8/20/23, 5:13 PM Supreme Court Half Yearly Digest 2023 -Code Of Civil Procedure, 1908

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Supreme Court Half Yearly Digest 2023 -Code Of Civil

Procedure, 1908
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20 Aug 2023 10:41 AM

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8/20/23, 5:13 PM Supreme Court Half Yearly Digest 2023 -Code Of Civil Procedure, 1908

Section 10 - Stay of Suit

Code of Civil Procedure, 1908; Section 10 - Stay of Suit - By virtue of Section 10

CPC, a Court is prohibited from proceeding with trial of any suit in which the matter in
issue is also directly and substantially in issue in a previously instituted suit, of
course, subject to other conditions mentioned therein. The object of the prohibition
contained in Section 10 CPC is to prevent the Courts of concurrent jurisdiction from
simultaneously trying two parallel suits and to avoid inconsistent findings. However,
this rule of procedure is held not affecting the jurisdiction of the Court to entertain
and deal with the latter suit and does not create a bar to the institution of the suit.
The Courts have also consistently held that Section 10 CPC does not create a bar to
the passing of interlocutory orders including those of injunction. (Para 17) State of
Meghalaya v. Union of India, 2023 LiveLaw (SC) 427 (https://www.livelaw.in/top-
stories/supreme-court-rejects-centres-challenge-to-maintainability-of-meghalayas-
suit-challenging-provisions-of-lotteries-regulation-act-228509) : 2023 INSC 522

Section 11 - Res Judicata

Code of Civil Procedure, 1908; Section 11 - Res judicata - An order closing the
proceedings is not final decision of the suit within the meaning of Order 9 Rule 8 and
Order 17 Rule 3 resply of the CPC - will not operate as res judiciata. (Para 55) Prem
Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266
(https://www.livelaw.in/tags/prem-kishore-vs-brahm-kishore-2023-livelaw-sc-266) :
2023 INSC 317

Code of Civil Procedure, 1908; Section 11 - Res Judiciata - The general principle of
res judicata under Section 11 of the CPC contain rules of conclusiveness of
judgment, but for res judicata to apply, the matter directly and substantially in issue in
the subsequent suit must be the same matter which was directly and substantially in
issue in the former suit. Further, the suit should have been decided on merits and the
decision should have attained finality. Where the former suit is dismissed by the trial
court for want of jurisdiction, or for default of the plaintiff’s appearance, or on the
ground of non-joinder or mis-joinder of parties or multifariousness, or on the ground

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that the suit was badly framed, or on the ground of a technical mistake, or for failure
on the part of the plaintiff to produce probate or letter of administration or
succession certificate when the same is required by law to entitle the plaintiff to a
decree, or for failure to furnish security for costs, or on the ground of improper
valuation, or for failure to pay additional court fee on a plaint which was undervalued,
or for want of cause of action, or on the ground that it is premature and the dismissal
is confirmed in appeal (if any), the decision, not being on the merits, would not be res
judicata in a subsequent suit. (Para 34) Prem Kishore v. Brahm Prakash, 2023
LiveLaw (SC) 266 (https://www.livelaw.in/tags/prem-kishore-vs-brahm-kishore-2023-
livelaw-sc-266) : 2023 INSC 317

Code of Civil Procedure 1908; Section 11 - Res Judicata - Guiding principles

summarized. (Para 33) Prem Kishore v. Brahm Prakash, 2023 LiveLaw (SC) 266
(https://www.livelaw.in/tags/prem-kishore-vs-brahm-kishore-2023-livelaw-sc-266) :
2023 INSC 317

