All Class Notes CPC

Topics Covered

Reading

Part I - Chapter 2: Definitions

Decree, Judgement and Order
A. Decree

a. any adjudication from which an appeal lies as an appeal from an order or

b. any order of dismissal for default

Explanation - A decree is preliminary when further proceedings have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.
The essential elements of a decree are -

1. An adjudication

An adjudication is a judicial determination of the matter in dispute.

2. Adjudication done in a suit

A suit means a civil proceeding instituted by the presentation of a plaint - Hansraj Gupta v Official
Liquidators of The Dehra Dun-Mussoorie Electric Trainway Co. Ltd. (1923-33) 60 IA 13.

3. Determination of rights of parties with regard to controversial matters in the suit

4. Determination is conclusive in nature

5. Formal expression of such adjudication

B. Judgement

C. Order

Part II - Chapter 1: Jurisdiction

Pecuniary Jurisdiction
Section 6 - 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 subject-matter
of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.
Section 15 - Court in which suits to be instituted - Every suit shall be instituted in the Court of the
lowest grade competent to try it.

Pecuniary jurisdiction is determined by the valuation of suit, which is done on the basis of relief asked for.

Territorial Jurisdiction

All Class Notes CPC 1

 Section 16 - Suits to be instituted where subject-matter situates - Subject to the pecuniary or other
limitations presscribed by any law, suits—
a. for the recovery of immovable property with or without rent or profits,

💡 S.2(12) Mesne profits - 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

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. or the determination of any other right to or interest in immovable property,

💡 S.34 of Specific Reliefs Act - Discretion of court as to declaration of status or right - Any
person entitled to any legal character, or to any right as to any property, may institute a suit
against any person denying, or interested to deny, his title to such character or right, and the
court may in its discretion make therein a declaration that he is so entitled and the plaintiff need
not in such suit ask for further relief. Provided that no court shall make any such declaration
where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do
so. Explanation - A trustee of property is a “person interested to deny” a title adverse to the title
of some one who is not in existence, and whom, if in existence, he would be a trustee.

e. for compensation for wrong to immovable property,

f. for the recovery of movable property actually under distraint or attachment,

💡 Property is movable but kept under restraint

shall be institued in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by
or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal
obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is
situate, or in the Court within the local limits of whose jurisdiction the defendant actually and
voluntarily resides, or carries on business, or personally works for gain.

💡 In case the property is not needed for the suit, and only the defendant needs to be on board,
the jurisdiction of the court can be either -

a. residence of defendant

b. place of business of defendant

c. defendant works for personal gain

All Class Notes CPC 2

 💡 Section 20 - Other suits to be instituted where defendants reside or cause of action
arises - Subject to the limitations aforesaid, every suit shall be instituted in a Court within the
local limits of whose jurisdiction—
the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
provided that in such case either the leave of the Court is given, or the defendants who do not
reside, or carry on
business, or personally works for gain, as aforesaid, acquiesce in such institution; or
(c) The cause of action, wholly or in part, arises.

Explanation - In this section “property” means property situate in India.

Section 17 - Suits for immovable property situate within jurisdiction of different Courts - Where a
suit is to obtain relief respecting or compensation for wrong to, immovable property situate within the
jurisdiction of
different Courts. the suit may be instituted in any Court within the local limits of whose jurisdiction any
portion of the property is situate :
Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by
such Court.

Section 18 - Place of Institution of suit where local limits of Courts are uncertain - (1) Where it is
alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any 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.

(2) Where a statement has not been recorded under sub-section (1), and 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 - Suits for compensation for wrongs to person or movables - Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was done within the local
limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally
works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the
option of the plaintiff in either of the said Courts.
Section 20 - Other suits to be instituted where defendants reside of cause of action arises - Subject
to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose
jurisdiction—

All Class Notes CPC 3

 a. the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or

b. any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works for gain, provided that in
such case either the leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally works for gain, as aforesaid, acquiesce in such institution; or

c. The cause of action, wholly or in part, arises.

Foreign Jurisdiction
S.2(5) and S.2(6); S.13 and S.14 of CPC + S.77 and S.86 of the Evidence Act
S.2(5) - “foreign Court” means a Court situate outside India and not established or continued by the
authority of the Central Government;
S.2(6) - “foreign judgment” means the judgment of a foreign Court;

S.13 - 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 jurisdication;

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.

S.14 - Presumption as to foreign judgements - 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.

💡 Presumption, as per S.112 of the Evidence Act, is of three types; presumption of shall, may and
conclusive proof. Presumption of may - court has discretion in presuming certain things;
Presumption of shall - court has no discretion in presuming certain things; Conclusive proof
- No evidence required.

Res Subjudice
S.10 Stay of Suit - No Court shall proceed with the trial of any suit in which the matter in issue is also
directly and substantially in issue in a previously instituted suit between the same parties, or between
parties under whom they or any of them claim litigating under the same title where such suit is pending in
the same or any other Court in India have jurisdiction to grant the relief claimed, or in any Court beyond
the limits of India established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court.

All Class Notes CPC 4

 Explanation - The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a
suit founded on the same cause of action.

Breakdown -

a. shall proceed with trial of the suit- compulsion

b. matters directly and substantially in issue - as opposed to matters collaterally in issue, these issues
are those that have to be dealt with in order to adjudicate on the case

c. same parties or between parties litigating under the same title

d. where such suit is pending in Indian jurisdiction

Res Judicata
S.11 - Res Judicata - 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.

Explanation I - The expression “former suit” shall denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior thereto.

Explanation II - 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 - 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.

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 - Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating.

Explanation VII - The provisions of this section shall apply to a proceeding for the execution of a decree
and references in this section to any suit, issue or former suit shall be construed as references,
respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a
former proceeding for the execution of that decree.

Explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.

Court should be competent to hear matter.

