Important Questions of CPC

Question 1.
What is decree? What are its
ingredients?
I: it is defined under Section 2(2). It is a formal expression of an adjudication. The
adjudication must have been done in the suit. It conclusively determines the rights of
the parties with regard to all or any of the matter in controversy in the suit. It may be
either preliminary or final.
Ingredients. Followings are main ingredients of the decree.
• Formal expression: Decree is a formal expression of an adjudication. The
formal expression must be deliberate and given in manner provided by law.
• Adjudication: Judicial determination of matter in dispute. If there is no
judicial determination in any dispute, it is not decree. Thus, a decision on a
matter administrative nature is not decree. An order dismissing a suit for
default of appearance of party is not decree.
• Suit: The adjudication must be in a suit. Suit must be instituted by
presentation of plaint. It means that when there is no civil suit, no
decree.Therefore, a proceeding which does not commence with plaint,
cannot be said to be “suit”.
• Rights of party in controversy: It must have determined the rights of the
parties with regard to all or any of matter in controversy in the suit. The
word “rights” means substantive rights of the parties inter se relating to
status, limitation, jurisdiction, frame of suit, accounts etc.
• Conclusively determination: determination must be conclusive in nature. It
must decided on the merit of the case. E.g. interlocutary order which does not
decide rights of party final is not “decree”.
Kinds. There are mainly two types of decree-

• Preliminary Decree. A preliminary Decree is one which declares the right &
liability of the party leaving the ctual result to be worked out in further
proceedings. There is nothing in the CPC which prohibits passing than one
preliminary decree.
• Final decree. Final decree may said to be final in two ways-
 • When time for appeal has expired without an appeal being filed against
preliminary decree or matter has become decided by Highest Court.
• Where an adjudication decide the right of party with regard to all or any of the
matter in the controversy in the suit.
Deemed decree. A deemed decree is one which, though not fulfilling the essential
features of a decree as required by the Code has been expressly categorised as
a decree by the legislature. In the bare wording of section2 , there are two
cases , in which court deemed that these are decree:
• Rejection of plaint; and
• Determination of any question within section 144

Importance:
• For proper interpretation of judgement.
• An appeal cannot lie until decree is
passed. Difference with judgement:
• Judgement is basis of Decree, whereas decree is based on judgement.
• Judgement includes the reasons for the statement or Ratio decendi,
whereas decree is a formal expression.
• Judgement is followed by decree, whereas decree follows the judgement.

QUESTION NO. 2.

WHAT IS THE RES-JUDICATA. DISCUSS ITS INGREDIENTS.

The doctrine of res judicata have their roots on the following three maxims:

• Nemo debet bis vexari pro una et eadem causa – no man should be vexed
twice for the same cause;
• Interest reipubliace ut sit finis litium – it is in the interest of the State that
there should be an end to a litigation;
• Res judicata pro veritate occipitur – a judicial decision must be accepted as
correct.

The doctrine of res judicata is founded on the principles of equity, justice, and good
conscience.The doctrine applies to all civil and criminal proceedings and equally to
all quasi-judicial proceedings before tribunals. Section 11 of the Code is applicable
to both the parties to a suit and not against the defendant alone. The principle of
res judicata is furtherance against the court and is a mixed question of the fact and
law and has to be

specifically pleaded.
Justice Das Gupta, in the case of Satyadhyan Ghosal v. Deorjin Debi has
explained the doctrine of res judicata in the most simplest way which is as follows:
“The principle of res judicata is based on the need of giving a finality to judicial
decisions. What it says is that once a res is judicata, it shall not be adjudged again.
Primarily it applies as between past litigation and future litigation. When a matter,
whether on a question of fact or a question of law, has been decided between two
parties in one suit or proceeding and the decision is final, either because no appeal
was taken to a higher court or because the appeal was dismissed, or no appeal
lies, neither party will be allowed in a future suit or proceeding between the same
parties to canvass the matter again.”

Ingredients

• Matter directly and substantially in the subsequent suit: It means that

matter must be directly related to the suit. It must not be collateral or
incidental to the issue. For example, ‘A’ and her mother filed a suit against
her father’s brother for claiming a share in the property of her mother. The
question of marriage expenses was not directly or substantially in issue.
The claim of partition was dismissed by the court. However, the principle of
res judicata doesn’t bar ‘A’ to file a subsequent suit for her marriage
expenses as the matter was not directly in issue in the former suit.
• There must be same parties: The parties to a suit are those whose
name appears on the record of the suit at the time of the decision. A party
who withdraws or whose name is stuck off is not considered as a party.
Further, a minor not represented by the guardian for the suit is not a party
to the suit. Where any decision made by the court in favor of or against
any party then it not only binds the party but also their successors too.
For an instance, a suit filed by any person for recovery of possession and
ownership title and the court decided in his favor, then his legal heirs also
considered as the parties after his death and res judicata will apply.
• There must be the same title: ‘Same title’ means ‘in same capacity’. It
has been held in the number of cases that ‘a verdict against a man suing
in one capacity will not stop him when he sues in another capacity’. For
example, ‘A’ file suit against ‘B’ as the owner of property and suit is
dismissed by the court. Later on, he filed a suit to claim his right as
mortgagee will not bar him to institute a subsequent case. So where the
suit is filed in a different capacity then it is considered to be a valid suit
and doesn’t bar by this doctrine.
• The decision must be made by the competent court: The Former
decision must be given by competent court having jurisdiction on the case.
If the case is decided by the court has no jurisdiction over the subject
matter then res judicata will not apply. For an instance, revenue courts
exercising authority under the Act can be held to be a court of limited
jurisdiction and decision by it within its competence will operate as res
judicata.
 • Heard and finally decided: The matter directly & substantially in issue in

subsequent suit must have been heard and finally decided by the court in
a former suit. “Heard and finally decided” means that the court has exercised
its judicial mind & after argument and consideration came to decision on
contested matter and decision is made on the merits of the case. In
following cases the matter is deemed to be finally decided on merits even if
the former suit is disposed of in the following manner:

• By ex parte
• By dismissal
• By decree on an award
• By oath tender under section 8 on Indian Oath Act,1873
• By dismissal owing to plaintiff failed to produce evidence at the hearing.

Does Res Judicata Apply To Writ Petition?

In Daryo Singh v. State of U.P. [2], the petitioner has filed a writ petition in High
Court of Allahabad under Article 226 and it was dismissed. He further filled writ
petition in Supreme Court under Article 32 of the constitution for same relief and
same ground. The Supreme Court dismissed the petition and upheld the contention
of High Court. Hence the principle will also apply to writ petitions.

However, it may be noted that the doctrine of Res Judicata will not apply to a
writ of “Habeas Corpus”.

Question 3.
Explain Constructive Res-Judicata.

