NOTES ON CIVIL PROCEDURE CODE, 1908

- Bhumica Veera (NMIMS School of Law, Mumbai)

CHAPTER 1 : SUMMARY OF PARTS I TO XI

Read along with the relevant orders and rules for more clarity.
PART 1

Part one of the CPC, deals with the basics of a suit. It deals with the basic flow of a case. It is
divided into 7 sub sections.

Jurisdiction of the Court and Res judicata

This part firstly empowers and gives authority to the court to deal with all civil matters.
Jurisdiction is the first step before institution of a suit. Before filing any suit, it is important to
first understand whether the suit is allowed to be filed. There are three kinds of jurisdiction :
Subject matter, pecuniary and territorial. A decree passed by the court without jurisdiction is
null and void. This part lays down the conditions in which the court may bar an individual
from proceeding with the suit. There are many provisions in the CPC, which empower a court
to bar a suit, apart from that two major conditions on which a suit may be barred are:

Res judicata: Laid down in Section 11, this is an important principle in order to avoid
multiplicity of proceedings. This simply means that if a matter is heard and finally decided by
a court, the parties are barred from filing the same suit again. This is not to be confused with
appeals, revisions, review etc. A suit relating to the same cause of action cannot once again
be filed in a court of same jurisdictional stature. E.g. A rents to B a house in Bombay, when
B fails to pay rent A files a suit in the Civil Court, the suit is dismissed against A on merits.
Now A cannot again file the same suit. The same is also true for multiple jurisdictions, i.e. if
a suit may be filed in two jurisdictions and after receiving a judgement from one jurisdiction
the applicant cannot file the same suit in another jurisdiction. If a person could raise a plea in
a previous case and fails to do so, they cannot in a subsequent suit raise the remaining plea.
This is known as the doctrine of Constructive res judicata.

Res sub judice: If a matter in issue is directly and substantially in issue in another court which
is previously instituted, the current court is barred by the principle of res sub judice. This
means that a case cannot be filed in two courts simultaneously. The test to determine whether
a case falls within res sub judice is whether the decision in a previously instituted suit would
operate as res judicata in the subsequent suit.

Place of suing:

As mentioned, territorial jurisdiction is one of the considerations while deciding the

appropriate forum. As per CPC with regards to cases dealing with immovable property, the
suit shall be filed in the jurisdiction where the immovable property exists. However, in case
of persons or movables, there are multiple jurisdictions which can hear the case. In such
cases, the appropriate jurisdiction would be either where the plaintiff resides or where the
defendant resides or where the cause of action arose. In case of multiple defendants, the suit
can be filed either where the cause of action arose or any of the residences of the defendants.
However, in such cases, the permission of the court is necessary when suit is filed in another
jurisdiction and defendant resides in another.

Any objection to jurisdictions must be raised at earliest. Courts have the power to transfer
suits to any other jurisdiction, as they deem fit.

Institution of Suits:

A suit is instituted upon filing a plaint. The Oder 7 lays down proper guidelines in which a
plaint should be drafted.

Summons and discovery:

The next step after filing a suit, is involving the defendant in the suit. This the known as
sending summons. The summons may be sent by the court or the court may authorise the
plaintiffs to serve the summons. Failure to accept summons, would lead to substituted
summons. Order on service mentions the rules for service. Once summons are served to the
defendant the courts have power to issue other orders and summons to examine witnesses and
other requirements to adjudge the matter. Arrest and detention, attachment can be ordered if
summons are not adhered with.

Judgement and decree:

On hearing the case, the court pronouns a judgement and passes a decree. A judgement is the
reasoning and the decree is the actual act that is required to be executed.
Interest may also be mentioned in the decree for delay in fulfilling the decree etc. Costs may
also be levied on either party for obstruction of its processes or any other reasons.

Part II

Part II deals with the execution process of the decree passed. The court which pronounces the
decree has the authority to execute it but it has the right to transfer this authority upon
another. Any questions arising out of the execution of decrees are decided by the executing
authority itself and no separate suit can be filed for the same.

The person in favour of whom the decree is passed is called the Decree holder and the person
against whom the decree is passed is called the judgement debtor. In case the judgment
debtor has died the suit can be executed by the legal representative, ancestral property may
also be used to enforce the decree.

However, if the judgement debtor fails to comply with the executing court and does not
satisfy the decree. The executing court has the power to order arrest or detention, attachment
of property, sale of property, etc. However extensive guidelines are laid down in order to
prevent the misuse of these sections. Protection has also be given to women, ministers of
legislative assemblies and parliament from arrest.

Part III Incidental Proceedings

Incidental proceedings are, taken recourse to in aid of the ultimate decision of the suit which
would mean that any order passed in terms thereof, subject to the rules prescribed therefor,
would have a bearing on the merit of the matter. Any order passed in aid of the suit are
ancillary powers. Whenever an order is passed by the Court in exercise of its ancillary power
or in the incidental proceedings, the same may revive on revival of the suit. These
commissions include, appointment of a specialised person for scientific analysis, sale of a
property, commission witness etc.

Part IV

Suits against government:

Suits against government are treated differently, as the government is one of the biggest
litigator and deal with a larger context of rights it is important to have a specialised procedure
for them. The CPC lays down that is mandatory for every plaintiff to issue a 2 month notice
to the concerned government before filing the plaint. This is done in order to ensure the state
or central government has time to either remedy the situation within the notice period or
prepare for the suit. The law also protects any public officer sued from arrest. This is because
public officials cannot be personally held liable for acts done in official capacity.

Suits by aliens and by or against foreign rulers etc.

Aliens are those persons who are residing in India but are citizens of a country with which
India is at war. Only those Aliens who reside with the permission of the central government
have a right to file a suit.

Foreign rulers may sue on behalf of their state, however the prosecutors and defenders are
appointed by the Government. Former rulers of the Indian State, may sue as per the rules of
the foreign rulers.

Part V

Special proceedings

With the advent of alternative dispute resolution, the courts have now started referring
disputes to these dispute resolution mechanisms.

a. Arbitration : Governed by the Arbitration and Conciliation act

b. Lok Adalat : Governed by National Legal services authority act
c. Mediation : By appointment of court

In cases where an act is of public nuisance, which harms not just one individual but several
individuals and public at large the suit maybe filed either by the advocate general or by two
or more persons together by the leave of the court. The rationale behind this is to avoid
multiple suits and waste judicial time.

This part also defines interpleader suits. Often two or more petitioners claim over the same
amount of money, property etc. against a person. The defendant in such a case who is willing
to provide the same to the rightful claimant may request for an interpleader suit. Where both
the plaintiffs

Part VI

Supplemental proceedings: In order to proceed with the case the court may issue any orders
with regards to arrest, detention, interim injunction etc. These orders are issued so that the
ends of justice are not defeated. For example, In case of a suit for trademark infringement, the
court may issue a temporary injunction upon the defendant from using their mark in order to
stop any further damage to the good will. However if later the decision is ruled in favour of
the defendant the court may also provide for compensation. These interim reliefs become
very important in protecting the subject matter of the suit, because the suits in India
especially take years to come to an end due to the long standing pendency.

Part VII

Appeals

Appeals can arise out of two pronouncements decrees and orders. Decree and order have
been defined under Section 2. However in simple terms, decrees are based on reason and
determine the rights of parties, and conclusively establish the findings of the court. Whereas
all other pronouncements made by the court, which may not necessarily be on merits or be
temporary in nature are orders.