Res Sub-Judice
In both res sub-judice and res judicata, former court must have jurisdiction to deal with subsequent suit.
(Explanation VIII of S.11 is an exception)

All Class Notes CPC 5

 Must have jurisdiction implies the court having competency to deal with the matter i.e., it must have
territorial and pecuniary jurisdiction.
While territorial and pecuniary jurisdiction are considered technical and often not grounds for dismissal,
subject-matter jurisdiction is non-negotiable and valid grounds for dismissal.

For res sub-judice to apply, there must always be a pending suit and not just a pending proceeding.
If the title has changed, res sub-judice and res judicata will not apply. S.10 is not exhaustive. S.151 can
be invoked to prevent failure of justice if S.10 is not applicable. Title is the legal capacity in which the suit
is being filed.

Res Judicata
Breakdown of S.11 -

a. No court shall try any matters in which

b. Matters directly and substantially in issue (subsequent suit)

c. Has been directly and substantially in issue in a former suit - Former suit which has been decided
prior. Former suit has to be read with Explanation I.

d. Between the same parties under the same title

e. Competency of court - should be read with Explanation VIII [if the court is of limited jurisdiction and
cannot deal with subsequent suit, res judicata will still apply to the subsequent suit] Sulochana Amma
v Narayanan Nair 1994 SC - ratio can be used.

f. Heard and finally decided.

EXAMPLES -

1. A suit between X and Y, which has been decided and dismissed on merits for arrears of rent (with
property being A sq ft). X wants to file another suit against Y claiming the suit to be B sq ft. The
second suit is not res judicata as the issue of suit size is collateral and not direct and substantial.

2. A grants to B a piece of land for 3 months. After the expiration of 3 months, A files a suit against B for
eviction. The suit is dismissed in the court because A is unable to prove the lease. Subsequently, A
files a suit against B for possession. Res judicata will not apply because the title is different in
both suits. In the first suit, A files a suit in the capacity of a lessor and in the second suit he
files a suit in capacity of owner.

3. A, a principal files a suit against B, his agent for breach of contract due to B committing a tort. The
suit is dismissed because contract is not proved. A files another suit against B for damages due to
tort. Res judicata will not apply because the title is different in both suits. In the first suit, A
files a suit in the capacity of a principal and in the second suit he files a suit in capacity of
private person.

4. W files a maintenance suit against husband H claiming desertion and refusal of maintenance. The
court (Civil judge junior division [refer to S.3, CPC for hierarchy) decided the suit against H and
ordered maintenance. H files a case for divorce in District Court claiming wife has deserted him. W
appears and argues that the matter of desertion cannot be taken up again because it was decided by
the CJJD. Res judicata will not apply as the former court is not competent to try the
subsequent suit. It does not fall within the ambit of Explanation VIII as Civil Judge Junior
Division court is a general court.

All Class Notes CPC 6

 5. Ex parte decrees - res judicata shall apply on ex parte decrees only if the plaintiff was heard on
merits.

6. Consent decrees - parties have entered into a compromise and dispute has been settled outside the
court. Res judicata will not apply as issues were not framed, parties were not heard and nothing was
decided by the court.

7. Withdrawal of suits ([Link]) - Res judicata will not apply

8. Arbitration proceedings - Res judicata will apply however S.11 will not apply as arbitration is not
governed by the CPC

9. Abatement ([Link]) - Res judicata will not apply because suit was not conclusively determined or
heard by the parties.

10. Explanation IV - Constructive res judicata - (might and ought to) applicability of res judicata on the
basis of implication. State of UP v Nawab Hussain - A files a suit against his dismissal and says that
DIG has dismissed him. Court dismisses the suit. A files another suit saying that his appointing
authority was IG hence he should not have been dismissed by the DIG. The second suit is barred by
res judicata.

Res Judicata Estoppel

Decision of the court Act of parties

Applicable on both parties Applicable to one party

11. Res judicata can apply on issues within the same suit as well; but will only be applicable on issues
that will not change during the pendency of the suit such as jurisdiction, limitation

12. Temporary injunction - res judicata cannot apply as the circumstances are liable to change.

13. Applicable maxims

Nemo Debet Bis Vexari Pro Una Et Eadem Causa - No one should be vexed twice for the same
cause.

Interest Reipublicae Ut Sit Finis Litium - In the interest of State, there should be an end to litigation.

Res Judicata Pro Veritate Accipitur - A decision once rendered by competent court on matter in
issue has to be considered final.

Exceptio Res Judicata - Exception for the defendant wherein a subsequent suit cannot stand in light
of a former suit already being decided.

14. Res judicata is applicable on all writs except Habeus Corpus

15. You cannot waive the right to res judicata.

💡 Can res judicata be raised by a party at a later stage during the subsequent suit? Yes
What will be nature of decree in (i) violation of res judicata and (ii) in violation of res sub-
judice?
Res sub-judice - Any decree passed in violation of Section 10 is not null and void.

Res judicata - Any decree passed in violation of Section 11 is null and void.

All Class Notes CPC 7

 Constructive Res Judicata
Example - A files suit saying he is a landlord. The suit is decreed. A files a subsequent suit saying he is a
tenant.
Constructive res judicata not applicable because of inconsistent pleadings and change in title.

Example - Can parties say that the decree was obtained by fraud and thus, res judicata shall not apply?
S.44 of IEA allows you to file a suit and question the decree. S.41 IEA - principle of res judicata i.e.,
anything that has been decided cannot be redecided. Matter in issue would be whether the decree was
obtained by fraud or not.
Section 44 - Fraud or collusion in obtaining judgment, or incompetency of Court, may be proved -
Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant
under section 40, 41 or 42, and which has been proved by the adverse party, was delivered by a Court
not competent to deliver it, or was obtained by fraud or collusion.

Res Judicata - Competency of Court

Competency of former court w.r.t subsequent suit should be seen on date of institution. A files a suit
against B regarding eviction from the house on 1st January 2022. Court gives judgement on 31st March
2022. A wants to file a suit after 31st March against B. A files another suit on 1st April 2022. The date to
check the competency of the former court to deal with subsequent suit would be 1st January 2022.
💡Res judicata will not apply to withdrawal suits u/Order XXIII Rule 1(4) however, if the plaintiff withdraws
the suit without the consent of the Court, estoppel will apply and plaintiff is barred from filing another suit.
Explanation I.—The expression “former suit” shall denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior thereto.