Res-judicata: The doctrine of Res-judicata lays down that no Court shall try any suit or
issue, in which the matter is directly and substantially in issue, has been finally decided
by a competent Court in a former suit between the same parties litigating under the
same title.
Constructive Res-judicata: Explanation iv to section 11 of CPC provides the
doctrine of constructive Res-judicata. Res-judicata deals with the matter which is
directly and substantially in issue. But circumstances may arise when the matter is
constructively in issue. It may happen that in the former suit the plaintiff or
defendant could take a ground of attack or defence but did not do it and being
failed in the former suit they again come with a new ground of attack or defence.
This taking of new ground of attack or defence , subsequently , is barred by
constructive Res-judicata.
In State of U.P V. Nawab Hussain AIR 1977 SC 1680
In this case, a police S.I. was dismissed from service by the D.I.G. He challenged the

said decision by filing a writ petition in the high court on the ground that he was not
afforded a reaonable opportunity, but the petition was dismissed. He then filed a
suit and raised an additional ple that he was appointed by the I.G.P. and D.I.G.
was not competent to pass order against him. The state contended that the suit
was barred by constructive res-judicata.
The scope of constructive Res-judicata, therefore, is more wide that Res-judicata.

QUESTION 4.
DISCUSS THE CIVIL NATURE SUIT.

Section 9 of CPC deals with the jurisdiction of civil courts in India. It says that the courts
shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly
barred. Section 9 of CPC provides that the civil courts shall have jurisdiction to try
all suits of a civil nature excepting suits of which their cognizance is expressly or
impliedly barred.

According to the explanation I:- A suit in which right to property or to an office is

contested is a suit of civil nature notwithstanding that such rights may depend entirely
upon the decision of question as to religious rites or ceremonies .

Explanation II says that for the purpose of this section, it is immaterial whether or
not any fees are attached to the office referred to in Explanation I or whether or not
such office is attached to a particular place .

Therefore , it is clear from the Explanation I of section 9 that it will not make any
difference if such right to property or to an office depends entirely on the decision of
questions as to religious rites or ceremonies .
In the case of Vanamalia Ramanuja Jeer Vs. Shri Ranga Ramanuja Jeer ,
Hon’ble Supreme Court of India laid down that the following principles are to be
borne in mind when deciding the question as to whether a right to a religious office
would be a right of a civil nature :-

• A declaratory suit simpliciter for religious honour and privileges is not a suit of a
civil nature.
• A suit for a declaration and to establish one’s right to an office in a temple and to
honours , privileges , remuneration or requisites attached to such an office , is a
suit of civil nature .
• In order to mean an office the holder of the office should be under a legal
obligation to discharge the duties attached to the said office and for non-
observance of which penalties can be inflicted on him .

The general rule of law is that when a religious office is situated in a temple , shrine ,

etc. , the right to such office is a right of a civil nature , even though no fees are
attached to it but when such an office is not attached to any place the right will not
be of a civil nature unless a fee is attached to the office .

The caste question is related to social privilege and so it is not a legal right but
when it relates to the property of a caste , the civil court will have jurisdiction to
interfere .The suits for vindication of dignity attached to an office are not suits of a
civil nature . The right to bury a corpse is a civil right , therefore , a suit to establish
such right is a suit of civil nature .

Meaning:- in order that a civil court may have jurisdiction to try a suit, the first condition
which must be satisfied is that the suit must be of a civil nature? The word ‘civil’ has not
been defined in the code. But according to the dictionary meaning, it pertains to private
rights and remedies of a citizen as distinguished from criminal, political, etc. the word
‘nature’has been defined as ‘the fundamental qualities of a person or thing; identity or
issential character; sort, kind, character’’. It is thus wider in content. The expression ‘civil
nature’ is wider than the expression ‘civil proceedings’. Thus, a suit is of a civil is of a
nature if the principal question therein relates to the determination of a civil right and
enforcement thereof. It is not the status of the parties to the suit, but the subject matter
of it which determines whether or not the suit is of a civil nature.

• Nature and scope-

The expression “suit of a civil nature” will cover private rights and obligations of a
citizen. Political and religious questions are not covered by that expression. A suit
in which the principal question relates to caste or religion is not a suit of a civil nature.
But if the principal question in a suit is of a civil nature (the right to property or to an
office) and the adjudication incidentally involves the determination relating to a caste
question or to religious rights and ceremonies, it does not cease to be a suit of a civil
nature and the jurisdiction of a civil court is not barred. The court has jurisdiction to
adjudicate upon those questions also in order to decide the principal question
which is of a civil nature. Explanation II has been added by the amendment act of
1976. before this explanation, there was a divergence of judicial opinion as to
whether a suit relating to a religious office to which no fees or emoluments were
attached can be said to be a suit of a civil nature. But the legal position has now
been clarified by explanation II which specifically provides that a suit relating to a
religious office is maintainable whether or not it carries any fees
• Doctrine explained-

The expensive nature of the section is demonstrated by use of phraseology both

positive and negative. The earlier part opens the door widely and latter debars entry to
only those which are expressly or impliedly barred. The two explanations, one existing
from inception and later added in 1976, bring out clearly the legislative intention of
extending operation of the section to religious matters where right to property or office
is involved irrespective of whether any fee is attached to the office or not. The language
used is simple but explicit and clear. It is structured on the basic of a
civilized

jurisprudence that absence of machinery for enforcement of right renders it nugatory.

The heading which is normally a key to the section brings out unequivocally that all civil
suits are cognizable unless bared. What is meant by it is explained further by widening
the ambit of the section by use of the word ‘shall’ and the expression ‘all suits of a civil
nature unless expressly or impliedly barred’.

Suits expressly barred-

a suit is said to be ‘expressly barred ’ when it is barred by any enactment for the time
being in force. It is open to a competent legislature to bar jurisdiction of civil courts with
respect to a particular class of suits of a civil nature, provided that, in doing so, it keeps
itself within the field of legislation conferred on it and does not contravene any
provision of the constitution.

But every presumption should be made in favor of the jurisdiction of a civil court and the
provision of exclusion of jurisdiction of a court must be strictly construed. If there is any
doubt about the ousting of jurisdiction of a civil court, the court will lean to an
interpretation which would maintain the jurisdiction. Thus, matters falling within the
exclusive jurisdiction of revenue courts or under the code of criminal procedure or
matters dealt with by special tribunals under the relevant statutes, e.g. by industrial
tribunal, income tax tribunal, revenue tribunal, electronic tribunal, rent tribunal,
cooperative tribunal, motor accident claims tribunal, etc. or by domestic tribunals,
e.g. Bar Council, Medical Council, university, club etc. are expressly barred from
the cognizance of a civil court. But if the remedy provided by a statute is not adequate
and all questions cannot be decided by a special tribunal, the jurisdiction of a civil
court is not barred. Similarly, when a court of limited jurisdiction prima facie and
incidentally states something, the jurisdiction of a civil court to finally decide the time is
not ousted.

Section 9 of CPC means to say that there are certain types of suits which are
barred by the code itself , such as –

• Section 11 of CPC or resjudicata barred the trial of a suit , in which the matter or
issue of the parties has already been decided by a competent court .
• Section 47 barred the determination of all questions relating to execution ,
satisfaction , and discharge of decrees .
• Section 10 , Section 95 , Order 2 Rule 2 , Order 9 Rule 9 and Order 22 Rule 11
also barred to file fresh suit .