All Decrees can be appealed (Including ex parte decrees) except if the decrees have been
passed by the consent of the parties. With regards to the decrees passed by the small causes
courts, the decree shall only lie on questions of fact. Preliminary decrees, cannot be appealed
along with the final decree, and have to be appealed when the preliminary decree is passed.
Irregularity of procedure cannot be a ground for complete and substantial reversal or
modification of a decree, unless such may cause grave injustice.

Second appeals only lie if there is a substantial question of law, these lie only in the HC.
However the HC may on its own motion determine a question of fact.

Appeal from Orders: No orders apart from those mentioned in Sec.104 can be appealed
except as otherwise provided.

Appellate courts have the power to decide a case finally, or remand, or frame newer issues, or
take additional evidences as necessary.

A party may appeal to the Supreme Court if there is substantial question of law of general
importance and on the opinion and certification by the HC. However, even if the certificate is
not granted the power under Article 136 stands valid.

Part VIII

Reference: In cases where the validity of a law, regulation or ordinance is challenged, the
subordinate courts have an obligation to refer the same to the High Court. Thus a reference is
made, by the court and not by the parties. An application may be made by the parties to the
subordinate court, to refer the matter. The grounds for reference is when there is reasonable
doubt on the question of law by the subordinate court.

Review: a review is the reconsideration of the same matter by the same judge who has
decided the matter. If the judge who decided is present in the court, then he alone has
jurisdiction to review the matter decided by him. He is considered to be the best to reconsider
the case as only he will be able to remember what arguments were done and what reason he
used to decide that case. Grounds for review, discovery of new and important evidence,
judgement based on error apparent on the face of law.

Revision: The object behind empowering the High Court with revisional jurisdiction is to
prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under
section 115 the High Court is empowered to keep an eye on the proceedings of subordinate
courts that the proceedings are being conducted in accordance with the law, under its
jurisdiction for which it is bound for and in furtherance of justice.

Part IX and X

This part lays down specific guidelines for the High Courts and how CPC would apply to
them. The provisions are self explanatory and do not need additional explanation.

Part XI

This part provides for all misc. grounds and provisions of the CPC, and covers a large
number of provisions. It provides exemption from arrests and personal appearances, for
women bound by custom, other persons who may be exempted (oldage, illness), ministers of
the government etc.

It then mentions general guidelines on language of the courts, and language for written
documents. The code then talks about the term ‘restitution’ has not been defined under the
civil procedure code. But there is a direct mention of the term under Section 144 of the code.
Hence, the imported definition of restitution is ‘an act of restoring a thing to its proper owner’
For the purpose of granting remedies as a part of restitution, the court has been given wide
powers phrased as ‘the court may make any orders’. This means that the court can pass any
order to meet the ends of justice. The section provides some type of orders that the court may
typically pass over an application for restitution. The only bar to this remedy is that these
remedies must arise as a consequence of the variation, setting aside or modification of the
decree or order.

CHAPTER 2 : SECTION 9A OF CPC AND THE MAHARASHTRA

AMENDMENT.

Timeline of events

1908 – The CPC was enacted

1950 – Constitution came into force, where civil procedure was inserted into the concurrent
list. Therefore both the central and the state governments had powers to rule upon it.

1970 – Maharashtra State legislature amends via Code of Civil Procedure (Maharashtra
Amendment) Act, 1970 and inserts Section. 9A into the CPC

1976 – The central government via Code of Civil Procedure (Amendment) Act, 1976
extensively amends the CPC, which leads to the automatic repeal of Section 9A (Maharashtra
Amendment)

1977 – Maharashtra state legislature reinstates Section 9A via Code of Civil Procedure
(Maharashtra Amendment) Act, 1977.

2018 – Maharashtra deletes Section 9A via Code of Civil Procedure (Maharashtra

Amendment) Ordinance, 2018

Why was Section 9A introduced?

In the case of Institute Indo-Portuguese v. Theotonio Borges1 the Bombay HC held that in
cases where the applicant seeks the appointment of a receiver, the court shall presume that the
case has been filed within proper jurisdiction and will not look into the question of
jurisdiction. This led to the misuse of the provision, where applicants would file suits for ad
interim reliefs against the government without providing a 60 day notice, because the
applicants were aware that the court was not going to look into the procedural inadequacies.

In order to avoid this, the Maharashtra government introduced 9A.

What was Section 9A? and What led to its removal?

1
AIR 1959 Bom 275
Section 9A mentioned that in case any applicant files a suit for any interim relief, and if the
other party raises a question of jurisdiction the same “shall” be decided as a preliminary
issue. This meant that the court first has to establish that it is competent to try the suit and
then move ahead with the case. The judgement on the preliminary issue could be challenged
by the way of appeal.

Prima facie, this amendment aimed to correct the misuse of the law and also aimed at not
wasting judicial time. As for example, a court proceeds on a case on merits, and later finds
out that it is not competent to try the suit, it would lead to immense wastage of time.

However, a few problems were created. Firstly, the CPC already had a provision under Order
XIV Rule 2, that if the court feels that in a case with mixed questions of law and fact exist
and decision on the question of law only would be sufficient to dispose off the case, the court
“may” decide that question of law, if related to jurisdiction or bar to suit, as a preliminary
issue. For example, A files a suit against B for non-payment of rent in the city civil court of
Bombay. However, all tenancy suits are heard by the small causes court, hence the city civil
court does not have the jurisdiction in the present case. Thus, it would be a waste of time, if
the court first gets into the factual issues of the parties and decides on the claim of rent and
later realises that it does not have the jurisdiction, thus wasting all the factual decisions made.
In such a case, it would make more sense for the court to first decide the jurisdiction and then
proceed with the matter.

However, the problem with Section 9A and O. XIV R. 2 is that, the order provides for a
discretionary power, where courts can decide on case to case basis. However, 9A makes it
mandatory for the courts to look into the jurisdiction. Therefore it was unclear as to which
was to be relied on. However, in the case of Foreshore Co-operative Housing Society Ltd. vs.
Praveen D.Desai (Dead) thr. Lrs. and Ors, (Now stands repealed, however the enunciation
with respect to the relationship between the two stands valid) it was held that 9A took
precedence over the Order, since it was mandatory in a nature.

Secondly, as per 9A when a judgement is passed on the jurisdictional question in an interim

relief matter, the same was subject to appeal up until the SC. This led to many matters of
interim relief being pending for years. Thus the intention with which the section was enacted
in the first place was itself destroyed.
This led to the government of Maharashtra to delete the Sec. 9A from CPC. And restore the
position of 1976. Thus, the position as it stands today is that the courts now have a
discretionary power to decide on preliminary issues as per O.XIV R.2

What about the cases pending under Sec. 9A at the time the ordinance was passed?

The Maharashtra government provided a few clarifications wrt to sub judice cases:

1. Pending sub judice cases will be treated as if filed under O.XIV

2. In case of previous orders:
a. Dismissed i.e. the court has said that it has the jurisdiction, the appeals shall be
abated.
b. Dismissed but appeal already filed, the ground of objection under 9A will be
treated as ground of appeal
c. Allowed i.e. the court has said that it does NOT have the jurisdiction, and an
appeal has been filed, the same shall be proceeded as if the ordinance was not
promulgated.

A few months later the Maharashtra government amended the section 3 of the Ordinance
which brought the amendment and added a savings clause according to which, Section 2 of
the Amendment Act provided that if the court has ordered to decide an issue as a preliminary
issue before the date of deletion of Section 9A, it shall be decided by the court as a
preliminary issue.

