CODE OF CIVIL PROCEDURE

Q. Explain Decree, Order, and Judgment and

distinguish between them. What are the essential
elements of a decree? What are the kinds of
decree? What are the consequences of non
appearance of parties? What is an ex parte
decree? Discuss the remedies available to a
defendant against whom an ex parte decree has
been passed. All questions regarding execution of
a decree shall be determined by the court

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executing the decree and not by a separate suit.
Explain.

Decree

In a civil suit several facts might be alleged and the

court may be required to rule on several claims. In
simple terms, a decree is the ruling of the court
regarding the claims of the parties of the suit. For
example, in a suit between A and B, A may claim that
a particular property P belongs A. After hearing all the
arguments, the court will rule in the favor of either A
or B. The final decision of the court regarding this
claim i.e. whether the property belongs to A or B, is a
decree.

As per Section 2(2), a decree is the formal

expression of an adjudication which, so far as regards
the Court expressing it, conclusively determines the
rights of the parties with regard to all or any of the
matters in controversy in the suit. It can be final or
preliminary.

From the above definition we can see the following

essential elements of a decree -

1. There must be adjudication - Adjudication means

Judicial Determination of the matter in dispute. In
other words, the court must have applied its mind on
the facts of the case to resolve the matter in dispute.
For example, dismissing a suite because of default in

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appearance of the plaintiff is not a decree. But
dismissing a suite on merits of the case would be a
decree.

2. There must be a suit - Decree can only be given

in relation to a suit. Although CPC does not define
what suit means, in Hansraj vs Dehradun
Mussoorie Tramways Co. Ltd. AIR 1933, the Privy
Council defined the term suit as "a civil proceeding
instituted by the presentation of a plaint".

3. Rights of the parties - The adjudication must be

about any or all of the matters in controversy in the
suit. The word right means substantive rights and not
merely procedural rights. For example, an order
refusing leave to sue in forma pauperis (i.e. an order
rejecting the application of a poor plaintiff to waive
court costs) is not a decree because it does not
determine the right of the party in regards to the
matters alleged in the suit.

4. Conclusive Determination - The determination of

the right must be conclusive. This means that the
court will not entertain any argument to change the
decision. I.e. as far as the court is concerned, the
matter in issue stands resolved. For example, an
order striking out defence of a tenant under a relevant
Rent Act, or an order refusing an adjournment is not a
decree as they do not determine the right of a party
conclusively. On the other hand, out of several
properties in issue in a suit, the court may make a

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conclusive determination about the ownership of a
particular property. Such a conclusive determination
would be a decree even though it does not dispose off
the suit completely.

5. Formal expression - To be a decree, the court

must formally express its decision in the manner
provided by law. A mere comment of the judge cannot
be a decree.

Examples of decisions which are Decrees

- Dismissal of appeal as time barred, Dismissal or a
suit or appeal for want of evidence or proof, Order
holding appeal to be not maintainable.

Examples of decisions which are not Decrees

- Dismissal of appeal for default, order of remand,
order granting interim relief.
Order

As per Section 2 (14), the formal expression of any

decision of a civil court which is not a Decree is
Order. In a suit, a court may take certain decisions on
objective considerations and those decisions must
contain a discussion of the matters at issue in the suit
and the reasons which led the court to pass the order.
However, if those decisions fall short of a decree, they
are orders.

Thus, there are several common elements between

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an order and a decree - both related to matter in
controversy, both are decisions given by the court,
both are adjudications, both are formal expressions.
However, there are substantial differences between
them -////////////////////////////////
Decree - S. 2(2) Order S. 2(14)
Can be passed in a suit
Can only be passed in a
originated by the
suit originated by the
presentation of a plaint,
presentation of a plaint.
application, or petition.
Contains Conclusive May or may not finally
Determination of a right determine a right.
May be final, preliminary,
Cannot be a preliminary
or partly preliminary -
order.
partly final.
In general, there can only There can be any
be one decree or at the
number of orders in a
most one preliminary and
suit.
one final decree in a suit.
Only those orders which
Every decree is appealable
are specified as
unless an appeal is
appealable in the code
expressly barred.
are appealable.
A second appeal may lie
There is no second
against a decree to a High
appeal for orders.
Court on certain grounds.

Judgment

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As per Section 2 (9), "judgment" means the
statement given by the judge of the grounds of a
decree or order. Every judgment should contain - a
concise statement of the case, the points for
determination, the decision thereon, the reasons for
the decision. In the case of Balraj Taneja vs Sunil
Madan, AIR 1999, SC held that a Judge cannot
merely say "Suit decreed" or "Suit dismissed". The
whole process of reasoning has to be set out for
deciding the case one way or the other.

As per Rule 6 A of Order 20 the last part of the

judgment should precisely state tge relief granted.
Thus, a judgment is a state prior to the passing of a
decree or an order. After pronouncement of a
judgment, a decree shall follow.
Kinds of Decree

Preliminary - Where an adjudication decides the

rights of the parties with regard to all or any of the
matters in controversy in the suit but does not
completely dispose of the suit, it is a preliminary
decree. It is passed when the court needs to
adjudicate upon some matters before proceeding to
adjudicate upon the rest.

In Shankar vs Chandrakant SCC 1995, SC stated

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that a preliminary decree is one which declares the
rights and liabilities of the parties leaving the actual
result to be worked out in further proceedings. CPC
provides for passing preliminary decrees in several
suits such as - suit for possession and mesne profits,
administration suit, suits for pre-emption, dissolution
of partnership, suits relating to mortgage.
In Narayanan vs Laxmi Narayan AIR 1953, it was
held that the list given in CPC is not exhaustive and a
court may pass a preliminary decree in cases not
expressly provided for in the code.

