CIVIL PROCEDURE

CODE
3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW
UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
 Karnataka State law University 3 and 5 Years LLB.
ANIL KUMAR K T LLB COACH
Civil Procedure code and Limitation act
Most important previous year questions
1. Explain the kinds of Jurisdictions?
2. Write a note on foreign judgements?
3. State the rules regarding “Transfer of suits”
4. State the modes of service summons?
5. Write a note on Joinder of parties.
6. Elucidate the essentials contents of a written statement?
7. Write a note on rejection of plaint.
8. Explain the various modes of Execution of decree.
9. What is meant by issues? How issues are framed? State the powers of the
court to amend or strike out issues?
10.Write a note on Admissions.
11.State the procedure for instituting a suit by an indigent person?
12.Under what circumstances a reference can be made to High court?
13.Write a note on revision?
14.Limitation bars the remedy, but does not extinguish the rights’ Explain?
15.Once the time has began to run no subsequent disability or inability Stopsit.
Discuss.
16.‘A’ wife refused to returns to her husband and allow him the exercise of
conjugal rights. What is the period of limitation for ‘A’ Decide?
17.Explain the essential ingredients of summons. What are the different modes
of service of summons to defendant?
18.Explain the purpose for which commission can be appointed? What are the
powers of Commissioner?
19.Who may be joined as plaintiff and defendants? What are the effects of
misjoinder and non-joinder of parties?
20.What is attachment? Explain the properties which are not liable for
attachment and sale in execution of a decree.
21.What is appeal? Explain the various types of appeal provided under Civil
procedure code.
22.What is legal disability? Discuss the provisions in the limitation act affording
protection under such disability?
23.Discuss the provisions of CPC in respect of place of suing.
24.Discuss about reference under CPC.
25.Write a note Caveat petition?
26.Write a note on Affidavit?
27.Briefly describe the various stages of suit?
28.Discuss the provisions of the Civil Procedure Code, 1908 for granting
temporary injunctions.
29.Explain the procedure for attachment and sale of immovable property for
execution of a decree.
30.What are costs? Explain the different types of costs awarded in civil cases.
31.What is the special procedure to be followed in a suit by or against
partnership firm?
32.What is meant by executing court? What are its powers?
33.Write a note on pecuniary jurisdiction?
34.Write a note on fraud on period of limitation?
35.Explain the provisions of CPC relating to the parties to the suit, their joinder,
misjoinder and nonjoinder?
36.Define the term judgement and decree and state the difference between
the judgement and decree.
37.Explain the general principles of execution of decree.
38.Explain the provisions of CPC relating to the discovery, inspection and
production of documents.
39.Discuss the provisions of limitation act relating to the exclusion of time in
legal proceedings.
40.Write a note on Adjournment?
41.Write a note on Inter pleader suit?
42.Explain the general rules of Pleading?
43.What is Re Judicata? Explain the conditions to constitute of Re Judicata?
44.Whether death of a party to a suit abate the proceedings? Explain applying
rules under order XXII of CPC 1908/
45.Describe the provisions relating to institution of suit?

BY
ANIL KUMAR K T LLB COACH
1.Explain the kinds of Jurisdictions?

Introduction:

It can be said that Jurisdiction is the limit of a judicial authority. It is the extent
to which a court may exercise its authority over suits, cases, appeals, etc. It has
not been defined in the Code of Civil Procedure (hereinafter referred to as
“CPC”). It was derived from two Latin words: juris and dicto. Jurisdiction
determines the competency of the court to try the matter. Often people attach
a wrong meaning to jurisdiction. They tend to have a false belief that a court’s
jurisdiction can only be determined by its geographical limits, but that’s not
true. There are different kinds of jurisdiction. Therefore, it would be incorrect
to classify jurisdiction into only one kind i.e., territorial jurisdiction.

Kinds of Jurisdiction of Civil Courts

Original Jurisdiction

When the court has authority or power to try the matter, decide cases, suits,
etc in that court in the first instance would be called its original jurisdiction.

Appellate Jurisdiction

Appellate Jurisdiction is referred to as the power or authority conferred upon a

superior court to re-adjudicate a case that has already been adjudicated by a
lower court before.

Foreign Jurisdiction

As per Section 2(a) of the Foreign Jurisdiction Act, 1947, Foreign jurisdiction is
defined as “any jurisdiction which by treaty, agreement, grant, usage,
sufferance or other lawful means the Central Government has for the time
being in or in relation to any area outside India”

Exclusive Jurisdiction

This bestows power on particularly only one court to decide a case. In case of
exclusive jurisdiction, no other court would have the power to try those cases
which are being tried by courts having exclusive jurisdiction to try those cases.
Concurrent Jurisdiction

In case of concurrent jurisdiction, the party is free to approach any of the

courts that have share such concurrent jurisdiction. Concurrent Jurisdiction is
when various courts have jurisdiction over the same case.

Territorial Jurisdiction

Territorial Jurisdiction is where the geographical boundaries and limits

determine the jurisdiction of civil courts. The geographical boundaries are
clearly demarcated in the case of such a jurisdiction. Section 16 to Section 20
of the CPC talks about the Territorial jurisdiction civil courts.

According to Section 16 of Civil Procedure Code, where the subject matter is

situated or located, the suit must be instituted there. Hence, for the partition
of immovable property, suits for the recovery of immovable property with or
without rent or profits, sale or redemption in the case of a mortgage of or
charge upon immovable property, for foreclosure, or the determination of any
other right to or interest in immovable property, for compensation for wrong
to immovable property, for the recovery of movable property actually under
distraint or attachment shall be instituted in the Court within the local limits of
whose jurisdiction the property is situated unless it is subject to pecuniary
jurisdiction or other limitations in accordance with the law.

Pecuniary Jurisdiction

As the name suggests, this jurisdiction takes the monetary value of the case or
suit into consideration. Only if the court has the authority in terms of the suit’s
financial value to try the suit, the suit would be instituted in that court. Section
15 of the CPC talks about the pecuniary jurisdiction of civil courts. It states
Every suit shall be instituted in the Court of the lowest grade competent to try
it.” This tries to reduce the burden of a court of a higher level.

Jurisdiction as to Subject Matter

The subject matter of the suit is of immense value and importance while
deciding the jurisdiction. Certain courts do not possess the Authority to try
certain issues pertaining to a particular subject matter. If it is determined that
a court does not possess the jurisdiction to try that specific subject matter, no
suit can be instituted in that particular court.

Section 9 of the Civil Procedure Code

Section 9 of the CPC states that a court has the jurisdiction to try all suits of a
“civil nature” except suits on which their cognizance is either “expressly and
impliedly barred”. This implies that a civil court unless the suit is of civil nature
and the cognizance of which is neither expressly nor impliedly barred, a civil
court may not have the jurisdiction to try it.

Conclusion

The jurisdiction of civil courts as given in the CPC is quite vast and therefore, it
becomes crucial to study those in detail. It is necessary to understand that
unless a suit is of civil or is express or impliedly not barred by law, a civil court
cannot try it.

2.Write a note on foreign judgements?

Introduction:
Indian legal system is based on Common Law System. The Civil Procedure
code, 1908 (C.P.C) deals with the foreign court and foreign Judgement. Section
2(5) of the code defines a “foreign court” as a court situated outside India and
not established or continued by the authority of the Central
Government. Section 2 (6) of the code defines “Foreign Judgement” as the
judgment of the foreign court. Section 13, 14 and 44 of the Code deals with the
foreign judgment or decrees.

Jurisdiction of Foreign Court

The following Circumstances would give jurisdiction to foreign courts:

1. Where the person is a subject of the foreign court in which the

judgment has been obtained.
2. Where he was a resident in the foreign country when the action
was commenced and summon was served on him.
 3. Where the person in the Character of plaintiff selects the foreign
court select the forum for taking action in which forum he issued
latter.
Binding Nature of the Foreign Court

Section 13 of the Code has provisions regarding the binding nature of the
foreign Judgement. It states that the Foreign Judgement shall be shall be
Conclusive as to any matter thereby directly adjudicated upon between the
same parties under whom they or any of them Claim litigating the same. There
are certain exceptions where the Foreign Judgement has not been Pronounced
by a court of Competent Jurisdiction or it has not been given on the merits of
the Case or where it appears on the face of the proceedings 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; or the Proceedings the Obtained
judgment was obtained are opposed to natural justice. In case the judgment
has been obtained by fraud or sustaining the Claim founded on a breach of any
law in force in India.

Foreign Judgement When not Binding

Under section 13 of the Code, a foreign judgment is Conclusive and operates as

res Judicata between the parties thereto except in the cases a)when the
foreign judgment is not by a competent Court; b) Foreign Judgement not on
merits: c) Foreign Judgement against the international or Indian Law: d)
Foreign Judgement opposed to natural justice; e) when the judgment is
obtained by the fraud: and when the Judgement is founded on the breach of
Indian Law.

Presumption as to foreign Judgement

The Court shall presume, upon the production of any document supporting to
be a certified copy of a foreign judgment was pronounced by the Court to
Competent Jurisdiction, unless the Contrary Jurisdiction unless the contrary
appears on the record but such presumptions may be displaced by proving
want of Jurisdiction.

3.State the rules regarding “Transfer of suits”

Power of the Court to Transfer Suits

If a case to be decided may be filed in various jurisdictions of court, then a
person may get his case transferred from one court to another. Before filing
the application of transfer of case, the party has to send notice to the opposite
party as well.

For getting the case transferred, the party has to raise the objection at the
earliest opportunity stating the reasons for a case to get transferred.

To What Court Application Lies

A person filing objection for transfer of case from one court to another shall
submit his application in the manner prescribed:-

1. If the multiple courts having jurisdiction to try a case are subordinate to the
same appellate court, then the application shall lie in that appellate court.

For example, if courts X and Y have jurisdiction to try a case, and both the
courts are subordinate to an appellate court, Z. Then the application shall lie to
Z court.

2. If the different courts have jurisdiction to try a case are subordinate to the
same high court but different appellate courts, then the application shall lie to
that high court.

For example, both Karkardooma and Saket court are having jurisdiction to try a
case, and their appellate court is not the same, but both the courts are
subordinate to the same high court that is the High Court of Delhi. So the
application shall lie in the High Court of Delhi.
3. If the courts having jurisdiction are situated in two different states and are
not subordinate to the same high court, then the application shall be given in
that high court within whose jurisdiction that court is situated where the
proceedings firstly started.

Power of Court to Transfer and Withdraw Case

1. The high court or district court may transfer or withdraw a case on the
application of any of the parties to the suit or suo-moto (on its own). Before
transferring, the court shall give notice to the parties and hear their objections
and then transfer the case.

2. The transfer may be of a suit, appeal, or any proceedings. The court

transferring shall transfer it to the court subordinate to him.

3. The high court or district court may also withdraw a case from one court and
try itself or transfer it to another court for disposing it or may also re-transfer
to the court from which case was withdrawn.

4. The transferee court may either try the suit from the stage it was
transferred or may try it from the beginning.

5. Transfer may also take place from such a court which has no jurisdiction to
try that case.

Power of Supreme Court to Transfer Suits

1. Any party to the suit may submit an application in the Supreme Court
under section 25 of the Civil Procedure Code for the transfer of a case.
2. The Supreme Court, after receiving the application, shall give notice to the
parties for hearing.

3. If the Supreme Court is satisfied that a case needs to be transferred, then it

may transfer it to the desired court to obtain ends of justice.

4. The Supreme Court deals with inter-state (between states) transfer of a case
and not intra-state (within same state) transfer.

5. The application to be given in the Supreme Court for transfer of case shall be
supported with an affidavit.

6. The transferee court (court to which case is transferred) may, in its

discretion, either try the suit from the beginning or from the stage it was
transferred.

7. If the Supreme Court, for any reason, finds that the application filed is
frivolous or vexatious, then the court may impose a sum of not more than two
thousand rupees to be paid by the applicant as compensation.

4.State the modes of service summons?

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.

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.

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.

5.Write a note on Joinder of parties.

Introduction:

Joinder of parties means to add all persons concerned in a particular dispute to

the suit. Parties can be joined at anytime, subjected to the conditions laid
down in the Code. Order 1 Rule 1 of the Code states when a person may be
joined as plaintiff:
“1. Who may be joined as plaintiffs. — All persons may be joined in one suit as
plaintiffs where—
(a) any right to relief in respect of, or arising out of, the same act or transaction
or series of acts or transactions is alleged to exist in such persons, whether
jointly, severally or in the alternative; and
(b) if such persons brought separate suits, any common question of law or fact
would arise”
The Code clearly provides that, a party may be joined at any time as a plaintiff
provided that they must have right to claim a relief, either rising from the same
act(s) or same transaction(s) based on which the suit was filed. When a
separate suit is filed by the parties, there should exist a common question of
law or fact, for them to be joined as plaintiffs.

The first landmark case which discussed this provision was the case of Haru
Bepari and Ors. vs. Roy Kshitish Bhusan Roy Bahadur and Ors.[2], where it was
held that, “The conditions which rendered the joinder of several plaintiffs
permissible under Order I, Rule 1. C. P. C. do not necessarily imply that there
can be only one cause of action in the suit in which the several plaintiffs join”.

This view was accepted by many other judgments that followed this case. It is
key to note the decision given by the Bombay High Court in the case of
Paikanna Vithoba Mamidwar and Anr. vs. Laxminarayan Sukhdeo Dalya and
Anr.[3], where the Court decreed that, “It is not, therefore, necessary any
more that there must be identity of interest or identity of causes of action.
What is necessary is the involvement of common question of law or fact.”

Similar provision was provided to the defendants within the Code prescribed
in Order 1 Rule 3, which states that:

“2. Who may be joined as defendants. — All persons may be joined in one suit
as defendants where—
(a) any right to relief in respect of, or arising out of, the same act or transaction
or series of acts or transactions is alleged to exist against such persons,
whether jointly, severally or in the alternative; and
(b) if separate suits were brought against such persons, any common question
of law or fact would arise.”
Thus, the condition for joinder of defendant is the same as the conditions laid
down for the joinder plaintiffs. This was provision explained by the Supreme
Court in Bachu Bhai Patel vs. Harihar Behera & Anr.[4], where it seen that:
“This Rule requires all persons to be joined as defendants in a suit against
whom any right to relief exists provided that such right is based on the same
act or transaction or series of acts or transactions against those persons
whether jointly, severally or in the alternative. The additional factor is that if
separate suits were brought against such persons, common questions of law or
fact would arise. The purpose of the Rule is to avoid multiplicity of suits.”

It was further observed in this case that when Order 1 Rule 3 and Order 2 Rule
3 are read together, it signifies that the question of joinder of parties also
includes the joinder of causes of action. The basic principle is that when causes
of action are joined, the parties are also joined, since the cause of action is
raised against the party. Order 2 Rule 3 states:

“3. Joinder of causes of action.—(1) Save as otherwise provided, a plaintiff

may unite in the same suit several causes of action against the same
defendant, or the same defendants jointly; and any plaintiffs having causes of
action in which they are jointly interested against the same defendant or the
same defendants jointly may unite such causes of action in the same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards
the suit shall depend on the amount or value of the aggregate subject-matters
at the date of instituting the suit.”
Thus, in cases where parties are involved in the same transaction or where
they are moving for the same cause of action, they can be joined within the
same suit, either as plaintiffs or defendants. However, this action depends on
the discretion of the Court.

6.Elucidate the essentials contents of a written statement?

Meaning of written statement
A written statement is the statement of the defendant in his defence in which
he either admits the claims or denies the facts alleged by plant leaf in his
plaint. The defendant can State New facts of the case and legal objections
against the claim asked by the plaintiff.

Order VIII Rule 1 of the civil procedure code provides that, after the service of
summons, the defendant should file the written statement within 30 days. But
in case if the defendant fails to submit it before 30 days, Then he can file his
statement within 90 days as the Court allows him to do so.
Essentials of the written statement
• The defendant has to appear in court on the date mentioned in
the summons.
• Before the date of appearing in the court, the defendant needs to
file the written statement in the court.
 • The statement should deny or accept the allegations imposed on
him. Any allegations which are not answered by the defendant are
deemed to be accepted by the defendant.
• The statement must contain the verification of the defendant by
stating that the content written in the statement is true and
correct as per the knowledge of the defendant.
• If the defendant fails to submit the written statement before 30
days, he can seek the court to extend the time, in that case, the
court may extend the time period upto 90 days.