Explanation II.—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.—Any matter which might and ought to have been made ground of defense or attack in
such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Constructive res judicata

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.—Where persons litigate bona fide in respect of a public right or of a private right claimed
in common for themselves and others, all persons interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so litigating . Res judicata applicable to people for
whom the bona fide litigation is commenced.

Explanation VII.—The provisions of this section shall apply to a proceeding for the execution of a decree
and references in this section to any suit, issue or former suit shall be construed as references,

All Class Notes CPC 8

 respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a
former proceeding for the execution of that decree. Execution decree - res judicata shall apply.

Explanation VIII. —An issue heard and finally decided by a Court of limited jurisdiction, competent to
decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.

Res Judicata Between Parties

💡 Proforma defendant’s claims lie with the plaintiff

Will res judicata apply between co-defendants or co-plaintiffs? Res judicata will apply.

Res Judicata Regarding Writs

Daryao v State of UP, 1961 - Res judicata applies to all writs except habeas corpus. If a HC decides on a
writ petition, the same cannot be filed in the SC afresh. To move the SC regarding the HC’s decision on
the writ petition, the person can appeal the matter as an appeal is a matter of rights.

Res Judicata and Appeals

A files a suit against B for ownership and possession. B also files a suit against A regarding the same
claims. A v B suit was dismissed by court. In B v A, the court files a decree in favour of B. A is the
aggrieved person. A wants to appeal against said suits. A files an appeal in A v B and B v A. A v B was
dismissed. HC said A v B appeal dismissed due to bar of time.
In appeal by A under B v A - B contends that previous suit (A v B) had the same issues and matters and
every matter was decided conclusively. Res judicata should apply. The previous appeal in A v B should be
considered as final.

AvB BvA

Cause of Action Ownership and Possession Ownership and Possession

Judgement Dismissed In favour of B

B contends res judicata

should apply. The time
First Appeal Dismissed due to time bar
barred appeal shall be
treated as res judicata.

Sheodan Singh v Daryao Kanwar - Supreme Court stated that “if two different suits have been filed by
the same parties on the same matters in issue and competent court grants a decree in favour of one
party. After decree, if more than one appeal has been filed by the aggrieved and one appeal has been
dismissed on technical grounds, the decision of said appeal shall apply to all subsequent appeals,
operating as res judicata. Even if the appeal is dismissed on technical grounds, since the judgement was
decided by competent court on merits; it will be assumed that the appeal was also decided on merits and
res judicata shall apply on other appeals.” The identity of the two suits are different therefore
subsequent/former suits concept shall apply
Narhari v Shankar - Res judicata not applied in Narhari v Shankar. Cross appeals were coming from the
same suit.

All Class Notes CPC 9

 Section 12 - Bar to further suits -
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.
S.11 - res judicata
S.21A - bar on suit to set aside decree on objection as to place of suing

S.47(1) - All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.
S.95(2) - An Order determining any such application shall bar any suit for compensation in respect of
such arrest, attachment or injunction.

S.144(2) - An order under this section may, in cases of emergency or in cases where the circumstances
do not admit of the serving in due time of a notice upon the person against whom the order is directed, be
passed ex parte.
Order II Rule 2 - Every suit must include the whole claim that a party is entitled to and when a part of a
claim is relinquished, the same cannot be sued for thereafter.
Order IX Rule 9 - provides for an order to set aside dismissal of a suit if plaintiff satisfies the Court that
there was sufficient cause for his non-appearance.
Order XI Rule 21(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.
Order XXII Rule 9 - Effect of abatement or dismissal

Order XXIII Rule 1(1), 1(3), 1(4) - Withdrawal of suits

Order XXIII Rule 3A - bars a suit to set aside a decree on the ground that the compromise on which the
decree is based was not lawful.

Section 21 - Objection to jurisdiction -

(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless
such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases
where issues are settled at or before such settlement, and unless there has been a consequent failure of
justice.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction
shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first
instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such
settlement, and unless there has been a consequent failure of justice.
(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.

💡 Defendant can raise the objection after the issues are settled by amending his pleading ([Link]
Rule 17). Heera Lal v Kalinath

All Class Notes CPC 10

 Section 23(3) - To what Court the application lies - (3) Where such Courts are subordinate to different
High Courts, the application shall be made to the HC within the local limits of whose jurisdiction the Court
in which the suit is brought is situate
Durgesh Sharma v Jayshree - S.23(3) rendered redundant.
Institution of suit - S.26 and [Link] to be read together.

Order I - Parties to the Suit

💡 O.I R.1/R.3 - Joinder of plaintiffs and defendants;

[Link] R.3 - Joinder of causes of actions

O.I R.1 - Joinder of plaintiffs

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

b. the case is of such a character that, if such persons brought separate suits, any common questions of
law or fact would arise.

O.I R.3 - Joinder of defendants

a. any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative;
and

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

O.I R.2 - Power of Court to order separate trial

Where it appears to the Court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the
Court may put the plaintiffs to their election or order separate trials or make such other order as may be
expedient.
O.I R.3A - Power to order separate trials where joinder of defendants may embarrass or delay trial
-
Where it appears tot he Court that any joinder of defendants may embarrass or delay the trial of the suit,
the Court may order separate trials or make such other order as may be expedient in the interests of
justice.

💡 Difference between O.I R.2 and O.I R.3A - Absence of “election” in R.3A is to prevent misuse
of process of Court. Thus, the defendants are not given the option to be put to election.

