UNIT 3

1. Discuss the principles for the appointment of Receiver.

Discuss the power, duties and liability of Receiver.
The Receiver is an independent and impartial person under order
40 of the Civil Procedure Code, 1908 who is appointed by the
court to administer, that is, to safeguard and maintain the disputed
property involved in a lawsuit.
Appointment of Receiver is mentioned under Order 40 Rule1(a).

 Principles for the appointment of Receiver

The following principles must be borne in mind before a receiver is
appointed by a court:
I. The appointment of a receiver is a discretionary power of the
court.
II. It is a protective relief. The object is preservation of the
property in dispute pending a judicial determination of the
rights of the parties to it.
III. A receiver should not be appointed unless the plaintiff prima
facie proves that he has very excellent chance of succeeding in
the suit.
IV. It is one of the harshest remedies which the law provides for
the enforcement of rights, and therefore, should not be lightly
resorted to. Since it deprives the opposite party possession of
property before a final judgment is pronounced, it should only
be granted for the prevention of a manifest wrong or injury. A
court will never appoint a receiver merely on the ground that it
will do no harm.
V. Generally, an order appointing a receiver will not be made
where it has the effect of depriving the defendant of a de facto
possession, since that might cause irreparable loss to him. But
the property is shown to be in medio, that is to say, in
enjoyment of no one, it will be in the common interest of all
the parties to appoint a receiver.
VI. The court should look at the conduct of the party who makes
application for appointment of a receiver. He must come with
clean hands and should not have disentitled himself to this
equitable relief by laches, delay or acquiescence.

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  POWER OF RECEIVER (Rule 1(d))
Under order 40 rule 1(d) ,powers of the receiver are
provided as following:
(i) to institute and defend suits;
(ii) to realize, manage, protect, preserve and improve the
property,
(iii) to collect, apply and dispose of the rents and profits;
(iv) to execute documents; or
(v) such of these powers as it thinks fit
improve the property,
Also, there are indirect powers which a receiver enjoys being the
hand of the court. For example, If a person obstructs or interferes
with the receiver’s right to possession, it will amount to obstruction
in a court proceeding and such a person can be made liable for
contempt of court. Similarly, property in the hands of the receiver
cannot be attached without the leave of the court.
The court has the discretionary power to not confer all the rights on
the receiver. Even if the court has given all the powers to him, he
should take the advice of the court in all important decisions related
to the property to protect himself.
Without the permission of the court, the receiver cannot:
 Grant lease on the property.
 Bring suits except for suit for rent. A suit will be dismissed if
not permitted by the court.
 DUTIES OF RECEIVER
Under order 40 rule (3), duties of a receiver are provided as
follows:
a) furnish such security (if any) as the Court thinks fit, duly to
account for what he shall receive in respect of the property;
b) submit his accounts at such periods and in such form as the
Court directs;
c) pay the amount due from him as the Court directs; and
d) be responsible for any loss occasioned to the property by his
wilful default or gross negligence.
 LIABILITIES OF RECEIVER
According to Order 40 rule (4), When a receiver fails:

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 a) To submit the reports as specified by the court or,
b) To pay the amount due from him as directed by the court or,
c) Causes loss to the property due to gross negligence.
d) Any other duty which court directed him to do,
The court may order the attachment of property of the receiver to
recover the loss caused due to his wilful default or negligence.
The court, after recovering all the losses from the proceeds
received after selling receiver’s property, will pay the balance (if
any) to the receiver.
The receiver is bound in keeping down the expenses and taking
care of the property in his possession as a prudent man would
observe in connection with his own property under similar
circumstances.

2. Write an explanatory note on any two:

(i)Summary suit
(ii) Interpleader suit
(iii) Suit by and against indigent person

(i)Summary suit
Summary suit or summary procedure is given in order XXXVII of the
Code of Civil Procedure, 1908. Summary procedure is a legal
procedure used for enforcing a right that takes effect faster and
more efficiently than ordinary methods. Its object is to summarise
the procedure of suits in case the defendant is not having any
defence.
While this prima facie would appear to be violative of the cardinal
principle of natural justice, Audi Alteram Partem, nobody should be
condemned unheard, this procedure is only used in cases where the
defendant has no defence and is applicable to only limited subject
matters.
The object underlying the summary procedure is to ensure an
expeditious hearing and disposal of the suit and to prevent
unreasonable obstruction by the defendant who has no defence or a

