CDJ Law Journals

COMPREHENSIVE

STUDY ON

CODE OF CIVIL PROCEDURE, 1908

Dr N. Krishna Kumar

(Principal, Govt Law College, Calicut)

Adv. Manu Krishna S K

(Advocate, Thiruvananthapuram)

Varun Dev S

(Assistant Professor, Kerala Law Academy Law College)

CODE OF CIVIL PROCEDURE, 1908

The Code of Civil Procedure, 1908 (CPC) is a comprehensive piece of legislation that

governs the procedural aspects of civil litigation in India. It plays a crucial role in the

Indian legal system by providing a structured framework for the adjudication of civil

disputes in a court of law. The Code of Civil Procedure, 1908, commonly referred to

as the CPC, was enacted during British colonial rule in India. It replaced the earlier

codes of civil procedure and aimed to streamline and unify civil litigation procedures

across the country. The CPC applies to all civil suits and proceedings in India, except

those governed by specific statutes or special courts. It applies to matters such as

contract disputes, property rights, family law issues, and various other civil disputes.

The CPC lays down the rules for filing a plaint (the initial document that initiates a

civil suit) and the subsequent filing of written statements by the defendant. These

documents set out the facts, claims, and defenses of the parties involved. It defines the

jurisdiction of various courts, both territorial and pecuniary, specifying which court

has the authority to hear and decide particular types of cases.

The Code of Civil Procedure, 1908, is of immense significance as it promotes fairness,

transparency, and efficiency in civil litigation. It ensures that parties to a dispute have

the opportunity to present their cases, and it helps in the timely resolution of civil

matters, thereby contributing to the overall justice system. Over the years, the CPC has

undergone several amendments to keep pace with the changing legal landscape and

societal needs. These amendments have sought to simplify procedures, promote

alternative dispute resolution mechanisms, and expedite the disposal of cases. The

Code of Civil Procedure, 1908, is a cornerstone of the Indian legal system, guiding the

procedural aspects of civil litigation. It reflects India's commitment to a fair and just

legal framework for resolving civil disputes while providing clear guidelines for

litigants, lawyers, and judges.

There were 9 different systems of procedure in Bengal alone which were followed

simultaneously. The first uniform Code of Civil Procedure was enacted in the

year1859. The law relating to the procedure in suits and civil proceedings in India

(except those in J&K, Nagaland, tribal areas of Assam etc.) is contained in the Code

of Civil Procedure 1908.

The Code of Civil Procedure came into force with effect from Jan 1 1909. The

Code extends to the whole of India, except to the State of Jammu and Kashmir.

According to the preamble the object of the Code is to consolidate and amend laws

relating to the procedure of the courts of civil judicature. Three recent Amendment

Acts, viz, the Acts made in 1976, 1979 and 2002 have made many radical changes.

TOPIC 1

SUIT OF CIVIL NATURE

In the Code of Civil Procedure, 1908 (CPC), a "suit of a civil nature" refers to a legal

action or proceeding initiated in a civil court to resolve disputes or claims between

parties concerning civil rights and obligations. Such suits cover a wide range of civil

matters, and the CPC provides the procedural framework for their adjudication. Suits

of a civil nature in the CPC are vital for the resolution of various civil disputes and the

enforcement of civil rights and obligations. The CPC provides the procedural rules and

mechanisms to ensure that these suits are heard and decided in a fair and orderly

manner, contributing to the functioning of the justice system.

JURISDICTION

Jurisdiction may be defined to be the power or authority of a court to hear and

determine a cause to adjudicate and exercise any judicial power in relation to it.

Jurisdiction of a court means the extent of the authority of a court to administer justice

prescribed with reference to the subject matter, pecuniary value and local limits.

Jurisdiction of a court may be classified under the following categories;

1. Territorial or Local Jurisdiction

Every court has its own local or territorial limits beyond which it cannot

exercise its jurisdiction. These limits are fixed by the Govt. The District Judge has

jurisdiction to exercise within the District and not outside it. The High Court has

jurisdiction over the territory of a State within which it is situate and not beyond it. A

court has no jurisdiction to try a suit for immovable property situated beyond its local

limits.

2. Pecuniary Jurisdiction

The Code provides that a court will have jurisdiction only over those suits the

amount or value of the subject matter of which does not exceed the pecuniary limits of

its jurisdiction.

Some courts have unlimited pecuniary jurisdiction. The High Court and

District Courts have no pecuniary limitations. But a Small Cause Court cannot

entertain a suit in which the amount claimed exceeds Rs.1,000/-. The pecuniary

jurisdiction of the Munsiff Court is upto Rs.1,00,000/-.

3. Jurisdiction as to the Subject Matter

Different courts have been empowered to decide different types of suits. The

Munsiff court or Sub Court having jurisdiction to try suits for specific performance,

partition, foreclosure, redemption etc. In respect of testamentary matters, insolvency

proceedings, infringement of intellectual properties etc. only the District Judge has

jurisdiction.

Writ jurisdiction is vested with the High Court and Supreme Court.

Original and Appellate Jurisdiction

In the exercise of original jurisdiction, a court may entertain and decide suits

and in its appellate jurisdiction, it entertains and decides appeals. Munsiff Courts and

Small Cause Courts possess original jurisdiction only while District Court, High Court

and Supreme Court have original as well as appellate jurisdiction.

JURISDICTION OF CIVIL COURTS

Section 6.

(SUITS OF A CIVIL NATURE)

The jurisdiction of civil courts in India, particularly in matters of civil nature, is

primarily governed by the provisions of the Code of Civil Procedure, 1908 (CPC). The

CPC outlines the hierarchy of civil courts and their respective jurisdictions for

handling civil disputes. Let's explore the jurisdiction of civil courts for suits of a civil

nature in India under the CPC:

Hierarchy of Civil Courts:

India's civil court system is structured hierarchically, with different levels of courts

having varying jurisdictions. The hierarchy typically includes:

 Subordinate Courts: Below the district level, there are various subordinate courts,

including Civil Judge (Senior Division), Civil Judge (Junior Division), and Munsiff

courts, depending on the state's nomenclature. These courts handle cases of different

monetary values.

 District Courts: These are the lowest-level civil courts and have jurisdiction over

matters within the district's geographical boundaries.

 High Courts: Each state in India has its High Court, which has jurisdiction over the

entire state. High Courts have original jurisdiction in certain types of cases, and they

also serve as appellate courts for cases originating in subordinate courts.

 Supreme Court: The Supreme Court of India is the highest court in the country. It has

original jurisdiction in certain matters and serves as the highest appellate authority,

hearing cases from High Courts and other specialized tribunals.

Civil courts have territorial jurisdiction, which means they handle cases related to

events or parties located within their defined geographical area. The territorial

jurisdiction of a court is determined based on the location where the cause of action

arises. Civil courts also have pecuniary jurisdiction, which is the authority to hear cases

of a certain monetary value. The CPC specifies the financial limits for different

categories of courts, such as Small Causes Courts, which handle suits of lower

monetary value, and district courts, which handle suits of higher value. Civil courts

may have original jurisdiction, where they can entertain and decide cases as the first

instance, or appellate jurisdiction, where they hear appeals against judgments of lower

courts. High Courts and the Supreme Court have both original and appellate

jurisdiction, depending on the type of cases involved.

In addition to civil courts, India has specialized tribunals and forums for handling

certain specific types of disputes, such as the National Consumer Disputes Redressal

Commission (NCDRC) for consumer disputes and the Debts Recovery Tribunal

(DRT) for matters related to debt recovery. Certain disputes, such as those related to

land revenue and tenancy, family matters, and service matters, may be exclusively

within the jurisdiction of specific courts or tribunals designated by law. Understanding

the jurisdiction of civil courts is crucial for litigants to file cases in the appropriate

forum. The correct choice of jurisdiction ensures that cases are heard by the right court,

facilitating efficient and fair resolution of civil disputes.

Section 9 states that the court shall have jurisdiction to try all suits of a civil

nature, excepting suits of which their cognizance is either expressly or impliedly

barred.

Explanation I to Section 9 provides that a suit in which right to property or to

an office is contested is a suit of a civil nature.

Explanation II to Section 9 provides that it is immaterial whether or not any

fees are attached to the office referred to in explanation-I or whether or not such office

is attached to a particular place..

A civil court therefore has jurisdiction to try a suit, if two conditions are fulfilled;

1. The suit must be of a civil nature

2. The cognizance of such suit should not have been expressly or impliedly barred.

The S.C. in Shri. Vanamali Ramanuja Jeer v. Ranga Ramanuja Jeer

, has laid

down certain guide-lines to be followed for deciding the question as to whether a right

to a religious office would be a right of a civil nature or not.

(1) Prima facie suit raising question of religious rites and ceremonies only are not

maintainable.

(2) A suit for declaration with respect to religious honours, privileges alone will not

lie in a civil suit.

(3) The essential condition for the existence of an office is that the holder of the

alleged office should be under a legal obligation to discharge the duties attached to the

said office.

In Muhammed v. Moideen Haji

, the dispute was whether religious discourse

called Khutuba in a mosque in connection with Juma prayer on Friday can also be in

vernacular along with its essential ingredients in Arabic. It was held that the suit is

maintainable, since it is a matter affecting the right to worship. Similarly an

interference with the right of a Mohamadan to recite prayers over a body before burial

in front of a mosque is an invasion of a civil right, which can be enforced by a suit.

In Pappy v. Mathew Mar Koorilos

, it was held that if the dispute relates to the

control and management of church and its properties, the civil courts have jurisdiction

not only to entertain suits but also to mould the relief in such a way as to promote the

paramount interest of the parishiners and to reflect the will of the community.

In Mool Raj v. Gulab Singh

, it was held that disputes relating to the business

of the co-operative society cannot be adjudicated by civil court.

In Prakash Narain v. Burma-Shell Co-operative Housing Society Ltd

, the

Supreme Court held that it cannot be said that the civil court under no circumstances

can entertain a civil suit in respect of proceeding pending before Registrar, co-

operative societies.

1961 S.C.1720.

AIR 2000 Ker.329.

2000 (2) KLT SN 72.

AIR1984 NOC 26.

2002 (7) SCC 46.

The expression suit of a civil nature will cover private rights and obligation of

a person. Political and religious questions are not covered by the expressions ‘civil

nature’. A suit in which the principal question relates to caste, politics or religion is

not a suit of civil nature. But if the principal question in a suit is of a civil nature and

the adjudication incidentally involves, the determination relating to a caste question or

to religious rights and ceremonies, it does not ceases to be a suit of a civil nature and

the jurisdiction of a civil court is not barred.

The Following are Suits of a Civil Nature:-

1. Suits relating to right to property;

2. Suits relating to worship;

3. Suits relating to taking out religious procession;

4. Suits relating to right to share in offerings;

5. Suits for damages for civil wrongs;

6. Suits for specific performance of contract;

7. Suits for damages for breach of contract;

8. Suits for specific reliefs;

9. Suits for restitution of conjugal rights;

10. Suits for other matrimonial remedies;

11. Suits for rents;

12. Suits for right to hereditary office;

13. Suits against wrongful dismissal from service and for salaries.

The Following are Suits Not of a Civil Nature:-

1. 1. Suits involving principally caste question;

2. 2. Suits involving purely religious rights or ceremonies;

3. Suits for upholding dignity or honour;

4. Suits expressly barred;

5. Suits impliedly barred.

The jurisdiction of civil courts in India for suits of a civil nature is determined by the

CPC, and it encompasses territorial and pecuniary aspects. The hierarchical structure

of civil courts ensures that cases are heard at the appropriate level, promoting access

to justice and efficient dispute resolution.

SUITS EXPRESSLY BARRED

A suit is said to be “expressly barred”, when it is barred by any enactment for

the time being in force.

For e.g. Sec. 170 of Representation of Peoples Act, 1951, provides that no civil

court has jurisdiction to question the legality of any action taken or of any decision

given by the Returning Officer or by any other person appointed under this Act in

connection with an election.

It is open to the competent legislature to bar the jurisdiction of civil court with

respect to a particular class of suit of a civil nature. Thus matters falling within the

exclusive jurisdiction of revenue courts or under the Code of Criminal Procedure or

matters dealt with by Bar Council, Medical Council etc. and by special tribunals like

Industrial Tribunal are expressly barred from the cognizance of a civil court.

SUITS IMPLIEDLY BARRED

A suit is said to be impliedly barred when it is barred by general principles of

law. Certain suits though of civil nature are barred from the cognizance of a civil court

on the ground of public policy. Thus no suit shall lie for recovery of costs incurred in

a criminal prosecution or for enforcement of a right upon a contract hit by Section 23

of Indian Contract Act, 1872.

Even when the jurisdiction of a civil court is barred either expressly or by

necessary implication, it cannot be said that the jurisdiction is altogether excluded. A

court has jurisdiction to examine whether the provisions of the Act and Rules made

thereunder have been complied with or the order is contrary to law, malafide,

ultravires, arbitrary, violative of the principles of natural justice and so on.

Krishnan Lal v. State of J&K, (1994) 4 SCC 422.

TOPIC 3

RES SUBJUDICE (Section 10)

Section 10 of the Code of Civil Procedure, 1908 (CPC), deals with the principle of "res

sub judice," which is a Latin term that translates to "a matter under judgment" in

English. This legal principle serves to prevent the simultaneous and multiple

adjudication of the same dispute in multiple forums

Section 10 deals with stay of suit. It provides that no court shall proceed with

the trial of any suit in which the matter in issue is also directly and substantially in

issue in a previously instituted suit between the same parties and the court in which the

previous suit is pending is competent to grant the relief claimed.

The object of rule contained in Section 10 is to prevent courts of concurrent

jurisdiction from simultaneously adjudicating upon two parallel litigations in respect

of the same cause of action. The policy of law is to confine a plaintiff to one litigation

and thus preventing the possibility of two contradicting verdicts by one and the same

court in respect of the same reliefs.

The Section intends to protect a person from the multiplicity of proceedings and

to avoid a conflict of decision. Section 10 reads: “No court shall proceed with the trial

of any suit in which the matter in issue is also directly and substantially in issue in a

previously instituted suit between the same parties, or between parties under whom

they or any of them claim litigating under the same title, where such suit is pending in

the same or any other court in India having jurisdiction to grant the relief claimed, or

in any court beyond the limits of India established or continued by the Central Govt.

and having like jurisdiction or before the Supreme Court.”

Conditions

For the application of this section, the following conditions must be satisfied:

1. There must be two suits, one previously instituted and the other subsequently

instituted.

2. The matter in the subsequent suit must be directly and substantially in issue in

the previous suit.

Balakrishna v. Kishanlal, 1889 ILR 11, All.148.

3. Both the suit must be between the same parties or their representatives.

4. The previously instituted suit must be pending in the same court or any other

court having jurisdiction.

5. The parties must be litigating under the same title in both suits.

If the above conditions are satisfied a court cannot proceed with the

subsequently instituted suit since the provisions contained in section 10 are mandatory,

no discretion is left with the court.

The order of staying proceedings in the subsequent

suit can be made at any stage.

Explanation to Section 10 provides that there is no bar on the power of an Indian

court to try a subsequently instituted suit, if the previously instituted suit is pending in

a Foreign Court. Even then a civil court has inherent power under S. 151 to stay such

a suit to achieve the ends of justice.

In Pukhraj D. Jain v. Gopalakrishna

, it was held that where subsequently

instituted suit can be decided on purely legal points without taking evidence, it is open

to the Court to decide the relevant issues and not to keep the suit pending which has

been instituted with an oblique motive.

In Kora Chacko v. Mathew

, it was held that power under S.151 cannot be

invoked for stay of subsequent suit.

In Devassi Alias J.D. Mooken v.Anthoni

, it was held that a stay of suit under

S.10 does not amount to a consolidation of that suit with the previously instituted suit

which might after all be pending in another court, so as to make the decree therein a

decree in the stayed suit. It is for the parties to take the plea of res judicata after the

disposal of the earlier suit has resulted in the stay being dissolved and obtain an

adjudication thereon.

Manohar Lal v. Seth Hiralal, AIR 1962, SC 527.

Life Pharmaceuticals (P) Ltd. v. Bengal Medical Hall, AIR 1971Cal.345.

2004 (3) KLT SN 36.

1995 (2) KLJ 616.

AIR 1969 KER.78.

In V.R. Balakrishnan v. R. Velayudhan

, it was held that by stay only trial of

suit is prohibited. Other matters may be proceeded with.

In Indian Bank v. Maharashtra State Co-op. Marketing Federation Ltd

, it was

held that bar under S.10 is to be allowed to proceed with trial of subsequent suit but it

is not a bar to institute suit and passing of interlocutory orders such as consolidation

of latter with earlier suit, appointment of receiver, injunction or attachment before

judgment. Summary suit under O.37, where trial begins only after leave granted to

defendant, can proceed up to the stage of hearing summons and passing judgment in

favour of plaintiff, if the defendant not prays for leave or leave refused or fails to

comply with conditions of leave.

Section 10 of the CPC empowers a court to stay the proceedings of a suit when it is

satisfied that another suit involving the same parties and the same subject matter is

pending in another court. In other words, if there are two separate legal proceedings

addressing the same dispute, one of them may be stayed or put on hold to avoid

conflicting judgments and legal chaos. Section 10 applies when two conditions are

met:The parties in both suits are the same or are substantially the same. The subject

matter or the issues involved in both suits are identical or substantially identical. If a

court is satisfied that these conditions are met, it has the discretion to stay the

proceedings of the suit before it until the other suit, which was filed earlier, is decided.

The idea is to avoid conflicting judgments and prevent parties from pursuing multiple

remedies for the same dispute simultaneously. Once the earlier suit is decided, the

court can resume the proceedings of the stayed suit, taking into account the judgment

and outcome of the earlier suit.

Section 10 CPC is significant because it ensures the efficiency of the legal system by

preventing duplication and conflicting decisions in cases involving the same parties

and subject matter. It promotes judicial economy and helps in the orderly resolution of

disputes. While Section 10 is generally straightforward, there can be exceptions and

AIR 1980 KER.161.

AIR 1998 SC 1952.

complexities in its application. For example, if the second suit involves additional

parties or distinct issues that are not covered in the first suit, the principle of res sub

judice may not apply. Additionally, if the court where the second suit is pending is

considered a more appropriate forum for the resolution of the dispute, it may proceed

with the case despite the existence of the first suit. Section 10 of the CPC, known as

the principle of res sub judice, allows a court to stay the proceedings of a suit when

there is another suit involving the same parties and the same subject matter pending in

another court. This principle aims to prevent conflicting judgments and promote

judicial efficiency by ensuring that a single dispute is resolved in a coherent and

orderly manner.

TOPIC 4

RES JUDICATA (Section 11)

The principle of "Res Judicata" is a fundamental legal concept that is embodied in

Section 11 of the Code of Civil Procedure, 1908 (CPC). Res Judicata is a Latin term

that translates to "a matter judged" in English. It essentially means that a matter that

has already been adjudicated by a competent court cannot be re-agitated between the

same parties in subsequent litigation.

Section 11 of the Code embodies the doctrine of Res judicata. This section

provides that once a matter is finally decided by a competent court, no party can be

permitted to re-open it in a subsequent litigation. In the absence of such a rule, there

will be no end to litigation and the parties would be put to constant trouble, harassment

and expenses.

The principle of res judicata is based on the need of giving finality to the

decisions. Primarily it applies as between past litigation and future litigation.

Section 11 reads;

“No court shall try any suit or issue in which the matter directly and substantially

in issue has been directly and substantially in issue in a former suit between the same

parties, or between the parties under whom they or any of them claim, litigating under

the same title, in a court competent to try such subsequent suit or the suit in which such

issue has been subsequently raised, and has been heard and finally decided by such

court.”

For the application of section 11, the following conditions must be satisfied;-

1. The matter directly and substantially in issue are same in the former suit

and subsequent suit.

2. The parties must be same in both the suits

3. Suit must have been litigating under the same title.

4. The court which decided the former suit must be a court competent to try the

subsequent suit.

5. The matter in issue must have been heard and finally decided by the court in

the former suit (i.e. Decided on merit)

The doctrine of Res judicata is based on three maxims:

1. Nemo Debet Bis VexariPro Uno Et Eadam Causa

No Man shall be vexed twice for the same cause.

2. Interest Republicae Ut sit Finis Litium

It is in the interest of the State that there should be an end to a litigation.

3. Res judicata Pro Veritate Occipitur

A judicial decision must be accepted as correct.

Res judicata and Res Sub judice

The doctrine of Res judicata differs from Res Subjudice in two aspects:

1. Res judicata applies to a matter adjudicated upon. But Res Subjudice applies to

a matter pending trial.

2. Res judicata bars the trial of a suit or an issue which has been decided in the

former suit and Res Subjudice stays the trial of a suit which is pending decision

in a previously instituted suit.

Res judicata and Estoppel

Estoppel is defined in Section 115 of Indian Evidence Act, 1872. It reads:

“Where one person has by his declaration, act or omission, intentionally caused or

permitted another person to believe a thing to be true and to act upon such belief,

neither he nor his representatives shall be allowed to deny the truth of that thing”.

Res-judicata is a rule of procedure and estoppel is the rule of evidence. Res-

judicata prevents a party to agitate a matter again. Estoppel prevents a party from

denying earlier representation.

Res-judicata prevents multiplicity of suit. Estoppel prevents multiplicity of

representation.

Res judicata ousts the jurisdiction of the courts. Estoppel shuts the mouth of the

parties.

Compromise Decree and Res-judicata

A compromise decree is not a decision by court. It is the acceptance by the court

of something which the parties had agreed. Here the court does not decide anything.

In Sundar Bai v. Devaji

, it was held that the doctrine of Res-judicata does not

apply to a consent decree, as in a consent decree a matter cannot be said to be heard

and finally decided on merits. But such a decree however does not prevent a party

from challenging it by a rule of estoppel.

Res judicata and Withdrawal of Suit

A withdrawal of a suit does not operate as Res judicata in filing a subsequent

suit for the same cause of action. The basic principles of Res judicata being final

adjudication on merits, there can be no bar of Res judicata if the suit is withdrawn. But

withdrawal would be a bar to the filing of a fresh suit under Order XXIII Rule 1.

Constructive Res judicata

Explanation IV to Section 11 deals with Constructive Res judicata. It provides

that any matter which might and ought to have been made ground of defence or attack

AIR 1954 SC 82.

in such former suit shall be deemed to have been a matter directly and substantially in

issue in such suit.

The principle underlying the doctrine of constructive res judicata is to compel

the plaintiff or defendant to take all the grounds of attack defence which were open to

him. In other words all the grounds of attack and defence must be taken in the suit.

In Barangal S. Ruia v. Shashikant N. Ruia

, an appeal was filed by one of

several defendants. Subsequently co-defendant filed another appeal. It dismissed for

default. It was held that an order dismissing a subsequent appeal for default cannot

operate as res judicata in respect of an earlier appeal.

In Premier Tyres v. KSRT Corporation

, A filed a suit against B. B filed a suit

against A. Issues were common. Both the suits were tried together. Appeal was

preferred against one. No appeal against the judgment and decree of the connected suit

was filed. So it was held that the finality of finding record in the connected suit due to

non-filing of appeal precluded from proceeding with the appeal in other suit.

TOPIC 5

PLACE OF SUING (Sections 15-21)

The "Place of Suing" provisions, as outlined in Sections 15 to 21 of the Code of Civil

Procedure (CPC) in India, are crucial for determining the appropriate jurisdiction

where a civil suit should be filed. These sections help in avoiding forum shopping and

ensure that cases are filed in the most convenient and legally appropriate courts.

Sections 15 of the Code of Civil Procedure, 1908 regulate the forum for the

institution of suits. This section specifies that a suit should generally be instituted in

the court within whose jurisdiction the defendant resides or carries on business, or

where the cause of action arises. It provides for multiple options as to where a suit can

be filed.

AIR 2004 SC 2546.

1992 Supp (2) SCC 146.

Section 15 provides that every suit shall be instituted in the court of the lowest

grade competent to try it. This section refers to the pecuniary jurisdiction of the court.

It lays down a rule of procedure and does not affect the jurisdiction of the court. Hence

a decree passed by a court of higher grade cannot be said to be without jurisdiction.

The object of Section 15 is to see that the courts of higher grade shall not be over

burdened with suits.

Section 16 to 18 deal with suits relating to immovable property. clauses (a) to

(e) of section 16 deal with the following 5 kinds of suits:

a) Suits for recovery of immovable property;

b) Suits for partition of immovable property;

c) Suits for foreclosure, sale or redemption in case of mortgage or charge upon

immovable property;

d) Suit for determination of any other right to or interest in immovable property;

e) Suit for compensation for wrong to immovable property.

These suits must be filed in the court within the local limits of whose

jurisdiction the property is situate. In cases involving immovable property, the suit

should be instituted in the court within whose local jurisdiction the property is situated.

Section 17 of the Code provides that where a suit is to obtain relief respecting,

or compensation for wrong to, immovable property situate within jurisdiction of

different courts, such suit can be filed in the court within the local limits of whose

jurisdiction any portion of the property is situate. The only condition is that the suit is

within the pecuniary jurisdiction of such court. When a suit is for compensation for

wrong done to a person or for moveable property, it may be instituted either where the

cause of action arises or where the defendant resides or carries on business.

Section 18 deals with cases where it is uncertain within the jurisdiction of

which of two or more courts any immovable property is situate. In such cases any of

those courts is having the jurisdiction to try such case. If there are multiple defendants

residing in different jurisdictions, the plaintiff may choose to file the suit in a court

within the local limits of whose jurisdiction any one of them resides.

Section 19 deals with the suits for compensation for wrong (Tort) to person or

movables. A suit for wrong to movable property or for compensation for wrong to

person, may be instituted at the option of the plaintiff either at the place where the

wrong is committed or where the defendant resides, carries on business or personally

works for gain. In suits against joint tortfeasors, the suit can be filed in a court within

the local limits of whose jurisdiction any one of the defendants resides.

Section 20 deals with all other cases not covered by any of the foregoing

provisions. All such suits may be filed at the plaintiff’s option in any of the following

courts:

1. where the cause of action arises;

2. where the defendants resides or carries on business or personally works for gain;

3. where there are two or more defendants, any of them resides or carries on business

or personally works for gain.

This section provides for exceptions to the general rule. It allows suits to be filed where

the parties agree or in cases involving contracts, where the performance was to be

made.

Cause of Action

‘Action’ means suit. ‘Cause of action’ means literally the cause or the set of

circumstances which leads up to a suit. It refers to a bundle of essential facts which a

party has to prove in order to get a relief in his favour. The expression ‘Cause of

Action’ as used in CPC means every fact which is necessary for the plaintiff to prove

in order to get a decree in his favour.

Cause of action means the necessary conditions for the maintenance of a suit.

It discloses the reasons for the suit. It does not comprise every piece of evidence. It is

a bundle of essential facts necessary for the plaintiff to prove, before he can succeed

in the suit.

Cause of action is antecedent to the filing of the suit and every plaint must

disclose a cause of action. It supports the plaintiff’s title.

In a suit by Hindu wife for maintenance, marriage constitutes a part of the cause

of action and the suit lies to the court within whose jurisdiction the marriage was held.

In a case of payment of cheque cause of action arises at the place where the cheque

was delivered.

If A brings a suit against B for damages for a libel upon him, A must prove the

following three facts namely:

1. That the writing complained of was published by the defendant.

2. That it is untrue and

3. That it is defamatory to A.

These three facts constitute A’s cause of action, and they must all be alleged in his

plaint.

In Hanil Era Textiles Ltd. v. Puromatic Filters (p) Ltd.

, appellant was residing

in Bombay and the respondent in Delhi. Appellant placed purchase order on the branch

of the respondent in Bombay for supply of goods which are to be delivered at

Patalganga factory of the appellant. An advance payment of 30% of the value of the

goods was paid by the appellant to the respondent in Bombay. Terms and conditions

of the purchase order conferred jurisdiction on Bombay courts. Respondent filed a suit

for recovery of the balance 70% against the appellant in Delhi court. The Trial court

admitted the suit and rejected the contention of the appellant that only courts in

Bombay have jurisdiction. The first appeal of the appellant to the High court was also

dismissed and upon such dismissal the appellant appealed to the Supreme Court.

Appeal was allowed.

In Harshad Chimanlal Modi v. DLF Universal Ltd. &Another

, a contract was

entered in to in Delhi. On the basis of the contract payment was also made in Delhi. In

the contract the jurisdiction was also conferred on Delhi courts. However the suit

property was situated in Gurgaon. Suit for specific performance was filed in Delhi.

Parties did not object to jurisdiction. The trial court returned the plaint for want of

JT 2004 (Supp.1).

JT 2000 (8) SC 561.

jurisdiction. High Court confirmed the same. The Supreme Court upheld the view of

the lower Courts.

In National Textile Corpn. Ltd. and Others v. Haribox Swalram and Others

, it

was held that facts giving rise to Court’s territorial jurisdiction are only those facts

give rise to a cause of action within a Court’s territorial jurisdiction which have a nexus

or relevance with the lis that is involved in the case, not otherwise.

In Stridewell v. Bhanlepur Simbhaoli

, it was held that an appeal against the

order of the Company Law Board located at Delhi will be in Madras High Court within

whose jurisdiction the registered office of the company is located.

In Angile v. Davy Ashmore

, it was held that if two Courts have jurisdiction

consequent upon a part of cause of action arising thereunder parties by a valid, explicit,

clear and unambiguous contract vest jurisdiction in one to the exclusion of another.

The other Court will have thereby no jurisdiction although part of cause of action arose

there.

In Femina v. M.R. Verma

, the purchaser from Bombay placed order for goods

with a seller. The seller delivered the goods to a common carrier at Kannur for carriage

and delivery at Bombay. It was held that suit for recovery of price of goods can be

filed at Kannur.

Claim for Compensation

In Vasanthy G. Kammath and Others v. KSRTC

, there was a claim for

compensation resulting in death due to accident, by dependents of deceased. It was

2004 (9) SCC 786: AIR 2004 SC 1998.

AIR 1994 SC 158.

1995 (4) SCC 153.

AIR 1993 Ker.210.

1981 KLT 200.

held that Courts within whose jurisdiction either death occurred or accident occurred

have jurisdiction to entertain it.

Concurrent jurisdiction: Exclusion of one

In Shriram City Union v. Rama Mishra

, of the two Courts of competent

jurisdiction parties by agreement have chosen one for adjudication of their dispute. It

was held that they cannot choose a different Court in violation of the agreement.

Objections to Jurisdiction-

Section 21 deals with objections to jurisdiction. This section emphasizes that

if an objection to the jurisdiction of a court is not raised at the earliest possible

opportunity in the proceedings, it is considered waived.

No objection as to the place of suing shall be allowed by any appellate or revisional

court unless the following 3 conditions are fulfilled:

1. The objection was taken in the court of first instance;

2. It was taken at the earliest possible opportunity;

3. There has been a consequent failure of justice.

All these 3 conditions must co-exist.

In R.S.D.V. Finance v. Shree Vallabh Glass Worls

, it was held that objection

as to jurisdiction cannot be entertained in the Court of appeal unless the third condition,

viz. failure of justice is satisfied although other two conditions are satisfied.

In Kamalakshi Amma v. Karthyayani Amma

, the defendant did not raise a

contention in the lower Court. No prejudice also caused. It was held that review

petition filed under O.41 R.1 is not maintainable as there is waiver of the contention

of jurisdiction.

AIR 2002 SC 2402.

AIR 1993 SC 2094.

2001 (3) KLT SN 137.

Bar on suit to Set Aside Decree

S. 21A of the Code provides that a suit shall not lie to challenge the validity of

a decree passed in a former suit between the same parties on any ground based on an

objection as to the place of suing. Thus decree passed by a court cannot be challenged

in a subsequent suit on the ground that the court which passed the decree has territorial

jurisdiction. However this section does not bar a suit challenging the validity of a

decree passed by a court without pecuniary jurisdiction.

In Thiruvenkitan v. Anantha Kumar

, it was held that the well accepted

principle of law is that a transfer of a suit is effected by the Court for proper and

convincing grounds. No Court would transfer the decree for mere asking of a party.

Merely because plaintiff has instituted his suit in a Court of his choice the Court cannot

be obvious of the inconveniences and difficulties of the defendants.

These provisions in the CPC are designed to ensure that the plaintiff selects an

appropriate forum for filing the suit, and they are aimed at preventing unnecessary

delay and inconvenience to the parties involved. They help in determining the most

suitable court to adjudicate the matter, considering factors like residence of parties,

location of property, and the place where the cause of action arises. However, it's

essential to consult legal counsel to fully understand and apply these provisions

correctly in a specific case, as there may be exceptions and nuances in their application.

TOPIC 6

TRANSFER OF SUITS (Sections 22-25)

The provisions regarding the transfer of suits in the Code of Civil Procedure (CPC) are

outlined in Sections 22 to 25. These sections deal with the circumstances under which

1991 (1) KLT SN 24: ILR 1991 (1) Ker.565.

a suit can be transferred from one court to another. The objective is to ensure justice,

convenience, and fairness in the adjudication of cases.

Sections 22 to 25 deal with transfer of suits from one court to another. When a

suit may be instituted in more than one court the option lies with the plaintiff to select

the forum as provided in Sec.16 and 20. Then a defendant can apply for transfer of the

case to another court under Sec.22. It is to be done after notice to the other parties. But

it must be done at the earliest possible opportunity. Where issues are settled the

application for transfer shall be at or before such settlement of issues. The court shall

make a decision after considering the objections of the other parties. Section 22

empowers the court to transfer a suit, which might have been filed in more than one

court having jurisdiction, to a different court. The transfer can be ordered for reasons

such as the convenience of the parties or the witnesses.

Section 23 provides for the court to which the application is to be made. When

the different courts are under the same appellate court the application is to be made to

the appellate court. When they are subordinate to different appellate courts but to the

same High Court, it shall be made to the High Court. When they are subordinate to

different High Courts, the application shall be made to the High Court within whose

jurisdiction the court in which the suit is brought is situate. Section 23 states that an

application for the transfer of a suit can be made either to the court where the suit is

originally instituted or to the High Court if the suit is within its jurisdiction.

General Power of Transfer

Section 24 provides for a transfer by any of the parties to a suit, appeal or other

proceeding. The power is conferred upon a High Court or a District Court. It may be

done at any stage. The power under Sec.24 also envisages a retransfer of the suit for

trial or disposal to the court from which the same was withdrawn.

For the purpose of

the section “proceeding” includes a proceeding for the execution of a decree or order.

It has been held that the power under this section can be exercised suo moto by the

S.24 (1) (b) (iii).

S.24 (3) (b).

court without any application. This section grants the Supreme Court the authority to

transfer any suit, appeal, or other proceeding from one High Court to another or from

a subordinate court in one state to a subordinate court in another state. This provision

ensures uniformity and the avoidance of conflicting judgments.

Factors to be Considered

As a general rule, the court shall consider whether the expenses and difficulties

of the trial would be so great as to lead to injustice. An order can also be made in order

to prevent abuse of the process of court. The burden lies on the applicant to make out

a strong case in favour of transfer.

Power of the Supreme Court

Section 25 as amended by Amendment Act, 1976 confers on the Supreme Court

the power to transfer a pending suit, appeal or proceeding from one High Court or Civil

Court in a state to a High Court or other Civil Court in another State. Formerly the

power was within the State Government. Now wider powers are conferred on the

Supreme Court. Section 25 vests the court with the general power to transfer any suit,

appeal, or proceeding from one court to another. The court's discretion to transfer suits

under this section can be exercised for various reasons, including the interests of

justice, the convenience of the parties, or to prevent abuse of the process of law.

The Supreme Court is to be satisfied that the order is required to meet the ends

of justice. An application under this section is to be supported by an affidavit.

These provisions under Sections 22 to 25 of the CPC are essential to maintain the

fairness and efficiency of the judicial process. They allow for the transfer of suits when

it is in the interest of justice or when it would serve the convenience of the parties

involved. Whether it's a case of multiple courts having jurisdiction, a need for a change

of venue, or an issue of national importance, these sections empower the courts,

including the Supreme Court, to ensure that cases are heard in the most suitable forum,

thus promoting the administration of justice in India.

TOPIC 7

PLAINT (Section 26, Order VII)

The term "plaint" in the context of the Code of Civil Procedure (CPC) refers to the

formal written statement of a plaintiff's claim or the document that initiates a civil

lawsuit. It provides essential details about the claim, including the nature of the claim,

the relief sought, and the facts and circumstances on which the claim is based. In the

CPC, the provisions related to the plaintiff's plaint are primarily found in Section 26

and Order VII.

Section 26 of the Code of Civil Procedure, 1908 deals with institution of suit.

Section 26(1) states that every suit shall be instituted by the presentation of plaint or

in such other manner as may be prescribed. Section 26 (2)

provides that in every

plaint, facts shall be proved by affidavit.

In J.V.V. Sangh v. Shyam Sunder

and in Kuntibi v. L.A.O.

, it was held that the

suit ordinarily means a civil suit instituted by the presentation of a plaint.

In Varghese v. Sebastian

, it was held that institution of a suit in a court not

competent to try is invalid.

Order VII deals with the contents of plaint. Rule 1 states that the plaint shall

contain the following particulars:

a. The name of the Court in which the suit is brought;

b. The name, description and place of residence of the plaintiff;

c. The name, description and place of residence of the defendant, so far as

they can be ascertained;

d. Where the plaintiff or defendant is a minor or a person is of unsound

mind, a statement to that effect;

e. The facts constituting the cause of action and when it arose;

f. The facts showing that the Court has jurisdiction;

Inserted by Amendment Act 1999.

AIR 1970 Raj.91.

AIR 1962 Ker.266.

AIR 1982 NOC 61 (Ker).

g. The relief which the plaintiff claims;

h. Where the plaintiff has allowed a set-off or relinquished a portion of his

claims, the amount so allowed or relinquished; and

i. A statement of the value of the subject matter of the suit for the purpose

of jurisdiction and court fee.

Cause Title

The name of the court, space for writing the number and year of the suit and the

names and description of the parties constitute what is generally called cause title.

Body of the Plaint

The plaintiff must give all the material particulars in order to ascertain whether

in fact or in law the cause of action arising from the plaint as is alleged exists.

In Bhagwati v. Chandramauli

, it was states that plaint shall contain particulars

of the facts constituting the cause of action and when it arose in order to enable the

Court to determine whether plaint discloses any cause of action and whether suit is

barred by limitation.

In Kuldeep Singh v. Ganpat Lal

, the plaint shall contain particulars of the facts

constituting the cause of action and when it arose in order to enable the court to

determine whether plaint discloses any cause of action and whether suit is barred by

limitation.

The subject matter of the suit shall be brought out in precise and concise

paragraphs. They shall be serially numbered. The date on which the cause of action

arose is essential to verify whether the suit is within the prescribed period of limitation.

Where the suit is instituted after the expiry of the period prescribed by the law of

limitation, the plaint shall show the ground upon which the exemption from such law

AIR 1966 SC 735.

1966 (1) SCC 243.

is claimed. There should also be a clear statement of facts showing jurisdiction of the

Court to have cognizance of the case. The plaint must state all the facts showing how

the court has jurisdiction.

The body itself may refer to the valuation of the suit on the basis of the relief(s)

claimed. This is essential for the purpose of the Court Fee and Suit Valuation Act. In

deciding the limits of pecuniary jurisdiction also this will be helpful.

Any plaint to be filed shall be in duplicate and shall be accompanied by all

documents on which the plaintiff relies in support of his claim. It is also to be supported

by an affividavit stating the genuineness of the claims and of documents relied upon.

Prayer for Relief

The relief(s) claimed shall be specifically stated. Alternative claims for relief

may also be pleaded. However general or other reliefs may be granted by the court.

However, in general, a plaintiff cannot be entitled to relief upon facts or documents

not stated or referred to by him in his pleadings. But in certain exceptional situations

the court may grant a relief though it may not be founded on the pleadings.

Valuation statement is to be given in details showing the remittance of court

fees.

Signature

Every pleading is to be signed by the party and his pleader, if any. If the party is

unable to sign the pleading, the same may be signed by a person duly authorized by

him to sign the same or to sue or defend on his behalf. Omission to sign is a matter of

procedure. The court may allow the plaintiff to amend the plaint by signing the same.

Verification

Every pleading is to be verified at the foot of the pleading by the party or one

of the parties pleading. The verification shall be signed by the person making it and

shall state the date on which and the place at which it was signed. Omission to verify

the pleading will not cause a plaint to be rejected. An order can be made for its

amendment.

Schedule/List of Documents

In suits relating to property there will normally be a schedule showing the

description of the property. There may generally be the list of documents relied upon

the plaintiff as appended to a plaint.

O.VII R.14 deals production of document on which plaintiff sues or relies:

Where a plaintiff sues upon a document or relies upon document in his

possession or power in support of his claim, he shall enter such documents in a list,

and shall produce it in Court when the plaint is presented by him and shall, at the same

time deliver the document and a copy thereof, to be filed with the plaint. Where any

such document is not in the possession or power of the plaintiff, he shall, wherever

possible, state in whose possession or power it is.

A document which ought to be produced in Court by the plaintiff when the plaint

is presented, or to be entered in the list to be added or annexed to the plaint but is not

produced or entered accordingly, shall not, without the leave of the Court, be received

in evidence on his behalf at the hearing of the suit. Nothing in this rule shall apply

to documents produced for the cross examination of the plaintiff’s witnesses, or,

handed over to a witness merely to refresh his memory.

Order VII, Rule 3 states that, where the subject matter of the suit is immovable

property, the plaint shall contain a description of the property sufficient to identify it.

Rule 4 provides that, where the plaintiff sues in a representative character, the

plaint shall show a statement to that effect.

Rule 6 provides that where the suit is instituted, after the expiration of the period

prescribed by the law of limitation, the plaint shall show the ground upon which

exemption from such law is claimed.

Order VII Rule 9 provides that where the Court orders that where the summons

be served on the defendants in the manner provided in Order V Rule 9, it will direct

the plaintiff to present as many copies of the plaint on the plain paper as there are

defendants within seven days from the date of such order along with requisite fee for

service of summons on the defendants.

RETURN OF PLAINT (Order VII, Rule 10)

The plaint shall at any stage of the suit be returned to be presented to the proper

court in which the suit should have been instituted.

On returning a paint, the Judge

shall endorse thereon the date of its presentation and written the name of the party

presenting it, a brief statement of the reasons for returning it.

Return of the plaint is deemed to be a decree and is appealable. Under Rule

10B(1) of Order VII, where on an appeal against order for return of plaint, the court

hearing the appeal may if the plaintiff by an application so desires direct the plaintiff

to file the plaint in the court in which the suit should have been instituted and fix a date

for the appearance of the party.