Section 24 - General power of transfer and withdrawal

Code of Civil Procedure, 1908; Section 24, 25 - The power under section 24 of the
CPC can be exercised by the High Court even for inter-State transfer of a suit, appeal
or other proceeding, if it is the common High Court for two or more States under
Article 231 of the Constitution and both the Civil Courts (transferor and transferee)
are subordinate to it - Section 25 applies to inter-State transfer of a suit, appeal or
other proceeding where both States have a High Court in terms of Article 214 of the
Constitution and not to a transfer where both States have a common High Court
under Article 231 thereof. (Para 48) Shah Newaz Khan v. State of Nagaland, 2023
LiveLaw (SC) 146 (https://www.livelaw.in/top-stories/supreme-court-inter-state-
transfer-suits-section-24-cpc-shah-newaz-khan-vs-state-of-nagaland-2023-livelaw-sc-
146-222731) : AIR 2023 SC 1338 : 2023 INSC 176

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Section 33 - Judgment and decree

Code of Civil Procedure, 1908; Section 33, Order XX Rule 4(2), 5; Order XLI Rule 23,
23A, 24 and 25 - Remand - High Court passed order of remand observing that the
judgment of the trial court was not written as per the mandate of Section 33 and Rule
4(2) and 5 of Order XX of the Code, as the discussion and reasoning on certain
aspects was not detailed and elaborate - Allowing appeal, the Supreme Court
observed: This is not a case where the evidence is not adduced and on record. In
fact, the first portion of the judgment of the High Court elaborately records the
contention of the parties and the facts and evidence relied by the parties - First
appeal restored before High Court. Arvind Kumar Jaiswal v. Devendra Prasad
Jaiswal Varun, 2023 LiveLaw (SC) 112 (https://www.livelaw.in/top-stories/supreme-
court-remand-order-scope-arvind-kumar-jaiswal-d-vs-devendra-prasad-jaiswal-varun-
2023-livelaw-sc-112-221658)

Section 47 - Questions to be determined by the Court executing decree

Code of Civil Procedure, 1908; Section 47 - Questions to be determined by the Court

executing decree - Section 47 of CPC confers exclusive jurisdiction on the Executing
Court to prevent unnecessary litigation and to achieve speedy disposal of the
questions arising in relation to the execution, discharge or satisfaction of the decree.
Jini Dhanrajgir v. Shibu Mathew, 2023 LiveLaw (SC) 450
(https://www.livelaw.in/supreme-court/supreme-court-lis-pendens-rule-102-order-xxi-
civil-procedure-code-executing-court-jurisdiction-229061) : AIR 2023 SC 2567 : 2023
INSC 544

Section 96 - Appeal from original decree

Code of Civil Procedure, 1908; Section 96 - Limitation Act, 1963; Section 3, 5 - An

appeal has to be filed within the stipulated period, prescribed under the law. Belated
appeals can only be condoned, when sufficient reason is shown before the court for
the delay. The appellant who seeks condonation of delay therefore must explain the
delay of each day. It is true that the courts should not be pedantic in their approach
while condoning the delay, and explanation of each day’s delay should not be taken
literally, but the fact remains that there must be a reasonable explanation for the
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delay. (Para 5) Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69

(https://www.livelaw.in/tags/ajay-dabra-vs-pyare-ram-2023-livelaw-sc-69) : AIR 2023
SC 698 : (2023) 1 SCR 449 : 2023 INSC 90

Code of Civil Procedure, 1908; Section 96, 149 - Limitation Act, 1963; Section 3, 5 -
Being short of sufficient funds to pay court fee is not a reason to condone delay in
filing appeal - In such a scenario, an appeal can be filed in terms of Section 149 CPC
and thereafter the defects can be removed by paying deficit court fees. (Para 5-10)
Ajay Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 (https://www.livelaw.in/tags/ajay-
dabra-vs-pyare-ram-2023-livelaw-sc-69) : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023
INSC 90

Section 149 - Power to make up deficiency of court-fees

Code of Civil Procedure, 1908; Section 149 - Court Fees Act 1870; Section 4 -
Section 149 CPC acts as an exception, or even a proviso to Section 4 of Court Fees
Act - In terms of Section 4, an appeal cannot be filed before a High Court without
court fee, if the same is prescribed - But an appeal can be filed in terms of Section
149 CPC and thereafter the defects can be removed by paying deficit court fees. Ajay
Dabra v. Pyare Ram, 2023 LiveLaw (SC) 69 (https://www.livelaw.in/tags/ajay-dabra-
vs-pyare-ram-2023-livelaw-sc-69) : AIR 2023 SC 698 : (2023) 1 SCR 449 : 2023 INSC
90