Final - When the decree disposes of the suit

completely, so far as the court passing it is
concerned, it is a final decree. A final decree settles
all the issues and controversies in the suit.

Party preliminary and partly final - When a decree

resolves some issues but leaves the rest open for
further decision, such a decree is partly final and party
preliminary. For example, in a suit for possession of
immovable property with mesne profits, where the
court decrees possession of the property and directs
an enquiry into the mesne profits, the former part of
the decree is final but the latter part is preliminary.

Deemed Decree - The word "deemed" usually implies

a fiction whereby a thing is assumed to be something
that it is ordinarily not. In this case, an adjudication
that does not fulfill the requisites of S. 2 (2) cannot be
said to be a decree. However, certain orders and

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determinations are deemed to be decrees under the
code. For example, rejection of a plaint and the
determination of questions under S. 144 (Restitution)
are deemed decrees.

Consequences of Non appearance of parties

(Order 9)
The general provisions of CPC are based on the
principle that both the parties must be given an
opportunity to be heard. The proceedings must not be
held to the disadvantage of one party. Order 9 lays
down rules regarding the appearance and the
consequences of non appearance of a party in the
hearing.

Rule 1 - Parties to appear on day fixed in summons

for defendant to appear and answer— On the day
fixed in the summons for the defendant to appear and
answer, the parties shall be in attendance at the
Court-house in person or by their respective pleaders,
and the suit shall then be heard unless the hearing is
adjourned to a future day fixed by the Court.

Dismissal of Suit

Rule 2 - Dismissal of suit where summons not served

in consequence of plaintiffs failure to pay cost—
Where on the day so fixed it is found that the
summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the

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court-fee or postal charges (if any) chargeable for
such service, or to present copies of the plaint or
concise statements, as required by rule 9 of order
VII, the Court may make an order that the suit be
dismissed :
Provided that no such order shall be made, if,
notwithstanding such failure the defendant attends in
person (or by agent when he is allowed to appear by
agent) on the day fixed for him to appear and answer.

Rule 3 - Where neither party appears, suit to be

dismissed— Where neither party appears when the
suit is called on for hearing, the Court may make an
order that the suit be dismissed.

Rule 4 - Plaintiff may bring fresh suit or Court may

restore suit to file— Where a suit is dismissed under
rule 2 or rule 3, the plaintiff may (subject to the law of
limitation) bring a fresh suit, or he may apply for an
order to set the dismissal aside, and if he satisfies the
Court that there was sufficient cause for such failure
as is referred to in rule 2, or for his non-appearance,
as the case may be, the Court shall make an order
setting aside the dismissal and shall appoint a day for
proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after

summons returned unserved, fails for one month to
apply for fresh summons—
(1) Where after a summons has been issued to the
defendant, or to one of several defendants, and

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returned unserved the plaintiff fails, for a periods
of one month from the date of the return made to the
Court by the officer ordinarily certifying to the Court
returns made by the serving officers, to apply for the
issue of a fresh summons the Court shall make an
order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said
period satisfied the Court that—
(a) he has failed after using his best endeavours
to discover the residence of the defendant, who has
not been served, or
(b) such defendant is avoiding service of
process, or
(c) there is any other sufficient cause for
extending the time, in which case the Court may
extend the time for making such application for such
period as it thinks fit.
(2) In such case the plaintiff may (subject to the law
of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears—

(1) Where the plaintiff appears and the defendant
does not appear when the suit is called on for
hearing, then—
(a) When summons duly served—if it is proved
that the summons was duly served, the Court may
make an order that the suit shall be heard ex parte.
(b) When summons not duly served—if it is not
proved that the summons was duly serve, the Court

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shall direct a second summons to be issued and
served on the defendant;
(c) When summons served but not in due time—
if it is proved that the summons was served on the
defendant, 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
future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.
(2) Where it is owing to the plaintiffs' 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 occasioned by the postponement.

Rule 7 - Procedure where defendant appears on day

of adjourned hearing and assigns good cause for
previous non-appearance— Where the Court has
adjourned the hearing of the suit ex-parte and the
defendant, at or before such hearing, appears and
assigns good cause for his previous non-appearance,
he may, upon such terms as the Court directs as to
costs or otherwise, be heard in answer to the suit as if
he had appeared on the day, fixed for his
appearance.

Absence of Plaintiff

Rule 8 - Procedure where defendant only appears—

Where the defendant appears and the plaintiff does
not appear when the suit is called on for hearing, the
Court shall make an order that the suit be dismissed,

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unless the defendant admits the claim or part thereof,
in which case the Court shall pass a decree against
the defendant upon such admission, and, where part
only of the claim has been admitted, shall dismiss the
suit so far as it relates to the remainder.

Rule 9 - Decree against plaintiff by default bars fresh

suit—
(1) Where a suit is wholly or partly 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,
and if he satisfies the Court that there was sufficient
cause for his non-appearance when the suit was
called on for hearing, the Court shall make an order
setting aside the dismissal upon such terms as to
costs or otherwise as it thinks fit. and shall appoint a
day for proceeding with suit.
 (2) No order shall be made under this rule unless
notice of the application has been served on the
opposite party.