Order VII Rule 10B (2) says that the direction made by the Court under sub-rule

1 shall be without any prejudice to the rights of any parties to question the jurisdiction

of the Court, in which the plaint is filed, to try the suit.

REJECTION OF PLAINT (Order VII Rule 11)

The plaint shall be rejected in the following cases;

a. where it does not disclose a cause of action;

b. where the relief claimed is under valued and the same is not corrected

within the time fixed;

c. where the plaint is returned upon insufficiently stamped and the plaintiff

failed to supply the requisite stamp paper within the time fixed by the court;

d. where the suit appears from the statement in the plaint to be barred by

any law;

Order VII, Rule 10 (1).

Order VII, Rule 10 (2).

e. where it is not filed in duplicate;

f. where the plaintiff fails to comply with the provisions of R. 9.

Proviso to Order VII Rule 11 CPC states that the time fixed by the Court for the

correction of the valuation or supplying of the requisite stamp paper shall not be

extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was

prevented by any cause of an exceptional nature for correcting the valuation or

supplying the requisite stamp paper as the case may be within the time fixed by the

Court and that refusal to extend such time would cause grave injustice to the plaintiff.

By virtue of S. 2(2) of the Code, rejection of a plaint shall be deemed to be a

decree. The result is that an order rejecting the plaint is appealable as if it is a decree

under Section 96, Order XI, CPC.

The rejection of a plaint on any of the grounds mentioned above shall not of its

own force preclude the plaintiff from presenting a fresh plaint in respect of the same

cause of action.

Thus a fresh suit can be instituted provided it is not barred by

limitation.

In Mohan v. Damodaran

, it was held that a reasonable cause of action is said

to mean a cause of action with some chances of success when only the allegations in

the pleadings are considered. The failure of the pleadings to disclose a reasonable cause

of action is distinct from the absence of full particulars.

In Mable v. Dolores

, it was held that if inherent powers cannot be invoked

against order rejecting plaint the remedy lies in filing an appeal.

In ABN-AMRAO Bank v. Punjab Urban P&D Authority

, it was held that partial

rejection of plaint is not permissible.

Order VII, Rule 13.

1994 (2) SCC 392.

AIR 2001 KER. 353.

AIR 2000 P&H 44.

In Raptakos Brett & Co. Ltd. v. Ganesh Property

, it was held that basis of

cause of action alleged in suit could be gathered on a conjoined reading of all

paragraphs of plaint.

In I.T.C. Ltd. v. Debts Recovery Appellate Tribunal

,it was held that where mere

non-supply of goods does not amount to fraud, mere repetition of the word ‘fraud’ in

plaint not sufficient to disclose cause of action.

In Delhi Wakf Board v. J.K. Narang

, it was held that subsequent suit on same

cause of action not barred where earlier plaint is rejected under Rule 11.

The provisions in Section 26 and Order VII of the CPC are critical because they ensure

that the plaintiff provides a clear and comprehensive statement of their claim, enabling

the defendant and the court to understand the nature of the dispute. Additionally, the

rules on the form and content of the plaint help in preventing frivolous or vague claims

and contribute to the efficient functioning of the civil justice system in India. It is

essential for plaintiffs and their legal representatives to adhere to the requirements

outlined in Section 26 and Order VII when drafting and filing a plaint to ensure that

their claim is properly presented before the court. Failure to comply with these

provisions may lead to the rejection of the plaint, which could delay the legal

proceedings.

TOPIC 8

PARTIES TO THE SUIT (Order I Rule 1)

Order I, Rule 1 of the Code of Civil Procedure (CPC) in India deals with the parties to

a suit. It lays down the general rule regarding who can be joined as plaintiffs and

defendants in a civil lawsuit. Order I deals with parties to the suit, joinder of parties,

mis-joinder and non-joinder of parties.

1998 (7) SCC 184.

1998 (2) SCC 70.

1997 (10) SCC 192.

Order I, Rule 1 - Joinder of Plaintiffs and Defendants: The rule states: "All persons

may be joined as plaintiffs in whom 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, whether

jointly, severally or in the alternative, where, if such persons brought separate suits,

any common question of law or fact would arise."

Joinder of Parties

The question of joinder of parties may arise either as regards the plaintiffs or

as regards the defendants. An act may be done by a single individual and may adversely

affect another individual. In that case, the question of joinder of parties does not arise

at all.

Illustration: Where ‘A’ assaults ‘B’, then B may sue A for tort.

The question of joinder of parties arises when an act is done by two or more

persons or it affects two or more persons.

Illustration: If ‘A’ assaults ‘B’ and ‘C’ or B and C assaults A, the question of joinder

of plaintiffs or defendants arises.

Joinder of Plaintiffs (Order I, Rule 1)

All persons may be joined in one suit as plaintiffs, if the following two

conditions are satisfied:

1. The right to relief arises out of the same act or transaction;

2. The case is of such a character that if such person brought separate suits, the

common questions of law or fact would arise.

Illustration

‘A’ enters into an agreement jointly with ‘B’ and ‘C’ to sell 100 tins of oil. A

thereafter refused to deliver the goods. Here both B and C have each of them a right

to recover damages from A. The said right arises out of the same transaction and a

common question of law and fact would also arise. B and C therefore may file a suit

jointly as plaintiff against A for damages.

In Mohammed Farooq v. District Judge, Allahabad

, it was held that where

there was no allegation or any cause of action against the applicant who sought to be

impleaded as defendant in the suit, the mere apprehension that the plaintiff and

defendants of the suit might collusively get their suit decided which would adversely

affect the right of the applicant was not enough for impleadment of the applicant as

defendant in the suit.

Joinder of Defendants (Order I Rule 3)

All persons may be joined in one suit as defendants if the following two

conditions are fulfilled:

1. The right to relief alleged to exist against them arises out of the same act or

transaction;

2. The case is of such a character that if separate suits when brought against such

persons, any common question of law or fact would arise.

Illustration

There is a collision between a bus and a car. The bus belongs to B and the car

belongs to C. As a result of the collision, A, a passer-by is injured. A may join B and

C as defendants in one suit for damages since the case involves common question of

fact arising out of the same transaction.

Order I Rule 3A provides that where it appears to the court that any joinder of

defendants may embarrass or delay the trial of the suit, it may pass an order for separate

trials.

Order I, Rule 7 provides that where the plaintiff is in doubt as to the person

from whom he is entitled to obtain redress, he may join two or more defendants in one

suit.

Necessary and Proper Party

AIR 1993 All 8.

There is an essential distinction between a necessary party and a proper party

to a suit. A necessary party is one, whose presence is indispensable to the constitution

of the suit and without whom no effective order can be passed.

A proper party is one in whose absence, an effective order can be passed, but

whose presence is necessary for a complete and final decision of a question involved

in the proceedings. His presence however enables the court to adjudicate more

effectively and completely.

Thus in a suit for partition all sharers are necessary parties. A sub-tenant is

only a proper party in a suit for possession by a landlord against his tenant. A local

authority for whose benefit the land is sought to be acquired by the Govt. is a proper

party in land acquisition proceedings.

Non-Joinder and Mis-Joinder of Parties (Order I Rule 9)

Where a person, who is a necessary or proper party to a suit has not been joined

as a party to the suit, it is a case of non-joinder. Where a person who is not a necessary

or proper party to a suit has been joined as a party to the suit it is a case of mis-joinder

of parties.

Order I, Rule 9 provides that no suit shall be defeated by reason of the mis-

joinder or non-joinder of parties, and 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.

Proviso to the rule says that nothing in this rule shall apply to non-joinder of necessary

parties.

If the person who is likely be affected by the decree is not joined as a party in

the suit or appeal, the suit or appeal is liable to be dismissed on that ground alone.

But in Joseph v Union of India

all the affected persons had not been joined

as parties to the partition. The interests of the persons who were not joined as parties

were identical with those persons who were before the court. It was held that the suit

was not liable to be dismissed on that ground.

1993 (2) SCC 627.

In Addepalli Venkata Laxmi v. Ayinampudi Nara Simha Rao

, it was held that

issue of non-joinder of necessary parties cannot be raised for the first time in appeal.

Order I Rule13 provides that all objections on the ground of non-joinder and

mis-joinder of parties must be taken at the earliest opportunity, otherwise they will be

deemed to have been waived.

Striking out, Adding or Substituting Parties (Order I Rule 10)

If after the filing of the suit, it is found that the suit has been instituted in the

name of the wrong person as plaintiff or where it is doubtful whether it has been

instituted in the name of the right person as plaintiff, the court may at any stage of the

suit if satisfied that the suit has been instituted through a bonafide mistake, and that it

is necessary for the determination of the real matter in dispute so to do, order any other

person to be substituted or added as plaintiff upon such terms as the court thinks just.

Order I Rule 10(2) provides that the court may at any stage of the proceedings,

either upon or without the application of either party, if it is appears to be just, order

the name of any party improperly joined whether as plaintiff or defendant, be struck

out and that the name of any person who ought to have been joined, whether as plaintiff

or defendant or whose presence is necessary to adjudicate and settle all the questions

involved in the suit be added.

Order I Rule 10(3) provides that no person shall be added as plaintiff without

his consent.

Mis-joinder of Cause of Action

If a plaintiff unites in the same suit several causes of action against the same

defendant, there is joinder of causes of action. By Order II Rule 3 a plaintiff may unite

in the same suit several causes of action against the same defendant. However, in a suit

for recovery of immovable property, no causes of action shall be joined except the

following without permission of the Court:

AIR 1994 AP 72.

Order I, Rule 10 (1).

(1) Claims for mesne profits or arrears of rent in respect of the property claimed;

(2) Claims for damages for breach of a contract under which the property is held.

In a suit for recovery of immovable property, the plaintiff cannot unite a claim

for compensation for defamation. If the plaintiff unites different causes of action in a

suit, the defendant can raise objection against the mis-joinder. However if no objection

is raised, the objections not so taken shall be deemed to have been waived.

In a partition action the plaintiff included all the assets of his father and the

father’s brother who together had shares in the partnership business carried on by them

and the persons in whose hands those assets are. It was held the suit is not bad either

for misjoinder of parties or causes of action.

Multifariousness

Mis-joinder of parties and mis-joinder of causes of action in a suit is technically

called multifariousness. If in a suit there are two or more defendants and two or more

causes of action, the suit will be bad for mis-joinder of defendants and mis-joinder of

causes of action. The joinder of such separate causes of action and separate defendants

makes that suit bad for multifariousness. It should be noted that the objection on the

ground of multifariousness should be taken at the earliest opportunity and any

objection not so taken shall be deemed to have been waived.

Once a multifarious suit is allowed to proceed which results in a decree, the plea

of multifariousness should be deemed to have been waived.

In Joseph alias Kochu v. Makkaru Pillai

, the suit was for trespass against

several defendants jointly. It was held that the finding that trespass was not joint would

not render the suit bad for multifariousness.

The overarching goal of Order I, Rule 1 is to promote judicial efficiency by allowing

all related claims to be adjudicated together in a single lawsuit. This prevents the need

for multiple, separate lawsuits when parties have interconnected claims arising from

Krishnan Achari v. Parthasarathi, 1959 KLR 928.

AIR 1960 Ker. 127.

the same set of circumstances. It also helps in avoiding inconsistent or contradictory

judgments that might arise from separate lawsuits on the same issue.

However, it's important to note that while this rule encourages the joinder of parties

with related claims, it does not require all possible parties to be joined. The rule leaves

room for the court's discretion in determining the appropriate parties to the suit based

on the specific circumstances of each case. In practice, the application of Order I, Rule

1 requires careful consideration of the facts, legal issues, and the potential parties

involved in a lawsuit to determine the most appropriate and efficient way to address

the claims.

TOPIC 9

REPRESENTATIVE SUIT (Order I Rule 8)

Order I, Rule 8 of the Code of Civil Procedure (CPC) in India deals with the concept

of a "representative suit." This rule allows for the filing of a lawsuit on behalf of or for

the benefit of a larger group or class of individuals who share a common interest or

have similar rights.

A representative suit is a suit filed by or against one or more persons on behalf

of themselves and others having the same interest in the suit. As a general rule, all

persons interested in a suit ought to be joined as parties to it, so that the matters

involved therein may be finally adjudicated and fresh litigations over the same matter

may be avoided.

Order I, Rule 8 states: "Where there are numerous persons having the same

interest in one suit, one or more of such persons may, with the permission of the Court,

sue or be sued, or may defend in such suit, on behalf of or for the benefit of all persons

so interested. But the Court shall in such case give, at the plaintiff's expense, notice of

the institution of the suit to all such persons either by personal service or, where, from

the number of persons or any other cause, such service is not reasonably practicable,

by public advertisement, as the Court in each case may direct."

Order I Rule 8 is an exception to this rule. Under this rule, when there are a

number of persons similarly interested in a suit, one or more of them can, with the

permission of the court or upon the direction from the court, sue or be sued on behalf

of themselves and others.

Rule 8(2) provides that the court shall, where permission is given, at the

expense of the plaintiff, give notice to the institution of the suit to all persons so

interested, either by personal service or public advertisement.

Rule 8(3) provides that any person on whose behalf or for whose benefit, a suit

is instituted or defended under Rule 8(1) may apply to the court to be made a party to

such suit.

Rule 8(4) provides that no part of the claim in any such suit shall be abandoned

nor shall be withdrawn and no compromise shall be recorded in any such suit unless

the court has given at the plaintiff’s expense notice to all persons so interested.

Rule 8(5) provides that, where any person suing or defending in any

representative suit does not proceed with due diligence in the suit or defence, the court

may substitute in his place any other person having the same interest in the suit.

Rule 8(6) provides that a decree passed in a representative suit shall be binding

on all persons on whose behalf or for whose benefit the suit is instituted or defended

as the case may be.

Order I, Rule 8 has been framed in order to save time and expense, to ensure a

single comprehensive trial of questions in which numerous persons are interested and

to avoid harassment of parties by a multiplicity of suit. For the application of Rule 8,

the following conditions must exist:

1. The parties must be numerous;

2. The parties must have the same interest;

3. The permission must be granted or direction must be given by the court

4. Notice must have been issued to the parties whom it is proposed to represent in the

suit.

Order I Rule 8 of the Code is an enabling provision and does not compel any

person to represent many, if he by himself has a right to sue. So also this rule does not

vest a right of suit in a person if he has no right to sue.

Order I Rule 8(1)(a),(b).

The explanation added by the Amended Act, 1976 clarifies that such persons

need not have the same cause of action. Again it is not necessary that the interest must

arise from the same transaction. Even if the persons who are represented in a

representative suit have separate cause of action or there are separate transactions, a

suit under Order I Rule 8 can be filed, if all of them are having the same interest.

In T.N. Housing Board v Ganapathy

, residential buildings were allotted by the

Board to the applicants who belonged to the low income group. After settlement of

price, excess demand was made by the Board. The allottees challenged the demand

by filing a suit in a representative capacity. It was contented that such a suit in a

representative capacity was not maintainable as separate demand notices were issued

against each of the allottees, giving rise to separate cause of action. Negativing the

contention, the Supreme Court held that all of them had the same interest and therefore

the suit was maintainable.

The purpose of Order I, Rule 8 is to streamline the legal process and avoid multiple,

identical lawsuits when numerous persons share the same interest or have common

rights that are at stake. It provides a mechanism for efficient resolution of disputes that

affect a broader group, such as class actions or suits on behalf of shareholders, tenants,

or other similarly situated parties. By allowing one or more individuals to represent

the interests of a larger group with the court's permission, the rule promotes judicial

economy and ensures that all affected parties have an opportunity to participate or

benefit from the legal proceedings. It is a significant tool for handling cases that

involve collective rights or interests in the Indian legal system.

TOPIC 10

SERVICE OF SUMMONS (Section 27 Order V)

Service of summons is a crucial aspect of the legal process in civil cases under the

Code of Civil Procedure (CPC) in India. It ensures that the parties involved are

informed about the lawsuit and have an opportunity to participate in the proceedings.

The relevant provisions regarding the service of summons are primarily found in

Section 27 and Order V of the CPC.

Summons to Defendants

1990 (vol.1) SCC 608.

S. 27 and O.V R.1 of the Code provides that where a suit has been duly

instituted, a summons may be issued to the defendant to appear and answer the claim

and may be served in manner prescribed on such day not beyond thirty days from the

date of institution of the suit.

Proviso I to O.V R.1 (1) states that no such summons shall be issued when a

defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim.

Proviso II to O.V R.1 (1) states that where the defendant fails to file the written

statement within the said period of thirty days, he shall be allowed to file the same on

such other days as may be specified by the Court, for reasons to be recorded in writing,

but which shall not be later than ninety days from the date of service of summons.

A defendant to whom a summons has been issued may appear in person or by a

pleader.

If the court sees reason to require the personal appearance of the defendant,

the summons shall order him to appear in person in court on the day therein specified.

If the court sees reason to require the personal appearance of the plaintiff on the same

day, it shall make an order for such appearance.

In Purushothaman Nair v. Venugopalan

, it was held that notice issued

for leave to sue in forma pauperis cannot be taken as a summons. Since summons

should be issued to the defendant after the suit is formally registered.

In Razaq Trading Co. v. J.K. Industries Ltd.

, it was held that court

cannot order service of summons under Order 9 Rule 3 in addition to and

simultaneously to the service of summons under Rule 9(1) of Order 5.

In Gangadaran v. Narayanan

, it was held that issue of notice to a guardian of

the minor defendant’s and summons may be simultaneous.

Service of Summons where Defendant Resides in Another State

O.V, R.1.

O.V ,R.1 (2).

O.V, R.3 (1).

O.V, R.3 (2).

1980 KLT 451; ILR 1980 (2) Ker.331; 1980 KLN 301.

2003 (1) KLT 703; 2003 (1) KLJ 561; ILR 2003 (2) Ker.234; AIR 2003 Ker.171.

AIR 1959 Ker.169; ILR 1958 Ker.1064.

S. 28 (1) of the Code provides that 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.

S. 28 (2) of the Code provides that 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 issue together with the record (if any) of its

proceedings with regard thereto.

S. 28 (3) of the Code provides that where the language of the summons sent for

service in another State is different from the language of the record referred to in sub-

section (2), a translation, of the record,-

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or English,

shall also be sent together with the record sent under that sub-section.

Service of Foreign Summonses

S. 29 of the Code provides that 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

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.

Power to Order Discovery and the Like

S. 30 of the Code provides that subject to such conditions and limitations as may

be prescribed, the Court may, at any time either of its own motion or on the application

of any party,-

(a) make such orders as may be necessary or reasonable in all matters relating to the

delivery and answering of interrogatories, the admission of documents and facts, and

the discovery, inspection, production, impounding and return of documents or other

material objects producible as evidence;

(b) issue summonses to persons whose attendance is required either to give evidence or to

produce documents or such other objects as aforesaid;

Summons to Witness

S. 31 of the Code provides that the provisions in sections 27, 28 and 29 shall

apply to summonses to give evidence or to produce documents or other material

objects.

Penalty for Default

S. 32 of the Code provides that 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;

rupees;

(d) order him to furnish security for his appearance and in

default commit him to the civil prison.

Delivery of Summons by Court

By virtue of O.V, R.9 (1), where the defendant or his agent resides within the

jurisdiction of the court, the summons shall be delivered or sent either to the proper

officer to be served by him or one of his subordinates or to approved courier service.

By virtue of R.9 (2), the services of summons may be done by delivering or

transmitting a copy by registered post acknowledgement due, or by speed post or by

approved courier services.

Proviso to the above rule states that the service of summons under this rule shall

be made at expenses of the plaintiff.

According to R.9 (3), the services of summons may be made by delivering or

transmitting a copy thereof by registered post acknowledgement due, addressed to the

defendant or his agent empowered to accept the service or by speed post or by such

courier services as are approved by the High Court or by the Court referred to in sub-

rule (1) or by any other means of transmission of documents (including fax message

or electronic mail service) provided by the rules made by the High Court.

Proviso to R.9 (3) makes it clear that the service of summons under this sub-rule

shall be made at the expenses of the plaintiff.

In Daveed Ashirwadam v. Krishna Pillai Govinda Pillai

, it was held that when

a summons is issued under Rule 9(3) and is returned with the endorsement by the

postman that it was refused, there is no due service of summons.

In Padmanabhan Gopalan v. Raman Sekharan

, it was held that refusal to

accept postal notice was held to be not a due service and it was further held ex parte

decree cannot be passed on that ground.

In Jose v. Prabhakaran

, it was held that the service by registered post can be

issued only in addition to and simultaneous with the issue of summons in the manner

provided in the Rules.

In Razaq Trading Co. v. J.K. Industries Ltd

, it was held that court cannot order

services summons under R.9 (3) also in addition to and simultaneously to the service

of summons under R.9 (1) of O.5.

By virtue of R.9 (5), when an acknowledgment or any other receipt to be signed

by the defendant or his agent or postal article containing the summons is received back

by the court with an endorsement made by postal employee or an authorized person by

1970 KLT 907; 1971 KLJ 73; 1971 KLR 119.

1964 KLT 924; 1964 KLJ 1238; 1964 (2) KLR 137.

ILR 1991 (2) Ker.588.

2003 (1) KLT 743; 2003 (1) KLJ 561; ILR 2003 (2) Ker.234; AIR 2003 Ker.171.

a courier service to the effect that the defendant had refused to take delivery or had

refused to accept the summons when tendered or transmitted to him, the court issuing

the summons shall declare that the summons had been duly served to defendant.

Summons Given to the Plaintiff for Service

By virtue of O.V R.9A (1), the court may in addition to the service of summons

under Rule 9, on the application of the plaintiff permit such plaintiff to effect service

of such summons on such defendant and shall, in such a case, deliver the summons to

such plaintiff for service.

By virtue of R.9A (2), the service of such summons shall be effected by or on

behalf of such plaintiff by delivering or tendering to the defendant personally a copy

thereof.

By virtue of R.9A (4), if such summons when tendered, is refused or if the

person served refuses to sign an acknowledgement of service or for any reason such

summons cannot be served personally, the court shall on the application of the party,

re-issue such summons to be served by the court in the same manner as a summons to

a defendant.

Service on Agent by whom Defendant Carries on Business

By virtue of R.13, in suit relating to any business or work against a person who

does not reside within the local limits of the jurisdiction of the court from which the

summons is issued, service on any manager or agent who, at the time of service,

personally carries on such business or work for such person within such limits shall be

deemed good service.

Service on Agents in Charge of Property in Suits for Immovable Property

By virtue of R.14, where in a suit relating to immovable property service cannot

be made on the defendant in person and the defendant has no agent empowered to

accept the service it may be made on any agent of the defendant in charge of the

property.

Where Service may be Made on an Adult Member of the Defendant’s Family

By virtue of R.15, where in any suit defendant is absent from his residence when

the service of summons is sought to effected on him at his residence and there is no

likelihood of his being found at the residence within a reasonable time and he has no

agent empowered to accept service of the summons service may be made on any adult

member of the family, whether male or female who is residing with him.

A servant is not a member of the family within the meaning of this rule.

In Krishna Pillai v. Shahul Hameed

, it was held that under Order 5 Rule 15 it

is only when the defendant cannot be found and has no agent empowered to accept the

service of summons on his behalf that service of summons may be made on any adult

member of the family of the defendant who is residing with him.

Persons Served to Sign Acknowledgement

By virtue of R.16, the serving officer shall require the signature of the person to

whom the copy is so delivered or tendered to an acknowledgement of service endorsed

on the original summons.

Procedure When the Defendant Refuses to Accept the Service, or cannot be Found

By virtue of R.17, the serving officer shall 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, and shall then

return the original to the court from which it was issued with a report endorsed thereon

or annexed thereto stating that he has so affixed the copy and the circumstances under

which he did so.

Endorsement of Time and Manner of Service

By virtue of R.18, the serving officer shall, endorse or annex, or cause to be

endorsed or annexed, on or to the original summons, a return stating the time when

and the manner in which the summons was served, and the name and address of the

person identifying the person served, if any, and witnessing the delivery or tender of

the summons.

Examination of Serving Officer

R.19 provides that where a summons is returned under Rule17, the Court shall,

if the return under that rule has not been verified by the affidavit of the serving officer,

and may, if it has been so verified, examine the serving officer on oath, or cause him

Explanation to R.15.

1953 KLT 802; ILR 1953 TC 405; AIR1953 TC 494; 1954 (9) DLR TC 197.

to be so examined by another Court, touching his proceedings, and may make such

further enquiry in the matter as it thinks fit; and shall either declare that the summons

has been duly served or order such service as it thinks fit.

In State v. H.W. Mohammed

, it was held that if the process server does not file

the affidavit under Rule 19 is not complied with. The service is there by not in

accordance with law.

In Bakianathan Nadar Ponnayan Nadar v. Karthyaini Pillai Parvathy Pillai

it was held that a declaration regarding service of notice may be implied and such an

implied declaration is sufficient compliance with law.

In Krishna Iyer v. Bhavani Bai

, summons was returned with the endorsement

that it was refused. Court without knowledge of the same ordered fresh summons.

Meanwhile the return of summons was brought to the notice of the court. It was held

that the order of the court declaring the defendant ex parte is proper.

Substituted Service

By virtue of R.20 (1), where the court is satisfied that the defendant is keeping

out of the way for the purpose of avoiding service or for any other reason , the

summons cannot be served in the ordinary way, the court shall order the summons to

be served by affixing a copy in some conspicuous place in the court house, and upon

some conspicuous part in the house if any, in which the defendant is known to have

last resided or carried on business or personally worked for gain, or in such other

manner as the court thinks fit.

By virtue of R.20 (1A), where the court orders service by an advertisement in a

newspaper, the news paper shall be a daily newspaper circulating in the locality in

which the defendant is last known to have actually and voluntarily resided, carried on

business or personally worked for gain.

By virtue of R.20 (2), the effect of substituted service shall have the same effect

as if made on the defendant personally.

AIR 1972 SC 2538.

1956 KLT 327.

1959 KLR 1420.

By virtue of R.20 (3) where service is substituted by the order of the court, the

court shall fix such time for appearance of the defendant.

Service of Summons where Defendant Resides within Jurisdiction of Another Court

By virtue of R.21 a summons may be sent by the court either by one of its

officers or by post or by approved courier service, by fax message or by electronic mail

service or by any other means as may be provided by the rules made by the High Court

to any court having jurisdiction in the place where the defendant resides.

Duty of the Court to which Summons is Sent.

By virtue of R.23 the court to which the summons is sent, upon receipt of it,

shall proceed as if it had been issued by such court.

Service on Defendant in Prison

By virtue of R.24 the summons shall be delivered or sent to the officer in charge

of the prison for service on the defendant by post or by approved courier service or by

fax message or by electronic mail service or by any other means as may be provided

by the rules made by the High Court.

Service Where the Defendant Resides out of India and has no agent

By virtue of R.25 the summons shall be addressed to the defendant at the place

where he is residing and sent to him.

Substitution of Letter for Summons

By virtue of R.30 (1) the court may, notwithstanding anything hereinbefore

contained, substitute for a summons a letter signed by the Judge or such officer as he

may appoint in this behalf, where the defendant is, in the opinion of the court, of a rank

entitling him to such mark of consideration.

By virtue of R.30 (2) a letter substituted under sub-rule (1) shall contain all the

particulars required to be stated in a summons, and, subject to the provisions of sub-

rule (3), shall be treated in all respect as a summons.

By virtue of R.30 (3) a letter so substituted may be sent to the defendant by post

or by a special messenger selected by the court, or in any other manner which the court

thinks fit; and, where the defendant has an agent empowered to accept service, the

letter may be delivered or sent to such agent.

Service of summons is a fundamental step in ensuring due process and giving all

parties an opportunity to participate in the legal proceedings. It is essential for initiating

and conducting a fair and transparent legal process in civil cases. The specific rules

and procedures in Order V of the CPC provide clarity on how summons should be

issued and served to uphold the principles of justice and fairness in litigation.

TOPIC 11

WRITTEN STATEMENT (Order VIII Rule 1)

The "Written Statement" is a critical document in civil litigation under the Code of

Civil Procedure (CPC) in India. It is filed by the defendant in response to the plaintiff's

plaint, and it outlines the defendant's version of the facts, defenses, and counterclaims,

if any. The relevant provisions regarding the written statement can be found in Order

VIII, Rule 1 of the CPC.

When the summons is obtained by a defendant, he may appear in person or by

a pleader duly instructed. It shall thereafter be obligatory on the part of the defendant

to present a written statement of his defence. It is for the defendant to give the

foundation of his defence and this constituted what is called written statement.

Written Statement

Order VIII, Rule 1 of the CPC states:

"(1) The defendant shall, within thirty days from the date of service of summons on

him, present a written statement of his defence.

(2) Where the defendant fails to file the written statement within the said period of

thirty days, he shall be allowed to file the same on such other day, as may be specified

by the Court, for reasons to be recorded in writing, but which shall not be later than

ninety days from the date of service of summons.

(3) No particular form of pleading is prescribed, but the pleadings shall contain a

clear and concise statement of the material facts on which the party pleading relies for

his claim or defence, as the case may be, but not the evidence by which they are to be

proved."

The defendant shall, within thirty days from the date of service of summons on him,

present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the

said period of thirty days, he shall be allowed to file the same on such other day, as

may be specified by the court, for reasons to be recorded in writing, but which shall be

not later than ninety days from the date of service of summons.

In Smt. Rani Kusum v. Smt. Kanchan Devi and Ors

, the respondent filed

written statement beyond the prescribed period of 90 days. The trial court allowed the

same. It was found that the limitation prescribed for filing written statement was not

mandatory.

In Chandralatha Finance Ltd. v. Annamalai Finance Ltd

, it was held that the

right to lead evidence shifts to the defendant when the defendant admits the main

allegations made by the plaintiff.

In Krishnan Nair v. Sivasankaran Pillai

, it was held that after setting aside ex-

parte decree, the court can grant time to file written statement, even if it is not filed

within 90 days.

In Kanwar v.Baru Ram

, it was held that when the defence of a defendant is

struck off, the defendant is entitled to cross-examine the plaintiff’s witnesses and also

to address arguments, but he cannot be permitted to adduce evidence in support of his

case.

JT 2005 (7) SC 409.

1996 (1) KLT 517.

2005(1) KLT 324.

1990(2) KLT SN 39; (1990-2) 98 PLR 23.

Order VIII Rule 1 provides that the defendant shall at or before the first hearing

or within such time as the court may permit, which shall not be beyond 30 days from

the date of service of summons on the defendant, present a written statement of his

defence. The written statement consists the defence of the defendant.

CPC (Amendment) Act, 2002 made a proviso that where a defendant fails to file

the written statement within 30 days, he shall be allowed to file the same on such other

day, as may be specified by the court, but which shall not be later than 90 days from

the date of service of summons.

In written statement, the defendant must raise by his pleading all matters which

show the suit not maintainable or that the transaction is either void or voidable in point

of law and all such grounds of defence.

Rule 3 states that the defendant must deny specifically with each allegation of

fact of which he does not admit the truth and therefore it shall not be sufficient to deny

generally the grounds alleged by the plaintiff.

In Abubaker and another v. Abdul Rahim Beary and others

, it was held that

O.VIII of C.P.C. requires denial of allegation in the plaint is to be specific.

In Jahuri v. Dwaraka

, it was held that if the plaint assertion of a fact is not

specifically denied or by necessary implication or stated to be not admitted in written

statement and instead pleaded that the defendant had no knowledge of the fact it shall

be taken to be admitted.

In Kishorilal v, Chatibai

, it was held that a case not pleaded in written

statement cannot be set up.

In K.A. Louise and Others v. A.A Augustine

, it was held that when there is no

specific denial in the written statement regarding the plaint –averments, there is no

duty cast upon the plaintiff to adduce evidence regarding the matters which are not

specifically denied.

1960 (1) KLR 452.

AIR 1967 SC 109, 111.

AIR 1959 SC 504.

2004 (3) KLT 71; 2004 (2) KLJ 361; ILR 2004 (3) Ker.539.

In Mahendra v. Sushila

, it was held that a matrimonial cause cannot be decided

on admission.

In Badat and Co. v. East India Trading Co

, it was held that court can ask a

party to prove a particular fact even in case of implied admission.

In Sheik Abram Sahib v. Kesava Kammath

, it was held that effect of suit by

endorsee of a promissory note in favour of a company for balance amount due is not

hit by S.56 of Negotiable Instruments Act.

If the defendant relies on any document, whether or not in his possession or

power, he must enter such documents in a list.

Then he must-

a. if a written statement is presented, annex the list to the written statement;

b. if the written statement is not presented, present the list to the court at the first

hearing of the suit.

In Radhamony v. Jagannath, the Orissa H.C. held that, even without filing the

written statement, the defendant can participate in the remaining proceedings and can

contest.

If any such document which ought to be entered in such a list is not so entered

it cannot be used in evidence by the defendant at the time of hearing of the suit without

the leave of the court.

Where the court grants leave it shall record its reasons for doing so. No such

leave shall be granted unless good cause is shown to the satisfaction of the court for

the non-entry of the document in the list.

Where the defendant has not filed a pleading, it shall be lawful for the court to

pronounce judgment on the basis of the facts contained in the plaint, except as against

a person under a disability. But the Court may in its discretion, require any such fact

of the plaint to be proved.

AIR 1965 SC 364,371.

AIR 1964 SC 538.

1964 KLJ 437.

The written statement is a critical document in civil proceedings as it outlines the

defendant's side of the dispute, sets forth defenses, and plays a pivotal role in shaping

the course of the litigation. It is essential for maintaining fairness and transparency in

the legal process, ensuring that both parties have the opportunity to present their case.

TOPIC 12

SET-OFF (Order VIII, Rule 6)

"Set-off" is a legal mechanism provided under the Code of Civil Procedure (CPC) in

India, specifically governed by Order VIII, Rule 6. It allows a defendant to assert a

counterclaim or set-off against the plaintiff's claim. This means that if the defendant

has a claim against the plaintiff that arises out of the same transaction or set of

circumstances, they can seek to have their claim set off against the plaintiff's claim.

Where in a suit for the recovery of money, the defendant claims to set-off against

the plaintiff’s demands any ascertained sum of money, legally recoverable by him from

the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and

both parties fill the same character as they fill in the plaintiff’s suit, the defendant may,

at the first hearing of the suit, but not afterwards, unless permitted by the court, present

a written statement containing the particulars of the debt sought to be set-off.

Set-off is a defence of the defendant in a money suit. It wipes off or reduces the

plaintiff’s claim. It is a reciprocal acquittal of debt.

Order VIII, Rule 6 of the CPC states:

"(1) A defendant in a suit may, in addition to his right of pleading a set-off under rule

6A, set up, by way of counterclaim against the claims of the plaintiff, any right or claim

in respect of a cause of action accruing to the defendant against the plaintiff either

before or after the filing of the suit but before the defendant has delivered his defense

or before the time limited for delivering his defense has expired, whether such

counterclaim is in the nature of a claim for damages or not; such counterclaim shall

have the same effect as a cross-suit so as to enable the Court to pronounce a final

judgment in the same suit, both on the original claim and on the counterclaim.

(2) A counterclaim under this rule shall not affect the lien of the plaintiff's suit upon

the property or the pecuniary obligation in respect of which the suit is brought, but in

a proper case the Court may direct the plaintiff to give security for costs of the

counterclaim.

(3) Except with the leave of the Court, a defendant shall not plead a counterclaim if,

by reason of a previous suit or otherwise, he has obtained a decree against the plaintiff

in respect of the cause of action upon which the counterclaim is founded."

Illustration

1. A files a suit to recover Rs. 1,00,000/- from B. In this suit B claims the recovery of Rs.

20,000/- from A. This is set-off and so B need pay Rs. 80,000/- only.

2. A dies intestate and in debt to B. C takes out administration to A’s effects and B buys

part of the effects from C. In a suit for the purchase-money by C against B, the latter

cannot set-off the debt against the price, for C fills two different characters, one as the

vendor to B, in which he sues B, and the other as representative to B.

3. A and B sue C for Rs. 15,000/-.C cannot set-off a debt due to him by A alone.

4. A sues B and C for Rs. 10,000/-.B cannot set-off a debt due to him alone by A.

5. A owes the partnership firm of B and C Rs. 1,00,000/-. B dies leaving C surviving. A

sues C for A debt of Rs. 1,50,000/- due in his separate character. C may set-off the

debt of Rs. 1,00,000.

In order to raise the defence of Set-off, the following conditions must be

satisfied:

1. The suit must be a money suit.

2. The defendant must file a written statement.

3. The defendant must admit the plaintiffs claim.

4. The amount to be set-off must be ascertained sum of money

5. It must be legally recoverable.

6. It should not be beyond the pecuniary jurisdiction of the court.

7. The parties must fill in the same character.

8. If there is more than one plaintiff or more than one defendant, the amount to

be set-off must be recoverable by all the defendants from the plaintiffs.

Order VIII Rule 6(2) provides the effect of set-off. The written statement shall

have the same effect as a plaint in a cross suit, so as to enable the court to pronounce

a final judgment in respect both of original claim and of the set-off.

In Christopher v. State Bank of Travancore

, it was held that set-off and counter

claim must be in reference to the same cause of action.

In Pathrose Samuel v. K. Parameswaran

, it was held that while set off is a

defence counter claim is a cross-suit. Counter claim need not be an action of the same

nature as the original action or even analogous thereto. Counter claim is not confined

to a suit for money only.

A set-off may be (a) Legal or (b) Equittable.

(a) Legal Set-off

In a legal set-off it is necessary that the amount claimed must be ascertained.

Plea of legal set-off can be raised as of right and the court is bound to entertain and

adjudicate upon it. It is a ground of defence as a shield and not as a sword. The

defendant must pay court fee while claiming a set-off. Where set-off is not pleaded in

written statement, court cannot reduce the amount claimed by the plaintiff. A barred

debt is not legally recoverable and therefore cannot be set-off.

(b) Equitable Set-Off

The equitable set-off cannot be claimed as a right. The court has discretion to

adjudicate upon a plea of equitable set-off in the same suit or to order it to be dealt

within a separate suit. Equitable set-off arises when both the claims of the plaintiff and

the defendant arise out of the same transaction.

ILR 1998 (3) Ker.310.

AIR 1988 Ker.163.

For e.g. Suppose the plaintiff agrees to deliver 100 bales of cotton to the

defendant but he delivers only 25 bales of cotton to the defendant. The defendant is

not paying the price of those 25 bales of cotton. Now, if the plaintiff files a suit for the

price of the goods delivered, the defendant can, by way of equitable set-off, claim

damages for non-delivery of the remaining goods ordered by him but not supplied by

the plaintiff. Similarly, if an employee files a suit against his employer for arrears of

salary the employer can, by way of equitable set-off, claim damages arising out of the

employee’s misconduct in performing his duties. An equitable set-off can be pleaded

in respect of an unascertained sum. Equitable set-off cannot be pleaded where the sum

is ascertained. The claim of equitable set-off cannot be granted if no such plea has been

raised in the written statement. The defendant claiming set-off either legally or

equitable has to pay the court fee on the full amount claimed. If the party does not pay

the same, the court is justified in ignoring the plea.

Distinction between Legal and Equitable Set-off

1. Legal set-off must be an ascertained sum of money; but equitable set-off must be

allowed in respect of an unascertained sum of money.

2. In a legal set-off a court is bound to entertain and adjudicate upon the plea whereas in

an equitable set-off the court is not bound to accept it. The court has the discretion to

refuse to take notice to the equitable set-off if the investigation into the equitable claim

is likely to result in delay.

3. In a legal set-off, it is not necessary that the cross demands arise out of the same

transaction unlike in an equitable set-off.

4. In a legal set-off, the amount claimed to be set-off must be legally recoverable and not

barred by limitation at the date of the suit. But a claim by way of an equitable set-off

may be legally recoverable. In both court fee is necessary.

Set-off and counterclaims play a crucial role in the efficient resolution of disputes in

civil litigation. They enable all relevant claims and defenses to be considered in a

single lawsuit, reducing the need for multiple legal actions arising from the same set

of circumstances. This contributes to the expeditious and comprehensive resolution of

disputes in the Indian legal system.

TOPIC 13

COUNTER CLAIM (Order VIII, Rule 6A)

"Counterclaim" is a legal mechanism provided under the Code of Civil

Procedure (CPC) in India, specifically governed by Order VIII, Rule 6A. This rule

allows a defendant to assert a counterclaim against the plaintiff's claim, provided that

certain conditions are met. Counterclaims enable the defendant to seek relief against

the plaintiff within the same lawsuit, rather than initiating a separate legal action.

Order VIII, Rule 6A of the CPC states:

"(1) A defendant in a suit may, at or before the first hearing or at or before being

required by the Court to file his written statement, present a counterclaim in respect of

the cause of action in the suit.

(2) Such counterclaim shall have the same effect as a cross-suit, so as to enable the

Court to pronounce a final judgment in the same suit, both on the original claim and

on the counterclaim.

(3) The plaintiff shall be at liberty to file a written statement in answer to the

counterclaim of the defendant within such period as may be fixed by the Court."

A defendant in a suit may, in addition to his right of pleading a set-off under

Rule 6, by way of counter claim against the claim of the plaintiff, any right or claim in

respect of a cause of action accruing to the defendant against the plaintiff either before

or after the filing of the suit but before the defendant has delivered his defence or before

the time for delivering has expired, whether such counter claim is in the nature of a

claim for damages or not. Provided that such counter claims shall not exceed the

pecuniary limits of the jurisdiction of the court.

A counter claim is not merely a defence to the plaintiff’s action, but is

substantially a cross action. The court has got the power to treat the counter claim in

the plaint submitted by the defendant as a cross suit and hear the two parties

. A

counter claim as such affords no direct defence to a plaintiff’s claim, but is a weapon

as defence. A counter claim is treated as a plaint and the plaintiff can file written

statement to the counter claim.

A counter claim need not arise out of the same transaction. A counter claim

enables the defendant to enforce a claim against the plaintiff. In the counter claim if

the claim is barred on the date of the written statement, the court shall not allow it.

R. 6A (3) provides that the plaintiff shall file a written statement in answer to

the counter-claim of the defendant within such period as may be fixed by the court.

Normally counter claim is also considered as a defence of the defendant in a

money suit. If the claim of the defendant is below or upto the plaintiff’s claim, then

the defendant can raise the plea of set-off and if the claim of the defendant is greater

than the claim of the plaintiff, the defendant can claim by way of counter claim. In

both set-off and counter claim, the defendant must pay the court fee.

Distinction between Set-off and Counter Claim

1) Set-off must be for an ascertained sum or must arise out of the same transaction

(equitable set-off) as the plaintiff claim; a counter claim however, need not arise from

the same transaction.

