Unit II: APPEARANCE, EXAMINATION, TRIAL

1. Interests
2. Inherent powers of courts
3. Suits by Indigent Persons (Order 33)
4. Suit by or against the Government (Ss. 79, 80 and Order 27)
5. Appointment of Receiver (Order 40)

Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed
by the court to administer/manage, that is, to protect and preserve a disputed property involved in
a suit.

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

He is not representative of either of the parties in the action, is uniformly regarded as an officer of
the court working in the interest of neither plaintiff nor defendant but for the common benefit of
all the parties.

What is the purpose of the appointment of a receiver?

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

Who can appoint a receiver?

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

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

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

Court has to keep the following principles in mind before appointing a receiver:

1. Appointment of a receiver is a discretionary power.

2. It is a protective relief to the plaintiff. The object is to protect and preserve the disputed
property till the time the suit is pending in the court.
3. A receiver should not be appointed unless the plaintiff shows prima facie that he has a
strong case against the defendant, and it is more than likely that he will succeed in the
suit.
4. Appointment of a receiver is one of the hardest remedies as it deprives the defendant of
his right to possession before the final decree.
5. Therefore, the court should not resort to it merely on the ground that it will do no harm.
There should be strong apprehension that there is a danger to the property or the plaintiff
will be in worse of a situation if the appointment of a receiver is delayed.
6. The court should appoint a receiver only when there is a possibility of wrong or injury.
Also, if it is shown that the subject matter is not in the possession of any of the parties
and it is in the common interest of both the parties to appoint a receiver for the protection
and preservation of the property.
7. The court should look at the conduct of the party who makes the application for
appointment of a receiver. The party should come to the court with clean hands and
their conduct should be such that they are not disentitled to this equitable relief.
The above principles were introduced by the Madras Court in the case of T. Krishnaswamy Chetty
vs C. Thangavelu Chetty and Ors.1 These principles are now well established in the Indian
jurisprudence.

Who can apply for the appointment of the receiver?

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

Who can be appointed as a receiver?

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

1 T. Krishnaswamy Chetty vs C. Thangavelu Chetty And Ors., AIR 1955 Mad 430.

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not appointed as receiver by the court. But in extraordinary circumstances, a party to suit can be
appointed as receiver.

When can a receiver be appointed?

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

Under the code itself, the receiver can be appointed to prevent the ends of justice being defeated.
[section 94(d)]. Similarly, for the execution of a decree, the court has the power to appoint a
receiver. [section 51(d)].

There are provisions in special acts which provides for the appointment of a receiver by the court.
For example, section 84 of the Companies Act, 2013 provides for the appointment of a
receiver. Similarly, section 69A of the Transfer of Property Act, 1882 also provides for the
appointment.

What is the process of appointment of a receiver?

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

For instance,

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

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

affidavit.
2. Receiver other than the official receiver has to give security.
3. The security is to be given to the satisfaction of the registrar.
4. He has to provide personal bonds with the number of surety required by the registrar.
The personal bond will be double the amount of annual rental value of the property or
the total value of the property which the receiver is going to administer.
5. Within a week of appointment, the receiver will have to submit a report providing the
details regarding the property such as inventory of property or books of account etc.
6. The registrar will give directions on where to invest the money received by the receiver
from the property. Generally, such money is submitted in scheduled banks or
government bonds.

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

1. Collection of rents and profits arising out of the property.

2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the court. For example,
If a person obstructs or interferes with the receiver’s right to possession, it will amount to
obstruction in a court proceeding and such a person can be made liable for contempt of court.
Similarly, property in the hands of the receiver cannot be attached without the leave of the court.

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

Without the permission of the court, the receiver cannot:

i. Grant lease on the property.

ii. Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.
What are the duties of the receiver?
Under order 40 rule (3), duties of a receiver are provided as follows:

1. Furnish security to account for what he will receive from the property as income.
2. Submit accounts (half yearly) for such period or form as directed by the court. The
account basically includes the income received and expenses incurred for the protection
and preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the
receiver’s wilful negligence.
5. Discharge the duties personally and should not delegate or assign any of the rights
entrusted to him by the court.
The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise,
the court can take action against him and make him personally liable for any loss which might
occur due to his negligence or wilful failure to protect and preserve the property.

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What are the liabilities of a receiver?
According to Order 40 rule (4), When a receiver fails:

1. To submit the reports as specified by the court or,

2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. 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 wilful default or negligence.

