1: What is the scope and object of doctrine of res judicata ?

Discuss the conditions

necessary for its application in legal proceedings.

Ans. Section 11 of Civil Procedure Code embodies the doctrine of res judicata which
is based on the need of giving finality to judicial decisions. It is a Rule of
conclusiveness of judgment as to the points decided either of facts or of law or fact
and law, in every subsequent suit between the same parties. It simply enacts that once
a matter is finally decided by a competent court, no party can be permitted to reopen it
in subsequent litigation. The doctrine of res judicata is based on three maxims:-
(1) nemo debt lis vexari pro uno et eaden causa : No man should be vexed twice for
same cause.
(2) intrest republica ut sit finis litium : It is in the interest of the state that there
should be an end to a litigation.
(3) Res Judicata pro veritate occipiture : a judicial decision must be accepted as
correct.
Section 11 C.P.C. provide as under :-
"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".
In Daryao v. State of U.P., AIR 1961 SC 1457 Supreme Court observed :- The
binding character of judgment pronounced by court of competent jurisdiction is itself
an essential part of rule of law and rule of law obviously is the basis of administration
of justice on which the Constitution lays so much emphasis."
In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 it was held that "It is not
every matter decided in a former suit that will operate as `res judicata' in a subsequent
suit. To constitute a matter res judicata under section 11 the following conditions
must be satisfied :-
(a) The matter directly and substantially in issue in the subsequent suit or issue must
be the same matter which was directly and substantially in issue either actually or
constructively in the former suit.
(b) The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the former suit.
(d) 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 (Explanations II
and VII are to be read with this condition).
(d) The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in former suit.

2: What are the provisions of Code of Civil Procedure relating to Cost ?

Ans. Question of imposing costs in Civil proceeding is entirely on the discretion of

the court. Rules as to costs is subject to provisions of Code of Civil Procedure.
KINDS OF COSTS The Code of Civil Procedure provides for four kinds of costs:
(1) General costs - Section 35 ;
(2) Miscellaneous costs - Order 20-A ;
(3) Compensatory costs for false or vexatious claims or defences - Section 35-A ; and
(4) Costs for causing delay - Section 35-B.
(1) General costs : Section 35
(a) Object. - Section 35 deals with general costs. The object in awarding costs to a
litigant is to secure to him the expenses incurred by him in the litigation. It neither
enables the successful party to make any profit out of it nor punishes the opposite
party.
(b) Principles. - The primary rules in respect of award of general costs are as under :
(i) Costs are in the discretion of the court. The said discretion, however, must be
exercised on sound legal principles.
(ii) Normally, costs should follow the event and the successful party is entitled to
costs unless there are good grounds for depriving him of that right. Even a successful
party may be deprived of the costs if he is guilty of misconduct or there are other
reasons to do so. Sub-section (2) of Section 34, however, expressly provides that
when the court orders that costs should not follow the event, it must record reasons for
doing so.
(2) Miscellaneous costs : Order 20-A
Order 20-A makes specific provision with regard to the power of the court to award
costs in respect of certain expenses incurred in giving notices, typing charges,
inspection of records, producing witnesses and obtaining copies.
(3) Compensatory costs : Section 35-A
(a) Object. - Section 35-A provides for compensatory costs. This section is an
exception to the general rule on which Section 35 is based; viz. that the "costs are only
an indemnity, and never more than indemnity". This section is intended to deal with
those cases in which Section 35 does not afford sufficient compensation in the opinion
of the court. Under this provision, if the court is satisfied that the litigation was
inspired by vexatious motive and altogether groundless, it can take deterrent action.
This section applies only to suits and not to appeals or to revisions.
(b) Conditions. - The following conditions must exist before this section can be
applied :
(1) the claim or defence must be false or vexatious ;
(2) objections must have been taken by the other party that the claim or defence was
false or vexatious to the knowledge of the party raising it ; and
(3) such claim must have been disallowed or withdrawn or abandoned in whole or in
part.
The maximum amount that can be awarded by the court is Rs 3000.
(4) Costs of causing delay : Section 35-B
Section 35-B is added by the Amendment Act of 1976. It is inserted to put check upon
the delaying tactics of the litigating parties. It empowers the court to impose
compensatory costs on the parties who are responsible for causing delay at any stage
of the litigation. Such costs would be irrespective of the ultimate outcome of the
litigation. The payment of costs has been a condition precedent for further prosecution
of the suit, if the party concerned is a plaintiff and the defence, if he is a defendant.
The provisions of this section are mandatory in nature and, therefore, the court should
not allow prosecution of suit or defence, as the case may be, in the event of party
failing to pay costs as directed by the court. If however the party is unable to pay costs
due to unavoidable circumstances such as strike of advocates or staff, etc., court can
extend the time.
3 What do you understand by the term "Jurisdiction of a Court"?