Order 6 Rule 4 - Particulars to be given where necessary

Code of Civil Procedure, 1908; Order VI Rule 4, Order XXI Rules 97 to 101 -
Hyderabad Jagir Abolition Regulation, 1358 - The Supreme Court has upheld the
decision of the Telangana High Court, upholding the title of successors of Ryot
Cultivators over the Paigah lands in Hydernagar, Telangana, who had obtained title to
the said lands from their predecessors. The court dismissed the claim of title raised
by rival claimants/appellants, including M/s Trinity Infraventures Ltd, on the ground
that it was a Mathruka property of the late Nawab Khurshid Jah, who was granted a
Paigah by the Nizam of Hyderabad. The Apex Court further ruled that no party to a
suit for partition, even by way of compromise, can acquire any title to any specific
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item of property or any particular portion of a specific property, if such a compromise

is struck only with a few parties to the suit. Trinity Infraventures Ltd. v. M.S. Murthy,
2023 LiveLaw (SC) 488 (https://www.livelaw.in/top-stories/supreme-court-findings-
title-simple-suit-partition-cannot-bind-third-parties-230835) : 2023 INSC 581

Order 6 Rule 17 - Amendment of Pleadings.

Code of Civil Procedure 1908; Order VI Rule 17 - In dealing with prayers for
amendment of the pleadings the Courts should avoid hyper technical approach. But
at the same time, we should keep reminded of the position that the same cannot be
granted on the mere request through an application for amendment of the written
statement, especially at the appellate stage. (Para 14) Shivashankara v. H.P.
Vedavyasa Char, 2023 LiveLaw (SC) 261 (https://www.livelaw.in/tags/shivashankara-
vs-hp-vedavyasa-char-2023-livelaw-sc-261)

Code of Civil Procedure, 1908; Order VI Rule 17 - Inconsistent and contradictory

allegations in negation to the admitted position of facts or mutually destructive
allegations of facts should not be allowed to be incorporated by means of
amendment to the pleadings. (Para 38) Ganesh Prasad v. Rajeshwar Prasad, 2023
LiveLaw (SC) 189 (https://www.livelaw.in/top-stories/cause-of-action-for-redemption-
suit-is-successive-second-suit-by-mortgagor-not-barred-by-default-dismissal-of-first-
suit-supreme-court-223852) : 2023 INSC 228

Order 7 Rule 11 - Rejection of plaint

Code of Civil Procedure, 1908; Order VII Rule 11 - A plaint which falls within the teeth
of the conditions laid down under Rule 11 of Order VII CPC is liable to be rejected at
the threshold for which the plaint allegations alone are required to be considered and
nothing else. (Para 12) ESSEMM Logistics v. DARCL Logistics Ltd; 2023 LiveLaw
(SC) 378 (https://www.livelaw.in/supreme-court/supreme-court-carriage-by-road-act-
consignment-loss-damage-227709) : AIR 2023 SC 2140 : 2023 INSC 471

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Code of Civil Procedure, 1908; Order VII Rule 11 - Rejection of Plaint - While
deciding the application under Order VII Rule XI, mainly the averments in the plaint
only are required to be considered and not the averments in the written statement -
Plaint is ought to be rejected when it is vexatious, illusory cause of action and barred
by limitation and it is a clear case of clever drafting. (Para 5-8) Ramisetty Venkatanna
v. Nasyam Jamal Saheb, 2023 LiveLaw (SC) 372 (https://www.livelaw.in/supreme-
court/rejection-of-plaint-order-vii-rule-11-cpc-cause-of-action-limitation-ramisetty-
venkatanna-vs-nasyam-jamal-saheb-2023-livelaw-sc-372-227635) : 2023 INSC 458

