CPC ANSWERS

Q. 1 Explain Decree and its types, execution, modes.

Ans:

1.INTRODUCTION:
The 'Code of Civil Procedure' is a procedure law that is an adjective law. The adjudication of a
court of law is divided into decree and orders. It is a formal expression which determines the
interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil
suit. Significantly, a decree is a formal expression of adjudication by which the court determines
the rights of parties regarding the matter in a controversy or a dispute. A set-off or a
counterclaim can be obtained on the decree. Decree Defined u/s 2(2) of Civil Procedure Code,
1908.
Definition:
It means the formal expression of an adjudication which conclusively determines the rights of the
parties with regard to all or any of the matter in controversy in the suit.
A decree may be either preliminary or final.
A decree is preliminary when a further procedure has to be taken before the suit can be
completely disposed off. When adjudication completely disposes of the suit such decree is final. 
It may be noted that the term decree doesn’t include the following:
 Any adjudication from which an appeal lies as an appeal from an order or
 Any order or decision of the dismissal of the suit for default.

“Formal expression” means the recordation of the ruling of the Court on the matter presented
before it, so far as the Court expressing it alludes to the fact that the same issue cannot be
adjudicated by or before the Court again but only before a higher forum that is an appellate
forum. A decree must be drawn separately after a judgment.
Deemed Decrees: A deemed decree is one which, though not fulfilling the essential features of a
decree as required by the Code has been expressly categorized as a decree by the legislature. The
rejection of a plaint and the determination of questions of facts are deemed decrees.

2.ESSENTIAL ELEMENTS OF DECREE:

The decision of a Court can be termed as a "decree" upon the satisfaction of the following
elements:
An Adjudication: Adjudication means "the judicial determination of the matter in dispute". If
there is no judicial determination of any matter in dispute or such judicial determination is not by
a Court, it is not a decree, e.g., an order of dismissal of a suit in default for non-appearance of
parties, or of dismissal of an appeal for want of prosecution are not decrees because they do not
judicially deal with the matter in dispute.

Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every suit is
instituted by the presentation of Plaint. Where there is no Civil suit, there is no decree, e.g.,
Rejection of an application for leave to sue in forma pauper is is not a decree, because there
cannot be a plaint in such case until the application is granted.

Exception: But where in an enactment specific provisions have been made to treat the
applications as suits, then they are statutory suits and the decision given thereunder are,
therefore, decrees; e.g., proceeding under the Indian Succession Act, the Hindu Marriage Act,
the Land Acquisition Act, the Arbitration Act, etc

Rights of the parties: The adjudication must have determined the rights i.e., the substantive
rights and not merely procedural rights of the parties with regard to all or any of the matter in
controversy in the suit. "Rights of the parties" under section 2(2). The rights of the parties inter
se (between the parties) relating to status, limitation, jurisdictions, frame of suit. accounts, etc.
"Rights in matters in procedure" are not included in section 2(2); e.g., An order of dismissal for
non-prosecution of an application for execution, or refusing leave to sue in forma pauperis, or a
mere right to sue, are not decrees as they do not determine the rights of the parties.

Conclusive Determination: The determination must be final and conclusive as regards the
Court, which passes it. An interlocutory order which does not finally decide the rights of the
parties is not a decree; e.g., An order refusing an adjournment, or of striking out defence of a
tenant under the relevant Rent Act, or an order passed by the appellate Court under Order 41,
rule 23 to decide some issues and remitting other issues to the trial Court for determination are
not decrees because they do not decide the rights of the parties conclusively.

But An order dismissing an appeal summarily under Order-41, or holding it to be not

maintainable, or dismissal of a suit for want of evidence or proof are decrees, because they
conclusively decide the rights of the parties to the suit.

Formal Expression: There must be a formal expression of such adjudication. The formal
expression must be deliberate and given in the manner provided by law.

3. THE CODE OF CIVIL PROCEDURE RECOGNISES THE FOLLOWING THREE

TYPES OF DECREES.

 Preliminary Decree
  Final decree
 A partly preliminary and partly final decree

1.Preliminary Decree:
Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit, but does not completely dispose of the suit, it is a Preliminary Decree. A
preliminary decree is only a stage in working out the rights of the parties, which are to be finally
adjudicated by a final decree.
Provisions in the Code for passing of the Preliminary Decrees:
a. Suits for possession and mesne profit; Order 20 Rule 12
b. Administrative Suits; Order 20 Rule 13
c. Suits for, Pre-emption; Order 20 Rule 14
d. Suits for dissolution of Partnership; Order 20 Rule 15
e. Suits for accounts between principal and agent; Order 20 Rule 16
f. Suits for partition and separate possession; Order 20 Rule 18
g. Suits for foreclosure of a mortgage; Order 34 Rules 2-3
However, in Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in code is
not exhaustive and a court has the right to pass a preliminary decree in cases not expressly
provided for, within the code.
2.Final Decree:
A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court
passing it is concerned. A final decree settles all the issues and controversies between the parties
to the suit by the court of law. Consideration of final decree depends on the facts the following
facts
 No appeal was filed against the said decree within the prescribed time period.
 The disputed matter in the decree has been decided by the highest court.
 When it completely disposes off the suit.
Primarily, a civil suit contains only one preliminary and one final decrees. However, in Gulusam
Bivi v. Ahamadasa Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18
stated that the code nowhere contemplates more than one preliminary or final decree.
Reinforcing this observation, the Supreme Court in Shankar v. Chandrakant, finally settled the
conflict of opinion and stated that more than one final decree can be passed in a single suit.

3.Partly Preliminary and Partly Final Decree:

For example, in a suit for possession of immoveable property with mesnes profits, the Court

a) decrees possession of the property, and

b) directs an enquiry into the mesne profits.

The former part of the decree is finally while the later part is only preliminary because the Final
Decree for mesne profits can be drawn only after enquiry and ascertainment of the due amount.
In such a case, even though the decree is only one, it is Partly Preliminary and Partly Final.

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

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

4.EXECUTION OF DECREES

S. 36 TO 74 AND O. 21: In a suit, after the pronouncement of judgment and passing of decree in
respect of the relief given by the Court, the next step is the execution of decree or order.

Meaning: "Execution is the enforcement of decrees and orders of the Court by the process of the
Court." As a matter of fact, execution is the formal procedure prescribed by law whereby the
partly entitled to the benefit of a judgment may obtain that benefit.

Execution of Decree and Order: Section-36 of the Code lays down that the provision of the
Code relating to execution of decrees (including provision relating to the payment under a
decree) shall, so far as they are applicable, be deemed to apply to the execution of orders
(including payment under an order).

Subject Matter of Execution: The subject matter of execution may be either a decree or an
order of a Court of competent jurisdiction. Every decree or order of a Court cannot be the subject
matter of an execution, but only those decrees and orders are executable which finally determine
and enforce the rights of the parties at the date when the decree or order is made.

Decree which may be executed: Before a decree can be executed, it must be both valid and
capable of execution. The decree put into execution must not be barred under any law. It is the
decree passed by the Court of first instance which can be executed but when an appeal has been
preferred against the original decree, it is the decree of the appellate Court, which alone can be
executed. The decrees of the Court of first instance become merged in the appellate Court's
decree. The appellate decree whether it confirms, varies or reverses the decree of original court,
it is the only decree which can be executed.
Court by which decrees may be executed: Section 38

According to S. 38, an executing Court may be either the Court which passed the decree, or the
Court to which the decree is sent for execution. The expression “Court which passed a decree”
means –
1) The Court of first instance –
a) in case where the decree is passed by the Court of first instance, and
b) in case of appellate decrees,
2) The Court at the time of execution would have had jurisdiction to try the suit where the Court
of first instance has either ceased to exist or ceased to have jurisdiction to execute the decree.
Explanation to S.37 says that The Court of first instance does not cease to have jurisdiction to
execute a decree merely on the ground that after the institution of the suit wherein the decree was
passed or after the passing of the decree, any area has been transferred form the jurisdiction of
that Court; but, in every such case, such other Court shall also have jurisdiction to execute the
decree, if at the time of making application for execution of the decree it would have jurisdiction
to try the said suit.

Application for Execution: The execution proceedings commence with the filing of an
application for execution before the Court, which passed the decree, or before the Court to which
the decree has been transferred for execution. Rules 10-25 and 105-106 of Order 21 deal with
execution applications.

Mode of executing decree:

 By delivery of any property (movable or immovable) specifically decreed. 

 By sale of the property with or without the attachment of the property. If the property
is situated within the jurisdiction of the court then it has the power to attach the
property.
 By arrest and detention. However, this mode should not be exercised without giving a
reasonable opportunity to the judgment-debtor, in the form of a show-cause notice as
to why he should not be imprisoned. 
 Execution by appointing a receiver
 If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used
in the execution of a decree then clause(e) comes into play.

5.CONCLUSION:

A decree in the decision of a court which determines the rights in dispute between the parties to
suit. A decree can be preliminary, final or partly preliminary and partly final. There is also a
concept of the deemed decree. A decree is different from order and judgement in many ways. For
the execution of decree Order XXI of the Code lays down the provisions and procedure. A
decree is appealable and even second appeal lies to High Court after the first appeal of a decree.
A decree is passed only in civil suits and not in criminal matters.

That execution means implementing or enforcing or giving effect to an order or a judgment

passed by the court of justice. The provisions contained in Order 21 covers different types of
situation and provide effective remedies to the judgment-debtors, claimant objectors and third
parties apart from the decree-holder. The Code takes care of the rights of judgment-debtors too.
Various modes of execution of a decree are also provided by the Code which includes arrest,
detention of the judgment-debtor, delivery of possession, attachment of the property, by sale,
partition, the appointment of receiver and payment of money etc. Thus, the provisions are
rendered effective or capable of giving relief to an aggrieved party.
Q. 2 Summary suits and its procedures.
Ans:

1.INTRODUCTION:

The Summary suit or summary procedure is mentioned under Order 37 of the Civil Procedure
Code 1908. Summary suit is not an ordinary suit, it is instituted for certain specific reasons
majorly for enforcing a right that has a faster effect and works more proficiently in favour of
plaintiff than the usual and ordinary suits and procedures. The primary objective of summary suit
is to summaries the procedure of suits and settle the dispute faster in cases where the defendant is
not having a genuine defence. 
This suit might look as if it is doing injustice to the defendant and violates the common
principles of natural justice and equity and it doesn’t give enough importance to the phrase
“Audi Alteram Partem” which means that no one should be condemned unheard. But this is not
exactly true as the defendant is given one chance to provide the evidence for grant of his leave
for defence, in case the defendant fails to prove so or be present before the Court on the given
date, then the decision is made in favor of plaintiff. However, this procedure is used in extremely
limited cases where defendant has no defence. 

2.APPLICABILITY AND EXTENT

The Provisions of Order XXXVII of CPC applies to the following class of courts:

1. High Courts,
2. City Civil Courts,
3.  Courts of Small Causes
4. Other Courts.
3.ORDER XXXVII APPLIES TO THE FOLLOWING CLASS OF SUITS

 Bill of exchange (unconditional order which has to be paid either immediately or

on a fixed date)
 Hundies (financial instrument used for trade or credit purposes)
 Promissory notes (unconditional promise to pay sum of amount either on demand
or on fixed date)
 For recovering debt or liquidated demand 

i) On a written contract, or
ii) On an enactment, where the sum sought to be recovered is a fixed sum of money or like a debt
other than a penalty; or

iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated
demand only.

4.JURISDICTION OF SUMMARY SUITS

Suits can be proposed at the following places

a) Where the Defendant lives

b) Where the defendant works for personal gain

c) The place where cause of action arises wholly or partly

Based on the pecuniary jurisdiction, the suit can be proposed in the High Court or District Court.

5.TIME LIMITATION TO INITIATE A SUMMARY SUIT

The suit can be proposed within 3 years from the date of cause of action. The period of limitation
cannot be neglected.

6.CONTENTS OF PLAINT FOR A SUMMARY PROCEDURE

Following are the contents of a plaint filed for a summary procedure:

 Facts pertaining to the cause of action. 

 A definite assertion that the suit is filed under this order.
 That all the relief or damages, falls within the boundary of this order
 The following inscription must be there under the number of the suit.
7.THE PROCEDURE UNDER A SUMMARY SUIT
a) A summary suit is initiated by presenting the plaint in the appropriate civil court.

b) After the filing of a summary suit, a copy of the plaint and summons must be sent to the
defendant in the recommended format.

c) The defendant will present himself in person or by pleader within 10 days from the order of
summons.

d) The plaintiff shall serve the defendant a summons for judgment, if he presents himself before
the court

e) The defendant has to file an application for leave to defend within 10 days from the order of
such summons.
f) Leave to defend may be acknowledged by the court unconditionally or with any conditions,
which the court may think to be just and lawful.

g) If a defendant has not made an application for leave or such an application has been dismissed
or if the defendant does not comply with the conditions based on which the leave was granted,
the plaintiff is entitled to judgment forthwith.

8.DECREE IN SUMMARY SUITS

The plaintiff is designated to a decree of a sum not surpassing the amount mentioned in the plaint
including interest and cost under the following conditions-

a) If the defendant does not present himself before the court

b) If the defendant does not make an application for leave to defend

c) If the defendant has made an application for leave to defend but the same has been dismissed
by the court.

d) If the leave to defend is acknowledged by the court but gradually the suit proceeds as an
ordinary suit and the decree is granted based on CPC.

9.SETTING ASIDE A DECREE IN SUMMARY SUITS

Rule 4 of Order XXXVII explains the court having the power to set aside an ex-parte decree
under special circumstances in a summary suit. The court is entrusted to grant a stay on the
execution of such decree. The defendant in such a case should not only reveal the unique
circumstances, which stopped him from appearing, but also the facts, which would gain him
leave to defend.

10.CONCLUSION
The summary procedure under order XXXVII is a legal procedure used for faster and more
effective litigation for commercial matters. Its object is to summarize the suits in cases where a
defendant is not equipped with any defense. However, there are special circumstances where the
defendant is granted leave to defend. Nevertheless, for a leave to be granted there are several pre-
requisites to be followed by the defendant. In case of the contrary, the leave to defend is rejected,
and the plaintiff gets an edge in the case. Thus, a summary procedure is a productive solution to
help prevent an unwanted prolonged lawsuit.
Q. 3 WHAT IS ADJOURNMENT OF HEARING.
Ans:
1.INTRODUCTION:
The provisions relating to adjournment is enumerated in the Civil Procedure Code, 1908 under
order XVII but the code does not define the term adjourn.
Court can adjourn the hearing but with some specified and logical reason which is very much
essential to ensure justice. Court cannot make any decision without complete satisfaction.
On some occasion it is being observed that the due to adjournment of hearing inconvenience is
caused to many but for the interest of justice sufficient opportunity needed to be given to other
party to present case.
Order XVII of CPC deals with the situations when adjournment can occur and the procedure to
be followed by the court during the adjournment of a hearing. Rule 1 of the Order empowers the
court to adjourn a hearing in a suit if a party seeking adjournment shows the court that there is
sufficient reason for the adjournment. The term adjournment means the postponement of hearing
of a case until further date. Adjournment may on specified date of for indefinite period. (Sine
Die)
If an adjournment is final, it is said to be sine die, "without day" or without a time fixed to resum
e the work. It is being marked officially the end of regular session. It can also be understood as
discontinuation of a particular proceeding or hearing of that particular case is adjourned or
postponed.
Adjournment is entirely discretionary, but the discretion must be exercised in a judicial and
reasonable manner not arbitrarily or with capriciousness manner No hard and fast test can be laid
down as to how this discretion should be exercised on each occasion. It would vary according to
the facts and circumstances of each case Makbul v. Sidik, A 1966 Or 41.

Adjournment will be given to both the parties to present their arguments with evidence to call
witnesses or bring evidence to the court due to this adjournment will be granted to the parties and
this leaves will often be repeated by lawyer, parties and judges this adjournment will be given for
deliberately delaying the case. The Madras High Court observed in the case of Unit Traders vs.
Commissioner of Customs 2012(281) ELT659 Mad.- that when there is a deliberate absence
on the date of hearings the plea of denying natural justice is not admissible.

2.EFFECT OF ADJOURNMENT:

Adjournment affects the whole system of law or the whole system of justice there will be a
notorious problem is affecting the functioning of the court this malady will erode the confidence
of the people in the judiciary. Adjournment cannot be claimed as of right, as the adjournment is
in the discretion of the Court and cannot be claimed as a right Chandra Prakash Ojha v.
District Judge Barielly, AIR 2004 All 204. Adjournments contribute to delays in the disposal of
cases. They also contribute to hardship, inconvenience and expense to the parties and the
witnesses. The witness has no stake in the case and comes to assist the court to dispense justice.
He sacrifices his time and convenience for this.

Adjournment considerably a delay in a suit even after amendments of Civil Procedure Code
which restricts that no adjournment shall be granted more than three times. At present
applications for adjournments are made in the apex court on grounds which would have been
unthinkable before and which, if made, would have met with a thundering rejection. Today
adjournments are the order of the day.

3.THE PROCEDURE AND TRAITS OF AN ADJOURNMENT UNDER RULE 1 OF

ORDER XVII CAN BE ENLISTED AS FOLLOWS:
Rule 1 Order XVII of Code of Civil Procedure 1908 "Court may grant
time and adjourn hearing"

 The court may, if sufficient cause is shown, at any stage of the suit grant time to the
parties or to any of them, and may from time to time adjourn the hearing of the suit for
reasons to be recorded in writing:

 Provided that no such adjournment shall be granted more than three time to a party
during hearing of the suit.

 Costs of adjournment.-In every such case the Court shall fix a day for the further hearing
of the suit, and

[shall make such orders as to costs occasioned by the adjournment or such higher costs as
the court deems fit:

Provided that, -

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day
until all the witnesses in attendance have been examined, unless the Court finds that, for
the exceptional reasons to be recorded by it, the adjournment of the hearing beyond the
following day is necessary.

(b) no adjournment shall be granted at the request of a party, except where the
circumstances are beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another Court, shall not be a ground
for adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other
than his being engaged in another Court, is put forward as a ground for adjournment, the
 Court shall not grant the. adjournment unless it is satisfied that the party applying for
adjournment could not have engaged another pleader in time,

(e) where a witness is present in Court but a party or his pleader is not present or the
party or his pleader, though present in Court, is not ready to examine or cross-examine
the witness, the Court may, if it thinks fit, record the statement of the witness and pass
such orders as it thinks fit dispensing with the examination-in-chief or cross-examination
of the witness, as the case may be, by the party or his pleader not present or not ready as
aforesaid.

Rule 2 Order XVII of Code of Civil Procedure 1908 "Procedure if

parties fail to appear on day fixed"

 Where, on any day to which the hearing of the suit is adjourned, the parties or any of
them fail to appear, the Court may proceed to dispose of the suit in one of the modes
directed in that behalf by Order IX or make such other order as it thinks fit.

 Explanation-Where the evidence or a substantial portion of the evidence of any party has
already been recorded and such party fails to appear on any day to which the hearing of
the suit is adjourned, the Court may, in its discretion proceed with the case as if such
party were present.

Rule 3 Order XVII of Code of Civil Procedure 1908 "Court may

proceed notwithstanding either party fails to produce evidence, etc"

 Where any party to a suit to whom time has been granted fails to produce his evidence, or
to cause the attendance of his witnesses, or to perform any other act necessary to the
further progress of the suit, for which time has been allowed the Court may,
notwithstanding such default,

 (a) if the parties are present, proceed to decide the suit forthwith; or

 (b) if the parties are, or any of them is, absent, proceed under rule 2. 

4.CIVIL PROCEDURE CODE ATTEMPT TO ANSWER ADJOURNMENT

Amendment Act 1999 (w.e.f 1-7-2002) some and most important medication has been amended
with respect to O.XVII Rule 1 it has become obligatory for the court to record the reasons for
adjournments of the hearing and restricts at the number of adjournments to three only during the
hearing the suit. A civil suit should be decided at the earliest and in any case within one year
from the date of its institution Anita Bhandari v. Union of India, 2003 (2) Guj LR 1093. But
the suit will continue more than 3 years even after so many precedents this rule is not following
by judiciary.
This provision was challenged in the case of Salem Advocate Bar Assoc. v. Union of India
Salem Advocate Bar Assoc. v. Union of India, AIR 2005 SC 3353. The provision limiting
adjournments cannot be held to be ultra vires or unconstitutional in some extreme case it may
become necessary to grant adjournment despite the fact of three adjournments have already been
granted like the example of Bhopal gas tragedy, riots and other extremely serious matter then
Court can grant an adjournment.

While considering the factor necessary to keep in mind the legislative intent to restrict the grant
of adjournments. Even the committee hold by Justice V.S Malimath made a recommendation on
adjournment in criminal and civil reform that adjournment should be granted only when the court
finds it necessary and reason should be recorded to give adjournment this condition is not
followed the Committee proposed an Arrears Eradication Scheme to tackle cases that are
pending for more than two years. Under the scheme, such cases will be settled through Lok
Adalats on a priority basis. These cases will be heard on a day-to-day basis and no adjournment
shall be permitted

5.CONCLUSION:

Adjournments which a notorious problem in the functioning of courts by granting time to parties
without sufficient cause then this is a mistake on part of judges they do have a discretion they
can pass any order which they think fit so even if the parties are not appearing the court can
dismiss or pass an ex parte decree. Even this is not working a reasonable amount should be
imposed wherever court deems fit so. The deliberate intention is to delay the matter which is
present before the court of law.

The reason will be stated by parties, a lawyer on the ground that sudden illness or physical
ailment for that fact evidence will be given that evidence should properly examine if there is any
proof that evidence which was given was false immediate action should be taken against them in
terms of fine or misleading court of law or wasting court time can be considered as willful
disobedience of the process of court. By concluding the fact that adjudicator or the court should
see that there should not be any undue advantage of adjournment by giving frivolous
adjournment.
Q. 4 JURISDICITION AND ITS TYPES IN CIVIL COURT.
1. MEANING OF JURISDICTION:
Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or
judge to decide or adjudicate any dispute between the parties or pass judgment or order.
Jurisdiction is key question for the court which goes to the root of the case and decide the fate of
matter either at preliminary stage or on merit. If any order passed without jurisdiction, it
becomes nullity and not enforceable by law. The jurisdiction of civil courts can be divided on the
basis of pecuniary, Territorial and subject matter.