Ans. Term jurisdiction may be defined to be the power or authority of a court to hear

and determine a cause, to adjudicate and exercise any judicial power in relation to it.
So jurisdiction is meant the authority which a court has, to decide matters that are
litigated before it or the take cognizance of matters presented in a formal way for its
decision.
There is always a distinction between want of jurisdiction and irregular exercise of it.
The defect of jurisdiction goes to root of the matters. Such a basic and fundamental
defect cannot be cured by consent of parties. In short, a decree passed by a court
without jurisdiction is a "Coram non judice". In Kiran Singh v. Chaman Paswan,
AIR 1951 SC 340 it was observed -
"It is a fundamental principle well established that a decree passed by a court without
jurisdiction is a nullity and that its invalidity could be set up whenever and wherever it
is sought to be enforced or relied upon, even at the stage of execution and even in
collateral proceedings. A defect of jurisdiction...strikes at the very authority of the
court to pass any decree, and such a defect cannot be cured even by consent of
parties."
Kinds of Jurisdiction; Jurisdiction of a court may be classified into the following
categories :-
(i) Territorial or local jurisdiction - Every court has its own local or territorial limits
beyond which it cannot exercise its jurisdiction. These limits are fixed by the
Government. The District Judge has to exercise jurisdiction within his district and not
outside it. The High Court has jurisdiction over the territory of the State within which
it is situate and not beyond it. Again, a court has no jurisdiction to try a suit for
immovable property situated beyond its local limits.
(ii) Pecuniary jurisdiction - Section 6 of Code provides that a court will have
jurisdiction only over those suits, the amount or value of the subject-matter of which
does not exceed the pecuniary limits of its jurisdiction. Some courts have unlimited
pecuniary jurisdiction, e.g. High Courts and District Courts have no pecuniary
limitations. But there are other courts having jurisdiction to try suits up to a particular
amount of subject matter.
(iii) Jurisdiction over the subject-matter - Different types of courts have been
allotted different type of work by different statutes. For example, a small cause court
can try only certain suits, such as money suit, based on an oral loan or a bond or
promissory note, a suit for price of work done, a suit for recovery of price of goods
supplied, but it has no jurisdiction to try the suits for specific performance of
contracts, for injunction, for a dissolution of partnership, or suit for partition of
immovable property. Similarly, only District Judge has the jurisdiction in respect of
testamentary matters, such as granting probate or letter of administration, and divorce
cases.
(iv) Original or Appellate Jurisdiction - The jurisdiction of a Court may be original
or appellate. For example, the jurisdiction of the court of munsif and small cause court
is only original, while the court of Civil Judge, District Judge, and High Court also
exercise appellate jurisdiction. In the exercise of its original jurisdiction, a court
entertains original suits, while in the exercise of its appellate jurisdiction it entertains
appeals.

4  What are the provisions relating to transfer of a civil suit ?

 Ans. Sections 22 to 25 of the Code of Civil Procedure lay down the provisions
relating to transfer of a suit. Section 22 of the Code of Civil Procedure provides that
where a suit may be instituted in any one of two or more courts and is instituted in one
of such courts, any defendant after notices to the other parties, may at the earliest
possible opportunity and in all cases where issues are settled, at or before such
settlement, apply to have the suit transferred to another court, and the court to which
such application is made, after considering the objections of the other parties, if any,
shall determine in which of the several courts having jurisdiction the suit shall
proceed.
Section 23 of the Code of Civil Procedure further lays down in which court such
application lies. According to it, the position is as follows :-
(i) Where the several courts having jurisdiction are subordinate to the same appellate
court, an application under section 22 shall be made to the appellate court.
(ii) Where such courts are subordinate to different appellate courts, but to the same
High Court, the application shall be made to the said High Court.
(iii) Where such courts are subordinate to different High Courts, the application shall
be made to the High Court within the local limits of whose jurisdiction the court in
which the suit is brought is situate.
Apart from the said provisions relating to transfer, section 24 of the Code of civil
Procedure deals with the general powers of transfer and withdrawal. It provides that
on the application of any of the parties and after notice to the parties and after hearing
such of them as desires to be heard, or of its own motion without such notice, the
High Court or the District Court may at any stage withdraw any suit, appeal or other
proceedings before it for trial or disposal to any court subordinate to it and competent
to try or dispose of the same, or, withdraw any suit, appeal or other proceeding
pending in any court subordinate to it. In case of withdrawal, it can try or dispose of
the same, or transfer the same for trial or disposal to any court subordinate to and
competent to try or dispose of the same or retransfer the same for trial or disposal to
the court from which it was withdrawn.
By adding sub-section (3) to section 24 of the Code of Civil Procedure, by the
Amendment Act of 1976, it has further been clarified that courts of Additional and
Assistant Judges shall be deemed to be subordinate to the District Judge Court and
`proceeding' includes a proceeding for the execution of a decree or order. It has
further been provided by sub-section (5), which too has been added by the
Amendment Act of 1976, that a suit proceeding may be transferred under this section
from a Court which has no jurisdiction to try it.
Section 25 of Code provide regarding power of Supreme Court to transfer suits etc.
Section 25(1) says that on application of a party and after notice to the parties and
after hearing such of them as desire to be heard, the Supreme Court, may at any stage,
if satisfied that an order under this Section, is expedient for the ends of justice, direct
that any suit, appeal or other proceeding be transferred from a High Court or other
Civil Court in one State to a High Court or other Civil court in any other State.