Code of Civil Procedure, 1908; Order VII Rule 11 - For dealing with an application
under Rule 11 of Order VII of CPC, only the averments made in the plaint and the
documents produced along with the plaint are required to be seen. The defence of
the defendants cannot be even looked into. When the ground pleaded for rejection of
the plaint is the absence of cause of action, the Court has to examine the plaint and
see whether any cause of action has been disclosed in the plaint - Merely because
there were some inconsistent averments in the plaint, that was not sufficient to come
to a conclusion that the cause of action was not disclosed in the plaint. The question
was whether the plaint discloses the cause of action. (Para 6-9) G. Nagaraj v. B.P.
Mruthunjayanna, 2023 LiveLaw (SC) 311 (https://www.livelaw.in/top-stories/g-
nagaraj-vs-bp-mruthunjayanna-2023-livelaw-sc-311-226490)

Order 8 Rule 6A - Counter-claim by defendant

Code of Civil Procedure, 1908; Order VIII Rule 6A - An inter-se dispute on the validity
of the sale deed executed between the defendants in respect of the suit land, cannot
be considered in the suit for possession instituted by the plaintiff on the basis of a
registered sale deed executed in its favour, as it would amount to adjudication of a
right or a claim by way of counter-claim by one defendant against his co-defendant,
which cannot be permitted by virtue of Order VIII Rule 6A of CPC. Damodhar Narayan
Sawale v. Shri Tejrao Bajirao Mhaske, 2023 LiveLaw (SC) 404
(https://www.livelaw.in/top-stories/dispute-between-defendants-regarding-validity-of-
sale-deed-cant-be-considered-in-suit-for-possession-instituted-by-plaintiff-supreme-
court-228130) : 2023 INSC 491
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Code of Civil Procedure, 1908; Order VIII Rule 6–A (4) - A counter-claim is a virtually
a plaint and an independent suit. (Para 12) ESSEMM Logistics v. DARCL Logistics
Ltd; 2023 LiveLaw (SC) 378 (https://www.livelaw.in/supreme-court/supreme-court-
carriage-by-road-act-consignment-loss-damage-227709) : AIR 2023 SC 2140 : 2023
INSC 471

Order 9 Rule 9 - Decree against plaintiff by default bars fresh suit.

Code of Civil Procedure, 1908; Order IX Rule 9 - If the right of redemption is not
extinguished, the provision like Order IX Rule 9 of the CPC will not debar the
mortgagor from filing a second suit because as in a partition suit, the cause of action
in a redemption suit is a recurring one. The cause of action in each successive action,
until the right of redemption is extinguished or a suit for redemption is time barred, is
a different one. (Para 61, 62) Ganesh Prasad v. Rajeshwar Prasad, 2023 LiveLaw (SC)
189 (https://www.livelaw.in/top-stories/cause-of-action-for-redemption-suit-is-
successive-second-suit-by-mortgagor-not-barred-by-default-dismissal-of-first-suit-
supreme-court-223852) : 2023 INSC 228

Code of Civil Procedure, 1908; Order 9 Rule 9 - It was not the intention of the
Legislature to bar the subsequent suits between the parties and the same was
evident by the qualifying words, “same cause of action”. Therefore, everything
depends upon the cause of action and in case the subsequent cause of action arose
from a totally different bunch of facts, such suit cannot be axed by taking shelter to
the provision of Order IX Rule 9 of CPC. (Para 52) Ganesh Prasad v. Rajeshwar
Prasad, 2023 LiveLaw (SC) 189 (https://www.livelaw.in/top-stories/cause-of-action-
for-redemption-suit-is-successive-second-suit-by-mortgagor-not-barred-by-default-
dismissal-of-first-suit-supreme-court-223852) : 2023 INSC 228

Order 17 Rule 3 - Court may proceed notwithstanding either party fails to produce evidence,
etc.

