 STATUTORY PROVISIONS

 Appeals- Sections 96 to 112 and Orders 41 to 45

 First Appeals: Sections 96 to 99A, 107 and Order 41

 Second Appeals: Section 100-103, 107, 108 and Order 42

 Appeals from Orders- Sections 104-108 and Order 43

 Appeals by Indigent Persons: Order 44

 Appeals to Supreme Court: Sections 109, 112 and Order 45

 Reference- Section 113 and Order 46

 Review- Section 114 and Order 47
 Revision- Section 115

APPEAL UNDER CPC

APPEAL:
 The appeal has not been defined under CPC. However various decision by the Indian
Courts has attempted to lay down the a conscience description. One such case is
Nagendra v.Sures where the court held that the nature of right to appeal is one in which
aggrieved party enters a superior court with the intention of invoking its aid and
intervention to redress the error of the court
 SC defines appeal as “a proceeding by which the correctness of a decision of an inferior
court is challenged before a superior code”
 Appeal is neither a natural nor inherent right, it is substantive right
 He who comes in appeal must establish the error in facts was of such great magnitude
that to leave it incorrected would result in the violation of the principles of natural justice,
hence necessitating intervention by a superior court
 In order to be a valid appeal, there must have been a decision by an adjudicatory
authority, an aggrieved party and a reviewing body which is empowered and willing to
entertain the said appeal
ESSENTIAL OF APPEAL:
1. Decision/ order of the court of original jurisdiction
2. Decree is passed
3. Aggrieved party
4. Right to appeal
5. Appellate authority
6. No Barred by law
 SEE SLIDE ALSO …… APPEAL
FIRST APPEAL (S.96-99; O.41)
SECTION 96: Appeal from original decree
1. Appeal can lie, where decree is passed by the court of original jurisdiction
2. Also, appeal lies from exparte order
3. No appeal with consent of parties
4. No appeal where value is involved is below Rs. 10000, except on question of law
SECTION 97: Appeal from final decree where no appeal from preliminary decree
Where preliminary decree is passed and no objection were raised by an appeal then, no such
objection be raised in the final decree
SECTION98: Decision where appeal heard by 2 or more judges
1. Appeal to be decided by majority
2. Where no such majority, to vary/ reverse, such decree be final and confirmed
SECTION 99: No decree be reversed or modified for error or irregularity not effecting merits of
jurisdiction
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on
account of any
 Misjoinder or non misjoinder
 Cause of action
 Error/defect / irregularity n proceeding
SC held that no to reverse unless failure of jusice.

SECOND APPEAL ((S.100-103; O.42)

SECTION 100- Second Appeal
1. Appeal shall lie to HC
2. Passed by any court, subordinate to HC
3. If H.C satisfied that substantial question of law arises
Also, appeal lies from exparte order
4. Memorandum of appeal shall precisely state the substantial question of law involves
5. HC shall formulate the question
6. Appeal shall be heard on question so formulated and respondent be allowd to argue that
no suh ques. Involves
Provided: Court can hear other ques as well
SECTION 100A: No further appeal in cases is decided by single bench of HC
SECTION 101: No appeal on other grounds
SECTION 102: No appeal shall lie where recovery of money suit is for Rs. 25000 or less
SECTION 103: Power of HC to determine issue of fact, where not determined or wrongly
determined by lower court

REVIEW ( Sec.114 ; O.47)

 Review means considerations, inspection or re-examination of a subject or thing.
 As a general rule, once a judgment is pronounced by a court, it becomes functus officio
or it cannot be altered by such court.
 Review is an exception to this principle wherein the same court and the same judge are
allowed under special circumstances to review their own judgment.
 However, this power must be used sparingly and only in cases where there is a grave or
patent error.
 Review has its basis in the equity principle of Writ of error wherein an error caused was
allowed to be rectified as it was believed that an error caused due to human failing cannot
be allowed to defeat justice.
Section 114: Review:
Subject as aforesaid, any person considering himself aggrieved
a. by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been
preferred;
b. by a decree or order from which no appeal is allowed by this Code, or
c. by a decision on a reference from a Court of
may apply for review of judgement to the court which passed the decree or made the court and the court
may make such order thereon as it thinks fit.

WHO CAN FILE A “REVIEW”

“Any person who consider himself aggrieved” is what the rule provides, and it being legally
clear in terms, on the face, gives the interpretation that person filing a review need not
necessarily be a party to the suit, rather may be one who simply derives a legitimate interest in
the suit or according to him, such interest has been adversely affected by the decision of such
suit. And therefore any such person would have locus standi to file a review.
Supreme Court in the case of Union of India v. Nareshkumar Badrikumar Jagad & ors.
held:“Even a third party to the proceedings, if he considers himself an aggrieved person, may
take recourse to the remedy of review petition. The quintessence is that the person should be
aggrieved by the judgment and order passed by this Court in some respect”.

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the
Act, provides the procedure for Review. Order XLVII in the Code of Civil Procedure, 1908
(CPC) together with Section 114 of the Act, provides the procedure for Review. Section 114
merely produces the conditions necessary for the filing the application for Review to the ‘court’
by which decree or order, sought to be reviewed under the application, was passed or made.
While Order XLVII along with the same conditions as enumerated in the section, lays down
grounds for Review and other procedural rules governing the same.