Supreme Court on interpretation of the term “jurisdiction” in Sec. 9A

Two opposing views were seen in the SC with regards to the interpretation of the word
Jurisdiction under 9A included Limitation.

In the case of Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.,2 the court
relied on a narrower interpretation of jurisdiction and said that “the word "jurisdiction" in
Section 9A is used in a narrow sense as to maintainability, only on the question of inherent
jurisdiction and does not contemplate issues of limitation”. However, the case of Foreshore
Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through legal
representatives and others3 held that “that the word "jurisdiction" under Section 9A is wide
enough to include the issue of limitation as the expression has been used in the broader sense

2
(2015) 7 SCC 321
3
(2015) 6 SCC 412
and is not restricted to conventional definition under pecuniary or territorial jurisdiction” and
thus limitation was also a preliminary issue.

In order to resolve this, a reference was made to the SC in the case of Nusli Neville Wadia v.
Ivory Properties & Ors4 where it clarified that: “When we consider what colour expression
"jurisdiction" has in Section 9A, it is clearly in the context of power to entertain, jurisdiction
takes colour from accompanying word 'entertain'; i.e. the Court should have jurisdiction to
receive a case for consideration or to try it. In case there is no jurisdiction, court has no
competence to give the relief, but if it has, it cannot give such relief for the reason that claim
is time-barred by limitation or is barred by the principle of res judicata or by bar created
under any other law for the time being in force. When a case is barred by res judicata or
limitation, it is not that the Court has no power to entertain it, but it is not possible to grant
the relief.Thus, the meaning to be given to jurisdiction to entertain in Section 9A is a narrow
one as to maintainability, the competence of the court to receive the suit for adjudication is
only covered under the provisions. The word entertain cannot be said to be the inability to
grant reliefs on merits, but same relates to receiving a suit to initiate the very process of
granting relief.”

Thus limitation is not included in the term “jurisdiction” under 9A but is included under
O.XIV R. 2

For more information, refer

1. https://www.mondaq.com/india/constitutional-administrative-law/750618/reversing-
an-old-folly-section-9a-of-civil-procedure-code-1908
2. https://www.thehindu.com/news/cities/mumbai/maharashtra-ordinance-deletes-
section-9a-of-cpc/article24283269.ece
3. https://www.tclindia.in/section-9a-cpc-as-introduced-by-maharashtra-amendment-act-
will-prevail-over-section-9-cpc/
4. https://www.mondaq.com/india/civil-law/875336/whether-limitation-can-be-decided-
as-a-preliminary-issue-under-section-9a-of-the-code-of-civil-procedure
5. Cases Cited in the footnotes.

4
[SLP (Civil) Nos. 31982 – 31983 of 2013]
 CIVIL PROCEDURE CODE – QUICK REFERENCE GUIDE

CPC lays down the procedure in which civil suits will be dealt with in India.