Code of Civil Procedure, 1908; Order 17 Rule 3 - The power conferred on Courts
under Rule 3 of Order 17 of the CPC to decide the suit on the merits for the default of
a party is a drastic power which seriously restricts the remedy of the unsuccessful

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party for redress. It has to be used only sparingly in exceptional cases. Physical
presence without preparedness to co-operate for anything connected with the
progress of the case serves no useful purpose in deciding the suit on the merits and
it is worse than absence. There must be some materials for a decision on the merits,
even though the materials may not be technically interpreted as evidence.
Sometimes the decision in such cases. (Para 52) Prem Kishore v. Brahm Prakash,
2023 LiveLaw (SC) 266 (https://www.livelaw.in/tags/prem-kishore-vs-brahm-kishore-
2023-livelaw-sc-266) : 2023 INSC 317

Order 20 Rule 18 - Decree in suit for partition of property or separate possession of a share
therein

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887;
Section 121 - Instrument of Partition - For the purpose of interpreting Section 121 of
the Land Revenue Act, the Court can safely draw an analogy from the provisions
contained in Order XX, Rule 18 C.P.C. which pertain to the procedure to be followed
on the passing of the decree for the partition of the property. (Para 28) Jhabbar
Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 (https://www.livelaw.in/supreme-
court/supreme-court-interpretation-of-section-121-punjab-land-revenue-act-order-xx-
rule-18-cpc-partition-decree-procedure-226838) : AIR 2023 SC 2074 : 2023 INSC 373

Code of Civil Procedure, 1908; Order XX Rule 18 - Punjab Land Revenue Act, 1887;
Section 121 - When a decision is taken by the Revenue Officer under Section 118 on
the question as to the property to be divided and the mode of partition, the rights and
status of the parties stand decided and the partition is deemed to have completed. At
this stage, such decision is required to be treated as the “decree”. (Para 30) Jhabbar
Singh v. Jagtar Singh, 2023 LiveLaw (SC) 324 (https://www.livelaw.in/supreme-
court/supreme-court-interpretation-of-section-121-punjab-land-revenue-act-order-xx-
rule-18-cpc-partition-decree-procedure-226838) : AIR 2023 SC 2074 : 2023 INSC 373

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Order 21 - Execution of Decrees and Orders

Code of Civil Procedure, 1908; Order XXI - Liability to pay interest on money
deposited by judgment debtor-f the amount is deposited, or paid to the decree holder
or person entitled to it, the person entitled to the amount cannot later seek interest on
it-This is a rule of prudence, inasmuch as the debtor, or person required to pay or
refund the amount, is under an obligation to ensure that the amount payable is
placed at the disposal of the person entitled to receive it. Once that is complete (in
the form of payment, through different modes, including tendering a Banker’s
Cheque, or Pay Order or Demand Draft, all of which require the account holder /
debtor to pay the bank, which would then issue the instrument) the tender, or
‘payment’ is complete. (Para 31) K.L. Suneja v. Manjeet Kaur Monga, 2023 LiveLaw
(SC) 68 (https://www.livelaw.in/top-stories/supreme-court-directs-all-courtstribunals-
to-mandatorily-deposit-amounts-deposited-by-parties-with-registry-in-a-bankfinancial-
institution-220388) : AIR 2023 SC 705 : 2023 INSC 89