Multiple plaintiffs and/or Defendants

Rule 10 - Procedure in case of non-attendance of

one or more of several plaintiffs— Where there are
more plaintiffs than one, and one or more of them
appear, and the others do not appear, the Court may,
at the instance of the plaintiff or plaintiffs appearing,
permit the suit to proceed in the same way as if all the
plaintiffs had appeared, or make such order as it

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thinks fit.

Rule 11 - Procedure in case of non-attendance of

one or more of several defendants— Where there are
more defendants than one, and one or more of them
appear, and the others do not appear, the suit shall
proceed, and the Court shall, at the time of
pronouncing judgment, make such order as it thinks fit
with respect to the defendants who do not appear.

General Consequence of Non appearance

Rule 12 - Consequence of non-attendance, without

sufficient cause shown, of party ordered to appear in
person— Where a plaintiff or defendant, who has
been ordered to appear in person, does not appear in
person, or show sufficient cause to the satisfaction of
the Court for failing so to appear, he shall be subject
to all the provisions of the foregoing rules applicable
to plaintiffs and defendants, respectively who do no
appear.

This means either the suit will be dismissed or will be

continued ex parte.

Ex parte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before

the court in spite of a proper service of the summons,
the court may proceed ex-parte and may pass a
decree in favor of the plaintiff. This is called an ex-

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parte decree. In the case of Hochest Company vs V
S Chemical Company, SC explained that an ex parte
decree is such decree in which defendant did not
appear before court and the case is heard in the
absence of the defendant from the very beginning.

Remedies available to the defendant against an ex

parte decree

1. Application to set aside the ex parte decree

- As per Order 9, Rule 13, a defendant may apply
before the court that passed the decree to set it aside.
If he satisfies the court that the summons was not
duly served or he was prevented by any other
sufficient cause from attending the hearding, the court
shall make an order setting aside the decree. For
example, bona fide mistake as to the date or hearing,
late arrival of train, etc. are sufficient causes for
absence of the defendant. Such an application for
setting aside may be made within 30 days from the
date of decree as per Section 123 of Limitation Act.

Setting aside decrees ex parte

Rule 13 - Setting aside decree BIex parte against

defendant— In any case in which a decree is passed
ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order to
set it aside; and if he satisfies the Court that the
summons was not duly served, or that he was
prevented by any sufficient cause from appearing

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when the suit was called on for hearing, the Court
shall make an order setting aside the decree as
against him upon such terms as to costs, payment
into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit;
Provided that where the decree is of such a nature
that it cannot be set aside as against such defendant
only it may be set aside as against all or any of the
other defendants also:
Provided further that no Court shall set aside a decree
passed ex parte merely on the ground that there has
been an 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 and answer
the plaintiff's claim

Explanation.—Where there has been an appeal

against a decree passed ex parte under this rule, and
the appeal has been disposed of an any ground other
than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule for
setting aside that ex parte decree.

Rule 14 - No decree to be set aside without notice to

opposite party— No decree shall be set aside on any
such application as aforesaid unless notice thereof
has been served on the opposite party.

The court may impose conditions as it may deem fit

on the defendant for setting asided the decree. It may
ask the defendant to pay costs.

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When an ex parte decree is set aside, the court
should proceed to decide the suit as it stood before
the decree. The trial should commence de novo and
the evidence that had been recorded in the ex parte
proceeding should not be taken into account.

This remedy is specifically meant for an ex parte

decree.

2. Prefer an appeal against the decree under

Section 96(2).

3. Apply for review under Order 47 Rule 1.

4. File a suit on the ground of fraud.

All the above remedies are concurrent and can be

pursued concurrently.

Execution of a Decree

As per Section 38, a decree may be executed either

by the court which passed it or the court to which it is
sent for execution. While executing a decree, several
questions and objections may arise as to the manner
of execution. It would be impractical to institute new
suits to resolves such matters. Thus, Section 47 lays
down the general principal that any questions that

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arise in relation to the execution of the decree should
be resolved in execution proceeding itself and not by
a separate suit. Section 47 says thus -

47. Questions to be determined by the Court

executing decree -
(1) All questions arising between the parties to the
suit in which the decree was passed, or their
representatives, and relating to the execution,
discharge or satisfaction of the decree, shall be
determined by the Court executing the decree and not
by a separate suit.
(3) Where a question arises as to whether any person
is or is not the representative of a party, such
question shall, for the purposes of this section, be
determined by the Court.
Explanation I.For the purposes of this section, a
plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed
are parties to the suit.
Explanation II. (a) For the purposes of this section, a
purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in
which the decree is passed; and
(b) all questions relating to the delivery of possession
of such property to such purchaser or his
representative shall be deemed to be questions
relating to the execution, discharge or satisfaction of
the decree within the meaning of this section.

The objective of this section is to provide cheap and

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fast remedy for the resolution of any questions arising
at the time of execution. Institution of new suits would
only increase the number of suits and would also be a
burden on the parties.

The scope of this section is very wide. It confers

exclusive jurisdiction to the court executing the decree
in all the matters regarding the execution. It does not
matter whether the matter has arisen before or after
the execution of the decree. Thus, this section should
be construed liberally.

Conditions -
1. The question must be one arising between the
parties or their representatives to the suit in which the
decree is passed.
2. The question must relate to the execution,
discharge, or satisfaction of the decree.

As held in the case of Arokiaswamy vs Margaret

AIR 1982, both the conditions must be satisfied
cumulatively.