Section 114 and Order XLVII: The provisions relating to review are provided in S. 114 (substantive right)
and Order XLVII (procedure). The general rule is that once the judgment is signed and pronounced or an
order is made by the Court, it has no jurisdiction to alter it. Review is an exception to this general rule

Grounds of Review: Order XLVII, Rule (1) provides the following grounds:

1. “Discovery of New and Important matter or evidence, which, after the exercise of
due diligence was not within the knowledge of the person seeking review or could
not be produced by him at any time when the decree was passed or order made”,

Discovery of any new matter or evidence necessarily has to be an important or relevant as such
to the extent that had it been brought on record at any time when the decree was passed or order
made, it would have an impact and might have altered the decision. Moreover, absence of such
important matter or evidence on record at the time of decision, must not be the result of negligent
attitude of the concerned person and therefore such person applying for Review is required by
law to strictly prove that such matter or evidence was not within his knowledge or could not be
adduced, even after exercising due diligence and unless such proof is given, application shall not
be granted
Court may take subsequent events into consideration while reviewing a decision, however the
fact that the question of law on which decision, sought be reviewed, is based has been reversed
or modified subsequently by the higher authority in any other case, would not make it a new and
important matter, to review the decision

Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained
the decree for the same, against which B, subsequently filed an appeal in the Privy Council, and
while the appeal was pending, A obtained another decree against B on the strength of the former
decree, for another sum of money alleged by him to have become due under the same agreement
and later Privy Council reversed the former decree in the appeal, on the basis of which B applied
to the court which had passed the second decree, for the Review on the ground of the decision of
Privy Council and so was accepted and held by the court to be a new and important matter”[xvi].

2. Or, “some mistake or error apparent on the face of the record”,

The mistake or error should be such, which is very obvious and visible itself on the face of it,
and therefore any error found out from the judgment after a long reasoning and law based
analysis, cannot be said to be one apparent on the face of record, as a ground for review.
However, such mistake or error can be of fact and as well as of law.

Illustrations – “Non-consideration of the very obvious application of particular law, such as law
of limitation or particular provision to the facts of the case, setting aside of the ex parte decree
without being satisfied of the any of the conditions laid down in Order 9 Rule 13, application of
religious law which has not been legally recognized, wrong interpretation of a settled legal issue,
where a commission was issued to examine a witness in a country where no reciprocal
arrangement exists, have been held to be an error apparent on the face of record”.

3. Or, “any other sufficient reason”.

Before 1922, the application of the term “Sufficient reason” was unrestricted and unregulated,
finally in that year a principle came to be laid down by the Privy Council in the case of Chhajju
Ram V. Neki, which can be summarized as that “the third ground mentioned, is no doubt giving
wide scope to the grounds for review, but at the same time that “sufficient reason” has to be at
least analogous (ejusdem generis) to either of the other two grounds and the mere reason that
decree was passed or order made on erroneous ground that court failed to appreciate the
important matter or evidence, would not make any good ground for review, and therefore in such
cases, the appeal and not review, is the remedy to get such erroneous decree or order corrected”

Illustrations – Failure to adhere to legal provision which required the court to act in a particular
manner would fall within the meaning of “Sufficient Reason” as analogous to the “Error
Apparent on the Face of the Record”. Order of the dismissal of a suit due to default of the
plaintiff, cannot be reviewed on the ground of misapprehension of the counsel as sufficient
reason, but if order was on its face illegal then such order may be reviewed on the ground as
error of the law apparent on the face of the record.

RESTRICTIONS

The order under its Rule 9 excludes two following kinds of application, from the consideration –

1. “An order made on the application for a review”. grant or rejection of the
application, either case cannot be reviewed.
2. “Decree passed or order made on review”. where application is granted, case is re-
heard and the decree or order which is passed or made on merits of the case,
superseding the original one, cannot be further sought to be reviewed for the second
time.

REVISION (S.115)
 “to revise” stands for “to look again” or “to look repeatedly at” or “to go
through a matter carefully and correct where necessary”. “Revision”
means “the act of revising, especially critical or careful examination or
perusal with a view to correcting or improving”
 The High Court has been empowered with the revisional jurisdiction
under section 115 of the Code of Civil Procedure,1908.
 The main object of a revision is to:
 prevent subordinate courts from acting arbitrary, capriciously and illegally or irregularly
in the exercise of their jurisdiction.
  It empowers the High Court to see the proceeding of the subordinate courts conducted in
accordance with the law within the bounds of their jurisdiction and in furtherance of
justice.
 And it also provide the power to HC to correct the errors of the jurisdiction committed by
the subordinate court when necessary. For the effective exercise of its superintending and
visitorial power, revisional jurisdiction is conferred upon the HC
 in the case of Major S.S Khanna v. Brig. F.J. Dillion it was held that
section 115 the High Court is empowered to keep an eye on the proceedings of
subordinate courts that the proceedings are being conducted in accordance with the law,
under its jurisdiction for which it is bound for and in furtherance of justice
CONDITION:

Section 115 of the Code of Civil Procedure Code lays down all the conditions when the
High Court can exercise its revisional jurisdiction:

1. The case must be decided.

2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
3. The subordinate court has decided such case by:

1. Exercise of jurisdiction which is not vested to that court by law., or

2. It has failed to exercise the vested jurisdiction, or
3. Illegal exercise of the vested power or with immaterial irregularity.

The High Court is not entitled to vary or reverse the order or decision of the subordinate court
unless such order is in favour of the party who has applied for revision. Also, the revisional
jurisdiction is not to be exercised if in that matter appeal lies to the High Court.

Meaning of case decided: Apex Court in Baldevdas v. Filmistan Distributors AIR 1970 SC,
held that a case may be said to have been decided if the Court adjudicates for the purpose of the
suit some right or obligation of the parties in controversy. Every order in the suit cannot be
regarded as a case decided within the meaning of S. 115.:

WHO MAY APPLY?

A person aggrieved by an order of a court subordinate to the HC may file revision against such
order. But HC may even suo motu exercise revsional jurisdiction U/S of the CPC

The limitation period for Revision

According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the

limitation period is 90 days. The revision application is required to be made before the High

Court within the limitation period.

