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S. No. Content list Page No.

1. CPC : Introductions, History, Special features 6

2. Preliminary : Section 1-8 8

3. Jurisdiction of Courts and Res judicata : Section 9-14 17

4. Place of Suing, Objections to jurisdiction, Transfer of Suits : Section 15-25 28

5. Service of Summons in Civil Cases : Section 27-32, [Order 5 of CPC] 34

6. ORDER (1) PARTIES TO SUIT 42

7. ORDER (2) Frame of Suit 48

8. ORDER (3) Recognised agents and Pleaders 50

9. ORDER (4) | Institution of Suits | Section 26 52

10. ORDER (6) Pleading generally (RULE 1 to 18] 53

11. ORDER (7) Plaint 58

12. ORDER (8) [Written Statement, Set-off and Counter-Claim] 62

13. Plaint & Written Statement format 68

14. ORDER (9) Appearance of Parties and Consequence of Non-Appearance 84

15. ORDER (10) Examination of Parties by the Court 88

16. ORDER (11) Discovery and Inspection (Section 30 of CPC) 90

17. ORDER (12) Admissions 96

18. ORDER (13) Production, Impounding & Return Of Documents 98

19. ORDER (14) Settlement of Issues & Determination of Suit on Issues of Law or on Issues 101
agreed upon

20. ORDER (15) Disposal of the Suit at the First Hearing 104

21. ORDER (17) Adjournment 105

22. ORDER (18) Hearing of the Suit and Examination of Witnesses 106

23. ORDER (19) AFFIDAVITS 110

24. ORDER (20) Judgment & Decree | Section 33 112

25. Section 34 (Interest) 117

26. ORDER (20-A) Costs : Sections 35, 35-A 35-B 118

27. ORDER (21) | Execution | Section 36-74 121

28. Arrest & Detention | Section 55-59 | Rules 37-40 of Order 21 133

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29. Attachment | Section 60-64 | Rules 41-57 of Order 21 136

30. Precepts & Garnishee order 140-141

31. Sale | Section 65-67 | Rules 64-96 of Order 21 142

32. Doctrine of Restitution ( या ापन का स ा त) S. 144 148

33. ORDER 22 | Death, Marriage and Insolvency or Parties 150

34. Order 23 | Withdrawal and Adjustment of Suit 153

35. Interim Orders | O. 24, 25, 26, 38, 39, 40 | (S. 75 - 78) & (S. 94-95) 155

36. Order 24 | Payment in Court 156

37. Order 25 | Security for Costs 157

38. Order 26 | Commissions: Order 26 (Sections 75 to 78) 158

39. Order 38 | Attachment & Arrest before Judgment: Order 38 163

40. Order 39 | Temporary Injunctions & Interlocutory Orders 167

41. Order 40 | Receiver 170

42. Specific Suits. (S 79 to 93 & Orders 27-37) 172

43. ORDER (33) Suits by the Indigent Persons. 177

44. ORDER (35) Interpleader Suit (S88). 180

45. Special proceeding Section 89 - 93 & Order 36 - 37 182

46. ORDER (37) Summary procedure. 184

47. Appeals in CPC 185

48. Reference, Review, Revision 190

49. Answer Writing tips 192

50. 5 Test which were conducted in @judiciary_mains_ans_writing Telegram group 195

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5
Code of Civil Procedure, 1908
INTRODUCTION :
Citation : Act No 5 of 1908

Enactment Date of CPC : 21st, March, 1908

Commencement Date of CPC : 1st, January, 1909

HISTORY OF THE CODE.— To give uniformity to Civil Procedure, (& in the direction of Sir Charles Wood)
Legislative Council of India, enacted Code of Civil Procedure, 1858, which received the assent of Governor-
General on 23 March 1859.

CPC, 1859

The Code however, was not applicable

to the Supreme Court in the
Presidency Towns and to the Amended in 1877, & 1882
Presidency Small Cause Courts. So

It was further superseded by the

present Code of 1908,

The present Code of 1908 was amended several times. Necessity was felt then to make some other changes in
the present Code.

Recenl Amendments in CPC

1. CPC (Amendment) Act 1999 ( Act No 46 of 1999) & CPC (Amendment) Act 2002 (Act No 22 of 2002) (w.e.f.
01/07/2002). Both these Acts were made on the recommendation of the Malimath Committee.

Salem Advocate Bar v. Union Of India : The legislature in 1999 and 2002 came up with amendments to the
Civil Procedure Code, changing the nature of the Statute.

In this case, the Supreme Court declared these amendments to be constitutional.

2. Civil Procedure Code (Amendment) Act 2015 : Keeping in view the establishment of Commercial Court and
the provisions thereof, Civil Procedure Code (Amendment) Act, 2016 was enacted. These provisions are
applicable to commercial disputes of specified value. The act clarified that the provisions of the Civil
Procedure Code as amended by the Act would have an overriding effect over any rules of the High Court or of
the amendments made by the state government concerned.

3. The Code of Civil Procedure, 1908 was further amended in the year 2018

6
C. P. C., 1908
Special features of CPC, 1908

1) It is procedural law. Substantive Laws (IPC, 1860; Contract Act, 1872; Partnership Act, 1932; Sale of Goods
Act, 1930, etc.) and Procedural Laws (CPC, 1908; CrPC, 1973; Evidence Act, 1872, etc.). The former determines
the rights and obligations of the members of the society whereas the later prescribes the procedure for their
enforcement.

2) Not retrospective effect (Mahadeo Prasad Singh & Anr v. Ram Lochan & Ors, 1980) & (Venkata Narsinha v
Lakshmi Venkayamma, 1910)

3) Not exhaustive, but it is exhaustive on subject in respect of which provisions have been made in the code.
But Where on a particular matter, the code is silent, the Court should decide the matter on the principles of
equity, justice and good conscience. (u/s 152 of CPC)

4)
It has been divided into two divisions.
ii) First Schedule : 51 Orders &
rules)

[Which prescribed procedures

i) 158 Section ( Which are and method that govern civil
further divided into 11 Parts.) proceeding in India]

[These Sections deal with the

substantive rights of parties
and jurisdiction of courts] Can be amended by

i. Parliament

ii. State legislature

Can be amended by
iii. State High Court
i. Parliament

ii. State legislature

+

APPENDICES

[APPENDIX A to H]

Note : CPC is the subject matter of concurrent list.

District judge, i. when deals with civil matter : District Judge

ii. when deals with criminal matter : Session Judge.

Scope of applicability.— The Code applies to the procedure of all Courts of Civil Judicature. But it does not
affect any special or local law (Savitri Thakurain v Savi, AIR 1921) . In case of conflict between Civil Procedure
Code and a Special law, the latter prevails over the former.(Mohd Azim Khan v Mumtaz Ali Khan, AIR 1932)

Extension : After coming into force of J&K Reorganisation Act, 2019 w.e.f 31/10/2019, the CPC shall extend to
whole of India except the the State of Nagaland & Tribal Areas. (as mentioned u/s 1 of CPC)
7
Preliminary | Section 1-8
Section 1 of CPC : Short title, Commencement and extent.

1. Short title : The Code of Civil Procedure, 1908.

2. Commencement : It shall come into force on the first day of January, 1909.

3. Extent : CPC shall extend Whole of India except the the State of Nagaland & Tribal Areas.

Provided that the State Government concerned may, by notification in the Official Gazette, extend the provisions
of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be,
with such supplemental, incidental or consequential modifications as may be specified in the notification.

Explanation to the Section 1 of CPC. —In this clause, "tribal areas" means the territories which, immediately
before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of
the Sixth Schedule to the Constitution.

4. In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the
State of Andhra Pradesh and the Union Territory of Lakshadweep, the application of this Code shall be without
prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such
Union Territory, as the case may be, relating to the application of this Code.]

Section 2 of CPC : Definition clause / interpretation clause : Generally, all statutes contain a section in the
beginning wherein words or expressions used in the statute are defined. The definition clause is like a dictionary to
understand the meaning of the words or terms used in the statute. The section defining the various words is also
called interpretation clause. The following words are defined in this section.

S. 2(1) : Code S. 2(2) : “decree” S. 2(3) : “decree- S. 2(4) : “district”

holder”

S. 2(5) : “foreign Court” S. 2(6) : “foreign S. 2(7) : “Government S. 2(7A) : “High Court”
judgment” Pleader”

S. 2(7B) : “India”, S. 2(8) : “Judge”

S. 2(9) : “judgment” S. 2(10) : “judgment- S. 2(11) : “legal S. 2(12) : “mesne

debtor” representative” profits”

S. 2(13) : “movable S. 2(14) : “order” S. 2(15) : “pleader” S. 2(16) : “prescribed”

property”

S. 2(17) : “public S. 2(18) : “rules” S. 2(19) : “share in a S. 2(20) : “signed”,

officer” corporation”

Important definitions under section 2 of CPC

S. 2(1) of CPC : Code : "code" includes rules. It has been held by the Supreme Court in State of UP v CB Misra, AIR
1980 that the word "Code" includes not only sections, but also rules in First Schedule and rules made by the High
Courts amending the rules in First Schedule.

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 Decree (आ त) | Section 2(2) of CPC
The definition of decree is given in section 2(2) of CPC.

Essential elements of a decree:

 There must be a formal expression of adjudication.

 Such adjudication must have been given in a suit.

 It must have determine the rights of parties with regard to all or any of matter in controversy in suit.

 Such determination must be conclusive nature.

It shall be deemed to include:

1) rejection of plaint (order 7 rule 11).

2) determination of any question within section 144.

But does not include:

1) any adjudication from which an appeal lies as an appeal from an order.

2) any dismissal for default.

Adjudication : For a decision of the court to a decree, there must be an adjudication. The matter in dispute
should be judicially determined. As held in the case of Madan Naik v. Hansubala Devi, 1983 if the matter is not
judicially determined then, it is not a decree.

Deep Chand v. Land Acquisition Officer, 1994 : The adjudication should be made by the officer of the Court
and if it is not passed by an officer of the court then it is not a decree.

Suit : For any decision to be considered as a decree, the adjudication must have been done in suit. The term
“suit” for this context can be understood as “any civil procedure which has been instituted by the
presentation of a plaint”. The decree can only be in a civil suit. If there is no civil suit, there can be no decree.

Hansraj vs Dehradun Mussoorie Tramways Co. Ltd AIR 1929. : The Privy Council defined the term suit as a civil
proceedings initiated by the presentation of plaint.

Decisions considered as a decree : The decisions held to be decree are as follows:

a. Order of abetment of suit

b. Dismissal of appeal as time-barred;

c. Dismissal of suit or appeal due to the requirement of evidence or proof;

d. Rejection of plant due to non-payment of court fees;

e. Order granting costs and instalments;

f. An order refusing costs or instalments;

g. An order refusing maintainability of appeal;

h. Order denying the survival of right to sue;

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i. Order stating that there is no cause of action;

j. An order refusing to grant one or several reliefs;

Decisions not considered as a decree : The decisions which are not considered as a decree are as follows:

a. Dismissal of appeal for default;

b. Appointment of Commissioner in order to take accounts;

c. Order for remand; d. Order granting interim relief; e. An order refusing the grant of interim relief;

f. Return of plaint in order to present it to the proper court;

g. Application rejected for condonation of delay;

h. Order holding an application to be maintainable; i. Order of refusal to set aside the sale;

j. The order issuing directions for the assessment of mesne profit.

Preliminary Decree : A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. Such a decree determine the right of the parties with regard to some or one of the
matters in controversy in a suit, but does not completely dispose of the suit.

Question whether a decision amount to a preliminary decree or not is of great significance in view of the
provisions of section 97 of CPC: where any party aggrieved by a preliminary decree..does not appeal from
such decree, he shall be precluded from disputing it's correctness in any appeal which may be preferred from
the final decree.

Types of Decree

Preliminary
Decree Partly Preliminary
Final Decree & Partly
Decree Final Decree

Provisions in the Code for passing of the Preliminary Decrees:

(a) A decree for possession and mesne profits (O XX, rule 12).

(b) A decree in administration suit (O XX, rule 13).

(c) A decree in pre-emption suit (O XX, rule 14).

(d) A decree in suit for dissolution of partnership (O XX, rule 15).

10
(e) A decree in suit for account between principal and agent (O XX, rule 16).

(f) Decree in suit for partition of property or separate possession of a share therein (OXX rule 18).

(g) A decree when set-off is allowed (O XX, rule 19).

(h) A preliminary decree in foreclosure suit (O XXXIV, rule 2).

(i) Final decree in foreclosure suit (O XXXIV, rule 3).

(j) A preliminary decree in suit for sale (O XXXIV, rule 4).

(k) A final decree in suit for sale (O XXXIV, rule 5).

(l) A preliminary decree in redemption suit (O XXXIV, rule 7).

(m) A final decree in redemption suit (O XXXIV, rule 8).

Narayanan vs Laxmi Narayan AIR 1953 : In this case, it was said that this list aforementioned, which is given in
the CPC is not exhaustive and that preliminary decree can be used in other matters as well.

Q. Can there be more than one preliminary decree?

Ans. There is a conflict of opinion regarding this question that whether there can be more than one
preliminary decree in the same suit or not. Some High Courts are of the view that there can be more than one
preliminary decree while some of the High Courts are against this view.

In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided that "C.P.C. does not prohibits
passing of more that one preliminary decree, if circumstances justify the same and it may be necessary to do
so".

Final Decree: final decree is one which completely disposes of the suit and finally settles all the questions in
controversy between the parties and nothing further remains to be decided thereafter.

Thus, a decree may be said to become final in two ways:

(1) When the time for appeal has expired without any appeal being filed, or the matter has been decided by
the decree of the highest Court.

(2) When the decree, so far as regards the Court passing it, completely disposes of the suit.

Q. Can there be more than one final decree?

Ans. Ordinarily, in one suit there is one preliminary and one final decree. In the case of Gulusam Bivi v.
Ahamadasa Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18 stated that the code
nowhere contemplates more than one preliminary or final decree.

In the case of Shankar v. Chandrakant, 1995 the Supreme Court finally settled the conflict of opinion and
stated that more than one final decree can be passed.

Q. Can an appeal against final decree correctness of the preliminary decree be questioned, when no appeal
has been preferred by aggrieved party against the preliminary decree ?

Ans. Section 97 of Code of Civil Procedure Code, give answer to this, which provides that -

"Whether any party aggrieved by a preliminary decree ......... does not appeal from such decree, he shall be
precluded from disputing it's correctness in any appeal which may be preferred from the final decree."

11
So in view of Section 97, in an appeal against final decree, correctness of preliminary decree cannot be
challenged in the absence of any appeal against preliminary decree by aggrieved party."

Q. What is the effect of reversal of the Preliminary decree on the final decree passed by the lower court
during the pendency of appeal against final decree.

Ans. "The effect of the reversal of the preliminary decree on the final decree passed by the lower Court during
the pendency of the appeal against the preliminary decree is that the final decree is superseded because the
final decree is its nature dependent and subordinate, as it is a decree which has been passed as a result of
proceeding directed and controlled by the preliminary decree and based thereon. Therefore, when a
preliminary decree is set aside, the final decree is automatically superseded, whether the appeal was brought
before or after the passing of the final decree."

In Sital Parshad v. Kishori Lal, AIR 1967 SC 1236 it was observed by Supreme Court that since the passing of
preliminary decree is only a stage prior to the passing of final decree, if an appeal against a preliminary
decree succeeds, the final decree automatically falls to the ground for there is no preliminary decree
thereafter in support of it.

AMENDMENT OF DECREE: Under Section 152 of the CPC, any clerical errors with regards to decrees can be
corrected by the courts themselves or on application by the plaintiffs. But according to Section 153, the
courts have a general power to amend, and may, at any time, as it deems fit, amend any error or defect
proceeding in a suit.

The corrections that the courts are entitled to make are only relating to accidental omissions or clerical
errors and not other errors which have been brought about due to gross negligence or mistake.

But before such a move, the court must be satisfied and it must be validly proven that such an error was
something no more than an arithmetic error or a clerical mistake and nothing that changes or alters the very
functioning of the suit or nothing that is done under malice.

Partly preliminary and partly final decree : A decree passed under the Code of Civil Procedure may be partly
preliminary and partly final. This happens some part of the decree is preliminary decree while the rest is a
final decree.

Illustrations

If there is a suit of possession of an immovable property along with the issue of mesne profit, and the court is
obliged.

a. Passes a decree deciding the possession of the property.

b. Directs for an enquiry of mesne profit.

The first part deciding the possession of the property is final while the part regarding the mesne profit is
preliminary.

Deemed decree : An adjudication which does not formally fall under the definition of decree stated under
section 2(2) of the Code of Civil Procedure but due to a legal fiction, they are deemed to be decrees are
considered as deemed decrees.

Rejection of plaint and determination of the issue of restitution of decree are deemed decree. Also, an
adjudication under order 21 Rule 58, Rule 98 and Rule 100 are also deemed decrees.

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 Difference between decree and order
S. N. Decree (आ त) Order (आदे श)

1. It is defined u/s 2(2) of CPC. It is defined u/s 2(14) of CPC.

2. It is passed in a suit initiated by the presentation of a It can be passed in the suit initiated by presentation of
plaint. plaint, application or petition.

3. It deals with substantive legal rights of the parties. It deals with procedural legal rights of the parties.

4. It can be preliminary or final or partly preliminary or It is always final.

partly final.

5. There is only one decree in a suit. Orders may be passed more than one in the same
proceedings.

6. Every decree is appealable except a consent decree. Every order is not appealable except as specified in
section 104(1) and O XLIV, rule I of CPC, 1908.

7. There is a provision of a second appeal from the No second appeal lies even in case of appealable
decree passed in the first appeal on certain grounds. orders.

S. 2(3) of CPC : “decree-holder” means any person in whose favour a decree has been passed or an order capable
of execution has been made;

Raja Soap Factory v Santharaj, AIR 1965 : A decree-holder need not be a party to the suit. If the decree confers
upon someone, some enforceable right, he is entitled to execute the same.

Uchab v Brundaban, AIR 1969 : Even a defendant can be a decree-holder. Thus, where a decree for specific
performance is passed, such decree is capable of execution both by the plaintiff and the defendant.

S. 2(10) of CPC : “judgment-debtor” means any person against whom a decree has been passed or an order
capable of execution has been made;

S. 2(5) of CPC : “Foreign Court”.— Two conditions must be satisfied in order to bring a Court within the definition
of a "foreign Court", viz.:

(i) it must situate outside India, and

(ii) it must not have been established or continued by the Central Government.

S. 2(6) of CPC : “Foreign judgment” means the judgment of a foreign Court;

S. 2(7) of CPC : “Government Pleader” includes any officer appointed by the State Government to perform all or
any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under
the directions of the Government Pleader;

Note : An Assistant Government Advocate is included in the term "Government Pleader".

S. 2(15) of CPC : “Pleader” means any person entitled to appear and plead for another in Court, and includes an
advocate, a vakil and an attorney of a High Court;

Appointment of Pleaders.—See O III, rule 4 Code of Civil Procedure, 1908.

S. 2(8) of CPC : “Judge” means the presiding officer of a Civil Court;

13
S. 2(9) of CPC : “Judgment” means the statement given by the Judge of the grounds of a decree or order;

The word ‘judgement’ is derived after combining two words namely, judge and statement. It can also be termed as
an act of judging. It is the conclusion or the result of judging. The Judge, whenever passing an order or decree,
gives details of the reasons for passing such decree or order. Such details are called judgment.

The essential element of a judgment is that there should be a statement for the grounds of the
decision[Vidyacharan Shukla v.Khubchand Baghel AIR 1964].

Every judgment other than that of a court of small causes should contain:

a. A concise statement of the case

b. The points for determination

c. The decision thereon

d. The reasons for such decision

A judgment in the court of small causes may contain only point b) and c).

A judgement contains facts of the case, the issues involved, the evidence brought by the parties, finding on issues
(based on evidence and arguments). Every judgement shall include a summary of the pleadings, issues, finding on
each issue, ratio decidendi and the relief granted by the court.

S. 2(11) of CPC : “Legal representative” means a person who in law represents the estate of a deceased person,
and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on the death of the party so suing or sued;

The above definition is not exhaustive but illustrative. So, in order to be e a legal representative under section 2(11)
of CPC, it is not necessary that a person should be a legal heir of a deceased or should have a beneficial interest in
the estate.

Custodian of Branches BANCO National Ultra Marino v Nalini Bai Naique, AIR 1989 : Legal Representative means a
person who represents the estate of the deceased whether as an heir or as intermeddler; and in case of
representative suits, the person on whom the estate of the deceased person devolves.

The legal representative includes heirs as well as persons who represent the estate even without title either as
executors or administrators in possession of the estate of the deceased. All such persons are covered by the
expression "legal representative".

Andhra Bank v R Srinivasan, AIR 1962 : The estate does not mean the whole of the estate. Even a legatee who
obtains only a part of the estate of the deceased under the will can be said to represent the estate and therefore, a
legal representative under section 2(11).

Note : In its strictest sense, the term legal representative is limited to the executors and administrators only. Its
meaning has been extended in the Civil Procedure Code. Thus, a universal legatee under a will executed by the
deceased is his legal representative. Like-wise, a person on whom the estate of the deceased devolves would be
his legal representative, even if he does not have any actual possession of the estate.

S. 2(12) of CPC : “Mesne profits” of property means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received therefrom, together with interest
on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

In other words, profit (together with interest on such profits) received or could have been received by a person in
wrongful possession of property.

but shall not include profits due to improvements made by the person in wrongful possession;
14
Note: Civil courts while dealing with the rights of the parties involved in a suit concerning mesne profits, will rely
on the provisions provided in Rule 12 of Order XX of CPC.

KB Singh v MDU Co-op Association, AIR 1957 : Mesne profits can be claimed only regarding immovable property
and not in regard to such property which cannot be deemed to be immovable property.

Chittoori v. Kudappa, AIR 1965 : The general rule on which this concept is based is that a person in wrongful
possession and enjoyment of immovable property is liable for Mesne profits.

In other words, When a person is deprived of his possession he is not only entitled to recover possession but also
damages for wrongful possession by another.

Principle which guide the court to determine Mesne profit allowed or not:

1. A wrongful possessor should not profit by his possession

2. Restoration of status before dispossession from rightful owner

3. Use of such property if owner himself in possession.

Circumstances when mesne profit not granted:

1) Joint family property and parties that are in joint possession of the same: The Telangana High Court in the case
of Smt. Subashini vs S. Sankaramma (2018) opined that if the immovable property in concern is a joint family
property and both the appellate and the respondent are joint owners of such property then in such circumstance
the appellate cannot claim mesne profits as the respondent is an owner himself and therefore not in wrongful
possession of the said property.

2) No Order or Decree by any court of law to the effect of the mesne profits: The Income Tax Appellate Tribunal
observed in the case of Krishna N Bhojwani, Vs. Assessee (2021) that Order or Decree by any civil court is the
foremost condition to give effect to mesne profits. In this particular case, the grant of mesne profit has been
disallowed on grounds that there exists no Order or Decree by any civil court which can give effect to mesne profit.
Therefore, the appellate became prohibited from the same.

S. 2(13) of CPC : “movable property” includes growing crops;

Note : Standing timber intended to be cut down and the standing crops have been held to be movable properties.

S. 2(14) of CPC : “order” means the formal expression of any decision of a Civil Court which is not a decree;

Note : Order written by a clerk and signed by the Court is a proper order.

S. 2(16) of CPC : “prescribed” means prescribed by rules;

S. 2(17) of CPC : “public officer” means a person falling under any of the descriptions In section 2(17) of the Code.

So, every judge, every member of all India services, every gazetted officer of union, every officer of Court of
Justice or of government, a Minister of a State, a Receiver, a village headman, an officer in the Indian Army, a
Sheriff of Bombay, a Bench clerk of Civil Court, an Inspector of police, a custodian of evacuee property, provident
fund commissioner and advocate engaged by the Government on day fees, an income tax officer etc are public
officers.

But a retired government servant, a Port commissioner, a liquidator under the cooperative societies act, a
chairman of a municipality, a Municipal Councillor, an officer of a corporation are not public officers.

S. 2(19) of CPC : “share in a corporation” shall be deemed to include stock, debenture stock, debentures or

bonds; and

15
S. 2(20) of CPC : “signed”, save in the case of a judgment or decree, includes stamped.

Section 3 of CPC : Subordination of Courts.—For the purposes of this Code, the District Court is subordinate to the
High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is
subordinate to the High Court and District Court.

The enumeration of Subordinate Courts in this section is not exhaustive and does not exclude other Courts from
the High Court. Thus, a Tribunal under the Displaced Persons (Debts Adjustment) Act, 1951, or the Motor Accident
Claims Tribunal under the Motor Vehicles Act is a Civil Court subordinate to High Court for the purposes of this
Code.

Section 4 of CPC : Savings.

Legal maxim : "generalibus specialia derogant" (Special law should prevail over general law)

Sub-Section 1) When anything in the CPC is in conflict with :- i. anything in special or local law; or ii. any special
jurisdiction or power conferred for any special form of procedure prescribed by or under any other law,

the CPC will not (in the absence of any specific provision to the contrary) prevail so as to override such
inconsistent provisions.

Note: Section 4 does not bar the applicability of the Code where the special or local law is silent.

The Code applies to the procedure of all Courts of Civil Judicature. But it does not affect any special or local law
(Savitri Thakurain v Savi, AIR 1921) . In case of conflict between Civil Procedure Code and a Special law, the latter
prevails over the former.(Mohd Azim Khan v Mumtaz Ali Khan, AIR 1932)

Sub-Section 2) In particular and without prejudice to the generality of the proposition contained in sub-section ( 1
), nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or landlord may
have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such
land.

Section 5 of CPC : Application of the Code to Revenue Courts.

When local Revenue or Rent Acts are silent on any particular matter of procedure the provisions of the Code would
apply.

Note : Civil Court means courts having original jurisdiction under CPC to try such suits or proceedings as being
suits or proceedings of a Civil nature., but not Revenue Court. because Revenue Court is not a part of Civil Court.

Section 6 of CPC : Pecuniary jurisdiction : Save in so far as is otherwise expressly provided, nothing herein contained
shall operate to give any Court jurisdiction over suits the amount or value of the subjectmatter of which exceeds the
pecuniary limits (if any) of its ordinary jurisdiction.

Note : The expression "subject-matter" refers not to the property involved in the suit but the relief claimed and it
is that which determines the jurisdiction. When a Court has no jurisdiction in a particular suit, the parties cannot
by mutual consent, confer such jurisdiction on the Court. No amount of consent or waiver can create jurisdiction.
Furthermore, section 6 refers only to the Court's power to entertain a suit.

Section 7 of CPC : Provincial Small Cause Courts.

Section 8 of CPC : Presidency Small Cause Courts.

16
Part 1 | Suits in General | Section 9-35B

Jurisdiction of Courts and Res judicata | Section 9-14

General meaning of Jurisdiction : Jurisdiction is power of court to take cognizance of an offence and to
determine the cause of action.

Black’s Law Dictionary defines the term as “A court’s power to decide a case or issue a decree.”

Hriday Nath Roy vs Akhil Chandra Roy And Ors. on 1 June, 1928 : The high court of Calcutta stated that
Jurisdiction may be defined as judicial power of court to hear and determine the cause and adjudicate upon it.

In simple words, it can be described as the power of the court to settle the matter.

Kinds of Jurisdiction : a Civil Court has following 4 kind of jurisdiction ;

1) JURISDICTION OVER THE SUBJECT MATTER : Different types of courts have been allotted different type of
work by different statutes. For example, a small cause court can try only certain suits, such as money suit,
based on an oral loan or a bond or promissory note, a suit for price of work done, a suit for recovery of price
of goods supplied, but it has no jurisdiction to try the suits for specific performance of contracts, for
injunction, for a dissolution of partnership, or suit for partition of immovable property. Similarly, only
District Judge has the jurisdiction in respect of testamentary matters, such as granting probate or letter of
administration, and divorce cases.

2) LOCAL OR TERRITORIAL JURISDICTION : Every court has its own local or territorial limits beyond which it
cannot exercise its jurisdiction. These limits are fixed by the Government. District court of a region has power
to decide matters arising within or related to immovable property situated within that district only. Similarly,
High Court of a region for example of Maharashtra will have jurisdiction to decide matters arising within
Maharashtra only not outside. Section 16 of CPC explains the territorial jurisdiction on the grounds of the
location of the immovable property.

3) PECUNIARY JURISDICTION : Section 6 of Code provides that a court will have jurisdiction only over those
suits, the amount or value of the subject-matter of which does not exceed the pecuniary limits of its
jurisdiction. Some courts have unlimited pecuniary jurisdiction, e.g. High Courts has no pecuniary limitations.

4) ORIGINAL OR APPELLATE JURISDICTION : The jurisdiction of a Court may be original or appellate. In the
exercise of its original jurisdiction, a court entertains original suits, while in the exercise of its appellate
jurisdiction it entertains appeals.

For example, the jurisdiction of the court of munsif and small cause court is only original, while the court of
Civil Judge, District Judge, and High Court also exercise appellate jurisdiction.

Section 9 of CPC : "Courts to try all civil suits unless barred"

"The courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature
excepting suits of which their cognizance is either expressly or impliedly barred."

Conditions : a Civil Court has jurisdiction to try a suit if two conditions are satisfied -

1) Suit must be of a civil nature, &

17
2) The cognizance of such suit should not have been expressly or impliedly barred.

Explaining the concept of jurisdiction of civil courts under section 9, in PMA Metropolitan v. M.M. Marthoma,
the supreme court stated:

“the expensive nature of the section is demonstrated by use of phraseology both positive and negative. The
earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly
barred.

Cognizance Expressly Barred : A suit is said to be expressly barred when it is barred by any statute for the
time being in force.

Cognizance Impliedly Barred : A suit is said to be impliedly barred when it is barred by general principles of
Law. For Example where a specific remedy is given by a Statute, it thereby deprive the person who insists
upon a remedy in any other form than that given by the Statute.

SUIT OF CIVIL NATURE : A suit is of a civil nature, if the principal question in the suit relates to the
determination of a civil right and enforcement thereof. Thus if the principal question in the suit is a caste
question or a question relating to religious rites or ceremonies, the suit is not of a civil nature.

The expression "suit of civil nature" will cover private rights and obligations of a citizen.

Note: Political and religious questions are not covered by that expression. A suit in which principal question
relates to caste or religion is not a suit of a civil nature. But if the principal question in the suit is of a civil
nature (the right to property or to an office) and the adjudication incidentally involves the determination
relating to a caste question or to religious rites and ceremonies, it does not cease to be a suit of a civil nature
and the jurisdiction of a civil court is not barred. (Explanation 1 to Section 9).

Explanation II, added by the Amendment Act, 1976, further provides that 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. Thus in order to fall within the purview of the term 'of civil nature ' the suit must be for the
enforcement of private rights and obligations of a citizen and not of matters which are purely social.

So, Section 9 confers the power upon the civil court jurisdiction to try a suit of civil nature. In other words,
the civil courts’ power is restricted only to suits and/or disputes of civil nature

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; a suit to establish a right of worship is a suit of civil nature. (Nar Hari v
BN Temple Committee, AIR 1952)

It is immaterial that the right worship relates to temple which belongs to an Institution of religious character.

3. suits relating to taking out of religious procession; Shaik Piru v Kalandi Pati, AIR 1964

4. suits relating to right to share in offerings;

5. suits for damages for civil wrongs;

18
6. suits for specific performance of contracts or for damages for breach of contracts;

7. suits for specific relief’s;

8. suits for restitution of conjugal rights;

9. suits for dissolution of marriages;

10. suits for rent; RYS Mani v Balkrishna Nanakram, AIR 1953

11. suits for or on account;

12. suits for rights of franchise;

13. suits for rights to hereditary offices;

14. suits for rights to Yajmanvritis;

15. suits against wrongful dismissal from service and for salaries,

16. suits relating to partnership etc.

17. Suit by Government servant for arrears of salary.—A suit for recovery of arrears by a civil servant for the
period he was actually in office is maintainable in a Civil Court. (State of Bihar v Abdul Majid, AIR 1954)

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 relating to political questions.

4. suits for upholding mere dignity or honor;

Shri Shanker v. Bharati : It is not a suit of civil nature because it does not involve any legal right of an
individual nor it involves a question of right to a property or to an office.

5. suits for recovery of voluntary payments or offerings;

6. suits against expulsions from caste,

Section 10 of CPC : Stay of Suit. (RES SUB JUDICE / वचाराधीन याय)

Conditions for the applicability of section 10:

1. There must be 2 suits, one previously instituted and the other subsequently instituted.

2. The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit.

3. Both the suits must be between the same parties or their representatives

4. The previously instituted suit must be pending

19
 a) in the same court in which the subsequent suit is brought or

b) in any other court in India or

c) in any court outside India, established or continued by the central govt; or

d) before the Supreme Court

5. The Court in which the previous suit instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.

6. Such parties must be litigating under the same title in both the suits.

As soon as the above conditions are satisfied, the court cannot proceed with the subsequently instituted suit
since the provisions contained in section 10 mandatory, and no discretion is left with the court, The order
staying proceedings in the subsequent suit can be made at any stage.

Explanation to Section 10 makes it clear that "the pendency of a suit in Foreign Court doesn't preclude the
Courts from trying a suit founded on the same cause of action."

Object of Section 10 : The object of this section is to prevent two courts of concurrent jurisdiction (Concurrent
jurisdiction means that two different courts have the authority to hear the same case) from simultaneously
trying two parallel suits in respect of the same matter in issue. The policy of the law is to confine the plaintiff
to one litigation. This obviates multiplicity of Suits, as also the possibility of contradictory verdicts by two or
more course in respect of the same relief.

Important Points for Section 10;

1. Section 10 only bars the trial and not the Institution of the suit.

2. A court cannot dismiss a suit under this section; it can only postpone the trial.

3. The Official Receiver v. Palaniswami, 1925 : Section 10 does not empower one court to stay the proceedings
of another court.

4. High Court has the power to stay a suit pending in a subordinate Court (section 151)

5. P.C. Jairath v. Mrs. Amrit Jairath on 22 July, 1966 : An appeal cannot be filed, if a suit is stayed u/s 10 of CPC.
The Order passed u/s 10 is relating to jurisdiction of a court so a petition for revision can be entertained.

6. Sheopat Rai v. Warak Chand, 1919 : Section 10 enacts merely a rule of procedure and a decree passed in
contravention of this section is not a nullity and cannot be disregarded in execution proceedings.

7. Inderpal Singh Hassanwalia v. Bir Tibbtan Woollen Mills, 1974 : Delhi High Court observed that section 10 of
CPC applies only to suit and cannot apply where one of the two proceedings is not a suit.

8. It is not applicable to subsequently filed summary suit under Order 37.

9. The words “matter in issue” in S 10, C.P.C., means the entire matter in controversy and not one of the
several issues in the case. A mere identity of some of the issues in both the suits is not sufficient to attract the
section.

20
Section 11 of CPC : Res Judicata.
Q. 1) Explain the principles of the doctrine of Res-judicata. Is S. 11 C.P.C, exhaustive in this matter? [CG. (J) 2004,
2010, (Bihar (J) 1980, 1986, 2006, 2014, Jharkhand (J) 2014, UP (J) 1984, 1988, 1997 Haryana (J) 1986, 1996,
2000, CG 2010, Raj J 1970]

Q. 2) Explain the essential conditions and objects of Res-judicata.

Q. 3) Explain the Doctrine of Constructive res-judicata. [UPCJ 1986, 2012, BIHAR J 1991, HR J 1988, 1999, 2010,
DJS 2007, HJS 1988, 1999, 2011, CGJ 2010]

Q. 4) Does Res-judicata apply to execution proceedings? [Haryana (J) 1996. HJS 1996]

Q. 5) Distinguish between the Res-judicata and Estoppel. [UPCJ, 1984, 2016, MP HJS 2015]

Q. 6) Distinguish between the Res-judicata and Res-Sub-judice. [UPHJS 1998, 1999, 2001, 2011, DJS 2006, CGJ
2003, 2004, MPCJ Z2011, 2014, BIHAR J 2011, HR J 1998, 1999, 2001, 2011, UPHJS 2018]

Introduction: The principle of Res Judicata was interpreted by Sir William D. Gray in a leading suit of
"Duchess of Kingston's Case, (1776)". Such interpretation in the above suit was approved by the Supreme
Court of India in the suit of Daryao Singh v. State of U.P. AIR 1961 and the same was followed by the Supreme
Court in the case of Satyadhyan Ghosal v. Deorjin Debi AIR 1960 .

The doctrine of res judicata has been explained by Das Gupta J. in the case of Satyadhyan Ghosal v. Deorjin
Debi AIR 1960 as:

“The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that
once a res is judicata, it shall not be adjudged again.

Subramanian Swany v. State of T.N., (2014) : ‘Res’ means ‘subject matter’ or ‘dispute’ and ‘Judicata’ means
‘adjudged’, ‘decided’ or ‘adjudicated’. ‘Res Judicata’ thus means ‘a matter adjudged’ or ‘a dispute decided’.

Meaning of Res judicata : "a thing adjudicated" that is, an issue that is finally settled by judicial decision.
Section 11 of CPC states that no Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same parties, or between parties
under whom they or any of them claim, litigating under the same title, in a Court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally
decided by such Court.

(It simply enacts that once a matter is finally decided by a competent Court, no party can be permitted to
reopen it in a subsequent litigation.)

Assocn. of the Residents of MHOW v UOI, 2010 : Where an issue has been heard and finally decided by the
Court, the Court cannot try the subsequent suit or the issue in the subsequent suit.

Explanation I. Former suit. — The expression "former suit" shall denote a suit which has been decided prior to the
suit in question whether or not it was instituted prior thereto.

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Explanation II.Competency of Court trying former suit.— For the purposes of this section, the competence of a
Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.

Explanation III.— The matter above referred to must in the former suit have been alleged by one party and either
denied or admitted, expressly or impliedly, by the other.

Explanation IV. Constructive Res Judicata.— Any matter which might and ought to have been made ground of
defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in
such suit. (State of U.P v. Nawab Husain 1977)

Explanation V.— Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the
purposes of this section, be deemed to have been refused.

Explanation VI.— Doctrine of Res Judicata applies to representative suit (Order 1 Rule 8) [Explanation VI applies
to the public interest litigation, but it must be proved that the previous litigation was public interest litigation
and not by the way of a private grievance.]

Explanation VII.— Doctrine of Res Judicata applies to Execution Proceedings

Explanation VIII.— Doctrine of Res Judicata applies against the decision given by a court of Limited jurisdiction

Objective of Section 11 of CPC : The doctrine of res judicata is based on three roman maxims:- (Gulam Abbas v.
State of U.P)

(1) nemo debet lis vexari pro uno eadem causa: No man should be vexed twice for same cause.

(2) intrest republica ut sit finis litium: it is in the interest of State that there should be an end to a litigation,.

(3) Res Judicata pro veritate occipiture: a judicial decision must be accepted as correct. (G. Yinayagar Temple
v Meenakshi Ammal, (2009))

NOTE : The Doctrine of Res Judicata is founded on the principles of equity, justice, and good conscience. (Lal
Chand v. Radha Krishna, AIR 1977)

Application of Section 11(doctrine of Res Judicata) ;

1) It applies to representative suit (Order 1 Rule 8) & Execution Proceedings ((Explanation VI &
Explanation VII Respectively)

2) It applies to all civil and criminal proceedings and equally to all quasi-judicial proceedings before
tribunals. (Sulochana Amma v. Narayatianan Nair, AIR 1994)

3) It is applicable to arbitration as well as awards. (KV George v Secretary to Govt, AIR 1990)

4) It applies to probate proceedings.

5) It applies in case of a decree passed against minor in a suit, if minor is properly represented in such
suit. (Rameshwar B. Singh v. Ridh Kuer 1925)

6) It applies in case of a decision given by a court of exclusive jurisdiction.

7) It applies against the decision given by a court of Limited jurisdiction (Explanation VIII)
22
 8) It would not apply if the previous decision was given by a court having no jurisdiction. [Union of India
Vs. Pramod Gupta, (2005)].

9) Daryao Singh v. State of U.P. AIR 1961 : the petitioner has filed petition in High Court of Allahabad
under article 226 & it was dismissed. He further filed writ petition in Supreme court under article 32 of
the Constitution, for same relief on same ground. The supreme court dismissed the petition & upheld
the contention of High Court.

Hence the principle of Res Judicata will also applied to writ petition [Amalgamated Coalfields Ltd. &
Anr vs Janapada Sabha Chhindwara, 1964], however it may be noted that the doctrine of res judicata
will not apply to a writ of habeas corpus. [Ghulam Sarwar vs Union Of India & Ors, 1967]. In the case of
Sunil Dutt v Union of India, it was held that habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition

10) It does not apply to a suit having pure question of law.

11) It does not apply in cases of consent or compromise decree (Subba Rao v. Jagnnadha Rao 1967).

12) It is not been applied in the income tax proceedings. In the case of B.S.N.L vs. Union of India[AIR 2006],
the court held that the decision given for one assessment year does not operate as res judicata in the
Subsequent year. (Radhaswami SS Bagh, Agra v CIT, AIR 1992)

The doctrine of res judicata is a fundamental concept based on public policy. This doctrine is applicable to
civil proceedings, criminal proceedings, arbitration proceedings, Execution Proceedings, representative suit
and writ petitions (except the writ of habeas corpus). Thus, the doctrine of Res Judicata is not exhaustive.
[Attar Singh vs Kamlesh Saini, 2013].

Difference between doctrine of Res Judicata and Estoppel

S. N. doctrine of Res Judicata Estoppel

1. S. 11 of CPC deals with the doctrine of Res Judicata. S. 115 of the Indian Evidence Act deals with Estoppel.

2. It results from the decision of a Court. It results from the act of a party.

3. It binds both the parties to the litigation. It binds only that party who made previous statement of
conduct.

4. It prevents the parties from raising the same issues in the It prevents a man from saying one thing at one time and
successive litigations. opposite thing at another time.