Jurisdiction is defined as the limit of judicial authority or extent to which a court of law can
exercise its authority over suits, cases, appeals etc. In 1921 Calcutta High Court judgement in
the case of Hriday Nath Roy Vs Ram Chandra sought to explain the meaning of the term
‘Jurisdiction’ in detail. An investigation of the cases in the texts shows several attempts to
explain the word Jurisdiction which has been declared to be the power to hear and determine the
issues of law and the fact or the authority by which their judicial powers take knowledge of facts
and decide causes or the authority to hear and decide the legal dispute or the power to hear and
determine the subject matter in the dispute among the parties to a suit and to adjudicate or
exercise any judicial power over them or the ability to hear, determine and declare judgement on
issues before the court or the power or authority which is given to a court by government to
understand and learn causes between parties and to give a judgement into the effect or the power
to enquire into the facts to apply the law to pronounce the Judgement and put it into execution.

Whenever the suit is made before the court the initial issue is to decide whether the court has
jurisdiction to deal with the matter. If the court has all the three territorial, pecuniary or subject
matter jurisdiction then simply the court has the power to deal with any of the cases. If the court
does not have any of the jurisdiction then it will be recognised as lack of jurisdiction and
irregular exercise of jurisdiction. When the court does not have jurisdiction to decide the case
then such decision will be regarded as void or voidable depending upon the circumstances.   

2.KINDS OF JURISDICTION:
Territorial or local jurisdiction
Under this territorial or local jurisdiction, the geographical limits of a court’s authority are
clearly delineated and specified. It cannot exercise authority beyond that geographical/ territorial
limit. For example, if a certain crime is committed in Madhya Pradesh, only the courts of law
within the borders of Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of
the Code of Civil Procedure explains the territorial jurisdiction on the grounds of the location of
the immovable property. In the case of Harshad Chiman Lal Modi Vs D.L.F Universal Ltd ,
the court interpreted Section 16 that the suit pertaining to immovable property should be brought
to the court. The court does not have the power to decide the rights of property which are not
situated. However, the court can still pass a relief if the opposite party agrees to try the suit in
such a case.
Pecuniary jurisdiction

Pecuniary means ‘related to capital.’ It approaches the question of whether the court is
competent to try the case of the financial value. The code allows analysing the case unless the
suit’s value exceeds the financial limit of the court. Section 15 of the Code of Civil Procedure
commands the organisation of the suit in the court of the low grade. It refers to pecuniary
jurisdiction of Civil court. It is a course of the method and it does not affect the jurisdiction of
the court. The main objective of establishing pecuniary jurisdiction is to prevent the court of a
higher level from getting burdened and to provide assistance to the parties. However, the court
shall interfere if it finds the judgment to be wrong. In the case of Karan Singh Vs Chaman
Paswan the plaintiff filed a suit in the subordinate court involving an amount of Rs 2950, but the
court rejected the case. Later his next appeal was allowed by the High Court, but it ordered him
to pay the deficit amount. The appellant contested that the decision of the district court will be a
nullity, but the High Court dismissed the claim. Later the Supreme Court confirmed the decision
of the High Court declaring that the decision of district court won’t be void.

Jurisdiction as to the subject matter

The subject matter can be defined as the authority vested in a court to understand and try cases
concerning a special type of subject matter. In other words, it means that some courts are banned
from hearing cases of a certain nature. No question of choices can be decided by the court which
do not have subject matter jurisdiction. Section 21 of the Code of Civil Procedure is related to
the stage challenging the jurisdiction.

Original and appellate jurisdiction

Appellate jurisdiction refers to the court’s authority to review or rehearsal the cases that have
been already decided in the lower courts. In the Indian circumstances, both the High Court and
Supreme Court have the appellate jurisdiction to take the subjects that are bought in the form of
appeals.

Original Jurisdiction refers to the court’s authority to take notice of cases that could be decided
in these courts in the first instance itself. Unlike appellate jurisdiction wherein courts review the
previously decided matter, here the cases are heard afresh.

Exclusive and concurrent jurisdiction

In Civil Procedure, exclusive jurisdiction means where a single court has the authority to decide
a case to the rejection of all the courts. This jurisdiction is decided on the basis of the subject
matter dealt with by a specific court. For example, the U.S District courts have particular
jurisdiction on insolvency topics.
Concurrent jurisdiction exists where two or more courts from different systems simultaneously
have jurisdiction over a particular case. In this situation, parties will try to have their civil or
criminal case heard in the court that they perceive will be most favorable to them.

General and special jurisdiction

General jurisdiction means that general courts do not limit themselves to hearing only one type
of cases. This type of jurisdiction means that a court has the power to hear all types of cases. So
the court that has general jurisdiction can hear criminal, civil, family court case and much more.
Specific jurisdiction is the ability of the court to hear a lawsuit in a state other than the
defendant’s home state if that defendant has minimum contacts within the state where the suit
will be tried.

Legal and equitable jurisdiction

Equitable jurisdiction belongs to the authorities of the courts to take specific actions and pass
some orders in order to deliver an equitable and reasonable outcome. These judgments are
usually outside the purview of law, in the sense that support provided by the courts may not be
necessarily confirmed by the statue. In the case of K.K.Velusamy Vs N.Palanisamy, the
Supreme Court of India held that Section 151 does not give any special jurisdiction to civil
courts, but only presents for the application of discretionary power to achieve the ends of justice.
This suggests that the court cannot give any such order which may be denied under any law in
such an order that may be prohibited under any law in order to achieve the ends of justice. This
would lead to the conclusion that such equitable jurisdiction is secondary to the authority of the
courts to implement the law.

Expounding and expanding jurisdiction

Expounding jurisdiction means to describe, clarify and explain jurisdiction. Expanding

jurisdiction means to develop, expand or prolong jurisdiction. It is the duty of the court to clarify
its jurisdiction and it is not proper for the court to extend its jurisdiction.
3.JURISDICTION OF CIVIL COURT
Section 9 of CPC
Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It
declares that the court shall have jurisdiction to try all lawsuits of civil nature accepting suits of
which their cognizance is either expressly or impliedly barred.

A civil court has jurisdiction to try a suit if two conditions are fulfilled.

1) The suit must be of a civil nature and

2) The cognizance of such a suit should not have been expressly or impliedly barred.
Suit of Civil Nature
In order that a civil court may have jurisdiction to try a suit, the first condition which must be
satisfied is that the suit must be of a civil nature? The word ‘civil’ has not been defined in the
code. But according to the dictionary meaning, it pertains to private rights and remedies of a
citizen as distinguished from criminal, political, etc. the word ‘nature’ has been defined as ‘the
fundamental qualities of a person or thing; identity or essential character; sort, kind, character’’.
It is thus wider in content. The expression ‘civil nature’ is wider than the expression ‘civil
proceedings’. Thus, a suit is of a civil is of a nature if the principal question therein relates to the
determination of a civil right and enforcement thereof. It is not the status of the parties to the suit,
but the subject matter of it which determines whether or not the suit is of a civil nature.

Suits expressly barred

A suit is said to expressly barred when it is prohibited by the statute for the time being in force. It
is subject to the competent legislature to bar the jurisdiction of civil courts with regard to a
specific class of suits of civil nature, provided that, in doing so it retains itself within the scope of
legislation given to it and does not contradict any terms of the constitution.

Suits impliedly barred

A suit is said to be impliedly barred when it is said to be excluded by general principles of law.
When a specific remedy is given by statute, it, therefore, denies a person who requires a remedy
of any different form than is given by statute. When an act formed an obligation and made its
performance in a specified manner that performance cannot be implemented in any other
manner.

Burden of proof
It is well- settled that it is for the party who seeks to oust the jurisdiction of a civil court to
establish it. It is equally well settled that a statute ousting the jurisdiction of a civil court must be
strictly construed. Where such a contention is raised, it has to be determined in the light of the
words used in the statute, the scheme of the relevant provisions and the object and purpose of the
enactment. In the case of a doubt as to jurisdiction, the court should lean towards the assumption
of jurisdiction. A civil court has inherent power to decide the question of its own jurisdiction;
although as a result of such inquiry it may turn out that it has no jurisdiction to entertain the suit.

Exclusion of jurisdiction: limitations

A litigation having a grievance of a civil nature has, independent of any statute, a right to
institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. The
exclusion of the jurisdiction of a civil court is not to be readily inferred and such exclusion must
be clear.

5.Conclusion:

Civil court has jurisdiction to entertain a suit of civil nature except when its cognizance is
expressly barred or barred by necessary implication. civil court has jurisdiction to decide the
question of its jurisdiction although as a result of the enquiry it may eventually turn out that it
has no jurisdiction over the matter. Civil court has jurisdiction to examine whether tribunal and
quasi- judicial bodies or statutory authority acted within there jurisdiction. But once it is found
that such authority, e.g., certificate officer had initial jurisdiction, then any erroneous order by
him is not open to collateral attack in a suit. Because there is an essential and marked distinction
between the cases in which courts lack jurisdiction to try cases and where jurisdiction is
irregularly exercised by courts.
Q. 5 SHORT NOTE ON STAY OF SUIT. (SECTION 10)
Ans:

1.Meaning:

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

The principle of res sub-judice prevents the court from proceeding with the trial of any suit in
which the matter in issue is directly or substantially the same with the previously instituted suit
between the same parties and the court where the issue is previously instituted is pending has the
power to grant the relief sought. This rule is applicable to the trial of the suit and not the
institution. It does not restrict the court from passing interim orders like injunction or stay.
However, it applies to revisions and appeals.

The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to
prevent the plaintiff from getting two separate decisions from different courts in his favour or
two contradictory judgements. It also ensures to protect the litigant from unnecessary
harassment. The policy of law is to restrict the plaintiff to one legislation, thus obviating the
possibility of two conflicting verdicts by one and the same court in respect of the same relief.

The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit
founded on the same cause of action.
2.CONDITIONS: THIS SECTION WILL APPLY WHERE THE FOLLOWING
CONDITIONS ARE SATISFIED:
1) Presence of Two Suits: Where there are two suits, one previously instituted and the other
subsequently instituted.
2) Matter in Issue: The matter in issue in the subsequent suit must be directly and substantially
in issue in the previous suit.
3)Same Parties: Both the suits must be between the same parties or between their
representatives.
4) Pendency of Suit: The previously instituted suit must be pending:
a. in the same Court in which the subsequent suit is brought, or
b. in any other Court in India, or
c. in any Court beyond the limits of India established or empowered by the Central Government.
d. before the Supreme Court.
e. Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant
the relief claimed in the subsequent suit.
f. Same Title: Such parties must be litigating under the same title in both the suits.
3.Provisions are Mandatory: The provisions contained in section-10 are mandatory and no
discretion is left with the Court. The order staying proceedings in the subsequent suit can be
made at any stage.

4.A suit pending in a Foreign Court: The pendency of a suit in a foreign Court does not
preclude the Courts in India from trying a suit founded on the same cause of action.23.

5.Inherent power to stay: A civil court has inherent power U/s 151 to stay a suit in the ends of
justice or to consolidate different suits between the same parties containing the same matter in
issue substantially.

6.Decree passed in contravention of S.10: It is the trial and not the institution of the subsequent
suit which is barred under this section and therefore, a decree passed in contravention of S.10 is
not a nullity, and the same can be executed.

7.Consent of parties: The provision of Section 10 is a rule of procedure which can be waived by a party
and where the parties waive their right and expressly ask the Court to proceed with the subsequent suit,
they cannot afterwards challenge the validity of the proceedings.

8.Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from simultaneously
trying two 22 parallel suits between the same parties in respect of the same matter in issue. The
section intends to prevent a person from multiplicity of proceedings and to avoid a conflict of
decisions.

Case/Example: (Wings Pharmaceuticals (P) ltd and another V. M/s. Swan pharmaceuticals
and other)
A suit was instituted by the plaintiff company alleging infringement by the defendant company
by using trade name of medicine and selling the same in wrapper and carton of identical design
with the same colour combination etc. as that of plaintiff company. A subsequent suit was
instituted in different court by the defendant company against the plaintiff company with same
allegation.
The court held that subsequent suit should stayed as a simultaneous trial of the suits in different
courts might result in conflicting the decision as issue involved in two suit was totally identical.
The objective behind Section 10 is to avoid two contradictory decisions in the same matter by
different courts. To overcome this the courts can pass an order of consolidation of both the suits.
In the case of Anurag and Co. and Anr. vs. Additional District Judge and Others, it was
explained that consolidation of suits is ordered under Section 151 for meeting the ends of justice
as it saves the party from a multiplicity of cases, delays and expenses. The parties are also
relieved from producing the same evidence at two different places.
The main purpose or the nexus behind this Section is that to bring an end to the litigation, to
avoid harassment over the defendant, to avoid wasting the resources of the court and to delay the
Court procedures. In the case of Guru Prasad v. Bijay Kumar [ AIR 1984 Orissa 209], it was
held that the main aim of this Section is to eliminate the outcome of two contradictory verdicts
for the same issue. But if the two suits are dealt conjointly by a particular Court to deliver justice,
then it would not be against this Doctrine.
9.CONCLUSION:
Res sub judice as a doctrine has the main purpose of reducing the burden of courts from
abundance cases. In other way it also reduces the burden of parties to adduce oral or written
evidence twice in different courts. It also avoids conflicting decisions and makes sure to
minimize the waste of resources of courts. The court can exercise this power and put a stay on
the subsequent suit. The people who try to misuse their right in order to get double benefits are
looked after through this principle. Anyways the Indian judiciary is overburdened with many
cases and if parties will start instituting cases twice then one can’t even imagine the situation of
the courts in giving decision in all such cases.
Q.6 Short note on Res judicata (Section 11)
1. MEANING:

"Res-judicata" consists of two Latin Words, 'Res' means a thing or a matter or a question and
'Judicata' means adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata''
means "a thing or matter already adjudged or adjudicated or decided". Res-judicata means "a
final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the
cause or matter in litigation, and over the parties thereto." The principal of Res judicata is based
on the need of giving finality to judicial decisions. When a matter whether on a question of fact
or a question of Law-has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher Court or because the appeal was
dismissed or no appeal lies, neither party will be allowed in a future suit or proceeding between
the same parties to canvass the matter.
No Court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised and has been heard and finally decided by such Court.
The intention of this doctrine is the parties of the suit should not be harassed to against the same
issue or matter already decided between them and the time of court should not waste over the
matters that ought to have been and should have been decided in the former suit between the
parties. This doctrine known as Constructive res judicata
2.EXPLANATION:
The expression "Former Suit" shall denote a suit which has been decided prior to the suit in
question whether or not it was instituted prior thereto.
For the purposes of this section the competence of Court shall be determined irrespective of any
provisions as to a right of appeal from the decision of such court.
The mater above referred to must in the former suit have been alleged by one party and either
denied or admitted, expressly or impliedly, by the other.
Any matter which might and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and substantially in issue in suit.
Any relief claimed in the plaint, which is not expressly granted by the degree, shall, for the
purposes of this section be deemed to have been refused.
Where persons litigate bona fide in respect of a public right or of a private right claimed, in
common for themselves and others, all persons interested in such right shall, for the purpose of
this section, be deemed to claim under the person so litigating.
An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such
issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such subsequent suit in which such ISSUE HAS
BEEN SUBSEQUENTLY RAISED.
3.ESSENTIAL CONDITION FOR RES JUDICATA:
1. The matter must be directly and substantially in issue in two suits.
2. The prior suit should be between the same parties or person claiming under them.
3. The parties should have litigated under the same title.
4. The court which determined the earlier suit must be competent to try the latter suit.
5. The same question is directly and substantially in issue in the latter suit.
6. The prior suit has been heard and finally decided.

4.OBJECT:

The doctrine of Res Judicata is based upon the following four maxims:

a. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the:
same cause.

b. Interest republicae ut sit finis Iitium: it is in the interest of the State that there should be an
end to a litigation.

c. Res judicata pro veritate occipitur: an judicial decision must be accepted as correct.

d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.

5.CONSTRUCTIVE RES-JUDICATA:

The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which

explains that where the parties have had an opportunity of controverting a matter, that should be
taken to be the same thing as if the matter has been actually controverted and decided. The object
of Expl. IV is to compel the plaintiff or the defendant to take all the grounds of attack or defence
which were open to him.

The principle underlying Expl. IV is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been actually
controverted and decided. It is true that where a matter has been constructively in issue it can not
be said to have beer actually heard and decided. It could only be deemed to have been heard and
decided.

The rule of Constructive res judicata is an artificial form of res judicata and provides that if a
plea could have been taken by a party in a proceeding between him and his opponent, he should
not be permitted to take that plea against the same party in a subsequent proceeding with
reference to the same subject matter. That clearly is opposed to consideration of Public Policy.
Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments
pronounced by Courts would also be materially affected.
In Forward Construction Co. Vs. Prabhat Mandai AIR 1986 S.C., the Court observed that
"an adjudication is conclusive and final not only as to the actual matter determined but as to
every other matter which the parties might and ought to have litigated and have had it decided as
incidental to or essentially connected with the subject matter of the litigation and every matter
coming within the legitimate purview of the original action both in respect of the matters of
claim or defence."

6.Waiver of Plea of res-judicata: The plea of res judicata is not one, which affects the
jurisdiction of the Court. The doctrine of res judicata belongs to the domain of procedure and the
party may waive the plea of res judicata. Similarly, the Court may decline to go into the question
of res judicata on the ground that it has not been properly raised in the proceedings or issues.

7.Res-judicata between co-defendants: A matter may operate as res-judicata between co-

defendants and co- plaintiffs if the following conditions are satisfied:
a. There must be conflict of interest between the co-defendants.
b. It must be necessary to decide that conflict in order to give relief to the plaintiff.
c. The question between the co- defendants must have been finally decided; and
d. The co- defendants were necessary or proper parties in the former suit.

8. EXCEPTIONS TO RES JUDICATA

Cases where Res Judicata does not apply

The principle of res judicata does not apply in the Writ of Habeas Corpus as far as High Courts
are concerned. Article 32 gives power to the Supreme Court to issue writs and some power is
given to High Courts under Article 226. The Courts need to give proper reasoning while
applying the doctrine of res judicata. There are some exceptions to res judicata which allow the
party to challenge the validity of the original judgment even outside the appeals. These
exceptions are usually known as collateral attacks and are based on jurisdictional issues. It is not
based on the wisdom of the earlier decision of the court but the authority to issue
it. Res judicata may not be applicable when cases appear that they need
relitigation. 

Instalment Supply private limited vs. Union of India In the cases of income tax or sales tax,
the doctrine of res judicata does not apply. It was discussed in the case of Instalment Supply
private limited vs. Union of India where the Supreme Court held that assessment of each year is
final for that year and it will not govern in the subsequent years. As it determines the tax only for
that particular period. 

8.CONCLUSION:

The Doctrine of Res Judicata can be understood as something which restricts either party to
“move the clock back” during the pendency of the proceedings. The extent of res judicata is wide
and it includes a lot of things which even include Public Interest Litigations. This doctrine can be
applied outside the Code of Civil Procedure and covers a lot of areas which are related to the
society and people. The scope and the extent have widened with the passage of time and the
Supreme Court has elongated the areas with its judgments.
Q. 7 Short note on foreign judgment.
1.MEANING:

S.2(6) defines the foreign judgment as the "judgment of a foreign Court". The term foreign Court
has been defined in s. 2(5) as a Court situate outside India and not established or continued by
the authority of the Central Government. The examples of the foreign Courts are the Courts in
England, Pakistan, Ceylon etc.

Object: The judgment of a foreign Court is enforced on the principle that where a Court of
Competent Jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that
claim. Section 13 embodies the principle of res-judicata in foreign judgments. This provision
embodies the principle of private International Law that a judgment delivered by a foreign Court
of competent jurisdiction can be enforced in India.
Example: A sues B in a foreign Court. The suit is dismissed. The judgment will operate as a bar
to a fresh suit by A against B in India on the same cause of action.

Conclusive Nature: Section 13 of the code provides that a foreign judgment shall be conclusive
as to any matter thereby directly adjudicated upon between the same parties or between- parties
under whom they or any of them claim litigating under the same title except as specified in
clauses (a) to (f) of Sec. 13.

2.JURISDICTION TO FOREIGN COURTS:

The following circumstances would give jurisdiction to foreign courts:

1. Where the person is a subject of the foreign country in which the judgment has been obtained;
2. Where he was a resident in the foreign country when the action was commenced and the
summons was served on him;
3. Where the person in the character of plaintiff selects the foreign court as the forum for taking
action in which forum he issued later;
4. Where the party on summons voluntarily appeared; and
5. Whereby an agreement, a person has contracted to submit himself to the forum in which the
judgment is obtained.

3.BINDING NATURE OF FOREIGN JUDGMENTS PRINCIPLES

The Code of Civil Procedure provides that a foreign judgment shall be conclusive as to any
matter thereby directly adjudicated upon between the same parties pr between parties under
whom they or any of them claim litigating under the same title except -

a) Where it has not been pronounced by court of competent jurisdiction;

b) Where it has not been given on the merits of the case;
c) Where it appears on the face of the proceeding to be founded on an incorrect view of
international law or a refusal to recognize the law of India in cases in which such law is
applicable;
d) Where the proceeding in which the judgment was obtained or opposed to natural justice;
e) Where it has been obtained by fraud;
f) Where it sustains a claim founded on a breach of any law in force in India

4.WHEN FOREIGN JUDGEMENT NOT BINDING:

ACCORDING TO SECTION 13 UNDER THE FOLLOWING SIX CASES, A FOREIGN

JUDGMENT SHALL NOT BE CONCLUSIVE –

1)Foreign Judgement not by a Competent Court.

2) Foreign Judgment not on merits.
3) Foreign Judgment against International or Indian Law
4) Foreign Judgment opposed to Natural Justice; Foreign Judgment obtained by fraud
5) Foreign Judgment founded on a breach of Indian Law.