5 Explain the doctrine of "Sufficient Cause".

Ans. Section 5 of Indian Limitation Act provides: "Any appeal or any application
other than an application under any of the provisions of Order XXI of Code of Civil
Procedure 1908, may be admitted after the prescribed period if the appellant or the
applicant satisfies the court that he had Sufficient Cause for not preferring the appeal
or making the application within such period."
So any appeal or application (other than one made under Order XXI of C.P.C.) may
be admitted after prescribed period if appellant or applicant as the case may be shows
"Sufficient Cause" for not preferring appeal or making application within the
prescribed period. But mere proof of existence of "sufficient cause" for not filing the
proceeding within the prescribed period does not, under the section, ipso facto compel
the court to extend the time. The court has a discretion to admit or refuse the
proceeding even if sufficient cause is shown. In Sandhya Rani v. Sudha Rani AIR
1978 SC 537 Supreme Court observed:
"It is undoubtedly true that in dealing with the question of condoning the delay
under Section 5, the party seeking relief has to satisfy the Court that he had sufficient
cause for not preferring the appeal or making the application within the prescribed
time and this has always been understood to mean that the Explanation has to cover
the whole period of delay. However, it is not possible to lay down precisely as to what
facts or matters would constitute `sufficient cause' under Section 5. But those words
should be liberally construed so as to advance substantial justice when no negligence
or any inaction or want of bona fides is imputable to a party, i.e., the delay in filing an
application should not have been for reasons which indicate the party's negligence in
not taking necessary steps which he would have or should have taken. What would be
such necessary steps will again depend upon the circumstances of a particular case.
Discretion is conferred on the Court before which an application for condoning delay
is made and if the Court after keeping in view relevant principles exercises its
discretion granting relief unless it is shown to be manifestly unjust or perverse, the
Supreme Court would be loathe to interfere with it."
Explanation to Section 5 says that "the fact that the appellant or the applicant was
misled by any order, practice or judgement of the High Court in ascertaining or
computing the prescribed period may be "sufficient cause" within the meaning of this
Section ". The following are some examples of what is and what is not "Sufficient
Cause":
(1) Illness : Illness is considered as `sufficient cause' to get benefit of Section 5, but
mere plea of illness is not sufficient cause for not filing proceeding in time unless it is
shown that the appellant or applicant was utterly disabled to attend to any duty.
(2) Imprisonment : A person can be given the benefit of Section 5 if he is
undergoing imprisonment due to some criminal act. The time spent by him in the jail
may be deducted from the prescribed period of time.
(3) Mistaken Legal Advice : A mistaken advice given by a legal practitioner may in
circumstances of particular case give rise to `Sufficient Cause' within the
meaning Section 5. In State of W.B. v. The Administrator, Howrah Municipality,
AIR 1972 SC 749 It was held that if a party had acted in a particular manner on a
wrong advice given by his legal advisor, he cannot be held guilty for negligence so as
to disentitle the party to plead sufficient cause under Section 5 provided that no
negligence, nor inaction nor want of bonafides is imputable to a party.
(4) Illiteracy : The fact that appellant was illiterate is not sufficient reason to condone
the delay.
(5) Delay in obtaining copies : When a delay is caused:
(a) obtaining a copy of the order or decree of a court and such delay was caused by the
officer of the court.
(b) by the court itself in issuing orders.
(c) due to the method wrongly adopted in procuring the copy of the decree or order of
the court.
 Such delay shall be deemed as sufficient cause for granting benefit of Section 5 of
this Act.
In Collector of Land Acquisition v. Mst. Katiji AIR 1987 SC 1353 Supreme Court
laid down following principles for dealing the application under Section 5:
(i) Ordinarily a litigant does not stand to benefit by lodging an appeal late.
(ii) Refusing to condone delay can result in a meritorious matter being thrown out at
the very threshold and cause of justice being defeated. As against this when delay is
condoned the highest that can happen is that a cause would be decided on merits after
hearing the parties.
(iii) "Every day's delay must be explained" does not mean that a pedantic approach
should be made. Why not every hour's delay, every second's delay ? The doctrine
must be applied in a rational common sense pragmatic manner.
(iv) When substantial justice and technical considerations are pitted against each
other, cause of substantial justice deserves to be preferred for the other side cannot
claim to have vested right in injustice being done of a non-deliberate delay.
(v) There is no presumption that delay is occasioned deliberately, or on account of
culpable negligence; or on account of mala fides. A litigant does not stand to benefit
by resorting to delay.
(vi) It must be grasped that judiciary is respected not on account of its power to
legalize injustice on technical grounds but because it is capable of removing injustice
and it is expected to do so.
It was pointed out that the Courts should adopt liberal approach in the matter of
condonation of delay keeping in view the above principles.

6 Can Revision be filed against an Order of court disallowing an important

question put to a witness ?