What is meant by execution, discharge and

satisfaction of a decree -
This expression has not been defined in the code.
However, the following questions are held to be
relating to the execution, discharge and satisfaction of
the decree -
whether a decree is executable, whether a property

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is liable to be sold in execution of a decree, whether
the decree is fully satisfied, whether the execution of
the decree was postponed.

The following questions have been held as not related

- whether the decree is fraudulent or collusive,
whether the decree has become in executable
because of a compromise between the parties, a
question about the territorial or pecuniary jurisdiction
of the court passing the decree.

Appeal and Revision

Earlier, determination made under Section 47 was
deemed to be a decree under Section 2(2). However,
after the amendment in 1976, this is not so. Any
determination made under an application under
Section 47 is not considered a decree and is therefore
not appealable under Section 96 or Section 100.
Since it is no more a decree, a revision application
under Section 115 is therefore maintainable provided
the conditions stipulated in Section 115 are satisfied.

Q. What are the objects and essential conditions

of the doctrine of res judicata? Illustrate the
principle of constructive res judicata. Can an ex
parte decree act as constructive res judicata?

Res iudicata is the Latin term for "a matter already

judged", and refers to the legal doctrine meant to bar
continued litigation of cases that have already been
decided between the same parties. The doctrine of

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res judicata is based on three maxims

(a) Nemo debet lis vaxari pro eadem causa (no man
should be vexed twice for the same cause)
(b) Interest republicae ut sit finis litium ( it is in the
interest of the state that there should be an end to a
litigation); and
(c) Re judicata pro veritate occipitur (a judicial
decision must be accepted as correct)

The legal concept of RJ arose as a method of

preventing injustice to the parties of a case
supposedly finished as well as to avoid unnecessary
waste of resources in the court system. Res iudicata
does not merely prevent future judgments from
contradicting earlier ones, but also prevents litigants
from multiplying judgments, so a prevailing plaintiff
could not recover damages from the defendant twice
for the same injury.

Res Judicata is a rule of universal law pervading

every well regulated system of jurisprudence and is
based upon a practical necessity that there should be
an end to litigation and the hardship to the individual if
he is vexed twice for the same cause. Thus, this
doctrine is a fundamental concept based on public
policy and private interest. It is conceived in the
larger public interest, which requires that every
litigation must come to an end. It therefore, applies to
all kinds of suits such as civil suits, execution
proceedings, arbitration proceedings, taxation

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matters, writ petitions, administrative orders, interim
orders, and criminal proceedings.

Res Judicata under Code Of Civil Procedure, 1908

Section 11 of CPC embodies the doctrine of res

judicata or the rule of conclusiveness of a judgement,
as to the points decided either of fact, or of law, or of
fact and law, in every subsequent suit between the
same parties. It enacts that once a matter is finally
decided by a competent court, no party can be
permitted to reopen 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.

Section 11 says thus:

No Court shall try any suit or issue in which the matter
directly and substantially in issue has been directly
and substantially in issue in a former suit between the
same parties, or between parties under whom they or
any of them claim, litigating under the same title, in a
Court competent to try such subsequent suit or the
suit in which such issue has been subsequently
raised, and has been heard and finally decided by
such Court.

Explanation I: The expression "former suit" shall

denote a suit which has been decided prior to the suit
in question whether or not it was instituted prior

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thereto.

Explanation II. For the purposes of this section, the

competence of a Court shall be determined
irrespective of any provisions as to a right of appeal
from the decision of such Court.

Explanation III. The matter above referred to must in

the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by
the other.

Explanation IV. Any matter which might and ought to

have been made ground of defence or attack in such
former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Explanation V. Any relief claimed in the plaint, which

is not expressly granted by the decree, shall, for the
purposes of this section, be deemed to have been
refused.

Explanation VI. Where persons litigate bona fide in

respect of public right or of a private right claimed in
common for themselves and others, all persons
interested in such right shall, for the purposes of this
section, be deemed to claim under the persons so
litigating.

Explanation VII. The provisions of this section shall

apply to a proceeding for the execution of a decree

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and reference in this section to any suit, issue or
former suit shall be construed as references,
respectively, to proceedings for the execution of the
decree, question arising in such proceeding and a
former proceeding for the execution of that decree.

Explanation VIII. An issue heard and finally decided

by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in as
subsequent suit, notwithstanding that such Court of
limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has
been subsequently raised.

The doctrine has been explained by Justice Das

Gupta as follows - The
principle of Res Judicata is based on the need of
giving a finality to the judicial decisions. What it says
is that once a case is res judicata, it shall not be
adjudged again. Primarily it applies as between past
litigation and future litigation. When a matter- whether
on a question of fact or a question of law has been
decided between two parties in one suit or proceeding
and the decision is final, either because no appeal
was taken to a higher court or because the appeal
was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the
same parties to canvas the matter again.

Essential Elements for Res Judicata

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1. The matter in issue in a subsequent suit must
directly and substantially be same as in the previous
suit.
2. The former suit must have been between the same
parties or between parties under whom they or any of
them claim.
3. Such parties must hae been litigating under the
same title in the former suit.
4. The court which decided the former suit must be a
court competent to try the subsequent suit or the suit
in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the
subsequent suit must have been heard and finally
decided by the court in the former suit.

Give Illustrations
---

The onus of proof lies on the party relying on the

theory of res judicata.

Exceptions to application
Res iudicata does not restrict the appeals process,
which is considered a linear extension of the same
lawsuit as the suit travels up (and back down) the
appellate court ladder. Appeals are considered the
appropriate manner by which to challenge a judgment
rather than trying to start a new trial. Once the
appeals process is exhausted or waived, res iudicata

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will apply even to a judgment that is contrary to law.

