1. Explain the different modes of service of summons.

Meaning:-
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against him, and
that he is required to appear in the court to defend it. The intimation which is sent to the defendant by the court is
technically known as “summons”.Though the said expression has not been defined in the code, according to the
dictionary meaning. “A summons is a document issued from the office of a court of justice, calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose”.

Summon occupies an important place in judicial administration. It is well known word I judicial procedure. Normally,
it is a convenient method by which any party, individual, witness or defendant can be asked to present himself before
the court. The order is issued to any party, individual, witness and defendant to present himself before the court by
means of summon. Therefore, summon is an order of the court which is issued to any person to present himself before
the court. It is issued to defendant after the case is filed by the plaintiff.

Normally, summon is issued to defendant to present written statement within a period of 30 days. But under special
circumstances or reasons, this period may be extended to 90 days by the court (order 5, rule 1).

The copy of plaint should be included with the summon. Without this, the service of summon is not considered valid
The following are the requisites of a valid summons:(Essentials of summon)
1. it should be signed by the presiding officer issuing the summons or by the officer appointed for that purpose;
2. the seal of the court should be affixed on it;
3. the copy of plaint should be enclosed;
4. the date, place and time should be mentioned when any individual and his advocate is to present in the court;
5. the purpose of issuing summons should be mentioned
6. if the summon is issued to call any document then full particular of that document should be given.

Mode of Service of Summons. Rules 9-30

The service of summons is of primary importance as it is a fundamental rule of the law of procedure that a
party must have a fair and reasonable notice of the legal proceedings initiated against him so that he can defend
himself. The code prescribes five principle mode of serving a summons to a defendant.

i) Personal or direct service.

ii) Service by court.
iii) Service by plaintiff.
iv) Substituted service.
v) Service by post.
1. Personal or direct service: - Rule 10 to 16 and 18deal with personal or direct service of summons upon the
defendant. This is an ordinary mode of service of summons. Here the following principles must be
remembered.
a) Wherever it is practicable, the summons must be served to the defendant in person or to his authorized agent.
b) Where the defendant is absent from his residence at the time of service of summons and there is no likelihood
of him being found at his residence within a reasonable time and he has no authorised agent, the summons
may be served on any adult male or female member of the defendant’s family residing with him. A servant
cannot be said to be a family member.
c) In a suit relating to any business or work agent a person, not residing within the territorial jurisdiction of the
court issuing the summons, it may be served to the manger or agent carrying on such business or work.

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 d) In a suit for immovable property, if the service of summons cannot be made on the defendant personally and
the defendant has no authorised agent, the service may be made on any agent of the defendant in charge of
property.
e) Where there are two or more defendants, service of summons should be made on each defendant.
2. Service by Court- Rule 9
Summons to defendant residing within the jurisdiction of the court shall be served through court officer or
approved courier service. Summons can also be served by register post, courier service, fax, e-mail or by any other
permissible means of transmission. Where the defendant is residing outside the jurisdiction of the court, the summons
shall be served through the officer of the court within whose jurisdiction the defendant resides. The court shall treat
refuse of acceptance as a valid service. Where summons is properly addressed, prepaid and duly sent by registered
post acknowledgment due (RPAD ) there will be a presumption of a valid service of summons even in the
absence of an acknowledgment slip.
3. Service by plaintiff- Rule-9A
The court may also permit service of summons by the plaintiff in addition to service of summons by the court.
4. Substituted service- Rule 17, 19-20
“Substituted service” means the service of summons by a mode which is substituted for the ordinary mode of
service of summons. There are two modes of substituted service. They are:
Where the defendant or his agent refuses to sign the acknowledgment, or where the serving officer, after due
and reasonable diligence, cannot find the defendant who is absent from his residence at the time of service of
summons and there is no authorised agent nor any person on whom service can be made, the service of summons can
be made by affixing a copy on the outer door or some other part of the house in which the defendant ordinarily resides
or carries on business or personally works for gain.
Where the court is satisfied that there is reason to believe that the defendant avoids service for any other
reason the summons cannot be served in ordinary way, the service may be effected in the following manner-
By affixing a copy of the summons in some conspicuous place in the courthouse, and also upon some
conspicuous part of the house in which the defendant is known to have last resided, carried on business for personally
worked for gain, or in such manner as the court thinks fit.
Where the court can orders service by an advertisement in a news paper, the newspaper should be a daily
newspaper circulating in the locality in which the defendant is last known to have actually or voluntarily resided,
carried on business or personally worked for gain.
5. Service by Post:-
When an acknowledgement purporting to be signed by the defendant or his agent is received by the court, or
the defendant or his agent refused to take delivery of summons when tendered to him, the court issuing the summons
shall declare that the summons had been duly served on the defendant. The same principle applies in a case where the
summons was properly addressed, prepaid and duly sent by registered post, acknowledgment due, and the
acknowledgment is lost or not received by the court within thirty days from the date of issue of the summons. Where
the summons sent by registered post is returned with an endorsement “refused”, the burden is on the defendant to
prove that the endorsement is false.
Conclusion:- These are the five method of serving the summons to the defendants and it will be done one after one
initially the court will send summons through post if it fails to serve the summons to the defendant then the remaining
method will be adopted one after one by the plaintiff through the court.
Case laws :
In Ambika Prasad V. Kodai Upadhya, AIR 1945 All 45, this Court considered a case where the defendant
could not be served being detained in jail and it was held that, in such a situation as the defendant could not be served,
the proper procedure would be to issue processes for substituted service under Order 5 Rule 20 of the C.P.C. and then
to proceed with the trial of the suit.
In Smt. M.L. Nagarathnamma V. S.R. Suryanarayan Rao, 1985 NOC 214 (Kant), the Division Bench examined a
case where summons could not be served in a suit on the defendant teacher on account of her transfer and request was

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made to serve her by substituted service. The Division Bench of the Karnataka High Court held that unless the enquiry
is held and Court comes to the conclusion that she was evading the service, the question of serving her by substituted
service would not arise.
In Great Punjab Agro Industries Ltd. V. Khushian & Ors., (2005) 13 SCC 503, the Supreme Court explained that
if a defendant is residing in Bombay, substituted service by publication in the news papers circulated in Punjab is not a
valid service. An ex-parte decree so passed was set aside.
2. Briefly explain the different parts of a Plaint ?
Introduction
Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts about his cause of action. In
fact, plaint consists of some contents, and it is mandatory that such contents should be present in plaint.
Plaint
Plaint is written statement of plaintiff’s claim. Through plaint, plaintiff describes his cause of action and other
necessary particulars to seek remedy from court for redressed of his grievances
Section 26 of C.P.C. stipulates that every suit shall be instituted by the presentation of a plaint or in such other
manner as may be prescribed.
Order VII: Rule 1, prescribes the essentials or particulars of the plaint as below
1. The name of the court in which the suit is brought;
2. The name, description and place of residence of the plaintiff;
3. The name, description and place of residence of the defendant;
4. Where the plaintiff or defendant is minor or a person of unsound mind, a statement to that effect;
5. The facts constituting the cause of action and when it arose;
6. The facts showing that the court has jurisdiction;
7. A statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fees;
8. The reliefs claimed by the plaintiff, simply or in the alternative;
9. Where the plaintiff files a suit in the representative capacity, the facts showing that the plaintiff has an
actual existing interest in the subject-matter and that he has taken steps that maybe necessary to enable
him to file such a suit;
10. Where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so allowed or
relinquished;
11. Where the suit is for recovery of money, the precise amount claimed;
12. Where the suits is for accounts or mesne profits or for movables in the possession of the defendant or for
debts which cannot be determined, the approximate amount or value thereof;
13. Where the subject-matter of the suit is immovable property a description of the property sufficient to
identify it, e.g. boundaries, survey numbers, etc.
14. The interest and liability of the defendants in the subject-matter of the suit;
15. Where the suit is time-barred, the ground upon which the exemption from the law of limitation is claimed

We can divide the above mentioned particulars in three essential parts:

• Part I – The Heading and Title
• Part II – The Body of the Plaint
• Part III – The Relief Claimed
• Part IV – Signature and Verification

Part 1 - The Heading and Title

a. Name of the Court
Every plaint should begin with the name of the court in which the suit is brought, to be written at the head of the
plaint and this is called its heading, e.g. “In the Court of District Judge, Chandigarh”. It is not necessary to add
the name of the Presiding Officer of the Court. Where a court, e.g., the High Court, has various jurisdictions, the
jurisdiction in which the suit is brought should be stated below the name of the Court, thus:
“In the Punjab and Haryana High Court, Chandigarh” it is stated whether the case is in Testamentary Jurisdiction
or Matrimonial Jurisdiction or Ordinary Original Civil
Jurisdiction or Appellate Jurisdiction, etc