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frivolous and vexatious defence and to assist expeditious disposal of
cases.
The Gujarat High Court in outlining the object of summary suits
opined that the sheer purpose of enacting Summary Suits is to give
impetus to commerce and industry by inspiring confidence in
commercial population that their causes in respect of money claims
of liquidating amounts (ascertained amount) would be expeditiously
decided and their claims will not hang on for years blocking their
money for a long period.
A summary suit can be instituted in High Courts, City Civil Courts,
Courts of Small Causes and any other court notified by the High
Court. High Courts can restrict, enlarge or vary the categories of
suits to be brought under this order.
They apply to
suits based upon bills of exchange, hundies and promissory notes,
and
(b) suits in which the plaintiff seeks to recover a debt or amount
payable by the defendant with or without interest arising
(i) on a written contract; or
(ii) on an enactment, where the sum sought to be recovered is a
fixed sum of money or debt other than penalty; or
(iii) on a guarantee, where the claim against the principal is in
respect of a debt or liquidated amount.
(ii) Interpleader suit
The terms of inter-pleader litigation are covered under Order 35,
Section 88 of the CPC 1908. Ordinary actions brought before the
Hon’ble court usually involve two parties: the plaintiff and the
defendant. However, the interpleader suit differs from typical suits in
which two defendants fight for a claim to a specific property, debt,
or chattel. Typically, the plaintiff in such claims has no real interest
in the subject matter of the suit and just wants to ensure that the
property in dispute is returned to the rightful owner.
The primary object of filing an interpleader suit is to get claims of
rival defendants adjudicated. It is the process wherein the plaintiff
calls upon the rival claimants to appear before the court and get

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their respective claims decided. The decision of the court in an
interpleader suit affords indemnity to the plaintiff on payment of
money or delivery of property to the person whose claim has been
upheld by the court.
Conditions: Section 88
Before an interpleader suit can be instituted, the following
conditions must be satisfied:
I. There must be some debt, sum of money or other property
mov- able or immovable in dispute;
II. Two or more persons must be claiming it adversely to one
another;
III. The person from whom such debt, money or property is
claimed must not be claiming interest therein other than the
charges and costs and he must be ready and willing to pay or
deliver it to the rightful claimant; and
IV. There must be no suit pending wherein the rights of rival
claim- ants can be properly adjudicated.
Order 35 Rule 1 lays down the procedure for interpleader suits. In
every interpleader suit, in addition to other statements, the plaint
also must state
(i) that the plaintiff claims no interest in the subject-matter in
dispute other than the charges and costs;
(ii) the claims have been made by the defendants severally; and
(iii) there is no collusion between the plaintiff and of the defendants.
(iii) Suit by and against indigent person
Indigent means poor, penniless, pauper. Order 33 Rule 1 lays
down that, 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 33 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. Rule 1- 18 of Order XXXIII of the Code of Civil
Procedure deals with the suits filed by indigent persons.

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In A.A. Haja Muniuddin v. Indian Railways, the court held that
“Access to justice cannot be denied to an individual merely because
he does not have the means to pay the prescribed fee.”

Contents of application: Rule 2

Every application for permission to sue as an indigent person should
contain the following particulars:
(1) The particulars required in regard to plaints in suits:
2) A schedule of any movable or immovable property belonging to
the applicant with the estimated value thereof; and
(3) Signature and verification as provided in Order 6 Rules 14 and
15
The application should be presented by the applicant to the court in
person unless exempted by the court. Where there are two or more
plaintiffs, it can be presented by any of them. The suit commences
from the moment an application to sue in forma pauperis is
presented."
Inquiry
Rule 1A of Order 33 states that the Chief Ministerial Officer of the
court has the authority to do an inquiry. The inquiry is conducted in
the first instance to know if an applicant is an indigent person or
not. It is upon the discretion of the court whether to accept the
report submitted by such an officer or make an inquiry.
The Hon’ble Supreme Court in Union Bank of India v. Khader
International Construction, held that Order 33 CPC is an enabling
provision that allows the indigent person to file a suit without paying
the court fee at the initial stage. In case the plaintiff succeeds in the
suit, the court calculates the amount of court fee which would have
been paid by the plaintiff if he had not been permitted to sue as an
indigent person and that amount would be recoverable by the State
from any party ordered by the decree to pay the same. However, if
the suit is dismissed, then also the State would take steps to

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recover the court fee payable by the plaintiff and this court fee shall
be a first charge on the subject- matter of the suit.