5. It prevents the court from trying adjudged matters. It shuts the mouth of a party .

6. Res judicata deals only with the aspect of public policy Estoppel is based upon the rule of equity

Difference between doctrine of Res Judicata and Res sub judice

S. N. doctrine of Res Judicata Res sub judice

1. S. 11 of CPC deals with the doctrine of Res Judicata. S. 10 of CPC deals with the doctrine of Res sub judice.

2. It applies to a decided or adjudicated matter. It applies in a matter which is pending..

3. It prevents the court from trying adjudged matters. So it It prevents two courts of concurrent jurisdiction from
bars the Institution of suit involving adjudged matters. simultaneously proceed to try two parallel suits in respect of
the same matter in issue. It bars the trial and not the
Institution of the suit .

4. The doctrine of Res Judicata is not applied in appeals. But it It applies to only suit including appeal.
applies to suit and applications.
23
Q. 7) In which of the following cases the rule/principle of res judicata will operate:

(i) Failure to raise an alternative plea which is inconsistent with the main plea in the suit.

(ii) A suit was dismissed on the plea of limitation without adjudicating merits. A subsequent suit was filed in
which the same pleas were raised.

(iii) Dismissal by Trial Court of suit for default or for want of jurisdiction.

(iv) A writ petition under Article 226 of the Constitution was dismissed by the High Court in limine without a
speaking order. The petitioner subsequently filed a petition under Article 32 on the same subject-matter taking
the same plea.

(v) A suit between co-parceners for partition of immovable property was finally decided. Subsequently one of
the coparceners filed another suit for partition to movable property.

(vi) 'A' sues 'B' for certain land in his personal capacity. The suit is heard and dismissed. Again 'A' sues 'B' for
same land in the same court as Mutwali.

(vii) “A’ brought a suit against 'B’ to recover possession of math property claiming it as the heir deceased
Mahant. The suit was dismissed because 'A' failed to produce a certificate of succession to establish his heirship.
'A' brings another suit against 'B' claiming the math property as manager of the math property on behalf of the
math.

(viii) 'A' files a suit for declaration that he is entitled to certain lands as heir to 'B'. The suit is dismissed. Can he
claim in later suit the same properties on the basis of adverse possession?

(ix) Does res judicata also apply between the Co-Defendant?

(x) Does res judicata also apply between the Co-Plaintiff?

Ans (i) No. Failure to raise an alternative plea which is inconsistent with the main plea does not operate as res
judicata in the subsequent suit. [Dhani Ram v. Pritam Singh]

Usually the subsequent suit on the ground of alternative pleas is barred by principal of constructive res
judicata, even though the alternative pleas were not actually raised and decided by the court. But if
alternative plea is inconsistent with the main plea, the doctrine of constructive res judicata does not come
into play and consequently subsequent suit is not barred by res judicata (constructive).

So omission to put forward alternative and inconsistent claims in a prior suit does not constitutes res judicata
for the purpose of subsequent suit. [Dola Khetaji Vahivatdar v. Balya Kanoo Patel, 1921]

Ans (ii) Basically the principle of res judicata applies to those matter in issue which have been heard and
finally decided by the court of competent jurisdiction in the former suit. So, it is necessary that the suit must
have been decided on merits and matter cannot be said to have been heard and decided when the former suit
was dismissed on the ground of limitation. Thus, in the present situation, the doctrine of res judicata will not
apply.
24
Ans (iii) Basically the principle of res judicata applies to those matter in issue which have been heard and
finally decided by the court of competent jurisdiction in the former suit. So, it is necessary that the suit must
have been decided on merits and matter cannot be said to have been heard and decided when the former suit
was dismissed by the Trial Court for default or for want of jurisdiction. Thus, in the present situation, the
doctrine of res judicata will not apply.

Ans (iv) No. If the petition is dismissed in limine without passing a speaking order then such dismissal cannot
operate as res judicata on subsequently filed petition under Article 32 on the same subject-matter taking the
same plea. [Daryao And Others vs The State Of U. P. And Others, 1961]

Ans (v) Yes. In the present situation, the general rule of res judicata (constructive) will apply. - [Explanation
IV to Sec 11 of CPC].

Chandu And Ors. vs Kirpa Ram And Ors, AIR 1952 HP 65 There are 2 clear grounds on which the present suit
should fail :

 firstly, the properties in suit have already been partitioned, and,

 secondly, if any of them has not been partitioned, the same should have been brought into the
hotchpot by the present plaintiffs in the former suit.

So, in the absence of mistake, fraud or accident of withdrawal with liberty to file a fresh suit, a second suit for
partition on the ground that the previous partition was a partial would be barred by constructive res
judicata.

Ans (vi)No. In the present situation, the general rule of res judicata will not apply.

An important condition for the application of the doctrine of res judicata (Sec 11 of CPC) is that the party in
the former suit, and the subsequent suit must have been litigating under the same title (same capacity).
Hence, if the title of parties in both the suits changes, the subsequent suit would not be barred by res
judicata.

In the given problem, 'A' sues 'B' in the former suit for a particular land in his personal capacity. And the
former suit is heard and dismissed. Again 'A' sues 'B' for same land in the same court as Mutwali under
different titles. Thus, the doctrine of res judicata will not attract.

Ans (vii)No. In the present situation, the general rule of res judicata will not apply. [Babajirao Gambhirsing v.
Laxmandas Guru Raghunathdas, 1904]

An important condition for the application of the doctrine of res judicata (Sec 11 of CPC) is that the party in
the former suit, and the subsequent suit must have been litigating under the same title (same capacity).
Hence, if the title of parties in both the suits changes, the subsequent suit would not be barred by res
judicata.

In the given problem, “A’ brought former suit against 'B’ to recover possession of math property claiming it as
the heir deceased Mahant. The former suit was dismissed because 'A' failed to produce a certificate of
succession to establish his heirship. 'A' brings subsequent suit against 'B' claiming the math property as
manager of the math property on behalf of the math. In the both suit the title of 'A' is different. He is
litigating under the different title (different capacity). So the principle of res judicata will not apply.

25
Ans (viii) Yes. The subsequent suit is barred by res judicata. In the given problem, 'A' filed a suit for
declaration that he is entitled to certain lands as heir to 'B'. The suit is dismissed. Then he can not claim in
subsequent suit the same properties on the basis of adverse possession. Because, the title was available to
him even at the time of the former suit, so the subsequent suit is barred by constructive res judicata.

According to Explanation IV to the Sec 11 of CPC, when any matter which might and ought to have been made
a ground of Defence or attack in a former proceedings but was not so made then such matter is Deemed to
have been constructively in issue and therefore is taken as adjudicated.

In support of above view, in the case of Dhani Ram Bishan Das And Anr. vs Rattan Das, AIR 1961, it was held
that if Plaintiff fails in a suit claiming lands on the ground of inheritance, he cannot bring another suit
claiming the lands on the basis of adverse possession.

Ans (ix) Yes. It applies between co-defendants (Munni Bibi v. Trilokinath, 58 IA 158, 165, where it has been
said that to apply the rule of res judicata as between co-defendants three conditions are requisite. "

(1) There must be a conflict of interest between the defendants concerned;

(2) it must be necessary to decide this conflict in order to give the plaintiff the relief he claims; and

(3) the question between the defendants must have been finally decided.")

Ans (x) Yes. it can be applied even b/w co-plaintiffs. In the case of Iftikhar Ahmed v. Syed Meharban Ali, the
court held that if the following conditions are satisfied res judicata will be applicable: there must be a
conflict of interest between the co-plaintiffs it must be necessary to decide such conflicts, in order to give
relief to the plaintiff the questions between the plaintiffs to be finally decided...

Section 12 of CPC : Bar to further suit. Where a plaintiff is precluded by rules from instituting a further suit in
respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of
action in any Court to which this Code applies.

The following provisions of the Civil Procedure Code bar a fresh suit in respect of the same cause of action:

Sec. 11, 21-A, 34(2), 47(1) 95(2), 144(2) of CPC. Order 2 Rule 2, Order 9 Rule 9., Order 22 Rule 9,

Order 23 Rule 1 & Rule 3-A Order 11 Rule 21 (2), Order 33 Rule 15,

26
Foreign Judgment A combined reading of Section 2(5) & Section 2(6) of CPC provide the definition of
foreign judgement in the following words - “Foreign judgment” means the judgment of a Court situate outside
India and not established or continued by the authority of the Central Government;] ;

Section 13 of CPC : When foreign judgment not conclusive.—

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim litigating under the same title , except—

(a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on
the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or
a refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India.

Satya v Teja Singh, AIR 1975 : If the judgment falls under any of the clauses (a) to (e) of section 13, it will cease
to be conclusive as to any matter thereby adjudicated upon.

Ques. In what manner may a decree of foreign court be executed in India ?

Ans. A combined reading of Sections 43 to 44-A shows that the Indian courts have power to execute the
decrees passed by

(1) Indian courts to which the provisions of the Code do not apply;

(2) the courts situate outside India which are established by the authority of the Central Government;

(3) revenue courts in India to which the provisions of the Code do not apply; and

(4) superior courts of any reciprocating territory.

Foreign judgement may be in force by a suit. It may also be enforced by proceedings in execution in certain
specified cases which are mentioned in section 44-A of CPC

Where is certified copy of a decree of any of the Superior Court of any reciprocating Territory has been filed in
a district court along with the certificate from such Superior Court stating the extent, if any, to which the
decree has been satisfied or adjusted, then such decree may be executed in India as if it had been passed by
the district court.

Section 14 of CPC : Presumption as to foreign judgments.

The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary
appears on the record; but such presumption may be displaced by proving want of jurisdiction.

27
Place of Suing | Section 15-20
Sections 15 to 20 of the Code deal with the place of suing, that is the forum for institution of suits in India.
These sections regulate the venue within India and apply only to those places where the Code is in force.

Section 15 of the Code refers to the pecuniary jurisdiction of the court.

Section 15 of CPC : Court in which suits to be instituted.—Every suit shall be instituted in the Court of the lowest
grade competent to try it.

The word "competent" used in this section has reference to the jurisdiction of a Court.

In other words, a Court is said to be competent to try a civil suit when it has (i) territorial jurisdiction; (ii) pecuniary
or monetory jurisdiction; and (iii) jurisdiction with regard to subject-matter.

Object of Section 15 is to prevent overabundance of the trial of the suit upon higher Courts i. e., the Courts of
higher grades shall not be over-crowded with suits.

Section 16 to 20 of CPC deals with the territorial jurisdiction :

Section 16 (suit related immovable property)

Section 19 (suit related movable property)

Section 20 ( other suits)

Section 16 of CPC : Suits to be instituted where subject-matter situate. 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:

Explanation : Courts have no power to entertain suits in respect of properties situate outside India.

Proviso to the section.— The suits to obtain relief respecting, or compensation for wrong to, immovable
property may be instituted at the option of the plaintiff either

i. in the Court within the local limits of whose jurisdiction, the property is situated; or

ii. in the Court within local limits of whose jurisdiction the defendant actually and voluntarily resides, or

28
carries on business or personally works for gains.

Example : An Immovable property held by Y is situated at Bhopal & the wrongdoer personally works for gain
at Indore. A suit to obtain compensation for wrong to the property may be instituted either at Bhopal or at
Indore.

The proviso does not apply when the property is possessed by the plaintiff himself. And this proviso is based
on the well-known maxim, equity acts in personam whereby the Court looks to the fulfilment of its decree to
the person of the defendant.

Section 17 of CPC : Suits for immovable property situate within jurisdiction of different Courts. : Where a suit
is to obtain a relief in respect of property situated in the jurisdiction of different Courts, the suit can be
brought in any one of the Courts and such Court can deal with the whole of the property though some portion
of it is situated outside its jurisdiction..

Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such
Court.

Note : The present section is supplementary to the provision of section 18. However, this section is not
applicable so far as Clause (f) of section 16 is concerned. The section is intended for the benefits of suitors and
to prevent multiplicity of suits.

Shivnarayan (D) By Lrs. vs Maniklal (D) Thr. Lrs. 2019 : "Section 17 can be applied in event there are several
properties, one or more of which may be located in different jurisdiction of courts. The Supreme Court has
held that the word 'property' in Section 17 of the Code of Civil Procedure can include more than one property.
Therefore, the application of Section 17 CPC is not restricted to situations where portions of a single property
fall within different jurisdictions; rather, it will apply to even those cases where the suit is concerning
different properties situated.

Section 18 of CPC : Place of institution of suit where local limits of jurisdiction of Courts are uncertain. :

Sub-Section 1] Where it is uncertain as to within whose jurisdiction of two or more Courts the immovable
property is situate any one of those Courts may try the suit relating to that property after recording a
statement as to uncertainty, and thereupon proceed to entertain and dispose of the suit relating to that
property and its decree in the suit shall have the same effect as if the property were situate within the local
limits of its jurisdiction.

Provided that the suit is one with respect to which the Court is competent as regards the nature and value of
the suit to exercise jurisdiction.

Sub-Section 2] Where a statement has not been recorded under sub-section (1), & an objection is taken before
an Appellate or Revisional Court that a decree or order in a suit relating to such property was made by a Court
not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the
objection

unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty
as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

Section 19 of CPC : Suits for compensation for wrong to person or movable

29
  A suit for wrong to movable property may be brought at the option of the plaintiff either

i. at the place where the wrong is comnmitted; or

ii. where the defendant resides, carries on business or personally works for gain.

Because It has been said, movables follow the person (Mobilia sequuntur personamn).

 A suit for compensation for wrong (tort) to a person may be instituted at the option of the plaintiff
either

i. where such wrong is committed, or

ii. where the defendant resides, carries on business or personally works for gain.

Ilustration a] A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

Ilustration b] A, residing in Delhi, publishes in Calcutta statements defamatory to B. B may sue A either in
Calcutta or in Delhi.

Note : u/s 19, a 'wrong' means the infringement of legal right & is consequently an actionable wrong.

Section 20 of CPC : Other suits to be instituted where defendants reside or cause of action arises.

Section 20 enacts the rule as to the forum in cases of personal actions, and has to be read subject to the
provisions of sections 15 to 19 of the Code.

According to this section, all other suits may be instituted at the option of the plaintiff in any of the following
Courts:

(i) where the defendant resides or carries on business, or personally works for gains; or

(ii) where any one of them (if there are more defendant than one) resides or carries on business or personally
works for gain, provided that in such case either the leave of the Court is taken or the defendants who do not
reside, or carry on business or personally work for gain, at that place acquiesce in such institution; or

[UOI v Ladulal Jain, AIR 1963 : Principle behind the provisions of clauses (a) and (b) of section 20 is that the
suit be instituted at a place where the defendant is able to defend the suit without undue trouble.]

(iii) where the cause of action arises either wholly or in part;

[Explanation.]—A corporation shall be deemed to carry on business at its sole or principal office in India or, in
respect of any cause of action arising at any place where it has also a subordinate office, at such place.

Illustration a] A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in Calcutta, buys
goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action
has arisen, or in Delhi, where B carries on business.

Illustration b] A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Benares, B and C
make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Benares where the
cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in
30
each of these cases if the non-resident defendant objects, the suit cannot proceed without the leave of the
Court.

Govinda Rajulu v Secretary of State, AIR 1927 : The word "business"is used in the section in a restricted sense
and means commercial business alone.

Section 21 of CPC : Objections to jurisdiction.

Sub-Section 1] + Sub-Section 2] of S.21 states that" No objection as to

i) the place of suing ; or ii) the competence of a Court with reference to the pecuniary limits of its jurisdiction;

shall be allowed by any appellate or revisional Court

unless the following three conditions must coexist-

(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 ofissues; and

(c)There has been a consequent failure ofjustice.

Sub-Section 3] No objection as to the competence of the executing Court with reference to the local limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the
executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.]

Oriental Bank of Commerce v SK Agarwal, 2008 : Section 21 of CPC does not apply to High Court in exercise of
its original civil jurisdiction.

Note : The policy underlying section 21 and section 99 is that when a case has been tried by a Court on the
merits and judgment rendered, it should not be liable to be reversed purely on the technical grounds, unless
it has resulted in failure of justice. i.e., unless there has been a prejudice on the merits.

Section 21A of CPC : Bar on suit to set aside decree on objection as to place of suing. : if in a former suit, a
decree is passed against a person without objection as to jurisdiction having been raised, that person cannot
in a subsequent suit, attack, the decree on the ground of want of jurisdiction.That is u/s 21-A of CPC suit to set
aside decree on the ground of lake of Jurisdiction is barred.

Transfer of Suits : Sections 22 to 25 of the C.P.C. deal with the provisions of transfer of suits.
Section 22 of CPC : Power to transfer suits which may be instituted in more than one Court. : Section 22
empowers the defendant to make an application of transfer. Before transfer is ordered under Sec. 22,
defendant has to satisfy two conditions namely-

(i) The application must be made at the earliest possible opportunity and in all cases where issues are settled,
at or before the settlement of issues; &

(ii) Notice must be given to other side which is mandatory.

Khatija Bibi v Taruk, (1883) : The power of the transfer given by section 22 is not a general power as in section
24. It is limited to cases in sections 16 and 20 of the Code, where the plaintiff has the option to sue in more
Courts than one.

31
Section 23 of CPC : To what Court application lies : This Section is supplement to section 22.

Sub-Section 1] Where the several Courts having jurisdiction to the same appellate Court, an application under
Section 22 shall be made to the appellate Court.

Sub-Section 2] Where several Courts are under the same High Court although under different Appellate
Courts, an application under Section 22 shall be made to the said High Court.

Sub-Section 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.

Durgesh Sharma v Jayshree, AIR 2009 : A High Court has no power, authority or jurisdiction to transfer a case,
appeal or other proceedings pending in a Court subordinate to it to any Court subordinate to another High
Court in purported exercise of power under section 23(3) of the Code. It is only Supreme Court which can
exercise the said authority under section 25 of the Code

Section 24 of CPC : General power of transfer and withdrawal.

Sub-Section 1] On the application of any of the parties and after notice to the parties and after hearing such of
them as desire to be heard, or of its own motion without such notice, the High Court or the District Court may at
any stage—

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to
it and competent to try or dispose of the same, or

(b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, & —

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the
same; or

(iii) retransfer the same for trial or disposal to the Court from which it was withdrawn.

Sub-Section 2] Where any suit or proceeding has been transferred or withdrawn under subsection (1), the
Court which is thereafter to try or dispose of such suit or proceeding may, subject to any special directions in
order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn.

Sub-Section 3] For the purposes of this section,—

(a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court;

(b) "proceeding" includes a proceeding for the execution of a decree or order.]

Sub-Section 4] The Court trying any suit transferred or withdrawn under this section from a Court of Small
Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes

Sub-Section 5] A suit or proceeding may also be transferred under this section from a Court which has no
jurisdiction to try it.

Note : A Court acting under section 24 of the Code may or may not in its judicial discretion transfer a
particular case. Because this Section is merely to confer on the Court a discretionary power.
32
Jitendra Singh v Bhanu Kumari, AIR 2008 : Notice.—No notice is necessary if the Court acts under this section
suo motu i.e., of its own motion. But if an application is made for transfer by a party, the Court is required to
issue notice to the other side and hear the party before directing transfer. In such a case notice is must and
an order for transfer made without notice liable to be set aside.

Kulwinder Kaur v Kandi Friends Education Trust, (2008) : Where Court feels that the plaintiff or the defendant
is not likely to have a "fair trial" in the Court from which he seeks to transfer a case, it is not only the power,
but the duty of the Court to transfer the case.

Comparison between S. 24 & S. 22 of CPC :

S. 24 is much wider than Sec. 22 because S. 24 can be While S. 22 enables only defendant to make an
invoked by any party to a suit, appeal or other application.
proceeding or even by Court of its own motion.

Further, Section 24 applies to suits, appeals and While S. 22 is limited to only such suits which are
other proceedings, including execution proceedings. mentioned in S. 16 & 20 of the Code, where the
plaintiff has the option to sue in more Courts than
one.

Section 25 of CPC : Power of Supreme Court to transfer suits, etc.

(1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be
heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the
ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil
Court in one State to a High Court or other Civil Court in any other State.

(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special
directions in the order of transfer, either re-try it or proceed from the stage at which it was transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the
application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who
has opposed the application such sum, not exceeding 2,000 rupees, as it considers appropriate in the
circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law
which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied
to such suit, appeal or proceeding.]

Note : No appeal shall lie against the orders of transfer. However, it is open to the party to prefer revision
provided the conditions for revision are satisfied.

Naivedya Associates vs. Kriti Nutrients Ltd, 2021 : The Supreme Court observed that there is not much scope
of going into the question of 'territorial jurisdiction' of a court in a Transfer Petition u/s 25 of CPC

33
Summons & Discovery | S. 27-32 SERVICE OF SUMMONS IN CIVIL CASES
What is Summons? : A summons is a legal document that is issued by a Court on a person involved in a legal
proceeding.

If the summons is not duly served then no action can be taken against the defendant.

If defendant fails to attend court after receiving summons, he will be ex-parte by the Court.

Provisions relating to Summons in CPC : Section 27 to 32; & Order V, XVI & XVIA of the CPC, 1908 deal with
‘Service of Summons’.

These provisions can be divided into two parts:

1. ‘Summons’ to defendants/Respondents. [S.27 to S.29, Order V of CPC]

2. ‘Summons’ to witnesses [S.31 to 32, Orders XVI & XVIA of CPC]

Note : Sections 61 to 69 of Cr.P.C deals with service of summons on accused and witness.

Section 27 of CPC : 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

on such day not beyond thirty days from date of the institution of the suit.

Section 28 of CPC : 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.

(2) The Court to which such summons is sent 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.

(3) Where the language of the summons sent for service in another State is different from the language of the
record referred to in sub-section (2), a translation of the record,—

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English,

shall also be sent together with the record sent under that sub-section.

Section 29 of CPC : Service of foreign summonses.—Summonses 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
extend, or

34
(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.]

Section 30 of CPC : Power to order discovery and the like.—Subject to such conditions and limitations as may
be prescribed, the Court may, at any time, either of its own motion or on the application of any party,—

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering
of interrogatories, the admission of documents and facts, and the discovery, inspection, production,
impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce
documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

Section 31 of CPC : 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 of CPC : 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 not exceeding 5,000/- rupees;

(d) order him to furnish security for his appearance and in default commit him to the civil prison.

35
Order V of CPC contains Rules 1 to 30. These provisions deal with issue and service of summons.
O. V; R. 1-8 lays down general provisions relating to issuance of summons.

Rule 1 : Summons.—

(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer
the claim and to file the written statement of his defence, if any, within thirty days from the date of service of
summons on that defendant:

Provided that no such summons shall be issued when a defendant has appeared at the presentation of plaint
and admitted the plaintiff’s claim:

Provided further 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 to
be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

*[Provided further that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the written statement on such other day, as may be specified by the
Court, for reasons to be recorded in writing and on payment of such costs as the Court deems fit, but which
shall not be later than one hundred twenty days from the date of service of summons and on expiry of one
hundred twenty days from the date of service of summons, the defendant shall forfeit the right to file the
written statement and the Court shall not allow the written statement to be taken on record.]

(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.

Rule 2 : Copy of plaint annexed to summons.—Every summon shall be accompanied by a copy of the plaint.]

Thus, from Rule 1 and Rule 2, two essential elements of summons emerge.

1. Every summons shall be signed by the Judge or such officer as he appoints, and shall be sealed with the
seal of the Court.

2. Every summon shall be accompanied by a copy of the plaint.

Rule 3 : 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.
36
Rule 4 Section 132-133 of CPC : Exemption From appearance in person.—

1. 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) outside such limits but at place less than

i. 50 miles or

ii. 200 miles (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)

distance from the court-house.

(c) No party shall be ordered to appear in person

i. Who is a Woman (according to the customs and manners of the country,) ought not to be compelled to
appear in public (see S. 132 of CPC)

ii. Who is entitled to exemption under section 133 of CPC

Section 133 : The following persons shall be entitled to exemption from

personal appearance in Court, namely:—

(i) the President of India; (ii) the Vice-President of India;

(iii) the Speaker of the House of the People; (iv) the Ministers of the Union;

(v) the Judges of the Supreme Court; (vi) the Governors of States and the administrators of Union territories;

(vii) the Speakers of the State Legislative Assemblies;

(viii) the Chairman of the State Legislative Councils;

(ix) the Ministers of States; (x) the Judges of the High Courts; and

(xi) the persons to whom section 87B applies.

Sub-Section 3 of Section 133 of CPC : Where any person claims the privilege of such exemption, and it is
consequently necessary to examine him by commission, he shall pay the costs of that commission, unless the
party requiring his evidence pays such costs.

Particulars (Contents) of summons [R.5 to R.8 of Order V of CPC]

Rule 5 : 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.

Rule 6 : Fixing day for appearance of defendant.—The day under sub-rule (1) of rule 1 shall be fixed with
reference to the current business of the Court, the place of residence of the defendant and the time necessary
37
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.

Rule 7 : Summons to order defendant to produce documents relied on by him.—The summons to appear and
answer shall order the defendant to produce all documents or copies thereof specified in rule lA of Order VIII
in his possession or power upon which he intends to rely in support of his case.

Rule 8 : 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 rely in support of his case.

Particulars (Contents) of summons [R.5 to R.8 of Order V of CPC]

As per these rules the summons shall contain following things

1. Direction whether the date fixed in the summons is for settlement of issues only or for final disposal
thereof.

2. Sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff.

3. Order directing defendant to produce all documents in support of his case.

4. Signature of the judge or of such officer as he appoints in that behalf and Seal of the court.

Procedure for service of summons / Modes of Service of Summons

(Rules 9 - 30)

1) Personal or direct service : (Rules 10 to 16 & 18)

2) Service by Court (Rule 9)

3) Service by plaintiff (Rule 9A)

4) Substituted service (Rules 17, 19 & 20)

1) Personal or direct service : (Rules 10 to 16 & 18) deal with personal or direct service of summons upon the
Defendant.

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 10 of the CPC provides that summon must be served by delivering a copy of the original summoning
document prepared by the judge to the defendant sealed with the court’s seal and signature. There are many
ways of service of summons under the CPC that have been recognized by the courts.

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 in 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.
38
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 charterer.

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 any 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 acknowledgment.—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 acknowledgment of service
endorsed on the original summons.

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.

2) Service by Court : (Rule. 9)

Rule 9(1) : Where the defendant resides within the territorial jurisdiction of the court issuing the summons or
he has empowered agent within the jurisdiction of such Court. Then the summons shall be served through the
proper officer of the court or courier services approved by the court.

Rule 9(2) of CPC empowers the court to deliver summons in such manner as the court deems fit.

Rule 9(3) : Summons can also be served by registered post, Speed Post, courier service, fax, e-mail or by any
other permissible means of transmission.

Provided that the service of summons under this sub rule shall be made at the expense of the plaintiff.

Serving of Summons via Whatsapp

The court expanded the scope of electronic media by using Whatsapp to serve summons.

Hisar property dispute case : The first such instance happened in the State of Haryana where financial
commission headed by IAS officer Ashok Khemka in the matter of property dispute allowed the serving of
39
summons through Whatsapp to one of the respondents who had shifted to Kathmandu.

Ruma Pal v. Kumar : In this case, the defendant husband had fled to Australia to avoid any suit filed by his
wife for domestic violence and it was very difficult to serve summons while he was in Australia. Justice
Surabhi Sharma of the Delhi High Court allowed the plaintiff to serve the summons through WhatsApp and
also held that double tick on WhatsApp shall be the conclusive proof of the receipt of the summons.

Rule 9(4) : Where the defendant is residing outside the jurisdiction of the court the summons shall be served
through an officer of the court within whose jurisdiction the defendant resides.

Rule 9(5) : The Court Shall treat refusal of acceptance as a valid service.

Rule 9(6) : The High Court or the District Judge, as the case may be, shall prepare a panel of courier agencies
for the purposes of sub-rule (1).

3) Service by Plaintiff : (Rule. 9A)

The court may also permits service of summons by the plaintiff in addition to the service of summons by the
court.

4) Substituted Service : (Rules 17, 19 & 20)

What is Substituted Service?

Substituted service means the service of summons by a mode which is substituted for the ordinary mode of
service of summons.

Rule 17 : Service of summons by affixing

 Service of summons by affixing is made when:

1. where defendant or his agent or such other person refuses to sign acknowledge; or

2. where the serving officer after due diligence cannot find defendant and there is no agent to accept
summons; nor any other person on whom service can be made,

 then serving office shall affix a copy of the summons on the:

a.outer door, or.

b.some other conspicuous (noticeable) part of the house in which defendant ordinarily resides or carries on
business or personally works for gain,

 and shall then retum 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 so, 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 19 : Examination of serving officer.—Where a summons is returned under rule 17, the Court shall, if the
return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so
verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his
40
proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that
the summons has been duly served or order such service as it thinks fit.

Rule 20 : Substituted service

 Where Court is satisfied that there is reason to believe that,

i the defendant is keeping out of the way for the purpose of avoiding service, or

ii. 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:

a. in some conspicuous place in the Court house, and

b. also upon any conspicuous part of the house in which the defendant is known to have last resided or
carried on business or personally worked for gain or

c. 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.

41
Sections 26 to 35-B & Orders 1 to 20 of the (1st) Schedule deal with the procedure relating to suits.
What is suit in CPC? Ordinarily, a suit is a civil proceeding instituted by the presentation of a plaint. [Hansraj
Gupta v. Official Liquidators of The Dehra Dun-Mussoorie Electric Tramway Co. Ltd, (1932-33)]

ESSENTIAL ELEMENTS OF SUIT: [i. Opposing parties], [ii. Subject-matter in dispute], [iii. Cause of action], &
[vi. Relief].

ORDER (I) PARTIES TO SUIT

Who is plaintiff and who is defendant? The Plaintiff and the Defendant are the parties involved in a lawsuit.

Plaintiff : A plaintiff is the party who initiates a lawsuit before a court. By doing so, the plaintiff seeks a legal
remedy

Defendant : A person being sued. In other words, The person against whom a civil suit has been initiated.

Rule 1 : Joinder of plaintiffs : all persons may be joined in one suit as plaintiffs if the following two conditions
are satisfied:

(a) the right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and

(b) if such persons brought separate suits, any common questions of law or fact would arise.

Universities of Oxford and Cambridge v. G. Gill & sons 1899 : 'A' publishes a series of books under the title.
The Oxford and Cambridge publications so as to induce that belief that the books are publications of the
Oxford and the Cambridge Universities or either of them. Both Universities join as plaintiffs in one suit of
restrain 'A' from using the title.

Rule 2 : Power of Court to order separate trial.— Where it appears to the Court that

 any joinder of plaintiffs may

i. embarrass or ii. delay the trial of the suit,

 the Court may

i. put the plaintiffs to the election or

ii. order separate trials or

iii. make such other order as may be expedient.

Rule 3 : Who may be joined as defendants.— All persons may be joined in one suit as defendants if the
following two conditions are satisfied:—

(a) any right to relief alleged to exist against such persons, arises out of the same act or transaction; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.]

Note : The word "and" between clauses (a) & b) of Rule 1 & 3, makes it clear that both the above conditions
should be fulfilled.

Objective of Rule 1 & 3, : To avoid multiplicity of proceedings & unnecessary expenses.

Rule 3-A : Power to order separate trials where joinder of defendants may embarrass or delay trial.— Where it
appears to the Court that
42
  any joinder of defendants may

i. embarrass or ii. delay the trial of the suit,

 the Court may

i. order separate trials or

iii. make such other order as may be expedient in the interests of justice..

Rule 4 : Court may give judgment for or against one or more of joint parties.—Judgment may be given without
any amendment —

(a) for such one or more of the plaintiffs as may be found to be entitled to relief, for such relief as he or they
may be entitled to;

(b) against such one or more of the defendants as may be found to be liable, according to their respective
liabilities.

Rule 5 : Defendant need not be interested in all the relief claimed.— It shall not be necessary that every
defendant shall be interested as to all the relief claimed in any suit against him.

Rule 6 : Joinder of parties liable on same contract.— The plaintiff may, at his option, join as parties to the
same suit all or any of the persons severally, or jointly and severally, liable on any one contract, including
parties to bills of exchange, hundis and promissory notes.

Rule 7 : When plaintiff in doubt from whom redress is to be sought.—Where the plaintiff is in doubt as to the
persons from whom he is entitled to obtain redress, he may join two or more defendants in order that the
question as to which of the defendants is liable, and to what extent, may be determined as between all
parties.

43
Representative Suit : The general Rule is that all persons interested in the suit should be joined as
party to it so that matter involved in it may finally and completely be adjudicated upon and fresh litigation
over the same matter may be avoided.

Rule 8 of Order 1 of C.P.C. is an exception to above said general rule. It provides that
(1) Where there are numerous persons having the same interest in one suit,—

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such
suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff's
expense, give notice of the institution of the suit to all persons so interested, either by personal service, or,
where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by
public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under sub-rule (1), may
apply to the Court to be made a party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be
withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense,
notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such 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.

(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose
benefit, the suit is instituted, or defended, as the case may be.

Explanation.—For the purpose of determining whether the persons who sue or are sued, or defend, have the
same interest in one suit, it is not necessary to establish that such persons have the same cause of action as
the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may
be.

MEANING OF REPRESENTATIVE SUIT : A representative suit is a suit filed or against one or more persons on
behalf of themselves and others having the same interest in the suit.

OBJECTIVES - to save time and expense, to ensure a single comprehensive trial of questions in which
numerous persons are interested and avoid harassment to parties by a multiplicity of suits .

CONDITIONS - Following Rules must exist for application of Rule 8 Order 1 of C.P.C.

(a) The Parties must be numerous.

(b) They must have same or common interest in suit.

(c) Permission must have been granted or direction must have been given by the court.

(d) Notice must have been issued to parties whom it proposed to represent in the suit.

Conditions in Rule 8 are mandatory and must be complied with. A suit filed without complying conditions
cannot be said to be a representative suit.
44
T. N Housing Board vs Ganapathy,1990: In this case residential building we are allotted by the housing board
to the applicants who belongs to the low income group. After settlement of price excess demand was made
by the board. The allottees challenged the demand by filing suit in a representative capacity. It was
contended that such a suit in a representative capacity was not maintainable as separate demand notice
were issued against each of the allottees, given rise to separate causes of action. Negativing the Contention
the Supreme court held that all of them had the same interest and therefore the suit was maintainable.

Does the principle of Res judicata apply to Representative Suit?

Explanation VI to Section 11 deals with representative suits. It states that where a representative
suit has been decided, such a decision would operate as res judicata.

45
ORDER 1 RULE 9 OF CPC | MIS JOINDER & NON JOINDER | NECESSARY AND PROPER PARTY
Necessary Party : A necessary party is a person who ought to have been joined as a party and in whose
absence no effective decree could be passed at all by the court.. If a necessary party is not impleaded, the suit
is itself is liable to be dismissed.

Ex : In a suit for partition, all sharers are necessary parties. Similarly, a purchaser of property in a public-
auction is a necessary party to the suit for a declaration to set aside the said public-auction.

Proper Party : A proper party is a party who, though not a necessary party, is a person whose presence would
enable the court to completely, effectively & adequately adjudicate upon all matters in dispute in the suit,
though he need not be a person in favour of or against whom the decree is to be made..

Ex : Grandsons are proper parties to a suit for partition by sons against their father. A subtenant is only a
proper party in a suit for possession by the landlord against his tenant.

Mis-joinder of parties : If two or more persons are joined as plaintiffs or defendants in one suit in
contravention of order 1, rule 1 & rule 3 respectively & they are neither necessary nor proper parties, it is a
case of mis joinder of parties.

Non-joinder of parties : Where a person, who is necessary or proper party to a suit has not been joined as a
party to the suit, it is a case of nonjoinder of parties..

Rule 9 : Misjoinder and non-joinder.—No suit shall be defeated by reason of the misjoinder or non-joinder of
parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it:

[Provided that nothing in this rule shall apply to non-joinder of a necessary party.]

Note : So in the case of non-joinder of necessary party, the suit or appeal may be dismissed.

Rule 13 : Objections as to non-joinder or misjoinder.—

All objections on the ground of non-joinder or misjoinder of parties shall be taken

 at the earliest possible opportunity and,

in all cases where issues are settled,

 at or before such settlement,

unless the ground of objection has subsequently arisen, and

any such objection not so taken shall be deemed to have been waived.

Note : Where such objection is taken, and the court finds that it is well-founded, the court should not
dismissed the suit(0.1 R.9) But the plaint may be amended (0.6 R.17), by striking out the names of such
person as have been improperly join as plaintiffs or defendants (0.1 R.10). And the suit may then be
proceeded with according as prescribed in O.1 R.9 of cpc..

46
Striking out, adding or substituting parties: [Rule 10 Order 1]
Rule 10 : Suit in name of wrong plaintiff.—

(1) Adding or substituting plairntiffs : Where a suit has been instituted in the name of the wrong person as
plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court
may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and
that it is necessary for the determination of the real matter in dispute so to do, order any other person to be
substituted or added as plaintiff upon such terms as the Court thinks just.

(Note : 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

(ii) The substitution or addition of the plaintiff is necessary for the determination ofthe real matter in
dispute.)

(Note : Such amendment may be allowed by the court at any stage of the suit or even at the appellate stage &
uporn such terms and conditions as it thinks just. No person can be added as a plaintiff without his consent.)

(2) Court may strike out or add parties.—The Court may at any stage of the proceedings, either upon or
without the application of either party, and on such terms as may appear to the Court to be just, order that
the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name
of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before
the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and
settle all the questions involved in the suit, be added.

(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under
any disability without his consent.

(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint shall, unless the
Court otherwise directs, be amended in such manner as may be necessary, and amended copies of the
summons and of the plaint shall be served on the new defendant and, if the Court thinks fit, on the original
defendant

(5) Subject to the provisions of the 1[Indian Limitation Act, 1877 (XV of 1877)], section 22, the proceedings as
against any person added as defendant shall be deemed to have begun only on the service of the summons.

Note: The provisions of Rule 10(2) of Order 1 confers wide discretion on the court regarding joining of parties.

Rule 10-A : Power of Court to request any pleader to address it.—

The Court may, in its discretion, request any pleader to address it as to any interest which is likely to be
affected by its decision on any matter in issue in any suit or proceeding, if the party having the interest which
is likely to be so affected is not represented by any pleader.]

Rule 11 : Conduct of suit.—The Court may give the conduct of 3[a suit] to such persons as it deems proper.

Rule 12 : Appearance of one of several plaintiffs or defendants for others.—

(1) The plaintiffs or the defendants may authorise one or more of them to appear, plead or act for them.

(2) The authority shall be in writing signed by the party giving it and shall be filed in Court.

47
ORDER (II) Frame of Suit
Rule 1 : Frame of suit : Every suit shall as far as practicable be framed so as

i. to afford ground for final decision upon the subject in dispute and

ii. to prevent further litigation concerning them.

Note : The object of this rule is to give effect to the maxim interest republicae ut sit finis litium, that is, it is in
the interest of the State that there should be an end to a litigation.

Note : The penalty for non-compliance with the rule is provided partly by section 11 Explanation IV
(Constructive Res judicata) & partly by O II, rule 2.

Rule 2 : Suit to include the whole claim :-

(1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the
cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the
jurisdiction of any Court.

Relinquishment of part of claim (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes,
any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.

Omission to sue for one of several reliefs (3) A person entitled to more than one relief in respect of the same
cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue
for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation.— For the purposes of this rule an obligation and a collateral security for its performance and
successive claims arising under the same obligation shall be deemed respectively to constitute but one cause
of action.

Note : The provision of Order 2 Rule 2 is based on the well-known maxim "nemo debet bis vexari pro eadem
causa" (no person should be vexed twice for the same cause.

Illustration : A lets a house to B at a yearly rent ofRs 1200. The rent for the whole ofthe years 1905, 1906 and
1907 is due and unpaid. A sues B in 1908 only for the rent due for the year 1906. A shall not afterwards sue B
for the rent due for 1905 or 1907.

Application of Rule 2 : The provisions of Order 2 Rule 2 apply only to suits and not to appeals, execution
proceedings, arbitration proceedings or to a petition under Article 226 ofthe Constitution of India.

Rule 3 : Joinder of causes of action (Note : read along with O I, rule 1 & 3)

(1) Save as otherwise provided, a plaintiff may unite in the same suit several causes 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.

Multifariousness in a suit : Mis joinder of parties and cause of action in a suit is called multifariousness in a
suit or double Mis joinder.

48
Rule 6 : Power of Court to order separate trials : (Note : read along with O I, rule 2 & 3A)

Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay the trial
or is otherwise inconvenient, the Court may order separate trials or make such other order as may be
expedient in the interest of justice.

Rule 7 : Objections as to mis-joinder : (Note : read along with O I, rule 9 & 13)

All objections on the ground of mis-joinder of causes of action shall be taken at the earliest possible
opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of
objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Note : As provided in section 99 and O II, rule 7, the mis-joinder is treated only as an irregularity and no suit
can be dismissed on the mere ground of mis-joinder of causes of action.

Rule 4 : Only certain claims to be joined for recovery of immovable property

No cause of action shall, unless with the leave of the Court, be joined with a suit for the recovery of
immovable property, 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 causes of action:

Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption
from asking to be put into possession of the mortgaged property.

Rule 5 : This rule prohibits the joining in one suit of a claim by or against an executor, administrator or heir as
such i.e., in his representative capacity, except when-

1. the claims by or against him in his personal capacity are alleged to arise with reference to the estate he
represents, or

2. the claims are such that he was entitled to or liable for them jointly with the deceased whom he represents.

49
ORDER III Recognised agents and Pleaders
Rule 1 : Any appearance, application or act in or to any Court, required or authorised by law to be made or
done by a party in such Court, may except where otherwise expressly provided by any law for the time being
in force, be made or done

(i) by the party in person or (ii) by his recognised agent, or

(iii) by a pleader, appearing, applying, or acting on his behalf.