O.I R.4 - Court may give judgement for or against one or more of joint parties

O.I R.5 - Defendant need not be interested in all relief claimed

O.I R.6 - Joinder of parties liable on same contract
O.I R.7 - When plaintiff in doubt from whom redress is to be sought

For joinder of plaintiffs (O.I R.1) - essential condition for joinder of plaintiffs (if not met, will lead to
misjoinder of parties or non-joinder of parties)

All Class Notes CPC 11

 O.I R.9 - Misjoinder and Nonjoinder of parties

Misjoinder (O.I R.9)- The parties were not required to be joined to the suit; i.e., the presence/absence of
the parties does not affect the merits of the case.

Non-joinder (O.I R.9)- The parties which were required to be joinder were not joined to the suit i.e., their
presence/absence would affect the merits of the case.

Misdescription of Parties - Court will allow to correct the misdescription of parties. Eg - A is the MD but
he is described as the Director in the pleadings. The Court will allow amendment of pleadings to correct
the error.

Misjoinder Non-joinder

The parties were not required to be joined to the suit The parties which were required to be joinder were
were joined not joined to the suit
The presence/absence of the parties does not affect the The presence/absence of the parties would affect
merits of the case. the merits of the case.
Non-essential parties i.e., unnecessary parties Essential parties i.e., necessary parties

Eg - Proforma defendant

S.99 of CPC - No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction - Proviso states that the section will not apply to non-joinder of necessary party because this
affects the merits of the case

O.I R.13 - Objection as to non-joinder or misjoinder - All objections on grounds of nonjoinder 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. This waiver will not be applicable
when the question of non-joinder of necessary parties arises as this affects the merits of the case.
O.I R.10 - Suit in the name of wrong plaintiff -
S.21 of Limitations Act - Effect of substituting or adding new plaintiff or defendant - When a new
plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been
instituted when he was so made a party
Proviso when Court is satisfied that the omission to include a new plaintiff or defendant was due to a
mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be
deemed to have been instituted on any earlier date.
Implication - The limitation period to move the court would begin from the date on which the suit shall
be deemed to have been instituted

💡 O.32 - Next Friend; Guardian Etc.

Explanation of O.I R.8 is the most important part -

The plaintiffs need not have same cause of action; must have same relief. 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.
[Link] R.3B - No agreement or compromise to be entered in a representative suit without leave of
Court

All Class Notes CPC 12

 Order 3 - Recognized Agents and Pleaders
Order VI - Pleadings
Rule 1 - Pleadings refer to both the plaint and the written statement.
Rule 2 - Plaint and Written Statements, both must contain only factual matters and not evidentiary
matters. Evidence comes at a latter stage. At the preliminary stage, only the facts and cause of action are
necessary.
Rule 6 - If there was a condition precedent, it shall be stated that it was not performed. Eg - If there is a
condition that there must be a mandatory 2 month notice sent to a public authority before a case is filed
against them; and the same is not mentioned in the plaint, the Court will deem the condition to have been
performed.
Rule 7 - Pleadings cannot be inconsistent with the previous pleading of the party.
Rule 13 - If there is any presumption in favor of the plaintiff or defendant, they may not mention it in their
pleadings.
Rule 14 - Pleadings must be signed. However, this is a technical defect and thus, curable. Pleadings are
more often than not accepted if they are not signed.
Rule 15 - Pleadings must be verified by the person making them. An affidavit should be furnished in
support of their pleadings.

💡 Salem Advocate Bar Association v Union of India 2005 SC - One of the challenges was on the
affidavit clause amendment in Rule 15A(1). The SC held that this amendment was valid and the
need for an affidavit was added in 2002 to increase another layer of accountability to the person
making or verifying the pleading → this was done to prevent frivolous and vexatious pleadings
and preserve the resources of the Court.

Rule 16 - The Court may strike off pleadings [if they are satisfied that the same are unnecessary,
scandalous, frivolous or vexatious or tend to prejudice, embarrass or delay the fair trial of the suit or the
court is satisfied that suit is an abuse of the process of the court - Abdul Razak (D) through [Link]. and
Ors. Vs Mangesh Rajaram Wagle and Ors. (2010) 2 SCC 432]

💡 Can striking off of pleadings be considered amendment of pleadings? There is a

difference between the Court striking out a pleading that it considers unnecessary, scandalous,
frivolous or vexatious, and the plaintiff amending a pleading. When a Court applies its judicial
mind to the pleadings in order to strike them off, it does not have the same effect as when a
plaintiff amends a pleading. The consequences of a plaintiff amending a pleading would be that
the defendant would have to amend their defense, the cross-examination should be done

Rule 17 - Amendment of pleadings

Guidelines for Amendment of Pleadings -

1. The cause of action cannot be allowed to be replaced through amendment of

pleadings as that would lead to loss of identity of the suit. However, if the

All Class Notes CPC 13

 amendment aims at not replacing the cause of action, rather merely making
the cause of action more explicit, then it shall be allowed because it will only
strengthen the cause of action.

2. The matters in issue, relief or preliminary objections can be allowed to be

amended but the main considerations would be the stage at which the
amendment has been sought. Other considerations are the effect upon the
applicant if the amendment is not allowed, the effect upon the respondent if it
is allowed, whether amendment is sought for a genuine reason, or whether it
is for malafide purpose of delaying the trial or defeating the ends of justice.

3. Andhra Bank v ABN Amro Bank 2007 SC - If some right has already accrued
to the respondent and it is found that he cannot be adequately compensated
for the losses that he has suffered, then amendment of pleadings shall not be
allowed.

4. Sampath Kumar v Ayya Kannu & Ors. 2002 SC - At the time of hearing of the
application for amendment, the Court will not hear the merits of the case.
Though in order to examine the importance of the pleadings, the Court will
certainly examine the overall effect that the amended pleading will have on
the merits of the case.

5. The order for amendment of pleadings will be a speaking order i.e., in writing
and with reasons for coming to the conclusion within the order.

6. If there is an undue delay in making the application for amendment, then the
burden lies upon the applicant to prove the sufficient cause for delay.