Order 21 Rule 84 - Deposit by purchaser and re-sale on default

Code of Civil Procedure, 1908; Order XXI Rule 84, 85 - The deposit of 25% of the
amount by the purchaser other than the decree-holder is mandatory and the full
amount of the purchase money must be paid within fifteen days from the date of the
sale - If the payment is not made within the period of fifteen days, the Court has the
discretion to forfeit the deposit, and there the discretion ends but the obligation of
the Court to resell the property is imperative - The provisions of the rules requiring the
deposit of 25 per cent of the purchase money immediately, on the person being
declared as a purchaser and the payment of the balance within 15 days of the sale
are mandatory and upon noncompliance with these provisions there is no sale at all.
The rules do not contemplate that there can be any sale in favour of a purchaser
without depositing 25 per cent of the purchase money in the first instance and the
balance within 15 days. When there is no sale within the contemplation of these
rules, there can be no question of material irregularity in the conduct of the sale. Non-
payment of the price on the part of the defaulting purchaser renders the sale
proceedings as a complete nullity. (Para 8-9) Gas Point Petroleum India Ltd. v.
Rajendra Marothi, 2023 LiveLaw (SC) 89 (https://www.livelaw.in/top-stories/order-21-
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rule-84-cpc-auction-purchaser-deposit-gas-point-petroleum-india-limited-vs-rajendra-
marothi-2023-livelaw-sc-89-221264) : AIR 2023 SC 833 : (2023) 3 SCC 629 : (2023) 2
SCR 326 : 2023 INSC 119

Order 21 Rule 102 - Rules not applicable to transferee pendente lite

Code of Civil Procedure, 1908; Order XXI Rule 102 - the Executing Court would have
to determine upon evidence whether the transfer of immovable property which was
made post dismissal of suit, was made after institution of appeal/further litigation or
not, in order to attract the principle of lis pendens. Jini Dhanrajgir v. Shibu Mathew,
2023 LiveLaw (SC) 450 (https://www.livelaw.in/supreme-court/supreme-court-lis-
pendens-rule-102-order-xxi-civil-procedure-code-executing-court-jurisdiction-229061)
: AIR 2023 SC 2567 : 2023 INSC 544

Order 22 Rule 2 - Procedure where one of several plaintiffs or defendants dies and right to sue
survives.

Code of Civil Procedure, 1908; Order XXII Rule 2 - Suit can't be held to be abated in
the event of death of one of the defendants, when the estate/interest was being fully
and substantially represented in the suit jointly by the other defendants along with
deceased defendant and when they are also his legal representatives - In such cases,
by reason of non-impleadment of all other legal heirs consequential to the death of
the said defendant, the defendants could not be heard to contend that the suit should
stand abated on account of non-substitution of all the other legal representatives of
the deceased defendant. (Para 36) Shivashankara v. H.P. Vedavyasa Char, 2023
LiveLaw (SC) 261 (https://www.livelaw.in/tags/shivashankara-vs-hp-vedavyasa-char-
2023-livelaw-sc-261)

Order 22 Rule 3 – Procedure in case of death of one of several plaintiffs or of sole plaintiff.

Code of Civil Procedure, 1908; Order XXII Rule 3 – Advocate appearing for the
Defendant could have signed the compromise petition without an express consent. It
is an imperative duty of the Court to ascertain the genuineness and lawfulness of the

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compromise deed. (Para 100) Prasanta Kumar Sahoo v. Charulata Sahu, 2023
LiveLaw (SC) 262 (https://www.livelaw.in/tags/prasanta-kumar-sahoo-ors-v-
charulata-sahu-ors-2023-livelaw-sc-262) : 2023 INSC 319

Code of Civil Procedure, 1908; Order XXII Rule 3 - When a claim in suit has been
adjusted wholly or in part by any lawful agreement or compromise, the compromise
must be in writing and signed by the parties and there must be a completed
agreement between them-. In a suit for partition of joint property, a decree by consent
amongst some only of the parties cannot be maintained. (Para 93, 94) Prasanta
Kumar Sahoo v. Charulata Sahu, 2023 LiveLaw (SC) 262
(https://www.livelaw.in/tags/prasanta-kumar-sahoo-ors-v-charulata-sahu-ors-2023-
livelaw-sc-262) : 2023 INSC 319

Order 41 Rule 5 - Stay by Appellate Court. Stay by Court which passed the decree.

Code of Civil Procedure, 1908; Order 41 Rule 5 - Unless the appeal is listed and there
is an interim order, the mere filing of the appeal would not operate as a stay. Sanjiv
Kumar Singh v. State of Bihar, 2023 LiveLaw (SC) 63 (https://www.livelaw.in/top-
stories/supreme-court-order-xli-rule-5-appeal-stay-decree-sanjiv-kumar-singh-vs-
state-of-bihar-2023-livelaw-sc-63-220100)

Order 41 Rule 23 - Remand of case by Appellate Court.