Foreign Judgment Not by Competent Court: A foreign judgment must be pronounced by a

Court of competent jurisdiction and must be by a Court competent both by the law of the State
which has constituted it and in an International sense and it must have directly adjudicated upon
the 'matter' which pleaded as res-judicata. Only the judgment and not the reasons for the
judgment is conclusive.

Foreign Judgment Not on Merits: A judgment is said to be given on merits when, after taking
evidence and application of mind, the Judges decide the case one-way or the other. The dismissal
of suit for default of appearance or non-production of the document by the plaintiff or passing of
decree due to default of defendant in furnishing security are not on merits and cannot be
conclusive.

Foreign Judgment Against International or Indian Law: The mistake of International or

Indian Law must be apparent on the face of the proceedings. In Narsimha Rao V. Venkata
Lakshmi (1991) 3 SCC, the Court held that "when a foreign judgment is founded on a
jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which
is in defiance of the law. Hence, it is not conclusive of the matter adjudicated therein and,
therefore, not enforceable in this country.

Foreign Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court
must e after the observation of the judicial process, i.e., the Court rendering the Judgment must
observe the minimum requirements of Natural Justice. The judgment to be conclusive must be
composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable
notice to the parties to the dispute and to afford each party adequate opportunity of presenting his
case.

Foreign Judgment Obtained by Fraud: It is the fundamental Principle of Private international

Law that a Foreign Judgment is obtained by fraud, it will not operate as res-judicata. It is the
settled preposition of law that a judgment or decree obtained by playing fraud on the Court is a
nullity and non est in the eye of law. Such a judgment/decree by the first Court or by the highest
Court has to be treated as a nullity by every Court, whether superior or inferior. It can be
challenged in any Court even in collateral proceedings.
In the leading case of Satya v. Teja Singh, where a husband obtained a decree of divorce
against his wife from an American Court averring that he was domiciled in America. Observing
that the husband was not a bonafide resident or domicile of America, and he had played fraud on
a foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that
the decree was without jurisdiction and a nullity.

Foreign Judgment Founded on Breach of Indian Law: It is implicit that the foreign law and
foreign judgment would not offend against our public policy. A foreign judgment, for a gambling
debt or on a claim which is barred under the Law of Limitation in India is not conclusive.

Presumption as to foreign judgements: Section 14 provides that "the Court shall presume,
upon the reduction of any document purporting to be certified copy of the foreign judgment, that
such judgment pronounced by a Court of Competent jurisdiction unless the contrary appears on
the record; but such presumption may be displaced by proving want of jurisdiction."

5.ENFORCEMENT OF FOREIGN JUDGMENTS: A CONCLUSIVE JUDGMENT U/S 13

CAN BE ENFORCED IN INDIA IN THE FOLLOWING TWO WAYS: -

1) By Instituting a suit on such Foreign Judgment: A foreign judgment may be enforced by

institution of 36 a suit within a period of 3 years from the date of the foreign judgment. The
Apex Court has held in Roshan Lal V Mohan Singh AIR 1975 SC that any decision of a foreign
Court, Tribunal or Quasi-judicial authority is not enforceable in a Country unless such decision
is embodied in a decree of a Court of that Country; or

2) By Institution of Executing Proceedings: A foreign judgment may be enforced by way of

execution proceedings as per specified U/s 44-A of the Code and where all the conditions of S.
13 (a) to (f) are satisfied.

6.FOREIGN AWARDS:

Principles laid down in the section do not apply- It is not open to the party, who is party to the
award, to contend that the award was not given on merits of the case. Say that if the award was
given against the rules of natural justice or it was fraudulently obtained, the party may not be
prevented from putting forward those contentions. But it is difficult to accept the view that
because on a foreign judgment it is open to a party to contend that it was not given on the merits
of the case, it is equally open to a party who is resisting the suit on the award to contend that the
award was not given on the merits of the case.
Only if the award given in a foreign country is reinforced by a decree of the Court of that country
the courts will be bound to take notice of it but without such a decree reinforcing such award, the
award must be deemed to be non-existent.
7.CONCLUSION:
Thus a bare reading of section suggests that a foreign judgment would be conclusive as to any
matter thereby directly adjudicated upon between the same parties. Hence, we can conclude that
a judgment of a foreign Court creates estoppel or res judicata between the same parties, provided
such judgment is not subject to attack under any of the clauses (a) to (f) of Section 13 of the
Code.
If any claim is made by any party and subsequently abandoned at the trial of a suit and if the
decree in that suit necessarily implies that claim has not met with acceptance at the hands of the
court, then the court must be deemed to have directly adjudicated against it.

Q. 10 Define Summons and different modes of serving summon?

Ans

A Summon is a document issued by a Court to a person or an entity involved in a legal

proceeding. A summons issued by court may be served on a person or an entity calling upon
them to appear/remain present before the Court. The summon may be issued either to a person
accused of a crime or to a witness in a legal proceeding. It is a clear and specified document. The
summons contains the time and date of appearing in the specified court. The person, to whom the
summons has been served, has to appear in the court on the date, specified under the summons. 

The things which should consider in case of summons are:

 It should be clear and specified,
 It must be attested the seal of the court
 There must be the name and address of the person summoned
 There must be the date, time and place given in the summon when the person
summoned is required to present in the court
 Summon must contain the nature of the offence committed.
The summons which is not bear all these things are invalid.

The objects of the summons are to:

 Providing the information to the defendant that a suit has been instituted against
him.
 For the principle of natural justice
 The court may direct the defendant to file the written statement in his defence
Modes of Serving Summons
The modes of serving summons are defined in CPC and CrPC for civil cases and criminal cases
respectively.

The Civil Procedure Code, 1908 provides for the following modes of service[iii] of summons:

1. Service by Court
Order V, rule 9 states that where the defendant or his agent empowered to accept the service
resides within the jurisdiction of the Court in which suit is instituted, the summons shall be
delivered or be sent to the proper officer to be served or sent to a Court-approved courier service.
Sub-rule (3) of this rule states that such a service may be made by delivering or transmitting a
copy by registered post acknowledgement due to either the defendant or such agent by speed
post or a Court approved courier service.

Sub-rule (5) states that return of acknowledgement or receipt signed by the defendant or his
agent, or the return of postal article containing summons along with the endorsement by the
relevant postal officer/employee of refusal to take delivery shall be declared by the court as due
service.

2. Service by Plaintiff
As per the provisions of Order V, Rule 9A, in addition to the service of summons under rule 9,
the Court may, on an application by the plaintiff, permit such plaintiff to affect the service of
summons upon the defendant.

If such service is refused, or if the person served refuses to sign the acknowledgement of service
or for any reasons the summons were not served personally, then, the Court shall reissue such
summons on an application of the party.

3. Service on Agents
Order V, Rule 13 states that when a suit regarding business or work is filed against a person who
does not reside within the jurisdiction of the Court issuing summons, then the summons being
served on any manager or agent personally carrying out such business or work shall be
considered god service.

Order V, Rule 14 states that when in a suit to obtain relief with respect to immovable property
service cannot be made on the defendant or his agent empowered to accept such service then the
service must be made on any agent of the defendant who is in charge of the property.

4. Service on Adult Member of Family

According to the provisions of Order V Rule 15, where the defendant is absent from his
residence at the time of service of the summons and there is no likelihood of him being found
within a reasonable period of time and he has no agent empowered to accept service on his
behalf, the service may be made to any adult member of the family residing with him.

5. Service When Defendant Refuses to Accept Service

Rule 17 of Order V provides for the procedure when the defendant refuses to accept service or
cannot be found after due and reasonable diligence. In such a case, the serving officer must affix
a copy of the summons on the outer door or some other conspicuous part of the house in which
the defendant ordinarily resides or carries on business or personally works for gain.

The serving officer shall thereafter return the original summons to the Court that issued it along
with his report stating that he affixed the copy, the circumstances under which he did so, and the
name and address of the person who identified the house and in whose presence the copy was
affixed.

6. Substituted Service
The provisions of Order V, Rule 20 provide for substituted service. Such a mode of service can
be adopted by the Court when it is satisfied that the defendant is keeping away for the purposes
of avoiding service or for any other reason the service cannot be made in an ordinary manner.
This legal position was reiterated in Dhal Singh Kushal Singh v Anandrao Kakde[iv].
As per this rule, the Court shall order that a copy of the summons be affixed on some
conspicuous place in the Courthouse and also on some conspicuous part of the house in which
the defendant is known to have last resided or carried on business or personally works for gain.

The court can also order service by advertising in a daily newspaper that is circulated in the
locality in which the defendant is known to have last resided, or carried on business or personally
works for gain.

In Chandergupt Arora v Smt Shaheen Khan & Others[v], the Court was of the view that service
through publication is an extraordinary step. Before adopting such a mode, the Court must be
satisfied that either the defendant is purposefully avoiding the receipt of summons or it is not
possible to serve the summons in an ordinary manner. The court also observed that in these days
of mechanical life, the premises were locked at a certain point of time cannot be the sole ground
for permitting substituted service.
7. Service When Defendant Resides Within Jurisdiction of another Court
When the summons is to be served upon a defendant residing in the jurisdiction of another Court,
then, as per Rule 21 of Order V, the Court issuing the summons may send it to the other Court
through one of its officers or by post, or by Court-approved courier service or by fax message or
email.

8. Service on Defendant in Prison

Rule 24 of Order V of CPC states that when a defendant is confined in a prison, then, the
summons may be sent or delivered to the officer in charge of the prison by post, courier, fax
message, email or any other means as provided under the rules made by the High Court.

9. Service of Summons Abroad

As per Rule 25 of Order V, when the defendant resides out of India and has no agent in India
empowered to accept service, then, the summons shall be sent to the defendant at the place where
he is residing and send the same to him by post, courier service, fax message, or email.

In civil cases, avoiding and non-compliance of service of summons can lead to an ex-parte
decree against the defendant.
Q. 12 Suit is representative capability?
Ans –
A representative suit is a suit filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit.

Order I Rule 8 of the Code of Civil Procedure 1908 deals with representative suit. 

As a general rule all persons interested in a suit ought to be joined as parties to it, so that the
matter involved therein maybe finally adjudicated upon a fresh litigation over the same matters
may be avoided. A representative suit is an exception to this rule. Order I rule 8 of IPC provides
that when there are Number of persons similarly interested in a suit, one or more of them can,
with the permission of court or upon a direction from the court, sue or to be sued on behalf of
themselves and others. The plaintiff in a representative suit need not to be obtain the previous
consent of the person to whom he seeks to represent.

The object underlying this provision is really to facilitate the decision of questions in which a
large number of person are interested without recourse to the ordinary procedure.  Order I rule 8
of the code has been framed in order to save time and expense, to ensure a single comprehensive
trial of questions in which numerous persons are interested and avoid harassment to parties by a
multiplicity of suits.

Conditions
For the application this rule, following conditions must exist...
1. The Parties must be numerous.
2. They must have the same interest in the suit.
3. The permission must have been granted or direction must have been given.
4. Notice must have been issued to the parties to whom it is proposed to represent.

Case law
T. N Housing Board vs Ganapathy,1990

In this case residential building we are allotted by the housing board to the applicants who
belongs to the low-income group. After settlement of price excess demand was made by the
board. The allottees challenged the demand by filing suit in a representative capacity. It was
contended that such a suit in a representative capacity was not maintainable as separate demand
notice were issued against each of the allottees, given rise to separate causes of action.
Negativing the contention the Supreme court held that all of them had the same interest and
therefore the suit was maintainable.

In representative the object is to facilitate the decision of questions in which a large number of
persons are interested without recourse to ordinary procedure. The main object us to avoid
numerous suits being filed for decision of a common question. All persons must have same
interest in the suit and permission marks been granted by the code moreover notice must have
been granted by the court. Moreover, notice must have been issued to the parties to whom it is
proposed to represent in the suit.

Addition or Substitution of Parties

Any person on whose behalf a suit is filed all defended under sub rule one may apply to the court
to be added as a party to the suit. Such person must make an application without delay showing
that the conduct of the suit is not in proper hands and that his interests will be detrimentally
affected if he is not joined as party to the suit. This is to prevent any delay that may be caused in
filing a fresh suit by such party.
Further, by way of sub rule 5, the Court may substitute any person suing or defending in a
representative capacity, if he does not proceed with due diligence. Any other person having the
same interest may be placed in his stead.

Withdrawal or Compromise
In order to abandon any claim under (1), or withdraw a suit under sub rule (3) of Order 23, or
reach an agreement, compromise, or satisfaction, notice to all persons interested must be given at
plaintiff’s expense in accordance with the procedure given under sub rule(2).

Additionally, any such agreement, compromise, or satisfaction must be entered into only by the
leave of court, and any agreement, compromise, or satisfaction recorded without the Court’s
leave shall be void.

Decree
A decree passed under a representative suit shall be binding on all persons on behalf of whom
the case is filed or defended. It operates as Res Judicata.

Abetment
The Bombay High Court, in Bhicoobai v. Haribai Raguji held that “The suit does not abate if a
person appointed to conduct it dies. Other person(s) interested in the suit may proceed with it or
may apply to be added as plaintiff(s).” This is because such a person is merely the representative
of all persons who are constructively parties to the suit.

Conclusion
Thus, a representative suit eases the burden of Court where several people maybe interested in
the outcome of a litigation by preventing multiplicity of suits. It enables the Court to decide
matters involving a community of interest.
Q. 13. Pleading and amendment of pleadings?
Ans
What is pleading?
Pleadings are the statements which are the backbone of every civil suit. No civil suit will come
into existence if there are no Pleadings. Pleadings have been defined under Order 6 Rule 1 of
CPC which states that Pleading shall be Plaint or Written Statements. 
Pleadings have been defined under Order 6 Rule 1 of CPC which states that Pleading shall be
Plaint or Written Statements.
Plaint is the statements filed by the Plaintiff in a Civil Court to prove his claim whereas Written
statements are the statements defined in Order 8 Rule 1 of CPC which states that defendant
should file written statements in 30 days from the date of issuance of the summons.
Plaint has not defined in CPC but it can be termed as pleadings of Plaintiff from which civil suit
is initiate Pleadings should be properly drafted and it should not contain any vague or
unambiguous statements. Pleadings are those material facts which helps plaintiff to define the
cause of action and defendant to establish his defense in a civil suit.
Rules of pleadings
1. Pleading should contain the facts but no law should be applied. Only the court has the power
to apply the law on the basis of fact stated in the Pleadings.
2. Pleadings should contain material facts. Parties should avoid using immaterial or irrelevant
facts in the Pleadings.
3. Parties should not give the evidence in the pleadings from which facts are
4. Pleadings should contain the material facts in the brief form. Parties should avoid using
irrelevant or immaterial statements while drafting the Plaint.
Order VI of Rule 17 of CPC, 1908
Amendment to Pleading
1. the Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments shall be
made as may be necessary for the purpose of determining the real questions in controversy
between the parties.
2. Provided that no application for amendment shall be allowed after the trial has commenced,
unless the court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.”
Stages where the pleadings can be amended
1. The Provision related to Amendment of Pleadings gives power to the civil court to allow
parties to alter, amend or modify the pleadings at any stage of proceedings.
2. Provision for Amendment of pleadings has been stated in Order 6 Rule 17 of the Code of civil
procedure. But the court will allow amendment only if this amendment is necessary to determine
the controversy between the parties. The purpose of this provision is to promote ends of justice
and not to defeat the law.
3. The Proviso of Order 6 Rule 17 states that court will not allow application of amendment after
the trial has been commenced unless court comes to the conclusion that party did not raise the
relevant facts before the commencement of the trial.
4. This proviso gives discretionary power to the court to decide on the application of pleadings
after the commencement of the Trial. An institution of the suit is necessary for applying for
amendment of pleadings.
5. This provision was deleted by the Civil Procedure (Amendment) Code, 1999. This omission
was made to ensure consistency in new changes in the civil code.
6. But later, it was restored by the Civil Procedure (Amendment) Code, This amendment has
given power to the court to allow application of the pleadings with some limitation.
Why court allows the Amendment
1. The primary objective for the court to allow application for Amendment of Pleadings is secure
the ends of the justice and prevent injustice to other parties.
2. Also, this amendment is necessary for the purpose of determining the real questions in
controversy between the parties.
3. Amendments of pleadings help the parties to correct its mistakes in the pleadings.

In the case of Cropper v. Smith, the court stated that the object behind amendment of pleadings
is to protect the rights of the parties and not to punish them for the mistake made by them in the
pleadings.

In the case of Kishan Das Vithoba Bachelor, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:
 This grant of leave should not leads to the injustice to other party.
 This Amendment of pleadings is necessary for determining the real question of controversy
between parties.

Amendment of pleadings when refused

1. Application of amendment of Pleadings is rejected by the court when this amendment is not
necessary for determining the real question of controversy between parties.
2. Application of amendment of pleadings is rejected when it leads to the introduction of a totally
new case.
3. When the Plaintiff or defendant is negligent.
4. When proposed alteration or modification is unjust.
5. Application for Amendments of Pleadings is refused when it violates the legal rights or cause
injustice to the other party.
6. Leave to amend is refused when it leads to the needless complications in the case.
7. Leave to amend is refused when there has been excessive delay by the parties in filing the suit.
8. Application of Amendment is refused when it changes the nature of the disputes.
9. The court will not grant application of amendment of pleadings if it is made with mala fide
intention.
10. Where several opportunities are given to parties to apply for amendment of pleadings. But
they failed to make an application.

Procedure for filling application for amendment

Step-1
Firstly the Plaintiff or Defendant who wants to amend its pleadings can write an application for
the amendment of pleadings to the concerned civil court
Step-2
After drafting the application applicant needs to produce the application before the concerned
civil judge.
Step-3
He has to pay a required court fee under court fees Act, 1870
Step-4
Applicant needs to tell the purpose of the alteration in his application.
Step-5
Judge will read the application and if he thinks fit that this alteration or amendment is necessary
for the purpose of determining the real questions in controversy between the parties Than he will
grant permission for amendment for pleading.
Step-6
After getting the order from the court, the applicant needs to file new pleadings within the
prescribed time and if no time has been prescribed by the court then he needs to file it in 14 days
from the date of order.
Step-7
He also needs to give a copy of altered pleadings to the opposite party.
Q. 15 Rejection of plaint
Ans
The plaint is filed for the institution of the suit in the Civil/Commercial Courts. A court dealing
with civil matters will be governed by the provisions of the Code. Order VII of the Code of Civil
Procedure is envisaged with the provisions of the rejection of the plaint by the Court. It is the
duty of the Court to examine the plaint thoroughly and decide whether the plaint should be
admitted or sent back for making amends to it.
Under the CPC nowhere has it been defined that what is ‘rejection of plaint’ but grounds on
which a plaint is rejected are mentioned under Order 7 Rule XI. It mentions four grounds on
which a plaint can be rejected.
Rejection of plaint- the section specifies the grounds under which the plaint can be rejected:—
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite
stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
Order 7 rule 11 Cause of Action - When the cause of action is not mentioned in the plaint
Cause of Action has been mentioned under a lot of provisions in the Code of Civil Procedure. It
is a set of allegations or facts which make up for the ground of filing a civil suit in the Court.
One instance of the mention of Cause of Action is under Order II Rule 2 of the Code. Therein, it
has been stated that for the purpose of instituting a suit, the cause of action needs to be explicitly
mentioned in the plaint. If it has not been mentioned, then the plaint will be rejected by the
Court.
It is the sole reason why a civil suit exists in the first place. It specifies the legal injury which the
person who is instituting a suit has suffered. It also has the remedy or relief which the plaintiff is
going to ask the Court to grant. The person instituting such suit also needs to prove certain
elements i.e. 1. That there existed a duty, 2. The occurrence of a breach of that duty, 3. The cause
of such a breach and 4. The damages incurred by the plaintiff. Thus, if the plaint does not allege
the facts which are required for furthering the claim of the plaintiff, the plaint shall be dismissed
by the Court citing the grounds for such dismissal.
The term Cause of Action has been mentioned in Order II Rule 2 wherein it has been stated that
no person shall be troubled more than once for the same cause of action. The principle behind
this rule is that the plaintiff has to include all the claims at once in the suit which he is instituting.
The test for the Courts is that the cases falling under this particular provision of the Code must
answer the question that the claim in the new suit is found upon a different cause of action.
However, the plaintiff is at full liberty to omit any part of the claim.
Joinder of Causes of Action
Several causes of action can be unified into one by the plaintiff against the defendant or several
defendants jointly. (Order II Rule 2 of the Code)
Any plaintiffs who are interested in the same legal remedy and have the same cause of action
may unite them into one in the same suit. However, if such joinder of causes of action
embarrasses or delays the trial of the court, it may order separate trials. (Order II Rule 6 of the
Code)
Order II Rule 4 of the Code lays down the situations in which the causes of action will not be
joined unless the Court has allowed doing so. Following are the exceptions to the same –
Claims for mesne profit or arrears of rent in respect of the property claimed or any part thereof;
Claims for damages for breach of any contract under which the property or any part thereof is
held;
Claims in which the relief sought is based on the same cause of action.
This rule provides for joinder of claims in suits.
A reference to Section 20 of the Code is necessary while discussing case laws in relation to cause
of action.
Section 20 states that suits have to be instituted at the place where the cause of action arises,
either in part or wholly. Even though the cause of action is a set of facts alleged but it does not
contain all the evidence required for proving the allegations.
Notices under Section 80 of the Code are not included in Cause of Action. The production of
notice to the Government or public officer is one of the preliminary steps for filing a suit against
them.
Misjoinder of Cause of Action
When multiple causes of action are being unified together in the suit which cannot be joined
together, there can be no such joinder. All objections concerning the misjoinder of causes of
action need to be addressed as early as possible. It is presumed that if an objection is not raised
against the misjoinder, this right is deemed to be waived off.
Undervalued relief claimed in the suit
If it is brought to the knowledge of the court, that the valuation of the suit if fabricated or
baseless, the court can order the plaintiff to re-evaluate the amount and may allow sufficient time
for the correction. Subsequently, the plaint can be rejected if the plaintiff fails to abide by.
Insufficient Stamps Under the Court Fee Act, 1870
The recording of the plaint initiates each suit, one of the prerequisites for the correct institution
of the suit is that it must be appropriately stamped for the reasons for the court fees under the
Court Fee Act, 1870. If the plaint is lacking stamp, the court dismisses the plaint under Order VII
Rule 11 of CPC and give an adequate time to explain the reason for disappointments.
Order 7 rule 11 – Locus Standi
To file a suit, the offended party needs to have a locus standi. One needs to show that some
legitimate right of the individual has been damaged. Such infringement ought to likewise bring
about some damage caused to the individual.
If no lawful right has been disregarded, the individual would not have a locus standi for
recording a suit. The gathering fundamentally can show the Court that there was an adequate
reason for activity behind the documenting of the suit.
The locus standi of the suit relies on whether any grounds were abused which brought about the
dismissal of the plaint.
When the statement of the suit appears to be barred by the law
It is important to note that, when the suit filed appears from as barred by any statute and gives no
such right to the plaintiff for instituting the suit, it shall be liable to be rejected.