7. If the applicant had, in his pleadings, admitted some facts, the general rule is
that he cannot retract from said facts via amendment of pleadings

8. The considerations to appeal the

Rule 18 - If party receives an order allowing amendment of pleadings, and the party does not do so within
the time limit of the Court (or 14 days from the order, in absence of a Court mandated time limit), the party
will not be permitted to amend the pleadings later unless they have an extension given by the Court
[which shall not exceed 30 days as per S.148 of the Code of Civil Procedure].

💡 Can the 30 day limitation provided by S.148 be overruled by the inherent powers of the Court
u/S.151 of the Code of Civil Procedure? Yes, the 30 day limitation can be overruled using the
inherent powers u/S.151 however, the Courts only invoke this power in exceptional
circumstances.

Order VIII (Written Statement)

All Class Notes CPC 14

 [Link] R.9 → Subsequent Pleadings → No pleading subsequent to the written
statement of a defendant other than by way of defense 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 and fix a time of not more than
thirty days for presenting the same.

Difference between Amendment of Pleadings and Subsequent Pleadings?

Amendment of Pleadings Subsequent Pleadings

u/[Link] R.17 u/[Link] R.9

Addition of new pleadings; while original pleadings

Change in original pleadings
remain the same
Directly originating from original pleadings Distinct from original pleadings

Goes back to the date of filing of original

Adds a new date on date of subsequent pleadings
pleadings
E.g. → A files a suit against B for possession
of plot of land. B files a WS, after which (but E.g. → A files a suit against B for possession of plot
before settlement of issues) the plaintiff wants of land. B files a WS in which he claims to be a
to change the plaint because he found out that lessee, after which (but before settlement of issues)
100 sq. mt. of land is also falling within the the plaintiff wants to change the plaint adding that
land he is claiming for possession. For this, the lease between A and B existed at one point but
the plaintiff will apply for amendment of the said lease expired last year. This will be a
pleadings u/[Link] R.17. The claim made in the subsequent pleading u/[Link] R.9 and the date of
amendment will be considered to be made said pleadings will be from the date of filing the
with the original plaint i.e., on the date of the subsequent pleadings.
first plaint.

💡 PA Jayalakshmi v H Saradha & Others 2009 SC → Amendment of pleadings is an alteration or

change in the original pleadings whereas subsequent pleadings are an addition to the original
pleadings and they may not directly originate from the original pleadings. Rather, they may be
distinct from the original pleadings.

Can only be submitted by leave of the Court

Plaint (plaintiff) leads to a Written Statement (which includes set off [[Link] R.6] and counter-
claim [[Link] R.6A]) which results in the plaintiff sending in a Reply to the counter-claim.

The Reply to the counter-claim/set off will follow the rules of WS [[Link] R.6(3)]. The reason for
this is because the counter-claim and set-off have an independent existence as a separate suit
within the WS. The counter-claim and set off are claims of the defendant made separate to the
other part of the WS (which would be the replies of the defendant to the claims of the plaintiff).
Because the counter-claims/set-off are separate (i.e., can exist even if original suit is dismissed),
a reply to the counter-claims or set-off by the plaintiff will have to follow the rules of the written
statement.

This Reply is formally known as replication.

No leave of Court required for the first reply → part and parcel of subsequent pleadings.

All Class Notes CPC 15

 The rule of deemed admissions will not apply; the Court will instead assume that it will be deemed
controverted by the Court

Court may require a party to file subsequent pleadings (plaint or WS) → for additional information to
adjudge the case.

[Link] R.6 → Particulars of set-off to be given in written statement → (1)

Where in a suit for the recovery of money the defendant claims to set-off against
the plaintiff's demand any ascertained sum of money legally recoverable by him
from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court,
and both parties fill the same character as they fill in the plaintiff's suit, the
defendant may, at the first hearing of the suit, but not afterwards unless permitted
by the Court, presents a written statement containing the particulars of the debt
sought to be set-off.
(2) Effect of set-off → The written statement shall have the same effect as a
plaint in a cross-suit so as to enable the court to pronounce a final judgment in
respect both of the original claim and of the set-off: but this shall not affect the
lien, upon the amount decreed, of any pleader in respect of the costs payable to
him under the decree.
(3) The rules relating to a written statement by a defendant apply to a written
statement in answer to a claim of set-off.

Conditions for application of set-off u/[Link] R.6(1) →

a. Suit for recovery of money

b. Ascertained sum of money

c. Legally recoverable

d. Not exceeding pecuniary limits

Plaintiff wanted 10k from Defendant. Defendant has recovery claim upto 50k. The pecuniary
jurisdiction of the Court is 20k. The Defendant can break the remedy on his own; by claiming 20k
in the current suit to meet the pecuniary jurisdiction of the Court. The Court will ask the Defendant
if they want to waive the remaining amount; and the Defendant can either say yes or seek the
consent of the Court to file another suit in the Court with jurisdiction for the remaining amount.

* Claiming set-off is a choice for the parties, not a legal obligation.

e. Must fill the same character

f. Must be made at the first hearing (i.e., when the defendant appears with the Written Statement),
unless allowed by court.

The set off must be in existence before the WS stage comes into picture.

Equitable Set-Off
Concept of equitable set-off can be found in [Link] R.19(3).

All Class Notes CPC 16

 [Link] R.19(3) → Decree when set-off or counter-claim is allowed → The
provisions of this rule shall apply whether the set-off is admissible u/[Link] R.6 or
otherwise.

The use of the word “otherwise” in the Rule allowed for equitable set-off as a concept to emerge in Indian
civil jurisprudence.

💡 Principles of Equitable Set-Off as developed by the Supreme Court

1. The word “otherwise” as used in [Link] R.19(3) basically refers to equitable set-off as
provided by the British Equity Courts and the main consideration for equitable set off is that
two claims should have arisen in the same transaction.

2. Apart from the above, it is also required for equitable set-off that the original suit should be
for money claim. This money claim could be asserted or unasserted.

3. Unlike legal set-off, in equitable set-off, the claim can be for any amount of money.

4. In equitable set-off, even if the limitation period has lapsed, the parties will be allowed to get
the remedy but it will only be to the extent of the claim made by the plaintiff and not beyond
that. The parties must be in fiduciary relationship (i.e., relationships of trust and faith) to
claim equitable set-off. (E.g. → A brings a money claim against B for 10k. B has recovery
dues against A amounting to 15k. An equitable set-off can be done only for 10k).