Sec. Name Notes

No.
PRELIMINARY This part of any statute, deals with giving the basic
introduction and definition to the statute.
Sec.1 Short Title, Provides for the territorial application of CPC. Post
Commencement and the Constitutional amendment wrt Art. 370, CPC is
Extent now applicable in J&K
Sec. 2 Definitions Provides for specific definition of the words used in
the statute. Detailed explanation of the definition
provided as and when the section is looked at
Sec. 3 Subordination of courts Explains the hierarchy of courts, i.e. the Civil Courts
of grade lower than district and small causes are the
lowest courts, followed by district courts and then
HC and then SC respectively. Important for
understanding jurisdiction of any matter
Sec. 4 Savings This explains that in case of any conflict between a
special law or a local law, the special law will
prevail unless the opposite is expressly stated. CPC
therefore is a general law. E.g. In case of a dispute
arising because of monopolies or cartels, the
procedure mentioned in the Competition act will be
applicable as opposed to CPC
Sec. 5 Application of the code In case of Revenue court, special procedure will be
to Revenue Courts applicable. Unless the state government modifies the
 same through the official gazette. And shall not
become civil in nature.
Sec. 6 Pecuniary Jurisdiction
7 Provincial small causes Self sufficient
court
8 Presidency Small Self sufficient
Causes Court
9 Courts to try all Civil Grants power to all civil courts to try civil cases
suits Unless barred unless otherwise stated. Exp1: Example: Babri
Masjid/Ayodhya case, where even though the
dispute involved religion, the suit ultimately was
about a property title, hence civil in nature.
10 Stay of suit Doctrine of Res Sub judice i.e. a suit should not
proceed at the same time in two different courts. Eg.
If a suit is already filed in Indore, the same case
dealing with the same cause of action and parties,
cannot be filed in Bombay.
11 Res Judicata If a matter, is “heard and finally” decided by another
court, the same suit cannot be filed again. E.g A files
a suit and does not get a decree in his favour in
Bombay HC, and the appeal to SC is also dismissed
they cannot again file the same suit in any other HC.
Appeals are not to be confused with res judicata, as
appeals deal with a revisit to the case by higher
court, and does not start a new proceeding from
scratch.
Exp 4: Lays down constructive res judicata. Eg. ‘A’
files a suit for possession of a property, and has 4
grounds available to them, but only raises 2 in the
first suit. A will now be barred from raising the other
2 grounds in a fresh suit wrt the same property, as he
“might and ought” to have raised the same initially.
The intention is to provide finality and end to
litigation, and not abuse the process of law
12 Bar to further suit If there is any other provision in CPC which
disallows filing of another suit the same shall be
 barred. E.g O2 R2
13 When foreign If foreign judgements are found be 1. Decided by an
judgement not incompetent court 2. Not based on merits 3.
conclusive Apparent violation of International law, the same
will be held inconclusive
14 Presumption as to There is a presumption that the judgements are held
foreign judgements to be conclusive. This means, that the burden of
proof to prove otherwise rests on the party claiming
the judgement to be inconclusive.
15 Courts in which suits to Petitioners must go to the lowest court first
be instituted
16 Suits to be instituted In case of immovable property a suit is to be filed
where subject matter is where the immovable property is situated. Eg. If
situated property is in Nagpur, the suit must be filed in
Nagpur Civil Court
17 Suits for immovable In case immovable property exists in different
property situate within jurisdiction. Any one can be chosen (Valuation is
jurisdiction of different total value of claim in all jurisdictions). Eg. Property
courts in Bombay, Nagpur, Ahemdabad, any court can be
chosen.
18 Place of institution of If a property lies on borders, where two or more
suit where local limits of jurisdictions maybe applicable any one can be
jurisdiction of courts chosen
are uncertain
19 Suits for compensation In case of movables or persons, the plaintiff has a
for wrongs to person or choice to either file a suit in the jurisdiction where
movable they reside or where defendants do or wherever the
cause of action arises.
20 Other suits to be Where there are more than one defendants the suit to
instituted where be filed where either one of them resides or where
defendants reside or cause of action arises. The suit does not proceed till
cause of action arises the leave of court for the non resident defendant is
taken
21 Objection to Territorial, Subject matter or pecuniary jurisdictional
jurisdiction challenges cannot be taken at the stage of appeal or
revision if they were not taken in the original suit at
 the earliest possible time.
21A Bar on suit to set aside
decree on objection as
to place of suing
22 Power to transfer suits Where more than one jurisdiction exists, the
which may be instituted defendant may before the issues are settled request
in more than one court the court to transfer the case to another, the other
parties will have a right to file objects and court shall
decide after hearing all parties.
23 To what court 1. Different courts but same appellate court –
application lies To that appellate court
2. Different appellate court but same HC – to
that HC
3. Different HC’s – to the HC where the suit is
instituted.
24 General power to Suo motu or on application under 22 the court may
transfer and Transfer a suit, or withdraw and try/transfer/re
withdrawal transfer from a lower court. The court to which it is
transferred may unless otherwise directed start afresh
or pick up from where the court left.
25 Power of SC to transfer Only on application made by the parties (as per the
suits etc. procedure of 22 and 23) if the SC feels that justice
would be harmed, may order transfer of any suit
from one court to another. (Used rarely)
26 Institution of Suits A suit is instituted (or begins) with the filing of the
plaint
27 Summons to Defendants After the plaint, summons are issued to the
defendant within 30 days of institution of the suit.
This is the stage at which defendant enters the suit.
(read along with Order V for more clarity)
28 Service of Summons If defendant is in another state, the court shall send
where defendant resides the summons (along with requisite translation) to
in another State another state. And that state will then send summons
accordingly
29 Service of foreign If defendant resides outside the jurisdiction of CPC,
Summons then summons may be sent to the court in that
 territory and require them to send summons
30 Power to order Court may on application or suo motu, reasonably
discovery and the like order discovery, inspection, production, issue
summons for attendance, ask for affidavits etc.
31 Summons to witness Same procedure of summons for calling upon
witnesses or evidence etc.
32 Penalty for default If summons are not adhered to the court may:
1. Issue a warrant for arrest
2. Attach or sell property
3. Impose fine
4. Order to furnish security.
33 Judgement and Decree Upon hearing a judgement i.e. reasons for the
decision and decree i.e. the actual decision must be
passed. Example, the court may award Rs. 10k
damages for breach of contract (decree), only after
giving reasons as to why the breach occurred and
how the damages were calculated (judgement)
34 Interest Where the decree is for recovery of money, an
interest upto 6% PA may be levied from the date of
the suit or decree as the court deems fit. In case of
contractual relations, the court may go beyond 6%
but not above the contractual limits.
35 Costs The court as full authority within the limits of law to
reasonably impose costs. E.g. SC levied costs of 10k
on a person who filed an “urgent” PIL in the SC to
order change of terms from “social distancing” to
“physical distancing” amid the Covid 19 lockdown.
35A Compensatory costs in If a suit found to be filed on frivolous grounds, the
respect of false or court can order costs upto Rs. 3,000 or within the
vexatious claims or pecuniary limits (whichever is less). Criminal
defences liability for malicious prosecution will still exist
(will not count as double jeopardy)
35B Costs for delay Any unnecessary delay may lead to imposition of
costs.
36 Application to orders
37 Definition of Court
which passed a decree
38 Court by which decree Court which passes a decree or the court to which it
may be executed is sent can execute a decree.
39 Transfer of decree A decree may be transferred to another court if
a. The person resides in another jurisdiction
b. The property concerned is in another
jurisdiction
c. Any other reason
If the property is in another jurisdiction the court
making the decree cannot order execution
40 Transfer of decree to When decree is transferred to another state, it shall
Court in another state be executed as per the rules of that state.
41 Result of execution The court to whom the decree is transferred shall
proceedings to be notify to the original court about the status of the
certified decree.
42 Powers of Court in The court to whom the decree is passed shall have
executing a transferred the same powers as the court who passed the decree.
decree Transferee court may order attachment, re transfer,
execution by legal representative. ( Read O. XXI
R.50)
43 Execution of decrees
passed by Civil Courts
in places to which this
Code does not extend
44 Execution of Decrees
passed by Revenue
courts in places to
which this Code does
not extend
44A Execution of decrees
passed by Courts in
reciprocating territory
45 Execution of decrees Self sufficient
outside India
46 Precepts Upon application by the decree holder the court may
order another court for attachment of property. This
is known as precept
47 Questions to be No separate suit shall be filed for questions arising
 determined by the court out of the execution of a decree, the same shall be
executing decree decided by the court executing it
48 Repealed
49 Transferee Every transferee of a decree shall hold the same
subject to equities (if any) which the judgement
debtor might have enforeced against the original
decree holder
50 Legal representative If Judgement Debtor dies, the court may order the
legal representative to enforce the decree
51 Powers of Court to To enforce a decree the court may order
enforce Execution a. Delivery
b. Attachment or sale
c. Arrest or detention (after giving an
opportunity to show cause and if the court
feels that the judg. Debtor may abscond, may
be dishonest and conceal facts or is wilfully
defaulting, fiduciary capacity)
d. Appoint receiver
e. Anything else as per the decree