When the plaint of not filed in duplicate

When a suit is to be instituted, a duplicate copy must be submitted. Failing which, the court has
the right to dismiss or reject the lawsuit.
Two modes of rejecting a plaint
1. The defendant can apply the form of Interlocutory Application at any stage of the procedures.
2. Suo moto rejection - Order VII Rule 11
By its motion, the court can, on its own, try or reject the suit, if the conditions mentioned
explicitly in CPC, are fulfilled.
Q. 16 Written Statement, Set off and Counter claim?
Ans
A civil suit is instituted by filing a plaint in the appropriate court which has jurisdiction over the
subject-matter. A plaint is filed by the plaintiff. Similarly, the defendant has to file a written
statement, i.e., response to the content in the plaint.
This written statement, in some cases, is accompanied by set-off and counter-claim. So, set-off
and counter-claims are the cross-claims done by the defendant and these cross-claims cannot be
contested unless they are accompanied by the written statement. A written statement is a reply to
the plaint, and such reply has to be given within 30 days the date of the filing of the plaint.
Actually, it is a pleading of the defendant in the answer of the plaint led by the plaint against
him. It is a reply statement of the defendant in a suit specifically denying the allegations made
against him by the plaintiff in his plaint.
Who may be written statement
A written statement may be filed by the defendant or by his duly authorized agent. In the case of
more than one defendants, the common written statement led by them must be signed by all of
them. But it is sufficient if it is verified by one of them who is aware of the facts of the case and
is in a position to le an affidavit. But a written statement led by one defendant does not bind
other defendants.
Time limit for ling written statement
A written statement should be led within thirty days from the service of the summons on him.
The said period, however, can be extended up to ninety days,(Rule -1). A defendant should
present a written statement of his defence in the said period.

Defences in written statement

In written statement defendant can specifically deny the allegations made in the plaint by the
plaintiff against him. Besides this, he also can claim to set-off any sums of money payable by the
plaintiff to him as a counter defence (Order 8 Rule 6). Further, if the defendant has any claim
against the plaintiff relating to any matter in the issue raised in the plaint, then he can separately
le a counter-claim along with his written statement. It is provided in Order 8 Rule 6A to 6G of
the code.
Meaning and definition of set off
1. The meaning and the definition of set off are not given in the Civil Procedure Code and
are deciphered from the Judicial Interpretation.
2. In simple language, set off is a cross claim against the claim of the plaintiff.
In Cool All Corporation vs. Miss. Jane A. Vaz, in this case, the plaintiff contended that the
defendant had borrowed money from the plaintiff for financial assistance which amounted to Rs
1,40,000 at @ 18% p.a interest rate. On the other hand, the defendant contended that the plaintiff
had approached him to execute certain work for the plaintiff. The works entrusted to the
defendant were of electrification, water supply(plumbing), and sanitary works.
The Hon’ble High Court of Karnataka held that it would not be a fit case of set off as pleaded by
the defendant. This was actually a case of adjustment of the value of work affected by them, with
a counter claim for the alleged balance of the amount due to them from the plaintiff.
Further, the Hon’ble High Court of Karnataka, in this case, defined and held that;
1. The set off and counterclaim is not defined in the Civil Procedure Code, both these words
are construed by Judicial Interpretation. Both these words are derived from “Equity”.
For example; A sues B on a bill of exchange for Rs 500. B holds a judgment against A for Rs.
1,000. The two claims being both definite, pecuniary demands may be set off.
2. The set off is called a cross claim (not as a counter claim)
Essential Conditions:
1. A defendant may claim a set-off, if:
2. The suit is for the Recovery of money;
3. The sum of money must be ascertained;
4. Such sum must be legally recoverable;
5. It must be recoverable by the defendant or by all the defendants, if not more than one;
6. It must be recoverable by the defendant from the plaintiff(s);
7. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
8. Both the parties must fill in the defendant's claim to set-off, the same character as they fill in
the plaintiff's
Types of set off
There are more than two types of set off but we are discussing only two types of set off and these
two types of set off are discussed by the courts in different cases.
There are two types of set off:
1. Legal set off
2. Equitable set off
1. Legal set off
 The legal set off is provided in the Order VIII Rule 6(1) of the Code of Civil Procedure,
1908, and all the essential elements present in the Rule 6(1) will requisite conditions for
claiming legal set off.
 The legal set off is provided in the case where the amount is ascertained.
 The legal set off shall be pleaded by the defendant within the limitation period.
 The defendant has to pay court fees in the legal set off.
2. Equitable Set off
 The concept of equitable set off comes from “equity, justice, good conscience”. The
equitable set off is not provided in the Code of Civil Procedure, 1908.
 It is an independent provision.
 The equitable set off is given at the discretion of the court.
 The plea raised by the defendant is not a matter of right of the defendant but it is a matter of
discretion of the court.
 In equitable set off court fees may or may not be paid.
Difference between legal set off and equitable set off

Particulars Legal Set off Equitable Set off

The concept of legal set off is provided

The concept of equitable set off is provided
Concept in Order VIII Rule 6(1) under Code of
under “equity, justice, good conscience”.
Civil Procedure, 1908.

The equitable set off is granted on the facts and

The legal set off shall be claimed as a
Legal aspect circumstances and on the discretion of the
matter of right. 
court.

In the legal set off the amount which is In the equitable set off the amount which is
Recovery of
recovered is ascertained and within the recovered must be ascertained and the case is
money
pecuniary jurisdiction of the court. admitted at the discretion of the court.

In the equitable set off the court fees may not

In legal set off the court fees are to be
Court fees  be paid by the defendant and it depends on
paid by the defendant.
different facts and circumstances of the case.

The claim for equitable set off is accepted

Limitation
It is within the limitation period. beyond the limitation period, it is at the
period
discretion of the court.

Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit
against the plaintiff. It is a claim independent of and separable from plaintiff's claim which can
be enforced by a cross section. Counter-claim can be set up in respect of action accruing to the
defendant either before or after the filing of the suit but before the defendant has delivered his
defense or before the time fixed for delivery of his defense has expired.
Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court. The
counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to
it. Counter-claim can be filed after filing of written statement.
In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is
referable to the date of accrual of cause of action. If the cause of and such action had arisen
before or after filing of the suit, cause of action continued up to the date of filing of the suit and
such cause of action continued up to the date of filing written statement or extended date of filing
plaintiff statement, then such counter claim can be filed even after filing the written statement.
Who may file counterclaim?
Normally, it is the defendant who may file a counterclaim against the plaintiff. But incidentally
and along with the plaintiff, the defendant may also claim relief against the co-defendants in the
suit. But a counterclaim solely against co-defendants is not maintainable.
When counterclaim may be set up?
A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action
accruing either before or after filing of the suit, provided such claim is not barred by limitation.
Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court can
pronounce a final judgment both on the original claim and the counterclaim. The counterclaim of
the defendant will be treated as a plaint and the plaintiff has a right to file a written statement in
answer to the counterclaim of the defendant.
The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued,
dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will have
a right to get a decree for a counterclaim as claimed in the written statement. If the plaintiff does
not file any reply to the counterclaim made by the defendant, the court may pronounce the
judgment against the plaintiff in relation to the counterclaim made against him or make such
order in relation to the counterclaim as it thinks fit.268 The counterclaim shall be treated as a
plaint and will be governed by the rules applicable to plaints. Similarly, a reply filed in answer to
a counterclaim shall be treated as a written statement and governed by rules applicable to written
statements.
Difference between set off and counter claim 

Particulars Set off Counter claim

Counter claim is provided under Order

Legal The set off is provided under Order VIII Rule 6
VIII Rule 6A to Rule 6G of the code
Provision  of the Code of Civil Procedure, 1908.
of civil procedure, 1908.
 The object of set off is to give an opportunity
The object of the counter claim is to
Object  to the defendant to set up his claim for recovery
avoid multiplicity of proceedings.
of money from the plaintiff’s claim.

The counter claim can be claimed in

The set off can be claimed in the recovery of
Claim all other suits such as title, possession,
money suits only.
or in the injunction.

Scope It has a narrow scope or is related to money.  It has a wider scope.

The counter claim is a part of set off

Genesis The origin of the set off is from “equity”.
and has a wider scope.

Rule’s Set off the rules relating to written statements In counter claim rules relating to
applicability will be followed. plaint will follow.
Q. 17 What is ex-parte decree and remedies available against it?
Ans
When the suit is called out for hearing and the plaintiff appears and the defendant does not
appear and summons is duly served, the court may proceed ex parte against him and can pass a
decree called ‘ex parte’ decree.
The right to be heard in a suit is one of the important principles of the natural justice and our
Civil Procedure duly provides for such right to the party. Despite the sufficient opportunity
provided if a defendant absents from the court, when he called upon on the day of hearing
mentioned in the summons duly served on him, the court is empowered to proceed ex parte and
to pass an ex parte decree against such defendant under Order 9, Rule 6 (1) (a).
Order 9 Rule 13- Setting aside ex-parte decree
The defendant against whom a ex-parte decree is passed can file an application to the court
which passed such decree to set aside on two grounds:
 Summons was not duly served upon him
 He was prevented by sufficient cause to appear before court.
The court shall pass an order setting aside ex-parte decree upon such terms as to costs, payment
into court or otherwise as if it thinks fit and shall appoint a day for proceeding with suit, that is
restore the suit to its original position. Where the decree is of such a nature that it cannot be
seaside as against such defendant only it may be set aside as against all or any of the other
defendants also.
An appeal under sec. 96
To prefer an appeal against such decree under Section 96(2) of CPC. An ex-parte decree is a
decree under Section 2(2) of CPC, therefore an appeal can be filed under Section 96(2) of the
Code. He can file both appeal under section 96(2) of CPC and application under Order9 Rule 13
simultaneously.
An appeal under Section 96(2) CPC is a statutory remedy. The right to appeal is not a mere
matter of procedure; but a substantive right. Right to appeal under Section 96(2) CPC
challenging the original decree passed ex- parte, being a statutory right, the defendant cannot be
deprived of the statutory right merely on the ground that earlier application filed under Order 9
Rule 13 CPC was earlier dismissed. [8] Observing that the right to appeal is a statutory right and
that the litigant cannot be deprived of such a right, the supreme court observed that: A right to
question the correctness of the decree in a first appeal is a statutory right.
A review application under sec. 114
Provisions of the Order 47 Rule 1 and section, 114 of the CPC empowers the court to review its
order if the condition precedent laid down therein are satisfied the substantive provision of law
does not prescribe any limitation on the power of the court except those which are expressly
provided under the sec.114 of the code in terms wherein it is empowered to make such order as it
deems fit.
Filing of a suit on the ground of fraud
A suit to set aside an ex parte decree is not maintainable. But if an ex parte decree is alleged to
have been obtained by the fraud by the plaintiff, the defendant can file a suit to set aside such
decree. It is settled law that fraud damages the most solemn transactions. In such suits, the onus
is on the party who alleges that the ex parte decree passed against him was fraudulent.
To maintain such action, it should be proved that the fraud alleged must be actual, positive fraud,
a mediated and intentional contrivance so as to keep the parties and the court under the dark so as
to obtain a decree by that contrivance.
The suit is maintainable despite unsuccessful application made under Rule 13 Order 9 or
rejection of application for an appeal.
Limitation
An application for setting aside an ex-parte decree can be made within 30 days from the date of
the decree under Article 123 of Limitation Act.
Conclusion
This Article is intended to guide people looking for remedies available to a defendant against
whom an ex-parte decree is passed under 0rder 9 Rule 6(2)(a). Its very unlikely that there will be
any deviation in remedies outlined above but it would be highly recommend to consult a lawyer
to see how applicable these remedies are in a particular case.
Q19 Framing of issue, types of issues and their importance.
1. Introduction
It is duty of court to frame issues from material propositions. To frame issues, court is to find out
questions of fact, questions of law and maxed questions of fact and law from pleading of parties
and other materials, which are produced with pleading. And parties are to produce their evidence
to prove or disprove frame issues.

Order XIV of the code of civil procedure, 1908 states that it is the duty of the court to frame
issues from Material Propositions. Here material propositions means those propositions of law or
fact which a Plaintiff must allege in order to show a right to sue or a Defendant must allege in
order to constitute his defence.
2. Relevant Provisions
Following are the relevant provisions of law regarding to the concerned topic
i. Order 14 Rule 1 to 6 of CPC 1908
ii. Order 18 Rule 2 of CPC 1908
iii. Order 20 Rule 5 of CPC 1908
iv. Order 41 Rule 31 of CPC 1908
v. Order 15 Rule 1 of CPC 1908

3. Definition of issue
“A single material point of fact or law in litigation that is affirmed by one side and denied by the
other and that subject of the final determination of the proceedings”.

4. Framing or Non-framing of Issues in case of Ex-parte Proceeding

Court should only frame issues when defendant has made his defense against suit through
submission of his written statement. However, court should not frame issues when defendant has
not appeared before court and, therefore, has not made his defense through submission of his
written statement.

5. Meaning of material Proposition

Material proposition are those propositions of law or fact which a plaintiff must allege in order to
show a right to sue or a defendant must allege in order to constitute his defense.

6. Kinds of issue
i. issues of fact
ii. Issues of Law

7. Object of framing issues

The object of framing issues it to ascertain the real dispute between the parties by narrowing
down the area of conflict and determining where the parties differ.

8. Duty of court
It is the duty of the judge himself to frame proper issues. Where parties are not satisfied, it is
their duty to get proper issues framed.

9. Matters to be considered before framing issues

i. Reading of the plaint and written statement
The court shall read the plaint and written statement before framing an issue to see what the
parties allege in it.

ii. Ascertainment whether allegations in Pleadings are admitted or denied

Order 10 Rule 1 permits the court to examine the parties for the purpose of clarifying the
pleadings, and the court can record admissions and denials of parties in respect of an allegation
of fact as are made in the plaint and written statement.

iii. Admission by any Party

If any party admitted any fact or document, than no issues are to be framed with regard to those
matters and the court will pronounce judgment respecting matters which are admitted.

iv. Examination of material proposition

The court may ascertain, upon what material proposition of law or fact the parties are at variance.

v. Examination of witnesses
The court may examine the witnesses for purpose of framing of issues.

vi. Consider the evidence

The court may also in the framing of issues take into consideration the evidence led in the suit.
Where a material point is not raised in the pleadings, comes to the notice of the court during
course of evidence the court can frame an issue regarding it and try it.

vii. Examination of any witnesses or documents under Order 14 Rule 4

Under this rule any person may be examined and any document summoned, for purposes of
correctly framing issues by court, not produced before the court.

10. Materials on which issue may be framed

The court may frame the issue from all or any of the following materials.

i. Allegations made on oath

Issues can be frame don the allegations made on oath by the parties or by any persons present on
their behalf or made by the pleader of such parties.

ii. Allegations made in Pleadings

Issue can be framed on the basis of allegations made in the pleadings.

iii. Allegations made in interrogatories

Where the plaint or written statement does not sufficiently explain the nature of the party’s case,
interrogatories may be administered to the party, and allegations made in answer to
interrogatories, delivered in the suit, may be the basis of framing of issues.

iv. Contents of documents

The court may frame the issue on the contents of documents produced by either party.

v. Oral examination of Parties

Issues can be framed on the oral examination of the parties.

vi. Oral objection

Issues may be framed on the basis of oral objection.

11. Amend or Strike out Framed Issues

Following points are important

i. Amendment of Issues
At any time before passing of decree, court can amend framed issues on those terms, which it
thinks fit. However, such amendment of framed issues should be necessary for determination of
matters n controversy between parties.

ii. Striking out of Issues

At any time before passing of decree, court can strike out framed issues especially when it
appears to court that such issues have been wrongly framed or introduced.

iii. Discretionary Power

Regarding amendment of frame issues, court possesses discretionary power. Court can exercise
this power when no injustice results from amendment of frame issue on that point, which is not
present in pleading. However, it cannot be exercised when it alters nature of suit, permits making
of new case or alters stand of parties through rising of inconsistent pleas.

iv. Mandatory Power

Regarding amendment of framed issues, court also mandatory power. In fact, court is bound to
amend framed issues especially when such amendment is necessary for determination of matters
in controversy, when framed issues of do not bring out point in controversy or when framed
issues do not cover entire controversy.

v. At any stage
Court can amend or strike out framed issues at any time before final disposal of suit.

Conclusion

To conclude, it can be state that issues are of great importance not only for parties, but also for
court. Parties are required to prove disprove framed issue and not their pleading. On the other
hand, court is bound to give decision on each framed issue. Therefore, court is not to decide
those matters on which no issues have been framed.
Issues are of great importance not only for parties but also for court. Parties are require to prove
or disprove framed issues and not pleadings, and on the other hand, court is bound to give
decision on each framed issue and therefore court is not bound to decide those matters on which
no issues have been framed.
Q22 Commission, its purpose, and procedure.

Introduction

The concept of Commission is an important subject matter in the branch of CPC.

Commission is an impartial person who is appointed by the Court and act as an agent of the
Judge. The power of the Court to issued Commission by the Court for doing full and complete
Justice between the parties.
The law relating to commission is contained in section 75 to 78 and order 26 of the code,
A commission is a body of one or more persons to whom certain function are entrusted by a
court.

When Commission is appointed:
It is the discretionary power of the Court to appoint a Commission and a court may appoint a
Commission either or an application by a party to the suit or its own motion.

Purposes of the commission

 According to Section 75 of the Code of Civil Procedure, 1908, the court may issue a
commission for any of the following purposes-
1) To examine any Person-
The court may issue a commission for the examination of any person in the following
circumstances: –
1)     If the person to be examined as a witness reside within the local limits of the court’s
Jurisdiction.
2)     If he resides beyond the local limits of the Jurisdiction of the court.
3)     If he is about to leave the Jurisdiction of the court.
2) To make a local investigation:
The court may, in any suit, issue a commission to such person as it thinks fit directing him to
make local investigation.
3) To examine or adjust accounts
In any suit in which an examination or adjustment of accounts is necessary, the court may issue a
commission to such person as it thinks fit directing him to make such examination or adjustment.
4) To make a Partition
Where a preliminary decree for partition of immoveable property has been passed, the court may
issue a commission to such person as it thinks fit to make a partition or separation according to
the rights as declared in such decree.
5) To make a scientific investigation
Where any question arising in a suit involves any scientific investigation the court may issue a
Commission to such person as it thinks fit, directing him to enquire into such question and report
thereon to the court.
6) To conduct for sale
Where, in any suit, it becomes necessary to sell any moveable property which is in the custody of
the Court, pending the determination of the suit and which can not be conveniently preserved,
the court may, issue a commission to such person as it thinks fit, directing him to conduct such
sale and resort thereon to the court.
7) To perform a ministerial act
Where any question arising in a suit involves the performance of any ministerial act which
cannot, in the opinion of the Court, be conveniently performed before the court, the court may
issue a commission to such person as it thinks fit, directing him to perform that ministerial act
and report thereon to the court.

Procedure for carrying out the commission:

1) The commissioner will conduct the local investigation, examination of witnesses,

adjust accounts and other functions as ordered in the commission.
2) After completion of the function, the commissioner will reduce the findings in writing
and will make a report.
3) The commissioner will submit the report signed by him along with the evidence
recorded in the Court.
4) The report of commissioner will form a part of the record.
5) While examining the report, the Court or the concerned parties, after prior
permission, can examine the commissioner personally in open Court.
6) If the Court is dissatisfied with the proceedings of the commissioner the Court can
order a further inquiry on the commission or can issue a fresh commission and appoint
a new commissioner.   

Conclusion:

The commission is issued by the Court to provide full and complete justice. The Court has the
power to issue commission in certain circumstances. Commissioner is appointed by the Court to
carry out the commission issued by the Court. He assists the Court by taking evidence,
conducting local investigations, doing ministerial work and submits a report after carrying out
the commission.

A commissioner is, generally, an advocate who is in a panel formed by the High Court and from
such a panel the Court appoints a commissioner. The procedures for the appointment are
formulated by the High Court.

The commissioner can exercise certain powers granted by the Court to carry out the commission.
He cannot perform the judicial function of the Court. He can only assist the Court in performing
such functions. The evidence with the report submitted by him in the Court forms part of the
record.
Q23 property which are attachable and non-attachable in execution of
decree?
Introduction
There are three stages of every civil suit. It starts with the institution of a suit,
adjudication of a suit and finally the implementation of a suit. The implementation of the suit is a
step in which the results of the adjudication are put into action, hence this stage is known as
execution.
The enforcement of the decree and gives the benefit to the decree-holder in whose favour
the decree has been passed. Section 38 of CPC states as to who can execute the decree. A decree
may be executed either by the court which passed it, or by the Court to which it is sent for
execution. Section 37 gives further explanation of certain expressions. In a proceeding for the
arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the Judgment Debtor has
sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the ground that
there is an alternative remedy of attachment available to the Decree Holder for realization of the
decretal amount.