Rules related to the Written statement

All the rules related to the written statements are given under Order VIII or the
civil procedure code. So let’s know about every rule:

Order VIII Rule 1

Order VIII Rule 1 provides that, when the defendant received the summons by
which he came to know that a lawsuit has been filed against him:

• he has to file the written statement within 30 days from the date
when he received the summon.
• if the defendant fails to submit it within 30 days, the court may
extend this time up to 90 days
• The court will record the legitimate reason of the defendant for
the delay.
• The time period cannot be extended more than 90 days.
• The judge can charge some cost if the defendant fails to file the
statement within 30 days.
• If the defendant fails to file the written statement within 120 days
from the date of the service of summons (30+90), the court shall
forfeit the defendant’s right to submit the written statement.
• After the expiry of 120 days, the court shall pronounce the
judgement.
Order VIII Rule 1A
This rule talks about the protection and production of the document the
defendant relies upon. According to this rule, the document which is the base
of the defence given by the defendant should be delivered to the court on the
date of filing the written statement and by attaching the duplicate copy of this
document.
The document can be related to the set-off or counter-claim.
If the document is not in his possession, then the defendant has to state this in
whose possession it is.

If the defendant fails to produce such document at the time of filing

statement, the court will not allow him to submit that document as proof in
the lawsuit, without the leave of the court.

Order VIII Rule 2 is related to the new facts which should be pleaded. The
rule says that the defendant must have raised the important facts related to
the case which shows that the suit is not maintainable, or the transaction
which is in the issue is made by a void or voidable contract etc. These facts will
help the defendant to win the case because these facts can be related to the
limitation and fraud etc.

Order VIII Rule 3 says that the denial made by the defendant in a written
statement must be specific, not general except in the case of damages.
Order VIII Rule 3A
If the defendant is accepting any fact, he can provide the general answer but if
he is denying any fact then he must have given the reason behind that why he
is denying the particular fact. This rule also deals in case if the defendant
challenges the jurisdiction of the court for that lawsuit. He must have provided
the specific grounds for that.
Order VIII Rule 4
Evasive Denial- when the defendant is making the denial of any fact, the denial
must be clear and easy to understand. For example, if the plaint has alleged
that the defendant had received a particular amount, and if the defendant
wants to deny this fact, he must have denied that he did not receive that sum
or any part. Also, if he received the sum but not a particular amount which is
alleged, then he must have written how much amount he received.
Order VIII Rule 5
Specific Denial-
• It talks about specific denial that the defendant must have to deny
specifically. If the defendant does not take necessary implications
or just give the statement that the fact stated in the plaint is not
admitted, it will be considered as the defendant has admitted the
facts given in the plaint. This rule does not apply to disabled
people.
• The rule clearly says that the person must have given the specific
reason that why he is denying the fact given into the plaint. He
 cannot just say that I AM NOT ADMITTING THIS FACT. He must be
specific on this answer.
• The rule also provides that if the defendant fails to submit his
written statement in the court on time, the court may decide its
judgement on the basis of the facts provided in the plaint by the
plaintiff. This rule is not applicable to disabled people. Also, the
court may ask the plaintiff to provide evidence to prove his fact
alleged in the plaint.
• The court will provide the decree of the court after pronouncing
the judgement in the court, even though the defendant was
unable to submit his statement.

7.Write a note on rejection of plaint.

Introduction:

The provisions of Order VII of the civil procedure code,1908, specifies some
grounds for rejection of paint. That provision enables the court to dismiss the
lawsuit at any stage. There are many grounds for rejection of the plaint. In this
article, we discuss all the reasons as grounds for dismissal of the suit.

The civil procedure code has a large sense, that has covered all kinds of litigation
in civil nature. When any litigation file as a lawsuit, whether in the civil court or
commercial court. Under the law, the civil procedure code,1908, govern all types
of litigation that are covered in civil nature.

Grounds for rejection of plaint:

Order VII Rule 11 of CPC, has covered the following types of various grounds and
circumstances, after considering all legal aspects the court, can reject the plaint.

Order VII rule 11 (a), lack of the cause of action in the plaint:

The absence of cause of action is one of the reasons for the rejection of the
plaint. Because the cause of action is a crucial part of the lawsuit, on that basis
the suit can be the final verdict.

The cause of action covered order II rule 2 of the CPC. the reason must be
specifically mentioned in the plaint. The lack of cause of action in the suit results
in the rejection of the plaint.
Every litigation starts with some specific cause of action, so without any
grievance, no one can file litigation against another.

As per the provision of order II rule, 2 has also specified that the same cause of
action can not be laid for more than one. The main aims of this provision, are a
plaintiff must be included all of the cause of action in a single suit. As well the
plaintiff has the right to omit part of his claim.

Joint cause of action:

As per the provision of Order II rules 4 of the civil procedure code, a plaintiff can
not lay the joint cause of action against the defendant or more than one
defendant. If a plaintiff wants to do so he has to get prior permission from the
court.

Misjoinder of Cause of Action:

Multiple causes of action can not be laid in the suit. If that type of cause of action
is joined by the plaintiff in the suit. then all objections regarding the misjoinder
of causes of action should be taken at an earlier stage. If no objection is raised
to the misjoinder, this right is believed to be waived.

In the case of Roop Lal Sathi Vs. Nachhattar Singh,(AIR 1982 SC 1559), the
supreme court observed that It is trite law that not any particular plea has to be
considered, and the whole Plaint has to be read. Only a part of the plaint cannot
be rejected and if no cause of action is disclosed, the Plaint as a whole must be
rejected.[1].

In the case of Md. Akhtar Hossain vs Suresh Singh And Ors,(AIR 2004 Cal 99), the
Calcutta high court held, Plaintiff, cannot avoid consequences by clever drafting
of pleadings and creating confusion in minds of Court regarding the cause of
action.[2].

Order VII rule 11 (b), The relief claimed is undervalued of the suit:

As per this provision, if a claim made by the plaintiff being undervalued, or

demand made is less the actual value, in that situation the court can order the
plaintiff for revaluating the suit, within sufficient time given by the court. If the
plaintiff fails to do so, the said plaint can be rejected on such grounds.
(Order VII Rule 11(c), Insufficient Stamps duty:

As per the provision of the Court Fee Act, 1870, every lawsuit has to paid
sufficient court fees at the time of institution of the suit. The court can reject the
plaint on the ground of inefficient stamp duty.

However, the court approach can be liberal before the rejection of the suit. The
court can give a reasonable time to the plaintiff to correct his mistake. But if the
plaintiff fails to amend the situation, then the court can reject the Planit with
record reason.

(Order VII Rule 11(d), If the suit is barred by the law:

The provision of Order VII rule 11(d), deals with the rejection of suit, which is
prohibited by law. If the plaintiff filed a suit that is barred by any law, held he
has no right to the institution such suit. It might be the reason for the rejection
of the ground of a suit.

(Order VII Rule 11(e), When the plaint not filed in duplicate:

As per this provision, when the plaintiff files a suit, he has to file a duplicate copy
of the suit along with the original suit, which is a mandatory provision of the civil
procedure code. If a plaintiff fails to fulfill that procedure the court can reject
the suit.

(Order VII Rule 11(f), When a plaintiff fails to comply with the provisions of
rule 9:

When the plaintiff fails to provide a list of documents that are relied upon by
him, as well as not submit some copies which are a basic requirement at the
time of filing a suit. The court can order to reject the suit on that ground too.

In the case of Salem Advocate Bar Association, Tamil Nadu vs. Union of India,
AIR 2003 SC 189, the supreme court observed that, O. 7, R.11 to which clauses
(e) and (f) have been added enable the Court to reject the plaint where it is not
filed in duplicate or where the plaintiff fails to comply with the provisions of Rule
9 of Order 7. It appears that the said clauses being procedural would not require
the automatic rejection of the plaint at the first instance. If there is any defect
as contemplated by Rule 11(e) or non-compliance as referred to in Rule 11(f),
the Court should ordinarily give an opportunity for rectifying the defects, and in
the event of the same not being done the Court will have the liberty or the right
to reject the plaint.[3].

Modes of rejecting a plaint:

Here is two modes can be applied for the rejection of plaint, the first one is the
defendant can apply at any stage of the suit proceedings. And the second is Sue
moto’s rejection, which is filed by the court itself by using sue moto power
according to the provision of CPC.

Conclusion:

The civil procedure code,1908, order VII rule 11, provides various grounds for
rejection of the plaint. As per these provisions, the plaintiff needs to care while
filing a suit against the defendant. As well, we can say, that provision also
enables the defendant to get the appropriate defense in the suit.

8.Explain the various modes of Execution of decree.

Mode Execution Of Decree:

As per section 51:

“51. Powers of Court to enforce execution.

Subject to such conditions and limitations as may be prescribed, the Court
may, on the application of the decree-holder, order execution of the decree—
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by arrest and detention in prison 3 for such period not exceeding the period
specified in section 58, where arrest and detention is permissible under that
section]; (d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require”

Modes of Execution:

1.Specific Movable Property:

When the decree is for any specific movable property, the execution can take
place in any of the following made
(a) by seizure and delivery of the property.
(b) By detention of the judgment debtor.
(c) By attachment of his properly.
(d) By attachment and detention both.
Money is not covered within the definition of movable property and there is
separate procedure for money decree.

2.Money Decree:
Money decree involves payment of money and the prescribed mode for
execution includes notice to the judgment debtor, attachment of his movable
and immovable properties and sale thereof. The executing court also has a
power to order arrest and imprisonment of judgment debtor in exercise of its
jurisdiction within the framework prescribed under the law.

3.Document And Negotiable Instruments:

If the decree is for execution of a document, the process of execution involves
signing of such documents by the judgment debtor. When judgment debtor
neglects or refuses to obey or comply with the decree, the court shall after
giving opportunity to the decree holder as well as to the judgment debtor,
prepare the draft of the document in accordance with the terms of the decree
and execute such document. Such document shall have same effect as the
execution of the document by the party himself.

4.Immovable Property:
A court executing a decree has the power to attach the property and sell the
property or portion thereof which is sufficient to satisfy the decree. After such
attachment the first step is issuing proclamation of sale. Such a proclamation
shall be prepared after notice to both the sides.

5.Arrest And Detention:

In the execution application the decree holder can insist that the decree be
executed by arrest and detention of the judgment debtor. If such a prayer is
made in execution application, the court will instead of issuing a warrant, issue
a notice calling upon the judgment debtor to appear before the court on a day
to be specified in the notice and show cause why he should not be committed
to civil prison. Such a notice will not be necessary if the court is satisfied by
affidavit or otherwise that such notice will result in delay in the execution
proceeding or the judgment debtor is likely to abscond or leave local limits of
the court.If the notice is not complied warrant for arrest will be issued. Such
warrant may direct that unless the specified amount is paid the person should
be brought before the court.
9.What is meant by issues? How issues are framed? State the powers of the
court to amend or strike out issues?
Framing of 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.
Meaning of Issue:
A single material point of fact or law in litigation that is affirm by the one side
and denied by the other side is called an Issue.
Framing or non-framing of issues in case of Ex-parte decree:
Court should only made issues when defendant has made his defence against
the suit through submission of his written statement. However, court should
not frame issues when the defendant has not appeared before the court.
Kinds of Issue:
There are two types of issues
1.Issue of Fact
2.Issue of Law.
Object of framing of Issue:
Object is to ascertain the real dispute between the parties by narrowing down
the area of conflict and determining where the parties differ.
Matters to be considered before framing of Issues:
1.The court shall read the plaint and written statement before framing an issue
to see what the parties allege in it.
2.According to Order X, Rule 1 of Code of civil procedure, 1908 it permits the
court to examine the parties for the purpose of clarifying the Pleadings, and
the court can record admission and denials of parties in respects of an
allegations of facts as are made in Plaint and written statement.
3.If any party admitted any fact or any document then no issues are to be
framed with regards to those matters, and the court will pronounce judgments
respecting matters which are admitted.
4.The court may ascertain upon at what material propositions of law or fact
the parties are at varies.
5.The court may examine the witness for the purpose of framing of issues.
6.The court may also in the framing of issues take into consideration the
evidence laid in the suit. When a material point is not raised in the pleadings,
and it is noticed by the court during the course of evidence the court can frame
an issue regarding it and try it.
7.Order XIV Rule 4 states that where the Court is of opinion that the issues
cannot be correctly framed without the examination of some person not
before the Court or without the inspection of some document not produced in
the suit, it may adjourn the framing of the issues to a future day, and may
(subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession
or power it is by summons or other process.
Amendment or Strike out Framed Issues:
At any time before passing of decree, court can amend framed issues on those
terms which it deems fit. However, such amendments of framed issues would
be necessary for determination of matters in controversy between parties.
At any time before passing of decree, court can amend framed issues specially
when it appears to the court that such issues have been wrongly framed or
introduced.
Regarding amendment of framed issues court also has a mandatory power, in
fact, court is bound to amend framed issues especially when such amendments
are necessary in determination of matters in controversy, when framed issues
do not bring out point in controversy or where framed issues do not cover
entire controversy.
Court can amend or strike out framed issues at any stage before final disposal
of suit.
Conclusion:
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.

10.Write a note on Admissions.

ORDER XII OF CIVIL PROCEDURE CODE (CPC) – ADMISSION

1. Notice of admission of case.

Any party to a suit may give notice, by his pleading, or otherwise in writing,
that he admits the truth of the whole or any part of the case of any other
party.

2. Notice to admit documents.

Either party may call upon the other party to admit, within fifteen days from
the date of service of the notice any document, saving all just exceptions; and
in case of refusal or neglect to admit, after such notice, the costs of proving
any such document shall be paid by the party so neglecting or refusing,
whatever the result of the suit may be, unless the Court otherwise directs; and
no costs of proving any document shall be allowed unless such notice is given,
except where the omission to give the notice is, in the opinion of the Court, a
saving of expense.

2A. Document to be deemed to be admitted if not divided after service of

notice to admit documents.

(1) Every document which a party is called upon to admit, if not denied
specifically or by necessary implication, or stated to be not admitted in the
pleading of that party or in his reply to the notice to admit documents, shall be
deemed to be admitted except as against a person under a disability:
Provided that the Court may, in its discretion and for reasons to be recorded,
require any document so admitted to be proved otherwise than by such
admission.

(2) Where a party unreasonably neglects or refuses to admit a document after

the service on him of the notice to admit documents, the Court may direct him
to pay costs to the other party by way of compensation.

3. Form of notice.

A notice to admit documents shall be in Form No. 9 in Appendix C, with such

variations as circumstances may require.
3A. Power of Court to record admission.

Notwithstanding that no notice to admit documents has been given under rule
2, the Court, may at any stage of the proceeding before it, of its own motion,
call upon any party to admit any document and shall in such a case, record
whether the party admits or refuses or neglects to admit such document.

4. Notice to admit acts.

Any party, may, by notice in writing, at any time not later than nine days
before the day fixed for the hearing, call on any other party to admit, for the
purposes of the suit only, any specific fact or facts, mentioned in such notice.
And in case of refusal or neglect to admit the same within six days after service
of such notice, or within such further time as may be allowed by the Court, the
costs of proving such fact or facts shall be paid by the party so neglecting or
refusing, whatever the result of the suit may be, unless the Court otherwise
directs:
Provided that any admission made in pursuance of such notice is to be
deemed to be made only for the purposes of the particular suit, and not as an
admission to be used against the party on any other occasion or in favour of
any person other than the party giving the notice:
Provided also that the Court may at any time allow any party to amend or
withdraw any admission so made on such terms as may be just.

5. Form of admissions.

A notice to admit facts shall be in Form No. 10 in Appendix C, and admissions

of facts shall be in Form No. 11 in Appendix C, with such variations as
circumstances may require.
11.State the procedure for instituting a suit by an indigent person?

Suits by Indigent Person

Order XXXIII of the Civil Procedure Code talks about suits by indigent
persons. Section 304 of Criminal Procedure Code, and Article 39A of the Indian
Constitution respectively mention, legal aid to accused at state expense in
certain cases, and equal justice and free legal aid.

Who is an Indigent Person?

Indigent means poor, penniless, pauper. A person is an indigent person who is

not having sufficient means to pay the fee for the plaint or where no such fee
is prescribed, he is not entitled to property worth rupees 1,000.

Order XXXIII of the Civil Procedure Code provides remedy to those who need to
institute a suit for the enforcement of their rights but are so poor that they
cannot afford expenses on court fees etc. The object behind this order is that
poverty should not come in the way of getting justice.

• Suits by Indigent Person

• Who is an Indigent Person?
• Application for Permission to Sue as Indigent
• Presentation of Application
• Examination of Applicant
• Who may Appeal as an Indigent Person?
• Period of Limitation
• Procedure to Sue as an Indigent Person if Application is Admitted
• Rejection of Application
Application for Permission to Sue as Indigent

A person may sue as an indigent person only when the court so permits him.
When the application is made for permission to sue as an indigent person,
every inquiry shall be made in the first instance.

