Civil-Procedure-Code-And-Limitation Act

UNIT - I
CODIFICATION OF CIVIL PROCEDURE CODE
The history of procedure in India really begins with the year 1859, when the
first uniform Code of Civil Procedure was enacted. Before 1859, the Law of Civil
Procedure was in a chaotic condition. Not only was there no uniform law of Civil
Procedure applicable to the whole of the country, but in the same area different
systems of procedure prevailed. The 1859 code was soon found to be ‘ill-drawn,
ill-arranged and incomplete. The next code regulating court procedure in civil
matters came in 1873. This code repealed the 1859 code. This was followed by
the Code of 1882, which in turn was superseded by the present Code, i.e., the
Code of Civil Procedure Code, 1908.
As the present code was enacted as far back as 1908, there were
persistent demands of judicial reforms, mainly with a view to expedite disposal
of suits and proceedings. The matter was considered in detail by the Law
Commission, and the recommendations made by the Commission were
incorporated in a Bill, which was finally passed in 1976, in the form of the Code
of Civil Procedure (Amendment) Act, 1976, which introduced major changes in
the Code.
Thereafter, the Civil Procedure Code was amended by the Code of Civil
Procedure (Amendment) Act, 1999, and once again by the Code of Civil
Procedure (Amendment) Act, 2002. Both these amendments came into force on
1st July, 2002.
The preamble to the Code shows that the object of the present Code is to
amend, as well as consolidate, the procedure of Civil Courts. The Supreme
Court has held that its provisions should be interpreted as forming a complete
code by itself, exhaustive of matters dealt with by it.
The civil procedure code came into force on 1st January, 1909.
It is further provided that in the absence of any specific provision to the

contrary, nothing in the code is to be deemed to limit or otherwise affect –
a. Any special or local law in force, or

b. Any special jurisdiction of power, or
c. Any special form or procedure prescribed by or under any other law in
force.
INTRODUCTION TO CPC
All the members of civilized society have several rights and corresponding
obligations. Such rights and obligations would become meaningless unless they
are precisely determined and enforced. This is sought to be achieved by two sets
of laws: substantive laws and procedural or Adjective Laws. Substantive Laws
determine the right and obligations of the members of a society whereas
procedural laws prescribe the procedures for their enforcement.
Civil Procedure Code Page 1
Although it is sometimes said that substantive laws are more important
than procedural laws, it is to be remembered that the efficacy of substantive
laws depends, to a large extent, upon the equality of the procedural laws. Thus,
unless the procedure for enforcing a right is simple, effective, expeditious and
inexpensive, substantive laws, however well they may have been made, would
fail in their purpose and object.
PRINCIPAL FEATURES OF THE CIVIL PROCEDURE CODE

The chief feature of the Code is the distinction drawn between what is term the
body of the code and rules. The body of the code (which runs into 158 sections)
creates jurisdiction, and is unalterable except by the Legislature, but the Rules,
which indicate the mode in which such jurisdiction is to be exercised, can be
altered or amended by a High Court, such alterations or amendments having
force or effect within the local limits of the jurisdiction of that High Court. The
body of the code, which is expressed in more general terms, has to be read in
conjunction with the more particular provisions of the Rules. If there is a clear
conflict between the two, the provisions of the code will prevail.
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SUIT
Scope: sections 26 to 35 – B and Orders 1 to 20 of First Schedule deal with the
procedure relating to suits, Orders 1 and 2 provide for parties to suits and
frame of suit.
SUIT: MEANING: A suit is a civil proceeding instituted by the presentation of a

plaint.
ESSENTIALS TO SUIT
There are four essentials of a suit.
(i) Opposing parties;

(ii) Subject-matter in dispute;
(iii) Cause of action; and
(iv) Relief
PARTIES TO SUITS: ORDER 1
(a) General
Order 1 deal with the parties to a suit. It also contains provisions for addition,
deletion and substitution of parties, joinder, mis-joinder and non-joinder of
parties and objection as to mis-joinder and non-joinder. It also to some extent,
deals with joinder of causes of action. A provision is also made for
“representative suit”.

(b) Joinder of parties
The question of joinder of parties arises only when an act is done by two
or more persons or it affects two or more persons. Thus, if ‘A’ assaults ‘B’
and ‘C’, or A and B assault C, the question of joinder of plaintiffs or
defendants arises.
(i) Joinder of plaintiffs: Rule 1
Rule 1 provides for joinder of plaintiffs. It states that all persons may be
joined in one suit as plaintiffs if the following two conditions are satisfied:
(i) The right to relief alleged to exist in each plaintiff arises out
of the same act or transaction; and
(ii) The case is of such a character that, if such persons
brought separate suits, any common questions of law or
fact would arise.
Both the above conditions should be fulfilled.
The primary object of Rule 1 is to avoid multiplicity of proceedings and

unnecessary expenses.
(2) Joinder of defendants: Rule 3
Rule 3 provides for joinder of defendants. It states that all persons may be
joined in one suit as defendants if the following two conditions are satisfied:
(i) The right to relief alleged to exist against them arises out of the same act
or transaction; and
(ii) The case is of such a character that, if separate suits were brought
against such persons, any common question of law or fact would
arise.
The word “and” makes it clear that both the conditions are cumulative and not
alternative.
The underlying object of Rule 3 is to avoid multiplicity of suits and

needless expenses.
RULE 6: The plaintiff may join in one suit all or any of the persons severally or
jointly and severally liable on any contract. Similarly, where the plaintiff is in
doubt as to the person from whom he is entitled to obtain redress, he may join
two or more defendants in one suit.
Rule 2 and 3 A
Where it appears to the court that any joinder of plaintiffs or defendants may
embarrass or delay the trial of the suit, it may pass an order for separate trials.
Similarly, the court may give judgment for one or e more of the plaintiffs as may
be found entitled to relief against one or more of the defendants as may be
found liable.

A necessary party is one whose presence is indispensable to the constitution of
the suit, against whom the relief is sought and without whom no effective order
can be passed. A proper party is one in whose absence an effective order can be
passed, but whose presence is necessary for a complete and final decision on
the question involved in the proceeding. In other words, in absence of a
necessary party no decree can be passed, while in absence of a proper party a
decree can be passed so far as it relates to the parties before the court. His
presence, however, enables the court to adjudicate more “effectually and
completely”.
Eg:- in a suit for partition, all sharers are necessary parties.
A subtenant is only a proper party in a suit for possession by the landlord

against his tenant.
Non-joinder or misjoinder of parties: Rule 9
Where a person, who is a necessary or proper party to a suit, has not been
joined as a party to the suit, it is a case of non-joinder. Conversely, if two or
more persons are joined as plaintiffs or defendants in one suit in contravention
of Order 1 Rules 1 and 3 respectively and they are neither necessary nor proper
parties, it is a case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non-
joinder or misjoinder of parties. Nor a decree passed by a competent court on
merits will be set aside on the ground of mis-description of the defendant.
However, this rule does not apply in case of non-joinder of a necessary party.
No decree or order under Section 47 of the Code can be reversed or

substantially varied in appeal, inter alia, on account of any misjoinder or non-
joinder of parties, not affecting the merits of the case or the jurisdiction of the
court, pro-vided that such party is not a necessary party.
Objections as to non-joinder or misjoinder of parties: Rule 13
All objections on the ground of non-joinder or mis-joinder of parties must be

taken at the earliest opportunity, otherwise they will be deemed to have been
waived.
Striking out, adding or substituting parties: Rule 10
Rule 10(1) of Order 1 deals with striking out, addition and substitution of
parties.
(i) Adding or substituting plaintiffs
If after the filing of the suit, the plaintiff discovers that he cannot get the relief
he seeks without joining some other person also as a plaintiff is entitled to the
relief, as prayed for, an application for addition or substitution of the plaintiff
can be made.

To bring a case within this sub-rule, the following three conditions must be
satisfied.
(i) The suit has been filed in the name of a wrong person as plaintiff;
(ii) Such mistake must be bona fide; and
(iii) The substitution or addition of the plaintiff is necessary for the
determination of the real matter in dispute.
Illustrations
C, the agent of A, under a bona fide mistake files a suit against B in
his own name. The court can substitute the name of principal A for
that of the original plaintiff C. as it thinks just. No person can be
added as a plaintiff without his consent.
(ii) Striking out or adding parties
Sub-rule (2) of Rule 10 empowers the court to add any person as a
party to the suit on either of the two grounds:
(i) Such person ought to have been joined as a plaintiff or a
defendant, and is not so joined; or
(ii) Without his presence, the question involved in the suit cannot be
completely decided.
The purpose of this provision is to bring before the court, at the same time, all
the persons interested in the dispute so that the dispute may be finally
determined at the same time in the presence of all the parties without the delay,
inconvenience and expense of several actions and trials and inconclusive
adjudications.
Power and duty of court
Two considerations especially will have to be kept in mind before exercising

powers, namely, the plaintiff is a dominus litis. He is the best judge of his
interest.
If the court is satisfied that the presence of a particular person is necessary to

effectively and completely adjudicate the entire dispute between the parties,
irrespective of the wishes of the plaintiff, the court may exercise the power and
join a person as party to the suit.
The power may be exercised by the court at any stage of the proceedings either
upon an application of the parties or even suo motu (of its own motion) and on
such terms and conditions as may appear to the court to be just.
In Anil kumar v. shivnath,(1995) 3 SCC 147 considering the provisions of Order

1 Rule 10(2), the Supreme Court observed that “though the court may have
power to strike out the name of a party improperly joined or add a party either
on application or without application of either party, but the condition
precedent is that the court must be satisfied that the presence of such party to
be added, would be necessary in order to enable the court to effectually and
completely adjudicate upon and settle all questions involved in the suit.

Leading case of Razia Bagum v. sahebzadi anwar Begum, the Supreme Court
has laid down the following principles regarding the power of the court to add
the parties under Rule 10(2) of the code:
(1) That the question of addition of pities under Rule 10 of order 1 of the
code of Civil Procedure, is generally not one of initial jurisdiction of the
court, but of a judicial discretion which has to be exercised in view of all
the facts and circumstances of a particular case; but in some cases, it
may raise controversies as to the power of the court, in contradistinction
to its inherent jurisdiction, or, in other words, of jurisdiction in the
limited sense in which it is used in Section 115 of the code;
(2) That in a suit relating to property, in order that a person may be added
as a party, he should have a direct interest as distinguished from a
commercial interest in the subject-matter of the litigation;
(3) Where the subject-matter of a litigation is a declaration as regards status
or a legal character, the rule of present or direct interest may be relaxed
in a suitable case where the court is of the opinion that by adding that
party, it would be in a better position effectually and completely to
adjudicate upon the controversy; (and)
(4) The cases contemplated in the last proposition have to be determined in
accordance with the statutory provisions of Sections 42 and 43 of the
Specific Relief Act.
Effect 10 (4) & 10 (5)

Where any person is added as defendant in the suit, as regards him, the suit
shall be deemed to have been instituted from the date he is joined as a party.
Where a defendant is added, the plaint shall be amended and the
amended copies of the summons and the plaint must be served on the new
defendant.
Transposition of parties
In transposition, a person who is already on record as a plaintiff or a defendant
seeks his transposition from one capacity to another capacity; i.e. from plaintiff
to defendant or vice versa.
A court can, therefore, order transposition of parties in an appropriate
case. This can be done either on an application by a party or by a court suo
motu. No such transposition, however, can be allowed if it alters the character
of the suit or causes prejudice to the opposite party.
REPRESENTATIVE SUIT: RULE 8

Definition
“A ‘representative suit’ is a suit filed by or against one or more persons
on behalf of themselves and others having the same interest in the suit.”
Object
Order 1 Rule 8 of the Code has been framed in order to save time and expense,
to ensure a single comprehensive trial of question in which numerous persons
are interested and to avoid harassment to parties by a multiplicity of suits.
To bring a case within the provisions of Order 1 Rule 8 of the Code of Civil
Procedure all the members of a class should have a common interest in a

subject-matter and common grievance and the relief sought should, in its
nature, be beneficial to all.
Enabling provision
It does not debar a member of a community from maintaining a
suit in his own right in respect of a wrong done to him.
Conditions
Numerous persons The first requirement for the application of Rule 8 is that
numerous persons must be interested in the suit. It has an ordinary meaning
implying a group of persons.
Same interest The interest must be common to them all or they must have a
common grievance which they seek to get redressed. Community of interest is,
therefore, essential and it is a condition precedent for bringing a representative
suit.
Permission by court The third requirement for the application of the rule is
that the permission must have been granted or the direction must have been
given by the court. If this essential condition is not fulfilled, the suit does not
become a representative one.
Notice As stated above, where a person sues or is sued, or defends a suit on
behalf of him and others, any decree that may be passed in the suit is binding
upon them all, unless such decree has been obtained by fraud or collusion. It
is, therefore absolutely necessary that the notice of the suit should be given to
all the parties who would be bound by the decree, for otherwise a person might
be prejudicially affected by such decree even though he was not on record and
not aware of the suit. The issue of notice of the institution of the suit is, thus,
peremptory, and if it is not given, the decree will bind only those parties who
are on record.
Addition or substitution of parties Sub-rule (3) of Rule 8 provides that any
person on whose behalf a suit is filed or defended under sub-rule (1) may apply
to the court to be added as a party to the suit. Sub-rule (5) as added by the
Amendment Act of 1976 now provides that where any person suing in a
representative suit does not proceed with due diligence in the suit or defence,
the court may substitute in his place any other person having the same interest
in the suit.
Non-compliance: Effect Rule 8 is mandatory and must be complied with. A
suit filed without complying with the provisions of Rule 8 is not maintainable.
Likewise, a decree passed in a representative suit without observing the
conditions prescribed by Rule 8 will not bind the persons represented in the
suit, though it will bind the persons joined as parties.
Withdrawal or compromise under sub-rule (4), no part of the claim in a
representative suit can be abandoned under sub-rule (3) of Rule 1 of Order 23
and no agreement, compromise or satisfaction can be recorded in any such suit
under Order 23 Rule 3, unless the court has given, at the plaintiff’s expense,
notice to all persons so interested in the manner specified in sub-rule (2) either
by personal service or by public advertisement. Similarly, Order 23 Rule 3-B as
inserted by the Amendment Act of 1976 provides that no agreement or
compromise can be entered in a representative suit without the leave of the
court.

Decree A decree passed in a representative suit is binding on all persons on
whose behalf, or for whose benefit, such suit is instituted or defended.
Resjudicata It applicable to representative suit even if any person dies such
suit will not abate and other person or persons interested in the suit may
proceed with the suit or may apply to be added as plaintiff or plaintiffs.
Costs
In a representative suit also, parties on record may be made liable to pay costs.
Execution A decree passed in a representative suit can be executed like any
other decree passed in a regular suit.
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FRAME OF SUIT
Order 2 deal with the frame of suit and it contains 7 rules.
Inclusion of whole claim: Rules 1-2
Every suit must include the whole of the plaintiff’s claim in respect of the
cause of action, and, as far as practicable, all matters in dispute between
the parties be disposed of finally.
Splitting of claim
Order 2 Rule 2 lays down that every suit must include the whole of the
claim to which the plaintiff is entitled in respect of the cause of action
and where the plaintiff omits to sue for or intentionally relinquishes any
portion so omitted or relinquished.
Object
The provision of Order 2 Rule 2 is based on the cardinal principle of law
that a defendant should not be vexed twice for the same cause.
The Supreme Court has also stated that Order 2 Rule 2 is based on
“cardinal principal that the defendant should not be vexed twice for the
same cause.
Kunjan Nair v. Narayanan Nair, (2004) 3 SCC 277:
Illustrations
A lets a house to B at a yearly rent of Rs 1200. The rent for the whole of
the years 1995, 1996 and 1997 is due and unpaid. A sues B in 1998
only for the rent due for the year 1996. A shall not afterwards sue B for
the rent due for 1995 or 1997.
Conditions
To make the rule applicable, the following three conditions must be
satisfied, namely:
Same cause of action
In order to apply the provisions of Order 2 Rule 2 to bar the second suit,
it must be proved that the second suit must have been based on the
same cause of action on which the previous suit was based. Unless this
condition is fulfilled, there could be no bar to the subsequent suit.
State of Maharashtra v. National Construction Co., (1996) 1 SCC 735:
AIR 1996 SC 2367.What the rule requires is the unity of all claims based
on the same cause of action in one suit. It does not contemplate unity of
distinct and separate causes of action. Is the subsequent suit is based on
a different cause of action, the rule will not operate.
One of several reliefs

The rule applies only where the plaintiff is entitled to more than one relief
in respect of the same cause of action and he omits to sue for all such
reliefs.
Eg where the plaintiff files a suit for damages for breach of contract and
omits to claim a portion of damages for which he is entitled, a
subsequent suit for such portion is barred.
Leave of court
The rule applies only when leave of the court is not obtained. Therefore,
if the omission has been with the permission of the court, the
subsequent suit for the same relief in respect of the same cause of action
is not barred. Such leave need not be express and it may be inferred from
the circumstances of the case. It can be obtained at any stage.
Principles
In Mohd. Khalil v. Mahbub Ali, AIR 1949 PC 78: 75 IA 121 after
considering several cases on the point, the Privy Council laid down the
following principles governing bar to a subsequent suit under this rule:
(1) The correct test in cases falling under Order 2 Rule 2, is
“whether the claim in the new suit is in fact founded upon a
cause of action distinct from that which was the foundation of
the former suit”.
(2) The cause of action means every fact which will be necessary
for the plaintiff to prove if traversed in order to support his
right to the judgment.
(3) If the evidence to support the two claims is different, then the
causes of action are also different.
(4) The causes of action in the two suits may be considered to be
the same if in substance they are identical.
(5) The cause of action has no relation whatever to the defence
that may be set up by the defendant nor does it depend upon
the character of the relief prayed for by the plaintiff. It refers to
the media upon which the plaintiff asks the Court to arrive at a
conclusion in his favour.
Applicability to other proceedings
The provisions of Order 2 Rule 2 apply only to suits and not to

appeals, execution proceedings, and arbitration proceedings or to
a petition under Article 226 of the Constitution of India.
Joinder of claims: Rules 4-5
Rules 4 and 5 provide for joinder of claims. Rule 4 lays down that
in a suit for the recovery of immovable property, a plaintiff is not
entitled, without the leave of the court, to join any claim, except:
(a) Claims for mesne profits or arrears of rent in respect of

the property claimed or any part thereof;

(b) Claims for damages for breach of any contract under
which the property or any part thereof is held; and
(c) Claims in which the relief sought is based on the same
cause of action.
Rule 5 deals with suits by or against three classes of persons, viz., executors,
administrators and heirs. It provides that no claim by or against the aforesaid
persons in their representative capacity shall be joined with claims by or
against them personally in the same suit, except:
(a) Where the personal claims arise with reference to the estate he
represents; or
(b) Where he was entitled to or liable for, those claims jointly with the
deceased whom he represents.
The primary object of these provisions is to prevent a representative from

intermingling the assets of his testator with his own estates.
Joinder of causes of action: Rules 3, 6
Rule 3 deals with joinder of causes of action. This rule enables joinder of
several causes of action in one suit in certain circumstances subject to
the provisions of the code. It contemplates the following four types of
situations.
(I) One plaintiff, one defendant and several causes of action. Where
there is only one plaintiff and one defendant, the plaintiff is at
liberty to unite in the same suit several causes of action. But if it
appears to the court that the joinder of causes of action may
embarrass or delay the trial or is otherwise inconvenient, the court
may order separate trials.
(iii) Joinder of plaintiffs and causes of action
Where there are two or more plaintiffs and two or more causes
of action, they may be joined in one suit only if the following
two conditions are fulfilled:
(1) The causes of action must have arisen from the same act or
transaction; and
(2) Common questions of law or fact must have been involved.
Therefore, where the plaintiffs are not jointly interested in several

causes of action which have been joined in one suit and the right to relief does
not arise from the same act or transaction or where common questions of law or
fact or not involved, the suit will be bad for misjoinder of plaintiffs and causes
of action.
Joinder of defendants and causes of action
Where there is one plaintiff and two or more defendants and several causes of
action, the plaintiff may unite in the same suit several causes of action against
those defendants, if the defendants are jointly interested in the causes of

action. But this provision also must be read subject to Order 1 Rule 3, and
therefore, two or more defendants can be joined in one suit, provided the
following two conditions are fulfilled.
(1) The relief claimed must have been based on the same act or transaction;
and
(2) Common questions of law or fact must have been involved.
Where in one suit, two or more defendants have been joined against whom
the causes of action are separate and therefore they are not jointly liable to
the plaintiff in respect of those causes of action and the right to relief
claimed is not based on the same act or transaction or where common
questions of act or law are not involved., the suit will be bad for misjoinder
of defendants and causes of action, technically called as multifariousness.
Joinder of plaintiffs, defendants and causes of action
Where there are two or more plaintiffs, two or more defendants and several
causes of action, the plaintiffs may unite the causes of action against the
defendants in the same suit only when all the plaintiffs are jointly interested in
the causes of action and the defendants are also jointly interested in the causes
of action. If the plaintiffs are not jointly interested in the causes of action, the
suit will be bad for misjoinder of plaintiffs and causes of action. On the other
hand, if the defendants are not jointly interested in the causes of action, the
suit will be bad for multifariousness and if neither the plaintiffs nor the
defendants are jointly interested in the causes of action and misjoinder of
defendants and causes of action.
Objections as to misjoinder of causes of action: Rule 7
All objections on the ground of misjoinder of causes of action must be taken

at the earliest opportunity, otherwise they will be deemed to have been
waived. Similarly, no decree or order under Section 47 of the Code can be
reversed or substantially varied in appeal, inter alia, on account of any mis-
joinders or non-joinder of causes of action not affecting the merits of the
case or the jurisdiction of the court.
INSTITUTION OF SUIT: ORDER IV

Section 26 and Order IV provide for institution of suits.
Plaint: Meaning
“A private memorial tendered to a court in which a person sets forth his

cause of action; the exhibition of an action in writing.
Presentation of plaint: section 26, or. 4 R. 1
Every suit must be instituted by the presentation of a plaint in duplicate or

in such other manner as may be prescribed by the code by the plaintiff
himself or by his advocate or by his recognized agent or by any person duly
authorized by him.

Time and place of presentation
A plaint must be presented to the court or such officer as it appoints in that

behalf. Generally the presentation of a plaint must be on a working day and
during the office hours. A judge, therefore, may accept a plaint at his
residence or at any other place even after office hours, though he is not
bound to accept it. But if not too inconvenient, the judge must accept the
plaint, if it is the last day of limitation. Thereafter, the particulars of a suit
will be entered by the court in a book kept for the said purpose, called the
register of civil suits. After the presentation, the plant will be scrutinized by
the Stamp Reporter. If there are defects, the plaintiff or his advocate will
remove them. Thereafter the suit will be numbered.
Particulars in plaint
Every plaint must contain necessary particulars.
Register of suits
Particulars of every suit will be entered in the register of civil suits.
Suit by indigent persons
Order 33 of the code deals with suits by indigent persons.
Suit against minor
A suit against a minor can be said to have been instituted when a plaint is
presented and not when a guardian ad litem is appointed.
Suit against dead person
A suit against a person who is dead at the time of institution thereof is

honest and of no legal effect.
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Bars of suit
Section 21: Objection as to jurisdiction:
Scope of section: The general rule is that a decree passed by a Court without
jurisdiction is Nullity. Section 21 deals with defects relating
to territorial jurisdiction. When a case has been tried by a
court on merits and judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it
has resulted in failure of justice
Application of the section: the objections contemplated by section 21 are the

objections based on the alleged infringement of the
provisions of section 16 to 20 of C.P.C

Under Section 21 (1), no objection as to the place of suing will be allowed by an
appellate or revisional court unless the following three
conditions are satisfied.
a. The objection was taken in the court of first instance.

b. It was taken at the earliest possible opportunity and in cases where
issues are settled at or before settlement of issues and
c. There has been a consequent failure of justice.
All three conditions must coexist.
Case law :
Kiran Singh V. Chaman paswan AIR 1954 SC 340 at P.342
“when a case had been tried by a court on the merits and judgment
rendered, it should not be liable to be reversed purely on technical grounds,
unless it had resulted in failure of justice, and the policy of the legislature
has been to treat objection to both territorial and pecuniary jurisdiction as
technical and not open to consideration by an appellate court, unless there
has been a prejudice on merits”
Objection as to pecuniary jurisdiction {section 20 (2)}
No objection as to over valuation or undervaluation will be allowed by any

appellate or revisional court unless the following three conditions exist:
(i) The objection was taken in the court of first instance.

(ii) It was taken at the earliest possible opportunity and in cases where
issues are settled at or before settlement of issues and
(iii) There has been a consequent failure of justice.
All three conditions must coexist.
Objection as to subject matter of jurisdiction
A court cannot adjudicate upon a subject-matter, which does not fall within its
province as limited or defined by law. A Jurisdiction as to the subject matter of
a suit is regarded as essential, for jurisdiction over the subject matter is a
condition precedent or a sine qua non to the acquisition of authority over the
parties and the matter, and if the court does not possess that jurisdiction, a
judgment given, order made or decree passed is absolutely null and void, which
may be set aside in appeal, review or revision. Its validity can be challenged
even in collateral proceedings.
Objection as to territorial competence of an executing court {section 20

(3)}
After Amendment Act, 1976 objections as to territorial competence of court

executing decree should be disallowed unless such objection was taken at the
earliest possible opportunity and unless there has been a consequent failure of
justice.
Section 21 A. Baron suit to set aside decree on objection as to place of
suing
This section, as inserted by the Amendment Act of 1976, now specifically

provides that no substantive suit can be filed to set aside a decree passed by a
court on an objection as to the place of suing.
Former suit: former suit means a suit which has been decided prior to the
decision in the suit in which the validity of the decree is questioned, whether or
not the previously decided suit was instituted prior to the suit in which the
validity of such decree is questioned.
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DOCTRINE OF RES SUB JUDICE AND RESJUDICATA

Res sub judice : (Section 10)
Section 10 deal with stay of civil suits. It provides that no court shall proceed
with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the same parties
and that the court in which the previous suit is pending is competent to grant
the relief claimed.
Object: the object of the rule contained in section 10 is to prevent courts of

competent jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigations in respect of the same cause of action, the same subject
matter and the same relief.
Conditions:
For application of the section, the following conditions must be fulfilled
a. There must be two suits, on previously instituted and the other

subsequently instituted.
b. The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
c. Both the suits must be between the same parties or their
representatives.
d. The previously instituted suit must be pending in the same court in
which the subsequent suit is brought or in any other court in India or in
any court beyond the limits of India established or continued by the
Central Government or before the Supreme Court.
e. Such parties must be litigating under the same title in both the suits.
Suit pending in foreign court: there is no bar on the power of an Indian

court to try a subsequently instituted a suit if the previously instituted suit
is pending in a foreign court.
Case law

Shetty Vs. Giridhar (1982) 3 SCC 403
Even where the provisions of Section 10 of the code do no strictly apply a civil
court has inherent power under section 151 of C.P.C to stay a suit to achieve
the ends of justice.
Difference between res-subjudice and resjudicata
Res judicata Res sub judice

1 Resjudicata applies to a Res sub judice applies to a
matter adjudicated upon matter pending trial
2 It bars the trail of a suit or It bars trial of a suit which
an issue which has been is pending decision in a
decided in a former suit previously instituted suit.
RESJUDICATA: SECTION 11
Section 11 of the C.P.C deals with “Resjudicata”. It has VIII explanations.
MEANING OF RESJUDICATA : “Res judicata” means “ a thing adjudicated”; “

a case already decided”; or “ a matter settled by a decision or judgment”
The doctrine of res judicata is based on three legal maxims
A Nemo debet lis vexari pro una et No man should be vexed twice for same cause
eadem causa
B Interest republicae ut sit finis litium It is in the interest of the state that there
should be an end to litigation
C Res judicata pro veritate occipitur A judicial decision must be accepted as
correct
History: The rule of resjudicata has very ancient history. It was well
understood by Hindu Lawyers and mohammedan Jurists. It was known to
ancient Hindu Law as Purve Nyaya. Under the Roman law, it was recognized
that “one suit and one decision was enough for any single dispute”
Nature and Scope : The resjudicata principle founded on justice, equity and
good conscience which require that a party who has once succeeded on an
issue should not be harassed by multiplicity of proceedings involving the same
issue.
Section 11 of C.P.C., Section 11 of the Code of Civil Procedure Code embodies

the doctrine of resjudicata or the rule of convulsiveness of a judgment, as to the
points decided either of fact, or of law, or of fact and law, in every subsequent
suit between the same parties. It enacts that once a matter is finally decided by
a competent court, no party can be permitted to reopen it in a subsequent

litigation. In the absence of such a rule there will be no end to litigation and the
parties would be put to constant trouble, harassment and expenses.
Conditions: To constitute a matter as resjudicata under section11, the following

conditions must be satisfied.
a. The matter directly and substantially in issue in the subsequent suit or

issue must be the same matter which directly and substantially in issue
either actually or constructively in the former suit.
b. The former suit must have been a suit between the same parties or
between parties under whom they or any of them claim.
c. Such parties must have been litigating under the same title in the former
suit.
d. The court which decided the former suit must be a court competent to
try the subsequent suit or the suit in which such issue is subsequently
raised.
e. The matter directly and substantially in issue in the subsequent suit
must have heard and finally decided by the court in the former suit.
Important points:
1. Former suit: as per the explanation to section 11, the former suit
means a suit which has been decided prior to the suit in question
whether or not it was instituted prior thereto.
2. Meaning of issue: Section 11 bars trial of any suit as well as an issue
which had been decided in former suit. Issues are of three kinds.
a. Issue of fact
b. Issue of law
c. Mixed issues of law and fact
3. Same parties: A “party” is a person whose name appears on the record
at the time of the decision. A matter may be resjudicata between co-
defendants and co-plaintiffs also. Since no relief is sough against the
pro-forma defendant, a finding does not operate as res judicata in a
subsequent suit against him. The doctrine of res judicata operates not
only against parties but their privies also.
4. Matter in issue: It means the facts on which the right is claimed and
the law applicable to the determination of that issue. Such issue may be
an issue of fact, issue of law or mixed issue of law and fact.
5. Matter directly and substantially in issue: A matter directly and
substantially in issue in a former suit will operate as resjudicata in
subsequent suit. “Directly” means directly, at once immediately, without
intervention. “Substantially” means essentially, materially or in a
substantial manner.
Eg: “X” sues “Y” for rent due. The defence of “Y” is that no rent is due.
Here the claim for rent is the matter in respect of which the relief is
claimed. The claim of rent is, therefore, a matter directly and
substantially in issue.