Suits impliedly barred :- Section 9 of CPC means to say that there are certain
types of suits which are ---

• barred by general principles of law , and

• barred on the ground of public policy .
Some statutes also barred the jurisdiction of civil courts and conferred the jurisdiction
on Tribunals.

From the above contents of my project it can be concluded that section 9 at ‘the
threshold of the Civil Procedure Code (C.P.C.) primarily deals with the question of civil
court’s jurisdiction to entertain a cause. It lays down that subject to what are contained
in section 10,11, 12, 13, 47, 66, 83, 84, 91, 92, 115, etc., civil court has jurisdiction
to entertain a suit of civil nature except when its cognizance is expressly barred or
barred by necessary implication. civil court has jurisdiction to decide the question of
its jurisdiction although as a result of the enquiry it may eventually turn out that it has
no jurisdiction over the matter. Civil court has jurisdiction to examine whether tribunal
and quasi- judicial bodies or statutory authority acted within there jurisdiction. But
once it is found that such authority, e.g., certificate officer had initial jurisdiction,
then any erroneous order by him is not open to collateral attack in a suit. Because
there is an essential and marked distinction between the cases in which courts lack
jurisdiction to try cases and where jurisdiction is irregularly exercised by courts.

Question 5.
What are the effects of Non-joinder of Necessary Party?
Introduction: The question of joinder of parties may arise either as regards the plaintiffs
or as regards the defendants. The question of joinder of parties arises only when an Act
is done by two or more persons or it affects to two or more persons.
Non-joinder: where a person, who is necessary or proper party to a suit, has not been
joined as a party to the suit, it is a case of non-joinder. A suit is not to be dismissed only on
the ground of non-joinder of parties. The court may allow necessary parties to be joined, in
at a later stage.
Necessary Party: A necessary party is that in whose absence the court cannot pass an
effective decree. Its presence is indispensable to the constitution of the suit.
Effect of Non joinder of Necessary party: When a person who is a necessary party to
a suit has not be joined as a party to the suit, it is a case of non-joinder. A suit is not
to be dismissed only on the ground of non-joinder of parties. The court may allow
necessary parties to be joined, in at a later stage also.
The only course open to the court under such circumstances is formally to call upon the
plaintiff to make his election and confine the suit to one set of defendants. In case
of non-joinder of the necessary party, an opportunity should be given to the plaintiff to
add the necessary party.

According to the proviso of the Rule 9 of Order 1 nothing in the said rule applies to
non- joinder of a necessary party. A necessary party is that in whose absence the
court cannot pass an effective decree. If the decree cannot be effective without the
absent party, the suit is liable to be dismissed.
Dismissal of suit:

Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or
substantially valid, nor shall any case be remanded, in appeal on account of any
misjoinder or non-joinder of parties or causes of action or any error, however, nothing in
this section shall apply to non-joinder of a necessary party. Where a relief is sought
against a party without impleading him as a party, the suit would be liable to be
dismissed.
Rule 9 Order 1 provides against the dismissal of suit in case of non-joinder of
parties.
The only course open to the court under such circumstances is formally to call upon the
plaintiff to make his election and confine the suit to one set of defendants. In case
of non-joinder of the necessary party, an opportunity should be given to the plaintiff to
add the necessary party.
Vishnu v. Rajan Textile Mills. Where a suit for possession was filed, and the
defendant derived his title from the auction-purchaser in liquidations proceedings of
a company, but the plaintiff sued for declaration that the auction proceedings and
the subsequent conveyance by auction purchaser to defendant were void in law
under a certain Act, it was held by the Supreme Court that the liquidator was a
necessary party and in his absence the suit for declaration must fail.
Conclusion: At last, it is to be concluded that Non-joinder of proper party may be
not much affect the decision of the court. But, in the case of non-joinder of
necessary parties the Court cannot pass an effective decree in their absence. In such
a case, the suit cannot proceed and is liable to be dismissed

QUESTION NO. 6:-

What is set off ? What is counter claim? Distinguish between set off
and counter claim?
Set-off
The doctrine of set-off is provided by the Order-8, Rule-6, of Civil Procedure Code.
Set
–off may be defined as the extinction of two persons reciprocal debts against each
other. Set off happens when both the plaintiff and defendant are debtors as well as
creditors against each other. It is a reciprocal recovery of debts of two persons. For
Ex. A files a suit for recovery of money amounting to Rs. 25,000 against B . B says
that A took a loan from him , amounting to Rs. 20,000 which is legally recoverable
from A by a separate suit . And claims set off of Rs. 20,000 from the claim of A
amounting to Rs.25,000. If the claim of set off is proved and if the claim is not
barred by the law of limitation or res judicata, B need not to pay the whole amount
of claim of A . Making minus of Rs.20,000 as set off , from the claim of A amounting
to Rs. 25,000 , B needs to pay only the rest amount of Rs.5,000 to A . This is called
set off.

The following three conditions are necessary to entitle a defendant to claim set
off
• The suit must be for recovery of money .
• The amount claimed for set off must be ascertained sum of money . If the amount is

not ascertained then the set off does not lie . The sum of money , claimed for set off
must be legally recoverable . Where the plaintiff is not legally bound to pay the
money by virtue of the law of limitation or res judicata , set off does not lie . And the
amount of money to be set off must not exceed the pecuniary jurisdiction of court .
• Both the plaintiff and defendant must fill in the defendant’s claim to set off the
same character as they fill in the plaintiff’s suit .
• The money must be recoverable by the defendant or by all the defendants
where there are more than one , from the plaintiff or the plaintiffs where there are
more than one .
Set off may be legal set off or equitable set off .

Counter Claim
Order 8 , Rules 6A to 6G , of the Civil Procedure Code deal with the principle of
Counter claims by the defendants .When a suit is filed by the plaintiff it may happen
that the defendant also has any right or claim in respect of a cause of action as
against the plaintiff for which he is legally entitled to bring a separate suit . In that
event he need not to bring a separate suit against the plaintiff for his cause of
action . He may file a plaint for his claim with the written statement in the same suit
filed by the plaintiff against him ,without bringing a separate suit . This plaint filed
by the defendant with the written statement is called counter claim .
Where any defendant seeks to rely upon any ground as supporting a right of
counter claim , he shall, in his written statement , state specifically that he does so
by way of a counterclaim. The counter claim can not in any case exceed the
pecuniary limit of the Court’s jurisdiction. The plaintiff shall be at liberty to file a
written statement in answer to the counter claim .Such counter claim shall have
the same effect as a cross suit
.The counter claim shall be treated as a plaint and shall be governed by the rules
applicable to the plaints.
If the plaintiff contends that the defendant’s claim ought not to be disposed of by
way of a counter claim but by an independent suit , the court may , if so satisfied ,
pass an order to that effect .
Where in any suit counter claim is established and any balance is found due to the
plaintiff or the defendant , as the case may be , the court may give judgment to the
party entitled to the balance.

The rules relating to the written statement by a defendant shall apply to a written
statement filed by the plaintiff in answer to the counter claim .

The court can pronounce a final judgment in that suit , both on the original claim
and on the counter claim . If the plaintiff’s original suit is dismissed for default , the
counter claim shall alone proceed to the final judgment as an independent suit .