3. Discuss the provisions relating to suits by or against

minors and lunatics.
Order 32 (Rules 1 to 16) of the Code of Civil Procedure (CPC),
1908 deals with the “Suits by or against minors and persons of
unsound mind.” It specifically prescribes the procedure for suits to
be filed by or against minors or persons of unsound mind.
Minor:
As per Section 3 of the Majority Act of 1875, a minor is a person
who has not attained a majority, that is, who has not attained the
age of 18 years. But in the case of a minor for whose person or
property a guardian is appointed by the court or whose property is
under the superintendence of the court of wards, the age of
attaining majority is 21 years.

Lunatic (person of unsound mind)

Black’s Law Dictionary defines a ‘person of unsound mind’ as an
adult who, from infirmity of mind, is incapable of managing himself
or his affairs.
The provisions of Order 32 reflect principles of natural justice, equity
and good conscience, inasmuch as they allow litigation to be
prosecuted or defended on behalf of minors, persons of unsound
mind and persons with mental infirmity. In absence of such
provisions interests of persons with legal disability are bound to
suffer.
Suits by Minors
Rule1 - Every suit by a minor should be instituted in his name
through his guardian or next friend.
Rule2 - If the suit is instituted without next friend, the plaint will be
taken off the file
Rule 2-A- Where such minor is a plaintiff, the Court may, at any
stage of the suit, order his guardian or next friend, either on the

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application of the defendant or suo motu, for reasons to be
recorded, to furnish security for costs of the defendant.
Suits Against Minors (Rule 3)
Where a suit is instituted against a minor, the court should appoint a
guardian ad litem to defend the suit. Such appointment should
continue throughout all the proceedings including an appeal or
revision and in execution of a decree unless it is terminated by
retirement, removal or death of such guardian
 A Decree passed against minor without appointing of next
friend or guardian is null and void under Rule 3-A

Conditions to be appointed as next friend or guardian ad

litem (Rule 4)
Rule 4 consists of various conditions which need to be fulfilled to be
appointed as the next friend or guardian ad litem. There are mainly
four conditions for a person to be appointed as the next friend or
guardian ad litem :
I. A person of sound mind,
II. A person has attained a majority,
III. A person has no adverse interest in the subject matter of the
minor,
IV. A person is not a defendant in the case of the next friend or
not a plaintiff in the case of guardian ad litem.

In the interest of a minor, however, the court may permit

another person to act as the next friend or guardian of the
minor. In the absence of a fit and willing person to act as a
guardian, the court may appoint any of its officers to be such
guardian.

Retirement, removal or death of guardian or next friend:

Rules 8-11
Rule 8-
A next friend or guardian of a minor cannot retire without first
procuring a fit person for substituting him and giving security
for the costs already incurred by him.

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Rule 9-
The court may remove a next friend or guardian of a minor, if
it satisfied that
(i) his interest is adverse to that of the minor, or
(ii) he is so connected with the opposite party that it is
unlikely that the interest of the minor will be properly
protected by him; or
(iii) he does not discharge his duty; or
(iv) he ceases to stay in India during the pendency of the
sub or
(v) there is any other sufficiently justifiable cause.
Rule 11-
Where the guardian or next friend of a minor desires to retire
or fails to discharge his duty or where there are other
sufficiently justifiable grounds, the court may permit such
guardian or next friend to retire or may remove him and may
also make such order as to costs as it thinks fit. It should also
appoint a new next friend or guardian.
Rule 10-
On retirement, removal or death of a guardian or next friend,
further proceedings in the suit shall remain stayed until
another guardian or next friend is appointed.
Minor attaining majority: Rules 12-14

On attaining the age of majority, a minor plaintiff may adopt

any of the following courses:
(i) He may proceed with the suit. In that case he shall apply
for an order discharging the next friend or guardian and for
leave to proceed in his own name. (Rule 12)

(ii) He may abandon the suit and apply for its dismissal on
repayment of costs to the defendant or to his guardian or next
friend (Rule12)

(iii) He may apply for dismissal of the suit on the ground that
it was unreasonable or improper. (Rule 14)

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 (iv) Where he is a co-plaintiff, he may repudiate the suit and
may apply to have his name struck off as co-plaintiff. If the
Court finds that he is not a necessary party, it may dismiss
him from the suit. But if he is a necessary party, the Court
may make him a defendant. (Rule 13)

Order 32 Rule 15 lays down provisions of order 32 also

applies to lunatics and person of unsound mind.