6. Matter constructively in issue: A matter can be said to be
constructively in issue when it “might and ought” to have been made a
ground of defence or attack in the former suit.
7. Constructive Resjudicata: The rule of direct res judicata is limited to
matter actually in issue alleged by one party and either denied or
admitted by the other party expressly or impliedly. But the rule of
constructive res judicata engrafted Explanation IV to Section 11 of the
code is an “artificial form of res judicata” and provides that if a plea
could have been taken by a party in proceeding between him and his
opponent, he should not be permitted to take that plea against the same
party in a subsequent proceeding with reference to the same subject
matter. That clearly is opposed to considerations of public policy on
which the doctrine of resjudicata is based and would mean harassment
and hardship to the opponent.
Eg: “X” files a suit against “Y” to recover money on a pronote. Y”
contends that the promissory note was obtained from him by undue
influence. The objection is overruled and suit is decreed. “ Y” cannot
challenge the promissory note on the ground of coercion or fraud in
subsequent suit, in as much as he ought to have taken that defence in
former suit.
8. Matter collaterally or incidentally in issue: A collateral or incidental
issue means an issue which is ancillary to the direct and substantive
issue.
Applicability of resjudicata : It applies to all kinds of suits such as civil suits,

execution proceedings, arbitration proceedings, taxation matters, writ petitions,
administrative orders, interim orders, and criminal proceedings, etc.,
PLACE OF SUING
Section 15: court in which suits to be instituted: every suitor should bring his
suit in the court of the lowest grade competent to try it.
Section 16: suits to be instituted where subject matter is situate: this section
lays down principles regarding territorial jurisdiction.
Subject to the pecuniary or other limitations prescribed by any law , suits –
a. For the recovery of immovable property with or without rent or profits.
b. For the partition of immovable property,
c. For foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
d. For the determination of any other right to or interest in immovable
property,
e. For compensation for wrong to immovable property ,
f. For the recovery of movable property actually under distraint or
attachment,
Shall be instituted in the court within the local limits of whose jurisdiction the
property is situate.
Proviso: the proviso gives statutory recognition to the maxim ‘equity acts
inpersonam ‘and does not apply if the suit has not been instituted in personam.

The immovable property must be situating within India and not beyond India.
The immovable property must be held by the defendant or someone his behalf.
The relief sought must be one which can be entirely obtained through the
personal obedience of the defendant. Where the property is in the possession of
the plaintiff, the proviso has no application.
Section 17: suits for immovable property situate within jurisdiction of different
courts:
Where the suit immovable property is situated within the jurisdiction of two or
more courts, the suit may be instituted before any one of such courts provided
that such court has the pecuniary jurisdiction.
Section – if and when also applies to movable property: it applies equally to
suits for immovable property as well as movable property provided that the
immovable property is situate wholly or in part within the local jurisdiction of
the court.
Section 18 place of institution of suit where local limits of jurisdiction of courts
are uncertain:
Where there is uncertainty with regard to the jurisdiction of two or more courts
on any immovable property – the court where the suit is brought, after
recording reasons for such uncertainty may dispose of any suit relating to that
property. The decree passed by such court shall be deemed to be decree passed
by a court which has the jurisdiction, provided that such court has pecuniary
jurisdiction.
Section 19 suits for compensation for wrongs to person or movables: It is a
special provision relating to suits for compensation for wrongs to person or
movables. If the wrong was done within the local limits of the jurisdiction of one
court and the defendant resides, or carries on business, or personally works for
gain, within the local limits of the jurisdiction of another court, the suit may be
instituted at the option of plaintiff in either of the said courts.
Section 20: other suits to be instituted where defendant Resides or cause of
action arises: this section provides for all other cases not covered by any of the
foregoing rules. All such suits may be filed at the plaintiff’s option in any of the
following courts, viz.:
1. Where the cause of action , wholly or partly arises; or
2. Where the defendant resides, or carries on business or personally works
for gain; or
3. Where there are two or more defendants, any of them resides or carries
on business or personally works for gain, provided that in such case
a) Either the leave of the court is obtained; or
b) The defendants who do not reside or carry on business or personally
work for gain at that place acquiesce in such institution.
Illustration: Anil resides at Simla, Bhanu at Calcutta and Chandu at Delhi.

Anil, Bhanu and Chandu being together at Banaras, Bhanu and Chandu make
a joint promissory note payable on demand, and deliver it to Anil. Anil may sue
Bhanu and Chandu at Banaras, where the cause of action arose. He may also
sue them at Calcutta, where Bhanu resides, or at Delhi, Where Chandu resides,
but in each of these cases, if the non-resident defendant objects, he suit cannot
proceed without the leave of the court.

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TRANSFER OF SUITS
Section 22 power to transfer suits which may be instituted in more than
one court: the two essential conditions for the application of the section are
1. The application should be made at the earliest possible opportunity and
in any case at or before the settlement of the issues.
2. It should be made after notice to other party. The notice may be given by
the court.
Section 23 To what court application lies: section 23 lays down the details
as in what court the application under section 22 can be made.
1. Where the several courts having jurisdiction are subordinate to the same
Appellate Court, an application under section 22 shall be made to the
Appellate Court.
2. Where such Courts are subordinate to different Appellate Courts but to
the same High Court, the application shall be made to the said High
Court.
3. Where such courts are subordinate to different High Courts the
application shall be made to the High Court within the local limits of
whose jurisdiction the court in which the suit is brought is situate.
Section 24 General power of transfer and withdrawal: this section deals with
the general powers of the High Court and District Court to transfer suits,
appeals and other proceedings. The jurisdiction under section 24 should be
exercised with extreme caution and should be exercised where the ends of
justice would be served better.
An application under this section can be moved both in the High Court
and District Court. Where application in the District Court fails, fresh
application can be moved in the High Court.
Under section 24 a High court can withdraw a suit from a subordinate
Court, may pass an interim order or may quash the objectionable interim order
and then send the case back to the original Court for trial. But a District Court
has no such power.
On the application of any of the parties: the court may transfer any suit,
appeal or other proceedings on the application of any of the parties. The word
“parties” in section 24 refers to those litigating the suit, appeal or other
proceedings whereof the transfer is sought.
After notice to the parties: where a party moves application for transfer, notice
to the opposite party is mandatory.
of its own motion without such notice: Both the High Court and the District
Court can pass orders of transfer under section 24 suo-motu.
At any stage: the court may exercise power of transfer under section 24 at any
stage.
Competent to try or dispose of the same: The court to which the suit, appeal or
other proceeding is transferred should be competent to try or dispose of
the same.

sufficient and insufficient grounds of transfer: It is for the applicant to make
out a strong case for transfer.
Sub section (2) : under which, special directions may be issued by the court
ordering the transfer, either to order the trial de novo or to proceed from
the point at which it was transferred or withdrawn.
Sub section (4) : The words “ a Court of Small Causes” in subsection (4) include
both the court of small causes constituted under the provincial small
cause courts Act as well as a court invested with the jurisdiction of a
court of small causes.
Section 25 power of supreme court to transfer suits, etc: section 25 of the
code confers power on the supreme court to transfer suits.
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TERRITORIAL JURISDCITION
The word Jurisdiction really has semblance with the meaning of word "Power".
In Latin 'juris' means law. It is the authority granted to a legal body to speak on
a particular legal issue. Each Court is having separate powers to deal with
particular cases. The separation of power is provided by the legislation. This
method is followed for convenience and for the ends of justice. Some sort of
cases require special knowledge and experience. For the interests of justice
those special cases should be heard by special forums. Likewise, small matters
can be adjudged by those with basic knowledge and lesser experience and
thereby the higher authorities are not overburdened.
Types of Jurisdiction of Courts
In Civil Procedure Code the word jurisdiction is not clearly defined. But
several provisions in CPC speaks of different kinds of jurisdiction of civil courts
viz Sections 6, 9, 15-20 etc. The various types of jurisdiction are as below:
Territorial Jurisdiction
Every Court has its own territorial limits of jurisdiction. This power is so
vested for easy disposal of a matter. Extra territorial jurisdiction if granted will
delay the process. Government fixes the local limits to be exercised by a Court.
Every State has a High Court which is the higher judicial institution in the
State. Every District will have a District Court which will have overall control of
courts and cases in that particular district. Every Sub-District Taluk, village etc
may have various other lower Courts which will deal with the cases the cause of
action of which arose in the particular locality assigned to it. Generally a Court
which do not have the authority to try cases beyond its territorial jurisdiction.
Pecuniary Jurisdiction
Section 6 of the CPC says that no court will get jurisdiction over suits the
amount or value of the subject-matter of which exceeds the pecuniary limits of
its ordinary jurisdiction. The pecuniary limit of jurisdiction of a Munsiff Court is
1 lakh rupees, the pecuniary jurisdiction of principal senior civil judge is from 1
lakh rupee to upto 10,00,000/- the pecuniary jurisdiction of district court is
above 10,00,000/-.
Subject Matter Jurisdiction
Writ jurisdiction is only vested with High Court and Supreme Court. Other
lower courts cannot adjudicate a matter concerning writs. Those are matter
requiring high knowledge and experience. The District Court normally acts as

an appellate Court to judgements passed by other lower courts. But it has
ordinary original jurisdiction to entertain matters like copyright, insolvency,
local fund audit, etc. The Munsiff Courts deal with various other matters.
Appellate Jurisdiction
The appeal from Munsiff Courts goes to higher Courts of jurisdiction. Appeal
from appeals or original judgments from the District Courts will be filed in the
High Court. Special cases will go for appeal in the Supreme Court also. In some
matters there are review provided in the same court. But in some legislations
only appeal to any order is provided. Supreme Court is the highest Court of
Appeal in the country.
Conclusion
It is said that a judgment passed by a court without jurisdiction is ultravires
or illegal which cannot be enforced. But in the interests of justice there are
certain limitations prescribed in the CPC regarding appreciation of objection
to jurisdiction in Section 21. But if the parties waived the right to object it will
not be further allowed in any Court of appeal. But in certain cases if there is
failure of justice, the objection is allowed by higher courts. Thus the general
rule is that if the court rendering a judgment suffers from want of jurisdiction
in respect of any one of the above matters its judgment is a nullity and may be
ignored.
Jurisdiction Of Civil Court Under Civil Procedure Code

Section 9 of CPC deals with the jurisdiction of civil courts in India. It says that
the courts shall have jurisdiction to try all suits of a civil nature excepting suits
of which their cognizance is either expressly or impliedly barred.
Explanation I- a suit in which the right to property or to an office is contested is

a suit or a civil nature, notwithstanding that such right may depend entirely on
the decision of questions as to religious rites or ceremonies.
Explanation II- 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.
Conditions
A civil court has jurisdiction to try a suit if two conditions are fulfilled:
1.The suit must be of a civil nature; and
2.The cognizance of such a suit should not have been expressly or
impliedlybarred.
Suits of civil nature: illustrations- the following are suits of a civil nature.
1. suits relating to rights to property;
2.suits relating to rights of worship;
3. suits relating to taking out of religious procession;
4. suits relating to right to share in offerings;
5. suits for damages for civil wrongs;
Suits not of civil nature- illustrations- the following are not suits of a civil
nature:
1. suits involving principally caste questions;
2. suits involving purely religious rites or ceremonies;

3. suits for upholding mere dignity or honor;
4. suits for recovery of voluntary payments or offerings;
5. suits against expulsions from caste, etc.
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CAUSE OF ACTION
The cause of action means “a bundle of essential facts, which it is necessary
For the plaintiff to prove before he can succeed”
1. The cause of action must be antecedent.
2. Misjoinder or non-joinder of cause of action is called multifariousness of the
suit. Where there
Is multifariousness the suit shall not be dismissed.
Eg: a) In suits on negotiable instruments, the cause of action arises at any
place where any fact occurs, the proof of which is essential to the
plaintiff case. Thus, a suit may be filed at the place where a bill was
drawn, or where it was accepted, or dishonoured, or payable.
Order 2 rule 3. Joinder of causes of action—a plaintiff may unite in the same
suit several cause
of action against the same defendant, or the same defendants jointly; and any
plaintiffs having
causes of action in which they are jointly interested against the same defendant
or the same defendants jointly may unite such causes of action in the same
suit. (2) Where causes of action are united, the jurisdiction of the Court as
regards the suit shall depend on the amount or value of the aggregate subject-
matters at the date of instituting the suit.
JURISDICTIONAL BARS
From various decisions of the Supreme Court, the following general principles
relating to Jurisdiction of a civil court emerge:
1. A civil court has jurisdiction to try all suits of a civil nature unless their
cognizance is barred either expressly or impliedly.
2. Consent can neither confer nor take away jurisdiction of a court.
3. A decree passed by a court without jurisdiction is a nullity and the
validity thereof can be challenged at any stage of the proceedings, in
execution proceedings or even in collateral proceedings.
4. There is a distinction between want of jurisdiction and irregular exercise
thereof.
5. Every court has inherent power to decide the question of its own
jurisdiction.
6. Jurisdiction of a court depends upon the averments made in a plaint and
not upon the defence in a written statement.
7. For deciding jurisdiction of a court, the substance of a matter and not its
form is important.
8. Every presumption should be made in favour of jurisdiction of a civil
court.
9. A statue ousting jurisdiction of a court must be strictly construed.
10. Burden of proof of exclusion of jurisdiction of a court is on the party who
asserts it.
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SUMMONS
Section 27 to 32 of C.P. C and order V of C.P. C deals with summons
Summons: Meaning: A summons is a document issued from the office of a

court of justice, calling upon the person to whom it is directed to attend before
a judge or officer of the court for a certain purpose.
FORM OF SUMMONS: every summons should be in the forms prescribed in
Appendix B to the first schedule of the code.
SECTION 27: Summons to defendants— where a suit has been duly instituted,
a summons may be issued to the defendant to appear and answer the claim
and may be served in manner prescribed. The summons should be served
within 30 days from the date of the institution of the plant.
SECTION 28: Service of summons where defendant resides in another State—
(1) A summons may be sent for service in another State to such Court and in
such manner as may be prescribed by rules in force in that State.
SECTION 31. Summons to witness— the provisions in sections 27, 28 and 29
shall apply to summonses to give evidence or to produce documents or other
material objects.
SECTION 32. Penalty for default: the court may compel the attendance of any
person to whom a summons has been issued under section 30 and for that
purpose may-
a) Issue a warrant for his arrest.
b) Attach and sell his property.
c) Impose a fine upon him no exceeding five thousand rupees.
d) Order him to furnish security for his appearance and in default commit
him to the civil prison.
ORDER V- ISSUE AND SERVICE OF SUMMONS
Order V of CPC contains 30 rules.

rule (1) When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim on a day to be therein specified:
Provided that no such summons shall be issued when the defendant has
appeared at the presentation of the plaint and admitted the plaintiff's claim :
Provided further that where a summons has been issued, the Court may
direct the defendant to file the written statement of his defence, if any, on the
date of his appearance and cause an entry to be made to that effect in the
summons.
(2) A defendant to whom a summons has been issued under sub-rule (1) may
appear—
(a) in person, or
(b) by a pleader duly instructed and able to answer all material questions
relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such
questions.

(3) Every such summons shall be signed by the Judge or such officer as
he appoints, and shall be sealed with the seal of the Court.
rule2. Copy or statement annexed to summons— Every summons shall be
accompanied by a copy of the plaint or, if so permitted, by a concise statement.
rule3. Court may order defendant or plaintiff to appear in person— (1) where
the Court sees reason to require the personal appearance of the defendant, the
summons shall order him to appear in person in Court on the day therein
specified. (2) Where the Court sees reason to require the personal appearance of
the plaintiff on the same day, it shall make an order for such appearance.
rule4. No party to be ordered to appear in person unless resident with certain
limits— No party shall be ordered to appear in person unless he resides— (a)
within the local limits of the Court's ordinary original jurisdiction, or (b) without
such limits but at place less than fifty or (where there is railway or steamer
communication or other established public conveyance for five-sixths of the
distance between the place where he resides and the place where the Court is
situate) less than two hundred miles distance from the Court-house.
rule5. Summons to be either to settle issues or for final disposal— The Court
shall determine, at the time of issuing the summons, whether it shall be for the
settlement of issues only, or for the final disposal of the suit; and the summons
shall contain a direction accordingly: Provided that, in every suit heard by a
Court of Small Causes, the summons shall be for the final disposal of the suit.
rule6. Fixing day for appearance of defendant— The day for the appearance of
the defendant shall be fixed with reference to the current business of the Court,
the place of residence of the defendant and the time necessary for the service of
the summons; and the day shall be so fixed as to allow the defendant sufficient
time to enable him to appear and answer on such day.
rule7. Summons to order defendant to produce documents relied on by him—
The summons to appeal and answer shall order the defendant to produce all
documents in his possession or power upon which he intends to rely in support
of his case.
rule8. On issue of summons for final disposal, defendant to be directed to
produce his witnesses— Where the summons is for the final disposal of the
suit, it shall also direct the defendant to produce, on the day fixed for his
appearance, all witnesses upon whose evidence he intends to relay in support of
his case.
Rule 9. Delivery or transmission of summons for service— (1) Where the
defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered
to accept the service of the summons, the summons shall, unless the Court
otherwise directs, be delivered or sent to the proper officer to be served by him
or one of his subordinates.
Rule 10. Mode of service— Service of the summons shall be made by delivering
or tendering a copy thereof signed by the Judge or such officer as he appoints
in this behalf, and sealed with the seal of the Court.
Rule 11. Service on several defendants— Save as otherwise prescribed, where
there are more defendants than one, service of the summons shall be made on
each defendant.

Rule 12. Service to be on defendant on person when practicable, or on his
agent— wherever it is practicable service shall be made on the defendant in
person, unless he has an agent empowered to accept service, in which case
service on such agent shall be sufficient.
Rule 13. Service on agent by whom defendant carries on business— (1) In a suit
relating to any business or work against a person who does not reside within
the local limits of the jurisdiction of the Court from which the summons is
issued, service on any manager or agent, who, at the time of service, personally
carries on such business or work for such person within such limits, shall be
deemed good service. (2) For the purpose of this rule the master of a ship shall
be deemed to be the agent of the owner or chartered.
Rule 14. Service on agent in charge in suits for immovable property— Where in
a suit to obtain relief respecting, or compensation for wrong to, immovable
property, service cannot be made on the defendant in person, and the
defendant has no agent empowered to accept the service, it may be made on
any agent of the defendant in charge of the property.
Rule 15. Where service may be on an adult member of defendant's family—
Where in a suit the defendant is absent from his residence at the time when the
service of summons is sought to be effected on his at his residence and there is
no likelihood of his being found at the residence within a reasonable time and
he has no agent empowered to accept service of the summons on his behalf
service may be made on any adult member of the family, whether male or
female, who is residing with him.
Explanation.—A servant is not a member of the family within the meaning of
this rule.
Rule 16. Person served to sign acknowledgement— where the serving officer
delivers or tenders a copy of the summons to the defendant personally, or to an
agent or other person on his behalf, he shall require the signature of the person
to whom the copy is so delivered or tendered to an acknowledgement of service
endorsed on the original summons.
Rule 17. Procedure when defendant refuses to accept service, or cannot be
found— Where the defendant or his agent or such other person as aforesaid
refuses to sign the acknowledgement, or where the serving officer, after using
all due and reasonable diligence, cannot find the defendant, who is absent from
his residence at the time when service is sought to be effected on him at his
residence and there is no likelihood of his being found at the residence within a
reasonable time and there is no agent empowered to accept service of the
summons on his behalf, nor any other person on whom service can be made,
the serving officer shall affix a copy of the summons on the outer door or some
other conspicuous part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain, and shall then return the
original to the Court from which it was issued, with a report endorsed thereon
or annexed thereto stating that he has so affixed the copy, the circumstances
under which he did do, and the name and address of the person (if any) by
whom the house was identified and in whose presence the copy was affixed.
Rule 18. Endorsement of time and manner of service— The serving officer shall,
in all cases in which the summons has been served under rule 16, endorse or
annex, or cause to be endorsed or annexed, on or to the original summons, a

return stating the time when and the manner in which the summons was
served, and the name and address of the person (if any) identifying the person
served and witnessing the delivery or tender of the summons.
Rule 19. Examination of serving officer.— Where a summons is returned under
rule 17, the Court shall examine the serving officer on oath, or cause him to be
so examined by another Court.
Rule 19A. Simultaneous issue of summons for service by post in addition to
personal service
Rule 20. Substituted service— (1) Where the Court is satisfied that there is
reason to believe that the defendant is keeping out of the way for the purpose of
avoiding service, or that for any other reason the summons cannot be served in
the ordinary way, the Court shall order the summons to be served by affixing a
copy thereof in some conspicuous place in the Court-house, and also upon
some conspicuous part of the house (if any) in which the defendant is known to
have last resided or carried on business or personally worked for gain, or in
such other manner as the Court thinks fit.
(1A) Where the Court acting under sub-rule (1) orders service by an
advertisement in a newspaper, the newspaper shall be a daily newspaper
circulating in the locality in which the defendant is last known to have actually
and voluntarily resided, carried on business or personally worked for gain. (2)
Effect of substituted service—Service substituted by order of the Court shall be
as effectual as if it had been made on the defendant personally.
(3) Where service substituted, time for appearance to be fixed—Where service is
substituted by order of the Court, the Court shall fix such time for the
appearance of the defendant as the case may require.
Rule 21. Service of summons where defendant resides within jurisdiction of
another Court— A summons may sent by the Court by which it is issued,
whether within or without the State, either by one of its officers or by post to
any Court (not being the High Court) having jurisdiction in the place where the
defendant resides.
Rule 22. Service within presidency-towns of summons issued by Courts
outside— Where as summons issued by any Court established beyond the
limits of the towns of Calcutta, Madras and Bombay is to be served within any
such limits, it shall be sent to the Court of Small Causes within whose
jurisdiction it is to be served.
Rule 23. Duty of Court to which summons is sent— The Court to which a
summons is sent under rule 21 or rule 22 shall, upon receipt thereof, proceed
as if it had been issued by such Court and shall then return the summons to
the Court of issue, together with the record (if any) of its proceedings with
regard thereto.
Rule 24. Service on defendant in prison— where the defendant is confined in a
prison, the summons shall be delivered or sent by post or otherwise to the
officer in charge of the prison for service on the defendant.
Rule 27. Service on civil public or on servant of railway officer or on servant of
railway company or local authority— Where the defendant is a public officer
(not belonging to the Indian military naval or air forces, or is the servant of a
railway company or local authority, the Court may, if it appears to it that the
summons may be most conveniently so served, send it for service on the

defendant to the head of the office in which he is employed together with a copy
to be retained by the defendant.
Rule 28. Service on soldiers, sailors or airmen— Where the defendant is a
soldier, sailor or airman, the Court shall send the summons for service to his
commanding officer together with a copy to be retained by the defendant.
Rule 29. Duty of person to whom summons is delivered or sent for service— (1)
Where a summons is delivered or sent to any person for service under rule 24,
rule 27 or rule 28, such person shall be bound to serve it if possible and to
return it under his signature, with the written acknowledgement of the
defendant, and such signature shall be deemed to be evidence of service. (2)
Where from any cause service is impossible, the summons shall be returned to
the Court with a full statement of such cause and of the steps taken to procure
service, and such statement shall be deemed to be evidence of non-service.
Rule 30. Substitution of letter for summons— (1) The Court may,
notwithstanding anything hereinbefore contained, substitute for a summons a
letter signed by the Judge or such officer as he may appoint in this behalf,
where the defendant is, in the opinion of the Court, of a rank entitling him to
such mark of consideration. (2) A letter substituted under sub-rule (1) shall
contain all the particulars required to be stated in a summons, and, subject to
the provisions of sub-rule (3), shall be treated in all respects as a summons. (3)
A letter so substituted may be sent to the defendant by spot or by a special
messenger selected by the Court, or in any other manner which the Court
thinks fit; and where the defendant has an agent empowered to accept service,
the letter may be delivered or sent to such agent.
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SERVICE OF FOREIGN SUMMONSES
SECTION 29: Service of foreign summonses— Summons and other processes

issued by— (a) any Civil or Revenue Court established in any part of India
to which the provisions of this Code do not extent, or (b) any Civil or Revenue
Court established or continued by the authority of the Central Government
outside India, or (c) any other Civil or Revenue Court outside India to which the
Central Government has, by notification in the Official Gazette, declared the
provisions of this section to apply, may be sent to the Courts in the territories
to which this Code extends, and served as if they were summonses issued by
such Courts.
Order V rule 25. Service where defendant resides out of India and has no
agent— Where the defendant resides out of India and has no agent in India
empowered to accept service, the summons shall be addressed to the defendant
at the place where he is residing and sent to him by post, if there is postal
communication between such place and the place where the Court is situate :
Provided that where any such defendant resides in Bangladesh or Pakistan the
summons, together with a copy thereof, may be sent for service on the
defendant, to any Court in that country (not being the High Court) having
jurisdiction in the place where the defendant resides: Provided further that
where any such defendant is a public officer in Bangladesh or Pakistan (not
belonging to the Bangladesh or, as the case may be, Pakistan military naval or
air forces) or is servant of a railway company or local authority in that country,
the summons, together with a copy thereof, may be sent for service on the
defendant, to such officer or authority in that country as the Central
Government may, by notification in the Official Gazette, specify in this behalf.
Order V rule 26. Service in foreign territory through Political Agent or Court—
Where— (a) in the exercise of any foreign jurisdiction vested in the Central
Government, a Political Agent has been appointed, or a Court has been
established or continued, with power to serve a summons, issued by a Court
under this code, in any foreign territory in which the defendant actually and
voluntarily resides, caries on business or personally works for gain.
Order V rule 26A. Summonses to be sent to officer to foreign countries— Where
the Central Government has, by notification in the Official Gazette, declared in
respect of any foreign territory that summonses to be served on defendants
actually and voluntarily residing or carrying on business or personally working
for gain in that foreign territory may be sent to an officer of the Government of
the foreign territory specified by the Central Government, the summonses may
be sent to such officer, through the Ministry of the Government of India dealing
with foreign affairs or in such other manner as may be specified by the Central
Government.
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UNIT – II
PLEADINGS
ORDER VI deals with pleadings in general.
Rule 1 defines pleading.
Rule 2 lays down the fundamental principles of pleadings.
Rules 3 to 13 require the parties to supply necessary particulars.

