CIVIL PROCEDURE CODE II

3rd Year BA LLB (Hons), 8th Trimester, 2021

Course Teacher: Dr. Nanda Kishore

Teaching Seminar Student: Yet to be announced

COURSE DESCRIPTION

This is a mandatory course as per Bar Council Regulations and this course has
been designed as follows.

In CPC 1 we explored several of the conceptual themes arising within civil

procedure such as the following:

(a) The difference between substantive law and procedural law.

(b) The difference between questions of law and questions of fact.
(c) The goals of procedural systems.
(d) The factors that influence procedural systems.
(e) How procedural systems can be categorised.
(f) The adversarial – inquisitorial dichotomy.
(g) Comparative civil procedure and its benefits.
(h) What does procedure have to do with Justice?
(i) The importance of Procedure.
(j) The History of Indian Civil Procedure.
(k) Peculiar problems with Indian Civil Procedure and the Indian Civil Justice
System.

Students explored these themes further in their projects which offered both
practical and theoretical topics. In CPC II, we will be re-visiting particularly topics
(j) and (k) above and students will again be welcome to explore these conceptual
themes in their projects. Further, we will complete our study of the Code itself.
We will cover the remainder of Sections 1 to 35 B and Orders 1 to 20A –the entire
trial court procedure from the stage of filing of the plaint, as the suit proceeds
from stage to stage, until the judgment is pronounced by the trial court and the
decree is written. Thereupon key portions of the remainder of the Code will be
covered in particular: Appeals, Review, Revision, Reference and Execution.

The materials we rely upon are primarily the statutes concerned namely the Code
of Civil Procedure, 1908, and related statutes such as the Limitation Act, 1963.
We also rely extensively on cases decided by the Supreme Court and some cases
of the High Courts.

Students will be furnished copies of the Handouts (as was done in CPC1 wherein
Handouts were furnished) at the start of the course which will outline in detail
the topics covered, the relevant statutory provisions, the cases to be discussed
and the readings for each topic. For each class, students will be expected to read
the cases mentioned in the Handouts. Additional reading will also be indicated,
usually the relevant Chapters from Takwani’s Textbook on Civil Procedure.

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In a typical class, the Course Teacher will first outline the broad principles under
the topic being studied and then the class will read the statutory provisions. We
then move on to case-law that illuminates the principles underlying the statutory
rules. For each case to be discussed in class, 5 students will be identified before-
hand and will be required to lead the discussion on that case. The other students
will also be expected to have read the case and actively participate in classroom
discussion. Students who have worked or are working on a project that involves
the topic under consideration might be required to make a presentation in class-
this will help the class explore several tangential and intersecting themes. For
example, whilst studying Discovery, a student who has made a project on
Discovery in the US might make a presentation upon the said topic. Socratic
discussion is welcomed. There will be Mock-Tests wherein students will be
expected to solve practical-type questions.

COURSE OBJECTIVE(S):

From the rules of civil procedure to the principles of civil procedure

The Law of Civil Procedure in India is the legacy of some of the finest English
jurists of their time who, working with the pre-existing English common law on
the subject, strove to create comprehensive and precise codes laying down the
procedure to be followed for the conduct of civil cases. Their work was
painstaking, pioneering and infused with the highest degree of scholarship and
sophistication.

We Indians have always been in awe of the Indian Evidence Act, 1872, and the
Code of Civil Procedure, 1908, which have to be read together to understand civil
procedure. The Law Commission Reports are full of praise for these enactments.
In spite of several reports over the years that seek to review and effect changes to
the existing system of civil procedure, it is recognised that the Evidence Act is “a
commendable piece of legislation”, the Act being seen as “an embodiment of all
that is truly excellent.”The CPC is also similarly admired. The Law Commissions
have always felt that “the ship is well-designed, fundamentally sound…”The only
serious challenges to the system that the Law Commissions have considered over
the years have been with regard to the viability of resorting to an indigeneous
system of procedure or jumping over to an inquisitorial system as existing in
Continental Europe- both of which have been rejected as impracticable.

Yet, in the face of the constant crisis of the Civil Justice System caused by
arrears and delays, there is the recurrent urge to review our procedures and
somehow find ways of making the system more effective. Whilst several changes
have been recommended and effected over the years, the “ship” remains
fundamentally the same and we are forced to conclude that the problem is one of
infrastructure, not procedure.

But even though the ship may be fundamentally sound, we may be at fault for
not running it properly. The provisions of the Codes are “insufficiently theorised”
and we are yet far away from arriving at the Principles of Indian Civil Procedure as
opposed to a mass of rules and cases that have not been adequately reconciled.

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The great disadvantage of codification is that very often, the principles and
purposes behind the black-letter rules are not expressly stated, and are further
difficult to arrive at with large and complex statutes like the CPC and the
Evidence Act. Thus, when courts are called upon to apply the rules in a given
case, or when litigants/lawyers wish to predict the outcomes of particular actions
based on the rules, the interpretive issues that arise are not adequately resolved,
leading to improper/insufficient application/understanding of the rules and
consequently, lack of predictability and uncertainty. Only when a clear set of
principles underlying the Codes and the decisions rendered thereunder are
articulated, proper application of the procedural law can take place. This lack of
clarity, and the insufficient and incorrect application of the Codes, add to delays
in dispute resolution, and also affects the quality of dispute resolution that the
Civil Justice System delivers.

In addition to “micro theorisation” as discussed above, i.e., arriving at a set of

principles that best explain the rules and decided cases under them, India would
benefit greatly from taking into account the vibrant discourse being conducted by
procedural law scholars around the world, wherein Procedure is being theorised
at a “macro” level. A sizable body of literature is developing on the “macro”
analysis of procedural systems- wherein broader questions as to procedural
systems as a whole are being considered. Countries have the similar agenda of
designing procedural systems that best achieve the goals of the system - such as
accurate resolution of disputes - with the minimum amount of time, money and
vexation. Thus, the discussion that is conducted in one country can easily be
borrowed by others, and this is particularly true of countries that follow the
Anglo-American model of civil procedure. On this count also, theorisation and
scholarship in India is lacking.

Procedural law can be difficult. There is a huge mass of technical rules that need
to be mastered. The object and purpose of the rules are very often not obvious
from a bare reading of the rules and the rules are often drafted in archaic
language. The rules seem counter-intuitive at times. The rules are inter-
connected in complex ways and cannot be easily sub-divided. The CPC has to be
read with the Evidence Act, as well as other procedural codes relating to
limitation, court-fees, specific relief, etc. Crucially, comprehensive text-books that
explain in a simple and easily understandable manner all the rules of the CPC
and Evidence Act are easily found. Sarkar’s Code of Civil Procedure continues to
be revised and reprinted and is a standard reference book for practitioners and
students. The CPC is reproduced with voluminous case-law under each section,
primarily from the High Courts. The cases are not reconciled, and no principles
are arrived at that clearly explain the section or any interpretive issues that arise
therefrom. Driven by despair, some students may rush to get Mulla’sKey to
Indian Practice or CK Thakker’sCivil Procedure – both elegant well-written books-
but too thin and perhaps not comprehensive enough – only basic issues under
each topic are explained without going in too deep.

In order to resolve interpretive issues that arise within the Codes, one inevitably
has to study the provision, the surrounding context and the statute as a whole,

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and try to glean therefrom the purpose or rationale of the rule. Once you get to
the purposes of the rule, then applying it becomes much easier. With the
common-law, every principle is based on a judgment or series of judgments and
therefore it is not difficult to get to underlying rationales and purposes-since this
would be articulated in the judgment. With statutes, very often the purpose and
rationale for rules will not be obvious from a plain reading of the rule. This is
especially true of the Evidence Act and CPC which often contains rules the
reasons for which are not obvious. What compounds the problem even more is
the sheer volume and complexity of the procedural codes.

Ronald Dworkin the famous “jurisprude”, argues that the law is not just a set of
rules- the law is the set of principles that underlie the entire body of rules and the
precedents decided under them. In order to really know your law, you need to
know not just your rules and cases, but the principles which underlie them.
Considered from this perspective, it is clear that we are still far away from
arriving at the Principles of Indian Civil Procedure. Any textbook on the CPC will
evidence the fact that we are still straddled with a mass of rules and cases. Many
areas of the CPC and Evidence Act are yet to attain conceptual clarity.

After this rather elaborate warning, we come to the objects of this course.
Primarily, it is to ensure that students have attained a good deal of familiarity
and understanding of the black-letter rules of Indian civil procedure (“the trees”).
Students are to be adept at applying the basic rules of civil procedure to draft,
analyse and argue cases at trial and appellate levels. Secondly, it is also to gain
a sense of the underlying concepts and principles (“the forest”) to sharpen our
understanding of the rules and also so that we may appreciate the complexity
and design of procedural systems from a broader perspective. Such an approach,
it is hoped, would bring greater clarity and make the subject more interesting.

Teaching Method

Students will be required to read the cases and materials indicated in the
Handouts as per the suggestions given therein and may also wish to read the
“Additional Reading” indicated before attending the classes. Civil Procedure by
C.K. Takwani, 8th Edition, will be the guiding text-book for the course but will be
mostly used as “Additional Reading”.

The End-of-Trimester examinations will permit the students to carry into the
examination hall the following:
1. Bare Acts such as the CPC, Evidence Act, Limitation Act, etc.
2. Handwritten classroom notes signed by the teacher.
NOTE: Course Handouts given by the teacher will not be permitted in the exam
hall.
NOTE: If it is an online exam however, the rules mandated by the University will
apply, to be announced at a later stage.

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 EVALUATION PATTERN

Project 25 marks
Viva-Voce 10 marks
Class Participation 05 marks
End of Trimester Exam 60 marks
TOTAL 100
marks

BASIC READINGS

(Kindly note that even though these two books are mentioned as basic
reading, they are in fact to be used for additional reading as indicated in
the modules- basic readings for the course are the cases indicated under
each topic and the relevant portions from the handout)

1. Civil Procedure Code by Justice C.K. Thakker (C.K. Takwani) 8 th Edition

(Students Edition).
2. Mulla’s The Key to Indian Practice, 11th Edition.

Module 1

In this module we will complete basic trial procedure from Appearance of Parties
to Judgment and Decree. Particular emphasis will be laid upon the fact-find
process, i.e., the process by which evidence is detected, collected and recorded
before the court.

Module 2

In this module we will study execution proceedings, suits in particular instances

and miscellaneous provisions under the Code, thus completing essential trial
court procedures. Study of the provisions thus far should make the student
conversant with the essentials of trial-level procedural rules and advocacy.

Module 3

Remedies under the Code: Appeals, Reference, Review and Revision. In this
module we will cover all the remedies available under the CPC once a decree has
been passed. This will involve advocacy at appellate, High Court and Supreme
Court stages.

Module 4
In this module we will cover statutes that are closely connected with the CPC and
are essential for civil practice namely, limitation, specific relief, court fees and
suits valuation, and the civil rules of practice.

Module 1

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In this module we will complete basic trial procedure from Appearance of Parties
to Judgment and Decree. Particular emphasis will be laid upon the fact-find
process, i.e., the process by which evidence is detected, collected and recorded
before the court.

WEEK 1:
SESSION 1
APPEARANCE OF PARTIES
AND CONSEQUENCES OF NON-APPEARANCE

 Note at the outset that the relevant rules are contained in Order 9 and
Order 17 Rules 1 to 3.In Order 9 Rule 1 a distinction is made between
hearing on the day fixed in the summons for defendant to appear and
answer and an adjourned hearing. The provisions of Order 9 relate to
the day fixed in the summons – however, by virtue of Order 17, Rule 2, the
court may dispose of the suit in one of the modes directed in Order 9 and
therefore the provisions of Order 9 become applicable to the hearing on the
day fixed in the summons and to the adjourned hearings. (Note however
the phrase “or make such other order as it deems fit” in Order 17 Rule 2.)

 Provisions relating to defaults by the Plaintiff :

(a) Order 9 Rule 2: Failure to pay court-fee or postal charges for

summons or present copies of the plaint-court may dismiss the suit.
Remedy: Order 9 rule 4 –fresh suit or application to set aside
dismissal.
(b) Order 9 Rule 5: Failure to apply within 7 days from the date of
return of summons for a fresh summons- court shall make an order
of dismissal unless satisfied that failure due to sufficient cause, etc.
Remedy: Order 9 Rule 5: Fresh suit.
(c) Order 9 Rule 3: Failure to appear (and Defendant also does not
appear)- Court may make an order that the suit be dismissed. Remedy:
Order 9 Rule 4- fresh suit or application to set aside order of dismissal.
(d) Order 9 Rule 8: Failure to appear (but Defendant appears)- the Court
shall make an order that the suit be dismissed unless Defendant
admits the claim or part thereof. Remedy: Order 9 Rule 9 – fresh suit
precluded but can apply to have dismissal set aside.

 Provisions relating to defaults by the Defendant

(a) Order 9 Rule 6: Defendant fails to appear even though Plaintiff

appears – the Court may make an order that the suit be heard ex
parte. Remedy: Order 9 Rule 7: application to set aside ex parte
proceedings (can be filed only until suit posted for judgment).
(b) Order 9 Rule 13: Ex parte decree passed against the Defendant.
Remedies: Order 9 Rule 13 application to set it aside, appeal against
the ex parte decree under section 96; review petition if possible and
fresh suit to set aside ex parte decree on the ground of fraud.

 Where there are multiple Plaintiffs and Defendants and only some
appear- Order 9 Rule 10 (only some Plaintiffs appear)- suit may proceed or
court may pass such order as deemed fit. Order 9 Rule 11 (only some

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 Defendants appear)- the suit shall proceed and the Court shall at the time
of pronouncing judgment make such order as it thinks fit with regard to
the Defendants who do not appear.

 Consequences of non-appearance by party ordered to appear in

person.Order 9 Rule 12.

 Where parties fail to produce evidence, cause the attendance of the

witnesses or perform other acts necessary for the further progress of
the suit- Order 17 Rule 3.

 Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]:

Defendant who is placed ex parte has right to take part in the proceedings
from the stage at which he appears; but no right to “turn back the clock”
which is the discretion of the court.

 Bhanu Kumar Jain vsArchana Kumar [2005(1) SCC 787]-the remedies

available to a Defendant against an ex parte decree discussed. Once
appeal against ex parte decree disposed, no application lies under Order 9
Rule 13. Conversely, once application under Order 9 Rule 13 rejected and
appeal against the order of rejection under Order 43 Rule 1 dismissed,
cannot raise the issue in the appeal. The appeal can only be agitated on
the merits of the case.

BASIC READING

 Order 9 and Order 17 Rules 1 to 3 of CPC, 1908;

 Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425];
 Bhanu Kumar Jain vs Archana Kumar [2005(1) SCC 787];

ADDITIONAL READING:
Takwani Pages 268 to 283

SESSION 2

FIRST HEARING OF THE SUIT

(a) What is the ‘first hearing” of a suit? Arjun KhiamalMakhijani vs.