An application for permission to sue as an indigent person shall contain the

following particulars-
1. Particulars received in regard to plaint in a suit.
2. List of movable/immovable property belonging to the applicant with the
estimated value.
3. Signature and Verification.

Presentation of Application

The application shall be presented to the court by the applicant in person (not
by any third party), but if he is exempted from personal appearance, an
application may be presented by an authorised agent. But the agent must be
able to answer the questions regarding the application.

Examination of Applicant

Where the application is in proper form and duly presented, the court may
examine the applicant or his agent regarding the merits of the claims and
property of the applicant.

To sue as an indigent person, 7 days before notice in writing shall be given to

the defendant. The court shall decide a date for adducing evidence in support
of the application. After the satisfaction of the court, it shall be deemed the
plaint in the suit, and the suit shall proceed as a suit instituted in an ordinary
manner.

Who may Appeal as an Indigent Person?

Order XLIV of the Civil Procedure Code talks about appeals by indigent persons.
Any person who is entitled to file an appeal but unable to pay the necessary
court fee may obtain the permission of the court to appeal as an indigent
person.

For this purpose, he may present an application to the court, along with a
memorandum of appeal. The court may allow the applicant to appeal as an
indigent person, subject to the provisions relating to suits by indigent persons.

Period of Limitation

The application for leave to appeal as an indigent person must be filed within
30 days. But in case of appeal before the High Court, such a period is 60 days
from the date of the decree when passed.

If there is no reason to reject the application, the court shall fix a day for
receiving evidence in proof or disproof of the indigence of the applicant. At
least 10 days clear notice shall be given to the opposite party and the
government pleader.

Procedure to Sue as an Indigent Person if Application is Admitted

Where the application for permission to sue as an indigent person is granted, it

shall be numbered and registered. It shall be deemed the plaint in the suit, and
the suit shall proceed as if it was instituted in an ordinary manner.
But the plaintiff shall not be liable to pay any court fee or process fee. The
plaintiff shall also not be liable for any fee for the appointment of a pleader.

If a person has been allowed to sue as an indigent person, but he is not

represented by a pleader, the court may assign a pleader to him.

Withdrawal of Permission to Sue as an Indigent Person

The defendant or government pleader may apply to the court for the
withdrawal of permission granted to the plaintiff.

Rejection of Application

The Court shall reject an application for permission to sue as an indigent

person-

1. Where it is not framed and presented in the manner prescribed by rule

2 and rule 3, or

2. Where the applicant is not an indigent person, or

3. Where he has, within two months next before the presentation of the
application disposed of any property fraudulently or in order to be able to
apply for permission to sue as an indigent person:
Provided that no application shall be rejected if, even after the value of the
property disposed of by the applicant is taken into account, the applicant
would be entitled to sue as an indigent person, or

4. Where his allegations do not show a cause of action, or

5. Where he has entered into any agreement with reference to the subject
matter of the proposed suit under which any other person has obtained an
interest in such subject matter, or

6. Where the allegations made by the applicant in the application show that
the suit would be barred by any law for the time being in force, or

7. Where any other person has entered into an agreement with him to finance
the litigation.

12.Under what circumstances a reference can be made to High court?

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 to avoid 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

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.

13.Write a note on revision?

Introduction:

Civil Procedure Code, 1908 is a procedural law related to the administration of

civil proceedings in India. Section 115 of the Civil Procedure Code, 1908
provides the provisions on the Revision. It empowers the High Court to look
into the cases which have been decided by the subordinate courts. Hence, the
High Court has revisional jurisdiction. In other words, the Higher courts
exercise the power of supervision on the lower courts. Section 115 limited to
errors of jurisdiction only.

Meaning of Revision:

To revise means to check again or look again. Revision means to go through

thoroughly with a careful examination to correct the mistake. In other words,
the court will revise the case and gives correction wherever necessary. The
High court has the power of revision with certain conditions.

Object:

1. The main object of the revision is to prevent the subordinate court

from acting arbitrarily or illegally.
2. To empower the High court to look at proceedings of the
subordinate court are in accordance with the law and acting
within the jurisdiction of the court.
3. To correct the errors of jurisdiction done by the subordinate
courts.
 4. To ensure the aggrieved party that if the order passed against
them is non-appealable then it can be rectified by the High Court.
Who may file?

1. Application by aggrieved party – When the order passed by the subordinate

court and the party who is aggrieved by such order can apply for the revision in
the High Court.

2. Suo moto – Under section 115 of the Civil Procedure Code, 1908 the High
Court may exercise suo moto action of revisional jurisdiction. In simple words,
the High court may act of its own motion call any record and accordingly pass
the orders.

Grounds of revision under CPC

1. Court has decided the case:

In general Sense, the case must be decided by the court and should not be
pending.

In case of Baldevdas Shivlal v. Filmistan Distributors India Pvt ltd, The Apex
Court held that a case may be said to have been decided if the court
adjudicates for the purpose of the suit some right or obligation of the parties in
controversy. Every order in the suit cannot be regarded as case decided within
the meaning of Section 115 of the code.

2. Such court is subordinate court:

Unless the order is passed by a subordinate court, the High Court cannot
exercise the power of revisional jurisdiction. Therefore, it is necessary that the
case should be decided by the subordinate court. The subordinate courts
sometimes known as inferior or lower courts. Here, the court means a court
that has civil judicature. In general meaning, the subordinate court means all
courts which are subordinate to the High Court including the Small causes
court.

Where it is provided that a matter should be decided by particular court, the

presiding officer of such court will act as a court. But where it is provided that a
particular judge should decide a matter the provisions of the statute will have
to be considered for the purpose of determining whether the judicial officer
acts as a court or as a persona designate.

3. Non -Appealable order:

Where there are no appeal lies then the revisional jurisdiction invoked. In
simple words, If there is no first appeal or second appeal lies to the High Court
then another option arises is revision. Here the word appeal means 1st appeal
as well as 2nd appeal. If the decision itself is not appealable to the High Court
then the revisional jurisdiction will be acted by the High Court.

4. Jurisdictional errors:

According to section 115 of Civil Procedure Code 1908, the Revision is only
applicable to the jurisdiction and if there is no question arises related to
jurisdiction the decision cannot be corrected.

On the other hand, the question is of fact or law the revisional power is not
competent.

a) Exercise of jurisdiction not vested by law –

Here, the assumption of the subordinate court is that it vested some powers
but in reality, the subordinate court does not have such powers and acted
beyond its boundaries. In such cases, the High Court is empowered to correct
the decision given by the subordinate court.

If the subordinate court having power vested in it but not acting accordingly
and declines to exercise its duty or act then revisional power of the High Court
takes place or High can interfere in such case.

b) Exercise of jurisdiction illegally or with material irregularities:

When the subordinate court does not act legally or acting arbitrarily,
capriciously in the exercise of their jurisdiction. In simple words when the court
misuses its powers and in case of errors of jurisdiction committed by the
Subordinate Court, the revisional jurisdiction taken by the High Court.
14.Limitation bars the remedy, but does not extinguish the rights’ Explain?
Introduction:
Law of Limitation merely bars the remedy, bat not the right. It is well known
that the Limitation Act, with regard to personal action, bars the remedy
without extinguishing the rights [Hari Raj Singh vs. Sanchalak Panchayat, AIR
1968, All. 246 at P. 250).

The law of limitation bars the remedy of plaintiff but does not extinguish his
right. It is meant to see that the plaintiff does not resort to dilatory tactics, but
seeks his remedy within a time fixed by the Legislature.

The right continues to exist notwithstanding that the remedy is barred by

limitation. A debtor may pay the time barred debt to the creditor. He cannot
claim it back on the plea that it was time barred.

A debtor who owes several debts to a creditor may pay a sum of money to the
Creditor. If there is no specific mention, then the creditor can adjust the
payment towards any of the debts, including the one whose recovery is barred
by limitation. A barred debt can constitute a valid consideration for a fresh
contract.

Under Sec. 25(3) of the Contract Act, 1872, an agreement in writing

undertaking to pay a time barred debt is valid and binding. But there are
special cases in which, on the remedy becoming barred by limitation, the right
itself is extinguished like the one contemplated in Sec. 27 of the Limitation Act,
1963 (Jawaharlal Law Motumal Mamtani vs. Bhagohanchand Motamal
Mamtani, AIR 1981, Delhi 338 at P. 343).

Extinguishment of right:
The Limitation Act lays down a rule of substantive law in Sec. 27. It declares
that after the lapse of the period provided by this enactment, the right itself is
gone and the title ceases to exist, and not merely the remedy.

If an owner, whose property is encroached upon, suffers his right to be barred

by the law of limitation the practical effect is the extinction of his title in favour
of the party in possession. It is of the utmost consequence in India that the
security which long possession affords should not be weakened.
As between private owners contesting inter so the title to lands, the law has
established a limitation of twelve years: after that time it declares not simply
that the remedy is barred, but that the title is extinct in favour of the
possessor.

When a person’s suit for possession of any property is barred by limitation

under the Act, his right to such property stands extinguished: Section 27, under
this section, not only the ownership of one person is extinguished, but an
absolute ownership is also acquired by the other person in adverse possession
(Radhabai vs. Anantrao, 9, Bom. 198).

It is well established proposition that payment of a time barred debt is a valid

consideration for transfer of property. Similarly, an agreement in writing
undertaking to pay a time barred debt is lawful and binding. Again, a creditor
can adjust a payment made by a debtor who owes several debts, towards debt
with had become time-barred.

Shadi La, Chief Justice held in Nuruddin vs. Allah Ditta (I.L.R. 13, Lah. 817 AIR
1932, Lah. 419).

“The rule of law is firmly established that debt does not cease to be a debt
because its recovery is barred by the Statue of Limitation”. (First National Bank
Ltd. Vs. Seth Sant Lai, AIR 1959, Punj 328 at P. 330).

In considering whether a particular remedy is barred, one looks not at the

relief given but at the cause of action, that is, at the necessary allegations
which have to made and found before the relief sought can be given. (Asaram
vs. Budeshwar, AIR 1938, Nag. 335 at P. 339 F.8).

15.Once the time has began to run no subsequent disability or inability

Stopsit. Discuss.
Introduction:
Time for limitation runs when the cause of action accrues. However,
certain exceptions were provided in Sections 4 to 8. Section 4 provides
that if the period prescribed expires on a day when the Court is closed,
the application etc, may be made on the day, the Court reopens. As
per Section 5 condonation of delay is allowed on sufficient grounds.
Sections 6, 7& 8 allow extension of time in certain cases of disability.
Continuous running of time [Section 9]: Once a period of limitation
starts no subsequent disability or inability can stop it. The applicability
Section 9 is limited to suits and applications only and does not apply to
appeals unless the case fell within any of the exceptions provided in the
Act itself. Section 9 applies when the cause of action or right to move the
Court continues to exist on the date of making the application. Thus, the
time runs, when the cause of action accrues. Thus, once time has begun
to run, no subsequent disability or inability stops it.
Example: Manoj died on 3rd August, 2016 before a right to institute a
suit accrued, leaving behind a minor son of the age of 15 years. Decide
the time from where the period of limitation shall be calculated under
Limitation Act, 1963.
Section 9 of the Limitation Act, 1963 states that, once time begins to run
no subsequent disability or inability can stop to institute a suit or make
an application. For a given case, the period of limitation will run from the
date of loan (i.e. cause of action). There is no disability at that time and
time has begun to run from the date of loan itself. Subsequent disability
i.e. the son was minor have no use. The limitation period in this case will
end after 3 years from the date of loan (i.e. cause of action).
16.A’ wife refused to returns to her husband and allow him the exercise of
conjugal rights. What is the period of limitation for ‘A’ Decide?
The restitution of conjugal rights is provided for under Section 9 of the Hindu
Marriage Act, 1955.8One facet of conjugal rights i.e., the right to the
consortium is recognized and protected under Section 9 of the Hindu Marriage
Act, by permitting a spouse to go to the court action to enforce the right. One
of the important implications provided to an aggrieved party under Section 9
of the Hindu Marriage Act, 1955 is the ability to seek maintenance under
Section 25 of the Hindu Marriage Act, 1955.
Conjugal rights are rights created by marriage, i.e. right of the husband or the
wife to the society of the other spouse. The law recognises these rights— both
in personal laws dealing with marriage, divorce etc, and in criminal law
requiring payment of maintenance and alimony to a spouse.
Section 9 of the Hindu Marriage Act recognises one aspect of conjugal rights —
the right to consortium and protects it by allowing a spouse to move court to
enforce the right. The concept of restitution of conjugal rights is codified in
Hindu personal law now, but has colonial origins and has genesis in
ecclesiastical law.
If the husband either leaves a wife or ignores to make his conjugal obligations
without any proper reason, then the wife can demand restitution of conjugal
rights. Additionally, a husband can apply for restitution of conjugal rights. But
the court can deny granting an order of restitution of conjugal rights for the
below reasons:
• The cruelty of husband or in-laws.
• On the failure by the husband to achieve conjugal obligations.
• On non-payment of a quick dower by the husband.
17.Explain the essential ingredients of summons. What are the different
modes of service of summons to defendant?
Summons to defendants.-
Where a suit has been duly instituted, a summons may be s issued to the
defendant to appear and answer the claim and may be served in the manner
prescribed.
Service of summons where defendant resides in another State.-
(1) A summons may be sent for service in another State to such Court and in
such manner as may be prescribed by rules in force in that State.
(2) The Court to which such summons is sent shall, upon receipt thereof,
proceed as if it had been issued by such Court and shall then return the
summons to the Court of the issue together with the record (if any) of its
proceedings with regard thereto.
Service of foreign summonses. Summonses and other processes issued by-
(a) any Civil or Revenue Court established in any part of India to which the
provisions of this Code do not extend, or
(b) any Civil or Revenue Court established or continued by the authority of the
Central Government outside India, or
(c) any other Civil or Revenue Court outside India to which the Central
Government has, by notification in the Official Gazette, declared the provisions
of this section to apply, may be sent to the Courts in the territories to which this
Code extends, and served as if they were summonses issued by such Courts.]
Summons to witness.-
The provisions in sections 27, 28 and 29 shall apply to summonses to give
evidence or to produce documents or other material objects.

The penalty for default.-

The Court may compel the attendance of any person to whom a summons has
been issued under section 30 and for that purpose may-
(a) issue a warrant for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding five hundred rupees;
(d) order him to furnish security for his appearance and in default commit him
to the civil prison.
Refer to lawyers in India, for more information.

Modes of Serving Summons

The modes of serving summons are defined in CPC for civil 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.

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.

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.

18.Explain the purpose for which commission can be appointed? What are
the powers of Commissioner?
A commissioner can be appointed by the Court when a commission is issued by
the Court. According to Section 75 of CPC, the Court has the power to issue a
commission to carry out the following functions:

To examine witnesses: Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must
be recorded in open Court. But in extraordinary circumstances, the appearance
of witness is dispensed and the witness is allowed to depose evidence without
appearing in Court.

To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the
opinion that a local investigation is necessary:

1. For proper clarity of any matter in dispute, or

2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.
While appointing a commissioner for, the Court has to examine (4).

plaintiff before the final decree is passed. It is important because such

commission will prejudice the rights of the defendant to a fair trial.
To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in
the suit, the Court may issue a commission to make the examination of such
accounts and may appoint a commissioner. (rule 11) The Court takes special care
while making such an appointment. The Court appoints only such a person who
is competent to examine such records. The reports submitted by the
commissioner is considered evidence by the Court. (rule 12)

To make partition: Order 26 Rule 13-14

The Court can issue commission for partition of a suit property. Suppose, the
Court has passed a preliminary decree for partition of the suit property, in such
a situation, the Court can appoint a commissioner to carry out the decree. (rule
13) The commissioner has to divide the property in shares and distribute it
among the parties according to the suit decree. Commissioner has to submit a
report after such partition is completed. (rule 14)

To hold investigation: Order 26 Rule 10-A

When the Court has to conduct a scientific investigation, the Court can appoint
a commissioner who will then be responsible for such investigation. For
example, to identify the substance used as a raw material in the subject matter,
the Court may issue commission to hold scientific investigation. (rule 10-A)

After conducting such investigation the commissioner has to submit the report
within the time prescribed by the Court.

To sell the property: Order 26 Rule 10-C

Suppose the subject matter of a suit is a movable property which cannot be

preserved by the commissioner and if it is not sold, its value cannot be
recovered. Therefore, the Court appoints a commissioner who is given the
responsibility to sell the property and submit a report along with the proceeds
received from the sale of such property.
To do ministerial work: Order 26 Rule 10-B

Ministerial work means the administrative work which the Court has to do, but
are not of judicial nature like accounting, calculation, etc. Such work takes a lot
of valuable time of the Court which can be used in other important judicial
functions.