The provisions of section 11 of the Code are

mandatory and the ordinary litigant who claims under
one of the parties to the former suit can only avoid its
provisions by taking advantage of section 44 of the
Indian Evidence Act which defines with precision the
grounds of such evidence as fraud or collusion. It is
not for the court to treat negligence or gross
negligence as fraud or collusion unless fraud or
collusion is the proper inference from facts.

In Beliram & Brothers and Others v. Chaudari

Mohammed Afzal and Others it was held that where it
is established that the minors suit was not brought by
the guardian of the minors bona fide but was brought
in collusion with the defendants and the suit was a
fictitious suit, a decree obtained therein is one
obtained by fraud and collusion within the meaning of
section 44 of the Indian Evidence Act, and does not
operate res judicata. The principle of res judicata in
section 11 CPC is modified by section 44 of the Indian
Evidence Act, and the principles will not apply if any
of the three grounds mentioned in Section 44 exists.

Failure to apply
When a subsequent court fails to apply res iudicata
and renders a contradictory verdict on the same claim
or issue, if a third court is faced with the same case, it
will likely apply a "last in time" rule, giving effect only

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to the later judgment, even though the result came out
differently the second time.

Constructive Res Judicata

The rule of direct res judicata is limited to a matter
actuallu in issue alleged by one party and denied by
other either expressly or impliedly. But constructive
res judicata means that if a plea could have been
taken by a party in a proceeding between him and his
opponent, and if he fails to take that plea, he cannot
be allowed to relitigate the same matter again upon
that plea. In affect, the partly impliedly gives up the
right to that plea by not pleading it in the previous suit.
This principle is embodied in Explanation IV of
Section 11.

Explanation IV. Any matter which might and ought to

have been made ground of defence or attack in such
former suit shall be deemed to have been a matter
directly and substantially in issue in such suit.

Give Illustrations -

In the case of Kesar Das Rajan Singh v. Parma

Nand Vishan Dass, AIR 1959, a peculiar situation
arose. In this case the plaintiff had filed a suit on the
basis of a promissory note. However, the plaintiff
himself left the country and in subsequent
proceedings since he was unable to provide the
promissory note to his advocate in the foreign country
the suit got dismissed. The plaintiff later on filed

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another suit in the local courts. The defendant took
the plea that the present suit was barred by res
judicata. The Court held that the judgment on the
previous suit since it did not touch upon the merits of
the case, therefore could not be held to be res
judicata for the present suit .

Ex parte decree as Res Judicata

An ex parte decree, unless it is set aside, is a valid
and enforceable decree. However, the real test for
res judicata is whether the case was decided on
merits. The real test for deciding whether the
judgment has been given on merits or not is to see
whether it was merely formally passed as a matter of
course, or by way of penalty for any conduct of the
defendant, or is based upon a consideration of the
truth or falsity of the plaintiff's claim, notwithstanding
the fact that the evidence was led by him in the
absence of the defendant. Thus, a decree may not act
as res judicata merely because it was passed ex
parte.

It therefore acts a res judicata.

Q. "Every suit shall be instituted in court of lowest

grade competent to try it", Explain. Explain the
provisions of CPC which are applied in
determining the forum for institution of a suite
relating to immovable property. State principles
which guide a plaintiff in determining the place of
filing a suit. Explain.

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In India, courts are hierarchically established. The
lower courts have less powers than the higher or
superior courts. The Supreme Court of India is at the
top of the hierarchy. There are numerous lower courts
but only one High Court per State and only one
Supreme Court in the Country. Thus, it is
immpractical to move superior courts for each and
every trivial matter. Further, the subject matter of a
suit can also be of several kinds. It may be related to
either movable or immovable property, or it may be
about marriage, or employment. Thus, speciality
Courts are set up to deal with the specific nature of
the suit to deal with it efficiently. Similarly, it would be
inconvenient for the parties to approach a court that is
too far or is in another state. All these factors are
considered to determine the court in which a
particular suit can be filed. CPC lays down the rules
that determine whether a court has jurisdiction to hear
a particular matter or not.

These rules can be categorized as follows -

Pecuniary Jurisdiction, Territorial Jurisdiction, Subject
matter jurisdiction, and Original Jurisdiction.

Pecuniary Jurisdiction
As per Section 15, every suit shall be instituted in the
Court of the lowest grade competent to try it. This is a
fundamental rule which means that if a remedy is
available at a lower court, the higher court must not
be approached. More specifically, this rule refers to

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the monetory value of the sute. Each court is deemed
competent to hear matters having a monetory value of
only certain extent. A matter that involves a monetory
value higher than what a court is competent to hear,
the parties must approach a higher court. At the same
time, the parties must approach the lowest grade
court which is competent to hear the suit.

However, this rule is a rule of procedure, which is

meant to avoid overburdoning of higher courts. It does
not take away the jurisdiction of higher courts to hear
matter of lesser monetory value. Thus, a decree
passed by a court, which is not the lowest grade court
compenent to try the matter, is not a nullity. A higher
court is always competent to try a matter for which a
lower court is compenent. This rule applies to the
parties as it bars the parties to approach a higher
court when a lower court is competent to hear the
matter.