Property which can be attachable

1. Attachment is a legal term which refers to the action of seizing property in anticipation of a
favourable ruling for a plaintiff who claims to owed money by the defendant.
2. Sections 60 to Section 64 and Rules 41-57 of Order 21 of CPC 1908, deals with the matter of
attachment of property.
3. Several types of property are liable for attachment and sale in execution of a decree like lands,
houses or other buildings, goods, money, banknotes, checks, bills of exchange, hundis,
government securities, bonds etc which he has a disposing power.
4. Section 61 grants partial exemption to agricultural produce-
The state Government may declare any piece of agricultural land for the purpose until
next harvest season for the due cultivation of land and support of the Judgement-debtor
and his family, exempt that property from being attached in execution of the decree.
5. Section 62 talks about seizure of property in case of dwelling house. No person executing
under the code will enter the premises of a dwelling house after sunset and before sunrise.
6. Section 63 says that where the property attached in execution of decree is going on in several
courts then the final decision of the court of higher grade prevails.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the Judgement-debtor
was liable to be sold for execution of the decree as his contention of agricultural produce was
declined. 

Attachment of property, movable and immovable

Sections 60 to 64, Order XXI Rules 41 to 54 of CPC and Rules 242 to 259 of Civil Rules of
Practice deal with Attachment of Property.
Order XXI Rule 41 of CPC is sufficiently amended to facilitate the matters to call for an affidavit
of the assets of the Judgment-debtor. This rule is applicable to a case of unascertained mesne
profits and also to a case of unascertained damages. The object of this rule is to obtain discovery
for the purpose of execution in obtaining the particulars of the property of Judgment- debtor with
a view to avoid delay.

Property non- attacheable

1. Some kind of property which cannot be attached and sold in execution of a decree is expressly
mentioned in Section 60 of the Code of Civil Procedure.
2. Particulars like wearing apparel, cooking vessels, beds, tools of artisans, books of accounts,
any right of personal service, wife and children, stipends and gratuities allowed to pensioners of
the Government etc. and many more.
3. It is also provided Section 60 that the following kinds of property are not liable to attachment–
1. A mere right to sue for damages.
2. Any right of personal services.
3. One-third of the salary in execution of any decree for maintenance.
4. The wages of labourers and domestic servants, whether payable in money.

Determination of attachment
In times of cases where the property is attached but later on the court passes an order dismissing
the execution, the court will direct the status of the attachment, i.e, whether the attachment will
continue or discontinue to exist. If then the court fails to give clear direction it is considered
implied that the attachment has been ceased.
Order XXI Rules 55-38 explains the circumstances under which the attachment is
determined under the Code. 
1. Where the decretal amount is paid or is satisfied;
2. Where the decree is reversed or set aside;
 3. Where the court highlights an objection against the attachment and makes an order for
releasing the property; 
4. Where after the attachment the application for execution is dismissed;
5. Where the judgment holder withdraws the attachment;
6. Where the decree-holder fails to do what he was required to do under the decree;
7. Where the suit of the plaintiff is dismissed;
8. Where the attachment is ordered before the judgement and the defendant furnishes
necessary security;
9. Where there is an agreement or compromise made between the parties;
10. Where the creditor abandons the attachment.

Private alienation of property after attachment

Attachment creates no charge or lien upon the attached property. It only confers a right on the
decree-holder to have the attached property kept in custody for being dealt with by the court in
accordance with law. It merely prevents and avoids private alienations; it does not confer any
title on the attaching creditors.27Private alienation of property after attachment is void. If the
judgment-debtor transfers or delivers such property after attachment, any such transfer is
considered as void according to section 64 of CPC. The objective of this section is to prevent any
sort of fraud on the decree-holders and secure their interest. Such an attachment should be made
in accordance with the procedure prescribed by the CPC 1908. A mere order for attachment is
not sufficient, in the case of immovable property the attachment to render subsequent alienation
invalid must be made in a manner prescribed by Order 21 Rule 54. But the section also enshrines
that this does not apply in cases where the agreement for alienation was made before the
attachment.

Removal & determination of attachment

The attachment shall be deemed to be withdrawn in the following cases:
(a) The decreed amount, all costs, charges, and expenses from the attachment of property are
paid into the court, or
(b) Satisfaction of the decree is made through the court or certified to the court, or
(c) The decree is set aside or reversed.
In case of immovable property, the withdrawal of attachment can be proclaimed by the
judgment-debtor and the copy of such a proclamation can be affixed in a conspicuous part of the
property and a conspicuous part of the court house at his expense.
Determination is as to the status of the attachment. In cases where the property has been attached
but later the court passes an order dismissing such an execution, the court will direct the status of
the attachment, i.e, whether the attachment will continue or cease to exist. On failure from the
court to give an express direction, it is considered implied that the attachment has ceased

(V) Conclusion
The Civil Procedure Code 1908, includes many procedures and modes for attachment of
different kinds of property. Attachment is the first step and sale of the property will be carried
out after attachment. In some cases sale can be done without attachment of the property as well.
This does not make the sale irregular. But the right procedure to be followed is attachment
followed by the sale of the property. Section 65 to 73, and Order 21 Rules 64-94 deals with sale
of movable and immovable property. The court will appoint an officer who will be in-charge of
selling the property in execution of the decree

In this paper the author has efficiently gone through the nuances of the procedural law dealing
with attachment of property. The Order 21 of the code is an elaborate explanation of all the
procedures dealing with attachment of property covering all its aspects, and different kinds of
property. Therefore the process of execution is complete not when the order or decree is passed
by the court, but only when the decree-holder actually gets the property or money that was
awarded to him.
or
In a civil suit, the decree-holder has the benefit of deciding the mode of execution of a decree
passed by the court as against the judgement-debtor.
Attachment of Property, being one of the modes of execution of a decree recognises the right of
the decree-holder. Various amendments have been carried out in the Code to protect the interest
of both Judgement-debtor and judgement-creditor.
Q25 Appointment of receiver and his power and duties?
Introduction
A receiver plays an important role in helping the court in civil cases. The Receiver is
known to be a court officer who supports the court before the court determines the case, to
protect and maintain the subject matter of the suit.
Sometimes both the parties to appoint a receiver who will be responsible for the
management of the subject matter. The subject matter is generally a movable or immovable
property.
APPOINTMENT OF RECEIVER
Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed
by the court to administer / manage that is to protect and preserve a disputed property involved in
a suit.
For example, in dispute between A and B for an immovable property, if the court thinks both the
parties that possession should be taken from B and given to an independent person, the court
may appoint a receiver who can manage the property till the time the suit is being decided.
Such a receiver appointed by the court would be responsible for the maintenance of the
property.
He can collect the income accruing like rent or any other profits and utilize it to maintain
the property.
After deducting the expenses incurred in maintenance from the income received from the
property, the receiver will have to submit the remaining income.
He is not representative of either of the parties in the action, is uniformly regarded as an officer
of the court working in the interest of neither plaintiff nor defendant but for the common benefit
of all the parties.

Appointer of the receiver?

 Where it appears to the Court to be just and convenient, the Court may by order -

             (a) appoint a receiver of any property, whether before or after, decree;

            (b) remove any person from the possession or custody of the property;

            (c) commit the same to the possession, custody or management or the receiver; and

            (d) confer upon the receiver all such powers, as to bringing and defending suits and for
the realization, management, protection, preservation and improvement of the property, the
collection of the rents and profits thereof, the application and disposal of such rents and profits,
and the execution of documents as the owner himself has, or such of those powers as the Court
thinks fit.

   Nothing in this rule shall authorize the Court to remove from the possession or custody of
property any person whom any party to the suit has not a present right so to remove.
According to (Order 40 rule 5), a collector can be appointed as a receiver if the revenue
generated from the property is received by the government, the court can appoint a collector as a
receiver with his consent if the court thinks that management of such property by collector will
promote the interests of those who are concerned.

Role of a receiver
The Receiver is regarded as an officer of the court. He is entrusted with the responsibility to
receive disputed property or money given by the court and manage such property or money till
the time a decree is passed.
The property entrusted to the receiver is considered to be custodia legis i.e. in the custody of the
law.
The Receiver has no power other than those entrusted to him by the court while appointing him.

Powers of the receiver

Under order 40 rule 1(d) powers of the receiver are provided as following-
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.

Duties of the receiver

Under order 40 rule (3), duties of a receiver are provided as follows-
1. Furnish security to account for what he will receive from the property as income.
2. Submit accounts (half yearly) for such period as directed by the court. The account
basically includes the income received and expenses incurred for the protection and
preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the
receiver’s willful negligence.
5. Discharge the duties personally and should not delegate or assign any of the rights
entrusted to him by the court.
Relevant case laws
Balakrishnan Gupta Vs Swadeshi Polytex Limited, AIR 1985 SC 520
In this case, Court held that a receiver is an officer or representative of the court
and he functions under its direction

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

A receiver should be of impartial, independent and indifferent character who has no stake in the
subject matter and can manage the property just as a prudent man will do with his own property.
Court have vested certain powers and responsibilities on the receiver which he should use to
manage the property in the best way possible.
The receiver should be careful while making an important decision related to the subject matter
as he is personally liable for any damage to it. He can seek the permission of the court before
making such decisions to be safe.
Q26 Provision regarding temporary injunction and interlocutory order

Introduction:

Injunction is a judicial process whereby a party is required to do, or refrain from doing,
any act. It is the remedy in the form of an order of the court addressed to a person that either
prohibits him from doing or continue to do such act. Thus, Injunction is a relief that prevents or
restricts from doing an act or may include the order from doing any act for the purpose of
prevention.

Kinds of Injunction:
A temporary or interim injunction restrains a party temporarily from doing the specified
act and can be granted only until the disposal of the suit or until the further order of the court. It
is regulated under the provisions of Order -XXXIX of CPC and may be granted at any stage of
the suit.
Permanent Injunction restrains a party forever from doing the specified act and can be
granted only on the merits at the conclusions of the trial after hearing both the parties to the suit.
It is governed by Section-38 to Sec-42 of Specific Relief Act 1963.

Grounds of Temporary Injunction:

O39 R1 provides that Temporary Injunction may be granted by court:

1. Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by

any party to the suit, or WRONGFULLY SOLD IN EXECUTION OF DECREE.
2. Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS
PROPERTY with a view to defraud creditors.
3. Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE
INJURY to the plaintiff in RELATION TO THE PROPERTY IN DISPUTE
4. Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR
OTHERWISE (Order 39 Rule 2).
5. Where the court is of opinion that INTEREST OF JUSTICE, so required.

Conditions for granting Temporary Injunction:

1. Prima Facie Case is in the favour of the plaintiff and against the defendant.
2. Irreparable injury is likely to be caused to the plaintiff, which cannot be compensated for
in terms of money.
3. Balance of convenience is in favor of the plaintiff and against the defendant.
 4. There is a bona fide dispute raised by the applicant and there is a probability of the
applicant being entitled to the relief claimed by him.

Thus, the burden is on the plaintiff praying for the relief. Mere proof of one of the above
conditions does not entitle a person to an order of temporary Injunction.

Circumstances where Injunction can be granted:

The list below is not exhaustive but some of them are as follows:

1. To maintain status -quo.

2. Against transfer of property.
3. Disposal of goods.
4. Making construction
5. Effecting recovery of dues.
6. Attachment of property.
7. Appointing receiver or commission
8. Against Prosecution etc.

Case: 

ManoharLal vs Seth HiraLal AIR 1962; SC held, even if case not covered on grounds
of 0-39, Temporary Injunction can be granted in exercise of Inherent Powers Under Section 151
of CPC.

In Prakash Singh vs. State of Haryana, 2002 (4) Civil L.J.71 – The Court has
explained that Prima Facie does not mean that a Plaintiff/Applicant should have a full proof case
in his favour which will succeed in all probabilities. It means that the plaintiff/applicant has a
case which cannot be rejected summarily or dismissed out right. It raises consideration which
can be considered on merits.

Temporary Injunction when cannot be granted

 To restrain any person from prosecuting a judicial proceeding at the institution of the suit,
in which injunction is sought, unless restraint is necessary to prevent multiplicity of
proceedings.
 to restrain any person from instituting or prosecuting any proceeding in a Court not
subordinate to that, from which injunction is sought.
 to restrain any person from applying to any legislative body,
  to restrain any person from instituting or prosecuting any proceeding in a criminal matter,
 to prevent the breach of a contract the performance of which could not be specifically
enforced.
 to prevent on the ground of nuisance, and act of which it is not reasonably clear that it
will be a nuisance.
 to prevent a continuing breach in which the plaintiff has acquiesced,
 when equally efficacious relief can be certainly be obtained by any other usual mode of
proceeding except in case of breach of trust,
 when conduct of the plaintiff or his agents has been such as to disentitle him to the
assistance of the Court.
 when the plaintiff has no personal interest in the matter.

Interlocutory order

Interlocutory orders are also somewhat similar to temporary injunctions. Interlocutory

order only settles intervening matter relating to the cause. Such orders are made to secure some
end and purpose necessary and essential to the progress of case and generally collateral to the
issues to be settled by the court in the final judgment. These orders are also of different natures, -

such as:

Interim Sale : Interim sale of any movable property may be ordered, if it is subject to natural
decay, such as vegetable etc.

Detention Preservation, Inspection, etc of subject matter of suit.

Interlocutory orders are passed by the courts to prevent irreparable harm from occurring
to a person or property during the pendency of a lawsuit or proceeding. Rules 6 to 10 of Order 39
mention certain interlocutory orders, which include the court’s power to order the interim sale of
movable property, to order the detention, preservation or inspection of any property which is the
subject-matter of such suit. Similarly, when the land in the suit is liable to Government revenue
or is tenure liable to the sale and the party in possession neglects to pay the revenue or rent, the
court may order any other party to the suit in case of sale of the land to be put in immediate
possession of the property.

Conclusion
In view of the aforementioned, it can be determined that grant of temporary injunction cannot be
requested by the party as a matter of right nor can be denied by the Court arbitrarily. The
injunction is an equitable remedy and attracts the application of the maxim “he who seeks equity
must do equity”. The Court has complete discretion to grant an injunction or to refuse it. The
discretion to be exercised by the Court is shown by the principles mentioned hereinabove and
depends on the facts and circumstances of each case. The relief cannot be claimed as an affair of
right however worthwhile the applicant’s case may be. The power to grant an injunction must,
therefore, be exercised with the utmost prudence, vigilance, and care.
Q27 Death, marriage and insolvency of the parties in pending cases?
Introduction
when a civil suit is instituted, it goes as it meant to be with two opposite parties and it comes
to an end with the judgement followed by the decree of the court but if contingencies of suit such as
death, marriage or insolvency of parties occur then it leads to one major consequence that is the
pendency of the suit since it has somehow been struck between the step which is institution and
passing of judgement.
Such a situation calls for something which solves the problem of pendency of the suit and
same can be dealt with by the creation, assignment or devolution of the interests of the parties.
Though the procedure of creation, assignment

Death in pending case

a. Death of plaintiff
 Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can
be continued by the heirs and legal representatives of the deceased plaintiff. If the
right to sue does not survive, the suit will come to an end.

 Where one of the several plaintiff dies and the right to sue survives to the surviving
plaintiff or plaintiff, the court will make an entry to that effect and proceed with the
suit by surviving plaintiff or plaintiffs.

 Where plaintiff dies after hearing and before pronouncement of judgment, the suit
shall not abate. The same principle will apply in case of death of the plaintiff after
passing of preliminary decree and before final decree.

 Once the final decree is passed, the rights of the parties are adjudicated and the
question is only of execution of the decree. The provisions relating to abatement do
not apply to execution proceedings; they, however, apply to appeals.

b. Death of defendant
 Where the sole defendant dies, the suit shall not abate if the right to sue survives. It
can be continued against the heirs and legal representatives of the deceased
defendant.

 Where one of the several defendants dies and the right to sue survives against the
surviving defendant or defendants, or where the sole surviving defendant dies and the
right to sue survives, the court, on an application by the legal representative of the
deceased defendant, will make him a party and proceed with the suit.
  When no such application is made within the period of limitation (ninety days), the
suit shall abate as against the deceased defendant.

 Where the defendant dies after hearing and before the pronouncement of judgment,
the suit shall not abate. The suit also does not abate on account of an unnecessary
party.

Marriage of party
Rule 7 of Order XXII of CPC that a decree which is in favour or against a wife, where the
husband is legally entitled to the subject matter of the decree or if he is liable for the debt of his
wife may, with the explicit permission of the court, it should be executed by or against him.
EFFECT OF MARRIAGE OF A PARTY
(i) The marriage of a female plaintiff or defendant does not cause the suit to abate and the suit is
to be proceeded with.
(ii) If after a suit is proceeded with a decree is passed against the female defendant, it can be
executed against her alone.
(iii) If under the law, the husband is liable for the debts of his wife, then, with the permission of
the Court, such a decree can be executed against the husband also.

Insolvency of party
Insolvency of the party is defined and discussed under Rule XXII of the Code of Civil
Procedure, 1908. Rule 8 of Order XXII says-
1. Assignee or Receiver might maintain for the benefit of his creditors, does not abate
unless such Assignee or Receiver declines to continue the suit or to give security for the
costs thereof within the time prescribed by the Court.
2. Now, if the Assignee or Receiver neglects to continue the suit and give proper security
within the prescribed time the defendant may apply for dismissal of the suit.
3. Further, the court can order that costs be paid to the defendant and the same should be
deemed to be a debt against the estate of the plaintiff.
4. This rule is not at all applicable to the insolvency of the defendant. In these type of cases,
the court may put a stay on the proceedings against such defendant.
5. Rule 9 of the same Order says that where a suit is abated, the receiver or assignee in cases
where the plaintiff becomes insolvent he or she may make application to the court to set
aside the abatement.

Case law:
Melepurath v. Evelyn Sequeria 1986 SCC 118 AIR 1986

The right to sue survives in spite of the death of the person, the suit does not abate. Hence,
whenever a party to suit dies, the first question to be decided is as to whether the right to sue
survives or not. If the right is held to be a personal right which extinguishes with the death of the
person concerned and does not devolve on the legal representatives, there is an end to the suit.
But if the right to sue survives against the legal representatives of the plaintiff, the suit can
continue.

Conclusion

Earlier under the common law system, a lawsuit was used to automatically abate on the
death of a party. However, whether the cause of action is abated or not depends on whether or
not the lawsuit was considered personal to the parties or not. For example, property and contract
cases were thought to involve separate issue from the parties themselves and did not necessarily
abate on the death of a party. On the other hand, personal injury cases including those injuries to
the person as well as cases of libel, slander, and malicious prosecution were considered personal
and did abate at death of the party.

Today, there are a number of states which have their statues which permits the revival of
an action that was pending when a party died. But in the usual course of action, an
administrator or executor is substituted for the deceased party and the lawsuit continues. There
can be a situation where the lawsuit may not be revived unless the underlying cause of action
continues to have its legal existence. Every state has its own revival statutes and they vary from
state to state, but today many lawsuits do not abate due to the death of either party.

In a situation if two or more persons bring an action to the court and if in that course one
of them dies then the action will not abate if the cause of action survives. The action will
continue in the name of the surviving party, or by the representatives of decedent. After the death
of a party, if the right to be enforced survives against or in favour of the surviving party, then the
action will not abate but will continue against and for the surviving parties. In common law, if
the defendant dies, it will not abate an action against the other defendants entirely either in tort
actions or in contract law. If the rights of the deceased party, or of his/her successors remain in
the cause of action then the matter is either suspended or abated until the action is properly
revived and a successor is named. A judgment is not entered against the decedent’s successors in
interest or against her/his former rights until these steps are taken. 

If one of the two co-parties is a necessary party, and if the judgement will not have any meaning
without him/her as party, then the action will abate upon the party’s death and cannot be revived.
However, if a valid judgment is given against the remaining defendants, the death of a party for
whom no substitution can be made abates the action only as to the decedent, without possibility
of reviver. 
Q. 29. Suit by or against firm and corporation
Suit by or against corporation:
Three simple rules are laid down by order XXIX as regards suits by or against
corporation as follow :
Rule 1 Subscription and verification of pleading
In suits by or against a corporation, any pleading may be signed and verified on
behalf of the corporation by the security or by any director or other principal
officer of the corporation who is able to depose to the facts of the case.
HIGH COURT AMENDMENTS
Kerala.- In Order XXIX, after rule 1, insert rule 1A which is same as in Madras
with the addition of the following as marginal note:-
"Time to be fixed in the summons for appearance in suits against local authority".
Madras.-In Order XXIX, after rule 1, insert the following rule, namely:-
"1A. In suits against a local authority the Court in fixing the day for the defendant
to appear and answer shall allow not less than two months time between the date of
summons and the date for appearance."
Andhra Pradesh is same as in Madras.
Case Law :
T.M &Co vs H.I Trust Ltd, A.I.R 1972 S.C 1311
The Supreme Court held that the expression “principal officer” covers a Secretary
holding a general power of attorney, even if the Articles of Association of that
company required a Director’s consent to be taken before a suit is filed.

Rule 2 - Service on corporation

Subject to any statutory provision regulating service of process, where the suit is
against a corporation, the summons may be served-

(a) on the secretary, or on any director, or other principal officer of the corporation,
or
(b) by leaving it or sending it by post addressed to the corporation at the registered
office, or if there is no registered office then at the place where the corporation
carries on business.
STATE AMENDMENT
Uttar Pradesh.-In Order XXIX, in rule 2, after clause (a), insert the following
clause, namely;-
"(aa) on its corporation pleader in the district where the Court issuing summons is
located, if one has been appointed and the appointment has been notified to the
District Judge under rule 10 of Order XXVII, or".
HIGH COURT AMENDMENT

Karnataka.-In Order XXIX, after rule 2, insert the following rule, namely;-
"2A. Where the suit is against a local authority the Court in fixing the day for such
authority to answer the plaint shall allow a reasonable time for the necessary
communication with any department of the Government and for the issue of the
necessary instruction to the pleader of the authority, and may extend the time at its
discretion."
Rule 3 - Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the
secretary or of any director, or other principal officer of the corporation who may
be able to answer material questions relating to the suit.

Suit by or against firm

Order 30 of the Civil Procedure Code, 1908, lays down certain procedures for
suing a firm and being sued by a firm and how to conduct these suits.
Rule 1 - Suing of partners in name of the firm
Rule 1 provides the basic idea of nature which the provisions of Order 30 seek to
establish. It states that two or more persons who are liable to be partners can sue or
can be sued in the name of the firm in which they were a part when the cause of
action occurred. This helps in facilitating the litigation process where the
individuals or the partners can seek relief by making the litigation entirely about
the partnership firm rather than a single individual. 