2) Set-off is a good ground of defence and it should be pleaded in the written

statement; counter claim does not afford any defence to the plaintiff’s claim. It is said

that a set-off is a shield and not a sword.

Rule 6A (2).

3) In the case of set-off, the plaintiff in order to establish his plea of limitation has to

prove that the set-off is barred when the plaintiff commence his action. In a counter

claim, the plaintiff has to prove that it is barred when it is pleaded.

4) In a set-off the amount cannot exceed the plaintiff’s claim where as in a counter

claim, it may exceed the plaintiff’s claim.

In Christopher v. State Bank of Travancore

, it was held that set-off and counter

claim must be in reference to the same cause of action.

In Pathrose Samuel v. K. Parameswaran

, it was held that while set off is a

defence counter claim is a cross-suit. Counter claim need not be an action of the same

nature as the original action or even analogous thereto. Counter claim is not confined

to a suit for money only.

Counterclaims are a valuable tool in civil litigation as they promote efficiency by

allowing all relevant claims and counterclaims to be adjudicated within a single

lawsuit. This reduces the need for separate legal actions and contributes to the

comprehensive resolution of disputes. However, it's important to note that the

counterclaim must be based on the same subject matter as the plaintiff's claim, and it

should be presented within the specified timeframes outlined in Order VIII, Rule 6A

of the CPC.

TOPIC 14

PLEADINGS (Order VI)

"Pleadings" in the context of the Code of Civil Procedure (CPC) in India refer

to the formal written statements filed by the parties involved in a civil lawsuit.

Pleadings are essential because they define the issues in dispute, set out the facts and

claims of each party, and guide the course of the legal proceedings. The CPC contains

ILR 1998 (3) Ker.310.

AIR 1988 Ker.163.

detailed provisions regarding pleadings in Order VI. Order VI of the Code deals with

the general principles regarding pleadings. It consists of 29 Rules.

Pleadings

By virtue of R.1 pleading shall mean plaint or written statement. Pleading should

state material facts and not evidence.

By virtue of R.2 (1), every pleading shall contain and contain only, a statement

in a concise form of the material facts on which the party pleading relies, but not the

evidence by which they are to be proved.

By virtue of R.2 (2), every pleading shall, when necessary, be divided into

paragraphs, numbered consecutively, each allegation contained in a separate

paragraph.

By virtue of R.2 (3), dates, sums and numbers shall be expressed in figures as

well as in words.

In Vinod Kumar Arora v. Surjit Kaur

, it was held that pleadings of parties

being foundation of the case, cannot be given up and set out a new and different case.

Departure

By virtue of R.7, no pleading shall except by way of amendment, raise any new

ground of claim or contain any allegation of fact inconsistent with the previous

pleadings of the party pleading the same.

Effect of Document to be Stated

By virtue of R.9, wherever the contents of any document are material, it shall be

sufficient to state the effect thereof as briefly as possible in any pleading.

Malice, Knowledge, etc

By virtue of R.10, wherever it is material to allege malice, fraudulent intention,

knowledge or other condition of the mind of any person it shall be sufficient to allege

the same as a fact without setting out the circumstances from which the same is to be

inferred.

Presumptions of Law

AIR 1987 SC 2179.

By virtue of R.13, neither party need in any pleading allege any matter of fact

which the law presumes in his favour or so as to which the burden of proof lies upon

the other side unless the same has first been specifically denied.

Pleading to be Signed

By virtue of R.14, every pleading shall be signed by the party and his pleader (if

any).

Address for the service to notice

According to R.14A (1), every pleading, filed by a party, shall be accompanied

by a statement in the prescribed form, signed as provided in rule 14, regarding the

address of the party.

According to R.14A (2), such address may, from time to time, be changed in

lodging in Court a form duly filled up and stating the new address of the party and

accompanied by a verified petition.

According to R.14A (3), the address furnished in the statement made under sub-

rule (1)shall be called the “registered address” of the party, and shall, until duly

changed as aforesaid, be deemed to be the address of the party for the purpose of

service of all processes in the suit or in any appeal from any decree or order therein

made and for the purpose of execution, and shall hold good, subject as aforesaid, for a

period of two years after the final determination of the cause or matter.

According to R.14A (4), service of any process may be effected upon a party at

his registered address in all respects as though such party resided thereat.

According to R.14A (5), where the registered address of a party is discovered

by the Court to incomplete, false or fictitious, the court may, either on its own motion,

or on the application of any party, order-

a. in the case where such registered address was furnished by a plaintiff,

stay on the suit, or

b in the case where such registered address was furnished by a defendant,

his defence be struck out and he be placed in the same position as if he had not put up

any defence.

According to R.14A (6), where a suit is stayed or a defence is struck out under

sub-rule (5), the plaintiff or, as the case may be, the defendant may, after furnishing

his true address, apply to the Court for an order to set aside the order to stay or, as the

case may be, the order striking out the defence.

If the court is satisfied that the party was prevented by any sufficient cause from

filing the true address at the proper time, it shall set aside the order of stay or order

striking out the defence, on such terms as to costs or otherwise as it thinks fit and shall

appoint a day for proceeding with the suit or defence, as the case may be.

However

nothing in this rule shall prevent the Court from directing the service of a process at

any other address, if, for any reason, it thinks fit to do so.

Verification of Pleadings

By virtue of R.15(1), save as otherwise provided by any law for the time being

in force, every pleading shall be verified at the foot by the party or by one of the parties

pleading or by some other person proved to the satisfaction of the court to be

acquainted with the facts of the case.

By virtue of R.15 (2), the person verifying shall specify, by reference to the

numbered paragraphs of the pleading, what he verifies of his own knowledge and what

he verifies upon information received and believed to be true.

By virtue of R.15 (3), the verification shall be signed by the person making it

and shall state the date on which and place at which it was signed.

By virtue of R.15 (4), the person verifying the pleading shall also furnish an

affidavit in support of his pleadings.

Striking out Pleadings

By virtue of R.16, the court may at any stage of the proceedings order to be

struck out or amended any matter in any pleading -

a) which may be unnecessary, scandalous, frivolous or vexatious, or

b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or

c) which is otherwise an abuse of the process of the court.

Amendment of Pleadings

O.VI ,R.14A (7).

O.VI ,R.14A (8).

By virtue of R.17, the court may at any stage of the proceedings allow either

party to alter or amend his pleadings in such manner and on such terms as may be just

or all such amendments shall be made for the purpose of determining the real question

in controversy between the parties.

Proviso to Rule 17 states that no application for amendment shall be allowed

after the trial has commenced unless the court is satisfied that in spite of due diligence,

the party could not have raised the matter before the commencement of the trial.

In Viswambar v. Laxminarayan

, the Supreme Court held that an amendment

of plaint though properly made cannot relate back to the date of filing of the suit and

cure the defect of limitation. It further ruled that where the amendment changed the

basis of the suit itself, the suit would be taken to have been filed on the date of the

amendment for the purposes of limitation.

In Dondapati Narayana Reddy v. Duggi Reddy Venkatanarayana Reddy

, the

Supreme Court held that if the plaintiff is given permission to lead additional evidence

while the suit is still pending, amendment of written statement should also be permitted

except in the following cases:-

(i) It is established that the amendment would be unjust and would result in prejudice

against the opposite side as could not be compensated by costs or would deprive him

of a right accrued due to lapse of time.

(ii) The prayer made has become time barred.

Failure to Amend after Order

By virtue of R.18, if a party who has obtained an order for leave to amend, does

not amend accordingly within the time specified for that purpose in the order or if no

time is specified, then within fourteen days from the date of the order, he shall not be

permitted to amend after the expiration of the time limited in the order or if no time is

limited then after the expiry of fourteen days unless the time is extended by the court.

In Janaki Amma Gomathi Amma v. Janaki Amma Meenakshi Amma and

Others

, it was held that if the amendment is allowed by the Trial Court the request

AIR 2001 SC 2007.

2001 (8) SCC 115.

1993 (2) KLJ 948.

for extension of time has also to be made to that Court and that Court alone has power

to permit the plaintiff to carry out the amendment in the original plaint.

Pleadings play a fundamental role in civil litigation by defining the scope of the

dispute, ensuring transparency, and guiding the court and the parties through the legal

process. Properly drafted pleadings are crucial for presenting a party's case effectively

and for maintaining fairness and justice in the adjudication of civil disputes under the

CPC.

TOPIC 15

APPEARANCE AND NON-APPEARANCE

OF PARTIES (Order IX)

Order IX of the Code of Civil Procedure (CPC) in India deals with the appearance and

non-appearance of parties in a civil lawsuit. It outlines the consequences of both

appearance and non-appearance and the procedures for setting aside an order of

dismissal in case of non-appearance.

Appearance of Parties and Consequence of Non-appearance

By virtue of R.1, parties shall appear on day fixed in summons for defendant to

appear and answer.

In New India Assurance Co. Ltd. v. Srinivasan

, it was held that the provisions

of Order 9 have not been made applicable to the proceedings under the Consumer

Protection Act.

In Beepathumma v. Khader Mooppan

, it was held that an order dismissing the

suit after the passing of preliminary decree is one passed without jurisdiction and is

therefore a nullity. Even if the order is not a nullity the Court is competent to set it

aside in the exercise of its inherent jurisdiction.

2000 (2) KLT 462: 2000 (3) SCC 242.

1956 KLT 75: AIR 1957 TC 197.

By virtue of R.2, the suit may be dismissed where summons not served in

consequence of plaintiff’s failure to pay costs or failure to present copies of the plaint

as required by Order VII Rule 9.

Proviso to R2 states that no such order shall be made, if notwithstanding such

failure, the defendant appears in person or by agent when he is allowed to appear by

agent on the day fixed for him to appear and answer.

In Dr Jess Raphael v. Joseph and Others

, it was held that unless the parties to

the case are informed by his Advocate or Clerk that the court has posted the case for

issuing summons, the parties cannot be blamed for not taking steps.

In Gopidas v. Sankaran

, application for restoration-dismissal of suit before

summons was served on the defendant comes under Rule 2 or Rule 5 and not under

Rule 8. It was held that when an application for restoration is rejected no appeal lies.

By virtue of R.3, where neither party appears, suit may be dismissed.

In Sarala v. Principal Munsiff

, suit was dismissed for non-appearance of

plaintiff. It was held that no decree is contemplated to be drawn up. It is not necessary

to produce copy of the decree along with application for setting aside order of

dismissal.

In Firoz Khan v. Bibi Hasina Khanam

, application was filed to set aside ex-

parte decree on ground of non service of summons. It was held that the applicant must

disclose the source of knowledge about passing of the ex-parte decree.

In Ratnamma v. Devasia

, application of adjournment by both parties was

rejected. Suit was dismissed on merits. It was held that a restoration application will

lie.

Plaintiff may Bring Fresh Suit or Court may Restore Suit to File

2000 (2) KLJ 684.

1961 (2) KLR 45.

1995 (2) KLT 560.

AIR 1994 Pat 103.

1953 KLT 326: AIR 1953 TC 387: 8 DLR TC 192.

By virtue of R.4, where a suit is dismissed under Rule 2 or Rule 3, the plaintiff

may (subject to law of limitation) bring a fresh suit or apply for an order to set aside

the dismissal, if he satisfies the court that there was sufficient cause for such failure

referred to in Rule 2 & 3.

In Healy v. State of Uttar Pradesh

100

, it was held that under Order 9 Rule 4 CPC

read with S.141, it is open to the petitioner to apply for an order to set the dismissal

aside and if he satisfies the Court that there was sufficient cause for his not paying the

batta required within the time fixed for the issue of notice, the Court has power to make

an order setting aside the dismissal.

In Mohanan v. Nalinakshan

101

, an application was filed under Order 9 Rule 4

for restoration of suit. It was held that it is not maintainable since plaint was rejected

under Order 7 Rule 11. Order 9 Rule 4 would apply only when suit is dismissed under

Order 9 Rule 2 or Order 9 Rule 3.

In Jamal v. Motor Accidents Claims Tribunal

102

, the petition was allowed on a

condition to deposit cost. It was held that instead of deposit, payment to the counsel is

enough.

In Anandavally Amma v. Fedral Bank Ltd

103

, it was held that when a suit is

dismissed for default, the plaintiff has to move the court that dismissed the suit under

Order 9 Rule 9. No appeal will lie since dismissal for default is not a decree and no

revision will lie since the plaintiff has a substantive right by way of an application

under Order 9 Rule 9.

By virtue of R.5, where, after summons has been issued to the defendant and

returned unserved, the plaintiff fails, for a period of seven days from the date of return

to apply for the issue of fresh summons, the court shall pass an order dismissing the

suit, unless the plaintiff has within the said period satisfies the court that-

(a) He has failed after using his best endeavours to discover the residence of the defendant;

100

1969 KLT SN 5.

101

2003 (3)KLT 532.

102

2001 (3) KLT 955.

103

2000 (2)KLT 242: 2000 (1)KLJ 747: ILR 2000 (2) Ker. 589.

(b) Such defendant is avoiding service of process; or

Procedure where Only Plaintiff Appears

By virtue of R.6 (1), where the plaintiff appears and the defendant does not

appear-

(a) When the summons duly served—

If it is proved that the summons was duly served, the court may make an

order that the suit be heard ex-parte;

(b) When summons not duly served—

If it is not proved that the summons was duly served, the court shall

direct a second summons to be issued and served on the defendant;

If it is proved that summons was served, but not in sufficient time to enable him to

appear and answer on the day fixed in the summons, the court shall postpone the

hearing of the suit to a future day to be fixed by the court, and shall direct notice of

such day to be given to the defendant.

By virtue of R.6 (2), where it is owing to the plaintiff’s default that the summons

was not duly served, or was not served in sufficient time, the court shall order the

plaintiff to pay the costs.

In Haridas v. Madhavi Amma

104

, it was held that the court owes a duty to weigh

the merits of the case and consider whether there is a case for granting a decree even

when there is no contest by non-appearance of the defendants.

In Parukutty Amma v. Reghunadhan

105

, the defendant though appeared in the

court below, did not file a written statement. Suit decreed ex parte. Effect of the remand

order is to re-open the entire case for a de novo trial. It was held that the defendant is

104

1987 (2) KLT 701; AIR 1988 Ker.304; 1987 KLN 514.

105

2003 (3) KLT 672.

entitled to file a written statement and contest the matter as if he had appeared on the

date of first posting.

In Kochu Velu v. Varkey

106

, it was held that even though the defendant is ex

parte, the duty is still there on the part of the plaintiffs to prove a prima facie case in

support of their claim. It is the duty of the court to consider the interest of the absent

party and not to pass a decree except on proof by the plaintiff that he is entitled to that

decree.

Procedure where the Defendant Appears on the Day of Adjourned Hearing and

Assigns for Previous Non- Appearance

By virtue of R.7, where the court has adjourned the hearing of the suit ex-parte,

and the defendant appears at or before such hearing, and assigns good cause for his

previous non-appearance, he may be heard.

Procedure where Defendant Only Appears

By virtue of R.8, where the defendant appears and the plaintiff does not appear

when the suit is called for hearing, the suit shall be dismissed unless the defendant

admits the claim, or part thereof, in which case the court shall pass a decree against the

defendant upon such admission.

Decree against the Plaintiff by Default Bars Fresh Suit

By virtue of R.9 (1), where a suit is partly or wholly dismissed under Rule 8, the

plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of

action. But he may apply for an order to set the dismissal aside, if he satisfies the court

that there was sufficient cause for his non-appearance.

Remedies in case of Ex Parte Decree

An ex parte decree is a decree passed in the absence of the defendant. If the

plaintiff appears and the defendant does not appear when the suit is called on for

hearing and if the summons to the defendant is duly served, the court may hear the suit

ex parte and pass a decree against the defendant. Such a decree is neither null and void

106

1968 KLT 462.

nor inoperative but is merely voidable. So long as an ex parte decree is not annulled

by the court, it has all the force of a valid decree. The defendant has the following

remedies against an ex parte decree.

(a) He can apply to the court by which such decree is passed to set it aside:

107

(b) He can prefer an appeal against such decree:

108

109

(d) He can file a suit to set aside the ex parte decree on the ground of fraud.

A. Application to Set Aside Ex Parte Decree against Defendants

By virtue of R.13, if the defendant satisfies the court that the summons was not

duly served, or that he was prevented by any sufficient cause from appearing, the court

shall make an order setting aside the ex-parte decree.

Various decisions show that following are some of the grounds recognized as

sufficient cause for non-appearance.

(a) Bona fide mistake regarding the date of hearing;

(b) Counsel not informing party reports to the Court that he has no instructions and ex-

parte is passed

110

;

(d) Death of near relative;

(e) When ex-parte decrees passed against minor defendant on account of negligence of

guardian ad litem, minor can apply to set aside the decree

111

(f) Imprisonment of party;

(g) Inability on account of illness or accident;

(h) Ex-parte decree obtained by fraud of the opposite party

112

;

(i) Failure to file written statement on the day fixed for the same

113

(j) Mistake of pleader in noting wrong date in diary;

107

O. IX, R.13.

108

S.96 (2).

109

O.47, R.1.

110

Jaya Lakshmi v. Avara, 2003 (2) KLJ 377.

111

Nalini v. Govinda Menon, ILR 1955 TC 325.

112

Joseph v. Karmali, ILR 1995 (2) Ker.842.

113

Syamala Thankachi v. Kamalakshi Basurange,1993 (1) KLJ 176.

(k) Final decree passed without due summons or without due service of notice

114

;

(l) Illness of the pleader.

The application to set aside ex parte decree should be filed within 30 days from

the date of the decree, or where the summons is not duly served, within 30 days from

the date of his knowledge of the decree. An ex parte decree cannot be set aside without

notice to the opposite party.

Where the defendant has preferred an appeal against the ex parte decree and the

appeal has been disposed of on any ground other than the ground that the defendant

(appellant) has withdrawn the appeal, no application shall lie under R. 13 of setting

aside that ex parte decree.

No court shall set aside a decree passed ex-parte merely on the ground that there

has been irregularity in the service of summons, if it is satisfied that the defendant had

notice of the date of hearing and had sufficient time to appear.

115

After the setting aside of an ex parte decree the suit is to be restored, and the

court should proceed to decide the suit as it stood before the decree. In such cases the

trial should commence denovo and the evidence that had been recorded in the ex parte

proceedings should not be taken into account.

Though an appeal lies against an order rejecting an application (in a case open

to appeal to set aside an ex parte decree

116

) no appeal, lies against an order setting aside

an ex parte decree. But, a revision petition can be filed before the High Court under

Section 115 of the Code against an order setting aside an ex parte decree.

B. Appeal against Ex Parte Decree

An ex parte decree is a decree under Section 2 (2) of the Code and, therefore, an

aggrieved party can also prefer an appeal under Section 96 (2) of CPC against the ex

parte decree.

C. Review

114

C.K Thomas v. Bhavani Amma, 19969 KLJ 731.

115

Proviso II to R.13.

116

O.43 R.1 (d).

An aggrieved party can also file an application under a Section 114 Order 47

Rule 1 for review of the ex parte decree in the court which passed the ex parte decree.

Such a review application is to be filed before filing an appeal against the ex parte

decree.

D. Suit

Generally a suit to set aside an ex parte decree is not maintainable. However if

ex parte decree is alleged to have been obtained by the fraud of the plaintiff, the

defendant can file regular suit to set aside such decree. In such suits, the burden of

proof is on the party who alleges that the ex parte decree passed against him was

fraudulent.

In Sushil v. Gurpreet

117

, it was held that the second proviso added by the 1976

amendment, provides that no court shall set aside a decree passed exparte merely on

the ground that there has been a irregularity in the service of summons, if it is satisfied

that the defendant had notice of the date of hearing and had sufficient time to appear.

In Devaky v. Sukumaran Nair

118

, it was held that when the decree is confirmed

in appeal, the proper forum for filing application, under Order 9 Rule13, is the

appellate court with whose decree, the decree of the trial court got merged, irrespective

of the fact that it was confirmed, varied or reversed by the decree of the appellate court.

In X v. Y

119

, it was held that an application under Order 9 Rule 13 is not barred

merely because the disposal purports to be on merits.

In Kattuvava v. Velayudhan Pillai

120

, it was held that when the defendant against

whom ex parte decree passed is not a party to the appeal by other defendants, he can

apply to the court which passed the exparte decree to set aside the exparte decree.

In Shyam Sunder Sharma v. Pannalal Jaiswal

121

, it was held that an appeal

which is dismissed for default or is barred by limitation because of the dismissal of the

117

2002 (5) SCC 377.

118

1981 KLT SN 64.

119

1979 KLT SN 84.

120

1955 KLT 58.

121

2005(1) KLT 198.

application for condoning the delay in filing the same cannot be treated on par with

non filing of an appeal or the withdrawal of an appeal.

In Kewal Ram v. Ramlubhai

122

, it was held that an application under Order 9

Rule 13 for setting aside an ex parte decree by persons upon whom summons of Trial

Court and notice of Appellate Court were not served shall lie although the ex parte

decree was confirmed in appeal.

In Peelikunju v. Sreedharan

123

, when case was posted for evidence, application

for adjournment was dismissed and defendants were set ex-parte. It was held that the

disposal is under Order 17 Rule 2 and therefore decree could be set aside under Order

9 Rule 13.

In Shanmughan v. Federal Bank

124

, it was held that though the right to proceed

to decide on merit in cases of default of appearance of parties has been taken out of

Order17 Rule 3, it has been conferred in restricted cases by the explanation to Order

17 Rule 2. The defendants were justified in filing the application under Order 9 Rule

13.

In Sounthamma George v. Kunnirickal Chitty Fund

125

, it was held that an

application under Order 9 Rule 13 is not barred merely because the disposal purports

to be on the merits. If it falls under Order 17 Rule 3 there is a bar to an application

under Order 9 Rule 13 of the Code.

Order IX of the CPC is designed to ensure that parties in a civil lawsuit participate in

the proceedings as required by law. It allows for the setting aside of orders or decrees

in cases of non-appearance or non-prosecution when parties can demonstrate sufficient

cause for their absence. This balances the interests of justice while promoting the

efficient and timely resolution of disputes.

122

AIR 1987 SC 1304.

123

1985 KLT SN 87.

124

1987 (1) KLT SN 39.

125

1980 KLT 464.

TOPIC 16

SETTLEMENT OF ISSUES (Order XIV)

Order XIV of the Code of Civil Procedure (CPC) in India deals with the

settlement of issues in a civil lawsuit. Issues are the key questions or points of

dispute that need to be determined by the court during the trial. The procedure

outlined in Order XIV is essential for clarifying and narrowing down the matters that

the court needs to decide.

ISSUES

Framing of Issues

By virtue of R.1 (1), issues arise when a material preposition of fact or law is

affirmed by one party and denied by the other.

By virtue of R. 1(4), issues are of two kinds;

(a) issues of fact,

(b) issues of law.

By virtue of R.1(5), at the first hearing of the suit the court shall, after reading

the plaint and the written statement and after examination under Order X Rule2 and

after hearing the parties or their pleaders, ascertain the issues.

By virtue of Rule 1(6), the court need not frame and record issues where the

defendant at the first hearing of the suit makes no defence.

Court to Pronounce Judgment on all Issues

By virtue of Rule 2 (1), the court shall pronounce judgment on all issues.

By virtue of Rule 2 (2), where issues of both law and fact arise in the same suit,

and the court is of the opinion that the case or any part thereof may be disposed of on

an issue of law only, it may try that issue only if that issue relates to;

(a) jurisdiction of the court,

(b) a bar to the suit created by any law for the time being in force.

In Manager, Bettiah Estate v. Sri Bhagawati Saran Singh

126

, it was held that

unless preliminary point is pleaded by the party it cannot be decided by the courts as a

preliminary issue.

In M/s Femina Handloom of India v. M/s M.R. Verma and Sons

127

, it was held

that issue regarding territorial jurisdiction of the court ought to be tried as preliminary

issue.

Materials from which Issues may be Framed

By virtue of Rule 3, the court may frame the issues from all or any of the

following materials.-

(a) allegations made by the parties, or by their representatives or by the pleaders

of such parties,

(b) allegations made in the pleadings or in answer to interrogatories delivered in the

suit;

Court may Examine Witnesses or Documents before Framing Issues

By virtue of Rule 4, where the court is of opinion that the issues cannot be

correctly framed without the examination of some person not before the court or with

out the inspection of some document not produced in the suit, the court may adjourn

the framing of the issues to a day not later than seven days and may subject to any law

for the time being in force compel the attendance of any person for the production of

any document.

Power to Amend and Strike out Issues

By virtue of Rule 5 (1), the court may at any time before the passing of a decree

amend the issues or frame additional issues.

By virtue of Rule 5 (2), the court may also, at any time before passing a decree

strike out any issue.

126

AIR1993 All 2.

127

AIR 1993 Ker 210.

Questions of Fact or Law may by Agreement be Stated in Form of Issues By virtue

of Rule 6, where the parties to the suit are agreed as to the question of fact or of law,

they may state the same in the form of an issue, and enter in to an agreement in writing

that:

(a) a sum of money specified in the agreement or to be ascertained by the court,

shall be paid by one of the parties to the other of them, or that one of them be declared

entitled to some right or subject some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be

delivered by one of the parties to the other of them or as that other may direct; or

specified in the agreement and relating to the matter in dispute.

By virtue of Rule 7 Court, if satisfied that agreement was executed in good faith

may pronounce judgment-where the court is satisfied,-

(a) that the agreement was duly executed by the parties;

(b) that they have a substantial interest in the decision of such question;

(d) it shall proceed to record and try the issue and shall, pronounce judgment

according to the terms of the agreement and a decree.

The settlement of issues under Order XIV is a critical step in the civil litigation process.

It helps streamline the trial by identifying the precise questions that need to be

addressed and ensures that both parties have a clear understanding of the matters in

dispute. It also facilitates the efficient presentation of evidence and arguments during

the trial, ultimately leading to a fair and timely resolution of the lawsuit.

TOPIC 17

HEARING OF THE SUIT AND

EXAMINATION OF WITNESSES (Order XVIII)

Order XVIII of the Code of Civil Procedure (CPC) in India governs the conduct of the

hearing of a suit and the examination of witnesses during the trial of civil cases. This

order outlines the procedures, responsibilities of the parties, and the role of the court

in managing the trial process.

Right to Begin

Rule 1 provides that the plaintiff has the right to begin unless the defendant

admits the facts alleged by the plaintiff and contends that either on point of law or on

some additional facts alleged by the defendant the plaintiff is not entitled to any of the

reliefs which he seeks, in which case the defendant has the right to begin.

Statement and Production of Evidence

Rule 2 (1) provides that on the day fixed for the hearing of the suit or on any

other day to which the hearing is adjourned, the party having the right to begin shall

state his case and produce his evidence in support of the issues.

Rule 2 (2) provides that the other party shall then state his case and produce his

evidence. Rule 2 (3) provides that the party beginning may then reply generally.

Rule 2(3A) provides that any party may address oral arguments in a case, and

shall before he concludes the oral arguments submit if the court permits concisely

written arguments which shall form part of the record. Rule 2 (3B) provides

that a copy of the written arguments shall be furnished to the opposite party

simultaneously. However no adjournment shall be granted for filing the written

arguments, except for some reasons recorded in writing.

128

Court shall fix time limits

for oral arguments for both the parties.

129

Evidence where there are Several Issues

Rule 3 provides that where there are several issues, the burden of proving some

of which lies on the other party, the party beginning may, at his option, either produce

his evidence on those issues or reserve it by way of answer to the evidence produced

by the other party; and in the latter case the party beginning may produce evidence on

those issues after the other party has produced all his evidence, and the other party may

then reply on the evidence so produced by the party beginning; but the party beginning

will then be entitled to reply generally on the whole case.

Recording of Evidence

128

R.2 (3C).

129

R.2 (3D).

Rule 4 (1) provides that in every case, the examination in chief of a witness shall

be on affidavit and copies thereof shall be supplied to the opposite party by the party

who calls him for evidence.

Proviso to this rule states that, where documents are filed and the parties rely

upon the documents, the proof and admissibility of such documents which are filed

along with the affidavit shall be subject to the orders of the court.

The evidence (cross examination and re examination) of the witness in

attendance, whose evidence (examination in chief) by affidavit has been furnished to

the court, shall be taken either by the court or by the commissioner appointed by it.

130

How Evidence shall be Taken in Appealable Cases

Rule 5 provides that in cases in which an appeal is allowed, the evidence of each

witness shall be,-

(a) taken down in the language of the Court,-

(i) in writing by, or in the presence and under the personal direction and superintendence

of, the Judge, or

(ii) from the dictation of the Judge directly on a typewriter; or

(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the

language of the Court in the presence of the Judge.

When Deposition to be Interpreted

Rule 6 provides that where the evidence is taken down in language different

from that in which it is given, and the witness does not understand the language in

which it is taken down, the evidence as taken down in writing shall be interpreted to

him in the language in which it is given.

Evidence under Section 138

Rule 7 provides that evidence taken down under Section 138 shall be in the form

prescribed by rule 5 and shall be read over and signed and, as occasion may require,

interpreted and corrected as if it were evidence taken down under that rule.

130

R.4 (2).

Memorandum when Evidence not taken down by Judge

Rule 8 provides that where the evidence is not taken down in writing by the

Judge, or from his dictation in the open Court, or recorded mechanically in his

presence, he shall be found, as the examination of each witness proceeds, to make a

memorandum of the substance of what each witness deposes, and such memorandum

shall be written and signed by the Judge and shall form part of the record.

When Evidence may be Taken in English

Rule 9 (1) provides that where English is not the language of the Court, but all

the parties to the suit who appear in person, and the pleaders of such of the parties as

appear by pleaders, do not object to having such evidence as is given in English, being

taken down in English, the Judge may so take it down or cause it to be taken down.

Rule 9 (2) provides that where evidence is not given in English but all the parties

who appear in person, and the pleaders of such of the parties as appear by pleaders, do

not object to having such evidence being taken down in English, the Judge may take

down, or cause to be taken down, such evidence in English.

Any Particular Question and Answer may be Taken Down

Rule 10 provides that the Court may, of its own motion or on the application of

any party or his pleader, take down any particular question and answer, or any

objection to any question, if there appears to be any special reason for so doing.

Questions Objected to and Allowed by the Court

Rule 11 provides that where any question put to a witness is objected to by a

party or his pleader, and the court allows the same to be put, the judge shall take down

the question, the answer, the objection and the name of the person making it, together

with the decision of the court.

Remarks on Demeanour of Witnesses

Rule 12 provides that the court may record such remarks as thinks material

respecting the demeanour of any witness while under examination.

Power to Examine Witness Immediately

Rule16 (1) provides that where a witness is about to leave the jurisdiction of the

court, or other sufficient cause is shown to the satisfaction of the court why his

evidence should be taken immediately, the court may, upon application of any party

or of the witness, at any time after the institution of the suit take the evidence of such

witness.

Power of the Court to Inspect

Rule 18 provides that the court may at any stage of a suit inspect any property

or thing concerning which any question may arise and shall as soon as may be

practicable, make a memorandum of any relevant facts observed and such

memorandum shall form part of the record.

Order XVIII of the CPC plays a crucial role in ensuring a fair and orderly trial process

in civil cases. It establishes the procedures for presenting and challenging evidence,

examining witnesses, and making arguments. The court's role in managing the trial

helps maintain the integrity and efficiency of the litigation process, ultimately leading

to a just resolution of the dispute.

TOPIC 18

AFFIDAVITS (Order XIX)

Order XIX of the Code of Civil Procedure (CPC) in India deals with the use of

affidavits in civil litigation. An affidavit is a written statement of facts that is sworn or

affirmed by the deponent, who is usually a party or a witness in a case. Affidavits are

used to provide evidence and present facts to the court. Order XIX establishes the rules

and procedures for the use of affidavits in civil proceedings.

Power to Order any Point to be Proved by Affidavit

Rule 1 provides that any court may at any time for sufficient reason order that

any particular fact or facts may be proved by affidavit or that the affidavit of any

witness may be read at the hearing, on such conditions as the court thinks reasonable.

Proviso to R.1 states that if either party bonafide desires the production of a

witness for cross-examination, and such witness can be produced, the evidence of such

witness shall not be given by affidavit.

Power to Order Attendance of Deponent for Cross-Examination

Rule 2 (1) provides that upon any application, evidence may be given by

affidavit, but the court may, at the instance of either party, order the attendance of the

deponent.

Rule 2 (2) provides that such attendance shall be in Court, unless the deponent

is exempted from personal appearance in Court or the Court otherwise directs.

Matters to which Affidavits shall be Confined

Rule 3 (1) provides that affidavits shall be confined to such facts as the deponent

is able of his own knowledge to prove, except on interlocutory applications, on which

statements of his belief may be admitted provided the grounds are stated.

Rule 3 (2) provides that the costs of every affidavit which shall unnecessarily

set forth matters of hearsay or argumentative matter, or copies of or extracts from

documents, shall ( unless the Court otherwise directs) be paid by the party filing the

same.

Order XIX provides a structured framework for the use of affidavits in civil

proceedings. It balances the need for written evidence with the opportunity for oral

examination and cross-examination when necessary. Affidavits are a vital tool for

presenting facts and evidence in a clear and formal manner, contributing to the fair and

efficient conduct of civil litigation in India.

TOPIC 19

JUDGMENT (Order XX)

Order XX of the Code of Civil Procedure (CPC) in India deals with the pronouncement

of judgments in civil cases. It outlines the procedures that the court must follow when

delivering judgments, including the form and content of judgments, and the rules

related to judgments in cases where there are multiple plaintiffs or defendants.

By virtue of Section 2 (9) of the Code judgment means the statement given by

the judge on the grounds of a decree or order.

131

By S.33, the court, after the case has

been heard, shall pronounce judgment, and on such judgment a decree shall follow.

Judgment when Pronounced

O XX Rule 1 (1) provides that where the judgment is not pronounced at once,

every endeavour shall be made by the court to pronounce the judgment within thirty

days from the date of the conclusion of the hearing of the case.

On the ground of exceptional and extraordinary circumstances, the court shall

fix a future day for the pronouncement of the judgment not beyond sixty days and due

notice shall be given to the parties.

Rule1(2) provides that where a written judgment is to be pronounced, it shall

be sufficient if the findings of the court on each issue and the final orders passed in the

case are read out and not the whole judgment.

Rule 1 (3) provides that the judgment may be pronounced by dictation in open

Court to a shorthand writer if the Judge is specially empowered by the High Court in

his behalf.

Power to Pronounce Judgment Written by Judge’s Predecessor

Rule 2 provides that a judge shall pronounce a judgment written, but not

pronounced, by his predecessor.

Judgment to be Signed

Rule 3 provides that the judgment shall be dated and signed by the judge in open

court at the time of pronouncing it and, when once signed, shall not afterwards be

altered or added to, save as provided by Section152 or on review.

Judgment of Small Cause Courts

Rule 4 (1) provides that judgments of a Court of Small Causes need not contain

more than the points for determination and the decision thereon.

Rule 4 (2) provides that judgments of other Courts shall contain a concise

statement of the case, the points for determination, the decision thereon, and the

reasons for such decision.

131

By virtue of Section 2 (8) judge means the presiding officer of a civil court.

Court to State its Decision on Each Issue

Rule 5 provides that in suits in which issues have been framed, the court shall

state its finding or decision, with reasons, upon each separate issue, unless the finding

upon any one or more of the issue is sufficient for the decision of the suit.

Rule 5A imposes a duty on the court to inform parties as to where an appeal lies

in cases where parties are not represented by pleaders.

132

Order XX is crucial in ensuring the transparency and fairness of the judicial process.

It establishes clear procedures for pronouncing judgments, drafting decrees, and

providing parties with certified copies of these documents. The order also addresses

various scenarios, such as judgments against deceased parties, firms, and joint

defendants, ensuring that the court's decisions are accurately reflected in the decrees

issued.

TOPIC 20

DECREE

In the context of the Code of Civil Procedure (CPC) in India, a "decree" refers to the

formal expression of a judgment or order passed by a civil court at the conclusion of

a civil suit. A decree essentially represents the final determination of the court with

regard to the rights and liabilities of the parties involved in the lawsuit. The

adjudications of civil court may be divided in to two types, viz; decree and order.

Decree

Decree is defined in Section 2(2) of the Code as (i) the formal expression of an

adjudication which, so far as regards the court expressing it; (ii) conclusively; (iii)

determines the rights of the parties; (iv) with regard to all or any of the matters in

controversy; (v) in the suit and may be either preliminary (i.e. when further

proceedings have to be taken before disposal of the suit) or final.

It shall be deemed to include rejection of a plaint and the determination of the

any question within Section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

132

Also see Rules 6 to 20 of O. XX contained in the Topic “Decree”.

Explanation to the section states that a decree is preliminary when further

proceedings have to be taken before the suit can be completely disposed of. It is final

when such adjudication completely disposes of the suit. It may be partly preliminary

and partly final.

By virtue of S.2 (3) “decree-holder” in whose favour a decree has been passed

or an order capable of execution has been made.

Essential Characteristics of Decree

(1) There must be an adjudication. That means the matter in issue must be heard and

decided by the court.

(2) There must be a formal expression of such adjudication.

(3) Such adjudication must be in a suit.

(4) The adjudication must determine the rights of the parties with regard to all or any of

the matters in controversy in the suit.

(5) Such determination must be conclusive in nature.

(6) Decree can be either preliminary or final.

(7) Rejection of plaint is deemed to be a decree.

(8) The determination of any question within the meaning of Section 144 is also be

deemed to be a decree.

(9) Any adjudication from which an appeal lies as an appeal from an order is not a

decree.

(10) An order of dismissal for default is not a decree.

(1) Adjudication

The decision of a Court will become a decree only if there is adjudication.

Adjudication means a judicial determination of the matter in dispute. If there is no

judicial determination of any matter in dispute, it cannot be considered as a decree.

In Sreedharan v. Bhaskaran

133

, the Kerala High Court held that a decree passed

in a suit on a compromise petition is a decree with in the meaning of S.2(2) of the Code

because the adjudicatory power of the court is to applied by the court.

(1) Formal Expression

There must be formal expression of such adjudication. That means all the

requirements of form must be complied with.

(2) Suit

Adjudication must be in a suit. Every suit is to be instituted by presentation of a

plaint. If there is no civil suit, there is no decree.

In Hansraj v. Dehradun-Mussoorie Electric Tramways Co. Ltd

134

, the Privy

Council was held that the word ‘suit’ ordinarily means a civil proceeding instituted by

the presentation of a plaint.

(3) Determination of Rights of Parties in Controversy

The adjudication must have determined the rights of the parties with regard to

all or any of the matters in controversy in the suit. Here the term ‘parties’ refers to,

parties to the suit.

(4) Conclusive Determination

The determination must be of conclusive nature. That means, the determination

must be final and conclusive as regards the Court which passes it. Thus, an

interlocutory order, which does not determine the rights of the parties finally, cannot

be considered as a decree.

Preliminary Decree and Final decree

A decree may be preliminary or final. A decree may be preliminary when

adjudication decides the rights of the parties with regard to any of the matters in

controversy in the suit, but does not completely disposes of the suit.

The decree may be final when it completely disposes of the suit and finally

settles all questions in controversy between the parties and nothing further remains to

be decided thereafter. Generally, there will be only one final decree in a suit.

133

1986 KLT 102.

134

AIR 1933 PC 63 (64).

In Renu Devi v. mahendra Singh

135

, the court distinguished between a

preliminary and final decree. A preliminary decree merely declares the rights and

shares of the parties and leaves room for some further inquiry to be held and conducted

pursuant to the directions made in the preliminary decree, which inquiry having been

conducted and the rights of the parties finally determined a decree incorporating such

determination needs to be drawn up which is the final decree.

In the following kinds of suits Court may pass preliminary decree:

(1) Suits for partition and separate possession;

(2) Suits for possession and mesne profits;

(3) Suits for foreclosure of a mortgage;

(4) Suits for pre-emption;

(5) Suits for dissolution of partnership;

(6) Suits for redemption of a mortgage.

In Rachakonda Venkat Rao v. R. Satya bai

136

, it was held that a decree may be

partly preliminary and partly final. There can be more than one preliminary decree in

a suit. Similarly in Phool Chand v. Gopal Lal

137

, the Apex Court found that there can

be more than one preliminary decree in the partition suit if circumstances justify the

same.

Sometimes a decree may be partly preliminary and partly final.

138

In Lucy Kochuvareed v. Mariappa Goundar

139

, the suit was for possession of

immovable property and mesne profits. The Court passed a decree for the possession

of the property and directed an enquiry into whether the mesne profits are to be paid.

135

2003 (3) KLT SN 16.

136

2003 (7) SCC 452.

137

AIR 1967 SC 1470.

138

Bhargavi Pillai v. Karthiyiniamma, 1989 (1) KLT 159.

139

AIR 1979 S.C. 1214.

The first part of the decree is final where as the second part is only preliminary, because

the final decree for mesne profits can be drawn only after enquiry and the amount due

is ascertained. Thus, even though the decree is only one, it is partly preliminary and

the partly final.

Following are considered as decrees

(1) Rejection of Plaint

Even though an order rejecting a plaint does not preclude the plaintiff from

presenting a fresh plaint on the same cause of action, the rejection of a plaint shall be

deemed to be a decree.

(2) Return of Plaint

An order returning a plaint to be presented to the proper Court is not a decree.

(3) Restitution

The determination of any question within Section 144 of the Code

140

is a decree.

(4)An order directing to sell the property in a final decree proceedings after passing

preliminary decree for partition of property in an ancillary proceedings amounts to a

decree and is appealable.

141

(5) The order rejecting the plaint for non payment of court fees is a decree.

142

(6) Dismissal of an appeal as time-barred.

143

(7) Order for sale of property on the ground that property is not divisible.

144

(8) Variation of shares which were determined in preliminary decree.

145

(9) The order directing an item to be sold on the ground that it cannot be conveniently

divided is a final adjudication of rights of parties and therefore a preliminary decree

and falls within S.2 (2).

146

140

Section 144 sates that upon the ultimate reversal or variation of a decree or order, the trial court shall

make an order directing the party who received the property or benefit on the erroneous judgment to

the party who was deprived of the property in execution of the decree.

141

Ravindran v. Janardhanan, 2001 (2) KLT 644: 2001 (2) KLJ 53: AIR 2001 Ker.307.

142

Narayani Ammal v. Sanjeev, 2001 (2) KLT 588.

143

Ratan Singh v. Vijay Singh, 2001 (1) SCC 469.

144

Mayimu v. Maliyammal, AIR 1968 Ker.282.

145

Phoolchand v. Gopal, AIR 1967 SC 1470.