52 Enforcement of decree Can be enforced only to the extent of the liability of

against legal the deceased.
representative
53 Liability of ancestral Ancestral property can be used to enforce a decree
property
54 Partition of estate or Partition decrees are executed by Collector or any
separation of share gazetted officer
55 Arrest and Detention This section provides guidelines for arrest and
detention, the provisions are self explanatory
56 Prohinition of arrest or Women cannot be arrested for execution of decree
detention of women in for money
execution of decree for
money
57 Subsistence allowance State government may make provision for
subsistence of judgement debtors
58 Detention and release Guidelines for detention and release, provisions are
self explanatory
59 Release on ground of If the judgement debtor is ill, the court or the state
 illness government if satisfied may order release. Even
during spread of infectious diseases the court may
order release (used widely during covid 19)
60 Property liable to Court can attach any property apart from basic
attachment and sale in essentials required for survival e.g. food, clothing,
execution of decree vessels, and other basic essentials as mentioned in
the section.
61 Partial exemption of The state government may exempt agricultural
agricultural produce produce from being attached
62 Seizure of property in The execution shall not be done for seizure of a
dwelling house movable in the night. Doors of a dwelling house
shall not be broken until the Judgement debtor
obstructs entry. If a dwelling is occupied by a
woman who does not appear in public (pardashin
women), notice shall be given before any executing
process. Aimed at controlling misuse of power by
the state.
63 Property attached in
execution of decrees of
several courts
64 Private alienation of Any alienation of property done after attachment is
property after void, except if they contract was made before the
attachment to be void. attachment.
65 Purchaser’s title
67 Power for State Guidelines for state government to make rules for
Government to make sales of land in execution of decree
rules as to sales of land
in execution of decrees
for payment of money.
73 Proceeds of execution Proceeds of execution sale will be distributed as per
sale to be rateably the the decree among the decree holders.
distributed among
decree-holders.
74 Resistance to execution. The court may order detention if the judgement
debtor obstructs in execution or attachment of
property
75 Power of Court to issue Commissions are orders given by courts to different
 commissions people in process of a proceeding. This section
authorises the courts to issue such commissions for
example, for scientific analysis (example: Absolute
liability cases like Bhopal Gas tragedy), partition of
property, conduct auctions for sale etc.
76 Commission to another If in cases where witnesses reside in any other state,
Court. the court may request the court in that jurisdiction to
commission the person and return the commission
with the due examination
77 Letter of request. A request letter must be sent to the other court to
issue a commission
78 Commissions issued by
foreign courts
79 Suits by or against Nomenclature of Union of India or State of
Government. Maharashtra for suits by or against the government.
80 Notice. A notice of 2 months is to be given to the concerned
public officer, in a suit against government before
institution of the suit. In case of urgent reliefs, the
leave of the court may be taken.
81 Exemption from arrest If a suit is against a public official they cannot be
and personal arrested or detained or their property cannot be
appearance. attached. The reason is that the act was done in an
official capacity and not a personal capacity.
82 Execution of decree. A period of 3 months is to be given before execution
is issued against governments
83 When aliens may sue. Aliens are people from countries with whom the
Central government is at war. Persons from such
countries who are residing in India with permission
can only sue, people who are residing without
permission cannot.
84 When foreign States Foreign states may sue for the enforcement of a
may sue. private right only
85 Persons specially Only persons appointed by the appropriate
appointed by government can prosecute or defend cases filed by
Government to foreign rules or states.
prosecute or defend on
behalf of foreign Rulers
86 Suits against foreign
Rulers, Ambassadors
and Envoys.
87 Style of foreign Rulers Suits by foreign rulers to be filed in the name of the
as parties to suits. state they are ruling.
87A Definitions of “foreign Foreign states are those states which are recognised
State” and “Ruler”. by the Central government
87B Application of sections Rulers of former Indian states to be treated in the
85 and 86 to Rulers of same manner as foreign rulers.
former Indian States.
88 Where interpleader-suit Example, if A and B both claim possession over a
may be instituted. piece of land owned by C, C may then file for an
interpleader suit to be instituted.
89 Settlement of disputes The court may refer any matter as it deems fit for
outside the Court. arbitration, mediation, Lok Adalat, conciliation as
per the specific acts.
90 Power to state case for
opinion of Court.
91 Public nuisances and In case of public nuisance, advocate general or any
other wrongful acts two or more persons (with the leave of the court) file
affecting the public. such a suit
92 Public charities.
93 Exercise of powers of
Advocate-General
outside presidency-
towns.
94 Supplemental The court may at any time to meet the ends of justice
proceedings. issue any interlocutory orders (example, arrest,
attachment, temporary injunctions etc)
95 Compensation for In cases of a wrongful arrest, attachment or
obtaining arrest, injunction the court may provide compensation to
attachment or the defendant upon their application
injunction on
insufficient ground.
96 Appeal from original All decrees passed by original jurisdiction courts
decree. may be appealed including ex parte decrees.
However, decrees passed by consent of parties
 cannot be appealed. In case where a decree is passed
by the small causes court (or valuation is below 10k)
appeal will only lie on questions of law.
97 Appeal from final A preliminary decree if not challenged cannot be
decree where no appeal challenged along with the final decree. E.g. A
from preliminary temporary injunction, cannot be challenged after the
decree. final decree relating to claim of property is passed.
98 Decision where appeal In case of a larger bench, the majority judgement
heard by two or more will be final. If even number of judges disagree
Judges. equally, only that specific point where they disagree
will be heard by another judge and then the majority
will be decided.
99 No decree to be Irregularity of procedure (misjoinder of parties, error
reversed or modified in causes of action) shall not be a ground for
for error or irregularity substantially varying the decree on merits. The idea
not affecting merits or behind this is to ensure that mere technical grounds
jurisdiction. are not used for affecting merits of a case
99A No order under section Section 47 deals with questions to be determined by
47 to be reversed or executing authority. This section lays down that
modified unless decision unless there is an extreme irregularity the order
of the case is passed by the executing court cannot be substantially
prejudicially affected. varied. Eg. If the executing court orders for
attachment of a essential property like clothes, such
an order can be challenged as it is wholly against the
law. However, minor errors of procedure cannot be
challenged. The aim is to bring finality to the case
and not cause further delay.
100 Second appeal. A second appeal shall lie to the HC only in cases
where a substantial question of law is involved.
100A No further appeal in No decrees are allowed for any further appeals once
certain cases. a matter is heard and decided by the HC. Except
Letters patent appeals.
101 Second appeal on no Second appeal only on the grounds and procedure
other grounds. mentioned under 100
102 No second appeal in The pecuniary limit for second appeal is above Rs.
certain cases. 25,000/-
103 Power of High Court to The HC may on its own motion decide a question of
determine issue of fact. fact.
104 Orders from which This section lists down the kinds of orders which
appeal lies. may be appealed. Please refer to the section itself,
list is self explanatory
105 Other orders.
106 What Courts to hear
appeals.
107 Powers of Appellate Appellate courts have the following powers:
Court. 1. Determine a case finally
2. Remand a case (i.e. send a case back to
another or the same court)
3. Frame issues
4. Take or require additional evidence.
It may be noted that the power of appellate and
original court are nearly same.
108 Procedure in appeals Procedure for appeal from orders shall be similar to
from appellate decrees that of appeal from decrees, unless a special law is
and orders. made to that extent.
109 When appeals lie to the Conditions for appeal to the SC:
Supreme Court. 1. Substantial question of law of public
importance (the logic is that one case’s
interpretation should help resolve the conflict
in many other cases) and
2. Certificate from the HC
112 Savings. This clause explains that the CPC does not bar the
inherent power of the SC under Art. 136 i.e. Special
leave petition. And any other provision made by the
SC.
113 Reference to High References are made by courts to the HC, and not by
Court. the parties. Thus, where the lower courts think that a
case involves a challenge to the validity or
interpretation of a law the court shall refer that
question of law to the HC. (Refer O46 R1) Parties
may make a request to the lower court to make a
reference to the HC
114 Review. Review of a decree/order lies to the same court. In
cases where no appeal lies, or by reference of small
causes court, or by discovery of new evidence, either
party make seek review (Refer o 46)
115 Revision. HC may call upon a case of a subordinate court for
revision on grounds mentioned in the provision.
Revision generally deals with jurisdictional errors
116 Part to apply only to This part of CPC until section 120 applies only to the
certain High Courts. HCs
117 Application of Code to Applicable unless otherwise provided
High Courts.
118 Execution of decree Execution of decree before ascertainment of costs.
before ascertainment of
costs.
119 Unauthorised persons No unauthorised persons can approach the court i.e.
not to address Court. third parties who have no cause of action on behalf
of others. (Except if authorised to do so eg. Minors
can be represented by their parents/guardians/next
best friend)
120 Provisions not Territorial jurisdictional concerns mentioned in sec.
applicable to High 16,17, 20 do not apply to HC.
Court in original civil
jurisdiction.
121 Effect of rules in First Same effect as the Code unless annulled
Schedule.
122 Power of certain High HC can make their own rules. All HC have their own
Courts to make rules. rule book
123 Constitution of Rule Sometimes, HC appoint committees
Committees in certain
States.
124 Committee to report to
High Court.