5. Court fee is essential to be deposited in legal set-offs, but this is not the case in equitable
set-off.

6. Legal set-off is a matter of right while equitable set-off is at the discretion of the Court.

Clarke v Rathnavenu 1865 Privy Council, Bhupinder Narain Singh Bahadur v Bahadur Singh
1952 SC, Union of India v Karanchand Thapar & Brothers 2004 SC

Example →
A urges B to sell 200 bales of wool to A. A takes 170 bales because B only supplied 170 bales. He is
willing to take another 30 provided they are supplied to A. Supplier B states that he will not supply the 30
bales unless he receives the money for 170. A says that he was ready to pay for the bales; B was not
supplying the 30. A states that B can pay for the damages for loss incurred by A due to non-receipt of 30
bales; and this should be equitably set-off against the price of the 170 bales. This cannot be legally set-off
because the damages are not a specific amount however the Court, using its discretion, can allow for an
equitable set-off.

Caveat Applications
A caveat application/petition is a precautionary measure undertaken by an individual anticipating that
another individual may file an application in a suit or proceeding instituted or about to be instituted against
him/her in the court.
Caveat application remains active for 90 days. Once 90 days are over, the caveat application can be filed
again.
S.148A of the Code of Civil Procedure → Right to lodge a caveat →

All Class Notes CPC 17

 Receiver
Order IL → A receiver is an officer of the court who is appointed for the purpose of managing an
conserving some property that is attached and taken into custody by the Court.
They’re an impartial person and their appointment is a protective relief.

Once the property is given in possession of the receiver, it would be called custodia legis and any person
violating the right of the receiver will be held liable for contempt of court.

💡 Anthony v Nandalal Balkishan 1996 SC →

1. The receiver once appointed gets into the shoes of the real owner and gets the same rights
and duties as the real owner but those rights are not superior than the real owners.

2. The receiver has to act subject to all liabilities related to the property.

3. The receiver can take any civil or criminal action to preserve the property.

4. The receiver must act under the supervision of the court appointing them. Thus before
taking any step, they must inform the appointing court and take its formal permission.

💡 Prabodh Nath Shah v SBI 2003 SC → It was held that if the property is on rent and a receiver
has been appointed, then the rent has to be appropriated by the receiver and they shall be
liable to account before the court. They can also be held liable for misappropriation and they
can also get the rent enhanced or the premises evicted. For this purpose, they can be
authorized by the appointing court to file a civil suit.

S.90(c) →
Bi-parte injunction is the general rule and ex-parte is an exception

💡 Seema Arshad Zaheer & Ors v Municipal Corporation of Greater Mumbai 2006 → Orders will
be given only if there is urgent and overwhelming necessity for ex parte temporary injunction

💡 Agricultural Produce Market Committee, Goundal & Ors. v Girdharbhai Ramjibhai Chhaniyara
→ There cannot be a temporary injunction for a right that will arise in the future and also there
cannot be an order passed to restrain a person from contesting a suit.

💡 Gujarat Bottling Co v Coca Cola - Triple test for granting temporary injunction →

1. Prima facie case

2. Irreparable loss

3. Balance of convenience

All Class Notes CPC 18

 💡 Pramodh Premchand Shah v Ratan Tata → O.1 R.8 - representative suits → It could be the
case that few shareholders will not connect the stock market crash and Mr. Mistri’s removal
therefore removing commonality. The nature of shares, number of shares, shares in multiple
companies etc. is different for all shareholders therefore there is no commonality.

💡 Mumbai International Airport Case → Whether res sub judice will apply on summary suits

Judgement, Decree, Costs and Interests

S.33 - Judgment and decree → The Court, after the case has been heard, shall pronounce judgment,
and on such judgment a decree shall follow.
Combination of Sections and Orders for judgement →
S.2(9) → Statement given by judge on grounds of decree and order
[Link] → Judgement and decree

[Link] R.6 → Judgement on admissions

i. Admissions either carved out (O.8 R.5 - deemed admissions i.e., when no specific denial is made
by the party to such documents, the documents are deemed to be admitted) or

ii. Defendant makes admission when plaintiff sends notice to defendant to admit the case/facts

[Link] → Disposal at first hearing

[Link] → Summary of trials
S.33
Combination of Sections and Orders for decree →
[Types of decree - preliminary decree, final decree, partly preliminary partly final decree (based on S.2(2),
void decree (decree which cannot stand due to issues like bar of res judicata, subject matter jurisdiction
etc.) and irregular decree (decree given due to fault of nature i.e., technical issue)]
S.2(2)
[Link] R.6→R.19
S.97

S.33
Void Decree -
Implications on appeal → The appellate court will set the decree aside. The appellate then sends the
case back to the Court of first instance or the court with correct jurisdiction (in case of lack of jurisdiction)
or states that the plaintiff can file a fresh suit.
Implications on executing proceedings → An executing Court cannot go behind the decree or question
the jurisdiction of the Court which passed it. An executing Court can put a stay on the decree if the decree
is manifestly incorrect.
Implications on collateral proceedings → The collateral proceedings will continue if the decree passed
was void.
Irregular Decree -

All Class Notes CPC 19

 Implications on appeal → A technical problem should be raised at the very first instance.

[S.21(1) → No objection as to the place of suing shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all
cases where issues are settled at or before such settlement, and unless there has been a consequent
failure of justice]

S.97 - Appeal from final decree where no appeal from preliminary decree →

Where any party aggrieved by a preliminary decree passed after the

commencement of this Code does not appeal from such decree, he shall be
precluded from disputing its correctness in any appeal which may be preferred
from the final decree.

Implications on execution proceedings → An executing Court cannot go behind the decree or question
the jurisdiction of the Court which passed it. If an executing Court can cure the technical defects, it is
empowered to do so (if the defect is such that the merits need not be considered)
Implications on collateral proceedings → Res judicata, res sub judice and [Link] R.2 will apply.