Distinction between Set- off and Counter claim

Order 8, Rule 6, of Civil Procedure Code deals with set off where as Order 8 Rules
6A to 6G of Civil Procedure Code deal with counter claim .

The distinctions of set off and counter claim may be shown in the following tabular

form :-
Set off Counter Claim
1. A set off is a statutory defence against the Whereas counter claim
plaintiff’s action. is substantially a
cross action.
2. A set off is a ground of defence , it is a While counter claim is a weapon
shield as well as sword. of defence.
3. A set off , if established , affords an answer Counter claim enables a
to the plaintiff’s claim wholly. defendant to enforce a claim
against the plaintiff effectually as
in an independent action.
4. In case of set off , if plaintiff’s suit is stayed Whereas in such event counter
, discontinued or extinguishes the claim of claim may be proceeded with.
set off in that suit .
5. Set off must be for an ascertained sum or it A counter claim however need not
must arise out of the same transaction as arise out of the same transaction.
the plaintiff’s claim.
6. The amount of set off must be less than or In counter claim the amount may
equal to the amount claimed by the plaintiff . be greater than the claim of
 plaintiff.
7. In case of set off plaintiff can show that it In case of counter claim it is
was barred by law when he commenced his enough to show by the plaintiff
action . It is not enough to prove that it was that it was barred when it was
barred when it was pleaded . pleaded.

QUESTION 7 :-

Grounds of rejection of plaint.

Code of Civil Procedure is a constitution of Civil/Commercial Courts, Civil Jurisdiction

and Appellate Civil Division in the High Court for adjudicating commercial/civil disputes.
It is the foundation subject for anyone to understand Civil Jurisdiction and procedure of
Civil Courts. That is why it is called procedural law as it contains the procedure in
civil suits. Code of Civil Procedure, 1907 is the basis for anyone to practice Litigation
in the civil side.

Code of Civil Procedure is a constitution of Civil/Commercial Courts, Civil Jurisdiction

and Appellate Civil Division in the High Court for adjudicating commercial/civil disputes.
It is the foundation subject for anyone to understand Civil Jurisdiction and procedure of
Civil Courts. That is why it is called procedural law as it contains the procedure in
civil suits. Code of Civil Procedure, 1907 is the basis for anyone to practice Litigation
in the

civil side.
Order 7 Rule 11 of CPC, discusses Rejection of Plaint. CPC, 1907 contains a
provision in Order 7 Rule 11 of the code that whenever a plaint is filed in any civil
court for any claim/compensation to be recovered from the opposite party it can be
rejected by fulfilling the following conditions mentioned below.

Rejection of plaint — The plaint shall be rejected in the following cases

• Where it does not disclose a cause of action – If the plaintiff does not
discloses facts that give the plaintiff right to seek relief against defendant, the facts
that are necessary to prove the damage caused to plaintiff. Case law on this
provision – S.M.P. Shipping Services Pvt. Ltd. V. World Tanker Carrier Corporation;
AIR 2000 Bom 34.
• Where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within a time to be fixed by the
Court, fails to do so;

• Where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so – If the plaint
is insufficient stamp under court fees act and the plaintiff fails to supply the plaint with
correct stamp value.

• Where the suit appears from the statement in the plaint to be barred by any
law; Example when the plaint filed looks like to be barred by any statue and gives
no right to plaintiff to file the suit and liable to rejected if the court accepts the plaint
is barred by law.

• Where it is not filed in duplicate – In any suit a duplicate copy of the plaint has
to be filed and when a duplicate copy of plaint is not filed it is liable to be dismissed.

• Where the plaintiff fails to comply with provisions of rule 9 – Where the plaintiff
fails to comply with the order 7 rule 9

Provided that, the time fixed by the Court for the correction of the valuation or supplying
of the requisite stamp-paper shall not be extended unless the Court, for reasons to be
recorded, is satisfied that the plaintiff was prevented by any cause of an
exceptional nature form correcting the valuation or supplying the requisite stamp-
paper, as the case may be, within the time fixed by the Court and that refusal to
extend such time would cause grave injustice to the plaintiff.

QUESTION 8:

EXPLAIN THE CONTENT OF PLEADING AND GROUNDS OF AMENDMENT OF

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 Written statements are the
statements defined in Order 8 Rule 1 of CPC which states that defendant 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 defined
in CPC but it can be termed as pleadings of Plaintiff from which civil suit is initiate
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 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 Aneja4, 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 court allows 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 V.ithoba 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 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

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.

Conclusion

Pleadings are the backbone of every civil suit. Pleadings can be in Plaint or Written
Statements form. Amendment of pleadings means the alteration, modifications &
amendment in original pleadings by an application to the court. For avoiding multiplicity
of suits, the court allows application of the amendment of pleadings. But it is true that
the amendment of pleadings is a major reason for the delay in the justice. The court
should allow applications for an amendment which is made in good faith and determine
the real question of controversy between the parties. The court should not allow an
application which is made with the mala fide intention or to delay the proceedings.
Amendments of Pleadings is a good law to correct mistakes in pleadings but it should
be allowed with due care and diligence.

Question 9.
What are remedies available in case of Ex-parte decree has been
passed?
Introduction: For the hearing of the suit, the summons are served to defendant to
appear and answer. Defendant has to appear on the day so fixed. But if defendant
does not appear on day so fixed either in person or by agent as ordered by the
Court; the Court shall proceed EX-PARTE.
Ex-parte proceedings: Ex-parte proceedings are those where defendant does not so
appear. The evidence are taken and witnesses are heard in the absence of the
defendant.
Ex-parte decree: the decree passed in the absence of defendant, is Ex-parte decree.
Remedies available to defendant in case Ex-parte order has been passed. There
are
 mainly two remedies available to the Defendant in this situation:
I. Appeal against decree passed (section
96) II.Application for set aside the decree (order 9
Rule 13)

• Appeal against decree passed. Section 96(2) provides the remedy to the
defendant to lie appeal against Ex-parte decree.
• Application for set aside the decree: it is an alternative remedy available to
the defendant. In this remedy, the Defendant can file an application to the Court
by which decree has been passed. Following things have to be proved by the
defendant that -
• Summons has not been duly served; or
• Any other sufficient cause for non-appearance of the
defendant. If these things are satisfied to the Court, then Court
may order-
• To set aside the decree passed; and
• Court shall appoint a day for proceeding with the suit.
• to apply for review: Order 47 Rule I
• to file suit on the ground of
fraud. When there are more than
one defendant:
Where there are more than one defendant, and decree cannot be set aside against
such defendant, the decree against all defendant may be set aside.
Irregularity of summons as sufficient cause:
Mere irregularity of summons is not a sufficient cause. The decree cannot be set aside
merely on this ground; if plaintiff is able to prove that defendant has sufficient time to
appear and answer.
Notice to opposite party (Order 9 Rule 14):
Before setting aside the decree on any such application notice to opposite party is
required to be served.
Ex-parte and appeal:
If appeal is filed against the order passed Ex-parte and it has been disposed; then
no application of set aside can be filed.An aggrieved party can also file an appeal
under section96(2) of the code.
 QUESTION 10:-

WRITE A NOTE ON ISSUING OF COMMISSION UNDER ORDER 26.