125 Power of other High

Courts to make rules.
126 Rules to be subject to This provision ensures no arbitrary rules are made
approval.
127 Publication of rules Rules should be published in order to make people
 aware
128 Matters for which rules Rules cannot be inconsistent with the code with
may provide. regards to listed provisions
129 Power of High Courts Other than those in 122
to make rules as to their
original Civil
procedure..
130 Power of other High Permission of state government required
Courts to make rules as
to matters other than
procedure.
131 Publication of rules. Rules should be published in order to make people
aware
132 Exemption of certain Women who by way of custom (as approved by the
women from personal government, example pardashin women) are
appearance exempted from personally appearing in court.
133 Exemption of other Presidents and other ministers are also exempted
persons. from appearing in person. Any other person who
claims this privilege has to pay costs for examination
134 Arrest other than in 55 57 59 applicable
execution of decree.
135 Exemption from arrest Protection from arrest for judges and judicial officers
under civil process
135A Exemption of members Certain lists of ministers are exempted from being
of legislative bodies arrested
from arrest and
detention under civil
process.
136 Procedure where If a person or property require to be attached resides
person to be arrested or outside the jurisdictional limit. The Court must make
property to be attached an order for arrest or attachment and then send the
is out side district. same to the district court in concern and that court
must arrest or attach the said property.
137 Language of Subordinate courts may use the language as directed
subordinate Courts. by the court. All written documents may be in
English (except evidences) and the court must
provide translation for anyone who is not acquainted.
138 Power of High Court to HC can order evidences to be recorded in English.
require evidence to be
recorded in English
139 Oath on affidavit by Oath on affidavits may be administered by notaries,
whom to be magistrates or anyone else appointed by the court.
administered. Oath on affidavit t
140 Assessors in causes of Admiralty jurisdiction and procedure to summon
salvage, etc.
141 Miscellaneous Any proceeding of civil nature even if not mentioned
proceedings under the code will follow the same procedure
142 Orders and notices to All orders and notices are to be in writing in order to
be in writing. maintain a record and provide clarity
143 Postage. The court may impose postage fees
144 Application for The imported definition of restitution is ‘an act of
restitution. restoring a thing to its proper owner’ For the purpose
of granting remedies as a part of restitution, the court
has been given wide powers phrased as ‘the court
may make any orders’. This means that the court can
pass any order to meet the ends of justice.
145 Enforcement of liability Procedure for execution of liability of surety and
of surety. how the same should be furnished
146 Proceedings by or
against representatives.
147 Consent or agreement Every consent or agreement given by a person under
by persons under disability
disability.
148 Enlargement of time The court has the authority to extend time limits.
148A Right to lodge a caveat. The main object of caveat is to ensure that the court
does not pass ex parte orders and that the interests of
the caveator are protected. Caveat also reduces the
burden of court and brings an end to the litigation as
it reduces the multiplicity of proceedings.
149 Power to make up If a party fails to pay court fees on a particular
deficiency of court-fees. document the court may order so at anytime
150 Transfer of business. When a case is transferred to another court, the
transferee shall have the same powers
151 Saving of inherent The court may make orders as necessary to protect
powers of Court. the ends of justice.
152 Amendment of Arithmetical, typographical errors may be corrected
judgments, decrees or at anytime
orders.
153 General power to The courts have the power to amend decrees.
amend.
153A Power to amend decree
or order where appeal
is summarily dismissed.
153B Place of trial to be Public must be allowed to access and attend court.
deemed to be open
Court
157 Continuance of orders Orders made under any previous enactments which
under repealed are now repealed shall stand valid if they are
enactments. consistent with CPC
158 Reference to Code of In case of notifications which were made prior to the
Civil Procedure and enactment of CPC, which made reference to another
other repealed code which is now repealed, attempt shall be taken
enactments to be made to this code.
 CIVIL PROCEDURE CODE – LANDMARK CASES ON IMPORTANT SECTIONS.

Section 9

PMA Metropolitan v. M.M. Marthoma5

Issue: What is meant by suits of civil nature?

The expansive nature of the section is demonstrated by use of phraseology both positive and
negative. The earlier part opens the door widely and latter debars entry to only those which
are expressly or impliedly barred. The two explanations, one existing from inception and later
added in 1976, bring out clearly the legislative intention of extending operation of the section
to religious matters where right to property or office is involved irrespective of whether any
fee is attached to the office or not. The language used is simple but explicit and clear. It is
structured on the basic of a civilized jurisprudence that absence of machinery for enforcement
of right renders it nugatory. The heading which is normally a key to the section brings out
unequivocally that all civil suits are cognizable unless bared. What is meant by it is explained
further by widening the ambit of the section by use of the word ‘shall’ and the expression ‘all
suits of a civil nature unless expressly or impliedly barred.

Section 9A (Now deleted)

Supreme Court

1. Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.6

Facts: The case was with regards to sale of property and the plaintiff had filed a suit for a
temporary injunction from alienation of the property. The court whereby concluded that
Limitation could be included as a preliminary issue as per Section 9A

Issue: Whether Limitation can be framed as a preliminary issue as per Section 9A

Held: Limitation is a question of both law and fact, Section 9A allows only questions
jurisdiction i.e. questions of pure law to be decided as a preliminary issue and therefore
limitation is not included and cannot be framed as a preliminary issue under Sec.9A

5
1995 AIR 2001
6
(2015) 7 SCC 321
 2. Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead)
through legal representatives and others7 (Partially repealed)

Facts: The suit of the appellant was dismissed by the Civil Judge on the ground that it was
barred by Limitation. The question was considered under Section 9A.

Issues: 1. Whether “Limitation” can be framed as a preliminary issue under Section 9A?
and 2. What provision takes precedence in between Section 9A and O. XIV R.2 ?

Held: 1. Yes Limitation can be framed as preliminary issue, as the word jurisdiction under
9A is broader than the traditional understanding of the term jurisdiction (repealed) 2.
Section 9A being a mandatory provision takes precedence over the Order which is
discretionary.

3. Nusli Veville Wadia v. Ivory Properties & Ors.8

Facts: Reference to the SC made in order to resolve the conflict mentioned in the above
two cases.

Issue: Whether “Limitation” can be framed as a preliminary issue under Section 9A?

Held: Upheld Kamalkar and repealed Foreshore

Section 10. Stay of suit:

GC Care Centre & Hospital v OP Care Pvt Ltd, 9

Facts: The petitioner a hospital, filed a suit with two plaintiffs and two defendants at Nasik
with regards to payment under a contract and then filed a suit with one plaintiff and one
defendant in Delhi for the same transaction

Issue: Whether the suit would be barred? If yes which one?

Held: Yes, even though the petitioners are different in both the cases, the cause of action is
same thus the second suit i.e. the suit filed in Delhi is barred by res sub judice.

Section 11. Res Judicata

7
(2015) 6 SCC 412
8
(2019) 13 SCALE 620
9
AIR 2004 SC 2339
Short explanation: If a matter is heard and finally decided by a court of law, the matter will
not be adjudged again. Aimed to provide finality to the case.

Supreme court

a. Dayarao v. State of U.P10

Facts: A petition was filed under Art.226 in the Allahabad HC, and the same was
dismissed on merits. The petitioner then filed the same petition to the SC under Art.
32.
Issue: Whether the principle of res judicata would be applicable?
Ratio: Yes, since the matter was “heard and finally decided” the matter would be
bound by res judicata.
Note: An appeal to the SC or a special leave under Art.136 would not be barred by res
judicata, as they are appeals. Since the petitioner here, filed a writ under 32 the
principle was applicable. Similar principle would be applicable in case of CPC cases
as well.
b. Devilal Modi v. STO 11
Facts: A sales tax assessment was challenged under Art. 226, which was dismissed on
merits. The same was appealed to the SC, where some additional grounds were
claimed but were rejected. The petitioner then filed another petition for the same
assessment under Art. 226 with the additional grounds, and then appealed to the SC
Issue: Whether the principle of res judicata would be applicable?
Ratio: Answered in affirmative. Said the petition would be barred by Constructive
Res Judicata would be applicable and the writ petition would be barred. As the
additional grounds must have been sought in the earlier petition, and citizens cannot
be allowed to raised selective grounds and then file multiple petitions.
Additional notes: Although this case does not directly deal with Res Judicata under
CPC, the same would principle would be applicable as per explanation IV of Sec. 11.