4. A Private party Z has instituted a suit against a

department of the State Government for non-payment
of his bills. The defendant department takes the plea
that mandatory prior notice (statutory) was not served
upon it. Is this objection sustainable? Explain in the
light of appropriate provisions of Code of Civil
Procedure.

5. Explain the powers and procedure of Civil Court in

granting temporary injunctions. Can the court grant ad-
interim injunction against the Government or Public
officer without serving notice?

 Powers
Inherent powers of the court to grant injunction:
Where the cases are not covered by Order 39, Interim injunctions
can be granted by the court in exercise of inherent powers under
section 151 of CPC.

Case: Hassan Yusuf Khan vs. Syed Ashia Ali, the court held that
Order 39 Rule 1 and sec-151 do not entitle the court to issue
injunctions against the lawful owner. The grant of an id interim
injunction is an extraordinary thing. It is not permissible to grant it
unless the plaintiff is undoubtedly entitled to a decree and the
defendant is undoubtedly liable or likely to take away the fruits of
the decree. Therefore, inherent power under section 151 cannot be
used as a regular affair when the remedy is available in a specific
provision.
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Rule 1 of Order 39, no doubt, enumerates circumstances in which
a court I may grant interim injunction. It, however, nowhere
provides that no temporary injunction can be granted by the court
unless the case falls within the said provision. Hence, where the
case is not covered by Order 39, interim injunction can be granted
by the court in exercise of inherent powers under Section 151 of
the Code.
 Procedure
An application for temporary injunction should be filed with plaint
supported by an affidavit.
The Court shall in all cases, before granting an injunction, direct
notice of the application for the same to be given to the opposite
party:
Provided that, where it is proposed to grant an injunction without
giving notice of the application to the opposite party, the Court shall
record the reasons for its opinion that the object of granting the
injunction would be defeated by delay, and require the applicant-
(a) to deliver to the opposite party, or to send to him by registered
post, immediately after the order granting the injunction has been
made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and
(iii) copies of documents oil which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the

day immediately following, that day, an affidavit stating that the
copies aforesaid have been so delivered or sent.
In the case of disobedience of any injunction granted or other order
made by court or breach of any of the terms on which the injunction
was granted or the order made, the Court granting the injunction or
making the order, or any Court to which the suit or proceeding is
transferred, may order the property of the person guilty of such

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disobedience or breach to be attached, and may also order such
person to be detained in the civil prison for a term not exceeding
three months, unless in the meantime the Court directs his release.
 Can the court grant ad-interim injunction against the
Government or Public officer without serving notice
Yes, the court has the authority to grant an ad-interim (temporary)
injunction against the Government or a public officer without serving
a notice under certain circumstances. Section 80 of the Code of
Civil Procedure, 1908, in India specifies that a notice must be
served to the Government or a public officer two months prior to
filing a suit against them for any act done in their official capacity.
However, Section 80 also provides an exception in cases where
urgent relief is sought. It states that the court may grant an ad-
interim injunction without serving a notice if the court is satisfied
that the circumstances of the case require immediate relief and
delay caused by serving a notice would defeat the purpose of the
injunction.
This exception allows the court to take immediate action when there
is an urgent need to prevent irreparable harm or to maintain the
status quo until the matter can be heard in detail. The court's
decision to grant ad-interim injunction without notice would typically
be based on the specific facts and circumstances of the case,
ensuring that the interests of justice are served.
Sections 79-82 and Order 27 of the Code of Civil Procedure,
1908[1], deal with the procedure which needs to be followed in the
process of filing of a suit against the government or public officials.
Code of civil procedures prescribes only the procedures. The rights
and liabilities of the parties are dealt by the Constitution of India,
1950.