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 b. Parties to the Suit
There must be two parties in every suit, namely, the plaintiff and the defendant. There may, however, be more
than one plaintiff or more than one defendant. It is essential to state in the plaint:
1. The name, description and place of residence of each plaintiff; and
2. The name, description and place of residence of each defendant, so far as they may be ascertained.
The word ‘description’ includes the name of the father, age and other particulars necessary to identify a person.
If a defendant is not properly named or described, but the real person intended has been properly served with the
summons and he does not appear to defend the suit, a judgment passed against him will be as effective as if his
true name and description has been given in the plaint, and the correct name and address can be substituted at
any subsequent time when they are discovered, because the whole purpose of the description of parties is to
properly identify the person who is a party to the suit.
c. Title of the Suit
The title of the suit shall mention the reason for approaching the court and the provision under which the
jurisdiction of the court is being evoked. For example:
“Petition for Permanent Injunction restraining the Defendant …. from illegally dispossessing the property of
the Plaintiff…”
“Rent Petition under Section 13 of the East Punjab Urban Rent Restriction Act, 1949 for the purpose of
eviction of the Respondent tenant from the tenancy premises (H. No. …., Sector …., Chandigarh) on the ground
of non-payment of rent and creating nuisance”
Part 2 : Body of the Plaint
This is the body of the plaint wherein the plaintiff describes his/ her concerns in an elaborative manner. This is divided
into short paragraphs, with each paragraph containing one fact each. The body of the plaint is divided into two further
parts which are:

a. Formal Portion:
The formal portion contains the following essentials:
1. A statement regarding the date of cause of action. It is necessary for every plaint to contain the date when the
cause of action arose. The primary objective behind this is to determine the period of limitation.
2. There should be a statement regarding the jurisdiction of the court. The plaint must contain all facts that point
out the pecuniary or territorial jurisdiction of the court.
3. The value of the subject matter of the suit must be stated properly in this part of the plaint.
4. Statement regarding minority.
5. The representative character of the plaintiff
6. The reasons why the plaintiff wants to claim exemptions under the law if the suit is initiated after the period of
limitation.

b. Substantial Portion:

1. This portion of the plaint must contain all the necessary and vital facts, which constitute the suit. If the
plaintiff wishes to pursue a course of action on any other grounds, such grounds must be duly mentioned.
2. It should be shown in the plaint that the defendant is interested in the subject matter and therefore must be
called upon by the court.
3. If there is more than one defendant, and if the liability is not joint, then the individual liability of each and
every defendant must be shown separately.
4. In the same way, if there is more than one plaintiff, and their cause of action is not joint, then too, the same
has to be mentioned separately.

Part 3 : Relief Claimed:

The last part of the plaint is the relief. The relief claimed must be worded properly and accurately. Every plaint must

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state specifically the kind of relief asked for, be it in the form of damages, specific performance or injunction or
damages of any other kind. This has to be done with utmost carefulness because the claims in the plaint cannot be
backed by oral pleadings.

Part 4 : Signature And Verification:

1. The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not present due to any
legitimate reason, then the signature of an authorized representative would suffice.
2. The plaint should also be duly verified by the plaintiff. In case the plaintiff is unable to do so, his/ her
representative may do the same after informing the court.
3. The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has verified by his/ her
own awareness of the facts, and what has been verified as per information received, and subsequently believed
to be true.
4. The signature of the plaintiff/ verifier, a Where the language of the plaint is beyond the comprehension of the
plaintiff, the same has to be translated, or made known to the plaintiff, and only after that can he/ she put
his/her signature and get the plaint verified by the Oath Commissioner.
Return Of Plaint
Order VII, Rule 10 states that the plaint will have to be returned in such situations where the court is unable to
entertain the plaint, or when it does not have the jurisdiction to entertain the plaint.

The courts can exercise the power of returning the plaint for presentation before the appropriate court if it feels that
the trial court itself did not have the appropriate jurisdiction in the first place.

Once the appellate court finds out that the trial court decided on the civil suit without proper jurisdiction, such
decision would be nullified.

Dismissal Of Suit
If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the same where the parties
can arrive for this purpose.

This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court does not have the adequate
jurisdiction, the proper course is to return the plaint and not to dismiss it.

When Can A Plaint Be Rejected?

1. A plaint can be rejected under the following scenarios

2. Where the cause of action is not disclosed
3. When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after being
instructed by the court to do so.
4. When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not been
stamped sufficiently and fails to do so even after the court's instruction.
5. Where the suit stems from a statement which has been essentially barred by law
REJECTION OF A PLAINT:
The plaint shall be rejected in the following cases:
a) Where plaint does not disclose cause of action: If the plaint does not disclose any cause of action, the court
will reject it. To reject it on this ground the court must look at the plaint and nothing else. And even if the
court comes to the conclusion that the allegations set out in the plaint are proved, the plaintiff would not be
entitled to any relief. In such a case the court will reject the plaint without issuing summons to the defendants.

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 b) Where relief claimed is undervalued: Where the relief claimed by the plaintiff is undervalued and the
valuation is not correct within the time filed or extended by the court, the plaint will be rejected. In
considering the question whether the suit is properly valued or not, the court must confine its attention to the
plaint only and should not look at the other circumstances which may subsequently influence the judgment of
the court as to the true value of the relief prayed for.
c) Where paint is insufficiently stamped: Sometimes the relief claimed by the plaintiff is properly valued, but
the plaint is written upon a paper insufficiently stamped and plaintiff fails to pay the requisite court fees
within the time fixed or extended by the court. In that case, the plaint will be rejected. If the plaintiff cannot
pay the court fees, he may apply to continue the suit as indigent person.
d) Where the suit appears to be barred by law: where the suit appears from the statements in the plaint to be
barred by any law, the court will reject the plaint. For Eg. Where in a suit against the government, the plaint
does not state that the notice as required under Section 80 of the code has not been given, then the plaint will
be rejected.

Conclusion :
A plaint is important in the sense that it is the first and foremost step towards instituting the suit. Therefore, due care
has to be taken to ensure that the procedure required for the initiation of plaint has been duly recognized.

It is mandatory to follow protocol by stating the relevant facts, the necessary details, refrain from providing evidence
and mention the kind of relief envisaged so that the plaintiff is duly benefited.

3. What is written statement? Elucidate the essential contents of a written statement?

Reference: The Code of Civil Procedure, 1908
Order 8
(a) Meaning
Written statement may be defined as a reply of a defendant to the plaint filed by a plaintiff. Thus, it is a pleading of a
defendant dealing with every material fact of a plaint. It may also contain new facts in favour of a defendant or legal
objections against the claim of a plaintiff. It is a pleading of a defendant.

(b) Who may file written statement?

A written statement may be filed by the defendant or by his duly constituted agent.
Where there are several defendants and a common written statement is filed by them, it must be signed by all of them.
It is, however, sufficient if it is verified by one of them who is aware of the facts of the case and is in a position to file
an affidavit.
A written statement filed by one defendant does not bind other defendants.
(c) When written statement may be filed?
A defendant should, within thirty days from the service of summons on him, present a written statement of his
defence. The said period, however, can be extended up to ninety days.
(d) Outer limit: for filing written statement
Proviso to Rule 1 as inserted by the Amendment Act, 2002 prescribes outer limit of ninety days of filing written
statement from the date of service of summons on the defendant.
Case laws :
Kailash v. Nankhu:
Issue :whether it can be timely extended beyond 90 days? Whether this period is directory or mandatory?
In this case supreme court held that outer time limit of 90 days for filing the written statement is not mandatory. The
court held that though the provision is couched in a negative language, it is directory and permissive not mandatory or

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imperative. It provides that process of justice may be hurried but the fairness which is the basic element of justice
cannot be permitted to be buried.
Even in Salem Advocate Bar Association v. Union of India, AIR 2005 SC, the court harmoniously constringed Order
VIII Rule 9, 10 & 11 said that there can be discretion of the court to allow the defendant to file written statement even
after expiry of 90 days and there is no restriction in Order VIII that after expiry of 90 days, further time cannot be
extended or granted. In this case, the Supreme Court held that court is empowered under Order VIII Rule 10 to allow
the defendant to file the written statement even after the expiry of 90 days. Such power can only be used in
exceptional circumstances and routine order cannot be passed.
(e) Particulars: Rules 1-5 and 7-10
A written statement should be drafted carefully and artistically.
Before proceeding to draft a written statement it is absolutely necessary to examine the plaint carefully.
Like a plaintiff, a defendant may also take a number of defences, either simply or in the alternative, even though they
may be inconsistent, provided they are maintainable at law and are not embarrassing.
(f) Special rules of defence
Over and above the general defences, Rules 2 to 5 and 7 to 10 deals with special points regarding filing of a written
statement:
(1) Defence has to be raised
New facts, such as the suit is not maintainable, or that the transaction is either void or voidable in law, and all such
grounds of defence has to be raised.
Issues of fact not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts showing
illegality, etc. must be raised.
If no defence is taken, the Court will deal with it in one of two ways. It may say that it is not open to him, that he
has not raised it; or it may give leave to amend by raising it.
It leaves the party at the mercy of the Court and the Court will deal with him as is just.
If the plea is not taken, it may lead the plaintiff to believe that the defendant has waived his right by not relying on that
point. And the defendant will not be entitled, as of right, to rely on any ground of defence which he has not taken in
his written statement.
(2) The denial must be specific.
It is not sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but he
must deal specifically with each allegation of fact which he does not admit, except damages.
(3) The denial should not be vague or evasive.
Where a defendant wants to deny any allegation of fact in the plaint, he must do so clearly, specifically and explicitly
and not evasively or generally.
Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that
particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he
received.