Rules 14 and 15 provide for signing and verification of pleadings.
Rule 16 empowers a court to strike out unnecessary pleadings.
Rules 17 and 18 contain provisions relating to amendment of pleadings.
2. PLEADING: DEFINITION: RULE 1
“Pleading is defined as plaint or written statement”. According to Mogha,
“pleadings are statements in writing drawn up and filed by each party to a case,
stating what his contentions will be at the trial and giving all such details as his
opponent needs to know in order to prepare his case in answer.
3. OBJECT: The sole object of pleadings is to ascertain the real disputes
between the parties, to narrow down the area of conflict and to see where the
two sides differ, to preclude one party from taking the other by surprise and to
prevent miscarriage of justice.
4. IMPORTANCE: Importance of pleadings cannot be underestimated.
Jacob states, “Pleadings do not only define the issues between the parties
for the final decision of the court at the trial, they manifest and exert their
importance throughout the whole process of the litigation.
5. BASIC RULES OF PLEADINGS: RULE 2
Sub-rule (1) of Rule 2 lays down the fundamental principles of pleadings it
reads as under.
Every pleading shall contain only a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved.
On analysis, the following general principles emerge:
1. Facts and not law: The first principle of pleadings is that they should state
only facts and not law.
2. Material facts: The second principle of pleadings is that they should contain
a statement of material facts only.
3. Facts and not evidence: The third principle of pleadings is that the evidence
of facts, as distinguished from the facts themselves, need not be pleaded.
The facts are of two types:
(a) Facta probanda-the facts required to be proved (material facts);
and
(b) Facta probantia-the facts by means of which they are to be
proved (particulars or evidence).
The pleadings should contain only facta probanda and not facta probantia.
In Virender Nath v. Satpal Singh, after referring the leading English and
Indian decisions on the point, the Supreme Court observed: “The material facts
on which the party relies for his claim are called facta probanda and they must
be stated in the pleadings. But the fact by means of which facta probanda
(material facts) are proved and which is in the nature of facta probantia
(particulars or evidence) need not be set out in the pleadings.
4. Concise form: The fourth and the last general principle of pleadings is that
the pleadings should be drafted with sufficient brevity and precision. The
material facts should be stated precisely succinctly and coherently. Every
pleading should be divided into paragraphs and sub-paragraphs. Each
allegation should be contained in a separate paragraph. Dates, totals and
numbers must be mentioned in figures as well as in words. Rule 3 lays down

that forms in Appendix A of the Code should be used where they are applicable
and where they are not applicable, forms of like character should be used.
OTHER RULES OF PLEADINGS RULES 4-18
Over and above the aforesaid basic rules, there are other rules of pleadings
dealing with cases
(a) Particulars to be given where necessary— In all cases in which the party
pleading relies on any misrepresentation, fraud, breach of trust, willful
default, or undue influence shall be stated in the pleading.
(b) Condition precedent— Any condition precedent, the performance or
occurrence of which is intended to be contested, shall be distinctly specified
in his pleading by the plaintiff or defendant, as the case may be
(c) Departure— No pleading shall, except by way of amendment, raise any new
ground of claim or contain any allegation of fact inconsistent with the
previous pleadings of the party pleading the same.
(d) Denial of contract— Where a contract is alleged in any pleading, a bare
denial of the same by the opposite party shall be construed only as a denial
in fact of the express contract alleged or of the matters of fact from which
the same may be implied and not as a denial of the legality or sufficiency in
law of such contract.
(e) Effect of document to be stated.— Wherever the contents of any document
are material, it shall be sufficient in any pleading to state the effect thereof
as briefly as possible, without setting out the whole or any part thereof,
unless the precise words of the document or any part thereof are material.
(f) Presumptions of law— Neither party need in any pleading allege any matter
of fact which the law presumes in his favour or as to which the burden of
proof lies upon the other side unless the same has first been specifically
denied (e.g. consideration for a bill of exchange where the plaintiff sues only
on the bill and not for the consideration as a substantive ground of claim.)
(g) Pleading to be signed— every pleading shall be signed by the party and his
pleader
(h) Verification of pleadings: every pleading shall be varied at the foot by the
party or by one of the parties pleading or by some other person proved to the
satisfaction of the Court to be acquainted with the facts of the case.
(i) Striking out pleadings— The Court may at any stage of the proceedings
order to be struck out or amended any matter in any pleading— (a) which
may be unnecessary, scandalous, frivolous or vexatious, or (b) which may
tend to prejudice, embarrass or delay the fair trail of the suit, or (c) which is
otherwise an abuse of the process of the Court.
(j) 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.
(k) 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.
FORMS OF PLEADING: averments in pleadings should conform with the

forms in Appendix A to the First schedule. But the forms in Appendix A re
not statutory.
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PLAINT
1. Scope-Order VII, R. 1 lays down the particulars of a plaint. The provisions of
Rule 1 are imperative. Title of the suit is not part of the plaint as it is not
covered by the verification appended to the plaint.
2. “The name, description and place of residence of the plaintiff”:
Description in clause (b) includes the age and father’s name. The description
and place of residence of the plaintiff must be accurately given. Where the
plaintiffs in suit are more than one, a serial number should be given to each of
them. Where a suit is brought in a representative capacity, it should be
specifically alleged in the title of the plaint.
3. “The name, description and place of residence of the defendant”: The
name, age, father’s name and place of residence of the defendant should be
given. Like plaintiffs, where the defendants are more than one, serial number
should be given to each of them; their age and fathers’ name should also be
given. Misdescription or insufficient description of a defendant is not fatal to the
suit;
4. “The facts constituting the cause of action and when it arose” : A plaint
must set forth the facts constituting the cause of action and when it arose.
Where a plaint does not disclose a cause of action, the court shall reject it
under O.VII, R. 11, CI. (a) Of the Code.
5. “The facts showing that the court has jurisdiction”: A plaint must
contain express averments showing how the particular Court has jurisdiction.
6. “Value of the subject-matter of the suit for the purposes of jurisdiction
and of court-fees”: The value for the purposes of court-fees and jurisdiction
may or may not be the same hence the two valuations must be done separately.
Valuation must be according to the market value of the property and not
arbitrary.
2. In money suits and mense profits:
Where the plaintiff seeks the recovery of money, the plaint must state the
precise amount claimed. In a suit the plaintiff may claim both past and future
mense profits; only past mesne profits are to be valued, as it is not possible to
value the future mesne profits as it is not known how long the suit may
continue.
3. Where the subject-matter of the suit is immovable property.- where the
subject matter of suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it.
4. When plaintiff sues as representative.- the provisions of Rule 4 are
imperative. It is not necessary to state the representative capacity of the

plaintiff in the cause title of the plaint, though it is a convenient place; it is
sufficient if it appears in the body of the plaint.
5. Defendant’s interest and liability to be shown. - where a plaint does not
show that the defendant is interested in the subject-matter of the suit and that
he is liable to be called upon to answer the plaintiff’s demand, it is a defective
plaint and the Court is bound so call upon the plaintiff to disclose the cause of
action against each of the defendants.
6. Grounds of exemption from limitation law.- provided that the Court may
permit the plaintiff to claim exemption from the law of limitation on any ground
not set out in the plaint, if such ground is not inconsistent with the grounds set
out in the plaint.
7. Relief to be specifically stated. - Rule 7 requires that every plaint or the
written statement must state specifically the relief which the plaintiff claims in
the plaint or the defendant claims in the written statement, either simply or in
the alternative. Order VII, R, 7 must be read with O. II, R. 2.
8. Relief founded on separate grounds. - Where the plaintiff seeks relief in
respect of several distinct claims or causes of action founded upon separate and
distinct grounds, they shall be state as far as may be separately and distinctly.
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ORDER VII RULE 10: RETURN OF PLAINT—the plaint shall at any state of
the suit be returned to be presented to the Court in which the suit should have
been instituted.
(2) Procedure on returning plaint—on returning a plaint, the Judge shall
endorse thereon the date of its presentation and return, the name of the party
presenting it, and a brief statement of the reasons for returning it.
RULE 10A. Power of Court to fix a date of appearance in the Court where plaint
is to be filed after its return— this rule prescribes the procedure to be followed
by a court before the plaint is ordered to be returned to be presented to the
proper court. It is inserted to obviate the necessity of serving the summons on
the defendants where the return of plaint is made after the appearance of the
defendants in the suit.
Rule 10B. Power of appellate Court to transfer suit to the proper Court— an
appellate court can also return the plaint to be presented to the proper court.
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ORDER VII RULE 11. Rejection of plaint— the plaint shall be rejected in
the following cases:—
1) Clause (a). - Where a plaint does not disclose a cause of action: if the plaint
filed by the plaintiff does not disclose any cause of action the court will
reject it. But in order to reject the plaint on this ground, the court must look
at the plaint and at nothing else.
2) Clause (b). – where relief claimed is undervalued: Before rejecting plaint
under CI. (b) The court must give opportunity to the plaintiff to correct the
valuation clause of the plaint. The Court cannot fix the valuation, but
should direct the party to make the fresh valuation. Where the plaintiff fails
to correct the valuation within the fixed time, the Court should reject the
plaint under O. VII, R. 11 (b) and not dismiss the suit.

3) Clause (c). – Where the plaint is insufficiently stamped: The provision of CI.
© is mandatory and if the plaintiff fails to pay the deficient court-fee within
the time fixed by the Court, the Court has no option but to reject the plaint
under CI. ©.
4) Clause (d). – where suit is barred by law: The court shall reject plaint under
CI. (d) Where from the statement made in the plaint the suit appears to be
barred by any law, e.g. want of notice under Sec, 80, C.P.C.
5) Where plaint is not duplicate: the plaint has to be filed in duplicate. If the
said requirement is not complied with the plaint will be rejected.
Appeal. - Rejection of plaint under O. VII, R. 11 amounts to a decree with in
sec. 2 (2), and is appealable but no revision lies. Second appeal also lies.
Procedure on rejecting plaint. - Where a plaint is rejected the Judge shall
record an order to that effect with the reasons for such order.
Where rejection of plaint does not preclude presentation of fresh plaint. -
where a plaint has been rejected on any of the grounds mentioned in O. VII,R.
11, the plaintiff may bring a fresh suit on the same cause of action within
limitation period.
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Production of document on which plaintiff sues.- The provisions of O. VII, R.
14 are imperative and make it incumbent upon the plaintiff to produce and
disclose at the time of the presentation of the plaint all the documents on which
he relies in support of his claim.
Defendant’s right to inspect documents before filing written statement. –
A defendant can be permitted to inspect documents referred to in the plaint
before filing written statement in very extraordinary circumstances and must
satisfy the Court that he cannot file written statement and make any defence
without inspection.
Statement in case of documents not in plaintiff’s possession or power.-
Where any such document is not in the possession or power of the plaintiff, he
shall, if possible, state in whose possession or power it is.
Suits on lost negotiable instruments.- the two essential conditions to be
satisfied before the Court can pass a decree as contemplated by R, 16 are: (1)
that it must be proved that the instrument sued upon is lost, and (2) that the
plaintiff has offered to give indemnity to the satisfaction of the Court against
possible claims by any person upon the same instrument.
Inadmissibility of document not produced when plaint filed. - The policy
lying under R. 18 is to exclude evidence the genuineness of which may be
suspected and the existence of which at the date of the filing of the suit be
doubtful. It bars a plaintiff from subsequently filing the documents which it
should have filed under O. VII, R. 14 to be admitted in evidence. But the Court
has wide discretion in the matter of production of documents which were not
produced when the plaint provided their genuineness is beyond doubt. Sub-rule
(2) of R. 18 is an exception to sub-rule (1). It is open to the plaintiff to use the
document, his account book, for the cross-examination of the defendant.
MARKING OF DOCUMENTS: the documents may be marked as per the civil

rules of practice.
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WRITTEN STATEMENT : ORDER VIII OF CPC:
MEANING: A written statement is the pleading of the defendant wherein he

deals with every material fact alleged by the plaintiff in his plaint and also
states new facts in his favour or takes legal objections against the claim of the
plaintiff.
Who may file written statement
1) A written statement may be filed by the defendant or by his duly

constituted agent.
2) Where there are several defendants and a common written statement is
filed by them, it must be filed by all of them.
When written statement may be filed: the defendant shall, within thirty days
from the date of service of summons on him, present a written statement of his
defence.
Provided that where the defendant fails to file the written statement
within the said period of thirty days, he shall be allowed to file the same on
such other day, as may be specified by the court, for reasons recording in
writing, but which shall not be later than ninety days from the date of service of
summons.
Rules relating to the written statement:
1) Duty of defendant to produce documents upon which relief is claimed or

relied upon by him. All the rules applicable to the plaintiff with regard to
production of documents will equally apply to the defendant who should
also produce the documents on which he relies upon while presenting
the written statement.
2) New facts must be specially pleaded: The defendant must raise by his
pleading all matters which show the suit not to be maintable, or that the
transaction is either void or voidable in point of law.
3) Denial to be specific: the defendant must deal specifically with each
allegation of fact of which he does not admit the truth, except damages.
4) Evasive denial: any half admission or half denial is evasive. Where there
is evasive denial, the facts alleged in the plaint are deemed to have been
admitted.
5) Specific denial: if the denial of the fact is not specific, the said fact shall
be taken to be admitted. In such event the admission itself being proof,
no other proof is necessary. The court may in its discretion require any
fact so admitted to be proved otherwise than by such admission. Where
the defendant has not filed a pleading, it shall be lawful for the court to
pronounce judgment on the basis of the facts contained in the plaint
except as against a person under a disability, but the court may, in its
discretion, require any such fact to be proved.

SET-OFF AND COUNTERCLAIM: Provision about set-off has been made in
Rules 6 and 7 of Order 8 of the Code of Civil Procedure, 1908 whereas provision
for counter-claim has been made in Rules 6-A to 6-G and 7 of Order 8.
SET-OFF: ORDER VIII RULE 6
Set off is a plea in defence, a plea available to the defendant only. It is a defence
which by adjustment would either wipe off or reduce the plaintiff claim for
money made in the suit.
Essentials for set-off:
1. The suit must be for the recovery of money: the words suit for the
recovery of money does not necessarily mean a suit for the recovery of
money pure and simple.
2. The defendant’s claim must be for an ascertained sum of money: in a
legal set off the amount claimed should be ascertained sum of money.
The words ascertained sum clearly means a sum which has been
determined and qualified. It does not mean a sum admitted by the
plaintiff. It is used in contradistinction to un-liquidated damages.
3. The sum must be legally recoverable: for legal set-off it is necessary that
the sum claimed should be legally recoverable by the defendant from the
plaintiff. Eg: suit barred by limitation is not legally recoverable and hence
cannot be set-off by way of defence.
4. The sum of set-off should not exceed the pecuniary limits of the
jurisdiction of the court; and
5. Both the parties must fill the same character as they fill in the plaintiff
suit.
Effect of set-off: when a defendant pleads set-off, he is put in the position of

a plaintiff as regards the amount claimed by him. Where the plaintiff does
not appear and his suit is dismissed for default, or he withdraws his suit, or
he fails to substantiate his claim at the trial and his suit is dismissed, it
does not affect the claim for a set-off by the defendant and a decree may be
passed in favour of the defendant if he is able to prove his claim.
Kinds of set-off:
1) Legal set-off: rule 6 of order VIII of the code deal with legal set-off only. It
was allowed by the court of common law in England. It is always in
respect of an ascertained sum of money.
2) Equitable set-off: it may be allowed in respect of unascertained sum of
money.
Eg: in a suit by washer man for his wages, the defendant –employer may
set-off the price of the clothes lost by the plaintiff.
EXMAPLES:
(a) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary
legatee. B dies and D takes out administration to B's effect, C pays Rs. 1,000 as
surety for D: then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000

against the legacy, for neither C nor D fills the same character with respect to
the legacy as they fill with respect to the payment of Rs. 1,000.
(B) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to
insure B's goods and is liable to him in compensation which he claims to set-
off. The amount not being ascertained cannot be set-off.
(c) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for
Rs. 1,000. The two claims being both definite, pecuniary demands may be set-
off.
(d) A sues B for compensation on account of trespass. B holds a promissory
note for Rs. 1,000 from A and claims to set-off that amount against any sum
that A may recover in the suit. B may do so, for as soon as A recovers, both
sums are definite pecuniary demands.(e) A and B sue C for Rs. 1,000 C cannot
set-off a debt due to him by A alone.
COUNTER-CLAIM
COUNTERCLAIM: RULES 6-A - 6-G
(a) Meaning
"Counterclaim" may be defined as "a claim made by the defendant in a suit

against the plaintiff'. It is a claim independent of, and separable from, the
plaintiff's claim which can be enforced by a cross-action. It is a cause of action
in favour of the defendant against the plaintiff.
(b) Doctrine explained
One of the pleas open to a defendant to defeat the relief sought by the plaintiff
against him is a counterclaim. Counterclaim may be defined as "a claim made
by the defendant in a suit against the plaintiff". Therefore, a defendant in a suit
may, in addition to his right to plead a set-off, set up a counterclaim. It may be
set up only in respect of a Counterclaim". Claim for which the defendant can file
a separate suit. Thus, a counterclaim is substantially a cross-action.
In the leading case of Laxmidas v. Nanabhai'", the Supreme Court observed,

"The question has therefore to be considered on principle as to whether there is
anything in law-statutory or otherwise-which precludes a court from treating a
counterclaim as a plaint in a cross-suit. It is difficult to see any. No doubt, the
Code of Civil Procedure prescribes the contents of a plaint and it might very well
be that a counterclaim which is to be treated as a cross-suit might not conform
to all these requirements but this by itself is not sufficient to deny to the court
the power and the jurisdiction to read and construe the pleadings in a
reasonable manner. If, for instance, what is really a plaint in a cross-suit is
made part of a written statement either by being made an annexure to it or as
part and parcel thereof, though described as a counterclaim, there could be no
legal objection to the counter treating the same as a plaint and granting such
relief to the defendant as would have been open if the pleading had taken the
form of a plaint.
(c) Object

Before the Amendment Act of 1976, no counterclaim or set-off could be claimed
except in money suits. The Law Commission of India, however, recommended to
avoid multiplicity of proceedings, right to the defendant to raise a plea of set-off
in addition to a counterclaim in the same suit. The provisions relating to
counterclaim thus seek to save time of courts, exclude inconvenience to the
parties to litigation.
Nature and scope By the Amendment Act of 1976, a specific provision has been
made for counterclaims by inserting Rules 6-A to 6-G. Under sub-rule (1) of
Rule 6-A, the defendant may set up by way of counterclaim against the claim of
the plaintiff any right or claim in respect of action accruing to the defendant
against the plaintiff either before or after the filing of the suit but before the
defendant has delivered his defence or before the time fixed for delivery of his
defence has expired. Such counterclaim, however, should not exceed the
pecuniary limits of the jurisdiction of the court. In other words, by laying the
counterclaim, pecuniary jurisdiction of the court cannot be ousted and the
power to try the suit already entertained cannot be taken away by accepting the
counterclaim beyond its pecuniary jurisdiction.
When A has a claim of any land against B and brings an action to enforce that
claim, and B has a cross-claim of any kind against A which by the law he is
entitled to raise and have disposed of in the action brought by A, then B is said
to have a right of counterclaim. Similarly, in a suit for injunction, a
counterclaim for possession can be allowed.
(e) Modes of setting up counterclaim
There are three modes of pleading or setting up a counterclaim in a civil suit:
A) In the written statement filed under Order 8 Rule 1;

B) By amending written statement with the leave of the court and setting up
counterclaim; and
C) In a subsequent pleading under Order 8 Rule 9.
(f) Who may file counterclaim?
Normally, it is the defendant who may file a counterclaim against the plaintiff.
But incidentally and along with the plaintiff, the defendant may also claim relief
against the Co-defendants in the suit. But a counterclaim solely against Co-
defendants is not maintainable.
Order VIII Rule 6a. Counter-claim by defendant (1) A defendant in a suit may,
in addition to his right of pleading a set-off under rule 6, set up, by way of
counter-claim against the claim of the plaintiff, any right or claim in respect of a
cause of action accruing to the defendant against the plaintiff either before or
after the filing of the suit. Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim shall have the same effect as a cross-suit so as to enable
the Court to pronounce a final judgment in the same suit, both on the original
claim and on the counter-claim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the
counter-claim of the defendant within such period as may be fixed by the Court.
(4) The counter-claim shall be treated as a plaint and governed by the rules
applicable to plaints.
Order VIII Rule 6B. Counter-claim to be stated: 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 counter-claim.
Order VIII Rule 6C. Exclusion of counter-claim: Where a defendant sets up a

counter-claim and the plaintiff contends that the claim thereby raised ought not
to be disposed of by way of counter-claim but in an independent suit, the
plaintiff may, at any time before issues are settled in relation to the counter-
claim, apply to the Court for an order that such counter-claim may be excluded,
and the Court may, on the hearing of such application make such order as it
thinks fit.
Order VIII Rule 6D. Effect of discontinuance of suit: If in any case in which the
defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded
with.
Order VIII Rule 6E. Default of plaintiff to reply to counter-claim:If the plaintiff
makes default in putting in reply to the counter-claim made by the defendant,
the Court may pronounce judgment against the plaintiff in relation to the
counter-claim made against him or make such order in relation to the counter-
claim as it thinks fit.
Order VIII Rule 6F. Relief to defendant where counter-claim succeeds
where in any suit a set-off or counter-claims is established as defense against
the plaintiff's claim 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 such balance.
Order VIII Rule 6G. Rules relating to written statement to apply to the
counterclaim.
Order VIII Rule 7. Defence or set-off founded upon separate grounds
Where the defendant relies upon several distinct grounds of defence or set-off or
counter-claim founded separate and distinct facts, they shall be stated, as far
as may be, separately and distinctly.
Distinction between set-off and counter-claim:
The distinction between set-off and counter-claim may now be noted:
(1) Set-off must be for an ascertained sum or must arise out of the same
transaction as the plaintiffs claims; a counter-claim, however, need not arise
out of the same transaction.
(2) Set-off is a statutory ground of defence and is to be pleaded in the written

statement. Counter-claim, on the other hand, is a weapon of offence enabling a
defendant to enforce his claim against the plaintiff as effectively as in an

independent action. It is a sort of cross-action. A set-off, on the other hand, can
be used as a shield and not as a sword.
(3) In the case of set-off the plaintiff in order to establish his plea or limitation
has to prove that the set-off was barred when the plaintiff commenced his
action. In a counter-claim the plaintiff has to prove that it was barred when it
was pleaded.
(4) An equitable set-off is a claim by the defendant in defence which generally

cannot exceed the plaintiffs claim. A counter-claim by the defendant may,
however, exceed the plaintiffs claim being in the nature of a cross-action.
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FRAMING OF ISSUE
Order XIV of CPC deal with settlement of issues and determination of suit on
issues of law or on issues agreed upon. The court in light of pleadings of the
parties will frame issues.
Issue: Meaning: an issue is that which, if decided in favour of the plaintiff, will
in itself give a right to relief; and if decided in favour of the defendant, will in
itself be a defence.
1. Order 14 rule 1. Framing of issues— Issues arise when a material
proposition of fact or law is affirmed by the one party and denied by the
other. Each material proposition affirmed by one party denied by the other
shall form the subject of distinct issue.
2. Order 14 rule 2 Issues are of two kinds: (a) issues of fact, (b) issues of law.
3. Court to pronounce judgment on all issues— (1) Notwithstanding that a case
may be disposed of on preliminary issue, the Court shall, subject to the
provisions of sub-rule (2) of order 14, pronounce judgment on all issues. (2)
Where issues both of law and of fact arise in the same suit, and the Court is
of opinion that the case or any part thereof may be disposed of on an issue
of law only, it may try that issue first if that issue relates to— (a) the
jurisdiction of the Court, or (b) a bar to the suit created by any law for the
time being in force and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been determined,
and may deal with the suit in accordance with the decision on that issue.]
4. Materials from which issues may be framed— The Court may frame the
issues from all or any of the materials
5. Power to amend and strike out, issues— The Court may at any time before
passing a decree amend the issues or frame additional issues on such terms
as it thinks fit, and all such amendments or additional issues as may be
necessary for determining the matters in controversy between the parties
shall be so made or framed. The Court may also, at any time before passing
a decree, strike out any issues that appear to it to be wrongly framed or
introduced.
6. Questions of fact or law may by agreement be stated in form of issues—
Where the parties to a suit are agreed as to the question of fact or of law to

be decided between them, they may state the same in the form of an issue,
and enter into an agreement in writing that upon the finding of the Court in
the affirmative or the negative of such issue.
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UNIT – III
Appearance and consequences for non appearance
Order IX of code deal with appearance and consequence for non-

appearance. Order IX contains 14 rules.

Appearance of parties: rules 1 and 2: rule 1 requires the parties to the
suit to attend the court in person or by their pleaders on the day fixed in
the summons of the defendant to appear.
Where neither party appears: where neither the plaintiff nor the
defendant appears when the suit is called out for hearing, the court may
dismiss it. The dismissal of the suit under order rule 3, however, does
not bar a fresh suit in respect of the same cause of action. The plaintiff
may also apply for an order to setaside such dismissal.
Where only plaintiff appears: where the plaintiff appears and the
defendant does not appear, the plaintiff has to prove service of summons
on the defendant. If the service of summons is proved, the court may
proceed exparte against the defendant and may pass a decree in favour
of the plaintiff, if the plaintiff proves his case.
Where only defendant appears: where the defendant appears and the
plaintiff does not appear, and the defendant does not admit the plaintiff’s
claim, wholly or partly, the court shall pass an order dismissing the suit.
EXPARTE DECREE:
MEANING : An exparte decree is decree passed in the absence of the

defendant.
Remedies: the defendant, against whom an exparte decree has passed,

has the following remedies available to him:
1. To apply to the court by which such decree is passed to set it aside
( order 9 rule 13) or
2. To prefer an appeal against such decree : section 96(2) or to file a

revision under section 115 where no appeal lies.
3. To apply for reviews: order 47 rule 1; or
4. To file a suit on the ground of fraud.
Setting aside expate decree : rule 13:
Who may apply: 1) the defendant against whom exparte decree has been
passed . 2) Where there are two or more defendants, any one or more of
them may also make such application.
Where application lies: An application for setting aside expate decree may
be made to the court which passed the decree.

