acted in excess of jurisdiction vested in it by law, or

Failed to exercise the jurisdiction vested in it by law, or

Displayed material irregularity and exercised its power illegally or in breach of the
provisions of law.

Subordinate court
The High Court cannot exercise revisional jurisdiction unless a case is decided by a court
which is subordinate to the High Court. Only a court of civil judicature is considered and
this does not include any person acting in an administrative capacity. As a general rule,
where it is provided that a matter should be decided by a particular court, the presiding
officer of such court will act as a court. But where it is provided that a particular judge
should decide a matter, the provisions of the statute will have to be considered for
determining whether the judicial officer acts as a court or as a persona designata. The
revision by the High Court is mainly done to rectify the jurisdictional or procedural errors
caused by subordinate courts in the course of proceedings in any case when an
application is filed by an aggrieved party.

Alternative remedy
The power of revisional jurisdiction and its application lies under the discretion of the
High Court and cannot be claimed as a right by any aggrieved party. Several factors are
considered before the authority of revisional jurisdiction is exercised. If there is the
presence of an efficacious or alternate remedy available to the aggrieved party, the court
may not exercise its revisional jurisdiction and instead suggest the alternate remedy and
relief to the aggrieved party. This is done to prevent the misuse of revisional jurisdiction
and make it applicable only in cases where necessary.

Limitations on revisional jurisdiction

Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for
filing the revision under the Code of Civil Procedure from the date of decree or order or
sentence sought to be revised. Thus, the limitation period prescribed for filing the
revision against the impugned order is 90 days. The application for revision must be filed
with the High Court within the limitation period.

In the case of Salekh Chand V. Deepak Sharma 2015, During the pendency of the
revision petition, an application was filed under Section 5 of the Limitation Act by the
revisionist. But it was declared by the Court that Article 131 of the Schedule of Limitation
Act stated that the limitation period to file for revision is 90 days. Thus, the revision
petition was not barred by limitation and allowed to proceed.
In the case of Samudrala Nagabhushanam V. Venkana Raghavayy, 1966, the Court
decided that the petition for revision in this particular case was governed under Section
22 of the Andhra Pradesh Buildings Control Act, 1960 and not Role 41-A(2) of the
Appellate Side Rules of the High Court of Andhra Pradesh. Thus, the revision is not
barred by limitation.

Suo moto exercise of power

The term ‘suo moto’ means on its own motion or self-decision. The judiciary has the
power to revise cases suo moto. This means that the small court has the authority to
make its own decision to exercise the power of revision and takes the decision to revise
any case on its own accord, i.e. without any application filed by any aggrieved party. The
sole decision as to the exercise of the power of revision rests with the court and the
aggrieved party is not entitled to receive it. The judiciary takes up a matter on its own
on grounds of blatant violation of the law, to maintain public order, to prevent the gross
constitutional violation, to remedy grave injustice. This assumes the public at large as
one of the parties. Usually, an amicus curiae is appointed in such matters to assist the
court. A great amount of public interest rests in suo moto exercise of revisional powers
by the High Court.

In the case of Chimanbhai G. Patel V. D.Y. Collector, 1999, it was stated by the Court
that a Deputy Collector or Assistant Collector cannot exercise the powers of revision suo
moto. Therefore, the order was set aside as there was no jurisdiction in the exercise of
revisional powers.

Interlocutory Orders
The Interlocutory order which is often called interim order is a decision of the court given
during the proceedings and before the finality of a case to ensure that the interest of
either party is not harmed due to or during the process of justice. It settles subordinate
issues related to the main subject due to the time-sensitive nature of those issues.
Section 94 of Part VI of the Code of Civil Procedure lists the ‘Supplemental Proceedings’
which mentions how the court can issue interlocutory orders to prevent the ends of
justice from being defeated. The court can:

Issue a warrant for the arrest of the defendant or if he fails to comply with any order
for security, commit him to the civil prison.

Direct the defendant to produce any property belonging to him and furnish it as
security by placing it at the disposal of the Court.

Grant temporary injunction and commit a guilty person to a civil prison in case of
disobedience, and order his property to be attached and sold.

Appoint a receiver of any property and enforce the performance of his duties by
attaching and selling his property.

Make any such interlocutory orders as may appear before the Court to be just and
convenient.

A few examples of interlocutory orders are as follows:

 Appointment of a Commissioner to conduct search and seizure.

Temporary Injunctions.

Appointing a Court Receiver to collect any payments or rent.

Assign security to maintain a cause.

In the case discussed in Sub-Committee on Judicial Accountability V. Union Of India,

1991, it was held that the Supreme Court will refrain from passing any interlocutory
order which has the potential to and may interfere with or has an effect of pre-
judgement on any delicate issue on the mail matter.

Death of Applicant
The death of an applicant does not abate the proceedings of the application of revision
as revision is not governed under Order 22 of the Code of Civil Procedure. Once the
application for revision is filed, the proceedings shall continue despite the death of the
applicant and the order shall be given to the legal representative of the applicant.

Doctrine of Merger
The doctrine of merger is neither a doctrine of constitutional law nor a doctrine
statutorily recognised. It is a common law doctrine founded on principles of propriety in
the hierarchy of justice delivery system. It can be observed when litigants agree to a
settlement and seek to have their settlement incorporated in a court order. The doctrine
of merger cannot be applied universally. It will depend on the nature of jurisdiction
exercised by the superior authority and the subject-matter in challenge laid shall
determine the applicability of merger. The superior jurisdiction should be capable of
reversing, modifying or affirming the order put in issue before it. The High Court
possesses the authority to reverse or modify the judgment of a subordinate court in case
of a violation of jurisdiction or failure to comply with the jurisdictional rules. The doctrine
of merger is based on the principle of union of two conflicting interests which cannot be
held by one person at the same time. As observed in Section 111(h) of the Transfer of
Property Act, 1882 leasehold rights in favour of the appellants are extinguished under
the doctrine of merger.