The first step in the process of filing of suit in this case is service of
notice to the defendant. Section 80 of the Code of Civil Procedure,
1908[2] states that only after the expiry of two months from the
date of service of notice to the government officials, a plaint can be
filed in the Court of law.

In the case where the defendant is the Central Government the

notice should be served to the Secretary to the Government, in case

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the defendant is the Railways the General Manager, in case of State
Government the Secretary to that Government or to the Collector of
the District, in case of public officer the notice should be served to
him and in case the defendant is the State of Jammu and Kashmir
the notice should be served to the Chief Secretary of the
Government or any other officer authorized by the government.

The main intention of the Legislative in the insertion of this section

and adding this process in the filing of suit is to make sure that the
Government or the Public Officer knows the reasons, demands or
the concern of the Plaintiff for which the suit shall be instituted. By
knowing the distress of the Plaintiff, the Public official can act upon
it and rectify the situation. The time period of two months is also
provided for the same reason.

The main objective of government is to serve the public and protect

their rights. By providing the notice along with the necessary time
they can give more importance to the problem and settle the
dispute by not approaching the Court. This shall not only save the
time of the Court, but also of the government and the unnecessary
legal expenses.

In the case of State of Madras v. C.P. Agency[3] the Court had

also given this reasoning as well as the Supreme Court supported
this by giving its own analysis in the case of Bihari Chowdhary v.
State of Bihar[4]. This provision helps the Government, the Court of
law as well as the public however misuse of this provision can also
occur which would demolish the main objective of law i.e. to impart
justice.
6. What is 'attachment before judgement'? Discuss the
provisions relating to powers of court for such
attachment.
Attachment before judgment is a legal provision under the Code of
Civil Procedure, 1908, that allows a plaintiff to seek the attachment
of the defendant's property before the final judgment is pronounced
in a civil suit. It is a preventive measure taken by the court to
secure the plaintiff's claim and ensure that the defendant's assets
are preserved during the pendency of the case.

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Various interim orders are enumerated under the Code of Civil
Procedure, 1908 (CPC), which are temporary orders given during
the suit’s pendency so as to safeguard the subject matter of the suit
wherein Order 38 Rules 5-13 exclusively concerns the attachment
before judgement. Like arrest before judgement, the court may
order attachment before judgement in peculiar circumstances.
Attachment of property before judgement is done for the primary
objective of preventing the defendant’s attempt to defeat the
decree’s realization which is passed in favour of the plaintiff.
Attachment is the legal process of seizing property to ensure
satisfaction of a Judgment. An attachment before judgment is to
enable the plaintiff to realize the amount of the decree, supposing a
decree eventually made, from the defendant property. An
attachment before judgment is in the nature of an interlocutory
order. An attachment before judgement is a matter of relief and not
of procedure.
Provisions
Concept of Order 38 Rule 5 CPC
Order 38 Rule 5 deals with furnishing security for the production of
property by the defendant. It states that if the court is satisfied at
any stage of a suit that the defendant may dispose of all or part of
the suit property, or transfer all or part of their property beyond the
local limits of the court’s jurisdiction, it may pass a decree against
defendant along with the production of an affidavit by the plaintiff or
as the court directs. The court may direct a time limit to furnish
security and a specific amount in the order or to produce and
furnish the property or its value as ordered by the court, or any
portion adequate to comply with the decree or substantiate the
reason for not furnishing security. On the direction of the court, the
plaintiff is required to determine the property that must be attached
along with its approximate value. The court may order the
conditional attachment of all or part of the suit property. An order of
attachment shall be deemed void if it is made without complying
with the provisions of Rule 5.
In the case of Huawei Technologies Co. Ltd. v. Sterlite Technologies
Limited (2016), the Delhi High Court acknowledged that all of the
prerequisites of Order 38 Rule 5, CPC must be met before the court