JamnadasTuliani (AIR 1989 SC 1599) – the day on which the court
applies its judicial mind to the case either for framing issues or for taking
evidence, is the first hearing of the suit and the first hearing cannot be
before that date. Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987
(1) SCC 222 – the day on which the Court applies its mind to the case is
the first hearing of the suit and not before that.

(b) What happens on the first hearing? Examination of parties by the court
(Order X), Framing of Issues (Order XIV), reference to ADR (Section 89
read with Order X Rules 1A to 1C) and even possibly Final Disposal
(XV).

(c) What is the object and purpose of the provisions under Order X CPC– is it
for the purpose of gathering evidence?

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 T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467) – frivoloussuits
should be nipped in the bud on the first hearing by examining the parties
under Order X CPC.

Manmohandas Alias Bachaji vs. RamdeiMusammat (Oudh Weekly

Notes– Volume VIII Page 936- Privy Council deprecated the practice of
the trial judge in first recording the evidence of the Defendant witness by
calling him and putting questions to him on the whole case,as contrary to
the object of Order X.

K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104) – where
the defendant denied his signature on theVakalath itself, the trial court
could have investigated the matter under Order X and prevented a
protracted trial.

Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452) - the
power under Order X is only for the purpose of clarifying the stand of the
parties in regard to the allegations made; it cannot be converted to a
process of cross-examination by the court.

(d) Issues – Order 14 CPC. What are issues? When do they arise?Order XIV
Rule 1.

(e) Is the court bound to pronounce judgment on all issues?Order 14 Rule 2.

(f) What are the materials fromwhich issues may be framed?Order 14 Rule
3.

(g) Can the Court amend or strike out issues at a laterstage?Order XIV Rule
5.

(h) When can the court dispose of a suit on a preliminary issue?Order XIV
Rule 2.

(i) Can the parties agree to put forward questions of fact orlaw as issues to
bedecided by the court? Order 14 Rules 6 & 7.

(j) What is the effect of non-framing of a material issue - is it fatal to the suit
and is a re-trial mandatory?

BiswanathaAgarwala vs. SabitriBera (2009 (15) SCC 693) – Supreme

Court remanded the matterfor fresh framing of fresh issue and trying the
same on the ground appellant was prejudiced.

Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3)
SCC 394)-Where crucial issue was not raised the party was penalized for
the same.

MahendraManilalNanavati vs SushilaMahendraNanavati AIR 1965SC

364 – Order 41 Rules 23, 25 invoked.

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 (k) When can the court dispose of the suit at the first hearing? Order 15.

BASIC READING

 Order X, Order XIV, Order XV and Sec. 89 of CPC, 1908;

 Arjun KhiamalMakhijani vs. JamnadasTuliani (AIR 1989 SC 1599);
 Shyamlal vs. Atmenand Jain Sabha, Dal Bazaar – 1987 (1) SCC 222;
 T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467);
 Manmohandas Alias Bachaji vs. RamdeiMusammat (Oudh Weekly
Notes– Volume VIII Page 936;
 K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104);
 Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452);
 BiswanathaAgarwala vs. SabitriBera (2009 (15) SCC 693);
 Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3)
SCC 394)
 MahendraManilalNanavati vs SushilaMahendraNanavati AIR 1965SC
364

ADDITIONAL READING:
Takwani pages 285 to 291

SESSION 3
DISCOVERY

(a) Sections 30 to 32, Order 11.

(b) What is the rationale for discovery in an adversarial proceeding? Why is it

only available against the party opponent and not third parties? Why is it
not available with regard to the facts that constitute exclusively the case of
the opponent?

(c) What are the three modes of discovery recognized by the Code? By
interrogatories, by affidavit of documents, and by inspection.

(d) What is the procedure for delivering interrogatories to the party? Order 11
Rules 1 to 11– leave of the court necessary and they must relate to
matters in question in the suit; court will decide within 7 days from the
date of application; objections may be taken in affidavit in answer or
application can be made for striking off under Rule 7; affidavit in answer
shall be filed within 10 days; the court can issue direction to answer
further.

Raj Narainvs Indira Nehru Gandhi (1972) 3 SCC 850- relationship

between pleadings, issues and interrogatories seen; questions permissible
during cross-examination not necessarily “related to any matters in
question in the suit” under Order 11 Rule 1.

Nishi PremvsJavedAkhtar 1987 SCCOnlineBom 296: discovery does not

enable the party to know the facts which constitute exclusively the
evidence of the opposite side; or to discover who the witnesses for the

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 other side might be; “newspaper rule” in England followed.

(e) What is the procedure to obtain discovery of documents? Order 11 rules

12 to 13. Application to court for order – Affidavit in answer in Form No.
5 Appendix C.

ML Sethivs RP Kapur (1972) 2 SCC 427: Order 11 can be used in forma

pauperis proceedings; application for discovery need not specify the
documents sought to be discovered.

(f) What is the procedure for inspection of documents?Order 11 Rules 15 to

19. What is the difference between Rule 15 and 18?

(g) What is the effect of failure to comply with an order for discovery? Rule
21. M/s Babbar Sewing Machine Co vsTrilokNathMahajan (1978) 4
SCC 188: unless there is a clear failure to comply with the Rule, Order 11,
Rule 21 should not be lightly invoked.

(h) Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M.

SivasamyvsVestergaardFrandsen.

BASIC READING

Sections 30 to 32, Order 11

Raj Narainvs Indira Nehru Gandhi (1972) 3 SCC 850
Nishi PremvsJavedAkhtar 1987 SCCOnlineBom 296
ML Sethivs RP Kapur (1972) 2 SCC 427
M/s Babbar Sewing Machine Co vs TrilokNathMahajan (1978) 4 SCC 188
Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M. Sivasamyvs Vestergaard
Frandsen.

ADMISSIONS

 Sections 30 to 32 CPC and Order XII CPC.

 What are the two types of admissions according to Wigmore?

 What is the procedure for issuing notice to admit documents?Order

XII Rules 2 to 3A.

 What is the procedure to issue notice to admit facts? Order XII

Rules 4 to 5.

 What is the procedure to prove an admission – is the affidavit of the

pleader or his clerk sufficient? Order XII Rule 7.

BASIC READING
 Sections 30 to 32, Order XI and Order XII of CPC, 1908;
 Raj Narain vs Indira Nehru Gandhi (1972) 3 SCC 850;
 Nishi Prem vs Javed Akhtar 1987 SCCOnlineBom 296;
 ML Sethi vs RP Kapur (1972) 2 SCC 427;
 M/s Babbar Sewing Machine Co vs TrilokNath Mahajan (1978) 4

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 SCC 188;
 Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415;
 M. Sivasamy vs VestergaardFrandsen 2009 SCC OnLine Del 2310

ADDITIONAL READING:
 Takwani Pages: 293 to 311.
 Wigmore $ 1845 to $ 1863.

WEEK 2
SESSION 4

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS

(i) Sections 30 to 32, Order 13.

(j) Original documents to be produced at or before settlement of issues –

Order 13 Rule 1. What are the exceptions to the same?

(k) Is delay in producing originals fatal? BillaJagan Mohan Reddy

vsBillaSanjeeva Reddy (1994) 4 SCC 659- the requirement to explain the
delay under Rule 1 Order 13 is not as rigorous as that under section 5 of
the Limitation Act; in this case documents were allowed to be produced at
the stage of arguments but opportunity to rebut given to the other side. Is
the approach of the Supreme Court in the said case defensible?

(l) What is the procedure for the marking or admission of documents? Order
13 Rules 3 to 7. What are the matters to be endorsed on every document
admitted in evidence? Rule 4.

(m)What is the effect of failure to endorse a document as required under Rule

4? SadikHussain Khan vsHashim Ali Khan AIR 1916 PC 27-the
document will not be read as evidence.

(n) When should objections be raised as to the marking of documents?

HemendraRasiklalGhiavsSubodhMody 2008 (6) Mh LJ 886 (Full
Bench) - Objections against documents can be of three types- (i)
insufficient stamping (ii) inadmissibility and (iii) proof of the document.
Merely because a document is marked, objections as to admissibility not
precluded even at later stages. However, failure to object as to proof of a
document amounts to waiver of the necessity of formal proof of a
document and cannot be raised later. Objections as to insufficient
stamping have to be decided then and there before proceeding further.
However, note SaitTarajeeKhimchand vs Yelamarti Satyam alias
Satteyya (1972) 4 SCC 562 – mere marking of a document does not
dispense with proof of the document.

(o) Under what circumstances might the court order the impounding of
documents? Order 13 Rule 8. Insufficient stamping could be a ground.

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 (p) When can a party seek return of documents produced by him in the suit?
Order 13 Rule 9.

(q) If a document is in the custody of another court, how to get the same?
Apply under Order 13 Rule 10.

(r) Provisions as to documents also apply to material objects. Order 13 Rule

11.

(s) When can an adverse inference be drawn from non-production of a

document? Hiralal vs Badkulal AIR 1953 SC 225- not necessary that a
direction to produce has been issued.

BASIC READING
 Sections 30 to 32 and Order 13 of CPC 1908;
 BillaJagan Mohan Reddy vs BillaSanjeeva Reddy (1994) 4 SCC 659;
 Sadik Hussain Khan vs Hashim Ali Khan AIR 1916 PC 27;
 HemendraRasiklalGhia vs SubodhMody 2008 (6) Mh LJ 886;
 SaitTarajeeKhimchand vs Yelamarti Satyam alias Satteyya (1972) 4
SCC 562;
 Hiralal vs Badkulal AIR 1953 SC 225

ADDITIONAL READING
 Takwani Pages: 312 to 314.

SESSION 5

SUMMONING AND ATTENDANCE OF WITNESSES

(a) Sections 30 to 32, Order 16.

(b) What is the procedure for ensuring that witnesses to be called are present
in court on the date of trial? If the witness willingly would come and
depose, it would appear that nothing needs to be done except ensuring the
presence of the witness on the date of trial (Rule 1A Order XVI). However,
if the witness is recalcitrant, then you should include her name in the List
of Witnesses furnished to the court under Order 16 Rule 1 within 15 days
from the date issues are settled.

Mange Ram vs Brij Mohan (1983) 4 SCC 36: rules 1 and 1A operate in
separate fields – only if court assistance is required, the name should be
included in the list; failure to include the name of a witness who has come
to court to depose without summons is not fatal.

Lalitha J. Rai vs AithappaRai (1995) 4 SCC 244: delayed production of

list of witnesses condoned since trial was yet to commence.

(c) Who should pay for the witnesses summoned and what is the procedure
thereof? Rules 2 to 4 of Order 16.

(d) Witness can be summoned to give evidence or produce document in his

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 custody. Rule 6 Order 16.

(e) Can a person present in court be required then and there to give evidence
or produce a document in his possession? Yes, Order 16 Rule 7.

(f) What is the procedure for serving a witness? Similar to the procedure for
serving a party. Order 16 Rules 7A to 9.

(g) What are the consequences if a witness fails to comply with a summons?
Section 30 read with Rules 10 to 13, Rule 15 to 19. Proclamation,
warrant for arrest, attachment of property, fine, etc. Note the difference in
the manner in which a witness is treated as compared to a party who fails
to attend. Whilst a party who fails to attend court is placed ex parteand no
penal consequences ensue, a witness is supposed to assist the court in the
interest of justice and has a duty to perform.

(h) What are the consequences of refusal of a party to give evidence when
called on by the court? Order 16 Rule 20.

(i) Can the court of its own accord summon as witnesses strangers to the
suit? Yes – Order 16 Rule 14.

Municipal Corporation of Ludhiana vs BalinderBachan Singh 2004 (5)

SCC 182- SC at appellate stage exercising powers under Order 16 Rule
14.

Seshadri vs VasanthaPai AIR 1969 SC 692- suomotu calling of

witnesses in an Election Petition.

(j) Can the party opponent be summoned as a witness? Yes- Order 16 Rule
14 read with Rule 21.

(k) What is the procedure for the attendance of witnesses confined in prisons?
Order16A.

BASIC READING
 Sections 30 to 32 and Order 16 of CPC, 1908;
 Mange Ram vs Brij Mohan (1983) 4 SCC 36;
 Lalitha J. Rai vs AithappaRai (1995) 4 SCC 244:
 Municipal Corporation of Ludhiana vs BalinderBachan Singh 2004 (5)
SCC 182;
 Seshadri vs VasanthaPai AIR 1969 SC 692

ADDITIONAL READING
 Takwani Pages: 391 to 395.

SESSION 6
HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

(a) What is the relationship between the Burden of Proof under sections 101
to 106 of the Indian Evidence Act, 1872, and the right to begin under
Order XVIII of the Code? What are the two senses in which the phrase

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 “burden of proof” is used according to Wigmore?

Who has the right to begin under Order 18 Rule 1 CPC? Where there are
multiple issues, some of which are to be proved by the Plaintiff and some
by the Defendant, what is the sequence to be followed in the trial for the
leading of evidence? Order 18 Rules 1 to 3.

Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online P&H
994 (SJ)- where Defendant admits the facts stated in the Plaint but sets
up additional facts the Defendant would have the right to start.

B.H. RavindraPai vs Smt K. SulochanaBhandarkar 1981 ILR (KAR)

708 (SJ)- Plaintiff has the right to begin evidence but can reserve the right
to lead rebuttal evidence on issues that the Defendant has to prove.

(b) What is the procedure for addressing oral arguments and submitting
written arguments? Order 18 Rule 3.

(c) Why should a party appear before the other witnesses to be called on his
behalf? Order 18 Rule 3A.

(d) What was the procedure for recording the chief examination of a witness
before the 1999/2002 amendments? How would a document be marked in
court? What is the procedure and the practice now after the amendments?
Order 18 Rules 4 and 19. What is the procedure regarding the proof and
admissibility of documents filed along with the affidavit? Do you think that
the 1999/2002 amendments have helped or not?

(e) What is the manner of taking down evidence in court in appealable and
unappealable cases? Order 18 Rules 5 to 9, 13.

(f) When might the court take down not only the answer but even the
question asked?Order 18 Rule 10.

(g) What is the procedure to be followed whenever a question put to a witness

is objected to by the opposite side?Order 18 Rule 11.

(h) If one judge has recorded evidence but gets transferred before the
conclusion of the trial, can the new judge proceed from stage where his
predecessor stopped?Order 18 Rule 15.

(i) When can a witness be examined immediately in disruption of the normal

sequence of trial ?Order 18 Rule 16.