(4) All allegations to be addressed:

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted
in the pleadings of the defendant, shall be taken to be admitted except as against a person under disability.
The court may, however, require proof of any such fact otherwise than by such admission. When the defendant has not
filed a written statement the court may either pronounce the judgment on the basis of the facts stated in the plaint
(except as against a person under disability), or may require any such fact to be proved."
If a judgment is pronounced by the court, a decree shall be drawn up in accordance with it.
A few illustrative cases will make the position clear:
In an action against a lessee to set aside the lease, the plaintiff alleges in his plaint that the defendant offered to the
manager of the plaintiff a bribe of Rs 5000 at the defendant's office on 15 January 1997; and the defendant in his
written statement states that he did not offer to the plaintiff's manager a bribe of Rs 5000 at the defendant's office on

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15 January 1997; the denial is evasive. Here the point of substance is that a bribe was offered (neither the day nor the
amount) and that is not met.
The defendant might have offered any other amount on another day at a different place. Since the point of substance is
the offer of bribe, it must be clearly and specifically denied and the defendant should state that he never offered a
bribe of Rs 5000 or of any other sum, on any day, at any place, to the plaintiff's manager as alleged or at al
Similarly, if the plaintiff asserts:
The defendant broke and entered into the shop of the plaintiff and seized, took and carried away all the furniture,
stock-in-trade, and other effects which were therein.
The correct traverse will be:
The defendant never broke or entered into the shop of the plaintiff or seized, took or carried away any of the furniture,
stock-in-trade, and other effects which were therein.
Again, when a compound allegation, consisting of several distinct facts, is made in the plaint, and it is intended to
deny each of such facts, a single denial of the whole allegation should not be made. The defendant should break up the
allegation into separate parts and deny each of them separately.
For instance, if the plaintiff alleges that the defendant took possession of the plaintiff's house and the defendant wants
to deny both the allegations of having taken possession of the house as well as the plaintiff's ownership of the house,
he must do so expressly by saying:
(1) The defendant never took possession of the house.
(2) The said house is not of the plaintiff.
A single traverse, "the defendant denies that he took possession of the plaintiff's house would not be specific since it
may mean that the "defendant only denies having taken possession of the house and not the ownership of the plaintiff.
But if the plaintiff makes general allegations in the plaint and they are answered by equally general denials, no
complaint can be made by the plaintiff on the ground that they are not specific.
Thus, where the plaintiff alleges in the plaint that the order of his removal from service was violative of Articles 14
and 16 of the Constitution of India since he was arbitrarily picked up, the denial in the written statement of the
allegation that there had been a violation of Articles 14 and 16 of the Constitution of India is sufficient.
(5) Defences to be stated separately
Where the defendant relies upon several distinct grounds of defence or set-off or counterclaim founded upon separate
and distinct facts, they should be stated separately and distinctly
(6) New Grounds of Defence
Any new ground of defence which has arisen after the institution of the suit or presentation of a written statement
claiming a set-off or counterclaim may be raised by the defendant or plaintiff, as the case may be, in his written
statement. Here the court is empowered to take notice of subsequent events.
(7) Defence to a Set-Off or Counterclaim
No pleading after the written statement of the defendant other than by way of defence to a set-off or counterclaim can
be filed. The court may, however, allow any party to file his pleading upon such terms as it thinks fit.
(8) Written Statement Within Time
If the defendant fails to present his written statement within the time permitted or fixed by the court, the court will
pronounce the judgment against him or pass such order in relation to the suit as it thinks fit and a decree will be drawn
up according to the said judgment.
SET-OFF [RULE 6]
Order VIII Rule 6 of the Code lay down the rule relating to legal set-off. It is not exhaustive and the court may allow
equitable set-off in certain cases. Order XX Rule 19(3) of the Code provides for such equitable set-off.
The term set-off is not defined in the Code. It means reciprocal discharge of debts between two parties. In other
words, it means a claim set up against another. It is a cross claim where by a defendants, acknowledges the plaintiff’s
demand but set up against another demand of his own to counter balance that of the plaintiff either in whole or in part.
Thus, it is a reciprocal discharge of debts between two persons. When there are two mutual debts between the plaintiff
and defendant, one debt may be settled against the other. It avoids the necessity of filing a fresh suit by the defendants.

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For example, A sues B on a bill of exchange for Rs. 1000. B holds a judgement against A for Rs. 500. Both the claims
can be set-off and A will be entitled to Rs. 500 only.
In Jayanti Lal v. Abdul Aziz1, the Supreme Court defined set-off as 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.
There can be two kinds of set-off:
1. Legal Set-off: (Order VIII Rule 6)- This claim of set-off is based on written statement and the court
pronouncing the judgement in money suit will also pronounce judgement on set-off.
2. Equitable set-off: [Order XX Rule 19(3)]- In contrast to legal set-off, equitable set-off may not be for
ascertained money and may not be even recoverable.
Difference between Legal Set-off and Equitable Set-off
Legal Set-off Equitable Set-off
It must be for an ascertained sum of money It may be allowed even for an unascertained sum
of money

It can be claimed as a matter of right The court has discretion to allow defendants to
claim equitable set-off.

Claiming reliefs, the court fee is payable. The court fee is payable
Must be legally recoverable on the date of making Not necessary that the amount is legally
claim, i.e. the amount claimed shall not be barred recoverable, i.e. amount can be claimed even if
by limitation. claim is time-barred.

It is not necessary that cross demands arise out of It is necessary that cross demands should arise out
same transaction. of same transaction.

a. Legal Set-off [Order VIII Rule 6]

The defendant may at the first hearing of the suit i.e. the filing of the written statement may present his pleadings
claiming the debt against the plaintiff by way of set-off in a suit for recovery of money instituted by the plaintiff, if the
following requisites are fulfilled or in other words, we can say what are the things to be taken care of in making a
claim or conditions of set-off:
1. It is a suit for recovery of money. For e.g. A sues B for Rs. 12,000. B cannot claim set-off the claim for
damages for breach of contract for specific performance.
2. Claim of defendant must be for ascertained sum of money i.e. specific and certain. For e.g. A sues B on a bill
of exchange. B alleges that A has wrongfully neglected to ensure 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. [Illustration (c)
to Rule 6]. On the other hand, where A brings a suit for recovery of Rs. 5000 against B, the latter can claim
set-off of Rs. 2000 for damages for house trespass committed by A as the amount is ascertained.
3. Such sum should be legally recoverable, i.e. it should not be time barred. For e.g. A sues B for Rs. 10,000. B
cannot claim set-off for any amount due to him towards salary for performing illegal activities of A.
4. It must be recoverable by the defendants or by all the defendants if more than one. For
e.g. A sues B and C for Rs. 1000. B cannot set-off a debt due to him by A alone.

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 5. It must be recoverable from the plaintiff or all the plaintiffs if more than one. For e.g.
A and B sue C for Rs. 1000. C cannot set-off a debt due to him by A alone.
6. Such sum should not exceed pecuniary limits of the jurisdiction of the court.
7. Both parties must be in same character in set-off as well as in the suits. For e.g. A dies intestate and in debt to
B. In a suit for purchase money by C against B, the latter cannot claim set-off of the debt for price, for C fills
two different characters, one of the vendor to B in which he sues B and the other as representative of A.
[Illustration (b) to Rule 6].
b. Equitable Set-off [Order VIII Rule 19(3)] - Order VIII Rule 19(3) recognize equitable set-off which can be
claimed by the defendants in respect of even an unascertained sum of money provided that both the cross-
demands arise out of one and the same transaction [Bhupendra Narayan v. Bahadur Singh2]. For e.g. in a
suit by servant against his master for salary, the latter can claim set-off for the loss sustained by him due to
negligence of servant.
EFFECTS OF SET-OFF
When a defendant pleads set-off, he is put in position of plaintiff as regards the amount claimed by him. So, there are
two cross-suits which are tried together and the court pronounces judgement in respect of both of them. The failure of
plaintiff in the suit does not affect the claim of a set-off by the defendant and decree may be passed in favour of
defendant if he is able to prove his claim.
A separate suit number, however, is not given in a set-off.
Where the plaintiff does not appear and his suit is dismissed for default, or he withdraws his suit or he fails to
substantiate his claim at the trail and his suit is dismissed, it does not affect the claim for a set-off by the
defendant and a decree may be passed in favour of the defendant if he is able to prove his claim.
Thus, it is clear that this claim has the same effect as of the plaint in a cross-suit to enable the court to pronounce
the judgement in both suits and the rule regarding the written statement shall apply to a written statement filed
by plaintiff in answer to claim of defendant.
It must be remembered that:
Rule 6 is not exhaustive and only contains legal set-off.
• Legal set-off can be claimed as a matter of right.
• The court fee is payable on claim of set-off.
• The particulars by way of set-off may be presented after the first hearing only with the permission of the
court.