Where such decree is confirmed, reversed, modified by a superior court,
an application may be filed in a superior court.
Grounds: 1. the summons was not duly served;
He was prevented by any sufficient cause from appearing when the suit
was called out for hearing; the court will set aside the decree passed
against him and appoint a day for proceeding with the suit.
Sufficient cause: the expression “sufficient cause” has not been defined
anywhere in the code. It is a question to be determined in the facts and
circumstances of each case.
Limitation under article 123 of limitation Act: an application for setting

aside exparte decree can be made within thirty days from the date of the
decree.
Notice to opposite party: an exparte decree cannot be set aside without

issuing notice to the opposite party and without giving him an
opportunity of hearing.
Execution of decree: effect:the fact that an exparte decree has been

executed does not disentitle the defendant from applying under rule 13
to get it set aside. If the decree is set aside restitution can be ordered.
Appeal: an appeal lies against an order rejecting an application to set

aside the exparte decree.
Revision: an order setting aside an exparte decree is a “ case decided”

within the meaning of section 115 of the code and is, therefore, revisable.
Review: since all the remedies against an exparte decree are concurrent,
an aggrieved party cal also file an application for review if the conditions
laid down in order 47 rule a are satisfied.
Suit : a suit to set aside an exparte decree is not maintainable.
EXAMINATION OF PARTIES: ORDER X

Order X enjoins the court to examine parties with a view to ascertaining matter
in controversy in the suit.
Rule 1. Ascertainment whether allegations in pleadings are admitted or

denied— At the first hearing of the suit the Court shall ascertain from each
party or his pleader whether he admits or denies such allegations of fact as are
made in the plaint or written statement (if any) of the opposite party, and as are
not expressly or by necessary implication admitted or denied by the party
against whom they are made. The Court shall record such admissions and
denials.
Rule 2. Oral examination of party, or companion of party— (1) At the first
hearing of the suit, the Court— (a) shall, with a view to elucidating matters in
controversy in the suit examine orally such of the parties to the suit appearing
in person or present in Court, as it deems fit; and (b) may orally examine any
person, able to answer any material question relating to the suit, by whom any
party appearing in person or present in Court or his pleader is accompanied. (2)
At any subsequent hearing, the Court may orally examine any party appearing
in person or present in Court, or any person, able to answer any material
question relating to the suit, by whom such party or his pleader is
accompanied. (3) The Court may, if it thinks fit, put in the course of an
examination under this rule questions suggested by either party.
Rule 3. Substance of examination to be written— the substance of the

examination shall be reduced to writing by the Judge, and shall form part of the
record.
Rule 4. Consequence of refusal or inability of pleader to answer— (1) Where the

pleader of any party who appears by a pleader or any such person
accompanying a pleader as is referred to in rule 2, refuses or is unable to
answer any material question relating to the suit which the Court is of opinion
that the party whom he represents ought to answer, and is likely to be able to
answer if interrogated in person, the Court may postpone the hearing of the suit
to a future day and direct that such party shall appear in person on such day.
(2) If such party fails without lawful excuse to appear in person on the day so
appointed, the Court may pronounce judgment against him, or make such
order in relation to the suit as it thinks fit.
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ADJOURNMENTS:
Order XVII of CPC deal with adjournments.
1. Court may grant time and adjourn hearing—(1) The Court may, if sufficient
cause is shown, at any stage of the suit grant time to the parties or to any of
them, and may from time to time adjourn the hearing of the suit. No
adjournment shall be granted at the request of a party, except where the
circumstances are beyond the control of that party.
2. When adjournment may be granted:
I. sickness of a party
II. Sickness of a witness or his advocate
III. Non-service of summons.
IV. Reasonable time for preparation of case
V. Withdrawal of appearance by a pleader at the last moment.
3. When adjournment may be refused: the court may refuse the adjournment
on the following grounds:

a) The pleader of a party is engaged in another Court,
b) Unreasonable conduct of a party or his advocate
c) Refusal to examine or cross-examine a witness present in court
d) Assurance or undertaking by the party or his pleader at the previous
hearing to proceed with the case at the next hearing
e) The case being very old, direction by a superior court to dispose of the
matter expeditiously.
f) Inconvenience to the opposite party or his witnesses,
g) The argument of the other side is over.
4. Maximum adjournments: proviso to sub-rule (1) of order XVII mandates that

maximum three adjournments can be granted by the court to a party during
the hearing of the suit.
5. Costs of adjournment – Order XVII (2) of CPC: while granting adjournment,

the court shall, direct the party seeking an adjournment to pay costs or higher
costs to the opposite party.
Order XVII Rule (2): Procedure if parties fail to appear on day fixed: Where, on
any day to which the hearing of the suit is adjourned, the parties or any of
them fail to appear, the Court may proceed to dispose of the suit in one of the
modes directed in that behalf by Order IX or make such other order as it thinks
fit.
Order XVII Rule 3: Court may proceed notwithstanding either party fails to
produce evidence, etc.— Where any party to a suit to whom time has been
granted fails to produce his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to the further progress of the
suit, for which time has been allowed, the Court may, notwithstanding such
default,— (a) if the parties are present, proceed to decide the suit forthwith, or
(b) if the parties are, or any of them is, absent, proceed under rule 2.
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ORDER XVI SUMMONING AND ATTENDANCE OF WITNESSES
1. List of witnesses and summons to witnesses: The trial of the suit commences
with posting of the case for trial. Within fifteen days the parties shall file a list of
witnesses whom they propose to call either to give evidence or to produce
documents. A party desirous of obtaining any summons for the attendance of
any person shall file in Court an application stating therein the purpose for
which the witness is proposed to be summoned. On accepting the list and the
necessary fess required for summoning the witness, the court shall issue
summons to the proposed witnesses which may be served through the Nazarat
and court Amins.
The witness may be summoned to depose in the court on any matter in the
suit. A witness may be summoned to depose orally and also to produce any
specific document. Where the witness is summoned for producing a document

he is not competent to depose on any other matter nor can be required to
depose on matters beyond document.
2. Expenses of witnesses to be paid into Court on applying for summons—

transport expenses and daily allowance payable to witness may be deposited by
the party summoning the witness at the office of the court or may be paid
directly to the party at or after their deposition is recorded. The witness is
entitled to such travelling allowance and daily allowance as the rule permits.
Where the witness has not received traveling allowance and daily allowance, he
should apply to the court and is not entitled to file any suit.
3. The contents in summons— the contents of the summons should show the
time and place where the witness shall be present to give evidence and the
purpose for which he is summoned.
Where the person is summoned to produce document only it would be a
compliance with the summons, if the witness causes the production of
document through some other person instead of doing so personally by
attending the court at the time and place specified in the summons.
5. Power to require persons present in Court to give evidence or produce

document— any person present in Court may be required by the Court to give
evidence or to produce any document then and there in his possession or
power.
6. Summons how served— Every summons shall be served as nearly as may be
in the same manner as a summons to a defendant and the rules in Order V as
to proof of service shall apply in the case of all summonses served under this
rule. 9. Time for serving summons— Service shall in all cases be made a
sufficient time before the time specified in the summons for the attendance of
the person summoned, to allow him a reasonable time for preparation and for
travelling to the place at which his attendance is required. 9. failure to comply
with summons: rule 10: the court has power to enforce the attendance of any
person to whom a summons has been issued and for that purpose , may a)
issue a warrant for his arrest, b)attach and sell his property , c) impose a fine
upon him not exceeding five thousand rupees and d) order him to furnish
security for his appearance and in default commit him to the civil prison.
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ADMISSIONS – ORDER XVII
The importance of admission cannot be underestimated. It is the best and the

strongest piece of evidence since the facts admitted need not be proved. It saves
time, expenses and expedites trial. What a party admits to be true should be
presumed to be true. No exception can be taken to this proposition.
Conclusiveness of admission: an admission is not conclusive as to the truth of

the matter stated therein. It is only piece of evidence.

Admission should be taken as a whole: it is well settled that an admission
must be taken as a whole or not at all. It is not open to court to accept a part
of it and reject the rest.
Notice to admit case: rule 1: any party to suit may give notice in writing that he
admits the whole or any part of the case of the other side.
Notice to admit documents: After discovery of inspection, either party may call
upon the other party to admit within seven days from the date of the service of
the notice in the prescribed form, the genuineness of any document.
Every document which party is called upon to admit, if not denied

specifically or by necessary implication, or stated to be not admitted in the
pleading of that party or in reply to the notice to admit documents, shall be
deemed to be admitted except as against a person under disability. The court
may, however, in its discretion and after recording reasons, require any
document so admitted to be proved otherwise than such admission.
Rule 4. Notice to admit facts— Any party, may, by notice in writing, at any time
not later than nine days before the day fixed for the hearing, call on any other
party to admit, for the purposes of the suit only, any specific fact or facts,
mentioned in such notice. And in case of refusal or neglect to admit the same
within six days after service of such notice, or within such further time as may
be allowed by the Court, the costs of proving such fact or facts shall be paid by
the party so neglecting or refusing, whatever the result of the suit may be,
unless the Court otherwise directs: Provided that any admission made in
pursuance of such notice is to be deemed to be made only for the purposes of
the particular suit, and not as an admission to be used against the party on
any other occasion or in favour of any person other than the party giving the
notice: Provided also that the Court may at any time allow any party to amend
or withdraw any admission so made on such terms as may be just.
Rule 5. Form of admissions— a notice to admit facts shall be in Form No. 10 in

Appendix C, and admissions of facts shall be in Form No. 11 in Appendix C,
with such variations as circumstances may require.
Rule 6. Judgment on admissions— this rule empowers the court to pronounce

the judgment upon the admission made by the parties, without waiting for
determination of any other question between the parties.
PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS
Order XIII of CPC deal with production, impounding and return of documents.
It contains 11 rules.
1. Documentary evidence to be produced at or before the settlement of issues—
(1) the parties or their pleaders shall produce, at or before the settlement of
issues. The Court shall receive the documents so produced
2. Effect of non-production of documents— [(1)] No documentary evidence in
the possession or power of any party which should have been, but has not been
produced in accordance with the requirements of rule 1 shall be received at any
subsequent stage of the proceedings unless good cause is shown to the
satisfaction of the Court for the non-production thereof; and the Court receiving
any such evidence shall record the reasons for so doing. This provision,
however, does not apply to documents, — (a) produced for the cross-
examination of the witness of the other party, or (b) handed over to a witness
merely to refresh his memory.
3. Rejection of irrelevant or inadmissible documents— The Court may at any
stage of the suit reject any document which it considers irrelevant or otherwise
inadmissible, recording the grounds of such rejection.
4. Endorsements on documents admitted in evidence— rule 4 provides that on
every document in admitted in evidence in the suit, the following particulars
shall be endorsed: (a) the number and title of the suit, (b) the name of the
person producing the document, (c) the date on which it was produced, and (d)
a statement of its having been so admitted, and the endorsement shall be
signed or initialled by the Judge.
5. Endorsements on copies of admitted entries in books, accounts and
records—where a document admitted in evidence in the suit is an entry in a
letter-book or a shop-book or a or other account in current use, the party on
whose behalf the book or account is produced may furnish a copy of the entry.
6. Endorsements on documents rejected as inadmissible in evidence— Where a
document relied on as evidence by either party is considered by the Court to be
inadmissible in evidence, there shall be endorsed thereon the particulars
mentioned in clauses (a), (b), and (c) of rule 4, sub-rule (1), together with a
statement of its having been rejected, and the endorsement shall be signed or
initialled by the Judge.
7. Recording of admitted and return or rejected documents— the documents
admitted in evidence shall form part of the record of the suit. Documents not
admitted in evidence shall be returned to the person producing them. Rule 9
provides for return of a document to a party producing it after the disposal of
the suit or appeal or even during the pendency of the suit.
8. Impounding of documents: rule 8 enables a court to impound document.
9. Return of admitted documents— (1) Any person, whether a party to the suit
or not, desirous of receiving back any document produced by him in the suit
and placed on the record shall, unless the document is impounded under rule
8, be entitled to receive back the same.
10. Court may send for papers from its own records or from other Courts— (1)
The Court may of its own motion, and may in its discretion upon the
application of any of the parties to a suit, send for, either from its own records
or from any other suit or proceedings, and inspect the same.
AFFIDAVITS (ORDER XIX)
Meaning: as per Section 3(3) of the General Clauses Act, 1897, affidavit means
“a sworn statement in writing made especially under oath or on affirmation
before an authorized officer or magistrate.
Essentials: the essential features of an affidavit are:

1. It must be a declaration made by a person
2. It must be related to facts.
3. It must be in writing.
4. It must be in the first person
5. It must have been sworn or affirmed before a Magistrate or any other
authorized officer.
Contents of affidavit
An affidavit should be confined to such facts as the deponent is able to prove to

his personal knowledge.
Evidence on affidavit: A court may order that any fact may be proved by
affidavit. Order 19 of the code empowers the court to make an order that any
particular fact may be proved by affidavit, subject, however, to the right of the
opposite party to have the deponent produced for cross-examination. If a party
desires to controvert the averments contained in the affidavit of the opposite
party, he must either file an affidavit-in-reply or cross examine the deponent. In
the absence of this, the court is entitled to come to its own finding.
Generally, interlocutory applications, such as an application for

attachment before judgment, interim injunction, appoint of receiver etc., can be
decided on affidavits.
False affidavit: as per the section 191 of IPC, swearing of false affidavit is an
offence of perjury.
JUDGMENT AND DECREE section 2(2), order 20
DECREE
Section 2(2) of CPC defines decree and Rules 6 to 19 of Order XX of CPC deal
with Decree.
Introduction: A decree is an essential part of the ultimate outcome of the suit.

An appeal lies against a decree and not against a judgment. Without decree an
appeal cannot be “put in motion”.
Essentials of a decree: - The essentials of a decree are
(i) a formal expression of adjudication,

(ii) the adjudication must determine the rights of the parties with regard to
all or any of the matters in controversy,
(iii) The adjudication must be given in a suit. The decree shall include (a) the
rejection of a plaint (which is under Order VII, Rule 2) and (b) the
determination of any question under Sec. 144, but shall exclude (i)
any adjudication from which an appeal lies as an appeal from an
order, and (ii) any order of dismissal for default. A decree may be
preliminary or final or partly preliminary and partly final.

Preliminary decree: a decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of.
Final Decree: a decree is final when such adjudication completely disposes of

the suit. Where no appeal is filed against the preliminary decree it becomes
final. If the decree has finally adjudicated upon all questions raised in the case,
it will be a final decree.
Whether there can be more than one preliminary decree in one suit. - The
Court may pass more than one preliminary decree if the circumstances justify
the same.
If there can be more than one final decree or interim final decree. - There
can be one or more interim final decrees but only one final decree.
Alterations in the rights of the parties in preliminary decree.-If and when

can be made.- any alteration in the rights of the parties subsequent to the
preliminary decree must be adjusted before the final decree is passed.
“Rejection of plaint”.-Section 2 (2) itself provides that a decree shall include

the rejection of a plaint.
“Determination of any question within Sec. 144”. - Decree takes in an order

made under Sec. 144.
“Any adjudication from which an appeal lies as an appeal from an order.-

Adjudication from which an appeal lies as an appeal from an order, does not
amount to decree. Section 104 and R. 1 of O. XLIII of the Code enumerate such
orders.
Rule 6 . Contents of decree— (1) it shall contain the number of the suit,
2. The names and descriptions of the parties,
3. Their registered addresses,
4. Particulars of the claim and shall specify clearly the relief granted or other
determination of the suit.
5. The decree shall also state the amount of costs incurred in the suit, and by
whom or out of what property and in what proportions such costs are to be
paid.
6. The Court may direct that the costs payable to one party by the other shall
be set off against any sum which is admitted or found to be due from the former
to the latter.
Rule 6A: time for drawn up of decree: Every endeavour shall be made to ensure
that the decree is drawn up as expeditiously as possible, and, in any case,
within fifteen days from the date on which the judgment is pronounced
Rule 7 . Date of decree— the decree shall bear the day on which the judgment
was pronounced, and when the Judge has satisfied himself that the decree has
been drawn up in accordance with the judgment, he shall sign the decree.
Rule 8 . Procedure where Judge has vacated office before signing decree—
Where a Judge has vacated office after pronouncing judgment but without
signing the decree, a decree drawn up in accordance with such judgment may

be signed by his successor or, if the Court has ceased to exist, by the Judge of
any Court to which such Court was subordinate.
Rule 9 . Decree for recovery of immovable property— Where the subject-matter
of the suit is immovable property, the decree shall contain a description of such
property sufficient to identify the same, and where such property can be
identified boundaries or by numbers in a record of settlement or survey, the
decree shall specify such boundaries or numbers.
Rule 10. Decree for delivery of movable property— where the suit is for movable
property, and the decree is for the delivery of such property, the decree shall
also state the amount of money to be paid as an alternative if delivery cannot be
head.
Rule 11. Decree may direct payment by installments— (1) Where and in so far
as a decree is for the payment of money, the Court may for any sufficient
reason incorporate in the decree after hearing such of the parties who had
appeared personally or by pleader at the last hearing, before judgment, an order
that payment of the amount decreed shall be postponed or shall be made by
installments, with or without interest
Rule 12. Decree for possession and mesne profits— (1) Where a suit is for the
recovery of possession of immovable property and for rent or mesne profits, the
Court may pass a decree— (a) for the possession of the property and for mesne
profits from the institution of the suit until— (i) the delivery of possession to the
decree-holder, (ii) the relinquishment of possession by the judgment-debtor with
notice to the decree-holder through the Court, or (iii) the expiration of three
years from the date of the decree, whichever event first occurs. Rule 12A.
Decree for specific performance of contract for the sale or lease of immovable
property— where a decree for the specific performance of contract for the sale or
lease of immovable property orders that the purchase money or other sum be
paid by the purchaser or lessee, it shall specify the period within which the
payment shall be made.
14 . Decree in pre-emption suit— (1) Where the Court decrees a claim to pre-
emption in respect of a particular sale of property and the purchase-money has
not been paid into Court, the decree shall— (a) specify a day on or before which
the purchase money shall be so paid.
Rule 15 . Decree in suit for dissolution of partnership— Where a suit is for the
dissolution of partnership, or the taking of partnership accounts, the Court,
before passing a final decree, may pass a preliminary decree declaring the
proportionate shares of the parties, fixing the day on which the partnership
shall stand dissolved or be deemed to have been dissolved, and directing such
accounts to be taken, and other acts to be done, as it thinks fit.
Rule 16 . Decree in suit for account between principal and agent—The Court
shall, before passing its final decree, pass preliminary decree directing accounts
to be taken as it thinks fit and special directions also follow as per rule 17 to
accounts.
Rule 18 . Decree in suit for partition of property or separate possession of a

share therein— Where the Court passes a decree for the partition of property or
for the separate possession of a share therein, then,— (1) if an estate assessed
to the payment of revenue to the Government, the decree shall declare the
rights of the several parties interested in the property, but shall direct such
partition or separation to be made by the Collector, or any gazetted subordinate
of the Collector deputed by him in this behalf, in accordance with such
declaration and with the provisions of section 54; (2) if such decree relates to
any other immovable property or to movable property, the Court may, if the
partition or separation cannot be conveniently made without further inquiry,
pass a preliminary decree declaring the right of the several parties interested in
the property and giving such further directions as may be required.
Rule 19 . Decree when set-off or counter-claims is allowed— (1) Where the

defendant has been allowed a set-off or counter-claim against the claim of the
plaintiff, the decree shall state what amount is due to the plaintiff and what
amount is due to the defendant, and shall be for the recovery of any sum which
appears to be due to either party.
Rule 20 . Certified copies of judgment and decree to be furnished— certified

copies of the judgment and decree shall be furnished to the parties on
application to the Court, and at their expense.
JUDGMENT
Section 2(9) of CPC defines Judgment.
Rules 1 to 5 of Order XX of CPC deal with judgments
1. Judgment when pronounced—The Court shall pronounce judgment in open
Court either at once or on some future day. When the judgment is to be
pronounced on some future day, the Court shall fix a day for that purpose, of
which due notice shall be given to the parties or their pleader Provided that
where the judgment is not pronounced at once, it should ordinarily be delivered
within thirty days from the date on which the hearing of the case was
concluded but, where it is not practicable so to do due to exceptional and
extraordinary circumstances, it may be pronounced within sixty days. Adduce
notice of the day so fixed shall be given to the parties or their pleader. Provided
further that, where a judgment is not pronounced within thirty days from the
date on which the hearing of the case was concluded, the Court shall record the
reasons for such delay and shall fix a future day on which the judgment will be
pronounced and due notice of the day so fixed shall be given to the parties or
their pleaders.
(2) Where a written judgment is to be pronounced, it shall be sufficient if the
findings of the Court on each issue and the final order passed in the case are
read out and it shall not be necessary for the Court to read out the whole
judgment, but a copy of the whole judgment shall be made available for the
perusal of the parties or the pleaders immediately after the judgment is
pronounced.
(3) The judgment may be pronounced by dictation in open Court to a shorthand
writer. If so do, the transcripts of the judgment so pronounced shall be signed
by the judge, bear the date on which it was pronounced, and form a part of the
record.

Rule 2 . Power to pronounce judgment written by judge's predecessor—A Judge
shall pronounce a judgment written, but not pronounced, by his predecessor.
Rule 3 . Judgment to be signed— The judgment shall be dated and signed by
the Judge in open Court at the time of pronouncing it and, when once signed,
shall not afterwards be altered or added, to save as provided by section 152 or
on review.
Rule 4 . Judgments of Small Cause Courts— (1) Judgments of a Court of Small
Causes need not contain more than the points for determination and the
decision thereon. (2) Judgments of other Courts—Judgments of other Courts
contain a concise statement of the case, the points for determination, the
decision thereon, and the reasons for such decision.
Rule 5 . Court to state its decision on each issue— in suits in which issue have
been framed, the Court must record its finding upon separate issue with the
reason therefor.
Rule 5A . Court to inform parties as to where an appeal lies in cases where
parties are not represented by pleaders.
Rule 6B. Provides for furnishing of a copy of judgment to the party on payment
of charges for preferring an appeal.
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INJUNCTIONS
General: order XXXIX deals with various interlocutory orders of which the most
important are temporary injunctions. Injunctions were invented by the court of
Chancery in England as equitable remedies. The equitable nature of the remedy
is emphasized by several provisions of the specific Relief Act, 1963 (which deals
with permanent injunctions) and by rules in Order XXXIX, which deals with
temporary injunctions.
Definition – INJUNCTION: an injunction is judicial process whereby a party is

ordered to refrain from doing or to do a particular act.
Kinds of injunctions:
1. Temporary
2. Perpetual
3. Preventive, prohibitive or restrictive
4. Mandatory
Temporary injunctions: A temporary or interim injunction restrains a party

temporarily from doing the specified act and can be granted only until the
disposal of the suit or until the further order of the court. Temporary
injunctions are issued during the pendency of proceedings. It is well settled
principle of law that interim order can always be granted in the aid of and as
ancillary to the main relief available to the party on final determination of his
rights in a suit or any other proceedings.

ORDER XXXIX OF CPC 1 . CASES IN WHICH TEMPORARY INJUNCTION
MAY BE GRANTED— where in any suit it is proved by affidavit or otherwise—
(a) That any property in dispute in a suit is in danger of being wasted, damaged
or alienated by any party to the suit, or wrongfully sold in a execution of a
decree, or
(b) That the defendant threatens, or intends, to remove or dispose of his

property with a view to defrauding his creditors,
c) That the defendant threatens to dispossess, the plaintiff or otherwise cause

injury to the plaintiff in relation to any property in dispute in the suit.
d) Where a defendant is about to commit a breach of contract, or other injury of

any kind.
e) Where a court is of the opinion that the interest of justice so requires.
Principles: The power to grant injunction is at the discretion of the court.

Injunction should not be lightly granted as it adversely affects the other side.
The grant of injunction is in the nature of equitable relief, and the court has
undoubtedly power to impose such terms and conditions as it thinks fit.
Ordinarily, before granting the injunction, the court must be satisfied about the
following aspects.
a) prima facie case: the first rule is that the applicant must make out a prima
facie case in support of the right claimed by him. The burden is on the plaintiff
to satisfy the court by leading evidence or otherwise that he has a prima facie
case in his favour.
b)irreparably injury: in addition to the prima facie case, the applicant must
further satisfy the court about the second condition by showing that he will
suffer irreparable injury if the application as prayed is not granted.
c) Balance of convenience: the third condition for granting interim injunction is

that the balance of convenience must be in favour of the applicant.
Who may apply: it is not the plaintiff lone who can apply for an interim
injunction. A defendant may also make an application for grant of an injunction
against the plaintiff.
RULE 2. Injunction to restrain repetition or continuance of breach— (1) In any

suit for restraining the defendant from committing a breach of contract or other
injury of any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit, and either before
or after judgment, apply to the Court for a temporary injunction to restrain the
defendant from committing the breach of contract or injury complained, of, or
any breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right.

Order XXXIX Rule 3 Notice – exparte injunction: the court shall, before
granting an injunction, give notice to the opposite party, except where it
appears that the object of granting the injunction would be defeated by delay. In
such a situation, the court shall order the applicant to send a copy of the
application and other documents immediately to the opposite party.
Case law: Morgan Stanley Mutual Fund V., Kartick Das (1994) 4 SCC 225
The Supreme Court indicated the factors which should weigh with a court in
the grant of an exparte injunction:
a. Whether irreparable loss or serious mischief will ensue to the plaintiff.

b. Whether the refusal of exparte injunction would involve greater injustice
than grant of it would involve.
c. The court will also consider the time at which the plaintiff first had notice
of the act complained of so that the making of an improper order against
a party in his absence is prevented.
d. The court would expect a party applying for exparte injunction to show
utmost good faith in making the application.
e. Even if granted, the exparte injunction would be for a limited period of
time.
f. General principles like prima facie case, balance of convenience and
irreparable loss would also be considered by the court.
Breach of injunction: Rule 2-A
Section 94 (c) and Rule 2-A of Order 39 provide for consequences resulting
from a disobedience or breach of an order of injunction issued by the court.
The penalty may be either arrest of the opponent or attachment of his
property or both.
Injunction on insufficient grounds: section 95
Where in any suit in which an order of temporary injunction has been

obtained by the plaintiff on insufficient grounds, the court may order the
plaintiff to pay an amount not exceeding fifty thousand rupees.
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COMMISSIONS SECTION 75 TO 78 AND ORDER 26 (RULES 1 TO 22)

(1) Issue of commissions: section 75
Section 75 to 78 deal with the powers of the court to issues commissions and detailed
provisions have been made in Order 26 of the Code. The power of the court to issues
commission is discretionary and can be exercised by the court for doing full and
complete justice between the parties. It can be exercised by the court either on an
application by a party to the suit or of its own motion.

(2) Purposes: Section 75
Section 75 enacts that a court may issue a commission for any of the following
purposes:
(i) To examine witnesses: sections 76-78, order XXVI rules 1-8
The court may issue a commission for the examination in interrogatories or otherwise of any
person in the following circumstances:
(i) If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction, and (i) is exempted under the Code from attending court; or
(ii) is from sickness or infirmity unable to attend court, or (iii) in the interest of
justice, or for expeditious disposal of the case, or for any other reason, his
examination on commission will be proper, or
(ii) If he resides beyond the local limits of the jurisdiction of the court; or
(iii) If he is about to leave the jurisdiction of the court; or
(iv) If he is a government servant and cannot, in the opinion of the court, attend
without detriment to the public service, or
(v) If he is residing out of the India and the court is satisfied that his evidence is
necessary.
The court may issue such a commission either suo motu (of its own motion) or on the
application of any party to the suit or of the witness to be examined. The evidence taken on
commission shall form part of the record. It shall, however, not be read in evidence in the suit
without the consent of the party against whom it is offered, unless (a) the person, who gave the
evidence, is beyond the jurisdiction of the court, or dead or unable from sickness or infirmity to
attend to be personally examined, or exempted from personal appearance in court, or is a
person in the service of the government who cannot, in the opinion of the court, attend without
detriment to the public service, or (b) the court in its discretion dispenses with the proof of such
circumstances.
(ii) To make local investigation: it is the duty of the parties to produce all evidence
before the court. The court may in any suit issue a commission to such person
as it thinks fit directing him to make local investigation and to report thereon for
the purpose of (a) elucidating any matter in dispute, or (b) ascertaining
the market value of any property or the amount of any mense profits or
damages or annual net profits.
(iii) To adjust accounts: order XXVI rules 11 and 12: In any suit in which an
examination or adjustment of accounts is necessary, the court may issue a
commission to such person as it thinks fit directing him to make such
examination or adjustment.
(iv) To make partition: order XXVI Rules 13 and 14: after passing a preliminary
decree for partition , the court may appoint a commission to partition the

properties in accordance with the rights declared by the court. if the decree
holder applies for the appointment of a commissioner to partition his share, the
other parties whose shares also have been declared may require the
commission to partition shares also.
By the Amendment Act of 1976, Rules 10-A to 10-C have been inserted to provide for
issue of commissions for scientific investigation, sale of movable property or
performance of a ministerial act.
(v) To hold investigation: order XXVI rule 10-A: the court may appoint a
commissioner to hold investigation in certain cases.
(vi) To sell property: Rule 10-C: Where, in any suit, it becomes necessary to sell any
movable property which is in the custody of the court pending the
determination of the suit and which cannot be conveniently preserved, the
court may, if, for reasons to be recorded, is of opinion that it is necessary or
expedient in the interest of justice so to do, issue a commission to such person
as it thinks fit, directing him to conduct such sale and report thereon to the
court.
(vii) To perform ministerial act: Rule 10-B: Where any question arising in a suit
involves the performance of any ministerial act which cannot, in the opinion of
the court, be conveniently performed before the court, the court may, if, for
reasons to be recorded, is of opinion that it is necessary or expedient in the
interest of justice so to do, issue a commission to such person as it thinks fit,
directing him to perform that ministerial act and report thereon to the court.
Bandhua Mukti Morcha V, Union of India, (1984) 3 SCC 161; AIR 1984 SC 802.
(viii) To hold investigation

(ix) To conduct sale; or
(x) To perform ministerial act.
Commission for foreign tribunals: rules 19-22: if a High court is satisfied that a foreign court
wishes to obtain the evidence of a witness residing within its appellate jurisdiction in a
proceeding of a civil nature, it may issue a commission for the examination of such
witnesses.
Report of commissioner evidentiary value: the report of the commissioner will constitute an
important piece of evidence and cannot be rejected except on sufficient grounds.
Issuance of commission by Supreme Court and high courts: the limitations for the issue of
commission set out in section 79 and order XXVI of the code do not apply to issuance of
commission by the Supreme Court or by High courts in exercise of powers under the
constitution of India.
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ORDER XL- APPOINTMENT OF RECEIVERS
Introductory: A receiver is a person appointed for the collection or protection

of property. He is appointed either by court or out of court by individuals or
corporation.
Object and scope: the object and purpose of appointment of a receiver is the
preservation of the subject matter of the litigation pending judicial
determination of the rights of the parties thereto.
Rule 1 of order XL. Appointment of receivers— (1) where it appears to the Court
to be just and convenient, it may appoint a receiver. Courts in India have very
wide jurisdiction to appoint as well as to remove a receiver in the exercise of
their discretion.
The Court may by order— (a) appointment a receiver of any property, whether
before or after decree;
(b) remove any person from the possession or custody of the property;
(c) Commit the same to the possession, custody or management of the receiver
Powers: rule 1(d): the court may confer upon the receiver any of the following
powers:
a. To institute and defend suits.

b. To realize, manage, protect, preserve and improve the property.
c. To collect, apply and dispose of the rents and profits.
d. To execute documents and
e. Such other powers as it thinks fit.
Rule 2 of order XL. Remuneration— The Court may be general or special order
fix the amount to be paid as remuneration for the services of the receiver.
Rule 3 of order XL. Duties— every receiver shall—

(a) Furnish such security, as the Court thinks fit, duly to account for what he
shall receive in respect of the property;
(b) Submit his accounts at such periods and in such form as the Court directs;
(c) Pay the amount due from him as the Court directs; and
(d) Be responsible for any loss occasioned to the property by his willful default
or gross negligence.
Rule 4 of order XL. Enforcement of receiver's duties— Where a receiver— (a)
fails to submit his accounts at such periods and in such form as the Court
directs, or (b) fails to pay the amount due from him as the Court directs, or (c)
occasions loss to the property by his willful 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 his or
any loss occasioned by him, and shall pay the balance (if any) to the receiver.