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

• To make a local investigation.

• To adjust accounts.
• To make partition.
• To hold investigation.
• To conduct sales.
• To perform ministerial work.

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.

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.

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.

QUESTION 12:-
WRITE A NOTE ON INJUNCTION.
Introduction

An injunction is a prohibitive writ issued by a court of equity, at the suit of a

party complainant, directed to a party defendant in the action, or to a party made
a defendant for that purpose, forbidding the latter to do some act, or to permit his
servants or agents to do some act, which he is threatening or attempting to commit,
or restraining him in the continuance thereof, such act being unjust and inequitable,
injurious to the plaintiff, and not such as can be adequately redressed by an action
fit law.

Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the act , as [2]

mentioned below:

• Temporary Injunction
• Perpetual/Permanent Injunction

Both the types of injunctions are discussed below.

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are
given for a specific period of time or until the court gives further order
regarding the matter in concern. They can be obtained during any stage of the trial
and are regulated by the Code of Civil Procedure (CPC), 1908 : [3]

• Section 94: The section provides for supplemental proceedings, to enable

the court to prevent the ends of justice from being defeated. Section 94(c)
states that a court may grant temporary injunction and in case of
disobedience commit the person guilty thereof to the civil prison and order
that his property be attached and sold. Section 94(e) of the Code enables
the court to make interlocutory orders as may appear to it to be just and
convenient.

• Section 95: If it is found by the court that there were no sufficient grounds
to grant the injunction, or the plaintiff is defeated in the suit, the court may
award reasonable compensation to the defendant on his application
claiming such compensation.

• Order XXXIX:
 • Rule 1: It enlists the situations when a court may grant
temporary injunction. These are:

• Any property in dispute in a suit is in danger of being wasted, damaged or

alienated by any party to the suit, or wrongfully sold in execution of a
decree, or
• the defendant threatens, or intends, to remove or dispose of his property
with a view to defrauding his creditors,
• the defendant threatens to dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit.

• Rule 2: It provides that an interim injunction may be granted for restraining

the defendant from committing a breach of contract or other injury of any
kind to the plaintiff.
• Rule 3: It states that a court shall direct a notice of application to the
opposite party, before granting the injunction to the plaintiff. However, if it
seems to the court that the purpose of the injunction would be defeated by
the delay, it may

not provide the notice.

• Rule 4: It provides for vacation of already granted temporary injunction.
• Rule 5: It states that an injunction directed to a corporation is binding not only
on the corporation itself, but also on all members and officers of the
corporation whose personal action the injunction seeks to restrain.

In the M. Gurudas and Ors. case, the Hon’ble Supreme Court of India has opined,
“while considering an application for injunction, the Court would pass an order
thereupon having regard to prima facie, balance of convenience and
irreparable injury.”

• Prima Facie Case:

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N.
Banerjee while discussing a the meaning of the ‘prima facie’ case, the court said:
,

“A prima facie case does not mean a case proved to the hilt but a case which can
be said to be established if the evidence which is led in support of the same were
believed. While determining whether a prima facie case had been made out the
relevant consideration is whether on the evidence led it was possible to arrive at the
conclusion in question and not whether that was the only conclusion which could be
arrived at on that evidence.”

Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is

not sufficient and temporary injunction cannot be granted if the damage that will be
caused if the injunction is not given is not irreparable.
• Irreparable Injury:

‘Irreparable injury’ means such injury which cannot be adequately remedied by

damages. The remedy by damages would be inadequate if the compensation
ultimately payable to the plaintiff in case of success in the suit would not place him in
the position in which he was before injunction was refused.

• Balance of Convenience:

In the case of Anwar Elahi, the court has clearly explained the meaning of
‘balance of convenience’. According to the court:

“Balance of convenience means that comparative mischief or inconvenience which

is likely to issue from withholding the injunction will be greater than that which is
likely to arise from granting it. In applying this principle, the Court has to weigh the
amount of substantial mischief that is likely to be done to the applicant if the
injunction is refused and compare it with that which is likely to be caused to the
other side if the injunction is granted.”

Question no.13.

Define execution and court by which decree may be executed and

discuss the modes of execution

order 21 of the Code of Civil Procedure deals with the simultaneous execution.
According to this rule, the court in its discretion may refuse execution against the
person and property of the judgment-debtor at the same time.

Court by which decree may be executed

Section 38 of the Code of Civil Procedure provides that there are two courts which are
competent to execute the decree, they are:
• The Court which has passed it;
• The Court where it is sent for execution.
Section 39 of the Code of Civil Procedure provides the rules regarding the transfer
of decree to other Courts for execution. According to this Section, the Court can
transfer the decree to another Court of competent jurisdiction after the application
of decree- holders for various reasons like:
• The person against whom the decree is passed resides or carries out business within
the local limits of the jurisdiction of other Courts.
• The property of the person is not within the jurisdiction of the Court passing the
decree, then the execution order can be transferred to other courts that are
competent.
• If the decree has provided directions to sell the property or deliver the property that is
not situated within the jurisdiction of the court, then the execution order can
be transferred.
• The Court will also take other valid reasons into consideration other than these
reasons.
The Court on its own motion can transfer the execution order to subordinate courts or
other courts of competent jurisdiction. Order XXI Rule 6 provides various
procedures that have to be followed when the court desires to transfer the decree to
the other court for execution. When there is a transfer, then the documents relating
to the case like a copy of decree and certificate for the satisfaction of the decree
should be sent to the latter Court as mentioned in Rule 6. Section 40 of the Code of
Civil Procedure allows the Court to transfer the case to competent Courts in another
State. Section 42 of the Code of Civil Procedure provides the Court where the decree
is transferred for execution will have the same powers as if the decree was passed by
that Court.

Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate
rules provided in Order 21 while executing a decree. According to Order XXI Rule
10, an application has to be filed in the Court by the decree-holder if he desires to
execute it.
• Delivery of property

Delivery of property is one of the most famous modes of executing a treaty.