Order XX - Judgement and Decree

R.1 - Judgement when pronounced
R.2 - Power to pronounce judgement written by judge’s predecessor
R.3 - Judgement to be signed → Once a judgement is signed, it cannot be altered → Principles of [Link]
R.2(2), R.2(3) and res judicata Explanation V
S.152 r/w [Link] R.3 → Clerical and arithmetic errors can be amended once a judgement has been
pronounced.
R.4 - Judgement of Small Cause Courts
R.5 - Court to state its decision on each issue

R.6 - Decree shall contain →

a. Agreement with judgement [R.6(1)]

b. Number of suit [R.6(1)]

c. Names and descriptions of the parties [R.6(1)]

d. Registered addresses [R.6(1)]

e. Particulars of the claim [R.6(1)]

f. Relief granted and/or other determinations of the suit. [R.6(1)]

g. Amount of costs incurred in the suit [R.6(2)]

h. By whom or out of what property and in what proportions costs are to be paid [R.6(2)]

i. Set off (if any) [R.6(3)]

R.6A - Preparation of decree →

a. Decree drawn up within 15 days from the date on which the judgement is pronounced.

All Class Notes CPC 20

 b. An application for copy of decree should be filed within the limitation period. As soon as the decree is
drawn, the judgment shall cease to have the effect of a decree for the purposes of execution or for
any other purpose.

R.6B - Copies of judgement made available

R.7 - Date of decree →
The date of the decree shall bear the day on which judgement was pronounced → important for limitation
period.
R.10 - Decree for delivery of movable property →
When the suit is for movable property, and decree is for delivery - the decree should also state amount of
money to be paid as an alternative in case of failure of delivery.
S.7 and S.8 of SRA

R.12, 13, 14, 15, 16, 18 → Preliminary Decrees

Combination of sections and orders for Costs
S.35, 35A, 35B
[Link] ([Link] and [Link])
Sections for Interests
S.34

💡 Q. Judgement in counter-claim and novel suit?

Order VIII Rule 6A - Counter-claim → (2) Such counterclaim 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 counterclaim.

Interpleader Suits
Interpleader suit in C.P.C is defined in section 88 with order no XXXV.
An interpleader suit means if any person claims any property of her husband or her parents and in case
the owner of the property is dead without transferring the property, then the second owner has to claim
the property from the bank or authority.
After claiming for such property the bank or the authority has to file an interpleader suit in the court. Then
the court will decide who will be the main owner of the property. In an interpleader suit, there were many
defendants to claim the property.
Plaintiff gets the monetary value for filing the suit in the court on behalf of the defendant. He is not liable
for any damage.

Costs
Costs can be of two types →

a. Costs incurred by other party

b. Costs as punishment

S.32 CPC - Costs →

All Class Notes CPC 21

 (1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of law for the time being in force, the costs of and incident to all suits
shall be in the discretion of the Court, and the Court shall have full power to
determine by whom or out of what property and to what extent such costs are to
be paid, and 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.
(2) Where the Court directs that any costs shall not follow the event, the Court
shall state its reasons in writing.

S.35A - Compensatory costs in respect of false or vexatious claims or defenses

Order XXA - Costs

R.1 Provisions relating to certain items →

a. Cost for giving notice required by law, before institution of suits

b. Cost for giving notice not required by law, before institution of suits

c. Costs for typing, writing or printing of pleadings

d. Charges paid for inspection of records of Court for purpose of suit

e. Cost for producing witness although not summoned

f. Cost for obtaining copies of judgement and decrees

R.2 - Costs to be made according to rules of HC

Interests
Interests pendente lite → Interest during the pendency of the proceedings

S.34 - Interest

(1) Where and in so far as a decree is for the payment of money, the Court may,
in the decree, order interest at such rate as the Court deems reasonable to be
paid on the principal sum adjudged, from the date of the suit to the date of the
decree, in addition to any interest adjudged on such principal sum for any period
prior to the institution of the suit, with further interest at such rate not exceeding
six per cent. per annum as the Court deems reasonable on such principal sum,
from the date of the decree to the date of payment, or to such earlier date as the
Court thinks fit :

Provided that where the liability in relation to the sum so adjudged had arisen out
of a commercial transaction, the rate of such further interest may exceed six per
cent. per annum, but shall not exceed the contractual rate of interest or where

All Class Notes CPC 22

 there is no contractual rate, the rate at which moneys are lent or advanced by
nationalized banks in relation to commercial transactions.
Explanation I - In this Sub-section, "nationalized bank" means a corresponding
new bank as defined in the Banking Companies (Acquisition and Transfer of
Undertakings) Act, 1970 (5 of 1970).
Explanation II - For the purposes of this section, a transaction is a commercial
transaction, if it is connected with the industry, trade or business of the party
incurring the liability.

(2) Where such a decree is silent with respect to the payment of further interest on
such principal sum from the date of the decree to the date of payment or other
earlier date, the Court shall be deemed to have refused such interest, and a
separate suit therefor shall not lie.

💡 Shankar Balwant Lokhande v Chandrakant Shankar Lokhande 1995 SC → When does

limitation period begin to run in case of final decrees? What is therefore, the date of final
decree?
2nd August 1955 → Preliminary decree passed declaring Chandrakant entitled to 1/6th and
Shankar 5/6ths.

19th April 1958 → Trial Court gave order for final decree
19 December 1960 → Stamp papers for 1/6th share filed by Chandrakant to make decree final.
11 January 1961 → Final decree for Chandrakant but not Shankar and Others because they did
not file stamp paper
13th March 1968 → Execution petition dismissed as barred by limitation

Appeals and Executions

💡 Kunhayammed & Ors. v. State of Kerala & Anr 2000(6) SCC 359 - The Supreme Court
observed that the use of the words "in its discretion" in Article 136 clearly indicates that Article
136 does not confer a right of appeal upon any party but merely vests a discretion in the
Supreme Court to interfere in exceptional cases.