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

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

Will a receiver be entitled to remuneration?

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

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

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

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

i. On First Rs. 10,000: 5 %

ii. Above Rs. 10,000 up to Rs. 20,000: 3 %
iii. Above Rs. 20,000 up to Rs. 50,000: 2 %
iv. Above Rs. 50,000 up to Rs. 1,00,000 : 1 %
v. Above Rs. 1,00,000: ½ %

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

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

Can a collector be appointed as a receiver?

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

Conclusion
Clearly, the receiver plays an important role whenever the court requires the receiver to manage
the subject matter in a suit to protect and preserve it till the time, the court decrees the suit.

The receiver is an officer of the courts and the subject matter managed by him is considered to be
in custody of the law. The court appoints a receiver when the court is of the opinion that neither
of the party should manage the property till the time the matter is decided. Any person can become
a receiver provided they fulfil the requirements set by the court.

A receiver should be of impartial, independent and indifferent character who has no stake in the
subject matter and can manage the property just as a prudent man will do with his own property.
Court have vested certain powers and responsibilities on the receiver which he should use to
manage the property in the best way possible.

The receiver should be careful while making an important decision related to the subject matter as
he is personally liable for any damage to it. He can seek the permission of the court before making
such decisions to be safe.

Inherent Powers of the Court Under CPC, 1908

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

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

1. Section 148 and Section 149 deals with grant or enlargement of time.
2. Section 150 deals with the transfer of business.
3. Section 151 protects the inherent powers of the courts; and
4. Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

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

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

Payment of court fees

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

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

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Transfer of business

According to Section 150 of CPC, “Save as otherwise granted, where the business of any Court is
assigned to any other Court, the Court to which the business is so assigned shall have the same
authority and shall make the same duties as those sequentially presented and forced by or under
this Code upon the Court from which the business was so assigned.” For example- When the
business of a court A is transferred to any other court B, the court B will exercise the same power
or perform the same duties given or commanded by CPC upon the transfer court.

Section 151 of CPC

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

The scope of exercising of Section 151 of CPC can be represented by some cases as follows:

1. The court may recheck its orders and resolve errors.

2. Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order.
3. Illegal orders or orders passed without jurisdiction can be set-aside.
4. Subsequent events in the case can be taken into consideration by the court.
5. Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings.
6. The court can erase remarks made against a Judge; and
7. The court can improve the suit and re-hear on merit or re-examine its order.

Ends of justice

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

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

Abuse of process of the court

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

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

Amendment of judgments, decrees, orders, and other records

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

Section 153 deals with the “General authority to amend.” This Section empowers the court to
amend any fault and error in any proceedings in suits and all required improvements shall be made
for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may set correct any blunders in their
experiences at any time.

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

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

1. They can be applied only in the deficiency of particular provisions in the Code.

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

Summary of Provisions of Inherent powers of Courts

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

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

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

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

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 Suits by or against Government or Public Officers in their official capacity

Abstract
Under the Civil Procedure Code, the subject of suits by or against public officers in their official
capacity has been recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should
be understood that Section 79 of CPC is a procedural provision and hence, it does not deal with
rights and liabilities enforceable by or against the government. But at the same time, it declares a
mode of the procedure when the cause of action arises. On the other hand, Section-80 of CPC is
not a procedural provision but a substantive one, the rules involved in it and working of Section
80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects
like that of recognized agents, attorney general and the procedure to be followed while the suit is
being filed by or against the government or public officers in their official capacity. This article
tries to analyse the three sections in detail and provide an overview of the same in a clear-cut way.

Analysis
Section 79 and 80 are defined as follows under the Procedure of Civil Code-

Section 79- This Section defines the concept of suits by or against the government: Whenever a
case is filed against a government or if it is filed by the government, the plaintiff and the defendant
who will be named in the case will be as provided under:

1. Whenever the case is instituted by or against the central government, the Union of India
will be represented as the required plaintiff or defendant respectively.
2. Whenever the suit is filed by or against the state government, the state government will
be required to act as the plaintiff or the defendant.
Section 80- This section deals with the concept of Notice. According to this Section, there exists
no onus for the institution of a suit against the government without issuing a notice regarding the
same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a
public officer with respect to the act done by him in his official capacity, there is again a need for
issuance of notice regarding the same. Further, the notice should be served two months prior to the
institution of the suit, and it should be made sure that such a notice was delivered or left at the
office of:

1. Whenever the case is against the central government, and it does not relate to the
railways then, the notice should be delivered to the secretary of the government.
2. Whenever a case has been instituted against the central government and it relates to the
railways then, the notice is to be served to the general manager of that railways.