Ans. Section 115 of the Code of Civil Procedure deals with the revisional jurisdiction
of the High Court. It provides that the High Court may call for the record of any case
which has been decided by any court subordinate to such court and in which no appeal
lies thereto, and if such subordinate court appears: (a) to have exercised jurisdiction
not vested in it by law, or (b) to have failed to exercise a jurisdiction so vested, or (c)
to have acted in the exercise of its jurisdiction illegally or with material irregularity,
the High Court may make such order in the case as it thinks fit. Provided that the High
Court shall not, under this Section , vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other proceeding except where:
(a) the order, if it had been made in favour of the party applying for revision, would
have finally disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made.
Sub-section (2) of Section 115 C.P.C. further lays down that the High Court shall not
under this Section, vary or reverse any decree or order against which an appeal lies
either to the High Court or to any court subordinate thereto.
Explanation - In this Section, the expression "any case which has been decided"
includes any order made, or any order deciding an issue, in the course of a suit or
other proceeding.
Civil Procedure Code (Amendment) Act, 1999has substituted the proviso to sub-
section (1) of Section 115 of Code by following words :-
"Provided that High court shall not, under this section vary or reverse any order made
 or any order deciding an issue, in course of a suit or other proceedings except where
the order, if it had been made in favour of party applying for revision, would have
finally disposed of the suit or other proceedings."
Amendment Act, 1999 has also inserted sub-section (3) to Section 115 of Civil
Procedure Code, which provides as under:-
"A revision shall not operate as a stay of suit or other proceeding before the court,
except where such suit or other proceeding is stayed by the High Court.
Supreme Court in Baldev Das v. Filmistan Distributors, AIR 1970 SC 406 has held
that case may be said to have been decided if the court adjudicates for the purpose of
the suit some right or obligation of parties in controversy.
Explanation added to Section 115 of Code vide Amendment Act 1976 makes it clear
that expression "Case decided" includes any order made or any order deciding an
issue, in the course of a suit or other proceeding.
In view of above discussion it is clear that order allowing or disallowing a question to
a witness is not case decided. Therefore such an order can not be challenged in
Revision.
In Prem Bakshi and other v. Dharam Dev, AIR 2002 SC 559 application for
amendment of plaint was filled to bring to notice of court the subsequent facts
application allowed by Trial Court. High Court set aside that order in revision. When
matter went in Supreme Court, while relying upon judgment of Maj. S.S. Khanna's
case AIR 1964 SC 497, it was observed -
"The proviso to sub-section (1) of Section 115 puts a restriction on power of High
Court in as much as it shall not under section 115 C.P.C. vary or reverse any order
made or any order deciding a issue, in course of a suit or other proceedings except
where (i) the order made would have finally disposed of the suit or other proceedings
or (ii) said order would occasion failure of justice or cause irreparable injury to party,
against whom it is made... Order in question by which the amendment was allowed
could not be said to have finally disposed of the case.... It is almost inconceivable how
mere amendment of pleadings could possibly cause failure of justice or irreparable
injury to any party. Thus order of High Court was held to be outside the purview of
revisional jurisdiction.

7 Distinguish between Appeal Review and Reference and Revision

Ans. (i) Revision and Appeal - There are following main distinctions between
revision and appeal:
(a) An appeal lies to a superior court from every original decree unless expressly
barred, while a revision lies only in the cases mentioned in Section 115 C.P.C., and to
the High Court only.
(b) The revisional jurisdiction can also be exercised suo moto, while appellate
jurisdiction cannot be exercised suo moto.
(c) The exercise of the revisional power is entirely discretionary and ordinarily High
Court does take a technical view so as to interfere in every case while right of appeal
is a substantive right given by statute, and every appeal is to be decided according to
law.
(d) The High Court or the revisional court cannot, in exercise of its revisional powers,
set aside the findings of facts of subordinate courts but a court of appeal can do so.
(d) An appeal abates if the legal representative of the deceased are not brought on
record within the time allowed by law while a revision may not abate and the High
Court has a right to bring the proper parties before the court at any time.
(ii) Revision and Review ; There are the following distinctions between revision and
review:
(a) The power of revision is exercised by the High Court and in some cases, by the
District Court, i.e., the superior court, while the power of review is exercised by the
court which passed the decree or order.
(b) The power of revision is conferred on the High Court only and in some cases in
some States, on the District Court also, but review can be made by any court which
passed the judgment or order.
(c) Revisional powers can be exercised only in cases in which no appeal lies, but
review can be made even when appeal lies to the Supreme Court.
(d) The grounds on which the powers of revision and review can be exercised are
different. The ground for revision relates to jurisdiction, i.e., want of jurisdiction,
failure to exercise jurisdiction vested in the court, or illegal or irregular exercise of the
jurisdiction, while the grounds for review are the discovery of new and important
matter of evidence, some apparent mistake or error on the face of the record or any
other sufficient reason.
(d) No appeal lies from an order passed in the exercise of revisional jurisdiction while
the order following the review application is appealable.
(iii) Reference and Revision ; There are the following distinctions between reference
and revision:
(a) In reference, the case is referred to the High Court by a court subordinate to it as
provided in Section 113 of the Code of Civil Procedure, while the revision application
is moved by the party concerned or the revisional court can suomoto send for the case
and examine the record.
(b) The ground of reference, the entertainment of some reasonable doubt by the court
trying the suit, appeal or executing the decree in respect of a question of law or usage
having the force of law, while the ground for revision relates to jurisdiction, i.e., want
of jurisdiction, failure to exercise jurisdiction vested in the court or its irregular
exercise.
(iv) Reference and Review ; There are the following distinctions in reference and
review:-
(a) In reference, the subordinate court refers the case to the High Court under Section
113 of the Code of Civil Procedure, while in review an application is made by the
aggrieved party in the court which passed the order of judgement.
(b) The High Court only can decide matters on reference while the power of review is
to be exercised by the court which passed the decree or order, as the case may be.
(c) Reference is made during the pendency of the suit, appeal or execution
proceedings, while application for review is made to the court after a decree or order
is passed.
(v) Reference and Appeal
(a) A right of appeal is a substantive right conferred by law while the power of
reference is vested in the court.
(b) Reference is always made to the High Court, while the appeal is preferred to a
superior court which need not necessarily be a High Court.
(c) The grounds of appeal are wider than the grounds of reference.
(d) Reference is made in a pending suit, appeal or execution proceedings in order to
 enable a court to arrive at a correct conclusion, while an appeal is preferred after a
decree or appealable order is passed by the court.
(vi) Review and Appeal ; There are the following main distinctions between review
and appeal:
(a) An application for review lies to the same court while an appeal lies to a superior
court.
(b) The grounds of review are different from the grounds of appeal. The grounds of
appeal are wider than the grounds of review.
(c) There is no second review provided in the Code of Civil Procedure, while there are
provisions for second appeal in certain cases.