(j) When can a witness be recalled and examined once again?Order 18 Rule
17.Is this a power of the court or is it a right of the party? Altaf Hussain
vs Nasreen Zahra AIR 1978 All 515 – power not to be used for filling up
lacuna in the evidence – only in exceptional cases, for removing
ambiguities and clarifying statements the court may use the power.
Steelage Industries Ltd vs SmtChanderBagai AIR 1992 Bom 406.

(k) Can the court inspect any property or thing and use the memorandum of
facts recorded as evidence?Order 18 Rule 18.

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  Ugam Singh vs Kesari Mal AIR 1971 SC 2540.
 KesssowjiIssur vs The Great Indian Peninsula Railway Co 11
CWN 721 (PC).
 Hurparshad vs SheoDayal 3 IA 259.
 Buckingham vs Daily News Ltd 1956 (2) QB 534.

BASIC READING
 Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online
P&H 994 (SJ);
 B.H. RavindraPai vs Smt K. SulochanaBhandarkar 1981 ILR
(KAR) 708 (SJ);
 Altaf Hussain vs Nasreen Zahra AIR 1978 All 515;
 Steelage Industries Ltd vs SmtChanderBagai AIR 1992 Bom 406;
 Ugam Singh vs Kesari Mal AIR 1971 SC 2540;
 KesssowjiIssur vs The Great Indian Peninsula Railway Co 11
CWN 721 (PC);
 Hurparshad vs SheoDayal 3 IA 259;
 Buckingham vs Daily News Ltd 1956 (2) QB 534

ADDITIONAL READING
 Takwani Pages: 399 to 403.

WEEK 3
SESSION 7

AFFIDAVITS

(a) What is an affidavit? A sworn statement in writing made especially

under oath; a declaration of facts made in writing and sworn before a
person having authority to administer oath. It should be drawn up in
the first person.

(b) When can affidavits be used as evidence? Section 1 of the Indian

Evidence Act, 1872 makes the Act inapplicable to affidavits. However,
Section 30 read with Order XIX of the code provide for evidence to be
given by affidavits if (a) the court has ordered any fact to be proved by
affidavit (Order 19 Rule 1) or (b) upon any application filed (Order 19
Rule 2).

SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366: affidavits not

included in the definition of evidence in the Indian Evidence Act, 1872,
and can only be used as evidence if the court passes an order under
Order 19 Rules 1 and 2. Yohannan Samuel vs Mathew John (1991)
1 KLJ 605.

(c) What are the matters to which an affidavit should be confined?

Order 19 Rule 3.

PadmabatiDasivsRasikLalDhar ILR 1909 Vol 37 pg 259: the

provisions of Order 19 Rule 3 must be strictly observed.

State of Bombay vs Purushottam Jog Naik (CB) AIR 1952 SC 317:

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 Order 19 rule 3 would need to be complied even in case of affidavits
filed in writ proceedings.

(d) What is the effect of swearing to a false affidavit? Offence of perjury

under section 191 IPC.

BASIC READING
 Sec. 30 and Order XIX of CPC, 1908;
 Smt Sudha Devi vs M. P. Narayanan (1988) 3 SCC 366;
 Yohannan Samuel vs Mathew John (1991) 1 KLJ 605;
 PadmabatiDasi vs RasikLalDhar ILR 1909 Vol 37 pg 259;
 State of Bombay vs Purushottam Jog Naik (CB) AIR 1952 SC 317

FURTHER READING:
Takwani Pages: 315 to 317.

SESSION 8
COMMISSIONS

(a) Sections 75 to 78 and Order 26.

(b) What are the different commissions that can be issued and which of them
relate to the fact-finding process? Section 75.

(c) Why does it become necessary to issue commissions in the fact-finding

process? Can they be issued on application orsuomotu?

(d) What are the pre-requisites for the issue of commissions to examine
witnesses? Have these been watered down by the 1999/2002
amendments? Now by virtue of the insertion of Rule 4A the requirements
in Rules 1, 4 and 8 appear to have been rendered redundant.

(e) What is the crucial difference between a judge making a spot inspection
and a commissioner making the very same spot inspection that renders
the report of the commissioner admissible? The report of the
Commissioner and the evidence taken by him shall be evidence in the suit
and shall form a part of the record. Crucially, the court or any of the
parties, with the permission of the court, may examine the
commissioner.(Order26 Rule 10(2)).

(f) Who pays the expenses of the commissioner? The Court may order the
party for whose benefit or at whose instance the commission is issued that
the expenses be paid into court. Order 26 Rule 15.

(g) What is the procedure to be followed before the Commissioner? Rules 16

to 18, Order 26.

(h) Cases where Commissioners appointed :

AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC 3782:

matter remanded to the trial court with a direction that the trial court
shall appoint a commissioner to determine the extent of encroachment.

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 Praga Tools Corporation Limited vsMahaboobunnissa Begum 2001(6)
SCC 238: remand by the Supreme Court with a direction to get the lands
surveyed through a surveyor and determine in which village the lands
were situated.

KumariVermavs State of Kerala AIR 2006 SC 3048: High Court directed

Forest Tribunal to appoint a Commissioner to determine the extent of
cardamom plantation. Approved by the Supreme Court.

ShardavsDharmpal AIR 2003 SC3450: In a divorce case, petitioner

sought direction for medical examination of wife on the ground of lunacy –
held that such a direction could be issued to appoint a medical expert.
Failure to comply would justify adverse inference being drawn.

(i) How much weight does the report of the Commissioner carry? Chandan
Mull Indra Kumar vsChimanLalGirdhar Das Parekh AIR 1940 PC 3:
should not easily overrule report of the Commissioner whose integrity and
carefulness are unquestioned.

(j) The rationale for appointment of Commissioners appears to be that it

enables the court to get to the best evidence available.

(k) The English conservative approach: Abbey National Mortgages PLC Vs

Key Surveyors Nationwide Limited 1996 (3) AER 184: the appointment
of a commissioner even on the application of a party deprecated.

BASIC READING
 Sections 75 to 78 and Order 26 of CPC, 1908;
 AmarendraPratap Singh vs TejBahadurPrajapati AIR 2004 SC 3782;
 Praga Tools Corporation Limited vs Mahaboobunnissa Begum 2001(6)
SCC 238;
 KumariVerma vs State of Kerala AIR 2006 SC 3048;
 Sharda vs Dharmpal AIR 2003 SC 3450;
 Chandan Mull Indra Kumar vs ChimanLalGirdhar Das Parekh AIR
1940 PC 3;
 Abbey National Mortgages PLC Vs Key Surveyors Nationwide Limited
1996 (3) AER 184

FURTHER READING
 Takwani Pages: 322 to 327.

SESSION 9

JUDGMENT AND DECREE

(a) Section 33, Order XX.

(b) What is the difference between a judgment, a decree and an order?

Definitions in Section 2(2), 2(9) and 2(14).

(c) What are the requirements of a valid judgment?

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  The judgment shall be pronounced in open court (Order 20 Rule
1);
 Within 30 or 60 days (in exceptional cases) from the date hearing
was concluded (Order 20 Rule 1);
 It shall be dated and signed by the judge in open court at the time
of pronouncement (Order 20 Rule 3);
 It should contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such
decision. (Order 20 Rule 4).
 It shall state its finding on each issue (Order 20 Rule 5).

(d) If the formalities of a judgment are not complied with, is the judgment
vitiated?

 Surendra Singh vs State of UP AIR 1954 SC 194but note Order

20 Rule 2.

 Smt. SwaranLata Ghosh vs HK Banerjee 1969(1) SCC 709-

recording of reasons essential.Judge must record the ultimate
mental process leading from the dispute to its resolution.

(e) Are statements recorded by the court as to what transpired in court

conclusive? State of Maharashtra vs RamdasShrinivasNayak (1982)
2 SCC 463.

(f) Can a judgment be corrected once it is signed? Order 20 Rule 3.

(g) What should be contained in a decree? Order 20 Rule 6.

(h) Who draws up the decree?

(i) Can an appeal be filed against the decree without a copy of the same if
decree is not yet drawn? Order 20 Rule 6A.

(j) If the previous judge has vacated office before signing the decree can
his successor sign it? Order 20 Rule 8.

(k) What are the requirements of a decree for recovery of immovable

property? Order 20 Rule 9.

(l) What are the requirements of a decree for delivery of movable property?
Order 20 Rule 10.

(m)When can the defendant seek payment of the decretal sum by

installments or seek postponement? Order 20 Rule 11.

(n) Can the court decree future mesne profits even if not prayed for? Order
20 Rule 12.Gopalakrishna Pillai vs MenakshiAyal AIR 1967 SC
155.

(o) Why are mesne profits limited to 3 years under Order 20 Rule 12?
ChittooriSubbanna vs KudappaSubbanna AIR 1965 SC 1325.

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 (p) What are the requirements of a decree for specific performance of
contract for the sale or lease of immovable property? Order 20 Rule
12A.

(q) What are the requirements of a decree in certain other types of suits?
Administration suits - Order 20 Rule 13. Pre-emption suits- Order 20
Rule 14. Suits for dissolution of partnership- Order 20 Rule 15. Suits
for account between principal and agent – Order 20 Rule 16. Suit for
partition of property or separate possession or share therein – Order
20 Rule 18. Decree where set-off or counter-claim allowed- Order 20
Rule 19.

(r) General principles with regard to preliminary and final decrees:

 A preliminary decree is not executable unless a final decree is
applied for and passed. SankarBalwantLokhande vs
ChandrakantBalwantLokhande AIR 1995 SC 1211.
 If appeal against preliminary decree succeeds, the final decree
automatically falls to the ground.
 Residuary power to pass preliminary decree – Order 20 Rule 16.

BASIC READING
 Sections 33, 2(2), 2(9), 2(14) and Order XX of CPC, 1908;
 Surendra Singh vs State of UP AIR 1954 SC 194;
 Smt. SwaranLata Ghosh vs HK Banerjee 1969(1) SCC 709;
 State of Maharashtra vs RamdasShrinivasNayak (1982) 2 SCC
463;
 Gopalakrishna Pillai vs MenakshiAyal AIR 1967 SC 155;
 ChittooriSubbanna vs KudappaSubbanna AIR 1965 SC 1325;
 SankarBalwantLokhande vs ChandrakantBalwantLokhande AIR
1995 SC 1211

WEEK 4
SESSION 10

 INTEREST

(a) Section 34; Order 24 Rule 3.

(b) What is interest? How would you define it?

(c) What are the 3 stages when interest can be allowed and what are the
parameters for each type?

 Section 34.

 Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

 Mahesh Chandra Bansal vs Krishna SwaroopSinghal 1997 (10)

SCC 681.

(d) What are the salient features of the Interest Act, 1978?

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 BASIC READING
 Section 34 and Order 24 Rule 3 of CPC, 1908.
 Union of India vs Watkins Mayor and Co AIR 1966 SC 275
 Mahesh Chandra Bansal vs Krishna SwaroopSinghal 1997 (10) SCC
681

 COSTS

 Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka
Civil Rules of Practice 1967.

 What are the differences between award of costs under sections 35, 35A
and 35B?

 The general principle is that costs should follow the event. Jugraj Singh
vs Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram Prasad
Singh (1974) 1 SCC 182.

 Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656: under
section 35 award of costs is discretionary; the primary object is to
recompense a litigant for the expenses incurred by him in the litigation; it
is paid by the loser to the winner; present system of meagre costs
deprecated.

 T.Aravindam vs TV Satyapal (1977) 4 SCC 467: in frivolous and

vexatious cases trial judge should impose punitive costs under section
35A.

 What is the procedure adopted for taxation of costs? Rules 99, 100,
Karnataka Civil Rules of Practice 1967.

BASIC READING
 Sections 35, 35A and 35B, Order XXA and Order 20 Rule 6 of CPC,
1908; Karnataka Civil Rules of Practice 1967;
 Jugraj Singh vs Jaswant Singh 1970(2) SCC 386;
 Kali Prasad Singh vs Ram Prasad Singh (1974) 1 SCC 182;
 Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656;
 T.Aravindam vs TV Satyapal (1977) 4 SCC 467

ADDITIONAL READING
Takwani Pages: 404 to 417.

SESSION 11 AND 12

DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

(a) Order 22.

(b) When does the suit abate upon the death of a Plaintiff or Defendant?
Order 22, Rule 1. What is the meaning of the phrase “right to sue”? Is

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 it the same as “cause of action”? The “right to sue” in Order 22 means
the right to bring a suit asserting a right to the same relief which the
deceased Plaintiff asserted at the time of his death.

(c) What determines whether the right to sue survives or not? The
substantive law inter alia, section 37 of the Indian Contract Act, section
306 of the Indian Succession Act, etc.

(d) Where there are multiple Plaintiffs or Defendants and upon the death
of 1 of them, the right to sue survives to the remaining parties alone,
what is the procedure? Order 22 Rule 2: Court shall make an entry to
that effect and the suit will proceed.

(e) Where a sole Plaintiff dies or 1 of two of more Plaintiffs dies and the
right to sue does not survive to the remaining parties alone, then what
is the procedure? Order 22 Rule 3: On an application made in that
behalf, the court shall cause the legal representatives of the deceased
Plaintiff to be made parties and then proceed with the suit. If within the
time limited by law (ie, 90 days under Article 120 of the Limitation Act),
no application is made, the suit shall abate.

(f) Is any order required to be made where the suit abates? No. It happens
automatically.

(g) Where a sole Defendant dies or 1 of two of more Defendants dies and
the right to sue does not survive against the remaining parties alone,
then what is the procedure? Order 22 Rule 4: On an application made
in that behalf, the court shall cause the legal representatives of the
deceased Defendant to be made parties and then proceed with the suit.
If within the time limited by law (ie, 90 days under Article 120 of the
Limitation Act), no application is made, the suit shall abate.

(h) When can the Court exempt the Plaintiff from substituting the legal
representatives of a deceased Defendant? Order 22, Rule 4.

(i) If the suit has already abated as a consequence of not bringing the
legal representatives on record within the time specified in Article 120
Limitation Act, what is the procedure? Application under Order 22
Rule 9 to set aside the abatement to be filed within a further period of
60 days to set aside the abatement (Article 121). If even the 60-day
period has expired, then an application under section 5 of the
Limitation Act will also have to be filed explaining the delay and
seeking condonation thereof.

(j) Is the fact that the Plaintiff was ignorant of the death of the Defendant
relevant in condoning the delay? Yes. Order 22 Rule 4(5).

(k) What is the procedure where there are no legal representatives? Order
22 Rule 4A.

(l) If there is a dispute as to who the legal representatives are, how is that
dispute to be resolved? Order 22 Rule 5.

(m)Can a suit abate by reason of death after hearing of the case has been

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 concluded? No. Order 22 Rule 6. Can a judgment be pronounced
against a dead person?

(n) Does a fresh suit lie on the same cause of action as a suit that has
abated? No. Order 22 Rule 9. But what does the explanation say?