COUNTER CLAIM [ORDER VIII RULE 6A TO 6G]

Rules 6A-6G of Order VIII provides for counter-claim. Rules 6A-6G of Order VIII vide Amendment Act of
1976, which specifically provides for setting of counter claim. However prior to the Amendment also, the
Supreme Court in Laxmidas v. Nanabhai3, allowed the defendants to file counter claim and treated it as a cross-
suit. The code does not define counter-claim. It can be defined as a claim made by the defendant against the
plaintiff in the suit filed by plaintiff. It is a cause of action in favour of defendants against the plaintiff. It is
independent and separate from plaintiff’s claim. The defendant may in addition to set-off, can also be plead by
way of a counter-claim. Not just an ascertained sum but any other right that the defendant is entitled to claim
against the plaintiff.
Furthermore, it must be remembered that,
• Such right or claim must accrue either before or after the filing of the suit but before filing of written
statement or expiry of time limited to file written statement.
• The counter-claim must not exceed the pecuniary jurisdiction of the court. [Order VIII Rule 6A. (1) Proviso]

2
3 AIR 1964 SC11.

10
 • The counter- claim shall have the same effect as a cross-suit to enable the court to pronounce the judgement in
both suits [Rule 6A (2)].
• The plaintiff shall file the written statement to answer the claim in counter-claim against him [Rule 6A (3)].
• The counter-claim is in the nature of cross-suit so it should satisfy all the criteria of a suit and rules as to the
plaint that he shall apply mutatis mutandis to it.
• The counter claim is treated as separate suit so it is deemed to be instituted on the day on which it was filed
and not on the day when original suit was filed, so it must be filed within limitation period.
• The Court-fee is payable on counter-claim.
Meaning of Counter-claim: A counter-claim is in the nature of cross suits. So it should satisfied all the criteria of a
suit and it must be filed within limitation period.
This remedy of counter-claim was added in the year 1976 and it is a discretionary remedy but the discretion has to
be exercised judiciously.
The object of remedies is to ensure trial of all issues between the parties at one time as far as possible. In this way, it
is one of which to minimize the multiplicity of suits.
It can be raised at the time of filing of written statement and it can be filed with respect to a cause of action
which has accrued before or after institution of suits but no counter-claim can be filed for any cause of action
which has accrued after the time for filing written statement has expired or the time for filing the defence has
expired.
Once the right to file the written statement then it cannot be raised as a matter of right, and furthermore filing of
counter-claim after closure of plaintiff’s evidence will not be allowed.
If the counter-claim has been filed at a court which does not have jurisdiction then the plaint is returned under
Order VII Rule 10.
Claim of set-off is never barred by limitation, counter-claim may be barred.
Section 3(2)(b) of Limitation Act, 1963 stipulates that any claim by way of a set-off or a counter-claim shall be treated
as a separate suit and shall be deemed to have been instituted-
1. in the case of a set-off, on the same date as the suit in which the set-off is pleaded.
2. in the case of a counter-claim, the date on which the counter-claim is made in the court.
Who can file counter claim? As a general rule defendant can file counter claim against the plaintiff. In Ramesh
Chand v. Anil Panjwani4, Supreme Court held if defendant is filing counter claim against the plaintiff he can
also file counter claim against co-defendants but defendant cannot file counter claim solely against co-
defendants without filing it against the plaintiff.
Time of filing counter claim: Rule 6A provides that such counter-claim against the plaintiff can be set up by
the defendant. The cause of action for such counter-claim may accrue either before or after filing of the suit by
the plaintiff but before the defendant has delivered his defence or before the time fixed for delivery of his
defence has expired. It further provides that:
(a) Such claim does not exceed the pecuniary limits of the jurisdiction of the court.
(b) Such claim shall not be barred by limitation.
The Supreme Court in Ashok Kumar Kalra v. Wing Commander Surendra Agnihotri5, held that Order VIII
Rule 6A does not put an embargo on filing of counter-claim after filing the written statement. Restriction in Rule
6A is only with respect to accrual of cause of action. It means that cause of action to file counter claim must
accrue before filing written statement, however counter claim can be filed after filing written statement.
However, Supreme Court cautioned that defendant does not get an absolute right to file counter claim with

4 AIR 2003 SC 2508

5 2019 (16) SCALE 544

11
substantive delay. The court held that outer limit to file counter claim is till framing of issues. After issues are
framed counter claim cannot be filed.
Effects of Counter-claim: Following are the effects of counter claim:
I. A counter claim has the effect of a cross-suit and the court can pronounce a final judgement both on the
original claim and the counter claim [Rule 6A (2)].
II. The counter claim of the defendant will be treated as plaint and the plaintiff has a right to file a written
statement in answer to such counter-claim [Rule 6A(3) & (4)].
III. Even if the suit of plaintiff is stayed, dismissed or withdrawn, the counter-claim will be decided on merits
[Rule 6D].
IV. Rules relating to written statements by a defendant shall apply to a written statement filed in answer to the
counter-claim [Rule 6G].
Counter claim to be stated: [Rule 6B]- The defendant shall state, specifically in written statement, any ground upon
which he relies in support of his counter-claim.
Exclusion of counter claim: [Rule 6C]- This rule gives the plaintiff a right to apply to the court to restrain the
adjudication of the counter-claim in his suit and that it must be raised in an independent suit.
Effect of discontinuance of suit: [Rule 6D]- The stay or dismissal of the plaintiff’s suit does not affect the
maintainability of counter claim. The counter claim shall be proceeded with and since it is a cross suit it will be
decided on its own merits.
Default of plaintiff to reply to counter-claim: [Rule 6E]- Where the Plaintiff fails to reply to a counter-claim
made by defendant, a judgement may be pronounced against such plaintiff in relation to the counter-claim or any
other order also be made.
Relief to defendant where counter-claim succeeds: [Rule 6F]- Where the counter-claim or set-off is claimed
in any suit and on the hearing it is found that any balance is due to the plaintiff or the defendant, the court may
give judgement in the favour of the party entitled to such balance.
Rules relating to written statement to apply: [Rule 6G]- The rules relating to written statement by a defendant shall
apply to a written statement filed in answer to a counter-claim.
Defence or set-off founded upon separate grounds: [Rule 7]- The distinct grounds of defence or set-off or counter-
claim must be stated separately or distinctly.
New ground of defence: [Rule 8]- Any new ground arose after the institution of the suit or the presentation of
set-off or counter claim is a written statement, may be raised subsequently by the parties concerned.
Subsequent Pleading: [Rule 9]- The general rule is that after pleading there is no subsequent pleader but Order
VIII Rule 9 says that any submission by the parties to the court, by way of or in the nature of a pleading after
plaint and written statement will be called as a subsequent pleading. It is presented as follows:
(i) By way of set-off or counter-claim, only with the leave of the court, or
(ii) By way of an additional written statement.
However, the court has the power to allow a written statement or additional written statement any time from any of
the parties and the time period fix for it is 30 days.
Rule 1A Sub-Rule 4 of Order VIII: A document which ought to be entered in the list and which is not so
entered, shall not, without the leave of the court, be received in evidence on behalf of the defendant at the
hearing of the suit. However Sub-Rule 4 says that it will not apply to documents produced for the cross-
examination of plaintiff’s witnesses or in answer to any case set-up by plaintiff subsequent to the filing of a
plaint or handed over to a witness merely to recover or refresh his memory.
Procedure when party fails to present written statement called for by court: [Rule 10] -

12
Where the party fails to file written statement within the period fixed by the court under Rule 1 and Rule 9, the
court shall pronounce judgement against him or make such order as it thinks fit and a decree shall be drawn
accordingly.
In Salem Advocate Bar Association v. Union of India6, it was held that the provisions of rule 10 are discretionary
and not mandatory.