146

Nayimu Alias Bambathi Bibi v. Cheria Maliyammal Naimu and Others, 1968 KLT 70.

(10) A decision that the suit has abated will tantamount to a decree for the purpose of

appeal.

147

Following are not considered as decrees

(1) Appealable Orders

The term decree does not include an adjudication from which an appeal lies as

an appeal from an order. Such orders are specified in Sec.104 and Orders 43, Rule 1

of the Code.

(2) Dismissal for Default

An order of dismissal for default is not a decree.

(3) State of Tamil Nadu v. Thangavel

148

, it was held that members of

Administrative Tribunal are not judges. Their statements are to be construed only as

order and not a decree.

Contents of Decree

OXX Rule 6 (1) provides that the decree shall agree with the judgment and it

shall contain the number of the suit, the names and descriptions of the parties, their

registered addresses, the particulars of the claim, and shall specify clearly the relief

granted or other determination of the suit.

Rule 6 (2) provides that the decree shall also state the amount of costs incurred

in the suit, and by whom, or out of what property and in what proportions such costs

are to be paid.

The court may direct that the costs payable to one party by the other shall be set

off against any sum which is admitted or found to be due from the former to the

latter.

149

Preparation of Decree

147

Kalyanikutty Amma v. Ravunn iNair, 1965 KLT 236.

148

AIR 1997 SC 2283.

149

R.6 (3).

Rule 6A provides that decree should be drawn within fifteen days from the date

of pronouncement of the judgment.

Date of Decree

Rule 7 provides that the decree shall bear the date and the day of pronouncement

of the judgment and the judge should satisfy that the decree has been drawn up in

accordance with the judgment and shall sign the decree.

When Judge has Vacated the Office before Signing the Decree

Rule 8 provides that when the judge has vacated the office before signing the

decree, the decree may be signed by his successor. If the court has ceased to exist it is

to be signed by the immediate superior court judge.

Decree for Recovery of Immovable Property

Rule 9 provides that where the subject matter of the suit is immovable property

the decree shall contain a description of such property sufficient to identify the same,

such as its boundaries or numbers in a record of settlement or survey.

Decree for Delivery of Movable Property

Rule 10 provides that where the decree is for the delivery of movable property,

the decree shall also state the amount of money to be paid as an alternative if delivery

cannot be had.

Decree may Direct Payment by Installments

Rule 11 (1) provides that where and in so far as a decree is for the payment of

money, the Court may for any sufficient reason incorporate in the decree, after hearing

such of the parties who had appeared personally or by pleader at the last hearing, before

judgment, an order that payment of the amount decreed shall be postponed or shall be

made by installments, with or without interest, notwithstanding anything contained in

the contract under which the money is payable.

Order, after Decree, for Payment by Installments

Rule 11 (2) provides that after the passing of any such decree the Court may, on

the application of the judgment-debtor and with the consent of the decree-holder, order

that payment of the amount decreed shall be postponed or shall be made by

installments on such terms as to the payment of interest, the attachment of the property

of the judgment-debtor, or the taking of security from him, or otherwise, as it thinks

fit.

Decree for Possession and Mesne Profits

Rule 12 (1) provides that where a suit is for the recovery of possession of

immovable property and for rent or mesne profits, the Court may pass a decree,-

(a) for the possession of the property;

(b) for the rents which have accrued on the property during the period prior to the

institution of the suit or directing an inquiry as to such rent;

(ba) for the mesne profits or directing an inquiry as to such mesne profits;

(i) the delivery of possession to the decree-holder,

(ii) the relinquishment of possession by the judgment-debtor with notice to the decree-

holder through the Court, or

(iii) the expiration of three years from the date of the decree, whichever event first occurs.

Rule 12 (2) provides that where an inquiry is directed under clause (b) or clause

(c), a final decree in respect of the rent or mesne profits shall be passed in accordance

with the result of such inquiry.

Decree for Specific Performance of Contract for the Sale or Lease of Immovable

Property

Rule 12A provides that where a decree for the specific performance of a contract

for the sale or lease of immovable property orders that the purchase-money or other

sum be paid by the purchaser or lessee, it shall specify the period within which the

payment shall be made.

Decree in Administration Suit

Rule 13 (1) provides that where a suit is for an account of any property and for

its due administration under the decree of the Court, the Court shall, before passing the

final decree, pass a preliminary decree ordering such accounts and inquiries to be taken

and made, and giving such other directions as it thinks fit.

Rule 13 (2) provides that in the administration by the Court of the property of

any deceased person, if such property proves to be insufficient for the payment in full

of his debts and liabilities, the same rules shall be observed as to the respective rights

of secured and unsecured creditors and as to debts and liabilities provable, and as to

the valuation of annuities and future and contingent liabilities respectively, as may be

in force for the time being, within the local limits of the Court in which the

administration suit is pending with respect to the estates of persons adjudged or

declared insolvent; and all persons who in any such case would be entitled to be paid

out of such property, may come in under the preliminary decree, and make such claims

against the same as they may respectively be entitled to by virtue of this Code.

Decree in Pre-emption Suit

Rule 14 (1) provides that where the Court decrees a claim to pre-emption in

respect of a particular sale of property and the purchase-money has not been paid into

Court, the decree shall-

(a) specify a day on or before which the purchase-money shall be so paid, and

(b) direct that on payment into Court of such purchase-money, together with the costs (if

any) decreed against the plaintiff, on or before the day referred to in clause (a), the

defendant shall deliver possession of the property to the plaintiff, whose title thereto

shall be deemed to have accrued from the date of such payment, but that, if the

purchase-money and the costs (if any) are not so paid, the suit shall be dismissed with

costs.

Rule 14 (2) provides that where the Court has adjudicated upon rival claims to

pre-emption, the decree shall direct,-

(a) if and in so far as the claims decreed are equal in degree, that the claim of each pre-

emptor complying with the provisions of sub-rule (1) shall take effect in respect of a

proportionate share of the property including any proportionate share in respect of

which the claim of any pre-emptor failing to comply with the said provisions would,

but for such default, have taken effect; and

(b) if and in so far as the claims decreed are different in degree, that the claim of the

inferior pre-emptor shall not take effect unless and until the superior pre-emptor has

failed to comply with the said provisions.

Decree in Suit for Dissolution of Partnership

Rule 15 provides that where a suit is for the dissolution of a partnership or the

taking of partnership accounts, the Court, before passing a final decree, may pass a

preliminary decree declaring the proportionate shares of the parties, fixing the day on

which the partnership shall stand dissolved or be deemed to have been dissolved, and

directing such accounts to be taken, and other acts to be done, as it thinks fit.

Decree in Suit for Account between Principal and Agent

Rule 16 provides that in a suit for an account of pecuniary transactions between

a principal and an agent, and in any other suit not hereinbefore provided for, where it

is necessary, in order to ascertain the amount of money due to or from any party, that

an account should be taken, the Court shall, before passing its final decree, pass a

preliminary decree directing such accounts to be taken as it thinks fit.

Special Directions as to Accounts

Rule 17 provides that the Court may either by the decree directing an account to

be taken or by any subsequent order give special directions with regard to the mode in

which the account is to be taken or vouched and in particular may direct that in taking

the account the book of account in which the accounts in question have been kept shall

be taken as prima facie evidence of the truth of the matters therein contained with

liberty to the parties interested to take such objection thereto as they may be advised.

Decree in Suit for Partition of Property or Separate Possession of a Share therein

Rule 18 provides that where the Court passes a decree for the partition of

property or for the separate possession of a share therein, then,-

(1) if and in so far as the decree relates to an estate assessed to the payment of

revenue to the Government, the decree shall declare the rights of the several parties

interested in the property, but shall direct such partition or separation to be made by

the Collector, or any gazetted subordinate of the Collector deputed by him in this

behalf, in accordance with such declaration and with the provisions of Section 54;

(2) if and in so far as such decree relates to any other immovable property or to

movable property, the Court may, if the partition or separation cannot be conveniently

made without further inquiry, pass a preliminary decree declaring the rights of the

several parties, interested in the property and giving such further directions as may be

required.

Decree when Set-off or Counter-claim is Allowed

Rule 19 (1) provides that where the defendant has been allowed a set-off or

counter-claim against the claim of the plaintiff, the decree shall state what amount is

due to the plaintiff and what amount is due to the defendant, and shall be for the

recovery of any sum which appears to be due to either party.

Appeal from Decree Relating to Set-off or Counter-claim

Rule 19 (2) provides that any decree passed in a suit in which a set-off or

counter-claim is claimed shall be subject to the same provisions in respect of appeal to

which it would have been subject if no set-off or counter-claim had been claimed.

Rule 19 (3) provides that the provisions of this rule shall apply whether the set-

off is admissible under rule 6 of Order VIII or otherwise.

Certified Copies of Judgment and Decree to be furnished

Rule 20 provides that certified copies of the judgment and decree shall be

furnished to the parties on application to the Court, and at their expense.

Decrees are essential in the civil litigation process as they represent the final and

binding orders of the court. They provide legal clarity and enforceability to the court's

decisions, allowing parties to assert their rights and seek remedies in accordance with

the court's judgment.

TOPIC 21

ORDER

In the context of the Code of Civil Procedure (CPC) in India, an "order" refers

to a formal written decision or directive issued by a court during the course of civil

litigation. Orders are issued by the court to manage and regulate various aspects of a

case, and they may address procedural matters, evidence, interim relief, and other

issues that arise during the progress of a lawsuit.

Section 2(14) of the Code defines an order as, the formal expression of any

decision of a civil court which is not a decree. An order is also an adjudication of a

court of law. Though decree and order are formal expressions of a decision, an order

does not determine the rights of the parties conclusively.

Orders can be divided into ‘appealable orders’ and ‘non-appealable orders’. An

order can be passed in a suit as well as in an application. Many orders can be passed

in one and the same suit. Orders which are appealable, are given under Sec.104 of the

Code. Except those orders, all other orders passed by a Court are non-appealable and

even in appealable orders, no second appeal can be filed.

The Distinction Between a Decree and an Order is as Follows:-

DECREE ORDER

1. Formal expression 1. Formal expression

2. Appealable 2. All orders are not appealable

3. Second appeal lies u/S. 100 3. No second appeal

4. Conclusively determines the rights of 4. May or may not finally

the parties . determine the rights.

5. Originates from a plaint 5. Originates from a plaint or

application

6. Adjudication of a court of law 6. Adjudication of a court of law

7. May be preliminary or final 7. No such distinction

8. Only one final decree in one suit 8. Many orders can be passed in

one suit

9. Appealability is the rule and non- 9. Non appealability is the rule

appealability is the exception . and appealability is the exception

(consent decree is not appealable)

10. There may be two appeals 10. Only one appeal, and that

too in order given u/S.104

and Order XXXXIII Rule 1

Orders in the CPC are crucial for the efficient and fair conduct of civil litigation.

They provide a framework for managing the various aspects of a case, resolving

disputes, and ensuring that parties adhere to the legal process. Whether they pertain

to procedural matters, evidence, or interim relief, orders play a significant role in the

judicial system's functioning.

TOPIC 22

COST, COMPENSATORY COST AND

COSTS FOR DELAY (Order XXXX, Section 35)

Costs are in the nature of incidental damages granted to a successful party to

make good his expenses for contesting his case before the court. It is a sum prescribed

by law as charge incurred by a party to a case. The discretion of the court is very wide

in awarding costs.

This section gives power to court toward costs even against who are not parties

to suit. Supreme Court held that in suitable cases a lawyer could be directed to pay the

costs.

The object of awarding costs is to secure to a litigant the expenses incurred by

him and not to punish the opposite party. The successful party may be deprived of cost

where there is misconduct on his part.

New Order XXXXA gives certain items of expenditure including expenses

relating to notice or typing, writing, printing charges etc. to be included in the costs of

the suit. While awarding costs, the court shall use its discretion to determine by whom

costs are to be paid.

Normally an Appellate Court does not interfere with the decree for costs. If the

decree for costs is unreasonable or if it satisfied that the discretion has not been

judicially exercised by the lower court or by an erroneous view of the law, then the

Appellate Court can interfere.

Compensatory Costs (Sec.35A)

Sec.35A says, the object of awarding costs is not to punish the party or to impose

a penalty upon him. But S.35A is an exception to S.35. The object of this section is to

discourage false and vexatious claims. The claims or defence must be either

disallowed, abandoned or withdrawn. Then the court should think it fit to make an

order for payment of compensatory costs by the person who makes the claim or

defence.

Costs for Causing Delay

Sec.35B gives power to the court to make an order requiring a party to pay to

the other party such costs for causing delay in proceeding with the suit. The section

gives discretion to the court to impose compensatory costs on parties who are

responsible for delaying the matter. Payment of costs has been made a condition

precedent to the further prosecution of the suit.

The court has power to extend time for payment of costs.

TOPIC 23

EXECUTION OF DECREES AND ORDERS (Order XXI)

Order XXI of the Code of Civil Procedure (CPC) in India governs the

execution of decrees and orders issued by civil courts. Execution is the process by

which a decree or order is enforced to ensure that the rights and obligations established

by the court are carried out.

Execution means enforcement of decrees and orders by process of the court, so

as to enable the judgment-creditor to recover the fruits of the judgment. The execution

proceedings are independent proceedings from the ordinary proceedings of the suit.

Every decree and every order passed by the court are executable. The decree holder

should initiate execution proceedings against the judgment debtor.

‘A’ files a suit against ‘B’ to recover Rs.10,000/-. The court passed an order to

recover it. The judgment-creditor has executed this decree for the purpose of recovery.

Thus execution means the enforcement of the decrees and orders by the process of the

court so as to enable the judgment-creditor to recover the fruits of the judgment passed

in his favour.

The decree to be executed is the decree of the court of the first instance, if no

appeal is preferred. If an appeal is preferred the decree is also be executed by the

Appellate Court (Court which passed the decree).

Procedure

Order XXI, Rule 2 provides that every decree to be executed must be only in the

manner specified and on the basis of an application to that behalf.

1) It must contain the number of the suit;

2) The names of the parties, the date of the decree;

3) Whether an appeal has been preferred;

4) What payment or other adjustment of the matter in controversy has been made between

the parties subsequently to the decree;

5) Whether previous application has been made for the execution of the decree;

6) The amount with interest (if any) due upon the decree;

7) The amount of cost, (if any) awarded;

8) The names of the person against whom the execution of the decree is sought to be

enforced;

9) The mode in which the assistance of the court is required, whether-

(i) by the delivery of any property specifically decreed;

(ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of

any property;

(iii) by the arrest and detention in prison of any person;

(iv) by the appointment of a receiver;

(v) otherwise, as the nature of the relief granted may require.

Application for Execution

It is only on the application of the decree holder that the court can enforce

execution. Every application for the execution of a decree shall be in writing signed

and verified by the applicant. A certified copy of the decree has to be filed along with

the application.

150

If the application for execution is made more than one year after the

date of the decree, the court executing the decree shall issue a notice to the opposite

party/Judgment Debtor.

Notice

The law does not require any notice to be issued to the party against whom

execution is applied. This rule contains four exceptions:-

1) Where an application for execution is made more than one year after the date of the

decree;

2) Where an application for execution is made against the legal representative of the

judgment debtor;

3) Where an application for execution is made of a decree passed by the courts of the

U.K. or any reciprocal territory;

4) When an application is for the execution of a decree of the payment of the money by

the arrest and detention of a judgment-debtor in the civil prison.

Sec.38 lays down the general principle that a decree may be executed either by

the court which passed it or by the court which sends for the execution. The executing

150

R.11 (3).

court has no power to entertain any objection as to the validity of the decree or as to

the legality or correctness of the decree. A decree must be given finally. There is only

one circumstance in which the executing court can decide the legality of the decree. ie.

the court which passed the decree has no jurisdiction to pass such a decree.

In Karan Singh v. Chaman Paswan

151

, the Supreme Court confirmed that a

decree passed by the court without jurisdiction is a nullity and its invalidity can be set

up at any action, including the stage of its execution.

Mode of Execution

An execution can be effected by any one of the following methods:-

1) By delivery of the property;

2) By arrest and detention in prison;

3) By attachment of property;

4) By attachment and detention;

5) In such other manner as the nature of the relief granted may require (Partition);

A. Delivery of Property

1. Movable Property

152

If the decree is for any specific movable property, it may be executed-

(a) by seizure and delivery of the property: or

(b) by detention of the judgment-debtor; or

(d) by attachment and detention both.

To apply R.XXXI the property must be in the possession of the judgment-

debtor. That means if the property is in the possession of a third party, the provisions

of this rule do not apply.

2. Immovable Property

153

151

1955.

152

S.51 (a), R.XXX1.

153

Rule 35 and 36.

Rules 35 and 36 provide the mode of executing decrees for possession of

immovable property. If the decree is for immovable property in the possession of the

judgment-debtor or in the possession of the person bound by the decree, it can be

executed by removing the judgment-debtor or any person bound by the decree and by

delivering the possession thereof to the decree holder.

B. Appointment of Receiver

154

One of the modes of execution of a decree is the appointment of a receiver.

Execution by appointment of a receiver is known as equitable execution and is entirely

within the discretion of the court . It cannot be claimed as of right. It is an exception

to the general rule that it is for the decree-holder to choose the mode of execution and

that the court has no power to refuse the mode chosen by him. The appointment of

receiver in execution proceedings is considered to be an exceptional remedy and a very

strong case must be made out in support of it. The decree-holder before resorting to

this mode must show that there is no effective remedy for obtaining relief by the usual

statutory modes of execution. The court also must be satisfied that the appointment of

receiver is likely to benefit the decree-holder and the judgment-debtor rather than a

sale of the attached property. This mode of execution cannot be resorted to in order to

circumvent the statutory provisions. Thus, the decree-holder cannot be permitted to

pray for the appointment of receiver in respect of the property which has been

expressly excluded from the attachment by the statute.

C. Arrest and Detention

One of the modes of executing decree is arrest and detention in civil prison of

the judgment-debtor. Section 55 to 59 and Rules 37 to 41 of Order 21 deal with arrest

and detention of the judgment debtor in civil prison.

If the decree is for payment of money and the application is made for arrest and

detention of the judgment-debtor the court shall, instead of issuing a warrant for arrest,

issue a notice calling upon the judgment-debtor to appear and show cause why he

should not be committed to civil prison in execution of the decree (Rule 37).

154

Section 51 (d).

If the judgment-debtor appears but fails to show cause to the satisfaction of the

court against the arrest and detention, the court may, subject to the provisions of the

Code, make an order of detention.

If the judgment-debtor does not appear in obedience to the notice under Rule

37, the court shall, if the decree-holders so requires, issue a warrant for the arrest of

the judgment-debtor.

A judgment-debtor may be arrested at any time and on any day in execution of

a decree. After his arrest, he must be brought before the court as soon as practicable.

For the purpose of making arrest, no dwelling house may be entered after sunset or

before sunrise.

155

Further, no outer door a dwelling house may be broken open unless

such dwelling house is in the occupancy of the judgment-debtor and he refuses or

prevents access thereto.

156

Again, where the room is in the actual occupancy of a

pardanashin woman who is not the judgment-debtor, reasonable time and facility

should be given to her to withdraw there from.

157

No order of detention of the judgment-debtor shall be made where the decretal

amount does not exceed rupees two thousand. No judgment-debtor may be arrested

unless and until the decree holder pays into court the subsistence allowance as fixed

by the court. If the judgment-debtor pays the decretal amount and costs of arrest to the

officer, he should be released at once.

Who cannot be Arrested

158

The following classes of persons cannot be arrested or detained in civil prison:

1. A woman.

2. Judicial officers, while going to, presiding in, or returning from their courts.

3. The parties, their pleaders, mukhtars, revenue agents and recognized agents and their

witness acting in obedience to a summons, while going to, or attending or returning

from the court.

4. Members of Parliament and State legislative Assemblies, during the continuance of

any meeting of such House and during the forty days before and after such meeting.

155

proviso I to S.55 (1).

156

Proviso II to S.55 (1).

157

Proviso III to S.55 (1).

158

Section 56, 135 and 135A.

Period of Detention

159

(1) No order for detention of the judgment-debtor in civil prison in execution of a decree

for the payment of money shall be made if the total amount of the decree does not

exceed two thousand rupees.

(2) If the decretal amount exceeds rupees two thousand but does not exceed rupees five

thousand, the period of detention of the judgment-debtor in the civil prison shall not

exceed six weeks.

160

(3) If the decretal amount exceeds rupees five thousand, the period of detention of the

judgment-debtor in the civil prison shall not exceed three months.

161

Release of Judgment-Debtor

162

A judgment-debtor may be released from detention in the following

circumstances:

By virtue of S.58 (1) a judgment-debtor shall be released before the expiry of

the period of detention on the following grounds-

(a) The amount mentioned in the warrant is paid.

(b) The decree against him is otherwise fully satisfied.

(d) The decree-holder failed to pay subsistence allowance.

R.58 (2) provides that a judgment-debtor released from detention under this

section shall not merely by reason of his release be discharged from his debt, but he

shall not be liable to be re-arrested under the decree in execution of which he was

detained in the civil prison.

Release on Ground of Illness

R.59 (1) provides that at any time after a warrant for the arrest of a judgment-

debtor has been issued the court may cancel it on the ground of his serious illness.

159

Section58.

160

S.58 (1) (b).

161

S.58 (1) (a).

162

Section 58, 59.

R.59 (2) provides that where a judgment-debtor has been arrested, the court may

release him, if, in its opinion, he is not in a fit state of health to be detained in the civil

prison.

R.59 (3) provides that where judgment-debtor has been committed to the civil

prison, he may be released therefrom-

(a) by the State Government, on the ground of the existence of any infectious or

contagious disease, or

(b) by the committing Court, or any Court to which that Court is subordinate, on

the ground of his suffering from any serious illness.

R.59 (4) provides that a judgment-debtor released under this section may be re-

arrested, but the period of his detention in the civil prison shall not in the aggregate

exceed that prescribed by section 58.

E. Attachment of Property

The court can execute a decree by attachment of property of the judgment

debtor. The underlying object of attachment of the property is to give notice to the

judgment-debtor not to alienate his property to anyone and also to the general public

not to purchase or deal with the property of the judgment-debtor attached in execution

proceeding.

Section 60 to 64 and Rules 41 to 59 of Order 21 deal with the attachment of

property.

Property which can be Attached

163

Section 60 declares what properties are liable to attachment and sale in execution

of a decree, and what properties are exempt therefrom.

All saleable property (movable or immovable) belonging to the judgment-debtor

may be attached and sold in execution of a decree against him.

F. Sale of Property

Any court executing a decree may order that any property attached by it and

liable to sale, be sold, and the proceeds of such sale, or a sufficient portion thereof,

shall be paid to the party entitled under the decree to receive the same. According to

163

Section 60.

R.65 of O.XXI every sale in execution of a decree shall be conducted by an officer of

the court or by such other person as the court may appoint in this behalf in public

auction.

In Sagar Mahila Vidhyalaya v. Pandit Sadasiv Rao

164

, auction sale in the name

of the highest bidder was confirmed. Sale certificate was issued in the name of a society

which has alleged to be the real owner. It was held that Judgment-debtor cannot

challenge the right of the society by means of a suit after long lapse of time.

Proclamation of Sale

165

S.66 (1) of provides that after the property is attached and ordered to be sold by

public auction, the first step to be taken by the court is to cause a proclamation of the

intended sale to be made in the language of such court.

S.66 (2) of provides that such proclamation shall be drawn up after the notice to

the decree-holder and the judgment-debtor and state the following details;

1. time and place of sale;

2. property or a part thereof to be sold;

3. revenue, if any, assessed upon the property;

4. encumbrance, if any, to which the property is liable;

5. amount to be recovered;

6. such other particulars which the Court considers material for a

purchaser to know in order to judge the nature and value of the

property.

Every proclamation of sale shall be made by beat of drum or other customary

mode and a copy of the proclamation must be affixed on a conspicuous part of the

property and of the court house and also in the Collector’s office if the property is land

paying revenue.

S.67 (2) of the Act provides that such proclamation should also be published in

the Official Gazette or in a local news paper, or in both, if the Court so directs.

Time of Sale

164

AIR 1991 SC 8125.

165

Rule 66-67.

S.68 of the Act provides that no sale without the consent in writing of the

judgment-debtor can take place before fifteen days in cases of immovable property and

before seven days in case of movable property from the date of proclamation in the

court house.

Adjournment of Sale

The court may, in the discretion, adjourn any sale to a specified day and hour.

But if such sale is adjourned to more than thirty days, a fresh proclamation should be

made unless the judgment-debtor waives it.

Restrictions to Bid

1) A decree holder cannot, without the express permission of the court purchase

the property sold in execution of his own decree.

2) A mortgagee of immovable property cannot, without the leave of the court,

purchase the property sold in execution of a decree on the mortgage.

3) any officer or other person having any duty to perform in connection with any

execution sale, cannot, either directly or indirectly bid for, acquire or attempt to acquire

any interest in the property sold in execution.

Sale of Moveable Property

Sale of all moveable properties in execution of a decree should ordinarily be

held at some place within the jurisdiction of the court ordering such sale.

Price of the property shall be paid at the time of sale. On payment of price, the

sale becomes absolute. Confirmation of such sale by the court is not necessary as in

the case of sale of immovable property. In case of default by the purchaser in payment

of price, the property will forthwith be resold and the defaulting purchaser would be

liable for the deficiency in price on such resale.

Sale of Immovable Property

Any court other than a Court of Small Cause may order sale of immoveable

property in execution of a decree.

The court may postpone sale to enable the judgment-debtor to raise the decretal

amount by private alienation, such as, mortgage, charge, lease etc. The chief object of

provision is to prevent sale of the property of the judgment-debtor in cases where the

decree can be satisfied by private alienation of such property.

Immediately after the sale of immovable property, the person declared to be

purchaser of the property must deposit 25 per cent of the purchase money, unless such

requirement is dispensed with by the court. The provision regarding the deposit is

mandatory and non-compliance with it will make the sale a nullity. In case of failure

on the part of the purchaser to deposit the amount, the property will forthwith be resold

and the defaulting purchaser will be liable for the deficiency in price. The balance of

the purchase-money must be paid by the purchaser within fifteen days from the date

of the sale. In case of default of payment of price by the auction-purchaser, the amount

of deposit can be forfeited and the property shall be resold after issuing a fresh

notification. The provision requiring the auction purchaser to deposit the balance

amount within fifteen days of the sale is also mandatory and non-compliance with the

same vitiates the sale. The court has no jurisdiction to extend the time for the payment

of the balance price.

Setting Aside of Sale

Provisions regarding setting aside of sale are contained in Rules 89 to 91. When

a property is sold in execution of a decree, an application for setting aside sale may be

made under these provisions by the persons and the grounds mentioned therein. Such

application has to be made within the prescribed period of limitation.

1. On Deposit

Rule 89 deals with the setting aside of sale of immovable property on the deposit

of the amount specified in the proclamation of sale. The object of this rule is to give a

judgment-debtor the last chance of getting the sale set aside before it is confirmed by

the court. It is intended to afford an opportunity to the judgment-debtor, even after the

property is sold, to satisfy the claim of the decree-holder and to compensate the

auction-purchaser by paying him five per cent of the purchase-money.

166

The following persons can apply for setting aside this sale.

1. a judgment-debtor;

2. a co-sharer in the property;

3. a member of the Joint Hindu Family;

166

Tribhovandas v. Ratilal, AIR 1968 SC 372.

4. a reversioner;

5. an attaching creditor;

6. a beneficial owner;

7. a lessee;

8. a mortgagee;

9. a person in possession of the property;

10. a benamidar, transferee, etc.

Rule 89, requires that two primary conditions relating to deposit must be

fulfilled; namely, (i) the applicant must deposit in the court for payment to the auction-

purchaser five per cent of the purchase-money; and (ii) he must also deposit the amount

specified in the proclamation of sale. Such deposit must be unconditional and not under

protest. Further, it must be in cash and not by cheque or Govt. promissory note.

An application to set aside a sale must be made within a period of sixty days

from the date of the sale.

Before an order setting aside a sale is made, notice of the application must be

given to all persons likely to be affected by the order thereon.

An order setting aside sale or refusing to set aside a sale is appealable.

2. For Irregularity or Fraud

A sale of immovable property in execution can be set aside on the ground of

material irregularity or fraud in publishing or conducting the sale, provided the

applicant proves that he has sustained substantial injury by reason of such irregularity

or fraud.

167

The following persons have been judicially held entitled to apply under this rule:

(1) the decree-holder;

(2) the auction-purchaser;

(3) any person entitled to share in a rateable distribution of assets;

167

Lakshmiratan Engg. Works v. Asstt. Commr, AIR 1968 SC 488.

(4) any person whose interests are affected by the sale; e.g. a judgment-debtor, legal

representatives of a deceased judgment-debtor, a real owner of the property sold in

execution of a decree against his benamidar; where the judgment-debtor is a minor, his

guardian; where the judgment-debtor is a ward of court, court of ward; a purchaser

from the judgment-debtor pendent elite, etc.

Before a sale can be set aside under this rule, it must be shown that-

a. there has been a material irregularity or fraud in publishing and conducting sale; and

b. Substantial injury had been caused to the applicant.

Material Irregularity

The expression “Material Irregularity” refers to an irregularity on the part of the

court or its officers in the procedure to be followed before the property is put to sale.

The following irregularities have been held to be material irregularities.

a. omission to issue notice;

b. omission to publish sale proclamation;

c. omission to mention prior encumbrances in proclamation;

d. omission to state the revenue or rent payable on the land;

e. omission to beat drum;

f. omission to give survey number of the property;

g. omission to hold sale at stated time and place;

h. sale after an order of stay of execution;

i. sale after satisfaction of the decree.

Fraud

“Fraud” means that “which is dishonest and morally wrong”. Such fraud must

be in publishing or conducting the sale. Fraud must be established beyond reasonable

doubt by clear and cogent evidence; general and vague allegations and suspicious

circumstances are not enough. The onus of proving fraud is on the party alleging it.

Substantial Injury

A sale cannot be set aside by mere irregularity or fraud in publishing or

conducting the same. The applicant must also prove that he had sustained substantial

injury by reason of such irregularity or fraud. Mere loss is not enough, it must be

substantial. Since the burden of proving substantial injury is on the applicant, it should

be alleged in the application.

Limitation

An application to set aside a sale must be made within a period of sixty days

from the date of the sale.

Notice

Before an order setting aside a sale is made, notice of the application must be

given to all persons likely to be affected by the order thereon.

Appeal

An order setting aside sale or refusing to set aside a sale is appealable.

3. Judgment-debtor Having no Saleable interest

Rule 91 enables the auction-purchaser to apply for setting aside the sale on the

ground that the judgment-debtor had no saleable interest in the property.

It is only the auction-purchaser who can apply under this rule. A decree-holder

auction purchaser can also apply. A judgment-debtor cannot apply under this rule.

An application to set aside a sale must be made within a period of sixty days

from the date of the sale.

Before an order setting aside a sale is made, notice of the application must be

given to all persons likely to be affected by the order thereon.

An order setting aside sale or refusing to set aside a sale is appealable.

Where a sale of immovable property has been set aside, the purchaser is entitled

to refund of the purchase-money paid by him with or without interest as ordered by the

court. An application under this rule can be filed within three years from the date of

the order setting aside the sale.

Certificate of Sale

After the sale has become absolute, the court shall grant a certificate in favour

of the purchaser. It shall bear the date on which the sale became absolute and also

specify the property sold and the name of the purchaser.

Issuance of certificate is merely a formal declaration by the court and neither

extinguishes nor creates any title. The object of such certificate is to avoid any

controversy regarding the identity of the property sold and the purchaser thereof and

the date when the sale became absolute.

Effect of Sale

After the sale has become absolute, the property shall be deemed to have vested

the purchaser from the date when it is sold and not from the date when the sale becomes

absolute. In other words, the purchaser’s title relates back to the date of the sale and

not the confirmation of sale.

In Mahadeo Singh v. Ram Lochan

168

, the Supreme Court ruled that by virtue of

S.51 of CPC the court has the discretion in regard to mode of execution of decree. A

decree holder gets the right to execute a decree only in accordance with the procedure

provided by law in force at the time when the execution is sought. The Supreme Court

pointed out that where mode changes at the time of execution of the decree, the

changed procedure will operate for execution.

What Properties cannot be Attached? (S. 60)

It may be noted that a civil court has no power to pass an order for attachment

of all types of property. Certain types of properties are not attachable in execution of

a decree. (Sec.55, 56, 59)

(1) The necessary wearing apparels, cooking vessels, weddings ornaments of the judgment

debtor, his wife, children and such personal ornaments as, in accordance with religious

usage, cannot be parted with by any woman;

In Appana v. Thankama, the court ruled that a ‘Thali’ of a married woman

cannot be attached.

(2) Tools of artisans cannot be attached just like cattle and seed grains. The Supreme Court

ruled that a musician is not an artisan whereas a tailor is an artisan. The word ‘Tool’

will include a tractor as far as an agriculturist is concerned;

168

1980.

(3) Books of account;

(4) Houses and other buildings belonging to an agriculturist or a domestic servant;

(5) A mere right to sue for damages;

(6) Any right of personal service;

(7) Salary to the extent of the first one thousand

169

rupees and two thirds of the remainder

in execution of any decrees other than a decree for maintenance. The relevant Labour

Law also protect the gratuity and bonus from attachment;

In Union of India v. Kurisummootil St. George Chitti Fund

170

, the Supreme

Court ruled that the exemption is only for salary and not for arrears of salary and

therefore arrears of salary is attachable.

(8) Pay and allowances of the person working in Air Force, Army and Navy;

(9) All compulsory deposits like Provident Fund etc.;

(10) Same is the position with regard to life insurance;

(11) Any expectancy of succession by survivorship;

(12) Right to future maintenance;

(13) 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 and

political pensions;

(14) The interest of a 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;

(15) Any allowance forming part of the emoluments of a Government Servant or of a

railway or local authority which the Government to be exempt from attachment;

(16) Any allowance declared by an Indian Law to be exempt from attachment or sale in

execution of a decree;

(17) Where the judgment-debtor is liable for payment of land revenue, any moveable

property which, under any law is exempt from sale for the recovery of an arrear of

such revenue.

Stay of Execution

169

Before the coming into effect of 1999 Amendment was to the extent of Rs.400/-.

170

1930.

According to Order XXI, Rule 26 of the Code, if sufficient cause is shown, the

court to which a decree has been send for execution can stay the execution of the decree

for a reasonable time. However before granting a stay, the court must require such

security or impose such conditions upon the judgment-debtor.

Similarly if a suit is pending against the holder of a decree, the court may stay

the execution of the decree.

Execution in Case of Cross-Decree

Rule 18 (1) provides that where applications are made to a court for the

execution of cross decrees in separate suits for the payment of two sums of money

passed between the parties and capable of execution at the same time by such court,-

(a) If the two sums are equal, satisfaction shall be entered upon both decrees; and

(b) If the two sums are unequal, execution may be taken out only by the holder of the

decree for the higher sum, and for so much only as remains after deducting the smaller

sum, and satisfaction for the smaller sum shall be entered on the decree for the larger

sum as well as satisfaction on the decree for the smaller sum.

Rule 18 (2) provides that this rule shall be deemed to apply where either party

is an assignee of one of the decrees and as well in respect of judgment-debts due by

the original assignor as in respect of judgment- debts due by the assignee himself.

Rule 18 (3) provides that this rule shall not apply unless-

(a) a decree holder in one of the suits in which the decrees have been made is the judgment

debtor in the other and each party fills the same character in both suits; and

(b) The sums due under the decrees are definite.

Rule 18 (4) provides that the holder of a decree passed against several persons

jointly and severally may treat it as a cross decree in relation to a decree passed against

him singly in favour of one or more of such persons

Execution in Case of Cross Claims under Same Decree

Rule 19 provides that where application is made to a court for the execution of

a decree under which two parties are entitled to recover sums of money from each

other, then-

(a) If the two sums are equal, satisfaction for both shall be entered upon the decree; and

(b) If the two sums are unequal, execution may be taken out only by the party entitled to

the larger sum and for so much only as remains after deducting the smaller sum, and

satisfaction for the smaller sum shall be entered up on the decree.

Cross- Decrees and Cross-Claims in Mortgage Suits

Rule 20 provides that the provisions contained in rules 18 and 19 shall apply to

decrees for sale in enforcement of a mortgage or charge.

Simultaneous Execution

Rule 21 provides that the Court may, in its discretion, refuse execution at the

same time against the person and property of the judgment-debtor.

Notice to Show Cause against Execution in Certain Cases

Rule 22 (1) provides that where an application for execution is made—

(a) more than two years after the date of the decree,

(b) against the legal representatives of a party to a decree or where an application is filed

under provisions of S. 44A,

adjudged to be an insolvent.

A notice shall be issued to the person against whom execution is applied

requiring him to show cause why the decree should not be executed against him.

No such notice shall be necessary in consequence of more than two years having

elapsed between the date of the decree and the application for execution if the

application is made within two years from the date of the last order against the party

against whom execution is applied for, made on any previous application for

execution, or in consequence of the application being made against the legal

representatives of the judgment-debtor if upon a previous application for execution

against the same person the Court has ordered execution to issue against him.

According to R.22 (2), nothing in the forgoing sub-rule shall be deemed to

preclude the Court from issuing any process in execution of a decree without issuing

the notice thereby prescribed, if for reason to be recorded, it considers that the issue of

such notice would cause unreasonable delay or would defeat the ends of justice.

Order XXI provides a comprehensive framework for the enforcement of decrees and

orders issued by civil courts in India. It ensures that the rights and obligations

established by the court are upheld and that parties comply with the court's directives

through various modes of execution. The specific mode of execution depends on the

nature of the decree or order and the circumstances of the case.

TOPIC 24

PERCEPT

Percept is a rule of conduct. Upon the application of the decree holder, the court

which passed the decree may issue percept to any other court which would be

competent to execute such a decree to attach any property belonging to the debtor and

is specified in the percept. A decree holder can apply for percept only after the decree

and not before the decree. It is virtually an order of attachment. But for an attachment

before judgment under Order XXXVIII, Rule 5 applicant cannot pray for an order of

percept in the plaint.

When an application is filed for percept, the court issuing it cannot attach the

property itself. The court sends the percept to the other court and the court to which

the percept is issued is competent to attach the property. If the decree has already been

transferred to another court for execution even then a percept can be issued by the court

which passed the decree. A transferee court cannot issue a percept. The transferee court

cannot question the validity of the percept; its duty is only to execute the decree. An

order of percept is not appealable.

TOPIC 25

GARNISHEE ORDER (Order XXI Rule 46A)

A garnishee order is a legal order issued by a court that allows a judgment

creditor (the person who has obtained a money judgment against a debtor) to collect

the judgment debt from a third party who owes money to the judgment debtor. In the

context of the Code of Civil Procedure (CPC) in India, garnishee orders are governed

by Order XXI, Rule 46A.

Order XXI, Rule 46A of the Civil Procedure Code deals with Garnishee order. It is an

order relating to the attachment of the debt. The word Garnishee is not defined in CPC.

Garnishee order is an order passed by the court prohibiting the payment of the money

by a debtor, as per a judgment. The order is based upon justice and convenience. In

other words the Garnishee order is an order requiring the debtor of the judgment debtor

to pay the amount to the court.

Illustration

Mr. A has given his house to ‘B’ (Garnishee) to deposit Rs.500/- to the court

until the debt is discharged. On receipt of the order ‘B’ shall deposit the said amount

to the court.

From this it is clear that Garnishee order is a prohibitory order prohibiting a

person not to pay to the judgment debtor but to pay the court. An application from the

judgment creditor is necessary to invoke this power.

It may be noted that where the Garnishee disputes liability, the court may order

that any question or issue necessary for the determination of liability shall be tried as

if it were an issue in or orders as it deems fit.

171

Garnishee orders are a legal mechanism for judgment creditors to recover money owed

to them by diverting payments from third parties who owe money to the judgment

debtor. This process is used to ensure that judgment debts are satisfied when the

judgment debtor is unable or unwilling to pay voluntarily. However, it is subject to

court oversight and the garnishee's right to raise valid objections.

TOPIC 26

COMMISSIONS (Order XXVI)

Order XXVI of the Code of Civil Procedure (CPC) in India pertains to the examination

of witnesses by a commission. It provides a mechanism for taking the testimony of

171

Order XXI, Rule 46 (c).

witnesses who are unable to appear in court physically due to various reasons, such as

residing in a different location, illness, or other legitimate constraints.

Ss.75 to 78 and O.XXVI of CPC deal with Commissions. Commission may be

appointed for the following purposes:

Commissions to Examine Witnesses

Cases in which Court may Issue Commission to Examine Witnesses

Rule 1 provides that any court may in any suit issue a commission for the

examination on interrogatories or otherwise of any person resident within the local

limits of its jurisdiction who is exempted from attending the court or who is from

sickness or infirmity unable to attend it.

The court may, accept a certificate signed by a registered medical practitioner

as evidence of the sickness or infirmity of any person without calling the medical

practitioner as witness.

172

In Andhir Chandra Banerjee. v. Smt. Lilabati Mukherjee

173

, it was held that

application for examination on commission ought to be disposed of by a reasoned

order.

Exemption of Certain woman from Personal Appearance

S.132 (1) provides that women who, according to the customs and manners of

the country, ought not to be compelled to appear in public shall be exempt from

personal appearance in Court.

S.132 (2) provides that nothing herein contained shall be deemed to exempt such

women from arrest in execution of civil process in any case in which the arrest of

women is not prohibited by this code.

In Kunhu Mohammed v. T.K. Ummayithi alias Umma Haji Umma

174

, it was held

that S.132 (1) must be construed as to prevent prejudice to the parties and Courts since

the paramount task of deciding cases on oral evidence of an important party involves

the personalized process of Judge seeking the witness at first hand instead of poring

over the prolix pages of a Commissioner’s report.

172

Explanation to R.1.

173

AIR 1993 Cal 296.

174

1969 KLT 418: 1969 KLJ 468: 1969 KLR 629.

In Katheesakutty v. Ibrayan

175

, it was held that unless it is shown that a

purdanashin lady has completely abandoned purdah exemption from appearance

cannot be denied. If she is infact, a purdanashin lady, she is not deprived of the

statutory protection merely she may have previously appeared in public. In the absence

of finding that she has abandoned Purdah, the Court has no discretion to refuse the

prayer.

In X v. Y

176

, it was held that S.132, CPC cannot be treated as a concession to

some aristocratic families, but is a recognition of universally observed custom. The

exemption is only from personal appearance in Court while holding public hearing and

does not extend to the examination in camera in the chambers of the Judge or in some

other place where both the parties will have equal facilities.