Therefore, the Court appoints a commissioner to do such works on behalf of the

Court. It is important to note that commissioners cannot do judicial
functions. (5)

Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:

1. Commissioner has the authority to examine the parties and the

witnesses and any other person who the commissioner thinks can give
evidence in the matter referred to him.
2. Commissioner can direct the parties to produce any documents which
is required to be examined.
3. Commissioner also has the power to enter and search any land or
building with the permission of the Court.
4. If the party fails to appear before the commissioner after the order of
the Court, the commissioner can proceed ex parte.

19.Who may be joined as plaintiff and defendants? What are the effects of
misjoinder and non-joinder of parties?
Joinder of Plaintiffs:
Anybody or anyone may join in one suit as plaintiffs as per the required
conditions under Rule 1 of Order 1. These conditions that are necessary to be
consummated are the right to relief claiming to exist in each of the plaintiffs
that come out of the same act of transaction; and the case is such of a
character that, if such person got separate suits, any common question of law
or question of fact may arise.
Joinder of Defendants:
Just the opposite to the joinder of plaintiffs, that, a persona can join as a
defendant as per the provisions of Rule 3 of Order 1. The conditions that are
necessary to be satisfied in the case of a defendant is the right to
relief claiming to exist against them comes out of the same act of transaction;
and the case is of such a nature that, if separate suits are brought against such
a person, any common question of law or question of fact may arise.
When a person who is a necessary party to a suit has not be joined as a party
to the suit, it is a case of non-joinder. As regards the non-joinder of parties, a
distinction has been drawn between the non-joinder who ought to have been
joined as a party and the non-joinder of a person whose joinder is only a
matter of convenience or expediency.

Effects :

A suit is not to be dismissed only on the ground of non-joinder of parties. The

court may allow necessary parties to be joined, in at a later stage. The court
may in every suit deal with the matter in controversy so far as regards the
rights and interests of the parties actually before it.

According to the proviso of the Rule 9 of Order 1 nothing in the said rule
applies to non-joinder of a necessary party. A necessary party is that in whose
absence the court cannot pass an effective decree. If the decree cannot be
effective without the absent party, the suit is liable to be dismissed. However,
where the joinder of a person is only a matter of convenience and he has not
be joined as a party, he may be added at any stage or the suit may be tried
without impleading him. The allowing of the suit depends on whether a party
who has not been joined is a necessary party or merely a proper party. If a
necessary party is not joined, then, the suit is liable to be dismissed. [19]

Section 99 of the Code of Civil Procedure provides that no decree shall be

reversed or substantially valid, 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 and, however, nothing in this
section shall apply to non-joinder of a necessary party. Where a relief is sought
against a party without impleading him as a party, the suit would be liable to
be dismissed.

In case of non-joinder of parties, Rule 9 provides against the dismissal of suit.

The only course open to the court under such circumstances is formally to call
upon the plaintiff to make his election and confine the suit to one set of
defendants. In case of non-joinder of the necessary party, an opportunity
should be given to the plaintiff to add the necessary party. The Calcutta High
Court in the case of suit for recovery of money against LIC, it held that all the
heirs of the claimant would be necessary parties to the suit and non-joinder of
some of them would be bad. [20]

Rule 1 of Order 1 is subject to local, or special law, statutory provisions as also

to any special form of procedure prescribed by any law. Thus, any special law
provides that a certain person must be impleaded as a defendant although no
relief is claimed against him, then failure to implead him will be fatal to suit
notwithstanding the provision of Order 1 rule 9. [21]

Where a suit for possession was filed, and the defendant derived his title from
the auction-purchaser in liquidations proceedings of a company, but the
plaintiff sued for declaration that the auction proceedings and the subsequent
conveyance by auction purchaser to defendant were void in law under a
certain Act, it was held by the Supreme Court in Vishnu v. Rajan Textile
Mills, [22] that the liquidator was a necessary party and in his absence the suit
for declaration must fail.

Rule 9 applies to a mortgage suit as well as to other suits. In a suit for

redemption of mortgage property where the daughters of the mortgagee who
were necessary parties were not impleaded and objection as to non-joinder
was not raised at earliest opportunity, the suit cannot be maintained on
account of non-joinder.

The Supreme Court held that a candidate who had withdrawn before
contesting elections was not a necessary party and so his non-joinder was not
fatal to the maintainability of the election petition and that therefore he could
be impleaded as there was nothing in the Act which excluded their
application. [23]

20.What is attachment? Explain the properties which are not liable for
attachment and sale in execution of a decree.
Introduction:
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. Decree Holder is Dominus litis(person to whom the suit
belongs) and he h.as the right to choose the mode of execution from those
available to him.
What is attachment?
Attachment is used in law referring to the action of seizing property on
predicting a favourable judgment for a plaintiff who claims to have lent money
to the defendant.

Attachment is an initial procedure where the property is captured before a

final judgment is delivered. It can be an unwarranted seizure if the court ruling
favours the defendant. Attachment may be depended upon as a provisional
remedy to the plaintiff

Section 60(1) of the Civil Procedure Code, declares that all saleable properties
are liable to attachment and sale in execution of the decree. It also provides
that the property specified therein are exempted from attachment and sale in
the execution of a decree.

According to the general rule, all property movable and immovable

properties which include agricultural land, buildings, and shares, furniture's
fixtures or movable property including money, articles etc. Owned by
judgment-debtor and judgment-debtor entitled to hold and process to the
exclusion of others.

Properties which cannot be attached -

According to Section 60(1) of the Civil Procedure Code following 20 kinds

of property are not liable to attachment or sale namely -
(a) the necessary wearing-apparel, cooking vessels, beds and bedding of
the judgment-debtor, his wife and children, and such personal ornaments as,
in accordance with religious usage, cannot be parted with by any woman;
(b) tools of artisans, and, where the judgment debtor is an agriculturist,
his implements of husbandry and such cattle and seed-grain as may, in the
opinion of the Court, be necessary to enable him to earn his livelihood as such,
and such portion of agricultural produce or of any class of agricultural produce
as may have been declared to be free from liability under the provisions of the
next following section.
 (c) houses and other buildings (with the materials and the sites thereof
and the land immediately appurtenant thereto and necessary for their
enjoyment) belonging to an agriculturist or a labourer or a domestic servant
and occupied by him;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners of the Government or of a
local authority or of any other employer, or payable out of any service family
pension fund notified in the Official Gazette by the Central Government or the
State Government in this behalf, and political pension;
(h) the wages of laborers and domestic servants, whether payable in money or
in kind
(i) salary to the extent of the first one thousand rupees and two-thirds of the
remainder in execution of any decree other than a decree for maintenance:
Provided that where any part of such portion of the salary as is liable to
attachment has been under attachment, whether continuously or
intermittently, for a total period of twenty four months, such portion shall be
exempt from attachment until the expiry of a further period of twelve months,
and, where such attachment has been made in execution of one and the same
decree, shall, after the attachment has continued for a total period of twenty
four months, be finally exempt from attachment in execution of that decree;
(ia) one-third of the salary in execution of any decree for maintenance;
(j) the pay and allowances of persons to whom the Air Force Act, 1950 (45 of
1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957),
applies;
(k) all compulsory deposits and other sums in or derived from any fund to
which the Provident Funds Act, 16[1925 (19 of 1925), for the time being
applies in so far as they are declared by the said Act not to be liable to
attachment;
(ka) all deposits and other sums in or derived from any fund to which the
Public Provident Fund Act, 1968 (23 of 1968), for the time being applies, in so
far as they are declared by the said Act as not to be liable to attachment;
(kb) all moneys payable under a policy of insurance on the life of the judgment
debtor;
(kc) the interest of lessee of a residential building to which the provisions of
law for the time being in force relating to control of rents and accommodation
apply;
(l) any allowance forming part of the emoluments of any servant of the
Government or of any servant of a railway company or local authority which
the appropriate Government may by notification in the Official Gazette declare
to be exempt from attachment, and any subsistence grant for allowance made
to any such servant while under suspension;
(m) an expectancy of succession by survivorship or other merely contingent or
possible right or interest;
(n) a right to future maintenance;
(o) any allowance declared by any Indian law to be exempt from liability to
attachment or sale in execution of a decree; and
(p) where the judgment-debtor is a person liable for the payment of land-
revenue; any movable property which, under any law for the time being
applicable to him, is exempt from sale for the recovery of an arrear of such
revenue.
21.What is appeal? Explain the various types of appeal provided under Civil
procedure code.
An appeal consists of a process where superior court reconsiders the decision
of inferior court. The consideration may be made on the question of fact as
well as question of law. The court while exercising its appellate jurisdiction can
confirm, reverse, modify or remand the matter to lower court for fresh
decision in terms of its direction. However, the term ‘Appeal’ is not defined
under the Civil law. Appeal is a creature of statute and right to appeal is a
substantive right. It is notable here that suo moto appeal is not possible.
Meaning of appeal:
The Black’s Law Dictionary defines appeal as “the complaint to a superior
court for an injustice done or error committed by an inferior one, whose
judgement or decision the court above is called upon to correct or reverse. It is
the removal of a cause from a court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial.”
Who can file an appeal?
This is a first and foremost question that stuck in mind of litigants that who is
authorized to file an appeal. Here are the persons who can file appeal before
the court of law:-
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 is entered on the record of the suit.
2. If such party is dead who get affected by the decree then its legal
representatives can file an appeal by virtue of Section 146 CPC.
3. An auction purchaser may file appeal against an order in execution of a
decree to set aside the sale on ground of fraud.
4. No other unless he/she is a party to a suit can file appeal.

Moreover, there are sub-categories under appeals which are mentioned

below:-
1. Appeal from original decree.
2. Appeal from order.
3. Appeal from appellate decree/Second appeal to High Court.
4. Appeal to Supreme Court.
Appeal from original decree:
Section 96 of CPC deals with appeals from original decree. Usually, first appeal
lies from every original decree passed by any court. It is marked here that
appeal may lie from an ex-parte decree, but appeal shall not lie from a decree
passed with consent of both parties.
Appeal from order:
Sections 104 to 108 and Order 43 of the CPC talks about appeals against
orders. According to these provisions, certain order are appealable other
whereas, appeal could not be lie against some orders. Order can be defined as
“the formal expression of any decision of a civil court which is not a decree.”
An appeal from order can be filed within ninety days before the concerned
High Court and within thirty days from the date of order, before another court.
Section 106 provides that appeals against orders in cases in which they are
appealable shall be brought before the court to where an appeal would lie
from the original suit. Howbeit, Section 105 states that every whether
appealable or not, except an order of remand can be attacked in an appeal
from the final decree on the ground that there is an error, defect or irregularity
in the order and that such error, defect or irregularity affects the decision of
the case.
Appeal from appellate decree:
Section 100 of the CPC provides for second appeal to High Court against
decree passed by appellate court. The procedural right of the second decree is
provided to either of the parties to a civil suit who has been adversely affected
by the decree passed by a civil court. It is notable here that general rule is that
second appeal lies to the High Court only if the court is satisfied that it involves
a substantial question of law.
In Mahindra & Mahindra Ltd. v. Union of India & Anr. 1979 AIR 798, the Apex
Court observed that under the proviso, the Court be ‘satisfied’ that the case
involves a substantial question of law and not a mere question of law. The
reason for permitting the substantial question of law to be raised should be
recorded by the Court.
However, as per Section 103, the High Court has power to determine the
issues of fact if there is sufficient evidence on record.
Provisions related to appeal to Supreme Court in civil case:
Primarily, the Indian Constitution under Article 133 provides provision to file
an appeal to the Apex Court. Further, Section 109 of the CPC provides the
conditions under which an appeal could be filed before the Supreme Court,
these are enumerated below:-
1. An appeal can be filed from a judgement, decree, or final order of the
High Court.
2. A case which involves the substantial question of law of general
significance.
3. Where High Court opines it to be fit for the Supreme Court to deal with
such a question.

22.What is legal disability? Discuss the provisions in the limitation act

affording protection under such disability?
Introduction
The intention of the statute of limitations is to put an end to litigation in
accordance with the principle, interest reipublicae ut sit finis litium which states
that it is in the interest of the state to put an end to it. Legal Disability is defined
under section 6 of the Limitation Act which states that if the person seeing was
disqualified at the time the cause of action arose, there will be no time limit if
the suit is filed within three years of the disqualification ending. Section 6 of the
aforementioned Act allows children or lunatics to file a suit or application for a
longer period of time
What is the legal definition of disability?
The absence of legal capacity to conduct an act due to a lack of competent
physical and mental abilities. The term “disability” usually refers to a person’s
incapacity to exercise all of the legal rights that only an average person would
have.

▪ Section 6 states that when a person who is entitled to institute a suit

or make an application for the decree’s execution is a minor, insane,
or idiot at that time then he can file a suit or make an application
after the end of disability as would have specified under the third
column of the schedule.
▪ When such a person is affected by both the disabilities and the
person gets affected with any other disability then he can file the
suit or makes the application when both the disabilities come to an
end.
▪ When such disability lasts till the death of the person then his legal
representatives can file the suit or makes an application after the
periods of death.
▪ Where the legal representatives get affected other than death then
the above provisions shall apply.
▪ When a person with an illness dies after the disability has ended but
before the deadline set by this section, his legal representative may
file a lawsuit or file an application within the same time limit as if the
person had not died.
Under this section minor includes a child in the womb of the mother.

Kinds of Legal Disability

Minor: As per section 3 of the Indian Majority Act, 1875 a person becomes major
when he attains the age of eighteen years. For the welfare of the child, the court
appoints the guardian until he/she attains the age of majority. In some of the
cases, 21 years of age is to be considered as the age of majority.
Insane: It is explained in one of the cases named SK Yadav v State of
Maharashtra [1] and the Supreme Court, in this case, stated that there is no
specific way to check the insanity of the person. It can only be determined
preceding, accompanying, and after the event’s behaviors.
Lunatic: A lunatic is a person who had an understanding but by accident or some
other disease, he lost the use of his senses. A lunatic is a person who is
sometimes in his senses and sometimes not.
Rules related to Legal Disability under the Limitation Act, 1963
The rules related to legal disability are enshrined under sections 3,6,7,8 and 9 of
the Limitation Act, 1963. Section 3 is the most crucial section which provides for
the time period in which a person can file a suit beyond the concept of limitation
which stops the person from filing the suits. Section 4-24 contains the
exceptions in case of extraordinary situations. There are three grounds available
on which a person can file a suit beyond the periods of limitation i.e. minor,
insane, and lunatic. Section 8 relates to section 6(2) in which the concept of
multiple disabilities is discussed and this section 8 states that the time period of
limitation is 3 years after the death of that very person or ceasing of his
disability. Section 9 states that once the period has begun, no further disability
can reschedule its time period.

Rules enshrined under CPC related to Legal Disability

As per Order VIII, Rule 5(1) if a specific charge is not filed the suit shall stand
dismissed and if the defendant has specifically denied or failed to recognize
something then it will be admitted specifically except against those persons who
are suffering from legal disability.

Section 6(3) is to be r/w Order XXII which says that the legal representative can
be a party to the suit on the behalf of the deceased plaintiff.

As per Order XXII, if no legal representative of the deceased is left then the court
can appoint the administer general or such other officer as it thinks fit to
represent his estate.[2]

6. Case Laws
▪ Bapu Tatya Desai v Bala Raojee Desai [3]
The purpose of section 7 of the Limitation Act, according to this instance, is to
control the alleged indulgence available to children in order to ensure that the
advantage of section 6 of the Limitation Act does not extend to a proportionally
large number of minors but only until the eldest of the group does not become
a major.

▪ Smt. Usha Rani Banerjee & Ors. Vs. Premier Insurance Company
Ltd, Madras & Ors [4]
Section 7 is an exception to the principle laid down under section 6. The court
held that if there are many individuals filing one suit and any one of them is
disabled then time will not go against them until the disease ceased to exist.
However, if one of the parties to the suit was competent to discharge the other
without the consent of the other, time would begin to run against both of them.

Conclusion
After analyzing the various aspects of legal disability under Limitation Act and
Code of Civil Procedure it can be said that there are some situations under which
a person can file a suit or move an application after the expiration of limitation
period and it also provides us the facility of filing a suit if a person dies before
the said date. It also provides a remedy if there is no legal representative. One
of the defensive mechanisms is used to keep an eye on the people so that they
cannot misuse it. As per my understanding, this law is accurate enough as it
prevents the misuse to the provisions and the judges should also consider this
limitation period as a boon.

23.Discuss the provisions of CPC in respect of place of suing.