(o) Duty of pleader to communicate to court death of a party- Order 22

Rule 10A.

(p) If there are multiple Plaintiffs or Defendants and one of them dies, does
the suit abate as a whole or only insofar as the deceased Plaintiff or
Defendant is concerned? State of Punjab vsNathu Ram AIR 1962 SC
89.

(q) If all the legal representatives of a deceased party are not impleaded,
what is the effect? DolaiMalikovsKrushna Chandra Patnaik AIR
1967 SC 49.

(r) SaraswathiAmmalvs Lakshmi AIR 1989 Mad 216: tricky question

involving death of a husband in a matrimonial case…do you think the
judgment of the High Court was correct?

(s) What does Order 22 provide regarding abatement by marriage of a

female party? Order 22 Rule 7.

(t) What does Order 22 provide with regard to abatement by reason of

insolvency? Order 22 Rule 8.

(u) What is the procedure in case of assignment during the pendency of a

suit? Order 22 Rule 10.

BASIC READING
 Order XXII of CPC, 1908;
 State of Punjab vs Nathu Ram AIR 1962 SC 89;
 DolaiMaliko vs Krushna Chandra Patnaik AIR 1967 SC 49;
 SaraswathiAmmal vs Lakshmi AIR 1989 Mad 216

ADDITIONAL READING

Takwani Pages: 375 to 390.

WEEK 5:
SESSION 13

WITHDRAWAL AND ADJUSTMENT OF SUITS

(a) Order 23.

(b) Does the Plaintiff have an unqualified right to withdraw the suit? Order
23 Rule 1. M/s Hulas RaiBaijNathvs Firm KB Bass and Co AIR
1968 SC 111. Also S. RathinavelChettiarvs V. Sivaraman1999(4)
SCC 89.

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 (c) When should the Plaintiff seek leave to withdraw the suit? Order 23
Rule 1: when there is a formal defect or other sufficient grounds and
he wishes to obtain permission to withdraw with liberty to institute a
fresh suit or if the Plaintiff is a minor, etc.

(d) If a suit is withdrawn without permission, can a fresh suit be filed on

the same subject-matter? No. Order 23 Rule 1 bars it.

(e) What are the requirements of a valid compromise under Order 23 Rule
3?

(f) Does the subject-matter of the compromise have to be the same as the
subject-matter of the suit? Order 23 Rule 3.

(g) How can a compromise decree be challenged? Order 23 Rule 3A.

Section 96 read with Order 43 Rule 1A. HorilvsKeshav (2012) 5
SCC 525.

(h) What is the procedure for entering into a compromise in a

representative suit? Order 23 Rule 3B.

(i) Who is liable for the costs when a suit is withdrawn? Order 23 Rule 1.

BASIC READING
 Order XXIII of CPC, 1908;
 M/s Hulas RaiBaijNath vs Firm KB Bass and Co AIR 1968 SC
111;
 S. RathinavelChettiarvs V. Sivaraman 1999(4) SCC 89
 Horil vs Keshav (2012) 5 SCC 525

ADDITIONAL READING
Takwani Pages: 363 to 374.

SESSION 14
INTERLOCUTORY ORDERS

(a) Sections 94 and 95; Orders 38, 39, 40 (possibly 24 and 25 also).

(b) What are the different categories of interlocutory orders that may be
passed by the court under the heading “supplementary proceedings”
(section 94, Part VI of the Code) ? Arrest and attachment before
judgment (Order 38); Temporary Injunctions (Order 39); Appointment
of Receivers (Order 40); Payment into Court (Order 24) and Security for
Costs (Order 25).

TEMPORARY INJUNCTIONS: ORDER 39.

(a) What are the different categories of temporary injunctions that can
be granted under Order 39?
(i) For protection of any property that is in danger of being wasted,

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 damaged or wrongfully alienated, wrongfully sold, being disposed of
with a view to defraud creditors, or that the Plaintiff might be
dispossessed of, etc. Order 39Rule 1.
(ii) For restraining the Defendant from committing a breach of contract
or other injury of any kind. Order 39 Rule 2.
(iii) To order interim sale of movable property which is subject to speedy
and natural decay. Order 39 Rule 6.
(iv) For the detention, preservation or inspection of any property. Order
39 Rule 7.
(v) Where land paying revenue to government is ordered to be sold for
failure to pay land revenue. Order 39 Rule 9.
(vi) Order to deposit money held by a trustee. Order 39 Rule 10.
(vii) If the application in question does not satisfy the requirements of
the aforementioned provisions, under which provision would one
apply? The residuary section 151. ManoharLal Chopra
vsRaiBahadurRao Raja Seth Hiralal AIR 1962 SC 527.

(b) What happens to a temporary injunction if the suit is dismissed for

default but then restored? Vareed Jacob vsSosammaGeevarghese
(2004) 6 SCC 378.

(c) What are the considerations that the court will take into account in
deciding whether or not to grant a temporary injunction?
 Dalpat Kumar vsPrahlad Singh AIR 1993 SC 276 – “the three
pillars”.
 M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR 1995
SC 2372- fair and honest conduct of an applicant necessary.
 Whether the applicant has delayed making the application.
 Acquiescence.
 Whether monetary compensation would be adequate.

(d) What is the procedure for grant of an injunction? Is notice to the

opponent necessary? Order 39 Rule 3. If an ex parte injunction is
to be granted, what procedure would need to be followed? Order 39
Rule 3 and Rule 3A.

(e) What is the difference between an ad interim and an interim

injunction? Order 39 Rules 3 and 3A.

(f) How can the opponent overcome an injunction order? Application to

vacate it under Order 39 Rule 4. If an injunction has been granted
after hearing both sides, will an application to vacate it be
maintainable?

(g) If the injunction granted by the court is violated, what steps should
be taken and what would be the consequences thereof? Order 39
Rule 2A.

(h) Whom does an injunction against a corporation bind? Order 39

Rule 5.

(i) What is the difference between an order of stay and an order of

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 injunction? “Stay” generally applies to judicial or administrative
proceedings whilst injunction generally applies to a person.

(j) What is the difference between an interim injunction and a

permanent injunction? Permanent- forever. Temporary-until
disposal of the suit. Also see sections 38 to 42 of the Specific
Relief Act, 1963.

(k) What is the difference between a preventive injunction and a

mandatory injunction?

(l) Does res judicata apply to interlocutory applications? Generally yes-

though the wording in section 11 might not in terms apply.

(m)What is an order of “status quo”?

BASIC READING
 Sections 94, 95 and 151 and Orders 38, 39, 40 of CPC, 1908;
 Sections 38 to 42 of the Specific Relief Act, 1963;
 ManoharLal Chopra vs RaiBahadur Rao Raja Seth Hiralal
AIR 1962 SC 527;
 Vareed Jacob vs SosammaGeevarghese (2004) 6 SCC 378;
 Dalpat Kumar vs Prahlad Singh AIR 1993 SC 276;
 M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR
1995 SC 2372
SESSION 15

ARREST AND ATTACHMENT BEFORE JUDGMENT: ORDER 38

(a) When can a defendant be called upon to furnish security for his
appearance? Order 38 Rules 1 to 4.What is the exception carved
out in Rule 1? Suits of the nature referred to in section 16 (a) to
(d).

(b) What is the maximum period for which a defendant can be detained
in prison under Order 38 Rules 1 to 4? Order 38 Rule 4.

(c) When can a defendant’s property be attached before judgment?

Order 38 Rules 5 to 13.

(d) What are the parameters for exercise of discretion under Order 38?
Raman Tech and Process Engg Co vsSolanki Traders (2008) 2
SCC 302- the object of supplemental proceedings like arrest and
attachment before judgment is to prevent the ends of justice being
defeated especially the realization of the decree that may ultimately
be passed in favour of the Plaintiff. The power under Order 38 Rule
5 CPC is drastic and extraordinary and to be used sparingly and
strictly. Attempts to use it as leverage to settle the case should be
discouraged.

(e) If arrest or attachment is obtained on insufficient grounds, what is

the remedy? Section 95.

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 BASIC READING
 Order XXXVIII and Section 95 of CPC, 1908;
 Raman Tech and Process Engg Co vs Solanki Traders (2008)
2 SCC 302

RECEIVERS : ORDER 40

(a) Who is a “receiver”? “An impartial person appointed by the court

to collect and receive, pending the proceedings, the rents, issues
and profits of land or personal estate, which it does not seem
reasonable to the court that either party should collect or
receive, or for enabling the same to be distributed among the
persons entitled”. A receiver is an officer and extended arm and
hand of the court, a part of the court machinery.

(b) What is the object of the appointment of a receiver? To protect,

preserve and manage the property during the pendency of the
litigation.

(c) When can a receiver be appointed and what is the procedure

applicable? Order 40 Rules 1 to 5. Benoy Krishna Mukherjee
vsSatish Chandra Giri 1927 ILR PC 720 – appointment of a
receiver of property in possession of a Defendant should be
made only if there is a well-founded fear that the property will be
dissipated or irreparably injured.

(d) Why is appointment of a receiver considered a harsh remedy? It

deprives the person in possession of the property during the
pendency of the suit. It is thus generally not ordered if one party
is in de facto possession but may be ordered if the property is in
medio.

BASIC READING
 Order XL of CPC, 1908;
 Benoy Krishna Mukherjee vs Satish Chandra Giri 1927
ILR PC 720

PAYMENT INTO COURT: ORDER 24

(a) What are the rules pertaining to payment into court? Order
24 Rules 1 to 4.

(b) How arecosts calculated when payment is made into court?

Order 24 Rule 4.

(c) What is the effect on liability to pay interest once payment is

made into court? Order 24 Rule 3.

BASIC READING
 Order XXIV of CPC, 1908

SECURITY FOR COSTS: ORDER 25

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 (a) When can the Plaintiff be required to furnish security for
costs? Order 25 Rules 1 and 2.

BASIC READING
 Order XXV of CPC, 1908

ADDITIONAL READING
Takwani Pages: 318 to 362.

Module 2

In this module we will study execution proceedings, suits in particular instances

and miscellaneous provisions under the Code, thus completing essential trial
court procedures. Study of the provisions thus far should make the student
conversant with the essentials of trial-level procedural rules and advocacy.

WEEK 6

SESSIONS 16 AND 17
EXECUTION

A. WHAT IS “EXECUTION”?

The word has not been defined in the Code, but in its widest sense, it
signifies the enforcement or giving effect to a judgment or order of a court
of justice (Halsbury’s Laws of England). Execution is the enforcement of
decrees and orders by the process of the court, so as to enable the decree-
holder to realize the fruits of the decree. Execution is complete when the
decree holder gets the money or other thing awarded to him by the decree
or order.

B. WHERE ARE THE PROVISIONS CONTAINED FOR EXECUTION OF

DECREES AND ORDERS?

Part II: sections 36 to 74 and Order 21. Also sections 145 and 146.

C. WHAT ARE THE DIFFERENT HEADS UNDER WHICH EXECUTION CAN

BE DISCUSSED?

 What are the general principles applicable to execution?

 Which courts can execute decrees?
 What are the requirements of an application for execution?
 How is payment to be made under a decree?
 What are the rules applicable to stay of execution?
 What are the different modes available for execution?
 When will the court order arrest and detention in the execution of a
decree and what are the procedures thereof?
 When will the court attach property in execution of a decree and
what are the procedures thereof?
 What procedure applies for sale of property in execution?
 What procedure applies for delivery of possession?

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 What procedure applies for distribution of assets when there are
several applications for execution against the same property?
 What are the mechanisms available before the executing court for
adjudication of claims and disputes?
 What questions should be determined by the executing court?

D. WHAT ARE THE GENERAL PRINCIPLES APPLICABLE TO

EXECUTION?

 The executing court cannot go beyond the decree or vary or modify

its terms.
 However, if the terms of the decree are vague, the executing court
can construe the decree and refer even to the pleadings in the suit.
 In case of inherent lack of jurisdiction the decree passed is a nullity
and its invalidity could be raised in execution proceedings – here
the court cannot be said to be going behind the decree as there is
no decree at all. However, the inherent lack of jurisdiction must
appear from the face of the record.
 The executing court can also go into the executability of the decree
and enquire whether the decree has ceased to be executable.
 The executing court has the power to mould the relief granted to the
Plaintiff in accordance with the changed circumstances.
 The principle of res judicata specifically applies to execution
proceedings by virtue of Explanation VII of section 11. But an
earlier decision can operate as res judicata if the execution
application has been heard and finally decided and not otherwise. If
the application is dismissed for default of appearance, non-
prosecution, as being premature or as not pressed, the principle of
res judicata will not apply.

E. Under the Code, the provisions thereof applicable to decrees

are deemed applicable to orders also.Hence, the same procedures
would need to be adopted for execution of orders also.

F. WHICH COURTS CAN EXECUTE DECREES?(sections 37 to 46 and

Order 21 Rules 3,4,9)

 A decree may be executed by the Court which passed it or by the

Court to which it is sent for execution (the transferee court) –
section 38.
 However, by virtue of the deeming provision in section 37, the
“court which passed the decree” is deemed to include several other
courts as well.
 Transfer of decree is provided for under section 39- the court
which passed the decree may transfer the decree for execution to
another court of competent jurisdiction ie, as defined in sub-clause
(4). The circumstances under which transfer can be effected are laid
out in section 39.
 Under section 39, the court which passed the decree may also
send it to a subordinate court for execution.
 However, by virtue of section 39 (4), the court which passed the

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 decree cannot execute the decree against any person or property
outside the local limits of its jurisdiction.
 Cases: Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354.
Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795.
 The transferee court shall have the same powers in executing the
decree as if it had been passed by itself. However, there are some
fetters on the powers of the transferee court. Section 42.
 Procedure to be adopted for transfer of a decree- sections40, 41,
42 and Order 21 Rules 4, 5,6,7,8,9.
 Precepts- section 46. What is a precept and when will it be issued?
 What are the exceptions to the rule that a court cannot execute
against person or property outside its territorial jurisdiction? Order
21 Rule 3.
 Can a decree be executed in more than 1 court? Yes- but this
should be done only in exceptional cases.

G. APPLICATION FOR EXECUTION

 What is the procedure for seeking execution? Is a written

application always necessary? Order 21 Rules 10,11.
 What details should be contained in the application for execution?
Order 21 Rules 11 to 14.
 What is the enabling provision with regard to joint decree holders?
Order 21 Rule 15.
 What is the procedure in case of cross-decrees and cross-claims?
Order 21 Rules 18 to 20.
 What is the procedure to be adopted after filing of the application?
Order 21 Rules 17, 22, 23, 24, 25. When is notice required to be
issued on an application for execution?

H. PAYMENT UNDER A DECREE (Order 21 Rules 1 and 2)

 How can money payable under a decree be paid?