Code of Civil Procedure, 1908; Order 41 Rule 23 - the scope of remand in terms of
Rule 23 of Order XLI CPC is extremely limited. (Para 11.2) Sirajudheen v. Zeenath,
2023 LiveLaw (SC) 145 (https://www.livelaw.in/top-stories/cpc-order-41-rule-23a-
appellate-court-remand-de-novo-trial-supreme-court-222692) : 2023 INSC 173

Code of Civil Procedure, 1908; Order 41 Rule 23 - There can be no doubt with
respect to the settled position that the Court to which the case is remanded has to
comply with the order of remand and acting contrary to the order of remand is
contrary to law. In other words, an order of remand has to be followed in its true

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spirit. (Para 7) Shivashankara v. H.P. Vedavyasa Char, 2023 LiveLaw (SC) 261
(https://www.livelaw.in/tags/shivashankara-vs-hp-vedavyasa-char-2023-livelaw-sc-
261)

Code of Civil Procedure, 1908; Order 41 Rule 23, 23A, 24 and 25 - Remand - An
order of remand prolongs and delays the litigation and hence, should not be passed
unless the appellate court finds that a re-trial is required, or the evidence on record is
not sufficient to dispose of the matter for reasons like lack of adequate opportunity
of leading evidence to a party, where there had been no real trial of the dispute or
there is no complete or effectual adjudication of the proceedings, and the party
complaining has suffered material prejudice on that account. Where evidence has
already been adduced and a decision can be rendered on appreciation of such
evidence, an order of remand should not be passed remitting the matter to the lower
court, even if the lower court has omitted to frame issue(s) and/or has failed to
determine any question of fact, which, in the opinion of the appellate court, is
essential. The first appellate court, if required, can also direct the trial court to record
evidence and finding on a particular aspect/issue in terms of Rule 25 to Order XLI,
which then can be taken on record for deciding the case by the appellate court.
Arvind Kumar Jaiswal v. Devendra Prasad Jaiswal Varun, 2023 LiveLaw (SC) 112
(https://www.livelaw.in/top-stories/supreme-court-remand-order-scope-arvind-
kumar-jaiswal-d-vs-devendra-prasad-jaiswal-varun-2023-livelaw-sc-112-221658)

Order 41 Rule 23A - Remand in other cases

Code of Civil Procedure 1908; Order 41 Rule 23A - Necessary requirement for
remand under Rule 23A is that the decree is reversed in appeal and a re-trial is
considered necessary - the reversal has to be based on cogent reasons and for that
matter, adverting to and dealing with the reasons that had prevailed with the Trial
Court remains a sine qua non. (Para 11.2) Sirajudheen v. Zeenath, 2023 LiveLaw (SC)
145 (https://www.livelaw.in/top-stories/cpc-order-41-rule-23a-appellate-court-
remand-de-novo-trial-supreme-court-222692) : 2023 INSC 173

https://www.livelaw.in/supreme-court/supreme-court-cpc-code-of-civil-procedure-digest-235650 13/15
8/20/23, 5:13 PM Supreme Court Half Yearly Digest 2023 -Code Of Civil Procedure, 1908

Order 47 Rule 1 - Application for review of judgment.

Code of Civil Procedure, 1908; Order 47 Rule 1 - Is the subsequent overruling of a

precedent relied on in a judgment a ground to review it ? - Supreme Court 2-judge
bench delivers split verdict - Justice MR Shah holds subsequent overruling is a
ground to review - Justice BV Nagarathna disagrees. Govt. of NCT of Delhi v. K.L.
Rathi Steels Ltd; 2023 LiveLaw (SC) 204 (https://www.livelaw.in/top-stories/should-
judgment-reviewed-followed-precedent-later-overruled-supreme-court-bench-delivers-
indore-development-pune-municipal-224144) : 2023 INSC 259

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