Proviso : The Court may direct that any such appearance shall be only by the party in person.

Rule 2 : Recognised agent- Recognised agents are:

((1) persons holding powers of attorney,

(2) persons carrying on trade or business for and in the names of parties not resident within the local limits of
the jurisdiction of the court in matters connected with such trade or business only, where there is no other
agent authorised to make and do such appearances, applications and acts) [Order III, Rule 2], and

(3) persons specially appointed by Government to prosecute or defend on behalf of foreign rulers. (S. 85).

Definitions from Oxford Dictionary : powers of attorney mean the authority to act for another person in
specified or all legal or financial matters.

Ques. Who is pleader? How is a Pleader appointed? (RJS 2018, 3marks)

Ans. Section 2(15) defines pleader as : Any person entitled to appear and plead for another in court and
includes an advocate, a Vakil and an attorney of a High Court.

Order III, Rule 4 of CPC deals with the appointment of pleader

Rule 4 : Appointment of pleader

(1) No pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person
by a document in writing signed by such person or by his recognised agent or by some other person duly
authorised by or under a power-of-attorney to make such appointment.

(2) Every such appointment shall be [filed in Court and shall for the purpose of sub-rule (1) be] deemed to be in
force until determined with the leave of the Court by a writing signed by the client or the pleader, as the case
may be, and filed in Court, or until the client or the pleader dies, or until all proceedings in the suit are ended so
far as regards the client.

[ Explanation.— For the purposes of this sub-rule, the following shall be deemed to be proceedings in the suit,—

(a) an application for the review of decree or order in the suit,

(b) an application under Section 144 or under Section 152 of this Code, in relation to any decree or order made in
the suit,

(c) an appeal from any decree or order in the suit, and

(d) any application or act for the purpose of obtaining copies of documents or return of documents produced or
filed in the suit or of obtaining refund of moneys paid into the Court in connection with the suit.]

[(3) Nothing in sub-rule (2) shall be construed—

50
(a) as extending, as between the pleader and his client, the duration for which the pleader is engaged, or

(b) as authorising service on the pleader of any notice or document issued by any Court other than the Court for
which the pleader was engaged, except where such service was expressly agreed to by the client in the document
referred to in sub-rule (1).]

(4) The High Court may, by general order direct that, where the person by whom a pleader is appointed is unable
to write his name, his mark upon the document appointing the pleader shall be attested by such person and in
such manner as may be specified by the order.

(5) No pleader who has been engaged for the purpose of pleading only shall plead on behalf of any party, unless
he has filed in Court a memorandum of appearance signed by himself and stating—

(a) the names of the parties to the suit,

(b) the name of the party for whom he appears, and

(c) the name of the person by whom he is authorised to appear:

Provided that nothing in this sub-rule shall apply to any pleader engaged to plead on behalf of any party by any
other pleader who has been duly appointed to act in Court on behalf of such party.]

Note : Appointment of a pleader is made when the client executes a vakalatnama in favour of the pleader.
And whatever matter the client wants to entrust to the pleader should be specified in vakalatnama. A
Vakalatnama is the document empowering a lawyer to act for and on behalf of his client.

Rule 3 : Service of process on recognised agent

(1) Processes served on the recognised agent of a party shall be as effectual as if the same had been served on
the party in person, unless the Court otherwise directs.

(2) The provisions for the service of process on a party to a suit shall apply to the service of process on his
recognised agent.

Rule 5 : Service of process on pleader : [Any process served on the pleader who has been duly appointed to act
in Court for any party] or left at the office or ordinary residence of such pleader, and whether the same is for
the personal appearance of the party or not, shall be presumed to be duly communicated and made known to
the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all
purposes as if the same had been given to or served on the party in person.

Under rule 5, there is a presumption that a notice which has been served on the pleader is communicated to
the client. But if the engagement of the pleader is legally determined then the pleader can avoid his duty of
communication notices.

Rule 6 : Agent to accept service : (1) Besides the recognised agents described in rule 2 any person residing
within the jurisdiction of the Court may be appointed an agent to accept service of process.

Appointment to be in writing and to be filed in Court (2) Such appointment may be special or general and
shall be made by an instrument in writing signed by the principal, and such instrument or, if the appointment
is general, a certified copy thereof shall be filed in Court.

[(3) The Court may, at any stage of the suit, order any party to the suit not having a recognised agent residing
within the jurisdiction of the Court, or a pleader who has been duly appointed to act in the Court on his behalf,
to appoint, within a specified time, an agent residing within the jurisdiction of the Court to accept service of
the process on his behalf.]

51
Section 26 and Order IV Institution of Suits
Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed. Sub-section (2) provides that in every plaint, facts shall be proved by affidavit.

Order 4, Rule 1 : Suits to be commenced by plaint

(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such officer as it appoints
in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are applicable.

(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements specified in
sub-rules (1) and (2).

Order 4, Rule 2 : Register of suits : The Court shall cause the particulars of every suit to be entered in a book to
be kept for the purpose and called the register of civil suits. Such entries shall be numbered in every year
according to the order in which the plaints are admitted.

What is Plaint? A plaint is the first step towards the initiation of a suit. It is a legal document which contains
the statement of the plaintiff's claim in writing and it shall contains all the particulars as are mention in order
7 Rule 1 of CPC.

Hansraj Gupta v. official liquidator and Doon Mussoorie tramway : Statement of claim that is the document
by presentation of which a civil is instituted.

52
ORDER VI Pleading generally (RULE 1 to 18]
Pleadings: Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party
stands. The case of a party must be set out in the pleadings. Moreover, the relief cannot be claimed on the
grounds which are not contained in the pleadings. The immaterial or vague or ambiguous matter should be
avoided and pleadings should be properly framed.

Pleadings are those materials or essential facts which are necessary to be averred in order to put forward a
cause or to establish a defence in a judicial proceeding. It includes allegations and counter allegations made
by one party and denied by the other.

Etymologically, it means a formal statement to propound the cause of action or set up a defence against the
case of the plaintiff.

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.”

Rule 1 of Order VI : Pleading is defined as plaint or written statement.

It is important to know here the meaning of plaint and written statement.

What is Plaint? A plaint is the first step towards the initiation of a suit. It is a legal document which contains
the statement of the plaintiff's claim in writing and it shall contains all the particulars as are mention in order
7 Rule 1 of CPC. Note : It is a pleading of the plaintiff.

Hansraj Gupta v. official liquidator and Doon Mussoorie tramway : Statement of claim that is the document
by presentation of which a civil is instituted is instituted.

What is Written Statement? : In legal dictionary, the word written statement means a pleading for defence. In
other words, a written statement is the pleading of the defendant wherein he deals with every material fact
alleged by the plaintiff along with any new facts in his favour or that takes legal objections against the claim
of the plaintiff. Note : It is a pleading of the Defendant.

Objective of Pleading : The object of pleadings are –

(i) to bring the parties to definite issues;

(ii) to prevent surprise and miscarriage of justice;

(iii) to avoid unnecessary expense and trouble;

(iv) to save public time;

(v) to eradicate irrelevancy; and

(vi) to assist the Court.

Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general. Rule 1 defines pleading, while
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
53
Court to strike out unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of
pleadings.

Rule 2 : Fundamental Rules of Pleading:The general rule regarding the pleadings is as under:

1) Pleading must state facts and not law;

2) Only the material facts must be stated;

3) Pleading should not include the evidence, and

4) The facts stated must be in concise form.

5) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each
allegation being, so far as is convenient contained in a separate paragraph.

6) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Now these rules are discussed in details one by one:-

(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It says that
pleadings should state only facts and not law.

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. The material facts on which the
plaintiff relies for his claim or the defendant relies for his defence are called facta probanda, and they must
be stated in the plaint or in the written statement, as the case may be.

The term material facts has not been defined in the code, But the Court has defined this term in many judicial
pronouncements. Like in the case of Union of India's v. Sita Ram, the court said that “material facts” means all
facts upon which the plaintiff’s cause of action or the defendant’s defence depends, or in other words, all
those facts which must be proved in order to establish the plaintiff’s right to relief claimed in the plaint or the
defendant’s defence in the written statement.

Again in the case of Udhav Singh v. Madhav Rao Scindia,(AIR 1977) the Supreme Court said that the term
material fact means “All the primary facts which must be proved at the trial by a party to establish the
existence of a cause of action or his defence are material facts.”

Again in Virender Nath v. Satpal Singh,(1943) the Supreme Court held that:- “The phrase ‘material facts’ may
be said to be those facts upon which a party relies for his claim or defence. In other words, ‘material facts’ are
facts upon which the plaintiff’s cause of action or the defendant’s defence depends

In Devki Nandan v. Murlidhar, it was held that a finding cannot be sustained which is based on no pleading and
no evidence.

In the case of Kedar Lal v. Hari Lal,(AIR 1952 SC 47 at p. 51: 1952 SCR 179.) it was held that it is the duty of the

54
parties to state only the facts on which they rely upon their claims. It is for the Court to apply the law to the
facts pleaded.

In the case of Gouri Dutt Ganesh Lall Firm v. Madho Prasad,(AIR 1943 PC 147: 209 IC 192.) it was held that the
law of pleading may be tersely summarized in four words; “Plead facts not law.”

In Ram Prasad v. State of M.P.,((1969) 3 SCC 24: AIR 1970 SC 1818.) it was held that a mixed question of law and
fact, however, should be specifically pleaded.

Again in Union of India v. Sita Ram Jaiswal,((1976) 4 SCC 505: AIR 1977 SC 329.) the Court held that a point of
law which is required to be substantiated by facts should be pleaded with necessary facts.

Particular or Other Rules of Pleadings:

Rule 3 : Forms of pleading : The forms in Appendix A when applicable, and where they are not applicable
forms of the like character, as nearly as may be, shall be used for all pleadings.

Rule 4 : This rule lays down that in all cases in which the party pleading relies on any misrepresentation,
fraud, breach of trust, willful default or undue influence, such circumstances are pleaded in the pleadings,
particulars with dates and items should be stated.

Rule 6 : Condition precedent: The performance of a condition precedent need not be pleaded since it is
implied in the pleadings. Non-performance of a condition precedent, however, must be specifically and
expressly pleaded.

Rule 7 : 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.

Note : The provisions of this rule apply also to minors.

Rule 8 : Denial of contract : A bare denial of a contract by the opposite party will be construed only as a denial
of factum of a contract and not the legality, validity or enforceability of such contract.

Nirod Baran Banerjee v Dy Commr, Hazaribagh, AIR 1980 : In view of the provisions of O VI, rule 8 and O VIII,
rule 2 the appellant would be debarred from raising the point for the first time before the Supreme Court or
even before the High Court. The appellant cannot be allowed to raise the plea for the first time in the
Supreme Court. The High Court ought not to have entertained it at the stage of the application for a
certificate of fitness to be granted for leave of appeal to the Supreme Court.

Rule 9 : Effect of document to be stated : Documents need not be set out at length in the pleadings unless the
words therein are material.

Rule 10 : Malice, Knowledge, etc. : Wherever malice, fraudulent intention, knowledge or other condition of
the mind of a person is material, it may be alleged in the pleading only as a fact without setting out the
circumstances from which it is to be inferred. Such circumstances really constitute evidence in proof of
material facts.

Rule 11 : Notice : Whenever giving of notice to any person is necessary or a condition precedent, pleadings
should only state regarding giving of such notice, without setting out the form or precise term of such notice
or the circumstances from which it is to be inferred, unless they are material.

Note : An order rejecting a plaint under this rule for non-payment of additional Court-fee demanded is
appealable as a decree.

55
Rule 12 : Implied contract, or relation : Implied contracts or relations between persons may be alleged as a
fact, and the series of letters, conversations and the circumstances from which they are to be inferred should
be pleaded generally.

Rule 13 : Presumptions of law : Facts which the law presumes in favour of a party or as to which the burden of
proof lies upon the other side need not be pleaded.

Rule 14 : Pleading to be signed : Every pleading should be signed by the party or one of the parties or by his
pleader.

Rule 14-A : Address for service of notice : A party to the suit should supply his address. He should also supply
address of the opposite party.

Rule 15 : Verification of pleadings : Every pleading should be verified on affidavit by the party or by one of the
parties or by a person acquainted with the facts of the case.

Rule 16 : 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 trial of the suit, or

(c) which is otherwise an abuse of the process of the Court.

Note : Allegations made in a pleading for the mere purpose of abusing or prejudicing the opposite party and
any indecent or offensive matters are scandalous.

Rule 17 : Amendment of pleadings (Note : O.6, R.17 is known as voluntary amendment)

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall be made as may be necessary for
the purpose of determining the real questions in controversy between the parties :

Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the
commencement of trial.

Note : The Provision related to Amendment of Pleadings gives power to the civil court to allow parties to alter,
amend or modify the pleadings at any stage of proceedings. But the court will allow amendment only in two
situations namely,

(i) where the amendment is necessary for the determination of the real question in controversy; and

(ii) can the amendment be allowed without injustice to the other side.

In the case of the Rajesh Kumar Aggarwal & Ors v. K.K. Modi & Ors AIR 2002, the court stated that Amendment
of pleadings consists of two parts :

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

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

Why court allows amendment of Pleadings? The primary objective for the court to allow application for
56
Amendment of Pleadings is secure the ends of the justice and prevent injustice to other parties. Also, this
amendment is necessary for the purpose of determining the real questions in controversy between the
parties. Amendments of pleadings help the parties to correct its mistakes in the pleadings. In the case of
Cropper v. Smith, the court stated that the object behind amendment of pleadings is to protect the rights of
the parties and not to punish them for the mistake made by them in the pleadings.

What can be amended in pleading?

1. Plaint filed by the Plaintiff

2. Written Statements filed by the Defendant

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

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

2. This Amendment of pleadings is necessary for determining the real question of controversy b/w parties.

Leave to amend may be granted at any stage of the proceedings. Such amendment applications are not
governed by any law of Limitation. [Ganga Bai v. Vijay Kumar, (1974)].

Leave to amend may be granted before, or at, or after the trial, or in First Appeal (see Section 107), or in
Second Appeal (see Section 108), or in Revision, or in the Supreme Court or even in execution proceedings,
provided the decree is legal, lawful and enforceable, not otherwise.

Note : Revision petition against an order allowing petition under O.6, R.17 of CPC is not maintainable in law in
absence of cogent reasons or compelling circumstances..

Note : An order allowing or disallowing an application for amendment is neither a "decree" as defined in
Section 2(2) nor an order appealable under Section 104 read with Order 43 of the Code. No appeal, therefore,
lies against such an order.

Note : Though, it is open to an aggrieved party to challenge an order passed by the trial court allowing or
rejecting an application for amendment of pleading by fling a writ petition under Article 226 or 227 of the
Constitution of India, normally, a High Court will not exercise extraordinary or supervisory jurisdiction to
interfere with the order of the trial court unless it has caused serious prejudice to the applicant or has
resulted in miscarriage of justice. Ordinarily, the Supreme Court will also not exercise its power under Article
136 of the Constitution by interfering with the order passed by the High Court on an application for
amendment.

Note : Strict rule of res judicata does not apply to amendment ofpleadings.

Rule 18 : 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.]

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ORDER VII Plaint
What is Plaint? A plaint is the first step towards the initiation of a suit. It is a legal document which contains
the statement of the plaintiff's claim in writing and it shall contains all the particulars as are mention in order
7 Rule 1 of CPC. Note : It is a pleading of the plaintiff.

Hansraj Gupta v. official liquidator and Doon Mussoorie tramway : Statement of claim that is the document
by presentation of which a civil is instituted.

In other words plaint is a statement of claim i.e., the document by presentation of which the suit is instituted.

Rule 1 : Particulars to be contained in plaint The plaint shall contain the following particulars:—

(a) the name of the Court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so allowed or
relinquished; and

(i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of Court-fees,
so far as the case admits.

Mehboob Ullah v. Jwala Prasad 1974 : Title shouldn't be understood as part of plaint because that is not
included by verification appended below the plaint.

ADDITIONAL PARTICULARS:

Rule 2 : In money suits : In suit for the recovery of money, the plaint should state the amount claimed
precisely:

But where the plaintiff sues for

i. mesne profits, or

ii. an amount which will be found due to him on taking unsettled accounts between him and the defendant,
or

iii. movables in the possession of the defendant, or

iv. debts of which the value he cannot, after the exercise of reasonable diligence, estimate,

the plaint shall state approximately the amount or value sued for

Rule 3 : Where the subject-immovable property : Where the subject-matter of the suit is immovable property,
the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be

58
identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such
boundaries or numbers

Rule 4 : When plaintiff sues as representative : If the plaintiff files a suit in representative capacity, the plaint
must show the following:

(i) that the plaintiff has an actual existing interest in the subject-matter; and

(ii) that he has taken the steps that may be necessary to enable him to file a representative suit.

Rule 5 : Defendant's interest and liability to be shown : The plaint shall show that the defendant is or claims
to be interested in the subjectmatter, and that he is liable to be called upon to answer the plaintiff's demand.

Rule 6 : Grounds of exemption from limitation law : Where the suit is instituted after the expiration of the
period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such
law is claimed:

[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.]

Rule 7 : Relief to be specifically stated : Every plaint shall state specifically the relief which the plaintiff claims
either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may
always be given as the Court may think just to the same extent as if it had been asked for.

And the same rule shall apply to any relief claimed by the defendant in his written statement.

Rajendra Tiwari v. basudeo Prasad and another 2002 : Under the provisions contained in order 7 rule 7, a
relief larger than one claimed by the plaintiff in the suit cannot be granted.

Rule 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 stated as far as may be
separately and distinctly.

PROCEDURE FOR ADMISSION OF THE PLAINT: Rule 9

Rule 9 : Procedure on admitting plaint : Where the Court orders that the summons be served on the
defendants in the manner provided in Rule 9 of Order V, it will direct the plaintiff to present as many copies of
the plaint on plain paper as there are defendants within 7 days from the date of such order along with
requisite fee for service of summons on the defendants

Rule 10 : Return of plaint : (1) Subject to the provisions of rule 10A, the plaint shall at any stage of the suit be
returned to be presented to the Court in which the suit should have been instituted. [B]

Explanation. —The Appellate Court or Court of Revision may after setting aside the decree passed in the suit,
return the plaint for presentation to the proper Court.]

Procedure on returning plaint (2) On returning a plaint the Judge shall endorse thereon the date of its
presentation and return, the name of the party presenting it, & a brief statement of the reasons for returning
it.

Note : Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is u
able to entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.

This rule applies only to plaint and not to applications. Thus, a Court cannot under this rule return an
application for leave to sue in forma pauperis.

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R. S. D. Finance Company v. Shri Ballabh glass workers Ltd : When plaintiff choose wrong court in respect of
Jurisdiction. Rather than dismiss the plaint, it would be appropriate to return the same to appropriate Court.

Note : Order VII rule 10 is not applicable to chartered High Court.

Rule 10-A : Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return

(1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be
returned, it shall, before doing so, intimate its decision to the plaintiff.

(2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to
the Court—

(a) specifying the Court in which he proposes to present the plaint after its return,

(b) praying that the Court may fix a date for the appearance of the parties in the said Court, and

(c) requesting that the notice of the date so fixed may be given to him and to the defendant.

(3) Where an application is made by the plaintiff under sub-rule (2), the Court, shall, before returning the
plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no
jurisdiction to try the suit, —

(a) fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented,
and

(b) give to the plaintiff and to the defendant notice of such date for appearance.

(4) Where the notice of the date for appearance is given under sub-rule (3),—

(a) it shall not be necessary for the Court in which the plaint is presented after its return, to serve the
defendant with a summons for appearance in the suit, unless that Court, for reasons to be recorded,
otherwise directs, and

(b) the said notice shall be deemed to be a summons for the appearance of the defendant in the Court in
which the plaint is presented on the date so fixed by the Court by which the plaint was returned.

(5) Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the plaintiff shall
not be entitled to appeal against the order returning the plaint.]

Rule 10-B : Power of appellate Court to transfer suit to the proper Court : Rule 10-B has been added to rule 10
with a view to empowering the Court hearing an appeal (appellate Court) against an order of the return of
plaint to direct that, instead of the plaint being returned, the suit may be transferred to the Court in which it
should have been instituted. Further, provision for obviating the necessary for serving summonses on the
defendants, where the return of plaint was made after the appearance of the defendants in the suit, have also
been included in the rule.

Rule 11 : Rejection of Plaint : The plaint shall be rejected in the following 6 cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation
within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the
plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails
to do so;

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(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9.

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

Kalepur Pala Subrahmanyam v Tiguti Venkata, AIR 1971 : A plaint cannot be rejected in part and retained in part under
this rule. It must be rejected as a whole.

Note : The power to reject the plaint can be exercised by the court at any stage of the suit. An order rejecting a plaint is a
deemed "decree" within the meaning of Section 2(2) of CPC, & , therefore, is appealable.

Note : The grounds for rejection of plaint specified in Rule 11 of Order 7 are not exhaustive. On other relevant grounds
also a plaint can be rejected. Thus, if the plaint is signed by a person not authorised by the plaintiff and the defect is not
cured within the time granted by the court, the plaint can be rejected. Likewise, where the plaint is found to be
vexatious and meritless, not disclosing a clear right to sue, the court may reject the plaint under this rule.

Rule 12 : Procedure on rejection of plaint : Where a plaint is rejected by a court, the judge shall pass an order to that
effect and shall record reasons for such rejection.

Rule 13 : Effect of rejection of plaint: If the plaint is rejected on any of the above grounds, the plaintiff is not thereby
precluded from presenting a fresh plaint in respect of the same cause of action.

Sayyed Ayaz Ali vs Prakash G. Goyal on 20 July, 2021 : Supreme Court held that the Court Cannot Grant Liberty To Amend
Plaint While Rejecting It Under Order VII Rule 11(d) CPC: The Supreme Court held that while rejecting a plaint under
Order 7 Rule 11(d) of Code of Civil Procedure, the Court cannot grant liberty to the plaint.

Srihari Hanumandas Totala vs Hemant Vithal Kamat 2021 : The Supreme Court observed that the Res Judicata cannot be
a ground for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure. "Since an adjudication of
the plea of res judicata requires consideration of the pleadings, issues and decision in the 'previous suit', such a plea will
be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.",

Rules 14 to 17 deal with the production of documents by the plaintiff.

Rule 14 : Production of document on which plaintiff sues or relies

(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of
his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by
him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

(2) Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible,
state in whose possession or power it is.

(3) A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be
entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not,
without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to the following documents:

(i) Documents reserved for the purpose of cross-examination of the defendan's witnesses; or

(ii) Documents handed over to a witness merely to refresh his memory

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ORDER VIII [Written Statement, Set-off and Counter-Claim]
What is Written Statement? : In legal dictionary, the word written statement means a pleading for defence. In
other words, a written statement is the pleading of the defendant wherein he deals with every material fact
alleged by the plaintiff along with any new facts in his favour or that takes legal objections against the claim
of the plaintiff. Note : It is a pleading of the Defendant.

Rule 1-5 & 7-10 of Order VIII lays down the general provision relating to written statement.

Rule 1 : Written Statement : The defendant shall, within 30 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 30 days, he
shall be allowed to file the same on such other day, as may be specified by the Court, for reasons to be
recorded in writing, but which shall not be later than 90 days from the date of service of summons.]

Salem Advocate Bar Assocn v UOI, AIR 2005 : Extension beyond 90 days may, however, be given in
exceptionally hard cases only.

Santibai v Paras Finance Co, (2007) : Every party in a case has a right to file a written statement. This should
be in accordance with natural justice.

Rule 1-A : Duty of defendant to upon which relief is claimed or relied upon produce documents by him

(1) Where the defendant bases his defence upon a document or relies upon any document in his possession or
power, in support of his defence or claim for set off or counter claim, he shall enter such document in a list,
and shall produce it in Court when the written statement is presented by him and shall, at the same time,
deliver the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he shall, wherever possible,
state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this rule, but, is not so produced
shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents—

(a) produced for the cross-examination of the (b) handed over to a witness merely to refresh his
plaintiffs witnesses, or memory.]

Rule 2 : New facts must be specially pleaded : The defendant must raise by his pleading all matters which
show the suit not to be maintainable, or that the transaction is either void or voidable in point of law, and all
such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would
raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment,
performance, or facts showing illegality.

Note : Under this rule, it is the duty of the defendant to give all the particulars in his defence, which he desires
to take. If he does not do so, he will not be allowed to raise a new plea depending upon evidence for its
determination, for the first time in appeal.
62
Rule 3 : Denial to be specific : It shall not be sufficient for a defendant in his written statement to deny
generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does not admit the truth, except damages.

Jaspal Kaur Cheema v Industrial Trade Links, AIR 2017 : The defendant in written statement must
categorically deny or dispute averments made in plaints, as evasive denial would amount to an admission of
the allegation made in the plaint.

A defendant can either admit or deny the several allegations made in the plaint. If he decides to deny any
such allegations he must do so clearly and explicitly. This rule lays down that a general denial of the grounds
alleged in the plaint shall not be sufficient.

Rule 4 : Evasive denial : Where a defendant denies an allegation of fact in the plaint, he must not do so
evasively, but answer the point of substance.

Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received
that particular amount, but he must deny that he received that sum or any part thereof, or else set out how
much he received.

And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those
circumstances.

Rule 5 : Specific denial

(1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be
not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under
disability:

Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by
such admission.

(2) 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.

(3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due
regard to the fact whether the defendant could have, or has, engaged a pleader.

(4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such
judgment and such decree shall bear the date on which the judgment was pronounced.]

Rule 7 : Defence or set-off grounds founded upon separate : Where the defendant relies upon several distinct
grounds of defence or set-off or counter-claim founded upon separate and distinct facts, they shall be stated,
as far as may be, separately and distinctly.

Rule 8 : New ground of defence : Any ground of defence which has arisen after the institution of the suit or the
presentation of a written statement claiming a set-off or counter-claim] may be raised by the defendant or
plaintiff, as the case may be, in his written statement.

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Rule 9 : Subsequent pleadings : No pleading subsequent to the written statement of a defendant other than
by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon
such terms as the Court thinks fit; but the Court may at any time require a written statement or additional
written statement from any of the parties cut and fix a time of not more than thirty days for presenting the
same.]

Rule 10 : Procedure when party fails to present written statement called for by Court.

In Modula India v. Kamakshya Singh, explaining the ambit and scheme of Rules 1, 5 and 10 of Order 8, the
Apex Court observed:

Rule 1 merely requires that the defendant should present a written statement of his defence within the time
permitted by the Court.

Under Rule 5(2), where the defendant has not tiled a pleading it shall be lawful for the Court to pronounce
judgment on the basis of the facts contained in the plaint except against a person under disability but the
court may at its discretion require any such fact to be proved.

Again under Rule 10 when any party from whom a written statement is required fails to present the same
within the time permitted or fixed by the Court, the Court ‘shall pronounce judgment against him or make
such order in relation to the suit as it thinks fit`..

64
Set-off [R.6 of O.8]
Set-off : Set-off is a reciprocal acquittal of debts between two persons. It is a claim set up against another. It
is a cross claim which partly offset the original claim. Where there are mutual debts between the plaintiff &
defendant, one debt may settle against the other. It is a plea of defence available to the defendant.

By adjustment, Set-off either wipes out or reduces the plaintiff's claim in a suit for recovery of money.

Rule 6 : In order to entitle a defendant to claim a set-off under this rule, there are some conditions which
must be satisfied:

(1) The suit must be one for recovery of money. For example, a suit on a negotiable instrument.

(2) The amount must be an ascertained sum of money

(3) Such sum must be legally recoverable.

(4) It must be recoverable by the defendant or by all the defendants, if more than one

(5) It must be recoverable by the defendant from the plaintiff or all the plaintiffs, if more than one

(6) It must not exceed the pecuniary limits of the jurisdiction of the Court in which the suit is brought.

(7) Both parties must fill in the defendant's claim to set-off the same character as they fill in the plaintiffs suit.

It may be pointed out here that this rule deals with legal as distinguished from equitable set-off.

Note : When set off is claimed by the defendant in the written statement, such a written statement has the
same effect as a plaint in a cross suit, so as to enable the Court to pronounce a final judgment in respect of
both of the original claim and the set-off. Furthermore, all the rules relating to a written statement by a
defendant apply to a written statement filed in answer to a claim of set-off.

Object of Set-off : To obviate the necessity of a fresh suit by the defendant.

Illustration d): 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.

Illustration f): A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.

Illustration g): A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.

Example : Where X files a Suit against Y for recovery of rupees 15,000 but Y already holds a decree of rupees
20,000 against X. The defended Y, may plead for the Set-off of the claim of plaintiff X.

Counter-Claim [R.6-A to 6-G of O.8] Rules 6-A to 6-G were added by the Amendment Act of
1976, with a view to make detailed provisions regarding the counter-claims.. Counterclaims are a claim
bought against the Plaintiff by the Defendant in a lawsuit. It is typically filed as part of a Defendant’s answer
to the original claim. Counterclaim can contain a variety of material ranging from accusation of fraudulent
activity to claims which would preempt any attempt at suit.

Objectives of Counterclaim : to save time of courts, exclude inconvenience to the parties to litigation, decide
all disputes b/w the same parties avoiding unnecessary multiplicity of judicial proceedings & prolong trials.
The goal of counterclaim is to turn the table on the plaintiff by bringing up more issues in the case and
demanding redress.

65
Rule 6-A : 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 has delivered his defence or before the time limited for delivering his defence has expired,
whether such counter-claim is in the nature of a claim for damages or not: 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.]

Gayathri Women Welfare Association v Gowramma, (2011) : The counter-claim is required to be treated as an
independent suit in view of provisions of O VIII, rule 6A of the Code.

Vaishali Abhimanyu Joshi v Nanasaheb Gopal Joshi, AIR 2017 : Counter claim can be filed by defendant in suit
before small cause court.

Ballepanda P Poonacha v KMMadapa, (2008) : Relief under O VII, rule 6A is discretionary remedy but
discretion is to be exercised in judicious manner

Modes of settingup counterclaim : Ramesh Chand v. Anil Panjwani, (2003) There are three modes ofpleading
or setting up a counterclaim in a civil suit:

i In the written statement filed under O.8 R.1;

ii. By amending written statement with the leave ofthe court and setting up counterclaim; and

iii. In a subsequent pleading under Order 8 Rule 9,

Question) Can counterclaim be filed after written statement under Order VIII Rule 6A CPC?

Ans) Ashok Kumar Kalra vs. Wing Cdr. Surendra Agnihotri & Ors. decided on 19.11.2019 : Supreme Court held
that there is no embargo on the filing of a counterclaim after filing of written statements under Order VIII
Rule 6A of the CPC. The outer limit for the same is till the framing of issues.

It was also held that that normally, counter claim will not be entertained after the issues have been framed in
the suit but filing of counterclaims after the commencement of recording of evidence is not illegal per se.

Rule 6-B : Counter-claim to be stated : Where any defendant seeks to rely upon any ground as supporting a
right of counterclaim, he shall, in his written statement, state specifically that he does so by way of counter-
claim.]

Rule 6-C : 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.

Rule 6-D : 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.

66
Rule 6-E : Default by plaintiff of reply to counter-claim : If the plaintiff makes default in putting in a 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.

Rule 6-F : Relief to defendant succeeds where counter-claim : Where in any suit a set-off or counter-claim |s
established as a defence 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.

Rule 6-G : Rules relating to written statement to apply : The rules relating to a written statement by a
defendant shall apply to a written statement filed in answer to a counter-claim.

Differentiate between legal set-off and equitable set-off : The distinction between legal and equitable
set-off is as follows-

1. Order VIII RULE 6 deals with set-off, whereas Order XX RULE 19 (3) deals with equitable set-off..

2. In a legal set-off, the amount claimed must be an ascertained sum of money, but in an equitable set-off, the
claim must be allowed even with respect to an unascertained sum of money.

3. In a legal set-off, the Court is bound to entertain and adjudicate upon the plea when raised. In the case of
an equitable set-off, however, it is not obligatory on the Court to adjudicate upon it and the defendant cannot
claim it as a matter of right.

4. In a legal set-off, it is not necessary that the cross-demands arise out of the same transaction, but an
equitable set-off is allowed only when the cross-demands arise out of the same transaction as the plaintiff’s
claim.

5. In a legal set-off, the amount claimed to be set off must be legally recoverable and not barred by limitation
at the date of the suit, but a claim by way of equitable set-off can be allowed even if it is barred at the date of
the suit where there is fiduciary relationship between the plaintiff and the defendant.

6. If the defendant’s claim is barred at the date of the written statement but not barred at the date of the suit,
the defendant can get an equitable set-off to the extent of the plaintiff’s claim only but not for the balance
found due to him.

7. In a legal set-off, the whole claim is admissible and the defendant can even get a decree for the balance.

Differentiate between set off and counter claim : The distinction between set-off and counter-claim may
now be noted :

1. Order VIII RULE 6 deals with set-off, whereas Order VIII RULE 6A to 6G deals with counter-claim

2. Set-off is a statutory defence to a plaintiff’s action, whereas a counterclaim is substantially a cross-action.

3. Set-off must be for an ascertained sum or must arise out of the same transaction as the plaintiff’s claim. A
counter-claim need not arise out of the same transaction.

4. Set-off is a statutory ground of defence i.e., shield. Whereas, Counter-claim, is a weapon of offence i.e.,
sword.

5. Set-off is of two kinds i.e., legal and equitable, whereas counter claim has no such classification.

6. If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish his plea has to
prove that set-off was barred when the plaintiff commenced the action. In the case of a counter-claim, it is
enough for the plaintiff to prove that the counter-claim was barred when it was pleaded.
67
Plaint & Written Statement format in Suit for Injunction

INTERLOCUTORY APPLICATION

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, DEHRADUN

Application No. 234 of 2016

Sanjay Sen, S/O Subir Sen,

Dilaram, Dehradun …………Plaintiff

Versus

Tirthankar Bose, S/O Purnendu Bose,

Hathibarkhala, Dehradun ………….Defendant

Application for the issuance of temporary injunction under Order 39, Rule 1, Code of Civil Procedure,
1908.

The application respectfully states as under:

1. That the plaintiff is the owner of a plot of land, detailed at the foot of this application adjacent to
defendant’s house.

2. That on 0-03-2016 defendant has taken wrongful possession of the said plot of land and has
started construction thereon inspite of plaintiff request not to do so.

3. That the applicant has filed this suit for demolition and recovery of the possession of the said plot
of land.

4. That in the case the defendant is not restrained by a temporary injunction from raising
construction the plaintiff applicant will suffer an irreparable loss.

5. That the issue of temporary injunction is indispensable in the interest of justice.

6. That the plaintiff has also sale deed of the plot of land in suit in his favour which is filed before the
court.

7. That the applicant has a prima facie case and the balance of convenience also lies in his favour
and in case injunction is not issued, the applicant will suffer irreparable loss.

It is therefore prayed that a temporary injunction be issued restraining the defendant from raising
further construction on the plot of land in question during the pendency of the suit and costs may
also be awarded against the defendant in lieu of forcible actions

68
Place- DEHRADUN Sanjay Sen

Date- 29.09.2016 Plaintiff

Hamid Khan

Advocate

Dated: 29.09.2016

VERIFICATION

I, Sanjay Sen, do hereby verify that the contents of Para 1-2 of this affidavit are true to my personal
knowledge and those Para 3-4 are based on legal advice which I believe to be true and no part of it is
false and nothing has been concealed.

Signed and verified this on 29th of September, 2016 at DEHRADUN.

Sanjay Sen,

Deponent.

Hamid Khan,

Advocate.

69
 AFFIDAVIT

In the Court of Civil Judge Senior Division, DEHRADUN.

Suit No.234 of 2016

Affidavit in support for issuance of temporary injunction under Order 39, Rule 1, C.P.C

Sanjay Sen, aged 29 years, S/O Subir Sen, Dilaram, DEHRADUN hereby solemnly affirms and state on
oath as follows:

1. That the deponent is the plaintiff in the above noted suit and as such as fully conversant with the
fact of the case

2. That the deponent is a permanent owner of the plot of the land, adjacent to the defendant’s house.

3. That the action of defendant has caused the deponent an irreparable loss, which cannot be
compensated in terms of money.

4. That is expedient in the interest of justice that defendant should be restrained from taking the
wrongful possession of the sold plot of the land.

Place:DEHRADUN Sanjay Sen -Plaintiff

70
 WRITTEN STATEMENTS

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, DEHRADUN

Application No. 234 of 2016

Sanjay Sen, S/O Subir Sen,

Dilaram,Dehradun ……………………..Plaintiff

Versus

Tirthankar Bose, S/O Purnendu Bose,

Hathibarkhala, Dehradun ……………….Defendant

Written statements filed by defendant under Order VIII Rule 1 of cpc:-

The defendant humbly submits as follows:

1. That at the outset the defendant denies all the allegations contained in the plaint , except those,
which are specifically admitted in the plaint, except those, which are specifically admitted
hereinafter in the written statement or otherwise dealt with, and nothing stated in the plaint should
be deemed to be admitted merely because the same is not specifically traversed. It is also submitted
that, anything stated in the plaint contrary to or inconsistent with what is stated in the present
written statement be deemed to be expressly denied.

2. The address of the plaintiff is not correctly given. The plaintiff is put to strict proof of their
address and they are liable to give correct address to prosecute the case.

3. The contents of Para 1 are wrong, incorrect and are denied. It is wrong to contend that

the plaintiff is owner and in possession of property in suit or upon its any partwhich is morefully
described in the schedule given at the end of the plaint. The plaintiff is put to strict proof of the
contents made by him in the said para. The true and correct details would be stated in the
subsequent para.

4. The contents of Para 2 are wrong, incorrect and are denied. It is wrong to contend that

Defendants had illegally encroached upon the property in the suit or upon its any part which is
morefully described in the schedule given at the end of the plaint. The plaintiff is put to strict proof
of the contents made by him in the said para. The true and correct details would be stated in the

71
subsequent para.

5. That the true and correct facts are that plaintiff is under the influence of the notorious land
mafias of the surrounding areas and have always an evil eye on the adjoining properties of others
and by such filing false and frivolous cases against the innocent persons they indulge their property
into unnecessary litigation and thereafter blackmail them to sell their property at throw away
prices to them.

6. That the property in the suit bearing plot situated at Indore, belongs to Shri Darbar shri Gururam
Rai and Shri Gururam has allotted the land to Dilaram Cooperative society Limited and the said
society had further developed and allotted small plots to its members and thus property in the suit
was allotted to Subir Sen. Shri Subir Sen had paid the complete consideration of 2 lakhs for the same.

7. That the plaintiff already sold off his entire land and now by instituting the present suit the
plaintiff is trying to grab the surrounding properties of the khasara n. 1217 kha Min. this could be
easily traced out as the plaintiff had intentionally and malafidely instituted other suits in order to
usurp the plots which don’t belongs to him.

8. That the suit is false, frivolous and vexatious to the knowledge of the plaintiff. The Defendants are
entitled to special cost in addition to the cost of the suit.

9. For the reasons aforesaid, the suit is liable to be dismissed by the Hon’ble Court as well as special
cost under Sec.35-A of Code of Civil Procedure, should be awarded.

Defendant
Through attorney

VERIFICATION

Tirthankar Bose, S/O Purnendu Bose do hereby verify that the contents of the above written
statement from Para 1-9 are true and correct to the best of my knowledge and belief.

Signed and verified this on 24th day of December, 2016 at Dehradun.

Tirthankar Bose
Defendant

72
 AFFIDAVIT

In the Court of Civil Judge Senior Division, DEHRADUN.

Suit No.234 of 2016

Affidavit in support for issuance of temporary injunction under Order 39, Rule 1, C.P.C

Tirthankar Bose, S/O Purnendu Bose, Hathibarkhala, Dehradun hereby solemnly affirms and state
on oath as follows:

1. That the deponent is the defendant in the above noted suit and as such as fully conversant with
the fact of the case

2. That the deponent is a permanent owner of the plot of the land, adjacent to the Plaintiff’s house.

3. That the suit is false, frivolous and vexatious to the knowledge of the plaintiff. The Defendants are
entitled to special cost in addition to the cost of the suit.

4. That is expedient in the interest of justice that the suit instituted by the defendant should be
dismissed by this honourable court.

Place: DEHRADUN Tirthankar Bose

Defendant

73
Plaint format in suit for specific performance

IN THE COURT OF CIVIL JUDGE CLASS-I AT INDORE

SUIT NO……………../20….

A.B S/O B.C

123, AB ROAD, INDORE, MP ……….PLAINTIFF

Vs.

M.N s/o O.P

456, AB ROAD, INDORE,MP ………..RESPONDENT

Suit for specific performance of contract to sell a residential plot

The plaintiff respectfully states as follows:

1. Plaintiff is a Govt. servant working in Indore, M.P. ans so on

2. Respondent is a property broker having an office at bangla road, Indore

3. The plaintiff agreed with the respondent on 10 Aug 2008 to purchase the plot no. 123 at Rani Bagh
Colony, Indore. A copy of the contract is attached with the petition.

4. The boundaries of the plot is as under:

East: Road

West: Plot number 124

North: Road

South: Colony wall

5. The total value of the plot to be paid by the plaintiff to the respondent , as agreed upon in the
contract, is Rs 40,000/

74
6. The Respndenr accepted a payment of 10,000 through check No. 124 of SBI, Indore Branc at the
time of making the contract and promised to do registry upon payment of remaining amountof
30,000/

7. The plaintiff tried to pay remaining amount on several occasion by cash as well as check but the
respondent refused to take the payment.

8. The plaintiff also sent a notice about the same to the respondent on 10/10/2009

9. The plaintiff is ready to pay the remaining amount of Rs 30,000 but the respondent is not willing
to transfer the said plot.

10. The cause of action for the present suit first arose on 10/10/2009 when the respondent refused to
convey the said property as per the terms of the agreement and hence, the suit filed today is within
time.