Place of suing
Section 15 to 20 deals with the place of suing

There are three kinds of jurisdiction to determine the place of suing:-

• Territorial jurisdictions
• Pecuniary jurisdictions
• Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine
is whether the court has a jurisdiction to deal with the matter. If the court has
all these (territorial, pecuniary, or subject matter jurisdiction then only the court
has the power to deal with the case. In the case, if the court does not have any
of the above-mentioned factors then it will be considered as lack of jurisdiction
or the irregular exercise of jurisdiction. when the court who does not have
jurisdiction decide the case and give decision then such decision will be
considered as void or voidable depending upon the different circumstances.

Pecuniary jurisdiction ( Section 15)

Every suit shall be instituted in the court of lowest grade competent to try it. The
word competent denotes that the court must have the power to hear the case
with regards to pecuniary jurisdiction. The court of lowest grade who has a
jurisdiction with regards to pecuniary value shall deal with the case at first
instance.
The issue arises:- who will determine the value of the suit?

Ordinarily, the plaintiff makes the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court unless it prima facie appears
to the court that the valuation was not done correctly. When the court finds
that the valuation was either done overvalued or undervalued, then the
valuation will be done by the Court and the court will direct the party to
approach the appropriate forum.

Territorial Jurisdiction (Section 16 to 20)

It is divided into:-

• Suits related to immovable property ( Section 16 to 18)

• Suits related to Movable property ( Section 19)
• Other suits( Section 20)
Section 16 states that the suit related to immovable property shall be instituted
where such immovable property is situated.

It talks about the institution of the suit with respect to:-

• Recovery of immovable property with or without profit or rent

• Partition of immovable property
• Foreclosure, sale or redemption in case of charge or mortgage upon
immovable property
• Compensation for a wrong caused to immovable property
• Determination of any interest or rights related to immovable property
• Recovery of movable property under attachment or distraint, for all the
above-mentioned purpose.
When the suit is filed for the relief or compensation for wrong caused to
immovable property held by a defendant or any other person on the behalf of a
defendant where the relief can be obtained through his personal attendance
then suits may be instituted in a court within whose local jurisdiction:-

• the property is situated, or

 • the defendant voluntarily and actually resides or carries on business or
personally for gains.
Section 17:-Cases in which the immovable property is situated within the local
limits of the jurisdiction of different courts.

When the suit is filed for obtaining the compensation or relief for the wrong
caused to immovable property situated within the jurisdiction of two or more
courts, the suit may be filed in any court within whose local jurisdiction a portion
of the property is situated. But in respect for the value of subject matter of the
suit, the entire claim is cognizable by such court.

Section 18– A place of an institution when the jurisdiction of courts is uncertain

When there is uncertainty with regards to the local limits of the jurisdiction of
courts, and any of the courts has satisfied that there is a ground for uncertainty,
record the statement and may proceed with the case to entertain and dispose
of the case. The decree passed by such court will have the same effect as if the
property was situated within the local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the
statement and objection is brought before Appellate or Revisional Court, the
Appellate or Revisional court shall not allow the objections unless it is satisfied
that at the time of institution of suit there was no reasonable ground for
uncertainty as regards to jurisdiction of Court and there has been a failure of
justice.

Section 19– Suits with regard to movable property

Conditions

• If the wrong was done within the local limits of the jurisdiction of one
court
and

• The defendant voluntarily resides or carries on his business or works

for personal gain within the local limits of the jurisdiction of another
court then the plaintiff has an option to file at either court.
Lets us understand through an example
A, residing in Delhi, beats B in Bangalore. B may institute the suit either in Delhi
or Bangalore.

A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may

sue A in Bangalore or Delhi.

Other suits to be instituted where defendants reside or cause of action arises

(Section 20)

Conditions

• If the breach of contract was done or cause of action arises within the
local limits of the jurisdiction of one court
And

• Defendant voluntarily resides, carries on his business or works for

personal gains within the local limits of the jurisdiction of another
court the plaintiff has an option to file at either court

Objections to jurisdiction( Section 21)

If objection related to the place of suing:-

• pecuniary limits
• competence of the executing court with regards to local limits of its
jurisdiction
is not brought in the Court at the first instance, before settlement or in a case
where the issues are settled, then no objection will be allowed by the Revisional
or Appellate Court unless there is a failure of justice.

Non- Applicability

• Territorial jurisdiction
• Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan
When the court commits an error in entertaining the suit with regard to
pecuniary or territorial jurisdiction then the decision given by such court will not
be void but will be considered as the illegal exercise of jurisdiction.

Bars on a suit to set aside a decree on objection as to the place of suing (Section
21A)

No suit shall be brought up challenging the validity of decree passed in a former

suit between the same parties or between the parties litigating under the same
title on any ground based on an objection as to a place of suing.

Conclusion

The concept of the place of suing is very important as it helps to determine the
jurisdiction of each court. It helps to the plaintiff where to file a suit. It saves the
time of the court in determining the jurisdiction of the court.

24.Discuss about reference under CPC.

A court subordinate to the High Court is empowered to refer the case under
Section 113. The court in relation to Section 113 means a court having Original
Civil Jurisdiction. A reference can be made only when there is a question of law
or validity of any Act or Ordinance or of any provision of the Act is involved and
can be sought only in a pending suit, appeal, or other proceedings. Section 115
deals with revision. It empowers the High Court to call for the record of any case
decided by a court subordinate to it.

Conditions

Where any matter involving a substantial question of law is referred by the

subordinate court to the High Court for its opinion upon that matter it is known
as a reference. According to Section 113, any court can refer the case to the High
Court for its opinion and the High Court may then make an order as it deems fit
subject to certain conditions and limitations.

Rule 1 Order XLVI for the purpose of reference provides certain conditions and
limitations that are needed to be satisfied for the High Court to entertain the
reference from the subordinate court. These conditions are given below :
 • There should be a pending suit or appeal where the decree is not
subject to appeal.
• There must be a question of law or usage having the force of law.
• The Court that is trying the suit or appeal or executing the decree must
entertain reasonable doubt on that question of law.
As per proviso to Section 113, the question of law involves questions relating to
the validity/provisions of any Act, Ordinance, or Regulation or other questions.

Who may apply?

A subordinate court may refer the case with its own opinion on the point to High
Court

• either on its own motion or;

• on the application of any of the parties.
In Manager Metro Railway vs M/S. B.C.L. Secure Premises it was ruled
that Section 113 is not a provision that enables the High Court to take reference
suo moto or to order a reference. It is a provision that enables the subordinate
court to refer the case to the High Court.

Power and duty of referring court

To entertain the doubt on the question of law. In Banarsi Yadav vs Krishna

Chandra Dass, it was held that a subordinate court may refer a case to the High
Court when there is reasonable doubt regarding the constitutional validity of an
Act.

In A Sreenivasa Rao and Ors v. Govt of Andra Pradesh, it was held that the
subordinate court is not empowered and entitled to decide the validity of any
Act, Ordinance or Regulation and Section 113 makes it mandatory for the
subordinate court to refer the pending case to the High Court for determining
the question relating to the validity of an Act, Ordinance or Regulation which is
necessary for the case to be disposed of by stating its reasons and opinions for
referring the case to the High Court for its opinion.

Power and duty of the High Court

 • To make any order as it thinks fit to when the case is referred to it by
the subordinate court.
• Answer or refuse to answer the question in a case and send the case
back to the referring court for disposing it.
• To quash the case referred to it.

Article 228 and Section 113

In Ranadeb Choudhuri vs Land Acquisition Judge, the court observed, Section
113 of the Civil Procedure Code is a statutory provision whereas Article 228 is a
constitutional provision. Section 113 does not relate to the interpretation of the
constitutional provisions but to the question of the validity of an Act. Both
Section 113 and Article 228 may relate to a common case but are not
coextensive.

It was held in Rama Sundari Devi v. Indu Bhusan Bose that under Section 113 the
court, subject to certain conditions, may state and refer the case to the High
Court for its opinion and the proviso to this section specifically mentions the
case relating to the validity of an Act. Whereas under Article 228, if the High
Court is satisfied that a case is pending in a subordinate court that involves the
determination of the substantial question of law for the interpretation of the
Constitution. The High Court shall withdraw the case and either dispose of the
case itself or determine the question of law and return the case to the court
from which the case has been withdrawn.

Procedure at hearing
The following procedure has to be followed at the time of hearing:

• As per Rule 1, the court trying the suit or appeal or executing the
decree either on its own or on an application of the parties will draw
up the statement of facts and point of doubt of the case and pass a
decree or order contingent upon the high court on the points referred.
• After hearing the parties the High Court will decide the points so
referred. A copy of the judgment along with the signature of the
registrar will be transmitted to the referring court as per Rule 3.
• The referring court on receiving the copy will proceed in confirmation
with the High Court’s decision to dispose of the case.
 • The High Court has been vested with the power under Rule 5 to make
such orders and to amend, alter, cancel, set aside any decree or order
the referring court has passed or made.
• As per Rule 7, In case the question arises as to the jurisdiction of small
causes court, a record with the statements of the reasons for doubt will
be submitted to the High Court.

Costs
Rule 4 of Order XLVI talks about the costs of reference to the High Court. It says
that if any cost is consequent upon a reference for the decision of the High
Court, it shall be deemed to be the costs in the case.

25.Write a note Caveat petition?

What Is the Meaning of Caveat

Caveat is a request made to the court that no order in a suit or proceeding

instituted or likely to be instituted before it may be passed without hearing the
person filing the caveat.

Caveat is not defined in the Civil Procedure Code, 1908. Though there is no
exact definition for caveat in the Code, section 148A of CPC talks about it. It
was added in 1976.

The person who files a caveat is known as caveator.

through caveat, the caveator claims his right to appear before the court on the
hearing of an application made or likely to be made in a suit instituted or about
to be instituted.

The person by whom such an application has been made or expected to be

made is called caveatee.
A caveat remains in force for 90 days.

In simple terms, a caveat implies ‘to give notice before taking any action‘.

Object of Section 148A CPC

I. To safeguard the interest of the caveator.

II. To avoid the multiplicity of proceedings.

Caveat is lodged in the form of a petition.

Who May Lodge a Caveat?

Any person who claims a right to hearing on an application filed or expected to

be filed is competent to lodge a caveat.

To become entitled to lodge a caveat, it is not necessary that the person is a

party to the suit.

26.Write a note on Affidavit?

Introduction:-
 Order 19 deals with the affidavits. An affidavit is a sworn
statement of the facts by a person who is familiar with the facts and
circumstances have taken place. The person who makes it and signs it is known
as Deponent. In the affidavit, the contents are true and correct to the
knowledge of the person who signed it and he has nothing concealed material
therefrom.
It is duly attested by the Notary or Oath commissioner appointed by
the court of law. The duty of the notary and oath commissioner is to ensure
that the signature of the deponent is not forged. The affidavit must be
paragraphed and numbered as per the provision of the code.

Meaning of affidavit:-
Though the expression “affidavit” has not been defined in
the code, it has been commonly understood to mean “a sworn statement in
writing made especially under oath or on affirmation before an authorized
officer or Magistrate.”

The essentials attributes of an affidavit are following:

a) It must be a declaration made by a person,

b) It must relate to facts and not inferences from the same,
c) It must be in the first person,
d) It must be in writing, and
e) It must be a sworn statement made or affirmed before a Magistrate or
any other authorized officer.

Contents of the affidavit:-

An affidavit should be confined to such facts
as the deponent is able to prove to his personal knowledge except on
interlocutory applications on which statements of his belief may be admitted.
(R. 3)

Important points about Affidavits:-

I. A Court may order that any fact may be proved by affidavit. Ordinarily,
a fact has to be proved by oral evidence.
II. The definition of the affidavit is not defined under S. 3 of the Evidence
Act. It can be used as evidence only if, for sufficient reason, the court invokes
the provisions of Order 19 of the code.
III. Rule 1 is a sort exception to this rule and empowers the court to
make an order that any particular fact may be proved by affidavit, subject,
however, to the right of the opposite party to have the deponent produced for
cross-examination.
IV. An affidavit should be confined to such facts as the deponent is able
to prove to his personal knowledge except on interlocutory applications on
which statements of his belief may be admitted. (R. 3)
V. Unless affidavits are properly verified and are in conformity with the
rules, they will be rejected by the court. But, instead of rejecting an affidavit, a
court may give an opportunity to a party to file a proper affidavit.
VI. Ordinarily interlocutory applications such as interim injunctions, the
appointment of the receiver, etc, can be decided on the basis of an affidavit.
27.Briefly describe the various stages of suit?

Stages of the Civil Suit as per the Civil Procedure Code, 1908

1) Presentation of the plaint

2) Service of summons on defendant
3) Appearance of parties
4) Ex-party Decree
5) Filing of written statement by the defendant
6) Production of documents by parties
7) Examination of parties
8) Framing of issues by the court
9) Summoning and Attendance of Witnesses
10) Hearing of suits and examination of witnesses
11) Argument
12) Judgment
13) Preparation of Decree
14) Execution of Decree
1) Presentation of the plaint Order 7 of CPC 1908:-

Presentation of the plaint in the court is the first step or starting point of all
the pleading in a case in India. The whole judicial system under the civil law set
in motion by the filling the plaint.
For the detailed study of the plaint, you can visit here: Plaint meaning, its
essential and particular, etc.
2) Service of summons on defendant (Order 5):
The second stage of the civil suit is the service of summons on the defendant.
Summons is an instrument used by the court to call the person whose name is
mentioned in the plaint as a defendant. It is a way to inform the person against
whose the civil proceedings have been commenced and he is required to
present his defence in the court. It is a process directed to a proper officer of
the court to notify the person named, that he is required to appear, on a day
named and answer the claim in such action.
3) Appearance of parties:
When the summons duly served to the defendant, the next stage of the civil
suit commenced which is the appearance of the parties before the court on
the day fixed. If the defendant does not appear on the day fixed in the
summons the court may proceed ex parte. In the case of the plaintiff, if he is
absent court may dismiss the suit. Where neither parties appear the court may
dismiss the suit.
4) Ex-party Decree(Order 9):
As mentioned above if the defendant, on a fixed day in the summons does not
appear the court may proceed ex-parte. Where the plaintiff appears and the
defendant does not appear when a suit is called up for hearing and summons is
duly served the court may make an order that suits will be heard ex-parte
under Order 9 of the CPC 1908.
 5) Filing of written statement by the defendant(Order 8) :
First of all, we should know that what is written statement. Actually, it is a
pleading of the defendant in the answer to the plaint filed by the plaintiff
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. The
provision regarding the written statement has provided under Order 8 of the
Code of Civil Procedure, 1908.
6) Production of documents by parties (plaintiff and defendant):
After filling the written statement by the defendant the next stage of the suit
is the production of documents by the parties. At this stage, both parties have
to file documents in court which are in their possession or power. In such a
situation, where parties rely on such a document that is not in their
possession then parties have to apply to the court for issue of summons to
authority or persons in whose possession these documents are. In such a case,
parties have to deposit in the court cost of such production of the documents.
7) Examination of parties:
After the filling of the written statement, production of the documents and
appearance of the parties, the important stage commences that is Examination
of the parties. At the first hearing of the suit, the court ascertains from each
party or his pleader whether he admits or denies such allegations of fact as
made in the plaint and written statement. Such admissions and denies shall be
recorded.
8) Framing of issues by the Court (Order 14):-
The next of the civil suit is the framing of issues. It is the duty of the court to
framing issues. Order 14 of CPC provides the provision regarding the framing
issues.
9) Summoning and Attendance of Witnesses (Order 16):-
After the framing of issues parties shall present in the court a list of witnesses
whom they propose to call either to give evidence or to produce documents.
Such a list shall be present in the court on the day appointed and not later than
15 days after the date on which issues are settled.
10) Hearing of suits and examination of witnesses:-
After the summoning of the witnesses, the next stage of the civil suit is
hearing of suits and examination of witnesses commence. First right to begin is
of plaintiff unless the defendant admits the facts alleged by the plaintiff and
contend that either in point of law or on some additional facts alleged by the
defendant the plaintiff is not entitled to any part of the relief, in such a case
the defendant has the right to begin.
11) Argument:-
As soon as the stage of the hearing of suits and examination of witnesses is
over then the suit is kept for the next stage i.e. argument. Once the evidence
has been submitted and cross-examination is conducted by both parties, then
both sides are allowed to present a summary of the case and evidence to the
judge in the final session.
12) Judgment:-
The next stage of the civil suit is judgment, which means the statement given
by the judge on the ground of which a decree is passed.
13) Preparation of Decree:-
After the delivery of the judgment, the next stage is the preparation of
Decree, and it is to be prepared by the concerned clerk.
14) Execution of Decree:-
In this stage, decree-holder compels the judgment-debtor to out the mandate
of the decree or decree or order as the case may be. It is the process by which
a decree-holder recovers the fruits of the judgment. The execution is complete
when judgment creditor or decree-holder gets money or other thing awarded
to him by judgment, decree or order.
28.Discuss the provisions of the Civil Procedure Code, 1908 for granting
temporary injunctions.