CASE LAW:
 The exercise of revisional jurisdiction is upon the discretion of the court and the parties
cannot claim it as a right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion,
there was an issue can the power of revision be exercised if an alternative remedy is
available
HELD: the Supreme Court that the court has to take into consideration several factors before
exercising the revisional jurisdiction. One of the that is considered is the availability of an
alternative remedy. When an alternative and efficacious remedy is available to the aggrieved
party, then the court may not exercise its revisional power under section 115 of the Code.
 J Hidayatullah in Major Khanna Vs Dillon (AIR 1964 SC497) observed : ‘the section is concerned
with jurisdiction and jurisdiction alone involving a refusal to exercise jurisdiction where one
exists or an assumption of jurisdiction where none exists and lastly acting with illegality or
material irregularity.’

SEE WTSUP for case law

REFERENCE (S.113 O. 46)

SECTION 113 provides provision relating to reference and empowers any court (subordinate
court ) to state a case and refer the same for the opinion of the HC. Such as opinion can be
sought when the court itself feels some doubt about question. The provision are subject to such
conditions and limitation as may be prescribed
 Reference is always made to HC
 Section 113 of CPC empowers a subordinate court to state a case and refer it to the HC
for its opinion
OBJECT:

The object behind the provisions of Reference is to empower the subordinate court to obtain the
opinion of the High Court in non-appealable cases when there is a question of law so that any
commission of error could be avoided which couldn’t be remedied later on.

Diwali Bai v. Sadashivdas, it was held that the reference must be made before passing of the
judgement of the case

Conditions for seeking reference

Reference can be sought only in a suit, appeal or an execution proceeding which is pending
before the court. Order 46 Rule 1 of the Code of Civil Procedure prescribes certain conditions to
be fulfilled in order to obtain a reference from the High Court. The conditions required to obtain
a reference from the High Court are as followings:

1. PENDENCY: The suit or appeal must be pending in which the decree is non-appealable
or the execution of such decree is still pending.
2. QUESTION OF LAW: There must arise a question of law of such proceeding, suit or
appeal.
3. DOUBT IN MIND OF THE COURT: There must be a reasonable doubt on such question
by the court trying the suit or appeal or, by the court executing the decree.

There are two classes of the question of law on which the subordinate court may entertain the
doubt

1. Questions related to the validity of any Act, Ordinance or Regulations:

In this case question related to any Act, Ordinance or Regulations, reference is obligatory

 In order to dispose of the case, the decision of such question is necessary.

 The subordinate court seeking reference is of the view that the Act, Ordinance or
regulation is ultra vires.
  There is no determination that such Act is ultra vires either by the Supreme Court
or the High Court to which the court is subordinate to.
2. Any other questions: In this case the reference is normal

Under the second condition, reference is optional but in the first condition i.e., a question related
to any Act, Ordinance or Regulations, reference is obligatory

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application made
by a party or suo moto. As held in the case of Ramakant Bindal v. State of U.P, no reference
can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before the court only
when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was
held that the question of law about which the subordinate court is doubtful, must have actually
been called upon in the case for adjudication and it shouldn’t be a hypothetical question.

Therefore, no reference can be made on a hypothetical question or a point that may or may not
arise in future. But, if the situation arises it may be considered for reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High
Court and while dealing it the High Court is not bound to decide only the question of law in
doubt. As held in the case of S.K. Roy v. Board of Revenue, the High Court can consider the
new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High
Court as discussed under Order 46 of the Code. The High Court may answer the question and
send the case back to the referring court to dispose of it in accordance with the law. It is also
upon the discretion of the High Court to refuse to answer the question and it has even power to
quash it.

Also under Order 46 rule 5: Power to alter, etc., decree, of Court making reference"

Where a case is referred to the High Court, under rule 1[or under the proviso to section 113], the
High Court may return the case for amendment, and may alter, cancel or set aside any decree or
order which the Court making the reference has passed or made in the case out of which the
reference arose, and make such order as it thinks fit.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought from
the High Court and the decree is confirmed if the High Court answers the question in favour of
the plaintiff. If the answer of the High Court is against him, the suit is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High Court desires, it
shall decide the referred points and transmits a copy of its judgement to the subordinate court
which shall dispose of the case in reference to said decisions.