8 Distinguish between Decree and Order.

Ans. DECREE [Section 2(2)] Decree means formal expression of an adjudication

which so far as regards the court expressing it, conclusively determines the rights of
parties with regard to all or any of the matter in controversy in suit and may be either
preliminary or final. It shall be deemed to include the rejection of plaint and
determination of any question within the Section 144 but shall not include :-
(a) any adjudication from which an appeal lies as an appeal from an Order.
(b) an order of dismissal for default
Explanation : Decree is preliminary when further proceeding have to be taken before
the suit can be completely disposed of. It is final when such adjudication completely
disposes of the suit. It may be partly preliminary and partly
ESSENTIAL ELEMENTS
(i) There must be adjudication.
(ii) Such adjudication must have been given in a suit.
(iii) It must have determined the rights of parties with regard to all or any of the
matters in controversy in suit.
(iv) Such determination must be of conclusive nature.
(v) There must be a formal expression of such adjudication.
CLASSES OF DECREE
Primarily there are two kinds of Decree :
(i) Preliminary Decree
(ii) Final Decree
PRELIMINARY DECREE :
Where an adjudication decides the rights of the parties with regard to all or any of
matter in controversy in suit but does not completely dispose of the suit. It is a
preliminary decree. Explanation added to Section 2(2) also says "Decree is
preliminary when further proceedings have to be take before the suit can be
completely disposed of". CPC provides for passing preliminary decree in following
cases:
(1) Suit for possession and mesne profit (O. 20 R. 12)
(2) Administration Suit (O. 20 R. 13)
(3) Suit for Pre-emption (O. 20 R. 14)
(4) Suit for Dissolution of Partnership Firm (O. 20 R. 15)
(5) Suit for Accounts between Principal and Agent (O. 20 R. 16)
(6) Suit for Partition and Separate Possession (O. 20 R.18)
 (7) Suit for foreclosure of Mortgage (O. 34 R. 2-3)
(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)
(9) Suit for Redemption of Mortgage (O. 34 R. 7-8)
Question whether decision amounts to preliminary decree or not is a great significance
in view of Section 97 CPC which provides:-
"Where any party aggrieved by Preliminary decree does not appeal from such decree
he shall be precluded from disputing its correctness in any appeal which may be
preferred from final decree."
FINAL DECREE A decree may be said to final in two ways:-
(i) When within prescribed period no appeal is filed against the decree or the matter
has been decided by decree of the highest court.
(ii) When the decree, so far as regards the court passing it completely disposes of the
suit.
Normally "Final Decree" is construed which so far as the court passing it, finally
dispose of the controversy involved and the suit.
ORDER [Section 2(14)]Order means the formal expression of any decision of civil
court which is not a decree (Section 2(14)). Thus the adjudication of a court which is
not a decree is an Order.
DECREE and ORDER : DISTINCTION
The adjudication of court of law may either be decree or Order : Fundamental
distinction between two are:-
(a) Decree can only be passed in a suit which commenced by presentation of plaint.
An Order can be passed in suit by presentation of plaint or may arise from proceeding
commenced from application.
(b) Decree is an adjudication conclusively determining the rights of parties with
regard to all or any of the matter in controversy. Order on the other hand, may or may
not finally determine such rights.
(c) Decree may be preliminary or final, but there cannot be preliminary order.
(d) Except in certain suits in which two decrees i.e. one preliminary and one final is
passed, there can be only one decree, but in suit or proceedings there can be number
of orders.
(d) Every decree is appealable unless otherwise expressly provided but every order is
not appealable only those orders are appealable as specified in code.