Example

Valuation

Territorial Jurisdiction
Territorial Jurisdiction means the territory within a
Court has jurisdiction. For example, if a person A is
cheated in Indore, then it makes sense to try the
matter in Indore instead of Chennai. The object of this
jurisdiction to organize the cases to provide
convenient access to justice to the parties. To

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determine whether a court has territorial jurisdiction, a
matter may be categorized into four types -

1. Suits in respect of immovable property

Section 16 - Suits to be instituted where subject-

matter is situated — Subject to the pecuniary or other
limitations prescribed by any law, suits—
(a) for the recovery of immovable property with or
without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a
mortgage of or charge upon immovable property,
(d) for the determination of any other right to or
interest in immovable property,
(e) for compensation for wrong to immovable
property,
(f) for the recovery of movable property actually under
distraint or attachment,
shall be instituted in the Court within the local limits of
whose jurisdiction the property is situated:
Provided that a suit to obtain relief respecting, or
compensation for wrong to, immovable property held
by or on behalf of the defendant, may where the relief
sought can be entirely obtained through his personal
obedience be instituted either in the Court within the
local limits of whose jurisdiction the property is
situate, or in the Court within the local limits of whose
jurisdiction the defendant actually and voluntarily
resides, or carries on business, or personally works
for gain.

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Explanation.— In this section "property" means
property situated in India.

Section 17 - Suits for immovable property situated

within jurisdiction of different Courts— Where a suit is
to obtain relief respecting, or compensation for wrong
to, immovable property situate within the jurisdiction
of different Court, the suit my be instituted in any
Court within the local limits of whose jurisdiction any
portion of the property is situated : Provided that, in
respect of the value of the subject matter of the suit,
the entire claim is cognizable by such Court.

Section 18 - Place of institution of suit where local

limits of jurisdiction of Courts are uncertain—
(1) Where it is alleged to be uncertain within the local
limits of the jurisdiction of which of two or more Courts
any immovable property is situate, any one of those
Courts may, if satisfied that there is ground for the
alleged uncertainty, record a statement to that effect
and thereupon proceed to entertain and dispose of
any suit relating to that property, and its decree in the
suit shall have the same effect as if the property were
situate within the local limits of its jurisdiction :
Provided that the suit is one with respect to which the
Court is competent as regards the nature and value of
the suit to exercise jurisdiction.
(2) Where a statement has not been recorded under
sub-section (1), and objection is taken before an
Appellate or Revisional Court that a decree or order in
a suit relating to such property was made by a Court

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not having jurisdiction where the property is situate,
the Appellate or Revisional Court shall not allow the
objection unless in its opinion there was, at the time of
the institution of the suit, no reasonable ground for
uncertainty as to the Court having jurisdiction with
respect thereto and there has been a consequent
failure of justice.

2. Suits in respect of immovable property - It is

said that the movables move with the person. Thus, a
suit for a movable person lies in the court, the territory
of which the defendant resides.

Section 19 - Suits for compensation for wrongs to

person or movable— Where a suit is for
compensation for wrong done to the person or to
movable property, if the wrong was done within the
local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or
personally works for gain, within the local limits of the
jurisdiction of another Court, the suit may be instituted
at the option of the plaintiff in either of the said Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may
sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta
statements defamatory of B. B may sue A either in
Calcutta or in Delhi.

3. Suits for compensation for wrong (tort)

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- Section 19 applies to this as well.

4. Other suits

Section 20 - Other suits to be instituted where

defendants reside or cause of action arises— Subject
to the limitations aforesaid, every suit shall be
instituted in Court within the local limits of whose
jurisdiction—
(a) the defendant, or each of the defendants where
there are more than one, at the time of the
commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works
for gain; or
(b) any of the defendants, where there are more than
one, at the time of the commencement of the suit
actually and voluntarily resides, or carries on
business, or personally works for gain, provided that
in such case either the leave of the Court is given, or
the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid,
acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

Explanation—A corporation shall be deemed to carry

on business at its sole or principal office in India or, in
respect of any cause of action arising at any place
where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on
business in Delhi. B, by his agent in Calcutta, buys

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goods of A and requests A to deliver them to the East
Indian Railway Company. A delivers the goods
accordingly in Calcutta. A may sue B for the price of
the goods either in Calcutta, where the cause of
action has arisen or in Delhi, where B carries on
business.
(b) A resides at Simla, B at Calcutta and C at Delhi A,
B and C being together at Benaras, B and C make a
joint promissory note payable on demand, and deliver
it to A. A may sue B and C at Benaras, where the
cause of action arose. He may also sue them at
Calcutta, where B resides, or at Delhi, where C
resides; but in each of these cases, if the non-resident
defendant objects, the suit cannot proceed without the
leave of the Court.

Objection as to Jurisdiction
Section 21 - Objections to jurisdiction— (1) No
objection as to the place of suing shall be allowed by
any appellate or Revisional Court unless such
objection was taken in the Court of first instance at
the earliest possible opportunity and in all cases
where issues or settled at or before such settlement,
and unless there has been a consequent failure of
justice.
(2) No objection as to the competence of a Court with
reference to the pecuniary limits of its jurisdiction shall
be allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of first
instance at the earliest possible opportunity, and in all

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cases where issues are settled, at or before such
settlement, and unless there has been a consequent
failure of justice.
(3) No objection as to the competence of the
executing Court with reference to the local limits of its
jurisdiction shall be allowed by any Appellate or
Revisional Court unless such objection was taken in
the executing Court at the earliest possible
opportunity, and unless there has been a consequent
failure of justice.