Rule 5 . 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.
Case law: T.KRISHNASWAMY CHETTY V. C.THANGAVELU CHETTY, AIR

1955 Mad at pp.434-435
The following principles must be borne in mind before a receiver is appointed by

a court.
a. The appointment of a receiver is a discretionary power of the court.

b. It is protective relief
c. A receiver should not be appointed unless he plaintiff prima facie proves
that he has very excellent chance of succeeding in the suit.
d. The court should look at the conduct of the party who makes an
application for appointment of a receiver
Appeal: An order appointing or refusing to appoint a receiver is appealable.
Revision: where no appeal lies, a revision is competent and maintainable.
COSTS
General rule: as a general rule, to award costs is at the discretion of the court.
Normally, in civil proceedings, “Costs shall follow the event”.
Kinds of costs:
The code provides for the following kinds of costs:
1. General costs (section 35)

2. Miscellaneous costs (Order 20-A)
3. Compensatory costs for false and vexatious claims or defenses ( Section
35-A); and
4. Costs for causing delay (Section 35-B).
1. general costs (Section 35)
Object: the object of awarding costs to a litigant is to secure to him the

expenses incurred by him in the litigation.
Principles:
The primary rules in respect of award of general costs are as under:
a. Costs are at the discretion of the court.

b. Normally costs should follow the event and the successful party is
entitled to costs unless there are good grounds for depriving him or that
right.

2. Miscellaneous costs (Order 20-A)
Order 20-A makes specific provision with regard to the power of the court to
award costs in respect of certain expenses incurred in giving notices, typing
charges, inspection of records, obtaining copies and producing witnesses.
Section 35A. Compensatory costs in respect of false or vexatious claims or

defenses— this section provides for compensatory costs. This section is an
exception to the general rule on which section 35 is based, viz, that the “costs
are only an indemnity, and never more than indemnity.
Conditions: the following conditions must exist before this section can be
applied.
1. the claim or defence must be false or vexatious.
2. Objections must have been taken by the other party that the claim or
defense was false or vexatious to the knowledge of the party raising it;
and
3. Such claim must have been disallowed or withdrawn or abandoned in
whole in part.
(2) No Court shall make any such order for the payment of an amount
exceeding three thousand rupees or exceeding the limits of it pecuniary
jurisdiction, whichever amount is less.
(3) The amount of any compensation awarded under this section in respect of a
false or vexatious claim or defence shall be taken into account in any
subsequent suit for damages or compensation in respect of such claim or
defence.
Section 35B. Costs for causing delay: section 35-B is added by the Amendment
Act of 1976. It is inserted to put a check upon the delaying tactics of litigating
parties. It empowers the court to impose compensatory costs on parties who are
responsible for causing delay at any stage of the litigation. Such costs would be
irrespective of the ultimate outcome of the litigation. The payment of costs has
been a condition precedent for further prosecution of the suit, if the party
concerned is a plaintiff and the defense, if he is a defendant. The provisions of
this section are mandatory in nature and, therefore, the court should not allow
prosecution of suit or defense, as the case may be, in the event of a party failing
to pay costs as directed by the court.
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EXECUTION
Section 36 to 74 and order 21 of CPC deal with execution:
“Execution “means the process for enforcing or giving effect to the judgment of
the court.
Section 37 defines the expression “ court which passed a decree”:
The following courts fall within the said expression:

a. The court of first instance which actually passed the decree.
b. The court of first instance in case of appellate decrees.
c. Where the court of first instance has ceased to exist, the court which
would have jurisdiction to try the suit at the time of execution and
d. Where the court of first instance has ceased to have jurisdiction to
execute the decree, the court which at the time of execution would have
had jurisdiction to try the suit.
Section 38: courts by which decrees may be executed: a decree may be

executed either by the court which passed it, or by the court to which it is sent
for execution.
Section 39. Transfer of decree— (1) The Court which passed a decree may,
either on the application of the decree-holder or suo motu, send it for execution
to another Court of competent jurisdiction,—
(a) the judgment debtor actually and voluntarily resides or carries on business,
or personally works for gain, within the local limits of the jurisdiction of such
other Court, or
(b)the judgment debtor has not property within the local limits of the
jurisdiction of the Court which passed the decree sufficient to satisfy such
decree and has property within the local limits of the jurisdiction of such other
Court, or
(c) if the decree directs the sale or delivery of immovable property situate
outside the local limits of the jurisdiction of the Court which passed it, or
(d) if the Court which passed the decree considers for any other reason, which
it shall record in wiring, that the decree should be executed by such other
Court.
Section 39 (2) The Court which passed the decree may of its own motion send it
for execution to any subordinate Court of competent jurisdiction.
Section 39 (3) For the purposes of this section, a Court shall be deemed to be a
Court of competent jurisdiction if, at the time of making the application for the
transfer of decree to it, such Court would have jurisdiction to try the suit in
which such decree was passed.
Sub-section (4) of section 39 of CPC was inserted by code of civil procedure

(Amendment) Act, 2002. Accordingly, the court passing the decree has no power
to execute such decree against a person or property outside the local limits of
its territorial jurisdiction.
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Power of execution:
Section 47 of CPC. Questions to be determined by the Court executing decree—

(1) 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, shall be determined by the Court executing the
decree and not by a separate suit.
Power of executing court:

Section 42. Powers of Court in executing transferred decree—1) The Court
executing a decree sent to it shall have the same powers in executing such
decree as if it had been passed by itself. All persons disobeying or obstructing
the execution of the decree shall be punishable by such Court in the same
manner as if it had passed the decree and its order in executing such decree
shall be subject to the same rules in respect of appeal as if the decree had been
passed by itself.
2) the powers of the Court shall include the following powers of the Court
passed the decree, namely:—
(a) power to send the decree for execution to another Court under section 39;
(b) power to execute the decree against the legal representative of the deceased
judgment-debtor under section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section
(2) shall send a copy thereof to the Court which passed the decree.
PROCEDURE FOR EXECUTION:
All proceedings in execution commence with the filing of an application for

execution. Such application should be made to the court which passed the
decree or, where the decree has been transferred to another court, to that court.
Rules 10-25 and 105-106 of order 21 deals with execution applications.
Who may apply?
a. Decree holder
b. Legal representative of the decree holder, if the decree holder is dead.
c. Representative of the decree-holder.
d. Any person claiming under the decree-holder.
e. Transferee of the decree holder.
Against whom execution may be taken out:

Execution may be taken out against the following persons:
a. Judgment debtor.
b. Legal representatives of judgment debtor, if the judgment debtor is dead.
c. Representative of or the person claiming under the judgment debtor.
d. Surety of the judgment debtor.
To whom application may be made:

An application for execution may be filed
a. In the court which passed the decree , or
b. In the court to which the decree has been transferred for execution.
Contents of application: rule 11 of order 21 of cpc

Oral application— (1) where a decree is for the payment of money the Court
may, on the oral application of the decree-holder at the time of passing of

the decree, order immediate execution thereof by the arrest of the judgment-
debtor, prior to the preparation of a warrant if he is within the precincts of
the Court.
Rule (2) Written application—Save as otherwise provided by sub-rule(1),
every application for the execution of a decree shall be in writing, signed and
verified by the applicant or by some other person proved to the satisfaction
of the Court to be acquainted with the facts of the case, and shall contain in
a tabular form the following particulars, namely—
(a) the number of the suit;
(b) the names of the parties;
(c) the date of the decree;
(d) whether any appeal has been preferred from the decree;
(e) whether any, and (if any) what, payment or other adjustment of the
matter in controversy has been made between the parties subsequently to
the decree;
(f) whether any, and (if any) what, previous applications have been made for
the execution of the decree, the dates of such applications and their results;
(g) the amount with interest (if any) due upon the decree, or other relief
granted thereby, together with particulars of any cross-decree, whether
passed before or after the date of the decree sought to be executed; (h) the
amount of the costs (if any) awarded;
(i) the name of the person against whom execution of the decree is sought;
and
(j) the mode in which the assistance of the Court is required whether— (i) by
the delivery of any property specifically decreed; (ii) by the attachment, or by
the attachment and sale, or by the sale without attachment, of any
property;] (iii) by the arrest and detention in prison of any person; (iv) by the
appointment of a receiver; (v) otherwise, as the nature of the relief granted
may require.
(3) The Court to which an application is made under sub-rule (2) may
require the applicant to produce a certified copy of the decree.
Rule 11A of order 21: Application for arrest to state grounds— where an
application is made for the arrest and detention in prison of the judgment-
debtor, it shall state or be accompanied by an affidavit stating the grounds
on which arrest is applied for.
PROCEDURE ON RECEIVING APPLICATION
Rule 17 of order 21 of CPC. Procedure on receiving application for execution of

decree—
(1) On receiving an application for the execution of a decree as provided by
rule 11, sub-rule (2), the Court shall ascertain whether such of the
requirements of rules 11 to 14 as may be applicable to the case have
been complied with; and if, they have not been complied with, the Court
shall allow the defect to be remedied then and there or within a time to
be fixed by it.
(2) If the defect is not so remedied, the Court shall reject the application:

(3) Where an application is amended under the provisions of sub-rule (1), it
shall be deemed to have been an application in accordance with law and
presented on the date when it was first presented.
(4) Every amendment made under this rule shall be signed or initialled by
the Judge.
(5) When the application is admitted, the Court shall enter in the proper
register a note of the application and the date on which it was made.
RULE 22 OF ORDER 21 OF CPC : Notice to show cause against execution in

certain cases
(a) Where an application for execution is made, more than two years after
the date of the decree, or (b) against the legal representative of a party to the
decree or where an application is made for execution of a decree filed under
the provisions of section 44A, or
(c) Against the assignee or receiver in insolvency, where the party to the
decree has been adjudged to be an insolvent, the Court executing the decree
shall issue a notice to the person against whom execution is applied for
requiring him to show cause, on a date to be fixed, why the decree should
not be executed against him
Rule 23 . Procedure after issue of notice— (1) where the person to whom notice
is issued under rule 22 does not appear or does not show cause to the
satisfaction of the Court why the decree should not be executed the Court shall
order the decree to be executed. (2) Where such person offers any objection to
the execution of the decree, the Court shall consider such objection and make
such order as it thinks fit.
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MODES OF EXECUTION
After the decree holder files an application for execution of a decree, the
executing court can enforce execution. The code lays down following various
modes of execution
(a) delivery of any property specifically decreed :
(b) by appointing a receiver: section 51(d): execution by appointment of a
receiver is known as equitable execution and is entirely at the discretion of
the court.
(e) In such other manner as the nature of the relief granted may require:
Choice of mode of execution: the code allows more than one mode of execution
of decrees.
Simultaneous execution: section 51 of code permits execution of decrees by
different modes. It gives an option to the decree holder of enforcing a decree by
several modes available under the code.
1) movable property: Section 51(a), rule 31: Where the decree is for any specific
movable, or for any share in a specific movable, it may be executed by the
seizure and delivery of the property ; or ii) by detention of the judgment

debtor; or 3) by the attachment and sale of his property or 4) by attachment
and detention both
2) Immovable property: Section 51(a), rule 35 and rule 36: rules 35 and 36
provide the mode of executing decrees for possession of immovable property
to the decree holder. Rule 35 and 36 correspond to the rules 95 and 96
which laid down the procedure for delivery of possession to the auction
purchaser who has purchased the property in an auction sale.
(c) by attachment and sale or by the sale without attachment of any property
Section 51(b) : this section empowers the court to order execution of a
decree by attachment and sale or by sale without attachment of any
property.
sections 60 to 64 and rules 41` to 57 of order 21 deal with subject of
attachment of property.
Property which can be attached: section 60 : section 60(1) declares what
properties liable to attachment and sale in execution of decree, and what
properties are exempt therefrom. All saleable property (movable or
immovable) belonging to the judgment –debtor or over which or the portion
of which he has a disposing power which he may exercise for his own
benefit may be attach and sold in execution of a decree against him. This
section is not exhaustive.
Property which cannot be attached: section 60 and 61: the proviso to sub-
section (1) of section 60 declares that the properties specified therein are
exempt from attachment and sale in the execution of a decree. The list
enumerates certain properties such as necessary wearing apparel, cooking
vessels, bedding, tools of artisans, implements of husbandry, houses of
agriculturalists , wages, salaries, pensions and gratuities’, compulsory
deposits, right to future maintenance etc.,
Modes of attachment: section 62, order 21 rules 43 -54:
Rule 43 . Attachment of movable property, other than agricultural produce, in

possession of judgment-debtor— the attachment shall be made by actual
seizure.
Rule 43A . Custody of movable property— (1) Where the property attached
consists of live-stock, agricultural implements or other articles which cannot
conveniently be removed, leave it in the village or place where it has been
attached, in the custody of any respectable person.
Rule 44 . Attachment of agricultural produce— Where the property to be
attached is agricultural produce, the attachment shall be made by affixing a
copy of the warrant of attachment,— (a) where such produce is a growing crop,
or (b) where such produce has been cut or gathered.
Rule 45 . Provisions as to agricultural produce under attachment— (1) where
agricultural produce is attached, the Court shall make such arrangements for
the custody thereof as it may deem sufficient
Rule 46. Attachment of debt, share and other property not in possession of
Judgment-debtor — (1) In the case of— (a) a debt not secured by a negotiable
instrument, (b) a share in the capital of a corporation, (c) other movable
property not in the possession of the judgment- debtor, except property

deposited in, or in the custody of, any Court, the attachment shall be made by a
written order prohibiting the person in whose name the share stands from
transferring it or receiving dividend thereon.
Rule 47 . Attachment of share in movables— where the property to be attached
consists of the share or interest of the judgment-debtor in movable property
belonging to him and another as co-owners, the attachment shall be made by a
notice to the judgment-debtor prohibiting him from transferring the share or
interest or charging it in any way.
@@@@
SALE OF PROPERTY
Sections 65 to 73 and rules 64 to 94 of order 21 deals with the subject relating

to sale of movable and immovable properties.
Rule 64 . Power to order property attached to be sold and proceeds to be paid to

person entitled— Any Court executing a decree may order that any property
attached by it and liable to sale, or such portion thereof as may see necessary
to satisfy the decree, shall be sold, and that the proceeds of such sale, or a
sufficient portion thereof, shall be paid to the party entitled under the decree to
receive the same.
Rule 65 . Sales by whom conducted and how made—every sale in execution of a
decree shall be conducted by an officer of the Court or by such other person as
the Court may appoint in this behalf, and shall be made by public auction in
manner prescribed.
Rule 66 . Proclamation of sales by public auction— (1) Where any property is
ordered to be sold by public auction in execution of a decree, the Court shall
cause a proclamation of the intended sale to be made in the language of such
Court. (2) Such proclamation shall be draw up after notice to the decree-holder
and the judgment-debtor and shall state the time and place of sale, and specify
as fairly and accurately as possible— (a) the property to be sold or, where a part
of the property would be sufficient to satisfy the decree, such part]; (b) the
revenue assessed upon the estate, where the property to be sold is an interest
in an estate or in part of an estate paying revenue to the Government; (c) any in
cumbrance to which the property is liable; (d) the amount for the recovery of
which the sale is ordered; and (e) every other thing which the Court considers
material for a purchaser to know in order to judge of the nature and value of
the property:
Rule 67 . Mode of making proclamation—Where the Court so directs, such
proclamation shall also be published in the Official Gazette or in a local
newspaper, or in both, and the costs of such publication shall be deemed to be
costs of the sale.
Rule 68 . Time of sale—no sale hereunder shall, without the consent in writing
of the judgment-debtor, take place until after the expiration of at least fifteen
days in the case of immovable property, and of at least seven days in the case of
movable property, calculated from the date on which the copy of the
proclamation has been affixed on the court-house of the Judge ordering the
sale.

Rule 69 . Adjournment or stoppage of sale— (1) The Court may, in its
discretion, adjourn any sale hereunder to a specified day and hour. Provided
that, where the sale is made in, or within the precincts of, the court-house, no
such adjournment shall be made without the leave of the Court. (2) Where a
sale is adjourned under sub-rule (1) or a longer period than thirty days a fresh
proclamation under rule 67 shall be made, unless the judgment-debtor
consents to waive it.
Rule 71 . Defaulting purchaser answerable for loss on re-sale— Any deficiency
of price which may happen on a re-sale by reason of the purchaser's default
shall be recoverable from the defaulting purchaser.
Rule 72 . Decree holder not to bid for or buy property without permission— (1)
No holder of a decree in execution of which property is sold shall, without the
express permission of the Court, bid for or purchase the property.
@@@
SALE OF MOVABLE PROPERTY

Rule 74 . Sale of agricultural produce— (1) Where the property to be sold is
agricultural produce, the sale shall be held,— (a) if such produce is a growing
crop, on or near the land on which such crop has grown, or (b) if such produce
has been cut or gathered, at or near the threshing floor or place for treading out
grain or the like or fodder-stack on or in which it is deposited
Rule 75 . it deals with special provisions relating to growing crops
Rule 76 . Negotiable instruments and shares in corporations— Where the
property to be sold is a negotiable instrument or a share in a corporation, the
Court may authorize the sale of such instrument or share through a broker.
Rule 77 . Sale by public auction— (1) Where movable property is sold by public
auction the price of each lot shall be paid at the time of sale and in default of
payment the property shall forthwith be re-sold. (2) On payment of the
purchase-money, the officer or other person holding the sale shall grant a
receipt for the same, and the sale shall become absolute. (3) Where the movable
property to be sold is a share in goods belonging to the judgment-debtor and a
co-owner, and two or more persons, of whom one is such co-owner, respectively
bid the same sum for such property or for any lot, the bidding shall be deemed
to be the bidding of the co-owner.
Rule 78 . Irregularity not to vitiate sale, but any person injured may sue— No
irregularity in publishing or conducting the sale of movable property shall
vitiate the sale
Rule 79 . Delivery of movable property, debts and shares— (1) Where the
property sold is movable property of which actual seizure has been made, it
shall be delivered to the purchaser. (2) Where the property sold is movable
property in the possession of some person other than the judgment-debtor, the
delivery thereof to the purchaser shall be made by giving notice to the person in
possession prohibiting him from delivering possession of the property to any
person except the purchaser.
SALE OF IMMOVABLE PROPERTY

Rule 82. What Courts may order sales— Sales of immovable property in
execution of decrees may be ordered by any Court other than a Court of Small
Causes.
Rule 83. Postponement of sale to enable judgment-debtor to raise amount of
decree— (1)Where an order for the sale of immovable property has been made, if
the judgment-debtor can satisfy the Court that there is reason to believe that
the amount of the decree may be raised by the mortgage or lease or private sale
of such property, or some part thereof, or of any other immovable property of
the judgment-debtor, the Court may, on his application, postpone the sale of
the property comprised in the order for sale on such terms and for such period
as it thinks proper, to enable him to raise the amount. (2) In such case the
Court shall grant a certificate to the judgment-debtor authorizing him within a
period to be mentioned therein, and notwithstanding anything contained in
section 64, to make the proposed mortgage, lease or sale.
Rule 84. Deposit by purchaser and re-sale on default— (1) On every sale of
immovable property the person declared to be the purchaser shall pay
immediately after such declaration a deposit of twenty-five per cent, on the
amount of his purchase-money to the officer or other person conducting the
sale, and in default of such deposit, the property shall forthwith be re-sold. (2)
Where the decree-holder is the purchaser and is entitled to set-off the
purchase-money under rule 72, the Court may dispense with the requirements
of this rule.
Rule 85 . Time for payment in full of purchase-money— the full amount of
purchase-money payable shall be paid by the purchaser into Court before the
Court closes on the fifteenth day from the sale of the property
Rule 86 . Procedure in default of payment— In default of payment within the
period, the property shall be re-sold
Rule 87 . Notification on re-sale— every re-sale of immovable, property, in
default of payment of the purchase-money within the period allowed for such
payment, shall be made after the issue of fresh proclamation in the manner and
for the period hereinbefore prescribed for the sale.
Rule 88 . Bid of co-sharer to have preference— where the property sold is a
share of undivided immovable property and two or more persons, or whom one
is a co-sharer, respectively bid the same sum for such property or for any lot,
the bid shall be deemed to be the bid of the co-sharer.
Rule 89 . Application to set aside sale on deposit— (1) Where immovable
property has been sold in execution of a degree, any person claiming an interest
in the property sold at the time of the sale or at the time of making the
application, or acting for or in the interest of such person, may apply to have
the sale set aside on his deposition in Court,— (a) for payment to the
purchaser, a sum equal to five per cent of the purchase-money, and (b) for
payment, to the decree-holder, the amount specified in the proclamation of sale
as that for the recovery of which the sale was ordered less any amount which
may, since the date of such proclamation of sale, have been received by the
decree- holder. (2) Where a person applies under rule 90 to set aside the sale of
his immovable property, he shall not unless he withdraws his application, be
entitled to make or prosecute an application under this rule.
Rule 90 . Application to set aside sale on ground of irregularity or fraud

Rule 91 . Application by purchaser to set aside sale on ground of judgment-
debtor having no saleable interest
Rule 92 . Sale when to become absolute or be set aside— (1) When no
application is made under rule 89, rule 90 or rule 91, or where such application
is made and disallowed, the Court shall make an order confirming the sale, and
thereupon the sale shall become absolute:
Rule 93 . Return of purchase-money in certain cases— where a sale of
immovable property is set aside under rule 92, the purchaser shall be entitled
to an order for repayment of his purchase-money, with or without interest as
the Court may direct, against any person to whom it has been paid.
Rule 94 . Certificate to purchaser— where a sale of immovable property has
become absolute, the Court shall grant a certificate specifying the property sold
and the name of the person who at the time of sale of is declared to be the
purchaser. Such certificate shall bear date the day on which the sale became
absolute.
Rule 95 . Delivery of property in occupancy of judgment- debtor— Where the
immovable property sold is in the occupancy of the judgment-debtor or of some
person on his behalf or of some person claiming under a title created by the
judgment-debtor subsequently to the attachment of such property and a
certificate in respect thereof has been granted under rule 94, the Court shall,
on the application of the purchaser, order to delivery to be made by putting
such purchaser or any person whom he may appoint to receive delivery on his
behalf in possession of the property, and, if need be, by removing any person
who refuses to vacate the same.
Rule 96 . Delivery of property in occupancy of tenant
@@@
ARREST AND DETENTION

The code enumerates various modes of execution. One of such modes is arrest
and detention of the judgment debtor in a civil prison. Order 21 rule 30 to 41
deals with procedural provisions relating to arrest and detention.
WHEN ARREST AND DETENTION MAY BE ORDERED

Rule 30 . Decree for payment of money: Every decree for the payment of money,
including a decree for the payment of money as the alternative to some other
relief, may be executed by the detention in the civil prison of the judgment-
debtor.
Who cannot be arrested : sections 56,58, 135,135-A

The following classes’ of persons cannot be arrested or detained in civil prison:

1. woman, or a minor, or a legal representative of a deceased judgment
debtor.
2. Judicial officers, while going to, presiding in, or returning from their
courts.
3. The parties, their pleaders, mukhtars, revenue agents and recognized
agents and their witnesses acting in obedience to a summons, while
going to , or attending or returning from the court.
4. Members of legislative bodies.
5. Any person or class of persons, whose arrest, according to the state
government, might be attended with danger or inconvenience to the
public.
6. A judgment debtor, where the decreetal amount does not exceed rupees
two thousand.
Procedure for arrest:
A judgment-debtor may be arrested at any time and on any day in execution of
decree. After his arrest, he must be brought before the court as soon as
practicable. For the purpose of making arrest, no dwelling house may be
entered after sunset or before sunrise. Further no outer door of a dwelling
house may be broken open unless such dwelling house is in the occupancy of
the judgment debtor and he refuses or prevents access thereto.
Again, where the room is in the actual occupancy of a pardanashin
woman who is not the judgment-debtor, reasonable time and facility should be
given to her to withdraw therefrom.
No order of detention of the judgment debtor shall be made where the
decreetal amount does not exceed rupees two thousand. No judgment debtor
may be arrested unless and until the decree holder prays into court the
subsistence allowance as fixed by the court.
Release of judgment debtor: where the judgment-debtor pays the decreetal
amount and costs of arrest to the officer, he should be released at once.
Notice : order 21 rules 37 and 40:
Where the decree is for payment of money and the application is made for
arrest and detention of judgment debtor, the court shall, instead of issuing a
warrant for arrest, issue a notice calling upon the judgment debtor to appear
and show cause why he should not be committed to civil prison in execution of
the decree.
Period of detention: section 58:
The period of detention of the judgment debtor in civil prison shall be
a) Upto three months, where the decreetal amount exceeds rupees five
thousand
b) Upto six weeks, where the decreetal amount exceeds rupees two
thousand but does not exceed rupees one thousand.
c) Where the decreetal amount does not exceed rupees two thousand, no
detention can be ordered.
RELEASE OF JUDGMENT DEBTOR: SECTIONS 58-59:
A judgment debtor may be released in the following cases:
a) On the amount mentioned in the warrant being paid; or
b) On the decree against him being otherwise fully satisfied; or
c) On the request of the decree holder; or

d) On the omission by the decree holder to pay subsistence allowance
e) On the ground of illness.
REARREST OF JUDGMENT DEBTOR: if the judgment debtor is released
because of mistake of jail authorities, he can be rearrested.
UNIT –IV
SUITS IN PARTICULAR CASES: Sections 79 to 93 and Orders 27 to 37 of

C.P.C deal with suits in particular cases and the procedure to be followed in
such suits.
Suits by or against Government or public officers
Sections 79 to 82 and Order XXVII of the Code lay down procedure where suits
are brought by or against the government or public officers.
Title of suit: Section 79
In a suit by or against the Government, the authority to be named as plaintiff or
defendant, as the case may be, shall be:
a. In the case of a suit by or against the Central Government, the Union of
India; and

b. In the case of a suit by or against the State Government, the state.
Notice: Section 80(1)
Sections 80 of the code declares that no suit shall be instituted against the
government or against a public officer in respect of any act purporting to be
done by such public officer in his official capacity, until the expiration of two
months next after notice in writing has been delivered to, or left at the office of:
a. In the case of a suit against the Central Government, except where it
relates to a railway, a Secretary to that Government;
b. In the case of suit against the Central Government, where it relates to a
railway, the General Manager of that railway;
c. In the case of a suit against the Government of State of Jammu and
Kashmir, the Chief Secretary to that Government or any other officer
authorized by that Government in that behalf.
d. In the case of a suit against any other State Government, a Secretary to
that Government or the Collector of the district and
e. In the case of public officer, such public officer.
Essentials of notice: A notice under section 80 must contain
a. Name, description and place of residence of the person giving notice.
b. A statement of the cause of action.
c. Relief claimed by plaintiff.
Leave of the court: Urgent relief: Section 80(2) was inserted by the Code of Civil
Procedure (Amendment) Act, 1976 enables the plaintiff to insatiate a suit
against the Government or public officer for obtaining urgent or immediate
relief with the leave of the court even without serving notice to the Government
or public officer.
Technical defect in notice: section 80(3): A notice under section 80 cannot be
held invalid and no suit can be dismissed on the ground that there is technical
defect or error in the notice or that the service of such notice is irregular.
Exclusion of period of notice: As per the section 15(2), Limitation Act, 1963, in
computing the period of limitation for instituting, a suit against the Government
or public officer, the period of notice has to be excluded.
Premature suit:
Case law:
Bihar Chowdhary V. State of Bihar, (1984) 2 SCC 627 at p.631
A suit instituted before the expiry of two months of notice as required by section
80 of the Code is liable to be dismissed only on that ground.
Statement in plaint
A plaint can be presented after the expiration of two months of notice, which
must contain a statement that a statutory notice under section 80 of the Code
has been delivered or left as required by sub-section (1) of the said section.
Appeal : an order passed under section 80 is neither a decree nor an
appealable order and , hence, no appeal lies against such order.
Procedure under order 27 of C.P.C:
ORDER XXVII-SUITS BY OR AGAINST THE GOVERNMENT OR PUBLIC