Difference between Set-off & Counter-claim

Set-off Counter-claim
It is a statutory defence to a plaintiff’s action. It is substantially a cross action.
It must be for an ascertained sum of money or, if A counter-claim need not be for ascertained sum of money
equitable set-off, arise out of same transaction. neither it should arise out of same transaction.

It is a ground of defence to be plaintiff’s action, a It is a weapon of offence, a sword enabling a defendant to

shield which would afford an answer to plaintiff’s enforce a claim against the plaintiff.
claim in whole or in part.
In legal set-off the amount must be recoverable at the The amount must be recoverable at the date of the written
date of the suit. statement or the cause of action must have arose before the
filing of written statement.

3. The fundamental rules of pleadings. When the amendment of pleading is permissible?

Pleading (Order VI) Meaning:

According to order VI Rule 1, pleading shall mean plaint or written statement.
Plaintiffs pleading is called a plaint while the defendant's pleading is called a Written Statement.

"Pleadings are statements in writing drawn up and filled by each party to a case, stating what his contentions will be at
the trial and giving all such details as his opponent needs to know in order to prepare his case in answer.

In proceedings before a Civil Court pleading may include a petition and reply thereto by the respondent whether in the
form of an affidavit or otherwise.

Object:
The object of pleading is to bring the parties to definite issues and to diminish expense and delay and to prevent
surprises at the hearing.

The object of the rule is threefold. First is to afford the other side intimation regarding the particular facts of the case
so that they may come prepared.
Second is to enable the Court to determine what is really the issue between the parties and Third, to establish
particular causes of action and prevent deviations from them.

References:
The entire law governing the "Pleading" is contained in the provisions of Order 6 (Pleading), Order 7 (Plaint) and
Order 8 (Written Statement) of the Code.

13
Apart from this, some important fundamental procedural matters relating to the practice are the provisions of Order I
(Parties to suit), as to the manner in which a suit should be framed Order II (Frame of suit), as to who should sign the
pleading Order III and Order IV (Institution of suit) and as to taking out of summons and their services Order V.

Fundamental Rules of Pleading:

The general rule regarding the pleadings is as under:
1) Pleading must state facts and not law;
2) Only the material facts must be stated;
3) Pleading should not include the evidence, and
4) The facts stated must be in concise form.

Material Facts: Facts are of two types:

1) Facts probanda: the facts required to be proved (material facts); and
2) Facts probantia: the facts by means of which they are to be proved (particulars or evidence).

It is the fundamental rule of pleading that pleadings must include the material facts and not the facts by means of
which they are to be proved i.e., evidence.

The term material facts has not been defined in the code, but the expression "material facts" has been defined by the
Hon'ble S.C. in Udhav Singh V/s Madhav Rao Scinda AIR 1977 that "all the primary facts which must be proved at
the trial by a party to establish the existence of a cause of action or his defence are material facts."

It means all facts upon which the plaintiffs cause of action or the defendant's defence depends, or all those facts which
must be proved in order to establish the plaintiffs right to relief claimed in the plaint or the defendant defence.”

Striking out Pleading: (Rule 16)

If the pleading is unnecessary, scandalous, frivolous; or vexatious or tends to prejudice, embarrass or delay the fair
trial of the suits or is otherwise an abuse of the process of the Court, the Court may, at any stage of the proceedings,
order to be struck out or amended any matter in it.

Signing (Rule 14) and Verification Rule (15) of Pleadings:

Every pleading shall be signed by the party or by any person duly authorized to sign the same and every pleading shall
be verified at the foot by the party or by one of the parties pleading or by some other person proved to the satisfaction
of the Court to be acquainted with the facts of the case.

The person verifying shall specify what he verifies to his own knowledge and what upon, information received he
believes to be true. The person verifying shall furnish an affidavit in support of his pleading and the verification shall
be signed with date and place at which it was signed.

Amendment of Pleading (Order VI, Rule 17)

As a general rule, material facts and necessary particulars must be stated in the pleadings and the decision cannot be
based on the grounds outside the pleadings. But due to various reasons parties have to amend their pleadings for which
Order VI rule 17 states as under:

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and
on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of
determining the real question in controversy between the parties.

Amendment in the pleading may be with the permission of the Court.

14
Permission to amend when granted:
The rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a general rule, leave to
amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings, where the
amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other
terms to be imposed by the order.

It is submitted that the following observations of Batchelor, J. in the case of Kisandas v. Rachappa Vithoba, lay down
correct law:
"All amendments ought to be allowed which satisfy the two conditions
(a) of not working injustice to the other side, (there is no injustice if the other side can be compensated by costs)
and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties."

It has been held that where the amendment is sought to avoid multiplicity of suits or where the parties in the plaint are
wrongly described or where some properties are omitted from the plaint by inadvertence or where there is a mistake in
the statement of the cause of action or a bona fide omission in making the necessary averments in the plaint or a suit is
brought under a wrong Act the amendment should be allowed.

____________________________________________________________________________________________
Explain with illustrations the circumstances under which leave to amend the pleadings shall be refused

Reference: The Code of Civil Procedure, 1908

Order VI-Pleadings Generally
Rules 17, 18

Leave to amend when refused

Courts have a very wide discretion in the matter of amendment of pleadings. Wider the discretion, the greater is the
possibility of its abuse.

In Ganga Bai v. Vijay Kumar, the Supreme Court observed:

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the
interest of justice, the law of limitation notwithstanding. But the exercise of such far-reaching discretionary powers is
governed by judicial considerations, and wider the discretion, greater ought to be the care and circumspection on the
part of the court."

Generally, in the following cases, leave to amend will be refused by the court:
(1) Leave to amend will be refused where the amendment is not necessary for the purpose of determining the real
question in controversy between the parties. The "real controversy" test is the basic test and it is the primary duty of
the court to decide whether such amendment is necessary to decide the real dispute between the parties. If it is, the
amendment will be allowed; if it is not, the amendment will be refused. Therefore, if the amendment is not necessary
or is merely technical or useless or without any substance, it will be refused.

The leading decision on the point is Edevian v. Cohen' In that case, A's furniture was wrongfully removed by B
and C. A sued B for damages and for judgments against B. A then sued C for damages for the same wrong. After A's
evidence was over, C applied for amendment of written statement by pleading judgment against B as bar to suit
against him. B and C being wrongdoers, the judgment against B precluded A from suing C for the same wrong. The
application was rejected since it was not necessary to decide the real question in controversy between the parties but
enabled C to avail for himself the benefit of the technical rule of law.

15
(2) Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the
fundamental character of the suit or defence.

In Steward v. North Metropolitan Tramways CO., the plaintiff filed a suit for damages against the tramway company
for damages caused by the negligence of the company in allowing the tramway to be in defective condition.

The company denied the allegation of negligence. It was even contended that the company was not the proper party to
be sued.

More than six months after the written statement was filed, the company applied for leave to amend the defence by
adding the plea that under the contract entered into between the company and the local authority the liability to
maintain the roadway in proper condition was of the latter and, therefore, the company was not liable.

At the date of the amendment application, the plaintiff's remedy against the local authority was time-barred. Had the
agreement been pleaded earlier, the plaintiff could have filed a suit even against the local authority. Under the
circumstances, the amendment was refused.

Similarly, where the case of the plaintiff throughout was that the suit property was non-ancestral, and the finding was
recorded that the property was non-ancestral property; the application for an amendment of the plaint alleging that the
property was ancestral cannot be allowed at the appellate stage as it sought to introduce a totally new and inconsistent
case.

Whether or not the proposed amendment changes the character of the suit would depend on the facts and
circumstances of each case considering the nature of the amendment sought.

(3) Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a
legal right accrued in his favour.

One of the classes of cases wherein the amendment may work injustice to the opposite party is where it takes away
from a party a right accrued to him by lapse of time. Therefore, in absence of special circumstances such an
amendment should not be allowed by the court.

The English case on the subject is Weldon v. Neal. In that case, A filed a suit against B for damages for slander.

A thereafter applied for leave to amend the plaint by adding fresh claims in respect of assault and false imprisonment.
At the date of the application, those claims were barred by limitation though they were within the period of limitation
at the date of the suit.

The amendment was refused since the effect of granting it would be to take away from B the legal right (the defence
under the law of limitation) and thus would cause prejudice to him.

The rule, however, is not a universal one and under certain circumstances such an amendment may be allowed by the
court notwithstanding the law of limitation.

The fact that the claim is barred by the law of limitation is but one of the factors to be taken into account by the court
in exercising the discretion as to whether the amendment should be allowed, but it does not affect the power of the
court if the amendment is required in the interests of Justice.

(4) Leave to amend will be refused where the application for amendment is not made in good faith.