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 3. Whenever the case is instituted against any of the state governments then, the notice is
to be served either to the secretary to that government or to the collector of the
district.

Scope of Section 79
For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need
for further fragmentation of the Section into various subtopics like that of the jurisdiction of
Section 79 and the institution of suit against the railways which will be looked into in the next part
of this article.

Section 79

Section 79 lays down the procedure whereby the suits are brought by or against the government
but at the same time, it does not deal with the rights and liabilities enforceable by or against the
government body. In the case of Jehangir v. Secretary of State, an important observation was
made which was that this section gives no cause of action but only declares the mode of the
procedure when the cause of action arises.

Jurisdiction

Under Section 79, only the court within whose local limits, the cause of action arose, has the
jurisdiction to try the suit and otherwise it cannot. In the case of Dominion of India v. RCKC
Nath & Co., it was held that words like ‘dwell’ or ‘reside’ or ‘carry on business’ which are
mentioned in Section 18, 19 and 20 of code, do not apply to the government.

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim
against railway administration can be brought against the Union of India or State, and this may not
include making the railway administration a part of the suit. But on the other hand whenever there
is a requirement for a suit for freight for carrying goods, then such a suit can be instituted by the
Union of India, and this was held in the landmark case of Union of India v. RC Jall.

In the case of Secretary of State v. Rustom Khan, there was a significant observation made
regarding the liability to be sued, under Section 79 of CPC. No suit could lie against the East India
Company in respect of the act of state or acts of sovereignty, and therefore no suit in respect of
such acts would be competent.

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Section 80
This part of the article will include under its ambit the detailed analysis of Section 80 of Civil
Procedure Code, and for the purpose of better understanding, the subtopics are to be studied by
breaking them down under the Section of nature and liability, contents of the notice, effect of non-
compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part of
the Secretary of the State or the Public officer to reconsider his legal position in order to make
amends or settle down the claim if so advised. This can further be done without litigation or afford
restitution or without recourse to court of law. Whenever a statutory notice is issued to public
authorises, they are required to further take notice in all seriousness, and they are not required to
sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80 is required to contain the following aspects: name, description, residence
of the plaintiff, the cause of action and lastly the relief which the plaintiff claims. Also, the notice
is required to convey to its recipients, sufficient information to enable him to consider the claim,
which was held in Union of India v. Shankar Stores. The above-mentioned particulars should be
given in such a way that, it enables the authorities to identify the person giving the notice.

Effect of Non-Compliance

Non-compliance with the requisites of this Section or any omission in the plaint which is required
would result in the rejection of the plaint under Order 7, Rule 11. If the suit is against a public
official and a private individual, and no notice is served on the public officer, the plaint is not to
be rejected but the suit is carried on with the name of the public officer struck off.

Waiver of Notice

As the requirement of the notice is just procedural and not substantive, and as it is for the benefit
of the public officer or the government, it is open to government and public officers to waive it. If
the defendant wants to rely on the invalidity of the notice, it is for him to raise a specific issue on
the point, this was held in the case of Lalchand v. Union of India.

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Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appoint in this behalf. State of Rajasthan v. Jaipur
Hosiery Mills, in this case, it was held that the sanction to sign must be prior to the institution,
and if not complied with this, the signing shall be by an incompetent person, and further, issuing
of a retrospective sanction will not preserve the defect.

Government pleader is an agent under the order 27 of CPC. The government pleader acts as an
agent for receiving processes issued against the government. Also, he is the only person to intimate
the court that he is representing the government and no stamped power of attorney or vakalatnama
is required for the same.

Lutfar Rahman v. State of West Bengal. In the aforementioned case, it was held that when a
person other than the government pleader wants to act as an agent, it is possible only when the
government agent intimates the Court that the former is acting under his directions. Rule 5 of Order
27 has been discussed in the next segment of this article.

2- Attendance of person being able to answer the questions related to suits against the
government- The court may, in any case where government pleader is not accompanied by person
on the part of the government and if he is able to answer the questions relating to suit, the court
may direct the attendance of that person.

Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added
advantage while dealing with the case, clause (2) and (3) were added to Section 80 by the
amendment of 1976. Sub Clause (2) has been inserted to permit the institution of the suit without
notice, but it must be accepted only after giving a reasonable opportunity of showing cause in
respect of relief claimed. Sub-section (3) on the other hand prohibits the dismissal of a suit where
the notice has been served but suffers from certain technical deficiencies.

It should also be taken into consideration that there exist various instances where there were
widespread abuse and misuse of the concerned section by the government and public officials in
order to dispose of the litigation on the grounds of technicality, and this aspect of the provision
should be given more attention in order to overcome the negative aspects which exist in it.
Moreover, sub-section (3) was included in the Section in order to offer a better clarification that
no suit against the government or a public officer can be dismissed merely on the grounds of
existence of defect or error in the notice.

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Conclusion
Hence, all the three provisions which bring to light the various procedures and rules involved in
the suit by or against the government or a public officer have been discussed and analyzed in detail.
It can be said that the applicability of these sections must be determined by the law as it stands.
Further, if the procedure lay down by the rule in these sections is not followed, then the court is to
proceed with the footing that there is no appearance of government pleader on behalf of the public
officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while filing a suit.

In addition to all the above-mentioned aspects, the sections regarding suits by or against the
government and public officers also specify the procedure to be followed while filing of a writ and
also what steps to be taken when there is permanent suit on appeal or if there is a revision.

There is also mention of the nature and applicability of Section 80 of the civil procedure code, and
this section drags its attention towards the matter whether the serving of notice is a mere formality
or is it a mandatory aspect under the section. Lastly, the section also deals with the aspect of what
acts come under the arena of official capacity.

Suits by indigent persons: Order 33

A. Nature and scope

Order 33 provides for filing of suits by indigent persons. It enables persons who are too poor to
pay court fees and allows them to institute suits with- out payment of requisite court fees.

B. "Indigent person": Meaning: Order 33 Rule 1

A person is an "indigent person" (1) if he is not possessed of sufficient means to enable him to pay
the fee prescribed by law for the plaint in such suit; or (ii) where no such fee is prescribed, when
he is not entitled to property worth one thousand rupees. In both the cases, the property exempt
from attachment in execution of a decree and the subject-matter of the sun should be excluded.

Any property acquired by the applicant after the presentation of the application for permission to
sue as an indigent person and the decisions thereon should also be taken into consideration for
deciding the question whether the applicant is an indigent person. The word "person" includes
juristic person.

C. Contents of application: Rule 2

Every application for permission to sue as an indigent person should contain the following
particulars:

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 1. The particulars required in regard to plaints in suits,
2. A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof, and
3. Signature and verification as provided in Order 6 Rules 14 and 15.40

The application should be presented by the applicant to the court in person unless exempted by the
court. Where there are two or more plaintiffs, it can be presented by any of them. The suit
commences from the moment an application to sue in forma pauperis is presented.

D. Rejection of application: Rule 5

The court will reject an application for permission to sue as an indigent person in the following
cases:

1. Where the application is not framed and presented in the prescribed manner; or
2. Where the applicant is not an indigent person, or
3. Where the applicant has, within two months before the presentation of the application,
disposed of any property fraudulently or in order to get permission to sue as an indigent
person; or
4. Where there is no cause of action; or
5. Where 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. Where the suit appears to be barred by law; or
7. Where any other person has entered into an agreement with the applicant to finance costs
of the litigation.

E. Inquiry: Rule 1-A

In the first instance, an inquiry into the means of the applicant should be made by the Chief
Ministerial Officer of the court. The court may adopt the report submitted by such officer or may
itself make an inquiry.

Where the application submitted by the applicant is in proper form and is duly represented, the
court may examine the applicant regarding the

merits of the claim and the property of the applicant. The court shall then issue notice to the
opposite party and to the Government Pleader and fix a day for receiving evidence as the applicant
may adduce in proof of his indigence or in disproof thereof by the opposite by the Government
Pleader. On the day fixed, the court shall site pare the witnesses (if any), produced by either party,
hear their arguments and either allow or reject the application."