Exemption of other persons

S.133 (1) provides that the following persons shall be entitled to exemption from

personal appearance in Court, namely:-

1. The President of India;

2. The Vice-President of India;

3. The Speaker of the House of the People;

4. The Ministers of the Union;

5. The Judges of the Supreme Court;

6. The Governors of State and the administrators of Union territories;

7. The Speakers of the State Legislative Assemblies;

8. The Chairmen of the State Legislative Councils;

9. The Ministers of State;

10. The Judges of the High Courts; and

11. The persons to whom Section 87B applies.

S.133 (3) provides that where any person claims the privilege of such

exemption, and it is consequently necessary to examine him by commission, he shall

175

1961 KLT 433: 1961 KLJ 502: 19691 (1) KLR 577.

176

1969 KLT SN 30.

pay the costs of that commission, unless the party requiring his evidence pays such

costs.

In Marculline Femado v. Rev. Fr. Bamabas

177

, it was held that person in exalted

position is not entitled to claim exemption from personal appearance and requires to

be examined by commission.

In M. Bhaktavalsalam v. S.V. Swami

178

, it was held that there is no justification

for the exception in S.133 so far as Ministers are concerned. It is not easy to discern

any intelligible nexus between the office of a Minister of State and his exemption from

attendance in Court. If it be that they are as hard worked as to unable to find time to

give evidence in Court then O.26 of CPC could be called in aid.

Order for Commission

Rule 2 provides that order for the issue of a commission for the examination of

a witness may be made by the commission either of its own motion or on the

application of any party to the suit or of the witness to be examined.

Persons for whose Examination Commission maybe Issued

Rule 4 (1) provides that any court may in any suit issue a commission for the

examination on interrogatories or otherwise of-

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he

is required to be examined in court; and

opinion of the court attend without detriment to the public service:

Rule 4 (2) provides that such commission may be issued to any court, not being

a High Court, within the local limits of whose jurisdiction such person resides or to

any pleader or other person whom the court issuing the commission may appoint.

Rule 4 (3) provides that the court on issuing any commission under this rule

shall direct whether the commission shall be returned to itself or to any subordinate

court.

177

1960 KLT SN 31.

178

1957 KLT SN 94.

Commission for Examination of any Person Resident with the Local Limits

According to S.4A of the Act, notwithstanding anything contained in these rules,

any Court may, in the interest of justice or for the expeditious disposal of the case or

for any other reason, issue commission in any suit for the examination, on

interrogatories or otherwise, of any person within the local limits of its jurisdiction,

and the evidence so recorded shall be read in evidence.

Return of Commissions with Depositions of Witnesses

Rule 7 provides that where a commission has been duly executed, it shall be

returned, together with the evidence taken under it, to the court from which it was

issued, unless the order for issuing the commission has otherwise directed, in which

case the commission shall be returned in terms of such order; and the commission and

the return thereto and the evidence taken under it shall form part of the record of the

suit.

When Depositions may be Read in Evidence

Rule 8 provides that evidence taken under a commission shall not be read as

evidence in the suit without the consent of the party against whom the same is offered,

unless-

(a) the person who gave the evidence is beyond the jurisdiction of the Court, or dead or

unable from sickness or infirmity to attend to be personally examined, or exempted

from personal appearance in Court, or is a person in the service of the Government

who cannot, in the opinion of the Court, attend without detriment to the public service,

(b) the Court in its discretion dispenses with the proof of any of the circumstances

mentioned in clause (a), and authorizes the evidence of any person being read as

evidence in the suit, notwithstanding proof that the cause for taking such evidence by

commission has ceased at the time of reading the same.

Commissions to Make Local Investigations

Rule 9 provides that in any suit in which the court deems a local investigation

to be requisite or proper for elucidating any matter in dispute, or of ascertaining the

market value of any property, or the amount of any mesne profits or damages or annual

net profits, the court may issue a commission to such person as it thinks fit directing

him to make such investigation and to report thereon to the court.

Procedure of Commissioner

Rule 10 (1) provides that the commissioner after such local inspection as he

deems necessary and after reducing to writing the evidence taken by him, shall return

such evidence, together with his report in writing signed by him to the court.

Report and Depositions to be Evidence in Suit

Rule 10 (2) provides that commissioner may be examined in person. The report

of the commissioner and the evidence taken by him shall be evidence in the suit and

shall form part of the record and the court, or with the permission of the court, any of

the parties to the suit may examine the commissioner in open court touching any of the

matters referred to him or mentioned in his report, or as to his report, or as to the

manner in which he has made the investigation.

Commissioner may be Examined in Person

Rule 10 (3) provides that where the Court is for any reason dissatisfied with the

proceedings of the commissioner, it may direct such further inquiry to be made as it

shall think fit.

Commission for Scientific Investigation

Rule 10A (1) provides that where any question arising in a suit involves any

scientific investigation which cannot, in the opinion of the Court, be conveniently

conducted before the court, the court may, if it thinks it necessary or expedient in the

interests of justice so to do, issue a commission to such person as it thinks fit directing

him to inquire into such question and report thereon to the court.

179

Commission for Performance of a Ministerial Act

Rule 10B (1) provides that where any question arising in a suit involves the

performance of any ministerial act, which cannot be conveniently performed before

179

Rule 10A (2) provides that the provisions of Rule 10 of this Order shall, as far as may be, apply in

relation to a Commissioner appointed under this rule as they apply in relation to a Commissioner

appointed under Rule 9.

the court the court may issue a commission to such person as it thinks fit directing him

to perform that ministerial act and report thereon to the court.

180

Commission for the Sale of Movable Property

Rule 10C (1) provides that where, in any suit, it becomes necessary to sell any

movable property which is in the custody of the court pending the determination of the

suit, and which cannot be conveniently preserved, the Court may issue a commission

to such person directing him to conduct such sale and report thereon to the court.

181

Rule 10C (3) provides that every such sale shall be held, as far as may be, in

accordance with the procedure prescribed for the sale of movable property in execution

of a decree.

Commission to Examine or Adjust Accounts

According to Rule 11 of the Act in any suit in which an examination or

adjustment of the accounts is necessary, the Court may issue a commission to such

person as it thinks fit directing him to make such examination or adjustment.

Court to Give Commissioner Necessary Instructions

Rule 12 (1) provides that the instructions shall distinctly specify whether the

commissioner is merely to transmit the proceedings which he may hold on the inquiry

or also to report his own opinion on the point referred for his examination.

Proceedings and Report to be Evidence, Court may Direct Further Inquiry

Rule 12 (2) provides that where the court has reason to be dissatisfied with the

proceedings and report it may direct such further inquiry as it shall think fit.

Commission to make Partition of Immovable Property

Rule 13 provides that where a preliminary decree for partition has been passed,

the court may, in any case not provided for in Section 54, issue a commission to make

the partition or separation.

180

Rule 10B (2) provides that the provisions of Rule 10 of this Order shall apply in relation to a

Commissioner appointed under this rule as they apply in relation to a Commissioner appointed under

Rule 9.

181

Rule 10C (2) provides that the provisions of rule 10 of this Order shall apply in relation to a

Commissioner appointed under this rule as they apply in relation to a commissioner appointed under

Rule 9.

Procedure for Commission

Rule 14 (1) provides that the commissioner shall, after necessary inquiry, divide

the property into as many shares as may be directed by the order under which the

commission was issued, and shall allot such shares to the parties and award sums to be

paid for equalizing the value of the shares as directed and authorized by the order under

which the commission was issued.

Rule 14 (2) provides that the commissioner shall then prepare and sign a report

or where the commission was issued to more than one person and they cannot agree,

shall prepare and sign separate reports appointing the share of each party and

distinguishing each share by metes and bounds. Such report or reports shall be annexed

to the commission and transmitted to the court and the court after hearing the

objections shall confirm, vary or set aside the same.

Rule 14 (3) provides that the court shall pass a decree in accordance with

whether the report was confirmed or varied; and where the court sets aside the report

it shall either issue a new commission or pass such other order as it shall think fit.

Expenses of Commission to be Paid into Court

Rule 15 (1) provides that before issuing any commission the Court may order

such sum as it thinks reasonable for the expenses of the commission to be paid within

a time to be fixed, paid into the Court by the party at whose instance or for whose

benefit the commission is issued.

182

Powers of Commissioners

Rule 16 provides that any commissioner, unless otherwise directed by the order

of appointment, may,

(a) examine the parties themselves and any witness whom they or any of

them may produce, and any other person whom the commissioner thinks

proper to call upon to give evidence in the matter referred to him;

182

Rule 15 (2) provides that before executing and returning any commissions issued by foreign Courts

under the provisions of Section 78, the Court or the commissioner required to execute the commission

may levy such fees as the High Court may from time to time prescribe in this behalf in addition to the

fees prescribed for the issue of summons to witness and for expenses of such witnesses under Rule 2 of

Order XVI.

(b) call for and examine documents and other things relevant to the subject of

inquiry;

mentioned in the order.

Questions Objected to before the Commissioner

According to Rule 16A (1) of the Code where any question put to a witness is

objected to by a party or his pleader in proceedings before a Commissioner appointed

under this Order, the commissioner shall take down the question, the answer, the

objections and the name of the party or, as the case may be, the pleader so objecting.

Proviso to Rule16A (1) states that the commissioner shall not take down the

answer to a question which is objected to on the ground of privilege but may continue

with the examination of the witness, leaving the party to get the question of privilege

decided by the court, and, where the Court decides that there is no question of privilege,

the witness may be recalled by the commissioner and examined by him or the witness

may be examined by the Court with regard to the question which was objected to on

the ground of privilege.

According to Rule 16A (2) of the Code no answer taken down under sub-rule

(1) shall be read as evidence in the suit except by the order of the Court.

Attendance and Examination of Witness before Commissioner

According to Rule 17 (1) of the Code the provisions of this Code relating the

summoning, attendance and examination of witness, and to the remuneration of, and

penalties to be imposed upon, witnesses, shall apply to person required to give

evidence or to produce documents under this Order whether the Commission in

execution of which they are so required has been issued by a court situate within or by

a court situate beyond the limits of India, and for the purpose of this rule the

commissioner shall be deemed to be a Civil Court.

Proviso to Rule 17 states that when the commissioner is not a Judge of a Civil

Court, he shall not be competent to impose penalties; but such penalties may be

imposed on the application of such commissioner by the court by which the

commission was issued.

According to Rule 17 (2) of the Code a commissioner may apply to any court

(not being a High Court) within the local limits of whose jurisdiction a witness resides

for the issue of any process which he may find necessary to issue to or against such

witness, and such Court may, in its discretion, issue such process as it considers

reasonable and proper.

Parties to Appear before Commissioner

By virtue of R.18 (1) where a commission is issued under this order, the court

shall direct that the parties to the suit shall appear before the commissioner in person

or by their agents or pleaders.

By virtue of R.18 (2) where all or any of the parties do not so appear, the

commissioner may proceed in their absence.

Application of Order to Execution Proceedings

R.18A provides that the provisions of this order shall apply, so far as may be, to

proceedings in execution of a decree or order.

Court to Fix a Time for Return of Commission

R.18B the Court issuing a commission shall fix a date on or before which the

commission shall be returned to it after execution, and the date so fixed shall not be

extended except where the Court, for reasons to be recorded, is satisfied that there is

sufficient cause for extending the date.

Cases in which High Court may Issue Commission to Examine Witness

Rule 19 (1) provides that if the High Court is satisfied-

(a) that a foreign court situated in a foreign country wishes to obtain the

evidence of a witness in any proceeding before it,

(b) that the proceeding is of a civil nature, and

jurisdiction,

it may, subject to the provisions of Rule 20, issue a commission for the examination

of such witness.

Rule 19 (2) provides that evidence may be given of the matters specified in

clauses (a), (b), & (c) of sub-rule (1)—

(a) by a certificate signed by the Consular Officer of the foreign country of

the highest rank in India and transmitted to the High Court though the Central

Govt., or

(b) by a letter of request issued by the foreign court and transmitted to the

High Court through the Central Govt., or

High Court by a party to the proceeding.

Application for Issue of Commission

Rule 20 provides that the High Court may issue a commission under Rule19-

(a) upon application by a party to the proceeding before the foreign court, or

(b) upon the application by a law officer of the State Govt. acting under the instructions

of the State Govt.

To whom Commission may be Issued

Rule 21provides that a commission under Rule 19 may be issued to any court

within the local limits of whose jurisdiction the witness resides, or where the witness

resides within the local limits of the original jurisdiction of the High Court, to any

person whom the court thinks fit to execute the commission.

Issue, Execution and Return of Commissions, and Transmission of Evidence to Foreign

Court

Rule 22 provides that the provisions of R.6, 15, sub-rule (1) of the Rs.16A, 17,

18 and 18B of this Order in so far as they are applicable shall apply to the issue,

execution and return of such commissions, and when any such commission has been

duly executed it shall be returned, together with the evidence taken under it, to the

High Court, which shall forward it to the Central Govt., along with a letter of request

for transmission to the foreign court.

Order XXVI of the CPC is a valuable tool for ensuring that the testimony of witnesses

is obtained, even when they cannot be physically present in court. It allows for the fair

and efficient conduct of legal proceedings by facilitating the examination of witnesses

in a manner that serves the interests of justice.

TOPIC 27

ARREST AND ATTACHMENT

BEFORE JUDGMENT (Section 94&Order XXXVIII)

The provisions related to "Arrest and Attachment Before Judgment" in the Code

of Civil Procedure (CPC) in India primarily pertain to Order XXXVIII, which deals

with the procedure for securing the attendance of the defendant and the attachment of

property before the final judgment is pronounced. Section 94 of the CPC is not directly

related to this topic, but it provides general rule-making powers to the High Courts.

S.94 and O.38 contain the provisions regarding arrest and attachment before

judgment. Normally a creditor can arrest the debtor or can attach his property only as

part of executing decree obtained by him against the debtor. However in certain

circumstances the creditor can move the court for the arrest of the debtor or for the

attachment of his property even before the judgment. The object underlying such

provisions is to prevent any attempt on the part of the creditor to defeat or delay the

creditor from executing the decree which may be passed against the debtor.

Where Defendant may be Called upon to Furnish Security for Appearance

Order XXXVIII, Rule 1 provides that where at any stage of the suit

183

, the court

is satisfied, by affidavit or otherwise-

(a) that the defendant, with intent to delay the plaintiff, or to avoid any process

of the court, or to obstruct or delay the execution of any decree, that may be

passed against him,

(i) has absconded or left the local limits of jurisdiction of the Court, or

(ii) is about to abscond or leave the local limits of jurisdiction of the

Court, or

183

Other than a suit of the nature referred to in S.16, clauses (a) to (d).

(iii) has disposed of or removed from the local limits of jurisdiction of the

Court his property or any part thereof, or

(b) that the defendant is about to leave India under circumstances affording

reasonable probability that the plaintiff will or may thereby be obstructed or

delayed in the execution of any decree that may be passed against the defendant in

the suit,

the court may issue a warrant to arrest the defendant and bring him before the court to

show cause why he should not furnish security, for his appearance.

The defendant shall not be arrested if he pays to the officer entrusted with the

execution of the warrant any sum specified in the warrant sufficient to satisfy the

plaintiff’s claim, and such sum shall be held in deposit by the court until the suit is

disposed of or until further order of the court.

184

Security

Rule 2 (1) provides that where the defendant fails to show cause the court shall

order either to deposit in court money or other property sufficient to answer the claim

of the plaintiff or to furnish security for his appearance at any time.

Rule 2 (2) provides that every surety for the appearance of a defendant shall

bind himself, in default of such appearance, to pay the sum of money which the

defendant may be ordered to pay in the suit.

Procedure on Application by Surety to be Discharged

Rule 3 (1) provides that a surety for the appearance of a defendant may at any

time, apply to the Court to be discharged from his obligation.

Rule 3 (2) provides that on such application, the court shall summon the

defendant to appear or, if it thinks fit, may issue a warrant for his arrest.

Rule 3 (3) provides that on the appearance of the defendant, or on his voluntary

surrender, the surety shall be discharged from his obligation and shall call upon the

defendant to furnish fresh security.

Procedure where Defendant Fails to Furnish Security or Find Fresh Security

Rule 4 (1) provides that where the defendant fails to comply with any order

under R.2 or R.3, the Court may commit him to the civil prison until the decision of

184

Proviso to R.1.

the suit or, where a decree is passed against the defendant, until the decree has been

satisfied.

No person shall be detained in prison in any case, for a longer period than six

months, or for a longer period than six weeks when the amount or value of the subject-

matter of the suit does not exceed fifty rupees:

185

No person shall be detained in prison under this rule after he has complied with

such order.

186

The provisions of O.XXI R.39 as to allowances payable for the subsistence of

judgment-debtors shall apply to all defendants arrested under this order.

187

Attachment before Judgment

Where Defendant may be Called upon to Furnish Security for Production of Property

Rule 5 (1) provides that where, in any stage of the suit, the court is satisfied, by

affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution

of any decree that may be passed against him—

a. is about to dispose of the whole or any part of his property, or

b. is about to remove the whole or any part of his property from the local limits of

jurisdiction of the court,

the court may, direct the defendant, within a time fixed by it, either to furnish security,

in such sum as may be specified in the order, to produce and place at the disposal of

the court, when required, the said property or the value of the same, or such portion as

may be sufficient to satisfy the decree, or to appear and show cause why he should not

furnish security.

R.5 (2) provides that the plaintiff shall, unless the Court otherwise directs,

specify the property required to be attached and the estimated value thereof. R.5 (3)

185

Proviso I to R.4 (1).

186

Proviso II to R.4 (1).

187

Rule 4 (2).

provides that the Court may also in the order direct the conditional attachment of the

whole or any portion of the property so specified.

R.5 (4) provides that if an order of attachment is made without complying with

the provisions of sub-rule (1) of this rule, such attachment shall be void.

In Rai Premchand and Others v. P.K.Ahammed and Co.

188

, it was held that an

order of attachment before judgment is one which involves serious adverse civil

consequences as regards the defendants. Hence it is a case decided within the meaning

of S.11 of the Code.

In Varghese v. Varghese

189

, it was held that order rejecting prayer for attachment

can be deemed to be an order under R.5 and not R.6. Hence Revision under S.115 is

maintainable.

In Abdul Jalal v. Mariya financiers

190

, sale deed was executed in favour of a

third party before the date of attachment but registered after date of attachment. It was

held that claim of the third party against the order of attachment is tenable.

In Rajender Singh v.Ramdher Singh and Others

191

, property situate outside the

District. Sending of the attachment order directly to subordinate Judge in another

District and not through the District Court of that District held not vitiate the

attachment order

In Wilson Paul v. Chandy & Another

192

, it was held that when the plaintiff

alleges that the defendant is attempting to dispose of suit property and it is not denied

by the defendants and defendants are not prepared to furnish security, attachment

before judgment can be ordered.

In Hamda Ammal v. Avadiappa Pathar

193

, sale deed was executed prior to

attachment before judgment and was registered after attachment. It was held that sale

shall prevail over attachment.

188

1982 KLN SN 27.

189

2001 (1) KLT 489.

190

AIR 2002 Ker.276.

191

2001 (6) SCC 213.

192

ILR 1998 (3) Ker.637.

193

1991 (1) SCC 715.

In G.K. Prabhakaran & Co. v. David Traders

194

, it was held that if a third party

is aggrieved by an order of attachment before judgment he can move the Court for

inquiry into his claim by invoking S.151, before attachment is effected.

In Mohandas v. Moideenkutty

195

, it was held that once an attachment before

judgment is ordered and effected properly, it will continue in force till completion of

execution or until it is vacated, whichever is earlier except where suit happens to be

dismissed for default.

In Woodys Hotel Pvt. Ltd. v. Prasant Kumar Panigrahy

196

, it was held that Court

may grant attachment with care and caution and not to be granted on mere assertion of

attempt to dispose of or remove the party.

In Saseendran v. Sadanandan

197

, petition was filed under R.5. Objection was

filed by the respondent and the petition was dismissed. It was held that such an order

would fall under R.5. Not under R.6.

In Mohamed Hariss v. Fathima

198

, it was held that an attachment

unaccompanied by an order directing the defendant to furnish security within a

specified period or to appear and show cause why he should not furnish security is a

nullity. It is not a curable irregularity.

In Tony and Another v. Navodaya Enterprises

199

, it was held that once an

attachment at predecretal stage is made, it will continue in force until satisfaction of

the decree or till the attachment is lifted. Even if no order is made regarding

continuance of attachment on dismissing an execution petition the attachment will

subsist.

In Ratnamma v. Govinda Pillai

200

, it was held that the provisions R.5 (1) shall

be complied with stricto senso before effecting attachment of properties of defendant

before judgment.

194

1972 KLT 593.

195

2000 (2) KLT SN 99.

196

1998 (1) KLT 149.

197

2003 (3) KLT 680.

198

1993 (1) KLT 558.

199

ILR 2004 (1) Ker.107.

200

1995 (1) KLT 405.

In Abdul Jalal v. Mariya Financiers

201

, it was held that under a contract of sale

entered into before attachment, the conveyance after attachment in pursuance of the

contract passes on good title in spite of the attachment.

In Saseendran v. Sadanandan

202

, application for interim attachment was

dismissed. It was held that revision under S.115 is not maintainable, but only a petition

under Art.227 of the Constitution.

In GCDA v. Harrisons Malayalam Ltd

203

, it was held that there is no reference

to the form in O.38 R.5. Use of forms in appendix is dealt with under O.48 R.3. The

provision itself provides that the forms given, with such variations as the circumstances

of each case may require, shall be used. Defect in a notice with Form No.5 (Appendix

F) will not render the attachment void.

In Vasu v. Narayanan Namboothiripad

204

, it was held that the court is bound to

consider the question of security and it is only on failure to furnish security that

attachment could be ordered.

In Madhavan Pillai Somanathan Pillai v. State of Kerala

205

, it was held that non-

compliance with the provision depends upon the provision being either mandatory or

directory. If it is the former, non-compliance will make the order void. If it is the latter,

non-compliance will only make the order voidable. The order would be liable to set

aside, but until that is done it will be operative and cannot be ignored or collaterally

attacked.

In Greater Cochin Development Authority v. Harrisons Malayalam Ltd

206

, it

was held that court has power to direct a conditional attachment of the whole or portion

of the property to be attached.

In Pareed Master v. Antony

207

, it was held that the court while construing these

provisions should keep in mind the pragmatic difficulties of a plaintiff. The defendant

201

2002 (2) KLT 107.

202

2003 (3) KLT 680.

203

2000 (2) KLT 152.

204

1961 KLT 946.

205

1965 KLT 983.

206

2002 (1) KLT SN 9.

207

1987 (2) KLT 649.

may try to dispose of the property in clandestine manner. However mere allegation of

the plaintiff is not sufficient to order an attachment before judgment.

In Ouseph Scaria v. Cheriyan Joseph

208

, it was held that preliminary decree

passed is not capable of execution. What judgment under O.38 R.5 contemplates is a

decree capable of execution and not a preliminary decree. In Hamda Ammal v.

Avadiappa Pathar

209

, it was held that the vendee gets rights which will be related back

on registration from the date of execution of sale deed and such rights are protected

under O.38 R.10 CPC read with S.47 of the Registration Act.

In Raja Theatre v. Selvam Financiers

210

, it was held that the right, title and

interest of a partner in a firm is a saleable property and it can be attached and sold.

In Scaria v. Joseph and Others

211

, it was held that when a preliminary decree

under O.21 R.42 has been passed, it is certain that the plaintiff will eventually obtain

a decree for money only the quantum remaining to be determined. The right to obtain

an attachment under O.38 R.5 in respect of the decree yet to be passed is not taken

away.

In Mohammed Hariss v. Fathima

212

, an order calling upon the defendant to

furnish security was not served on him. It was held that failure of the defendant to

enquire about it does not debar him from challenging it. The validity of it could be

raised in execution. Plea of waiver of such right should be alleged and proved.

In Mohammed Hariss v. Fathima

213

, it was held that merely passing of the order

in terms of sub-rule (1) without serving it on the defendant cannot be treated as

substantial compliance with statutory requirements. From No.5 is to be used whenever

order of attachment is passed.

In Unni v. Vijayan

214

, it was held that the rules in the Code regarding attachment

before judgment do not contemplate an attachment without affording the defendant an

opportunity to furnish security or to show cause why he should not furnish security.

208

1971 KLT SN 85.

209

1991 (1) KLTSN 2.

210

1992 (1) KLT SN 25.

211

1965 KLT 341.

212

1993 (1) KLT 558.

213

1993 (1) KLT 558.

214

1983 KLT 927.

Attachment where Cause not Shown or Security not Furnished

R.6 (1) provides that where the defendant fails to show cause why he should not

furnish security, or fails to furnish the security required, within the time fixed by the

Court, the Court may order that the property specified, or such portion thereof as

appears sufficient to satisfy any decree which may be passed in the suit, be attached.

R.6 (2) provides that where the defendant shows such cause or furnishes the

required security, and the property specified or any portion of it has been attached, the

Court shall order the attachment to be withdrawn, or make such other order as it thinks

fit.

In Moidu v. Canara Bank

215

, it was held that in view of the specific provision

that an under O.38 R.6 is appealable, the jurisdiction under S.115 cannot be invoked.

In S. Noordeen v. V.S. Thiru Venkita

216

, it was held that an attachment before

the judgment prevents the owner from creating any encumbrance on the property.

Decree-holder can proceed against the property in execution although the property was

not mentioned in plaint schedule.

In S. Noordeen v. V.S.T. Venkita Reddiar

217

, it was also held that the proceedings

envisaged for adjudication under O.38 R.8 read with O.21 R.58 is a civil proceeding.

When attachment of the properties has been made before the judgment, they become

part of the civil proceeding in the suit.

Mode of making Attachment

R.7 provides that save as otherwise expressly provided, the attachment shall be

made in the manner provided for the attachment of property in execution of a decree.

In Kunhalankutty Haji v. Ravunni Warrier

218

, it was held that when objection to

the attachment was raised, whether the attachment was before judgment or after the

filing of the execution application upon the passing of the decree the Court cannot

avoid adjudication upon such objections.

Adjudication of Claim to Property before Judgment

215

1986 KLT 1031.

216

1996 (3) SCC 289.

217

1996 (1) KLT 761.

218

1981 KLT SN 86.

R.8 provides that where any claim is preferred to property attached before

judgment, such claim shall be adjudicated upon in the manner hereinbefore provided

for the adjudication of claims to property attached in execution of a decree for the

payment of money.

In S. Noordeen v. V.S.T. Venkita Reddiar

219

, it was held that the properties which

are not part of the schedule mentioned in the suit will nonetheless be part of the decree.

Removal of Attachment when Security Furnished or suit Dismissed

R.9 provides that where an order is made for attachment before judgment, the

Court shall order the attachment to be withdrawn when the defendant furnishes the

security required, together with security for the costs of the attachment, or when the

suit is dismissed.

Attachment before Judgment not to Affect Rights of Strangers nor Bar Decree-Holder

from Applying for Sale

Rule 10 provides that attachment before judgment shall not affect the rights,

existing prior to the attachment, of persons not parties to the suit, not bar any person

holding a decree against the defendant from applying for the sale of the property under

attachment in execution of the decree.

Property Attached before Judgment not to be Re-attached in Execution of a Decree

Rule 11 provides that where property is under attachment by virtue of the

provisions of this order, and a decree is subsequently passed in favour of the plaintiff,

it shall not be necessary upon an application for execution of such decree to apply for

a re-attachment of the property.

The purpose of the provisions related to arrest and attachment before judgment is to

prevent a defendant from disposing of their assets to defeat the enforcement of a

potential decree. These provisions provide a legal mechanism to ensure that the

plaintiff's claim is adequately secured during the course of the lawsuit. However, these

measures are subject to certain conditions and safeguards to prevent abuse and

wrongful arrest or attachment.

219

1996 (1) KLT 761.

TOPIC 28

TEMPORARY INJUNCTIONS AND

INTERLOCUTORY ORDERS (Section 94 & Order XXXIX)

Temporary injunctions and interlocutory orders are crucial legal remedies that play a

significant role in civil litigation. They are designed to provide interim relief to parties

involved in a lawsuit before the final judgment is reached. These measures are essential

for preserving the status quo, preventing irreparable harm, and ensuring that the

ultimate judgment is not rendered meaningless.

Section 94 of CPC grants inherent powers to the courts to make orders as may be

necessary for the ends of justice. These inherent powers are to be exercised sparingly

and cautiously and only when there is no specific provision under the CPC governing

a particular situation. In the context of temporary injunctions, this section empowers

the court to issue orders to prevent the abuse of the judicial process and to secure

justice.

Order XXXIX of CPC deals specifically with temporary injunctions and interlocutory

orders. It lays down the procedure and conditions under which a court can grant or

refuse a temporary injunction.

The court must be satisfied that certain conditions are met before granting a temporary

injunction. These conditions include the existence of a prima facie case, the balance of

convenience being in favor of the party seeking the injunction, and the possibility of

irreparable injury if the injunction is not granted. This implies that the party seeking

the injunction must demonstrate that they have a valid case that merits consideration.

It doesn't require a full-fledged trial but enough evidence to establish a strong case on

the face of it. The court considers whether the inconvenience caused by granting the

injunction to one party outweighs the inconvenience caused by denying it to the other

party. This is crucial in maintaining fairness and equity. The party seeking the

injunction must prove that without the injunction, they would suffer harm that cannot

be compensated adequately by damages. In other words, the harm must be irreparable.

Granting or refusing a temporary injunction is a discretionary power of the court. The

court exercises this discretion based on the facts and circumstances of each case.

Apart from temporary injunctions, Order XXXIX also covers other interlocutory

orders like appointment of a receiver, attachment before judgment, and detention,

preservation, inspection, or sale of property. These orders are made to secure the

interests of the parties during the pendency of the suit. The court can modify or vacate

a temporary injunction if circumstances change or if it is found that the injunction was

wrongly granted.The principles governing the grant of temporary injunctions and

interlocutory orders are well-established but can vary in application depending on the

specifics of each case. Additionally, it's crucial for a legal scholar like yourself, boss,

to stay updated with recent judgments and developments in this area of law, as

precedents can shape the interpretation and application of these provisions.

Section 94,

220

Order 39, Rules 1-5 deal with temporary injunctions. An

injunction is a judicial process whereby a party is required to do, or to refrain from

doing, any particular act.

Injunctions are of two types:

1. Temporary Injunction ; and

2. Permanent Injunction.

A permanent injunction restrains a party for ever from doing the specified act

and can be granted only on merits at the conclusion of the trial after hearing both the

parties to the suit. It is contained in Sections 30 to 42 of the Specific Relief Act, 1963.

A temporary or interim injunction, on the other hand, restrains a party

temporarily from doing the specified act only until the disposal of the suit or until the

220

By S.94, in order to prevent the ends of justice from being defeated the Court may, if it is so

prescribed,-

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why

he should not give security for his appearance, and if he fails to comply with any order

for security commit him to the civil prison;

(b) direct the defendant to furnish security to produce any property belonging to him and to

place the same at the disposal of the Court or order the attachment of any property;

to the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching

and selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

further orders of the court. It may be granted at any stage of the suit. It is contained

Order 39 of the Code of Civil Procedure, 1908. The object of granting temporary

injunction is to maintain and preserve status quo at the time of institution of the

proceedings and to prevent any change in it until the final determination of the suit. It

is in the nature of protective relief granted in favour of a party to prevent future possible

injury.

Temporary Injunctions

Cases in which Temporary Injunctions may be Granted

Order XXXIX, Rule 1 provides that where in any suit it is proved by affidavit

or otherwise—

(a) that any property in dispute in a suit is in danger of being wasted, damaged

or alienated by any party to the suit, or wrongfully sold in execution of a decree or,

(b) that the defendant threatens, or intends, to remove or dispose of his property,

with a view to defrauding his creditors,

injury to the plaintiff in relation to any property in dispute in the suit,

the court may order to grant a temporary injunction to restrain such act, until the

disposal of the suit or until further orders.

221

Injunction to Restrain Repetition or Continuance of Breach

R.2 (1) provides that in any suit for restraining the defendant from committing

a breach of contract or other injury of any kind, whether compensation is claimed in

the suit or not, the plaintiff may, at any time after the commencement of the suit, and

either before or after judgment, apply to the Court for a temporary injunction to restrain

the defendant from committing the breach of contract or injury complained of, or any

221

For Kerala and Lakshadweep islands,

(i) Rule 1 shall be re-numbered as sub-rule (1) thereof.

(ii) In sub-rule (1) as so re-numbered after the word “wrongfully sold” the words “or

delivered” shall be inserted.

(iii) After sub-rule (1) the following sub-rule shall be inserted, namely: -

(2) In case of disobedience of any order passed under sub-rule (1) the court granting the

injunction may proceed against the person guilty of such disobedience under sub-rule (3) and

(4) of Rule 2 of this Order.

breach of contract or injury of a like kind and arising out of the same contract or

relating to the same property or right.

R.2 (2) provides that the court may by order grant such injunction, on such terms

as to the duration of the injunction, keeping an account, giving security, or otherwise,

as the Court thinks fit.

The power to grant a temporary injunction is in the discretion of the court and

this discretion should be exercised reasonably, judiciously and on sound legal

principles. Injunction should not be lightly granted as it adversely affects the other

side. Before granting the injunction, the court must be satisfied about the following

aspects:

(i) Prima facie Case

The applicant must show a prima facie case in support of the right claimed by

him. The court must be satisfied that there is a bonafide dispute raised by the applicant,

and on the facts before the court there is a probability of the applicant being entitled to

the relief claimed by him. The applicant has to prove the existence of a prima facie

right and infraction of that right.

In Martin Burn Ltd. v. Banerjee

222

, it was found that a prima facie case

means a case which can be said to be established if the evidence which is led in support

of the same were believed.

In Svenska v. Indian Charge Chrome

223

, it was held that a party seeking

injunction from encashing of bank guarantee by the suppliers has to show prima facie

case of established fraud and an irretrievable injury.

(ii) Irreparable Injury

The applicant must satisfy the court that he will suffer irreparable injury if the

injunction as prayed is not granted, and that there is no other remedy open to him by

which he can protect himself or his property from the consequences of apprehended

injury.

222

AIR 1958 SC 79.

223

1994 (1) SCC 502.

In Manohar Lal v. Seth Hirlal

224

, it was held that the expression irreparable

injury does not mean that there should be no possibility of repairing the injury. It only

means that the injury must be a material one, i.e., which cannot be adequately

compensated by damages.

(iii) Balance of Convenience

The applicant must satisfy the court that the balance of convenience must be in

favour of him. The court should try to weigh substantial mischief or injury likely to

cause to the parties to the suit, if the injunction is refused, and compare it with that

which is likely to cause to the opposite party if the injunction is granted.

In Firm Ishardass v. Prakash

225

, it was held that no appeal lies against an order

of injunction passed in exercise of inherent jurisdiction.

In Mahadeo v. Pune Municipal Corporation

226

, it was held that court may

require the plaintiff to execute a bond that in case of failing in the suit he will

adequately compensate the defendant for the loss resulted due to injunction. Pecuniary

jurisdiction of the court is no bar to determination of damage.

In Gujarat Bottling Co. v. Coca Cola

227

, it was held that consideration for

granting injunction apart a party must not be at fault, should not be responsible for

bringing state of things complained against, unfair or inequitable in his dealings. These

considerations will weigh against person asking for injunction as also person asking to

vacate temporary or interim injunction.

In George v. State

228

, it was held that all that the court has to see that on the face

of it the person applying for injunction has a case which needs consideration and which

is not bound to fail by virtue of some apparent defects.

In Kochu Pennu v. Velutha Kunju

229

, it was held that police assistance will not

be given to enforce ad interim ex-parte order. It shall be given to enforce only the final

order.

224

AIR 1962 SC 527.

225

AIR 1969 SC 938.

226

1995 (3) SCC 33.

227

AIR 1995 SC 2372.

228

AIR 1972 Ker.181.

229

AIR 1993 Ker.62.

In D.D.A. v. Skipper Construction

230

, it was held that court should not grant stay

or injunction in a mechanical manner. It is no answer that let injunction be granted and

the other side may ask for its vacation.

In Abdul Ahad v. Gulam Md. Dar

231

and Manohar v. Raj Bahadur

232

, it was held

that Court has inherent power to issue temporary injunction. But it should not be

granted unless absolutely necessary for ends of justice.

In B.F.Varghese v. Joseph Thomas

233

, it was held that interlocutory mandatory

injunction can be granted at the instance of the defendant.

In Regina v. St. A.M.E. School

234

, the management of a school disobeyed the

direction of the Divisional Inspector of Schools to restore the teacher to her original

position of Head Mistress. It was held that the court will not grant mandatory

injunction to enforce the order.

In Nandan pictures v. Art Pictures

235

and Rajlakshmi v. Kunji Pillai

236

, it was

held that mandatory injunction may be granted in very exceptional cases.

In Mahadeo v. Pune Municipal Corporation

237

, it was held that injunction

cannot be granted against a rightful owner in favour of a person in unlawful possession.

In S.T.C. v. Jainsons Clothing

238

, it was held that Court will not grant injunction

unless specific plea of fraud or irretrievable injustice is made out.

In Cotton Corpn. of India v. United Industrial Bank

239

, it was held that injunction

restraining a person from initiating a proceeding in a Court of co-ordinate or superior

jurisdiction cannot be granted.

In Karthiyayani v. Govindan

240

, it was held that a person in possession of

immovable property can sustain a suit for injunction against the rightful owner

preventing him from disturbing his possession.

230

1996 (4) SCC 622.

231

AIR 1967 J& K 75.

232

AIR 1962 SC 527.

233

1956 KLT 615.

234

AIR 1971 SC 1920.

235

AIR 1956 Cal.428.

236

AIR 1959 Ker.277.

237

1995 (3) SCC 33.

238

AIR 1994 SC 2778.

239

AIR 1983 SC 1272.

240

AIR 1980 Ker.224.

In Syed Mohammed v. Kassim Beevi

241

, the suit was for recovery of person of

wife. It was held that court can issue an order of temporary injunction restraining her

from contracting a second marriage.

In Agricultural Produce market Committee v. G.R. Chhaniyara

242

, it was held

that temporary injunction can be granted only if person, seeking injunction, has

concluded right enforceable by way of injunction.

In Ashtamoorthi Namboodiri v. Ramayyan

243

, it was held that trustees of a

temple terminating the services of Manager who was continuing to function in defiance

of the trustee- Injunction restraining him from performing acts of management can be

granted.

In Kitex Ltd. v. D. Surekha

244

, court having no jurisdiction to try a suit granted

injunction. It was held that it can vacate the same in exercise of power under S.151.

In State of Bihar v. Sonabati Kumari

245

, it was held that an injunction order is

binding not only upon the party but also upon his agents, servants and workmen.

Consequence of Disobedience or Breach of Injunction

R.2A (1) provides that in the case of disobedience of any injunction granted or

other order made under Rule 1 or Rule 2 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 disobedience or breach to be attached, and may

also order such person to be detained in the civil prison for a term not exceeding six

months, unless in the meantime the Court directs his release.

R.2A (2) no attachment made under this rule shall remain in force for more than

one year, at the end of which time, if the disobedience or breach continues, the property

attached may be sold and out of the proceeds, the Court may award such compensation

as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled

thereto.

241

1953 KLT 791.

242

1997 (5) SCC 468.

243

1959 KLJ 1169.

244

AIR 1992 Ker.333.

245

AIR 1961 SC 221, 229-230.

In Sreedharan v. Vargheese

246

, it was held that attachment of properties is not a

condition precedent for detention of the party in prison.

In Sanku v. Antony

247

, it was held that a party aggrieved by dismissal of an

application under O.39 R.2A filed for taking action for disobedience cannot challenge

the same in appeal filed under O.41 R.1 against the original decree without recourse

to a separate appeal under O.43 R.1(r).

In Nanu Ramachandran v. Raman Uthaman

248

, it was held that court can allow

the party to put the property back in the same position the date on which the order of

injunction was passed.

In T. M.Bagasarwalla v. H.R. Industries

249

, it was held that a person who

disobeys an interim injunction made by Civil Court can be punished under O.39 R.2A

even it is found ultimately that the Civil Court has no jurisdiction to entertain and try

the suit.

In Sameer Khan v. Bindu Khan

250

, it was held that in case of disobedience of

injunction, court may order both attachment of property and detention in civil prison

or either of them alone on consideration of fact situation.

In Ayyappan v. Father Thomas

251

, it was held that calculated and intentional

violation of injunction issued by court is matter affecting the dignity and authority of

Court which issued it and will have to be dealt with seriously. The time limit of

detention for three months relates only to execution of an injunction decree where

detention by court can be made indefinitely subject to its discretion till the decree is

obeyed.

In Dinesh v. Pioneer Shopping Complex (P) Ltd

252

, it was held that High Court

has necessary jurisdiction to entertain applications under O.39 R.2A. High Court is a

Court of Record and has power to punish a person not only for violation of order of

this Court, but also, of an order of any Court subordinate to it.

246

1991 (2) KLT 761.

247

1990 (2) KLT 578.

248

1994 (2) KLT SN 44.

249

1997 (2) KLT SN 14.

250

1998 (7) SCC 59.

251

1989 (2) KLT SN 32.

252

2002 (1) KLT 35.

In Kochu Pennu Ambujakshi v. V.V. Channar

253

, it was held that police

assistance shall be given to enforce only the final order of injunction and not ex patre

order.

In D.D.A. v. Skipper Construction

254

, it was held that court should undo the

wrong if any act is done in violation of order of injunction or stay. Court may grant the

relief in addition to punishment for contempt.

Before Granting Injunction, Court to Direct Notice to Opposite Party

Rule 3 provides that the court shall in all cases, except where it appears that the

object of granting injunction would be defeated by the delay, before granting an

injunction direct notice of the application for the same to be given to the opposite party.

By the proviso to R.3 where it is proposed to grant an injunction without giving

notice to the opposite party, the court shall record the reasons for its opinion that the

object of granting the injunction would be defeated by the 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;

(iii) copies of documents on 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.

Court to Dispose of Application for Injunction within Thirty Days

R.3A provides that where an injunction has been granted without giving notice

to the opposite party, the Court shall endeavour to finally dispose of the application

within thirty days from the date on which the injunction was granted; and where it is

unable so to do it shall record its reasons for such inability.

253

AIR 1993 Ker.62.

254

1996 (4) SCC 622.

Order for Injunction may be Discharged, Varied or Set Aside

Rule 4 provides that order for injunction may be discharged, varied or set aside

by the court, on application made thereto by any party dissatisfied with the order.