11. The plot is located in Indore, which is within this court’s territorial jurisdiction.

12. The value of the contract is 40,000/ which is within the court’s pecuniary jurisdiction.

13. Relief Claimed:

The plaintiff, therefore prays that

i. The court be pleased to order the respondent to perform his part of the contract by accepting
the remaining payment and conveying the said plot to the plaintiff.

ii. The plaintiff be permitted to deposit the balance of consideration in this Hon’ble court.

iii. The respondent be ordered to pay compensation for mental harassment, loss of wages, and
cost of this litigation.

Place :

Date:

YYY

Advocate

75
 Verification

I, A.B S/O B.C do hereby solemnly verify that the contents from paras 1 to 4 are correct and true to
the best of my knowledge and contents from para 5 to 13 are based on legal advice, which I believe
to be correct. Affirmed at Indore this 4th Day of September 2009

Signature

Plaintiff

AFFIDAVIT

In the Court of Civil Judge Senior Division, INDORE

Suit No. …..of …………

Affidavit in support for Suit for specific performance of contract to sell a residential plot

A.B aged 29 years, S/O B.C, resident of 123, AB ROAD, INDORE, MP hereby solemnly affirms and
state on oath as follows:

1. That the deponent is the plaintiff in the above noted suit and as such as fully conversant with the
fact of the case

2. That the deponent has entered into a contract for purchasing defendant’s plot.

3. That the action of defendant has caused the deponent an irreparable loss, which cannot be
compensated in terms of money.

4. That is expedient in the interest of justice that defendant should be asked to perform the specific
contract

Place: Indore A.B ..plaintiff

76
Plaint & Written Statement format in suit for breach of contract

IN THE COURT OF CIVIL JUDGE JUNIOR DIVISION, DEHRADUN

Civil Suit No. 91 of 2016

J & K Enterprises, through

Mr. Alok Kumar, Office-5,

Rajpur Road, Dehradun ...Plaintiff

Versus

Raj Kumar & Co.,

Office-15, Rajpur Enclave, Dehradun …..Defendants

Suit For Compensation for Breach of Contract to Sell Aerated Water Manufacturing Machinery

That the plaintiff above named respectfully states as under:

1. That the plaintiffs are a partnership firm duly registered under the India Partnership Act, of which
Shri Alok Kumar is one of the managing partners.

2. That the defendants agreed to sell to the plaintiffs aerated water manufacturing machinery plant
complete in all respect for a consideration of Rs.7 Lakhs, the said machinery plant was to be
delivered to the plaintiffs on or before 13-08-2016 certain. The defendants knew that the plaintiff
required the said machinery to be installed on 15-08-2016, the Independence Day for which,
celebration a grand scale has to arranged by the plaintiffs.

3. That the defendants failed to deliver the said machinery to the plaintiffs on the appointed day
which caused much dislocation of the plaintiff’s business and resulted in damage and loss to the
plaintiff’s business, when on a moderate estimate was no cost less than Rs.1 Lakh, details whereof
are given in Schedule- A annexed to the plaint.

4. That the plaintiffs were all the time ready and willing to perform their part of the contract. The
defendants are accordingly liable to pay Rs.10 Lakh as compensation to the plaintiff’s firm.

5. That the cause of action arose on 13-08-2016 when the machinery was to be delivered at 5, Rajpur
77
Road, Dehradun. Hence, the court has Jurisdiction.

6. That value of the suit for the purpose of the court fee jurisdiction is Rs.12,000/-.

7. It is therefore prayed that a decree for payment of Rs.1 Lakh with costs of suit be passed in favour
of the plaintiffs against the defendants in the circumstances passed in this case.

Alok Kumar

Plaintiff

SCHEDULE-A

Covered showroom constructed with four shutters on the main Rajpur Road, Dehradun fitted with
electricity and water along with right to passage for use of workshop measuring 35’x 70’ being part
of property known as 23, Rajpur Road, Dehradun.

Alok Kumar

Plaintiff

VERIFICATION

I, Alok Kumar, do hereby verify that the contents of Para 1-7 of the above plaint are true and correct
to the best of my knowledge and belief.

Signed and verified this on 19th day of November, 2016 at Dehradun.

Aman Sharma,

Plaintiff

78
 AFFIDAVIT

IN THE COURT OF CIVIL JUDGE JUNIOR DIVISION, DEHRADUN

Civil Suit No. 91 of 2016

J & K Enterprises, through

Mr. Alok Kumar, Office-5,

Rajpur Road, Dehradun ...Plaintiff

Versus

Raj Kumar & Co., Office-15,

Rajpur Enclave, Dehradun
…Defendants

I, Alok Kumar, do hereby solemnly affirm and declare as under:

1. That the accompanying plaint has been drafted under the instruction of the learned counsel. For
the sake of precision and brevity plaint is not being reproduced herein under in this affidavit.

2. That the contents of the plaint may kindly be read as part and parcel of this affidavit.

3. That the contents of Para 1-7 of the plaint are true and best of my knowledge.

4. That I further solemnly affirm and declare that the contents of this affidavit of mine are correct
and true and no part of it is false and nothing has been concealed therein.

Affirmed here at Dehradun on this 19th day of November, 2016.

Deponent

Mr. Alok Kumar

79
 WRITTEN STATEMENT

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, DEHRADUN

Civil Suit No. 234 of 2016

J & K Enterprises, through

Mr. Alok Kumar, Office-5,

Rajpur Road, Dehradun ..….Plaintiff

Versus

Raj Kumar & Co.,

Office-15, Rajpur Enclave, Dehradun ……… Defendants

That the defendant most humbly submits the written statement as under:

1. That the Para 1 of the plaint is accepted.

2. That first part of Para 2 is admitted. The defendants are unaware of the particular purpose of the
plaintiffs nor have any knowledge of any elaborate arrangement made in this behalf by the plaintiffs

3. That the defendants were at all relevant times, ready and willing to give delivery of the requisite
machinery which was to be transported from defendants godown situated at 15, Rajpur Enclave,
Dehradun nor did the plaintiffs pay the price fixed in this behalf between Shri Alok Kumar of the
plaintiff’s company and Shri Anurag Rawat attorney for the defendants. The defendants are not
liable for any loss which may be occasioned to the plaintiffs in this behalf.

4. That Para 4 of the plant is not admitted.

……..Defendant

VERIFICATION

I, Mr. Raj Kumar, do hereby verify that the contents of the above written statement from Para 1-4
are true and correct to the best of my knowledge and belief.

Signed and verified this on 19th day of November, 2016 at Dehradun.

Raj Kumar

Defendant

80
 AFFIDAVIT

IN THE COURT OF CIVIL JUDGE SENIOR DIVISION, DEHRADUN

Civil Suit No. 234 of 2016

J & K Enterprises, through

Mr. Alok Kumar, Office-5,

Rajpur Road, Dehradun ...Plaintiff

Versus

Raj Kumar & Co.,

Office-15, Rajpur Enclave, Dehradun …Defendants

I, Raj Kumar, do hereby solemnly affirm and declare as under:

1. That the accompanying written statement has been drafted under the instruction of the learned
counsel. For the sake of precision and brevity written statement is not being reproduced herein
under in this affidavit.

2. That the contents of the written statement may kindly be read as part and parcel of this affidavit.

3. That the contents of Para 1-4 of the written statement are true and best of our knowledge.

4. That we further solemnly affirm and declare that the contents of this affidavit are correct and true
and no part of it is false and nothing has been concealed therein.

Affirmed here at Dehradun on this 19th day of November, 2016 .

Deponent

Mr.Aman Sharma

81
Plaint & Written Statement format in suit for accounts by the Principal against the
agent

IN THE HIGH COURT OF DELHI AT NEW DELHI

Mr Hari Gokal s/o Sh. Dayanand Gokal ….plaintiff

Versus

Eastern Book company Pvt lmtd ...Defendant

Suit for accounts by agents against principal

The plaintiff above-named states as follows:

1. The defendant, a Private Limited Company is a published of law books and carries on business as
publisher and book seller in the city of Hyderabad.

2. The plaintiff was appointed by the defendant as the sole agent for the sale of books within the State of
Andhra Pradesh by virtue of written agreement dated 14.3.1992. The same is filed along with the plaint.

3. The terms of the agreement dated 14.3.1992 between the plaintiff and the defendant, state that the
plaintiff should get commission at the rate of 25% from the defendant on all books sold in the State of Andhra
Pradesh.

4. The term of agency continued till 14.3.1994. After that without giving any reasons his agency was
terminated.

5. As the defendant in terms of the agreement and on requisition by the plaintiffs sub-agents sent the books
to the sub-agents directly, the plaintiff is not in a position to know the full and correct account of the sale of
the books during the period agency and all such accounts are in the possession of the defendant.

6. The plaintiff verbally and in writing demanded of the defendant for inspection of the accounts which are in
the possession of the defendant. But, the defendant refused to show them, and when the plaintiff asked for
the commission he refused to pay it.

7. Thus, the plaintiff is not in a position to state the exact amount due to him, as commission, from the
plaintiff.

8. The cause of action for this suit arose on 14.3.1994, the date of sudden termination of agency by the
plaintiff and on 2.12.1994, the date on which the plaintiff refused to show the records to the defendant.

9. As the business of the agency was to be carried on within the jurisdiction of this Court in terms of the
82
agreement and as the demand for inspection of accounts as well as for payment of commission was made
within the jurisdiction of this court and refused by the defendant, this court has jurisdiction to try this suit.

10. The valuation of the suit for the purpose of Court fees as well as for jurisdiction is tentatively fixed at Rs.
40,000/-.

11. The plaintiff undertakes to pay additional Court fees for the excess amount found due in favour, of the
plaintiff.

12. The plaintiff therefore prays, the amount due from the defendant as commission for the selling of the
books, for the loss he incurred due to the sudden termination of the agency and the the costs of this suit.

Signature

Plaintiff

VERIFICATION

I, nEastern Book company Pvt lmtd do hereby solemnly verify that the contents from Para 1 to
7 are correct and true to the best of my knowledge and contents from 8 to 12 are based on legal
advice, which I believe to be correct.

Affirmed at Delhi this 6th day of June 1994.

Written Statement:
1. Allegations made in paragraphs 1, 2, and 3 of the plaint are all correct and are admitted as true.

2. The plaintiff violated the terms of the agreement. According to the terms of the agreement, he was
forbidden from entering into similar such agreements with any other publisher, but the defendant having
learnt that the plaintiff had also entered into similar agreements with one more publisher and had been
working detrimental to the agency agreement entered between the plaintiff and the defendant was obliged
to terminate the agency business.

3. It is not true that the plaintiff was denied the right of inspecting the accounts. He was well aware of the
accounts.

4. The plaintiff was paid his commission regularly.

VERIFICATION

I, Hari Gokal do hereby solemnly verify that the contents from Para 1 to 7 are correct and true to the
best of my knowledge and contents from 8 to 12 are based on legal advice, which I believe to be
correct.

Affirmed at Delhi this 6th day of June 1994.

83
ORDER IX Appearance of Parties and Consequence of Non-Appearance
Rule 1 : Parties to appear on day fixed in summons for defendant to appear and answer

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at
the Court-house

i. in person or

ii. by their respective pleaders,

 and the suit shall then be heard

 unless the hearing is adjourned to a future day fixed by the Court.

Rule 2 : Dismissal of suit where summons not served in consequence of plaintiff's failure to pay costs

 Where on the day so fixed it is found that the summons has not been served upon the defendant in
consequence of the

i. failure of the plaintiff to pay the Court-fee or postal charges, if any, chargeable for such service or

ii. failure to present copies of the plaint as required by rule 9 of Order VII,

 the Court may make an order that the suit be dismissed:

Provided that no such order shall be made, if notwithstanding such failure, the defendant attends in person or by
agent when he is allowed to appear by agent on the day fixed for him to appear and answer.

Note : This rule applies only to cases of plaintiff's failure to pay process fee or postal charges for service of
summons on the defendant.

Rule 3 : Where neither party appears, suit to be dismissed

Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be
dismissed. [Note : A dismissal under this rule is justified only where neither party appears.]

Rule 4 : Plaintiff may bring fresh suit or Court may restore suit to file

 Where a suit is dismissed under

i. rule 2 or ii. rule 3,

 the plaintiff may (subject to the law of limitation)

i. bring a fresh suit; or

ii. apply for an order to set the dismissal aside,

and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2, or for his non
-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a
day for proceeding with the suit.
84
Rule 5 : Dismissal of suit where plaintiff, after summons returned unserved, fails for seven days to apply for
fresh summons

(1) Where, after a summons has been issued

i. to the defendant, or

ii. to one of several defendants,

and returned unserved,

the plaintiff fails, for a period of seven days from the date of the return made to the Court by the officer
ordinarily certifying to the Court returns made by the serving officers,

to apply for the issue of a fresh summons

the Court shall make an order that the suit be dismissed as against such defendant,

unless the plaintiff has within the said period satisfied the Court that—

(a) he has failed after using his best endeavours to discover the residence of the defendant who has not been
served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time,

in which case the Court may extend the time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Note : In rule 5 of O IX the words "7 days" have been substituted for the words "1 month".by the CPC
(Amendment) Act, 1999 (46 of 1999) (w.e.f. 1-7-2002)

Rule 6 : Procedure when only plaintiff appears.—

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—

(a) When summons duly served.—if it is proved that the summons was duly served, the Court may make an order
that the suit shall be heard ex parte;

(b) When summons not duly served.—if it is not proved that the summons was duly served, the Court shall direct a
second summons to be issued and served on the defendant;

(c) When summons served but not in due time.—if it is proved that the summons was served on the defendant, but
not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall
postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct notice of such day to be
given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly served or was not served in
sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

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Rule 7 : Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous
non-appearance.— Where the Court has adjourned the hearing of the suit, ex parte, and the defendant, at or
before such hearing appears & assigns good cause for his previous non-appearance, he may, upon such terms as
the Court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed
for his appearance.

Mamita Thati v Nepura Pradhan, AIR 2014 : Application under O IX, rule 7 of the CPC is not maintainable after
closure of evidence when the case is posted for judgment.

Rule 8 : Procedure where defendant only appears.— Where the defendant appears and the plaintiff does not
appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed,

unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the
defendant upon such admission, and where part only of the claim has been admitted, shall dismiss the suit so far
as it relates to the remainder.

Raja Devi Baksh v. Habib Shah 1913 : The Privy Council held that the court has no power to dismiss the suit
where the plaintiff does not appear owing to death. An order is a nullity inasmuch as this rule applies to a
defaulter not to a dead man. .

Rule 9 : Decree against plaintiff by default bars fresh suit.—

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh
suit in respect of the same cause of action.

But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient
cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting
aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.

(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.

Rule 10 : Procedure in case of non-attendance of one or more of several plaintiff's.—Where there are more
plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the
instance of the plaintiff or plaintiff’s appearing, permit the suit to proceed in the same way as if all the plaintiff’s
had appeared, or make such order as it thinks fit.

Rule 11 : Procedure in case of non-attendance of one or more of several defendants.— Where there are more
defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and
the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the
defendants who do not appear.

Rule 12 : Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in
person.— Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person,
or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be subject to all
provisions of the foregoing rules applicable to plaintiffs and defendants, respectively who do not appear.
86
Remedies available to the defendant against ex-parte decree :

1. Aggrieved party can apply to the Court for setting aside such decree (Order 9 Rule 13)

Note : such application can be made within 30 days from the date of the decree (Article 123 of The Limitation
act 1963)

2. Aggrieved party can file an appeal u/s 96(2) of CPC.

3. Aggrieved party can filed an application for review if the condition laid down in Order 47 Rule 1 are
satisfied.

4. A suit to set aside an ex-parte decree is not maintainable. But if the ex-parte decree is alleged to have been
obtained by the plaintiff by fraud, the defendant can file a regular suit to set aside such decree.

Rule 13 : Setting aside decree ex parte against defendants

Note : Order IX Rule 13 of the CPC speaks of conditions under which an Ex-Parte Decree can be set aside.

In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the
decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served,
or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the
Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into
Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit:

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it
may be set aside as against all or any of the other defendants also:

Provided further, that no Court shall set aside a decree passed ex parte merely on the ground that there has been
an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing
and had sufficient time to appear and answer the plaintiff's claim.

Explanation.— Where there has been an appeal against a decree passed ex parte under this rule, and the appeal
has been disposed of on any ground other than the ground that the appellant has withdrawn the appeal, no
application shall lie under this rule for setting aside that ex parte decree.

Arjun Singh v. Mohindra Kumar & Ors., AIR 1964 : The only difference between a "good cause" and "sufficient
cause" is that the requirement of a good cause is complied with on a lesser degree of proof than that of a
"sufficient cause".

*Note : Where the appellant has withdrawn the Appeal preferred against a decree passed exparte the
application under order 9 rule 13 shall be maintainable.

Rule 14 : No decree to be set aside without notice to opposite party.— No decree shall be set aside on any such
application as aforesaid unless notice thereof has been served on the opposite party.

[Note : The rule is imperative that no ex parte decree can be set aside without notice to the opposite party so
as to given him an opportunity to be heard.]

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ORDER X Examination of Parties by the Court
Introduction : Order X confers on the Court a power to examine parties with a view to ascertain the real
points in controversy between them, and to get admission from them, so as to eliminate irrelevant issues and
evidence and thereby shorten the trial.

J. K. Iron and Steel Co. Ltd. v. Mazdoor Union, AIR 1956 : In other words, the only point of requiring pleadings
& issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just
where the two sides differ.

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.

Note : If the court makes proper use of this provision, waste of time and money can be saved and the judge
can proceed to decide the case more intelligently. (Ram Kishan v. Ramjanki Shiva Parbati Maharaj, AIR 1952)

Order 10, Rules 1-A, 1-B and 1-C as inserted by the Amendment Act of 1976, provide for alternative dispute
resolution to get the matter settled outside the court through conciliation, mediation or Lok Adalat. If there
is no settlement, the case will again be referred to the court." (S. 89 of CPC)

Rule 1A : As per rule 1A the parties to the suits are given an option for settlement of the disputes outside
Court. When the parties have exercised their option, the Court shall fix the date of appearance before such
person as may be opted by the parties.

Rule 1B : As per rule 1B the parties are required to appear before such forum opted by them.

Rule 1C : Rule 1C provides for the presiding officer of the forum to refer the matter again to the Court in case
he feels that in the interest of justice he should not proceed with the matter.

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.]
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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 day not later than seven days from the date of first
hearing] 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.

89
ORDER XI Discovery and Inspection (Section 30 of CPC)
Discovery : Under CPC, 1908 discovery basically means a pre-trial procedural aspect wherein each party is
given an opportunity to obtain evidence from the opposite party or parties.

Discovery can be done by following two methods:-

1) Discovery of fact by interrogatories;

2) Discovery of documents related to the matter in question, which are in the possession of the party.. (rules
12 to 14 of Order XI deal with the discovery of documents. )

Interrogatories : Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories. When, with the
leave of the Court, parties administer a set of questions on the other party then it is called ‘Interrogatories’.

As per the provisions of the code, any party in a suit can file an application to obtain an order from the court
to ask interrogatories from the other party. So after filing the plaint, when the written statement is filed by
the defendant and when the court sends summons to parties for the first hearing, if any party feels that there
is a gap in the facts, then they can file an application and ask order from the court.

Who may administer interrogatories? Any opposite party can apply for an order for allowing the party to
deliver interrogatories to another party/ies in the suit. This means that the plaintiff can apply for an order
from the court to be administered to the defendant. The defendant can also do the same. In some cases, the
plaintiff/ defendant can administer the interrogatories to the co-plaintiff/ co-defendant.

Section 30 of CPC : Power to order discovery and the like.—Subject to such conditions and limitations as may
be prescribed, the Court may, at any time, either of its own motion or on the application of any party,—

(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering
of interrogatories, the admission of documents and facts, and the discovery, inspection, production,
impounding and return of documents or other material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to produce
documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

Rule 1 : Discovery by interrogatories.—

In any suit the

i. plaintiff or ii. defendant

 by leave of the Court

may deliver interrogatories in writing for the examination of the

i. opposite parties or ii. any one or more of such parties

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and such interrogatories when delivered shall have a note at the foot thereof stating which of such
interrogatories each of such person is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for
that purpose:

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed
irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

Rule 2 : Particular interrogatories to be submitted.—

On an application for leave to deliver interrogatories,

the particular interrogatories proposed to be delivered

shall be submitted to the Court and

that court shall decide within 7 days from the day of filing of the said application.

In deciding upon such application, the Court shall take into account any offer, which may be made by the party
sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the
matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as
the Court shall consider necessary either for disposing fairly of the suit or for saving costs.

Rule 3 : Costs of interrogatories.— In adjusting the costs of the suit inquiry shall at the instance of any party be
made into the propriety of exhibiting such interrogatories, and if it is the opinion of the taxing officer or of the
Court, either with or without an application for inquiry, that such interrogatories have been exhibited
unreasonably, vexatiously, or at improper length, the cost occasioned by the interrogatories and the answers
thereto shall be paid in any even by the party in fault.

Note : Generally, the costs of the interrogatories shall be borne by the party administering the
interrogatories. But the court may direct the party at fault to pay the costs ofthe interrogatories irrespective
of the result ofthe suit.

Rule 4 : Form of interrogatories : Interrogatories are filed as per the form provided in Appendix C Form No. 2
of CPC, with required variations as per requirement.

Rule 8 : Affidavit in answer, filing.—Interrogatories shall be answered by affidavit to be filed within 10 days or
within such other time as the Court may allow.

Rule 9 : Form of affidavit in answer : The reply to interrogatories is filed with an affidavit in the form provided
in Appendix C Form No. 3 of CPC, with required variations as per need.

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Rule 5 : Corporation.

Against whom interrogatories may be allowed?

As per Rule 5 of Order XI, any party to a suit which can be a:-

(i) Corporation; or. (ii) Body of persons;

which may be incorporated or not incorporated; empowered by the law to sue or to be sued; on its own name
or giving any other person responsibility to sue or any officer, against whom interrogatories can be filed.

If a body corporate is a party to the suit, then in interrogatories it shall be specifically mentioned that to
which person or the officer the questions are to be served..

Rule 6 : Objections to interrogatories - Rule 6 enables the party interrogated to file his objections and
indicate the grounds of objection which he might take.

Objections can be raised by the parties on the following grounds:-

1. Questions are scandalous; 2. Questions are irrelevant;

3. Questions are not exhibited bona fide;

4. Matters which are inquired into are not sufficiently material at this stage;

5. On the ground of privilege; or

6. Any other ground. .

Note : Scandalous interrogatories.— Interrogatories which tend to incriminate a party are not scandalous if
they are relevant. Nothing can be scandalous which is relevant.

Rule 7 : Setting aside and striking out interrogatories.— Any interrogatories may be

i. set aside on the ground that they have been exhibited unreasonably or vexatiously, or

ii. struck out on the ground that they are prolix, oppressive, unnecessary or scandalous;

and any application for this purpose may be made within 7 days after service of the interrogatories.

Rule 10 : No exception to be taken.— No exceptions (Objections) shall be taken to any affidavit in answer,

but the sufficiency or otherwise of any such affidavit objected to as insufficient shall be determined by the Court.

Rule 11 : Order to answer or answer further.— Where any person interrogated

i. omits to answer, or ii. answers insufficiently,

the party interrogating may apply to the Court for an order requiring him

i. to answer, or ii. to answer further, as the case may be.

And an order may be made requiring him to answer or answer further, either
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i. by affidavit or ii. by viva voce examination,

as the Court may direct.

Rule 12 : Application for discovery of documents.— Any party may,

without filing any affidavit,

apply to the Court for an order directing any other party to any suit to make discovery on oaths, of the
documents which are or have been in his possession or power, relating to any matter in question therein.

On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such
discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or
limited to certain classes of documents, as may, in its discretion be thought fit: Provided that discovery shall not
be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of
the suit or for saving costs.

Rule 13 : Affidavit of documents.— The affidavit to be made by a party against whom such order as is
mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein
mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as
circumstances may require.

Rule 14 : Production of documents.— It shall be lawful for the Court,

at any time during the pendency of any suit,

to order the production by any party thereto, upon oath, of such of the documents in his possession or power,
relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with
such documents, when produced, in such manner as shall appear just.

Rules 15 to 18 of this order deal with the inspection of documents.

Rule 15 : Inspection of documents referred to in pleadings or affidavits.— Every party to a suit shall be entitled

[at or before the settlement of issues]

to give notice to any other party,

in whose pleadings or affidavits reference is made to any document, or

who has entered any document in any list annexed to his pleadings,

to produce such document for the inspection of the party giving such notice, or of his pleader, and to
permit him or them to take copies thereof;
and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such
suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some
other cause or excuse which the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the
same to be put in evidence on such terms as to costs and otherwise as the Court shall think fit.

93
Rule 16 : Notice to produce .— Notice to any party to produce any documents referred to in his pleading or
affidavits shall be in Form No. 7 in Appendix C, with such variations as circumstances may require

Rule 17 : Time for inspection when notice given.— The party to whom such notice is given shall, within 10 days
from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days
from the delivery thereof at which the documents, or such of them as he does not object to produce, may be
inspected at the office of his pleader, or in the case of bankers' books or other books of account or books in
constant use for the purposes of any trade or business, at their usual place of custody, and stating which (if any)
of the documents he objects to produce, and on what ground. Such notice shall be in Form No. 8 in Appendix C;
with such variations as circumstances may require.

Rule 18 : Order for inspection

(1) Where the party served with notice under Rule 15 omits to give such notice of a time for inspection or objects
to give inspection, or offers inspection elsewhere than at the office of his pleader, the Court may, on the
application of the party desiring it, make an order for inspection in such place and in such manner as it may
think fit:

Provided that the order shall not be made when and so far as the Court shall be of opinion that it is not necessary
either for disposing fairly of the suit or for saving costs.

(2) Any application to inspect documents, except such as are referred to in the pleadings, particulars or affidavits
of the party against whom the application is made or disclosed in his affidavit of documents, shall be founded
upon an affidavit showing of what documents inspection is sought, that the party applying is entitled to inspect
them, and that they are in the possession or power of the other party. The Court shall not make such order for
inspection of such documents when and so far as the Court shall be of opinion that it is not necessary either for
disposing fairly of the suit or for saving costs.

Rule 19 : Verified copies

(1) Where inspection of any business books is applied for, the Court may, if it thinks fit, instead of ordering
inspection of the original books, order a copy of any entries therein to be furnished and verified by the affidavit
of some person who has examined the copy with the original entries, and such affidavit shall state whether or
not there are in the original book any and what erasures, interlineations or alterations:

Provided that , notwithstanding that such copy has been supplied, the Court may order inspection of the book
from which the copy was made.

(2) Where on an application for an order for inspection privilege is claimed for any document, it shall be lawful
for the Court to inspect the document for the purpose of deciding as to the validity of the claim of privilege,
[ unless the document relates to matters of State ].

Sub-rule (2) of this rule gives the Court power to inspect any document for which privilege is claimed so as to
decide whether the claim is justified, the object being that such claims ought to be decided at once in proper
cases. But that power of the Court has to be read subject to the limitation contained in section 162 of the
Evidence Act. Section 162 of the Evidence Act enacts a prohibition against the Court inspecting a document,
where it refers to matters of State. State of Punjab v Sodhi Sukhdev Singh

94
(3) The Court may, on the application of any party to a suit at any time, and whether an affidavit of documents
shall or shall not have already been ordered or made, make an order requiring any other party to state by
affidavit whether any one or more specific documents, to be specified in the application, is or are, or has or have
at any time been, in his possession or power; and, if not then in his possession, when he parted with the same
and what has become thereof. Such application shall be made on an affidavit stating that in the belief of the
deponent the party against whom the application is made has, or has at some time had, in his possession or
power the document or documents specified in the application, and that they relate to the matters in question in
the suit, or to some of them.

Rule 20 : Premature discovery.— Where the party from whom discovery of any kind or inspection is sought
objects to the same, or any part thereof, the Court may if satisfied that the right to the discovery or inspection
sought depends on the determination of any issue or question in dispute in the suit, or that for any other reason
it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the
right to the discovery or inspection, order that such issue or question be determined first, and reserve the
question as to the discovery or inspection.

Rule 21 : Non-compliance with order for discovery.—

(1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of
documents, he shall,

if a plaintiff, be liable to have his suit dismissed for want of prosecution, &,

if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not
defended,

Note : Such order, however, can be passed only after giving notice and a reasonable opportunity of being
heard to the plaintiff or the defendant, as the case may be .

(2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a
fresh suit on the same cause of action..

Rule 22 : Using answer to interrogatories at trial.—

Any party may, at the trial of a suit, use in evidence any one or more of the answers or any part of an answer of
the opposite party to interrogatories without putting in the others or the whole of such answer :

Provided always that in such case the Court may look at the whole of the answers, and if it shall be of opinion
that any others of them are so connected with those put in that the last-mentioned answer ought not to be used
without them, it may direct them to be put in.

Rule 23 : Order to apply to minors.— This Order shall apply to minor plaintiffs and defendants, and to the next
friends and guardians for the suit of persons under disability.

95
ORDER XII Admissions
Admission basically means the voluntary acknowledgement made by the person against his own interest. It
can be an important piece of evidence against a person. It can either be in oral, electronic form or
documentary in nature. As per the case of Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that:
Admissions are substantive evidence by themselves. But as per section 17 and section 21 of the Indian
Evidence Act, they are not conclusive in nature. Admissions made can be withdrawn or explained away. It
can be proved wrong. .

Rule 1 : Notice of admission of case.— Any party to a suit may give notice,

by his pleading, or otherwise in writing,

that he admits the truth of the whole or any part of the case of any other party.

Note : It is not permissible to rely on a part of admission ignoring the other.

Rule 2 : Notice to admit documents.— After discovery and 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. In case of refusal or neglect to admit any document even after notice, the
costs of proving them shall be paid by the party so neglecting or refusing, whatever may be the result ofthe
suit, unless the court otherwise directs.

Note : Admission of the documents means an admission of the facts contained in the documents.

Rule 2A : Document to be deemed to be admitted if not denied after service of notice to admit documents.—
Every document which was called upon to admit if:

1. Not denied specifically or by necessary implication, or

2. Not stated to be admitted by the party in their pleading, or

3. Not replied during the reply to the notice;

shall be deemed to be admitted.

One exception to the above provision is the person under disability.

Provided that the Court may, in its discretion and for reasons to be recorded, require any document so
admitted to be proved otherwise than by such admission.

(2) A person unreasonably neglecting or refusing to admit a document may be ordered to pay penal costs to
the other side by way of compensation.].

Rule 3 : Form of notice.— A notice to admit documents shall be in Form No. 9 in Appendix C, with such variations
as circumstances may require.

96
Rule 3A : Power of Court to record admission.— Notwithstanding that no notice to admit documents has been
given under r 2, the Court may, at any stage of the proceeding before it, of its own motion, call upon any party to
admit any document and shall, in such a case, record whether the party admits or refuses or neglects to admit
such document.]

Note : The court may also call upon any party, on its own motion suo motu, to admit any document at any
stage of the proceedings.

Rules 4 and 5 provide for notice to admit facts.

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:

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.—

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing,
the Court may at any stage of the suit, either on the application of any party or of its own motion and without
waiting for the determination of any other question between the parties, make such order or give such judgment
as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in accordance with the
judgment and the decree shall bear the date on which the judgment was pronounced.]

Rule 7 : Affidavit of signature.— An affidavit of the pleader or his clerk, of the due signature of any admissions
made in pursuance of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if
evidence thereof is required.

Rule 8 : Notice to produce documents.— Notice to produce documents shall be in Form No. 12 in Appendix C,
with such variations as circumstances may require. An affidavit of the pleader, or his clerk, of the service of any
notice to produce, and of the time when it was served, with a copy of the notice to produce, shall in all cases be
sufficient evidence of the service of the notice, and of the time when it was served.

Rule 9 : Costs.— If a notice to admit or produce specifies documents which are not necessary, the costs
occasioned thereby shall be borne by the party giving such notice.

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ORDER XIII PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS:
Order 13 deals with production, admission, impounding, rejection and return of documents.

Rule 1 : Original documents to be produced at or before the settlement of issues

Note : Rule 1 of this Order provides that the Court is bound to receive all documents of every description
produced by the parties at the first hearing however numerous they might be. Rule states as :

(1) The parties or their pleader shall produce on or before the settlement of issues, all the documentary evidence
in original where the copies thereof have been filed along with plaint or written statement.

(2) The Court shall receive the documents so produced:

Provided that they are accompanied by an accurate list thereof prepared in such form as the High Court directs.

(3) Nothing in sub-rule (1) shall apply to documents—

(a) produced for the cross-examination of the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory.].

Rule 2 : Effect of non-production of documents. [Rule 2 is omitted by Act No 46 of 1999 (w.e.f. 1-72002)]

Rule 3 : Rejection of irrelevant or inadmissible documents.— The Court may at any stage of the suit reject
document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

Note : Rejection under this rule may be at any stage. Whether any objection is raised or not a Court is bound
to reject irrelevant documents.

Rule 4 : Endorsements on documents admitted in evidence.—

(1) Subject to the provisions of the next following sub-rule, there shall be endorsed on every document which has
been admitted in evidence in the suit the following particulars namely:—

(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.

(2) Where a document so admitted is an entry in a book, account or record, and a copy thereof has been
substituted for the original under the next following rule, the particulars aforesaid shall be endorsed on the copy
and the endorsement thereon shall be signed or initialled by the Judge.

Prithi Raj Mehar Chand v Hans Raj Gurditta Mal, AIR 1969 : it has been held that a document cannot be said to
have been admitted in evidence at all unless it is endorsed under the rule.

98
Rule 5 : Endorsements on copies of admitted entries in books, accounts and records.—

(1) Save in so far as is otherwise provided by the Bankers' Books Evidence Act, 1891 (18 of 1891), where a
document admitted in evidence, in the suit is an entry in a letter-book or a shop-book or other account in current
use, the party on whose behalf the book or account is produced may furnish a copy of the entry.

(2) Where such a document is an entry a public record produced from a public office or by a public officer, or an
entry in a book or account belonging to a person other than a party on whose behalf the book or account is
produced, the Court may require a copy of the entry to be furnished—

(a) where the record, book or account is produced on behalf of a party, then by that party, or

(b) where the record, book or account is produced in obedience to an order of the Court acting of its own motion,
then by either or any party.

(3) Where a copy of an entry is furnished under the foregoing provisions of this rule, the Court shall, after causing
the copy to be examined, compared and certified in manner mentioned in r 17 of Order VII, mark the entry and
cause the book, account or record in which it occurs to be returned to the person producing it.

Rule 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 r 4, sub-rule (1), together with a statement of
its having been rejected, and the endorsement shall be signed or initialled by the Judge.

Rule 7 : Recording of admitted and return of rejected documents.—

(1) Every document which has been admitted in evidence, or a copy thereof where a copy has been substituted
for the original under rule 5, shall form part of the record of the suit.

(2) Documents not admitted in evidence shall not form part of the record and shall be returned to the persons
respectively producing them.

Rule 8 : Court may order any document to be impounded.— Notwithstanding anything contained in rule 5 or
rule 7 of this Order or in rule 17 of Order VII, the Court may, if it sees sufficient cause, direct any document or
book produced before it in any suit to be impounded and kept in the custody of an officer of the Court, for such
period and subject to such conditions as the Court thinks fit..

Rule 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, —

(a) where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and

(b) where the suit is one in which an appeal is allowed, when the Court is satisfied that the time for preferring an
appeal has elapsed and that no appeal has been preferred or, if an appeal has been preferred, when the appeal
has been disposed of:
99
Provided that a document may be returned at any time earlier than that prescribed by this rule if the person
applying therefor—

(a) delivers to the proper officer for being substituted for the original, —

(i) in the case of a party to the suit, a certified copy, and

(ii) in the case of any other person, an ordinary copy which has been examined, compared and certified in the
manner mentioned in sub-rule (2) of rule 17 of Order VII, and

(b) undertakes to produce the original, if required to do so:]

Provided also that no document shall be returned which, by force of the decree has become wholly void or
useless.

(2) On the return of a document admitted in evidence, a receipt shall be given by the person receiving it.

Rule 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 Court, the record of any other suit or proceeding, and
inspect the same.

(2) Every application made under this rule shall (unless the Court otherwise directs) be supported by an affidavit
showing how the record is material to the suit in which the application is made, and that the applicant cannot
without unreasonable delay or expense obtain a duly authenticated copy of the record or of such portion thereof
as the applicant requires, or that the production of the original is necessary for the purposes of justice.

(3) Nothing contained in this rule shall be deemed to enable the Court to use in evidence any document which
under the law of evidence would be inadmissible in the suit.

Primacy of criminal proceedings over civil proceedings.— It is a well-settled principle of law that where a civil
proceeding as well as criminal proceeding is pending, the latter should be given primacy

Rule 11 : Provisions as to documents applied to material objects.— The provisions herein contained as to
documents shall, so far as may be, apply to all other material objects producible as evidence.

100
ORDER XIV Settlement of Issues & Determination of Suit on Issues of Law or
on Issues agreed upon
Meaning of Issue : According to the Oxford English Dictionary, "issue" means a point in question; an
important subject of debate, discussion, argument or litigation.

OBJECT : The primary object of framing issues in a suit is to ascertain the controversy in the suit.

Rule 1 : Framing of issues.—

(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied by the other.

(2) Material propositions arc those propositions of law or fact which a plaintiff must allege in order to show a
right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject of distinct
issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

Meenakshi Mills Ltd. v. CIT, AIR 1957 : Issues, however, may be mixed issues of fact and law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written statements if any, and
after examination under rule 2 of Order X and after hearing the parties or their pleaders, ascertain upon what
material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and
record the issues on which the right decision of the case appears to depend.

(6) Nothing is this rule requires the Court to frame and record issued where the defendant at the first hearing of
the suit makes no defence.

Rule 2 :Court to pronounce judgment on all issues.—

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the Court shall, subject to the
provisions of sub-rule (2), 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 the 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.

(For that purpose, the court may, if it thinks fit, postpone the settlement ofthe other issues until the issues
oflaw have been decided.)

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Rule 2(1) of Order 14 provides that where issues both of law and fact arise in the same suit, notwithstanding
that a case may be disposed of on a preliminary issue, the court should pronounce judgment on all issues.

But if the court is of the 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

(i) the jurisdiction of the court; or

(ii) a bar to the suit created by any law for the time being in force.

For that purpose, the court may, if it thinks fit, postpone the settlement ofthe other issues until the issues
oflaw have been decided.

PRELIMINARY ISSUE : An issue relating to () jurisdiction of the court, or (i) bar to the suit created by law may
be treated as preliminary issue.

Rule 3 : Materials from which issues may be framed.— The Court may frame the issues from all or any of the
following materials:—

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders
of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

Rule 4 : Court may examine witnesses or documents before framing issues.—Where the Court is of opinion that
the issues cannot be correctly framed without the examination of some person not before the Court or without
the inspection of some document not, produced in the suit, it 3[may adjourn the framing of issues to a day not
later than seven days] and may (subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession or power it is by summons or other
process.

Rule 5 : Power to amend and strike out, issues.—

(1) 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.

(2) 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.]

102
Rule 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,—

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court
may direct, shall be paid by one of the parties to the other of them, or that one of them be declared entitled to
some right or subject some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to
the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the agreement and
relating to the matter in dispute.

Rule 7 : Court, if satisfied that agreement was executed in good faith, may pronounce judgment.—

Where the Court is satisfied, after making such inquiry as it deems proper,—

(a) that the agreement was duly executed by the parties,

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the
issue had been framed by the Court;

and shall, upon the finding or decision on such issue, pronounce judgment according to the terms of the
agreement; and, upon the judgment so pronounced, a decree shall follow.

103
ORDER XV Disposal of the Suit at the First Hearing
The court may at once pronounce a judgment in the following cases:

Firstly : Rule 1 : When Parties not at issue: Where at the first hearing of a suit it appears that the parties are
not at issue on any question of law or of fact, the Court may at once pronounce judgment.

Note : When the parties are not at issue on any point of facts or law, the Court may, under this rule, at once
pronounce judgment. But a Court will not be justified in disposing of a case before the date fixed for hearing
and the decree so passed will be set aside.

Secondly : Rule 2 : When One of several defendants not at issue.—

(1) Where there are two or more defendants and any one of them admits the claim of the plaintiff, the court
may pronounce judgment against such defendant. A suit will then proceed against other defendants

(2) Whenever a judgment is pronounced under this rule, decree shall be drawn up in accordance with such
judgment and the decree shall bear the date on which the judgment was pronounced..

Thirdly : Rule 3 : Where after the issues have been framed, the court is satisfied that no further argument or
evidence is required.

Rule 3 : Parties at issue.—

(1) Where the parties are at issue on some question of law or of fact, and issues have been framed by the
Court as hereinbefore provided, if the Court is satisfied that no further argument or evidence than the parties
can at once adduce is required upon such of the issues as may be sufficient for the decision of the suit, and
that no injustice will result from proceeding with the suit forthwith, the Court may proceed to determine
such issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment accordingly,
whether the summons has been issued for the settlement of issues only or for the final disposal of the suit:

Provided that, where the summons has been issued for the settlement of issues only, the parties or their
pleaders are present and none of them objects.

(2) Where the finding is not sufficient for the decision, the Court shall postpone the further hearing of the suit,
and shall fix a day for the production of such further evidence, or for such further argument as the case
requires.

Fourthly : Rule 4 : Where the summons has been issued for the final disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies.

Rule 4 : Failure to produce evidence.— Where the summons has been issued for the final disposal of the suit
and either party fails without sufficient cause to produce the evidence on which he relies, the Court may at
once pronounce judgment, or may, if it thinks fit, after framing and recording issues, adjourn the suit for the
production of such evidence as may be necessary for its decision upon such issues.