OFFICERSR IN THEIR OFFICIAL CAPACITY
1 . Suits by or against Government— In any suit by or against the Government
the plaint or written statement shall be signed by any person appointed by the

Government who is acquainted with the facts of the case. The Government
pleader in any Court shall be the agent of the Government for the purpose of
receiving processes against the Government issued by such Court.
Order 27 rule 5A : Government to be joined as a party in a suit against a public
officer— Where a suit is instituted against a public officer for damages or other
relief in respect of any act alleged to have been done by him in his official
capacity, the Government shall be joined as a party to the suit.
Order 27 rule 5B. Duty of Court in suits against the Government or a public
officer to assist in arriving at a settlement
Section 81 of CPC: Exemption from arrest and personal appearance— In a suit
instituted against a public officer in respect of any act purporting to be done by
him in his official capacity— (a) the defendant shall not be liable to arrest nor
his property to attachment otherwise than in execution of a decree, and (b)
where the Court is satisfied that the defendant cannot absent himself from his
duty without detriment to the public service, it shall exempt him from
appearing in person.
Section 83 of CPC: When aliens may sue— Alien enemies residing in India with
the permission of the Central Government, and alien friends, may sue in any
Court otherwise competent to try the suit, as if they were citizens of India, but
alien enemies residing in India without such permission, or residing in a foreign
country, shall not sue in any such court.
SECTION 84 of CPC. When foreign State may sue.— A foreign State may sue in
any competent Court: Provided that the object of the suit is to enforce a private
right vested in the Ruler of such State or in any officer of such State in his
public capacity.
SECTION 85. Persons specially appointed by Government to prosecute or
defend on behalf of foreign Rulers
SECTION 86. Suits against foreign Rulers, Ambassadors and Envoys— (1) No
foreign State may be sued in any Court otherwise competent to try the suit
except with consent of the Central Government certified in writing by a
Secretary to that Government. Provided that a person may, as a tenant of
immovable property, sue without such consent as aforesaid a foreign State from
whom he holds or claims to hold the property.
87. Style of foreign Rulers as parties to suits— The Ruler of a foreign State may
sue, and shall be sued, in the name of his State
In this section— (a) "former Indian State" means any such Indian State as the
Central Government may, by notification in the Official Gazette, specify for the
purposes of this;
ORDER XXVIII-SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR
AIRMEN: Officers, soldiers, sailors or airmen who cannot obtain leave may
authorize any person to sue or defend for them. Person so authorized may act
personally or appoint pleader. Process served upon any person authorized by
an officer soldier, sailor or airman under rule 1 or upon any pleader appointed
as aforesaid by such person shall be as effectual as if they had been served on
the party in person.
ORDER XXIX- SUITS BY OR AGAINST CORPORATIONS:
1 . Subscription and verification of pleading— In suits by or against a
corporation, any pleading may be signed and verified on behalf of the

corporation by the security or by any director or other principal officer of the
corporation who is able to depose to the facts of the case.
2 . Service on corporation—where the suit is against a corporation, the
summons may be served— (a) on the secretary, or on any director, or other
principal officer of the corporation, or (b) by leaving it or sending it by post
addressed to the corporation at the registered office, or if there is no registered
office then at the place where the corporation carries on business. Power to
require personal attendance of officer of corporation— The Court may, at any
stage of the suit, require the personal appearance of the secretary or of any
director, or other principal officer of the corporation who may be able to answer
material questions relating to the suit.
ORDER XXX- SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON
BUSINESS IN NAMES OTHER THAN THEIR OWN
1 . Suing of partners in name of firm— (1) Any two or more persons claiming or
being liable as partners and carrying on business, in India may sue or be sued
in the name of the firm (if any) of which such persons were partners at the time
of the accruing of the cause of action, and any party to a suit may in such case
apply to the Court for a statement of the names and addresses of the persons
who were, at the time of the accruing of the cause of action, partners in such
firm, to be furnished and verified in such manner as the Court may direct.
Where persons sue or are sued partners in the name of their firm under sub-
rule (1), it shall, in the case of any pleading or other document required by or
under this Code to be signed, verified or certified by the plaintiff or the
defendant, suffice such pleading or other document is signed, verified or
certified by any one of such persons.
2 . Disclosure of partners' names— (1) where a suit is instituted by partners in
the name of their firm, the plaintiffs or their pleader shall, on demanding
writing by or on behalf of any defendant, forthwith declare in writing the names
and places of residence of all the persons constituting the firm on whose behalf
the suit is instituted.
3 . Service of summons: rule 3 provides for service of summons upon the firm
and its partners.
4 . Rights of suit on death of partner—where two or more persons may sue or
be sued in the name of a firm under the foregoing provisions and any of such
persons dies, whether before the institution or during the pendency of any suit,
it shall not be necessary to join the legal representative of the deceased as a
party to the suit. (2) Nothing in sub-rule (1) shall limit or otherwise effect any
right which the legal representative of the deceased may have— (a) to apply to
be made a party to the suit, or (b) to enforce any claim against the survivor or
survivors.
6 . Appearance of partners— where persons are sued as partners in the name of
their firm, they shall appear individually in their own names, but all
subsequent proceedings shall, nevertheless, continue in the name of the firm.
7 . No appearance except by partners— where a summons is served in the
manner provided by rule 3 upon a person having the control or management of
the partnership business, no appearance by him shall be necessary unless he is
a partner of the firm sued.

8 . Appearance under protest— any person served with summons as a partner
under rule 3 may enter an appearance under protest, denying that he was a
partner at an material time.
9 . Suits between co-partners— This Order shall apply to suits between a firm
and one or more of the partners therein and to suits between firms having one
or more partners, in common; but not execution shall be issued in such suits
except by leave of the Court, and, on an application for leave to issue such
execution, all such accounts and inquiries may be directed to be taken and
made and directions given as may be just.
10 . Suit against person carrying on business in name other than his own—
Any person carrying on business in a name or style other than his own name,
or a Hindu undivided family carrying on business under any name, may be
sued in such name or style as if it were a firm name, and, in so far as the
nature of such case permits, all rules under this Order shall apply accordingly.
@@@@@
ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF

UNSOUND MIND
Suits by or against minors and lunatics:
Minor : In this Order, "minor" means a person who has not attained his
majority within the meaning of section 3 of the Indian Majority Act, 1875.
Minor to sue by next friend— every suit by a minor shall be instituted in his
name by a person who in such shall be called the next friend of the minor.
Where suit is instituted without next friend, plaint to be taken off the file.
Object:: order 32 has been specially enacted to protect he interest of minors and
persons of unsound mind and to ensure that they are represented in suits or
proceedings by persons who are qualified to act as such.
Suit against minors: rule 3: where a suit is instituted against a minor the court
should appoint guardian ad litem to defend the suit. Such appointment
should continue throughout all the proceedings.
Who may act as next friend or be appointed guardian for the suit (rule 4)
Any person who is of sound mind and has attained majority may act as next
friend of a minor or as his guardian for the suit: Provided that the interest of
such person is not adverse to that of the minor and that he is not, in the case of
a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.
Where there is no other person fit and willing to act as guardian for the suit, for
Court may appoint any of its officers to be such guardian, and may direct that
the costs to be incurred by such officer in the performance of his duties as such
guardian shall be borne either by the parties or by any one or more of the
parties to the suit, or out of any fund in Court in which the minor is interested
Rule 6 . Receipt by next friend or guardian for the suit of property under decree
for minor— (1) A next friend or guardian for the suit shall not, without the leave
of the Court, receive any money or other movable property on behalf of a minor
either— (a) by way of compromise before decree or order, or (b) under a decree
or order in favour of the minor.
Rule 7. Agreement or compromise by next friend or guardian for the suit— (1)
No next friend or guardian for the suit shall, without the leave of the Court,

expressly recorded in the proceedings, enter into any agreement or compromise
on behalf of a minor with reference to the suit in which he acts as next friend
or guardian.
8 . Retirement, removal or death of guardian or next friend: rules 8-11
A next friend of guardian of a minor cannot retire without first procuring a fit
person for substituting him and giving security for the costs already incurred
by him. The court may remove a next friend or guardian of a minor, if it
satisfied that 1. His interest is adverse to that of the minor or 2. He is so
connected with the opposite party that it is unlikely that the interest of the
minor will be properly protected by him; or 3. He does not discharge his
duty; or 4. He ceases to stay in India during the pendency of the suit; or 5.
There is any other sufficiently justifiable cause.
Decree against minors: rule 3- A

A decree passed against the minor without appointment of next friend or
guardian is null and void.
Course to be followed by minor plaintiff or applicant on attaining majority:
Rules 12 to 14
1. He may proceed with the suit. In that case he shall apply for an order
discharging the next friend or guardian and for leave to proceed in his
own name.
2. He may abandon the suit and apply for its dismissal on repayment of
costs to the defendant or to his guardian or next friend.
3. He may apply for dismissal of the suit on the ground that it was
unreasonable or improper.
4. Where he is a co-plaintiff, he may repudiate the suit and may apply to
have his name struck off as co-plaintiff.
Persons of unsound mind: The provisions of order 32 also apply to lunatics

and persons of unsound mind.
@@@
ORDER XXXIII- SUITS BY INDIGENT PERSONS
Introduction:
Payment of court fee at the time of institution of suit was not there during the
early British period. It was introduced by Sir John Shore around 1793, to
reduce or avoid unnecessary litigation. As it was found to be successful, it has
become the order of the day.
According to Order VII rule 11, if the sufficient court fee is not paid, the plaint
is liable to be rejected. However, a person should not be deprived of justice for
non-payment of court fee. Any person who is really not in a position to pay
court fee, can file a suit under Order XXXIII CPC as an indigent person. Under
this provision, the court fee is not waived, but temporarily released.
Who is an indigent person:
According to rule 1, the following can be said to be indigent person
a. If a person has not possessed sufficient means to pay the court fee, or
b. If he is not entitled to property worth more than Rs.1,000/-
For the purpose of this rule, the property which cannot be attached under
section 60 CPC shall be excluded. Any person, who wants to invoke this order,
has to make an application under rule 3. Such application shall contain the
particulars as provided under rule 2.
On receiving application the court shall examine whether such
application is in proper form. Thereafter, the court may inquire into the means
of applicant. The court shall give a notice to the opposite party and the
Government Pleader. After hearing the applicant and the other party, the court
may allow or refuse the applicant to sue as an indigent person.
5 . Rejection of application— The Court shall reject an application for
permission to sue as an indigent person—
(a) where it is not framed and presented in the manner prescribed by rules
(b) where the applicant is not an indigent persons
(c) where he has, within two months next before the presentation of the
application disposed of any property fraudulently or in order to be able to apply
for permission to sue as an indigent person. Provided that no application shall
be rejected if, even after the value of the property disposed of by the applicant is
taken into account, the applicant would be entitled to sue as an indigent person
(d) where his allegations do not show a cause of action
(e) where he has entered into any agreement with reference to the subject-
matter of the proposed suit under which any other person has obtained an
interest in such subject-matter
(f) where the allegations made by the applicant in the application show that the
suit would be barred by any law for the time being in force
(g) where any other person has entered into an agreement with him to finance
the litigation.
8 . Procedure if application admitted— Where the application is granted, it shall
be numbered and registered, and shall be deemed the plaint in the suit, and the
suit proceed in all other respects as a suit instituted in the ordinary manner,
except that the plaintiff shall not be liable to pay any court-fee or fees payable
for service of process] in respect of any petition, appointment of a pleader or
other proceeding connected with the suit.
9 . Withdrawal of permission to sue as an indigent person— The Court may, on
the application of the defendant, or f the Government pleader, of which seven
days' clear notice in writing has been given to the plaintiff, order that the
permission granted to the plaintiff to sue as an indigent person be withdrawn—
(a) if he is guilty of vexatious or improper conduct in the course of the suit; (b) if
it appears that his means are such that he ought not to continue to sue as [an
indigent person]; or (c) if he has entered into any agreement with reference to
the subject-matter of the suit under which any other person has obtained an
interested in such subject-matter.
9A . Court to assign a pleader to an unrepresented indigent person— (1) Where
a person, who is permitted to sue as an indigent person, is not represented by a
pleader, the Court may, if the circumstances of the case so require, assign a
pleader to him. (2) The High Court may, with the previous approval of the State
Government, make rules providing for— (a) the mode of selecting pleaders to be
assigned under sub-rule (1); (b) the facilities to be provided to such pleaders by
the Court; (c) any other matter which is required to be or may be provided by
the rules for giving effect to the provisions of sub-rule (1).
10 . Costs were indigent person succeeds— Where the plaintiff succeeds in the
suit, the Court shall calculate the amount of court-fees which would have been
paid by the plaintiff if he had not been permitted to sue as an indigent person
such amount shall be recoverable by the State Government any party order by
the decree to pay the same and shall be a first charge on the subject-matter of
the suit.
11 . Procedure where indigent person fails— Where the plaintiff fails in the suit
or the permission granted to him to sue as an indigent person has been
withdrawn, or where the suit is withdrawn or dismissed,— (a) because the
summons for the defendant to appear and answer has not been served upon
him in consequence of the failure of the plaintiff to pay the court-fee or postal
charges (if any) chargeable for such service or to present copies of the plaint or
concise statement, or (b) because the plaintiff does not appear when the suit is
called on for hearing, the Court shall order the plaintiff, or any person added as
a co-plaintiff to the suit, to pay the court-fees which would have been paid by
the plaintiff if he had not been permitted to sue as an indigent person.
11A . Procedure where indigent persons suit abates— Where the suit abates by
reason of the death of the plaintiff or of any person added as a co-plaintiff, the
Court shall order that amount of court-fees which would have been paid by the
plaintiff if he had not been permitted to sue as an indigent person shall be
recoverable by the State Government from the estate of the deceased plaintiff.
12 . State Government may apply for payment of court-fees— The State
Government shall have the right at any time to apply to the Court to make an
order for the payment of court-fees under rule 10, rule 11 or rule 11A.
13 . State Government to be deemed a party— All matters arising between the
State Government and any party to the suit under rule 10, rule 11 rule 11A or
rule 12 shall be deemed to be questions arising between the parties to the suit
within the meaning of section 47.
14 . Recovery of amount of court-fees.— Where an order is made under rule 10,
rule 11 or rule 11A, the court shall forthwith cause a copy of the decree or order
to be forwarded to the Collector who may, without prejudice to any other mode
of recovery, recover the amount of court-fees specified therein from the person
or property liable for the payment as if it were an arrear of land revenue.
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APPEALS
Section 96 to 112 of CPC and Orders 41 to 45 of CPC deal with appeals.

SECTION ORDER DEAL WITH
sections 96 to 99-A, 107 Order 41 First Appeals
Sections 100- Order 42 Second Appeals
103,107,108

Sections 104-108 Order 43 Appeals from Orders
Order 44 Appeals by Indigent
Persons
Section 109 &112 Order 45 Appeals to the Supreme
Court
APPEAL MEANING: Appeal is a proceeding by which the defeated party

approaches a higher authority or court to have the decision of a lower authority
or court reversed.
ESSENTIALS
Every appeal has three basic elements.
(i) A Decision (usually a judgment of a court or the ruling of an
administrative authority);
(ii) A person aggrieved (who is often, though not necessarily, a party
to the original proceeding); and
(iii) A reviewing body ready and willing to entertain an appeal.
RIGHT OF APPEAL: A right of appeal is not a natural or inherent right. It is
well-settled that an appeal is a creature of statute and there is no right of
appeal unless it is given clearly and in express terms by a statute. Whereas
sometimes an appeal is a matter of right, sometimes it depends upon discretion
of the court to which such appeal lies.
APPEAL IS CONTINUATION OF SUIT: An appeal is a continuation of a suit. A
decree passed by an appellate court would be construed to be a decree passed
by the Court of the first instance. An appeal is virtually a rehearing of the
matter. In Garikapati Veeraya v. N. Subbiah Chaudhary, referring to various
leading decisions on the subject, the Supreme Court laid down the following
principles relating to a right of appeal.
(i) That the legal pursuit of a remedy, suit, appeal and second appeal are
really but steps in a series of proceedings all connected by a intrinsic
unity and are to be regarded as one legal proceeding.
(ii) The right of appeal is not a mere matter of procedure but is a substantive
right.
(iii) The institution of the suit carries with it the implication that all rights of
appeal then in force are preserved to the parties thereto till the rest of
the career of the suit.
(iv) The right of appeal is a vested right and such a right to enter the
Superior Court accrues to the litigant and exists on and from the date
the lis commences and, although it may be actually exercised when
the adverse judgment is pronounced, such right is to be governed by
the law prevailing at the date of the institution of the suit or
proceeding and not by the law that prevails at the date of its decision
or at the date of the filing of the appeal.
(v) This vested right of appeal can be taken away only by a sub-sequent
enactment, if it so provides expressly or by necessary intendment and
not otherwise.
FIRST APPEAL AND SECOND APPEAL: A first appeal lies against a decree
passed by a court exercising original jurisdiction, a second appeal lies against a
decree passed by a first appellate court. Whereas a first appeal can be filed in a
superior court which may or may not be a High Court, a second appeal can be
filed only in the High Court. A first appeal is maintainable on a question of fact,
or on a question of law, or on a mixed question of fact and law. A second
appeal can be filed only on a substantial question of law. No second appeal lies
if the amount does not exceed Rs. 3000. No letters Patent Appeal is
maintainable against a “judgment” rendered by a Single judge of the High Court
to a Division Bench of the same court either in First Appeal or in Second
Appeal.
CONVERSION OF APPEAL INTO REVISION: If an appeal is preferred in a case
in which no appeal lies, the court may treat the memorandum of appeal as a
revision or vice versa.
SECTION 96
Section 96 of the Code confers a right of appeal. It reads as under:
(1) Save where otherwise expressly provided in the body of this Code, or by
any other law for the time being in force, an appeal shall lie from every
decree passed by any court exercising original jurisdiction to the court
authorized to hear appeals from the decisions of such court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the court with the consent of
parties.
(4) No appeal shall lie, except on a question of law, fro, a decree in any suit
of the nature cognizable by Courts of Small Causes, when the amount or
value of the subject-matter of the original suit does not exceed three
thousand rupees.
WHO MAY APPEAL:

(I) A party to the suit who is aggrieved or adversely affected by the decree,
or if such party is dead, his legal representatives.
(II) A person claiming under a party to the suit or a transferee of the
interests of such party, who, so far as such interest in concerned, is
bound by the decree, provided his name is entered on the record of
the suit.
(III)A guardian ad litem appointed by the court in a suit by or against a
minor.
(IV) Any other person, with the leave of the court, if he is adversely
affected by the decree.
APPEAL BY ONE PLAINTIFF AGAINST ANOTHER PLAINTIFF

As a general rule, one plaintiff cannot file an appeal against a co-plaintiff. But
where the matter in controversy in the suit forms subject-matter of dispute
between plaintiffs inter se, an appeal can be filed by one plaintiff against
another plaintiff.
APPEAL BY ONE DEFENDANT AGAINST ANOTHER DEFENDANT
Where the dispute is not only between the plaintiffs and the defendants but
between defendants inter se and such decision adversely affects one defendant
against the other that such appeal would be competent.

AGREEMENT NOT TO APPEAL: An agreement between the parties not to file
an appeal is valid if it is based on lawful or legal consideration and if otherwise
it is not illegal.
APPEAL: NOMENCLATURE NOT MATERIAL: The use of expression “appeal”,
“first appeal” or “second appeal” is neither material nor decisive. It is the
substance and not the form which is relevant.
APPEAL AGAINST EX PARTE DECREE: SECTION 96(2): As stated above, one
of the remedies available to the defendant, against whom an ex parte decree is
passed, is to file an appeal against such a decree under Section 96(2) of the
Code, though he may also file an application to set aside ex pate decree.
NO APPEAL AGAINST CONSENT DECREE: SECTION 96(3): Section 96(3)
declares that no appeal shall lie against a consent decree.
NO APPEAL IN PETTY CASES: SECTION 96(4) Section 96(4) has been inserted
by the Amendment act of 1976. Now, sub-section (4) bars appeals on facts from
decrees passed in petty suits where the amount or value of the subject-matter
of the original suit does not exceed ten thousand rupees. If the suits in which
such decrees are passed are of a nature cognizable by Courts of Small Causes.
APPEAL AGAINST PRELIMINARY DECREE: Failure to appeal against a
preliminary decree, hence precludes the aggrieved party from challenging the
final decree. Where an appeal is filed against a preliminary decree and is
allowed and the decree is set aside, the final decree falls to the ground as
ineffective since there is no preliminary decree to support the final decree.
APPEAL AGAINST JUDGMENT: The Code provides an appeal from a decree
and not from a judgment. An aggrieved party, however, may file an appeal
against the judgment, if a decree is not drawn up by the court.
APPEAL AGAINST DEAD PERSON: No appeal can be instituted against a dead
person. Such an appeal, therefore, can be regarded as a “stillborn” appeal.
FORM OF APPEAL: RULES 1-4
Order 41 lays down the procedure relating thereto. In order that an appeal
may be said to be validity presented, the following requirements must be
complied with.
(i) It must be in the form of a memorandum setting forth the grounds of
objections to the decree appealed from;
(ii) It must be signed by the appellant or his pleader.
(iii) It must be presented to the court or to such officer as it appoints in that
behalf;
(iv) The memorandum must be accompanied by a certified copy of the
decree.
(v) It must be accompanied by a certified copy of the judgment. Unless the
court dispenses with it; and
(vi) Where the appeal is against a money decree, the appellant must deposit
the decreetal amount or furnish the security in respect thereof as per
the direction of the court.
LIMITATION: It states that an appeal against a decree or order can be filed in a
High Court within ninety days and in any other court within thirty days from
the date of the decree or order appealed against.
CONDONATION OF DELAY: RULES 3-A: Rule 3-A has been inserted by the
Amendment Act of 1976. It provides that where an appeal has been presented

after the expiry of the period of limitation specified therefor, it shall be
accompanied by an application that the applicant has sufficient cause for not
preferring the appeal within time.
STAY OF PROCEEDINGS: RULES 5-8
Rule 5 provides for stay of an execution of a decree or an order. After an appeal
has been filed, the appellate court may order stay of proceedings under the
decree or the execution of such decree. The following conditions must,
therefore, be satisfied before stay is granted by the court.
(a) The application has been made without unreasonable delay;
(b) Substantial loss will result to the applicant unless such order is made;
and
(c) Security for the due performance of the decree or order has been given by
the applicant.
The court may also make an exparte order for stay of execution pending the
hearing of the application if the above conditions are satisfied.
Rule 3-A(3), however, lays down that the court shall not grant stay of the
execution of a decree against which an appeal is proposed to be filed so long as
the court does not, after hearing under Rule 11, decide to hear the appeal on
merits.
In case of money decree, sub-rule (3) of Rule 1 as inserted by the Amendment
Act, 1976 provides for the deposit of the decreetal amount or for the furnishing
of security. Explanation to Rule 5(1) clarifies that the order of stay becomes
effective from the date of communication to the court of first instance and not
prior thereto.
SUMMARY DISMISSAL: RULES 11 & 11-A
Rule 11 deals with the power of the appellate court to dismiss an appeal
summarily. Where the appellate court which dismisses an appeal summarily is
other than a High Court, it must record reasons for doing so. However, in
matters involving construction of documents, even a High Court should record
reasons. If the appellant or his pleader does not appear when the appeal is
called on for hearing, the court may dismiss it for default. Where an appeal is
dismissed for default, it may be restored if it is proved that the appellant was
prevented by any sufficient cause from appearing when the appeal was called
on for hearing.
ABATEMENT OF APPEAL
The provisions relating to abatement of suits apply to appeals also.
ADMISSION OF APPEAL: RULES 12, 14
If the appeal is not summarily dismissed, the appellate court shall fix a day for
hearing of the appeal, and the notice of such date of hearing shall be served
upon the respondent with a copy of the memorandum of appeal.
PROCEDURE AT HEARING: RULES 16-21

(A) Right to begin: Rule 16
The appellant has a right to begin. After hearing the appellant in support of
the appeal, if the court finds no substance in the appeal, it may dismiss the
appeal at once without calling upon the respondent to reply. But if the
appellate court does not dismiss the appeal at once, it will hear the

respondent against the appeal and the appellant shall then be entitled to
reply.
(b) Dismissal for default and restoration: Rules 17-19
If the appellant does not appear when the appeal is called on for hearing,
the court may dismiss the appeal in default. The appeal, however, cannot be
dismissed although the notice has not been served upon the respondent, if
the respondent appears when the appeal is called on for hearing.
Where the appeal has been dismissed for default or for non-payment of
process fees, the appellant may apply to the appellate court for the
restoration of the appeal. On sufficient cause being shown, the appellate
court shall restore the appeal on such terms as to costs or otherwise as it
thinks fit.
© Exparte hearing and rehearing: Rules 17 & 21
Where the appellant appears and the respondent does not appear when the
appeal is called on for hearing, the appeal shall be hearing, the appeal shall
be heard ex parte. If the judgment is pronounced against the respondent, he
may apply to the appellate court for rehearing of the appeal. If he satisfies
the court that the notice of appeal was not duly served upon him or that the
was prevented by sufficient cause from appearing when the appeal was
called on for hearing, the court shall rehear the appeal on such terms as to
costs or otherwise as it thinks fit.
(d) Addition of respondent: Rule 20
Where it appears to the appellate court at the hearing of the appeal that any
person who was a party to the suit in the trial court but who has not been
made a party to the appeal is interested in the result of the appeal, the court
may adjourn the hearing of the appeal and direct that such person be joined
as a respondent.
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REFERENCE, REVIEW AND REVISION

Section 113. Reference to High Court—any subordinate Court may state a case
and refer the same for the opinion of the High Court, and the High Court may
make such order thereon as it thinks fit : Provided that where the Court is
satisfied that a case pending before it involves a question as to the validity of
any Act, Ordinance or Regulation or of any provision contained in an Act,
Ordinance or Regulation, the determination of which is necessary for the
disposal of the case, and is of opinion that such Act, Ordinance, Regulation or
provision is invalid or inoperative, but has not been so declared by the High
Court to which that Court is subordinate or by the Supreme Court, the Court
shall state a case setting out its opinion and the reasons there for, and refer the
same for the opinion of the High Court.
114. Review— Subject as aforesaid, any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from
which no appeal has been preferred, (b) by a decree or order from which no
appeal is allowed by this Court, or (c) by a decision on a reference from a Court
of Small Causes, may apply for a review of judgment to the Court which passed
the decree or made the order, and the Court may make such order thereon as it
thinks

115. Revision—section 115 of the CPC deal with the revision.
Scope and applicability of the section. - The jurisdiction of the High Court
under sec. 115 is limited one. Section 115 empowers the High Court to satisfy
itself on three matters : (a) that an order of the subordinate Court is within its
jurisdiction : (b) that the case is one in which the Court ought to exercise
jurisdiction ; and (c) that in exercising jurisdiction, the Court has not acted
illegally, that is in breach of some provision of law, or with material irregularity,
that is by committing some error of procedure in the course of the trial which is
material in that it may have affected the ultimate decision. Is the High Court is
satisfied on those three points; it has no power to interfere because it differs
from the conclusions of the subordinate Court on question of fact or law.
Court may exercise discretion under the section suo motu:- it is not
necessary that an application by a party should be filed and the Court can act
suo motu.
“In which no appeal lies thereto”. - Revision under Sec. 115 lies only when
no appeal either first or second lies to the High Court. Where appeal lies to the
subordinate Court and not to the High Court, revision lies to the High Court.
“Have exercised a jurisdiction not vested in it by law [CI. (a)].- Revision lies
where a subordinate Court has exercised a jurisdiction not vested in it by law.
“Has failed to exercise a jurisdiction so vested” [CI. (b)].- Revision under
Sec. 115 lies where the lower Court has failed to exercise jurisdiction vested in
it by law.
“Acted in the exercise of the jurisdiction illegally or with material
irregularity” [CI. ©]. - Revision lies where the Court has acted in the exercise of
its jurisdiction illegally or with material irregularity.
Proviso to sub-section (1).- As laid down by the proviso, no revision
application shall lie against an interlocutory order unless either of the two
conditions is satisfies, namely, (i) that if the orders were made in favour of the
applicant, it would finally dispose of the suit or other proceeding; or (ii) that the
order, if allowed to stand, is likely to occasion a failure of justice or cause an
irreparable injury.
Sub-section (2). - Sub-section (2) is a new one, added by the Code of Civil
Procedure (Amendment) Act, 104 of 1976. As laid down by the sub-section (2)
the High Court shall not under Sec. 115 vary or reverse any decree or order
against which an appeal lies either to the High Court or to any Court
subordinate thereto.
Court may convert a revision into appeal.-A Court may convert a revision
into appeal where interest of justice demands, provided it has been filed within
the period prescribed for appeal and proper court-fee is paid and there is not
legal infirmity in adopting this procedure.
Court may convert an appeal into revision.-Where an appeal has been filed
but no appeal has been provided by law, the Court may convert the appeal into
revision provided the conditions of Sec. 115 are fulfilled.
Limitation. - The limitation period is ninety days from the date of the decree or
order sought to be revised (Art. 131, Limitation Act, 1963).
Revision dismissed for default may be restored under Sec 151.-
Revision petition dismissed for default may be restored under Sec. 151.