If in an application for temporary injunction or in any affidavit supporting such

application, a party has knowingly made a false or misleading statement in relation to

a material particular and the injunction was granted without giving notice to the

opposite party, the court shall vacate the injunction unless, it considers that it is not

necessary in the interests of justice.

255

An order of injunction passed without giving notice to the opposite party shall

not be discharged, varied or set aside on application by that party, except where there

is a change in the circumstances or unless the court is satisfied that the order has

caused undue hardship to that party.

256

According to Section 95, if it appears to the court that an injunction was

applied for on insufficient grounds, the court may, on the application of the

defendant, award against the plaintiff an amount not exceeding one thousand rupees

as compensation to the defendant for the expense or injury caused to him. An order

determining any such application shall bar any suit for compensation in respect of

such injunction.

TOPIC 29

APPOINTMENT OF RECEIVERS (Section 94 & Order XL)

The appointment of receivers is a significant legal mechanism used to

safeguard and manage property or assets involved in a civil suit. This process is

governed by Section 94 and Order XL of the Code of Civil Procedure, 1908 (CPC).

Receiver is an officer or representative of the court. S.94

257

and O.XL of CPC deals

with appointment of receiver and his powers and duties.

255

Proviso I to R.4.

256

Proviso II to R.4.

257

See S.94 in the previous Topic.

Section 94 of the CPC grants the court the authority to appoint a receiver in certain

circumstances during the pendency of a civil suit. A receiver is an individual or entity

appointed by the court to take possession and control of property or assets that are the

subject of the lawsuit. Section 94 provides the court with the discretion to appoint a

receiver when it deems necessary for the protection, preservation, or management of

property or assets involved in the suit.

Order XL of the CPC provides detailed procedural rules for the appointment of

receivers. It outlines the steps and conditions under which a receiver may be appointed.

A party to the suit or any other interested person may apply to the court for the

appointment of a receiver by filing a formal application. The court may appoint a

receiver when it is satisfied that the appointment is necessary to preserve or protect the

property or assets in dispute, prevent waste, or ensure proper management during the

course of the suit. The court typically issues notices to all parties involved in the suit

to hear their objections to the appointment of a receiver. The order appointing the

receiver specifies their duties, powers, and responsibilities. Receivers are accountable

to the court and must manage the property or assets impartially and in accordance with

the court's directions. The court may require the receiver to furnish security (such as a

bond) to ensure the faithful performance of their duties. The court may terminate the

receiver's appointment when it deems fit, such as when the suit is concluded or

circumstances no longer necessitate the receiver's involvement.

The appointment of receivers is a protective measure aimed at ensuring the

preservation and proper management of property or assets involved in a lawsuit.

Receivers are officers of the court and must act in accordance with the court's

directions and orders. The appointment of a receiver can be a temporary or permanent

measure, depending on the needs of the case.

Appointment of Receivers

CPC confers very wide discretion on the courts to appoint and remove

receivers.

Rule 1 (1) provides that where it appears to the court to be just and convenient,

the court may by order—

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

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

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

d) confer upon the receiver all such powers as to bringing and defending suits and for the

realization, management, protection, preservation and improvement of the property,

the collection of the rents and profits thereof, the application and disposal of such rents

and profits, and the execution of documents as the owner himself has, or such of those

powers as the court thinks fit.

Rule 1 (2) provides that nothing in this rule shall authorize the court to remove

from the possession or custody of property, any person whom any party to the suit has

not a present right to so remove.

In Muhammed v. Abdullakutty

258

, it was held that S.94 empowers a Court to

appoint a receiver of any property if it is so prescribed and O.40 R.1 prescribes the

condition for the exercise of that power. It does not limit the exercise of that power to

cases where either the suit or the execution proceeding is pending.

In Chacko v. Vargheese

259

, it was held that the receiver holds the property for

the ultimate benefit of the successful party to the suit.

In Kanhaiyalal v. Dr.D.R Banaji

260

, it was held that sale of property by receiver

without leave of Court is voidable

In Kuruvila v. Avira

261

, it was held that an appeal is not maintainable upon an

order refusing to remove receiver.

In Harilal v. Loonkaran

262

, it was held that a receiver is an officer or

representative of the Court and he functions under its direction.

In Kanhaiyalal v. Dr. D.R Banaji

263

, it was held that leave of appointing Court

is necessary to proceed against a receiver.

258

1969 KLJ 838.

259

1954 KLT SN P. 30.

260

AIR 1985 SC 725,728.

261

1954 KLT 981.

262

AIR 1962 SC 21, 27.

263

AIR 1958 SC 725.

In Chandra Neogi v. Ranjan Sarkar

264

, it was held that a power to appoint a

receiver includes the power to remove a receiver also. Since order of appointment is

appealable order removing a receiver would also be appealable.

In Veerapan Chetiar v. Cholachi

265

, it was held that receiver can be appointed

in respect of properties located beyond the jurisdiction of the Court.

In K.P.M. Saheed v. Aluminium Fabricating Company

266

, property in the hands

of receiver was sold without leave of Court which appointed the receiver. It was held

that the sale is illegal and is liable to be set aside in appropriate proceedings.

In Venkata Mallayya v. Ramaswami & Co.

267

, it was held that a receiver can

institute a suit in his own name in the capacity of a receiver for recovery of debt.

In Kassim Abdul Sathar Sait v. Hajee Rahman

268

, it was held that in an

application for the appointment of receiver if no case is made out the application is to

be rejected by the Court.

Rule 2 provides that the court may by general or special order fix the amount

to be paid as remuneration for the services of the receiver.

Duties

Rule 3 provides that every receiver so appointed shall—

(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 for such periods and in such form as the court directs;

(d) be responsible for any loss occasioned to the property by his willful default or

gross negligence.

264

1968 KLT SN 25.

265

AIR 1967 Ker.118.

266

1985 KLT 991.

267

AIR 1964 SC 818, 823.

268

AIR 1950 TC 100.

In Subramania Iyer v. Rajanunni Nair

269

, it was held that when the execution

is desired in respect of property in the hands of the receiver or other officer of the Court

the procedure laid down in O.21 R.52 could be followed. Leave of the Court which

appointed the receiver is not necessary.

In Essack Sait v. Panchali Amma

270

, it was held that receiver is an officer of

the Court and has no interest either in the suit or in the subject-matter.

Enforcement of Receiver’s Duties

R.4 (1) provides that if a receiver fails to submit his accounts at such periods

and in such form as the Court directs, the Court may order his property to be attached

until he duly submits his accounts in the form ordered.

R.4 (2) provides that the Court may at the instance of any party to any suit or

proceeding in which a receiver has been appointed or of its own motion, at any time

make an enquiry as to what amount, if any, is due from the receiver as shown by his

accounts or otherwise, or whether any loss to the property has been occasioned by his

willful default or gross negligence, and may order the amount found due or the amount

of the loss so occasioned to be paid by the receiver into Court or otherwise within a

period to be fixed by the Court. All parties to the suit or proceeding and the receiver

shall be made parties to any such enquiry. Notice of the enquiry shall be given by

registered post to the surety, if any, for the receiver, but the cost of his appearance shall

be borne by the surety himself unless the Court otherwise directs.

Proviso to R.4 (2) states that the Court may, where the account is disputed by

the parties and is of a complicated nature or where it is alleged that loss has been

occasioned to the property by the willful default or gross negligence of the receiver,

refer the parties to a suit. In all such cases the Court shall state in writing its reasons

for the reference.

R.4 (3) provides that if the receiver fails to pay, any amount which he has been

ordered to pay under sub-rule (2) of this rule, within the period fixed in the order, the

Court may direct such amount to be recovered either from the security (if any)

269

1987 (2) KLT 998.

270

1961 (2) KLR 66.

furnished by him under Rule3, or by attachment and sale of his property, or if his

property has been attached under sub-rule (1) of this rule, by sale of the property so

attached, and may apply the proceeds of the sale to make good any amount due from

him or any loss occasioned by him and shall pay the balance (if any) of the sale

proceeds to the receiver.

In Lohithan v. Madhavan

271

, it was held that Leave of the Court is not necessary

to sustain a suit against a Receiver after his discharge.

In Velayudhan v. Ouseph

272

, there was an order allowing defendant to recover

from receiver amount he was liable to account. It was held that an appeal would lie.

In Vasudevan Namboothiri v. Gopala Pillai

273

, it was held that the order for

payment of money by the receiver can be enforced only in the manner prescribed by

O.40 R.4 (3). Therefore the receiver cannot be arrested and detained in prison under

provisions of S.51 CPC.

In Achuthan v. Karthiyayani Amma

274

, there was a transfer of case to Sub-Court

on ground of territorial jurisdiction. Receivership was terminated. The court observed

that order of Sub-Court directing Receiver and surety to deposit income of property is

legal.

Section 94 and Order XL of the CPC are significant because they provide a

legal mechanism for the court to appoint receivers to protect, preserve, and manage

property or assets involved in civil suits. This mechanism helps prevent waste,

mismanagement, or harm to the assets during the litigation process, ensuring fairness

and justice. Section 94 and Order XL of the CPC grant the court the authority to

appoint receivers to manage and protect property or assets involved in a civil suit, with

the aim of preserving the rights and interests of the parties and ensuring the proper

administration of justice.

271

1961 KLT 883.

272

1955 KLT SN P. 6.

273

1962 KLT 25.

274

1961 KLT 795.

TOPIC 30

WITHDRAWAL OF SUITS (Order XXIII Rule 1, Rule 2)

Order XXIII, Rules 1 and 2 of the Code of Civil Procedure, 1908 (CPC), govern the

withdrawal of suits. These rules outline the procedures for a plaintiff to withdraw a

suit either with or without the permission of the court.

Rule 1 - Withdrawal of Suit or Abandonment of Part of Claim:

Rule 1 of Order XXIII CPC allows the plaintiff (the person who initiates the lawsuit)

to withdraw a suit or abandon part of their claim with the permission of the court. This

rule states that: The plaintiff may, with the court's permission, withdraw the suit or

abandon part of the claim at any stage of the proceedings. Such permission may be

granted unconditionally or subject to terms and conditions deemed appropriate by the

court.

Rule 2 - Consequence of Withdrawal:

Rule 2 of Order XXIII CPC deals with the consequences of the withdrawal of a suit.

According to this rule: Where a suit is withdrawn or any part of a claim is abandoned

under Rule 1, the plaintiff shall be liable to pay the costs incurred by the defendant up

to that point. If the plaintiff wishes to institute a fresh suit on the same cause of action,

they must obtain the court's permission to do so.

Rule 1 allows the plaintiff to withdraw a suit or abandon part of the claim, but only

with the court's permission. This ensures that such withdrawals are made after due

consideration and in accordance with the court's discretion. Rule 2 specifies that when

a suit is withdrawn or a claim is abandoned, the plaintiff is liable to pay the costs

incurred by the defendant up to that point. This is to compensate the defendant for the

legal expenses they have already borne. If the plaintiff wishes to file a fresh suit on the

same cause of action after withdrawing a suit, they must seek the court's permission to

do so. This prevents abuse of the legal process through repeated filing of suits.

The plaintiff has an absolute right to withdraw his suit before the passing of a

decree. The plaintiff can apply for withdrawal of the suit at the appellate stage also;

but the grant of permission will be refused if it results in deprival of any rights of the

defendant.

There are two types of withdrawal:

1. Absolute Withdrawal: i.e. withdrawal without the leave of the court; and

2. Qualified Withdrawal: i.e. withdrawal with the leave of the court.

Order XXIII Rule 1(1) provides that at any time after the institution of the suit,

the plaintiff may abandon his suit or a portion of his claim without the leave of the

court. This right is absolute and unqualified and the court cannot refuse to withdraw

a suit and compel the plaintiff to proceed with it. However, in case of such

abandonment or withdrawal of a suit without the leave of the court, the plaintiff will

be precluded from instituting a fresh suit in respect of the same cause of action.

275

The

plaintiff also becomes liable for such cost as the court may award to the defendant.

Where the court is satisfied that a suit must fail by reason of some formal defect

or there are sufficient grounds for allowing the plaintiff to institute a fresh suit for the

subject matter of a suit or part of a claim, it may grant permission to withdraw such

suit or part of such suit with liberty to file a fresh suit.

276

The term ‘formal defect’ connotes some defect of form or procedure not

affecting the merits of the case such as want of statutory notice u/s 80, misjoinder of

parties, failure to disclose cause of action, mistake in not seeking proper relief,

erroneous valuation of the subject matter of suit etc.

It is the discretion of the court to grant such permission and it can be granted

by the court either on application to the court or on suo moto. Such permission may

be granted on such terms as to the costs etc. as the court thinks fit. The granting of

permission to withdraw a suit with liberty to file a fresh suit removes the bar of res

judicata. It restores the plaintiff to the position which he would have occupied had he

brought not suit at all.

275

Rule 1 (4).

276

Rule 1 (3).

The proviso to Rule 1, Order XXIII states that where the plaintiff is a minor,

neither the suit nor any part of the claim can be abandoned without the leave of the

court. An application for leave must be accompanied by an affidavit of the next friend

and also if the minor is represented by a pleader by a certificate of the pleader to the

effect that the proposed abandonment is in his opinion, for the minor’s benefit.

277

Under Rule 1(5), where there are two or more plaintiffs in a suit, the suit or

part of the claim cannot be abandoned or withdrawn without the consent of all the other

plaintiffs. However one of such plaintiffs may abandon or withdraw from the suit to

the extent of his own interest in it.

In Suraj Pal Singh v. Ghuram Singh, it was held that the provision of this order

apply to withdrawal of appeals and revisions. Similarly, in appropriate cases, an

appellate court can grant permission to withdraw a suit with liberty to file a fresh

suit.

278

In Ramaswamy Raja v. Venkata Raju

279

, the S.C. directed that such power

however has to be exercised cautiously.

In Sargujja Transport Service v. S.T.A.T

280

, the general principles of

withdrawal of suit also apply to petitions under Article 32 or Article 226 of

Constitution. But the petitioner cannot thereafter institute a fresh petition on the same

cause of action.

When Transposition of Defendants as Plaintiffs may be Permitted

R.1A provides that where a suit is withdrawn or abandoned by a plaintiff under

R.1, and a defendant applies to be transposed as a plaintiff under R.10 of O.1, the court

shall, in considering such application, have due regard to the question whether the

applicant has a substantial question to be decided as against any of the other

defendants.

277

Rule 1 (2).

278

AIR 1973, All. 466.

279

AIR 1966, Mad. 346.

280

1987 (1) SCC 5.

In George Paul v. Thankamma Paulose

281

, it was held that substantial question

can be substantial question of fact also.

In Ramakrishnan v. Thanka

282

, it was held that plaintiff not pressing the suit is

actually abandonment of the suit. O.23 R.1A applies.

In Abraham v. Joseph

283

, it was held that the provision applies to proceedings

in appeal also and is not restricted to proceedings in a suit.

In Abraham v. Joseph

284

, it was also held that when an appeal is dismissed as

withdrawn it does not inhibit the right of the petitioner to apply for transposing himself

to be an appellant. In this case the court also found that once an application for

transposition is allowed it will not be necessary to set aside the order declaring the

defendant ex parte.

In Ramakrishnan v. Thanka

285

, it was held that even if the suit for partition is

not pressed by the plaintiff, the defendants being sharers have a right to proceed with

the suit. Defendants can work out their rights under O.23 R.1A.

Rule 2 of Order XXIII provides that a plaintiff withdrawing a suit with liberty

to file a fresh suit is bound by the law of limitation in the same manner as if the first

suit has not been filed at all.

In Padminikutty Amma v. Subbain Chettiar

286

, it was held that when the plaint

is returned for presentation to the proper Court and when presented in latter Court it is

a fresh suit and not a continuation of the earlier suit. S.14 of limitation Act will be

inapplicable to a case where the plaintiff withdraws the prior suit under O.23 R.1 of

CPC by reason of provision under R.2.

Order XXIII Rules 1 and 2 of the CPC are significant because they provide a

mechanism for the plaintiff to withdraw a suit or abandon part of a claim, subject to

281

2003 (1) KLT SN 76.

282

2000 (3) KLT 886.

283

2002 (1) KLT 936.

284

2002 (1) KLT 936.

285

2000 (3) KLT 886.

286

ILR 1977 (1) Ker.490.

the court's permission. This mechanism allows plaintiffs to exercise their discretion in

managing their legal cases while ensuring that defendants are not unduly burdened by

costs. Order XXIII Rules 1 and 2 of the CPC govern the withdrawal of suits by

plaintiffs. Rule 1 allows withdrawal with the court's permission, and Rule 2 specifies

the consequences of withdrawal, including the payment of costs to the defendant and

the need for court permission to file a fresh suit on the same cause of action.

TOPIC 31

COMPROMISE OF SUITS (Order XXIII Rule 3, 3A & 3B)

Order XXIII, Rules 3, 3A, and 3B of the Code of Civil Procedure, 1908 (CPC), pertain

to the compromise of suits and the procedure for recording and enforcing such

compromises. These rules are crucial for facilitating the amicable resolution of

disputes between parties involved in a civil suit.

Rule 3 - Compromise of Suits:

Rule 3 of Order XXIII CPC deals with the compromise of suits. It allows parties to a

civil suit to arrive at a compromise and settle their disputes out of court. The

compromise can be with respect to the whole or any part of the subject matter of the

suit. According to Rule 3, when parties reach a compromise, they can apply to the

court for recording the compromise. The court, upon being satisfied that the

compromise is lawful and for the benefit of the parties, records it.

Rule 3A - Compromise of Disputes Outside Court:

Rule 3A, which was introduced as an amendment, deals with compromises of disputes

outside the court, particularly in mediation or settlement processes. It allows parties to

submit their compromise to the court for recording, even if the compromise was

reached outside of the court proceedings. Rule 3A emphasizes the court's role in

facilitating the resolution of disputes and encourages parties to seek amicable

settlements through alternative dispute resolution mechanisms.

Rule 3B - Effect of Compromise:

Rule 3B outlines the effect of a compromise recorded by the court. According to this

rule, a compromise recorded by the court shall be deemed to be a decree of the court.

Parties can apply to the court for the recording of a compromise. This formal recording

provides legal validity to the compromise and ensures that it can be enforced like a

court decree. The court will only record a compromise if it is satisfied that the

compromise is lawful (i.e., it doesn't violate any laws or public policy) and that it

benefits the parties involved. Rule 3A encourages parties to explore alternative dispute

resolution methods, such as mediation, and allows for the subsequent recording of such

compromises by the court. A compromise recorded by the court under Rule 3B is

treated as a decree of the court. This means that it can be enforced as if it were a court

judgment.

After the institution of the suit, it is open to the party to compromise, adjust or

settle it by an agreement or compromise. However the court must be satisfied that the

agreement is lawful and it can pass a decree in accordance with it. The court should

also consider whether such a suit can be enforced against all the parties to the

compromise. If the compromise is not lawful, an order recording compromise can be

recalled by the court.

287

No next friend or guardian of a minor shall, without the leave of the court, enter

into any agreement or compromise on behalf of the minor with reference to the suit,

unless such leave is expressly recorded in the proceedings.

Settlement by Oath

Rule 3A provides that if the parties agree to have the suit or any part of it decided

by an oath taken by one of them in Court or elsewhere and tender a written agreement

signed by both of them setting forth the terms of the oath and the place where it is

taken, the Court may accept such agreement. After the oath has been taken in the

manner proposed, the Court shall decide the case in terms of the agreement. After the

287

Benwarilal v. Chando Devi , 1993 (1) SCC 581.

agreement has been accepted by the Court, it shall not be competent to any of the

parties to withdraw therefrom without the leave of the Court. If any party withdraws

or refuses to take the oath without lawful excuse, the Court may decide the case against

him or pass such other order as it deems proper.

In Kunhavulla v. Janu Amma and Another

288

, it was held that unless and until

the Courts grant permission to withdraw from the agreement the parties are not having

the option to withdraw once the agreement is accepted by the Court. Once agreement

is made and accepted the parties could resile from the agreement only under any of the

vitiating circumstances provided in S.14 or mistake of fact subject to the provisions of

S.20, S.21 and S.22 of the Contract Act.

In Meenakshi v. manikkam

289

, it was held that O.43 R.1A and O.23 R.3A makes

the position abundantly clear that challenge against a compromise decree cannot be by

a separate suit.

In Govindan v. Chacko

290

, it was held that the fact that a party is not prepared to

take an oath is not by itself a ground for disbelieving his evidence.

In Mohammed v. Koya

291

, it was held that after the Amendment Act R.3A stands

repealed, there cannot be settlement of disputes by oath.

In Benwarilal v Chando Devi

292

, compromise petition was signed by the

counsel of the plaintiff. It was not signed by the defendant or his counsel. It was held

that Court cannot accept it. Petition of compromise must be signed by the parties.

No Agreement or Compromise to be entered in a Representative Suit without Leave of

Court

288

1986 KLT SN 87.

289

1994 (1) KLT 156.

290

1959 KLT 1348.

291

1995 (1) KLT 579.

292

1993 (1) SCC 581.

Rule 3B (1) provides that no agreement or compromise in a representative suit

shall be entered into without the leave of the Court expressly recorded in the

proceedings; and any such agreement or compromise entered into without the leave of

the Court so recorded shall void.

Rule 3B (2) provides that before granting such leave, the Court shall give notice

in such manner as it may think fit to such persons as may appear to it to be interested

in the suit.

Explanation

In this rule, “representative suit” means.-

(a) a suit under Section 91 or Section 92,

(b) a suit under Rule 8 of Order I,

representing the other members of the family,

(d) any other suit in which the decree passed may, by virtue of the provisions of this Code

or of any other law for the time being in force, bind any person who is not named as

party to the suit.

In Union Carbide v. Union of India

293

, it was held that O.23 R.3B does not apply

proprio vigore to proceeding under Art.136 of the Constitution.

In Mohammed v. Avarankutty Haji

294

, it was held that Proviso of O.1 R.8 (4) are

applicable also to interim orders passed in the suit and is not restricted to final orders.

A compromise decree is not a decision of the court. It is acceptance by the

court of some thing to which the parties have agreed. The court does not decide

anything. Hence in Subba Rao v. Jagganath Rao

295

, it was held that a compromise

decree cannot operate as Res-judicata. Such a decree however may create an estoppel

between the parties.

293

AIR 1992 SC 248.

294

1996 (1) KLT 474.

295

AIR 1967, SC 591.

A consent decree is executable in the same manner as an ordinary decree. But

if the decree gives effect to an unlawful, compromise or if such decree is passed by a

court having no jurisdiction, it is a nullity and its validity can be set aside even in the

execution.

No suit can be filed to set aside a compromise decree on the ground that it is

not lawful.

296

In Banwarilal v. Chandodevi

297

, no appeal lies against a decree passed by the

court with the consent of the party. A party challenging the compromise can file an

appeal. Likewise such a decree can be challenged by a suit on the ground of fraud,

undue influence or coercion.

Proceedings in Execution of Decrees not Affected

Rule 4 provides that nothing in this Order shall apply to any proceedings in

execution of a decree or order.

In Thressiamma v. State Bank of Travancore

298

, it was held that decree-holder

purchasing property in execution and later entering into an agreement with judgment-

debtor to reconvey the property on deposit of decretal amount. Court can enforce the

agreement if it is a valid one.

Order XXIII Rules 3, 3A, and 3B of the CPC are significant because they promote the

amicable resolution of disputes by allowing parties to settle their differences through

compromise. This approach not only reduces the burden on the court but also

empowers parties to actively participate in resolving their disputes in a mutually

acceptable manner. Order XXIII Rules 3, 3A, and 3B of the CPC facilitate the

compromise of suits, whether reached within or outside the court, by providing a

296

Rule 3A.

297

1993 (1) SCC 581.

298

1998 (2) KLT 964.

structured procedure for recording and enforcing such compromises. This mechanism

promotes dispute resolution and contributes to the efficient functioning of the legal

system.

TOPIC 32

EFFECT OF DEATH / ABATEMENT (Order XXII Rules 1 to 6)

Order XXII, Rules 1 to 6 of the Code of Civil Procedure, 1908 (CPC), deal with the

effect of the death of a party to a lawsuit and the subsequent abatement or continuation

of the suit. These rules are crucial for ensuring the proper administration of justice

when a party to a lawsuit passes away during the legal proceedings.

 Rule 1 - Death of Plaintiff or Sole Plaintiff:

Rule 1 of Order XXII CPC addresses situations where the plaintiff (the person who

initiates the lawsuit) dies before the conclusion of the suit or when there is only one

plaintiff, and that plaintiff dies. In such cases, the suit abates unless the legal

representative of the deceased plaintiff is brought on record within the prescribed time.

 Rule 2 - Abatement of Suit:

Rule 2 explains the concept of abatement. Abatement essentially means that the lawsuit

comes to an end due to the death of a party. It clarifies that the death of a plaintiff or

sole plaintiff causes the abatement of the entire suit, while the death of one of multiple

plaintiffs does not necessarily lead to the abatement of the entire suit.

 Rule 3 - Application for Bringing Legal Representatives on Record:

Rule 3 provides the procedure for applying to the court to bring the legal representatives

of the deceased party on record. The application should be made by the party desiring

to continue the suit and must be filed within the time specified by the court.

 Rule 4 - Notice to Legal Representatives:

Rule 4 mandates that notice must be issued to the legal representatives of the deceased

party once an application is filed to bring them on record. This notice informs the legal

representatives about the pending suit and their opportunity to be substituted in place

of the deceased party.

 Rule 5 - Time for Application:

Rule 5 specifies the time within which an application to bring the legal representatives on

record should be made. The court may extend this time if it deems fit.

 Rule 6 - Procedure on Abatement:

Rule 6 outlines the procedure to be followed when a suit abates. It states that upon

abatement, the court shall make an order officially recording the abatement, and the

suit shall stand dismissed as against the deceased party.

The purpose of these rules is to ensure that legal proceedings continue as smoothly as

possible when a party to a lawsuit dies, while also protecting the interests of the

deceased party's legal representatives. If the legal representatives of the deceased party

are brought on record within the specified time, the suit can continue, and the legal

representatives effectively step into the shoes of the deceased party. The rules aim to

strike a balance between the need for justice to be served and the practicality of dealing

with situations involving the death of a party.

Death of the Plaintiff

Where the sole plaintiff dies the suit will not abate, if the right to sue survives.

It can be continued by the heirs and legal representatives of the deceased plaintiff. If

the right to sue does not survive, then suit will come to an end.

299

In Pallikandi Rohini v.Padmini

300

, on the death of sole appellant, some of the

respondents as legal representatives applied for transposing them as additional

appellants after the expiry of time for impleading. It was held that it can be allowed in

appropriate cases.

299

Order XXII, Rule 1.

300

ILR 1978 (2) Ker.311.

In M.P. Sankunni v. T.G. Nair

301

, it was held that cause of action for defamation

does not survive the death of the person defamed.

In Phool Rani v. Naubat Rai

302

, it was held that suit for eviction of tenant on

ground of reasonable requirement. Cause of action does not survive on the death of the

landlord.

In K.D. Mg. Committee v. Thachudaya

303

, A sued B contending that property

was given to A in personam for his personal benefit. A died during pendency of his

appeal. It was held that the right being a right in personam ceased to exist on A’s death.

In Gram Panchayat v. Amar Singh

304

, it was held that suit filed in representative

capacity does not abate upon death of one of the plaintiffs.

Where one of the several plaintiffs dies, and the right to sue survives, to the

surviving plaintiff(s), the court will make an entry to that effect and proceed with the

suit by the surviving plaintiff(s).

305

Where one of the several plaintiffs dies and the right to sue does not survive to

the surviving plaintiff(s) or where the sole plaintiff dies and the right to sue survives,

the court on an application by the legal representative of the deceased plaintiff(s) will

make him a party and shall proceed with the suit.

306

Where no such application is made within the period of limitation (90 days)

the suit shall abate, so far as the deceased plaintiff is concerned. On an application by

the defendant, the court may award cost, which might have been incurred by him in

defending the suit, from the estate of the deceased plaintiff.

307

Where the plaintiff dies, after hearing and before pronouncement of judgment,

the suit shall not abate.

308

301

AIR 1986 SC 411.

302

AIR 1973 SC 2110.

303

1996 (2) SCC 680.

304

2000 (10) SCC 644.

305

Order XXII, Rule 2.

306

Order XXII, Rule 3 (1).

307

Order XXII, Rule 3 (2).

308

Order XXII, Rule 6.

If a suit is filed against a dead person by the plaintiff without knowledge of

such death, on the application by the plaintiff, the court may permit the legal

representatives of the defendant to be brought on record. On such impleadment, the

suit shall be deemed to have been instituted on the day the plaint was presented. The

court’s satisfaction breathes life into the suit.

309

Death of the Defendant

Where the sole defendant dies, the suit shall not abate, if the right to sue

survives. It can be continued against the heirs and legal representatives of the deceased

defendant.

310

Where one of the several defendants dies and the right to sue does not survive

against the surviving defendant or defendants or where the sole surviving defendant

dies, and the right to sue survives, the court on application by the legal representative

of the deceased defendant, will make him a party and proceed with the suit.

311

Where no such application is made within the period of limitation (90 days)

the suit shall abate as against the deceased defendant.

312

If no such application is made

within the prescribed period, the suit shall abate against the deceased defendant.

313

The court may if it thinks fit exempt the plaintiff from substituting the

representative of a non-contesting or pro-forma defendant and pronounce judgment

not withstanding the death of such defendant.

314

Where the plaintiff is ignorant of the death of the defendant and for that reason

is unable to make an application for substitution of legal representative of the deceased

defendant within the period of limitation, and the suit stands abated, he may make an

application for setting aside such abatement, within the period of limitation, stating

309

Karuppaswamy v. Ramamuthy, AIR 1993 SC 2324, 2326.

310

Order XXII, Rule 1.

311

Order XXII, Rule 2.

312

Order XXII, Rule 4 (1).

313

R.4 (3).

314

Order XXII, Rule 4 (4).

that due to the ignorance of the death of the defendant, he could not make an

application within time.

315

An order rejecting the application for setting aside the abatement is appealable

u/s 104.

316

However second appeal against such an order is not maintainable.

317

When the defendant dies after hearing and before the pronouncement of

judgment the suit shall not abate.

318

The general rule is that all rights of action and all demands what so ever, existing

in favour of or against a person at the time of his death, survives to or against his

representatives. But in case of personal action, the right to sue will not survive to or

against his representatives. In these cases the maxim, ‘Actio Personalis Moritur Cum

Persona’ (a personal action dies with the person) applies.

319

In Meenaakshy Pillayathiri Amma v. Lekshmi

320

, it was held that ex parte decree

was passed without the knowledge of death of defendant. Application under S.151 and

O.22 R.4 and 9 was held to be proper and held provisions of O.9 R.9 and R.13 will not

apply as they apply only to persons who are alive on the date when effective orders

were passed.

A mere excuse about the plaintiff not knowing of the death of the opposite party

is not sufficient. He has to state reasons, which, according to him, led to his not

knowing of the death of the defendant within a reasonable time and satisfy the court

about it.

321

General Principles

If an application is not made within the time allowed by law to bring the legal

representatives of the deceased on record, the suit will abate so far as the deceased

315

Order XXII, Rule 4 (5).

316

Order XLIII, Rule 1 (k).

317

Madan Naik Hansubala Devi, AIR 1983 SC 676.

318

Order XXII, Rule 6.

319

Hira Lal v. Kali Nath, AIR 1962 SC 199, 201.

320

AIR 1967 Ker.135.

321

Union of India v. Ram Charan, AIR 1964 SC 215.

plaintiff or the deceased defendant is concerned.

322

Once a suit or appeal is abated, a

specific order setting aside such abatement is necessary.

In case where there are two or more heirs and legal representatives of the

deceased party and one or more have been brought on record within time, a suit or an

appeal will not abate on the ground that all the legal representatives have not been

brought on record in time. The doctrine of abatement applies to an appeal also.

323

A suit or appeal does not abate on account of the death of an unnecessary, non-

material or pro forma defendant or respondent. Neither a suit nor an appeal abates

where any party to a suit or an appeal dies between the conclusion of hearing and the

pronouncement of the judgment.

324

The court has no inherent power under Section151

of the Code to implead legal representatives of a deceased respondent if the suit had

abated on account of the appellant not taking appropriate steps within time to bring the

legal representatives of the deceased party on record.

325

Determination of Question as to Legal Representative

Rule 5 provides that where the question arises as to whether any person is or is

not the legal representative of a deceased plaintiff deceased or a deceased defendant,

it is the duty of the court to decide such question. The court where such question arises

before the appellate court, that court may direct the subordinate court to inquire into

and give its findings on the dispute as to who is the legal representative of a deceased

party.

Procedure Where There is No Legal Representative

Rule 4A

326

provides that lays down the procedure where there is no legal

representative of a party or a legal representative is not found. The object of this

322

Union of India v. Ram Charan, AIR 1964 SC 215.

323

R.P. Gupta v. Murali Prasad, AIR 1972 SC 1181.

324

Thirugnanam v. Jagan Mohan, (1995) 5 SCC 115.

325

Union of India v. Ram Charan, AIR 1964 SC 215.

326

Added by the Amendment Act of 1976.

provision is that the other side should not suffer because of the absence of the legal

representative.

Order XXII Rules 1 to 6 of the CPC are significant because they provide a structured

process for handling situations where a party to a lawsuit dies during the legal

proceedings. These rules ensure that the rights and interests of all parties are protected

and that the litigation process can proceed fairly and efficiently. Order XXII Rules 1

to 6 of the CPC address the effect of the death of a party to a lawsuit and the subsequent

abatement or continuation of the suit. They establish a procedure for bringing the legal

representatives of the deceased party on record to ensure that the lawsuit can proceed

in a just and orderly manner.

TOPIC 33

SUIT BY/AGAINST GOVERNMENT/PUBLIC OFFICES

(Sections 79 to 82)

Sections 79 to 82 of the Code of Civil Procedure, 1908 (CPC), pertain to suits by or

against the government and public offices. These sections outline the procedures and

rules governing legal actions involving government entities, ensuring that such cases

are conducted fairly and efficiently.

 Section 79 - Suits by or Against Government:

Section 79 of the CPC stipulates that any legal action against the government must be

instituted in the name of the government. It emphasizes that the government should be

named as the party in the suit.

 Section 80 - Notice for Suing Government:

Section 80 imposes a mandatory requirement of serving a notice to the government or

a public officer as a precondition to filing a suit against the government. This notice

must provide the details of the grievance, the relief sought, and a two-month period for

the government to consider and potentially resolve the matter before the suit is filed.

 Section 81 - Appearance of Government Pleader:

Section 81 deals with the appearance of the government or a public officer in court. It

states that when the government is sued, it shall be represented by a government

pleader who can act on its behalf in court proceedings.

 Section 82 - Execution Against Public Officer in Official Capacity:

Section 82 addresses the execution of decrees against public officers in their official

capacity. It specifies that if a decree is passed against a public officer in their official

capacity, it may be executed against the assets of the state or government for the time

being or against the public officer personally, depending on certain conditions.

Section 79 mandates that the government be named as the party in suits against it. This

ensures clarity regarding the identity of the defendant. Section 80 introduces a notice

period that serves as an opportunity for the government to address the grievance and

potentially avoid litigation. The two-month notice period is a prerequisite for filing a

suit against the government. Section 81 establishes the role of a government pleader

who represents the government's interests in court. This ensures that government cases

are handled by authorized representatives. Section 82 outlines the process for

executing decrees against public officers in their official capacity, taking into account

specific circumstances.

Sections 79 to 82 lay down procedure where suits are brought by or against the

Govt. or public offices. In ordinary suits, between individuals and individuals, notice

need not be given to the defendant by the plaintiff before filing a suit. Section 80 (1)

of the Code declares that no suit shall be instituted against the Govt. or against a public

officer in respect of any act purporting to be done by such public officer in his official

capacity, until the expiration of 2 months next after notice in writing has been delivered

to or left at the office of-

1. in the case of a suit against the Central Govt., except where it relates to a Railway,

the Secretary to that Govt;

327

2. in the case of a suit against the Central Govt. where it relates to a Railway, the

General Manager of that Railway;

328

3. in the case of a suit against the State of Jammu & Kashmir, the Chief Secretary to

that Govt. or any other officer authorized by that Govt. in this behalf;

329

4. in the case of a suit against any other State Govt., a Secretary to that Govt. or the

Collector of that District; and in the case of a public officer, delivered to him or left at

his office.

330

A notice u/s 80(1) must contain name, description and place of residence of the

person giving notice, a statement of the cause of action and the relief claimed by him.

The primary object underlying section 80 is to afford an opportunity to the Govt.

or the public officer to consider the legal position and to settle the claim put forward

by the prospective plaintiff if the same appears to be just and proper.

This section has been intended to enable the Govt. or a public officer to negotiate

just claims and to settle them without adopting an unreasonable attitude by inflicting

wasteful expenditure.

Section 80 (2) deals with the circumstance exempting two months notice. This

section enables the plaintiff to institute a suit against the Govt. or public officer for

obtaining urgent or immediate relief with the leave of the court even without serving

notice to the Govt. or public officer. The object underlying this provision is to prevent

failure or miscarriage of justice in urgent cases.

327

S. 80 (1) (a).

328

S. 80 (1) (b).

329

S 80 (1) (bb).

330

S. 80 (1) (c).

In Dhian Singh v. Union of India

331

& Amar Nath v. Union of India

332

, it was

held that notice should not be construed in a pedantic manner or in a manner

completely divorced from common sense.

In Ghanshyam Dass v. Dominion of India

333

, notice was sent by father who

died before suit. It was held that son can sue without fresh notice.

In Aboobacker v. Union of India

334

, it was held that notice was issued on behalf

of firm and the suit was filed by proprietor is not fatal.

In Sawai Singhai v. Union of India

335

, it was held that to maintain suit for

injunction, mandatory and prohibitory, notice is necessary.

In Amar Nath v. Unoin of India

336

, it was held that notice is necessary for all

forms of action and kinds of relief including injunction.

In State v. Suryanarayana

337

, it was held that failure to serve a notice

complying with the requirements of the statue will entail dismissal of the suit.

In T.V. Parangodan v. District Collector

338

, it was held that no formal

application for leave to sue without notice under S.80 (1) is necessary. Leave need not

be in a formal order. It may be implied. Consideration of leave should not remain

pending until disposal of suit.

In Raghunath v. Union of India

339

, it was held that object of notice under S.80

is to give to the concerned Government and public officers’ opportunity to reconsider

the legal position and to make amends or settle the claim, if so advised without

litigation.

In V. Padmanabhan v. Kerala S.E.B.

340

, it was held that State Electricity Board

is not Government and an Assistant Engineer of the Board is not a public officer.

331

AIR 1958 SC 274.

332

AIR 1963 SC 424.

333

AIR 1984 SC 1004.

334

1972 KLT 74.

335

AIR 1966 SC 1068.

336

AIR 1963 SC 424.

337

AIR 1965 SC 11, 15.

338

AIR 1989 Ker276.

339

AIR 1969 SC 674.

340

AIR 1989 Ker86.

Exemption from Arrest and Personal Appearance

S.81 provides that in a suit instituted against a public officer in respect of any

act purporting to be done by him in his official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment

otherwise than in execution of a decree, and,

(b) where the Court is satisfied that the defendant cannot absent himself from

his duty without detriment to the public service, it shall exempt him from appearing in

person.

Section 82 provides that where in a suit by or against the Govt. or against the

public officer, in respect of any act purporting to be done by him in his official

capacity, a decree is passed against the Union of India or a State or the Public Officer,

such decree shall not be executed unless it remains unsatisfied for the period of 3

months computed from the date of such decree.

These provisions are significant because they establish a structured process for legal

actions involving the government and public offices. They promote fairness, allow the

government to address grievances before litigation, and ensure that government cases

are conducted efficiently and in accordance with the law. Sections 79 to 82 of the CPC

lay down the rules and procedures for filing and defending suits involving the

government and public offices. They aim to facilitate a transparent and structured

process for legal actions against the government while safeguarding the government's

interests and ensuring due process.

TOPIC 34

SUIT BY OR AGAINST MINOR OR

PERSON OF UNSOUND MIND (Order XXXII)

Order XXXII of the Code of Civil Procedure, 1908 (CPC), deals with suits filed

by or against minors or persons of unsound mind. This order is essential for protecting

the legal rights and interests of individuals who may not have the capacity to fully

understand or represent themselves in legal proceedings. Order XXXII CPC

recognizes that minors (individuals below the age of majority) and persons of unsound

mind may lack the legal capacity to sue or be sued in their own name. Therefore, they

require representation in civil suits.

Who May Represent:

 Minors: A minor must be represented by a guardian appointed by the court or by a next

friend.

 Persons of Unsound Mind: A person of unsound mind must be represented by a

guardian appointed by the court or by a next friend.

A "next friend" is a person who represents the minor or person of unsound mind in

a suit. They act on behalf of the minor or person of unsound mind. A "guardian"

appointed by the court is a person appointed by the court to act in the best interests of

the minor or person of unsound mind during the legal proceedings.

Procedure for Suits Involving Minors or Persons of Unsound Mind:

A suit filed by or against a minor or person of unsound mind should include a

statement in the plaint about their minority or unsoundness of mind. The court may

appoint a next friend or guardian for the minor or person of unsound mind. This

appointment is made to ensure that the interests of the minor or person of unsound

mind are adequately protected throughout the legal process. The next friend or

guardian is responsible for representing the interests of the minor or person of unsound

mind during the course of the suit. They act on their behalf, make legal decisions, and

ensure that the minor or person of unsound mind is properly represented. The court

supervises the proceedings involving minors or persons of unsound mind to ensure that

their rights and interests are safeguarded. If a suit involving a minor or person of

unsound mind is settled or compromised, the court must approve the compromise to

ensure that it is in the best interests of the minor or person of unsound mind.

A minor is a person who has not attained the age of 18 years but in the case of

a minor of whose person or property, a guardian or next friend has been appointed by

the court or whose property is under the superintendence of court of ward’s, the age of

minority is 21 years.

341

Order XXXII prescribes the procedure of suits to which the minor or person of

unsound mind are parties. Order XXXII has been specifically enacted to protect the

interest of minors and persons of unsound mind and to ensure that they are properly

represented by persons who are qualified to act as such.

Order XXXII Rule 1 provides that every suit by a minor shall be instituted in

his name by a person who in such suit shall be called the next friend of the minor. If it

is not, the plaint will be taken off the file with cost to be paid by the pleader or other

person by whom it was presented.

342

In Akku Amma v. Kunhi Raman Nair

343

, it was held that the insanity of one of

the plaintiffs not formally represented. The decree cannot be set aside unless prejudice

is proved.

Where a suit has been instituted on behalf of a minor by next friend, the court

may at any stage of the suit order the next friend to give security for the payment of all

costs incurred by the defendant.