As held in Pathumma vs Kutty 1981, no objection as

to the place of suing will be allowed by an appellate or
revisional court unless the following three conditions
are satisfied -
(i) The objection was taken in first instance. (ii) The
objection was taken at the earliest possible
opportunity and in cases where issues are settled at
or before settlement of issues (iii) there has been a
consequent failure of justice.

All the three conditions must be satisfied

simultaneously.

Q. Special Suits - State the procedure for

institution of suits by and against minors or
persons of unsound mind.

Order XXXII

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As per Rule 1, the definition of minor given in Majority
Act, 1875 applies - a person who has not attained the
age of 18 yrs or for a minor for whose person or
property a guardian or next friend has been appointed
by the court or court of wards, the age of majority is
21 yrs.

Read all Rules in Order 32.

Ram Chandra vs Ram Singh AIR 1968 - SC held

that a decree passed against a minor or a lunatic
without appointment of a guardian is a nullity and is
void and not merely voidable.

Q. Suits by and against the Govt.

Read Order 27 and Section 79-82.

Q. Interpleader Suit -

Section 88 and Order 35

Section 88 - Where interpleader suit may be

reinstituted? Where two or more persons claim
adversely to one another the same debts, sum of
money or other property, movable or immovable, 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

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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 suit is pending in which the
rights of all parties can properly be decided, no such
suit of interpleader shall be instituted.

Procedure - Read Order 35 Rule 1 – 4

Q. What do you understand by Set Off and

Counter Claim? Distinguish between Legal and
Equitable set off.

A set-off is a kind of counter-claim that operates as a

defence to a claim. The doctrine of Set Off allows the
defendant to put his own claim against the plaintiff
before the court under certain
circumstances.Technically, a set off can be defined as
a discharge of reciprocal objligations to the extent of
the smaller obligation. For example, A files a suit
against B claiming 5000/- . B may take a defence that
A owes 3000/- to B as well. Thus, B is basically
asking to set off 3000/- of A's claim and pay only
2000/-.

In Jayanti Lal vs Abdul Aziz AIR 1956, SC defined

Set Off a the extinction of debts of which two persons
are reciprocally debtors to one another by the credits
of which they are reciprocally creditors to one
another.

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By claiming set off, the defendant is spared from filing
a separate suit against the plaintiff. Thus, it reduces
the number of suits before the court.

Provisions of Set off are specified in CPC

under Order VIII Rule 6

6. Particulars of set-off to be given in written

statement -
(1) Where in a suit for the recovery of money the
defendant claims to set-off against the plaintiff's
demand 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, presents a written statement
containing the particulars of the debt sought to be set-
off.
(2) 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 the original claim and of the set-off :
but this shall not affect the lien, upon the amount
decreed, of any pleader in respect of the costs
payable to him under the decree.
(3) The rules relating to a written statement by a
defendant apply to a written statement in answer to a
claim of set-off.

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Illustrations
(a) A bequeaths Rs. 2,000 to B and appoints C his
executor and residuary legatee. B dies and D takes
out administration to B's effect, C pays Rs. 1,000 as
surety for D: then D sues C for the legacy. C cannot
set-off the debt of Rs. 1,000 against the legacy, for
neither C nor D fills the same character with respect
to the legacy as they fill with respect to the payment
of Rs. 1,000.
(b) 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 A.
(c) A sues B on a bill of exchange. B alleges that A
has wrongfully neglected to insure B's goods and is
liable to him in compensation which he claims to set-
off. The amount not being ascertained cannot be set-
off.
(d) A sues B on a bill of exchange for Rs. 500. B
holds a judgment against A for Rs. 1,000. The two
claims being both definite, pecuniary demands may
be set-off.
(e) A sues B for compensation on account of
trespass. B holds a promissory note for Rs. 1,000
from A and claims to set-off that amount against any
sum that A may recover in the suit. B may do so, for
as soon as A recovers, both sums are definite

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pecuniary demands.
(f) A and B sue C for Rs. 1,000 C cannot set-off a
debt due to him by A alone.
(g) A sues B and C for Rs. 1000. B cannot set-off a
debt due to him alone by A.
(h) A owes the partnership firm of B and C Rs. 1,000
B dies, leaving C surviving. A sues C for a debt of Rs.
1,500 due in his separate character. C may set-off the
debt of Rs. 1,000.

Essential Conditions for Set Off -

The suit must be of recovery of money. Example - A
sues B for 20,000/-. B cannot set off the claim for
damages for breach of contract for specific
performance.
The sum of money must be ascertained. See
Illustration c, d, e.
The sum claimed must be legally recoverable. For
example, winnings in a wager cannot be claimed in a
set off.
The sum claimed must be recoverable by all the
defendants against the plaintiff if there are more than
one defendants.
The sum claimed must be recoverable from all the
plaintiffs by the defendant if there are more than one
plaintiffs.
In the defendant's claim for set off, both the parties
must fill in the same character as they fill in the
plaintiff's suit. See illustrations a, b, h.

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Equitable Set off
The provisions of Rule 6 given above are for Legal
Set off. However, these provisions are not
exhaustive. This means that a set off is still possible
in certain situations even when some of the above
conditions are not satisfied. For example, in a
transaction where by goods are exchanged for
services as well as payment, the defendant may be
allowed to claim a set off for an uncertain amount for
damaged goods. In a suit by a washerman for his
wages, the defendant employer should be able to set
off the price of the clothes lost by the plaintiff. In such
a case, driving the plaintiff to file another suit would
be unfair. A set off in such situations is called
an Equitable Set off.