16
As a general rule, leave to amend ought not to be granted if the applicant has acted mala fide. Want of bona fides may
be inferred from the circumstances of the case. When there is no substantial ground for the case proposed to be set up
by the amendment, or the object is to defeat or delay the plaintiff's claim, or merely to reagitate the same question and
lead further evidence, the amendment is not granted as not being bona fide.

3. Explain consequences of appearance and non appearance of parties in a suit.

Meaning:-
The Provision of the Code of Civil Procedure are based on a general principle that, as far as possible, no
proceeding in a court of law should be conducted to the detriment of any party in his absence. Order 9 of the Code
enacts the law with regard to the appearance of the parties to the suit and the consequence of their non-appearance. It
is also provides a remedy for setting aside an order of dismissal of the suit as also the setting aside of an ex parte
decree passed against the defendant.

The appearance of parties to the suit

As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are required to attend the
court either in person or by their pleaders on the day which has been fixed in the summons. If the plaintiff or a
defendant, when ordered to appear in person, do not appear before the court and neither show the sufficient cause for
his non-appearance, the court is empowered under Rule 12 of Order IX as follows.
1. If the plaintiff does not appear, dismiss the suit.
2. If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is called for hearing, then the court
is empowered to dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a bar
on filing a fresh suit on the same cause of action as per Rule 4.
The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court that there was sufficient
behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may set aside the order of
dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff

When only the plaintiff appears but the defendant does not appear, then an ex-parte order can be passed against the
defendant. But, the plaintiff has to prove that the summon was served to the defendant. 
If service of the summons is proved then only the court can proceed for an ex-parte against the defendant and the court
may pass a decree in favour of the plaintiff. This provision applies only for the first hearing and not for the subsequent
hearings of the matter and the same has been held in the case of Sangram Singh v. Election Tribunal.
Even while passing an ex-parte order it is the duty of the court to secure the end of justice even in the absence of the
defendant. In the case of Maya Devi v. Lalta Prasad, it has been held by the Supreme Court that -It is the duty of the
court to ensure that statements in the plaint stand proven and the prayers asked before the court are worthy of being
granted. This provision of passing ex parte order cannot be passed when there are more than one defendants in the
case and any of them appears.

Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid down from rule 7-11 of
Order IX. When the defendant appears but there is non-appearance of the plaintiff, then there can be two situations:
1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal of the suit. But, when
the defendant admits completely or any part of the claim made by the plaintiff then the court is empowered to pass a
decree against the defendant on the ground of such admission and for rest of the claim, the suit will be dismissed.
Shamdasani v. Central Bank of India.
Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not be adopted unless the
court gets satisfied that in the interest of justice such dismissal is required.

17
Do the same provision applies to the non-appearance of the plaintiff due to death?
When the plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if such order is
passed it will amount to a nullity

Application to set aside the dismissal

When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can make an application to
set aside the order of dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the
court can set aside the order dismissing the suit and fix a day for the proceeding of the suit. 

Sufficient cause
For considering the sufficient cause of non-appearance of the plaintiff the main point to be considered is whether the
plaintiff really tried to appear on the day which was fixed for hearing or not. When sufficient cause is shown by the
plaintiff for his non-appearance, then it is mandatory for the court to reopen the suit. In absence of sufficient cause, it
is upon the discretion of the court to set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar
v. K.A.P. Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and every case.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to the defendant.
One of the fundamental law of procedural law is that a party must be given a fair opportunity to represent his case.
And, for this, a notice of the legal proceedings initiated against him is obligatory. Therefore, service summons to the
defendant is mandatory and it is a conditional precedent. 
When there is no service of summons or it does not give him sufficient time for effective presentation of the case then
a decree cannot be passed against him
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the defendant then
the suit may be dismissed. But, no dismissal can be made even in the presence of such failure if the defendant appears
on the day of hearing either in person or through his pleader. However, the plaintiff is entitled to file a fresh suit when
the suit is dismissed under this rule. and, if the court is satisfied that there is a reasonable reason behind such failure to
pay costs then the court may set aside the order of dismissal.
When the summon is returned unserved and the plaintiff does not apply for fresh summons for 7 days from which the
summon is returned unserved by the defendant or any of the defendants, then the court can dismiss the suit against the
defendant or such defendants
When the summon was not duly served to the defendant is not proved then the court can direct to issue a fresh
summon to the defendant for service. When the service of the summons is proved before the court but the time
prescribed in the summon is not sufficient for him to answer on the day which has been fixed, then the hearing can be
postponed by the court to a future date and notice will be given to the defendant.

Ex-parte Decree
When the defendant is absent on the day of the hearing as fixed in the summon an ex-parte decree can be passed. The
ex-parte order is passed when the plaintiff appears before the court on the day of the hearing but the defendant does
not even after the summon has been duly served. The court can hear the suit ex-parte and give ex-parte decree against
the defendant.
An ex-parte decree is a valid one and it is not null and void but can be merely voidable unless it is annulled on a legal
and valid ground. An ex-parte can be enforced like a bi-parte decree and it has all the forces as a valid decree

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are available to him.
1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed by the
court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision under section 115 of
the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.

18
Setting aside an ex-parte decree
For setting aside an ex-parte decree an application may be made by the defendant. An application to set aside decree
can be made to the court passing that decree. There are certain rules to be followed for setting aside an ex-parte decree
and if the defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been passed can
be set aside.
The limitation period for making an application for setting aside an ex-parte decree is of 30 days.
The grounds on which an ex-parte decree can be set aside are:
1. When the summons has not been duly served.
2. Due to any “sufficient cause”, he could not appear on the day of the hearing.
Sufficient Cause
The term sufficient cause has not been defined anywhere but as held in the case of UCO Bank v. Iyengar
Consultancy, it is a question which is determined upon the facts and circumstances of the cases. The test to be applied
for this is whether or not the party actually and honestly intended to be present at the hearing and tried his best to do
so. There are several instances which have been considered as sufficient cause such as late arrival of the train, sickness
of the council, the strike of advocates, death of a relative of party etc. 
The burden of proof that there was a sufficient cause of non-appearance is upon the defendant 

Conclusion
The appearance and non-appearance of parties have an effect on the case and whether it will be carried on for the next
hearing, dismissed or an ex-parte decree will be given. When none of the parties appears then the suit can be
dismissed by the court. The suit is carried on for the next hearing only when both parties appear before the court.
If the plaintiff appears before the court but no defendant appears on the day of hearing then the court may pass an ex-
parte decree against the defendant. The situations when there is non-appearance on the behalf of the plaintiff then the
suit can be dismissed if the defendant denies the claim of the plaintiff and if he admits to any claim the court can pass
an order against him on the ground of his admission.
When any suit is dismissed or an ex-parte order is passed 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 the order of
dismissal or an ex-parte order. During all these procedures the court must keep in mind that nowhere any miscarriage
of justice is done during the dismissal or while passing an ex-parte order.
Bhau Ram v. Janak Singh & Ors.
Order IX Rule 9 does notbar a Suit on a different cause of action but where a Suit is wholly or partly dismissed in
default, the plaintiff cannot bring a fresh Suit in respect of the same cause of action, but may apply for setting aside
the dismissal order and the court being satisfied may set aside the order of dismissal.
In Firdous Omer V. Bankim Chandra Daw, AIR 2006 SC 2759, the Apex Court held that extension of limitation
while considering an application for restoration of a suit must be examined considering as to whether sufficient cause
was there preventing a party to approach the Court within limitation.
__________________________________________________________________________________________
Distinguish between misjoinder and non-joinder of parties

Joinder of parties
The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants.
An act may be done by a single individual and may adversely affect another individual. In that case, the question of
joinder of parties does not arise.
Thus, where A assaults B, the latter may sue A for tort, as it individually affects him. The question of joinder of
parties arises only when an act is done by two or more persons or it affects two or more persons.
Thus, if A assaults Band C, or A and B assault C, the question of joinder of plaintiffs or defendants arises.
(i) Joinder of plaintiffs: Rule 1
Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as plaintiffs if the following
two conditions are satisfied:
(i) the right to relief alleged to exist in each plaintiff arises out of the same act or transaction; and

19
(ii)the case is of such a character that, if such persons brought separate suits, any common questions of law or fact
would arise.
The word "and" between clauses (a) and (b) makes it clear that both the above conditions should be fulfilled,"
The primary object of Rule 1 is to avoid multiplicity of proceedings and unnecessary expenses.
Illustration
A enters into an agreement jointly with B and C to sell 100 tons of oil.
A thereafter refuses to deliver the goods. Here both, Band C, have each of them a right to recover damages from A.
The said right arises out of the same transaction, namely, the breach of agreement; and common questions of law and
fact would also arise. B and C, therefore, may file a suit jointly as plaintiffs against A for damages.
(ii) Joinder of defendants: Rule 3
Rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit as defendants if the
following two conditions are satisfied:
(i) the right to relief alleged to exist against them arises out of the same act or transaction; and
(ii)the case is of such a character that, if separate suits were brought against such persons, any common question of
law or fact would arise."
The word "and" makes it clear that both the conditions are cumulative and not alternative." The underlying object
of Rule 3 is to avoid multiplicity of suits and needless expenses.