LAW OF LIMITATION

A. Concept of Time Barred:

Concept of time barred is incorporated in Section 3 of Limitation Act, 1963. According to this
section, every suit must be instituted appeal must be preferred and application must be made
within the period of limitation as specified in the Schedule 11 of Limitation Act. The provisions
of this section are absolute and mandatory. The court will not proceed with the suit appeal or
application made beyond prescribed period of limitation and is liable to be dismissed when the
suit appeal or application has become time barred
It may be noted that if the defendant does not raise the objection, the Court may entertain the suit
even after the expiry of limitation period. In that case, the decision of the Court cannot be
challenged on the ground that the suit was time-barred
The Act mandates the court to dismiss a suit even though limitation is not set up as a defence
Normally in actual practice the court frames a preliminary issue on the question of limitation as
the same relates to a bar of law, if the bar of limitation is apparent on the face of the plaint it may
also entail rejection under Order 7 Rule Il of the Civil Procedure. Otherwise evidences are taken,
which leads to a dismissal or the suit continues
Section 3 of the Act only bars the remedy, but does not destroy the right to which the remedy
relates to. The night to debt continues to exist notwithstanding the remedy barred by the
limitation. The right can be exercised in any other manner than by means of a suit. The debt is
not extinguished, but the remedy to enforce the liability is destroyed. What Section 3 refers to is
only to the remedy but not to the right of the creditors.
Punjab National Bank & Orkers. Surendra Prasad Sink: Bank had given a loan to Mr.
Dubey, The respondent and his wife had submitted a security to the bank in the form of FDR and
they stood as guarantors for Mr. Dubey. The bank adjusted loan amount from the security. The
respondent sued for criminal misappropriation. The court held that the bank was entitled to
appropriate the debt due from the FDR because the debt continues to subsist as long as it is not
paid. It is not obligatory to recover the debt by the suit. The rules of limitation are not meant to
destroy the nights of the parties. Therefore, if the creditor is in possession of the security the debt
could be adjusted from security in his possession or custody.
It is pertinent to remember that Limitation Act does not extinguish the right but negatives its
remedial qualities by turning it into an imperfect right i.e. right without a corresponding remedy.
Since it seemingly is at cross purposes with the celebrated maxim of ubi jus ibi remedium ,
courts have constantly held that when there are two views possible one that saves the remedy
should be preferred.
EXCEPTION TO THE PRINCIPLE
The general principle is that limitation act in personal actions bars only the remedy and does not
extinguish the night itself
Section 27 is an exception to this general principle so far as suits for possession of property
concerned and lays down that after the expiry of the period thus prescribed for instituting suit for
possession of any property the person should have instituted such suit, but has failed to do so,
shall cease to have any right to the property. After the expiry of its period, the law declares not
simply that the remedy is barred but that the tile is extinct in favour of the possesser. But this
section is confined to us for possession only and does not apply as suit by a mortgage for
recovery of the money due to him by sale of the mortgaged property. The mortgagee's remedy
may be barred if he omits to sue within the statutory period but his right is not extinguished
Therefore, except in cases when the right itself if extinguished by lapse of time, the remedy only
is barred. So a debt does not cease to exist only because its recovery is barred by the statute of
limitation. But although the existence of the right is not affected by the remedy becoming barred
by limitation, the fact that remedy is barred may prevent the right being availed of in some other
way also. However, in what ways the right can be availed of or whether the availability of the
right in a particular manner is preserved by the suit being Barred by limitation depends upon
other branches of law and not to be looked into in the statute of limitation. If a barred debt can be
recovered by any other means than by suit, the Limitation Act does not prevent anybody form
recovering such debt.
Sections 25 and 26 deal with the direct acquisition of rights to easement by adverse possession
Section 27 deals with the indirect acquisition of the ownership of corporal property by
possession or rather with the extinction of the right to property by prescription.
The right that is extinguished by the operation of this section is the right of a particular person,
whose suit for possession of the property has been burred. If the right of a Hindu widow is
extinguished by limitation.
B. CONDONATION OF DELAY
Doctrine of Sufficient Cause For Extension of Time or Condonation of Delay:
The general rule is that the suit, appeal or application must be made within the prescribed period
of limitation. However, there is an exception to this general rule which provides that the court
may admit an application or appeal even after the expiry of prescribed period of limitation, if it is
satisfied that the applicant or the appellant has been prevented by some sufficient cause, from not
making the application or preferring the appeal within the presented period of limitation
It may be noted that doctrine of suflicient cause is not applicable in the following cases
i. Application made under any of the provisions of Order XXI of CPC, 1908, and
ii. Suits
The expression sufficient cause had not been defined under The Limitation Act, 1963. However,
a cause in order to be a sufficient cause must be a cause which is beyond the control of the party
invoking this section. For example, illness of the party, mistake of the counsel, mistake of law,
and not ignorance of law, etc are some of the instances of sufficient cause
The burden to prove sufficient cause for delay in filling an application or appeal lies on the party
applying for condonation of delay under section 5. However, it is the discretion of the court to
grant extension of time or not
Filing After the Expiry of Prescribed Period:
Section 5 is a principle of exceptions which allows filing after the expiry of prescribed period if
sufficient cause is shown. The phrase "sufficient cause has to be interpreted liberally, keeping in
mind at all times that a litigant normally does not stand to benefit from delay. On the contrary
there is always a chance of his losing his right altogether. Hence an interpretation that advances
substantial justice has to be accorded in this regard, burring a few decisions courts have
repeatedly refused to make special exceptions in favour of government, notwithstanding the
impersonal machinery. The court has discretion to admit or refuse to admit the proceeding, even
if sufficient case is shown, as is made clear by the words may be admitted used in the section
PRINCIPLES FOR EXTENSION OF TIME UNDER SECTION 5: The principles for extension
of time under Section 5 may be summed up as follows:
a) The party seeking relief has to satisfy the court that he had sufficient cause for not
preferring the appeals, etc., within the prescribed time
b) The explanation has to cover the entire period of delay.
c) A litigant should not be casily permitted to take away a right which has served to his
adversary by lapse of time
d) The proof of sufficient cause is a condition precedent for the exercise of the
discretionary jurisdiction vested in the Court by Section 5. After sufficient cause is shown
then the Court has to enquire, whether in its discretion it should condone the delay.
e) The discretion conferred in the Court is a judicial discretion and must be exercised to
advance substantial justice
(f) No liberal view should be taken merely because the defaulting party is Government,
(g) Even sheer indifference of the Advocate cannot stand in the way of condoning the delay
when there is no laches on the part of the litigant.
Exceptions to Condonation of Delay – Section 5

There are certain exceptions relating to the ambit of the doctrine of condonation of delay
(Section 5):

 The doctrine is applicable to Criminal Proceedings only.

 The doctrine does not include “suit” and only covers appeals and applications.
 Other than an application under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908. The doctrine covers all appeals and applications

Instances where condonation can be granted

The following are the instances where condonation can be granted:

 Subsequent changes in the law.

 Illness of the party: It includes the nature and severity of disease and facts
encompassing the failure to act.
 Imprisonment of the party: However, mere detainment is not sufficient to cause.
Varies on a case-to-case basis.
 Party is a pardanashin woman.
  Party belongs to a minority group with insufficient funds.
 Poverty or paupers.
 Party is a government servant: A government servant may not have an incentive in
fulfilling the task. Therefore, a certain latitude is permissible in such a case.
 Delay due to the pendency of the writ petition.
 Party is illiterate.
 Other adequate grounds: Mistake of Court, Mistake of Counsel, Delay in getting
copies, mislead by rulings, etc.