Short notes:
1 Foreign Judgement :
Ans. Section 2(6) C.P.C. says `Foreign Judgment' means judgment of foreign court.
"Foreign court" means a court situated outside India and not established or continued
by the authority of Central Govt.
BINDING NATURE OF FOREIGN JUDGEMENT ( Section 13)
Section 13 provides "foreign judgement" shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between parties under whom
they or any of them claim litigating under the same title except:
1. Where it has not been pronounced by court of competent jurisdiction.
2. Where it has not been given on merits of case.
3. Where it appears on the face of proceedings to be founded on incorrect view of
International Law or refusal of recognised principle of law in India.
 4. Where the proceedings in which judgment was obtained are opposed to natural
justice.
5. Where it has been obtained by fraud.
6. Where it sustains a claim founded on breach of any law in force in India.
A combined reading of Sections 43 to 44-A shows that the Indian courts have power
to execute the decrees passed by
(1) Indian courts to which the provisions of the Code do not apply;
(2) the courts situate outside India which are established by the authority of the
Central Government;
(3) revenue courts in India to which the provisions of the Code do not apply; and
(4) superior courts of any reciprocating territory.
In Sheikh Ali v. Sheikh Mohd. AIR 1967 Madras 45(a) it was held :
"The jurisdiction of district court in this country to execute foreign judgment arises
from and is exercisable by the filing of a certified copy of foreign decree or
judgement. It is only thereafter and never until then the procedural laws as to lex fori
will be attracted to execution. The Limitation Act can apply possibly to such
execution only after filing a certified copy of the foreign decree or judgment as
required by Section 44-A(1) of Civil Procedure Code.
In M/s International Woollen Mills v. M/s Standard Wools (U.K.), AIR 2001 SC
2134, it was observed section 44-A C.P.C. says where a certified copy of decree of
any superior court of any reciprocating territory has been filed in District Court along
with certificate from such superior Court stating the extent if any to which the decree
had been satisfied or adjudicated, decree may be executed in India as if it had been
passed in India. Court observed regarding section 13(b) C.P.C. that it can not be said
that expression "Foreign Judgment on merit" implies that it must have been passed
after contest and after evidence had been let in from both the side. An Ex parte foreign
decree and judgment in favour of plaintiff may deemed to be judgment given on
meriet if some evidence is adduced on behalf of plaintiff and judgment is based on
consideration of that evidence."
2 Caveat:

Introduction:- To avoiding ex-parte orders or judgments in civil proceedings the

CPC has provided right to a person, called a caveat. Caveat Petition is explained under
section 148-A of the civil procedure code, 1908.  Caveat petition is defined as a
precautionary measure taken by a person, one who has a great fear or nervousness,
that some of the other cases against him or her are going to be filed in the court of law
relating to any manner. The Caveat is generally a Latin phrase that means “let a
person beware”. To know more about the caveat when to lodge and what to do when a
caveat against you is lodged, it is important to understand Caveat and its implications.
So let’s begin with this article.
Meaning and definition of Caveat:-  The term caveat has not been defined in the
Civil Procedure Code. It has been derived from the Latin word which means
“beware”. As per the dictionary meaning of Caveat, it is an entry made in the book of
the offices of a registry or a court to prevent a certain step being taken without prior
notice to the person entering the caveat. In the case of Nirmal Chand v.Girindra
Narayan, the court defined caveat as a warning given by an individual to the court
that no order or judgment shall be passed without giving notice or without hearing the
Caveator( who files the caveat).
Object and scope of the Section:- The purpose of this section is to protect the
interest of the Caveator, who is prepared to face a suit or proceeding that is expected
to be instituted by his opponent, he has the opportunity to hear, before an ex-parte
order is given. Also, to avoid a multiplicity of proceedings, so as to save the costs and
conveniences of the courts.
Who may file Caveat:-  A caveat may be filed by any person who fulfills the
qualifications prescribed in the sub-section (1) of the Section 148 A-
    Who is going to be affected by an interim order likely to be passed on an
application that is expected to be made in a suit or proceeding instituted or about to be
instituted in a court.
      A person who is stranger to the proceeding cannot lodge a caveat. Similarly, a
person who supports an application for interim relief made by the applicant also
cannot file a Caveat.
     In the case of Kattil VayalilParkkum Koiloth V. Mannil Paadikayil Kadeesa
Umma,  the principle was laid down that a caveat cannot be lodged by a person who is
a total stranger to the case.

What does caveat contain?  The caveat or a notice given to the court, that some
action may not be taken without notifying the caveator, should contain the following
information:
Name of caveator;
The address of the caveator where the notice will be sent;
The name of the court where such caveat is filed;
Number of suits and number of appeals, if applicable;
A brief description of a lawsuit or appeal likely to be filed;
Name of probable plaintiffs or appellants and respondents.

Notice:-   If an application is made in any lawsuit or legal proceeding, after the filing
of a caveat, the caveator is required to give notice of such application by the court.
When a notice has been given to the applicant, it is necessary to provide a copy of the
application along with the copies of the papers and documents submitted by him in
support of his application, at the expense of the caveator, to the caveator. If the court
or applicant ignores the caveat and does not notify the caveator, the judgment or
judgment passed becomes null and void.