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may examine the plaintiff’s claim for securing the sum and that the
court must exercise its discretion with extreme caution.
When the defendant fails to furnish security without any
reasonable ground
Order 38 Rule 6 deals with the provision when the defendant fails to
furnish security without any reasonable ground. If the defendant
fails to provide any justifiable grounds for giving security or fails to
furnish the security within the period prescribed by the court, the
court may order that the suit property or any portion sufficient to
comply with any decree, be attached. The court may order the
attachment of the mentioned property or any portion of it, to be
revoked or issue any other order it deems appropriate when the
defendant presents sufficient justification and the required security.
In the case of M/S. Muthoot Leasing and Finance v.
N.P.Asiya (2011), the Kerala High Court remarked that under Order
38 Rule 6, if the defendant fails to establish a reasonable cause for
not furnishing security or fails to furnish security, the court may
order an attachment. The court is obligated under Order 38 Rule
6(2) to revoke the previously imposed attachment if the defendant
offers security or establishes reasonable justification.
Mode of attachment
The mode of attachment before judgement is outlined in Order 38
Rule 7. It specifies that the attachment must be made in accordance
with the guidelines established for the attachment of property in the
execution of a decree.
The procedure for arresting or attaching property beyond the
jurisdiction of a district court is outlined in Section 136. It states
that when an application is made for arresting any person or
attaching any property under Section 136, not relating to the
execution of decrees, and such person or property resides outside
the local limits of the jurisdiction of the court to which the
application is made, then, at the discretion of the court, an arrest
warrant or an order of attachment may be issued and sent to the
district court within whose jurisdiction the subject of the application
is located, along with a copy of the warrant or order and the
probable amount of the costs of the arrest or attachment.
Adjudication of claim to property attached before judgement

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The adjudication of a claim to property attached before judgement
is outlined under Order 38, Rule 8. It states that the adjudication of
a claim for property attached before judgement should be the same
as claims to property attached in the execution of a decision for the
payment of money.
In the case of M/S Value Advisory Services v. M/S Zte Corporation &
Ors (2009), the Delhi High Court observed that Order 38 Rule 8
provides for adjudication of claims by the court for attachment qua
properties or money in the possession of third parties. A third party
can challenge the claim.
Removal of attachment when security is furnished or a suit is
dismissed
The removal of attachment when security is furnished or a suit is
dismissed is outlined under Order 38, Rule 9. It states that the court
shall order the attachment before judgement to be revoked when
the defendant provides the necessary security along with the
attachment fee or when the claim is dismissed.
In the case of Vareed Jacob v. Sosamma Geevarghese &
Ors. (2009), the Hon’ble Supreme Court observed that Order 38
Rule 9 is an independent and substantive statutory right on the part
of a defendant to notify the court about the procurement of the
required security to satisfy the plaintiff’s claim, and as a result, an
order of attachment is not required to be maintained.
Attachment before judgement does not affect the rights of
strangers, nor bar decree-holder from applying for sale
Order 38, Rule 10 stipulates that attachment before judgement does
not affect the rights of strangers or decree-holders to apply for sale.
It states that attachment before judgement shall not impair the
rights of people who are not parties to the suit that existed before
the attachment, nor shall any person holding a decree against the
defendant be barred from applying for the sale of the property
under attachment in execution of such a decree.
In the case of C.V. Anandan v. K.V. Easwaran (2021), the Madras
High Court ruled that under Order 38 Rule 10 CPC, an attachment
made before judgement does not affect the rights of any individual
who is not a party to the suit and does not prevent any individual

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who holds a judgement against the defendant from applying for the
sale of property under attachment in execution of a decree.

7. Discuss the provisions relating to suits by or against

Government
 Section 79
Section 79 lays down the procedure whereby the suits are brought
by or against the government but at the same time, it does not deal
with the rights and liabilities enforceable by or against the
government body [3]. In the case of Jehangir v. Secretary of
State [4], an important observation was made which was that this
section gives no cause of action but only declares the mode of the
procedure when the cause of action arises.
 Section 80
Notice under Section 80, is required to contain the following
aspects: name, description, residence of the plaintiff, the cause of
action and lastly the relief which the plaintiff claims. Also, the notice
is required to convey to its recipients, sufficient information to
enable him to consider the claim, which was held in Union of India v.
Shankar Stores [10]. The above-mentioned particulars should be
given in such a way that, it enables the authorities to identify the
person giving the notice.
 Rule 1 Order XXVII of Code of Civil Procedure 1908
"Suits by or against Government"
In any suit by or against the Government, the plaint or written
statement shall be signed by such person as the Government may,
by general or special order, appoint in this behalf, and shall be
verified by any person whom the Government may so appoint and
who is acquainted with the facts of the case.
 Rule 2 Order XXVII of Code of Civil Procedure 1908
"Persons authorised to act for Government"
Persons being ex officio or otherwise authorised to act for the
Government in respect of any judicial proceeding shall be deemed to
be the recognised agents by whom appearances, acts and
applications under this Code may be made or done on behalf of the
Government.