CASE LAWS:

1. Shakuntala Devi Jain v. Kuntal Kumari

In this case, the question before the Court was whether the delay in filing appeal should be
condoned under Section 5 of the Limitation Act. As laid down in this case, Section 5 of the
Limitation Act gives Court discretion, which has to be exercised in a way in which judicial
power and discretion ought to be exercised upon well-understood principles. The words
“sufficient cause” need to receive a liberal construction. The Bench of three Judges held that
unless want of bona fides of such inaction or negligence as would deprive a party of the
protection of Section 5 is proved, the application must not be thrown out or any delay cannot be
refused to be condoned.

The appeal was allowed and the delay was condoned.

2. State (NCT of Delhi) v. Ahmed Jaan

The petitioner had filed an appeal for condonation of delay, however the file got mixed up in the
Registry of High Court. The question before the court was whether to allow delay in filing and
re-filing of appeals. In this case, it was held that what counts is not the length of the day but the
sufficiency of a cause i.e. the Court should follow a pragmatic and rational approach in
explaining every single day’s delay.

The delay was condoned and appeal thereby dismissed.

 3. Kunwar Rajendra Singh v. Rai Rajeshwar Bali and others

The judicial committee, in this case, pointed out that if a party in a particular manner due to
wrong advice given by their legal advisor, they cannot be held liable for negligence and can still
be permitted to plead under Section 5 of the Limitation Act. The Committee also observed that
mistaken advice given by a legal advisor in a particular case can be held to be sufficient cause.

The appeal was allowed.

C. LEGAL DISABILITY SEC 6-8

Period or Limitation In The Case of Persons Under Legal Disability (Sec 6,7 & 8):

The period of limitation starts from the date on which the cause of action has arisen but in the
case of persons suffering from some legal disability, the period of limitation runs from the date
of the cessation of disability. The rules to this effect are contained in sections 6, 7 and 8
Section 6: Section 6 excuses an insane person, minor and dot to file a suit or make an application
for the execution of a decree within the time prescribed by law and enables him to file the suitor
make an application after the disability has ceased counting the period of time from the date on
which the disability ceased.
Section 6 provides that a person is under a legal disability if such person is a minor (the term
minor includes child in the womb) insane and idiot. In such cases, the persons will be entitled to
fresh starting point of limitation from the date on which the legal disability ceases to exist subject
to the following conditions:
i. Such a legal disability must be existing at the time from which the period of limitation is
to be commenced, and
ii. The person under legal disability must be entitled to institute the suit or make an
application Section 6 further provides the following
a) If a person is affected by several disability at one point of time, then the person may
institute a suit or make an application after all disabilities have caused
b) If one legal disability is followed by another legal disability, then the person may institute
a suit or make an application after all disabilities have ceased.
iii. If the legal disabilities continue up to the death of the person under such disability, then
his legal representative may institute the suit or make the application within the same
period after the death, as would otherwise have been allowed from the time specified in
the Schedule Il to the Act
iv. iv) It may be noted that section does not apply to appeals
Section 7:
Section 7 is applicable where several persons are jointly entitled to institute the suitor make an
application for execution of a decree and out of the several persons, one or some of them are
affected by "legal disability’.
The period of limitation in such a case is to be reckoned, depending upon whether discharge can
be made with or without the consent of the person under Legal disability, If the discharge can be
given with the consent of such person, the period of limitation will start only after the disability
is removed. On the other hand, where consent of the person under legal disability is not required,
time will run against them all It may be noted that section is not applicable to appeals
Sections 8:

Section 8 is an exception to Sections 6 and 7 and controls both these sections According to
Section & the period of limitation cannot extend beyond three years from the date of cessation of
legal disability
However, if the ordinary period of limitation computed from the original accrual of the cause of
action expires more than 3 years after the cessation of disability, such period will be allowed.
Thus, if the normal limitation period is more than the limitation period computed in accordance
with the Sections 6, 7 and 8, then the normal limitation period shall apply
Together represent a well-knit legislative scheme wherein limitation period is excluded during
period when litigant could not have sued on account of minority/insanity idiocy
However, such disability should be present at the time from which the period of limitation is to
be reckoned. Subsequent disability inability would not stop the continuous running of time
However, strict application of this rule would have done injustice to other party insofar as their
rights would be uncertain for long periods of time. To counter this full period of limitation to be
accorded after disability ceases is elongated to a maximum of 3 years. This strikes a perfect
balance of conflicting interests of the disabled and the other party
Continuous Running of Time:
Section 9 of the Limitation Act, 1963 provides that where the limitation period has started, no
subsequent disability or inability to institute a suit or make an application can stop it. The section
embodies the principle that once the time for filing suit or an application starts running. it will
continue to run till it has exhausted the full prescribed period. The running process can only be
stopped or suspended by express statutory exceptions
"Disability connotes legal disability. It is want of legal qualification to act ie, want of capacity to
act. It is the state of being minor, insane and idiot "Inability on the other hand, connotes want of
physical power to act Illness, poverty. ignorance, etc. are some of the instances of inability. It
may be noted that section 9 is applicable only to suit and applications. It does not apply to
appeals
The bar of limitation arises only where a suit is instituted an appeal is preferred or an application
is made after the prescribed period of limitation. Thus, the bar only applies where proceeding has
been instituted after the period of limitation. The bar does not apply to steps which constitute a
mere continuation of pending proceeding. Thus, where an application for execution has been
filed within the period of limitation, but subsequently, an application is made to continue the
execution proceeding the latter application is not subject to any period of limitation. Similarly,
where a suit is validly instituted, but the plaint is returned for some purpose and represented,
such representation is only a continuation of the suit and does not affect the question of
limitation

Exclusion of Time in Legal Proceedings:

Section 12 gives the following periods shall be excluded in computing the period of
limitation for various proceedings mentioned
1. In computing the period of limitation prescribed for a suit, the day on which the
timebegins to run shall be excluded.
2. In computing the period of limitation prescribed for an appeal, the following periods
shallbe excluded:
a) the day on which the period begins to run,
b) the day on which the judgment was pronounced
c) the time required for obtaining the copy of decree, sentence, order, and
d) the time required for obtaining the copy of judgement
3. In computing the period of limitation prescribed for an application for revision or review
or leave to appeal, the following shall be excluded:
a) the day on which the period begins to run
b) the day on which the judgment was pronounced
c) the time required for obtaining the copy of decree, and
d) the time required for obtaining the copy of judgement
4. In computing the period of limitation prescribed for an application to set aside an award,
the following period shall be excluded
a) the day on which the period begins to run and
b) the time required for obtaining a copy of the award
5. In computing the period prescribed for any other application only the day on which the
time begins to run shall be excluded

EXECUTION

MEANING OF EXECUTION:
 Execution is no where defined in CPC.
  "Execution is the enforcement of decrees and orders of the Court by the process of the
Court." As a matter of fact, execution is the formal procedure prescribed by law whereby
the partly entitled to the benefit of a judgment may obtain that benefit.
SUBJECT MATTER OF EXECUTION: The subject matter of execution may be either a decree
or an order of a Court of competent jurisdiction. Every decree or order of a Court cannot be the
subject matter of an execution, but only those decrees and orders are executable which finally
determine and enforce the rights of the parties at the date when the decree or order is made.
Decree which may be executed: Before a decree can be executed, it must be both valid and
capable of execution. The decree put into execution must not be barred under any law. It is the
decree passed by the Court of first instance which can be executed but when an appeal has been
preferred against the original decree, it is the decree of the appellate Court, which alone can be
executed. The decrees of the Court of first instance become merged in the appellate Court's
decree. The appellate decree whether it confirms, varies or reverses the decree of original court,
it is the only decree which can be executed.

S.37. Definition of Court which passed a decree— The expression "Court which passed a
decree", or words to that effect, shall, in relation to the execution of decrees, unless there is
anything repugnant in the subject or context, be deemed to include,—
(a) where the decree to be executed has been passed in the exercise of appellate jurisdiction, the
Court of first instance, and
(b) where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the
Court which, if the suit wherein the decree was passed was instituted at the time of making the
application for the execution of the decree, would have jurisdiction to try such suit.
S.38. Court by which decree may be executed— A decree may be executed either by the court
which passed it, or by the Court to which it is sent for execution.
Application for Execution: The execution proceedings commence with the filing of an
application for execution before the Court, which passed the decree, or before the Court to which
the decree has been transferred for execution. Rules 10-25 and 105-106 of Order 21 deal with
execution applications.
Who may apply for execution?
Rule 10 an execution proceeding may be started on the application of the –
i. Decree holder- Rule10 of Order 21
ii. Where the decree-holder is dead, his legal representative-S 146.
iii. Any other person claiming under the decree-holder-S. 146.
iv. Representative of or a person claiming under the decree-holder - S. 146
v. Transferee of decree-holder26, subject to the following
 a) Where the decree has been transferred by an assignment, in writing or by
operation of law;
b) The application is to the Court which passed the decree;
c) Notice and after providing an opportunity of being heard to the transferor and the
judgment debtor.
vi. One or more of the joint decree holders,27 subject to the fulfillment of the following
conditions:
a) There is no contrary condition imposed by the decree.
b) The execution application is to the execution of the whole decree; and
c) the application must have been for the benefit of all the joint decree-holders;
vii. Any person having special interest.

Transfer of decree for execution (Section 39-42; Order 21 Rules 3-9)