Introduction

An injunction is a restraining writ issued by a court at the request of a party

plaintiff, directed to a party defendant in action, or a party made a defendant
for that purpose, barring the other from doing something, or allowing his
servants or agents to do something, that he is threatening or trying to do, or
restraining him from continuing to do something, that is unjust and unfair,
harmful to the Plaintiff, and unable to be effectively redressed.

Types of Injunctions

1. Preliminary Injunction
2. Preventive Injunction
 3. Mandatory Injunction
4. Temporary restraining order
5. Permanent Injunction
Temporary Injunction (based on time)

The Court may impose a temporary restraining order to prevent the Defendant
from causing any damage to the Plaintiff’s property or threatening to sell it.
This is an interim relief provided to ensure that Plaintiff’s rights are not
violated. The Court can issue this Injunction at any point throughout the trial,
even before the case is resolved. The Civil Procedure Code of 1908 governs
temporary injunctions. The following are the provisions that govern it

Section 94 – This section tries to prevent the defeat of justice. Sub clause (c)
refers to awarding temporary injunctions and, in the event of non-compliance,
even condemning the individual to civil prison or ordering the attachment and
sale of his property.

Section 95 – If the Plaintiff’s claim is dismissed, the Court may award the
Defendant to compensate if he requests it.

Order 39 of CPC –

1. Order 39, Rule 1 lists the circumstances in which the Court may grant a
temporary injunction as a statutory relief, and they include:-

i. If the property in question is in danger of being squandered,

damaged, alienated, or unlawfully sold by one of the parties to the
litigation, the Court may order that it be maintained.
ii. If Plaintiff is threatened with eviction or property damage by
Defendant during the property dispute.
iii. Assume Defendant has broken the law or breached a contract.
The ground described before is also emphasized in Order 39, Rule
2 of the CPC, 1908.
iv. Finally, if the Court believes it would be in the best interests of
justice, it may issue an injunction.
2. Order 39, Rule 2-A, deals with an individual’s failure to comply with an
injunction; they are fined.
 i. It stipulates that the person be held in civil prison for a maximum
of three months.
ii. It also allows for the attachment of that person’s property for a
period of up to a year. If the delinquency persists, however, the
property may be sold.
3. In most cases, the court must notify the opposing party of the injunction
request. Even yet, under Order 39, Rule 3, the Court can issue an ex-parte
injunction if it feels the order’s aim will be jeopardized by the delay. In the case
of Union of India v. Era Educational Trust[1](2000), the Supreme Court
established precise guiding principles for courts to follow when deciding on an
ex-parte injunction.

i. Will Plaintiff suffer irreparable harm as a result of Defendant’s

actions?
ii. Is there a greater risk of injustice if an ex-parte injunction is not
granted?
iii. Is it possible that the timing of the application for an ex-parte
jurisdiction was chosen with malice?
iv. The courts will also take into account the broad concept of
balance as well as irreparable harm.
4. According to Order 39, an injunction may be cancelled, altered, or set aside
if any unhappy party files an appeal against it.

i. The injunction was issued without the participation of the other party,
notwithstanding the fact that the injunction application and supporting
documentation contained intentionally false or misleading assertions. As a
result, the Court will lift the injunction. It can, however, keep the injunction in
place if it judges – for reasons to be documented – that it is not essential for
the discussion of injustice.

ii. Furthermore, if the party against whom the Injunction is given has endured
undue burdens due to a change in circumstances, the Court may set aside the
Injunction.

5. Order 39, Rule 5 emphasizes that if an injunction is given against a

corporation or a business, the Court’s authority extends to the corporation as a
whole and the members and executives of the corporation whose personal
actions it wishes to restrain.
Requirements for Temporary Injunctions

1. Prima Facie Case

The basis for a lawsuit is a contested subject. The circumstances in those

inquiries suggest that the Plaintiff or Defendant may be entitled to
compensation. A prima facie case does not mean that the Plaintiff or
Defendant has constructed an impregnable case that will almost certainly win
in court. Simply put, the case they build for their Injunction must be strong
enough to avoid being rejected immediately.

2. Irreparable Loss

It would be a grave injustice if a person experienced irreparable harm as a

result of the lawsuit before his legal entitlement was determined in court.
Situations like frustration over the loss of a sentimental item, on the other
hand, will not be regarded irreparable damage. If the Court does not have a
fair or reasonable address, things that can be repaired by nature will be
regarded irreparable damage. When harm is persistent and recurring, or when
it can only be repaired through a series of litigation, it is usually irreversible.
The difficulty of determining the level of injury and inflicted damage is
frequently referred to as “irreparable damage.” However, just because it’s
difficult to prove injury doesn’t mean it’s irreversible.

3. Balance of convenience

The Court must weigh the parties’ cases and determine whether the
comparative harm or annoyance that would ensue if the Injunction was not
granted is higher than the harm or inconvenience that would result from
granting it.

These requirements were laid under the Dalpat Kumar and Another v. Pralhad
Singh And Others (1991[2]).

Facts of the case

A total of four litigation were brought in this case under CPC Order 39. On June
14, 1979, the appellant (Dalpat Kumar) and the respondent (Prahlad Singh)
agreed to the acquisition of a residential residence in Jaipur for Rs. 51,000. An
action for particular performance was filed by the appellant. The respondent’s
wife sought a provisional injunction for the repossession of the residential
house on April 28, 1984. The trial court denied the appellant’s request for an
ad interim injunction in May 1984, but the High Court upheld it on appeal on
July 14, 1987.

The sons filed the lawsuit, saying that the residential residence was their joint
property and that no property sale would bind them. Thus they sought
partition. They also sought an interim injunction, which the High Court denied
on July 7, 1988. The respondent filed the fourth lawsuit on December 7, 1988,
alleging that the first appellant had committed fraud. He then requested an
interim order to prevent the residential house from being repossessed. The
High Court granted an interim injunction preventing appellants from taking
possession of the residential house in an order dated February 26, 1991.

Judgment

The Supreme Court ruled that the High Court erred in evaluating the balance of
convenience in favour of issuing the injunction without taking into account any
significant circumstances, evidence, or alienation. The Supreme Court
overruled the ruling of the High Court and upheld the judgement of the trial
court. The Supreme Court further decided that the decision to award the
respondent a temporary injunction was made without considering all of the
standards and principles outlined in CPC order 39.

Conclusion

A sort of equitable remedies is an injunction. The Court has complete

discretion in granting or denying an injunction. Regardless of how good the
applicant’s reason is, seeking redress as a matter of right is not attainable. As a
result, using the power to issue an injunction requires extreme caution,
awareness, and forethought. It is a rare and sensitive power that has the ability
to cause the innocent party to suffer losses or disadvantages. As a result,
unlike everything else in the world, an injunction does not come with a
guarantee.
29.Explain the procedure for attachment and sale of immovable property for
execution of a decree.

Introduction
Mostly, the decree of sale of immovable property is awarded for enforcing
mortgage deed, charge, or for recovery of money or any other kind of
encumbrances as deemed fit by the court. The person in whose favor decree is
awarded is called the ‘Decree Holder’, (DH) and the one incumbent to satisfy it
is ‘Judgment Debtor’ (JD). Decree of sale comes into being upon adjudication by
any court exercising original jurisdiction, and the same can be applied for
execution after the prescribed period of appeal, provided it is not preferred by
the JD. Per contra, this can go on until the JD gives up or exhausts all his legal
remedies.

Limitation & Executing Court

Period of limitation under ‘The Limitation Act, 1963’ for filing of execution
petition is 12 years from the date that the decree becomes enforceable. The
same shall be filed in the very court that exercised original jurisdiction. However,
the court may transfer the same for execution to any other court directly, even
if it is situated outside the State. This could be for various reasons such as the
immovable property to be sold falls under the territorial jurisdiction of that court
etc. While transferring the decree for execution, the court shall send all relevant
documents viz. copy of the decree, certificate setting forth that due claim
remains unsatisfied or any part that remains, etc.

Written Application

DH shall move a written application in the court that originally passed the decree
or the court to which it has been transferred for execution. The application shall
contain all the essential information viz. suit number, name of parties, date of
the decree, any appeal preferred or pending, amount due, name of the person
against whom execution is sought, and most importantly the mode in which the
assistance of the court is required. Presently, we are discussing for the purposes
of attachment and sale of immovable property to the satisfaction of the decreed
amount. DH should take care to quote the amount which in his estimate is the
true value of the immovable property to be sold.

Show Cause Notice

After the executing court has satisfied itself that all defects if any have been
cured in the application and has provisionally evaluated without prejudice to the
right of the parties the correct amount for the execution of the decree vis-à-vis
value of the immovable property a show-cause notice is issued to the judgment
debtor. It is an opportunity for him to raise his claims or objections against the
execution of the decree on the day and date fixed for hearing. Show cause notice
is necessary only if the execution petition is filed after 2 years of passing of the
decree, or is against a legal representative or assignee or receiver where DH is
declared to be insolvent. However, the court may in its wisdom issue process
instead of show cause notice if it foresees unreasonable delay or ends of justice
are threatened.

Application for Attachment

Once after the court has decided upon the claims or objections if any, raised by
the judgment debtor, against the execution of a decree; the DH shall move an
application requesting attachment of immovable property preceding
sale. Though sale can take place without attachment, this shall further help in
protecting the interests of the DH. The application shall contain complete details
of the immovable property so as to help in its identification. Also elaborate the
extent of JD interest in the said property, as per his information and
belief. Whenever possible, the DH holder shall produce extracts from the
registrar’s office showing various details such as interest of parties if more than
one, revenue due to the government, encumbrance’s if any in the immovable
property, etc.

Prohibiting Alienation of Property

After due diligence, the court shall pass an order prohibiting the JD from
transferring or charging the property in any manner such as sale, gift, lease,
mortgage or otherwise. The same shall apply to all who may be interested to
receive it. Such prohibitory order shall safeguard DH’s interests. The same shall
be drawn in writing and posted at a conspicuous place adjacent to the
immovable property in question, and also at collector’s office if the said property
is land paying revenue to the government. Besides affixing, it shall be publicly
proclaimed with the beating of drums and other means. This order shall also
require the presence of the JD debtor in court on date fixed for settling the terms
of the proclamation for sale.
Objections to Attachment
All claims or objections regard to the attachment of property on the ground that
such property is not liable to be attached shall be filed before the executing
court. However, such applications shall not be entertained by the court if the
claim or objections is preferred after the attached property has already been
sold or is unnecessarily delayed by design. In such circumstances, only remedy
available to the applicant is to file a separate suit, and the court shall be bound
by such outcome. However, w.r.t. all questions pertaining
to right, title or interest they shall be adjudicated by the executing court itself.

Preparing Notice of Sale & its Proclamation

The executing court is empowered to attach property, and publicly auction it to

pay the person entitled proceeds of the sale in satisfaction of the decretal
amount. In this regards, the court shall issue a notice to both DH and JD to
present themselves in court on the day and date fixed for drawing proclamation
of sale notice. It is prepared in the language of the court and contains all the
essentials viz. time and place of sale, specifications and description of property
to be sold, revenue assessed if any due, any encumbrance to which the property
is liable, decreed amount, estimate value of the property as ascertained by the
court, judgment debtor and decree-holder or any other material information
necessary that shall aid the purchaser in its evaluation. Care is taken to sell only
that part of the property that is necessary to satisfy the decree. The court is also
empowered to summon anyone, or demand documents deemed necessary in
preparation of this proclamation notice.

Warrant of Sale
The court shall issue a warrant of sale order in the name of the bailiff to publicly
auction as per the details mentioned in the warrant on the date and place
specified and report back to court with an endorsement certifying the manner
in which sale has been executed or the reason why it has not been executed.

Adjournment, postponement or stoppage of sale

1. The court may at its discretion adjourn sale to a specified date and
hour, and so can an officer conducting the sale but after recording
 reasons thereto. And if the auction is taking place within the precincts
of the courthouse then only after leave of court.
2. Sale can be adjourned when the bid amount is not adequate.
3. Sale can be adjourned if the purchaser fails to pay 25% of the bid
amount immediately on closing of bid, and postponed if he does not
pay the remaining sum within 15 days of the successful bid.
4. Provided, if the JD is able to satisfy the court that if the given time he
shall be able to raise the decreed amount either by way of leasing,
mortgaging or selling the property in question or other property the
court may postpone the sale on such terms and for such period as it
deems fit. The court shall grant a certificate to the JD in this respect.
All monies raised by JD shall be paid to the DH.
5. If for any reason purchaser defaults on paying the full bid amount then
after defraying the expenses involved in the auction, the remainder
sum may be forfeited in the favor of the government, if the court so
decides. And the property shall be resold after issuing a fresh
proclamation.
6. The sale could be stopped any time before the lot is knocked down if
the JD tenders to the officer conducting the sale the full decreed
amount along with costs and expenses or on producing proof of its
deposit in executing court.
7. Sale can stay pending adjudication of any claim or objection even if it
is received after proclamation of attachment and advertisement for
sale. Or conditionally allowed pending adjudication that if property is
sold the same shall not be confirmed or pass orders subject to such
terms and conditions as to security etc.
Note: If adjournment exceeds 30 days then fresh proclamation is to be issued,
published and affixed as mentioned earlier.

Application to set aside the sale

1. Any person claiming an interest in the property sold may apply to the
court to set it aside subject to payment in court 5% of purchase money
and sum equal to that specified in proclamation notice i.e. decreed
amount.
2. DH, purchaser or any other person having interest in the distribution
of proceeds from the sale may apply for setting aside the sale on
 grounds of fraud or material irregularity in publishing or conducting the
auction, provided injury sustained is substantial. No such application
shall be accepted if the applicant had an opportunity to approach the
court on an earlier occasion but has failed to do so.
3. Purchaser may apply to set aside the sale on the ground that the JD has
no saleable interest in the decreed property.
Pertaining to all of the above cases, notice is issued to the other party to show
cause before adjudication.

Successful Sale
If a sale is successful, then the purchaser is required to immediately deposit 25%
of the sale amount and the rest within 15 days of successful bid unless DH is the
purchaser himself with the prior permission of the court.

Distribution of money realized from sale

After defraying expenses involved in the sale of property, pay to decree-holder

his full entitlement, and if any balance remains that shall be given to the JD. If
on the contrary money realized from sale is not sufficient to satisfy the decreed
amount then the DH can apply to the court for recovery of balance amount
provided it is legally recoverable.

Certificate to purchaser

Once the sale has become absolute, and there is no litigation pending in either
of the courts i.e. executing court or courts of appeal the court shall issue a
certificate in favor of the purchaser containing the details of the property and
the day and date he is declared to be the absolute owner of the immovable
property. If the property in question is occupied by a tenant the court shall issue
a proclamation bringing to his notice the name of the new owner.

Finally, if for any reason the purchaser is being obstructed from gaining
possession the court shall intervene on the application, and order the bailiff to
put the purchaser in possession of the sold property.

30.What are costs? Explain the different types of costs awarded in civil cases.
According to Black’s Law Dictionary “costs is a pecuniary allowance made to
the successful party for his expenses in prosecuting or defending a suit or a
distinct proceeding with a suit”[1]. Cost are an allowance to the party for
expenses incurring in prosecuting or defending a suit, an incident to the
judgment. In England the term is also used to designate the charges which an
attorney or solicitor is entitled to make and recover from his client, as his
remuneration for professional services, such a legal advice, attendances,
drafting, conducting legal proceedings etc.

Section 35:Section 35 of the Code of Civil Procedure contains the provision as

to costs. The cost of an incident to all suits are in the discretion of the Court
and the court shall have full power to determine by order out of what property
and what extent such costs are to be paid. All necessary direction for these
purposes will be given by the court. Where the Court directs the costs are not
to follow the events the court shall give it in writing.
Kinds of costs:
The code provides for the following kinds of costs:
1) General costs-Section 35;
2) Miscellaneous costs-Order 20-A;
3)Compensatory costs for false and vexatious claim or defences-Section 35-A;
4) Costs for causing delay-Section 35-B.