Where it appears to the court that any joinder of plaintiffs or defendants may embarrass or delay the trial of the suit, it
may pass an order for separate trials.
Necessary and proper parties
There is an essential distinction between a necessary party and a proper party to a suit. A necessary party is one whose
presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no
effective order can be passed.
A proper party is one in whose absence an effective order can be passed, but whose presence is necessary for a
complete and final decision on the question involved in the proceeding.
" In other words, in absence of a necessary party no decree can be passed, while in absence of a proper party a decree
can be passed so far as it relates to the parties before the court. His presence, however, enables the court to adjudicate
more "effectually and completely"."
Two tests have been laid down for determining the question whether a particular party is a necessary party to a
proceeding:
(i) There must be a right to some relief against such party in respect of the matter involved in the proceeding in
question; and
(ii) It should not be possible to pass an effective decree in absence of such a party.
Thus, in a suit for partition, all sharers are necessary parties.
Similarly, a purchaser of property in a public-auction is a necessary party to the suit for a declaration to set aside the
said public-auction.
Likewise, in an action against selection and appointment by an authority, candidates who are selected and appointed
are directly affected and, therefore, they are necessary parties.
On the other hand, a subtenant is only a proper party in a suit for possession by the landlord against his tenant.
So also, grandsons are proper parties to a suit for partition by sons against their father.
Likewise, a local authority for whose benefit land is sought to be acquired by the Government is a proper party in land
acquisition proceedings.
It may, however, be noted that where several persons are interested in a suit, it is not always necessary that all of them
should be joined as plaintiffs or defendants.
(e) Non-joinder or misjoinder of parties: Rule 9

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Where a person, who is a necessary or proper party to a suit has not been joined as a party to the suit, it is a case of
non-joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit and they are neither
necessary nor proper parties, it is a case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non-joinder or misjoinder of parties."
However, this rule does not apply in case of non-joinder of a necessary party."
If the person who is likely to be affected by the decree is not joined as a party in the suit or appeal, the suit or appeal is
liable to be dismissed on that ground alone.
But in B. Prabhakar Rao v. State of A.P., where all the affected persons had not been joined as parties to the petition,
and some of them only were joined, the Supreme Court took the view that the interests of the persons who were not
joined as parties were identical with those persons who were before the court and were sufficiently and well
represented and, therefore, the petition was not liable to be dismissed on that ground.
Similarly, no decree or order under Section 47 of the Code can be reversed or substantially varied in appeal, inter alia,
on account of any misjoinder or non-joinder of parties, not affecting the merits of the case or the jurisdiction of the
court, provided that such party is not a necessary party."
(f) Objections as to non-joinder or misjoinder of parties: Rule 13
All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest opportunity,
otherwise they will be deemed to have been waived.
But if the objection as to non-joinder of necessary party has been taken by the defendant at the earliest stage and the
plaintiff declines to add the necessary party, he cannot subsequently be allowed in appeal to rectify the error by
applying for amendment.
In Krishna v. Narsingh Rao1 , that only pre-condition arise as to joined in one suit as a plaintiffs if the
common question of law or fact arose between the plaintiffs.
For instance, A publishes a series of book under the title Oxford and Cambridge Publication so as to induce
the belief that books are the publication of Oxford and Cambridge University or either of them. Whether these
two universities may be joined as a plaintiffs or not? The court on this point said that they can be joined
together because both the conditions are satisfied:
1. The right to relief arises out of the same act or transaction.
2. Common question of law or fact will arise in such a case.
7. Execution of Decree (Sections 36 – 74)

Introduction
The litigation consists of three stages, initiation of litigation, adjudication of litigation, and implementation of
litigation. The last stage of litigation, that is the implementation of litigation is known as an execution. Once a decree
or judgment is passed by the court, it is the obligation of the person against whom the judgment is passed (judgment-
debtor), to give effect to the decree so as to enable the decree-holder to enjoy the benefits of the judgment.
By execution, a judgment-debtor is compelled to carry out the mandate of the decree or order. Execution implies
giving effect to an order or judgment of a court of justice. When the decree-holder gets the thing granted to him by
judgment, decree or order, the execution is complete. 

Meaning, Nature and Scope

The term “execution” is not defined in the CPC. The term “execution” means implementing or enforcing or giving
effect to an order or a  judgment passed by the court of justice. In simple words “execution” means the process of
enforcing or giving effect to the decree or judgment of the court, by compelling the judgment-debtor to carry out the
mandate of the decree or order and enable the decree-holder to recover the thing granted to him by judgment. 
Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the decree-holder,   Y
is the judgment-debtor, and the amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to X, as the
decree is passed against him. Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree or order are given in
Section 36 to Section 74 (substantive law) and Order 21 of the code which provides for procedural law.  

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Execution proceedings under CrPC
In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code relating to the
execution of orders and decree and stated that the Code contains elaborate provisions which deal with all questions
regarding executability of a decree in all aspects. 
The Court further observed that numerous provisions of Order 21 take care of various situations providing effective
remedies to judgment-debtors, decree-holders and claimant objectors. In the cases, where provisions are not capable of
giving relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit in the civil
court is the solution.
The Court further explained that the judicial quality of the remedy under Civil Procedure Code is considered to be
superior as compared to other statutes therefore, the judges are expected to do better as they are entrusted with the
administration of justice.

Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate rules provided in Order 21 while
executing a decree. According to Order XXI Rule 10, an application has to be filed in the Court by the decree-holder
if he desires to execute it.
(According to this section, the various modes of execution of a decree are:
 Delivery of any property which is specifically mentioned in the decree;
 Attachment and sale of property;
 Sale without an attachment of property;
 The arrest of the judgment debtor;
 Detention of the judgment debtor;
 Appointment of a receiver.)

Delivery of property
Delivery of property is one of the most famous modes of executing a treaty. According to Order XXI Rule 79, it is
said that when the property that is sold is a movable property of which actual seizure has been made, it shall be
delivered to the purchaser. Rule 35 of the Order XXI discusses the rules regarding the decree of immovable property.
According to this rule,
 When the decree is for the delivery of immovable property, the property can be delivered to the person to
whom it has been adjudged or to the representative of that person;
 This delivery has to be made after removing any person bound by the decree who refuses to vacate the
property;
 When the decree is for the joint possession of the immovable property, the possession shall be delivered
after affixing the copy of the warrant in a place that is visible;
 When the person in possession is not providing free access to the property, then the Court can remove or
open any lock or bolt or break open any door or do any other act necessary for putting the decree-holder in
possession after giving proper warning to the women in that property.

Attachment and sale of property

Section 60 of the Code of Civil Procedure provides the list of properties which are liable to attachment and sale in
execution of the decree. The list which is liable to be attached for enforcement of decree according to this Section is:
 Land;
 Houses or other buildings;
 Goods and Money;
 Banknotes and cheques;
 Bill of exchanges and promissory notes;
 Hundis;
 Government Securities, bonds and other securities for money;
 Debts; 
 Shares in the corporation;
 All other saleable property that belongs to the judgment-debtor which can be movable or immovable.

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Section 61 of the Code of Civil Procedure provides a partial exemption of agricultural produce.
Order XXI, Rule 3 of the Code of Civil Procedure provides that if the immovable property is located in more than the
local limits of the jurisdiction of one or more courts, then one of the Court can sell and attach the property. According
to Order XXI, Rule 13, there has to be certain information in the application for attachment of immovable property.
According to Order XXI, Rule 31, the decree for the specific movable property can be executed by:
 Seizure of the property if it is practicable;
 Delivery of the property to the person whom it has been adjudged;
 The detention of judgment-debtor in the civil prison.
Rule 41 of the Order XXI provides power to provide orders to the Court to examine the property of judgment debtor.
The court may provide orders to the judgment debtor or officers in the case of firms to submit the relevant books and
documents for examination. The value of the property is assessed in order to examine whether it would be sufficient
for satisfying the decree. The judgment debtor, the officer in the case of corporations and any other relevant person
can be orally examined. According to Section 64 of the Code of Civil Procedure, any private alienation or transfer of
property after the attachment, then the transfer would be considered as void. Section 74 of the Code of Civil Procedure
provides power to arrest the judgment-debtor if they have obstructed or restricted the decree-holder from obtaining
possession of any immovable property. The judgment debtor can be detained in prison for thirty days by the order of
the Court.