It further provides for the application to the court, if needed, for the list of partners
of that firm to verify the concerned partners during the time when the cause of
action arose. 

In Shankar Housing Corp. v. Mohan,  the Delhi High Court explained that
Rule 1 is required to sue the firm to prevent the difficulty of finding the guilty
partner. Instead of suing him/her separately, the aggrieved party can file a suit
against the firm in which the partners can be held equally and jointly liable.

Rule 2 Disclosure of Partners’ name

Rule 2 of Order 30 provides that, when the partners sue in the name of the firm, the
defendant may in writing demand for the disclosure of the names of the partners of
the firm with their places of residence. The rule states that the suit shall proceed in
the name of the firm but the decree passed by the court shall constitute the names
of all the partners. This rule further provides that if the firm or the partners fails to
comply with the demand made by the other party the proceedings may be stayed
by the direction of the court.

In the case of Alwar Iron v. Union of India, it was observed that if a firm
files for a suit and discloses the names of certain persons as partners who are
not registered as partners of the firm, it will be considered fraud to the court
and the suit shall be dismissed with no cost to the plaintiffs.

Rule 3 Service

Rule 3 of the Order deals with the way of service of summons on the partners of
the firm, and provides that the service shall be made either;

i. upon any one or more of the partners, or

ii. at the principal place where the partnership firm is conducted upon the
person who at that time is in charge of the management of such place
as directed by the court irrespective of the fact whether or not at that
time any of the partners are in India.
In the case of R.D.Khan v. Bombay Iron Syndicate,  the court held that if the
summon is served to the partners or the firm manager and the partners are out
of India during the time of receipt, it is the duty of the third party(who receives
the summon) to inform the partners of the firm about the summon. The receipt
of summon by him shall be deemed to be complete service. 

Rule 4 - Rights of suit on death of partner

This provides for the consequences upon the death of a partner. It states that before
the institution of the suit or during the pendency of the suit if the partner dies it
shall not be necessary to include the legal representative in the suit. However, this
shall not limit or affect any rights of the legal representatives of the deceased
which may have; 

i. application to be made a party to the suit,

ii. enforcement of any claim against the survivor or the survivors.

 
In the case of Upper India Cable Co. v. Bal Kishan,  the question which arose
in front of the Hon’ble Supreme Court was whether an appeal abates in the
absence of heirs or legal representatives of the deceased partners of the firm.
The court stated that the death has no impact on the proceedings and the
appeal cannot be abated. Thus, the question of substituting heirs and legal
representatives should not arise.

Rule 5 Notice in what capacity served

Rule 5 of Order 30 puts an obligation on the part of the plaintiff to serve a notice in
writing to the firm at the time of the service of summons. The main objective for
serving such notice is to inform the partners of the firm in what capacity they have
been sued.

In the case of Srinath Brothers v. Century Mills,  the court observed that if a
person is sued in the capacity of a partner or he is sued in the capacity of a
manager, notice under Rule 5 must be issued in both cases. 

Rule 6 - Appearance of partners

According to Rule 6 of Order 30 when the partners are sued in the name of the
firm, each partner shall appear in the court in their own name. However, all the
subsequent proceedings shall be continued in the name of the firm. 

Rule 7 No appearance except by partners

Rule 7 of the Order states that the persons who are sued in the capacity of a partner
need to be present during the proceedings of the court. This means that if a person
is sued in the capacity of a manager, he doesn’t need to appear before the court, but
if he is sued in the capacity of a partner, he shall appear before the court.

Rule 8- Appearance under protest

Rule 8 of the Order states that the person who has been served with summons as a
partner under Rule 3 may contest before the court by stating that he was not a
partner at the material time by entering an appearance under protest. 

The plaintiff or the person entering the appearance may apply to the court to
determine whether or not he was a partner to the firm and shall be liable as such.
However, this shall be done at any time before the date fixed for hearing and final
disposal of the suit. 

Rule 9 Suits between co-partners

Rule 9 of Order 30 speaks about suits that are instituted between a firm and one or
more partners therein or between firms that have one or more common partners. In
such cases, no execution shall be issued without the leave of the court to safeguard
the interest of all the partners. On an application of leave to issue such execution
the court may direct accounts and inquiries during the time of execution. 

Rule 10 Suit against person carrying on business in name other than hisown

Rule 10 of Order 30 explains its applicability in cases where a person is carrying
on a business in a name or style other than his own or a Hindu Undivided Family
which is carrying out a business in any name. In such cases, they may be sued in a
manner as if it were a firm name and will be executed according to the provisions
under this Order. 
The Supreme Court in Ashok Transport Agency v. Awadhesh Kumar said
that Rule 10 of Order 30 makes the provisions under this Order applicable to
proprietary concerns as well. It enables the proprietor of the business to be
sued in the name of the firm of his proprietary concern.
Q. 30. Suit against or by minor and person of unsound mind
Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR
AGAINST MINORS AND PERSONS OF UNSOUND MIND. Order XXXII
contains special provisions applicable only in cases where either the suit is
To be instituted at the cause of a minor/person of unsound mind
To be instituted against a minor/person of unsound mind
In the Code of Civil Procedure, the main object behind the enactment of Order
XXXII is the protection of the interests of minors and persons of unsound mind.
The origin behind this concern rests in Common Law. The Common Law position
is that persons who are unable to understand the nature and consequences of their
actions (of immature intelligence and discretion) ought not to be liable for their
actions so undertaken. This legal position stands firm even today except where his
status is that as a cestui qui trust.
Rule 1 provides that every suit by a minor shall be Instituted in his name by a
person who in such suit shall be called the next friend of the minor.
A minor is, for purposes of civil litigation in India, defined to mean a person who
has not attained majority under the provisions of the Indian Majority Act, 1875,
that is a person who has not completed the age of eighteen years and in the case of
a minor of whose person or property a guardian has been appointed by a court, or
whose property is under a court of wards, a person who has not attained the age of
21 years
Rule 2 - Where a suit is instituted by or behalf or on behalf of a minor without a
next friend, the defendant may apply to have the plaint taken off the file, with costs
to be paid by the pleader or other person by whom it was presented.
Notice of such application shall be given to such person, and the Court, after
hearing his objections (if any) may make such order in the matter as it thinks fit.
Under Rule 2A. Security to be furnished by next friend when so ordered.
(1) Where a suit has been instituted on behalf of the minor by his next friend, the
Court may, at any stage of the suit, either of its own motion or on the application of
any defendant, and for reasons to be recorded, order the next friend to give security
for the payment of all costs incurred or likely to be incurred by the defendant.
(2) Where such a suit is instituted by an indigent person, the security shall include
the court-fees payable to the Government.
(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit
where the Court makes an order under this rule directing security to be furnished.
Rule 3 Guardian for the suit to be appointed by Court for minor defendant.
(1) Where the defendant is a minor the Court, on being satisfied of the fact of his
minority, shall appoint a proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in the suit adverse
to that of the minor and that he is a fit person to be so appointed.
(4) Order shall be made on any application under this rule except upon notice to
any guardian of the minor appointed or declared by an authority competent in that
behalf, or, where there is no such guardian, upon notice to the father or where there
is no father or mother, to other natural guardian, of the minor, or, where there is no
father, mother or other natural guardian, to the person in whose care the minor is,
and after hearing any objection which may be urged on behalf of any person served
with notice under this sub-rule.
(4A) The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to
the minor also.
(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor
shall, unless his appointment is terminated by retirement, removal or death,
continue as such throughout all proceedings arising out of the suit including
proceedings in any Appellate or Revisional Court and any proceedings in the
execution of a decree.
Rule 4 - Next friend or be appointed guardian for the suit.
(1)Any person who is of sound mind and has attained majority may act as next
friend of a minor or as his guardian for the suit:
Provided that the interest of such person is not adverse to that of the minor and that
he is not, in the case of a next friend, a defendant, or, in the case of a guardian for
the suit, a plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no
person other than such guardian shall act as the next friend of the minor or be
appointed his guardian for the suit unless the Court considers, for reasons to be
recorded, that it is for the minor’s welfare that another person be permitted to act
or be appointed, as the case may be.
(3) No person shall without his consent in writing be appointed guardian for the
suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the
Court may appoint any of its officers to be such guardian, and may direct that the
costs to be incurred by such officer in the performance of his duties as such
guardian shall be borne either by the parties or by any one or more of the parties to
the suit, or out of any fund in Court in which the minor is interested or out of the
property of the minor, and may give directions for the repayment or allowance of
such costs as justice and the circumstances of the case may require.
Rule 5 Representation of minor by next friend or guardian for the suit.
(1) Every application to the Court on behalf of a minor, other than an application
under rule 10, sub-rule (2), shall be made by his next friend or by his guardian for
the suit.
(2) Every order made in a suit or on any application, before the Court in or by
which a minor is in any way concerned or affected, without such minor being
represented by a next friend or guardian for the suit, as the case may be, may be
discharged, and, where the pleader of the party at whose instance such order was
obtained knew, or might reasonably have known, the fact of such minority, with
costs to be paid by such pleader.
Rule 6 A next friend or guardian for the suit shall not, without the leave of the
Court, receive any money or other movable property on behalf of a minor either-
(a) by way of compromise before decree or order, or
(b) under a decree or order in favour of the minor.
Where the next friend or guardian for the suit has not been appointed or declared
by competent authority to be guardian of the property of the minor, or, having been
so appointed or declared, is under any disability known to the Court to receive the
money or other movable property, the Court shall, if it grants him leave to receive
the property, require such security and give such directions as will, in its opinion,
sufficiently protect the property from waste. and ensure its proper application:
Provided that the Court may, for reasons to be recorded, dispense with such
security while granting leave to the next friend or guardian for the suit to receive
money or other movable property under a decree or order where such next friend
or guardian-
(a) is the manager of a Hindu undivided family and the decree or order relates to
the property business of the family; or
(b) is the parent of the minor.
Rule 7 No next friend or guardian for the suit shall, without the leave of the Court,
expressly recorded in the proceedings, enter into any agreement or compromise on
behalf of a minor with reference to the suit in which he acts as next friend or
guardian.
(1A) An application for leave under sub-rule (1) shall be accompanied by an
affidavit of the next friend or the guardian for the suit, as the case may be, and
also, if the minor is represented by a pleader, by the certificate of the pleader, to
the effect that the agreement or compromise proposed is, in his opinion, for the
benefit of the minor:
Provided that the opinion so expressed, whether in the affidavit or in the certificate
shall not preclude the Court from examining whether the agreement or compromise
proposed is for the benefit of the minor.
 Any such agreement or compromise entered into without the leave of the Court so
recorded shall be voidable against all parties other than the minor.
Ganesh Rao v. Tuljaram (1913) 40 LA 132
Rule 8 Unless otherwise ordered by the Court, a next friend shall not retire without
first procuring a fit person to be put in his place and giving security for the costs
already incurred.
The application for the appointment of a new next friend shall be supported by an
affidavit showing the fitness of the person proposed and also that he has no interest
adverse to that of the minor.
Rule 9 Where the interest of the next friend of a minor is adverse to that of the
minor or where he is so connected with a defendant whose interest is adverse to
that of the minor as to make it unlikely that the minor’s interest will be properly
protected by him, or where he does not do his duty, or during the pendency of the
suit, ceases to reside within India, or for any other sufficient cause, application
may be made on behalf of the minor or by a defendant for his removal; and the
Court, if satisfied of the sufficiency of the cause assigned, may order the next
friend to be removed accordingly, and make such other order as to costs as it thinks
fit.
Rule 10 On the retirement, removal or death of the next friend of a minor, further
proceedings shall be stayed until the appointment of a next friend in his
place.Where the pleader of such minor omits, within a reasonable time, to take
steps to get a new friend appointed, any person interested in the minor or in the
matter in issue may apply to the Court for the appointment of one, and the Court
may appoint such person as it thinks fit.
Rule 11 Where the guardian for the suit desire to retire or does not do his duty, or
where other sufficient ground is made to appear, the Court may permit such
guardian to retire or may remove him, and may make such order as to costs as it
thinks fit. Where the guardian for the suit retires, dies or is removed by the Court
during the pendency of the suit, the court shall appoint a new guardian in his place.
Rule 12 A minor plaintiff or a minor not a party to a suit on whose behalf an
application is pending shall, on attaining majority, elect whether he will proceed
with the suit or application. Where he elects to proceed with the suit or application,
he shall apply for an order discharging the next friend and for leave to proceed in
his own name. Where he elects to abandon the suit or application, he shall, if a sole
plaintiff or sole applicant, apply for an order to dismiss the suit or application on
repayment of the costs incurred by the defendant or opposite party or which may
have been paid by his next friend.
Rule 13 states if however such person is a co-plaintiff, he must apply to the courts
to have his name struck off as the co-plaintiff. If however, the court finds that he is
a necessary party in such a suit, he may directed to be made a Defendant.
Rule 14 A minor on attaining majority may, if a sole plaintiff, apply that a suit
instituted in his name by his next friend be dismissed on the ground that it was
unreasonable or improper. Notice of the application shall be served on all the
parties concerned; and the Court, upon being satisfied of such unreasonableness or
impropriety, may grant the application and order the next friend to pay the costs of
all parties in respect of the application and of anything done in the suit, or make
such other order as it thinks fit.
Suits by or against person of unsound mind
Rule 15 lays down that all the above Rules 1 to 14 (except rule 2A) shall, so far as
may be, apply to persons adjudged, before or during the pendency of the suit, to be
of unsound mind and shall also apply to persons who, though not so adjudged, are
found by the Court on enquiry to be incapable, by reason of any mental infirmity,
of protecting their interest when suing or being sued.

Rule 16 lays down that :

(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing
or being sued in the name of his State, or being sued by the direction of the Central
Government in the name of an agent or in any other name.
(2) Nothing contained in this Order shall be construed as affecting or in any way
derogating from the provisions of any local law for the time being in force, relating
to suits by or against minors or by or against lunatics or other persons of unsound
mind.
Q. 31. Suit by or against indigent person

Rule 1- 18 of Order XXXIII of the Code of Civil Procedure deals with the suits
filed by indigent persons. 

Rule1 gives us the definition of an indigent person. Any person who does not
possess sufficient means to pay the requisite fee as prescribed by the Court Fee
Act. However, Rule 1 also states that while considering sufficient means, the
valuation of the property possessed by an indigent person will be exempted from
attachment in execution of a decree and the subject matter of the suit. Such
exempted property is the basic need of living for the individuals. Thus, as per law,
it is not permitted to be attached. 

In cases where no such fee is prescribed by the Court Fee Act and if the applicant
does not possess property worth one thousand rupees or where the cost of the
property is less than one thousand rupees, then in such case, the person will be
considered as an indigent person. However, this rule has the same exception as
mentioned above.

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the
authority to do an inquiry. The inquiry is conducted in the first instance to know if
an applicant is an indigent person or not. It is upon the discretion of the court
whether to accept the report submitted by such an officer or make an inquiry.

Rule 2 As per Rule 2 of Order XXXIII, the application must include the particulars
similar to what is mentioned in the plaint and all movable or immovable properties
of the indigent person/applicant along with its estimated value. 

Rule 3 The indigent person/applicant shall himself in person present the

application before the court. In case, such a person is exempted from appearing in
the court, an authorized agent may present the application on his behalf. In certain
circumstances where there are two or more plaintiffs, the application can be
presented by any of them.

Rule 4 The suit begins as soon as the application to sue as an indigent person is
duly presented before the court. Subsequently, the indigent person/applicant is
examined by the court. However, if the applicant is being represented by his agent,
then in such a case, the court may examine the applicant by the commission.
Rule 5 As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an
application seeking permission to sue as an indigent person in the following cases:

1. In case when the application is not framed and presented in the prescribed
manner. Here, the term ‘prescribed manner’ implies that the application
must abide by Rule 2 and Rule 3 of Order XXXIII. Rule 2 and Rule 3
deal with the contents of the application and its presentation respectively. 
2. The application can be rejected by the court in case the applicant is not an
indigent person. 
3. The application can be rejected by the court when the applicant has
fraudulently disposed of any property within two months before the
presentation of the application. It can also be rejected when the applicant
dishonestly applies only with the motive of just seeking permission from
the court to sue as an indigent person. 
4. The court possesses the power to reject the application filed by an
indigent person in an instance where there is no cause of action.
5. In case, where the applicant has entered into an agreement with any third
party and such agreement pertains to the subject matter of the suit
wherein the other party (other than the applicant) obtains interest, then, it
is one of the reasons for rejection of the application. It shows the
applicant’s intention to defraud the court. 
6. Rejection of application is done when the allegations indicate that the suit
is barred by any law.
7. Rejection of application is done in cases where any other individual
enters into an agreement with the applicant to help him financially in the
litigation.

Rule 6 It provides that the court is required to issue a notice to both the opposite
party and the Government pleader. Following which a day is fixed on which
evidence is received. On such a day, the applicant presents in the form of proof
about his indigency. The opposite party or the Government Pleader can present
their evidence opposing the applicant’s indigency. 
Rule 7 provides for the procedure to be followed at hearing of the application. The
court shall examine the witnesses (if any), produced by both the parties and hear
arguments on the application or evidence (if any) admitted by the court.
Subsequently, the court will either allow the application or reject it.
Rule 8 explains the procedure to be followed after the admission of the
application. The application after being admitted has to be numbered as well as
registered. Such an application will be considered as a plaint in a suit.
Subsequently, such a suit shall proceed in the same manner as an ordinary suit
does. 

Rule 9 states that the court has an option to revoke the permission granted to the
plaintiff to sue as an indigent person. The court can utilise this discretionary power
on receiving the application by the defendant or by the government pleader, in the
following circumstances:

1. Where the applicant is guilty of vexatious or improper conduct in the

course of the suit; or
2. Where the applicant’s means are such that he will not continue to sue as
an indigent person; or
3. Where the applicant has entered into an agreement under which another
person has obtained an interest in the subject matter of the suit. 

Rule 9A of the Code provides that the court will assist the indigent person by
assigning him a pleader. A pleader is a person who is entitled to appear and plead
on behalf of other persons in the court.

Rule 10 When an indigent person succeeds:

According to Rule 10 of Order XXXIII, where the plaintiff (indigent person)
succeeds in the suit, the court shall calculate the amount of court fees and costs and
recover the same from the plaintiff in the manner as if he had not been permitted to
sue as an indigent person. In case the plaintiff (indigent person) fails to pay the
amount, then in such case, the amount shall be recoverable by any such party that
was ordered by the decree. 

Rule 11 Where an indigent person fails:

According to Rule 11 and Rule 11-A Order XXXIII where the plaintiff (indigent

person) fails or the permission granted to the indigent person is withdrawn under
Rule 9A, or where the suit is withdrawn or dismissed, the court shall in such case
either order him (plaintiff) or a co-plaintiff to pay court fees and costs in the
manner as if he had not been permitted to sue as an indigent person. Where the suit
abates on account of the death of a plaintiff, such court fees would be recovered
from the estate of the deceased plaintiff.

Rule 12 According to Rule 12 of Order XXXIII, the state government possesses
the right to apply to the court to pass an order concerning payment of court fee to
be paid under Rule 10. 

Rule 13 deals with cases where the state government shall be deemed to be a party
to suit. 

Rule 14 provides that the court shall recover the court fee by forwarding the order
or decree to the collector who shall then collect the fee in the manner as if it were
an arrear of land revenue. 

Rule 15 In case if the application to sue as an indigent person is refused, he shall

still possess the right to file a suit in an ordinary manner. However, such a person
shall be denied to file an application of similar nature in respect of the same matter

Rule 17 provides that any defendant (indigent person) who wishes to file a set-off
or counterclaim shall be permitted to do so. 

Rule 18 states that apart from Order XXXIII of the Code, the state or the Central
Government may make additional provisions for free legal services in respect of
indigent persons. 

Lastly, it is to be noted that Rule 16 states that the costs in the suit will include the
costs of an application to sue as an indigent person as well as the cost of inquiry
into indigency.
Q. 32 Interpleader suit and its procedure
Introduction :
Apart from suits of ordinary civil nature disputed between the plaintiff and the
defendant there also exists a category of suits by the name of Interpleader Suits
which are disputed between the defendants only. Section 88 and Order XXXV of
the Code of Civil Procedure (CPC) defines and lays down relevant provisions with
respect to the Interpleader suit. The fundamental idea behind the interpleader suit is
“A person Confronted with conflicting demands that he do or pay something ought
not to be liable twice.
Definition
Under Section 88 of CPC, if two or more persons lay down adverse claims over a
sum of money, debt, or moveable/immoveable property from another person, such
another person may file an Interpleader suit in the court. The additional conditions
which must be fulfilled are as follows:

1. Such another person becomes the plaintiff and the former two or more
claimants are called the defendants.
2. The plaintiff must not claim any kind of interest in it apart from the
necessary charges incurred in filing such a suit or maintaining the
property.
3. The plaintiff should also be ready and willing to make such payment
or deliver the required possession.
4. On the date of the institution of the suit, no other suit must be pending
under which the defendants’ rights are decided or res judicata.