(1) General costs: Section 35:

The object of section 35 is to awarding costs to a litigant is to secure to him the
expenses incurred by him in the litigation.[3]It neither enables the successful
party to make any profit out of it nor punishes the opposite party.[4]The
general rule relating to cost is that cost should follow the event, i.e. a
successful party must get the costs and the losing party should pay the other
side.[5]

Principals:
The primary rules in respect of award of general cost are as under:
a) Costs are at the discretion of the court.The said discretion must be exercised
on sound legal principles and not by caprice, chance or humour. No hard and
fast rules can be laid down and the discretion must be exercised considering
the facts and circumstances of each case.

b) Normally, costs to follow the event and the successful party are entitled to
costs unless there are good grounds for depriving him of that right.[6]To put it
differently the loser pays costs to the winner. However it does not always
depend on who wins and losses in the end. Even a successful party may be
deprived of costs if he is guilty of misconduct or there are other reasons to do
so.[7]Sub-section (2) of section 35 expressly provides that when the court
orders that cost should not follow the event, it must record reasons for doing
so.[8]

(2) Miscellaneous costs: Order 20-A:

Order 20-A makes specific provisions with regard to the power of the court to
award costs in respect of certain expenses incurred in giving notices, typing
charges, inspecting of records, obtaining copies and producing witnesses.

(3) Compensatory costs: Section 35-A:

The object of Section 35-A is to provide for compensatory costs. This section is
an exception to the general rule on which Section 35 is based, that the “costs
are only in indemnity, and never more than indemnity”.[9]This section
intended to deal with those cases in which Section 35 does not afford sufficient
compensation in the opinion of the court. Under this provision, if the court is
satisfied that the litigation was inspired by vexatious motive and was
altogether groundless, it can take deterrent action.[10] This section only
applies to the suit and not to the appeals or to the revisions.

The following conditions must exist before this section can be applied:[11]
a) the claim or defence must be false or vexatious;

b) objections must have been taken by the other party that the claim or
defence was false to the knowledge of the party raising it ; and

c) such claim must have been disallowed or withdrawn in whole or in part.

Maximum amount:
The maximum amount that can be awarded by the court is Rs 3000.But the
person against whom an order has been passed is not exempt from any
criminal liability. In a subsequent suit for damages or compensation for false
claim or defense, the court will take into account the amount of compensation
awarded to the plaintiff under this section.[12]

Other Liability:
A person against whom a order of costs is made is not exempted from any
other liability in respect of false claim or defense made by him.
Appeal:
An order awarding compensatory costs is appealable .[13]But no appeal lies
against an order refusing to award compensatory costs.[14]Since such an order
can be termed as “case decied”,a revision lies.[15]
(4) Costs for causing delay: Section 35-B:
Section 35-B is added by the Amendment Act of 1976. It is inserted to put a
check upon the delaying tactics of litigating parties. It empowers the court to
impose compensatory costs on parties who are responsible for causing delay at
any stage of the litigation. Such costs would be irrespective of the ultimate
outcome of the litigation.[16]the payment of cost has been a condition
precedent for further prosecution of the suit, if the party concerned is a
plaintiff and the defence , if he is a defendant.[17]
The provisions of this Section are mandatory in nature and therefore the court
should not allow prosecution of suit or defence, in the event of partly failing to
pay costs as directed by the court. If a party is unable to pay costs due to
circumstances beyond his control , such as strike of advocates or staff ,
declaration of the last day for payment of costs as holiday, etc. the court can
extend the time.[18]
Very recently in Ashok Kumar v. Ram Kumar[19] , the Supreme Court observed
that the present system of levying meagre costs in civil matters is wholly
unsatisfactory and does not act as a deterrent to luxury litigation . More
realistic approach relating to costs is the need of the hour.

Conclusion
After going through the provisions of C.P.C. I come to the conclusion that
Sections 35,35-A,35-B and Order 20 were formed with the objective of
awarding costs in order to avoid delay in disposal of suit and to check
unnecessary adjournments[20].Under section 35 court can award cost even
suo motu and also there is no ceiling limit of amount of cost. The cost ordered
should be actual reasonable costs including cost of the time spent by
successful party, the transporting, lodging or any incidental cost besides the
payment of court fee , lawyer’s fee and any other cost relating to the
litigation[21].The award of costs should always be according to the discretion
of the court.

31.What is the special procedure to be followed in a suit by or against

partnership firm?
The legal provisions under Order 30 of the Civil Procedure Code, 1908 are as
follows;

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.

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.

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.
However, if the Partnership of the firm has been dissolved and the plaintiff was
aware of it, service of summons shall be made on the persons who are
available in India at that time and who are sought to be made liable.

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.

Rights of suit on death of partner

Rule 4 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.

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.

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.

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.

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.

In case the court holds that the person was a partner at the material time, he
can file a defense for denying the liability imposed on the firm in respect of the
claim against the defendant. On the other hand, if the court holds that the
person was not a partner at the material time and was not liable as such, the
plaintiff is prevented from alleging the liability of the person as a partner in the
execution of any decree that may be passed against the firm. However, the
plaintiff is not prevented from serving a summon on the firm and proceeding
with the suit.

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.

Suit against person carrying on business in name other than his own

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.

Conclusion
The essence of Order 30 lays down the various distinctions of a civil suit
concerning a firm at a non-individual level. The Order was instituted as an
enabling provision to facilitate the filing of suits against firms, as the same is
obligated to yield a just compensation if someone is wronged. According to
The Indian Partnership Act, registration of a company is important. In case a
company is unregistered, it cannot sue its partners or any individual.

32.What is meant by executing court? What are its powers?

Execution of a decree can be termed as the most important aspect of the civil
justice system. It is the last stage of any civil litigation. The success or failure of
the civil justice system depends on the success in executing the decree passed
by the civil court. In many cases, the courts have stated that civil procedure
code contains an elaborate and exhaustive provision regarding the execution
of a decree. If any question arises regarding the execution of a decree it has to
be decided by the executing court itself and not by any separate suit. Though
there is a certain limitation imposed on the executing court as it cannot go
behind the decree nor can it question its legality or correctness. There is an
exception to this general rule, which states that a decree passed by a court
without jurisdiction is a nullity and its invalidity could be set up at any stage
including at the stage of execution. Section 38 of the civil procedure code
enacts that 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 of the code defines the
expression “court which passed a decree” as it enlarges the scope of the
expression with the object of giving greater facilities to a decree-holder to
realise the fruits of the decree passed in his favour.[1]
As per Section 37 of the code, the following courts would fall within the
expression “court which passed a decree”:

▪ Court of the first instance which passed the decree.

▪ Court of the first instance in case of appellate decrees.

▪ Where the court of the first instance has ceased to exist, the court
which would have jurisdiction to try the suit at the time of
execution, and
▪ Where the court of the first instance has ceased to have jurisdiction
to execute the decree, the court which at the time of execution
would have had jurisdiction to try the suit.
From this, it is clear that a court that has neither passed the decree nor a
decree is transferred for execution, cannot execute it. Execution of a decree is
the last stage of any civil litigation because there are three stages in civil
litigation:

▪ Institution of litigation,
▪ Adjudication of litigation,

▪ Implementation of litigation.

Powers ( Section 42)

[(1)] The Court executing a decree sent to it shall have the same powers in
executing such decree as if it had been passed by itself. All persons is
disobeying or obstructing the execution of the decree shall be punishable by
such Court in the same manner as if it had passed the decree. And its order in
executing such decree shall be subject to the same rules in respect of appeal as
if the decree had passed by itself.

2
[(2) Without prejudice to the generality of the provisions of sub-section (1),
the powers of the Court under that sub-section shall include the following
powers of the Court which passed the decree, namely: --
(a) power to send the decree for execution to another Court under section 39;
(b) power to execute the decree against the legal representative of the
deceased judgment-debtor under section 50;
(c) power to order attachment of a decree.
(3) A Court passing an order in exercise of the powers specified in sub-section
(2) shall send a copy thereof to the Court which passed the decree.
(4) Nothing in this section shall be deemed to confer on the Court to which a
decree is sent for execution any of the following powers, namely:--
(a) power to order execution at the instance of the transferee of the decree ;
(b) in the case of a decree passed against a firm, power to grant leave to
execute such decree against any person, other than such a person as is
referred to in clause (b),or clause (c), of sub-rule (1) of rule 50 of Order XXI.]
33.Write a note on pecuniary jurisdiction?
As the name suggests, this jurisdiction takes the monetary value of the case or
suit into consideration. Only if the court has the authority in terms of the suit’s
financial value to try the suit, the suit would be instituted in that court. Section
15 of the CPC talks about the pecuniary jurisdiction of civil courts. It states
Every suit shall be instituted in the Court of the lowest grade competent to try
it.” This tries to reduce the burden of a court of a higher level.
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. For example, ’A ’wants to accuse ‘B’ due to a violation of the contract
to obtain Rs 5000 in Bombay. The Bombay High Court has original jurisdiction
and small causes court with the jurisdiction up to Rs 50000. So, a suit to obtain
Rs 5000 should ideally be dealt with small causes court. 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.
34.Write a note on fraud on period of limitation?

7.1. Section.-Effect of fraud or mistake on limitation.- In general, a person's

ignorance of his right to sue does not suspend the running of limitation.
However, it has been recognised for a long time that "the right of a party
defrauded is not affected by lapse of time so long as he remains, without any
fault of his own, in ignorance of the fraud which has been committed"1 Acting
on this principle, section 17 provides that in the case of certain types of fraud,
the period of limitation shall not start running until the fraud has been
discovered. This, of course, is only a broad statement of the principle, several
matters of detail which are dealt with in the section will be mentioned in due
course.

More or less the same principle is applied by the Act where relief from the
consequences of a mistake is the very basis of the cause of action, the period
of limitation shall not begin to run until the plaintiff or applicant has
discovered the mistake.

In both these cases, the relaxation is given by the Act itself In addition, there is
a third case where the Act gives a power to the court to extend the period of
limitation on the ground of fraud. Where a judgment debtor has, by fraud or
force, prevented the execution of a decree or order within the period of
limitation, on the ground of fraud.
Where a judgment debtor has, by fraud or force, prevented the execution of a
decree or order within the period of limitation, the court may, on the
judgment creditor's application made after the expiry of the period prescribed
for execution, extend the period, if the application is made within one year
from the date of discovery of fraud or the cessation of the force, as the case
may be. Incidentally, this provision takes in not only fra.-a circumstance that
affects knowledge, but also for.-a circumstance that affects the exercise of the
right, and not its knowledge.

35.Explain the provisions of CPC relating to the parties to the suit, their
joinder, misjoinder and nonjoinder?

Refer Q.No.19

36.Define the term judgement and decree and state the difference between
the judgement and decree.
Judgement

Under Section 2(9) of the Code of Civil Procedure, 1908 a “judgement” means
the statement given by the Judge on the grounds of a decree or order.
Judgement refers to the reasoning given by the court in order to support the
decision. A judgement is said to be the final decision of the court on the said
matter in the form of suit towards parties. Order 20, Rule 4(2) states that a
judgement shall contain a concise statement of a case, point for
determination, the decision thereon and all the reasons for such decisions.
Order 20, Rule 3 of CPC says that the judgement must be signed and dated by
the judge while declaring it in the court. Once it is signed by the judge, the
judgement is not allowed to be amended except in cases where there are
arithmetical errors due to accidental omission. The provision for the same is
stated in Section 152 of the Code of Civil Procedure.

Law” implies the system of rules and regulations, which are based on different
principles of justice, fairness and equality, so as to govern human activities. In
law, Decree implies the legal and formal order, which specifies the rights and
obligations of the parties concerned. On the other hand, the judgement refers
to the decision taken by the judge, on the premise of order or decree.

Essentials of the judgment other than that of the Small Causes Court

• A concise statement of the case

• Point for determination
 • Decision thereon
• Reason for such decision
• Relief Granted

BASIS FOR
JUDGEMENT DECREE
COMPARISON

Meaning Judgement is a statement given A decree is something which

by the judge which adjudicates declares the consequences of
all the issues concerning the the suit and specifically
lawsuit and specifies the rights determines the rights and
and liabilities of the parties. liabilities of the parties.

Defined in Section 2(9) of the Code of Civil Section 2(2) of the Code of
Procedure, 1908. Civil Procedure, 1908.

Nature Final Preliminary, final or partly

preliminary and partly final.

Part of the suit Concluding part Operating part

Passed in Both civil and criminal cases Civil cases only

Appealable No Yes

Sequence First Second

Formal Desirable Necessary

Expression

Execution Not capable of execution Capable of execution

37.Explain the general principles of execution of decree.

Procedure in execution
Section 51 to 54 of the Code talks about the procedure in execution.

Section 51

The section states the jurisdiction and power of the court in executing a decree.
An application for execution of the decree can either be oral or written. The
court may execute decree as per the mode of implementation prayed by the
decree-holder or as the court deems fit.

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.

Section 52

This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of
the deceased remains in the hands of a legal representative, a decree can be
executed against the property, if it is for the payment of money out of the
property of the deceased and if the decree has been passed against the party as
the legal representative of the deceased person.

In a situation where the property which is in the possession of the judgement-

debtor came in the hands of the legal representative and it has not been duly
applied by him, the court will enforce the execution of the decree against him
as if the decree was to the extent passed against him personally.

Section 53

The Section states that when a property is liable for payment of a debt of a
deceased ancestor and it is in the hands of a son and descendant, then the
property will be deemed to be of the deceased which has as his legal
representative come into the hands of the son or other descendants.

Section 54

When a decree has been passed for partition or for the separate possession of
a share of an undivided estate for the payment of revenue to the government,
this section comes into play. The partition of the estate or share needs to be
made by the collector, but if the collector denies making the partition of the
revenue paying property, then the civil court can do so. To attract the provisions
of this section, the plaintiff asking for the division of government revenue is not
deemed as an essential condition.

Powers of the transferor court

Once a court which has passed a decree and transferred it to another court of
competent jurisdiction, it would cease to have jurisdiction over that decree and
it cannot execute the decree. Then, only the transferee court can entertain an
application for execution.

Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of section
39 has been sent for execution to another district, it may be executed by either
the district court to which it was sent or by a subordinate court which has
competent jurisdiction, to which the district court may refer it.

Section 42 provides for the powers of the transferee court and states that the
Court to which a decree has been sent for execution shall have the same powers
in execution of such decree as if it had been passed by itself.
Powers of executing court
The section states the jurisdiction and power of the court in executing a decree.
An application for execution of the decree can either be oral or written. The
court may execute decree as per the mode of implementation prayed by the
decree-holder or as the court deems fit.

Mode of executing a 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.

38.Explain the provisions of CPC relating to the discovery, inspection and

production of documents.

Discovery – Order 11
Under Civil Procedure Code, 1908 discovery basically means a pre-trial
procedural aspect wherein each party is given an opportunity to obtain evidence
from the opposite party or parties. In other words, we can say that it is a formal
process wherein the parties get a chance to exchange information regarding the
witnesses and evidence which will be presented before the court during the
trial.

The main purpose of discovery is to make the parties aware of the case, that
means there shall not be any ambiguity between parties while the trial is going
on. Both the parties shall be clear about the plaint made and issues thereby.
There are various types of discovery:-

1) interrogatories;

2) requests for production of documents and inspection;

3) requests for admissions;

4) depositions;

5) subpoenas duces tecum;

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery which
can be made by the party with the intervention of the court. The information
which is obtained during the discovery is not needed to be admissible in court.
As per the requirement, parties can obtain an order from the court for the
discovery of required facts/ documents from the opposite party to understand
the purpose of the case. Thereby, the scope or extensibility of applying this
section depends upon the nature of the case and material which is asked by the
other party. So it is the discretion of the court to decide whether the application
is covered as per the scope provided to the section under the code or not.

But there are certain limits to the extensibility of the discovery of the
documents. If they are redundant or overly burdensome, they are not called for
discovery.

Therefore, it is understood that this procedure is provided to compel the other

party to produce documents on which they are relying on, other than the
evidence. When such particulars regarding the case are asked through
questions, then they are termed as interrogatories. And if the other party is
requesting documents then it is the discovery of documents.
Interrogatories
Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories.
When, with the leave of the Court, parties administer a set of questions on the
other party then it is called ‘Interrogatories’. Interrogatories shall be confined to
the facts, it shall not be conclusions of law, construction of words or documents,
or inference from facts. Under CPC, this is known as the ‘right to obtain
information’ by the parties. The party to whom the set of questions were
administered shall give reply to another party in writing and under oath.
‘Discovery of interrogatories’ means when the party, while giving answers to the
interrogatories, discloses the nature of the case, with affidavit .

As per the provisions of the code, any party in a suit can file an application to
obtain an order from the court to ask interrogatories from the other party. So
after filing the plaint, when the written statement is filed by the defendant and
when the court sends summons to parties for the first hearing, if any party feels
that there is a gap in the facts, then they can file an application under this section
and ask order from the court.

Objective

The objective of the interrogatories are:-

1. To determine the nature of the case when it is not clear from the suit
filed.
2. To make own case stronger by making the other party do admissions.
3. To destroy the case of the opponent.