Fifthly : Where a party or his pleader makes certain admissions of facts which are sufficient to dispose ofthe
case. (Kundibai v. Vishinji Hotchand, AIR 1947)
104
ORDER XVII Adjournment
Rule 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 for reasons to be recorded in writing: Provided that no
such adjournment shall be granted more than three time to a party during hearing of the suit.]

(2) Costs of adjournment.—In every such case the Court shall fix a day for the further hearing of the suit, and shall
make such orders as to costs occasioned by the adjournment or such higher costs as the court deems fit:

[Provided that,—

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the witnesses in
attendance have been examined, unless the Court finds that, for the exceptional reasons to be recorded by it, the
adjournment of the hearing beyond the following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the circumstances are beyond the
control of that party,

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his being engaged
in another Court, is put forward as a ground for adjournment, the Court shall not grant the. adjournment unless
it is satisfied that the party applying for adjournment could not have engaged another pleader in time,

(e) where a witness is present in Court but a party or his pleader is not present or the party or his pleader, though
present in Court, is not ready to examine or cross-examine the witness, the Court may, if it thinks fit, record the
statement of the witness and pass such orders as it thinks fit dispensing with the examination-in-chief or cross-
examination of the witness, as the case may be, by the party or his pleader not present or not ready as aforesaid..

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.

[Explanation.—Where the evidence or a substantial portion of the evidence of any party has already been
recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the Court may,
in its discretion proceed with the case as if such party were present.]

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].

105
ORDER XVIII Hearing of the Suit and Examination of Witnesses
Rule 1 : Right to begin.— The plaintiff has the right to begin unless the defendant admits the facts alleged by the
plaintiff and contends that either in point of law or on some additional facts alleged by the defendant the
plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

Rule 2 : Right to begin Statement and production of evidence.—

(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party
having the right to begin shall state his case and produce his evidence in support of the issues which he is bound
to prove.

(2) The other party shall then state his case and produce his evidence (if any) and may then address the Court
generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments, if any,
submit if the Court so permits concisely and under distinct headings writter arguments in support of his case to
the Court and such written arguments shall form part of the record.

(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court, for
reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it thinks fit.]

Rule 3 : Evidence where several issues.— Where there are several issues and the burden of proving some of
which lies on the other party. In such a case, the party beginning may at his option:

(i) produce his evidence on those issues, or

(ii) reserve it by way of answer to the evidence produced by the other party.

and, in the latter case, the party beginning may produce evidence on those issues after the other party has
produced all his evidence,

and the other party may then reply specially on the evidence so produced by the party beginning;

but the party beginning will then be entitled to reply generally on the whole case.

Rule 3A : Party to appear before other witnesses.— Where a party himself wishes to appear as a witness, he
shall so appear before any other witness on his behalf has been examined, unless the Court, for reasons to be
recorded, permits him to appear as his own witness at a later stage.

In other words Rule 3A states that a party who wishes to be examined as a witness should first offer himself
for examination before the other witnesses are examined.

106
Rule 4 : Recording of evidence.—

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be supplied
to the opposite party by the party who calls him for evidence :

Provided that where documents are filed and the parties rely upon the documents, the proof and admissibility of
such documents which are filed along with affidavit shall be subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the Court, shall be taken either by the Court or by the
Commissioner appointed by it :

Note : The crossexamination and re-examination of a witness in the High Courts having original jurisdiction
shall be recorded ordinarily by the Commissioner and in Courts subordinate to the High Court, such evidence
shall be recorded either by the Court or by the Commissioner appointed by it.

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into account
such relevant factors as it thinks fit:

Provided further that in a suit tried by the High Court, the evidence shall ordinarily be recorded by the
Commissioner unless the Court directs otherwise.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or mechanically in
the presence of the Judge or of the Commissioner, as the case may be, and where such evidence is recorded by
the Commissioner he shall return such evidence together with his report in writing signed by him to the Court
appointing him and the evidence taken under it shall form part of the record of the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any witness
while under examination :

Provided that any objection raised during the recording of evidence before the Commissioner shall be recorded
by him and decided by the Court at the stage of arguments.

(5) The report of the Commissioner shall be submitted to the Court appointing the commission within sixty days
from the date of issue of the commission unless the Court for reasons to be recorded in writing extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to record the
evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services of the
Commissioner.

(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply to the
issue, execution and return of such commission under this rule. ]

Rule 5 : How evidence shall be taken In appealable cases.— In cases in which an appeal is allowed, the
evidence of each witness shall be,—

(a) taken down in the language of the Court,—

(i) in writing by, or in the presence and under the personal direction and superintendence of the Judge, or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of the Court in
the presence of the Judge.]

107
Rule 6 : When deposition to be interpreted.— Where the evidence is taken down in a language different from
that in which it is given, and the witness does not understand the language in which it is taken down, the
evidence as taken down in writing shall be interpreted to him in the language in which it is given.

Rule 7 : Evidence under Section 138.— Evidence taken down under Section 138 shall be in the form prescribed
by rule 5 and shall be read over and signed and, as occasion may require, interpreted and corrected as if it
were evidence taken down under that rule.

Rule 8 : Memorandum when evidence not taken down by Judge.— Where the evidence is not taken down in
writing by the Judge or from his dictation in the open Court, or recorded mechanically in his presence, he
shall be bound, as the examination of each witness proceeds, to make a memorandum of the substance of
what each witness deposes, and such memorandum shall be written and signed by the Judge and shall form
part of the record.

Rule 9 : When evidence may be taken in English.—

(1) Where English is not the language of the Court, but all the parties to the suit who appear in person, and
the pleaders of such of the parties as appears by pleaders, do not object to having such evidence as is given in
English, being taken down in English, the Judge may so take it down or cause it to be taken down.

(2) Where evidence is not given in English but all the parties who appear in person, and the pleaders of such of
the parties as appear by pleaders, do not object to having such evidence being taken down in English, the
Judge may take down, or cause to be taken down, such evidence in English.]

Rule 10 : Any particular question and answer may be taken down.— The Court may, of its own motion or on
the application of any party or his pleader, take down any particular question and answer, or any objection to
any question, if there appears to be any special reason for so doing.

Rule 11 : Questions objected to and allowed by Court.— Where any question put to a witness is objected to by
a party or his pleader, and the Court allows the same to be put, the Judge shall take down the question, the
answer, the objection and the name of the person making it, together with the decision of the Court thereon.

Rule 12 : Remarks on demeanour of witnesses.— The Court may record such remarks as it thinks material
respecting the demeanour of any witness while under examination

Rule 13 : Memorandum of evidence in unappealable cases.— In cases in which an appeal is not allowed, it shall
not be necessary to take down or dictate or record the evidence of the witnesses at length; but the Judge, as
the examination of each witness proceeds, shall make in writing, or dictate directly on the typewriter, or
cause to be mechanically recorded, a memorandum of the substance of what the witness deposes, and such
memorandum shall be signed by the Judge or otherwise authenticated, and shall form part of the record.
108
In non-appealable cases, the judge shall make or dictate directly on a typewriter or cause to be mechanically
recorded, a memorandum of the substance ofthe deposition of witnesses.

Rule 14 : Omitted by Act 104 of 1976.

Rule 15 : Power to deal with evidence taken before another Judge.—

(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his
successor may deal with any evidence or memorandum taken down or made under the foregoing rules as if
such evidence or memorandum had been taken down or made by him or under his direction under the said
rules and may proceed with the suit from the stage at which his predecessor left it.

(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to evidence taken in
a suit transferred under Section 24.

Rule 16 : Power to examine witness immediately.—

(1) Where a witness is about to leave the jurisdiction of the Court, or other sufficient cause is shown to the
satisfaction of the Court why his evidence should be taken immediately, the Court may, upon the application
of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in
manner hereinbefore provided.

(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as the Court
thinks sufficient, of the day fixed for the examination, shall be given to the parties.

(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall be signed
by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may then be read at any
hearing of the suit.

Rule 17 : Court may recall and examine witness.— The Court may at any stage of a suit recall any witness who
has been examined and may (subject to the law of evidence for the time being in force) put such questions to
him as the Court thinks fit.

Rule 18 : Power of Court to inspect.— The Court may at any stage of a suit inspect any property or thing
concerning which any question may arise, and where the Court inspects any property or thing it shall, as soon
as may be practicable, make a memorandum of any relevant facts observed at such inspection and such
memorandum shall form a part of the record of the suit.

Rule 19 : Power to get statements recorded on commission.— Notwithstanding anything contained in these
rules, the Court may, instead of examining witnesses in open Court, direct their statements to be recorded on
commission under rule 4A of Order XXVI ].

109
ORDER XIX AFFIDAVITS:
An affidavit is a sworn written official statement of the facts by a person who is familiar with the facts and
circumstances have taken place. The person who makes it and signs it is known as Deponent. It is
administered by a person who has the authority to regulate oaths.

Section 139 of CPC : Oath on affidavit by whom to be administered.—

In the case of any affidavit under this Code—

(a) any Court or Magistrate, or

[(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]

(b) any officer or other person whom a High Court may appoint in this behalf, or

(c) any officer appointed by any other Court which the State Government has generally or specially
empowered in this behalf, may administer the oath to the deponent.

Under Section 30 clause (c) of CPC the court has power to order any fact to be proved by affidavit.

In the affidavit, the contents are true and correct to the knowledge of the person who signed it and he has
nothing concealed material therefrom. It is duly attested by the Notary or Oath commissioner appointed by
the court of law. The duty of the notary and oath commissioner is to ensure that the signature of the
deponent is not forged. The affidavit must be paragraphed and numbered as per the provision of the code.

The declaration of the affidavit must be made only by an individual; it cannot be created by a group of
individuals or associations or any other companies.

Statement of facts mentioned in the document should not be based on mere assumptions or interferences, it
must relate to the exact facts.

The statement of facts stated in the affidavit must be sworn in the presence of a magistrate or an officer who
has the authority to administer the oaths.

The essential attributes of an affidavit are:

(i) It must be a declaration made by an individual ;

(ii) It must relate to facts;

(iii) It must be in writing;

(iv) It must be in the first person; and

(v) It must have been sworn or affirmed before a Magistrate or any other authorised officer.

110
Rule 1 : Power to order any point to be proved by affidavit.—

Any Court may at any time for sufficient reason order that any particular fact or facts may be proved by
affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court
thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for
cross-examination, and that such witness can be produced, an order shall not be made authorising the
evidence of such witness to be given by affidavit.

Rule 2 : Power to order attendance of deponent for cross-examination

(1) Upon any application evidence may be given by affidavit, but the Court may, at the instance of either
party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in Court, unless the deponent is exempted from personal appearance in Court, or
the Court otherwise directs.

Rule 3 : Matters to which affidavits shall be confined.

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to prove, except on
interlocutory applications, on which statements of his belief may be admitted: provided that the grounds
thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative
matter, or copies of or extracts from documents, shall (unless the Court otherwise directs) be paid by the
party filing the same.

Note : The verification of affidavit is a necessity. The affidavits not verified cannot be admitted in evidence.

111
Judgment & Decree | Section 33 | ORDER XX
Section 33 of CPC : Judgment and decree.—The Court, after the case has been heard, shall pronounce
judgment, and on such judgment a decree shall follow. (decree shall be in pursuance of such judgment.)

In Order 20, Rules 1 to 5, deal with Judgment and Rules 6 to 19 provide provisions in relation to decree.

Rule 1 : Judgment when pronounced.—

(1) The Court, after the case has been heard, shall pronounce judgment in an open Court,

i) either at once, or

ii) as soon thereafter as may be practicable

and 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 pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to
pronounce the judgment within 30 days from the date on which the hearing of the case was concluded

but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of
the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not
ordinarily be a day beyond 60 days from the date on which the hearing of the case was concluded, 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..

(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is specially
empowered by the High Court in this behalf:

Provided that where the judgment is pronounced by dictation in open Court, the transcript of the judgment
so pronounced shall, after making such correction therein as may be necessary, 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.— t is mandatory for the succeeding
Judge to pronounce the judgment written by his predecessor in office.

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, cannot afterwards be amended or altered except

(i) to correct clerical or arithmetical mistakes, or errors due to accidental slips or omissions (Section 152); or

(ii) on review (Section 114).

Vinod Kumar Singh v Banaras Hindu University, AIR 1988 : In a judgment pronounced in open Court but not
signed, alteration or modification of is permissible only in exceptional cases. In the absence of exceptional
circumstances such a judgment delivered in open Court must be taken to be final.
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Contents of judgment: Rules 4-5

Rule 4 : Judgments of Small Cause Courts.—

(1) Judgments of Small Cause Courts.—Judgments of a Court of Small Causes need not contain more than

(i) The points for determination.

(ii) The decision thereon.

(2) Judgments of other Courts.—Judgments of other Courts shall contain:

(i) A concise statement of the case.

(ii) The points for determination.

(iii) The decision thereon.

(iv) The reason for such decision.

Trojan & Co v Nagappa, AIR 1953 : The decision of a case cannot be based on grounds outside the pleadings of
the parties. It is the case pleaded that has to be found. Without an amendment of the plaint the Court is not
entitled to grant the relief not asked for.

Rule 5 : Court to state its decision on each issue.—In suits in which issues have been framed, the court must
record its finding on each separate issue with the reasons therefor, unless the finding upon any one or more
of the issue is sufficient for the decision of the suit.

Megh Raj v Relu, AIR 1951 : It is the duty of the Court to pronounce its findings upon all such issues as may be
necessary for the disposal of the case except where a question of jurisdiction is involved.

Virendra Pal Singh v State of UP, 2008 : Though O XX rule 5 relates to judgment and decree which are
pronounced by the Civil Court, but same principle is also applicable to writ petitions.

Rule 5A : Court to inform parties as to where an appeal lies in cases where parties are not represented by
pleaders

Except where both the parties are represented by pleaders, the Court shall, when it pronounces its judgment
in a case subject to appeal, inform the parties present in Court as to the Court to which an appeal lies and the
period of limitation for the filing of such appeal and place on record the information given to the parties.

Rule 6 : Contents of decree.— The decree shall follow the judgment, agree with it and bear

(i) the number of the suit;

(ii) the names and description of the parties and their registered addresses;

(iii) the particulars of the claim;

(iv) the relief granted;

(v) the amount of costs incurred in the suit, and by whom or out of what property and in what proportions
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they are to be paid;

(vi) the date on which the judgment was pronounced; and

(vi) the signature of the judge.

Rule 8 authorises a successor judge to sign a decree drawn up by his predecessor.

Rule 6A : Preparation of decree .— A decree should be drawn up within 15 days from the date of the judgment.
If the decree is not drawn up, an appeal can be preferred without filing a copy of the decree.

And in such a case, the copy made available to the party by the court will be considered as a decree for the
purpose of Order 41 Rule 1.

Rule 6B : Copies of judgments when to be made available.— Where the judgment is pronounced, copies of the
judgment shall be made available to the parties immediately after the pronouncement of the judgment for
preferring an appeal on payment of such charges as may be specified in the rule made by the High Court.

Rule 7 : Date of decree.— The decree shall bear date 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.

Ram Chandra Deo v Bhalu Patnaik, AIR 1950 : It is necessary to make it clear that the date of decree and the
date of signing the decree are two different things. The date of the decree must correspond with the date of
the judgment even if the date of signing it is different.

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 by 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 had.

Rule 11 : According to Order 20 Rule 11, if the decree is for payment of money, the decree may direct the
payment by installments.

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A preliminary decree can be passed by the court in the following suits as provided by the Code of Civil
Procedure, 1908

Rule 12 : Suit for possession and Mesne profit.— When there is a suit related to possession of immovable
property or for rent or mesne profit then in such cases preliminary decree can be passed.

Rule 13 : Administration Suits.— When a suit is of the nature of administration suit, then a court is empowered
to pass a preliminary decree.

Rule 14 : Suits of pre-emption.— When there is a suit for claiming pre-emption regarding sale or purchase of a
particular property then the court can pass a preliminary decree.

Rule 15 : Suit filed for dissolution of a partnership.— When there is a suit for dissolution of the partnership or
for the partnership account to be taken, then the court may pass a preliminary decree.

Rule 16 : Suits related to accounts between the principal and agent.— In a suit related to the pecuniary
transaction between the principal and agent or any other matter, if required, the court may pass a
preliminary decree.

Rule 18 : Suit for partition and separate possession.— When the suit is related to partition or for separate
possession of share then the court may pass a preliminary decree.

(h) A preliminary decree in foreclosure suit (O XXXIV, rule 2).

(i) Final decree in foreclosure suit (O XXXIV, rule 3).

(j) A preliminary decree in suit for sale (O XXXIV, rule 4).

(k) A final decree in suit for sale (O XXXIV, rule 5).

(l) A preliminary decree in redemption suit (O XXXIV, rule 7).

(m) A final decree in redemption suit (O XXXIV, rule 8).

Narayanan vs Laxmi Narayan AIR 1953 : In this case, it was said that this list aforementioned, which is given in
the CPC is not exhaustive and that preliminary decree can be used in other matters as well.

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Rule 19 : Decree when set-off or counter-claim 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.

(2) Appeal from decree relating to set-off or counter-claim.—Any decree passed in a suit in which a set-off or
counter-claim] is claimed shall be subject to the same provisions in respect of appeal to which it would have
been subject if no set-off or counter-claim had been claimed.

(3) The provisions of this rule shall apply whether the set-off is admissible under rule 6 of Order VIII or
otherwise.

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.

For the execution of decree Order XXI of the Code lays down the provisions and procedure.

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Interest | Section 34
Interest.— The term interest implies premium paid for the use of money.

Section 34 of CPC :Sub-Section (1) Where & in so far as a decree is for the payment of money, the Court may,
in the decree, order

i. additional interest on the principal sum adjudged, from the date of the suit to the date of the decree, "at
such rate as the Court deems reasonable";

in addition to

ii. any interest adjudged on such principal sum for any period prior to the institution of the suit to the date of
its institution,

iii. with further (future) interest on the principal sum adjudged from the date of the decree to the date of the
payment or to such earlier date as the Court thinks fit, at a rate not exceeding 6 %, per annum.

PROVISO : In this section proviso states that In commercial transaction the rate of such further interest may
exceed 6% per annum but shall not be more than contractual rate of interest. But when there is no
contractual Rate of interest in the contract, the rate of interest will be the same rate at which the national
bank lends money or advanced, in relation to commercial transaction.

Sub-Section (2) Where the decree is silent as regards such further (future) interest, Then it shall be Deemed to
have been refused and a separate suit shall not lie for the same.

Punjab National Bank v Sheovijoy Udyog, AIR 2011 : It is well settled principle of law that the use of the word
"may" in section 34 of the Code confers discretion on the Court to award or not to award interest or to award
interest at such rate as it deem fit.

State of Rajasthan v Raghubir Singh, AIR 1979 : The Supreme Court would not interfere where a High Court
has exercised its discretion regarding the rate of interest.

Interest prior to the date of suit.—The law on this subject is that :-

if there is a stipulation in an agreement, to pay interest at a fixed rate the Court must allow it up to the date
of suit; unless the rate is penal or excessive on account of the transaction being unfair, when the Court may
allow reasonable rate of interest.

If there is no express stipulation in the agreement, to pay interest the plaintiff is not entitled to it, except in
case of: i) mercantile usage. ii) implied agreement.

interest accrued due prior to the institution of the suit may be awarded in the following cases:

(1) when there is a contract,

(2) when there is usage of trade having the force of law,

(3) when it is contemplated by any provision of substantive law, or

(4) under the Interest Act.

It may sometimes be awarded under a rule of equity also.

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Costs : Sections 35, 35-A 35-B & ORDER XX-A
According to Black's Law Dictionary “costs is a pecuniary allowance made to the successful party for his
expenses in prosecuting or defending a suit or a distinct proceeding with a suit”

Cost is a kind of remedy and it shall not be treated as a reward for the winning party and punishment for the
losing party. The primary objective of ordering costs is to provide the litigant with the expenses incurred by
him during the litigation.

The Code of Civil Procedure provides for the following kinds of costs:

1. General costs (Section 35),

2. Compensatory costs (Section 35-A ),

3. Costs for causing delay (Section 35-B),

4. Miscellaneous costs (ORDER XX-A)

1. General costs (Section 35 of CPC), - : Costs. (1) The award of costs is entirely in the discretion of the Court
subject, however, "to such conditions and limitations as may be prescribed" and to the "provisions of any
law for the time being in force.",

and the Court shall have full power

a) to determine

i. by whom or

ii. out of what property and

iii. to what extent

such costs are to be paid and

b) to give all necessary directions for the purposes aforesaid.

The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.

A Krishna Rao v State of Orissa, AIR 1955 : Apart from the provisions of section 35 the High Court has wide
discretion in exercise of its inherent powers to award costs in suitable cases if it finds it necessary in the
interest of justice to do so.

(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in
writing.

Costs shall follow the event"-The general rule relating to costs is that costs should follow the event, i.e. Cost
follow the result of the suit. This means that the successful party is entitled to costs unless he is guilty of
misconduct or there is some good cause for not awarding costs to him..

The important points regarding the costs in CPC : Where a party successfully enforces a legal right and in no
way misconducts himself, he is entitled to costs as a matter of right. The judge can even refuse to grant costs
but for that, a reason has to be stated in writing.

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Subject to such conditions and limitations as may be prescribed.— "Prescribed" means by rules contained in, or
made under the Act: The following rules contain express provisions as to costs:

(1) Order XI, rule 3—Cost of interrogatories;

(2) Order XII, rule 2—Proof of documents;

(3) Order XXI, rule 72(3)—Application to set aside a sale;

(4) Order XXIII, rule 1(3)—Next friends and guardians;

(5) Order XXXIV, Mortgage suits;

(6) Order XXXV, rule 3—Inter-pleader suits;

(7) Order XXXV, rules 10, 11 and 16—Pauper Suits.

2. Compensatory costs (Sections 35-A), It means providing compensation to the aggrieved party by the way of
damages or rewards or as the Court deems fit. Compensatory costs are defined in Section 35A of the Code of
Civil Procedure,1908.

1) Compensatory costs are granted If in any suit

or other proceedings (including an execution proceeding) but (excluding an appeal or a revision) the claims of
the other party are false or vexatious.

Conditions.- The following conditions must exist before this section can be applied:

i) the claim or defence must be false or vexatious;

ii) objections must have been taken by the other party that the claim or defence was false or vexatious to the
knowledge of the party raising it; and

iii) such claim or defence must have been disallowed or withdrawn or abandoned in whole or in part.

2) Maximnum amount.-The maximum amount that can be awarded by the court is Rs 3000. i. e., No Court
shall make any such order for the payment of an amount exceeding 3000 rupees or exceeding the limits of its
pecuniary jurisdiction, whichever amount is less:

3) But a person against whom an order has been passed is not exempt from any criminal liability.

4) 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.]

3. Costs for causing delay (Sections 35-B), This section was introduced by the Amendment Act,1976. These are
costs which are imposed for causing the delay.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit—

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

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the Court may, for reasons to be recorded, make an order requiring such party to pay to the other party such
costs as would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of
the expenses incurred by him in attending the Court on that date, and

Unless such costs are paid, the plaintiff shall not be allowed to proceed further in his suit, if he should have
paid the costs and defendant shall not be allowed to proceed with the defence if he was liable to pay such
costs. If however, the party is unable to pay the costs due to circumstances beyond his control, the court may
extend the time.

In other words, The payment of costs has been a condition precedent for further prosecution of the suit, if the
party concerned isa plaintiff and the defence, ifhe is a defendant.

Explanation.—Where separate defences have been raised by the defendant or groups of defendants, payment
of such costs shall be a condition precedent to the further prosecution of the defence by such defendants or
groups of defendants as have been ordered by the Court to pay such costs.

(2) The costs, ordered to be paid under sub-section (1), shall not, if paid, be included in the costs awarded in
the decree passed in the suit; but, if such costs are not paid, a separate order shall be drawn up indicating the
amount of such costs and the names and addresses of the persons by whom such costs are payable and the
order so drawn up shall be executable against such persons. ] .

4. Miscellaneous costs (ORDER XX-A) Order XX-A was added by the Amending Act of 1976.— The term
miscellaneous in the literal sense is used as something which is diverse in its characteristics and cannot be
placed in any specific category. Miscellaneous costs are defined in Order XX A of the Code of Civil
Procedure,1908. These costs are also known as Specific Costs. They are granted under special circumstances
as mentioned in Rule1 of the Code of Civil Procedure,1908:

Rule 1 of ORDER XX-A : Provisions relating to certain items.— Without prejudice to the generality of the
provisions of this Code relating to costs, the Court may award costs in respect of,—

(a) expenditure incurred for the giving of any notice required to be given by law before the institution of the
suit;

(b) expenditure incurred on any notice which though not required to be given by law, has been given by any
party to the suit to any other party before the institution of the suit;

(c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;

(d) charges paid by a party for inspection of the records of the Court for the purposes of the suit;

(e) expenditure incurred by a party for producing witnesses, even though not summoned through Court; and

(f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments and decrees
which are required to be filed along with the memorandum of appeal

Question which has been asked in previous mains exam from this topic
Q.1) Write short note on compensatory costs [RJS]

Q. 2) When can a Civil Court impose costs by way of compensation & costs for causing delay? [RJS & HJS]

Q. 3) Write short note on Cost ordinary follow the event? [RJS]

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Part 2 | Execution | Section 36-74 ORDER 21 Execution of Decrees & Orders
Section 36 to 74 of CPC deals with the substantive law in respect of [execution of decree or order] And its
procedural law is provided in Order 21 of CPC.

When a person obtains a decree from a court of law against another person, his next step is to get the decree
satisfied. The proceeding by which he moves the court for satisfaction of decree is called execution
proceedings. Execution is the medium by which a decree holder constrains the judgment-debtor to do the
command of the decree or order as the case may be.

Execution : It is the process of the court by which decree or orders are enforced..

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

Section 36 provides that the provisions relating to execution of decree can also be applicable in execution of
orders.. And this Section also states that the provisions relating to [execution of a decree or order] include
[payment under a decree or order] as well.

Order 21 has been classified as follows -

1. Payment under Decree (R1, 2)

2. Courts Executing decrees (R3-R9)

3. Applications for execution (R10-R23) & the process to be applied(R.24,25).

4. Stay of executions. (R26-R29)

5. Mode of executions. (R30-R36)

(R37-R40) Arrest & Detention in civil prison (R41-R57) Attachment of Property

(R58) Adjudication of the claims and objections. (R59) Stay of Sale

6. Sale Generally. (R64-R73)

(R74-R81) Sale of movable property (R82-R96)Sale of immovable property

7. Resistance and delivery of possession.(R97-R106)

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APPLICATIONS FOR EXECUTION : Rule 10-23 of Order 21 deals with applications for execution.
The following person is authorized to apply for execution

1) Decree-holder (as defined u/s 2(3) of CPC.)

2) Legal representative of decree holder. (Legal representative is defined u/s 2(11) of CPC)

3) In the case of a jointly passed decree any of them. (see Order 21, Rule 15)

4) Transferee of a Decree. (See Section 49 of CPC & Order 21, Rule 16)

5) The person making the claim under the decree-holder.

According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder if he desires to
execute it. If a party is not approaching the court, then the court has no obligation to implement it suo motu.
The decree-holder can apply for execution of a decree, before any of the following -

1. The court passing the decree, or

2. The authority appointed in this behalf (if any), or

3. If the decree is sent to any other court, the application can be made before that court or its proper officer.

The application for execution can be made against the following persons:

1) Judgement debtor (as defined u/s 2(10) of CPC.

2) Legal representative of Judgement debtor. (Legal representative is defined u/s 2(11) of CPC)

Notice for Execution - Generally there is no provision that any notice should be given to the party against
whom the application for execution is made. But , the notice has to be given:-

 Where the application for execution has been made-

1. after 2 years from the date of decree [Order 21, Rule 22 (1)] ; or

2. against the legal representative of the deceased (Judgement debtor); or

3. in relation to a decree passed by the court of the United Kingdom or any other reciprocating territory; or

4. Where the decree pertains to the payment of money and the execution pertains to personal proceedings
against the Judgement debtor; or

5. Where the interest of decree holder has been transferred.

Order 21, Rule 11 : Contents of application

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 the 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.

Written application (2) Save as otherwise provided by sub-rule (1) every application for the execution of a
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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) where 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, or 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.

Courts by which decrees may be executed | Section 38-46| Rule 3-9 of O. 21

Q.1) What do you mean by an executing Court [RJS]

Section 38 Courts which may be execute decrees : A decree may be executed either by

i. the Court of the first instance [the court which passed it, which is defined in section 37]; or

ii. the Court to which it has been sent for execution. [r/w S. 39]

Darasana Bai v C Saroja, AIR 2014 : The Expression "Court of First Instance" means the court which passed the
decree and not the court in which the suit was originally filed.

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Q. 2) Define "Court which passed a decree" and explain the provision for transfer of decree for execution [JJS
MPJS)

Section 37 "Court which passed a decree” : The expression "Court which passed a decree" under this section
includes the following Courts:- Where the decree to be executed is a

1) decree of a Court of first instance, the proper Court to execute it is the Court of first instance.

2) decree passed by a Court of first appeal, the proper Court to execute it is also the Court of first
instance.

3) decree passed by the High Court in second appeal, then also the proper Court to execute it is the Court
of first instance.

4) Where the Court of first instance has ceased to exist, the only Court that can execute the decree is the
Court which at the time of making the application for execution would have jurisdiction to try the suit in
which the decree was passed. The application for execution must be made to that Court.

Explanation to this section provides that, the court of first instance shall have jurisdiction to execute a
decree even in the case of any area being transferred from the jurisdiction of the court of first instance to the
jurisdiction of any other court.

In such cases, the court to the jurisdiction of which such area has been transferred will also have jurisdiction
to execute the decree, provided that the said court had jurisdiction to try the said suit when the application
for execution was made.

Thus, now both the Courts would be competent to entertain an application for execution of the decree.

Limitation: The limitation period for the execution of a decree is 12 years from the date of the decree. The
period of limitation for the execution of a decree for mandatory injunction is 3 years from the date of the
decree.

Provision for transfer of decree for execution :

Section 39, Transfer of decree

Sub-section (1) sets out the following conditions in which the Court which passed a decree may, on the
application of the decree-holder, send it for execution to another Court of competent jurisdiction-

a. if the judgment-debtor carries on business, or resides or personally works for gain, within the jurisdiction
of such Court; or

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

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c. if the decree directs delivery or sale of immovable property situated outside the jurisdiction of the Court
which passed the same; or

d. if the Court which had passed the decree considers that the decree should be executed by another court,
but it shall record the reasons in writing for doing the same.

Sub-section (2) clarifies that the Court can suo motu transfer the decree for execution to another Court..

Sub-section (3) clarifies that the transferee Court must have pecuniary competence to deal with the suit in
which the decree was passed.

Sub-section (4) debars a Court which passed a decree to execute the decree against any person residing or
carrying on business or property situated beyond territorial limits of the same.

Zaz Fashion v Ut Worldwide (India) Pvt Ltd, AIR 2014 : When a decree is transferred u/s 39, it is the duty of the
transferee Court to execute it by all methods provided by the CPC. (See O XXI rules 5, 6, 7, & 9).

As per Order 21 Rule 8 of the CPC, if a decree under the provisions of Section 39 has been sent for execution to
another district, it can be executed by either the district court to which it was transferred or by a
subordinate court which has the necessary jurisdiction, to which the district court may refer it.

Section 40 Transfer of decree to Court in another State : Where a decree is sent for execution in another State,
it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.

Note : This section applies only when the "transferor" and the "transferee" Courts are both regulated by the
provisions of the Code of Civil Procedure.

Note : The word "manner" used in this section refers to the procedure under which the execution is to be
made.

Mode of Transfer and Procedure.— Reference may be made to rules 5 and 6 O XXI of the Code of Civil
Procedure.

Section 41 Result of execution proceedings to be certified : A certificate under this section has to be issued
only when the Court to which the decree is transferred for execution has executed the same and where it fails
to execute it, it must certify the circumstances for such failure.

Note : The provisions regarding certification by the transferee Court under this section are mandatory and
are of a judicial nature and not administrative.

Section 42 Powers of Court in executing transferred decree : Sub-section (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.

Sub-section (2) provides that the Court to which a decree is sent for execution enjoys the following powers:

(1) power to send the decree for execution to another Court u/s 39;

(2) power to execute the decree against the legal representative of the deceased judgment-debtor u/s 50; &
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(3) power to order attachment of a decree.

Sub-section (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.

Sub-section (4) lays down that such a Court does not have the following powers, namely.—

(1) power to order execution at the instance of the transferee of the decree; and

(2) in the case of a decree passed against a firm, power to grant leave to execute such decree against any
person, except

(a) a person who has appeared as a partner or who had admitted that he is a partner, or

(b) a person who has been individually served as a partner with summons but has failed to appear.

(See clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.)

Ques. In what manner may a decree of foreign court be executed in India ?

Ans. A combined reading of Sections 43 to 44-A shows that the Indian courts have power to execute the
decrees passed by

(1) Indian courts to which the provisions of the Code do not apply; (S 43of CPC)

(2) the courts situate outside India which are established by the authority of the Central Govt; (S 43 of CPC)

(3) revenue courts in India to which the provisions of the Code do not apply; (S 44 of CPC) &

(4) superior courts of any reciprocating territory. (S 44-A of CPC).

Note : The following countries are some of the notified reciprocating territories recognized by India –

United Kingdom, New Zealand, Bangladesh, U.A.E, Hong Kong, Singapore, Malaysia, Fiji, Trinidad & Tobago,
Papua and New Guinea.

Section 45 : Execution of Indian decrees in a foreign territory: This Section refers to the execution of decrees
of Indian Courts in a foreign territory.

It states that a Court has the power to send a decree for execution to a Court outside India which has been
established by the Central Government’s authority. It should be ensured that the State has, by notification in
the Official Gazette, declared the said section can apply to such Court. A plain reading of the aforesaid
provision yields the following features:

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

ii. The Central Govt should have established the transferee court in such foreign territory.

iii. The State Govt should have declared by notification in the Official Gazette that this section will apply to
the said foreign Court.

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The provision, therefore, prescribes the prerequisite conditions for the execution of an Indian decree outside
the country.

Questions to be determined by Court executing decree | Section 47

Q. 3) What are the questions that may be determined by the court executed a decree? Can the executing Court go
behind the decree? [DJS, HJS, BJS JJS]

Section 47 : Questions to be determined by the court executing the decree

The executing court have the power to consider each and every question which is determined while passing
the decree by the other or same court.

Conditions: -

i. All questions must arise between the parties to the suit or their representative.

ii. It must arise in the suit in which the decree was passed.

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

iv. It must be determined by the execution court.

Note : It must be noted that the questions related to the validity of a decree will not be considered as
questions relating to the execution, discharge or satisfaction of the decree.

Can the executing Court go behind the decree?

Deepa Bhargava v Mahesh Bhargava, (2009) : An executing Court cannot go behind the decree. It has no
jurisdiction to modify a decree. It must execute a decree as it is.

And It cannot entertain any objection that it is incorrect in law or on facts. Until it is set aside by an
appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the
parties.

But there are 3 cases where in the executing Court can go behind the decree. They are -

i. Where the decree is a nullity.

ii. Where the decree is ambiguous.

iii. Where the decree has been made by a court without jurisdiction.

Duties of Executing Court

i. Not to go beyond the decree.

ii. Not to question on the correctness of the decree. But if the decree prima facie appears to be vague or
ambiguous the concerned court can question the correctness of decree.

iii. If executing court found that court which passes the decree don’t have jurisdiction for the same it can
refuse to execute it.

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Note : The nature of section 47 is mandatory. This section bars separate suit. In other words, Section 47 is
supplementary to Section 11 of CPC.

Venkatasheshayya v Virayya, AIR 1958 : The rule of res judicata deals with finality of a decision of a Court on
matter actually or constructively in issue before it & bars a fresh trial of any kind on such questions in a
subsequent proceedings between the parties, while section 47 deals with the enforcement of such decisions
& enacts that the questions specified in this section shall be tried in the execution and not by a separate suit.

Transferees & Legal Representatives | Section 49-50

Section 49 : Transferee : Every transferee of a decree shall hold the same subject to the equities (if any) which
the judgment-debtor might have enforced against the original decree-holder.

The judgment-debtor is entitled to claim under this section only those equities which he had against the
original decree-holder. For example- 'A' holds a decree of Rs 5000 against 'B'. 'B' holds a decree of Rs 3000
against 'A'. 'A' transfers its decree to 'C'. 'C' cannot execute the decree against 'B' for more than Rs. 2000.

(S. 49 of CPC can be compared with S. 132 of the Transfer of Property Act, 1882,)

Q. 4) Write short note on legal representative [MPJS]

Q. 5) What the decree holder will do in the following circumstances: [RJS, UPCJ]

a) Where the judgement debtor dies before the decree is fully satisfied(see S. 50)

b) Where the legal representatives of judgement debtor, who has been brought on record, dies before the decree
is fully satisfied

Ans. 5(b) : In such cases the decree holder may execute the decree u/s 50 against the legal representative of the
deceased to the extent of the Assets of the original judgement-debtor that may have come into his hands.

c) Where the debtor dies before the decree (see S. 52)

d) Where a decree against wrong person as legal representative

Ans. 5(d) : A decree obtained by Creditor of a deceased against a wrong person as his legal representative cannot
be executed against against the estate of deceased in hands of the rightful heir-in-possession. The creditor must
obtain a fresh decree against the rightful heir.

Section 50 : Legal representative

(1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may
apply to the Court which passed it to execute the same against the legal representative of the deceased.

(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the
property of the deceased which has come to his hands and has not been duly disposed of; and, for the
purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the
application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit.

Note : The term "legal representative" has already been explained under section 2(11) of the Code.

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Note : Section 50 & sections 52 and 53 may be usefully read together.

Section 52 deals Enforcement of decree against legal representative.

Section 50 provides for the situation when the debtor dies before the execution of a decree, Whereas section
52 provides for the situation when the decree is passed directly against the legal representative.

For application of Section 52 (1),

i. the decree should have passed against the party as the legal representative of the deceased person, and

ii. it should be for the payment of money out of the property of the deceased, which is in the hands of the
legal representative.

Then such decree may be executed by the attachment and sale of such property.

Section 52 (2) empowers a creditor to execute his decree against the legal representative personally if he fails
to accounts for the properties received by him from deceased person.

Exception to section 52: Court can implement the decree against the personal property of the legal
representative provided if he is avoiding, neglecting or evading to make the payment from the property of
deceased. Where he has mis-utilized the property of the deceased and where the legal representative has
alienated the property of the deceased person.

Section 53 extends the scope of sections 50 and 52 to ancestral property in the hands of a descendant which is
liable under the Hindu Law for payment of debts of the ancestor.

Procedure in execution | Section 51-54

Q.7 What are the modes of execution of a decree? [HJS]

Ans: Rule 30-36 of Order 21 & Sec 51 of CPC related with different Modes of execution. After the decree holder
files an application for execution of decree, the executing court can implement execution..

Section 51 of C.P.C : decree can be enforced by

a. By delivery of any property specifically decreed.

b. By attachment and sale or by sale without attachment of the property.

c. By arrest and detention.

d. By appointing a receiver..

e. Any such manner which the nature of relief requires.

& the court may on the application of decree holder subject to such conditions and limitation as may be
prescribed, order execution of the decree.

Application for execution u/s 51 may be either oral (O. 21 R. 10) or written (O. 21, R. 11). The court may

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execute decree as per the choice prayed by the decree-holder or as the court may think fit. Decree holder is
Dominus Litus. It is for the Decree Holder to choose mode of execution among those available to him. Neither
the Debtor nor the Court can insist upon the Decree Holder to choose a particular mode of execution.

S. 51(a) By delivery of any property specifically decreed : Property may be of the following 2 kinds -

i) Movable property : Q.8) How is decree related to Specific movable property executed?

Ans. According to Order 21 rule 31(1) of C.P.C, when the decree is for any specific movable property, the
execution can take place in any of the following made:

1. By seizure and delivery of the property. 2. By detention of the judgement debtor.

3. By attachment of his properly. 4. By attachment and detention both.

Note : The words Specific movable do not include money and therefore a decree for money cannot be
executed under rule 31.

ii) Immovable property : Q.8) What powers does the court have regarding the execution of Immovable Property?
[BJS & JJS]

Ans: According to O. 21 rule 35 & 36 : Where the decree is for immovable property in possession of judgement
debtor or in possession of the person bound by the decree it can be executed by removing the judgement
debtor or any person bound by such decree & by delivering the Possession thereof to the decree holder.
Possession deliver in this manner is known as actual possession. But if such property is in the possession of a
tenant or other person entitled to occupy the same and not bound by the decree, the delivery of the property
should be made by affixing a copy of the warrant at some conspicuous place on the property and proclaiming
the occupant by beat of drum or other customary mode at some convenient place for the substance of the
decree regarding the property. This is known as symbolic or formal possession.

S. 51(b) By attachment and sale or by sale without attachment of the property : the court is empowered to
attach the property if it is situated within the local limits of the jurisdiction of the court. It is immaterial that
the place of business of judgement-debtor is outside the jurisdiction of the court.

The words attachment & sale in clause 'b' of S. 51 are to be read distinctively. Therefore, the attachment of
property is not a condition precedent. Hence, Sale of property without an attachment is not void. It's merely
an irregularity. Rule 54 of order 21 provides for the attachment of immovable property & the procedure for
the proclamation of such attachment.

S. 51(c) By arrest and detention : The law relating to arrest & detention in the CPC has been dealt with u/s 51,
55-59 & Rules 37-40 of Order 21.

According to clause 'c' of S. 51 arrest & detention is also a mode of executing the decree of a civil court by
putting the judgement debtor in civil prison.