Under Rule 1 of Order XXXV of CPC, the plaintiff himself must not have any
interest in the subject-matter of dispute, the subject-matter must be severally
claimed by the defendants and there must not be any collusion between the
plaintiff and the defendants.
Case Law : Mangal Bhikaji Nagpase v. State of Maharashtra
in1997 the BombayHigh Court held that it is mandatory for the plaintiff to affirm
that he has no interest in the subject matter of the dispute other than costs and
charges.
Rule 4 of Order XXXV of CPC provides that at the first hearing of the suit, the
court is empowered to discharge the plaintiff of all liabilities in respect of the
property so disputed and claimed by the defendants. At the same, for the purpose
of justice and propriety, the court may even retain all parties and not discharge the
plaintiff of such liabilities. Additionally, the court may even provide the necessary
costs to the plaintiff and dismiss him for the suit to prevent further inconvenience
to him.
Rule 6 of Order XXXV of CPC, provides that upon the proper institution of the
Interpleader suit, the court may allow such costs to be reduced from the money,
debt or moveable/immoveable property claimed by the defendants. If not this, the
court may even resort to other efficient means for the same.
Under Rule 3 of Order XXXV of CPC, where the plaintiff was earlier sued by the
defendant with regards the same property, debt or money, such court where the suit
is pending, on being acquainted about the institution of the Interpleader suit, shall
stay the proceedings in the current suit. However, the proceedings are not
automatically stayed; the plaintiff (Interpleader) has to prove a prima facie case in
his or her favour.
Under Rule 5 of Order XXXV of CPC, the tenant and the agent cannot institute an
Interpleader suit against his or her landlord and principal respectively. This
prevents the tenant from challenging the landlord’s title to the property while the
tenancy is subsisting.
Example: A deposits a box of jewel with B as his agent. C alleges that the jewel
were wrongfully obtained from him by A and claims them from B. B cannot
institute an interpleader suit against A and C.
Case Law:

Satyanarain v. District Judge, Tonk & Ors

The petitioner has filed a suit against the respondent. But the case gets dismissed
by the civil judge. Then the third petitioner has filed a case against petitioner to
recover the rent along with the profit He filed an interpleader suit. In the judgment
of this case the judge dismissed the application of the petitioner under Order 35
Rule 5 of CPC. 

Conclusion
Thus, the Interpleader suit serves as an efficient mechanism to not only aid the
plaintiff but also the courts in reducing the burden of unnecessary suits over the
same matter. As already stated, section 88 and Order XXXV of the CPC are
fundamental provisions in this regard. The Interpleader suit serves as a significant
measure to protect a bonafide person from future condemn in terms of non-
fulfillment of his or her obligations due to unnecessary confusion arising due to
multiple claims
Q. 33. Settlement of Dispute outside Court / ADR
Introduction
An out-of-court settlement occurs when the two parties make an agreement on any
claim without having a judge come to a decision in the case. However, the most
common way to reach a solution in a dispute without having to go to court,
“Alternative Dispute Resolution” (ADR).
Section 89 of Civil Code Procedure provides for alternate dispute resolution
methods. Civil Code Procedure (CPC) being a procedural Law provides for and
thus it needs to be efficient, simple and expeditious for the substantive Law to
work better. In order to enable the parties to finally resolve their pending cases
through well-established dispute resolution methods other than litigation. Section
89 CPC has therefore recognized the need and importance of ADR even at the post
litigation stage.
As Per Section 89 of CPC:
(1) Where it appears to the Court that there exist elements of a settlement which
may be acceptable to the parties, the Court shall formulate the terms of settlement
and give them to the parties for their observations and after receiving the
observations of the parties, the Court may reformulate the terms of a possible
settlement and refer the same for :
(a) arbitration;
(b) conciliation
(c) judicial settlement including settlement through LokAdalat
(d) mediation.

(2) Were a dispute has been referred

(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation
Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act
(b) to LokAdalat, the Court shall refer the same to the LokAdalat in accordance
with the provisions of sub-section (1) of section 20 of the Legal Services Authority
Act, 1987 (39 of 1987) and all other provisions of that Act shall .apply in respect
of the dispute so referred to the LokAdalat
(c) for judicial settlement, the Court shall refer the same to a suitable institution or
person and such institution or person shall be deemed to be a LokAdalat and all the
provisions of the Legal Services Authority Act, 1987 (39 of 1987) shall apply as if
the dispute were referred to a LokAdalat under the provisions of that Act
(d) for mediation, the Court shall effect a compromise between the parties and
shall follow such procedure as may be prescribed.”

The 4 Methods of Alternative dispute Resolution are:

a.Arbitration
b.Conciliation
c.Judicial settlement (LokAdalat)
d.Mediation

a. Arbitration
It is one of the modes of dispute resolution mentioned under Section 89,
CPC. In India, Arbitrator is considered to be an unbiased independent third
party who resolves conflicts between the parties. Before establishment of
Section 89 of CPC, arbitration was an option available to the parties of the
suit, with consent, which was sub judice before the court of law under
Arbitration and Conciliation Act, 1996. Many prefer Arbitration as a mode
of resolution as it is an institution which has autonomy and there is
minimum judicial intervention. It observed that the regime of the Arbitration
Act outlines that once an arbitrator has been appointed; all objections and
issues are to be decided by the arbitrator.
No party to any suit be coerced to give consent for opting out of court
settlement, and such reference to arbitration would not be accepted under
Section 89, CPC.

Case Law
Afcons Infrastructure Case, it was held that the consent of both the parties
was essential in order to refer the dispute under Section 89. The parties to a
contract can sign a pre-existing agreement to solve any dispute arising
through arbitration. On the other hand, if no such agreement has been made,
one party can’t be forced to agree for out of court settlement.

b. Conciliation
Conciliation is a private dispute resolution where a third party who is an
expert is appointed to reach an amicable settlement. Conciliation is a form of
alternative dispute resolution (ADR) in which a person or panel of persons
 assisting the parties must act independently and impartially for a harmonious
dispute resolution.
According to the Supreme Court, any dispute referred to Conciliation as a
forum of ADR, the consent of the parties is a necessity. Where a dispute has
been referred: for arbitration or conciliation, the provisions of the Arbitration
and Conciliation Act, 1996 shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act.
The UNCITRAL Rules of Conciliation, 1980, acknowledged “the value of
conciliation as a method of amicably settling dispute arises in the context or
subject of international commercial relations and that adoption of
conciliation rules by countries the difference in legal, social and economic
systems give for the development of amicable economic relations in
international level”.
The conciliator strives in generating options and finding a compatible
solution for both parties to reach an amicable settlement. The Conciliator is
bound to abide by certain norms of objectivity, fairness and justice. In
regards to Conciliation, a party may terminate proceedings at any point of
time but in arbitration termination of proceedings is not possible. In
Arbitration, the termination is possible only when the other party agrees to
terminate, otherwise, they are bound to wait for the decision of the arbitrator.

c. Mediation
Mediation is where an independent third party assists the parties in the suit
in reaching a negotiated resolution by resolving the dispute. Mediation was
legally recognized under the Industrial Dispute Act, 1947 before the Code of
Civil Procedure amendment act was passed by the parliament in 1999.
Under the provision in CPC, the consent of the parties is mandatory for
referring cases. it was made mandatory for referral of mediation. Hence, the
courts refer to parties through the mediation process without their consent. It
is a non-adversarial approach towards dispute resolution and is a well-
recognized ADR process all over the globe. The role of the mediator is to
facilitate the parties to find solutions on their own and in a pragmatic
manner. The main objective behind this is to guide the parties with problem
solving, helping them communicate with each other effectively and
ultimately negotiate the dispute. When the agreement is made with the
consensus of the parties the mediators send the report of such a settlement to
the court. The court after hearing the parties regarding the dispute shall give
 effect to the compromise and the decree is passed based on the terms and
conditions agreed by the party.

Case Law
It was said in Moti Ram (D) Tr. Lrs. & Anr. vs. Ashok Kumar & Anr(2011) 1
SCC 466,
the court tries to explain the need for confidential proceedings. The court has
observed that if mediation fails, the mediator has to inform the court that it
was unsuccessful and shall not give any reasons for the failure of consensus.
During mediation the parties might make offer, counteroffer and various
proposals, if the reason is disclosed then it would destroy the purpose of
opting out of court settlement. Mediation is considered to be a simpler form
of dispute resolution as it facilitates the discussion between the parties,
communicating through a mediator who helps in identifying the issues and
in reaching a solution for the dispute.

d. Judicial settlement (LokAdalat)

Under the said draft Civil Procedure – ADR and Mediation Rules, 2003,
Judicial settlement was defined as : “’Judicial settlement’ means a final
settlement by way of compromise entered into before a suitable institution or
person to which the Court has referred the dispute and which institution or
person are deemed to be the Lok Adalats under the provisions of the Legal
Service Authority Act, 1987 (39 of 1987) and where after such reference, the
provisions of the said Act apply as if the dispute was referred to a Lok
Adalat under the provisions of that Act.”
In this dispute process, the court suggests the party to another judge who
maybe more appropriate for resolving the dispute. Since another judge is
involved in the process, the settled matter has to be produced before the
court again and the decree shall be passed accordingly.

Lok Adalat is governed by Legal Services Authorities Act, 1987 . It is a

mechanism in which the case at pre-litigation stage is settled through
compromise. Under the said Act, the award (decision) made by the Lok
Adalat is deemed to be a decree of a civil court and is final and binding on
all parties and no appeal against such an award lies before any court of law.
If the parties are not satisfied with the award of the Lok Adalat though there
is no provision for an appeal against such an award, they are free to initiate
 litigation by approaching the court of appropriate jurisdiction by filing a case
by following the required procedure, in exercise of their right to litigate.

Case Laws

Venkatesh vs. Oriental Insurance Co. Ltd 2002 (2) KarLJ 519.
The Karnataka High court held that at the request of any one of the parties
the Court can refer to Lok Adalat under section 89. However, this is done if
the Court believes that the case to be a “fit case” for the referral of Lok
Adalat. The court in this case said that, the Bench has the duty to identify the
elements in those situations which deserves negotiation.

Bharvagi Constructions vs. KothakapuMuthyam Reddy

The Supreme Court states that in order to challenge the award through writ
petition, the plaintiff has to file the same before the High Court challenging
the case regarding the legality of the award.

State of Punjab and Anr vs. Jalour Singh (2008) 2 SCC 660
In this case, the court discussed the remedy available to the aggrieved part of
the award passed by the Lok Adalat. The Supreme Court stated that an
appeal can be filed against an order passed by the Lok Adalat. The exception
to this is when the parties have already agreed upon to arrive at a settlement
through Lok Adalat. In such situations, the aggrieved party can file a petition
under Article 226 and/or Article 227 of Constitution of India, which is
subject to limitations.
Conclusion
Section 89 does not impose a mandatory duty upon the court to refer the parties to
arbitration, conciliation, mediation or LokAdala. It is discretionary, if the court wants
to refer the case for ADR depending upon each case.
Q. 34. Appeals from orders and decrees to HC & SC
Introduction
An appeal is a remedial concept determined as an individual’s right to seek justice
against an unjust decree/order via referring it to a Superior Court. Sections 96 to
99A; 107 to 108 & Order 41 of the  Code of Civil Procedure, 1908 deal with
appeals from original decrees known as First appeals. 
Appeals from decree
Appeal is provided under Section 96 of the CPC, which says that except as
provided in CPC or any other law for timbering in force, an appeal shall lie from
any decree passed by court exercising Original Jurisdiction to appeal Court
authorized to hear the appeal from the decision of the Court i.e.
Section 96 makes it clear that no appeal lies from appeal decree passed by the
Court with the consent of the parties. However, an appeal may lie fro original
decrees which is passed exparte i.e. without hearing of the parties. No appeal lies
against the decree passed by small cause court, if the value of the subject-matter
does not exceed Rs. 10,000 except on appeal question of law. Ordinarily, only
appeal party to the suit adversely affected by appeal decree or any of his
representatives in interest may file an appeal. However, appeal person who is not
appeal party to the decree or order may prefer an appeal with leave of the court, if
he is bound or otherwise prejudicially affected by such decree or odder, as in such
an eventuality he may be said to be an “aggrieved person.”5
First appeal
Section 96 of the CPC provides that an appeal shall lie from a decree passed by
any Court exercising original jurisdiction to the authorized appellate Courts, except
where expressly prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the
CPC indicates that a regular First appeal may/may not be maintainable against
certain adjudications. 
Section 97 provides that the failure to appeal against a preliminary decree is a bar
to raising any objection to it in the appeal against a final decree. 

Section 98 is Decision where appeal heard by two or more Judges .

(1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be
decided in accordance with the opinion of such Judges or of the majority (if any) of
such Judges. (2) Where there is no such majority which concurs in a judgment
varying or reversing the decree appealed from, such decree shall be confirmed:

Section 99 No decree shall be reversed or substantially varied, nor shall any case
be remanded in appeal on account of any misjoinder or non-joinder of parties or
causes of action or any error, defect or irregularity in any proceedings in the suit,
not affecting the merits of the case or the jurisdiction of the Court.

Provided that nothing in this section shall apply to non-joinder of a necessary

party.

Second appeal
Section 100 provides for a second appeal under this code. It states that an appeal
shall lie to the High Court from a decree passed in the first appeal by a subordinate
Court, excepting the provisions speaking to the contrary. The scope of exercise of
jurisdiction under this section is limited to a substantial question of law framed at
the time of admission of appeal or otherwise. 
Who can appeal?
1. Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party has been adversely affected by the decree provided his name
was entered into record of suit.
2. An auction purchaser from an order in execution of a decree to set aside the
same on the grounds of fraud.
3. Any person who is bound by the decree and decree would operate res judicata
against him.
Case Law
Sadhu Singh v. Dharam Dev 1981 SCC 510
In this case, in Punjab there used to appeal right of premption and in Muslim
Personal Law, if appeal person wants to sell immovable property, he must ask the
person who have adjoining property.
In 1973, an Act was passed, Punjab Premption Repeal Act, 1973 by which
premptory right was abolished. Provision: “No Court shall pass appeal decree in
any preemption suit.” In this case, decree has already been passed by Court of
Original jurisdiction and matter was pending in appeal.
The issue before the Court was that: Whether the appellate Court can pass appeal
decree?
It was held that the lower Courts decree would get merged into appellate Courts
decree. Where decree is drawn on appellate order and once act passed, no
premptory right. In this proceeding the appellate Court is deprived of power to pass
appeal decree.

Appeal from Orders

Under section 104, an appeal lies against following five orders only and from no
other order:
1. an order for payment of compensatory cots under section 35A
2. an order under section 91 or section 92 refusing leave to institute a suit of
the nature referred to in section 91 or section 92, as the case may be
3. an order under section 95
4. an order under any of the provisions of this Code imposing a fine or
directing the arrest or detention in the civil prison of any person except
where such arrest or detention is in execution of a decree;
5. any order made under rules from which an appeal is expressly allowed by
rules
As regards to caluse 1 above, no appeal shall lie against any order specified to save
on the ground that no order, or an order for the payment of a less amount, ought to
have been made
Section 105 Save as otherwise expressly provided, no appeal shall lie from any
order made by a Court in the exercise of its original or appellate jurisdiction; but
where a decree is appealed from, any error, defect or irregularity in any order,
affecting the decision of the case, may be set forth as a ground of objection in the
memorandum of appeal.
Section 106 Where an appeal from any order is allowed it shall lie to the Court to
which an appeal would lie from the decree in the suit in which such order was
made, or where such order is made by a Court (not being a High Court) in the
exercise of appellate jurisdiction, then to the High Court.
Appealable orders
Order 43, Rule 1: An appeal will lie from the accompanying requests under the
arrangements of Section 104, specifically:
o An Order under Rule 10 of Order VII is for restoring a plaint to be exhibited
to the correct court, with the exception of  the system which is determined in
Rule 10-A of the Order has been pursued. Which says that court can add any
person as party at any point of proceedings.
o An Order under Rule 9, Order IX dismissing an application (for a situation
open to appeal) for a request to put aside the expulsion of a suit.
o An Order under Rule 13 of Order IX dismissing an application (for a
situation open to appeal) for an order to put aside a decree passed out.
o An Order under Rule 21 of Order XI, if there should be an occurrence of
rebelliousness with an order for disclosure.
o An Order under Rule 34 of Order XXI is for an issue with the draft of the
report of support.
o An Order under Rule 72 or Rule 92 of Order XXI saving or declining to put
aside a deal.
o An Order dismissing an application under sub-rule (1) of Rule 106 of Order
XXI, gave that a request on the first application, in other words, the
application alluded to in sub-rule (1) of that Order is appealable.
o An Order under Rule 9 of Order XXII declining to put aside the reduction or
rejection of a suit.
o An Order under Rule 10 of Order XXII giving or declining to give leave.
o An Order under Rule 2 of Order XXV dismissing an application (for a
situation open to offer) for a request to put aside the rejection of suit.
o An Order under Rule 5 or Rule 7 of Order XXXIII dismissing an application
for authorization to sue as a poor individual.
o Orders in interpleaded suits under Rule 3, Rule 4 or Rule 6 of Order XXXV.
o An Order under Rule 2, rule 3 or rule 9 of Order XXXVIII.
o An order under rule 1, rule 2, rule 2A, rule 4, or rule 10 of Order XXXIX;
o An order for refusal under rule 19 of Order XL1 to re-concede, or under rule
21 of Order XLI to re-hear, an intrigue or appeal;
o An order under rule 23 or rule 23-A of Order XLI remanding a case, where
an appeal would lie from the pronouncement of the investigative court;
o An order under rule 4 of Order XLVII giving an application for the survey.
Appeals to Supreme Court
When a decree is appealed to a superior court initially, it is called the first appeal
and if the same is appealed again, a second appeal lies to the High Court. But when
a High Court passes a decision against one party and against another, the
judgement debtor may even appeal to the Supreme Court. The provisions deals
with the appeal to Supreme Court are provided under the Constitution of India
which is Article 132 to 133-A along with Section 109 and Section 112 of the Code
of Civil Procedure, 1908.

Under section 109, Subject to the provisions in Chapter IV of Part V of the

Constitution and such rules as may, from time to time, be made by the Supreme
Court regarding appeals from the Courts of India, and to the provisions hereinafter
contained, an appeal shall lie to the Supreme Court from any judgment, decree or
final order in a civil proceeding of a High Court, if the High Court certifies-

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by
the Supreme Court.

 Appeals to supreme court under constitution

An appeal lies to Supreme Court in following two cases :

1. An appeal from High Courts in Constitutional Case (Art 132-133)
Article 132 provides for the appellate jurisdiction of Supreme Court in
appeals from High Courts in cases where an appeal shall lie to the Supreme
Court from any judgment, decree or final order of a High Court in the
territory of India, whether in a civil, criminal or other proceeding, if the
High Court certifies under Article 134A that the case involves a substantial
question of law as the interpretation of this Constitution

2. Appeals from High Court in Civil cases (Art 133)

(1) An appeal shall lie to the Supreme Court from any judgment, decree or
final order in a civil proceeding of a High Court in the territory of India if
the High Court certifies under Article 134A
(a) that the case involves a substantial question of law of general
importance; and
(b) that in the opinion of the High Court the said question needs to be
decided by the Supreme Court
(2) Notwithstanding anything in Article 132, any party appealing to the
Supreme Court under clause ( 1 ) may urge as one of the grounds in such
appeal that a substantial question of law as to the interpretation of this
Constitution has been wrongly decided
(3) Notwithstanding anything in this article, no appeal shall, unless
Parliament by law otherwise provides, lie to the Supreme Court from the
judgment, decree or final order of one Judge of a High Court.
Conclusion
The expression appeal has not been defined in the Code of Civil Procedure
1908. It is an application or petition to appeal higher Court for are
consideration of the decision of appeal lower court. It is appeal proceeding
for review to be carried out by appeal higher authority of appeal decision
given by appeal lower one.
Q. 35. Explain reference, review and revision
Introduction
In India, there are three tiers Judiciary i.e. District Courts, High Courts and hon’ble
Supreme Court of India. The appeal, review and revision lies in all the three Courts
depending on which Court’s Order is being challenged. Therefore it is necessary to
know the nature and scope of all these three words and also how they are different
from each other. It is imperative to know the scope of all these to exercise the
power of reviewability against the impugned order of the respective Court. In this
paper I am going to discuss in elaborative manner the extent and scope of
“Reference, Review and Revision”.
Reference
Reference is dealt under Section 113 of the Code. It mentions that a subordinate
court can refer a doubt to the High court where the former thinks that there should
not be misinterpretation with regard to any law. This is called a reference. No party
to the suit has the right to apply for reference. It is only the subordinate court
which has the power of reference suo-moto (on its own motion) when there is
doubt regarding the validity of any legal provision.
For matters other than the validity of legal provisions, the court is not bound to
refer to the High court. So, when the court feels that it needs clarification regarding
any matter which is pending, it can seek an opinion from the High court avoid to
the commission of errors while rendering a judgement. If there is reasonable doubt
regarding the question of law, subordinate courts can exercise the right of reference
under the following situations when:

 A question as to the validity of any act, rule, regulation, ordinance, etc.,

arises in the court where the suit is being entertained
 The court is of the opinion that such act or any other provision of law is
invalid (“ultra vires” means “beyond the powers”) or inoperative
 Such question on the provision of law is never before made invalid either by
the High court or Supreme court
 It is pertinent for determining the validity of such provision of law for
disposal of the suit

Object - The object for the provision of reference is to enable subordinate courts to
obtain in non-appealable cases the opinion of the High Court in the absence of a
question of law and thereby avoid the commission of an error which could be
remedied later on. The right of reference, however, is subject to the conditions
prescribed by the order 46 Rule 1 and unless they are fulfilled, the High court
cannot entertain a reference form a subordinate Court.

Order 46 of the Code lays down the conditions which should be satisfied by the
subordinate court in order to make a reference to the High court. They are:

 The suit or appeal must be pending wherein no further appeal lies from
decree or order of such suit or appeal respectively
 The question of law must arise during the course of proceedings, i.e., the
pendency of the suit
 The court must be entertaining the suit from which such doubt regarding the
question of law has arisen

where such reference has been made to the High court, the subordinate court may
pass a decree, taking into consideration, the opinion of the High court.

Review

A review is mentioned under Section 114 of the Code. An aggrieved party can file
an application for review in the same court where the decree has been passed. This
provision enables the court to review its own judgement in case of any error or
mistake made with regard to the decision rendered, to rectify the same. While
Section 114 is a substantive right, the procedure for the same has been provided for
under Order 47 of the Code. The application for Review can be filed under the
circumstances where:

 a decree or order is appealable as provided by the law, but no such appeal

has been preferred
 there is no provision for appeal from certain decree or order
 a decision is passed by the court of Small Causes

The grounds for filing review application are:

 discovery of new facts when there is no knowledge about the same or could
not produce the same due to negligence, prior to the time when the decree
was passed
  the error apparent on the face of the record which means errors which do not
give rise to re-arguments of the whole case and those which are not related
to erroneous decisions
 any other sufficient grounds as provided by the Code, wherein the
misconception of the court can be considered as sufficient ground

The application for review shall be filed within 30 days from the date of
order/decree. The order or decree passed after such review shall be final and in
force. The review petition is discretionary of a court, meaning, it can either choose
to entertain or reject the application.