Kunhayammed related to a case where the Kerala High Court dismissed an appeal against the order of
the Forest Tribunal. Against this dismissal, a special leave petition was filed. This special leave petition
was dismissed in limine by simply stating that “Special Leave Petition is dismissed on merits”.
A review petition was filed in the High Court against its earlier order dismissing the appeal. By order dated
December 14, 1995, the High Court upheld the maintainability of the review and posted the case for
hearing on merits. This order was challenged before the Supreme Court.

All Class Notes CPC 23

 While holding that the review was maintainable, the Supreme Court undertook a detailed analysis of
several judgments and legal principles on the point. Primarily, the Supreme Court’s findings were based
on the interplay between the doctrine of merger, res judicata, the scope of powers under Article 136,
declaration of law under Article 141, and judicial discipline of lower courts.

Doctrine of Merger
Common law doctrine

Postulates the merging of the higher court’s decision in the lower court’s decision so that the decision
of the higher court is valid in eyes of law

Depends on → nature of jurisdiction, subject-matter brought by the court.

💡 Bhagwan Narwadeshwarji Case - Suit dismissed u/[Link] R.3. In the Second Appeal, three
questions laid down → 1. Trial court erred in dismissing the suit as the application for oral
evidence was laid down. 2. Provisions of [Link] R.3A were wrongly interpreted and 3. Lower
appellate court could not have determined the case on merits merely based on findings
returned by trial courts.

Execution [S.36-74, OXXI (R.1 - R.106)]

Powers of executing court S.47 and S.99A
Transferee and legal representative S.49 and S.50 and S.2(11)
Jurisdiction of executing court S.36-S.38

Transfer of decree S.39 and S.42

Precepts S.46

Restitution S.144
Stay of execution [Link] R.26 to R.29

Gearnishee [Link] R.46A to R.46I

Resistance to execution S.74 [Link] R.97 to 106

Ratable distribution of assets S.73

Powers of Executing Court (S.47) →

It is concerned with what question can be raised before the executing court by the parties and it declares
expressly that parties to the suit can have the determination of those questions which pertain to the
execution, discharge or satisfaction of the decree. The executing court has to examine whether the
question concerned is related to merits or evidences of the suit. If yes, then it cannot be taken up by the
executing court.

Examples → The question whether the decree is executable or whether some property is liable to be sold
in execution or whether execution shall be postponed or question pertaining to the identity of subject
matter of the decree or whether an application for setting aside an execution sale shall be heard or not
are questions falling under S.47. However, a question as to whether a decree was fraudulent or in
collusion or whether mesne profits should have been granted, whether decree is wide or irregular,
whether particular evidence should have been allowed or not are outside the scope of S.47 and hence
executing court cannot deal with such questions.

All Class Notes CPC 24

 Precepts (S.46) →

Precept is a command or an order passed by a court to maintain the status quo of the property in the
jurisdiction of the competent court.

If the property lies in jurisdiction of another Court than the Court passing the decree, upon application by
the decree-holder, the decree-Court will issue a precept to the other Court competent to execute such
decree to attach the property specified in the precept.
S.39 & S.42 →

As per S.39, the decree Court will transfer the decree of execution to the competent executing court. A
court of competent jurisdiction has been defined u/S.39(3) according to which the court shall have
jurisdiction to try the original suit if the original suit had been filed in that court on the date when the
execution application has been filed.

The other requirement is dependent upon the very application for execution i.e., the mode by which the
applicant wants the execution. If he applies for arrest of the judgement-debtor, the jurisdiction is where the
judgement-debtor resides (S.16). If he applies for attachment of property, the jurisdiction is where the
property is situated. If he applies for the transfer of a movable property, the jurisdiction is where the
property was last in possession.

Thus the jurisdiction to execute has to be seen not only with respect to jurisdiction to try but rather, with
respect to practical circumstances and the means by which execution has to be done.

S.39(4) was added by the 2002 Amendment. It lays down that decree court cannot execute outside local
limits.

💡 Mohit Bhargav v Bharat Bhushan Bhargav 2007 SC → The Court held that before the
addition of S.39(4), the decree-court had a choice either to directly execute a decree in the
jurisdiction of some other court or to transfer it for execution to that other court. Now, after the
amendment, S.39(4) clearly prohibits any such direct execution in the jurisdiction of another
court. Thus, whenever the decree-court finds that the execution has to be done in the
jurisdiction of some other court, then it is compulsory for it to transfer the decree. However, it
was also held that in urgent scenarios, a direct execution order can be passed by the decree-
court. But ultimately it will be required to be transferred to the competent executing court. The
court can also pass an order of precepts u/S.46

Transferee (S.49) → People to whom the decree has been transferred. They will have the same rights as
the original decree-holder.
Restitution (S.144) →

Limitation period - 12 years as per Art.136 of Limitations Act

The concept of restitution presupposes that a decree has been executed already. It is based upon
principles of equity and justice. If the decree holder, upon obtaining the decree, gets it executed and on
the other hand, the judgement-debtor either in appeal, revision or collateral proceedings, gets the decree
set aside or modified, then the judgement-debtor gets equitable right to have the restoration of that which
was the subject matter of execution of decree. His right is conditional upon the extent to which the decree
has been modified or set aside and it is a right to complete restoration. Therefore, the court passing the
order of restitution shall pass all consequential orders which are essential for such complete restoration.
E.g., order of compensation, interest etc.

All Class Notes CPC 25

 Restitution application is made to the decree-court and no fresh suit needs to be filed. This right is also
available against legal representatives. S.144 is not exhaustive and S.151 can be invoked in situations
where S.144 is not directly applicable.
Does res judicata apply to S.144?

[Link]
R.31 → Person can be detained, and property can be seized
R.32 → Decree for restitution of conjugal rights, arrest cannot be done but only attachment of property
can be done.
R.39 → Arrest and detention

R.46 → Attachment of property not in possession of judgement debtor

All Class Notes CPC 26