SC illustrated equitable set off in the case

of Harishchandra vs Murlidhar AIR 1957as follows -
Where A sues B to recover 50,000/- under a contract,
B can claim set off towards damages sustained by
him due to the breach of the same contract by A.

However, there is still one condition that must be

satisfied for equitable set off - the set off claim must
originate from the same transaction.
Legal Set Off Equitable Set Off
Sum must be Sum need not be
ascertained. ascertained.
Claim need not
Claim must origination from
originate from the
the same transaction.

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same transaction.
Legal set off can be
claimed as a right by
Equitable set off cannot be
the defendant and the
claimed as a right but by
court is bound to
court's discretion.
adjudicate upon the
claim.
Court fee must be paid
No court fee is required.
on set off amount.
The amount may be time
barred. However, if the
The amount must not defendant's claim is time
be time barred. barred, he can claim only as
much amount as is given in
the plaintiff's claim.
6A. Counter-claim by defendant -
(1) A defendant in a suit may, in addition to his right of
pleading a set-off under rule 6, set up, 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 limited for
delivering his defence has expired whether such
counter-claim is in the nature of a claim for damages

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or not :
Provided that such counter-claim shall not exceed the
pecuniary limits of the jurisdiction of the Court.
(2) Such counter-claim 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 counter-claim.
(3) The plaintiff shall be at liberty to file a written
statement in answer to the counter-claim of the
defendant within such period as may be fixed by the
Court.
(4) The counter-claim shall be treated as a plaint and
governed by the rules applicable to plaints.

6B. Counter-claim to be stated - Where any

defendant seeks to rely upon any ground as
supporting a right of counter-claim, he shall, in his
written statement, state specifically that he does so by
way of counter-claim.

6C. Exclusion of counter-claim - Where a

defendant sets up a counter-claim and the plaintiff
contends that the claim thereby raised ought not to be
disposed of by way of counter-claim but in an
independent suit, the plaintiff may, at any time before
issues are settled in relation to the counter-claim,
apply to the Court for an order that such counter-claim
may be excluded, and the Court may, on the hearing
of such application make such order as it thinks fit.

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Q. On what grounds does a second appeal lie?

Section 100. Second appeal—

(1) Save as otherwise expressly provided in the body

of this Code or by any other law for the time being in
force, an appeal shall lie to the High Court from every
decree passed in appeal by any Court subordinate to
the High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum
of appeal shall precisely state the substantial question
of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial
question of law is involved in any case, it shall
formulate that question.
(5) The appeal shall be heard on the question so
formulated and the respondent shall, at the hearing of
the appeal, be allowed to argue that the case does
not involve such question :
Provided that nothing in this sub-section shall be
deemed to take away or abridge the power of the
Court to hear, for reasons to be recorded, the appeal
on any other substantial question of law, not
formulated by it, if it is satisfied that the case involves
such question.

Section 100A - No further appeal in certain cases—

Notwithstanding anything contained in any Letters

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Patent for any High Court or in any other instrument
having the force of law or in any other law for the time
being in force, where any appeal from an appellate
decree or order is heard and decided by a single
Judge of a High Court, no further appeal shall lie from
the judgment, decision or order or such single Judge
in such appeal or from any decree passed in such
appeal.

Section 101 - Second appeal on no other grounds—

No second appeal shall lie except on the ground
mentioned in section 100.

Section 102 - No second appeal in certain suits— No

second appeal shall lie in any suit of the nature
cognizable by Courts of Small Causes, when the
amount or value of the subject-matter of the original
suit does not exceed three thousand rupees.
Section 103 - Power of High Court to determine
issues of fact— In any second appeal, the High Court
may, if the evidence on the record is sufficient,
determine any issue necessary for the disposal of the
appeal,—
(a) which has not been determined by the lower
Appellate Court or both by the Court of first instance
and the lower Appellate Court, or
(b) which has been wrongly determined by such Court
or Courts reason of a decision on such question of
law as is referred to in section 100.

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Substantial question of law -
The expression substantial question of law has not
been defined anywhere in the code. However, SC
interpreted it in the case of Sir Chuni Lal Mehta &
Sons Ltd vs Century Spg & Mfg Co Ltd (AIR 1962
SC 1314) as follows -

"The proper test for determining whether a question

of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance
or whether it directly and substantially affects the
rights of the parties and if so whether it is either an
open question in the sense that it is not finally settled
by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or call for discussion
of alternative views. If the question is settled by the
highest court or the general principles to be applied in
determining the question are well settled and there is
a mere question of applying those principles or that
the plea raised is palpably absurd the question would
not be a substantial question of law."

To be "substantial" a question of law must be

debatable, not previously settled by law of the land or
a binding precedent, and must have a material
bearing on the decision of the case, if answered either
way, insofar as the rights of the parties before it are
concerned. To be a question of law "involving in the
case" there must be first a foundation for it laid in the
pleadings and the question should emerge from the

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sustainable findings of fact arrived at by court of facts
and it must be necessary to decide that question of
law for a just and proper decision of the case. An
entirely new point raised for the first time before the
High Court is not a question involved in the case
unless it goes to the root of the matter. It will,
therefore, depend on the
facts and circumstance of each case whether a
question of law his a substantial one and involved in
the case or not, the paramount overall consideration
being the need for striking a judicious balance
between the indispensable obligation to do justice at
all stages and impelling necessity of avoiding
prolongation in the life of any lis.
Posted by CS Futurz at 6:55 AM
Labels: General Comm Laws