Procedure

The willing party to deliver interrogatories shall apply for leave to the court and
shall submit the proposed interrogatories to the court. As per Rule 2, the court
shall decide the matter within 7 days of filing the application by the party.

While deciding the matter the court shall take into consideration the following
points:
 • Any offer which may be sought by the party to be interrogated to
deliver particulars;
• To make an admission;
• To produce documents associated with the matters in question; or
• Any of them.
Further, the court shall consider whether it is necessary in a particular matter,
to dispose of the suit fairly or for saving costs. After one set of interrogatories
are served, the parties can not serve another set without the permission of the
court. The set of questions shall be the ‘question of fact’ rather than the
‘question of law’. Interrogatories shall not be allowed at the premature stage of
the case.

Within 10 days of the service, the affidavit to answer shall be filed by the party
to whom the interrogatories were administered. If the party fails to comply with
such order of the court:-

1. the suit will be dismissed if the party is the plaintiff; and

2. if he is the defendant, his defence can be struck off.

Discovery of documents
When the adversary party is simply compelled to disclose the documents which
are under its possession or power, then that is called as the discovery of
documents. The discovery of documents is covered under the Rule 12-14 Order
XI of the code.

Who may seek discovery?

Any party to a suit under oath may apply for an order from the court for the
discovery of documents which are related to the matter in question of the suit
from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents
which are in its power or possession to the asking party. However, the party
need to be related to the suit.
Conditions

While the discovery of documents is being asked, two conditions need to be

taken care of by the court:-

1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.

Objection against discovery

The party can raise an objection if the documents required to submit comes
under the purview of the privileged documents. However, objecting by filing an
affidavit would not be enough, the party who is objecting also needs to give
proper reasoning behind such objection. The proper reasoning will enable the
court to decide the objection raised by the party. It is open to the court to
inspect the documents and check the viability of the objection raised by the
party. Another objection which can be filed is that discovery is not necessary at
this stage of the suit.

Inspection of documents
Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is
provided. As per Rule 12 of the code the party can compel other parties to
produce the documents without filing an affidavit to apply to the court, relating
to any matter of question-related to the suit. However, such documents need
not be admissible in court unless they give out some connection in a matter of
controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can
be divided into two categories:

1. The documents which are referred to in the affidavits or pleadings of

the parties.
2. The documents which are not referred to in the pleadings of the party
but are in the power or possession of the parties.
And the parties are allowed to get the inspection of the former category
documents, not the latter one.
39.Discuss the provisions of limitation act relating to the exclusion of time in
legal proceedings.
Exclusion of Time
Section 12 to Section 15 deals with the exclusion of time under the Limitation
Act. Section 12 talks about the time that has to be excluded for computing time
of limitation in legal proceedings. Sub-section (1) says that the day on which the
cause of action arises that day shall be excluded while computing the period of
limitation for any suit, appeal or application, the day from which such period is
to be reckoned.

The following time has to be excluded from computing the period of limitation:

• The day on which the period of limitation for any suit, appeal or
application has been reckoned.
• In case of an appeal or an application for leave to
appeal/revision/review of a judgment:
i) The day on which the judgment complained of was pronounced.

ii) Necessary time taken for obtaining a copy of the decree, sentence,
order appealed from or sought to be revised or reviewed.

• In case of decree or order is appealed from or sought to be revised or

reviewed or an application for leave to appeal from a decree:
i) Time requisite for obtaining a copy of the judgment

• In case of application to set aside an award:

i) Time requisite for obtaining a copy of the award

Explanation to this Section states that in computing the time necessary for
obtaining a copy of the decree or order the time taken by the court to prepare
the decree or order before an application for a copy of the decree or order is
made shall not be excluded.

Under Section 13, where an application for leave to sue or appeal as a pauper
(indigent) has been made and rejected, the time spent by the applicant in
prosecuting in good faith shall be excluded.
Under Section 14, if a party is proceeding in good faith in a court without
jurisdiction any suit or application the time spent by the party should be
prosecuting another civil proceeding with due diligence and that prosecution
shall be in good faith shall be excluded.

Under Section 15, the following time shall be excluded:

• The day of the issuance and withdrawal of the stay order or injunction.
• In case where a previous consent or sanction of the government is
required – the time spent on obtaining the consent or sanction.
• In case of proceedings for winding up of a company- the time during
which the receiver or liquidator was appointed.
• In case of a suit for possession by a purchaser at a sale in execution of
decree- the time during which proceeding to set aside sale has been
prosecuted.
• The time during which the defendant is absent from India and under
territory outside India under the administration of the Central
Government.

40.Write a note on Adjournment?

Order 17
A putting off or deferring of procedures; a closure or rejection of further
business by a Court, the governing body, or open authority—either briefly or for
all time.

In the event that an adjournment is conclusive, it is said to be sine kick the

bucket, “without day” or without a period fixed to continue the work. A
dismissal is not quite the same as a break, which is just a brief break in
procedures.

In assemblies, adjournment formally denotes the finish of an ordinary session.

Both state and government administrators vote to decide when to suspend. The
careful planning relies on numerous elements, for example, outstanding burden,
political decision plans, and the degree of comity among officials. Since a session
can end with incomplete authoritative business, dismissal is generally utilized as
methods for political influence in verifying or postponing activity on significant
issues.

What is the purpose of Adjournment?

There can be several reasons for granting Adjournment. In some cases it

becomes necessary to grant Adjournment to ensure fair and equal justice to
the parties involved. Some of the reasons can be as follows:

• When either of the party is not ready or requires more time to prepare,
then that party can request for adjournment, that is, for postponing to
a future date.
• To permit police to have more conversations with the person in
question, their kids or other influenced individuals or to give more
data about the matter under the watchful eye of the court.
• When any party requires legal representation or any other service that is
not immediately available.
• When the evidences presented are not sufficient to decide the matter.
• When at the time of the proceedings, any of the witness in not present.

There are cases where it is better to adjourn the case rather than deciding it in
favour of any party. This is because such adjournment can lead to better
justice as by giving time, more in-depth analysis can take place and more facts
and evidences can come into place.

41.Write a note on Inter pleader suit?

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

The Object of filing interpleader suit.

The suit is filed when the object is to be claimed by the defendants. The claim of
the suit gets adjudicated. The suit is filed when any person in any condition
cause death and has left some of the property without transferring to other
members of the family then that other family member has to claim the property
or money from the bank and then the bank has to become claimant to file a suit
in the court to decide whomever the property has to be transferred. This type
of suit filed in the Res Judicata court.

• Conditions of Interpleader suit

1. Debt, money, property either movable or immovable in the dispute.

2. Two defendants are there in the suit.
3. Both defendants can claim each other for the property or money.
4. The person who has to pay the debt to the defendant is not valid for
any interest.
5. The Claimant is willing to pay the debt, or some amount of money, or
property to the defendant.
6. Suits are not pending in this.
7. This suit cannot be filed twice if the judgment is given in Res judicata.

42.Explain the general rules of Pleading?

The backbone of every suit of civil nature is what is called as pleadings. The
meaning of the term ‘plead’ is to ‘state and argue a case’. Pleadings are the
respective contentions of the parties to a dispute which are reduced into
writing so that they can be clear, concise, and unambiguous. What the parties
are fighting upon is mentioned in the pleading of each party, and each party
lays down their claim, or the abstinence from such claim with legitimate
reasons as well as proof. It is the main paperwork that is required by advocates
while arguing their cases.

Fundamental Rules of Pleading

The Code of Civil Procedure was amended in 1976, by a select committee of

eminent lawyers, who possessed the necessary knowledge of the legal process
in India, and subsequently, redrafted Orders 6, 7 and 8 of the Code. These
Orders are the most important in the context of pleading and drafting.
Appendix A to the Code also contains certain forms of pleading that come in
handy during cases.
Order 6 of the Code lays down the four fundamental rules of pleading. They
are:

1. Every pleading must state material facts on which the party relies
(facta probanda). Unnecessary facts must not be stated. The facts
so pleaded will be validated through laws by the court.
2. Pleading must state facts and not law. A question of law need not
be pleaded, but a question of fact should be pleaded. In case the
question is one where facts and laws are mixed, that question
needs to be specifically pleaded[4].
3. The pleading must not contain any evidence of the facts
presented. Once the issues (facta probantia) are settled, only then
will the facts be authenticated through evidence. Also, only
material facts should be stated. Material facts are those which
must be proved by a party to a trial to establish the cause of
action or defence[5].
4. All material facts need to be stated concisely. To be concise is to
mean that the facts presented must be to the point and not vague
or implied. Every fact should be stated separately, and the
pleading must be in paragraphs, with numbers. Dates, figures and
amounts should be mentioned in digits as well as in words.

43.What is Re Judicata? Explain the conditions to constitute of Re Judicata?

Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same parties.
Hence, the court will dismiss the case as it has been decided by another court.
Res judicata applies to both civil and criminal legal systems. No suit which has
been directly or indirectly tried in a former suit can be tried again.

Pre-requisites for Res Judicata

• A judicial decision by proficient court or tribunal,

• Final and binding and
• Any decision made on the merits
• A fair hearing
 • Earlier decision right or wrong is not relevant.

Essentials of Res Judicata under Section 11 CPC

Before granting a decree of Red Judicata following conditions should be
satisfied first:

1. There must be two suits one former (previously decided) suit and the
other subsequent suit.
2. Parties of the former and subsequent suit or the parties under whom
they or any of them claim should be the same.
3. The subject matter of the subsequent suit should be identical or related
to the Former suit either actually or constructively.
4. The case must be finally decided between the parties.
5. The former suit should be decided by the court of competent
jurisdictions.
6. Parties in the former as well as in Subsequent suit must have litigated
under the same title.
44.Whether death of a party to a suit abate the proceedings? Explain
applying rules under order XXII of CPC 1908/

Death of plaintiff

Order XXII of the Code of Civil Procedure, 1908 talks about the provision that
what happens when there is a death of plaintiff. Rule 2 of Order XXII of the CPC
says that “ Procedure where one of several plaintiffs or defendants dies and right
to sue survives- Where there are more plaintiffs or defendants than one, and
any of them dies, and where the right to sue survives to the surviving plaintiff or
plaintiffs alone, or against the surviving defendant or defendants alone, the
Court shall cause an entry to the effect to be made on the record, and the suit
shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the
surviving defendant or defendants.”

Radhu Napit v. Tarapdo Napit

In the landmark case of Radhu Napit v. Tarapdo Napit, the Hon’ble High Court
of Jharkhand in a single Judge bench of Justice Shree Chandrashekhar, he
dismissed a writ petition which was filed against the order of the trial judge,
whereby petitioner’s application seeking abatement of partition suit on the
ground of death of one of the defendants was rejected.

Issue
The fundamental question or say issue which arose before the court, in this case,
was whether the suit can be abated in case of death of either party or not?

Held
The honourable high court in its judgement observed the Rule I of Order XXII of
the Code of Civil Procedure, 1908. Rule of 1 of CPC explicitly says that the suit
can not be abated on the mere ground of death of either party if the right to sue
still survives. Rules 1, 2, and 4 of Order 22 of CPC provides different procedures.
These rules talks about different situations like the death of a party, the death
of one of several plaintiffs or defendants but survival of right to sue and death
of one of several defendants or sole defendant only.

The court in its judgement held that according to the provisions mentioned
under the Order XXII of the Code of Civil Procedure, 1908 it can be reasonably
observed that cases or situations in which either of the party or parties dies and
their right to sue survives there shall be no abatement of the suit. Further, the
court held that this case is not any exception and the petitioner falls within the
ambit of Order XXII rule 1 and said that the application of the petitioner for the
abatement of suit is rejected.

Death of defendant

Order XXII of the Code of Civil Procedure, 1908 talks about the provision that
what happens when there is a death of defendant. Rule 4 of Order XXII of the
CPC says that “Procedure in case of death of one of several defendants or of sole
defendant- Where one of two or more defendants dies and the right to sue does
not survive against the surviving defendant or defendants alone, or a sole
defendant or sole surviving defendant dies and the right to sue survives, the
Court, on an application made in that behalf, shall cause the legal representative
of the deceased defendant to be made a party and shall proceed with the suit.”

Further, it says that when no application is made within the prescribed time limit
of ninety days, the suit shall abate as against the deceased defendant the court
can exempt the plaintiff from substituting the legal representative of a non-
contesting and may pronounce the judgment notwithstanding the death of such
defendant.

There can be a situation where the plaintiff is not aware or if he/she is ignorant
of the death of the defendant and is unable to make the application for the
substitution of legal representative of the deceased defendant within the period
of limitation, and the suit stands abated, he/she in that situation can make an
application to set aside such abatement within the period of limitation, stating
that due to ignorance of the death of the defendant he could not make
application within time. The court shall consider the application, having its due
regard to the fact of such circumstances.

Elliott v. Cline was one of the landmark judgement in legal history. In this case,
the court observed that a cause of action for an injunction survives the death of
either party, where if the acts are completely of personal nature, the right of
action abates upon the death of the defendant. However, a situation in which if
a suit is for damages and injunction, then the right to damages will survive the
death of the defendant.

Further, it was also discussed that where the defendant dies after hearing but
before pronouncement of judgement, the suit shall not abate. The suit shall also
not abate on account of the death of an unimportant party.

Jitendra Ballav Burdhan vs Dhirendranath Burdan

This is another landmark case, in which the plaintiff filed a suit for partition of
land and claimed I/5th share in the property. This suit was successfully contested
and a decree was declared saying I/5 share of the plaintiff by a preliminary
decree. This was challenged in court but it was withdrawn. Then the final decree
proceedings were initiated and the decree was made final.

During the final decree proceedings, the defendant no.4 died. Therefore, an
application for substitution was filed in the said decree proceeding with a prayer
to substitute the legal heirs of the deceased defendant no.4. Notices were issued
to the proposed legal heirs of the deceased defendant no.4.

The defendant who died i.e. defendant no.4, he did not contest the suit and
I/5th share was granted in favour of defendant no.1 to defendant no.5 jointly as
they all hailed from a common ancestor that was Jagat ballav. The order was
passed by the honourable High Court of Odisha in the final decree proceedings.

45.Describe the provisions relating to institution of suit?

nstitution of Suit:
Order IV Rule 1, prescribe that every suit is to be presented by Plaintiff and/or
in such other manner as may be prescribed by the court.
Suit can be presented by:
1.Plaintiff personally
2.Through a person duly authorized by Power of Attorney
3.Through authorized Agent or Advocate.
Place of Institution:
Section 15 to 25 of Code of Civil Procedure, 1908 states the provisions
regarding Place of Institution.
Jurisdiction depends upon:
1.Subject Matter
2.Valuation of the suit
3.Territorial Jurisdiction
4.Pecuniary Jurisdiction.
And in case of Concurrent Jurisdiction – It is a place of choice of the plaintiff or
place decided as per agreement between the parties or by consent of parties.
Formalities after Institution of Suit:
Section 27, 28 and 31 describes the issuance of summons to defendant and
also summons to witnesses along with the procedure to compel attendance of
any person to whom a summons has been issued.
Order IV Rule 1 and 2 provides for commencement of suit and its institution
before court or such officer as appointed in this behalf.
Order IV – Institution of Suit
1.Rule 1 – Suit to be commenced by a plaint.
2.Rule 2 – Register of Suits.
Oder IV Rule 1(2) makes it mandatory that every plaintiff at the time of
Institution of suits shall comply with the Rules contained in order VI and VII.
Order VI talks about Pleading whereas Order VII talks about Plaint.
Order IV Rule 2 states that particular of every suit to be entered in a book
according to the order in which the plaints are admitted.
Institution of Suit:
Section 26(1) of Civil Procedure Code says that every suit must be instituted by
presentation of Plaint or in other prescribed manner.
Section 26(1) of Civil Procedure Code says that in every Plaint, the facts must
be proved by affidavits.
The procedural aspect relating to Institution of suit is as follows:
1.Preparing of Plaint
2.Choosing the proper place of suing
3.Presentation of the plaint.
Duties of Lawyer at the time of Institution of Suit:
1.To prepare the plaint and pleadings as per the provisions of order VI and VII.
2.Attach the necessary documents along with the suit by considering order VII
rule 14.
3.Make valuation of the suit as per the provisions of the Court Fees Act.
4.Supply necessary copies of Plaint and documents to court and to the
opposite party.
5.Get examination of plaint done through the officer of the court.
6.Issue summons to defendant through the court by making payment of due
process or as per all other modes provided under order V of Code of Civil
Procedure.
7.Attach address memo with plaint as per Order VI Rule 14A.

BY

ANIL KUMAR K T LLB COACH