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But the proviso to Section 51 is states that where the decree for payment of money, execution by detention in
civil prison shouldn't be ordered unless after giving the judgement-debtor in an opportunity of showing
cause, why he shouldn't be so detained, the court for reasons to be recorded in writing is satisfied that

i. the judgement-debtor with the object of obstructing or delaying the execution of decree

a) is likely to abscond or leave the local limits of the jurisdiction of the court; or

b) has, after the Institution of suit in which the decree was passed dishonesty transferred, concealed or
removed any part of his property, or committed any other act of bad faith in relation to Is property; or

ii. the judgement debtor has, or has had since the date of decree, the means to pay the amount of the money
of decree or some substantial part thereof & refuses / neglects / has refused / neglected to pay the same; or

iii. the decree is for the sum which the judgement-debtor was bound in a fiduciary capacity to account.

These provisions are mandatory in nature and must be strictly complied with.

S. 51(d) By appointing a receiver : Appointment of receiver is also a mode of executing the decree & such
mode of execution of decree is known as equitable execution & entirely within the discretion of the court.
Therefore it cannot be claimed as of right. So, It is an exception to the general rule which states that the court
may execute decree as per the choice prayed by the decree-holder.

Such mode of execution is considered to be an exceptional remedy & a very strong case must be made out in
support of it. & the court also must be satisfied that the appointment of receiver is likely to benefit both the
decree-holder & judgement-debtor rather than a sale of attached property.

S. 51(e) By Any such manner which the nature of relief requires

According to clause 'e' of S. 51 the last mode of execution is based on equity & is in the discretion of the court.

The execution of a decree can also be done by partition under section 54 of CPC

Section 54 of CPC : Partition of estate or separation of share: Section 54 deals with a case where though the
civil court has the power to pass a decree yet it is not competent to execute the same.

Under this section, the execution of decree shall be made by collector or any gazetted subordinate of the
Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating
to the partition, or the separate possession of shares, of such estates.

This section applies only to a case where the decree contemplates the partition of the whole of the estate
paying revenue to Government. It does not apply where the decree is for separate possession of a share of a
portion of an undivided estate.

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Q.8) How is decree related to payment executed? [MPJS]

Ans: By going through Order 21 rule 30 of C.P.C, 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 detention in the Civil Prison of
the judgment debtor or, by the attachment and sale of his property, or by both.

Q.10) How is decree for specific performance for restitution of conjugal rights or for an injunction executed? [BJS
RJS & JJS]

Ans: According to Order (21) rule (32) of C.P.C, “Where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights or for an injunction, stay has been passed, has
had an opportunity of obeying the decree and if he has wilfully failed to obey it, the decree may be enforced,

 in the case of a decree for restitution of conjugal rights:

i. By the attachment of his property..

 in the case of a decree for specific performance of a contract or for an injunction.

i. By his detention in Civil Prison; or ii. By the attachment of his property; or iii. By attachment & detention both.

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Arrest & Detention | Section 55-59 | Rules 37-40 of Order 21
Q. 1) When can a judgement debtor be sent to Civil prison for not paying the decretal amount? [RJS]

Arrest usually take place when a person is suspected of having committed a criminal offence. However,
According to clause 'c' of S. 51 arrest & detention is also a mode of executing the decree of a civil court by
putting the judgement debtor in civil prison. But it must be subject to the proviso given u/s 51 of CPC.

The law relating to arrest & detention in the CPC has been dealt with u/s 51, 55-59 & Rules 37-40 of Order 21.

The nature of these provisions is not punitive but is remedial. The whole purpose to detain a person in civil
prison is to compel a person to obey the mandate of the court when he denies to comply without any
sufficient cause. Detention in prison does not wipe out a person’s liability to comply.

The decree for arrest and detention may be passed in the following cases given under Order 21:

i. Under Rule 30, a decree for the payment of money can be executed by the arrest and detention of the
judgement debtor. (no order for detention of the judgement-debtor can be made, when the amount does not
exceed 2,000 Rs. [See S. 58(1-A)])

ii. Under Rule 31, where the decree is for a specific moveable party, it can be executed by the arrest and
detention of the judgement debtor.

iii. Under Rule 32, where the decree is for specific performance of the contract or an injunction, the court can
execute the decree by arrest and detention of the judgement debtor..

Who cannot be arrested? : There are certain classes of persons that are exempted from arrest and detention
under the various provisions of CPC. Such persons include:

i. Classes of persons, whose arrest according to the State Government, might be attended with danger or
inconvenience to the public, u/s 55(2),

ii. Women, as per Section 56,

iii. Where the decretal amount is less than two thousand rupees, u/s 58(1A).

iv. Judicial officers, as per Section 135(1),

vi. Where a matter is pending, their pleaders, mukhtars, revenue-agents, & witnesses acting in obedience to a
summons, u/s 135(2), &

vii. Members of legislatures, as per Section 135A.

Procedure to be followed : The procedure to be followed for arrest and detention is provided u/s 55.

Section 55 of CPC : Section 55(1) says that a judgement debtor can be arrested at any hour & any day in the
execution of a decree, and after such arrest, the he must be presented before the court.

However, there are certain restrictions regarding entry and time. They are as follows:

i. That no dwelling house shall be entered after sunset and before sunrise.

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ii. That no outer door shall be broken in order to enter the house unless such a house is the occupancy of the
judgement debtor, in case he refuses to prevent access thereto.

iii. Where the room is in occupancy of a woman who is not the judgement debtor and does not appear in
public due to the customs, the officer shall give reasonable time and facility to her to withdraw therefrom.

iv. Where there is a decree for the payment of money, and the judgement debtor pays the full decretal
amount and the costs of the arrest to the arresting officer, he shall not be arrested.

Notice : Under Order 21 Rule 37, a person who is to be arrested shall be given a show-cause notice to appear
before the court & give reasons as to why he should not be committed to the civil prison in execution of the
decree.

However, such notice is not necessary if the court is satisfied, by affidavit or otherwise, that the effect of
delaying the execution can lead to absconding of the jurisdiction by the judgement debtor.

If the judgement debtor does not appear before the court after serving of the notice, if the decree-holder so
requires, the court shall issue a warrant to arrest such person.

The procedure of giving show cause notice is the acknowledgement of the rule of natural justice that any
person shall not be condemned unheard (Audi alteram partem).

Under Order 21 Rule 40, it is stated that if the person appears before the court after the issuance of the notice
as given under Rule 37, the court shall hear the decree-holder for the execution of the decree and then give
the chance to the judgement holder for showing as to why he should not be arrested.

Where a judgement debtor appears before the court and shows the reasonable cause for his inability to pay
the decretal amount and the court is satisfied that he is unable to pay, the court may reject the application of
the arrest. However, if the judgement debtor could not satisfy the court against the order passed against him
for arrest and detention, the court may commit him to the civil prison, subject to the provisions of the code.

Mayadhar Bhoi v. Moti Dibya, AIR 1984 : Where a money decree has not been paid by the judgement debtor
within thirty days since that order was made, the court on the application by the decree-holder require the
judgement debtor to give an affidavit stating the particulars of his assets, and if the person disobeys such
order, he can be detained for three months.

Section 55(3) states that where a judgement debtor is arrested in execution of a decree for the payment of
money and is presented before the court, the court shall inform him to declare himself as insolvent and he
can be discharged if he has not done any act in bad faith regarding the subject of the application and if he
complies with the law of insolvency which is in force at that time.

Section 56 of CPC says that no women in shall be arrested or detained, in execution of a decree for the
payment of money.

Section 57 of CPC provides provision to give monthly allowances for subsistence of judgment-debtor for
detention by decree holder. (r/w O. 21, R. 39 of CPC) [No judgment-debtor will be arrested in execution of a
decree unless and until the decree-holder pays into the Court the subsistence allowance of the judgment
debtor as fixed by the Court. It can be fixed under section 57 according to the rank, race and nationality of the
arrested person.]

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Section 58 of CPC : Detention & Release Sub-Section 1 of S.58 : Period of detention : It will be as provided
below :-

Decretal Amount Period of detention

If the amount does not exceed 2,000 Rs. no order for detention of the judgement-debtor can be made.
[See S. 58(1-A)]

If the amount is 2,000 ⬆ - 5,000⬇ Rs cannot be detained for more than 6 weeks⬇

If the amount exceeds 5,000 Rs.⬆ cannot be detained for more than 3 months⬇

Release of judgment-debtor : Under Section 58, every person who has been detained in civil prison shall be
released before the said period of detention on the following grounds:

I. Where the decree against him has been fully satisfied,

II. Where the amount mentioned in the warrant for his detention has been paid to the police officer,

III. Where the person on whose application the person was detained requests so, or

IV. Where the person on whose application such detention was made omits to pay subsistence allowance.

But under above-mentioned clause ii & iii debtor shall not be released without the order of the court.

Q. 1) A judgement debtor is detained in civil Prison in execution of decree. whether after release his liability to
pay the debt is discharged? [RJS]

Ans : Sub-Section 2 of S.58 : A judgment-debtor released from detention under this section shall not merely
by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the
decree in execution of which he was detained in the civil prison.

Section 59 of CPC : Release on ground of illness : [The provisions of this section are based on humanitarian
considerations & shall be applied liberally since it is a beneficial provision.]

(1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on
the ground of his serious illness.

(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit
state of health to be detained in the civil prison.

(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom—

a. By the State Government, if there exists some infectious or contagious disease, or

b. By the court which granted the execution or any Court to which that Court is subordinate, on the grounds
of serious illness

(4) A judgment-debtor released under this section may be rearrested, but the period of his detention in the
civil prison shall not in the aggregate exceed that prescribed by Section 58.

Note: Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.
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Attachment | Section 60-64 | Rules 41-57 of Order 21
Q.1) Write a short note on attachment? [B&JJS] Discuss the provision in respect of attachment of property in
execution of decree?[UPJS 2015] Under what circumstances can a court attach the property or part thereof of the
defendant under the relevant provision of CPC? [HJS]

Attachment is one of the mode of execution of decree under Clause b of S.51. An executing court is competent
to attach the property if it is situated within the jurisdiction of the court. It is immaterial that the place of
business of judgement-debtor is outside the jurisdiction of the court..

Section 60-64 & Rules 41-57 of Order 21 of CPC 1908, deals with the matter of attachment of property.

In the process of attachment, the court, at the request of the decree-holder designates specific property
owned by the judgment-debtor to be transferred to the decree-holder or sold for the benefit of the decree-
holder.

Q.2) What properties of judgement debtor is liable or not liable to attachment & sale in execution of a decree?
[B&JJS, UPJS, MPJS, RJS]

Section 60 of CPC : This Section describes the property which is liable or not liable to attachment & sale in
execution of decree.

Subsection 1 of S.60 describes the property which is liable or not liable to attachment & sale in execution of
decree.

Property which can be attached : There are 9 types of properties, which are liable to attachment and sale in
execution of a decree like :

1. land; 2. Houses or other buildings; 3. goods; 4. money and bank notes;

5. cheques, bills of exchange, hundis and promissory 6. Govt securities, bonds & other securities for
notes; money;

7. debts; 8. shares in a corporation and;

9. all other saleable property, moveable or immoveable belonging to the judgmentdebtor or over which he
has a disposing power which he can exercise for his own benefit.

Therefore, it is important that the property not only belongs to the judgement-debtor but also he has
disposing power on it.

But the following particulars shall not be liable to such attachment or sale :-

(a) the necessary wearing-apparel, cooking
vessels, beds and bedding of the judgment-
debtor, his wife and children, and such personal
ornaments as, in accordance with religious
usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment-debtor is
an agriculturist, his implements of husbandry and such
cattle and seed-grain as may, in the opinion of the Court,
be necessary to enable him to earn his livelihood as such,
and such agricultural produce which are partially
exempted from liability u/s 61 of CPC;

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(c) houses & other buildings belonging to an agriculturist or a labourer or a domestic servant occupied by
him;

(d) books of account; (e) a mere right to sue for damages;

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Govt or of a local authority or of any other employer;

(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of the first 1,000 rupees & 2/3 of the remainder in execution of any decree other than a
decree for maintenance:

Example : Judgment debtor salary is 19,000/- Rs then

19,000-1000 = 18,000 ⬅ first 1000 Rs of salary shall not be subject of attachment or sale..

18,000 × 2/3 = 12,000 ⬅ 2/3 of the remainder shall not be subject of attachment or sale.

So in this way ₹ 1,000 + ₹ 12,000 = ₹ 13,000 out of total salary (₹ 19000) will not be subject of attachment or
sale.

Proviso : M. Prabhudas & Another v. U. Venkata Ramana & Another 2011: The proviso makes it clear that once
the salary of an employee was subjected to attachment for 24 consecutive months, no further attachment
can be made, in respect of that very decree, though attachment in respect of other decrees can be made after
expiry of 12 months..

This whole proviso is based on equity and good conscience

ia) 1/3 of the salary in execution of any decree for maintenance; [So here 2/3 can be attached]

(l) the pay and allowances of Army Air Force and Navy soldiers;

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

(ka) all deposits & other sums in or derived from any fund to which the Public Provident Fund Act, 1968, for
the time being applies, in so far as they are declared by the said Act as not to be liable to attachment;

Note : [UOI v. Jyoti Chit Fund & Finance, AIR 1976 : Provident Fund is not attachable].

(kb) all moneys payable under a policy of insurance on the life of the judgment-debtor;

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

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

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(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;

Note : [Rajes Kanta Roy v Shanti Debi, AIR 1957 : Contingent interest is not attachable].

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of
a decree; & ,

(p) where the judgment-debtor is a person liable for the payment of landrevenue, any movable property
which, under any law for the time being applicable to him, is exempt from sale for the recovery of an arrear of
such revenue..

Subsection (1-A) of S.60 provides that any agreement to waive any exemption shall be void.

The word "decree" in this section refers to money decree. So S. 60 does not apply to mortgage decrees. & it is
not applicable to an attachment before judgment as it is not an attachment in execution of a decree.

Section 61 of CPC : Partial exemption of agricultural produce : The state Government may by general or
special order published in the Official Gazette declare any produce of agricultural land for the purpose until
next harvest season for the due cultivation of land and support of the Judgement-debtor and his family,
exempt that property from being attached or sold in execution of the decree. [This section must be read with
Order 21 Rule 44 of CPC.]

Objective of this Section : to help an agriculturist to continue agriculture even after execution of decree.

Section 62 of CPC : Seizure of property in dwelling-house : This section deals with how movable property is to
be seized in execution?

The terms of this section are the same as those of S. 55 which deals with how an arrest of the judgment-
debtor is to be effected.

Section 63 of CPC : Property attached in execution of decrees of several Courts

(1) Where property not in the custody of any Court (is under attachment in execution of decrees of more
Courts than one), the Court which shall receive or realize such property and shall determine any claim
thereto and any objection to the attachment thereof shall be the Court of highest grade, or, where there is no
difference in grade between such Courts, the Court under whose decree the property was first attached.

(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of
such decrees.

Note : This section applies only as between Civil Courts of different grades or as between Revenue Courts of
different grades. It doesn't apply where one decree is that of a Civil Court and another that of a Revenue
Court.

Section 64 of CPC states that If any property is attached in execution of a decree, private alienation (transfer)
of such property or any interest therein, after attachment shall be void.

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Modes of Attachment are as follows: The procedure or manner in which different assets or properties are
to be attached are mentioned in Rules 41 to 57 of Order 21. These provisions may be explained by the
following chart:

Type of property Mode of attachment

Movable property (other than agricultural By actual seizure thereof. But if such property is perishable,
produce) is in possession of the possession of or the expense of keeping it is likely to exceed its value, it
judgment-debtor may be sold. [R. 43]

Movable property consisting of livestock, By leaving the same in the custody of a respectable person as
agricultural implements or other articles the "custodian" [R. 43-A]
which cannot conveniently be attached;

Movable property not in possession of the By an written order prohibiting the person in possession
judgment-debtor; thereof from giving it to the judgment-debtor [R. 46(1c)]

Debt not secured by a negotiable instrument; By an written order prohibiting the creditor from recovering
the debt & the debtor from paying the debt.[R. 46(1a)]

Share in the capital of a corporation; By an written order prohibiting the person in whosee name
the share stands from transferring it or receiving dividend
thereon[R. 46(1b)]

Share or interest in movable property By a notice to the judgment-debtor prohibiting him from
belonging to the judgment-debtor & another transferring or charging it [R. 47]
as co-owners;

Salary or allowance of a public servant or a By an order that the amount shall (subject to the provisions
private employee; of Section 60), be withheld from such salary or allowances
either in one payment or by monthly instalments.[R. 48 & 48-
A]

Partnership property; By making an order: (a) charging the interest ofthe partner in
the partnership property;

(6) appointing a receiver of the share ofthe partner in profits;

(c) directing accounts and inquiries; and

(d) ordering sale of such interests. [R. 49]

Agricultural produce; by affixing a copy of the warrant of attachment,—

(a) where such produce is a growing crop, on the land on

which such crop has grown, or

(b) where such produce has been cut or gathered, on the

threshing-floor or place for treading out grain or the like or
fodder-stack on or in which it is deposited,
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 also by affixing a copy on the house in which the judgment-
debtor ordinarily resides, carries on businesss or personally
works for gain, or last resided, carried on business or
personally worked for gain."[R. 44] & the produce shall
thereupon be deemed to have passed into the possession of
the Court.

Where application is for the attachment of growing crop, it

shall specify the time at which is likely to be harvested.[R. 45]

Negotiable instrument neither deposited in a By actual seizure and bringing it into Court. [R. 51]
court nor in the custody of a public officer;

Property in custody of court or public officer, By notice to such court or officer, requesting that such
property, and any interest or dividend thereon, may be held
subject to the order of the court. [R. 52]

Attachment of decree See [R. 53]

Immovable property; By an order prohibiting the judgment-debtor from

transferring or charging it in any manner and all persons from
taking any benefit from such transfer or charge. [R. 54]

Section 46 : Precepts [Q.3) Write short note on precepts RJS DJS]

Meaning of Precepts : A precept is an order or direction given by one official person or body to another
requiring him to do some act within his Province. The Form No.2 of Appendix E of CPC prescribes its Form.

In other words, A precept u/s 46 CPC is only a request of a Court passing the decree to another Court where
the decree holder intends to initiate execution proceedings because of the judgment debtor having
attachable properties within the jurisdiction of the Court to which decree is transferred under Order XXI Rule
6 CPC.

Upon receipt of the precept, the transferee Court shall proceed to attach the property in the manner
prescribed in regard to the attachment of property in execution of a decree:

The attachment under the precept shall not continue for more than 2 months unless-

i. the period of attachment is extended by an order of the court which passed the decree or

ii. the decree has been transferred, before the determination of such attachment, to the court by which
attachment has been made and the decree-holder has applied for an order for the sale of such property.

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Q. 4) Write short note on Garnishee order [DJS, HJS]

Garnishee order : Rule 46-A to 46-I of Order 21 outlines the procedure in case of garnishee orders.

A garnishee order is a common form of enforcing a judgment debt against a creditor to recover money. Put
simply, the court directs a third party that owes money to the judgement debtor to instead pay the judgment
creditor.

The third party is called a ‘garnishee’.

In other words, A Garnishee is a person who is the debtor of judgement-debtor & under an obligation to pay
his debt to judgement-debtor or to deliver any movable property to him.

“Garnishor” is the one in whose favour the decree is passed i.e., decree-holder (judgement- creditor). He is
the person who brings such proceedings to reach judgement’s debtor money or property held by a third party.
A garnishee order helps the debt due by the debtor of the judgement-debtor to be available to the decree-
holder without involving him in the suit.

Determination of attachment : Determination means the status of the attachment at a particular time. In
times of cases where the property has been attached but later on the court passes an order dismissing such
an execution, the court will direct the status of the attachment, i.e, whether the attachment will continue or
discontinue to exist. If then the court fails to give clear direction it is considered implied that the attachment
has been ceased.

Determination (termination) of Attachment : Rules 55-58

An attachment under in cpc will be determined in the following cases:

a) Where the decretal amount is paid or the decree is otherwise satisfied; R. 55 (a), (b).

b) Where the decree is reversed, or is set aside; R. 55(c).

c) Where the court upholds objection against the attachment makes an order releasing the property; R. 58(3).

d) Where after the attachment the application for execution is dismissed; R. 57

e) Where the attaching creditor withdraws attachment; Behari Lal v. Saral Kumar, AR 1965

f) Where the attaching creditor abandons the attachment. Balkrishan Gupta v. Swadeshi Polytex Ltd., (1985).

g) Where the decree-holder fails to do what he is bound to do under the decree; Mohd. Gaffar Baig v. Mohd.
Abdul Khaleel, AIR 1957

h) Where the suit of the plaintiff is dismissed; Or. 38 R. 9.

i) Where the attachment is ordered before judgment & the defendant furnishes necessary security; Or. 38 R. 9

j) Where there is agreement or compromise between the parties; Behari Lal v.Saral Kumar, AIR 1965

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Sale | Section 65-67 | Rules 64-96 of Order 21
Sections 65-67 of CPC deal with sale of property in execution of a decree. & in Order 21, Rule 64-73 deal with
“sale generally”; Rules 74-81, with “sale of moveable property”; & Rules 82-104 with “sale of immovable”.

Sale generally : Rule 64 to 73 of Order 21

Rule 64 of CPC : Power to order property attached to be sold & proceeds to be paid to person entitled : Any
Court executing a decree may order that any property attached by it & liable to sale, or such portion thereof
as may seem necessary to satisfy the decree, shall be sold, proceeds to be paid to person entitled under the
decree to receive the same.

Bala Krishnan v Malaiyandi Konar, AIR 2006 : the sentence "Necessary to satisfy decree" indicate that portion
of property which would be sufficient to satisfy the decree is only to be sold. This is not just a discretion but
an obligation on the Court sale without examining this aspect is illegal.

Rule 65 of CPC : Sales by whom conducted and how made : Save as otherwise prescribed, 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, & shall be made by public auction in manner prescribed.

Rule 66 of CPC : Proclamation of sales by public auction will be prepared after giving notice to the decree-
holder & the judgment-debtor.

Rule 67 of CPC : Mode of making proclamation

(1) Every proclamation shall be made & published, as nearly as may be, in the manner prescribed by rule 54,
sub-rule (2).

[According to rule 54, sub-rule (2) The order shall be proclaimed at some place on or adjacent to such
property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous
part of the property & then upon a conspicuous part of the Court-house, and also, where the property is land
paying revenue to the Government, in the office of the Collector of the district in which the land is situate,
and where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having
jurisdiction over that village.].

(2) 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.

(3) Where property is divided into lots for the purpose of being sold separately, it shall not be necessary to
make a separate proclamation for each lot, unless proper notice of the sale cannot, in the opinion of the
Court, otherwise be given.

Rule 68 of CPC : Time of sale : (except such property described in the proviso to rule 43 i.e., the property
subject to speedy and natural decay or when the expense of keeping it in custody is likely to exceed its value)
Any property that has been attached and about which the proclamation has been issued, such property can
not be sold before the expiration of

i. at least 15 days in the case of immovable property; &

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ii. at least 7 days in the case of movable property,

calculated from the date on which the copy of the proclamation has been affixed on the Courthouse of the
Judge ordering the sale.

But if the judgment-debtor gives his written consent, the property can be sold even before the expiry of
abovementioned period.

Rule 69 of CPC : Adjournment or stoppage of sale :

(1) The Court may, in its discretion, adjourn any sale hereunder to a specified day & hour, & Where such
adjournment is done by the officer conducting the sale at his discretion, he must also record the reason for
doing so;

Provided that, where the sale is made in, or within the precincts of, the Courthouse, no such adjournment
shall be made without the leave of the Court.

(2) If such adjournment of the sale is for a period of more than 30 days, then a new proclamation will be made
under Rule 67, except when the judgment-debtor gives his consent to waive it.

Rule 71 of CPC : According to this Rule, the defaulting purchaser will be responsible for the loss in resale i. e.,
the deficiency of price has occurred by reason of the auction purchaser's default.

Rule 72 of CPC : Decree-holder not to bid for or buy property without the leave of the Court :

(1) No decree-holder in execution of which property is sold shall, without the express permission of the Court,
bid for or purchase the property. [Ganpat Giri v II Addl Distt Judge, AIR 1986 : The lack of permission to bid
cannot make the sale void but it can only be a ground for having the sale set aside.]

(2) Where a decree-holder purchases, with such permission, then the purchase-money & the amount due on
the decree may, subject to the provisions of Section 73, be set off against one another.

(3) Where a decree-holder purchases, by himself or through another person, without such permission, the
Court may, if it thinks fit, on the application of the judgment-debtor or any other person whose interests are
affected by the sale, by order set aside the sale; and the costs of such application and order, and any
deficiency of price which may happen on the re-sale and all expenses attending it, shall be paid by the decree-
holder.

Rule 72-A of CPC : Mortgagee not to bid at sale without the leave of the Court

(1) Notwithstanding anything contained in rule 72, a mortgagee of immovable property shall not bid for or
purchase property sold in execution of a decree on the mortgage unless the Court grants him leave to bid for
or purchase the property.

(2) If the bid is made with the permission of the court, then the court will fix any reserved price in respect of
the mortgagee.

Rule 73 of CPC : No officer or other person having any duty to perform in connection with any sale shall,
either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold.

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Sale of Movable Property : Rule 74 to 78 of Order 21
Rules 74 to 78 deal with sale of movable property & rules 74 to 75 relate to sale of agricultural produce &
growing crops.

Section 2(13) of CPC states that “movable property” includes growing crops.

The definition of movable property is given differently in many acts. Some of the definitions are as follows:

S. 22 of IPC : “Movable property". – The words “movable property" are intended to include corporeal
property of every description, except land and things attached to the earth or permanently fastened to
anything which is attached to the earth.

Corporeal property means property which can be touched by the senses.

Section 3 (36) of the General Clauses Act defines movable property as: "Movable property shall mean
property of every description, except immovable property."

Section 2 (9) of the Registration Act, 1908 defines property as: "Moveable property' includes standing timber,
growing crops and grass, fruit upon and juice in trees, and property of every other description, except
immovable property."

Rule 74 of CPC : Sale of agricultural produce : In the case of agricultural produce, the sale shall be held on or
near the land on which the crop is standing or where the crop has been harvested, at or near the place where
the crop is lying. The court may however direct the sale to be held at the nearest place of public resort, if it is
of the opinion that the produce may fetch a better price.

Such sale shall be postponed by the court if,

(i) fair price is not offered or

(ii) the owner thereof applies for such postponement.

Except in the case of agricultural produce for which provision has been made by Rule 74, a sale of movable in
execution of a decree should ordinarily be held at some place within the jurisdiction of the court ordering the
sale. Sufficient and valid reasons ought to be shown for directing otherwise.

Lakshmibai v. Santapa (1889) : A mere contention that a higher price is likely to be offered at some other
place, is not a good and sufficient reason..

Rule 75 of CPC : Special provisions relating to growing crops

1. Where the property to be sold is growing crop, no sale shall be held until the crop is harvested.

2. Where such crop cannot be stored, the purchaser may enter the field for cutting and harvesting it..

Rule 76 of CPC : Negotiable instruments & shares in corporations : Where the property to be sold is a
negotiable instrument or a share in a corporation, such may be attached & sold through a broker authorised
by the Court or in public auction.

Here, the word – may has the meaning that the sale through a broker is permissive, and not obligatory.

Rule 77 of CPC : Order 21 Rule 77 deals with the manner of sale of movable property by public auction.
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Rule 78 of CPC : Irregularity not to vitiate sale, but any person injured may sue : A sale of movable property in
execution of a decree cannot be set aside on the ground of irregularity in publishing or conducting the sale.
Violation of provisions relating to the sale of movable property does not ipso facto make the sale void. The
petitioner has to show that substantial injury has been sustained by him.

Any person sustaining any injury by reason of any irregularity in the sale at the hands of any person may sue
him for compensation, or, if such, person is the purchaser, for recovery of the specific property and for
compensation in default of such recovery.

Sale of Immovable Property : Rule 82 to 94 of Order 21

Rule 82 of CPC : Courts competent to order sales : Any Court (Excepts a Court of Small Causes) may order sale
of immovable property in execution of a decree.

Rule 83 of CPC : Postponement of Sale : The Court may, on the application of the judgment debtor, postpone
the sale of the property to enable him to raise the amount of the decree by the mortgage, lease or private sale
of the property.

The chief object of this provision is to prevent sale of property of the judgment-debtor in cases where the
decree can be satisfied by private alienation of such property.

Note : this provision applies only before the sale has taken place and not afterwards.

K.T. Thomas v. Indian Bank, 1984 : Postponement of sale is at the discretion of the Court and cannot be
claimed by the Judgment-debtor as a right.

Deposit by Purchaser and Re-sale on Default

Rule 84 of CPC : Immediately after the sale of immovable property, the purchaser must deposit 25% of the
purchase money, unless such requirement is dispensed with by the court.

Rule 85 of CPC : The balance of the purchase money must be paid by the purchaser within fifteen days from
the date of the sale.

Rule 86 of CPC says that in case of default, the amount of deposit can be forfeited, & as per Rule 87 of CPC
property shall be resold after issuing fresh proclamation.

Therefore, In case of failure on the part of the purchaser to deposit the amount or the balance within 15 days
from auction sale, the property shall be resold and in the latter case the deposit may be forfeited to the
Government after defraying the expenses of the sale.

Thus it can be concluded that these rules are mandatory and non-compliance with the same vitiates the sale..

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Rule 88 of CPC : Bid by Co-owner: Where the property sold is a share of undivided immovable property and
two or more persons, including co-sharer, bid the same sum for it, the co-sharer has a right of pre-emption
which means the bid of the co-sharer shall prevail. The object is to enable the co-sharers in the undivided
immovable property to keep strangers out if they so desire.

Setting Aside Sale : Rules 89 to 92 deal with setting aside of sale. When a property is sold in execution of
decree, an application for setting aside may be made on any ground covered by Rules 89-92 and no other
ground, in other words the rules as to setting aside execution sale are exhaustive.

Rule 89 of CPC : Application to set aside sale on deposit

(1) Where immovable property has been sold in execution of a decree, 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 depositing in Court,—

(a) for payment to the purchaser, a sum equal to 5% of the purchase-money, &

(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.

(3) Nothing in this rule shall relieve the judgment-debtor from any liability he may be under in respect of
costs and interest not covered by the proclamation of sale.

Note : Deposits shall be unconditional. The deposit must be made within 60 days from the date of sale. The
application must be made before the sale is confirmed by the court. An appeal can be made against the order
regarding rejection of the application made u/s 89.

Q. By whom, & on what grounds can the sale of immovable property in execution of a decree, be set aside under
rule 9 of Order 21?

Ans. Under Order 21 Rule 90, the following persons may apply -

i. Decree holder; or

ii. The auction purchaser; or

iii. any other person entitled to share in a rateable distribution of assets u/s 73; ; or

iv. any other person, whose interests are affected by the sale

Under Order 21 Rule 90, sale of property can be set aside on the following grounds :

i. On the basis of material irregularity or Fraud in publishing or conducting the sale. &

ii. On the basis of substantial injury has been caused to the applicant..

Note : Mere inadequacy in price, Non-attachment of sold property & Error in attachment shall not be the

146
ground for setting aside the sale.

Note : As per Art. 127, Limiatation Act, 1963, the application for setting aside the sale must be made within 60
days from the date of sale.

R.P.A Vallimmal v. R. Palanichami Nadar, AIR 1997 : Objection to execution can be made only once & not
repeatedly.

Note : An appeal is maintainable against the order of setting aside or refusal to setting aside the sale.

Rule 91 of CPC : The purchaser at any such sale in execution of a decree may apply to the Court to set aside
the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.

Rule 92 of CPC : Where 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.

S. 65 of CPC : Purchaser's title : Where immoveable property is sold in execution of a decree and such sale has
become absolute, the property shall be deemed to have vested in the purchaser from the time when the
property is sold and not from the time when the sale becomes absolute.

Rule 93 of CPC : 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.

Note : As per Art 137, Limitation Act, 1963, An application under this rule can be filed within 3 years from the
date of the order setting aside the sale.

Rule 94 of CPC : Certificate to purchaser : Where a sale of immovable property has become absolute, the Court
shall grant a certificate specifying the property sold & the name of the person who at the time of sale is
declared to be the purchaser. Such certificate shall bear date the day on which the sale became absolute

Section 74 of CPC : RESISTANCE TO EXECUTION :

 Where the Court is satisfied that

i. the holder of a decree for the possession of immovable property or

ii. the purchaser of immovable property sold in execution of a decree

has been resisted or obstructed in obtaining possession of the property by

i. the judgment-debtor or

ii. some person on his behalf

and that such resistance or obstruction was without any just cause,

the Court may, at the instance of the decree-holder or purchaser, order the judgment-debtor or such other
person to be detained in the civil prison for a term which may extend to 30 days & may further direct that the
decree-holder or purchaser be put into possession of the property.

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Doctrine of Restitution ( या ापन का स ा त) : The right of restitution has been embodied u/s 144
of the CPC. The filing of restitution is an execution proceeding.

Meaning of Restitution : The term ‘restitution’ has not been defined under the civil procedure code. But there
is a direct mention of the term under Section 144 of the CPC. Hence, the imported definition of restitution is
‘an act of restoring a thing to its proper owner.

In other words, Restitution is the act of restoring the benefit of a decree to a party when a decree passed has
been modified, set aside or reversed.

Object : The purpose of Restitution is to restore the position (status quo) prior to the decree.

Section 144 of CPC : this section talks about 2 things, Decree and Order. It provides that when either a decree
or an order has been either of the following:

1. Varied or reversed in an Appeal; or

2. Varied or reversed in a Revision; or

3. Varied or reversed in any other proceeding; or

4. Set aside; or

5. Modified in any suit instituted for the purpose

When any of the above mentioned happens, then the party who is entitled to the benefit under the decree or
order so reversed, modified or set aside can submit an application for restitution to the court which passed
the original decree or order which has been subsequently modified, reversed or set aside.

Over this, the court will put the parties on the same position that they held before the unfavorable order or
decree was passed against them i.e. position prior to the decree against them.

Sub-Section 2 of Section 144 states that, if the remedy for restitution can be claimed by making an
application under Section 144, then a separate suit to claim the remedy shall be barred.

Hence, a party can only file an application for restitution and cannot institute a separate suit if the
circumstances are covered by section 144 of the code.

Note : When an application for restitution has been dismissed, res judicata applies and a fresh application is
not maintainable unless the dismissal was on technical grounds.

Remedies that the court can grant under Restitution : The phrase ‘the court may make any orders’ used in
section 144, shows that the court has been given wide powers for granting remedies under Restitution. This
means that the court can pass any order to achieve the ends of justice. This section provides some type of
orders that the court may typically pass over an application for restitution like, order for the refund of costs
& for the payment of interest, damages, compensation and mesne profits arising over the modification,
reversal or setting aside of decree.

The only bar to this remedy is that these remedies must arise as a consequence of the variation, setting aside
or modification of the decree or order.

Note: Restitution is in fact an execution of the new decree. It is only its connection with the original decree
that the term restoration comes into picture.

Citibank N.A. v. Hiten P Dalal, (2016) : Section 144 of the CPC is not exhaustive. The doctrine is based on
justice and equity. Its applicability, hence, cannot be confined to cases covered by any statutory provision.
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The doctrine of Restitution is based on the Latin maxim 'actus curiae neminem gravabit', which means that No
Party Should Suffer Due To The Act Of Court.

Limitation period under Article 136 of the Limitation Act, 1963 for Restitution applications : It should be made
within 12 years from the date of the appellate decree or order.

Question which has been asked in previous mains exam from this topic

Q. 1) There was a suit between A and B regarding a house. A won the suit and also obtain the possession of the
house. B filed an appeal and he won in appeal. A, however did not return the possession of house to B. Explain
Legal procedure to obtain the possession of the house by B? [UPPCSJ]

Ans. B is entitled u/s 144 of CPC, to restitution of the property, even though there is no direction for restitution in
the decree of the appellate court. So B can submit an application for restitution u/s 144 of CPC, to the court which
passed the original decree or order, which has been subsequently modified, reversed or set aside.

(for further explanation you can add the points which has been provided in the topic of Doctrine of
Restitution)

Q. 2) Mention the provision which govern restitution? [RJS] Write short note on restitution? [RJS] What is the
doctrine of restitution? [HJS & UPPCSJ]. Explain and illustrate the principle of restitution? Is an order granting
restitution appealable? [HJS]

(for explanation you can add the points which has been provided in the topic of Doctrine of Restitution)

Ans. illustration : There was a suit between A and B regarding a house. A won the suit and also obtain the
possession of the house. B filed an appeal and he won in appeal. A, however did not return the possession of
house to B. B is entitled u/s 144 of CPC, to restitution of the property, even though there is no direction for
restitution in the decree of the appellate court. So B can submit an application for restitution u/s 144 of CPC, to
the court which passed the original decree or order, which has been subsequently modified, reversed or set aside.

Appeal : An appeal can be made against the order of Restitution as the determination of a question u/s144 has
been expressly deemed as a decree u/s 2(2) of the Code & Second appeal also lies on a "substantial question of
law.

Q. 3) Who may apply for restitution? Against whom restitution can be granted? [HJS]

Ans. The party who is entitled to benefit out of the reversed decree can file an application for restitution.

Restitution can be granted against the parties to the suit or their representative or assignee but not against the
surety.

Q. 4) Which Court can grant the order of restitution?

Ans. The order of Restitution can only be given by the initial court which has passed the order or decree in the
suit.

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ORDER XXII Death, Marriage and Insolvency or Parties
Order of abatement of a suit is a decree.

Order 22 deals with the creation, assignment or devolution of interest during the pendency of suits. It also
applies to appeals, but not to execution proceedings. (r/w S. 50 & 52 of CPC & S. 37 of Contract Act.)

Such creation, assignment or devolution may arise in the following circumstances:

(i) Death of a party (Rules 1 to 6, 10-A);

(ii) Marriage of a party (Rule 7);

(iii) Insolvency of a party (Rule 8); or

(iv) Assignment of interest (Rule 10).

(i) Death of a party : Order 22, Rules 1-6, 9 & 10-A relate to death of a party, ie. plaintiff or defendant &
consequences of such death.

Rule 1 : No abatement by party's death, if right to sue survives : if the right to sue survives, then the suit shall
not be abated due to the death of the plaintiff or the defendant.

Abatement Means suspension or termination of proceedings in an action for want (lack) of proper parties. In
legal terminology, abatement means elimination, cessation or discontinuation.

Right to sue is a legal right of every person which entitles him to move the court whenever there is an
interference with his legal rights.

What is Right to sue? Smt Phoolrani v. Naubatarai AIR 1970 : According to the decision of the Supreme Court,
the right to a suit means the right to seek relief.

Note : "Right to sue" will not survive to or against his representative in cases of personal action. As the
maxim actio personalis moritur cum persona (A personal action dies with the person) does not apply only to
suits in those cases where the plaintiff dies during the pendency of the suit but also to cases where the
plaintiff dies during the pendency of appeal.

In case of tort the maxim actio personalis moritur cum persona, is generally applicable and therefore, on the
death of either party the right to sue will come to an end

Rule 2 : No Abatement if Multiple Plaintiffs or Defendants : If there are several plaintiffs in a suit filing a case
on more than one defendant, there are multiple parties in a suit. Now, if one of the plaintiffs and/or one of the
defendants died before the suit is completely disposed of, the suit shall not abate but continue by the
plaintiff(s) who are alive against the defendant(s) who are alive.

Rule 3 : Procedure in case of death of one of several plaintiffs or of sole plaintiff.

if any one of the several Plaintiff dies and the right to sue does not survive in favour of to surviving plaintiff or
plaintiffs alone; or

if a sole plaintiff or sole surviving plaintiff dies and the right to sue survives

the court shall proceed with the case by making the legal representative of the deceased plaintiff a party.
150
If there is only one plaintiff and he dies and the right to sue survives, then in such a situation, if no application
is made within the time period prescribed by law, the suit shall be abated as far as the deceased plaintiff is
concerned.

So, in any of the above circumstances, if the legal representatives desire to continue the legal proceedings,
they need to file an application before the court to substitute them as the parties for the deceased plaintiffs.
The application must be filed within 90 days of the death of the plaintiff.

Rule 4 : Procedure in case of death of one of several defendants or of sole defendant :

If one of the several defendants dies and the right to sue survives, the court shall make the legal
representative of the deceased defendant, a party and shall proceed with the suit.

If there is only one defendant and he dies and the right to sue survives, then in such a situation, if no
application is made, the suit shall be abated against the deceased defendant.

So, in of the above circumstances, it is the option of the plaintiff to substitute the parties.

In a case where the deceased defendant had not filed the written statement or failed to appear before the
court on the dates fixed for hearings, the court may exempt the plaintiff from substituting the defendant and
may pass any judgment in favour of the plaintiff and against the deceased defendant which the court could
have passed if the defendant was alive. Such judgments can be executed against the legal representatives of
the defendant.

Rule 4-A : Procedure When No Legal Representative Present : if the deceased party has no legal
representative or any legal heir, then

i. one of the parties to the suit who are alive may file an application before the court to continue the
proceedings in the absence of the deceased and any order made against or in favour of the deceased party
may be executed according to the orders of the court. or

ii. the court may appoint an administrator-general or any other officer to represent the estate of the
deceased person in the ongoing case.

Rule 5 : Whether a person is or is not the legal representative of a deceased plaintiff or a deceased defendant
such question shall be determined by the court.

Rule 6 : if the death of any party to suit occurs after the hearing is over but before pronouncement of
judgment in the suit, then provisions of rules 2, 3, and 4 of Order 22 will not apply. that is to say, there shall
be no abatement on account of situation stated above. The court shall pronounce the judgement
Notwithstanding the death Of the either party And such judgement shall have the same force and effect as if
it had been pronounced with before the death took place.

Rule 9 : Effect of abatement or dismissal (r/w S. 11 & 12 of CPC)

1. Where a suit abates or is dismissed under Order, no fresh suit shall be brought on the same cause of action..

2. However, an application for an order to set aside the abatement or dismissal; and if it is proved that he was
prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or
dismissal upon such terms as to costs or otherwise as it thinks fit..