344

Where the defendant is a minor, the court on being satisfied of his minority,

shall appoint a proper person to be guardian for the suit for such minor.

345

An order

for the appointment of a guardian for the suit may be obtained upon the application in

the name and on behalf of the minor such application shall be supported by an affidavit

verifying the fact that the proposed guardian has no interest in the matters in

controversy in the suit adverse to that of the minor and that he is a fit person to be so

appointed.

346

341

Explanation to O.XXX, R.1.

342

O.XXX, R.2.

343

ILR 1963 (1) Ker.76.

344

O.XXXII, R.2A.

345

Order XXXII, Rule 3(1).

346

O.XXXII R.3 (2).

In Narayanan Namboothiripad v. Gopalan Nair

347

, it was held that a minor can

avoid a decree passed against him on the ground of gross negligence even if he has not

succeed in proving fraud or collusion on the part of guardian. The failure of guardian

to defend the suit when there was a perfectly good defence available resulting in

serious loss would therefore amount to gross and culpable negligence enabling the

minor to set aside the decree against him.

In Sankara Narayanan Namboori v. Kali

348

, it was held that the negligence on

the part of the guardian ad litem in not pursuing a defence available to the minor in a

normal manner would constitute a sufficient ground to avoid the decree.

In Balakrishnan Kammathi v. Ganeesha Pai

349

, it was held that a minor mother

is incompetent to be a guardian.

No guardian or a next friend can, without the leave of the court receive any

amount or movable property on behalf of a minor by way of compromise, nor enter

into any agreement or compromise on his behalf in the suit.

350

No next friend for the suit shall without the leave of the court withdraw the suit

on behalf of the minor.

351

In Savithri Anderjanam v. Valapad Nair Bank

352

, it was held that compromise

by guardian of minor defendant without leave of court is only voidable at the instance

of the minor.

In George v. Maria

353

, it was held that where in a suit by a minor to set aside a

compromise decree on the ground that compromise was prejudice to his interest the

sanction of the Court for the compromise is proved then the contention that the order

347

1960 (11111) KLR 803.

348

1655 KLT 660.

349

ILR 1654 TC 1909.

350

Order XXXII, Rule 6 (1).

351

Order XXXII, Rule 7.

352

1957 KLJ 1157.

353

AIR 1957 TC 91.

of the Court granting sanction does not show that the compromise was for his benefit

or that it does not satisfy the requirements of O.32 R.7 is of no avail. The real question

for consideration in such cases is whether the compromise was in the interests of the

minor and entered in with bonafide by his guardian or next friend.

A minor plaintiff or a minor not a party to the suit, on whose behalf an

application is pending shall on attaining majority elect whether he will proceed with

the suit or application.

354

Where he elects to proceed with the suit or application, he

shall apply for an order discharging the next friend and for leave to proceed in his own

name.

355

A decree passed against a minor without appointment of next friend or guardian

is null and void. Rule 15 of Order XXXII provides that all the provisions provided

under Order XXXII Rule 1 to 14 shall apply to persons of unsound mind except the

provision to furnish security of cost.

In Ramaswami Gounder v. Meera Lebba

356

, it was held that the scope of enquiry

under R.15 of O.32 is not the same as that contemplated under the Lunacy Act. Even

if a person is not declared to be a lunatic under the Lunacy Act, it is open for the Court

trying the suit to appoint a guardian after satisfying itself as to his infirmness. The

inherent power of the Court to stay proceedings in the suit or to transfer the same

cannot be exercised in such a case for the reason that a Lunacy Petition regarding him

is pending before another Court.

In Marci Celine D’Souza v. Renie Fernandez

357

, it was held that not necessary

that there should be a preliminary enquiry. What is required is only that there must be

some prima facie proof to prove the infirmity.

354

Order XXXII, Rule 12 (1).

355

Order XXXII, Rule 12 (2).

356

AIR1954 TC 380.

357

AIR 1998 KER. 280.

In Maideen Bava Rawther v. John Xavier

358

, it was held that when an application

is filed before the Court under O.32 R.15, the Court cannot shirk from its responsibility

of holding an enquiry and solely depend upon the medical certificate.

Order XXXII CPC is significant because it protects the rights and interests of

minors and persons of unsound mind in civil litigation. It ensures that they have proper

representation and that their legal affairs are conducted in a manner that serves their

best interests. This order is essential for upholding fairness and justice in cases

involving individuals with limited legal capacity. Order XXXII of the CPC establishes

the framework for the representation of minors and persons of unsound mind in civil

suits. It ensures that their interests are properly protected and that legal proceedings

are conducted in a manner that serves their best interests.

TOPIC 35

SUIT BY INDIGENT PERSON (Order XXXIII)

Order XXXIII of the Code of Civil Procedure, 1908 (CPC), deals with suits filed by

indigent persons, often referred to as "pauper suits." This provision is designed to

ensure that individuals who cannot afford the costs associated with filing a civil suit

are not deprived of access to justice. Order XXXIII allows a person to sue as an

indigent person if they satisfy the court that they have insufficient means to pay the

court fees and other costs associated with the suit. In other words, it is for those who

are genuinely unable to afford the expenses of litigation.

The person seeking to file a suit as an indigent person must submit an application,

referred to as a "pauper application," to the court where they wish to initiate the suit.

This application should be accompanied by a plaint (a written statement of the claim)

358

ILR 1991 (1) Ker.700.

and an affidavit detailing the person's inability to pay court fees. The affidavit should

include details of the person's income, assets, and liabilities. It must demonstrate that

the person falls within the definition of an indigent person as per Order XXXIII CPC.

The court examines the pauper application and the accompanying affidavit. It may also

request additional information or documents to verify the person's financial condition.

After due scrutiny, if the court is satisfied that the person is genuinely indigent and

unable to pay court fees, it may grant permission to the applicant to file the suit as a

pauper. In such cases, the court exempts the person from paying court fees. If the

person filing the pauper suit does not have an advocate, the court may assign one at

the expense of the state to represent the pauper's interests in the case.

A person filing a pauper suit enjoys the same rights and privileges as any other party

to a civil suit. They can present evidence, cross-examine witnesses, and make legal

arguments. If a pauper ultimately wins the suit, they are not required to reimburse the

state for the court fees waived. If the suit is dismissed, the court may order the pauper

to pay the court fees that would have been payable had they not been granted pauper

status. Pauper suits should be filed in good faith and must be based on genuine claims.

False or frivolous pauper applications can lead to adverse consequences, including

dismissal of the suit and penalties.

Order XXXIII provides for filing of suits by indigent person. This order enables

the persons who are too poor to pay court fees and allows them to institute suit without

payment of requisite court fees. It is said that poverty should not be the cause of denial

of justice. Generally a plaintiff suing in a court of law is bound to pay court fees

prescribed under the Court Fees and Suit Valuation Act at the time of presentation of

suit. This order exempt a disabled person from paying the court fee at the first instance

and allows him to proceed his suit in ‘Forma Pauperis’.

A person is an indigent person if he is not possessed of sufficient means to

enable him to pay the fee prescribed by law for the plaint in such suit or where no such

fee is prescribed if he is not entitled to property worth Rs.1,000/- other than the

property exempt from attachment in execution of a decree and the subject matter of

the suit.

359

In Balakrishnan v. Narayanan Nair

360

, it was held that application under Order

33 can be filed after the institution of the suit.

In Joseph v. Jess Raphael

361

, it was held that O.38 R.6 only directs the Court to

give notice to the Government pleader. Court need not wait for Government pleader’s

report to decide the pauper application. Court can decide the application on the

evidence adduced by contesting parties.

In A. Prabhakaran v. K.P. Neelakantan

362

, it was held that when the house is

purchased on loan, the property hypothecated to the bank and loan remains

outstanding, property cannot be converted into cash to pay Court-fee.

In Resleth v. Indian Bank

363

, it was held that when wife is not in possession of

any immovable property, the fact that the husband is having sufficient income cannot

be taken as a ground to disallow the wife to file the appeal as an indigent person.

In Grand v. National Insurance

364

, it was held that a partnership firm cannot sue

as an indigent even on the ground that the firm is not possessed of sufficient assets.

In Narayana Krishna v. Kalliyanikutty Amma

365

, it was held that person suing

in representative capacity on behalf of Tarwad is entitled to the benefit of the section

though the tharavad is possessed of sufficient means.

359

Explanation to O.XXXIII, R.1.

360

1984 KLT 374.

361

1987 KLN 536.

362

AIR 1988 Ker.267.

363

AIR 1992 Ker.359.

364

ILR 1995 (1) Ker.87.

365

1970 KLJ 955.

In Murukesan v. District Collector, Ernakulam

366

, when the plaintiff succeed in

a pauper suit partially and lost substantially in a suit for recovery of compensation for

injuries sustained in a scooter accident it was held that the liability of payment of

Court-fee must be considered as per provisions to S.35 and R.12 of O.33.

Order XXXIII Rule 2 deals with the contents of application. Accordingly every

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

particulars:

1. The particulars required in regard to plaints in the suit;

2. The schedule of any movable or immovable property belonging to

the applicant with the estimate value thereof;

3. Signature and verifications as provided in Order VI.

In Sadanandan v. Prabhakaran

367

, it was held that the relevant date for deciding

whether the petitioner is entitled to sue in forma pauperis is the date of presentation of

the petition. The fact that he would be receiving his monthly emolument in future need

not be considered for the purpose of the case.

The application should be presented by the applicant in person to the court,

unless he is exempted from appearing in Court, in which case application may be

presented by authorized agent who can answer all material questions relating to the

application.

368

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.

369

Order XXXIII Rule 5 provides the circumstances by which the court will reject

the application for permission to sue as an indigent person. They are;

1. where the application is not famed and presented in the prescribed manner;

366

1980 KLN 764.

367

ILR 1977 (1) Ker.643.

368

O.XXX, R.3.

369

Proviso to O.XXX, R.3.

2. where the applicant is not an indigent person;

3. where the applicant has within 2 months from before the presentation of application,

dispose off any property fraudulently or in order to get permission to sue as an indigent

person

4. where the applicant has entered into any agreement with reference to the subject

matter of the proposed suit under which another person has obtained interest;

5. where the suit appears to be barred by law;

6. where any other person has entered into an agreement with the applicant to finance

cost of litigation.

In the first instance an enquiry into the means of application should be made by

the Chief Ministerial Officer of the court. The court may adopt report submitted by

such officer or may itself may make an enquiry.

370

Where the application submitted by applicant is in proper form and is duly

represented, the court may examine the applicant regarding the merits of the claim and

the property of the applicant. The court shall then issue notice to the opposite party

and Govt. pleader and fix a day for receiving evidence.

371

In Balakrishnan v. Narayanan Nair

372

, it was held that the failure to issue notice

to the Government pleader is not fatal to the application under O.33 R.6. If the High

Court is satisfied of the grounds enumerated under Section 115 it cannot interfere

because it differs from the conclusion of the subordinates Court on the question of fact

or law.

On the day fixed, the court shall examine the witness if any produced by either

party, hear their argument and either allow or reject the application.

373

Where an

application to sue as an indigent person is granted, it shall be deemed to be a plaint in

the suit and shall proceed in the ordinary manner.

374

370

Order XXXIII, Rule 1A.

371

Order XXXIII, Rule 5.

372

19984 KLN 173.

373

O.XXXIII, R.7.

374

O.XXXIII, R.8.

In Mathai Brijitha v. Thankapan Nair

375

, it was held that the party need not pay

Court-fee on the review petition at the time of filing it, if it is a proceeding connected

with the suit.

The court may assign a pleader to an indigent person if he is not represented by

a pleader.

376

Under Order XXXIII Rule 8 and under Order XXXIII Rule 9A, a

defendant can also plead set off or counter claim as an indigent person.

Where the court rejects an application to sue as an indigent person, it will grant

time to the applicant to pay court fee. Where an indigent person succeeds in a suit the

State Govt. can recover court fees from the party as per the direction in the decree and

it will be the first charge on the subject matter of the suit.

377

In Dev v. Chief Secretary, Government of Kerala

378

, the plaintiff suiting as

indigent person succeeds in part and fails in part. It was held that he has liability to pay

court fee in proportion to his success under R.10.

Where an indigent person fails in the suit, the court fees shall be paid by him.

379

Where the suit abates on account of the death of a plaintiff, such court fees should be

recovered from the estate of the deceased plaintiff.

Order XXXIII CPC is significant because it ensures that access to justice is not

restricted solely by financial means. It allows individuals who are genuinely indigent

to pursue their legal rights and claims without the burden of court fees. This provision

is crucial in promoting equity and inclusivity in the legal system. Order XXXIII of the

CPC provides a mechanism for indigent persons to file civil suits without the financial

burden of court fees. It aims to ensure that individuals with genuine claims have access

to justice and can seek legal redress, regardless of their financial circumstances.

TOPIC 36

375

1992 (3) Cur.364.

376

O.XXXIII, R.9.

377

O.XXXIII, R.10.

378

ILR 2003 (3) Ker.218.

379

O.XXXIII, R.11.

INTERPLEADER SUIT (Section 88, Order XXXV)

An interpleader suit is a legal action taken by a person or entity who holds property or

funds claimed by two or more parties and is uncertain about which claimant is entitled

to the property or funds. The objective of an interpleader suit is to seek court guidance

on the rightful owner of the property or funds and to avoid being caught in the middle

of conflicting claims. This legal mechanism is governed by Section 88 and Order

XXXV of the Code of Civil Procedure, 1908 (CPC).

Section 88 of the CPC provides the basis for instituting an interpleader suit. It states:

"Where two or more persons claim adversely to one another the same debt, sum of

money or other property, movable or immovable, from another person, being a

stakeholder, and such other person claims no interest in the subject-matter of the claim,

he may institute a suit of interpleader against all the claimants for the purpose of

obtaining a decision as to the person to whom the payment or delivery shall be made

and of obtaining indemnity for himself:

Provided that where any such person has transferred any such debt, sum or other

property for the purpose of avoiding payment to any claimant or to any other person

having a right thereto, such transfer shall be void as against all claimants."

According to S.88 where two or more persons claim adversely to one another the same

debt, sum of money or other property, movable or immovable property, from “another

person”, who claims no interest therein other than for charges or costs and who is ready

to pay or deliver it to the rightful claimant, such other person may institute a suit of

interpleader against all the claimants for the purpose of obtaining a decision as to the

person to whom the payment or delivery shall be made and of obtaining indemnity for

himself. Proviso to the section states that where any suit is pending in which the rights

of all parties can properly be decided, no such suit of interpleader shall be instituted.

Section 88 comes into play when a third party, referred to as the "stakeholder," holds

property, funds, or debts claimed by multiple parties who are in conflict over

ownership. The stakeholder, in such a situation, seeks the court's intervention to

determine the rightful claimant and protect themselves from legal repercussions. The

primary objective of instituting an interpleader suit is to obtain a court decision on the

rightful recipient of the property, funds, or debts in question. The stakeholder seeks

the court's direction to make a payment or delivery to the rightful claimant.

The stakeholder also seeks indemnity through the interpleader suit, which means

protection from any future claims or liabilities related to the property or funds in

question. This is to ensure that the stakeholder is not held liable for making an incorrect

payment. The proviso in Section 88 emphasizes that any transfer of property or funds

by the stakeholder, with the intent to avoid payment to a claimant or any other rightful

recipient, is considered void and not valid against the claimants.

Illustration

P is in possession of a jewel box, wherein he claims no interest himself, and is

ready and willing to hand over it to the rightful owner. The box is claimed by A as well

as by B. P may file an interpleader suit against A and B. the court will decide the

rightful owner of the jewel box as between A and B

Order XXXV of the CPC provides detailed procedural rules for interpleader suits. It

outlines the steps to be followed by the stakeholder when initiating the suit and the

process to be followed during the course of the suit. This order covers issues such as

the filing of the plaint, service of notices to the claimants, their response, and the court's

decision.

Order XXXV Rule 1 provides that in every suit of interpleader the plaint shall state the

following matters:

a. That the plaintiff claims no interest in the subject matter in dispute other than

for charges or costs;

b. The claims made by the defendants severally; and

c. That there is no collusion between the plaintiff and any of the defendants;

In National Insurance Co. Ltd. v. Antony T. George

380

, it was held that when

there is no dispute or when dispute is settled or could be decided in a pending litigation

an interpleader suit cannot be filed.

Order XXXV Rule 2 provides that where the thing claimed is capable of being

paid into court or placed in the custody of the court, the plaintiff may be required to

pay or place it before the court.

Order XXXV Rule 3 provides that where any of the defendants in an

interpleader suit is actually suing the plaintiff in respect of the subject matter of the

suit, the court in which the suit against the plaintiff is pending shall on being informed

by the court in which the interpleader suit has been instituted stay the proceedings as

against him; and his costs in the suit so stayed may be provided for in such suit; but if,

and in so far as, they are not provided for in that suit, they may be added to his costs

incurred in the interpleader-suit.

Order XXXV Rule 4 provides that at the first hearing the court may declare

that the plaintiff is discharged from all his liabilities to the defendant in respect of the

thing claimed, award him his cost, and dismiss him from suit or if it thinks that justice

or convenience is so require, retain all parties until the final disposal of the suit.

In Justice Thressiamma v. Jusinge Jerome

381

, it was held that the plaintiff has to

seek to implead all claimants before he can claim discharge under R.4 of O.35 C.P.C.

Order XXXV Rule 5 provides that nothing in the order shall be deemed to enable

agents to sue their principals, or tenants to sue their landlords, for the purpose of

compelling them to interplead with any person other than persons making claim

through such principals or landlords.

Illustrations

380

1989 (2) KLT SN 71.

381

AIR 1958 Ker.304.

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were

wrongfully obtained from him by A, and claims them from B. B cannot institute an

interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the

purpose of making the jewels a security for a debt due from himself to C. A afterwards

alleges that C’s debt is satisfied, and C alleges the contrary. Both claims the jewels

from B. B may institute an interpleader-suit against A and C.

Order XXXV Rule 6 provides that where the suit is properly instituted, the court

may provide for the cost of the original plaintiff by giving him a charge on the thing

claimed or in some other effectual way.

Interpleader suits are significant because they offer a legal remedy to third parties who

find themselves caught between conflicting claims to property, funds, or debts. These

suits help resolve disputes efficiently and provide clarity on rightful ownership while

protecting the stakeholder from potential legal complications. Section 88 and Order

XXXV of the CPC establish the legal framework for interpleader suits, allowing a

stakeholder to seek court intervention when faced with conflicting claims to property,

funds, or debts. These provisions aim to achieve a fair and just resolution of disputes

while safeguarding the interests of the stakeholder.

TOPIC 37

SUMMARY PROCEDURE (Order XXXVII)

382

Order XXXVII of the Code of Civil Procedure, 1908 (CPC), deals with the summary

procedure for the recovery of specific types of debts. This procedure is designed to

provide a quicker and more efficient legal process for cases involving straightforward

claims. The summary procedure under Order XXXVII of the CPC is primarily

applicable to suits for the recovery of money only and involves claims based on

promissory notes, bills of exchange, hundis, or a written contract, whether express or

382

In Aravindakshan v. Sukumaran, it was held that O.37 of the Civil Procedure Code substituted by

the Civil Procedure Code (Amendment) Act, 1976, is in force in Kerala with effect from 1.2.1977 and

continues to be force.

implied. The plaintiff (the person claiming the debt) initiates the summary procedure

by filing a plaint (a formal written statement of claim) accompanied by an affidavit

verifying the claim. In the affidavit, the plaintiff provides all necessary details of the

claim, including the amount owed and the basis for the claim. Instead of issuing a

summons to the defendant (the person against whom the claim is made), the court

issues a summons for judgment. This summons calls upon the defendant to either admit

the claim or contest it.

Upon receiving the summons for judgment, the defendant has two options: If the

defendant admits the claim, they can file a statement agreeing to pay the claimed

amount and any costs. The court then passes a judgment in favor of the plaintiff based

on this admission. If the defendant wishes to contest the claim, they must file an

affidavit stating the grounds of defense within the specified time frame. The court then

proceeds to hear the case in a regular manner. If the defendant contests the claim, the

case proceeds to a regular trial. The court will hear both parties, examine evidence,

and make a decision based on the merits of the case. If the defendant fails to respond

to the summons for judgment within the specified time or if the defendant's defense

appears to be frivolous, the court may pass a summary judgment in favor of the

plaintiff.

The summary procedure is quicker and more efficient than a regular civil suit, making

it suitable for straightforward debt recovery cases. It reduces the time and costs

associated with litigation, benefiting both parties. The procedure provides a

mechanism for the speedy recovery of debts based on clear documentary evidence.

Courts and Classes of Suits to which the Order is to Apply

Rule 1 (1) provides that this order shall apply to the following courts namely;

(a) High courts, city civil courts and courts of small causes; and

(b) other courts.

In respect of courts referred in clause (b), the High court may by notification in

the official gazette, restrict the operation of this order only to such categories of suits

as it deems proper, and may from time to time, as the circumstances of the case may

require, by subsequent notification in the official gazette, further restrict, enlarge or

vary, the categories of suits to be brought under the operation of this order as it deems

proper.

383

Rule 1 (2) provides that the order applies to the following classes of suits,

namely:-

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which plaintiff seeks to recover a debt or liquidated demand in money payable

by the defendant, with or without of 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 in the nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt

or liquidated demand only.

In State Bank v. Ashit Shipping Services (p) Ltd

384

, it was held that O.37 C.P.C.

does not provide for a claim based on indemnity bond because in cases of claims on

indemnity bonds the loss would first have to be proved. A summary procedure cannot

be adopted in such cases.

Institution of Summary Suits

Rule 2 (1) provides that a suit may be instituted by presenting a plaint which

shall contain,-

a) a specific averment to the effect that the suit is filed under this order;

b) that no relief, which does not fall within the ambit of this rule, has been claimed in the

plaint; and

383

Proviso to R.1 (1).

384

2002 (4) SCC 736.

namely:-“Under Order XXXVII of the Code of Civil Procedure, 1908”

The defendant shall not defend the suit referred to in R.2 (1) unless he enters an

appearance and in default of his entering an appearance the allegation in the plaint

shall be deemed to be admitted and the plaintiff shall be entitled to a decree for any

sum, not exceeding the sum mentioned in the summons, together with interest at the

rate specified, if any, up to the date of the decree and such sum for costs as may be

determined by the High Court from time to time by rules made in that behalf and such

decree may be executed forthwith.

385

Procedure for the Appearance of Defendant

Rule 3 (1) provides that the plaintiff shall, together with summons, serve on the

defendant, a copy of the plaint and annexure thereto, and the defendant may, within

ten days of such service, enter appearance and he shall file an address for service of

notices on him.

Rule 3 (3) provides that on the day of entering appearance, notice of such

appearance shall be given by the defendant to the plaintiff’s pleader, or, if the plaintiff

sues in person, to the plaintiff himself, either by notice delivered at or sent by a pre-

paid letter directed to the address of the plaintiff’s pleader or of the plaintiff, as the

case may be.

Rule 3 (4) provides that if the defendant enters an appearance, the plaintiff shall

serve on the defendant a summons returnable not less than ten days from the date of

service supported by an affidavit stating that in his belief there is no defence to the suit.

Rule 3 (5) provides that the defendant may, at any time within ten days from the

service of summons for judgment, by affidavit or otherwise apply for leave to defend

such suit where a part of the amount claimed by the plaintiff is admitted by the

defendant to be due from him. Leave to defend the suit shall not be granted unless the

amount so admitted is deposited in court.

386

Rule 3 (6) provides that at the hearing of such summons for judgment—

385

R.2 (3).

386

Proviso to R. 3 (5).

(a) if the defendant has not applied for leave to defend, or if such application has been

made or refused, the plaintiff shall be entitled for judgment forthwith; or

(b) if the defendant is permitted to defend as to the whole or any part

of the claim, the Court or Judge may direct him to give such security within

such time fixed, on failure, the plaintiff shall be entitled to judgment.

The Court or Judge may, for sufficient cause shown by the defendant, excuse

the delay of the defendant in entering an appearance or in applying for leave to defend

the suit.

387

In O.N.G.C. Ltd. v. State Bank of India

388

, it was held that in summary suit for

recovery of money assessed as liquidated damages, order allowing application for

leave to defend by bank, giving bank guarantee is liable to be dismissed in absence of

plea relating to fraud.

In Raj Duggal v. Ramesh Kumar

389

, it was held that summary judgments under

O.37 should not be granted where serious conflict as to matter of fact or where any

difficulty or issues as to law arises. The Court should not reject the defence of the

defendant merely because of the inherent implausibility or its inconsistency.

In Sunil Enterprises v. SBIC & Bank Ltd

390

, it was held that unconditional leave

to defend summary suit must be granted where defence raised by defendant is not

totally defenceless or illusory.

Power to Set Aside Decree

Rule 4 provides that after decree the court may, under special circumstances, set

aside the decree, and if necessary stay or set aside execution, and may give leave to

the defendant to appear to the summons and defend the suit, if it seems reasonable to

the Court so to do, and no such terms as the Court thinks fit.

Power to Order to Bill, etc., to be Deposited with Officer of Court

R.5 provides that in any proceeding under this order the Court may order the

bill, hundi or note on which the suit is founded to be forthwith deposited with an officer

387

R.3 (7).

388

AIR 2000 SC 2548.

389

1991 Supp. (1) SCC 191.

390

1998 (5) SCC 354.

of the Court, and may further order that all proceedings shall be stayed until the

plaintiff gives security for the costs thereof.

Recovery of Cost of Noting Non-Acceptanceof Dishonoured Bill or Note

R.6 provides that the holder of every dishonoured bill of exchange or promissory

note shall have the same remedies for the recovery of the expenses incurred in noting

the same for non-acceptance or non-payment, or otherwise, by reason of such

dishonour, as he has under this order for the recovery of the amount of such bill or

note.

Procedure in Suits

Rule 7 provides that shall be the same as the procedure in suits instituted in the

ordinary manner.

The summary procedure is limited to cases involving specific types of debts and clear

documentary evidence. If the defendant contests the claim, the case may still proceed

to a regular trial, negating some of the time-saving advantages of summary procedure.

Order XXXVII of the CPC provides a summary procedure for the efficient recovery

of debts based on specific types of written instruments and clear documentary

evidence. It streamlines the legal process by allowing for quicker judgments when the

defendant does not contest the claim or when the defense appears frivolous. However,

it is limited in its application to certain types of claims.

TOPIC 38

APPEALS, REFERENCE, REVIEW AND REMAND

(Sections 96 to 109 Order XXXXI to XLVII)

The Code of Civil Procedure, 1908 (CPC), contains a comprehensive set of provisions

governing the processes of appeals, reference to higher courts, review of judgments,

and remand of cases. These provisions, found in Sections 96 to 109 and Order XXXI

to XLVII of the CPC, outline the procedures for seeking redressal, clarification, and

re-examination of civil cases.

Appeal

The literary meaning of appeal is, to demand another judgment by a higher court.

It is a creature of statute. The Code does not define appeals but it can be said that any

application by a party to an Appellate Court asking it to set aside or revise a decision

of a lower court, is an appeal. It is the judicial examination of the decision of an inferior

court.

Litigants are not entitled to appeal in every matter, as a matter of right. An appeal

lies only if it is expressly prescribe by any Act or Rules. Only a party to the suit can

prefer an appeal. In the event of his death his legal representative can file an appeal.

Appeals (Sections 96 to 109 and Order XLI to XLVII):

Sections 96 to 109: These sections deal with the right to appeal from decrees and orders

of civil courts. They specify who can file an appeal, the grounds for appeal, the

procedure for filing and hearing appeals, and the powers of appellate courts. Notable

sections include Section 96 (appeals from original decrees), Section 100 (second

appeals), and Section 104 (questions to be decided by appellate court).

Order XLI to XLVII: These orders provide procedural rules for filing and prosecuting

appeals. They cover issues such as the contents of appeal memorials, the procedure for

hearings, the disposal of appeals, and the enforcement of decrees.

In Sreedharan v. Sreedharan Embrandiri

391

, appeal was preferred with dead

person alone shown as respondent. It was held that application for amendment of

memorandum by substituting his legal representative must be brought within the time

as extended under S.5 of the Limitations Act or time prescribed for instituing the

appeal.

When the appeal is against an order made in execution of a money decree the

judgment debtor shall deposit or furnish security for the decretal amount. The

provision requiring the judgment debtor to furnish security is no mandatory. If the

391

1967 KLT 1016.

appeal is not properly drawn up, the appeal may be rejected or returned to the party for

the purpose of being amended.

An appeal may lie from an original decree passed ex-parte.

392

A consent or

compromise decree is not appealable.

393

When an appeal is represented after the limitation period, leave of the court has

to be obtained for condition of delay. If a party does not file the appeal within the time

of limitation, it is mandatory for him to present the appeal supported by an affidavit to

satisfy the court that he had sufficient cause for not preferring the appeal within such

period. An appeal shall be presented within 30 days, if the appeal is to the District

Court and 90 days, if it is to the High Court. The time needed for taking copies of the

decree is excluded. Sec.96 (4) says that no appeal shall lie except on a question of law

from a decree of a small cause court or when the amount or value of subject matter

does not exceed Rs.10,000/-.

394

In Abraham Joseph v. Kuruvilla

395

, it was held that a party or a person is said to

be aggrieved by a decision when it operates directly or indirectly upon his pecuniary,

personal or proprietory interest.

In Baldev Singh v. Surinder Mohan Sharma and Others

396

, it was held that an

appeal would be maintainable only at the instance of a person aggrieved by and

dissatisfied with the judgment and decree. Hence, an appeal filed merely in furtherance

of separate pending dispute between the parties is not maintainable.

Form of Appeal

Order XXXXI, Rule 1 provides for the form of appeal; the presentation of

appeal; the documents to accompany the Memorandum of appeal; the contents of the

392

Sec.96 (2).

393

Sec.96 (3).

394

w.e.f. 01-07-2002.

395

1990 (1) KLT SN 46.

396

2003 (1) SCC 34.

Memorandum and furnishing of security for the decretal amount by the judgment

debtor. The appeal shall be preferred in the form of a memorandum signed by the

appellant or his pleader along with a copy of the decree appealed from and the

judgment. The memorandum of appeal should contain the grounds on which appeal is

preferred.

Where a memorandum of appeal is presented in the court by an unauthorized

person, it is no appeal at all and the court may reject it. Similarly in the absence of a

copy of the decree filing of the appeal would be incompetent, defective and

incompetent.

Even though pleas not raised in trial court cannot be raised in appeal, pure

questions of law may be raised for the first time in the Appellate Court. Eg. A

constitutional issue, a plea of res judicata, a plea of limitation etc.

Powers of the Appellate Court

The appellate court may:

1. Determine the case or

2. Remand the case or

3. Frame issue and refer for fresh trial

4. Take additional evidence.

By Order XXXXI, Rule 27, the Appellate Court may be allowed additional

evidence or document to be produced or witness to be examined.

Second Appeal (Sec.100)

Second appeals are appeals from the first Appellate Court. A second appeal lies

only where the High Court is satisfied that the case involves a substantial question of

law. The object of this section is to put an end to continuing litigations.

The court shall reject the appeal if there is no substantial question of law. A

party may file second appeal against an ex-parte decree. Similarly the question of fact

and law cannot be permitted to be raised for the first time in appeal.

397

Shamim Ahmad v. Rashida Begum, AIR 2001 All. 302.

As per Sec.100 the right of second appeal should be confined to cases where:-

1. Question of law is involved and

2. The question of law so involved is substantial.

In Lekshmi v. Lekshmanan

398

, it was held that the lower Appellate Court on

appreciation of evidence held that the appellants have not succeeded in establishing

their case of adverse possession and limitation and as it is a finding of fact this Court

cannot interfere with that finding in the second appeal.

In Babu Ram v. Indra Pal Singh

399

, it was held that High Court has no

jurisdiction in second appeal to make out a new case and render its findings thereon.

In Chandrabhagabai v. Ramakrishna

400

, it was held that High Court is justified

in not interfering, in second appeal, with concurrent findings of fact by Trial Court and

first Appellate Court that plaintiffs failed to establish their title to suit premises based

on relevant evidence.

In Rattan Dev v. Pasam Devi

401

, it was held that non application of mind by first

Appellate Court to evidence available on record. Trial Court decreed the suit on the

ground that though plaintiff had examined his special power of attorney and of other

witnesses, had himself abstained from appearing in witness box. First Appellate Court

drew an adverse inference against the plaintiff without applying its mind to the other

evidence though available on record. Held, such omission of first Appellate Court did

raise a substantial question of law, and matter was remanded to first Appellate Court

to hear the matter afresh.

No Further Appeal in Certain Cases

398

1989 (2) KLT 722.

399

1998 (6) SCC 358.

400

1998 (6) SCC 207.

401

2002 (7) SCC 441.

Notwithstanding anything contained in any Letters Patent for any High

Court or in any instrument having the force of law or in any other law for the time

being in force, where any appeal from an original or appellate decree or order is

heard and decided by a Single Judge of a High Court, no further appeal shall lie from

the judgment and decree of such Single Judge.

402

Sec.101 says, no second appeal shall lie except on the ground mentioned in

Sec.100. Sec.102 says, no second appeal shall lie from any decree, when the amount

or value of the subject matter of the original suit does not exceed Rs.25,000/-.

403

Appeal to the Supreme Court

404

Sec.109 of the Code has to be read with and subject to the provision of Article

133 of the Constitution:-

Article 133 of the Constitution is the main provision regarding appeals to a

Supreme Court from High Court in regard to civil matters. An appeal lies from any

judgment, decree or final order in a civil proceeding if a High Court certifies,-

1. That the case involves a substantial question of law;

2. In the opinion of the High Court the said question need to be decided by the Supreme

Court.

A party who wants to file an appeal to the Supreme Court shall move a petition

to the High Court stating the grounds of appeal and praying for a certificate that the

case involves a substantial question of law and that in the opinion of the court the said

question needs to be decided by the Supreme Court.

When the High Court refuses to issue the certificate, it should state the reasons

for refusal. The application shall also deposit the amount required to defray the

402

S.100A.

403

w.e.f. 01-07-2002.

404

Sec.109 & O.LXV, R.3.

expenses of translating, indexing, printing and transmitting the record of the suit to the

Supreme Court.

Under Article 136, the Supreme Court may by discretion grant special leave to

appeal from any judgment decree or order in any case made by any court or tribunal

in India.

Remand of a Case (Remand Order) (Order XXXXI, Rule 23)

The remand means, to send back. An appeal Court may remand a case whenever

it thinks it necessary in the interests of justice. In order to remand a case, certain

conditions are to be fulfilled.

1. The lower court has disposed off the suit on a preliminary point.

2. The whole suit has been determined upon a preliminary point.

3. The decree under appeal is reversed by the Appellate Court.

The Appellate Court cannot remand a case where the lower court had decided

the case on merits. When the lower court has omitted to frame an important issue, the

Appellate Court can remand the issue to the lower court. The Appellate Court may

direct what issue shall be tried in the case so remanded and shall send a copy of its

judgment and order to the lower court.

When a case is remanded, the court below is bound to comply with it. In a second

appeal also, the Appellate Court may frame an issue and remit the same to the lower

Appellate Court for finding. Normally, an Appellate Court should not remand a case

on a plea raised for the first time in appeal. The remand order should also state the time

within which the lower court shall return the evidence of the Appellate Court together

with its findings. The remand order should be clear, certain and definite and without

any ambiguity.

Remand of a case is at the discretion of the Appellate Court. The section is not

mandatory; the Appellate Court is not bound to remand a case. It can dispose off the

case by itself. Section 107 provides for the remand of cases by appellate courts to

lower courts for further proceedings. Appellate courts may remand a case when they

believe that additional evidence or a rehearing of certain issues is necessary for a just

decision. The lower court then conducts proceedings as directed by the appellate court.

Reference (S.113 & Order XLVI)

Section 113 and Order XLVI of the Code of Civil Procedure, 1908 (CPC), pertain to

the reference of certain issues to arbitration or other forms of alternative dispute

resolution. These provisions offer parties involved in civil litigation the option to

resolve specific issues through alternative methods, promoting faster and less

adversarial dispute resolution. Section 113 of the CPC deals with the reference of

disputes to arbitration. It states:

"Subject to the provisions of the Arbitration and Conciliation Act, 1996, and

notwithstanding anything contained in Part I or Part II of this Code, if any party to a

suit applies to the Court for reference of the dispute to arbitration, the Court shall, if it

is satisfied that the arbitration agreement is valid, refer the parties to arbitration."

Section 113 empowers a civil court to refer a dispute to arbitration if one of the parties

to a suit applies for such a reference, and the court is satisfied that the arbitration

agreement between the parties is valid. The section specifies that the provisions of the

Arbitration and Conciliation Act, 1996 (which governs arbitration in India), take

precedence over the CPC when it comes to the reference of disputes to arbitration.

In Pankajaksha Menon v. Union Bank of India

405

, it was held that if the question

sought to be raised is one which falls under the main part of S.133, the same cannot be

referred because the decree that will be passed in the suit is appealable, that means the

Appellate Court can correct the error, the Trial Court may commit.

405

1988 (2) KLT 142.

In Sushama v. Mercy Antony

406

, it was held that civil revision petition is

maintainable against orders passed by Appellate Court/District Court in appeals filed

under S.133 of the Panchayat Raj Act.

In Ganga Pratap v. Allahabad Bank

407

, it was held that reference can be made

as to the validity of an Act, Ordinance and Regulation.

In George v. Abraham

408

, it was held that a reference ordinarily would lie only

if the conditions and limitations prescribed in the Code are satisfied. Unless it is

satisfied that the determination of question is necessary for the disposal of the case, the

court need not make a reference under S.113 proviso of the CPC.

Reference of Questions to High Court

Order XLVI of the CPC deals with the reference of certain issues to a High

Court for its opinion. This order is particularly relevant when a question of law arises

in a civil case, and the court believes it necessary to obtain the High Court's opinion.

Order XLVI provides for the reference of questions of law, not issues of fact, to the

High Court. This allows for the clarification of legal points that may impact the

outcome of a case. The order outlines the procedure for making a reference to the High

Court, including the preparation of a statement of the case and the submission of the

case for the High Court's opinion.

Once the High Court receives the reference, it provides its opinion on the legal question

presented. While the High Court's opinion is not binding on the lower court, it carries

significant weight and is typically followed. Order XLVI enables the lower court to

seek guidance on complex legal issues, promoting consistency in legal interpretation

and contributing to the development of legal principles.

S.113 provides that subject to such conditions and limitations as may be

prescribed, any court may state a case and refer the same for the opinion of the High

Court, and the High Court may make such order thereon as it thinks fit.

406

1999 (3) KLT 818.

407

AIR 1958 SC 293.

408

1979 KLT 452.

Proviso to S.113 states that where the Court is satisfied that a case pending

before it involves a question as to the validity of any Act, Ordinance or Regulation

409

or of any provision contained in an Act, Ordinance or Regulation, the determination

of which is necessary for the disposal of the case, and is of opinion that such Act,

Ordinance, Regulation or provision is invalid or inoperative, but has not been so

declared by the High Court to which that Court is subordinate or by the Supreme Court,

the Court shall state a case setting out its opinion and the reasons thereof, and refer the

same for the opinion of the High Court. Order XLVI, Rule 1 provides that where,

before or on the hearing of a suit, or an appeal in which the decree is not subject to

appeal, or where, in the execution of such decree, any question of law or usage, having

the force of law arises, on which the court trying the suit or appeal or executing the

decree, entertains reasonable doubt, the Court may, either in its own motion or on the

application of any of the parties, draw up a statement of the facts of the case and the

point on which the doubt is entertained, and refer such statement with its own opinion

on the point for the decision of the High Court.

Court may Pass Decree Contingent upon Decision of High Court

Rule 2 provides that the court may either stay the proceedings or proceed in the

case notwithstanding such reference and may pass a decree or make such order

contingent upon the decision of the High Court on the point referred; but no decree or

order shall be executed in any case in which such reference is made, until the receipt

of a copy of the judgment of the High Court upon the reference.

Judgment of High Court to be Transmitted and the Case Disposed of Accordingly

Rule 3 provides that the High Court, after hearing the parties if they appear and

desire to be heard, shall decide the point so referred, and shall transmit a copy of its

judgment, under the signature of the Registrar, to the Court by which the reference was

made; and such court shall, on the receipt thereof, proceed to dispose of the case in

conformity with the decision of the High Court.

409

Explanation to S.113 states that “regulation” means any regulation of the Bengal, Bombay, or madras

Code or Regulation as defined in the General Clauses Act, 1897 (10of 1897), or in the General Clauses

Act of a State.

Power to Alter Decree of Court Making Reference

Rule 5 provides that the High Court may return the case for amendment, and

may alter, cancel or set aside any decree or order which the court making the reference

has passed or made in the case out of which the reference arose, and make such orders

as it thinks fit.

Power to Refer to High Court Questions as to Jurisdiction in Small Causes

By virtue of R.6 (1) where at any time before judgment a court in which a suit

has been instituted doubts whether the suit is cognizable by a court exercising small

cause jurisdiction or is not so cognizable, it may submit the record to the High Court

with a statement of its reasons for the doubt as to the nature of the suit.

By virtue of R.6 (2) on receiving the record and statement, the High Court may

order the court either to proceed with the suit or to return the plaint for presentation to

such other court as it may in its order declare to be competent to take cognizance of

the suit. Section 113 and Order XLVI of the CPC offer mechanisms for the reference

of disputes to arbitration or for obtaining the High Court's opinion on questions of law.

These provisions aim to provide parties with alternative avenues for dispute resolution

and to ensure the correct interpretation of legal issues in civil cases.

Review (S.114 & Order XLVII)

Section 114 and Order XLVII of the Code of Civil Procedure, 1908 (CPC), are

significant provisions that pertain to the review of judgments and orders passed by

civil courts in India. Section 114 of the CPC addresses the concept of reviewing

judgments and orders of civil courts. It states:

"Subject as aforesaid, any person considering himself aggrieved by a decree or order

from which an appeal is allowed by this Code, but from which no appeal has been

preferred, or by a decree or order from which no appeal is allowed by this Code, may

apply for a review of judgment to the Court which passed the decree or made the order,

and the Court may make such order thereon as it thinks fit."

Section 114 grants a limited right to parties to seek a review of judgments or orders

passed by civil courts. This right is available when no appeal is allowed by the CPC or

when an appeal is allowed but has not been preferred. The court has discretion in

deciding whether to grant a review, and it can make such orders as it deems fit. The

review is not a rehearing of the entire case but is meant to correct errors, clarify points

of law, or consider new evidence that was not available at the time of the original

judgment. While the CPC does not prescribe a specific time limit for filing a review

petition, it is generally expected that the application for review should be filed within

a reasonable time.