Bombay HC

a. R.S Sharma v. UOI 12

10
1961 AIR 1457
11
1965 AIR 1150
12
2003 SCC OnLine Bom 1022
 Facts: Petitioner was removed from his post at telephone Exchange, which was
challenged and was later dismissed. After which he filed a petition for accrual of
pension.
Issue: Whether the second petition was barred by res judicata?
Held: No, even if the cause of action is same, the relief is different and both deal with
different issues, the principle of res judicata will not be applicable.

Section 12: Bar to further suit

Multiple provisions are applicable which bar an individual from further suit. These are some
examples. Res judicata, Res sub judice, Decrees. O. 23 R.1, etc.

a. Anil Kumar Singh v. Vijay Pal

Facts: Both had a dispute regarding a piece of land, the plaintiff however filed an order 23
application to withdraw suit. The withdrawal was challenged by the defendant, however the
trial court ordered costs and withdrew the suit. The HC however reversed the trial court
verdict. The validity of the HC verdict was challenged in the SC

Held: The petitioners have a right to withdraw suit at any given point, and the petitioners
shall be barred from filing the same suit again. However, the defendants cannot object the
withdrawal of the suit, and force the petitioners to prosecute. The defendants have the right to
sue the petitioners after withdrawal.

b. Bijyananda v. Satrughna Sahu

The Plaintiff’s right under Order 23 Rule 1(1) of the CPC to withdraw suit is absolute and
unqualified and the Court cannot refuse permission to withdraw a suit and compel the
Plaintiff to proceed with it, unless any vested right comes into existence before such prayer is
made

Section 27,28,29 (read Along with O.5)

a. Sunil Poddar and Ors. v. Union bank of India13

Facts: Though the primary issue in this case was with regards to Debt recovery, the plaintiffs
(who were defendants in original suit) raised an issue with regards to service of summons.

13
(2008) 2 SCC 326
The plaintiffs said that they were not served with the summons, whereas the defendants
claimed that the service was refused by the plaintiffs upon which a substituted service was
done by publication in the leading newspaper Nav Bharat Times. The plaintiffs mentioned
how they did not subscribe to the newspaper and hence were not aware.

Issue: In case of substituted service, is it necessary for newspapers to be subscribed by the

defendant?

Held: Negative. The court said that the summons must be published in any leading newspaper
which is in wide circulation in the place where the defendant resides. Nav Bharat times being
a widely circulated newspaper thus constituted to be a valid summon. The subscription of the
defendants to that newspaper is wholly irrelevant.

Section 38,39,42: Execution

a. Akola Janata Commercial Co-Op. Bank Ltd. case14

Division Bench of Bombay High Court considered the definition of a Court under Section
2(1) (e) of the Act and the definition of an ‘executing court’ and the ‘Court to which the
decree is transferred’ under Sections 37, 38 and 39 of the CPC’. Under section 36 of the
Arbitration & Conciliation Act the award can be enforced under the CPC in the same manner
as if it were a decree. This would be by the ‘Court’ defined under Section 2 (1) (e) as the
Court having jurisdiction to decide questions forming the subject matter of the arbitration.
Thus where the award has been passed in Mumbai the Bombay High Court would be the
Court which must be taken to be the “the Court which passed the decree” under Section 37 of
the CPC. Consequently under Section 38 of the CPC the decree would be executed by
Bombay High Court which passed it or the Court to which it sent for execution. Under
Section 39 the Court would send the decree for execution to another court where it would
have to be executed upon the application of the decree holder. It is held in that judgment that
the award must be treated as the decree passed by the District Judge and therefore, it may be
executed either by the District Judge himself or by the Court to which it may be transferred
for execution under Section 39 of the CPC. There is not much dispute with this provision
also. When the execution petition was stayed by the appellate court and during pendency of
appeal the said court before which the execution petition was pending ceased to have
jurisdiction, the Decree Holder is entitled to file a second execution petition, after dismissal

14
1999 (2) ALD 179
of appeal, the second execution before the newly constituted court after withdrawing the first
execution petition.

Irukula Lalitha Devi & another vs. Ramini Ramappa & another AIR 2016 AP 206

This case held that a “camp court” is not the appropriate court for executing a decree.

Section 52 (along with O.XXII rule 4)

a. State of Punjab V. Nathu Ram15,

Held : While interpreting the provisions of Order XXII Rule 4(3) CPC read with Rule 11
thereof, the Apex Court observed that an appeal abates as against the deceased respondents
where within the time limited by law no application is made to bring his heirs or legal
representatives on record. However, whether the appeal stands abated against the other
respondents also, would depend upon the facts of a case.

b. Sri Chand V. M/s Jagdish Pershad Kishan Chand16

Held: That in case one of the respondents dies and the application for substitution of his heirs
or legal representatives is not filed within the limitation prescribed by law, the appeal may
abate as a whole in certain circumstances and one of them could be that when the success of
the appeal may lead to the courts coming to a decision which may be 106 in conflict with the
decision between the appellant and the deceased respondent and, therefore, it will lead to the
court passing a decree which may be contradictory and inconsistent to the decree which had
become final with respect to the same subject matter between the appellant and the deceased
respondent in the same case

Section 75

Bandhua Mukti Morcha versus Union of India AIR 1984 SC 802.

Held : “It is for this reason that the Supreme Court has evolved the practice of appointing
commissions for the purpose of gathering facts and data in regard to a complaint of breach of
fundamental right made on behalf of the weaker sections of the society. The Report of the
commissioner would furnish prima facie evidence of the facts and data gathered by the
commissioner and that is why the Supreme Court is careful to appoint a responsible person as
commissioner to make an inquiry or investigation into the facts relating to the complaint. It is

15
AIR 1963 SC 89
16
AIR 1966 SC 1427
interesting to note that in the past the Supreme Court has appointed sometimes a district
magistrate, sometimes a district Judge, sometimes a professor of law, sometimes a journalist,
sometimes an officer of the court and sometimes an advocate practising in the court, for the
purpose of carrying out an inquiry or investigation and making report to the court because the
commissioner appointed by the Court must be a responsible person who enjoys the
confidence, of the court and who is expected to carry out his assignment objectively and
impartially without any predilection or prejudice. Once the report of the Commissioner is
received, copies of it would be supplied to the parties so that either party, if it wants to
dispute any of the facts or data stated in the Report, may do so by filing an affidavit and the
court then consider the report of the commissioner and the affidavits which may have been
filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely
for the Court to consider what weight to attach to the facts and data stated in the report of the
commissioner and to what extent to act upon such facts and data. But it would not be correct
to say that the report of the commissioner has no evidentiary value at all, since the statements
made in it are not tested by cross-examination. To accept this contention would be to
introduce the adversarial procedure in a proceeding where in the given situation, it is totally
inapposite”

Section 80

a. Salem Advocate Bar Association,Tamil Nadu V. Union of India17

This is landmark case in CPC as it deals with many interpretational question and provides
clarity on many areas of CPC

With regards to Sec. 80, the SC in this case explained the need for such provision. The court
noted “The object also is to curtail the area of dispute and controversy. Similar provisions
also exist in various other legislations as well. Wherever the statutory provision requires
service of notice as a condition precedent for filing of suit and prescribed period 24 therefore,
it is not only necessary for the Governments or departments or other statutory bodies to send
a reply to such a notice but it is further necessary to properly deal with all material points and
issues raised in the notice. The Governments, government departments or statutory
authorities are defendants in large number of suits pending in various courts in the country.
Judicial notice can be taken of the fact that in large number of cases either the notice is not
17
AIR 2005 SC 3353
replied or in few cases where reply is sent, it is generally vague and evasive. The result is that
the object underlying Section 80 of the Code and similar provisions gets defeated. It not only
gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer
as well.”

b. Disha Construction & Ors V. State of Goa & Anr., 18

Facts: A group of Construction workers, had payments for their work. When sued, the
defendants raised the issue that the suit was barred by limitation. notice under Section 80 was
served on Defendant No. 1 on 27th February, 2009 and the period of two months had expired
on 27th April, 2009. According to the High Court, the period of limitation expired on 30th
September, 2009 and therefore, the suit which was filed on 24th October, 2009, was barred
by limitation.