Note : Order to refuse to set aside a batment order dismissal of suit under order 22 rule 9 is appeable

Rule 10-A : Duty of pleader to communicate to Court death of a party : rule 10-A casts a duty on the
respondent's counsel to inform the court about deceased respondent.

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(ii) Marriage of a party : Rule 7 : Suit not abated by marriage of female party :
The marriage of a female plaintiff or defendant shall not cause the suit to abate, but the suit may
notwithstanding be proceeded with to judgment, and, where the decree is against a female defendant, it may
be executed against her alone. If her husband is by law liable for her the debts, the decree may, with the
permission of the Court, be executed against him.

(iii) Insolvency of a party : Rule 8 : When plaintiffs insolvency bars suit : The insolvency of a plaintiff in
any suit which the assignee or receiver might maintain for the benefit of his creditors, shall not cause the suit
to abate, unless such assignee or receiver declines to continue the suit or (unless for any special reason the
Court otherwise directs) to give security for the costs thereof within such time as the Court may direct.

(iv) Assignment of interest : Rule 10 : The present rule being a residuary one makes a provision for
cases of assignment, creation and devolution of interest other than those dealt with under rules 2,3,4,7 and 8
of this Order.

It states that If during pendency of the suit, any interest in the suit is transferred to another person by the
plaintiff or the defendant, the suit may, with leave of the Court, be continued by or against the person to or
upon whom such interest has come or devolved..

Rule 11 : In the application of this Order to appeals, so far as may be, the word "plaintiff' shall be held to
include an appellant, the word "defendant" a respondent, and the word "suit" an appeal.

Rule 12 : Rules 3, 4 and 8 shall not apply to execution proceedings

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ORDER XXIII [Withdrawal & Adjustment of Suits]
Order 23 deals with withdrawal and compromise of suits.

It provides for 2 types of withdrawals:

(i)Absolute withdrawal, ie. withdrawal without the permission of the court; and

(i) Qualified withdrawal, ie. withdrawal with the permission of the court.

Rule 1(1) provides for withdrawal of suit without the leave of the court. Rule 1(1) states that the plaintiff may,
at any time after the institution of a suit, abandon his suit or abandon a part of his claim as against all or any
of the defendants.

Rule 1(2) But where the plaintiff is a minor or insane, it will not be done without the permission of the court,
the affidavit of his next friend will be given along with the application for the permission of the court.

Rule 1(3) permits withdrawal of suit with the leave of the court & states that, where the Court is satisfied,—

(a) that a suit must fail by reason of some formal defect, or

(b) that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of
a suit or part of a claim,

it may, on such terms as it thinks fit, grant the plaintiff permission to withdraw from such suit or such part of
the claim with liberty to institute a fresh suit in respect of the subject-matter of such suit or such part of the
claim.

The power of the court to accept or reject the withdrawal of a suit is discretionary. Such permission may also
be given on the application of the party or by suo motu..

Rule 1(5) states that, where there are more than one plaintiff and one of them wants to withdraw the suit, he
cannot withdraw without the consent of the remaining plaintiffs.

Anil Kumar Singh v. Vijay Pal Singh 2017 : Defendant cannot Object Plaintiff’s Application for Withdrawal of
Suit.

Effect of withdrawing suit with or without permission of Court : Where the plaintiff withdraws his suit
unconditionally without the leave of the court he cannot institute fresh suit in respect of the same subject
matter. But where he withdraws the suit with the leave of the court, fresh suit for the same subject-matter is
not barred.

Rule 1-A : When transposition of defendants as plaintiffs may be permitted

Rule 2 : Limitation law not affected by first suit : Where a suit has been withdrawn with the liberty to institute
a fresh suit, under provisions of rule 1, the law of limitation is applicable on second suit also and the plaintiff
is not entitled to deduct from the period of limitation the time taken up by the withdrawn suit

Compromise of Suit : [Rules 3-3-B]

The term "compromise" essentially means settlement of differences by mutual consent. In such process, the
adversarial claims come to rest. After the institution of the suit, it is open to the parties to compromise,
adjust or settle it by an agreement or compromise.

Rule 3 states that

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i. where the court is satisfied that a suit has been adjusted wholly or in part by any lawful agreement in
writing and signed by the parties; or

ii. where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the
suit,

the court shall record such agreement, compromise or satisfaction and pass a compromise decree
accordingly.

Conditions : Following conditions must be satisfied before a consent decree is passed:

i. There must be an agreement or compromise;

ii. It must be in writing and signed by the parties;

iii It must be lawful;

iv It must be recorded by the court; and

v. A compromise (consent) decree must have been passed

S. 96(3) of CPC states that no appeal lies against a decree passed by the court with consent of parties

Note : Revision lies against an order recording or refusing to record compromise.

Who may record compromise? A compromise, adjustment or satisfaction may be recorded by the court where
the proceedings are pending. In case of suit, it can be recorded by the trial court. In case of appeal or revision,
such action can be taken by appellate or revisional court. Where compromise has been arrived at in execution
proceedings, it is the executing court which can record such compromise.

Compromise on behalf of minor : No next friend or guardian of a minor shall, without the leave of the court,
enter into any agreement or compromise on behalf of the minor with reference to the suit, unless such leave
is expressly recorded in the proceedings.

Rule 3-A states that no suit can be filed to set aside a compromise decree on the ground that it is not lawful.

Suraj Kumari v. District Judge Mirzapur 1991 : Provisions of rule 3A of order 23 are not applicable to strangers.

Rule 3-B states that no agreement or compromise in a representative suit can be entered into without the
leave of the court. Before granting such leave, notice to the persons interested should be given by the court.

Note : a compromise decree cannot operate as res judicata" Such a decree, however, may create an estoppel
between the parties. [Pulavarthi Venkata v. Valluri Jagannadha, AIR 1967]

Rule 4 : Proceedings in execution of decrees shall not be affected provisions of Order 23.

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Interim order : The term interim order refers to an order issued by a court during the
pendency of the litigation.

According to the dictionary meaning. "interim" means "for the time being", "in the meantime",
"meanwhile", "temporary", "provisional', "not final", "intervening".

Interim or interlocutory orders are those orders passed by a court during the pendency of a suit or proceeding
which do not determine finally the substantive rights and liabilities of the parties in respect ofthe subject-
matter of the suit or proceeding.

Such interim orders under CPC may be summarised as:

(i) Payment in Court: Order 24 (ii) Security for Costs: Order 25

(iii) Commissions: Order 26 (Sections 75 to 78)

Supplementary Proceedings (Sections 94 to 95) & (Orders 38 to 40)

(iv) Arrest before Judgment: Order 38, RULES 1-4

(v) Attachment before Judgment: Order 38, RULES 5-13

(vi) Temporary Injunctions: Order 39, RULES 1-5

(vii) Interlocutory Orders: Order 39, RULES 6-10

(viii) Receiver: Order 40

Section 94 of CPC : Supplemental proceedings : In order to prevent the ends of justice from being
defeated the Court may, if it is so prescribed,—

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not
give security for his appearance, and if he fails to comply with any order for security commit him to the civil
prison;(Order 38, Rule 1 to 4).

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same
at the disposal of the Court or order the attachment of any property; (Order 38, Rule 5 to 13)

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to the civil
prison and order that his property be attached and sold; (Order 39)

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and selling his
property; (Order 40)

(e) make such other interlocutory orders as may appear to the Court to be just and convenient. (O. 24, 25, 26,
38, 39 & 40)

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Under Section 94(e) of the Code of Civil Procedure, it is provided that after the suit is instituted by the
plaintiff and before it is finally disposed of, the court may make interlocutory orders as may appear to the
court to be just and convenient. Such orders can be in nature of

i. certain payments to be paid (order 24),

ii. certain security for costs (order 25),

iii. commissions (order 26), and

iv. Arrest and attachment of property before judgement (order 38).

v. temporary injunctions (order 39), vi. appointment of a receiver (order 40).

ORDER XXIV Payment into Court

Order 24 provides for the deposition of amount (in the case of recovery of debts or damages) in the court.

Rule 1 : Deposit by defendant of amount in satisfaction of claim.—The defendant in any suit to recover a debt
or damages may, at any stage of the suit, deposit in Court such sum of money as he considers a satisfaction in
full of the claim.

Note : This rule makes a provision of payment into the Court at any stage of the suit, in satisfaction of the
claim after the suit has been instituted but before a decree is passed in the suit. This rule is applicable to all
suits instituted to recover debt or damages.

Rule 2 : Notice of deposit.— Notice of the deposit shall be given through the Court by the defendant to the
plaintiff, and the amount of the deposit shall (unless the Court otherwise directs) be paid to the plaintiff on
his application.

Rule 3 : Interest on deposit not allowed to plaintiff after notice.— No interest shall be allowed to the plaintiff
on any sum deposited by the defendant from the date of the receipt of such notice, whether the sum
deposited is in full of the claim or falls short thereof.

Rule 4 : Procedure where plaintiff accepts deposit as satisfaction in part.—

(1) Where the plaintiff accepts such amount as satisfaction in part only of his claim, he may prosecute his suit
for the balance; and, if the Court decides that the deposit by the defendant was a full satisfaction of the
plaintiff's claim, the plaintiff shall pay the costs of the suit incurred after the deposit and the costs incurred
previous thereto, so far as they were caused by excess in the plaintiff's claim.

(2) Procedure where he accepts it as satisfaction in full.—Where the plaintiff accepts such amount as
satisfaction in full of his claim, he shall present to the Court a statement to that effect, and such statement
shall be filed and the Court shall pronounce judgment accordingly; and, in directing by whom the costs of
each party are to be paid, the Court shall consider which of the parties is most to blame for the litigation.

Illustration (a) A owes B Rs. 100. B. sues A for the amount, having made no demand for payment and having
no reason to believe that the delay caused by making a demand would place him at a disadvantage.

On the plaint being filed, A pays the money into Court, B accepts it in full satisfaction of his claim, but the
Court should not allow him any costs, the litigation being presumably groundless on his part.

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Illustration (b) B sues A under the circumstances mentioned in illustration (a). On the plaint being filed, A
disputes the claim Afterwards A pays the money into Court. B accepts in full satisfaction of his claim. The
Court should also give B his cast of suit. A's conduct having shown that the litigation was necessary.

Illustration (c) A owes B Rs. 100, and is willing to pay him that sum without suit.- B claims Rs. 150 and sues A
for that amount. On the plaint being filed, A pays Rs. 100 into Court and disputes only his liability to pay the
remaining Rs. 50. B accepts the Rs. 100 in full satisfaction of his claim. The Court should order him to pay A's
costs.

ORDER XXV Security for Costs

Rule 1 : When security for costs may be required from plaintiff.— Under this rule the Court may order the
plaintiff, at any stage of the suit, for reasons to be recorded to give within the time fixed by it security for the
payment of all costs incurred or likely to be incurred by any defendant. Such an order may be made by the
Court either suo moto that is of its own motion or on the application of the defendant.

In the following circumstances, however, the court shall make such order:

(i) where the plaintiff resides outside India or where there are two or more plaintiffs and all of them reside
outside India; and

(ii) where the sole plaintiff or none of the plaintiffs has sufficient immovable property within India other than
the suit property.

(note : This rule provides for taking of security for the costs of the suit. Order 41 rule 10 provides for the
taking of security for the costs of appeal. The object of the rule is to provide protection for the defendant in
certain cases where, in the event of success, he may have no difficulty in realising his costs from the plaintiff.)

Rule 2 : Effect of failure to furnish security.—

(1) If the security is not furnished within the time fixed or extended, the court shall dismiss the suit unless the
plaintiff or plaintiffs are permitted to withdraw therefrom..

(2) Where a suit is dismissed under this rule, the plaintiff may apply for an order to set the dismissal aside and,
if it is proved to the satisfaction of the Court that he was prevented by any sufficient cause from furnishing
the security within the time allowed, the Court shall set aside the dismissal upon such terms as to security;
costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit.

(Sub-rule (2) of Rule 2 empowers the court to restore the suit dismissed under sub-rule (1).)

(3) The dismissal shall not, however, be set aside without giving notice to the defendant..

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ORDER XXVI Commissions Section 75-78

Part 3 | Incidental Proceedings | (Commissions | Section 75-78)

Sections 75 to 78 deal with the powers of the court to issue commissions and detailed provisions have been
made in Order 26 of the Code.

The power of the court to issue 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 (suo motu).

Section 75 of CPC : Power of Court to issue commissions.—(imp for Pre)

Subject to such conditions and limitations as may be prescribed,

the Court may issue a commission—

(a) to examine any person; (Order 26 Rules 1-8)

(b) to make a local investigation; (Order 26 Rules 9-10)

(c) to examine or adjust accounts; (Order 26 Rules 11-12)or

(d) to make a partition; (Order 26 Rules 13-14)

(e) to hold a scientific / technical / expert investigation; (Order 26 Rule 10-A)

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the
Court pending the determination of the suit; (Order 26 Rule 10-C)

(g) to perform any ministerial act.(Order 26 Rules 10-B)

Rules 15 to 18-B of O XXVI deals with General Provisions in respect of commissions

Section 75 is not exhaustive but illustrative so the court may issue Commission for any other purpose also

Commission to examine any person; (Order 26 Rules 1-8) Sec 75(a) (imp for
Mains) Commission to examine witnesses
The court may issue a commission for the examination on interrogatories or otherwise ofany person in the
following circumstances:

(RULE 1, 4, 4A, 5 of ORDER 26)

[a) if the person to be examined as a witness resides within the local limits ofthe court's jurisdiction, and

i. who is exempted under this Code from attending the Court or

ii. who is from sickness or infirmity unable to attend it:] (Rule 1 Order 26)

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[b) if the person to be examined as a witness resides within the local limits ofthe court's jurisdiction, and his
in the interest of justice, or for expeditious disposal of the case, or for any other reason, his examination on
commission will be proper;] (Rule 4A Order 26)

(Rule 4A was nserted by the CPC (Amendment) Act, 1999 (46 of 1999).)

[c) if he resides beyond the local limits of the jurisdiction of the court; or

d) if he is about to leave the jurisdiction of the court before the date on which he is required to be examined in
Court ;

e) if he is in the service of the Government & cannot, in the opinion of the Court, attend without detriment to
the public service ;] (Rule 4 Order 26): or

[f) if he is residing out of India and the court is satisfied that his evidence is necessary] .(Rule 5 Order 26)

Section 77 of CPC : Letter of request (imp for Pre)

In lieu of issuing a commission the Court may issue a letter of request to examine a witness residing at any
place not within India.

Rule 2 : Order for commission.— An order for the issue of a commission for the examination of a witness may
be made by the Court either of its own motion or on the application, supported by affidavit or otherwise, of
any party to the suit or of the witness to be examined.

Rule 3 : Where witness resides within Court’s jurisdiction.—A commission for the examination of a person who
resides within the local limits of the jurisdiction of the Court issuing the same may be issued to any person
whom the Court thinks fit to execute it.

Section 76 of CPC : Commission to another Court.—

(1) A commission for the examination of any person may be issued to any Court (not being a High Court)
situate in a State other than the State in which the Court of issue is situate and having jurisdiction in the place
in which the person to be examined resides.

(2) Every Court receiving a commission for the examination of any person under sub-section (1) shall examine
him or cause him to be examined pursuant thereto, and the commission, when it has been duly executed,
shall be returned together with the evidence taken under it to the Court from which it was issued, unless the
order for issuing the commission has otherwise directed, in which case the commission shall be returned in
terms of such order.

Rule 6 : Court to examine witness pursuant to commission : Every Court receiving a commission for the
examination of any person shall examine him or cause him to be examined pursuant thereto.

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Section 78 of CPC : Commissions issued by foreign courts : Subject to such conditions and limitations as may
be prescribed, the provisions as to the execution and return of commissions for the examination of witnesses
shall apply to commissions issued by or at the instance of—

(a) Courts situate in any part of India to which the provisions of this Code do not extend; or

(b) Courts established or continued by the authority of the Central Government outside India; or

(c) Courts of any State or country outside India.]

Rule 7 : Return of commission with depositions of witnesses : Where a commission has been duly executed, it
shall be returned, together with the evidence taken under it to the Court from which it was issued, unless the
order for issuing the commission has otherwise directed, in which case the commission shall be returned in
terms of such order; and the commission and the return thereto and the evidence taken under it shall subject
to the provisions of rule 8 form part of the record of the suit.

Rule 8 : When depositions may be read in evidence

Evidence taken under a commission shall not be read as evidence in the suit without the consent of the party
against whom the same 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 any of the circumstances mentioned in clause (a),
and authorizes the evidence of any person being read as evidence in the suit, notwithstanding proof that the
cause for taking such evidence by commission has ceased at the time of reading the same.

Commission to make local investigation; (Order 26 Rules 9-10)Sec 75(b)

Rule 9 : 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 or clarifying any matter in dispute, or

(b) ascertaining the market value of any property or the amount of any mesne profits or damages or annual
net profits.

Note : It also helps the court in deciding the question in controversy pending before it, e.g., whether the suit
premises is really occupied by the tenant or by strangers.

The Allahabad High Court has held in Gajraj v Ramadhar, AIR 1975 that the appellate Court has the power to
issue a commission for local inspection in the same manner in which a trial Court can act under O XXVI, Rule 9.

Rule 10 : Procedure of Commissioner

(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the
evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the
Court.

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Report and depositions to be evidence in suit

(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report)
shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the
Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of
the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has
made the investigation.

Commissioner may be examined in person

(3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct
such further inquiry to be made as it shall think fit.

Commission to examine & adjust accounts; (Order 26 Rules 11-12)Sec 75(c)

Rule 11 : 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.

Rule 12 : The court, for this purpose, shall issue necessary instructions to the Commissioner. The proceedings
and the report (if any) ofthe Commissioner shall be evidence in the suit.

Commission to make partition; (Order 26 Rules 13-14)Sec 75(d)

Rule 13 : Where a preliminary decree for partition of immovable property has been passed, the court may
issue a commission to such person as it thinks fit to make a partition or separation according to the rights
declared in such decree.

Rule 14 : The Commissioner shall, after such inquiry as may be necessary, divide the property into the
required number of shares and allot them to the parties. He will then prepare a report appointing the share of
each party and distinguishing the same by metes and bounds and transmit it to the court. The court shall,
after hearing the objections of different parties, make the final allotment.

Commission to hold a scientific / technical / expert investigation; (Order 26

Rule 10-A);lSec 75(e)
When the Court has to conduct a scientific investigation, the Court can appoint a commissioner who will then
be responsible for such investigation. For example, to identify the substance used as a raw material in the
subject matter, the Court may issue commission to hold scientific investigation.

After conducting such investigation the commissioner has to submit the report within the time prescribed by
the Court.

Commission to perform any ministerial act.; (Order 26 Rule 10B)Sec 75(g)

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

Ministerial act : An act performed without the independent exercise of discretion or judgment. It is
sometimes loosely used to describe an act that is neither judicial nor legislative. In that sense the term is
used interchangeably with 'executive' or 'administrative' act.

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Commission to conduct sale; (Order 26 Rules 10C)Sec 75(f)
Suppose the subject matter of a suit is a movable property which cannot be preserved by the commissioner
and if it is not sold, its value cannot be recovered. Therefore, the Court appoints a commissioner who is given
the responsibility to sell the property and submit a report along with the proceeds received from the sale of
such property..

Bandhua Mukti Morcha v. Union ofIndia, (1984) : The provisions to issue commissions under the Code of Civil
Procedure are exhaustive and, hence, the court cannot exercise inherent powers under Section 151 for the
purpose. The Supreme Court or High Courts under the Constitution can exercise plenary powers to issue a
commission for any purpose.

Rules 15 to 18-B of O XXVI deals with General Provisions in respect of

commissions
Whether the commissioner will be entitled to a Remuneration? There is no provision in the CPC which
expressly provides for remuneration to the commissioner but Rule 15 of order 26 provide for the expenses
which might be incurred by the commissioner.

Rule 15 : Expenses of commission to be paid into Court : Before issuing any commission under this Order, the
Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be, within a
time to be fixed, paid into Court by the party at whose instance or for whose benefit the commission is issued.

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. Commissioner has the authority to examine the parties and the witnesses and any other person who the
commissioner thinks can give evidence in the matter referred to him.

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

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

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

What are the limitations on the commissioner?

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

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ORDER 38 Arrest and attachment of property before judgement

ARREST BEFORE JUDGEMENT | ORDER 38 RULES 1-4

Order 38 Rules 1 to 4 deals with the arrest before judgement and the grounds on which such can be made.

Rule 1 : Where at any stage of a suit, other than a suit of the nature referred to in Section 16, clauses (a) to (d),
the Court is satisfied, by affidavit or otherwise, exists two situations.

Firstly, that the defendant, with intent

i. to delay the plaintiff, or ii. to avoid any process of the court, or iii. to obstruct or delay the execution of
any decree that may be passed against him

 has absconded or

 left the local limits of the jurisdiction of the court or,

 is about to leave or abscond the local limits of the jurisdiction of the court or

 has disposed off or removed from the local limits of the jurisdiction of the court his property or any
part thereof.

Secondly, when the defendant is about to leave India under circumstances affording reasonable probability
that the plaintiff will or may thereby be obstructed or delayed in the execution on any decree that may be
passed against the defendant in the suit,

the court may issue a warrant to arrest the defendant & bring him before the court to show cause why he
shouldn't furnish security for his appearance.

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the
warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be
held in deposit by the Court until the suit is disposed of or until the further order of the Court.

Revision : An order of arrest made under Rule 1 of Order 38 can be said to be a "case decided" u/s 115 of the
Code and is revisable.

Appeal : An order passed under O38, R, 2, 3 or 6 is appealable (O. 43, R. 1a)

Where arrest before judgment not allowed?

1. An order for arrest of a defendant before judgment cannot be obtained in any suit for land or immovable
property specified in clauses (a) to (d) of Section 16 of the Code.

2. Arrest before judgment also cannot be allowed to convert unsecured debt into a secured debt or to ensure
easy execution of decree."

Security: Rules 2-4

Rule 2 : (1) Where the defendant fails to show cause why he should not furnish security for his appearance,
the court shall order him either
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i. to deposit in court money or other property sufficient to answer the claim against him, or

ii. to furnish security for his appearance at any time when called upon while the suit is pending and until
satisfaction of any decree that may be passed against him in the suit, or

make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the
proviso to the last preceding rule.

(2) Every surety for appearance of a defendant shall bind himself, in default of such appearance, to pay any
sum of money which the defendant may be ordered to pay in the suit.

Rule 3 : Procedure on application by surety to be discharged.—

(1) A surety for the appearance of a defendant may at any time apply to the Court in which he became such
surety to be discharged from his obligation.

(2) On such application being made, the Court shall summon the defendant to appear or, if it thinks fit, may
issue a warrant for his arrest in the first instance.

(3) On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary
surrender, the Court shall direct the surety to be discharged from his obligation, and shall call upon the
defendant to find fresh security.

Rule 4 : Procedure where defendant fails to furnish security or find fresh security.—

Where the defendant fails to comply with any order under rule 2 (i. e., fails to furnish security) or rule 3 (i. e.,
fails to find fresh security,),

the Court may commit him to the civil prison until the decision of the suit or, where a decree is passed against
the defendant, until the decree has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than six
months, nor for a longer period than six weeks when the amount or value of the subject-matter of the suit
does not exceed fifty rupees:

Provided also that no person shall be detained in prison under this rule after he has complied with such order.

Arrest on insufficient grounds: Section 95 :- Where, in any suit in which an arrest or

attachment has been effected or a temporary injunction granted under the last preceding section,-

(1) (a) it appears to the Court that such arrest / attachment / injunction was applied for on insufficient
grounds, or

(1) (b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or probable
grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff
by its order such amount, not exceeding 50,000/-Rs, as it deems a reasonable compensation to the defendant
for the expense or injury (including injury to reputation) caused to him;

Provided that a Court shall not award, under this section, an amount exceeding the limits of its peculiar
jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such arrest,
attachment or injunction.

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 ATTACHMENT BEFORE JUDGMENT
ORDER 38 RULES 5-13
Rules 5-13 of Order 38 deal with attachment before judgment. .

Rule 5 : Where defendant may be called upon to furnish security for production of property

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise,

that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against
him,—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the
Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as
may be specified in the order, to produce and place at the disposal of the Court, when required, the said
property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to
appear and show cause why he should not furnish security.

(2) The plaintiff'shall, unless the Court otherwise directs, specify the property required to be attached and
the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the
property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such
attachment shall be void.]

Rule 6 : Attachment where cause not shown or security not furnished

1) Where the defendant

i. fails to show cause why he should not furnish security, or

ii. fails to furnish the security required,

within the time fixed by the court,

the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any
decree which may be passed in the suit, be attached.

2) Where the defendant shows such cause or furnishes the required security and the property specified or any
portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other
order as it thinks fit.

Appeal : An order passed under Order 38 Rule 6 is appealable. [Or. 43 R. 1(q)] .

Revision : An order granting or refusing attachment before judgment is a case decided within the meaning of
Section 115 of the Code and is revisable by the High Court.

Wrongful attachment A suit for damages is maintainable for wrongful attachment of property.. (See Section
95 of CPC)

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Rule 7 : Mode of making attachment

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the
attachment of property in execution of a decree i.e., in the manner provided in O XXI of the Civil Procedure
Code.

Rule 8 : Adjudication of claim to property attached before judgment

Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in
the manner herein before provided for the adjudication of claims to property attached in execution of a
decree for the payment of money.]

Rule 9 : Removal of attachment: An order of attachment will be withdrawn

i. if the defendant furnishes the security required, together with security for the cost of the attachment or

ii. When the suit is dismissed.

Rule 10 : Rights of third party: Attachment before judgment shall not affect the rights, existing prior to the
attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant
from applying for the sale of the property under attachment in execution of such decree.

Reattachment in execution: Rules 11-11-A

Rule 11 : Where the property is under attachment, and a decree is subsequently passed in favour of the
plaintiff, it is not necessary to apply for fresh attachment of the property in execution.

Rule 11-A: The provisions of Order 21 applicable to an attachment made in execution of a decree will also
apply to an attachment before judgment.

Rule 12 : Exemption from attachment: The court cannot order attachment or production of any agricultural
produce in possession of an agriculturist.

Rule 13 : Small Cause Court not to attach immovable property.—

Nothing in this Order shall be deemed to empower any Court of Small Causes to make an order for the
attachment of immovable property.]

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ORDER 39 Temporary Injunctions and Interlocutory Orders
An injunction is a court order, that requires a person to do or abstain from doing an act that is necessary in
terms of justice, and the absence of which would be contrary to good faith and good conscience.

Basically, the grant of an injunction, aims to restore the violated rights of a party, whereby monetary or
compensatory damages are insufficient. It follows the principles of Natural Justice and Equity. Power to
grant injunction is equitable in nature. The relief can be granted only if justice, equity and good conscience
require.

Object : The primary purpose of granting interim relief is the preservation of property in dispute till legal
rights and conflicting claims of the parties before the court are adjudicated.

Who may apply? It is not the plaintiff alone who can apply for an interim injunction. A defendant may also
make an application for grant of an injunction against the plaintiff.

The law of injunction has been provided for by the Specific Relief Act, 1963 & is also regulated by the CPC,
1908 in India.

Types of Injunction : Injunction is categorized in two form i.e.

1. Perpetual (Permanent) Injunction & 2. Temporary Injunction.

Perpetual or permanent injunction restrains a party forever from doing the specified act and can be granted
only on merits at the conclusion of the trial after hearing both the parties to the suit. It is governed by
Sections 38 to 42 of the Specific Relief Act,1963.

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 orders of the court. It is regulated by the
provisions of Order 39 of the CPC, 1908 & may be granted at any stage of the suit. (S. 37(1), S. R. A, 1963.)

Section 94 of CPC : The section provides for supplemental proceedings, to enable the court to prevent the
ends of justice from being defeated.

Section 94(c) states that a court may grant temporary injunction and in case of disobedience commit the
person guilty thereof to the civil prison and order that his property be attached and sold.

Section 94(e) of the Code enables the court to make interlocutory orders as may appear to it to be just and
convenient.

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

Order 39 : Temporary injunction may be granted by a court in the following cases:

(a) where any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to
the suit, or wrongfully sold in execution of a decree; R. 1(a).or

(b) where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding
his creditors: R. 1(b).or

(c) where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in
relation to any property in dispute in the suit; R. 1(c). or

(d) where a defendant is about to commit a breach of contract, or other injury of any kind; R. 2(1). or
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(e) where a court is of the opinion that the interest of justice so requires.Ss. 94(c), 151.

The power to grant a temporary injunction is at the discretion of the court. This discretion, however, should
be exercised reasonably, judiciously and on sound legal principles. "Tripple test" for grant of interim
injunction :-

Generally, before granting the injunction, the court must be satisfied about the following factors:

i) Whether the plaintiff has a prima facie case?

ii) Whether the plairntiff would suffer irreparable injury if his prayer for temporary injunction is not granted?

iii) Whether the balance of inconvenience is in favour of the plaintiff?

The above three rules are described as "three pillars" on which foundation of every order of injunction rests.

it is the duty of the court to consider inconvenience of the plaintiff as against inconvenience of the defendant.
If the court thinks that by refusing interim injunction, more or greater inconvenience will be caused to the
plaintiff, it will grant injunction. If, on the other hand, it finds that by granting interim injunction. greater
inconvenience will be caused to the defendant, it will refuse the relief. It is by considering comparative
inconvenience that the court will exercise the discretion.

Manohar Lal Chopra v. Seth Hiralal, AIR 1962 : Inherent power to grant injunction : Rule 1 of Order 39, no
doubt, enumerates circumstances in which a court may grant interim injunction. It, however, nowhere
provides that no temporary injunction can be granted by the court unless the case falls within the said
provision. Hence, where the case is not covered by Order 39, interim injunction can be granted by the court in
exercise of inherent powers under Section 151 of the Code.

Cotton Corpn of India v United Industrial Bank, AIR 1983 : In appropriate cases Courts have inherent powers
to issue temporary injunctions in the interest of justice, in circumstances which are not covered by O XXXIX of
the Code.

Magna Publishing Co Ltd v Shilpa S Shetty, AIR 2008 : Appeal : Appeal against interim order is maintainable.

Hindustan Lever Ltd.v. Colgate Palmolive Ltd., (1998) : An order granting or refusing an injunction is a "case
decided" within the meaning of Section 115 ofthe Code and, hence, a revision ies against such an order.

State of Jharkhand v Surendra Kumar Srivastava, AIR 2019 : Writ Petition under Article 227 against order
passed in civil court refusing to grant interim injunction under O XXXIX, rules 1, 2, is maintainable

Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing a
breach of contract or other injury of any kind to the plaintiff.

Form of Temporary injunction : Temporary injunction should normally be in Form No. 8 of Schedule F with
necessary particulars as also modifications.

Rule 2-A: If Rule 1 and Rule 2 of Order 39 are not complied then:

i. Property of guilty be attached. ii. Detention in civil prison not exceeding 3 months.

Limit of attachment: Not more than 1 year.

If disobedience or breach continues “ Property may be sold.

Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the
injunction to the plaintiff. However, if it seems to the court that the purpose of the injunction would be
defeated by the delay, it may not provide the notice.
168
Provided that, where it is proposed to grant an injunction without giving notice of the application to the
opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction
would be defeated by delay, and require the applicant—

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting
the injunction has been made, a copy of the application for injunction together with—

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; & (iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day, an
affidavit stating that the copies aforesaid have been so delivered or sent.]

Rule 3-A: The court shall make an endeavour to finally dispose of the application within 30 days from the date
on which the ex parte injunction was granted. Where the court finds it difficult to dispose of the application
within the period of 30 days, reasons are required to be recorded.

A. Venkatasubbiah Naidu v. S. Chellappan, (2000): Where ex parte relief is granted by the court and the
application is not decided within 30 days, the aggrieved party may prefer an appeal against such an order.

Rule 4: It provides for vacation of already granted temporary injunction.

An order of injunction may be discharged, varied or set aside by the Court on an application being made by
any party dissatisfied with such order, or where such discharge, variation or setting aside has been
necessitated by a change in circumstances, or where the court is satisfied that such order has caused undue
hardship to the other side.

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

INTERLOCUTORY ORDERS: ORDER 39 RULES 6-10 Rules 6 to 10 of Order 39 provide for

making certain interlocutory orders.

Rule 6 : The court has power to order sale of perishable property in certain Circumstances. It can also order
for detention, preservation or inspection of any property which is the subject-matter of such suit.

Rule 7 : For that purpose it can authorise any person to enter upon or into any land or building in the
possession of any party for taking, samples or making observations or trying experiments.

Rule 8 : However, before making such orders the court shall give notice to the opposite party except where it
appears that the object ofmaking such orders would be defeated by the delay.

Rule 9 : Where the suit land is liable to payment of revenue to government and the party in possession of such
land neglects to pay revenue, any other party to the suit claiming an interest in such land may, on payment of
the revenue, be put in immediate possession of the property. The court may award in the decree the amount
so paid with interest thereon against the defaulter.

Rule 10 : Where a party to a suit admits that he holds money as a trustee for another party, the court may
order him to deposit such amount in court.

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ORDER 40 RECEIVER:
A receiver is one who receives money of another and renders account.

Status of Receiver : Madhubhai v UOI, AIR 1962 : A receiver is an officer of the Court & also "a public servant"
within the meaning of S.2(17) of the CPC.

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed by the court to
administer/manage, that is, to protect and preserve a disputed property involved in a suit. Such a person
should not have any stake in the disputed property. Generally, parties to the suit are not appointed as
receiver by the court. But in extraordinary circumstances, a party to suit can be appointed as receiver.

[section 94(d)], the court may appoint the receiver to prevent the ends of justice being defeated.

[section 51(d)], Similarly, for the execution of a decree, the court has the power to appoint a receiver.

There are provisions in special acts which provides for the appointment of a receiver by the court. For
example, section 84 of the Companies Act, 2013 provides for the appointment of a receiver. Similarly, section
69A of the Transfer of Property Act, 1882 also provides for the appointment.

Who can appoint a receiver? According to the CPC, the court before which the proceedings are pending can
appoint a receiver if it appears just and convenient to the court to appoint such receiver [section 51(d)].

For example, in a suit, the trial court can appoint a receiver. Whereas, in appeal, the appellate court can
appoint a receiver.

It is within the discretionary power of the court to appoint the receiver. But, discretion is not absolute,
arbitrary or unregulated.

Mahendra H. Patel v. Ram Narayan, (2000) : A court, however, cannot appoint a receiver suo motu,

The court can appoint a receiver before or after a decree & can remove any person from the possession or
custody of the property & commit the same property in the custody or management of the receiver.

Objective : The primary objective of appointment of receiver is to protect preserve and manage the property
And safeguard the interest of both the parties of the suit during the pendency of the litigation.

Rule 1 : Appointment of receivers :

1) Where it appears to the Court to be just and convenient, the Court may by order —

(a) appoint 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; and

(d) The court may confer upon the receiver any of the following powers:

i) to institute and defend suits;

ii) to realise, manage, protect, preserve and improve the property;

iii) to collect, apply and dispose ofthe rents and profits;

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iv) to execute documents; or

v) such ofthese powers as it thinks fit.

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

Rule 2 : Will a receiver be entitled to remuneration? Under order 40 rule (2), The Court may by general or
special order fix the amount to be paid as remuneration for the services of the receiver..

Also, a receiver has to be provided for the loss or expenses incurred by him for maintaining the property.

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

(a) furnish such security (if any) 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 wilful default or gross negligence.

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

Rule 4 : What are the liabilities of a receiver? According to Order 40 rule (4), When a receiver fails:

i. To submit the reports as specified by the court or,

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

iii. Causes loss to the property due to gross negligence.

iv. Any other duty which court directed him to do,

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

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

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

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

Appeal & Revision : An order appointing or refusing to appoint a receiver is appealable & is a "case decided"
within the meaning of S. 115 of the CPC. Hence, where no appeal lies, a revision is maintainable.

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Suits in Specific Cases
Under the CPC, 1908, the suit is divided into 2 parts on the basis of formalities.

1. General Suits.(S 9-35B) :- Suits, which follow only the formal formalities.

2. Specific Suits. (S 79 to 93 & Orders 27-37) :- Suits, which require the completion of general formalities as
well as special formalities. These suits are divided into the following;

i. Suits by or against Government & Public servants (S79 to S82) & (O. 27)

ii. Suits filed by Aliens, by or against Foreign Rulers & Ambassadors (S83 to S87-B)

iii. Other Suits (O. 27-A, O. 28, O. 29)

iv. Suits by or against Minors and persons of unsound mind (O. 32)

v. Suits by the Indigent Persons (O. 33)

vi. Interpleader Suit (S88) & (O. 35)

ORDER 27 | [Sections 79 to 82] | Suits by or against Government & Public servants

The substantive law related to aforementioned topic, is given in Articles 294 to 300 of the Constitution of
India and its procedural law is given in sections 79 to 82 & Order 27 of the Code of Civil Procedure 1908.

Section 79 : Suits by or against Government

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 a State Government, the State.]

For example - if a case is to be filed against the Government of Uttar Pradesh, then the respondent will be the
State of Uttar Pradesh.

Suits between individuals require no notice to be given to the defendant by the plaintiff before the filing of a
suit. However as per Section 80 of the CPC, 1908, -

Section 80 : Notice (Note : Provisions of section 80 are mandatory)

(1) Save as otherwise provided in sub-section (2), no suit shall be instituted against the Government including
the Government of the State of Jammu and Kashmir) 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 a suit against the Central Government where it relates to a railway, the General Manager of
the railway;

(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to
that Government or any other officer authorised by that Government in this behalf;]

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(c) in the case of a suit against any other State Government, a Secretary to that Government or the Collector
of the District,

and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he claims..

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State
of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in
his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub
-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving
to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect
of the relief prayed for in the suit:

Proviso: The Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be
granted in the suit, retain the plaint for presentation to it after complying with the requirements of sub-
section (1).

(3) No suit 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 shall be dismissed merely by reason of any error or defect in
the notice referred to in sub-section (1), if in such notice—

(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate
authority or the public officer to identify the person serving the notice and such notice had been delivered or
left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]

Note : In computing the period of limitation for instituting the suit the period of notice under Section 80 must
be excluded [S. 15(2), limitation act 1963]

Note : An order passed u/s 80 is neither a "decree" nor an appealable order but it is a "case decided" u/s 115
of the Code and is, therefore, revisable.

ORDER 27 Rule 1 to 8-B : Various rules regulating procedural matters in suits by or against the Government or
public officers in their official capacity are to be found in O 27 of CPC.

Rule 1 : Suits by or against Government : any suit by or against the Government, the plaint or written
statement shall be signed by such person as the Government may like by general or special order authorise in
that behalf and shall be verified by any person whom the Government may so appoint & who is acquainted
with the facts of the case.

Rule 2 : Persons authorised act for Government : Persons being Ex-officio or otherwise authorized to act for
the Government in judicial proceedings shall be deemed to be recognized agents.

Rule 3 : Plaints in suits by or against Government : In suits by or against the Government, instead of inserting
in the plaint the name and description and place of residence of the plaintiff or defendant, it shall be
sufficient to insert the appropriate name as provided in Section 79.

Rule 4 : Agent for Government to receive process : 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

Rule 5 : Fixing of day for appearance on behalf of Government : The court shall fix the time for answering the
plaint & may extend the time at its discretion but the time so extended shall not exceed 2 months in the
aggregate.

Rule 5-A : Government to be joined as a party in a suit against a public officer : Where a suit is instituted
173
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.

Rule 5-B : It imposes a duty on the court that the court should try to assist the parties in arriving at a
settlement in a suit against the government or public officer.

Rule 7 - Where the public servant is a defendant, he should be given extra time to approach the government.

Rule 8-A - No security will be taken from the government or public officer.

Section 81 : 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.

Note : A counsel for the State need not file a vakalatnanma. Reasonable time should be granted to the
Government for filing a written statement.

Section 82 : Execution of Decree : A decree against the Government or a public officer shall not be executed
unless it remains unsatisfied for a period of three months from the date ofthe decree.

Order 27 Rule 8[2](proviso) - Public officer (defendant) shall not be liable to arrest, nor his property to
attachment, otherwise than in execution of a decree.

Suits filed by Aliens, by or against Foreign Rulers & Ambassadors (S83 to

S87-B)
Section 83 : Aliens (Foreigners) can bring a suit in the competent court for trial (as if they were citizens of
India) in the following situations -

Alien enemies residing in India with the permission of the Central Government, and alien friends.

But a alien enemies cannot bring a suit in such court in the following situations -

i. When he is residing in India without permission of the Central Govt; Or

ii. When he is residing in a foreign country.

Explanation-Every person residing in a foreign country, the Government of which is at war with India and
carrying on business in that country without a licence in that behalf granted by the Central Government, shall,
for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

Section 84 : "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

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FOREIGN RULERS

(1) The Central Government may,

i. at the request of the Ruler of a foreign State or

ii. at the request of any person competent in the opinion of the Central Government to act on behalf of such
Ruler,

by Order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so
appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under
this Code may be made or done on behalf of such Ruler.

(2) An appointment under this section may be made for the purpose of a specified suit or of several specified
suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on
behalf of such Ruler.

(3) A person appointed under this section may authorise or appoint any other persons to make appearances
and applications and do acts in any such suit or suits as if he were himself a party thereto.

Section 86 : The procedure enshrined u/s 86 applies to any suit filed against a Foreign State, foreign rulers,
ambassadors of different countries and envoys.

The first vital requirement u/s 86 which is required under all suits filed by anyone is that the suit must be filed
before a competent authority, i.e. a civil court having requisite territorial, pecuniary and subject-matter
jurisdiction.

Subsection 1) No foreign State may be sued in any Court otherwise competent to try the suit except with the
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.