 If a payment has not been certified or recorded, what is the effect?

SESSION 18

I. WHO CAN MAKE AN APPLICATION AND AGAINST WHOM CAN IT

BE MADE ?

 Section 146: where any proceeding may be taken or application

made by or against any person, then the proceeding may be taken
or the application may be made by or against any person claiming
under him.
 However, under section 49 the transferee shall hold the decree
subject to the same equities that judgment-debtor might have
enforced against the original decree-holder.
 Further however, under section 50 if judgment-debtor dies before
decree has been fully satisfied, the decree can be executed against
the legal representatives of the deceased only to the extent of the
property of the deceased which has come to his hands and has not
been duly disposed of. However, if the legal representative has not

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 duly applied the property of the deceased, the decree may be
executed against the judgment-debtor in the same manner as if the
decree was against him personally-section 52. See also section 53.
 Further however, in case of assignment of the decree, no such
decree shall be executed unless notice is given to the judgment
debtor and the transferor and they have been heard on their
objections. Order 21 Rule 16.
 Note Order 21 Rule 22A: death of judgment debtor before sale but
after proclamation of sale does not vitiate the sale.
 The liability of a surety has been specifically provided in section
145.
 In a representative suit, a beneficiary may apply for execution, even
if he has not been made a party.
 One or more of joint decree-holders can apply subject to conditions.
Order 21 Rule 15.

J. STAY OF EXECUTION (Order 21 Rules 26 to 29)

 Which are the courts empowered to stay execution? The

court to which the decree has been sent (section 26) may
stay for a reasonable time; & the court which passed the
decree or the appellate court (section 28).
 Stay where another suit pending between decree holder and
judgment debtor (section 29).
 Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC
731.

K. MODE OF EXECUTION GENERALLY (sections 51, 54, Order 21

Rules 30 to 36)
 Section 51: Powers of the court to enforce execution: subject
to such limitations and conditions as may be prescribed, the
Court may order execution of the decree by one of the modes
prescribed or in such other manner as the nature of the relief
granted may require.
 Section 54: partition and separate possession of undivided
estate shall be made by the Collector.
 What are the different modes prescribed for execution for
particular types of decrees? Order 21 Rules 30 to 36.
 How is a decree for restitution of conjugal rights to be
executed? Order 21 Rules 32, 33.

L. ARREST AND DETENTION (Sections 51, 55, 56, 57, 58, 59 and
Order 21 Rules 11, 21, 30, 31, 32, 37 to 40)

 What are the safeguards and pre-conditions for arrest in

execution?
 Order 21 Rule 21: court may refuse
simultaneous execution at the same time
against the person and property of the
judgment debtor.
 Section 55: detention shall be in civil prison.
 Shall be brought before court as soon as
possible (section 55 and Order 21 Rule 38).

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  No dwelling house shall be entered after sunset
and before sunrise. (section 55).
 Outer door of dwelling house not to be broken
open unless…(section 55).
 Room in occupancy of a woman who does not
appear in public according to custom (section
55).
 State Government may prescribe special
procedure for certain persons. (section 55).
 Section 57: State Government may fix scales
for allowances payable for the subsistence of
judgment-debtors. Order 21 Rule 39: decree
holder bound to pay into court subsistence
allowance.
 Release on the ground of illness permitted-
section 59.

 What are the additional safeguards with regard to arrest in

execution of a money decree?
 Opportunity of showing cause necessary
(section 51 and Order 21 Rule 37).
 The court for reasons to be recorded in writing
should be satisfied that (a) judgment debtor
likely to abscond or has dishonestly transferred
property or committed any other act of bad faith
(b) the decretal amount is a sum which the
judgment debtor was bound in a fiduciary
capacity to account or (c) the judgment debtor
has the means but refuses or neglects to pay.
(Section 51).
 If judgment debtor pays the sum due to the
officer arresting, such officer shall at once
release him (section 55).
 Under section 55(3) – once the judgment
debtor is arrested and brought before the court,
the Court is bound to inform him that he may
apply to be declared an insolvent.
 No woman shall be arrested or detained in
execution of a decree for the payment of money
(section 56).
 Persons detained in execution of a money
decree – maximum periods of detention are
prescribed in section 58.
 A judgment debtor released is not discharged
from his debt, but he shall not be liable to be
re-arrested (section 58).
 Special procedure before committal to civil
prison (Order 21 Rule 40).
 Why is a distinction made in the Code with regard to
execution of regular decrees and money decrees?
 Cases: Shyam Singh vs Collector, District Hamirpur, UP
(1993) Supp 1 SCC 693; PadraunaRajkrishna Sugar Works

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 Ltd vs Land Reforms Commissioner 1969 (1) SCC 485;
Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;
Jolly George Varghese vs The Bank of Cochin (1980) 2
SCC 360.
WEEK 7
SESSION 19 AND 20

M. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to 59)

 Attachment is a process by which a court , at the request of a

decree holder, designates specific property owned by
the judgment debtor, to be transferred to the decree holder,
or sold for the benefit of the decree holder.
 The primary object of attachment is to give notice to the
judgment debtor not to alienate the property to anyone as
also to the general public not to purchase or deal with the
property attached. Attachment is not a condition precedent
for sale.
 Section 64 provides that any private transfer or delivery of
property attached shall be void. However, the section does
not apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and
registered before the attachment.
 Section 60 provides a non-exhaustive list of all properties
liable to attachment that are “saleable”; it also provides a list
of items that cannot be attached and sold. Under section
60(1-A) no person can waive the benefit of these exemptions
from attachment. Section 61 provides that the State
Government may exempt agricultural produce from
attachment.
 Section 62 imposes safeguards to be observed whilst
attaching property.
 Section 63 provides that if the same property is under
attachment in execution of decrees of more than 1 court,
then the Court entitled to deal with the property shall be the
court of the highest grade or the court which first attached
the property.
 Order 21 Rule 41 provides that in a money decree, the
judgement debtor or any other person can be examined as to
the properties available or court can require an affidavit
stating the particulars of the assets of the judgment debtor.
 Order 21 Rule 42 provides for attachment even if the
amount due has not yet been ascertained such as where
enquiry as to rents or mesne profits is pending.
 Order 21 Rules 43 to 54 provide for the manner of making
the attachment with regard to different types of properties.
See Takwani’s Chart page 656.
 It is to be noted that disputes arising in the course of
attachment can be decided by the court and such orders of
the court are deemed to be decrees (ie can be appealed
against)-Order 21 Rule 43A (determination of liability of a
custodian of movable property); Order 21 Rule 46H (orders
in cases involving Garnishees); &Order 21 Rule 50 (liability

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 of a partner of a firm). Also Order 21 Rule 58.
 What is the procedure adopted in the Code as to recovery
from Garnishees? Order 21 Rules 46A to H. The same
procedure applies to negotiable instruments. (Order 21 Rule
46I)
 What is the procedure for attachment of immovable property?
Order 21 Rule 54.
 When is the attachment removed or withdrawn? Order 21
Rule 55.
 When does the attachment determine? Order 21 Rule 57.
 What is the procedure for attachment of coin or currency
notes? Order 21 Rule 56.
 What is the procedure for adjudication of claims and
objections on the ground that the property in question is not
liable to be attached? Order 21 Rule 58. If the court refuses
to entertain the claim, what remedy is available? If the court
entertains and determines the issue, what is the effect?
 When might the court stay the sale? Order 21 Rule 59.

N. SALE
 Section 65 provides that when immovable property is sold
and such sale has become absolute, the property is deemed
to have vested from the time the property is sold and not
when the sale becomes absolute.
 Section 67 empowers the State Government to make rules
for the sales of land in execution of decrees where the value
of the lands are uncertain.
 Under rule 64 the court is empowered to order any property
attached by it and liable to sale to be sold and that the
proceeds shall be paid to the party entitled to it under the
decree.
 The following safeguards are enshrined in the Code:
 Every sale in execution of a decree shall be conducted
by an officer of the court or court-appointed person
and it shall be made by public auction, in the manner
prescribed. Rule 65.
 Proclamation of the intended sale is mandatory, after
notice, and compliance with the other requirements of
rules 66 and 67.
 The time of sale is prescribed by rule 68.
 Rule 69 provides for adjournment or stoppage of sale
if the amount due is paid.
 Rule 71 provides that the defaulting purchaser is
answerable for the loss on re-sale.
 Rules 72 and 72A provide that the decree-holder and
mortgagee cannot bid at the auction without the leave
of the court.
 Officers are prohibited from bidding in these sales-
Rule 73.

Rules 74 to 81 (specifically with regard to sale of

movable property)
 Rules 74 to 76 provide special provisions for sales of

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 movable propertysuch asagricultural produce, growing
crops and negotiable instruments.
 Under Rule 77, in the case of movable property sold
by public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the
sale becomes absolute.
 Under Rule 78,no irregularity in the sale of movable
property shall vitiate the sale, but a fresh suit for
compensation and recovery of the property is not
barred.
 Rules 82 to 96 make specific provision for the sale of
immovable property.

Rules 82 to 96 (specifically with regard to sale of

immovable property)
 Rule 82: Court of Small Causes cannot order
sale of immovable property.
 Rule 83 provides that sale may be postponed if
judgment debtor satisfies the court that
decretal amount can be raised by private sale or
otherwise; in such a case the court will grant a
certificate to the judgment debtor authorizing
him to make the proposed sale notwithstanding
section 64 (ie any attachment of the property).
 Purchaser of immovable property is bound to
deposit 25% immediately, failing which the
property will be re-sold forthwith – Section 84.
 Within 15 days from the date of sale the
purchase money shall be paid in full: Rule 85.
 In case of failure to pay the purchase money,
the property shall be re-sold and the defaulting
purchaser will forfeit his deposit – Rule 86.
 Upon re-sale, fresh proclamation is to be
issued- Rule 87.
 Bid of a co-sharer shall have preference – Rule
88.
 After the sale, there are 3 provisions under
which the sale still be set aside: Order 21
Rules 89 (application to set aside on deposit),
90 (application to set aside sale on the ground
of irregularity or fraud) and 91(application by
purchaser to set aside sale on the ground of
judgment debtor having no saleable interest).
 Under Order 21 Rule 92 where no application
is made under the three rules or where such an
application is made and disallowed, the Court
shall make an order confirming the sale and
only thereupon the sale shall become absolute.
 Where sale is set aside, the purchase money
will be returned to the purchaser – Rule 93.
 Once the sale has become absolute, the Court
shall grant a certificate specifying the property
sold and the name of the person declared to be
the purchaser and the date on which the sale

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 became absolute. Order 21 Rule 94. However,
this is only a ministerial act.

Cases: ManilalMohanlal Shah vs Sardar Syed

Ahmed Sayed Mahmud AIR 1954 SC 349; A.
Venkatachalam vs E.M. Zackria 1987 (Supp)
SCC 124; AmbatiNarasayya vs M. Subba Rao
1989 Supp(2) SCC 693; Ganpat Singh vs
Kailash Shankar (1987) 3 SCC 146.

O. DELIVERY OF POSSESSION
 Movable property – Order 21 Rules 79 to 81.
 Immovable property – Order 21 Rules 95 to 104.
 Resistance to possession of immovable property- Order 21
Rules 97, 98 (civil prison).
 Dispossession of person other than judgment debtor – Order
21 Rules 99, 100, 101, 102, 103, 104. Deemed decree.

P. PROCEEDS OF EXECUTION SALE TO BE RATEABLY

DISTRIBUTED AMONGST DECREE HOLDERS - Section 73.

Q. DEFAULT IN EXECUTION PROCEEDINGS – Order 21 Rules 105

and 106.

R. CAN A SUIT LIE TO CORRECT ANYTHING DONE IN EXECUTION

PROCEEDINGS?
 Section 47 : all questions arising between the parties to the suit
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.

BASIC READING
 Sections 36 to 74 and Order XXI of CPC, 1908;
 Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354;
 Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795;
 Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC 731;
 Shyam Singh vs Collector, District Hamirpur, UP (1993) Supp 1
SCC 693;
 PadraunaRajkrishna Sugar Works Ltd vs Land Reforms
Commissioner 1969 (1) SCC 485;
 Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;
 Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC 360;
 ManilalMohanlal Shah vs Sardar Syed Ahmed Sayed Mahmud
AIR 1954 SC 349;
 A. Venkatachalam vs E.M. Zackria 1987 (Supp) SCC 124;
 AmbatiNarasayya vs M. Subba Rao 1989 Supp(2) SCC 693;
 Ganpat Singh vs Kailash Shankar (1987) 3 SCC 146

ADDITIONAL READING
Takwani Part IV
SESSION 21
SUITS IN PARTICULAR CASES

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A. SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN
THEIR OFFICIAL CAPACITY : sections 79 to 82; Order XXVII

 The authority to be named shall be the Union of India or the State

Government concerned-section 79.

 Mandatory Notice before suit –Section 80.

 It is mandatory to issue 2 months’ prior notice in writing before
institution of every suit against the Government or a public officer
in respect of any act purporting to be done by such public officer in
his official capacity. “Public Officer” is defined in section 2(17) of
the Code.
 The 2 months shall be calculated from the date of delivery or the
date when it was left at the office of the concerned official.
 The notice should contain the cause of action, the name,
description and place of residence of the Plaintiff, and the relief
which he claims.
 Further, the Plaint shall contain a statement that such a notice has
been delivered or left at the office of the Government official
concerned.
 As to who the concerned official would be – see section 80.
 However, under section 80(2), if urgent or immediate relief is
sought, then suit can be instituted without the 2 months’ notice-
provided the leave of the court is obtained. But the court shall not
grant any relief whether interim or otherwise in such a case, except
after giving notice to the Government or public officer concerned.
 Failure to comply with section 80 will lead to rejection of the Plaint.
 If the Government or public officer concerned fails to object to the
suit instituted without complying with section 80, it would amount
to waiver of the requirement.

 The Government pleader in any court may receive processes against the
Government issued by any court- (Order 27 Rule 4). He need not file
Vakalath.
 Special provisions relating to exemption from arrest and personal
appearance of a public officer. Section 81.
 Special provisions relating to execution of a decree against Government or
public officer. Section 82.

B. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE

INTERPRETATION OF THE CONSTITUTION OR AS TO THE VALIDITY
OF ANY STATUTORY INSTRUMENT : ORDER XXVII-A

 Any suit in which it appears to the Court that a question referred to in

Article 132 read with Article 147 is involved, the Court cannot proceed
unless notice is given to Attorney- General (if the question concerns the
Central Government) or the Advocate – General (if the question concerns
the State Government). (Rule 1).
 If the suit involves a question as to the validity of any statutory
instrument, then the court cannot proceed without notice to the
Government pleader or the authority which issued the instrument. (Rule

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 1A)
 Court may also implead the State or Central Government as a party. (Rule
2).

C. SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN :

ORDER 28.
 If they cannot obtain leave they can authorize any person to sue or
defend for them (Rule 1).

D. SUITS BY OR AGAINST CORPORATIONS : ORDER 29

 Pleadings may be signed and verified on behalf of the corporation by
the secretary, any director or other principal officer of the
corporation who is able to depose to the facts of the case. (Rule 1).
 Service on a corporation can be effected by serving the secretary, or
any director, or other principal officer of the corporation or by
leaving the summons or sending it by post addressed to the
corporation at the registered office; if there is no registered office,
then at the place where it carries on business (Rule 2).

E. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN THEIR OWN – ORDER 30
 Only the firm needs to be described in the cause title – and that
would amount to all the partners being parties to the suit, as per
the law of partnership. Any one of the partners may verify and sign
the pleadings. (Rule 1).
 The firm is bound to declare in court the names of all its partners.
(Rules 1 and 2).
 After the declaration, even though the suit may continue in the
name of the firm, the decree will contain the names of all the
partners (Rule 2).

F. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND

ADMINISTRATORS – Order 31
 If property is vested in a trustee, executor or administrator, where
the contention is between the person beneficially interested in such
property and a third person, the trustee, executor or administrator
will represent the persons beneficially interested and they need not
be made parties.

WEEK 8:
SESSION 22

G. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND –

Order 32

The next friend of the Plaintiff

 What is the procedure for institution of a suit on behalf of a minor?
Order 32 Rule 1- the suit shall be instituted in his name by the
next friend of the minor. “Minor” defined in the explanation to Order

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 32 Rule 1.
 What is the effect of instituting a suit without the next friend? Order
32 Rule 2- the Defendant may apply to have the Plaint taken off the
file with costs payable by the pleader concerned.
 The court may order the next friend to give security for the costs of
the Defendant. Rule 2A.
 The eligibility criteria for next friend: any person of sound mind,
attained majority, with no adverse interest and not an opponent
party in the suit; if there is already a guardian declared by
competent authority, then only such a person shall act as next
friend unless the court otherwise directs. Rule 4.
 Safeguards for the minor Plaintiff:
 If the minor has been prejudiced in the suit by virtue of the
next friend having an adverse interest in the subject-matter
of the suit, then decree may bet aside, but not otherwise.
Rule 3A. (If decree not set aside minor Plaintiff can sue next
friend for misconduct or gross negligence.)
 Every application to court shall be made by the next friend.
Rule 5. If an order is passed in the suit without the minor
being represented, the order may be discharged, with costs
payable by the pleader.
 The next friend shall not receive money or other movable
property on behalf of the minor in a compromise or under a
decree or order in favour of the minor without the leave of the
court. Rule 6. (Court may require security to protect the
property).
 No next friend can enter into any compromise without the
express leave of the court recorded in the proceedings; an
application for leave shall be accompanied by an affidavit of
the next friend and by a certificate of the pleader to the effect
that the compromise is for the benefit of the minor; the court
may still examine whether the compromise is for the minor’s
benefit; any compromise entered into without the leave of the
court shall be voidable. Rule 7.
 Next may not retire without first procuring a fit person to be
put in his place and also furnishing security for the costs
already incurred. Rule 8. The application for appointment of
a new next friend shall be supported by an affidavit.
 Court may order next friend to be removed if there is adverse
interest, if he fails to do his duty, ceases to reside in India or
for any other sufficient cause and appoint a new person.
Rule 9. On the retirement, removal or death of the next
friend further proceedings shall remain stayed until a new
next friend is appointed.
 Course to be followed upon the minor Plaintiff attaining majority: He
shall elect whether he will proceed with the suit. If he elects to
proceed, he shall apply for an order discharging the next friend and
to proceed in his own name. If he elects to abandon the suit, he
shall apply for an order to dismiss the suit. Rule 12. If he is a co-
plaintiff, he must apply to repudiate the suit and have his name
struck off as a co-plaintiff. The sole-Plaintiff minor upon attaining
majority may also apply that the suit be dismissed on the ground
that it was unreasonable or improper – court may allow the

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application and court may order next friend to pay costs. Rule 14.

The guardian of the Defendant

 The court shall appoint a guardian for the suit for a minor
defendant. Rule 3.
 Appointment of guardian for the minor for the suit shall be
after notice to any guardian appointed by a competent
authority or the father or mother or natural guardian. Rule
3.
 The guardian has to swear to an affidavit to the effect that he
has no interest in the matter in controversy adverse to that of
the minor and that he is a fit person to be so appointed. Rule
3.
 The eligibility criteria for guardian : any person of sound
mind, attained majority, with no adverse interest and not an
opponent party in the suit; if there is already a guardian
declared by competent authority, then only such a person
shall act as guardian unless the court otherwise directs;
consent in writing is necessary of the guardian. Rule 4.
 Safeguards for the minor Defendant:
 The guardian appointed shall continue as such in all
proceedings arising out of the suit including proceedings in
any Appellate or Revisional court and in execution
proceedings. Rule 3.
 If the minor has been prejudiced in the suit by virtue of the
guardian having an adverse interest in the subject-matter of
the suit, then decree may bet aside, but not otherwise. Rule
3A. (If decree not set aside minor Defendant can sue next
friend for misconduct or gross negligence.)
 Every application to court shall be made by the guardian.
Rule 5. If an order is passed in the suit without the minor
being represented, the order may be discharged, with costs
payable by the pleader.
 If there be no person fit and willing to act as guardian for the
minor Defendant, court may appoint one of its officers to act
as guardian. Rule 4.
 The guardian shall not receive money or other movable
property on behalf of the minor in a compromise or under a
decree or order in favour of the minor without the leave of the
court. Rule 6. (Court may require security to protect the
property).
 No guardian can enter into any compromise without the
express leave of the court recorded in the proceedings; an
application for leave shall be accompanied by an affidavit of
the guardian and by a certificate of the pleader to the effect
that the compromise is for the benefit of the minor; the court
may still examine whether the compromise is for the minor’s
benefit; any compromise entered into without the leave of the
court shall be voidable. Rule 7.
 Court may permit the guardian to retire or may even remove
him if he fails to do his duty and shall appoint a new
guardian in his place. Rule 11.

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 Persons of unsound mind
 Rules 1 to 14 (except Rule 2A) shall apply as far as may be,
to persons adjudged, before or during the pendency of the
suit, to be of unsound mind and shall also apply to persons
though not so adjudged to be found by the court to be
incapable by reason of any mental infirmity of protecting
their own interest. Rule 15.

H. SUITS RELATING TO MATTERS CONCERNING THE FAMILY – ORDER

32A
 To which proceedings the order applies- Order 32A Rule 1-
to suits or proceedings relating to matters concerning the
family, including suits for matrimonial reliefs, declaration of
legitimacy, guardianship suits, adoption suits, wills and
intestacy and succession, etc.
 Special rules: proceedings may be in camera(Rule 2); court
has a duty to make efforts for settlement (Rule 3); court may
take the assistance of a welfare expert (Rule 4).

SESSION 23

I.SUITS BY INDIGENT PERSONS (Order 33)

 Who is an “indigent”? Order 33 Rule 1.
 Can a suit be filed by an indigent? Yes. Rule 1 is an enabling
provision.
 What is the special procedure to be adopted for the filing of suits an
indigent?
 Application seeking permission to sue as an indigent
person to be made containing the particulars required in
regard to plaints in suits; a schedule of property
belonging to the indigent shall be annexed thereto with an
estimate of the value; it shall be signed and verified like
pleadings. Rule 2.
 The inquiry whether the applicant is indigent shall be
made in the first instance by the chief ministerial officer
of the court unless the court otherwise directs. Rule 1A.
 The application shall be presented by the applicant in
person to the Court unless exempted. Rule 3.
 The court will then examine the applicant on the
application. Rule 4.
 Court may reject the application at the threshold if the
application is not framed and presented in the manner
prescribed; where the court finds he is not an indigent;
where he has disposed of property fraudulently within 2
months from the date of the application; where the
allegations do not show a cause of action; if any other
person has obtained an interest in the subject-matter by
virtue of an agreement entered into by the applicant; if
the suit is barred by any law or where any other person
has entered into an agreement with him to finance the

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 litigation. Rule 5. However, if the court does not reject the
application at the threshold on any of these grounds, it
shall fix a day for receiving the evidence of the Plaintiff
and the opposite party and Government pleader too, after
notice to them. Rule 6.
 After evidence, including the examination of witnesses,
and the hearing of arguments, the court shall either allow
or refuse to allow the application. Rule 7.
 Once the application is granted, it shall be deemed the
Plaint in the suit and the suit shall proceed in the
ordinary manner except that the Plaintiff shall not be
liable to pay any court fees or service fees. Rule 8.
 The Court may also assign a pleader to the indigent
person if he does not have one. Rule 9A.
 Can the court withdraw permission to sue as an indigent? Yes. If he
is guilty of improper or vexatious conduct in the course of the suit,
if his means are such that he should not be granted permission to
sue an indigent; or if he has entered into an agreement with regard
to the subject-matter giving any other person an interest therein.
Rule 9.
 What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any
party ordered by the court to pay the same (Rule 10).If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit
has abated by death of Plaintiff, then court shall order that the
court fees payable shall be recoverable by the state government
from the estate of the deceased. (Rule 11A).
 What are the rights of the State Government regarding Court Fees?
State Government has the right to apply for an order under Rules
10, 11 or 11A for payment of court fees (Rule 12). All matters
between the State Government and the parties shall be deemed to
fall under section 47 (Rule 13). Once an order is made for
recovery, the Collector shall recover as an arrear of land revenue.
(Rule 14).
 If an application seeking leave to sue as an indigent is rejected,
fresh application is barred; but applicant can sue in the ordinary
manner subject to payment of the costs of the application failing
which Plaint shall be rejected. Rule 15.
 Court has power to grant time for payment of court fees. Rule 15A.
Upon such paymentsuit deemed to be instituted on the date on
which application filed.
 Defence by an indigent by way of set-off or counter-claim – same
procedure. Rule 17.
 Power of Government to provide free legal services to indigent
persons. Rule 18.

J. SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

(Order 34)
 What are the different types of reliefs that parties to a mortgage
transaction might seek from the civil court?
 What procedures would apply to each type of suit?

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K. INTERPLEADER SUITS (Order 35)
 What is an interpleader suit?
 What are the matters to be stated in the Plaint in an
Interpleader suit? (Rule 1)
 What procedure can be adopted in Interpleader suits at the first
hearing to discharge the Plaintiff? Rule 4.

L. Friendly suits (Section 90, Order 36)

 What is the procedure for stating a case for the court’s opinion?
Parties should enter into an agreement in writing with the
proposed relief (Rule 1). The parties shall also mention the
estimated value of the property in the agreement.
 The agreement shall be filed and registered as a suit (Rule 3)
and shall be heard like a regular suit (Rule 5). Thereupon
judgment will be pronounced and a decree will follow.
 No appeal can be filed against the decree as per Rule 6.

M. Suits relating to public nuisance (Section 91)

 What are the essential ingredients of a suit under section 91 of
the Code?

N. Suits relating to public charities (Section 92)

 What are the essential elements of a suit under section 92 of the
Code?

O. Summary suits (Order 37)

 To which classes of suits does the summary procedure under
Order 37 apply? Rule 1(2).
 What are the procedural requirements for filing a summary suit?
Rule 2: Plaint to contain specific averment that suit is filed
under Order 37, that no relief has been claimed outside the
ambit of Order 37 and an appropriate inscription.
 What are the distinguishing features of summary suits?
 The defendant has no right to defend the suit but must
appear and seek leave to defend the suit. Only if such
leave is granted the suit will be heard in the ordinary
manner.
 If there is default on the part of the Defendant in entering
appearance the Plaintiff shall be entitled to a decree
forthwith (Rule 2(3)).
 After appearance of the Defendant, Plaintiff shall serve a
summons for judgment in Form No. 4A in Appendix B
stating that there is no defence to the suit. The Defendant
may, within 10 days from the service of such summons,
apply for leave to defend the suit by swearing to an
affidavit. Only if the court is satisfied that he has a
substantial defence and that it is not frivolous or vexatious

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 it may grant leave. (Rule 3(5)).
 Thereupon the court may direct the Defendant to give
security for the suit. Rule 3(6).
 The court however has the discretion to excuse delay in
entering appearance or in applying for leave. (Rule 3(7)).
 If a decree has already been passed then under special
circumstances, the court is empowered to set aside its
own decree and stay execution and grant leave to the
Defendant to defend. (Rule 4).

BASIC READING
 Sections 79 to 82, 90, 91, 92 and Orders XXVII to XXXVII of CPC,
1908

ADDITIONAL READING

Takwani Part 2, Chapter 16

SESSION 24
MISCELLANEOUS PROVISIONS IN THE CODE

I. EXEMPTIONS FROM APPEARANCE AND ARREST UNDER THE

CODE- Sections 132 to 135A
 Can a woman who, according to the customs and manners of
the country ought not to be compelled to appear in public be
compelled to attend court? Section 132. Can such a person
be arrested in execution of civil process?
 Who are the other persons exempt from personal appearance
in court? Section 133. How can such persons be examined?
 Which persons are exempt from arrest under civil process and
when exactly are they exempt? Sections 135 and 135A.

J. PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY

TO BE ATTACHED IS OUTSIDE THE JURISDICTION-section 136.
 Does section 136 apply to arrest and attachment during
execution proceedings?

K. LANGUAGE OF SUBORDINATE COURTS – SECTIONS 137 AND

138.

L. OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED –

SECTION 139.

M. ASSESSORS IN CAUSES OF SALVAGE, ETC. – SECTION 140.

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N. MISCELLANOUS PROCEEDINGS- SECTION 141

 Does the procedure contemplated in the Code in relation to

suits apply in writ proceedings?

O. ORDERS AND NOTICES TO BE IN WRITING- SECTION 142

P. POSTAGE-SECTION 143

Q. RESTITUTION – SECTION 144.

 What is “restitution”? Even though not defined in the Code, it

means restoring a party the benefit which the other party has
received under a decree subsequently held to be wrong.
 Based on the principle actus curiae neminemgravabit– the act
of the court shall harm no one. An equitable principle. It is the
bounden duty of the court to see that if a person is harmed by
a mistake of the court he should be restored to the position he
would have occupied but for that mistake.
 Note the definition of “decree” in section 2(2).
 What are the pre-conditions for an order of restitution? Before
which courts can such applications be made? What is the aim
of restitution? What is the scope of orders that can be passed
in restitution?
 Does a suit lie to obtain restitution?

R. CONSENT OR AGREEMENT BY PERSONS UNDER DISABILITY –

SECTION 147.

S. ENLARGEMENT OF TIME – SECTION 148.

 Under what circumstances can the court enlarge the time

given for a particular act to be done?