According to Order XXI Rule 79, it is said that when the property that is sold is a
movable property of which actual seizure has been made, it shall be delivered to
the purchaser. Rule 35 of the Order XXI discusses the rules regarding the decree of
immovable property. According to this rule,
• When the decree is for the delivery of immovable property, the property can be
delivered to the person to whom it has been adjudged or to the representative
of that person;
• This delivery has to be made after removing any person bound by the decree
who refuses to vacate the property;
• When the decree is for the joint possession of the immovable property, the
possession shall be delivered after affixing the copy of the warrant in a place
that is visible;
• When the person in possession is not providing free access to the property, then
the Court can remove or open any lock or bolt or break open any door or do any
other act necessary for putting the decree-holder in possession after giving
proper warning to the women in that property.
•
• Attachment and sale of property:- section 60 of the Code of Civil
Procedure provides the list of properties which are liable to attachment and
sale in execution of the decree. The list which is liable to be attached for
enforcement of decree according to this Section is:
• Land;
• Houses or other buildings;
• Goods and Money;
• Banknotes and cheques;
• Bill of exchanges and promissory notes;
• Hundis;
• Government Securities, bonds and other securities for money;
• Debts;
• Shares in the corporation;
• All other saleable property that belongs to the judgment-debtor which can be
movable or immovable.
section 61 of the Code of Civil Procedure provides a partial exemption of
agricultural produce.
Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property
is located in more than the local limits of the jurisdiction of one or more courts, then
one of the Court can sell and attach the property. According to Order XXI, Rule 13, there
has to be certain information in the application for attachment of immovable property.
According to Order XXI, Rule 31, the decree for the specific movable property can
be executed by:
• Seizure of the property if it is practicable;
• Delivery of the property to the person whom it has been adjudged;
• The detention of judgment-debtor in the civil prison.
Rule 41 of the Order XXI provides power to provide orders to the Court to examine the
property of judgment debtor. The court may provide orders to the judgment debtor or

officers in the case of firms to submit the relevant books and documents for
examination. The value of the property is assessed in order to examine whether it
would be sufficient for satisfying the decree. The judgment debtor, the officer in the
case of corporations and any other relevant person can be orally examined.
According to Section 64 of the Code of Civil Procedure, any private alienation or
transfer of property after the attachment, then the transfer would be considered as
void. Section 74 of the Code of Civil Procedure provides power to arrest the
judgment-debtor if they have obstructed or restricted the decree-holder from
obtaining possession of any immovable property. The judgment debtor can be
detained in prison for thirty days by the order of the Court.

• Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest
and detention. According to this Section,
• The judgment-debtor can be arrested at any time of the day and can be brought
before the Court.
• The detention of the Judgment debtor should be in civil prison.
• No officer can enter the dwelling-house after sunset and before sunrise for
making an arrest.
• The officer should release the judgment debtor once the amount is paid.
Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to
the judgment debtor to show cause against detention in prison. According to this rule:
• Where the application is made for the execution of the decree for the payment of
money by the arrest and detention of a judgment-debtor in the civil prison,
then the Court provides an opportunity to the judgment debtor to show cause
why he should not be sent to the civil prison.
• The Court provides notice to the judgment debtor to appear before the court on a
specified date and provide show cause.
• The Court will also not provide the notice in certain situations, for example, if the court
feels it would delay the process of execution or the judgment debtor might
abscond within that time.
According to Rule 38, the warrant for the arrest of the judgment debtor will direct the
officer authorised for execution to produce him in the Court within a reasonable
time. Rule 39 of Order XXI is an important provision that deals with the subsistence
allowance. The decree-holder has to pay a certain sum that is fixed by the Court for
the maintenance of the judgment debtor in the civil prison from the time of his arrest
until he can be brought before the Court. No judgment debtor can be arrested if the
decree- holder has not paid the subsistence allowance. Section 56 of the Code of
Civil Procedure provides protection to women and according to this Section, women
cannot be arrested in the execution of the decree for money. The scale for the
monthly allowance is fixed under Section 57 of the Code of Civil Procedure or else
Court can fix an amount that it thinks is sufficient. The payment has to be made in
advance to the authorized officer in the beginning and the officer of prison in the
later stage. The sums disbursed by the decree-holder for the subsistence of the
judgment-debtor in the civil prison and it shall be deemed to be costs in the suit.
Rule 40 provides various

proceedings that have to be followed after the appearance of judgment debtor after
providing the notice. Section 58 of the Code of Civil Procedure deals with the rules
regarding the detention and release. According to this section, the judgment-debtor can
be detained in the civil prison:
• For a period not exceeding three months- When the decree amount is more than
a thousand rupees;
• For a period not exceeding six weeks- When the decree amount is for the
payment of a sum of money exceeding five hundred rupees, but not
exceeding one thousand rupees.
Section 59 of the Code of Civil procedure provides the judgment debtor can be released
on the grounds of illness.

• Appointment of receiver

Order XL of the Code of Civil Procedures contains various provisions relating to the
appointment of a receiver. The Court will also fix appropriate remuneration for the
services provided by the receiver. The Court can appoint an impartial person known
as a receiver before or after the decree for:
• Management and protection of the property;
• The collection of the rents and profits;
• The application and disposal of rents and profits;
• The execution of documents;
• The Court also provides other powers than the above-mentioned power if it
thinks fit. There are various duties of a receiver that is provided in this Order like:
• Furnishing any security asked by the Court;
• Submission of accounts at periods that he is appointed and in such form as the
Court directs;
• Being responsible for any loss that has occurred to the property by the wilful
default or gross negligence of the receiver;
• Paying the amount due to him as the Court directs.
The Court can also sometimes attach and sell the property of the receiver in order
to recover the loss occurred because of him and can give the remaining amount to
the receiver after compensating the loss. The Collector can also be appointed as a
receiver when the property is land that is paying revenue to the Government or the
land in which the revenue has been assigned or redeemed, the Court can appoint a
Collector as the receiver with their consent.
Partition

Question 14.
Discuss the power and scope of execution court under section 47

:-Section 47 of the Code of Civil Procedure provides certain questions to be

determined by the Court before executing the decree. The Court has to determine
all questions arising between the parties to the suit, like:

• Execution of decree;
• The satisfaction of decree;
• Discharge of the decree;
• The Court can also determine whether the person is representative of a
party or not.

The application of execution has to be filed by the decree-holder and the application can
either be an oral application or written application.

Section 47 provides for determination by the executing court of all questions arising
between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the
decree. No separate suit is contemplated. As per sub section (3) where a question
arises as to whether any person is or is not the representative of a party, such
question shall, for the purposes of this section, be determined by the court.
Explanation I to the section provides that for the purposes of the section, a plaintiff
whose suit has been dismissed and a defendant against whom a suit has been
dismissed are parties to the suit. As per explanation II a purchaser of property at
sale in execution of a decree is be deemed to be a party to the suit in which the
decree is passed; and all questions relating to the delivery of possession of such
property to such purchaser or his representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of the decree within the meaning
of this section. [Explaination added after the decision of the Privy Council in
Ganpathy v. Krishnamchaiar]

Exclusive jurisdiction has been conferred on the executing court in respect of all
matters relating to execution, discharge or satisfaction of a decree arising between
the parties or their representatives. Once the suit is decreed, this section requires
that the executing court alone should determine all questions in execution
proceedings and filing of a separate suit is barred. Since Section 47 embraces all
matters connected with the execution of a decree between the parties or their
representatives, and covers all questions relating to the execution, discharge or
satisfaction of the decree, it should be liberally construed so as to empower the
court to determine all such questions, unless they clearly fall outside the scope and
purview of it. It does not matter whether such questions arise before or after the
decree has been executed. It is held in the matter of Savitribai Vs. Suman
reported in 2009 (5) Mh.L.J. 387 that Jurisdiction under section 47 is limited and
narrow. Right to raise the objection doesn't mean that, objector can re¬open the
matter. That is not intended by the legislature. Jurisdiction being extremely limited
and narrow, the objection must fall within the ambit and scope of the same. This
jurisdiction can't be equated with that of an appeal or review. Executing Court has
to go by the decree.