Subsection 2). The central government can provide its consent for one suit or several suits as the case may be.
The central government must ensure that either of the 4 circumstances exists before instituting any suit
against the foreign ruler:-

(a) That the foreign ruler has already instituted a suit against the plaintiff, or

(b) That such State or ruler carries on trade within the local jurisdiction of the court, or

(c) the immovable property must be the subject matter of the suit and not the charge on it and such property
should be situated within the local limits of the jurisdiction of the court, or

(d) That the foreign ruler, etc. has deliberately waived the privileges of non-arrest u/s 86 (5).

Subsection 3) Except with the consent of the Central Government, certified in writing by a Secretary to that
Government, no decree shall be executed against the property of any foreign State.]

Subsection 4) The preceding provisions of this section shall apply in relation to—

175
(a) any Ruler of a foreign State;

(aa) any Ambassador or Envoy of a foreign State;

(b) any High Commissioner of a Commonwealth country; and

(c) any such member of the staff of the foreign State or the staff or retinue of the Ambassador or Envoy of a
foreign State or of the High Commissioner of a Commonwealth country as the Central Government may, by
general or special order, specify in this behalf, as they apply in relation to a foreign State.

Subsection 5) The following persons shall not be arrested under this Code, namely:—

(a) any Ruler of a foreign State;

(b) any Ambassador or Envoy of a foreign State;

(c) any High Commissioner of a Commonwealth country;

(d) any such member of the staff of the foreign State or the Staff or retinue of the Ruler, Ambassador or Envoy
of a foreign State or of the High Commissioner of a Commonwealth country, as the Central Government may,
by general or special order, specify in this behalf.

Subsection 6) Where a request is made to the Central Government for the grant of any consent referred to in
sub-section (1), the Central Government shall, before refusing to accede to the request in whole or in part,
give to the person making the request a reasonable opportunity of being heard].

Other Suits (O. 27-A, O. 28, O. 29) Suits by or

against
corporation

Suits involving a substantial question Suits by or

of law as to interpretation of the against soldiers,
Constitution or as to the validity of any sailors and
statutory instrument airmen

ORDER (32) Suits by or against Minors and persons of unsound mind

NOTE : Just read from Bare act & for explanation See the video By clicking HERE

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ORDER (33) Suits by the Indigent Persons.
Indigent means poor, pauper. Order 33 provides the procedure for filing of suit by an indigent person, so that
no one is denied justice due to lack of money. Because the purpose behind this order is that poverty should
not come in the way of getting justice.

In such a case, the plaintiff will not be granted exemption or release from payment of court fee, but only the
payment of court fee is postponed.

Who is Indigent Person? : An indigent person is one who does not possess sufficient means to pay court fees
and unable to proceed with any suit. ... If the application is duly admitted and accepted by the court the suit
will be treated as any other normal suit and court may also provide the applicant a lawyer to represent him.

Rule 1 : Suits may be instituted by indigent person" : Subject to the following provisions, any suit may be
instituted by an indigent person.

Explanation I-A person is an indigent person,-

(a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a
decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such
suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees other than the
property exempt from attachment in execution of a decree, and the subject-matter of the suit.

Section 60 of CPC
provides the list of the
properties which are
exempted From
attachment or execution
of a decree.

Explanation II - Any property which is acquired by a person after the presentation of his application for
permission to sue as an indigent person, and before the decision of the application, shall be taken into
account in considering the question whether or not the applicant is an indigent person.

Explanation III - Where the plaintiff sues in a representative capacity, the question whether he is an indigent
person shall be determined with reference to the means possessed by him in such capacity.

Rule 1-A : "Inquiry into the means of an indigent person" :

Every inquiry into the question whether or not a person is an indigent person shall be made, in the first
instance, by the chief ministerial officer of the Court, unless the Court otherwise directs, and the Court may
adopt the report of such officer as its own finding or may itself make an inquiry into the question.

Rule 2 : "Contents of application" : Every application for permission to sue as an indigent person shall
contain

i. the particulars required in regard to plaints in suits;

ii. a schedule (list) of any movable or immovable property belonging to the applicant, with the estimated
value; &

iii. it shall be signed and verified in the manner as prescribed in Order 6, Rule 14 & 15.
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Rule 3 : "Presentation of application" : Applicant should present the application to the court in person unless
exempted by court, in such case the application may be presented by an authorized agent, who would answer
all substantial queries involving the application.

Provided that, where there are more plaintiffs than one, it shall be sufficient if the application is presented by
one of the plaintiffs.

Rule 4 : "Examination of applicants"

(1) Where the application is in proper form and duly presented, the Court may, if it thinks fit, examine the
applicant, or his agent when the applicant is allowed to appear by agent, regarding the merits of the claim
and the property of the applicant.

(2) If presented by agent, Court may order applicant to be examined by commission - Where the application is
presented by an agent, the Court may. if it thinks fit, order that the applicant be examined by a commission
in the manner in which the examination of an absent witness may be taken.

Rule 5 : "Rejection of application" :- In the following cases an application for permission to show as an
indigent person will be rejected by the court:-

1. if it is not framed & presented in the manner prescribed by rule 2 & 3, or

2. if the applicant is not an indigent person; or

3. if the applicant has disposed of any property fraudulently in order to get permission to sue as an indigent
person within 2 months before the presentation of the application; or

4. if there is no cause of action; or

5. if the applicant has entered into an agreement with reference to the subject matter of the suit under which
another person has obtained interest; or

6. if the suit appears to be barred by law

7. if any other person has entered into an agreement with the applicant to finance costs of litigation

Note : An order rejecting the application to sue as indigent person is appealable..

Note : An indigent person may also plead set off or file Counter claim without paying Court fees.

Rule 6 & 7 : A joint study of Rules 6 & 7 makes it clear that If there is no reason to reject the application, the
court shall fix a day for receiving evidence in proof or disproof of the indigence of the applicant. At least 10
days clear notice shall be given to the opposite party and the government pleader.. On the day so fixed the
court shall examine the witnesses (if any) produced by either side and it shall also hear the arguments of
parties and then either allow or refuse to allow the applicant to sue as an indigent person..

Rule 8 : Procedure To Sue As An Indigent Person If Application Is Admitted : Where the application for
permission to sue as an indigent person is granted, it shall be numbered and registered. It shall be deemed
the plaint in the suit, and the suit shall proceed as if it was instituted in an ordinary manner.

But the plaintiff shall not be liable to pay any court fee or process fee. The plaintiff shall also not be liable for
any fee for the appointment of a pleader.

If a person has been allowed to sue as an indigent person, but he is not represented by a pleader, the court
may assign a pleader to him. [Rule 9-A].

Rule 9 : Withdrawal of Permission to Sue as an Indigent Person: The defendant or government pleader may
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apply to the court for the withdrawal of permission granted to the plaintiff to sue as an indigent person in the
following cases:-

1. If he is guilty of vexatious/ improper conduct in the course of the suit; or

2. If his means are such that he ought not to continue to sue as an indigent person; or

3. If he has entered into an agreement on which another person has obtained an interest in the subject matter
of the suit.

Recovery of court fees and costs Rule 10, 11, 11-A

(A) Where indigent person succeeds.- Where the plaintiff (indigent person) succeeds in the suit, the court
shall calculate the amount of court fees and costs and recover from the party as ordered by the court. [Rule
10]

(B) Where indigent person fails.-Where the plaintiff (indigent person) fails or the suit abates, the court shall
order him (plaintiff) to pay court fees and costs. [Rule 11 & 11-A]

Rule 12 & Rule 13 : The State Government has right to recover court fees. For that purpose, it is deemed to be
a party to the suit.

Rule 14 : State Government may apply for payment 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.]

Where permission is rejected: Rules 15-15-A

Rule 15 : An order refusing to allow an applicant to sue as an indigent person shall be a bar to a subsequent
similar application.

But, this does not debar him from suing in an ordinary manner, provided he pays the costs incurred by the
Government Pleader and the opposite party in opposing the application.

Rule 15-A : Grant of time for payment of Court-fee : Where the court rejects an application to sue as an
indigent person, it will grant time to the applicant to pay court fees.

Rule 16 : Costs : The costs of an application for permission to sue as an indigent person & of an inquiry into
indigency shall be costs in the suit.

Who May Appeal As An Indigent Person?

Order 44 of the CPC talks about appeals by indigent persons. Any person who is entitled to file an appeal but
unable to pay the necessary court fee may obtain the permission of the court to appeal as an indigent person.

For this purpose, he may present an application to the court, along with a memorandum of appeal. The court
may allow the applicant to appeal as an indigent person, subject to the provisions relating to suits by
indigent persons.

Period Of Limitation : The Period of limitation for presenting an application for leave to appeal as an indigent
person to High Court is 60 days & to other Courts is 30 days. Such limitation period starts from the date of the
decree when passed.

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ORDER (35) Interpleader Suit (S88).
Meaning - An interpleader suit is a suit in which the real dispute is not b/w the plaintiff & the defendant but
b/w the defendants only & the plaintiff has no interest in the subject-matter of the suit.

In other words, in an interpleader suit, the defendants interplead, i.e., plead against each other instead of
pleading against the plaintiff as in an ordinary suit.

Example : A is in possession of the property claimed by B & C adversely. A does not claim any interest in the
property & is ready to deliver it to the rightful owner. He can file an interpleader suit.

Section 88 The following conditions are given in Section 88, which are required to be satisfied before filing an
interpleader suit:-

(1) there must be some debt, sum of money or other property movable or immovable in disputes;

(2) two or more persons must be claiming it adversely to one another;

(3) the person from whom such debt, money or property is claimed, must not be claiming any interest therein
other than the charges and costs and he must be ready to pay or deliver it to the rightful claimant; &

(4) provided that where any suit is pending in which the rights of all parties can properly be decided, no such
suit of interpleader shall be instituted..

If the above conditions are satisfied, an interpleader suit can be filed & the procedure related to it, is given in
Order 35 of this code.

Rule 1 : Plaint in interpleader-suit— In every interpleader suit the plaint shall, in addition to other statements
necessary for plaints, state—

(1) That the- plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(2) The claims made by defendants severally; &

(3) That there is no collusion b/w the plaintiff & any of the defendants..

Mangal Bhikaji Nagpase v. State of Maharashtra 1997 : it was held that it is mandatory for the plaintiff to
affirm that he has no interest in the subject matter of the dispute other than costs and charges.

Asaan Ali v. Sarada Charan Kastagir AIR 1922 : It was held that for a suit to be an interpleader suit, the
applicant should be willing to hand over the property to the claimant and should not have any interest in it
but if the applicant has an interest in the suit then such suit shall be dismissed on the discovery of the fact
that the plaintiff has an interest in the subject matter of the suit.

Rule 2 : Payment of thing claimed into Court— Where the thing claimed is capable of being paid into court or
placed in the custody of the court, the plaintiff may be required to so pay or place it before he can be entitled
to any order in the suit.

Rule 3 : Procedure where defendant is suing plaintiff : During the pendency of the interpleader suit, if any of
the defendants filed a suit against the Plaintiff, then that suit shall be stayed u/s 10 of CPC Res Sub-judice.

Rule 4 : Procedure at first hearing— (1) At the first hearing the Court may—

(a) declare that the plaintiff is discharged from all liability, and award him his costs and dismiss him from the
suit; or

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(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may
adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct—

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to
try the suit in the ordinary manner..

Note : “first hearing” in this rule means the date on which the Court goes into the pleadings in order to
understand the contentions of the parties.

Rule 5 : Agents and tenants may not institute interpleader suits— Nothing in the Order shall be deemed to
enable agents to sue their principles, or tenants to sue their landlords, for the purpose of compelling them to
interplead with any person other than persons making claim through such principals or landlords.

Illustration (a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully
obtained from him by A, and claims them from B. B cannot institute an interpleader-suit against A and C.

Illustration (b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making
the jewels a security for a debt due from himself to C. A afterwards alleges that C’s debt is satisfied, & C
alleges the contrary. Both claim the jewels from B. B may institute in interpleader-suit against A & C. .

Rule 6 : Charge for plaintiff’s costs— Where the suit is properly instituted the Court may provide for the costs
of the original plaintiff by giving him a charge on the thing claimed or in some other effectual way. .

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SPECIAL PROCEEDING Section 89 - 93 & Order 36 - 37
Section 89 of CPC empowers the civil courts to refer matters to alternative dispute resolution methods –
arbitration, conciliation, and judicial settlement including Lok Adalat and mediation.

S. 89 was inserted in 1999 & this Section should be read with Rule 1-A, 1-B, & 1-C of Order 10

Settlement Of Disputes Outside The Court – Alternative Dispute Resolution u/s 89 CPC :- Where it appears to
the Court that there exist elements of a settlement which may be acceptable to the parties, the Court shall
formulate the terms of settlement & give them to the parties for their observations and after receiving the
observations of the parties, the Court may reformulate the terms of a possible settlement & refer the same
for –

(a) arbitration;

(b) conciliation;

(c) judicial settlement including settlement through Lok Adalat; or

(d) mediation.

(2) where a dispute has been referred

In the case of Afcons infrastructure and Anr v. Cherian Varkey, Supreme Court held that “all suits of civil
nature, in particular, the following categories of cases are normally suitable for ADR process”:

1. Cases relating to trade, commerce, and contract.

2. Cases arising from strained or sourced relationships.

3. In cases wherein there is a need for continuation of pre-existing relationship in spite of disputes.

4. Cases relating to tortious liability.

5. All consumer disputes.

Lok Adalat: In simple words, it means “peoples’ court”. These are presided over by retired judges, social
activists; eminent advocates etc. These have jurisdiction only on compoundable offences. The procedures
followed in Lok-Adalats are a lot less rigid than ordinary courts.

S. 90 states that Where any persons agree in writing to state a case for the opinion of the Court, then the
Court shall try and determine the same in the manner prescribed.

Note : S.90 & Order 36 should be read together as both provides provisions regarding friendly suites

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Meaning of Public Nuisance : S. 268 of IPC defines Public Nuisance as an act or illegal omission which causes
any common injury, danger or annoyance to the people in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons who may have
occasion to use any public right.

S. 91 : Public Nuisances and other Wrongful Acts Affecting the Public :

Section 91 states that, a suit in respect of a Public nuisance may be instituted by any one of the following:

(1) By the Advocate-General acting ex officio; or

(2) By him at the instance of two or more persons or

(3) By two or more persons with the leave of the Court.

Remedies for a public nuisance.—

(1) Under the Criminal Law:

(a) the person committing a nuisance is liable to a criminal prosecution under the Indian Penal Code,

(b) certain summary powers are also conferred on Magistrates by sections 133 to 143 of CrPC for the removal
of the nuisance.

(2) Under the Civil Law:

(a) A suit will lie u/s 91 of CPC, without proof of any special damage to the plaintiffs.

(b) A suit will also lie at the instance of private individual where he has suffered special damage by reasons of
the nuisance, as distinguished from the damage suffered by him in common with other persons affected by
the nuisance.

Note : These remedies are concurrent. The institution of a criminal prosecution does not bar a suit under this
section, nor does the institution of a suit under this section bar a criminal prosecution..

S. 92 deals with the suits relating to Public charities. So Section 92 lays down the provisions relating to the
setting up of a suit in relation to administration or breach of trust made for a religious or religious purpose.

According to Section 92, the litigation relating to the above trust can be instituted by the following— (1) by
the Advocate General or (2) by two or more persons who have an interest in the Trust and who have obtained
permission from the Court.

The suit can be set up in the Principal Civil Court with original jurisdiction or in the court of jurisdiction
empowered by the State Government.

Section 92 is not related to private trusts.

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ORDER (37) Summary procedure.
Order 37, Rules 1 to 7 deal with Summary procedure. It is a legal procedure used for enforcing a right that
takes effect faster and more efficiently than ordinary methods.

Its object is to summarise the procedure of suits in case the defendant is not having any defence.

Rule 1(1) : A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small Causes and any
other court notified by the High Court. High Courts can restrict, enlarge or vary the categories of suits to be
brought under this order.

Rule 1(2) : Classes of suits where summary procedure is applied Summary suits can be instituted in case of
certain specified documents such as a bill of exchange, hundies, and promissory notes. Summary procedure
is applicable to recover a debt or liquidated demand in money arising on a written contract, an enactment or
on a guarantee.

Bill of exchange : A bill of exchange is a written unconditional order by one party (the drawer) to another (the
drawee) to pay a certain sum either immediately or on a fixed date for payment of goods and/or services
received.

Hundies : A Hundi is an unconditional order in writing made by a person directing another to pay a certain
sum of money to a person named in the order.

Promissory notes : A promissory note contains an unconditional promise to pay a certain sum to the order of
a specifically named person or to bearer—that is, to any individual presenting the note.

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

Procedures after institution of Summary suit :

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

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

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

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

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

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

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

 Rule (7) of Order 37 provides that save as provided by that order the procedure in summary suits shall
be the same as the procedure in suits instituted in an ordinary manner.

Setting aside of Decree : The Court has the power to set aside the decree that has been passed under the
provisions of Order 37. This power has been enshrined on the Court by Rule 4 of Order XXXVII.
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 Appeals in CPC
Part VII (S. 96-112) of CPC & Order 41-45 of CPC deals with Appeals.

PART-7 in CPC

1st Appeal S. 96-99A S. 109-112

O.41 Appeal from Appeal to O. 45

original decree Supreme
Appeal
Court

2nd Appeal S. 100-103 S. 107-108

O. 42 Appeal from General

Appellate decree Provisions of
Appeal

S. 104-106 O. 44
Appeal from Appeal
Order by
Indigent
O. 43 Person

Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is made to some
superior court against decision of subordinate court. Basic object of appeal is to test soundness of decision of
lower court. Appeal may be filed against original or appellate decree passed by a court subordinate to High
Court. Appeal only lies against a decree and not against Judgment.

Definition of Appeal : “Judicial examination of the decision by a higher court of the decision of the inferior
court”.

Right of Appeal : Every person has given right of appeal against decree. However, right of appeal is not an
inherent right. Rather it can only be availed where it is expressly granted by law. So Right of appeal is
substantive right & creation of statute. .

In Ganga Bai v. Vijay Kumar, AIR 1974 it has been held that suit is inherent, general or common law right and
it need not be provided by any statute, however, the appeal is a statutory right and is maintainable only
when some statute provides the remedy of an appeal.

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S. 96-99A Appeal from original decree

S. 96 : Appeal from original decree : Save as otherwise provided,

 the first appeal is maintainable against the following—

1) Every decree passed by any Court exercising original jurisdiction.

2) An original decree passed ex-parte.

 the first appeal is not maintainable against the following—

3) Consent decree (see S. 44 of India Evidence Act) Appeal in Petty cases

4) A decree in any suit of the nature cognizable by Court of small causes When the amount or value of the
subject matter of original suit not exceed 10,000 rupees.

[The decree passed by the Court of small causes can also be appealable, if it fulfils any of the following condition :

i. amount or value of the subject matter in such decree exceeds 10,000 rupees; or

ii. It involves a question of law. ]

S. 97 : According to Section 97, if the party aggrieved by a preliminary decree does not appeal from such
decree, then he cannot raise any dispute regarding correctness of such decree in the appeal against the final
decree.

S. 98 : Decision where appeal heard by 2 or more judges

Where an appeal is heard by a bench of 2 or more judges, the appeal shall be decided, according to their
majority.

If no majority then decree passed by trial court shall be confirmed.

But where the judge is even in number and there is a difference of opinion on the any point of law, such a
point of law will be heard by one or more of the other judges and now a decision will be given according to the
majority of all of them

S. 98 applies only to the Courts other than chartered High Courts, such as Chief Courts or Judicial
Commissioner's Courts.

According to Section 98 (3), this section will not have any effect on the patent provision of any High Court.

S. 99 : No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction : No
decree shall be

i. reversed or ii. substantially varied,

nor shall any case be remanded,

in appeal

on account of

i. any misjoinder or non-joinder of parties or causes of action or

ii. any error, defect or irregularity in any proceedings in the suit,

186
not affecting the merits of the case or the jurisdiction of the Court.

Provided that nothing in this section shall apply to non-joinder of a necessary party.

S. 99-A : General rule is that no appeal lies against any order. But section 99-A is an exception to this general
rule. And section 99-A states that subject to the provisions prescribed in S. 99, An order passed u/s 47 will be
appealable if such order adversely affects the law.

Limitation period for filing appeal : For appeal, in case of a decree passed by lower court in civil suit, the
limitation is :

 Appeal to High Court - 90 days from the date of decree Or order.

 Appeal to any other court - 30 days from the date of Decree or order

Second Appeal: The second appeal has been defined u/s 100 of CPC. An appeal to the High Court is referred
to as the second appeal since the High Court is a second-highest court of appeal. The second appeal lies under
section 100,103,108 and order 42.

S. 100 : Second Appeal :

1. The decree passed by any subordinate appellate Civil Court in the first appeal, can be challenged by
way of a second appeal before the High Court. If it involves a substantial question of law .

Note : The second Appeal lies only in the High Court.

2. The second appeal can be filed even against an exparte decree/ judgment of the first appellate court.

3. Memorandum of appeal shall precisely state the substantial question of law involved.

4. High court shall formulate the question.

5. Appeal shall be heard on questions so formulated and respondent be allowed to argue that no such
question involved

Proviso : The proviso to Section 100(5) gives the court the power to hear questions which were not
formulated by it but they form a part of the substantial question of law if the court is satisfied that
case involves such a question. .

Shanta Devi v. Kaushalya Devi, 2020 : S. 100 CPC restricts the right of second appeal only to those cases
where a substantial question of law is involved

The limitation period for filing such second appeal is 90 days as per Article 116(a) in the Schedule to the
Limitation Act, 1963

S. 100-A : Where any appeal from an original or appellate decree or order is heard and decided by a single
judge of a High Court, then it cannot be challenged by way of further appeal to a Division Bench of the High
Court . This Section have been introduced in order to reduce the number of cases being filed in the High Court
thereby reducing the work load.

Further the appeal to a Division Bench against the decision and order rendered by a Single Judge of the High
Court in proceedings under Articles 226 or 227 of the Constitution of India has been abolished by this
provision

S. 101 : This section enacts that no second appeal shall lie except on the grounds mentioned in S. 100 of the
CPC.

187
S. 102 : The section abolishes the right of second appeal in cases where the subject-matter does not exceed
25,000 rupees in value.

S. 103 : Power of High Court to determine issue of fact : This section enables the High Court in 2nd appeal to
determine the fact, if there is sufficient evidence on the record in the two cases:

(1) where the issues of fact have not been determined by the lower Appellate Court or both by the Court of
first instance and the lower Appellate Court; or

(2) where they have been wrongly determined by the Court. Like :-l

S. 104 : An appeal shall lie from the order which is appealable;

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

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

3. An order under section 95 i.e compensation for obtaining arrest, or injunction on Insufficient grounds.

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

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

Orders 43, rule 1 provides a list of such orders which are appeal able. (See O. 43 in your Bareact)

S. 107 : Powers of appellate court – (1) Subject to such conditions and limitations as may be prescribed, an
Appellate Court shall have power-

a. To determine a case finally; (An appellate court is entitled to dispose of the case finally, conclusively
determining the rights of the parties involved. Under Order 41, Rule 24, if the court believes that there
is sufficient evidence to decide the case, it may proceed to decide the case finally.)

b. To remand a case; (Remand a case means to send a case back to the subordinate court to be tried
again. Rules 23 and 23A of Order 41 of the Code empowers the appellate court to remand a case back
to the trial court with certain specific issues to be resolved by that court. )

c. To frame issues and refer them for trial; (Under Rule 25 of Order 41, the appellate court is empowered
to frame issues in a suit which it believes that the subordinate court had failed to frame or try any
matter for revealing a fact which has not already been done by the trial court. Power to refer is
different from that of remanding a case back because, in case of remand the entire record of the case
(the case file) is sent back to the lower court for re-trial while in case of referral, only the specific issue
is sent to be adjudged whereas the case file remains with the appellate court.)

d. To take additional evidence or to require evidence to be taken. (As aforementioned, an appellate

court is not empowered to take additional evidence and for that purpose, it has to be sent back to the
trial court. However, Rules 27 to 29 provide certain exceptional situations when appeals courts can
admit additional evidence:

i. When the trial court refuses to admit an evidence (oral or documentary) without lawful and just
reasons.

ii. When the party bringing the evidence had no knowledge about the evidence at the trial or at any
time before the appeal.

iii. If the party producing additional evidence can satisfy the court that he was unable to produce the
evidence during trial despite exercising due diligence.)

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(2) Subject as aforesaid, the Appellate court shall have the same powers and shall perform as nearly as may
be the same duties as are conferred and imposed by this code on courts of original jurisdiction in respect of
suits instituted therein.”

Section 112 of the Code saves other powers of the Supreme Court (As provided under the constitution or
otherwise) from getting affected by this code. Section 151 saves ‘inherent powers’ of the court too.

S. 109 : Appeal to the Supreme Court : (See O. 45 of CPC)

An appeal shall lie to the Supreme Court if-

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

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

The provisions relating to appeals in relation to civil matters in the Supreme Court are made in Articles 132,
133 and 134 of the Constitution of India.

Remand : 'Remand' literally means to send back . In CPC Section 107(1)(b), Rules 23 & 23-A and Rule 25
of Order 41 deal with Remand... The power of remand must be regulated by provisions of Rule 23 & Rule 25
and not under inherent powers under section 151 of CPC.

Section 107(1)(b) says- "subject to such conditions and limitations may be prescribed, an Appellate Court
shall have power to remand case."

If the trial court has decided the suit on a preliminary points without going in merit of the case the Appellate
Court reversing the order/decree of the trial court may send back (remand) for retrial of suit to decide other
issues and determine the suit by the trial court.

CPC provides few conditions for application of remand. These are-

 The suit must be disposed of by the trial court on a preliminary point. Such preliminary point may be
either of fact or of law.

 The Appellate court cannot order remand unless the decision of trial court on preliminary points is
reversed in Appeal.

Rule 23A of Order 41 empowers the Appellate Court to remand a case even when the case has been disposed
of otherwise than on a preliminary point and the remand is necessary in the interest of Justice. Court cannot
remand the case on Grounds of misconceived evidence, ignorance of evidence and illegality etc.

Note: a remand order is appealable under Rule 1(v) of Order 43.

Partial Remand : the term 'Partial Remand' has not been used in the Code. Rule 25 of Order 41
deals with limited remand, which can also be considered as Partial remand. Rule 25 is necessitated to the
appellate court if the lower court has omitted to (a) frame any issue or (b) to try any issue or (c) to
determine any question of fact essential to the right decision in the suit, then the appellate court may frame
issues and refer them for trial to the lower and shall direct that court to take the additional evidence
required. It has been provided in CPC under section 107(1)(c) and Rule 25 of Order 41. An order under Rule 25
is not appealable.
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 PART-8

REFERENCE REVISION

S. 113 & O. 46 S. 115

REVIEW

S. 114 & O. 47

REFERENCE - Section 113 and Order 46 of the Code make provisions in this regard.
Meaning : Reference means Referring a case to High Court for the opinion on any question of law.

No party to the suit has the right to apply for reference. It is only the subordinate court which has the power
of reference suo-moto (on its own motion) when there is doubt regarding the validity of any legal provision. .

S. 113 : REFERENCE : A subordinate courts can exercise the right of reference under the following situations
when:

 A question as to the validity of any act, rule, regulation, ordinance, etc., arises in the court where the
suit is being entertained

 The court is of the opinion that such act or any other provision of law is invalid (“ultra vires” means
“beyond the powers”) or inoperative

 Such question on the provision of law is never before made invalid either by the High court or
Supreme court

 It is pertinent for determining the validity of such provision of law for disposal of the suit

Review - Section 114 and Order 47 of the Code make provisions in this regard.
General Rule - Under Order 20 Rule 3, it has been ensured that once the decision has been signed, no
amendment can be made thereafter except section 152 of the Code. Section 114 & Order 47 of the Code, is an
exception to Rule 3 of Order 20 under which a signed decision can also be amended under certain
circumstances..

The review is made by the same court which has passed the decree to rectify the mistake or error on the
record.

S. 114 : REVIEW : The application for Review can be filed by aggrieved party under the following
circumstances where:

 a decree or order is appealable as provided by the law, but no such appeal has been preferred

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  there is no provision for appeal from certain decree or order

 a decision is passed by the court of Small Causes

Limitation Period : The application for review shall be filed within 30 days from the date of order/decree

Note : The order or decree passed after such review shall be final and in force. The review petition is
discretionary of a court, meaning, it can either choose to entertain or reject the application.

As a matter of fact, the Supreme court can also review its own decisions under Article 137 of the Constitution
of India. As per Supreme Court Rules, 1966, the review petition should be filed within thirty days from the
date of judgment.

Revision - Section 115 of the Code make provisions in this regard. Revision application is made to only High
court when the decree passed by subordinate court is not in accordance with appropriate jurisdictions.

The revision provided in section 115 is like a writ of certiorari.

S. 115 : An application for revision can be made by the parties to the suit under the following circumstances
where the subordinate court has:

 not exercised jurisdiction as conferred by law (wrongful assumption of the court regarding the
jurisdiction)

 failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction by the court)

 illegally exercised its jurisdiction (irregular exercise of jurisdiction by the court)

Section 115 shall thus prevent subordinate courts or lower courts from acting arbitrarily, illegally, irregularly
or capriciously

The High court cannot reverse a judgement where:

 the whole suit has been disposed of by the parties

 the reversal of such judgement shall cause irreparable injury/loss against whom it was made

Since the High court only possess the Revisional jurisdiction, the order made from the exercise of such power
is not appealable..

According to section 115, revision can be done only in those cases which are not appelable..

Limitation Period : every civil revision petition should be filed within 90 days from the date of the order.

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Tips to Write the Best Answer in Judiciary Mains Exam

1. Make Sure You Understand the Question

The first thing which we see in the paper is the arrangement of questions as per the allocation of marks.
Before flipping on any other item, you must understand what the question is asking.

For example, If the question is why the evidence of accomplice is not trustworthy? Then you cannot write
what evidence is and who is an accomplice. This will lengthen your answer, and you won’t be able to write the
main content asked in the question.

Sure, if it is a detailed long answer question, then go for it. But if the question carries less marks, stick to the
point. Do not write stories. This is not your college or university exam. Here, the more precise and on-point
you are, the better are the chances for scoring well.

2. Stick to the Word Limit

The word limit is mentioned for every question or set of questions. It is there for a reason. So keep the answer
within the word limit. Examiners value and appreciate the answers written in the prescribed limit.

The team that sets these high-level papers roughly knows in how many words the answer to a particular
problem can be described masterfully. So value the limit set by them. If you exceed the word limit, it may
backfire.

What is the use to hold your nose by bending your hand around your neck when you could have simply held it
from the front!

3. Keep Your Answers Simple

Try to write your answer in the most straightforward form. Your motto should be to convey your ideas in a
way that a wide range of people can understand. Inserting big and tough words do not necessarily make your
answer attractive.

However, in Judiciary Exam, do not restrict yourself from using legal maxims and phrases to support your
answer. These words do make the writing presentation quite impressive.

4. Write Short Sentences

In the Judiciary exam, your primary motive should be to make yourself heard. The best way to clearly express
yourself is to write short sentences. They are easy to read, understand, and convey the impression of
friendliness. You may also choose to write in points. Like (1), (2), (3) and so on.

When you prepare for PCSJ exams, practice writing small sentences in your notebook. If you write a lengthy
sentence, practice the art of breaking it into two or three separate smaller pieces. This will gradually become
your habit.

Note: When you are writing the exact law, then do not break it. In that case, you have to write the long
sentence or, however, the section name is (which maybe devoid of regular grammar and norms. Law
sentences are quite lengthy.)

5. Break the Answer in Paragraphs

A long paragraph is arduous to read. Short paragraphs, on the other hand, are easy to consume. Also, dividing
your long answer makes the presentation better.

Now, you may ask, what is the ideal paragraph size? Well, it varies. But the acceptable limit ranges from three

192
to five sentences. These small chunks of precise writing, in short sentences, are valuable for all written
exams, or projects you undertake in the future.

6. Make Ample Use of Legal Terms

While writing, try to make the answers precise by using legal terms and words. For example, Suppose you are
trying to say that the marriage is void and parties have no legal obligations attached to it. This sentence is
perfect, and it makes sense, as well. But since you are writing a law exam, try to use legal terms.

Here you can simply write that the marriage is annulled. It sounds short, on point, and exhibits that you have
read multiple law content. The examiner will be impressed.

7. Mention Important Case Laws

Adding case laws to the answer makes it more authentic and convincing. The latest case laws work as a punch
mark to the written law that you write in the answer.

Even if you don’t remember the name or citation of a case, you can only write the verdict. Examiner is not
much interested in knowing the name, or story behind a case. Instead, he wants you to mention the verdict or
the judgment delivered by the apex court. Make sure you write this appropriately and suitably.

8. Follow Proper Judgement Writing Format

When you are attempting to write a judgement in your answer, remember the format or the sequence. It is
simple, and you can find these in various law books. The main thing in writing judgement is inferencing the
correct law and its application to the given facts.

9. Avoid Using Many Abbreviations

You are sitting in the hall hoping to become a member of the judicial services. Show this in the paper as well.
Filling your subjective answers with abbreviations make it less formal.

You are not using a small smartphone display or exchanging fun conversation with your mates. Rigorous hard
work of years should reflect in your words. Do not ruin it with a quick abbreviation.

When a person reads a paragraph, he wishes to continue a flow while reading all the sentences. A short form
or punctured word breaks this flow. Make the paper checker comfortable with your answers. Always
remember you are an upcoming judge. Your words should reflect your mindset and philosophy.

10. Have a Synopsis in Mind

Before putting the pen on the sheet, make sure to have an outline in mind. Ensure that you have a clear
picture of the layout of your answer. Do not think that ‘I will improvise as I proceed.‘ Have a clear picture from
the beginning. It prevents mistakes and makes your answer more systematic and chronological.

11. Set an Estimated Time Limit for a Question

You know your writing speed and the duration in which you can put thought from mind to paper. So, how
much time to give to a question or set of questions (like short, long) entirely depends on you.

When writing an answer, try to complete it within your set time frame. If you stretch one or two questions
and exceed the time limit, you will unnecessarily start to panic and lose control. So avoid that. Above tips like
sticking to the word count, having a summary before writing, will significantly help in adhering to the time
limit. Always remember that one or two questions with good long answers are not an excuse to miss even a
single question!

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For example, Suppose there are two long answers, and 40 minutes remain. You utilise 32 minutes to write an
excellent answer to one question and have only 8 minutes for the second one. Don’t do that.

In 20 minutes, you can write an answer that will award your 7 out of 10 marks. If you utilise 32 minutes, most
likely you will get 8.5 out of 10 for that.

Just think that, for 1.5 additional marks, is it okay to sacrifice the other question where you could have easily
scored a minimum of 5 or 6 marks, had you given it the appropriate share of the remaining time!

12. Allot the Last 15 Minutes for Revision

This is the very crucial time of your Mains examination. Within fifteen minutes, you have to go through the
whole paper that took you multiple hours to write! But it is essential.

In these fifteen minutes, check if you have missed a word, an essential note, or punctuation, or a short
example or a case name. You may also use this time to underline the crucial points of an answer. This time is
also suitable to check your credentials once more and ensure that everything is correct.

Keeping these techniques in mind, you can attempt Mains examination efficiently and flawlessly. A
systematic approach can make any horse win the race. Pick your weak points and work on them. Utilise the
time now. Back it up with a proper routine and proper management. Once you discipline yourself, no goal is
too big.

Finally, a student preparing for the Judicial Services Exam comes across multiple opinions as to how to
prepare. Make it a point never to get carried away with every advice you get. Listen to every piece of
information, but before acclimatizing it, analyse it yourself. A person better knows about himself or herself
than any other one.

All the best.....

From ZEENAT Ma'am..

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First test on CPC

Q. 1 define the following terms न न ल खत श द को प रभा षत क जए

(2 Marks for each × 3 = 6)

a) Foreign Judgment ( वदे शी नणय)

b) Mesne Profits (अं तः कालीन लाभ)

c) legal representative ( व धक त न ध)
Q.2 what are the Essential elements of decree? explain the difference between preliminary and final decree?
What are the difference between decree and order (10 Marks)

आ त के आव यक त व या है? ारं भक आ त और अं तम आ त म या अंतर है? आ त व आदे श म या अंतर है?

Q. 3 what do you understand by foreign judgement? In what manner may decree of foreign judgement be
executed in India? (5 Marks)

वदे शी नणय से आप या समझते ह? भारत म वदे शी नणय को कस तरीके से न पा दत कया जा सकता है?
Q. 4 Explain the expression suit of civil nature? (10 Marks)

I) Is a suit for right to franchise is a suit of civil nature? Give reasons in support of your answer.

II) is a suit for mere dignity or honour a suit of civil nature give reasons in support of your answer.

द वानी कृ त के वाद से आप या समझते ह? या न न ल खत वाद द वानी कृ त के बाद ह? कारण स हत समझाइए

I) मता धकार का अ धकार का वाद

II) के वल ग रमा या स मान से सं बं धत वाद

Q. 5. Explain the essential conditions, objects and applications of principle of rest judicata and explain the
difference between rest judicata and estoppel? (14 Marks)

पूव याय के स ांत क आव यक शत, उ े य और अनु योग बताइए. पूव याय और वबंध म या अंतर है
Second test on CPC

Q. 1.) In which court suit for damages for breach of contract may be instituted?

कस यायालय म सं वदा के भंग होने क त म त क ा त के लए वाद सं त कया जा सकता है? (5 Marks)

Q. 2) in which court suit relating to immovable property may be instituted?

कस यायालय म अचल सं प के सं बंध म सं त कया जा सकता है? (5 Marks)

Q. 3) when can appellate Court entertain and objection as to territorial or pecuniary jurisdiction of the court
passing a decree? कब अपीलीय यायालय, आ त पा रत करने वाले यायालय के ादे शक या आ थक े ा धकार के प म आप
दज कर सकता है? (8 Marks)
Q.4) explain and illustrate the rules relating to joinder of plaintiff and defendant in a civil suit
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स वल वाद म वाद और तवाद क सं योजन से सं बं धत नयम क ा या और वणन कर (10 Marks)
Q. 5) what do you understand by representative suit explain with its provision?

त न ध व वाद से आप या समझते ह ावधान स हत वणन कर? (8 Marks)

Q. 6) what is difference between necessary and proper party?

Can a suit be defeated on the ground of the non joinder of necessary parties(4 Marks)

Q. 7) who is Pleader and what are the rules relating to the appointment of Pleader explain (5 Marks)

Third test on CPC

Q. 1 How is a suit instituted under CPC?

सीपीसी के तहत वाद सं त कै सा होता है? (5Marks)

Q. 2 What are the basic difference between setoff and counterclaim?

मुजरा और तदावा म या अंतर है? (5 Marks)

Q. 3 What are the grounds for the rejection of plaint in CPC?

वादप के नामंजूर कए जाने के या आधार है? (5 Marks)

Q. 4 define summon. discuss the procedure for service of summons.

समन क प रभाषा द जए समन क तामील से सं बं धत या का वणन क जए (15 Marks)

Q. 5 What is the meaning of term pleading? What are the fundamental rules of pleading? refer relevant
provisions.

अ भवचन श द से या ता पय है? अ भवचन से सं बं धत मौ लक नयम या है? (15 Marks)

Q. 6 what is the consequence of non appearance of both the parties when the suit is called on for hearing?
What is the remedy available to the plaintiff when the the order has been passed by the court in consequence
of his non appearance when the suit is called for hearing?

वाद क सु नवाई के लए बुलाए जाने पर कोट म ना आने क वजह से दोन प कार को या प रणाम भुगतने पड़ सकते ह? वाद क सु नवाई म
बुलाए जाने पर य द वाद कोट म उप त नह होता है तो इस प र त म कोट जो नणय दे ती है उस नणय के सं बंध म वाद को या कोई
उपचार है?
(15 Marks)

Fourth test on CPC

Q. 1) Write short note on Discovery of document (द तावेज क कटन पर सं त ट पणी ल खए.) 5 Marks
Q. 2) What are the kinds of issues? ( ववा क के कार बताइए) 5 Marks
Q. 3) What is the object of framing of issues in civil suit? ( ववा क क वरचना का स वल वाद म या उ े य है) 5 Marks
Q. 4) Give difference b/w Question of fact & question of law with examples also (त य के और व ध के म या
अंतर है उदाहरण स हत बताइए) 5 Marks
Q. 5) Does the court have powers to amend and strike out the issues? ( या यायालय के पास ववा क का सं शोधन और
उ ह काट दे ने क श यां ह ? 5 Marks
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Q. 6) In what cases the court may pass preliminary decree? ( कन मामल म यायालय ारं भक आ त पा रत कर सकती है?
5 Marks

Q. 7) What is judgement? Which particulars should be included in the Judgement & decree? And what is the
differences between judgement and Decree? ( नणय या है? नणय और आ त म या- या व श यां शा मल होनी चा हए?
नणय और आ त म या अंतर है?) 15 Marks
Fifth test on CPC

Q. 1) Discuss the provisions of CPC regarding the issue of commission (कमीशन के जारी कए जाने से सं बं धत द वानी
या सं हता के ावधान का वणन क जए.) 15 Marks
Q. 2) Under what circumstances may Court order attachment before judgement? ( कन प र तय म यायालय
सं प क कु क का आदे श दे सकती है) 15 Marks
Q. 3) What are the distinctions between temporary injunction and a permanent injunction? explain the
circumstances when temporary injunction can be granted?? (अ ायी नषे धा ा और ायी नषे धा ा के बीच अं तर या ह?
उन प र तय क ा या कर जब अ ायी नषेधा ा द जा सकती है?) 15 Marks
Q. 4) discuss the provisions of the CPC regarding appointment of receiver. And what are their powers and
duties ( रसीवर क नयु के बारे म सीपीसी के ावधान पर चचा कर। और उसक श य और कत का भी उ लेख क जए) 15
Marks

Q. 5) Does the court have powers to amend and strike out the issues? ( या यायालय के पास ववा क का सं शोधन और
उ ह काट दे ने क श यां ह ? 15 Marks

197