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  Rule 3 Order XXVII of Code of Civil Procedure 1908
"Plaints in suits by or against Government"
In suits by or against the Government, instead of inserting in the
plaint the name and description and place of residence of the
plaintiff or defendant, it shall be sufficient to insert the appropriate
name as provided in section 79.
 Rule 4 Order XXVII of Code of Civil Procedure 1908
"Agent for Government to receive process"
The Government pleader in any Court shall be the agent of the
Government for the purpose of receiving processes against the
Government issued by such Court.
 Rule 5 Order XXVII of Code of Civil Procedure 1908
"Fixing of day for appearance on behalf of Government"
The Court, in fixing the day for the Government to answer to the
plaint, shall allow a reasonable time for the necessary
communication with the Government through the proper channel,
and for the issue of instructions to the Government pleader to
appear and answer on behalf of the Government, and may extend
the time at its discretion but the time so extended shall not exceed
two months in the aggregate.
 Rule 5B Order XXVI of Code of Civil Procedure 1908
"Duty of Court in suits against the Government or a
public officer to assist in arriving at a settlement"
(1) In every suit or proceeding to which the Government, or a public
officer acting in his official capacity, is a party, it shall be the duty of
the Court to make, in the first instance, every endeavour, where it is
possible to do so consistently with the nature and circumstances of
the case, to assist the parties in arriving at a settlement in respect
of the subject-matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the
Court that there is a reasonable possibility of a settlement between
the parties, the Court may adjourn the proceeding for such period
as it thinks fit, to enable attempts to be made to effect such a
settlement.

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(3) The power conferred under sub-rule (2) is in addition to any
other power of the Court to adjourn proceedings.

 Rule 6 Order XXVII of Code of Civil Procedure 1908

"Attendance of person able to answer questions relating
to suit against Government"
The Court may also, in any case in which the Government pleader is
not accompanied by any person on the part of the Government who
may be able to answer any material questions relating to the suit,
direct the attendance of such a parson.
 Rule 7 Order XXVII of Code of Civil Procedure 1908
"Extension of time to enable public officer to make
reference to Government"
(1) Where the defended is a public officer and, on receiving the
summons, considers it proper to make a reference to the
Government before answering the plaint, he may apply to the Court
to grant such extension of the time fixed in the summons as may be
necessary to enable him to make such reference and to receive
orders thereon through the proper channel.

(2) Upon such application the Court shall extend the time for so long
as appears to it to be necessary.
 Rule 8 Order XXVII of Code of Civil Procedure 1908
"Procedure in suits against public officer"
(1) Where the Government undertakes the defence of a suit against
a public officer, the Government pleader, upon being furnished with
authority to appear and answer the plaint, shall apply to the Court,
and upon such application the Court shall cause a note of his
authority to be entered in the register of civil suits.

(2) Where no application under sub-rule (1) is made by the

18[Government pleader] on or before the day fixed in the notice for
the defendant to appear and answer, the case shall proceed as in a
suit between private parties :

Provided that the defendant shall not be liable to arrest, nor his
property to attachment, otherwise than in execution of a decree.

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  Rule 8A Order XXVII of Code of Civil Procedure 1908
"No security to be required from Government or a public
officer in certain cases"
No such security as is mentioned in rules 5 and 6 to Order XLI shall
be required from the Government or, where the Government has
undertaken the defence of the suit, from any public officer sued in
respect of an act alleged to be done by him in his official capacity.
 Rule 8B Order XXVII of Code of Civil Procedure 1908
"Definitions of "Government" and "Government
pleader""
In this Order unless otherwise expressly, provided "Government"
and "Government pleader" mean respectively-

(a) in relation to any suit by or against the Central Government, or

against a public officer in the service of that Government, the
Central Government and such pleader as that Government may
appoint whether generally or specially for the purposes of this
Order;

(c) in relation to any suit by or against a State Government or

against a public officer in the service of a State, the State
Government and the Government pleader as defined in clause (7) of
section 2, or such other pleader as the State Government may
appoint, whether generally or specially, for the purposes of this
Order.
8. Who is an indigent person? Explain the necessary
conditions for filling the suit as an indigent person."