What is the time period for which caveat stays in force? As per clause 5 of the
section, Caveat will remain in force for 90 days from the date of its filing. After 90
days fresh Caveat petition can be filed.
What happens if that Caveat is filed and the Court and the applicant don’t give
notice to the Caveator:- This cannot be done, as the court is bound by the caveat. But
if it happens then whatever decree or order is passed becomes null and void.

Conclusion:-  While concluding this we can say that the section 148A of the Code
gives the power to any person, who has a fear or nervousness that some of the other
cases against him or her are going to be filled in a court of law in any manner, to
lodge a caveat in the court. If an application, that the caveator had anticipated, is made
within 90 days of filing the caveat, then a notice, informing him about the filling of
such an application, is to be served by the applicant as well as the court to the
 caveator. The validity of any judgment or order passed, without such notice or a
reasonable opportunity to the caveator to be heard, would be null and void.

3. Restitution:

Introduction:-    Section 144 of the Code of Civil Procedure, 1908, deals with the
provisions of restitution. Section 144 of the Code does not confer any new substantive
right. It merely regulates the power of the court in that behalf.

Meaning and definition of restitution:-    The expression ‘restitution’ has not been

defined in the code anywhere. But the term has a direct mention under Section 144 of
the code. It is the restoration of something lost or stolen to its rightful owner. On the
other way, restitution means restoring to a party the benefit which the other party has
received under a decree subsequently held to be wrong. Why should the benefit under
the decree be restored, this can be answered by reading the text of section 144 of the
Code.

Doctrine of Restitution:-    Doctrine of restitution means, on the reversal of a decree,

the law imposes an obligation on the party to the suit who received an unjust benefit
of the erroneous decree to make restitution to the other for what he has lost as far as
they can be restored.
  Section 144 does not confer any new substantive right. But it merely regulates the
power of the court in that behalf. It is the bounden duty of the courts to see that if a
person is harmed by a mistake of the court he should be restored to the position he
would have occupied but for that mistake.
   The jurisdiction to make restitution is inherent in every court and can be exercised
whenever justice of the case demands.   

Object of the Doctrine:-       The object of the doctrine is based upon the maxim
“actus curiae neminem gravabit” which means ‘the act of court shall harm no one’. In
the words of Lord Cairns, “one of the first and highest duties of the all courts are to
take care that the act of the court does no injury to the suitors”.

Restitution under Section 144 of the Code of Civil Procedure:-     Section 144 of
the code mainly talks about two words, Decree and Order. It provides that when either
decree or an order has been either of the following:

Conditions for applying:-     Before restitution can be ordered under this section, the
following three conditions must be satisfied:-
a) There must be a decree or order which had been reversed or varied;
b) The party must be entitled to benefit under the reversing decree or order; and
c) The relief claimed must be properly consequential on the reversal or variation
of the decree or order.
If the above-stated conditions are fulfilled, the court must grant restitution.

Who may apply for restitution?:-    For apply under section a person must satisfy
two conditions:
1.     He must be a party to the decree or order varied and reversed.
2.     He must have become entitled to any benefit by way of restitution or otherwise
under the reversing decree or order. Thus, a trespasser cannot get restitution.
 Who may grant restitution?:-   As per the explanation, to Sec. 144 (1) an application
for restitution lies to the court which has passed the decree or made the order.

Conclusion:-   The principle of restitution is a natural form of justice and Section 144

is only an embodiment of that principle taking a statutory form. Restitution provides
that the benefits received by one party under a decree must be restored to the other
party because the decree has become contagious due to the subsequent decree. The
court is given broad powers to pass any order in an application for restitution that it
may deem fit to meet the ends of justice. Even if a case does not come under section
144 of the CPC, the court has inherent power under Sec. 151 of the code to grant
restitution in order to dispense justice to the parties.

4 Exparte Decree. –

Introduction:-   The right to be heard in a suit is one of the important principles of

the natural justice and our Civil Procedure duly provides for such right to the party.
Despite the sufficient opportunity provided if a defendant absents from the court,
when he called upon on the day of hearing mentioned in the summons duly served on
him, the court is empowered to proceed ex parte and to pass an ex parte decree against
such defendant under Order 9, Rule 6 (1) (a).

Meaning of Ex parte decree:-     When the suit is called out for hearing and the
plaintiff appears and the defendant does not appear and summons is duly served, the
court may proceed ex parte against him and can pass a decree called ‘ex parte’ decree.
  
Remedies against ex parte decree:-   The defendant, against whom an ex parte has
been passed, has the following remedies namely:-
 Application to set aside the ex parte decree (Order 9 Rule 13)
 An appeal against such decree; section 96(2) (or to file a revision under
section 115 where no appeal lies;
 Apply for review under Order 47 Rule 1; or
 File a suit on the ground of fraud.

Bhanu Kumar Jain V. Archana Kumar, (2005) 1SCC 787 it was held that the
above-mentioned remedies are concurrent and they can be prosecuted simultaneously
or concurrently.
Application under Order 9, Rule 13:   An application under Order 9 Rule 13 of
CPC dealing with setting aside of decree ex parte against the defendant can be
entertained only the following two grounds;
 Where summons was not duly served
 Where the defendant was prevented from sufficient cause from appearing
where the fact called for hearing.
However, this rule is available only to the person who is a default of appearance as
per Rule 6 of Order 9. Under this rule, only the defendant can avail this remedy not
the non-party to the suit unless if he proves that his interest is affected by such decree.