Abatement. - The provisions of O. XXII do not apply to revision petitions and
hence there is no abatement of a revision petition.
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UNIT –V
HISTORY OF LAW OF LIMITATION
In British India, from 1793, Regulations were passed from time to time
fixing the period of limitation for institution of actions. For the first time a
law of limitation was passed by Act XIV of 1859 which came into operation
in 1862. Before 1859, the Courts of Presidency towns of Calcutta, Madras
and Bombay followed the English law and the Muffusil courts followed the
law laid down by the Regulations. The Act of 1859 was followed by the Act
XIX of 1871 and the same was followed by the Act XV of 1877 with some
alterations.
Finally, the Limitation Act of 1908 (IX of 1908) consolidated the law
relating to limitation for suits, appeals and applications. The Act of 1908
consisted of 30 sections and 183 Articles. The Limitation Act, 1963 is an Act
to consolidate and amend the law for the limitation of suits and other
proceedings and for purpose connected therewith. The same has been
amended in 1964,1969,1974,1976 and 1999. The present Act consists of 32
sections and 137 Articles. The section 32 was repealed.

OBJECT OF THE LAW OF LIMITATION
1. The Law of Limitation is an adjective law. It is lex fori.
2. The concept of limitation is related with the fixing of prescribing of
period for barring legal actions. According to Section 2(j) of the
Limitation Act, 1963, ‘ Period of Limitation’ means the period of
limitation prescribed for any suit, appeal or application by the Schedule,
and ‘ prescribed period’ means the period of limitation computed in
accordance with the provisions of this Act.
3. In Halsbury’s Law of England, the objects of the Limitation Acts have
been presented as follows:
“The Courts have expressed at least three different reasons supporting
the existence of statutes of limitation, namely, -
a. That long dormant claim has more of cruelty than justice in them.
b. That a defendant might have lost the evidence to dispute the State
claim.
4. The object of limit in legal actions is to give effect to the maxim ‘interest
reipublicae ut sit finis litium’ i.e. the interest of the State requires that
there should be limit to litigation and to prevent disturbance or
deprivation of what may have been acquired in equity and justice by
long enjoyment or what may have been lost by party’s own inaction,
negligence or laches.
5. Wood, in his ‘Limitation’ says “The Statutes of limitation are known as
statutes of repose or peace”.
6. “Delay defeats the equity and ‘Visilantibus non dormientibus jura
subveniunt’ i.e., Courts help those who are vigilant and do not slumber
over their rights are the reasons for accepting the concept of limitation.
7. The statutes of limitation are statues of repose, to quiet title, to
suppress frauds and to supply the deficiency of proofs arising from the
ambiguity, obscurity or the antiquity or transactions.
In B.B. & D. Mfg, Co., V. ESI Corporation (AIR 1972 SC 1935) , the
Supreme Court has observed that :
The object of the Statutes of limitations to compel a person to exercise his
rights of action within a reasonable time as also to discourage and suppress
stale, fake or fraudulent claims.
GENERAL PRINCIPLES OF LAW OF LIMITATION

1. The object of the Limitation Act is to put an end to the litigation in the
interest of the State. The Law of limitation prescribes a limit for every
dispute. “Interest republica ut sit fines litium” which means the interest
of the state requires that a period should be an end to litigation.
2. It imposes more financial burden on the state, if there is no limitation.
3. It there is no limitation, it also causes hardship to the judiciary. It
consumes the most of the time of the courts. The numerous vexatious,
harassment suits will be filed in the courts.

4. The death of the parties and witnesses, the loss of destruction of
documents and the fading of memory in the course of time, render such
a limit highly expedient for putting a limit to litigation.
5. No hindrance should be placed upon free circulation of property but so
long as the title to the property remains dubious and unsettled such
circulation cannot take place freely or at all.
6. The law of limitation renders the peace in the society.
7. For every kind of dispute, limitation is fixed by the limitation Act to do
justice to every claimant. It is the duty of the claimant to be cautious on
his own right. He must be careful on his property. The protect his right
is inherent in every man. The state cannot post a police officer or
revenue officer before each house or in each street.
8. Law of Limitation and law of prescription are sister laws. Prescription
says that one can acquire title over a property if he is in possession for a
prescribed period uninterruptedly. Law of limitation also supports the
said principle.
EXTENSION
Object: the principle of limitation law is that limitation begins to run from
the date of accrual of the cause of action. Sections 6.7 and 8 are exceptions
to this principle. In these cases, the period of limitation does not run from
the date of accrual of the cause of action, but from the date on which the
disabilities cease. The object o sections 6,7 and 8 is to protect the minor,
insane or an idiot who are suffering from legal disabilities and not to place
them in loss and inconvenience. In the eye of law, they are incapable of
understanding the rights and liabilities. Hence the famers of the Limitation
Act give the provisions of Secs.6,7 and 8 extending the period of limitation
to the persons suffering with disability i.e., minority, insanity or idiocy.
EXTENSION OF PRESCRIBED PERIOD IN CERTAIN CASES
Sections 6, 7, 8 and 9 of Limitation Act, 1963 lay down the provisions
extending the period of limitation for various cases suffering with disability,
i.e., minority, insanity or idiocy.
CONDONATION OF DELAY: Section 5 of the Limitation Act, 1963 deal
with extension of prescribed period in certain cases, which is simply called
s ‘condonation of Delay;
ESSENTIALS
1. Section 5 applies to any appeal or any application, other than an
application under any of the provisions of Order XXI of the Code of
Civil Procedure, 1908
2. If the appellant or the applicant satisfied the Court that he had
sufficient cause for not preferring the appeal or making the
application within such period.
3. Section 5 of Limitation Act, 1963 does not apply to suits i.e., the
original cause of action.

4. As per explanation to the section 5 of the Act, the fact that the
appellant or the applicant was misled by any order, practice or
judgment of the High Court in ascertaining or computing the
prescribed period may be sufficient cause within the meaning of this
section.
5. Section 5 of Limitation Act applies to application made under the
provisions of Income Tax Act.
6. This section applies to equally civil and criminal proceedings.
7. This section does not apply to appeals for which the period of
limitation is fixed only by the rules of the High Court and not by this
Act.
MEANING OF SUFFICIENT CAUSE
‘Sufficient cause ‘means some cause beyond the control of the party
through acted with due care and attention.
SUFFICIENT CAUSE:
The following are some of the sufficient causes:
1. Illness: illness may constitute a sufficient cause, if the appellant
reasonable convince the court. Mere illness of a appellant is no excuse
illness must be must be suffered by the appellant himself or appellant
counsel. The illness must be at the time of the expiry of the time.
2. Imprisonment: imprisonment by itself is not sufficient cause for not filing
the appeal in time. The Act does not make distinction between prisoners
and others.
Eg: the appellant was in jail. His agent went to file an appeal. Before
filing the appeal, the agent suffered illness. The delay may be excused.
3. Poverty: poverty is not sufficient ground since the appellant has a chance
a file appeal in forma pauperis within the prescribed time. Further under
Article 39-A of the constitution of India. ‘Free Legal Aid’ is provided to the
poor and indigent persons.
4. Paradanashin lay: the system of parda nashin is not a sufficient ground
to excuse the delay.
5. Minors: the protection is given to minors under section disability, which
provides for protection of minors interest in respect of suits and
application for execution of decrees, but no such exemption is extend in
respect of minor’s appeal as that could be preferred by the guardian on
record. Appellant minor represented by guardian cannot plead for
extension of time if the guardian lacked diligence.
6. Mistake of court , or misled by rulings: Mistake of court is a good cause
of excusing the delay. Where court erred in not giving information of
delivery of judgment as required under the law, the resulting delay in
filing the appeal can be excused.
7. Mistake of counsel: the mistake of counsel if bona fide and made in good
faith which term includes reasonable care and skill can be successfully
pleaded as sufficient cause within the meaning of section 5.
8. Ignorance of law: Ignorance of law is not a sufficient ground for the
condonation of delay. It is not excusable.

9. Mistake of law: mistake of law must be bonafide, reasonable and was
taken in good faith. Alteration of law is not excuse for a lazy litigant, who
sleeps in ignorance of it.
10.Negligence: the law helps those who are not vigilant and not those who
sleep over their rights.
11. Delay in obtaining copies: section 12 of Act deal with the computation
of limitation period in which process the time taken in respect of copies
of decrees and judgment may be deducted.
12. Miscellaneous grounds: there are other miscellaneous grounds which
may form sufficient cause for the condonation of delay, viz., and inability
to get stamps and defective vakalatnama and other instances.
CASE – LAW:
Sri Veera Hanuman Rice & Flour Mill and another Vs
State Bank of India, Ramachndrapuram, A.P. (2000) 5SCC 248
Brief facts: the plaintiff Bank filed a suit against the defendants (appellant
herein) on the file of the Senior Civil Judge, Ramachandrapuram, A.P.,
and obtained a preliminary decree on 31-12-1987 for a sum of Rs.
70,087.75. the decree-holder ought to have filed an application for
passing a final decree in case of default on the part of the judgment –
debtors on or before 31-12-1991, but actually filed an application on 27-
7-1994 for passing a final decree invoking order 34 rule 5 C.P.C along
with an application under section 5 of the Limitation, 1963 seeking for
the condonation of delay contending that during the above period the
advocate of the bank was attending court works in other cases and
bank’s argument was wrong and misleading. The High court did not
consider the objection of the Judgment – debtor and gave judgment in
favour of the bank. The aggrieved judgment debtor appealed against it.
Judgment: the Supreme Court gave judgment in favour of the judgment
debtor and held that condonation of delay of 714 days was against section 5
of the Limitation Act, 1963.
Sufficient cause - how to be determined:

The following guidelines should be kept while determining the sufficient
cause of condonation:
(1) Ordinarily a litigant does not stand to benefit by dodging an appeal.

(2) If the party is not vigilant about his right he must explain every day's
delay. The doctrine of every day's delay must be condoned must be
applied in a rational, common sense and pragmatic manner.
(3) The cause would be decided on merits after hearing the parties.
(4) The acceptability of the explanation is the criteria for deciding whether
the delay should be condoned or not, but not the length of the delay.
(5) The reason for the delay should be given and considered and there
should be no prejudice to be caused to the other side because the bar of

limitation which is available to a party cannot be permitted to be
defeated.
(6) When substantial justice and technical considerations are pitted
against each other, cause of substantial justice deserves to be
preferred.
(7) There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence, or on account of other way mala fides.
The presumption would be just the round.
(8) Any explanation sought to be given for the delay in filing the appeal
or application beyond the period of limitation would have to be
considered on the fact of each case.
(9) The approach of a school master using his rod to discipline the student
should not be adopted and the attitude must be one informed with
greatest awareness for the cause of justice.
(10) The fact that the judiciary is capable of removing injustice is to
be respected.
(11) View of the fact that the right of one appeal should always be
available to the litigant specially when the delay is not extraordinary and
satisfactory explanation has been tendered.
(12) The conduct of the party seeking condonational is a relevant factor to
be considered by Court in allowing or refusing condonation.
(a) Liberal interpretation of 'Sufficient Cause':- The· words 'sufficient

cause' should receive liberal construction. The Supreme Court and High
Courts have repeatedly considered liberal interpretation of 'sufficient cause'
in several decisions. In Sandhya Rani v. Sudharani, (AIR 1978 SC 537) The
Supreme Court has made it clear that the existence of 'sufficient cause'
should receive a liberal construction whether it is a Government or a private
party.
In Radhakirshna Rai v. Allahabad Bank, [(2000) 9 SCC 733], even

when there was delay of 1418 days in filing appeal before the Division
Bench and the appellant took the plea that he was kept under a wrong
impression by his counsel that the appeal was pending in High Court even
though no appeal was actually filed and the Supreme Court has held that
though delay was extraordinarily long cause shown by the appellant was
sufficient to condone the delay.
In General Manager (W), BCCL v. Minoti Engineering Works, (2002 (I)

CHN 549), it is held that in the matter of condonation of delay, the approach
that should be adopted by the Court must be pragmatic and justice oriented

in order to render justice between the parties. The Court has, however, to
assess the due diligence of the parties craving for condonation.
In Lal Singh v. State of Haryana, [(2003 (I) ICC 535 (P&H)], it has been
held that while condoning the delay it must be remembered by the Court
that in every case of delay there can be some lapses on the part of the
litigant concerned but that alone is not enough to turn down his plea and to
shut the door against him. If the explanation does not smack of mala fide
nor is it put forth as a part of dilatory strategy the Court must show utmost
consideration to the suitor to condone the delay.
The words 'sufficient cause' is an elastic expression for which no hard

and fast guidelines can be prescribed. The Courts have a wide discretion in
deciding sufficient cause keeping in view the peculiar facts and
circumstances of each case.
4. Some Decisions relating to Sufficient Cause
(1) The following are some of the decisions relating to sufficient causes:
Illness may be sufficient cause, but it must be proved that the man was
utterly disabled to attend to any duty
(2) Imprisonment in a criminal case may be a sufficient cause and the time
spent in jail may be deducted.
(3) A bona fide mistake of fact on the part of the party will be sufficient
cause within the meaning of Section 5 of the Limitation Act.
(4) Mistaken advice given by a legal practitioner may, in the circumstances

of a particular case give rise to sufficient cause. If the mistake of the legal
adviser is the result of negligence, delay cannot be condoned. Mistake of a
junior counsel is not a sufficient cause, nor is advice of a counsel's clerk.
(5) A mistake or ignorance of law is not a sufficient cause. But, if the

mistake be bona fide, it will be considered as sufficient cause. Delay due to
conflicting decisions misleading the party in filing appeal is a good ground
for condoning delay.
(6) Where a decree which is wrongly drawn up is amended by the Court after
the expiration of the time prescribed for appeal against the original decree,
the party affected by the amendment can appeal against the decree as
amended, and the delay will be excused under the Section 5 of the
Limitation Act.

(7) Ignorance of the fact of the death of a party whose legal representative
have to be brought on record constitutes a 'sufficient cause' within the
meaning of the Section 5 of the Limitation Act, for excusing the delay in
seeking to set aside abatement.
(9) Delay in filing an appeal due to inability to get stamps was excusable.
(10) Where the period of filing the appeal expired during the vacation,
but the appeal was filed seven days after the opening of the Court, and
the delay was due to the fact that the Court fee paid on the application for
copy of the decree was deficient, but the appellant received the information
of deficiency later and as soon as he knew it he took necessary steps in all
haste, it was held that the delay should be condoned.
(11) The poverty of the appellant in consequence of which he was not able to
pay Court fees in time is not a sufficient cause for admitting an appeal out
of time. Hardship is no ground for condonation.
(12) Where the pleader's name is not mentioned in the vakalatnama by pure
mistake and the mistake is due to pure inadvertence and accident and do
not proceed from any dishonest intention, there is sufficient cause for
accepting a fresh vakalatnama complete in every respect after the expiry of
the period of limitation for the appeal.
(13) There is no general principle saving the party from all mistakes of its
counsel. Mistaken advice given by a lawyer negligently and without
due care is not sufficient cause for condonation of delay in filing appeal
or application. But it is held by Delhi High Court that the plaintiff cannot be
made to suffer because of the negligence of his lawyer when it is proved that
he was diligently prosecuting the suit. So the delay was condoned.
(14) Negligence of servants or an unqualified man, who is authorised with

the filing an appeal is not a sufficient cause.
(15) Delay cannot be condoned on the ground that the judgment is delivered
nearly a month after the arguments have been heard.
(16) Basing on the decisions of different Courts, the following are also
considered as grounds to condone delay under sufficient cause:
(i) Illness of appellant's mother, husband/wife or sister-in-law is

sufficient cause under the exceptional circumstances.

(i) Remained confined under medical advice, to bed being a patient of
heart disease is sufficient cause for condonation of delay in appeal.
(iii) Prevention of the appellant from filing the appeal on account of

her having had abortion and consequent haemorrhage is sufficient cause to
condone delay in appeal.
(iv) Delay due to accident was accepted as sufficient cause.
(v) Delay due to non-supply of information to party by counsel in ex

parte decree is sufficient cause for condonation of delay.
(vi) Delay in getting certified copy of the judgment and decree is

sufficient cause to condone the delay in appeal.
(vii) Exigencies of military service is considered as sufficient cause.

(viii) M istake of Court is sufficient cause to condone the delay.
(ix) Wrong entry in lawyer's diary is sufficient cause.
5. Illustrations of not-sufficient cause
Basing on the decisions of different Courts, the following are the

illustrations of not sufficient cause:
(i) Absence of counsel is not a sufficient cause.
(ii) Allegation of ignorance of law is not sufficient cause.
(iii) Delay on the part of State Government due to lack of fund cannot be
considered as sufficient cause.
(iv) Late discovery of evidence is not a sufficient cause.
(v) Moving file from one section to another is not sufficient cause.
(vi) Non-availability of warrant is not the sufficient cause.
(vii) Lack of reasonable skill of legal practitioner is not sufficient cause.

(viii) Illiteracy by ·itself is not a ground for condonation of delay.
(ix) Correspondence is not sufficient to condone delay.
(x) The business of a party in itself is not a sufficient ground to condone the
delay in appeal.

(xi) The mere fact of appellant being a pardanashin lady could not file the
appeal in time is not sufficient cause.
6. Condonation of delay in filing appeal - when not to be granted
(i) When no reason was assigned as to why the appeal was filed beyond time,
the delay in filing is not condoned.
(ii) When delay is made in filing the appeal due to gross negligence and
deliberate inaction, the delay is not condoned.
(iii) A party who is negligent in complying with the orders of the Court is not
entitled to get condonation of delay in filing an appeal.
(iv) Delay in filing appeal was due to routine and leisurely interdepartmental
consultations of the appellant is not condoned.
7. Non-applicability of Section 5 of the Limitation Act, 1963
I. Reading of Section 5 of the Limitation Act, 1963 itself reveals it does not
apply to the suits and the proceedings under Order XXI of the Code of Civil
Procedure.
II. As per sub-section (1) of Section 29 of the Limitation Act, 1963, the
provisions of Section 5 shall not affect Section 25 of the Indian Contract Act,
1872.
III. According to Section 29(2) of the Limitation Act, 1963, where any special
or local law prescribed for any suit, appeal or application a period of
limitation different from the period prescribed by the Schedule, the
provisions of Section 3 shall apply as if such period were the period
prescribed by the Schedule and for the purpose of determining any period of
limitation prescribed for any suit, appeal or application by any special or
local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply
only in so far as, and to the extent which, they are not expressly excluded by
such special or local law.
If the special or local law is a complete Code in the matter of

limitation then Section 29(2) is not applicable.
Section 29(2) of Limitation Act makes Sections 4 to 24 of the

Limitation Act applicable when computing limitation under a special or local
law exactly in the same manner as they would be applicable when
computing limitation

under the Limitation Act, 1963. In Vidya Charan Shukla v. Khubchand, AIR
1964 SC 1099), it has been held that unless the period of limitation
prescribed by any special or local law is different from the period prescribed
in the Schedule, Sections 4 to 24 shall not apply to any proceeding under a
special or local law.
Section 29(3) of the Limitation Act, 1963 states that save as

otherwise provided in any law for the time being in force with respect to
marriage and divorce, nothing in the Limitation Act shall apply to any suit
or other proceedings under any such law. Hence, Section 5 of the Limitation
Act is not applicable to a petition under Section 12(1 )(d) of Hindu Marriage
Act. However, Section 5 of the Limitation Act would apply to any appeal
presented to High Court under the Hindu Marriage Act, 1955.
As per Section 29(4) of the Limitation Act, 1963, Sections 25 and 26

and the definition of easement in Section 2 shall not apply to cases arising
in the territories to which the Indian Easement Act, 1882 may for the time
being extend.
LEGAL DISABILITY - CONDITIONS – WHERE COMES TO AN END
1. Legal Disability
Section 6 of the Limitation Act, 1963 provides that:
I. Where a person entitled to institute a suit or make an application

for the execution of a decree is, at the time from which the prescribed
period is to be reckoned, a minor including a child in the womb (as per
explanation of the Section) or insane, or an idiot, he may institute 'the suit
or make the application within the same period after the disability has
ceased, as would otherwise have been allowed from the time specified there
for in the third column of the schedule.
2. Where such person is, at the time from which the prescribed period is to
be reckoned, affected by two such disabilities, or where, before his disability
has ceased, he is affected by another disability, he may institute the suit or
make the application within the same period after both disabilities have
ceased, as would otherwise have been allowed from the time so specified.
3. Where the disability continues upto the death of that person, the legal
representative may institute the suit or make the application within the
same period after the death, as would otherwise have been allowed from the
time so specified.

4. Where the legal representative referred to in sub-section (3) is, at the date
of the death of the person whom he represents, affected by, any such
disability, the rules contained in sub-section (l) and (2) shall apply.
5. Where a person under disability dies after the disability ceases but within
the period allowed to him under this Section, his legal representative may
institute the suit or make the application within the same period after the
death as would otherwise have been available to that person had he not
died.
2. Disability of one of several persons
According to Section 7 of the Limitation Act, 1963, Where one of

several persons jointly entitled to institute a suit or make an application for
the execution of a decree is under any such disability, and a discharge can
be given without the concurrence of such person, time will run against them
all; but, where no such discharge can be given, time will not run as against
any of them until one of them becomes capable of giving such discharge
without the concurrence of the others or until the disability has ceased.
As per Explanation-I, this section applies to a discharge from every

kind of liability, including a liability in respect of any immovable property.
Explanation-Il provides that for the purposes of this section, the manager of
a Hindu Undivided Family governed by the Mitakshara Law shall be deemed
to be capable of giving a discharge without the concurrence of the other
members of the family only if he is in management of the joint family
properly.
3. Special Exception
According to Section 8 of the Limitation Act, 1963, nothing in Section

6 or in Section 7 applies to suits to enforce rights to pre-emption, or shall be
deemed to extend, for more than three years from the cessation of the
disability or the death of the person affected thereby, the period of limitation
for any suit or application.
4. Continuous running of time
As per Section 9 of the Limitation Act, 1963, where once time has
been to run, no subsequent disability or inability to institute a suit or make
an application stop it. However, where letters of administration to the estate
of a creditor have been granted to his debt, the running of the period of

limitation for a suit to recover the debt shall be suspended while the
administration continues.
In Bailochan Karan v. Basant Kumari Naik, (AIR 1999 SC 876), the

Supreme Court has expressed the view that Section 6, 7 and g. of the
Limitation Act, 1963 have to be read together and that Section 6 is
controlled by Section 8 which serves as exception to Sections 6 and 7.
Section 6 should be read specially with Section 8 which controls it

and lays down that Section 6 does not apply to suits to enforce rights of pre-
emption and that the maximum extension of the period of I imitation under
Section' 6 is three years.
Section 6 has been made applicable to special and local laws, unless
expressly excluded.
In Sirul v. Mythili, (1931 (61) MU 688), it has been held that only
disabilities covered by Section 6 are minority, lunacy and idiocy of the
person entitled to sue or file an application for execution. The insolvency of
the party does not attract Section 6.
Section 6 applies to all suits except suits to exercise a right of pre-

emption, to a suit for recovery of possession based on title. It also applies to
applications for execution of decrees. But Section 6 will not grant an
indulgence to a minor entitled to prefer an appeal.
According to decisions of Courts, Section 6 does not cover:
(i) a case of an application under order 21, rule 90 of the Civil Procedure
Code to set aside a sale held in execution of a decree.
(ii) an application for the readmission of an appeal under Order 41,Rule

10 of the Civil Procedure Code.
(iii) an application for bringing on record legal representatives of a

deceased party
(iv) an application for a supplementary decree under Order 34 Rule 6
(v) an application to obtain a final decree for sale in a mortgage suit.
(vi) In Navrangi v. Ram Charan, [AIR 1930 Pat. 455 (471)] it has been
held that the only disabilities which save the operation of the
Limitation Act are those mentioned in Section 6, which recognizes

only three classes of persons as being under legal disability,
namely, a minor, an insane person and an idiot, and does not
include in idol or a muth.
5. Minor
The general principle of law is that time does not run against a minor.
As per Section 3 of the Majority Act, 1975, 'minor' means a person

who has not attained the age of majority. He is deemed to have attained his
majority when he shall have completed his age of twenty-one years and not
before. If the minor claims the benefit of the Section 6 of the Limitation Act,
it is for him to establish affirmatively and clearly that he is under the age of
21 at the time of the institution of the suit. An age of a person must be
calculated from the date of birth and not from his conception. This is also
true even if the child in womb is treated as minor and can get the benefit of
Section 6 of the Limitation Act. In its case also his
age shall be calculated from the date of birth of the child in womb.
In Kochamahammad v. Jacob, (1963 Ker. Ll 560) it has been heldthat

the Section 6 gives only a personal privilege to the minor, it applies to the
minor himself or his legal representatives but not to his assignees.
A minor in whose favour a decree is assigned is not entitled to the

benefit to the Section 6 of the Limitation Act.
In Jai Kisan v. Kalicharan, (ILR 1957) MP 3) it is stated that the

general principle is that time does not run against a minor, and the
circumstances that he has been represented by a guardian does not affect
the question. Similarly, the fact that a guardian or next friend might have
maintained a suit on behalf of a minor does not take away from the minor
the privilege of the Section 6 of the Limitation Act.
The rights of minors including a child in womb were specially

protected,and time did not run against minors. They were allowed to
institute a suit within three years of his attaining majority or within the
usual period of time ordinarily allowed to a major whichever is longer.
Under Section 6( 1) of the Limitation Act, a suit for recovery of

possession could be filed within 12 years from the date when minor attained
the age of majority in case where the transaction was void by reason of
Section 8 of the Act, such a suit will have to be filed within three years of

attaining of the age of majority and the minor could not claim the extended
period of 12 years.
The protection which was extended to the minors did not prevent a
minor from instituting a suit through his next friend during minority. The
minor has two rights:
(i) he can bring a suit within a specified time after the terminal of his
minority;
(ii) that even during the subsistence of his minority, he can institute a suit
through his next friend.
This personal privilege to the minor which can be availed of either by

his or by his legal representative but not by his assignees.
6. Insanity and Idiocy
Insanity is the unsoundness of mind as a consequence of brain

disease; madness, mental derangement. An insane or lunatic or an idiot is
protected under Section 6 of the Limitation Act, 1963 so long as he does not
regain his sanity. An idiot is a person so mentally deficient by birth as to be
incapable of ordinary reasoning or rational conduct.
An idiot is one who is destitute of the ordinary intellectual powers of

man. He is a born fool, the mental condition being commonly accompanied
by some defect in the physical wisdom. An idiot is one that is "a fool natural
from his birth and knoweth not how to account or number twenty pence, or
cannot name his father or mother, nor of what age himself is, or such like
easy and common matters; so that it appeareth he hath no manner of
understanding, of reason, or Government of himself, what is for his profit or
disprofit, etc." (Terms de la Ley).
The Section 6 of the Limitation Act so long as he does not regain his
sanity. The Section 6 is not applicable when disability due to lunacy is not
proved. The burden of proving the disability is on the plaintiff.
In Abdulla v. Abdul/a, A[R 1924 Born. 290, it has been held that a
state of great mental weakness on account of serious bodily injury caused
by aninhuman assault (throwing sulphuric acid on the face resulting in loss
of one eye) is not a state of insanity within the meaning of Section 6 of the
Limitation Act. When insanity is once proved to have existed, it is presumed

to continue until it is proved to have ceased; and a very strict burden of
proof lies on the party who alleges recovery.
A lucid interval is a temporary cessation of lunacy and it cannot be

treated as a recovery unless it is of sufficient length of time to enable the
person to do an intended rational act.
If an insane person is affected by one disability and before the

cessation of this disability, he is affected by another disability, the time will
not commence to run till the last of the disabilities has ceased.
As per Section 6 of the Limitation Act, in the case of disabled persons

time begins to run from the cessation of their disabilities and the period
of I imitation is the same as provided in the second column of the Schedule;
but with this reservation that by reason of Section 8, the period of the
limitation after the cessation of .their disability is not more than three years.
Section 6 and 7 of the Limitation Act do not give a fresh period of

limitation. Section 6 contemplates cases where there is only one minor
decree-holder or where all the decree-holders are minors. But, Section 7 of
the Limitation Act extends the period of limitation to some cases where there
is a joint decree in favour of persons some of whom are minors. Extension of
Limitation under Section 7 does not take place with reference to the person
under disability alone but with reference to the entire body of persons jointly
entitled to sue or apply Section 7 applies only if the disability at the time
when the limitation is to be reckoned.
In Abdulla v. Ravuny, (1973 Ker. LR 350), it has been held that the
principle of Section 7 is that when one of the several persons jointly entitled
to sue is under a disability if any other person can validly give discharge
without the concurrence of the person under disability, the time will begin
to run when the person competent to give a discharge can institute the suit.
The Explanation-I of Section 7 states that Section 7 of the Limitation