L.CAVEAT – section 148A

 What is a “caveat”? A caveat is an entry made in the books of
the offices of a registry or court to prevent a certain step being
taken without previous notice to the person entering the
caveat.
 When can it be lodged? What is the procedure for lodging a
caveat?
 What does a caveat entitle the caveator to?
 What procedure should be adopted if an application is made

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 in a matter where caveat has been lodged?
 What is the effect of hearing and allowing an application
without the caveator being notified?

T. POWER TO MAKEUP DEFICIENCY OF COURT FEES- SECTION

149.

U. TRANSFER OF BUSINESS – SECTION 150.

V. SAVING OF INHERENT POWERS OF THE COURT – SECTION

151.

 What are “inherent” powers? Why is there a need to make

reference to them?
 Are inherent powers conferred on the civil court by section
151?
 Which provisions of the Code relate to inherent powers?
Sections 148, 149, 151, 152, 153, 153A.
 Examples of situations where section 151 has been invoked:
temporary injunctions not covered by Order 39, clubbing of
suits, directions for in camera proceedings, etc.
 Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218.

W. Amendments of judgments, decrees or orders – section 152.

 What types of mistakes can be corrected under section 152?

X. General power to amend- section 153

 What types of amendments may be made under section 153?

Y. Power to amend decree or order where appeal summarily

dismissed- section 153A
 What was the need for section 153A and when does it
specifically apply?

Z. Place of trial deemed to be open court- section 153B

BASIC READING
 Sections 132 to 144, 147 to 153B of CPC, 1908;
 Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218

ADDITIONAL READING
Takwani Part 5, Chapters 2,3,4.

Module 3

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Remedies under the Code: Appeals, Reference, Review and Revision. In this
module we will cover all the remedies available under the CPC once a decree has
been passed. This will involve advocacy at appellate, High Court and Supreme
Court stages.

WEEK 9
SESSION 25

APPEALS UNDER THE CODE

FIRST APPEALS FROM DECREES

1. Basic principles

 Which provisions of the Code relate to First Appeals from decrees?

Sections 96 to 99A, 107 to 108 and Order 41.
 Does an appeal lie as a matter of right from every decree passed by a
civil court? Yes – under section 96, subject to the pecuniary limit
under section 96 (4). This is unlike appeals from orders, wherein
appeals will lie only if expressly mentioned in the Code.
 What is an “appeal”? There is no definition of “appeal” under the
Code but any application by a party to an appellate court asking it
to set aside or revise the decision of a subordinate court is an
appeal. It could also be defined as the judicial examination of a
decision of an inferior court by a higher court.
 Why is it said that an appeal is a continuation of the suit? The
appellate court generally has the powers of the subordinate court
and re-hears the matter.
 Does an appeal lie against a judgment of the trial court? Under
section 96, appeals are provided only against every decree of the
court exercising original jurisdiction. But this is a grey area,
especially in view of Order 41 Rule 22 which enables a cross-
objector to prefer objections even against any findings of a trial
court.
 If an original decree is passed ex parte, does an appeal lie? Yes,
section 96(2).
 If a decree is passed with the consent of the parties, can an appeal
lie? Only if the very factum of compromise or consent is questioned,
an appeal will lie. BanwariLal vs Chando Devi (1993) 1 SCC 581.
 Can grounds against a preliminary decree be raised in an appeal
against the final decree? No. Section 97.
 What is the procedure to be followed when an appeal is heard by a
Bench of 2 or more judges?Section 98.
 Who can appeal against a decree? The parties, and with the leave of
the court (through an application), any person aggrieved by the
decree.
 Can a decree be reversed on technical pleas such as misjoinder of
parties or causes of action and irregularities in procedure? Only if it is

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 established before the appellate court that it has affected the merits
of the case or the jurisdiction of the court. Section 99.
 What is the doctrine of merger? Once the appellate court has passed
a decree, the decree of the trial court merges with the decree of the
appellate court leaving only 1 executable decree.
 What is the manner of preferring an appeal?Order 41 Rule 1 – every
appeal shall be preferred in the form of a Memorandum signed by
the appellant or his pleader and presented to the Court or such
officer as it appoints.
 What is the difference in nomenclature insofar as an “appeal” and a
“memorandum of appeal” are concerned? An appeal is the judicial
examination of the decision of the lower court whereas the
Memorandum of Appeal is the document containing the grounds
upon which the judicial examination is invited.
 What is the date of filing of an appeal? The date of receipt of the
Memorandum of Appeal – this date will be taken into account for
limitation purposes.
 What is the mandatory requirement relating to money decrees?
Appellant must deposit the disputed amount or furnish security
within the time specified by the Appellate Court.

2. Memorandum of appeal

 What should the Memorandum of Appeal contain? Under Order 41

Rule 1 (2), the grounds of objection to the decree appealed from
shall be set forth concisely and under distinct heads, without any
argument or narrative.
 What are the rules relating to urging grounds not taken in the
Memorandum of Appeal? Appellant shall not, except by leave of the
court, be heard on any objection not set forth in the memorandum;
but this does not hamper the power of the appellate court to decide
the appeal on any ground/objection not taken in the memorandum
provided that the party affected is given an opportunity of contesting
the case on that ground. Order 41 Rule 2.
 Memorandum of appeal may be rejected or returned for amendment
if not drawn up in the manner prescribed. Rule 3.

3. Delay at appellate stage

 What procedure should be adopted if the appeal is barred by time?

An application for condonation of delay supported by affidavit
showing sufficient cause should be filed with the appeal. The court
may reject the application and dismiss the appeal or issue notice on
the application to the Respondent. Delay shall be condoned first
before the appeal is taken up for admission. Nor can stay be granted
of the decree until the delay is condoned and the appeal admitted.
Rule 3A.

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 4. Power of appellate court to grant relief to all

 One of the parties may obtain reversal or variation of the decree for
all the parties where the ground of appeal is common to all the
parties. But this is the discretion of the appellate court. Order 41
Rule 4.

5. Stay of execution

 What are the rules relating to grant of stay of execution of a decree?

Mere filing of an appeal does not operate as stay. But appellate
court may stay execution for sufficient cause. The stay order will be
effective from the date of communication of such order to the court
of first instance. (see Explanation to Rule 5) The court passing the
decree may also stay execution. The parameters for exercise of
discretion for grant of stay are: substantial loss to appellant being
caused; application made without unreasonable delay and that
security has been furnished by the appellant for due performance of
the decree. Rule 5.Note that Rule 6(2) states that where an order
has been made for the sale of immovable property in the execution
of a decree and an appeal is pending from such decree, the sale
shall, on the application of the judgment debtor, be stayed on terms
regarding security.

6. Stages of hearing an appeal

 What are the different stages before an appellate court for the hearing
of the appeal?There is an admission stage and a final hearing stage.
At the admission stage, the appellate court may dismiss the appeal
at the threshold after hearing the appellant without issuing notice to
the other side if no prima facie case is made out. However, even if
the appeal is dismissed at this stage, the appellate court shall
deliver a judgment recording in brief its reasons for so doing and a
decree shall then be drawn up. (Rule 11).Under Rule 11A the
admission stage should be concluded within 60 days from filing.
However, if the appellate court decides to hear the appeal and
admits it, then it shall fix a day for the hearing of the appeal (Rule
12), ensure service of notice to the Respondent (Rule 14), and then
hear the matter after Respondent is served (Rule 17).

7. Other Rules at Appellate Stage

 What is the Register of Appeal? Rule 9.

 How is the Respondent served at the appellate stage? In the same
manner as service on a Defendant of a summons. The appellate
court may send the notice to be served to the lower court or itself
cause the notice to be served. Rule 14.
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 Can the appellate court require the appellant to furnish security for
costs?Yes, Rule 10.
 Who has the right to begin arguments at the appellate stage? Rule16.
 Default at appellate stage.Appeal may be dismissed for non-
appearance in which case the appellant must apply under Rule 19
for re-admission of the appeal dismissed under Rules 11 or 17and
show sufficient cause. However, once the appeal is admitted, Rule
17 bars the dismissal of the appeal on merits. If an ex parte decree
is passed against the Respondent, he must apply under Rule 21for
re-hearing.
 Appellate court may direct impleadment of a party not impleaded in
the appeal.Rule 20.

8. Cross-appeals and cross-objections

 What is the privilege granted with regard to a respondent at appellate

stage? Respondent may, even though he has not preferred an
appeal, support the decree and argue that some finding should have
been in his favour. He may also file cross-objections within 1 month
from the date of service of notice of day fixed for hearing the appeal,
even raising objections regarding findings against him in the
judgment. Rule 22. This is anomalous when contrasted with the
right of an appellant under section 96. Even if the original appeal is
withdrawn or dismissed for default, the objections will be heard.

9. Remand by the appellate court

 Under what circumstances can the appellate court remand a matter?

Where the appellate court reverses decree on a preliminary point the
appellate court may by order, remand the case (Rule 23), or, if the
appellate court considers that a re-trial is necessary, it may remand
the case under Rule 23A.
 What are the other procedures that may be adopted by the appellate
court? Where evidence on record is sufficient, the appellate court,
after re-settling issues may finally determine the suit. Rule 24. If
the lower court has omitted to frame an issue or try an issue, or
determine any question of fact, the appellate court may frame issues
and refer the same for trial to the lower court. The lower court shall
try such issues and return the evidence to the appellate court
together with its findings thereon and the reasons thereof. Rule 25.
See also Rules 26 and 26A.

10. Production of additional evidence in appellate court

 Is any party entitled, as a matter of right, to produce additional

evidence at the appellate stage? No. Only if the pre-conditions
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 mentioned in Order 41 Rule 27 are satisfied, additional evidence be
permitted.
 Procedure for taking additional evidence. Rules 27(2), 28 and 29.

11. Judgment and decree in appeal

 What are the requirements to be followed by a judgment in appeal? It

should be pronounced in open court and a copy shall be made
available immediately after the judgment is pronounced. Rule 30.
The judgment shall be in writing and shall state the points for
determination, the decision thereon, the reasons for the decision
and the relief to which the appellant is entitled and shall be signed
and dated by the judge. Rule 31. These requirements are
mandatory and failure to comply will result in reversal at SLP stage
– Kanailal vs Ram Chandra Singh (2018) 13 SCC 715.
 What may the judgment direct? The judgment may confirm, vary or
reverse the decree or substitute a consent/compromise decree in
place of the decree of the lower court. Rule 32.
 Powers of appellate court to pass any decree or make any order even
if appeal against part of decree or by some of the parties. Rule 33.
 Dissent to be in writing with reasons.Rule 34.
 What are the requirements of a decree in appeal?Rule 35.

12. General provisions relating to powers of appellate courts

 The appellate court shall have the same powers and duties as courts
of original jurisdiction (sections 107, 108).

BASIC READING
 Sections 96 to 99A, 107 to 108 and Order XLI of CPC, 1908;
 BanwariLal vs Chando Devi (1993) 1 SCC 581;
 Kanailal vs Ram Chandra Singh (2018) 13 SCC 715

SESSION 26
SECOND APPEALS

Basic principles

 Which provisions of the Code relate to Second Appeals from decrees?

Sections 100 to 103, 107 to 108 and Order 42.
 Does an appeal lie as a matter of right from every decree passed in
appeal? No– under sections100 and 101, an appeal shall lie to the
High Court from every decree passed in appeal by any court
subordinate to a High Court if the High Court is satisfied that the
case involves a substantial question of law, subject to the pecuniary
limit in section 102. The memorandum of appeal shall precisely
state this question; the High Court shall admit the appeal only by

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 framing such a question and further, the appeal shall be heard only
on the question so formulated.
 Can there be cases where there is no second appeal?Under section
100A, where an appeal from an original or appellate decree is heard
by and decided by a single judge of a High Court, no further appeal
shall lie.
 What is a “substantial question of law”?Chunilal V. Mehta and
Sons Ltd vs Century Spinning and Manufacturing Co Ltd AIR
1962 SC 1314- the considerations would include- whether it
directly and substantially affects the rights of the parties; whether it
is of general importance; whether it is an open legal question
unsettled by judicial dicta; no universal rule- depends on the facts
and circumstances of each case. The Law Commission 54th Report
however, suggested that it should not be limited to questions of
general importance.
 Does the second appellate court nonetheless have some power to
enter upon factual issues?Section 103- any issue not determined by
the lower courts if evidence on record is sufficient may be decided
and any issue which has wrongly been decided as a consequence of
a decision on a question of law referred to in section 100 may be
determined.

BASIC READING
 Sections 100 to 103, 107 to 108 and Order XLII of CPC, 1908;
 Chunilal V. Mehta and Sons Ltd vs Century Spinning and
Manufacturing Co Ltd AIR 1962 SC 1314

APPEALS FROM ORDERS

Principles

 Which provisions of the Code relate to appeals from orders?Sections

104 to 106, 107 to 108 and Order 43.
 Does an appeal lie as a matter of right from every order passed? No–
under section 104, an appeal shall lie only from the orders
mentioned therein and the orders against which appeal is expressly
allowed by the Rules. Thus, section 104 would need to be read with
Order 43 Rule 1 to determine if an appeal lies in a given case
against an order.
 Can there be a second appeal in the case of orders?No – section 104
(2) bars it.
 If no appeal is provided by the Rules or section 104 from an order,
how can it be assailed? File a writ under Article 227 or raise this as
a ground in an appeal from the decree under section 105. However
this does not apply to orders passed in remand.
 Which court will hear an appeal from an order? The court to which
an appeal would lie from the decree in the suit (section 106).

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 BASIC READING
 Sections 104 to 106, 107 to 108 and Order XLIII of CPC, 1908

SESSION 27

APPEALS TO THE SUPREME COURT

Principles

 Which provisions of the Code relate to appeals to the Supreme Court?

Sections 109, 112 and 107 to 108 and Order 45.
 Does an appeal lie as a matter of right to the Supreme Court? No – in
civil matters persons can approach the Supreme Court under
Articles 132 (certificate appeal where High Court certifies that the
case involves a substantial question of law as to the interpretation of
the constitution); under Article 133 (if High Court certifies that the
case involves a substantial question of law of general importance
and that the said question needs to be decided by the Supreme
Court); and under Article 136 (SLPs).
 Which other rules govern appeals to the Supreme Court? The
Supreme Court Rules made under Article 145 that override the
provisions of the Code in case of inconsistency. Section 112.
 What is the procedure to prefer a certificate appeal on the civil side to
the Supreme Court under Article 133?The procedure is laid out in
Order 45. Application needs to be made by petition stating the
grounds of appeal and praying for a certificate (Rule 3). Thereupon
notice shall be served on the opposite side (Rule 3). Upon grant of
certificate, the High Court shall require security for costs from the
applicant, require deposit of amount for preparing and transmitting
the paper-book, declare the appeal admitted, transmit the record to
the Supreme Court and furnish copies of the paper-book to the
parties. Rules 7 and 8. The High Court may also stay the execution
of the decree (Rule 13).
 What is the procedure to enforce orders of the Supreme Court? Order
45 Rule 15.