Order XLVII of the CPC provides procedural details for the filing and disposal of

review petitions. It includes rules related to the form and contents of the review

petition, the procedure for serving notice to the opposite party, and the court's powers

in conducting a review. The order specifies the format and content of the review

application, including the grounds for seeking a review. Upon the filing of a review

petition, the court may issue notice to the opposite party, allowing them to respond to

the grounds mentioned in the review application. Order XLVII allows the court to

consider new evidence if it is produced in support of the review petition and is relevant

to the case. The court has discretion in deciding whether to grant a review and can

either confirm, modify, or reverse its previous judgment or order.

S.114 provides that any person considering himself aggrieved,-

(a) by a decree or order from which an appeal is allowed by this Code, but from

which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

review of judgment to the court which passed the decree or made the order, and the

court may make such order thereon as it thinks fit.

In Mahakali Engneering Corporation v. R. C. Subramanyan

410

, in review

petition, an order was challenged which was passed in the absence of counsel of review

410

2000 (10) SCC 264.

petitioner. It was held that the High Court ought to have allowed review petition and

heard matter on merits.

In Chetan Metal Supply Corporation v. Union of India

411

, it was held that review

will lie where petitioner’s writ petition is wrongly placed on High Court along with

another group of petitions and dismissed with them.

In Bhaskaran v. Dhanalakshmi Bank Ltd

412

, an appeal was preferred against

order in execution. Appeal was allowed by allowing appellant to pay decree debt in

installments. It was held that the appellant cannot be treated as a party aggrieved by

the judgment.

In Mary v. Pappu

413

, no objection was raised at the time of hearing of the appeal

by the Division Bench that the appeal should be heard by a single Judge. It was held

that dismissal of the appeal on merits by the Division Bench cannot be said to have

suffered from any error apparent on the face of record.

In Karthy v. Parukutty

414

, it was held that subsequent filing of an appeal by a

co-party would not ipso facto take away the jurisdiction of the lower Court to consider

and dispose of the review, unless that Court had information that an appeal has been

disposed of.

Application for Review of Judgment

Order XLVII, Rule 1 (1) provides that any person considering himself

aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has

been preferred;

(b) by a decree or order from which no appeal is allowed, or

discovery of new and important matter or evidence which, after the exercise of due

diligence, was not within his knowledge, or could not be produced by him at the time

when the decree was passed or order made, or on account of some mistake or error

411

2000 (10) SCC 96.

412

1996 (1) KLT 463.

413

2001 (1) KLT 12.

414

1999 (3) KLT 850.

apparent on the face of record, or for any other sufficient reason, desires to obtain a

review of the decree passed or order made against him, may apply for a review of

judgment to the court which passed the decree or made the order.

Rule 1 (2) provides that a party who is not appealing from a decree or order may

apply for a review of the judgment notwithstanding the pendency of an appeal by some

other party except where the ground of such appeal is common to the applicant and the

appellant, or when, being respondent, he can present to the Appellate Court the case

on which he applies for review.

In Krishnan v. Radhalakshmi Amma

415

, it was held that the power of review of

order of controller has to be exercised in accordance with O.47 R.1 CPC.

In Cochin Port Trust v. Ernakulam Dt. L.D. and C Labour Union

416

, it was held

that change in the policy subsequent to the decision of the High Court cannot be a

ground for review of the judgment.

In Mohankumar v. Natarajan

417

, it was held that the successor in officer cannot

review the order suo motu.

In A.C. Estates v. Seerajudin & Co.

418

, it was held that discovery of new and

important matter is not a ground for review.

In Thungabadra Industries v. State of A.P.

419

, it was held that error must be

patent which will not admit elaborate argument. Two views cannot be taken, is a

ground for review.

In M.M.B. Catholicos v. M.P. Athnasius

420

, it was held that the decision matters

which do not come within the issue amounts to an ‘error apparent on the face of the

record’.

In K.P.M. Abdhul Rahimankutty Haji v. P.I. Naffesabi and Another

421

, it was

held that when there is no error apparent on the face of record there is no scope for

review.

415

AIR 1972 Ker.145.

416

ILR 1995 (3) Ker.449.

417

ILR 1998 (2) Ker.210.

418

AIR 1966 SC 635.

419

AIR 1964 SC 455.

420

AIR 1954 SC 1372.

421

ILR 2001 (1) Ker.453.

Application where Rejected

Rule 4 (1) provides that where it appears to the court that there is no sufficient

ground for a review, it shall reject the application.

Application where Granted

Rule 4 (2) provides that where the Court is of opinion that the application for

review should be granted, it shall grant the same:

Provided that-

(a) no such application shall be granted without previous notice to the opposite party, to

enable him to appear and be heard in support of the decree or order, a review of which

is applied for; and

(b) no such application shall be granted on the ground of discovery of new matter or

evidence which the applicant alleges was not within his knowledge, or could not be

adduced by him when the decree or order was passed or made, without strict proof of

such allegation.

Application for Review in Court Consisting of two or more Judges

R.5 provides that where the judge or judges, or any one of the judges, who

passed the decree or made the order, a review of which is applied for, continues or

continue attached to the Court at the time when the application for a review is

presented, and is not or are not precluded by absence or other cause for a period of

next six months next after the application from considering the decree or order to which

the application refers, such Judge or Judges or any of them shall hear the application.

(a) Provided that in an application for review of any Judgment or Order in the

High Court where the Judgment or Order has been passed by a single Judge, by the

same Judge if he is available and if he is not available or is otherwise precluded from

hearing the application, it may be heard by another Judge nominated by the Chief

Justice for the purpose.

(b) provided further that where the Judgment or Order has been passed by a

Division Bench or Full Bench, it shall be heard by the same Bench if all the Judges are

available, and if all or any of the Judges are not available or are otherwise precluded

from hearing the application, by a Bench constituted by the Chief Justice for the

purpose, which shall be equal in strength to that which passed the Judgment or Order

sought to be reviewed and of which, the available Judge or Judges of that Bench shall

be members.

In Narayanan v. Raman

422

, it was held that the prohibition contained in R.5 of

O.47 of CPC comes into operation only in cases where all or any of the Judges who

passed the decree or order sought to be reviewed continued attached to the Court at the

time when the application for review of such decree or order was presented and were

not or was not precluded by absence or other cause during the next six months period

from hearing such appeal.

In R. Veerakumar v. The Trivandrum Permanent Bank Ltd.

423

, it was held that

where decree was passed by two Judges and one of them is present and other is absent

the petition for review has to be heard when the other Judge returns cannot be heard

by one of the Judges alone.

In State v. Ponnan and Other

424

, it was held that Judges who passed the

judgment attached to Court for six months from filing of review application and not

precluded from hearing it review cannot be heard by Judges who had not passed the

judgment.

Application where Rejected

R.6 (1) provides that where the application for a review is heard by more than

one Judge and the Court is equally divided, the application shall be rejected.

422

1953 KLT 216.

423

1972 KLT 347.

424

1952 (2) KLT 382.

R.6 (2) provides that where there is a majority, the decision shall be according

to the opinion of the majority.

Order of Rejection not Appealable

Rule 7 (1) provides that an order of the court rejecting the application shall not

be appealable; but an order granting an application may be objected to at once, by an

appeal from the decree or order finally passed or made in the suit.

Rule 7 (2) provides that where the application has been rejected on failure of the

applicant to appear, and where sufficient cause is proved to the satisfaction of the

court for the non appearance, the court may order the rejected application to be restored

to file.

Rule 7 (3) provides that no order shall be made under Sub-rule (2) unless notice

of the application has been served on the opposite party.

Bar of Certain Applications

Rule 9 provides that no application to review an order made on an application

for a review or a decree or order passed or made on a review shall be entertained.

Section 114 and Order XLVII provide an avenue for parties to seek a review when

they believe that a judgment or order contains errors that need rectification. This helps

in upholding the principles of justice and fairness. Reviews can be sought to clarify

points of law or to address ambiguities in judgments, contributing to the development

of legal principles. These provisions ensure that parties have a mechanism to address

grievances when no further appeal is available, thereby promoting access to justice.

Section 114 and Order XLVII of the CPC are essential components of the Indian legal

system that allow for the review of judgments and orders in civil cases. They serve as

a mechanism to correct errors, clarify legal issues, and provide parties with an

opportunity to seek justice when no further appeal is possible.

These provisions ensure that parties have access to a multi-tiered judicial system,

allowing them to challenge decisions they believe are erroneous or unjust. Reference

to higher courts and review processes serve to clarify legal issues and ensure

consistency in the application of law. Remand of cases allows for the correction of

procedural errors or the consideration of additional evidence, enhancing the fairness

of the legal process. While appeals and reviews provide opportunities for

reconsideration, they also contribute to the finality of legal decisions by allowing for

comprehensive examination and redressal of grievances. Sections 96 to 109 and Order

XLI to XLVII of the CPC establish procedures for appeals, reference to higher courts,

review of judgments, and remand of cases. These processes are essential for upholding

justice, ensuring fairness, and providing parties with avenues for seeking legal

redressal and clarification in civil cases.

TOPIC 39

LODGING OF CAVEAT (Section 148A & Order LIV)

The lodging of a caveat is an important provision under the Code of Civil

Procedure, 1908 (CPC). It is governed primarily by Section 148A of the CPC and is

also associated with Order LIV of the CPC. Section 148A of the CPC deals with

caveats. A caveat is a legal notice filed by a person with the court to prevent an ex

parte order or decree from being passed against them without notice and an opportunity

to be heard.

The primary purpose of lodging a caveat is to ensure that if any party intends to initiate

legal proceedings that may affect the person who lodged the caveat, that party must

provide prior notice to the caveator (the person who lodged the caveat). To lodge a

caveat, a person files a formal caveat petition or notice in the appropriate court. The

caveat contains details about the case, the parties involved, and the grounds for lodging

the caveat. It is essential to follow the prescribed format and procedure for lodging a

caveat.

Once a caveat is lodged, if any party initiates proceedings that may affect the caveator's

interests, the court is required to give notice to the caveator. This notice ensures that

the caveator has an opportunity to appear before the court and present their case. A

caveat remains in force for a specific period, usually 90 days, after which it can be

extended by the caveator. It is essential to keep the caveat up to date to ensure

continued protection.

Provisions regarding the right to lodge a caveat and rules regulating lodging of caveats

are contained in S.148A and Order LIV of CPC. S.148A (1) and O.LIV Rule 1 provides

that any person claiming a right to appear before the court on the hearing of an

application which is expected to be made or has been made in a suit, appeal, revision

or any proceeding, instituted or about to be instituted in a court to which the Code

applies, may lodge a caveat in the court.

425

Order LIV of the CPC provides further details and rules regarding caveats. It lays down

the specific procedure for lodging and maintaining caveats in civil cases. Order LIV

specifies the form in which a caveat should be lodged. It includes details such as the

cause title, the grounds for lodging the caveat, and the relief sought. The order provides

for the extension of caveats beyond the initial 90-day period. A caveator can apply for

an extension if they believe their interests are still at risk. The order also addresses the

procedure for withdrawing a caveat. A caveator can withdraw a caveat by filing a

formal application to the court.

O.LIV Rule 3 provides that as soon as a person lodges a caveat, an entry shall

be made in the Register of Caveats in the presence of the Caveator himself or the

pleader who shall sign the register.

O.LIV Rule 4 and S.148A (2) provides that where a caveat has been lodged

under sub-section (1), the person by whom the caveat has been lodged

426

shall serve a

notice of the caveat by registered post, acknowledgment due, on the person by whom

the application has been, or is expected to be, made under sub-section (1).

425

The caveat shall be accompanied by-(a) as many copies of the notice of caveat as will be required to

be served on the applicant;

(b) the court fee prescribed for the caveat and;

426

hereinafter referred to as the caveator.

O.LIV Rule 5 and S.148A (3) provides that where, after a caveat has been lodged

under sub-section (1), any application is filed in any suit or proceeding, the Court shall

serve a notice of the application on the caveator.

O.LIV Rule 6 provides that the appointment of an Advocate by Caveator under

R.4 of O.III will be sufficient for the suit, appeal or proceedings in relation to which

application is expected, provided the same is filed caveat remains in force. An

endorsement to that effect showing the details of the appointment including the name

of the Advocate and the address for service shall be made by Chief Ministerial Officer

of the court on the plaint, appeal or proceeding.

S.148A (4) provides that where a notice of any caveat has been served on the

applicant, he shall forthwith furnish the caveator, at the caveator’s expense, with a

copy of the application made by him and also with copies of any paper or document

which has been, or may be, filed by him in support of the application.

S.148A (5) provides that where a caveat has been lodged under sub-section (1),

such caveat shall not remain in force after the expiry of ninety days from the date on

which it was lodged unless the application referred to in sub-section (1) has been made

before the expiry of the said period.

In Moideen v. Kadeesa Umma

427

, it was held that when the caveator claims

independent possession on the basis of oral lease and claiming that they cannot be

dispossessed in execution, caveat is not maintainable. As such, an application under

S.148A is not maintainable. His remedy is to file application under O.21 R.99.

In Sudhakaran v. Thankamma

428

, it was held that the Court should see that the

office maintains a register for every caveat lodged.

In Virotex Cables v. TICC ltd

429

, it was held that application for lodging caveat

by an industrial concern against corporation is not maintainable.

427

1991 (1) KLT SN 57.

428

1988 (1) KLT 545.

429

1990 (2) KLT SN 74.

Caveats are significant because they serve as a protective measure for individuals and

entities who anticipate that legal proceedings may be initiated against them. By lodging

a caveat, they ensure that they are not caught off guard by ex parte orders or decrees,

and they have an opportunity to defend their interests in court. Section 148A and Order

LIV of the CPC provide the legal framework for lodging caveats in civil cases in India.

These provisions help safeguard the rights of individuals and entities by ensuring that

they are informed and have a chance to be heard when legal proceedings that may

affect them are initiated.

TOPIC 40

INHERENT POWER OF CIVIL COURT (Section 151)

The purpose of judiciary is to secure justice to all. Assuming that, there are no

specific provisions in the Code to confer justice quickly, the civil court can exercise

its inherent jurisdiction. Section 151 of the Code of Civil Procedure, 1908 (CPC), deals

with the inherent power of civil courts in India. This section grants the courts inherent

powers to make orders and pass judgments necessary for the ends of justice, even when

such powers are not expressly provided for in the CPC.

Section 151 of the CPC reads as follows:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent power

of the Court to make such orders as may be necessary for the ends of justice or to

prevent abuse of the process of the Court."

Sec.151 of the Code lays down that nothing in this Code shall be deemed to

limit or otherwise affect the inherent power of the court to make such orders as may

be necessary for the ends of justice or to prevent the abuse of the process of court.

They are complimentary to those powers and the court is free to exercise them for the

ends of justice or to prevent the abuse of the process of the court. It is a power inherent

in the court by virtue of its duty to do justice between the parties before it. Thus, this

power is necessary in the interest of justice.

In Manoharlal v. Seth Hiralal

430

, the SC observed that the inherent power has

not been conferred on the court; it is a power inherent in the court.

Similarly these powers are to be exercised by the Court in very exceptional

circumstances for which Code lays down no procedure.

431

That is remedy provided elsewhere in the Code bars application of powers under

S.151.

432

Such matters give rise to necessary implication that no power shall be

exercised in respect of the said matter otherwise than in the matter prescribed by the

said provisions.

433

Though there are limitations on the powers of the court, it cannot abandon its

inherent powers under S.151. The inherent power has its roots in necessity and its

breadth is co-extensive with necessities.

434

The exercise of inherent powers of the court

must depend solely on the facts and circumstances of each case.

435

In Ram Chand v. Kanyalal

436

, the Apex Court laid down the following principle

regarding the ambit and scope of Section 151:

“The inherent power of a court is in addition to and complimentary to the powers

expressly conferred under the Code. But that power will not be exercised if its exercise

is inconsistent with, or comes into conflict with any of the powers expressly or by

necessary implication conferred by the other provisions of the Code. If there are

express provisions exhaustively covering a particular matter, they give rise to a

necessary implication that no power shall be exercised in respect of the said matter

otherwise than in the manner prescribed by the said provisions. Whatever limitations

are imposed by construction on the provision of Section 151 of the Code, they do not

430

AIR 1962 S.C. 527.

431

Ramakarandas v. Bhagwandas, AIR 1965 SC 1144. However it had also been laid down that power

can be exercised even if there is another specific provision in the Code authorizing an order, such as

one which is sought under S.151., Manoharlal v. Seth Hiralal, AIR 1962 SC 527.

432

Nainsingh v. Koonwarjee, AIR 1970 SC 997.

433

Power has to be exercised by the Court in very exceptional circumstances for which Code lays down

no procedure. Ramakarandas v. Bhagwandas, AIR 1965 SC 1144.

434

Mathai v. Vargheese, 1995 (1) KLJ 795.

435

Kochu Varied v. Kasim, AIR 1960 Ker.342.

436

AIR 1966 SC 1899.

control the undoubted power of the court conferred under S. 151 of the Code to make

a suitable order to prevent the abuse of the process of the court”.

Thus we can see that inherent powers are very necessary to protect the interest

of justice when the law does not provide for the circumstances. Even it was held that

law of limitation does not affect the exercise of inherent power.

437

Similarly an order

of restitution under S.151 is not appealable.

438

Inherent Powers When can be Exercised?

1. Power of restitution is not confined to S.144. Court can order restitution by

virtue of its inherent powers.

439

2. Objectionable remarks made against a third party in the judgment may be corrected

at the instance of such an aggrieved party under the inherent power of the court.

3. S. 151 is applicable to prevent abuse of process of Court.

440

4. The court can grant stay under S.151 even where S.10 of the Code is not attracted.

5. A court of Appeal may grant interim stay of execution even before the

admission of the appeal when thee application under S. 5 of the Limitation Act is

pending.

6. Application in other Cases

Case dismissed for default can be restored under S. 151.

441

7. Interim maintenance can be awarded when the claim for maintenance is not much

contested.

437

Thoma v. Parameswara Panikar, 1955 KLT 870.

438

Subramania Iyer v. Damodharan Potti, 1963 KLT 531.

439

K.N. Krishnnappa v. T. R. G. Shetty, 1997 SC Kant.152.

440

Ram Chand and Sons Sugar Mills v. kanhayalal, 1966 (2) SCJ 731.

441

Rani Choudhury v. Suraj Jit Choudhury , AIR 1982 Sc 1397 at 1400.

8. The court can dismiss a suit under S.151 CPC on account of non- compliance with

court order.

9. Balance Court Fee

Under the inherent powers of the Court, Courts can restore a suit dismissed for

non-payment of balance court fee.

442

10. Court has inherent power to extend the time fixed for payment of deficit court fee

even after a conditional order on a petition for that purpose.

443

11. Where the suit is dismissed erroneously due to inadvertence inherent power can be

invoked to restore it.

12. Execution

The inherent power under S. 151 can be exercised by an execution court.

444

13. Court can exercise inherent jurisdiction to restore an application in execution

proceedings dismissed for default.

445

14. An amendment of the execution petition can also be granted under Sec.151 of the

Code.

15. Clerical Mistakes

Inherent power can be exercised to correct clerical mistakes accidental slips or

errors or omissions in judgment under Art. 226 of the Constitution.

446

16. Consolidation of Suits

442

Varghesev. Devi Academy, AIR 1999 Ker.185.

443

Janaki Amma v. Krishnan, 1978 KLN SN 29.

444

Dohara Beevi v. Bhaskaran, AIR 1990 NOC 30.

445

Thoma v. Parameswara Panikar, 1955 KLT 870.

446

Kokers 70 MM Movie House v. KSEB, 1984 KLJ 392.

The Court has got ample jurisdiction in proper circumstances to consolidate suits

when a common question has to be decided.

447

17. Can be invoked to order security for costs in a proper revision application.

18. For staying cross-suits on account of convenience.

19. In cases where a party who deliberately disobeys the orders of the Court, the Court

has power to strike off the defence.

448

20. A compromise decree can be amended under inherent power to make it consistent

with the agreement of the parties.

21. Amendment of Decree

Errors from accidental slip either in decree or judgment can be corrected.

449

22. Criminal Procedure Code

Where the order of court is violated it is competent for the court to invoke its

inherent jurisdiction under S. 151 to restore the property to original position.

450

23. Inherent Power to Render Police Aid

The executing Court has inherent power to render police aid to the Amin to

effect delivery of possession of property if there is any likelihood of breach of peace.

451

24. Attachment before Judgment

If a third party is aggrieved by an order of attachment before judgment, he can

move the Court for inquiry into his claim by invoking S. 151, before attachment is

affected.

452

447

Philip v. Bata Co. Shoe Ltd and Another, 1959 KLJ 999.

448

Parukutty Amma v. thankamma Amma, 1988 (1) KLJ 793.

449

Samarendra v. Krishna Kumar, 1967 (2) SCR 18.

450

Abraham v. Kuriyakkose, 1994 (1) KLJ 918.

451

Moidu v. Parthasarathy and Others, 1991 (1) KLJ 497.

452

G.K.Prabhakaran & Co. v. David Traders, 1972 KLR 377.

25. To hold trial or part of it, in camera if satisfied that the end of justice required such

a course.

26. Claim for Arrears of Sales Tax

When state claims priority for arrears of sales tax from debtor against when

money decrees were obtained by other claim can be granted on application under

S.151.

453

27. When auction sale is set aside under Section 47 Cr.P.C., the executing court can

under its inherent power grant interest in the purchase money.

28. The court has inherent power to set aside the order obtained by fraud practiced

upon it.

454

29. When the Court finds that in disobedience of order a compound wall had been put

up, it can direct demolition.

455

30. Restitution

Ex pate decree is set aside under O. 9 R.13. Restitution can be granted under

S.151.

456

31. Though S.144 of CPC may not in terms apply to restitution sought by the

petitioners, the court can in exercise of inherent power give relief to the petitioners.

457

32. Return of Amount Paid under Protest

There is no specific provision in CPC empowering the execution court to pass

an order for the return of amount paid under protest to avert an attachment or for the

453

State of Kerala v. E.P. Mathew, AIR 1961 Ker.

454

Chakki Amma v. Mammen, AIR 1956 TC 87.

455

Krishnan v. Joseph Desouza, AIR 1986 Ker. 63.

456

Garuda v. Dhana, AIR 1989 Ori.103.

457

Beeravu v. Kathiyamma and Others, AIR 1973 Ker.226.

cancellation of the order for attachment before making the attachment. The Court can

exercise powers under S.151 under such circumstance.

458

33. Suit Dismissed for Default and Restoration Petition also Dismissed for Default

Petition to restore the restoration petition filed under S.151 is maintainable.

459

34. Wrong Decree

When a court passes a wrong decree in exercise of judicial discretion and no

appeal, revision or review is filed, party cannot approach the court under S.151.

460

When inherent powers cannot be exercised?

1. Commission Application

Application for issue of commission under S.151 cannot be invoked.

461

2. Temporary Injunction

Inherent powers of court cannot be invoked to grant temporary injunction.

462

3. Power under S. 151 cannot be exercised if its exercise is inconsistent with or comes

into conflict with any of the powers expressly or by necessary implication conferred

by other provisions of the Code.

463

4. S. 151 cannot be invoked for stay of suits. Power under S.151 cannot be invoked for

stay of subsequent suit.

464

458

Kamalashy Amma v. Ouseph, 1978 KLT 146.

459

Manoharan v. Ezhome Grama Panchayat, ILR 2001 (2) Ker.530.

460

Velayudhan Nair v. Kerala K.Y. Kuries Pvt. Ltd, AIR 1988 Ker.223.

461

Asanand Nanak Chand Aggarval v. C. A. Ayyathurai, AIR 1956 TC 260.

462

T.C. Kunhukuttan Nair v. Subakumaran, AIR 1959 Ker.45.

463

Elsy Johny v. Kereala Vijaya Kuries and Loans, 1995

(2) KLT SN 8; Manohar Lal v. Seth Hirilal, AIR 1962 SC 527,533; Minocher Behranji v. Hema, AIR

1982 Bom.151, 155-156.

464

Kora Chacko v. Mathew, 1995 (2) KLJ 616.

5. Inherent power cannot prevail over statute.

465

6. Decree regarding compensation under Land Acquisition Act becoming final,

executing or reference Court cannot amend decree exercising power of review.

466

7. Rejection of the Plaint under O. 7 R. 11 (c)

Plaintiff is not entitled to invoke the jurisdiction of the Court under S.151 when

a plaint gets rejected in terms of O.7 R.11 and when he has already approached the

Appellate Court with an appeal.

467

8. Restoration Petition

When petition for restoration of appeal dismissed for default for non-payment

of balance Court fee payable under second proviso to S.52 of Court Fees and Suits

Valuation Act, invoking S.151 is not maintainable.

468

9. Inherent jurisdiction cannot be exercised where result would be the nullification of

the procedure prescribed by the Code.

469

10. Correction of Decree

The decree cannot be corrected under S.151 of CPC exercising inherent

powers.

470

11. Defects on Merits

Defects on merits in the judgment cannot be rectified invoking the section.

471

465

Manohar Lal v. Seth Hirilal, AIR 1962 SC 527,533.

466

Bai Shakriben v. Special Land Acquisition officer, AIR 1996 SC 3323.

467

Mable v. Dolores, AIR 2001 Ker.353.

468

Gopalan Nair v. Bhaskaran, 2002 (1) KLJ 1.

469

P.A. Ahammed v. FCI, 1999 (7) SCC 39.

470

Rachael v. George, 1984 KLT SN 75.

471

Patti Amma v. Raman Nair, AIR 1962 Ker.6.

12. Discretion to be Cautiously Exercised

Inherent power of the Court is not intended for condonation of latches or

negligence.

472

13. No Exercise of Power

Court cannot order seizure of account books of a party or appoint a

Commissioner for seizure.

473

14. Stay of proceedings

No power to stay proceedings pending in Criminal Courts.

474

Section 151 recognizes the inherent or residual power of civil courts. It implies that

the provisions of the CPC are not exhaustive, and the courts have the authority to

exercise their inherent powers when the specific provisions of the CPC do not provide

for a particular situation. The primary purpose of Section 151 is to ensure that courts

can do justice in a broader sense. This means that if a situation arises where the strict

application of the CPC may lead to an injustice or prevent justice from being served,

the court can invoke its inherent powers to rectify the situation.

Another significant aspect of Section 151 is its role in preventing the abuse of the

court's process. If a party's actions are deemed to be frivolous, vexatious, or an abuse

of the legal process, the court can use its inherent powers to curtail such abuse. The

inherent power conferred by Section 151 is broad and discretionary. It allows the court

to take any action it deems necessary in the interest of justice, provided it is exercised

judiciously and not arbitrarily.

The Application of of Inherent Powers under Section 151 has critical role that, If a

party wishes to amend its pleadings to rectify a mistake or omission, and such an

472

Fokkier Kochu Thampi v. Uthaman, 1959 KLR 861.

473

Padam Sen v. State of U.P., 1961 (1) SCR 884.

474

State v. Forest Range Officer, 1959 KLR 1090.

amendment is not expressly allowed under the CPC, the court can use its inherent

powers to permit the amendment if it is necessary for the ends of justice. In certain

circumstances, the court may extend the time for filing documents or submissions if

the delay is due to genuine reasons and not an attempt to abuse the process of the court.

If multiple suits involve common questions of law or fact, and their consolidation

would serve the interests of justice and judicial economy, the court can use its inherent

powers to consolidate the suits.

When a court needs assistance in obtaining evidence or inspecting property, it can

appoint a local commissioner, even if the CPC does not explicitly provide for such

appointments. Section 151 of the CPC grants civil courts in India the inherent power

to make orders and take actions that are necessary for the ends of justice and to prevent

the abuse of the court's process. This provision ensures flexibility and adaptability in

the judicial process, allowing courts to address unforeseen situations and uphold the

principles of justice and fairness.

TOPIC 41

FOREIGN JUDGMENT (Sections 13 and 14)

Section 13 and 14 enacts a rule of Res judicata in case of foreign judgments.

These provisions embody the principle of Private International law that a judgment

delivered by a foreign court of competent jurisdiction can be enforced by an Indian

court and will operate as Res-judicata between the parties thereto.

Foreign court is defined as a court situated outside India and not established or

continued by the authority of the Central Govt.

475

Sec.2 (5).

Sections 13 and 14 of the Code of Civil Procedure,deal with the recognition and

enforcement of foreign judgments in India. These provisions are crucial for

determining the legal status and enforceability of judgments obtained in foreign

countries. Section 13 of the CPC lays down the general rule that a foreign judgment

shall not be conclusive in India. This means that a judgment passed by a foreign court

does not automatically have the same effect as a judgment of an Indian court. Instead,

it may be subject to examination and scrutiny by Indian courts under certain

conditions. Here are the key points: Section 13 provides conditions under which a

foreign judgment may be recognized and enforced in India. These conditions include

that the judgment must be passed by a court of competent jurisdiction and must not be

obtained by fraud, must not be contrary to Indian law, and must not be based on a

breach of any Indian law.

Even if a foreign judgment meets the conditions mentioned in Section 13, it does not

operate as res judicata (i.e., a matter already judged) in subsequent proceedings in

India. It can be treated as evidence of a right, title, or fact, but the court is not bound

by it. It is important to note that the burden of proving that the foreign judgment fulfills

the conditions specified in Section 13 lies on the party seeking to rely on that judgment.

Section 14 of the CPC deals with the presumption of foreign judgments. It states that

a foreign judgment, which is based on a right conferred by a foreign law, is presumed

to be conclusive evidence of that right. Section 14 establishes a presumption of

conclusiveness regarding the rights established by a foreign judgment. This means that

the rights determined by the foreign judgment will generally be accepted as valid

unless proven otherwise. While there is a presumption of conclusiveness, this

presumption can be rebutted by showing that the foreign judgment does not fulfill the

conditions mentioned in Section 13 or that it is not based on a right conferred by

foreign law.

Thus the courts in England, U.S.A., Canada etc are foreign courts. The Privy

Council which was not a foreign court prior to the independence is a foreign court now.

The general rule is that an Indian court will apply only Indian laws. A foreign

judgment may be enforced by proceedings in execution only. S.44A of the Code relates

to execution of a foreign judgment. A foreign judgment will not be blindly followed

in India. It must be a final judgment and conclusive.

Foreign judgment of a foreign court is enforced on the principle that where a

court of competent jurisdiction has adjudicated upon a claim, a legal obligation arises

to satisfy that claim.

The Rules of Private International laws of each state is different but by the

comity of nations, certain Rules are recognized as common to civilized jurisdiction

and hence the court must consider a foreign judgment as obligatory to enforce it to a

great extent for the interest of justice.

The foreign judgment theory has importance for the following three purposes:

1. A foreign judgment may be enforceable.

2. A foreign judgment may be admitted as evidence.

3. A foreign judgment acts as Res judicata.

To be enforceable or admissible and for operating as Res judicata, such foreign

judgments must be conclusive. The conclusive nature of foreign judgment is provided

in section 13. A foreign judgment is not conclusive if one of the conditions specified

in clauses (a) to (f) of section 13 is satisfied.

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

b) where it has not been given on the merits of the case;

c) where it appears on the face of the 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;

d) Where the proceedings in which the judgment was obtained are opposed to natural

justice;

e) Where it has been obtained by fraud;

f) Where it sustains a claim founded on a breach of any law in force in India.

In Gurdas Mann v. Mohinder Singh Brarr,

476

a foreign judgment was passed

based on mere pleadings in an exparte decree. Held it is not executable in India.

476

AIR 1993 P&H 92: 1993 Pun L.J.183:1993 (2) Land L. R. 385.

In Gurdayal v. Raja Faridkot

477

A sued B in the court for Faridkot, a former

Indian state. The claim was for Rs. 60,000/. Alleged to have been misappropriated by

B while in A,s service at Faridkot. B did not appear at the hearing. An exparte decree

was passed against him. B was a native of another Indian state Sind. In 1869 he left

Sind and went to Faridkot to take up service under A. In 1874 he left A’s service and

returned to Sind. The suit was brought against him in 1879. At the date of the suit is

neither resided in Faridkot nor was he a domiciled subject of Faridkot state nor did he

owe allegiance to that state. On these facts the Faridkot court had on general principles

of International Law no jurisdiction to entertain the suit. The decision was upheld by

the Privy Council.

Therefore, a foreign court cannot assume jurisdiction in cases where the claim

is a personal one merely because the cause of action arose within its jurisdiction. But

if B was residing at Faridkot at the date of the suit, the Faridkot court would have had

complete jurisdiction. In the case of personal claims, it is the residence at the time

when the action began that gives jurisdiction in a suit to the foreign court.

In Satya v. Teja Singh

478

, the S.C. refused to recognize a decree obtained in

Nevada court by a husband against the wife who at the relevant time was in India. The

wife brought an action for maintenance against the husband who in defence held that

a decree of divorce obtained by him in Nevada court against his wife. The S C held

that neither the husband nor the wife having not been a resident within the jurisdiction

of court at Nevada, the said court’s decree cannot be recognized in India. According

to Private international Law, an exparte decree of a foreign court is a nullity, if the

party against whom a decree is passed does not appear at all and does not take part in

the proceedings of the court. (On the other hand a person who appears in obedience to

a foreign court and allies leave to defend must be held to have voluntarily submitted

the jurisdiction of a court.)

477

1895 Calcutta 222.

478

AIR 1975 SC.

Sections 13 and 14 of the CPC provide the legal framework for dealing with foreign

judgments in India. These provisions ensure that foreign judgments are not

automatically recognized and enforced but are subject to certain conditions and

safeguards. Indian courts will examine foreign judgments to determine their validity

and relevance in Indian legal proceedings, all while upholding the principles of justice

and fairness.

TOPIC 42

MESNE PROFIT [Section 2(12)]

The term "mesne profits" is defined in Section 2(12) of the CPC. Mesne profits are an

important legal concept related to suits for possession of immovable property. Section

2(12) of the CPC defines mesne profits as: "Mesne profits" of property means those

profits which the person in wrongful possession of such property actually received or

might with ordinary diligence have received therefrom, together with interest on such

profits, but shall not include profits due to improvements made by the person in

wrongful possession."

Mesne profits refer to the income or gains that a person wrongfully in possession of

someone else's immovable property earns during the period of such wrongful

possession. It includes the actual profits received by the wrongful possessor and the

profits they could have earned with ordinary diligence. Mesne profits may also include

interest on these profits. However, any profits resulting from improvements made by

the wrongful possessor are not considered mesne profits.

Mesne profits serve as an important component in cases where a party seeks possession

of immovable property. When a person is wrongfully dispossessed of their property

and later seeks possession through a legal action, they may also claim mesne profits

for the period during which they were wrongfully deprived of the property. This serves

as compensation for the loss suffered. Mesne profits are often a subject of dispute in

property-related litigation. The court must determine the amount of mesne profits

owed to the rightful owner based on the actual profits received or those that could have

been received with ordinary diligence. Mesne profits can also include an interest

component to compensate for the delay in the restoration of the property to its rightful

owner.

The definition of mesne profits explicitly excludes profits due to improvements made

by the person in wrongful possession. This ensures that any improvements made by

the wrongful possessor are not considered part of the mesne profits payable to the

rightful owner. By virtue of Section 2(12) of the Code, Mesne Profit of property means

those profits which the person in wrongful possession of such property actually

received or might with ordinary diligence have received therefrom, together with

interest on such profit, but shall not include profits due to improvement made by the

person in wrongful possession.

Every person has a right to the possession of his property and when he is

deprived of such a right by another person, he is not only entitled to receive back

possession of that property, but also the damages for the wrongful possession from that

person. The Mesne Profit is considered as a compensation which is penal in nature.

In Marshallsons & Co. v. Sahi Oretrans

479

, it was held that the object of

awarding a decree for mesne profit is to compensate the person who has been kept out

of possession, even though he was entitled to possession thereof. Wrongful possession

of the defendant is the essence of claim for a mesne profit. Mesne profit being in the

nature of damages, no invariable rule governing their award and assessment in every

case can be laid down, and the court may mould it according to the justice of the case.

Mesne profits, as defined in Section 2(12) of the CPC, are a crucial aspect of property-

related litigation. They represent the compensation owed to the rightful owner for the

income lost during the period of wrongful possession of their property. Determining

mesne profits is an important legal process that allows for the fair resolution of

property disputes.

479

1999 (2) SCC 325.

TOPIC 43

LEGAL REPRESENTATIVE

Section 2 (11) of the Code defines the expression “legal representative”.

Legal representative is a person who in law represents the estate of a deceased

person. In the context of the Code of Civil Procedure, 1908 (CPC), a legal

representative plays a vital role in civil litigation. A legal representative is a person

who steps into the shoes of a deceased party or a party under a legal disability (such as

a minor or a person of unsound mind) and continues or defends a lawsuit on their

behalf.

Role of a Legal Representative:

 Representation of Deceased Parties: If a party to a civil suit dies during the course of

litigation, their legal representative takes over the case. This ensures that the litigation

is not extinguished due to the death of a party and that the deceased party's rights and

claims are still adjudicated upon.

 Representation of Parties Under Legal Disability: When a party to a suit is a minor, a

person of unsound mind, or otherwise under a legal disability, they typically cannot

act on their own behalf in court. In such cases, a guardian or next friend is appointed

to represent their interests and advance their claims.

Legal representative includes-

(1) Any person who intermeddles with the estate of the deceased.

(2) If a party sues or is sued in a representative character the person on whom the estate

devolves on the death of the party so suing or sued.

As per the definition, to be legal representative it is not necessary that he must

have beneficial interest in the estate. Administrators and executors do not have any

beneficial interest in the estate, yet they are legal representatives.

Appointment of Legal Representatives:

The appointment of a legal representative is typically governed by the following

principles under the CPC:

 When a party to a suit dies, the court may order the legal representative of the deceased

to be brought on record. The legal representative is usually the executor of the

deceased's estate, an administrator appointed by the court, or any person who may

succeed to the interest of the deceased party.

 In the case of a minor party, the court appoints a guardian ad litem to represent the

minor's interests. This guardian may be a natural guardian, testamentary guardian, or

a guardian appointed by the court.

 When a party is a person of unsound mind, the court may appoint a next friend to

represent them in the litigation. The next friend is typically someone who takes on the

responsibility of acting in the person's best interest.

Liabilities and Rights of Legal Representatives:

Legal representatives, whether representing a deceased party or someone under a legal

disability, have certain responsibilities and rights such as Legal representatives are

liable for the acts or omissions of the deceased or incapacitated party to the extent of

the assets they have inherited or are administering. They step into the legal shoes of

the party they represent. Legal representatives have the right to continue or defend the

ongoing litigation, including filing pleadings, leading evidence, and making arguments

on behalf of the party they represent.

The term legal representative does not mean a real owner of the estate or a legal heir.

An intermediary is a person who has got an interest to represent the estate. He is not

trespasser, but he assumes representative capacity in relation to the estate.

Legatees under the will are legal representatives, but a trespasser into the

property of the deceased or an official receiver is not a legal representative.

In Janardhanan Pillai v. Kochunarayani Amma

480

, it was held that when there

is a conflict of interest between co-defendants and when one of the co-defendants

supported the case of the plaintiff who lost the suit it would operate as res judicata.

In Mercy v. Aisha Ummal

481

, it was held that legal heirs are persons who in law

represent the estate of the deceased where as legal representatives are persons who in

law represent the estate of the deceased or who intermeddles with the same. Where

deceased had no right over the estate, no right to sue survives and no question of

impleading arises as nobody could represent his estate. Legal heirs may be legal

representatives, but not always. Legal heirs are entitled to inherit the estate of the

deceased. Legal representatives on the other hand are persons who in law represent the

estate of a deceased person.

In Chiranjilal Shrilal Geonka v. Jasit Singh

482

, the Court held that an executor

of a will of deceased testator is a legal representative.

In Sarada v. Chakkunny

483

, it was held that a legal representative is a person

who in law represents the estate of a deceased person. Although in its strictest sense

the meaning of legal representative was limited to executors and administrators only,

it has now been so extended as to include heirs of the deceased. Therefore a person on

whom the estate of the deceased devolves would be his legal representative.

480

ILR 1976 (1) Ker.489.

481

1987 (2) KLT 166; 1987 KLJ 776.

482

1993 (2) SCC 507.

483

AIR 1992 Ker.249.

In Andhra Bank v. Srinivasan

484

, and Custodian of Branches of BANCO v.

Nalini

485

, it was held that an intermeddler of the estate of the deceased is also a legal

representative.

In Official Liquidator v. Parthasarathi Sinha

486

, it was held that misfeasance

proceedings under S.543 of the Companies Act can be continued against legal

representatives and heirs of the director of a Company who died during the pendency

of proceedings.

In Shankarappa v. Daniel

487

, it was held that a legatee of a part of estate is a

legal representative.

In Krishna Singh v. Mathura Ahir

488

, a mohant instituted a suit for possession of

muth property. On his death another mohant succeeded. It was held that he is the legal

representative of the deceased mohant.

In Dayaram v. Shyam Sundari

489

, it was held that the estate of a debtor will be

bound by the result of a suit which a creditor brings against some heirs of a deceased

debtor if the former acted after due inquiry and under a bonafide belief that the persons

brought on record were the legal representatives of the said deceased.

In Andhra Bank v. Srinivasan

490

, it was held that a legatee, who obtains only a

part of the estate of the deceased, is a legal representative because ‘estate’ does not

mean whole of the estate.

In Andhra bank v. Srinivasan

491

, it was held that a person who represents the

estate of a deceased is a legal representative. He need not represent the whole estate.

He remains a legal representative if he represents part of the estate.

484

AIR 1962 SC 232.

485

AIR 1989 SC 1589.

486

AIR 1983 SC 188, 194.

487

1962 (2) Mys. LJ 124.

488

AIR 1980 SC 707.

489

AIR 1965 SC 1049.

490

AIR 1962 SC 232, 239.

491

AIR 1962 SC 232.

In Andhra bank v. Srinivasan

492

, it was held that the person who is in possession

of the estate of the deceased is a legal representative.

In Davis Mookken v. Thomakutty

493

, it was held that an appointment or

nomination of a successor by the predecessor if invalid and followed by a possession

of the estate or part thereof is sufficient to constitute the nominee a legal representative.

Legal representatives play a crucial role in ensuring that the interests of

deceased parties or parties under legal disabilities are adequately represented in civil

litigation. This mechanism helps maintain the integrity of the legal process and ensures

that the rights and claims of such parties are not left unaddressed due to their absence

or incapacity.

492

AIR 1962 SC 232.

493

ILR 1974 (1) Ker.289: AIR 1975 Ker.163.