Act applies to a discharge from every kind of liability, including a liability in
respect of any immovable property.
The word 'discharge' in Section 7 of the Limitation Act does not mean
merely a discharge of pecuniary liability but has a wider significance and
includes release of rights in immovable property such as equity or
redemption or a release of other rights as for example a right to file a suit.
The word 'discharge' is not limited to discharge of monetary claim alone but
also to discharge or satisfaction of all other liabilities as well. The word

'discharge' has reference to transactions which are required to be avoided
and has no application to void transactions.
Section 7 of the Limitation Act is an extension to the general principle

enunciated by Section 6. et lays down that if more than one person are
jointly entitled to institute a suit and if one of them is disabled, time will not
run against any of them until the disability ceases to exist. But if one of the
persons entitled to institute the suit competent to give discharge without the
concurrent of the other, then time will run against both. In such an
eventuality, benefit of Section 6 will not be available. The time shall run
against all those persons if anyone of them has a capacity to give a
discharge without the concurrence of the person under disability.
The Explanation-Il of Section 7 of the Limitation Act makes it clear

that for the purpose of this Section, the manager of a Hindu Undivided
Family governed by the Mitakshara Law shall be deemed to be capable of
giving a discharge without the concurrence of the other members of the
family if he is in management of the joint family property.
Section 8 of the Limitation Act imposes a limitation on the concession

provided under Section 6 or 7 to a maximum of three years from the
cessation of the disability. Under Section 8, the period can be extended upto
an extent of three years if under the ordinary law out of the period of
limitation prescribed there remains a period of less than three years for
bringing a suit. But if the period remaining is more than three years, no
extension can be granted.
In Darshan Singh v. Gurdev Singh, (AIR 1995 SC 75), the respondent

was a minor at the time of his father's death. He attained majority on 17th
April, 1977 and thereafter a suit for possession of the property was riled on
4th November J 982 which was wrthin J 2 years under third column of
Art.65 of the Limitation Act, but was after expiry of the period of three years
of his attaining majority. The plea was made by the 'appellant that the suit
ought to have been filed within three years of his attaining majority. The
Supreme Court has held that the period of limitation as provided in Article
65 expired when the respondent was 16 years of age and consequently he
ought to have filed the suit within three years of his attaining majority and
his suit is barred by limitation.
The period of limitation shall be computed from cessation of disability

or death of the person affected by the disability. The plaintiff has to prove
that he attained majority within three years of the filing of the suit. The

benefit of Section 6 and 8 cannot be availed of by the partner or assignee of
the person in disability. Section 8 of Limitation Act applies to special or local
laws, unless expressly excluded.
Limitation cannot run unless the cause of action or right to action

arises. The test to determine when the cause of action has arisen is to
ascertain the time when the plaintiff could first have maintained his action
to a successful result. However, Section 9 can apply only where the cause of
action continues to exist and not when it is subsequently cancelled by
subsequent events or where it disappears or is otherwise discharged.
Section 9 of the Limitation Act applies not only to suits but to applications
as well.
Section 9 of the Act lays down that where once time has begun to run,
no subsequent disability or inability to institute a suit or make an
application stops it. In other words, when once limitation has commenced to
run, it will continue to do so unless it is stopped by virtue of any express
statutory provision.
In State of Punjab v. Surjit Kaur; (AIR 2002 P&H 68), it has been held that
the Section 9 of the Limitation Act, 1963, enumerates a very important
principle of the Law of Limitation and that is that where once time has
begun to run, no subsequent disability or inability to sue, stops it.
Therefore, an intervening disability cannot be availed of under Section 9. It
is only where the legal disability is at its inception of the time when a person
becomes entitled to file a suit that he can avail himself of the provisions of
Section 6.
Time runs when the cause of action accrues, and the cause of action
accrues when there is in existence a person who can sue and another who
can be sued, and when all the facts have happened which are material to be
proved to entitle the plaintiff to succeed. The cause of action arises when
and only when the aggrieved party has the right to apply to the proper
tribunals for relief. It is only when the cause of action is complete that the
bar of time begins to run.
Disability is want of legal qualification to act; inability is want of

physical power to act. For the purpose of limitation, a disability is the state
of being a minor, insane or an idiot; whereas illness, poverty etc. are
instances of inability.

The disability or inability contemplated in Section 9 is con-fined to such
cases as are mentioned in the Limitation Act itself, a new exemptions cannot
be recognised.
The inability referred to in Section 9 must be held to be a personal

inability affecting the plaintiff himself. In Hanmatram v. Bowles, (8 Bom.
561), it has been held that absence from India would not constitute an
'inability' under Section 9. Lack of absence of cause of action is neither
disability nor inability. It is a personal disability or inability to sue due to
some personal fact and not due to absence of cause of action. In Balkrishan
v. Dhanraj, (AIR 1956 Nag. 200), it has been held that inability does not
cover the case of obstacles, such as, stay of execution by the order of the
Court. In Tekait v. CN. Banking Corporation, (AIR 1920 Pat. 105)
it has been held that pendency of insolvency proceedings would not save a
claim from being time-barred.
Section 9 contemplates cases where the cause of action continues to

exist. It cannot apply to cases where the cause of action is cancelled by
reason of subsequent events. The principle laid down in this section is
subject to certain exceptions. Even where time has begun to run, it can be
stopped provided the cause of action which has given the right to sue is
discharged or in any way disappears. The period of limitation can be
extended in three classes of cases, viz.,
a) Where injustice has been caused by an act of court:

b) Where the cause of action was satisfied , and
c) Where the cause of action was cancelled.
7. No limitation in Suits against trustees and their representatives
Section 10 of the Limitation Act, 1963 provides that no suit against a person
in whom property has become vested in trust for any specific purpose, or
against his legal representatives or assigns (not being assigns discovered it.
The plaintiff shall have to aver in the plaint the date on which he discovered
the fraud or mistake as the case may be, and shall also have to aver that
with reasonable diligence he could not have discovered it prior to that date.
In Richardson Cruddas v. H.D. Mendha, [AIR 1973 Cal. 119], it has

been held that when the mistake of the officer was pleaded as a ground for
invoking Section 17 of the Act, and it was found that such plea was genuine,
the benefit of Section 17(1)(c) would be extended to the plaintiff and the

limitation would run from the date when the plaintiff discovered the
mistake.
In the case of concealed document under Section 17(1 )(d), the time
runs from the date when the plaintiff or the applicant first has the means of
producing the document or compelling its production. In the case of a suit
to recover the fee or other levy under mistake limitation starts from the date
on which the declaration was made by the final court of appeal that the levy
is void.
The proviso (i) of the sub-section ( I) of Section 17 has made it clear

that a bona fide purchaser for value without notice of the sale will be
protected and the benefit of Section 17 cannot be extended to set aside the
sale as against him.
In the case of mistake, under the proviso (ii) of sub-section (l) of

Section 17 where the property has been purchased for valuable
consideration subsequent to the transaction in which the mistake was made
by a person who did not know, or have reason to believe that the mistake
has been committed, Section 17 does not enable a suit to be instituted or an
application made, to recover, or to enforce a charge against him or to set
aside any transaction affecting such property.
In the case of concealed document under proviso (iii) of sub-section

(17) of the Section 17 where the property has been purchased for valuable
consideration by a person who was not a party to the concealment and did
not at the time of purchase know, or have reason to believe that the
document had been concealed, Section 17 does not enable a suit to be
instituted, or an application made to recover, or to enforce a charge against,
or to set aside any transaction affecting such property.
If a suit is on the face of it time-barred, Order VII rule 6 of the CPC

requires that the plaintiff shall show the ground on which exemption from
the law of limitation is claimed. Therefore, if the plaintiff claims exemption
on the ground of fraud on the part of the defendant, he must prove the
fraud. In such a case, it is for the plaintiff to give in the first instance clear
proof of the fraud alleged by him. The court will not pressure it from the
mere existence of suspicious circumstances.
In Pailee v. Krishna [AIR 1971 Ker. 331] it has been held that absence
of avertment of fraud is not material; what is to be proved is that fraud was
actually practised by the decree-holder.

In Baikuntli v. Kesor [AIR 1969 Pat. 160], it has been held that the
date of knowledge is to be excluded from computation of limitation period.
The Section 17 of Limitation Act will apply to a person claiming

through another guilty of fraud or accessory to it otherwise than in good
faith and for valuable consideration. Under Section 17 of the Limitation Act,
the fraud of the agent of the defendant or the respondent is also included.
In order to constitute fraud it is not enough that there should be

merely a tortious act unknown to the injured party but that there must be
some abuse of confidential position, some intentional imposition, or some
deliberate concealment of facts; there must be something actually said or
done which is directly intended to prevent discovery.
Section 17 of the Limitation Act is attracted only where there is an

active and designed fraud and it had no application when the other party
merely remains silent and does not do any act which is designed to prevent
knowledge of the cause of action.
It is clear that where the right or entitlement to such relief is itself

kept concealed by reason of fraud or hoax practised of which the plaintiff
becomes a victim, in those circumstances, the cause of action in law is held
to arise only when the victim realises the factum of fraud perpetrated or at a
point of time when the victim could have with reasonable diligence learnt or
become aware of the hoax practised.
Fraud like any other charge must be established beyond reasonable

doubt. A finding as to fraud cannot be based on suspicious or conjecture.
Section 17 of the Limitation Act is an enabling section which

postpones the starting point of limitation for suit and application.
EFFECT OF ACKNOWLEDGMENT IN WRITING
Acknowledgement is a statement in writing that a debt is due and

unpaid. Under the Indian Law, acknowledgment means a definite admission
of liability; it is not necessary that there should be a promise to pay, and the
simple admission of a debt is sufficient. In India, an acknowledgment in
which there is no express promise implying a new contract to pay, must be
made before the debt is barred by time, and .• in this respect an
acknowledgement under Section 18 of the Limitation Act differs from a
promise to pay a barred debt under Section 25(3) of the Contract Act. An

Acknowledgement does not create a new right of action but merely extends
the period of limitation.
Section 18 of the Limitation Act deals with the requirement for an authority
of acknowledgement which can be summarised as under:
(i) An admission of the acknowledgement;
(ii) An acknowledgment is not limited in respect of a debt only it may

in respect of 'any property or right' which is the subject-matter of the suit.
In SF Mazda v. Durga Prasad Chamaria, [AIR 1961 SC 1236], the Supreme
Court has held that the acknowledgement need not specify the exact nature
of the property or right in respect of which the liability is acknowledged
(iv) It must be made before the expiry of the period of limitation;

and
(iv) it should be in writing and signed by the party against
whom such property or right is claimed or an agent duly
authorised in this behalf.
(v) It is not necessary that the acknowledgement of liability must

be made to the person who is entitled to the right in respect of
which the liability arises, or to anyone through whom he
claims. An acknowledgement, to whomsoever made, is a valid
acknowledgement if it points with reasonable certainty to the
liability under dispute. Thus an admission of liability in respect
of a decree amounts to an acknowledgment although the
admission is not made to the decree-holder.
Section 18 of the Limitation Act is applicable to local or special laws,

unless expressly excluded as per Section 29 of the Limitation Act. Section
18 is not applicable for execution of decree.
The acknowledgment, if any has to be prior to the expiration of the

prescribed period for filing the suit, in other words, if the limitation has
already expired, it would not revive under Section 18. It is only during
subsistence of a period of limitation, if any such document is executed, the
limitation would be received fresh from the said date of acknowledgement.
In Preet Mohinder Singn v. Mohinder Parkash [AIR 1989 SC 1775]

has been held by the Supreme Court that a recital in a sale deed executed

by the mortgagee in respect of the transfer to the purchaser the right of
recovering the principal amount and interest according to the mortgage deed
as an acknowledgement that mortgage money remains unpaid and also that
the mortgagor had subsisting right of redemption which he could exercise
against the mortgagee.
Mere statement expressing jural relationship between parties does not

constitute acknowledgement. The endorsement itself must contain the
acknowledgement either express or implied but surrounding circumstances
can be taken into consideration in construing the words used in writing.
Promise to pay is not acknowledgement. An acknowledgement need

not contain a promise to pay either in express terms or even in an implied
way; what is necessary is that there should be an admission of the
subsisting liability. Even if such admission is accompanied by a refusal to
pay, its character as an acknowledgement will not be altered.
An acknowledgement does not create any new right. It only extends

the period of limitation. The person claiming benefit of an acknowledgement
must be bona fide. The onus lies on the creditor to prove that the
acknowledgement was made within time.
In Sampuran Singh v. Niranjan Kaur [AIR 1999 SC 1047], the

Supreme Court has held that the acknowledgement of liability has to be
made prior to the expiry of the period of limitation and if the limitation has
already expired, it would not revive a suit under Section 18 of the Limitation
Act, 1963. It is pointed out that it is only during the subsistence of the
period of limitation, if any document is executed acknowledgement the dues,
the limitation would be received afresh from the said date of
acknowledgement. Thus the acknowledgement of liability which must be in
writing by the party against whom the property or right is claimed has
to be within the period of limitation.
In P Sreedevi v. P Appu [AIR 1991 Ker.76], it has been held that an

admission of past liability, that is, a debt already barred by limitation is not
material and it is the admission of subsisting liability that is an
acknowledgement of liability giving rise to fresh start of limitation.
Therefore, there must appear that the statement is made with relation to
admit an existing jural relationship of debtor and creditor.
An admission of liability contained in a deed of gift executed by the

debtor or in a will of a deceased is a valid acknowledgement. A statement

contained in a Kabala that a certain mortgage on some of the properties
comprised in the Kabala is still subsisting is an acknowledgment.
If the insolvent writes down a debt in his schedule as owing the debt
to a named person and signs the schedule, it would operate as an
acknowledgement under Section 18 of the Limitation Act.
An acknowledgement without signature is no acknowledgement.

Signature need not necessarily be by writing one's name. Making his mark
by an illiterate debtor is sufficient. Under Section 3(52) of the General
Clauses Act, "Sign should, with reference to a person who is unable to write
his name, include his mark". Initials are equivalent to signature.
Unstamped acknowledgement is not acknowledgement. If any

acknowledgement is unstamped, it, no doubt, comes within the mischief of
Section 35 of the Stamps Act, and is inadmissible. An improperly stamped
promissory note cannot be admitted in evidence to prove acknowledgement
of liability in order to save limitation in respect of promissory notes
previously executed.
A receipt may be an acknowledgement of the previous debt and be

an acknowledgement within the meaning of the Section 18 and if the
following three conditions are satisfied, namely:-
(i) the acknowledgement must have been made before the expiration of the
period prescribed for the suit;
(ii) it must be a clear and unambiguous acknowledgement specifically

admitting liability in respect of the debt sued upon; and
(iii) it must be signed on stamp by the party or his authorised agent. An

acknowledgement of liability has only the effect of extending limitation and
does not confer a title.
In Tanjore Ramchandra v. Vellyanandan. [14 Mad. 258 (PC)] it has

been held that the acknowledgement does not entitle the creditor to claim
interest at a higher rate than that which was prevailing upto the date of
acknowledgement.
In K.M. Mohammed Sultan v. K.S Muhammed Nurdin [(1963) I MLJ

300], it has been held that acknowledgement of the portion of the claim can
be used to save limitation only with respect to the portion of the claim
acknowledged.

In Venkataramayyar v. Kothandaramayyar. [13 Mad. 135] it has been
held that if an acknowledgement is made in favour of a minor, the new
period of limitation is to be computed from the date when the plaintiff
attains majority.
In computing the period of limitation, the date on which the

acknowledgement was signed must be excluded.
The authorization of an agent need not be in writing, it can be

implied. Observe the implied acknowledgement power of the following
agents:
(1) A guardian appointed under the Guardians and Wards Act, 1890, is an
'agent duly authorised' and competent to make an acknowledgement,
provided it be shown that the guardians's act was for the benefit of the
word.
(2) The Court of wards has power to make acknowledgement of a debt due
by the ward which would bind the ward and give a fresh starting point of
limitation.
(3) The Sarbarakar of a disqualified person not being a guardian and having
nothing to do with the person or property of the proprietor, but appointed
only to manage the lands cannot be regarded as a person authorised to
admit the personal debt of the proprietor.
(4) Acknowledgement or payment by one co-mortgagor shall not extend the

period of limitation against the other co-mortgagor,
(5) When the mortgage is joint and incapable of being redeemed piece meal,
one mortgagee is not an agent of the other joint mortgagees and
acknowledgement of mortgagor's title made and signed by one co-mortgagee
only cannot avail against the other mortgagees for the purpose of saving
limitation in respect of the mortgagor's suit redemption.
(6) A payment or acknowledgement made by the Karta of Hindu Joint Family

binds the other members of the joint family.
(7) A receiver of a partnership firm may be a person authorised to make an

acknowledgement binding on the firm, if the acknowledgement was
necessary for the preservation of the partnership assets.
(8) An acknowledgement by one person of a partnership firm saves

limitation against the other partners.
(9) An acknowledgement by the pleader of the liability of his client, the
debtor is a valid acknowledgement by the person duly authorised to make
the acknowledgement.
(10) Acknowledgement singed by the defendant's ex-agent cannot prevent

the operation of limitation.
(11) An acknowledgement made by one of the active directors of the

company is a sufficient acknowledgement.
(12) The official assignee is not the agent of the insolvent, and an
acknowledgement made by him does not save limitation.
(13) An acknowledgement of liability by the official receiver will furnish a

fresh starting point for limitation.
(14) On the death of the debtor an acknowledgement of debt by the legal

representative of the debtor may be treated to be a valid acknowledgement
for filing a suit against the legal representative.
(15) An acknowledgement by surety only save limitation against him but not
against the principal debtor.
(16) A co-owner has no authority to acknowledge liability for all and thereby
to make the limitation start a fresh against all.
EFFECT OF PAYMENT ON ACCOUNT OF DEBT OR OF INTEREST ON

LEGACY
Section 19 of the Limitation Act, 1963 provides that:
Where payment on account of a debt or of interest on a legacy is made

before the expiration of the prescribed period by the person liable to pay the
debt or legacy or by his agent duly authorised in this behalf, a fresh period
of limitation shall be computed from the time when the payment was made.
For the purposes of Section 19, according to the explanation,
(a) Where mortgaged land is in the possession of the mortgagee, the receipt
of the rent or produce of such land shall be deemed to be a payment;
(b) 'Debt' does not include money payable under a decree or order of a
Court.

Section 19 does not prevent the operation of Section 18 and the two
sections are not mutually exclusive. Section 18 only operates against the
person who makes the acknowledgement, but Section 19 makes the part-
payment good in favour of any suit on that liability. Under Section 19 all
that is necessary is that an acknowledgement of payment should appear in
the handwriting of or be signed by the person making it. But this is not
enough under Section 18. Under Section 18 there must be an admission of
existing liability, while under Section 19 it is enough if the writing merely
records the fact of payment.
An acknowledgement under Section 18 must be by the person against

whom property or right is claimed or by some person through whom he
derives his title or liability to payment. For the purpose of Section 19 it will
only be by the person liable to pay debt.
Mere endorsement of payment without anything more will not operate

as an acknowledgement under Section 18 of the Limitation Act and it will
be too broad a proposition to lay down that every endorsement of subsisting
liability for debt would amount to acknowledgement. In Ramchandra v.
Giridharilal, [ILR (1964) 15 Raj. 282] it has been held that endorsement
of the debtor on the back of the hand note in the handwriting of the debtor
that certain amounts were paid by the debtor on a certain date attracts only
Section 19 but that does not amount to acknowledgement of liability within
the meaning of Section 18.
Section 19 of the Limitation Act applies only to a suit for a debt both
secured and secured or legacy or to the case of a mortgage with possession.
It does not apply to a suit for redemption of a mortgage. The proviso to this
section does not apply where the mortgaged land is in possession of the
mortgagee.
Section 19 of the Limitation Act does not make a distinction between

a payment of interest and a payment of principal.
The word 'prescribed' in Section 19 means the period prescribed in the first
schedule and the Limitation Act and not the period within which the
plaintiff may bring his suit.
A payment by cheque satisfies the requirement of Section 19 of the

Limitation Act in as much as the acknowledgement of payment appears
in the handwriting of or in a writing signed by the person making the
payment in the form of a cheque. Regarding post-dated cheque, the payment

for purposes of Section 19 can only the date which the cheque bears and
cannot be on the date of the cheque is handed over, for the cheque, being
post- dated, can never be paid till the date on the cheque arrived.
A payment saves limitation under Section 19 if it is made by a person

liable to pay it. The expression 'person liable to pay is of wide connotation. It
is not restricted to personal liability only. It will cover the property liability.
The fact of part-payment of the principal of a debt, interest on

principal must appear in the handwriting of, or in a writing signed by the
person
making the payment and not in that of any other person, even though the
latter may have been expressly authorised to endorse the fact of payment.
Where the payment is made by a person who does not know how to write
the endorsement it may be made in the handwriting of a third party and the
payer may subscribe his mark to the endorsement.
In order to attract Section 19, payment has to be made within the

period of limitation and not that the acknowledgement of such payment has
to be made within the period of limitation. It will suffice if it is signed before
the suit is commenced.
Under Section 19 it is the payment which extends the limitation and

such payment has to be proved in a particular way, namely, a written or
signed acknowledgement. That is the only mode of proof of such payment.
Payment of part of the mortgage-debt made by one of the mortgagors

will give a fresh start of limitation to the mortgagee not only against the
mortgagor making the payment but also against all the mortgagors.
Explanation (a) to Section 19 is meant to extend the time for a suit

by the mortgagee to recover a debt secured by the usufructuary mortgage,
and does not apply to a suit for redemption by the mortgagor. If the
mortgagee is in possession of the morgaged land and receive the produce of
the land in lien of interest, such receipt of produce must be deemed to be
payment of interest in Dadia Bhailal Motichand v. Vanad Maganlal
Hirabhai, [AIR 1966 Guj. 59]
5. Effect of acknowledgement or payment by another person(Section 20

of Limitation Act)

Section 20 of the Limitation Act is explanatory of Sections 18 and 19 of the
Act and does not constitute an exception in the case of either of these
sections.
Section 20 of the Limitation Act shows that for the purpose of Section
20, the payment made by a guardian must be held to be a payment by an
agent duly authorised on his behalf.
In Bageshwari v. Bindeshwari [AIR 1932 Pat.337] it has been held

that an admission amounting to an acknowledgement under Section 18 of
the Limitation Act and the guardian of a minor appointed by the court is
binding on the minor.
The expression 'lawful guardian' in Section 18(1) is not limited to a

guardian appointed by the Court. It means any person who is entitled to
act as guardian under the personal law of the minor. In Bechu v. Baldeo
[AIR 1933 Oudh.132] it is held that under the Hindu Law on the death
of the father, the mother is not only the natural guardian but also the legal
guardian and as such she can acknowledge a debt on behalf of the minor.
A defacto guardian is not a 'lawful guardian' within the meaning of Section
20 and has no authority to acknowledge a debt. In Chandu v. Wadhu
Ram [42 lC 17] it has been held that a mother, not being a guardian of
the property of her minor son, under the Mohammedan Law, is not a lawful
guardian, and cannot sign an acknowledgement on behalf of the minor.
Section 20(2) of the Limitation Act means that the mere writing or
signing of an acknowledgement by one partner does not necessarily of itself
bind his copartners; but it must also be shown that he had authority,
express or implied to make the acknowledgement on behalf of himself and
his- partners.
In Md. Taqi v. Raja Ram [AIR 1936 All. 820 (FB)] it has been held that
the time when the acknowledgement is made or the payment is made there
are more than one person in existence who stand in relationship to each
other as joint contractors, partners, executors or mortgagors, then the
acknowledgement or payment made by one would save limitation as against
that person and would be' of no avail against the other.
In Bhogilal v. Amritalal [17 Bom.173] it has been held that an

acknowledgement of the title of the mortgagor by one only of two mortgagees
would not save the mortgagor's right of redemption from being barred where
the mortgage was not capable of being redeemed piecemeal.

The word 'chargeable' in Section 20 means every kind of chargeability
and includes liability as to property; it is not limited to personal liability
only.
Co-mortgagors stand in the position of joint contractors. A mortgagor

cannot make payment or acknowledgement on behalf of another co-
mortgagor except as an agent duly authorised by the latter.
Purchasers of different portions of mortgaged properties from the

original co-mortgagors are joint contractors. In Federal Bank v. Som Dev
[AIR 1956 Punj. 21] it has been held that an acknowledgement of liability of
a payment by one of the co-contractors does not deprive the other of the
benefit of limitation unless the payer is authorised to make the payment by
the other as an agent on his behalf.
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UNIT - I

CODIFICATION OF CIVIL PROCEDURE CODE

It is further provided that in the absence of any specific provision to the

a. Any special or local law in force, or

PRINCIPAL FEATURES OF THE CIVIL PROCEDURE CODE

SUIT: MEANING: A suit is a civil proceeding instituted by the presentation of a

There are four essentials of a suit.

(i) Opposing parties;

PARTIES TO SUITS: ORDER 1

Civil Procedure Code Page 2

Both the above conditions should be fulfilled.

The primary object of Rule 1 is to avoid multiplicity of proceedings and

(2) Joinder of defendants: Rule 3

The underlying object of Rule 3 is to avoid multiplicity of suits and

Civil Procedure Code Page 3

Eg:- in a suit for partition, all sharers are necessary parties.

A subtenant is only a proper party in a suit for possession by the landlord

Non-joinder or misjoinder of parties: Rule 9

No decree or order under Section 47 of the Code can be reversed or

Objections as to non-joinder or misjoinder of parties: Rule 13

All objections on the ground of non-joinder or mis-joinder of parties must be

Striking out, adding or substituting parties: Rule 10

(i) Adding or substituting plaintiffs

Civil Procedure Code Page 4

Power and duty of court

Two considerations especially will have to be kept in mind before exercising

If the court is satisfied that the presence of a particular person is necessary to

In Anil kumar v. shivnath,(1995) 3 SCC 147 considering the provisions of Order

Civil Procedure Code Page 5

Effect 10 (4) & 10 (5)

REPRESENTATIVE SUIT: RULE 8

Civil Procedure Code Page 6

Civil Procedure Code Page 7

Civil Procedure Code Page 8

Applicability to other proceedings

The provisions of Order 2 Rule 2 apply only to suits and not to

Joinder of claims: Rules 4-5

(a) Claims for mesne profits or arrears of rent in respect of

Civil Procedure Code Page 9

The primary object of these provisions is to prevent a representative from

Joinder of causes of action: Rules 3, 6

Therefore, where the plaintiffs are not jointly interested in several

Joinder of defendants and causes of action

Civil Procedure Code Page 10

Joinder of plaintiffs, defendants and causes of action

Objections as to misjoinder of causes of action: Rule 7

All objections on the ground of misjoinder of causes of action must be taken

INSTITUTION OF SUIT: ORDER IV

“A private memorial tendered to a court in which a person sets forth his

Presentation of plaint: section 26, or. 4 R. 1

Every suit must be instituted by the presentation of a plaint in duplicate or

Civil Procedure Code Page 11

A plaint must be presented to the court or such officer as it appoints in that

Every plaint must contain necessary particulars.

Particulars of every suit will be entered in the register of civil suits.

Suit by indigent persons

Order 33 of the code deals with suits by indigent persons.

Suit against minor

Suit against dead person

A suit against a person who is dead at the time of institution thereof is

Section 21: Objection as to jurisdiction:

Application of the section: the objections contemplated by section 21 are the