  The limitation period for filing an application for setting aside ex-parte decree is
thirty days from the date of the decree.

Effect of setting aside ex parte decree:-      The effect of setting aside an ex parte

 decree is that the suit is restored, and it stood as 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.
An appeal under sec. 96:-      An ex parte decree is a decree under section 2(2) of the
Code and, therefore, an appeal can be filed against such decree by the aggrieved party
under section 96(2) of the Code.
A review application under sec. 114:-    Provisions of the Order 47 Rule 1 and
section, 114 of the CPC empowers the court to review its order if the condition
precedent laid down therein are satisfied the substantive provision of law does not
prescribe any limitation on the power of the court except those which are expressly
provided under the sec.114 of the code in terms wherein it is empowered to make such
order as it deems fit.

Filing of a suit on the ground of fraud:-  A suit to set aside an ex parte decree is not
maintainable. But if an ex parte decree is alleged to have been obtained by the fraud
by the plaintiff, the defendant can file a suit to set aside such decree. It is settled law
that fraud damages the most solemn transactions. In such suits, the onus is on the
party who alleges that the ex parte decree passed against him was fraudulent.
To maintain such action, it should be proved that the fraud alleged must be actual,
positive fraud, a mediated and intentional contrivance so as to keep the parties and the
court under the dark so as to obtain a decree by that contrivance.
The suit is maintainable despite unsuccessful application made under Rule 13 Order 9
or rejection of application for an appeal.

Conclusion:-  Where in any suit, an ex parte decree has then it can also be set aside if
there is sufficient reason behind the absence of a party. If the court is satisfied with
the reason of absence then it may set aside an ex parte decree. During all these
procedures the court must keep in mind that nowhere any miscarriage of justice is
done while passing an ex-parte decree.

5 Legal Representative. –

Legal representative is a person in law who represents the estate of the deceased and
includes any person who intermeddles with the estate of deceased and where a party
sues or sued in representative character, the person on whom the estate devolves on
the death of the party so suing or sued. S. 2(11) of CPC.

In other sense, a person who stands in the place of, and represents the interests of
another called legal representative. A person who supervises the legal affairs of
another. Like executor or administrator of an estate and a court appointed guardian of
a minor or incompetent person.

Scope of the expression legal representative:-       The court observed in the case
of Custodian of Branches of BANCO NationalUltramarino V. Nalini Bai Naique
[1989] 2SCR 810 that the definition contained in Section 2(11) CPC is inclusive in
character and its scope is wide, it is not legally limited to legal heirs only. Instead it
stipulates that a person, who may or may not be legal heir competent to inherit the
deceased’s property, can represent the estate of the deceased person. It includes heirs
moreover as persons who represent the estate even without title either as executors or
 administrators in possession of the deceased’s estate. All such persons would be lined
by the expression of ‘Legal Representative’.

6. Res Sub Judice:

Meaning of res sub-judice:-  Res Sub-judice is Latin term which means res means a
thing, sub-judice means ‘under judgment’. It means that a matter or case pending for
consideration by court or judge. Here, section 10 says that when two or more cases are
filed between the same parties on the same subject matter, the competent court has
power to stay the subsequent proceeding and that is the res sub-judice or stay of the
suit.
Object of Res Sub-Judice:-   The object of the section is to prevent a court of
concurrent jurisdiction from simultaneously trying two parallel suits in respect of the
same matter in issue and intended to protect a person from the multiplicity of suits and
to avoid a conflict of decisions.
  
                          
Conditions for res sub-judice:-
 Two suit – one previously instituted and the other subsequently instituted
 Matter in issue – matter in issue in the subsequent suit must be directly
and substantially in issue in the previous suit.
 Same parties – both the suit must be between the same parties or their
representatives
 Competency of the court – the court dealing with a previously instituted
suit must competent to grant to the relief claimed in a subsequent suit
 Same title – such parties must be litigating under the same title in the
both the suit

an example:- A wife filed a suit for separation of conjugal life and custody of a minor
child against husband B. subsequently, husband B claimed custody of a minor child
by filing another suit against the wife A. Here the second suit is liable to stay under
section 10 of CPC, because in both the suit the parties are same, the subject matter is
also the same, the court is also competent to try the suits and there is also a previously
instituted suit that is pending in the court.  
Consolidation of suits:-        As per section 10 of CPC, the main objective is to avoid
two conflicting decisions, a court in an appropriate case can pass an order to the
consolidation of both the suits.

Inherent power to stay:-   A civil court has inherent power to stay a suit under
section 151, even where the provisions of sec.10 of the Code do not strictly apply, to
achieve the ends of justice. Similarly, a court has an inherent power of consolidation
of two suits where res sub-judice applies.

Conclusion:- The doctrine of Res Sub Judice provides as a stay on suit consisting of
the same subject matter in the issue being parallel instituted in two separate competent
Courts. And the objectives behind this doctrine are, avoiding conflicting decisions and
findings and avoiding wastage of court resources and time.