As a matter of fact, the Supreme court can also review its own decisions under
Article 137 of the Constitution of India. As per Supreme Court Rules, 1966, the
review petition should be filed within thirty days from the date of judgment.

Object - Any human being can make a mistake or error and so do the judges. So,
the procedure of Review has been embedded in the legal system to correct the
mistakes and prevent any miscarriage of justice as held in the case of S.Nagraj v.
State of Karnataka.  The review application is not an appeal or revision made to
the superior court, but it is a request to recall and reconsider the decision made
before the same court.

Revision

The High court has the power to call for a re-examination of any case which has
been decided by the subordinate court without appropriate jurisdiction. This power
of the High court is called Revisional Jurisdiction of only High court which is
mentioned under Section 115 of the Code. The revisional jurisdiction is not a
substantive right but is merely a privilege given to the applicant. An application for
revision can be made by the parties to the suit under the following circumstances
where the subordinate court has:

 not exercised jurisdiction as conferred by law (wrongful assumption of the

court regarding the jurisdiction)
 failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction
by the court)
 illegally exercised its jurisdiction (irregular exercise of jurisdiction by the
court)

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

1. The case must be decided.

2. The revisional jurisdiction is exercised when no appeal lies in the case
decided by the subordinate court.
3. The subordinate court has decided such case by exercise of jurisdiction
which is not vested to that court by law., or it has failed to exercise the
vested jurisdiction, or illegal exercise of the vested power or with
immaterial irregularity.

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

Object - The object behind empowering the High Court with revisional jurisdiction
is to prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate
court. Under section 115 the High Court is empowered to keep an eye on the
proceedings of subordinate courts that the proceedings are being conducted in
accordance with the law, under its jurisdiction for which it is bound for and in
furtherance of justice as held in the case of Major S.S Khanna v. Brig. F.J. Dillion. 
According to article 131 of the Limitation Act, 1963 for a revision of the decree or
order, the limitation period is 90 days. The revision application is required to be
made before the High Court within the limitation period.

Conclusion
Reference is made by a subordinate court to the High court where there is a doubt
regarding the question of law.
The review is made by the same court which has passed the decree to rectify the
mistake or error on the record.
Revision application is made to only High court when the decree passed by
subordinate court is not in accordance with appropriate jurisdictions.
Q. 36. Caveat

Introduction :

A Caveat is a Latin term which means, 'let a person beware'. To avoiding ex-parte
orders or judgments in civil proceedings the CPC has provided right to a person,
called a caveat. Caveat Petition is explained under section 148-A of the civil
procedure code, 1908.  Caveat petition is defined as a precautionary measure taken
by a person, one who has a great fear or nervousness, that some of the other cases
against him or her are going to be filed in the court of law relating to any manner.

Meaning :

The word 'Caveat' is not defined in the Code. However, in the case of Nirmal
Chand v. Girindra Narayan, the Court had defined the word Caveat, wherin it said,
A Caveat is a caution or warning given by a person to the Court not to take any
action or grant relief to the other side without giving notice to the caveator ( who
files the caveat) and without affording opportunity of hearing him.

Object :

The purpose of this section is to protect the interest of the Caveator, who is
prepared to face a suit or proceeding that is expected to be instituted by his
opponent, he has the opportunity to hear, before an ex-parte order is given. Also, to
avoid a multiplicity of proceedings, so as to save the costs and conveniences of the
courts.

Who may file Caveat : (Clause 1)

A caveat may be filed by any person who fulfills the qualifications prescribed in
the sub-section (1) of the Section 148 A-
    Who is going to be affected by an interim order likely to be passed on an
application that is expected to be made in a suit or proceeding instituted or about to
be instituted in a court.
      A person who is stranger to the proceeding cannot lodge a caveat. Similarly, a
person who supports an application for interim relief made by the applicant also
cannot file a Caveat.
     In the case of Kattil VayalilParkkum Koiloth V. Mannil Paadikayil Kadeesa
Umma,  the principle was laid down that a caveat cannot be lodged by a person
who is a total stranger to the case.
 Duties of the Caveator (Clause 2)
This clause is directive in nature. The person by whom the Caveat has been lodged
is called a Caveator. He shall,
·Serve a notice of the Caveat by registered post, acknowledgement due
·On the person by whom the application has been made
·On the person by whom the application is expected to be made

Duty of the Court (Clause 3)

After a Caveat has been lodged under Clause 1, if any application is filed in any
suit or proceeding, the Court shall serve a notice of the application on the
Caveator. This clause is mandatory in nature.

Duties of the Applicant (Clause 4)

It is directive in nature and says that, where a notice of any Caveat has been served
on the applicant, he shall furnish, at the expense of the Caveator,
·A copy of the application made by him.
·Copies of any paper or document which has been filed by him in support of his
application.
·Copies of any paper or document which may be filed by him in support of his
application.

Life of a Caveat Petition (Clause 5)

The life of the petition is 90 days, from the date on which it was lodged. The only
exception is, if the application already exists, or has been made before the said
period, the clause ceases to exist.

What does caveat contain?

The caveat or a notice given to the court, that some action may not be taken
without notifying the caveator, should contain the following information:
1.     Name of caveator;
2.     The address of the caveator where the notice will be sent;
3.     The name of the court where such caveat is filed;
4.     Number of suits and number of appeals, if applicable;
5.     A brief description of a lawsuit or appeal likely to be filed;
6.     Name of probable plaintiffs or appellants and respondents.
Notice:-
                   If an application is made in any lawsuit or legal proceeding, after the
filing of a caveat, the caveator is required to give notice of such application by the
court. When a notice has been given to the applicant, it is necessary to provide a
copy of the application along with the copies of the papers and documents
submitted by him in support of his application, at the expense of the caveator, to
the caveator. If the court or applicant ignores the caveat and does not notify the
caveator, the judgment or judgment passed becomes null and void.

Case Law

Reserve Bank of India Employees association & Anr. V. The Reserve Bank of India
and Ors.

In this case, the appellants had filed a Caveat, apprehending an application which may be filed
by the respondent in the present case. It was a revision petition under section 115 of the Code.
The application was for grant of an injunction against restraining them from holding any meeting
or, staging any demonstration or resorting to any other form of direct action or playing musical
instruments, beating of drums, using microphones, etc., within the premises of the Reserve Bank
of India, Hyderabad Branch.

A caveat petition was filed on 01-10-1980 apprehending the above, for which a notice was
served on the plaintiff on 08-10-1980. On 27-10-1980, copies of the intended application for
interim relief, relevant papers and documents were served on the Caveators. The plaintiff's also
informed the caveator's that they will be moving the application on 28-10-1980. The case was
not heard on 28th and was just passed over. It was later heard on 30-10-1980, and an order of
injunction was passed without giving any notice to the caveators.

Caveators contended that the interim orders of injunction passed by the court on 30.01.1980 was
null and void, as it was passed without jurisdiction, contrary to section 148A of the CPC, 1908.
The issues were that,

1. Whether the order of the learned Judge injuncting the present caveators without giving a
notice is null and void ?

2. Whether the order stands till it is set aside according to the procedure known to law ?

It was argued that,

a) The term “notice of application” mentioned in clause(3) is not defined under the code.
b) However, it cannot relate to anything except the date of hearing, which is well established by
a simple reading of the section.
c) The failure is a failure with respect to jurisdiction or merely its procedure?
d) If jurisdictional failure, the order is null and void.
e) If procedural failure, the order needs to be set aside in an appropriately constituted legal
proceeding.
The court in the case at hand opined, The powers of a Civil Court are too sacrosanct to be
allowed to be diluted or to be curtailed by a mere remote implication. I, therefore, hold that as
there is no specific provision declaring any action taken by the Court contrary to its mandatory
duty under Sub-section (3) to give a notice would be void, the order passed by the Court below
on 30-10-1980 is not a nullity. In other words, it appears to me that the mere lodgment of a
caveat would not deprive the Court of its power to pass an order even if the caveat or was not
informed of the dale of hearing of the matter. As the lodgment of a caveat is merely a right to be
informed of the hearing date and it has no effect by way of curtailing the powers of a Civil Court
to pass an appropriate order on the merits of the case, I hold that the order passed in this case on
30thOctober, 1980 is not without jurisdiction and is, therefore, operative till it is set aside in
appropriate proceedings

Conclusion

While concluding this we can say that the section 148A of the Code gives the
power to any person, who has a fear or nervousness that some of the other cases
against him or her are going to be filled in a court of law in any manner, to lodge a
caveat in the court. If an application, that the caveator had anticipated, is made
within 90 days of filing the caveat, then a notice, informing him about the filling of
such an application, is to be served by the applicant as well as the court to the
caveator. The validity of any judgment or order passed, without such notice or a
reasonable opportunity to the caveator to be heard, would be null and void
 LIMITATION
Q1 Effect of Acknowledgement in writing of limitation act?
Introduction
Acknowledgement is a statement in writing that a debt is due and unpaid.

An acknowledgment is not limited in respect of a debt only it may be in respect of ‘any property
or right’ which is the subject-matter of the suit.

Section 18 of the Limitation Act, 1963 provides that-

(1) Where before the expiration of the prescribed period for a suit or application in respect of any
property or right, an acknowledgment of liability in respect of such property or right has been
made in writing signed by the party against whom such property or right is claimed through
whom he derives his title or liability, a fresh period of limitation shall be computed from the time
when the acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of
the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872, oral
evidence of its contents shall not be received.

(3) Explanation
For the purpose of this Section, —
(a) An acknowledgment may be sufficient though it omits to specify the exact
nature of the property or right or avers that the time for payment, delivery,
performance or enjoyment has not yet come or is accompanied by a refusal
to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set off,
or is addressed to a person other than a person entitled to the property or
right.
(b) (b) The word ‘signed’ means signed either personally or by an agent duly
authorised in the behalf.
(c) (c) An application for the execution of a decree or order shall not be deemed
to be an application in respect of any property or right.

(4) Section 18 of the Limitation Act deals with the requirement for an authority of
acknowledgement which can be summarised as under:

(i) An admission of the acknowledgement.

 (ii) Such acknowledgement must be in respect of a liability in respect of property.

(iii) It must be made before the expiry of the period of limitation.

(iv) It should be in writing and signed by the party against whom such property or
right is claimed or an agent duly authorised in this behalf.

(5) A receipt may be an acknowledgement of the previous debt and be an

acknowledgement within the meaning of the Section 18 and if the following three
conditions are satisfied namely—

(i) The acknowledgement must have been made before the expiration of the
period prescribed for the suit;
(ii) It must be a clear and unambiguous acknowledgement specifically admitting
liability in respect of the debt sued upon; and
(iii) It must be signed on stamp by the party or his authorised agent.

Case law

K.M. Mohammed Sultan v. K.S. Muhammed Nurdin, (1963) 1 MLJ 300

It has been held that acknowledgement of the portion of the claim can be used to save limitation
only with respect to the portion of the claim acknowledged.
Q.2. What is Limitation? When it can be extended under the various
provision of limitation act.
The Limitation Act contains 32 Sections and 137 Articles. The articles have
been divided into 10 parts. The first part is relating to accounts, the second part
is relating to contracts, the third part is relating to declaration, the fourth part is
relating to decrees and instrument, the fifth part is relating to immovable
property, the sixth part is relating to movable property, the seventh part is
relating to torts, the eighth part is relating to trusts and trust property, the ninth
part is relating to miscellaneous matters and the last part is relating to suits for
which there is no prescribed period.

The basic concept of limitation is relating to fixing or prescribing of the time

period for barring legal actions. According to Section 2 (j) of the Limitation
Act, 1963, ‘period of limitation’ means the period of limitation prescribed for
any suit, appeal or application by the Schedule, and ‘prescribed period’ means
the period of limitation computed in accordance with the provisions of this Act.

The Law of Limitation signifies to prevent from the last date for different legal
actions which can take place against an aggrieved person and to advance the
suit and seek remedy or righteous before the court. Where a suit is initiated after
the bar of limitation, it will be hit by the law of limitation. The main and the
fundamental aim of the law of limitation is to protect the lengthy process of
penalizing a person indirectly without doing any offence.

The law relating to Law of Limitation to India is the Limitation Act, 1859 and
subsequently Limitation Act, 1963 which was enacted on 5th of October, 1963
and which came into force from 1st of January, 1964 for the purpose of
consolidating and amending the legal principles relating to limitation of suits
and other legal proceedings.

A Court may grant extension of period of limitation in the following classes of

proceedings and no others:

(1) Appeals, (2) applications other than applications under Order 21, Civil
Procedure Code relating to execution. For obtaining an extension under
section 5 the appellant or the applicant must satisfy the Court that he had
 sufficient cause for not preferring the appeal or making the application
within the prescribed period. What is a sufficient cause” has no where
been defined in the Limitation Act except that the Explanation indicates
what shall be the sufficient cause in the case of an appellant, or who was
misled by any order, practice or judgment of the High Court in
ascertaining or computing the prescribed period. But it has been held that
sufficient cause must mean a cause which was beyond the control of the
party invoking the aid of Section 5. A cause for delay which by due care
and attention a party could have avoided cannot be a suffi¬cient cause.
However the expression ‘sufficient’ cause’ should receive a liberal
construction so as to advance substantial justice when no negligence nor
inaction nor want of bona fide is imput-able to the appellant or applicant.
The extension of time cannot be obtained for filing a suit as Section 5
does not apply suits. The reason is that the period of limitation allowed in
most of the suits extends from three to twelve years, whereas in appeal
and applications, it does not exceed six months. Therefore it is necessary
that some concession should be made in respect of these appeals and
applications, to provide for circumstances which hinder a person from
filing his appeal or application within the short period of time allowed.

In Balakrishnan v. M.A. Krishnamurthy [5], it was held by the Supreme Court

that the Limitation Act is based upon public policy which is used for fixing a
life span of a legal remedy for the purpose of general welfare. It has been
pointed out that the Law of Limitation are not only meant to destroy the rights
of the parties but are meant to look to the parties who do not resort the tactics
but in general to seek remedy. It fixes the life span for legal injury suffered by
the aggrieved person which has been enshrined in the maxim ‘interest
reipublicae ut sit finis litium’ which means the Law of Limitation is for general
welfare and that the period is to be put into litigation and not meant to destroy
the rights of the person or parties who are seeking remedy. The idea with
regards to this is that every legal remedy must be alive for a legislatively fixed
period of time.
Q3. Explain the provisions of acquisition of rights by prescription and
creation of ownership by adverse possession under Limitation Act?
Ans
The Law of Prescription on the other hand prescribes a period at the expiry of which substantive
rights are either acquired or extinguished. Limitation only bars the remedy and Prescription
extinguishes the right of action, limitation is considered to be a species of prescription.
Section 25 and section 26 deal with acquisition of rights under easement by prescription.
Section 27 deals with the extinguishment of right to property. It is now possible to extend
the provisions of section 25 and section 26 to those parts of India to which the Indian
Easements Act, 1882 applies. Section 25 and section 26 of the limitation act corresponds
to section 15 and section 16 of the Indian Easements Act, 1882
Section 25 and section 26 deal with acquisition of rights under easement by prescription.
Section 27 deals with the extinguishment of right to property. It is now possible to extend
the provisions of section 25 and section 26 to those parts of India to which the Indian
Easements Act, 1882 applies. Section 25 and section 26 of the limitation act corresponds
to section 15 and section 16 of the Indian Easements Act, 1882
Acquisition of easement by prescription (section 25)
(1) where the access and use of light or air to and for any building have been peaceably enjoyed
therewith as an easement, and as of right, without interruption, and for twenty years, and where
any way or watercourse or the use of any water or any other easement (whether affirmative or
negative) has been peaceably and openly enjoyed by any person claiming title thereto as an
easement and as of right without interruption and for twenty years, the right to such access and
use of light or air, way, watercourse, use of water, or other easement shall be absolute and
indefeasible.
(2) each of the said periods of twenty years shall be taken to be a period ending within two years
next before the institution of the suit wherein the claim to which such period relates is contested.
(3) where the property over which a right is claimed under subsection (1) belongs to the
government that sub-section shall be read as if for the words "twenty years" the words "thirty
years" were substituted.
According to section 2(f) of the limitation act, 1963 "easement" includes a right not arising from
contract, by which one person is entitled to remove and appropriate for his own profit any part of
the soil belonging to another or anything grown in, or attached to, or subsisting upon, the land of
another.
According to section 4 of the easement act, 1882 easement is a right which the owner or occupier
of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to
do something, or to prevent and continue to prevent something being done, in or upon, or in
respect of, certain other land not his own."
Easement is acquired by prescription. prescription is the acquisition of title to land or to an
easement or an interest in land, by long user or enjoyment against the will of the former owner,
or in disregard of any other claim of title. title by prescription arises from a long continued and
uninterrupted possession of property but, neither by violence, nor by stealth nor, by leave asked
from time to time.

Scope of section 25
Section 25 of the limitation act, 1963 deals with the law regarding mode of acquisition of
prescriptive right as well as the procedure of the computation of the period prescribed under
which the right could be matured. the period for acquisition of ownership under this mode has
been prescribed 20 years of uninterrupted possession over the land of any person but in the case
of land belonging to government the period is 30 years. this prescribed period shall be taken to
be period ending within 2 years next before the institution of suit in each cases, wherein the
claim to which such period relates, is contested.
Further, this section is concerned only with the acquisition of the easement and does not purport
to measure the extent of the right or to indicate the remedy by which a disturbance of the right is
to be vindicated; for that recourse must be had to the english law. so, section 25 is remedial. it is
neither prohibitory nor exhaustive. a person may acquire a title under this section when he had
none at the beginning. but it does not exclude or interfere with other titles and mode of acquiring
easement.

Ingredients of section 25
Section 25(1) provides that where the access and use of light or air to and for any building have
been—
(1) peaceably enjoyed.
(2) as an easement,
(3) and as of right,
(4) without interruption, and
(5) for 20 years (30 years in the case of property belonging to the government), then such right to
such access and use of light or air becomes absolute and indefeasible.

Section 25(1) further provides that where any way or watercourse or the use of any water or any
other easement (whether affirmative or negative), has been—
(1) peaceably and openly enjoyed,
(2) by any person claiming title thereto
(3) as an easement,
(4) and as of right.
(5) without interruption, and
(6) for 20 years (30 years in the case of property belonging to the government), then the right to
use such way, water-course, use of water or other easement becomes absolute and indefeasible.
Section 25(2) further clarifies that the period of 20 (or 30, according to section 25(3)) years is to
be taken to be a period ending within two years before the institution of the suit wherein the
claim to which such period relates is contested.
Madina Begam v. Shiv Murthy Prasad Pandey, 2016 (4) JBCJ 63 SC –
The decision of the 3 Judges Bench of the Hon’ble Supreme Court in Ahmadsahab Abdul Mulla
(Dead) v. Bibijan and Others was followed in this case and the question “whether the use of the
expression “date” used in Article 54 of the Schedule to the Limitation Act is suggestive of a
specific date in the Calendar?” was addressed. The Apex Court held that the expression “date
fixed for performance” is a crystallized notion. When a date is fixed it means that there is a
definite date fixed for doing a particular act and, therefore, the expression “date” is definitely
suggestive of a specified date in the Calendar

Adverse Possession
The concept of adverse possession contemplates a hostile possession, i.e., a possession which is
expressly or impliedly in denial of the title of the true owner. it implies that it commenced in
wrong and is maintained against right. possession to be adverse must be possession by a person
who does not acknowledge the others' rights, but denies them. the principle of law is to firmly
establish the person who basis his title on adverse possession must show by clear and
unequivocal evidence that his possession was hostile to the real owner and amounted to a denial
of his title to the property claimed. for deciding whether the alleged acts of a person constituted
adverse possession the animus of the person doing those acts is the most crucial factor.
when a person goes out of india voluntarily or under compulsion, it is his duty to make some
arrangement to look after his property left in india. when he does not do that and a person enters
the land openly and continues to possess in assertion of his right and completes the requisite
number of years, he acquires title by adverse possession under section 27 of the / limitation act.
Further, a person who claims adverse possession has to prove that he has remained in
uninterrupted possession of the property to the knowledge of the true owner and has defied the
title of the true owner and asserted his own rights of ownership in the property to the exclusion
of the true owner. otherwise mere possession for any number of years cannot constitute adverse
possession.
Essentials of adverse possession
The following are the essentials of adverse possession:
1. the defendant must be in actual possession, mere entries in the record of the defendant's name
are not sufficient. the possession necessary to find a title by adverse possession under this section
is not different in character (though it may be in duration) from the possession required to
prevent limitation under article 64 or article 65. so, it is not necessary for the plaintiff to prove
affirmatively physical possession of every part of land. the only thing to be considered in such a
case is whether the acts of possession which have been proved will legitimately show that the
plaintiff had enjoyed such domination over the property in the manner in which such domination
is normally exercised so as to acquire title under this section.
2. the possession must be adequate, in continuity, in publicity and in extent to show that it is
adverse on the owner. it is not sufficient that some act of ownership have been done. the
possession must be open, notorious, actual, exclusive and adverse.
3. there must be an intention to hold the property. if the defendant believes that he is entitled only
to a life estate, and remains in possession with that belief, his possession is not adverse to that of
the plaintiff who shared his belief.
4. possession cannot be adverse if its commencement can be referred to a lawful title. thus, the
possession of a manager of a family or a guardian does not become adverse until he has
distinctly repudiated his title.
5. the possession does not become adverse to the plaintiff when there was no notice or
knowledge, or circumstances that could have given notice or knowledge to the plaintiff that the
defendant's possession was in displacement of his right. but the knowledge may be presumed
from an open and notorious act of possession.
6. possession does not become adverse to the plaintiff until the plaintiff is entitled to immediate
possession.
7. possession of a portion of the land cannot be held to constitute constructive possession of the
whole, so as to enable the possessor to obtain thereby title to the whole by limitation. a
wrongdoer gains title only to that portion of land which is actually held by him.