Conditions:¬ Following conditions must be cumulatively satisfied for applicability of

section 47.

• The question must be one arising between the parties to the suit in which the
decree is passed, or their representatives; and

• It must relate to the execution, discharge or satisfaction of the decree.

This section presupposes the existence of a decree which is capable of execution.

Questions arising between parties and a stranger are out of purview of section 47.

Object of Section 47—Principle behind its enactment is that matters relating to the
execution, discharge or satisfaction of a decree and arising between the parties
including the purchaser of a sale in execution should be determined in execution
proceedings and not by a separate suit and to provide a cheap and expeditious
procedure for its trial
In Patankar ¬Vs¬Sastri AIR 1961 SC 272 it is held by the Hon’ble Apex Court that
where in execution of a decree in ejectment, the decree holder obtained
possession and satisfaction of the decree was recorded and thereafter the
judgment debtor applied for redelivery on the ground that the order for delivery was
illegal, it was held that whether the decree was completely satisfied and the Court
became functious officio was a question which related to execution, satisfaction
and discharge of decree and should be tried under Section 47. Also see¬ Hanifa v.
Shalima Dhanu, AIR 1992 Mad. 111 & Gangabai Gopaldas Mohata ¬Vs¬ Ful
Chand AIR 1997 SC 1812.

When a decree¬holder takes in execution a property not included in the decree, the
judgment¬debtor has to proceed by an application under section 47 of the Code for
recovery of such property and a separate suit for that purpose will not lie. The question
as to the validity of the decree is not one relating to the execution, discharge or
satisfaction of the decree and cannot, therefore, be tried in execution proceedings under
section 47 and is requiredto be tried by way of a separate suit. The execution court has
got duty to resolve the dispute whereby somebody claims to be representative of
decree¬holder’s interest and decree¬holder disputes it. It is also settled that what has
been decided and also questions which ought to have been raised and have been not
been raised would also be questions which cannot be gone into by the executing court.

Question no.15

Which property can not be attached for execution of decree:

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

According to the general rule, all property movable and immovable properties
which

include agricultural land, buildings, and shares, furniture's fixtures or movable

property including money, articles etc. Owned by judgment-debtor and judgment-
debtor entitled to hold and process to the exclusion of others.

Properties which cannot be attached -

According to Section 60(1) of the Civil Procedure Code following 20 kinds of

property are not liable to attachment or sale namely -
 • the necessary wearing-apparel, cooking vessels, beds and bedding of
the judgment-debtor, his wife and children, and such personal ornaments as, in
accordance with religious usage, cannot be parted with by any woman;

• tools of artisans, and, where the judgment debtor is an agriculturist, his

implements of husbandry and such cattle and seed-grain as may, in the opinion of the
Court, be necessary to enable him to earn his livelihood as such, and such portion
of agricultural produce or of any class of agricultural produce as may have been
declared to be free from liability under the provisions of the next following section;

• houses and other buildings (with the materials and the sites thereof and the
land immediately appurtenant thereto and necessary for their enjoyment) belonging
to an agriculturist or a labourer or a domestic servant and occupied by him;

• books of account;

• a mere right to sue for damages;

• any right of personal service;

• stipends and gratuities allowed to pensioners of the Government or of a local

authority or of any other employer, or payable out of any service family pension
fund notified in the Official Gazette by the Central Government or the State
Government in this behalf, and political pension;

• the wages of laborers and domestic servants, whether payable in money or in kind

• salary to the extent of the first one thousand rupees and two-thirds of the
remainder in execution of any decree other than a decree for maintenance:

Provided that where any part of such portion of the salary as is liable to attachment has
been under attachment, whether continuously or intermittently, for a total period of
twenty four months, such portion shall be exempt from attachment until the expiry of a
further period of twelve months, and, where such attachment has been made in
execution of one and the same decree, shall, after the attachment has continued for a
total period of twenty four months, be finally exempt from attachment in execution
of that decree;

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

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

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

(ka) all deposits and other sums in or derived from any fund to which the Public
Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are
declared by the said Act as not to be liable to attachment;
kb) all moneys payable under a policy of insurance on the life of the judgment debtor;

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

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

• an expectancy of succession by survivorship or other merely contingent or

possible right or interest;

• a right to future maintenance;

• any allowance declared by any Indian law to be exempt from liability to

attachment or sale in execution of a decree; and

• where the judgment-debtor is a person liable for the payment of land-revenue;

any movable property which, under any law for the time being applicable to him, is
exempt from sale for the recovery of an arrear of such revenue.

QUESTION:-16.

DIFFERENCE BETWEEN APPEAL, REVIEW,RIVISON,REFERENCE

AND SECOND APPEAL

1. Revision and Review of Judgment:

• The power of revision is exercised by the court superior to the court which
decided the case but the power of review is exercised by the very court which
passed the decree or order.
• The power of revision is conferred on the High Court only, which is not so in the
case of review. Any court can review its judgment.

• Revisional powers by the High Court can be exercised only in a case when there
is no appeal to the High Court, but review can be made even when appeal lies to
the High Court therein.

• The grounds on which the powers of revision and review can be exercised are
different. The ground for revision relates to jurisdiction, viz., want of jurisdiction, failure
to exercise a jurisdiction, or illegal or irregular exercise of jurisdiction, while the ground
of review may be

• The discovery of new and important matter or evidence,

• Some apparent mistake or error on the face of the record, or (c) any other
sufficient reason.

• In revision the High Court can, of its own accord, send for the case, but for review
an application has to be made by the aggrieved party.

• No appeal lies from an order made in the exercise of revisional jurisdiction, but
the order granting review is appealable.

2. Appeal and Reference:

• A right of appeal is a right conferred on the suitor, while the power of reference
is vested in the court.

• Reference is always made to the High Court, while an appeal is preferred to a

superior court which need not necessarily be High Court.

• The grounds of appeal are wider than the grounds of reference.

• Reference is made in a pending suit, appeal or execution proceeding in order

to enable the court to arrive at a correct conclusion, while an appeal is preferred
after the decree is passed or an appealable order is made.

3. Appeal and Revision:

• An appeal lies to a superior court, which may not necessarily be a High Court; but
an

application for revision lies only the High Court.

• An appeal lies only from appealable orders and decree, but an application for
revision can be made only when the relief by way of appeal to the High Court is not
available.
• A right of appeal is a substantive right given by statute. There is no right of revision. It
is only a privilege. A party may move the High Court to invoke its revisional jurisdiction
or the High Court may of its own motion exercise revisional jurisdiction, but the power is
discretionary.

• An appeal abates if the legal representatives of a deceased party are not brought
on the record within the time allowed by law. A revision does not abate in case of
the death of a party even if the legal representatives are not brought on the record.
The High Court has a right to bring the proper parties before the Court at any time.

• The grounds of appeal and revision are different. An application in revision can lie
only on the ground of jurisdiction, and the High Court in exercise of its revisional
jurisdiction is not a court of appeal on a question of law or fact. In an appeal the court
has the power to decide both questions of fact and law.

• Section 115 does not require that there should be an application in revision. The High
Court can move of its own accord in exercising revisional jurisdiction. In case of appeal
there must be a memorandum of appeal filed before the same can be considered by the
appellate court.