Issue: Whether the notice period must be excluded from computing of limitation?

Held: As per Section 15 of the Limitation Act, the court held that notice period should be
excluded from computing limitation if the suit notice is served within limitation. However if
the notice is served after the period of limitation such exclusion may not be given.

Section 96:

a. B.V. Nagesh & Anr. v. H.V. Sreenivasa Murthy19

Facts: In a present case, on a appeal filed to the HC, the court without adhering to proper
factual analysis and listing down issues for consideration. The petitioners challenged the
appeal in the SC. The court criticised the manner in which the appeal was heard and laid
down the importance of first appeal and its scope.

Ratio: The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court.
The first appeal is a valuable right of the parties and unless restricted by law, the whole case
therein is open for re-hearing both on questions of fact and law. The judgment of the
appellate Court must, therefore, reflect its conscious application of mind and record findings
supported by reasons, on all the issues arising along with the contentions put forth and
pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was
the duty of the High Court to deal with all the issues and the evidence led by the parties
before recording its findings. The first appeal is a valuable right and the parties have a right to

18
AIR 2012 SC 1769
19
(2010) 10 SCC 55
be heard both on questions of law and on facts and the judgment in the first appeal must
address itself to all the issues of law and fact and decide it by giving reasons in support of the
findings

Bombay HC

b. Toefillo Baretto v. Sadashiv and ors.20

Issue: Valuation of suit in appeal where a counter claim is presented?

Held: The jurisdiction of the Appellate Court cannot be made dependent on the fluctuating
valuation of the claim in appeal. The valuation of claim in appeal has relevance only for the
purposes of Court fee. The valuation for the purposes of determining jurisdiction and for the
purpose of Court fee are two distinct factors. They need not be identical or common. The
appellant may restrict or relinquish part of the claim and accordingly pay proportionate Court
fee thereon. The valuation of the suit determines the forum of the appeal and not the
valuation of decree Where both suit and counter-claim are dismissed, the subject-matter of
the appeal would be the plaint. Hence valuation would be as per the valuation of the plaint
and Court fee as payable on the plaint; would be as due and payable thereon. The plaintiff
cannot be made to value his appeal on the basis of the combined valuation of the plaint and
counter-claim, in respect of which he makes no claim. In the case on hand, the appeal filed by
the respondent No. 1 valuing its appeal in the sum of Rs. 38,500/- is a correct valuation and
in view of the amendment to the Goa, Daman and Diu Civil Courts Act, 1965 appeal arising
from the suits of which valuation does not exceed more than Rupees One Lakh, the
appeal lies to the District Court. Therefore, appeal filed by the plaintiff in the District Court is
perfectly tenable.

Section 100,101.

a. State Bank of India & Ors. V. S.N. Goyal21

Issue: What constitutes as a substantial question of law?

Held the following : “The word ‘substantial’ prefixed to ‘question of law’ does not refer to
the stakes involved in the case, nor intended to refer only to questions of law of general
importance, but refers to impact or effect of the question of law on the decision in the lis
between the parties. ‘Substantial questions of law’ means not only substantial questions of

20
2007 SCC OnLine Bom 194
21
AIR 2008 SC 2594
law of general importance, but also substantial question of law arising in a case as between
the parties. ……..... any question of law which affects the final decision in a case is a
substantial question of law as between the parties. A question of law which arises incidentally
or collaterally, having no bearing on the final outcome, will not be a substantial question of
law. Where there is a clear and settled enunciation on a question of law, by the apex Court or
by the High Court concerned, it cannot be said that the case involves a substantial question of
law. It is said that a substantial question of law arises when a question of law, which is not
finally settled by the apex Court (or by the High Court concerned so far as the State is
concerned), arises for consideration in the case. But this statement has to be understood in the
correct perspective. Where there is a clear enunciation of law and the lower court has
followed or rightly applied such clear enunciation of law, obviously the case will not be
considered as giving rise to a substantial question of law, even if the question of law may be
one of general importance. On the other hand, if there is a clear enunciation of law by the
apex Court (or by the High Court concerned), but the lower court had ignored or
misinterpreted or misapplied the same, and correct application of the law as declared or
enunciated by the apex Court (or the High Court concerned) would have led to a different
decision, the appeal would involve a substantial question of law as between the parties. Even
where there is an enunciation of law by the apex Court (or the High Court concerned) and the
same has been followed by the lower court, if the appellant is able to persuade the High Court
that the enunciated legal position needs reconsideration, alteration, modification or
clarification or that there is a need to resolve an apparent conflict between two viewpoints, it
can be said that a substantial question of law arises for consideration. There cannot, therefore,
be a straitjacket definition as to when a substantial question of law arises in a case.” Quoted
from the judgement.

Ram Prasad Rajak V. Nand Kumar & Bros. & Anr., 22

Supreme Court held that existence of substantial question of law is a sine-qua-non for the 32
exercise of jurisdiction under Section 100 of the Code and entering into the question as to
whether need of the landlord was bonafide or not, was beyond the jurisdiction of the High
Court as the issue can be decided only by appreciating the evidence on record.

Section 114: Review

22
AIR 1998 SC 2730
 a. State of West Bengal & Ors. V. Kamal Sengupta & Anr23

Apex Court held that review on the ground of discovery of new and important matter or
evidence can be taken into consideration if the same is of such a nature that if it had been
produced earlier, it would have altered the judgment under review and Court must be
satisfied that the party who is adducing the new ground was not having the knowledge of the
same even after exercise of due diligence and therefore, it could not be produced before the
Court earlier. The error apparent signifies as an error which is evident per se from the record
of the case and does not require detailed examination, scrutiny and elucidation either of the
facts or the legal position. In case the error is not self-evident and detection thereof requires
long debate and process of reasoning, it cannot be treated as an error apparent on the face of
the record for the purpose of review. The Court further held that the purpose of review is
rectification of an order which stems from the fundamental principle that the justice is above
all and it is exercised only to correct the error which has occurred by some accident, without
any blame.

b. Delhi Administration V. Gurdeep Singh Uban24

Apex Court deprecated the practice of filing review application observing that review, by no
means, is an appeal in disguise and it cannot be entertained even if application has been filed
for clarification, modification or review of the judgment and order finally passed for the
reason that a party cannot be permitted to circumvent or by-pass the procedure prescribed for
hearing a review application.

Section 115: Revision

a. Suresh Chandra Manhorya V. Gajendra Rajak,25

Facts: A judge of the MP HC allowed and passed a judgement and order in a civil application
without providing notice to the opposite party. The respondents argued that even though the
notice was not issued, since the correct position of law has been upheld the petitioner has no
claim in the present case.

23
(2008) 8 SCC 612
24
AIR 2000 SC 3737
25
(2006) 7 SCC 800)
Held: The court held that despite the correctness of a judgement and order, natural justice is a
part and parcel of the justice system and cannot be evaded in any case. And set aside the
order passed by the judge.