BASIC READING

 Sections 109, 112 and 107 to 108 and Order XLV of CPC, 1908;
 Articles 132, 133, 136 and 145 of the Constitution of India

WEEK 10
SESSION 28
REFERENCE

 Which provisions of the Code relate to Reference?Section 113 and

Order 46.
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  When can a reference be made?Any court wherein the decree is not
subject to an appeal, maysuomotu or on the application of the
parties may make a reference on any question of law to the High
Court (section 113 read with Order 46 Rule 1). In some situations
reference is compulsory – proviso to section 113.
 What is the procedure for a reference?See rules 1 to 5.

REVIEW
 Which provisions of the Code relate to Review?Section 114 and
Order 47.
 What is a “review”? It is a judicial re-examination of the case by the
same court and by the same judge.
 When can review jurisdiction be exercised?A person aggrieved by a
decree or order from which no appeal is allowed or from which no
appeal has been preferred though allowed or by a decision on a
reference from a Court of Small Causes who discovers new or
important matter or evidence that was not within his knowledge or
could not have been produced in spite of due diligence earlier or on
account of some mistake or error apparent on the face of the record
or for any other sufficient reason, may apply for review to the Court
which passed the decree or made the order. Order 47 Rule
1.Further, if an appeal has been preferred by another party on the
same ground, he cannot seek review but must approach the
appellate court.
 Is the principle of ejusdem generis applicable to the phrase “any other
sufficient reason”?
 What is the form to be used for review? Same form as appeals (rule
3).
 What is the procedure for a review?See rules 4 to 9. Notice should
be given to the opponent. An order of rejection is not appealable.
Further, review of order passed in review is impermissible.

REVISION
 Which provisions of the Code relate to Revision?Section 115.
 What is the rationale for revisional jurisdiction?
 What are the pre-conditions for its exercise?
 Have amendments to section 115 rendered revisonal jurisdiction
redundant?

BASIC READING
 Sections 113 to 115 and Order XLVI to XLVII.

Module 4
In this module we will cover statutes that are closely connected with the CPC and
are essential for civil practice namely, limitation, specific relief, court fees and

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suits valuation, and the civil rules of practice.

SESSION 29

A. PAYMENT OF COURT FEES AND VALUATION OF SUITS

INTRODUCTION
 Before Independence, the British had enacted the Court Fees Act,
1870, which for the first time introduced the idea of collecting
revenue from litigation and also to prevent vexatious and frivolous
litigation.
 After Independence, court fees fall under Entry 3 of List II and thus
are within the exclusive competence of the State Legislatures.
 Many states like Karnataka, West Bengal, Maharashtra and Kerala
have brought in force their own complete codes on the subject,
repealing the 1870 Act.
 However other states have adopted the central act of 1870 with state
amendments.
 Law Commission has recommended abolition since justice should
not be taxed.
 However, constitutionality has been upheld, including ad valorem
fees.
 However, should note distinction between a tax and a fee. With
regard to a fee, there should be a broad correlation between the fees
collected and the cost of administration of civil justice. However,
there can be no quid pro quo.
 In case of interpretive issues, construction beneficial to the litigant
should be given.
 We shall look at only salient features of the Karnataka Court Fees
and Suits Valuation Act, 1958.

SALIENT FEATURES OF THE KARNATAKA COURT FEES AND SUITS

VALUATION ACT, 1958
 Section 4 provides that no document which is chargeable with fee
under the Act shall be filed in any court unless there has been paid
the court fee as indicated under the Act; but court can exempt
payment in criminal matters; State Government filing is also
exempt.
 Section 5: Court can permit payment to be made up if document
inadvertently received.
 Section 6: Multifarious suits– what court fee will be chargeable on
the Plaint.
 Section 7: Wherever fee depends on the market value of any
property, such value shall be determined on the date of presentation
of the Plaint. Further, by virtue of deeming provision, for the lands
(revenue lands and estates) falling under certain sections, the
market value shall be calculated as per the formulae provided in

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 section 7(2).
 Section 8: Set off and counter claim shall be chargeable in the
same manner as a Plaint.
 Section 9: Documents falling under two or more descriptions – the
highest of the fees.
 Section 10: In every suit in which fee payable depends upon the
market value of subject-matter, Plaint has to contain a statement of
the particulars of the subject-matter and valuation.
 Section 11 and 14 : Issue regarding court fee shall be decided
before any other.
 Section 12 : Additional fee on issues framed.
 Section 13: relinquishment of portion of court fee permissible to
avoid paying more.
 Sections 15 and 16: Provisions of sections 10 to 13 shall apply to
fees on Memorandum of appeal, cross-objections, petitions,
applications and other proceedings.
 Section 17: High Court may depute court fee examiners
 Section 18: Court may hold inquiry and also appoint commissioner
for deciding whether valuation correct.

COMPUTATION OF FEE
 Note sections 21 to 47 – different types of suits and the fees
payable; to be read with the Schedules I and II
 Sections 48 and 49 – appeals.

VALUATION OF SUITS
 It is also provided for in the same act.
 Under section 50, if specific provision not otherwise made in the
Act or in any other law, valuation for the purposes of determining
the jurisdiction of the court and valuation for the purposes of court
fees shall be the same.
 Under the proviso to section 50, with regard to lands under section
7(a), (b) and (c), valuation for jurisdiction shall be the market value
of the land, not the formula given in section 7. Thus, with regard to
such lands, valuation for jurisdiction and court fees would be
different.
 Under section 50(2) if court fee payable under the Act at a fixed
rate, the value for jurisdiction shall be the market value or the
amount stated in the Plaint.
 Section 51: procedure where objection taken in appeal or revision
that suit or appeal not properly valued for jurisdictional purposes.
(overrides section 99 but inserts its own threshold)

REFUNDS AND REMISSIONS: SECTIONS 63 TO 70

SCHEDULE 1:Ad valoremfees : note in particular Plaints, Application for

review.

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SCHEDULE II: fixed fees. Note all important documents.

BASIC READING
 Karnataka Court Fees And Suits Valuation Act, 1958

SESSION 30

B. The Limitation Act, 1963

INTRODUCTION
 Historically, it would appear that there was either no law of
limitation in some countries or that the law was not uniform, such
as in Britain. Only in 1862 the Limitation Act was made applicable
to the whole of India. Thereafter the Act was replaced by the Acts of
1871, 1877 and 1908. In 1963 the current Limitation Act came into
force.
 The Limitation Act is understood to be a statute of repose, peace
and justice. It is a matter of repose because it extinguishes demands
and quiets title. It assumes that a right not asserted for a long time
is non-existent. Parties should not be in a constant state of doubt
and uncertainty. Further, parties might have lost the evidence to
establish their claims if stale claims are permitted. Stale claims do
more harm than good.
 It is said that whilst limitation bars the remedy, it does not bar the
right. Further, a defendant may raise a plea in defence which he
might not be able to raise by filing a suit.
 We shall look at only salient features of the Limitation Act, 1963.

SALIENT FEATURES OF THE LIMITATION ACT, 1963

 Section 2 provides important definitions such as“application”,
“period of limitation”, “prescribed period” and “suit”. Note that the
three important categories under the Act are “applications”, “suits”
and “appeals” and these are mutually exclusive categories.
 Section 3 provides that subject to sections 4 to 24, every suit
instituted, appeal preferred and application made after the
prescribed period shall be dismissed even though limitation has not
been set up as a defence. Thus, the court is mandated to dismiss
barred matters – however, if the plea of limitation is raised for the
first time at a late stage or in appeal, courts will generally not
entertain the plea if it is a question of fact or a mixed question of law
and fact.
 Note the difference in treatment of set-off and counter-claim in
section 3.
 Under section 4 if the prescribed period expires on a day when the
court is closed, the matter may be filed on the day the Court re-
opens.
 Under section 5, any appeal or application may be admitted after

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 the prescribed period, if the applicant or appellant satisfies the court
that he had sufficient cause for not preferring the appeal or making
the application within time.
 If a person suffers from legal disability at the time from which the
disability is to be reckoned, then the time during which he suffered
from that disability is excluded. Sections 6 to 9. However, under
section 9 once time has begun to run, no subsequent disability
stops it.
 Suits against trustees and their representatives shall not be barred
by any length of time under section 10.
 Suit instituted on contracts entered into in foreign countries shall
be subject to the rules of limitation contained in the Act under
section 11.
 Other exclusions:
 Exclusion of time in legal proceedings – section 12.
 Exclusion of time where leave to sue or appeal as a pauper
applied for- section 13.
 Exclusion of time proceeding bona fide in court without
jurisdiction- section 14.
 Exclusion of time in other cases- section 15.
 Effect of death on or before accrual of the right to sue-
section 16.
 Effect of fraud or mistake-section 17.
 Effect of acknowledgement in writing –section 18.
 Effect of payment on account of debt or interest on legacy-
section 19.
 Effect of acknowledgement or payment by any person- section
20.
 Effect of substituting or adding new plaintiff or defendant-
section 21.
 Continuing breaches and torts – section 22.
 Suits for compensation for acts not actionable without special
damage – section 23.
 The Schedule – First Division – suits; second division –
appeals; third division – applications.

BASIC READING
 Limitation Act, 1963

Additional Resources (Indicative only)

1. The Code of Civil Procedure (as amended by act No. 46 of 1999) Vol. I &
II by B.V. VishwanathaAiyer, 2000.
2. Code of Civil Procedure: Act V of 1908 Vol. I to IV by Mulla D F, 2002.
3. Code of Civil Procedure (as amended by CPC (Amendment) Act, 1999
and CPC (Amendment) Act, 2002) Vol. I & II, by Sudipto Sarkar

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 &Manohar V R, 2002.
4. Code of Civil Procedure by Thakker C K &Thakker M C, 2000.
5. On Civil Procedure by JA Jolowicz, Cambridge University Press, 2000.
6. A Treatise on the Anglo-American System of Evidence in Trials at
Common Law, by John Henry Wigmore, Third Edition, Little, Brown
and Co, Boston, 1940.
7. The following Law Commission of India Reports: 14 th, 27th, 54th, 69th,
74th, 77th, 79th, 114th, 120th, 124th, 125th, 131st, 139th, 140th, 144th, 150th,
163rd, 178th, 185th.
8. Report of the Committee on Reforms of Criminal Justice System,
Volume 1, March 2003.
9. Report of the Arrears Committee, 1989-1990.

PROJECT GUIDELINES, ETC.

A. PROJECT GUIDELINES

 Students who have done practical topics in CPC1 will be allotted

theoretical topics in CPC2 and vice versa.
 Regarding case-law: The facts of all cases referred to in the projects should
be mentioned in footnotes unless a passing mention is made of a case. If a
case is referred to in passing, this should be clearly indicated in the
footnote as “in passing”.
 Regarding Articles: A summary of any article referred to in the projects
should be mentioned in footnotes unless a passing mention is made. If an
article is referred to in passing, this should be clearly indicated in the
footnote as “in passing”.
 Students will be asked questions on the references given and so should
only include references that they have actually read thoroughly.
 With regard to all the topics, students might benefit from the following
sequence of work: identify the relevant statutory rules and read them
thoroughly; then go through the case-law starting with the Supreme Court
cases; identify interpretive issues that arise and see whether these have
been answered. The goal is to arrive at the principles underlying that area
of law. If there is an area of interpretive doubt, explore this further
through case-law. You could also look at the utility of the rules in
question; how the Law Commission has dealt with them; compare and
contrast with similar rules in other jurisdictions; and finally critically
evaluate the rules with a view to reform.
 Students are required to strictly follow the relevant UGC and University
guidelines relating to the manner of quoting and using the works of others.
Any projects indicating plagiarism as per Turnitin or other applications
will be referred as a matter of course for disciplinary action.

B. CLASS PARTICIPATION GUIDELINES

 All students are expected to be fully ready with their study of the basic

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 course materials for the class; any student may be asked to answer
questions in class, in addition to the students leading the discussion for
that day.
 The award of 5 marks for class participation is exclusively within the
discretion of the Course Teacher.
 However, four marks will be awarded by default simply for being
responsive.
 Being responsive includes the following:

(i) Being ready with class readings at all times during the course.
If a student has been designated as the "leader" to lead classroom
discussion, it must appear to the Course Teacher that she has read
the material indicated. Also, the Course Teacher would randomly
ask questions to students who are leading the discussion or
otherwise. If any student appears to have not read the material
indicated, one mark will likely be deducted out of the four marks
allocated for responsiveness. The Course Teacher might call upon
the same student several times during the course to test
preparedness. Every instance of unpreparedness will result in the
loss of a mark - until all four marks awarded by default are
deducted. The Course Teacher will try to ensure that everyone gets
a chance to lead discussions in class and that everyone is called
upon at least a few times during the course so that all are treated
equally.

(ii) Completing and submitting classroom exercises within the

designated times. Failure to do so - or submitting exercises which
ex facie appear lackadaisical might also result in deduction of one
mark. If there have been four classroom exercises, then a student
could potentially lose all four marks for not being responsive.

(iii) Being presentable and receptive during classes. If the Course

Teacher finds the student asleep, inattentive or engaged in other
activities online or otherwise, he may deduct a mark for every such
instance. This includes usage of mobile phones in class which is
strictly prohibited.
(iv) Making presentations when called upon. The Course Teacher will
be calling upon students either through the TIC-TOC program or
otherwise to make presentations. The student should prepare and
make a presentation for about 3-5 minutes. Failure to respond and
present when called upon will result in 1 mark being deducted.

In case the Course Teacher decides to deduct a mark for

unresponsiveness, he will send an email at the end of the class to
the class-representatives indicating the students who have suffered
deductions. In spite of suffering deductions due to
unresponsiveness, the Course Teacher still has the ultimate
discretion to not deduct the marks (at the end of the course) if the
student has managed to "make-up" by being really responsive
subsequently.

The remaining 1 mark will be awarded based upon voluntary

classroom engagement - how often and how well, the student has

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 made unprompted interventions during the course. The Course
Teacher and Assistant will keep a record of performance.

 This is a course that relies heavily on classroom discussions to raise the

level of engagement and study. Each and every student in the class will be
expected to contribute to classroom interaction – whether by way of
agreement, opposition or neutral ruminations.

C. USAGE OF HANDOUTS
 The course teacher asserts his intellectual rights over the handouts,
course template, and outline. You may only use the same for the purposes
of this course of study at NLSIU. Any unauthorized use, including
commercial usage of the same, is prohibited.
Dr. Nanda Kishore
Course Teacher

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