 Who is an indigent person

A person is an indigent person if he does not have sufficient means
to pay the fee prescribed by law for such a suit. Here it is clear that
a person may have means for his livelihood that consist of property
that is exempt from attachment in the execution of a decree and the
subject-matter of the suit. So apart from the subject matter of the
suit and such other property that cannot be attached in execution of
a court decree, an indigent person does not have other property or
means to pay for the prescribed court fees.

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The word "person" mentioned in Order 33 of the Code of Civil
Procedure shall include both a natural person as well as a legal
person such as a company or a body corporate. Therefore, a
company can also maintain an application under Order 33 Rule 1,
seeking permission to file a suit as an indigent person.
As soon as a civil suit is filed in the court, the plaintiff(s), at the
time of filing their plaint, are required to submit the requisite court
fees as directed by the Court Fees Act, 1870. However, Order XXXIII
of the Code of Civil Procedure saves indigent persons by way of
discharging them from the liability to pay the required court fees. It
then allows such individuals to institute the suit in forma pauperis
which is subject to some conditions as postulated under the Rule 1
of Order XXXIII of CPC.
The Hon’ble Supreme Court in Union Bank of India v. Khader
International Construction discussed the definition of an indigent
person. It was observed by the court that an indigent person is one
who is not possessed of sufficient amount (other than property
exempt from attachment in execution of a decree and the subject-
matter of the suit) to enable him to pay the fee prescribed by law
for the plaintiff in such a suit. In case no such fee is prescribed if
such person is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a
decree and the subject matter of the suit he would be an indigent
person.

 Conditions for filling the suit as an indigent person

There are 2 qualifications to be an indigent person:

 The person has no means to pay.
 The property must value less than INR 1000.

Under this Rule, an indigent person is entitled to sue. Such an

indigent person is also described under this order XXXIII, Rule 1
of the CPC.

An indigent person is a person who does not have adequate means

of paying court fees and is unable to take any action against other

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person and is also not entitled to property worth 1,000 rupees other
than the property exempted from attachment in the course of the
execution of a decree and the subject-matter of the action.

Factors such as the job status of an individual and overall income,

including retirement benefits in the form of a pension, the
possession of debt-free assets and the overall indebtedness of an
individual and financial aid may be taken into consideration to
decide if a person has appropriate or indigent means of paying the
required court fee. The term 'sufficient means' in Order XXXIII, Rule
1 of the CPC, therefore, refers to the ability or capacity of an
individual to raise money in an ordinary course of living.[27]

In Manglu Chattar v. Maheshwar Bhoi, the appellant had

instruments and materials for weaving and earned regular wages.
There was no other evidence from the defendant's side to prove that
the petitioners own any other property.

There is, therefore, no question that the appellants were all weavers
and that their weaving materials consist of artisanal instruments. To
figure out if they would be able to afford the court fee, these assets
should not be considered. Also, the daily salaries they earn may not
be considered. Based on the review referred to above, it should be
held that the appellants were indigent persons and should therefore
be entitled to sue as indigent persons.

The meaning of the word 'person' must be provided in the context in

which it is used. It refers to a person who can file a suit, and an
expanded interpretation must be given to this being a protective
clause. An application under Order XXXIII, Rule 1 CPC, can
therefore be very well maintained by a public limited company that
is entitled to maintain a suit as a legal individual. The term 'person'
referred to in Order XXXIII, Rule 1 of CPC includes not only a
natural person but also other legal entities.

In Union Bank of India vs Khader International, the question

raised was, whether a Company can sue as an indigent person
under Order XXXIII, Rule 1 of CPC. It was held that a public limited
company, which is otherwise entitled to maintain a suit as a legal

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person, can very well maintain an application as an indigent person
under Order XXXIII, Rule 1 CPC.

In the first place, any inquiry into the question of whether a person
is or an indigent person shall be made by the chief ministerial officer
of the court unless the court orders otherwise and the court may
adopt the report of that officer as its own finding, or may itself
inquire into the respective subject matter.

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