• An essential distinction between an appeal and a revision is based on

differences implicit in the said two expressions. An appeal is continuation of the
proceedings. In effect, the entire proceedings are before the appellate authority
and it has power to review the evidence subject to the statutory limitations
prescribed. But in the case of a revision, whatever powers the revisional authority
may or may not have; it has not the power to review the evidence unless the
statute expressly confers on it that power. (State of Kerala v. K.M. Charia Abdidla
& Co., A.I.R. 1965 S.C. 1585).

4. Second Appeal and Revision:

• A second appeal lies to the High Court from every decree passed in appeal by
a subordinate court only if the High Court is satisfied that the case involves a
substantial question of law. The grounds of revision are, however, different. They
relate to jurisdiction.

• The revisional powers of the High Court can be invoked in cases which no appeal
or second appeal lies to the High Court. This is not so in second appeal.

• The Court will not in its revisional jurisdiction enter into merits of the case
however erroneous the decision of the lower court is on an issue of law or of fact
but will interfere only to see that requirements of law have been properly obeyed by
the court whose order is the subject of revision.

Although no second appeal can be preferred on a question of fact yet when such an
appeal is already before the High Court, it may determine issues of fact where such
issues have not been determined provided that the evidence on the record is sufficient
for such determination.

• In revisional matters the High Court may decline to interfere if it is satisfied

that substantial Justice has been done. But on questions of law in second
appeal, no discretion vests in the High Court and it has no right to decide merely
on equitable grounds.

• Reference and Revision:

• In reference the case is referred to the High Court by a court subordinate to it. On
the other hand, the party aggrieved moves the High Court in revision for the exercise
of its revisional jurisdiction, or the High Court may sua motu send for the case and
examine the record.

• The ground for reference is the entertainment of some reasonable doubt by the Court
trying the suit, appeal or executing the decree with regard to a question of law or usage
having the force of law. The ground for revision, on the other hand, relates to jurisdiction,
viz., want of jurisdiction, failure to exercise a jurisdiction or illegal or irregular exercise of
jurisdiction.

6. Reference and Review:

• In reference the subordinate court refers the case to the High Court while in review
an application is made by the aggrieved party.

• The High Court alone can decide matters on reference while an application for
review is made to the court which passed the decree or made the order.

• Reference is made during the pendency of the suit, appeal or execution proceedings,
while application for review is made to the court after it has passed the decree or made
the order.

• The grounds of reference and review are different. Reference is made by the court
trying the suit, appeal or executing the decree when it entertains reasonable doubt with
regard to any question of law or usage having the force of law. The grounds of review
may be the discovery of new and important matter or evidence, some apparent mistake
or error on the face of the record or any other sufficient reason.

7. Review and Appeal:

• An application for review lies to the same court while an appeal lies to a higher court.

• The main object of granting a review of judgment is reconsideration of the

same matter by the same Judge, while an appeal is heard by another Judge.

• The grounds of review are narrower than the grounds of appeal.

• There is no second review, but there is second appeal on a substantial question
of law.

QUESTION 17.

WRITE A NOTE ON RECIEVER – ORDER 40

Meaning and Definition of Reciever

The term is not defined in the Civil Procedure Code, 1908. Dictionary meaning
of a Reciever is a person who gets or accepts something that has been sent or
given to them. In legal language, "A receiver is an impartial person who is
appointed by the court to collect and receive the rents, profits of land during the
pendency of proceedings when it does not seem reasonable to the court that either
party should hold it."

Appointment of Receiver -

Where it appears to the Court to be just and convenient, the Court may by order -

• appoint a receiver of any property, whether before or after, decree;

• remove any person from the possession or custody of the property;

• commit the same to the possession, custody or management or the

receiver;
and

• confer upon the receiver all such powers, as to bringing and defending suits
and for the realization, management, protection, preservation and improvement of
the property, the collection of the rents and profits thereof, the application and
disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.

Nothing in this rule shall authorize the Court to remove from the possession or
custody of property any person whom any party to the suit has not a present right
so to remove.

Remuneration of Receiver
 The Court may by general or special order fix the amount to be
paid as remuneration for the services of the receiver.
-

Powers and duties of a receiver are as follows -

• Duties of Receiver -

Duties Every receiver so appointed shall -

• furnish such security (if any) as the court thinks fit, duly to account for
what he shall receive in respect of the property;

• submit his accounts at such periods and in such form as the Court directs;

• pay the amount due from him as the Court directs; and

• be responsible for any loss occasioned to the property by his wilful

default or gross negligence.

• Powers of Receiver -

Order 40 Rule 1(d) of Civil Procedure Code 1908, confer upon the receiver following
powers -

• to institute and defend suits

• to realize, manage, protect, preserve and improve the property,

• to collect, apply and dispose of the rents and profits.

• to execute documents; and

• such other powers as it Court thinks fit.

Enforcement of receiver's

duties Where a receiver-

• fails to submit his accounts at such periods and in such form as the
Court directs, or
 • fails to pay the amount due from him as the Court directs, or

• occasions loss to the property by his wilful default or gross negligence, the

Court may direct his property to be attached and may sell such property, and may
apply the proceeds to make good any amount found to be due from him or any loss
occasioned by him, and shall pay the balance (if any) to the receiver.

When Collector may be appointed receiver -

Where the property is land paying revenue to the Government, or land of

which the revenue has been assigned or redeemed, and the Court considers that
the interests of those concerned will be promoted by the management of the
Collector, the Court may, with the consent of the Collector, appoint him to be
receiver of such property.

Relevant case laws

Balakrishnan Gupta Vs Swadeshi Polytex Limited, AIR 1985 SC 520

In this case, Court held that a receiver is an officer or representative of the court
and he functions under its direction

QUESTION NO. 18.

Write a note inherent power under section 151 of cpc

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.
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 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 theres words are not
merely a polite expression as per juristic methodology. These words also indicate that
Justice is the persuit 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 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 so 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.

Amendment of judgments, decrees, orders, and other records

Section 152 of CPC deals with the “Amendment of judgements, decrees, and order.”
According to Section 152 of CPC, 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.

Summary of Provisions of Inherent powers of Courts

A summary of Section 148 to Section 153B is that the powers of the court are quite
deep and extensive for the scope of:

• Reducing litigation;
 • Evade multiplicity of proceedings; and
• To supply full and complete justice between the parties.

Suggestions

It may be recommended that rules put down by the courts in the application of inherent
powers concurrently with the restraints and limitations on the application of the power
be arranged in the form of rules to be made by the Supreme Court and be made
desirable to the courts for their leadership. The rules may also provide to deal with
different circumstances unprovided for which arises in future.

Conclusion

Inherent powers are the power of court which are helpful in minimizing litigation,
avoid multiplicity of proceedings and to render complete justice between two
parties. Section 148 to 153B of CPC discusses the provisions of the Inherent
powers of the Court. These provisions discuss the enlargement of time, payment of
court fees, transfer of the business of one court to another court, end of justice,
abuse of process of the court, amendment of judgement, decree, orders, and
records, etc.