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 F. Where permission is granted: Rules 8-9-A

Where an application to sue as a indigent person is granted, it shall be deemed to be a plaint in the
suit and shall proceed in the ordinary manner except that the plaintiff will not have to pay court
fees or process fees. The court may assign a pleader to an indigent person if he is not rep resented
by a pleader. The Central Government or the State Government may make provisions for rendering
free legal aid and services to indigene persons to prosecute their cases. A defendant can also plead
set-off or counterclaim as an indigent person.

G. Where permission is rejected: Rules 15-15-A

Where the court rejects an application to sue as an indigent person, w grant time to the applicant
to pay court fees. An order refusing to allow an applicant to sue as an indigent person shall be a
bar to a subsequent similar application. However, 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.

H. Revocation of permission: Rule 9

The court may, on an application by the defendant or by the Government Pleader, revoke
permission granted to the plaintiff to sue as an indigent person in the following cases:

1. Where he is guilty of vexatious or improper conduct in the course of the suit, or

2. Where his means are such that he ought not to continue to sue as an indigent person, or
3. Where he has entered into an agreement under which another person has obtained an
interest in the subject-matter of the suit.

I. Costs

The costs of an application to sue as an indigent person shall be the costs in the suit.

J. Recovery of court fees and costs

1. 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.
2. 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.

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Section 34 CPC : An overview

When a court passes a decree, the court may grant interest on the amount to which the decree-
holder is found to be entitled, and Section 34 provides for relevant provisions relating to the
granting of such interest. The Section clarifies the sum on which the interest is granted, which is
termed the “principal sum adjudged.” It includes the principal sum of money to which the decree-
holder is entitled, along with the interest charged on such a sum for the period preceding the
institution of the suit. As a result, in general, it is the entire amount claimed by the litigant in court
to which he becomes entitled prior to the filing of the suit.

Further, Subsection (1) of Section 34 can be divided into two parts as it provides for interest being
granted on two kinds of periods which are as follows:

1. From the date of suit to the date of the decree: The interest on the principal sum
adjudged is from the date of suit to the date of the decree. The interest rate should be at the
discretion of the court and there is no upper limit to such kind of interest.
2. From the date of the decree to the date of payment of money to the decree-holder:
Herein, the court can grant interest on the principal sum adjudged at its discretion.
However, an upper limit on such interest rate has been cast by the Section which is six
percent per annum; such kind of interest has been referred to as “further interest”. Proviso
to this subsection provides that in case of commercial transactions the further interest can
exceed the rate of six percent per annum and the upper limit in such cases will be the
contractual rate of interest. The proviso further explains, that where there is no contractual
rate of interest provided the upper limit will be the rate at which money is lent or advanced
by the nationalised banks in relation to the commercial transaction.

The first explanation to the proviso provides that the meaning of the term “nationalised banks” is
to be construed as per the Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970, wherein the Act has classified a bank as a “corresponding new bank.” The term
“corresponding new bank” has been defined under Section 2(d) of the Act, wherein this is the list
of body corporates listed as banks, and the list of such body corporates has been provided under
Column No. 2 of the first schedule of the Act.

The second explanation to the proviso provides that the term “commercial transaction” will refer
to those transactions that are connected with the industry, trade, or business of the party who has
incurred the liability. It is pertinent to note that the party who has incurred the liability will be the
judgement debtor.

Subsection (2) of Section 34 provides that where the court has passed the decree but the decree is
silent on granting further interest, it should be deemed that the court has refused such interest. The
following provision also bars a subsequent suit for claiming such an interest.

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Scope of Section 34 CPC

In the case of Bhagwant Genuji v. Gangabisan Ramgopal (1940), it was held that Section 34
applies only in cases where the decree is for payment of money, and the fact that the suit included
claims of unliquidated damages or liquidated damages is inconsequential to the application of this
Section. Further, in the case of Dwarkanath v. Debendra (1906), it was held that no analogy can
be drawn between mesne profits and Section 34 as the former aims to remedy the situation of loss
caused by wrongful possession and the latter aims to remedy the unjust enrichment of the
judgement debtor by prolonging the suit off.

It is pertinent to note that Section 34 does not apply in cases where the decree is for enforcement
of a mortgage or charge as the same is governed by Order 34 Rule 11 of the Code. However, a
decree passed under Order 34 Rule 6 that relates to an amount payable when the proceeds from
the sale of mortgage property are found to be insufficient to cover the debt given in lieu of a
mortgage is governed by Section 34 as it is a personal decree.

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