Procedure of Revision
Revisional jurisdiction of the High Court can be exercised suo moto to ensure the
delivery of justice. The authority to revise a case of jurisdictional error of subordinate
courts lies with the High Court and cannot be demanded as a right by any aggrieved
party. This brings us to the second method which involves an application filed by the
aggrieved party for revision. This merely brings the jurisdictional error of the subordinate
court to the attention of the High Court which may then decide to revise the case. The
application may also be denied if the High Court feels that substantial justice has been
done.

Once the High Court initiates the proceedings, the case is revised to ensure jurisdiction is
not exceeded by the subordinate court. But no changes can be made with regards to any
decision of the subordinate court even if unlawful, as long as the decision lies within its
jurisdiction. After a decision has been made and if there is extra-jurisdictional action by
the subordinate court, it is rectified and the reasons are recorded.

Recording of Reasons
The reasons for the dismissal of a case or changes to be applied in case of extra-
jurisdictional activity by a subordinate court are to be filed for record. The recording of
reasons is done to ensure the court can show cause or prove the basis of its decision for
changes made or refusal to make any change with regards to the jurisdiction of the
subordinate courts.

Letters Patent Appeal

Letter patent appeal (LPA) is an appeal by a petitioner against a decision of a single
judge by another bench of the same court. There are chances that a single judge can go
wrong when dealing with facts or laws. Thus, a remedy is provided to challenge the
decision of that single judge by a bench of more than one judge of the same court. An
LPA petitioner can save costs by challenging the single judge this way rather than move
the Supreme Court. Usually, judgment and order passed under Article 226 of the
constitution is appealable as LPA, but judgment and order passed under Article 227 is
not appealable under this category.

The rules regarding the application of the Letter Patent Appeal is as follows:

Letter patent appeal can be filed in the High Court and only in such High Courts that
have been established by the letter patent.

Division bench can file a letter patent appeal to the Supreme Court. It means it will
also include a full bench of 5 judges, 7 judges and also the Supreme Court.

Letter patent appeal is the only court established by a letter patent under the
constitution and it is called the second appeal.

Conversion of Revision into Appeal

The nature and scope of revisional jurisdiction is different from appellate jurisdiction. If
an order impugned is revisable, it cannot be converted into an appeal if there is no
presentation of appeal in the eyes of law; as seen in the case of Munshi Singh v. Tula
Ram (1980 MPLJ SN 61). The second appeal cannot be converted into revision in
exercise of discretion, as seen in the case of T.K. Ramanujam Pillai v. Subramaniam (AIR
1967 Mad 298). If the revision is not maintainable, the petitioner can file appeal
explaining the delay by filing an application under Section 14 of the Limitation Act along
with memo of appeal, as seen in the case of Om Prakash V. Dwarka Prasad, 2004.

Law commission’s view on Revision

The Law Commission states that the following should be kept in mind while exercising
the revisional powers of the High Court:
 The ruling of the Court is absolute unless the party to whom it applies can show cause
why it should not apply. This is Rule Nisi and should not be issued except under
careful and strict scrutiny.

The record of the subordinate court should not be called for where no stay in granted.
And where it is necessarily required copies are to be produced.

All efforts should be made to dispose of the revision within two to three months where
a stay is granted.

Case laws

Brijlal Ramjidas v. Govindram Gordhandas

Seksaria(Judgement)
In Brijlal Ramjidas v. Govindram Gordhandas Seksaria,, Supreme Court held that Section
13 speaks not only of “Judgment” but “any matter thereby directly adjudicated upon”.
The word ‘any’ clearly shows that all the adjudicative parts of the judgment are equally
conclusive.

Neeta vs. Shiv Dayal Kapoor & Others(Res sub-judice)

In Neeta vs. Shiv Dayal Kapoor & Others it was held the subsequent matter can not be
stayed if the conditions mentioned in Section 10 are not fulfilled. In the apparent case,
the two courts which tried the same issues were not the courts having concurrent
jurisdiction. Therefore, the proceedings in the subsequent court were not stayed.

Lowe v. Haggerty(Res judicata)

In the case of Lowe v. Haggerty, a question was raised considering the effect of former
judgment for the defendant when he was sued by the guest. It was held that a suit was
bar by the driver of the car which had been struck by another person. There was no
previous record that disclosed what was in the first proceeding. It was held that it was
not possible to determine what was the issue involved in the previous suit. A different
situation was there the court disposed of the record made by the parties. Nonsuit was
not granted in this case and the plaintiff’s appeal was refused.

Official Trustee vs Sachindra Nath(Jurisdiction and

place of suing)
The court held that in order to deal with the matter the court must not be enough to
decide a particular matter but also the court has the power to pass the order sought for.

Annapoorani Ammal vs G.Thangapolam(Appeals from

Appellate Decree)
In the case of Annapoorani Ammal vs G.Thangapolam, it was held that the High Court
can only interfere when there involves a substantial question of law.

A Sreenivasa Rao and Ors v. Govt of Andra

Pradesh(Reference to High Court)
In A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the subordinate
court is not empowered and entitled to decide the validity of any Act, Ordinance or
Regulation and Section 113 makes it mandatory for the subordinate court to refer the
pending case to the High Court for determining the question relating to the validity of an
Act, Ordinance or Regulation which is necessary for the case to be disposed of by stating
its reasons and opinions for referring the case to the High Court for its opinion.

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