1. Generally Court which passed the decree is the court to execute the decree however in
some following cases the decree may be transferred to another court for execution:
(a) The Judgment-debtor actually and voluntarily resides or carries on business, or personally
works for gain, within the local limits of the jurisdiction of such court; or
(b) The judgment-debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which passed the decree but ha property within
the local limits of the jurisdiction of such other court; or
(c) The decree directs the sale or delivery of immovable property situate outside the local
limits of the jurisdiction of such other court; or
(d) The court which passed the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court.
2. The Court which passed a decree may of its own motion send it for execution to any
subordinate Court of competent jurisdiction.
3. For the purposes of this section, a Court shall be deemed to be Court of Competent
jurisdiction if, at the time of making the application for transfer of decree to it, such Court
would have jurisdiction to try the suit in which such decree was passed.
4. Nothing in this section shall be deemed to authorize the Court which passed a decree to
execute such decree against any person or property outside the local limits of its
jurisdiction.
Powers of the court in executing transferred decree- Section 42
 Same powers in executing such decree as if it had been passed by itself.
 Such court can punish for obstructing and disobeying the execution of decree in the same
manner as if it had passed the decree.
 In addition such powers shall include-
(a) Power to send the decree for execution to another court under section 39;
 (b) Power to execute the decree against the legal representative of the deceased judgment-debtor
under section 50;
(c) power to order attachment of a decree
Against whom execution may be taken out:
a) Judgment debtor S.50 . O.21. R.15
b) When the judgment debtor is dead, against his legal representatives. But the legal
representatives shall be liable only to extent of the property of the judgment debtor
received by them. -So 50, 52, 53.
c) Representative of or the person claiming under the judgment-debtor S. 146
d) Surety of the judgment debtor. S. 150.
Court to whom an execution application may be made: As per S. 38, an execution application
may be filed either in the Court who passed the decree or in the Court to whom the decree has
been transferred for execution.
Contents of Application: According to Rule 11 of 0.21, every application for execution, except in
a case of a money decree, shall be in writing, signed and verified by the applicant or by some
other person acquainted with the fact of the case and shall contain the particulars like the number
of the suit, the name of the parties, the date of the decree, the amount of the decree etc Rules 11-
A, 12, 13, 14 and R. 45(1) of 0.21 should be read together.
Procedure
(a) Admission- Rule 17
(b) Hearing of application- Rules 105-106
(c) Notice of Execution- Rule 22
(d) Procedure after notice
Admission: According to Rule17 of 0.21, on receiving an application for execution of a decree,
the Court must admit and register the application, if the Court is satisfied that the execution
application complies with the requirements of Rule 11 to 14. Where such application does not
comply with the above requirements then the Court shall allow the defect to be remedied then
and there or within a time fixed by it, and if the defect is not remedied as specified then, the
Court shall reject the application.
Hearing: Rules 105 and 106 deal with the hearing of an execution application and state that
when an application is pending then, the Court shall fix a date of hearing and if the applicant is
not present at the time of hearing, the Court may dismiss the application and when the applicant
is present but the opposite party is not present, the Court may proceed ex-parte hearing and pass
an appropriate order. Under Rule 106, an order of dismissal for default or an ex-parte hearing
may be set aside by the court on an application of the aggrieved party where there are sufficient
causes shown to do so. 28 An order rejecting an application u/r 106(1) is appealable
Limitation for Execution: Any application for execution of a decree can be filed within 12
years from the 29 date of the decree while the period of limitation for the execution of a decree
for mandatory injunction is 3 30 years from the date of the decree
Stay of Execution: Rules 26 to 29 of Order XXI deal with the stay of execution. The provisions
of Rule 26 are mandatory and imperative while the provisions of Rule 29 are not mandatory but
discretionary. But this discretion must be exercised judicially and in the interest of justice.
The execution proceeding may be stayed either by the executing Court i.e. the Court which
passed the decree or the Court to: -which the decree has been transferred for execution or by the
Court having appellate jurisdiction in respect of the decree or to which the decree has been
transferred for the execution thereof.
The provisions regarding stay of execution of a decree are made in Rule 26, which lays down
that the executing Court (the Transferee Court) shall, on sufficient cause being shown by the
judgment-debtor, and after furnishing security or fulfilling the conditions, which may be imposed
upon him by the Court, stay the execution of a decree for a reasonable time, to enable the
judgment debtor to apply to the Court which has passed the decree or to the appellate Court for
an Order to stay execution.
The transferor Court can stay the execution absolutely while the power to stay the execution by
the Transferee Court is for a reasonable time to enable the judgment debar to apply to the
transferor Court or to the appellate Court to grant stay against the execution.
Stay of Execution Pending suit: Rule 29 of O. XXI deals with the provisions regarding stay of
execution pending suit between the decree holder and the judgment debtor. Rule 29 says that
"where a suit is pending in any Court against the holder of a decree of such Court or of a decree
which is being executed by such Court, on the part of the person against whom the decree was
passed, the Court may, on such terms as it thinks fit, stay execution of the decree until the
pending suit has been decided. Provided that if the decree is one for payment of money, the
Court shall if it grants stay without requiring security, record its reasons for so doing.

Modes of Execution
 Delivery ond any property specifically decreed (Sections 65-74 and Rules 64-104)
 Attachment and sale or sale without attachment of property (Section 60-64 and
Rules 64-104)
 Arrest and detention in prison of the judgment-debtor (Sections 55-59 and Rules
37-41)
 By appointing receiver
 Such other manner as the nature of the relief granted may require
 Partition (Section 54- To be by collector where land to be partitioned is assessed
to the payment of revenue to the government)
 Specific performance of contract. (Rule 32)
  Injunction (Rule 32)
 Payment of money (Rule 30)
 Restitution of conjugal rights (Rule 32 and 33)
 Decree against legal representatives (Sections 52 and 53)
 Decree against corporations/ Firms (Rule 32, 49-50)

1. Delivery of property Section 51 (a) Rules 31, 35 and 36.

a) Specific movable property: The decree for any specific movable properties which do not
include money and are in the possession of judgment debtor may be executed:-
1. by seizure and delivery of property;
2. by detention of the judgment debtor;
3. by attachment and sale of his property;
4. by attachment and detention both
The provisions of Rule 31 of O. 21 are not applicable for the execution of a decree for money or where
the property is not in possession of the judgment debtor but is in the possession of a third party.

b) Immovable property: Rules 35 and 36 Of O. XXI provide the mode of executing decrees,
for possession of immovable property. Where the decree is for immovable property in
the possession of judgment debtor or in the possession of any person bound by the
decree35, it can be executed by removing the judgment debtor or any person bound by
the decree and by delivering possession thereof to the decree holder.

2. Attachments and Sale of Property:

Section 51(b) The Court is empowered to order execution of a decree by attachment and sale or by
sale without attachment of any property36 and the sale of property without an attachment is
merely an irregularity and such sale is not void or without jurisdiction and does not vitiate the sale.

Sections 60 to 64 and Rules 41 to 57 of Order XXI deal with the subject of attachment of property

An executing Court is competent to attach the property if it is situated within the local limits of the
jurisdiction of the Court and the place of business of the judgment debtor is not material37. The 38
provisions of the Code, however, do not affect any local or special law. The attachment and sale
under 39 any other statute can be made and the judgment debtor cannot claim benefit under the
Code.

Modes of Attachment: Section 62 and Rules 43 to 54 of Order XXI lay down the procedure for
attachment of different types of movable and immovable property

Property which can and cannot be executed: Section 60(1) of the code specifies about theproperty
which can be attracted and sold in execution of a decree while being subject to the provisions of
 sub-section (2) of section 60, the properties which can be attached and sold in execution of a decree
are specified in proviso to s. 60(1) and s. 61 of the Code

Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.

Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property is
located in more than the local limits of the jurisdiction of one or more courts, then one of the
Court can sell and attach the property. According to Order XXI, Rule 13, there has to be certain
information in the application for attachment of immovable property. According to Order XXI,
Rule 31, the decree for the specific movable property can be executed by:

 Seizure of the property if it is practicable;

 Delivery of the property to the person whom it has been adjudged;
 The detention of judgment-debtor in the civil prison.

Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property
of judgment debtor. The court may provide orders to the judgment debtor or officers in the case
of firms to submit the relevant books and documents for examination. The value of the property
is assessed in order to examine whether it would be sufficient for satisfying the decree. The
judgment debtor, the officer in the case of corporations and any other relevant person can be
orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation
or transfer of property after the attachment, then the transfer would be considered as void.

3. Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest and
detention. According to this Section,

 The judgment-debtor can be arrested at any time of the day and can be brought before
the Court.
 The detention of the Judgment debtor should be in civil prison.
 No officer can enter the dwelling-house after sunset and before sunrise for making an
arrest.
 The officer should release the judgment debtor once the amount is paid.
Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the
judgment debtor to show cause against detention in prison. According to this rule:

 Where the application is made for the execution of the decree for the payment of
money by the arrest and detention of a judgment-debtor in the civil prison, then the
Court provides an opportunity to the judgment debtor to show cause why he should
not be sent to the civil prison.
 The Court provides notice to the judgment debtor to appear before the court on a
specified date and provide show cause.
 The Court will also not provide the notice in certain situations, for example, if the
court feels it would delay the process of execution or the judgment debtor might
abscond within that time.

According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer
authorised for execution to produce him in the Court within a reasonable time. Rule 39 of Order
XXI is an important provision that deals with the subsistence allowance. The decree-holder has
to pay a certain sum that is fixed by the Court for the maintenance of the judgment debtor in the
civil prison from the time of his arrest until he can be brought before the Court. No judgment
debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of
the Code of Civil Procedure provides protection to women and according to this Section, women
cannot be arrested in the execution of the decree for money. The scale for the monthly allowance
is fixed under Section 57 of the Code of Civil Procedure or else Court can fix an amount that it
thinks is sufficient. The payment has to be made in advance to the authorized officer in the
beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder
for the subsistence of the judgment-debtor in the civil prison and it shall be deemed to be costs in
the suit. Rule 40 provides various proceedings that have to be followed after the appearance of
judgment debtor after providing the notice. Section 58 of the Code of Civil Procedure deals with
the rules regarding the detention and release. According to this section, the judgment-debtor can
be detained in the civil prison:

 For a period not exceeding three months- When the decree amount is more than a
thousand rupees;
  For a period not exceeding six weeks- When the decree amount is for the payment of
a sum of money exceeding five hundred rupees, but not exceeding one thousand
rupees.

Section 59 of the Code of Civil procedure provides the judgment debtor can be released on the
grounds of illness.

4. By' Appointment of Receiver:

Section 51(d) The provisions relating to the execution by appointment of a Receiver are provided
in Order XXI, Rule 11 (2) (J) (iv). An execution of a decree by appointment of receiver is an
equitable remedy which cannot be claimed as a right and is granted by the Court in its discretion,
and the same is an exception to the general rule that a decree holder can choose the mode of
execution and that the Court has no power to refuse the mode chosen by him. The provisions of
section 51 (d) should be read with - the provisions of Order XL, Rule 1

https://blog.ipleaders.in/mode-of-execution/

Questions to be determined by the Executing Court:

Section 47 provides the provisions regarding the matters arising subsequent to the passing of a
decree, and deals with objections to execution, discharge and satisfaction of a decree.

i. 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.
ii. . Omitted
iii. Where a question arises as to whether any person is or is not the representative
of a party, such question shall, for the purposes of this section, be determined
by the court

Explanation I:For the purposes of this section, a plaintiff whose suit has been dismissed and
defendant against whom a suit has been dismissed are parties to the suit
Explanation Il: (a) For the purposes of this section, a purchaser of property at a sale in execution
of decree shall be deemed to be a party to the suit in which the decree is passed and (b) All
Questions relating to the Delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution, discharge or satisfaction
of the decree within the meaning of this section

In Jugal Kishore V. Raw Cotton Com. Ltd. AIR 1955, SC, the Court has decided that once the
suit is decreed, S. 47 requires that the executing Court alone should determine al questions in
execution proceedings and fling of separate suit is barred. It does not matter whether such
questions arise before or after the decree has been executed. For the said purpose, the Court can
treat a suit as an execution application or an application as a suit in the interest of justice

But after the Amendment Act of 1976, which deleted sub-section (2) of section 47 by which the
Court was empowered to treat an application U/S 47 as a suit, or a suit as an application, now the
Court cannot treat an application U/S 47 as a suit or a suit as an application

An Executing Court Can not go behind the Decree: The duty of an eating Court is to execute
the decree as it is. An executing Court cannot go behind the decree. An executing Court has to
take the decree as stands and execute according to its terms. The Court has no power to question
the correctness of the decree.

Vague and Ambiguous Decree: But whenever a decree is found to be vague or ambiguous, is
within the power and duty of the executing Court to interpret the decree with the intent to find
out the meaning of those

Decree passed in inherent lack of Jurisdiction: When the executing Court finds that there was
an inherent lack of jurisdiction, the decree passed by a Court is a nullity and when such a plea is
put forward by an aggrieved party. It is obligatory on the part of the executing Court to consider
such an objection, and such a decree cannot be executed, because there cannot be said to be
decree in such a case
No Appeal against any determination U/s 47, but Revision Lies: Before the Amendment Act
of 1976, the determination of any question U/s 47 was deemed to be a decree U/s 2(2) of the
Code, but after the amendment, which deleted sub-section (2) of section 47, by which the Court
was empowered to treat an application U/s 47 as a suit of a suit as an application and hence, now
any determination U/s 47 is not appealable US 96 or 100, but a revision lies, subject to the
fulfillment of the conditions mentioned in s. 115 of the Code