Arrest and detention

Section 55 of the Code of Civil Procedure deals with various rules regarding the arrest and detention. According to
this Section,
 The judgment-debtor can be arrested at any time of the day and can be brought before the Court.
 The detention of the Judgment debtor should be in civil prison.
 No officer can enter the dwelling-house after sunset and before sunrise for making an arrest.
 The officer should release the judgment debtor once the amount is paid.
Rule 37 of the Order XXI in the Code of Civil Procedure provides discretionary power to the judgment debtor to show
cause against detention in prison. According to this rule:
 Where the application is made for the execution of the decree for the payment of money by the arrest and
detention of a judgment-debtor in the civil prison, then the Court provides an opportunity to the judgment
debtor to show cause why he should not be sent to the civil prison.
 The Court provides notice to the judgment debtor to appear before the court on a specified date and
provide show cause.
 The Court will also not provide the notice in certain situations, for example, if the court feels it would
delay the process of execution or the judgment debtor might abscond within that time.
According to Rule 38, the warrant for the arrest of the judgment debtor will direct the officer authorised for execution
to produce him in the Court within a reasonable time. Rule 39 of Order XXI is an important provision that deals with
the subsistence allowance. The decree-holder has to pay a certain sum that is fixed by the Court for the maintenance of
the judgment debtor in the civil prison from the time of his arrest until he can be brought before the Court. No
judgment debtor can be arrested if the decree-holder has not paid the subsistence allowance. Section 56 of the Code of
Civil Procedure provides protection to women and according to this Section, women cannot be arrested in the
execution of the decree for money. The scale for the monthly allowance is fixed under Section 57 of the Code of Civil
Procedure or else Court can fix an amount that it thinks is sufficient. The payment has to be made in advance to the
authorized officer in the beginning and the officer of prison in the later stage. The sums disbursed by the decree-holder
for the subsistence of the judgment-debtor in the civil prison and it shall be deemed to be costs in the suit.  Rule
40 provides various proceedings that have to be followed after the appearance of judgment debtor after providing the
notice. Section 58 of the Code of Civil Procedure deals with the rules regarding the detention and release. According
to this section, the judgment-debtor can be detained in the civil  prison:
 For a period not exceeding three months- When the decree amount is more than a thousand rupees;
 For a period not exceeding six weeks- When the decree amount is for the payment of a sum of money
exceeding five hundred rupees, but not exceeding one thousand rupees.
Section 59 of the Code of Civil procedure provides the judgment debtor can be released on the grounds of illness. 

Appointment of receiver

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Order XL of the Code of Civil Procedures contains various provisions relating to the appointment of a receiver. The
Court will also fix appropriate remuneration for the services provided by the receiver. The Court can appoint an
impartial person known as a receiver before or after the decree for:
 Management and protection of the property; 
 The collection of the rents and profits;
 The application and disposal of rents and profits;
 The execution of documents;
 The Court also provides other powers than the above-mentioned power if it thinks fit.
There are various duties of a receiver that is provided in this Order like:
 Furnishing any security asked by the Court;
 Submission of  accounts at periods that he is appointed and in such form as the Court directs;
 Being responsible for any loss that has occurred to the property by the wilful default or gross negligence of
the receiver;
 Paying the amount due to him as the Court directs.
The Court can also sometimes attach and sell the property of the receiver in order to recover the loss occurred because
of him and can give the remaining amount to the receiver after compensating the loss. The Collector can also be
appointed as a receiver when the property is land that is paying revenue to the Government or the land in which the
revenue has been assigned or redeemed, the Court can appoint a Collector as the receiver with their consent.

Partition
Rule 18 of the Order XX of the Code of Civil Procedure deals with the decree in the suit for partition of property.
When the Court passes the decree for partition of any movable or immovable property and if there is any difficulty in
partition the Court can pass a preliminary decree which clearly demarcates the different rights of the property. When
the decree of partition relates to the estate assessed to the payment of revenue to the Government, the partition can be
made by the Collector or any other gazetted officer who is subordinate to the Collector and the gazetted officer has to
be appointed by the Collector themselves.

Cross-decrees and cross-claims

Rule 18 of the Order XXI provides rules regarding the execution in cases of cross-decrees. The application of cross
decrees can be executed by the Court at the same time when the applications are made to a Court in separate suits for
the payment of two sums of money passed between the same parties in various situations; like, if the two sums are
equal, then the satisfaction shall be entered upon both decrees. There are also situations if the two sums are unequal
then it can be executed only by the holder of the decree for the larger sum and for the amount which remains after
deducting the smaller sum. This cannot be applied when the decree-holder in one of the suits is the judgment-debtor in
the other and each party files the same character in both the suits. For example, if A holds a decree against B for Rs.
1,000. B holds a decree against A for the payment of Rs. 1,000 in that case then the decree can be executed at the
same time and can be satisfied as the amount is equal.
Rule 19 of the Order XXI provides rules regarding the execution in cases of cross-claims. It is considered as a cross-
claim when the application is made to a Court for the execution of a decree under which two parties are entitled to
recover sums of money from each other. There can be satisfied when the amount is equal or if the amount is unequal
execution may be only carried out with the person entitled to the higher claim.

Payment of money
Order XXI Rule 1 provides the various methods of paying the money under the decree. According to this rule:
 The money can be paid by deposit into the Court who is competent to execute the decree;
 The money can be sent to the Court by money order or by bank deposit;
 The money can also be paid outside the Court to the decree-holder by the method decided before in
writing;
 The Court can also direct other methods in the decree.
If the money has been paid by postal money order or through a bank, there are various details that have to be
mentioned like the number of the original suits, the details of the parties; like, their name, how the money remitted is
to be adjusted and name and address of the payer. Order XXI Rule 2 provides various rules relating to decree-
holder payment out of Court. The Judgment-debtor has to inform the Court about any payments that are made outside
the Court. Rule 30 provides that the decree for payment of money can be executed by the detention of judgment-
debtor in prison or by attachment and sale of his property. Rule 32 of the Order XXI provides ways to enforce the

24
decree for specific performance of a contract. The decree for specific performance of a contract if wilfully disobeyed
by any parties can be enforced by the detention of judgment-debtor in the civil prison, or by the attachment of
property of the judgment debtor, or by both methods. The same procedure has to be followed for the cross-decrees and
cross-claims in the mortgage suits.

Injunction
Rule 32 of the Order XXI provides ways to enforce the decree for an injunction. The decree can be executed by the
detention of judgment holders in the civil prison or by attachment of property, sometimes both of the processes are
carried out to enforce the decree for an injunction. This procedure has to be followed if the person willfully disobeys
the decree.

Restitution of conjugal rights

 Rule 32 of the Order XXI provides ways to enforce the decree for restitution of conjugal rights. The decree
for restitution of conjugal rights if wilfully disobeyed by any parties can be enforced by attachment of the
property. 
 Rule 33 of the Order XXI  deals with the execution of conjugal rights against the husband and according to
this rule, the judgment debtor has to make periodical payments to the decree-holder if the decree is not
obeyed within a specified time. The Court can modify the rules regarding the periodic payments from time
to time and in certain situations, it can also suspend the payment. Any money ordered to be paid under this
rule may be recovered as though it were payable under a decree for the payment of money.

Execution of document
Rule 34 of the Order XXI deals with the various procedures that have to be followed for the execution of the
document. According to this rule,
 When the judgment debtor disobeys the decree of execution of documents, the decree-holder has to
prepare a draft of the document and has to present it before the Court;
 The Court will present the draft to judgment debtor for him to raise any objects if any present and also
Court will fix a particular time within which the judgment debtor can make his objection;
 The Court shall make orders to approve or alter the draft after receiving objections from the judgment
holder;
 The decree-holder shall deliver a copy of the draft to the Court after making any alterations as the Court
may have directed upon the proper stamp-paper if a stamp is required by the law for the time being in
force; 
 The Judge or such officer as may be appointed in this behalf shall execute the document so delivered;
 The Court or officer authorized by the Court has to register the document if the registration of the
document is required by the law. If the registration is not required but still the decree-holder wishes to
register the document the Court has to make necessary orders;
 The Court may make orders regarding the expenses of the registration.

Endorsement of the negotiable instrument

Rule 51 deals with the endorsement of a negotiable instrument. According to this rule, the attachment of the
negotiable instrument can be completed by the actual seizure of the instrument if it is not deposited in a Court and it is
not in the custody of a public officer. The negotiable instrument should be brought into Court and is kept in the
custody of Court until further orders of the Court.

Attachment of rent, mesne profits, etc.

According to Rule 42, where a decree directs for an inquiry regarding the rent or mesne profits or any other matter,
then the property of the judgment-debtor may be attached for the amount due similar to the case of an ordinary decree
for the payment of money.

Attachment of debt, share and other property that is not in possession of Judgment debtor
The attachment of the debt that is not in the possession of the judgment debtor can be made by a written order
prohibiting:

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  In the case of the debt, the credit or from recovering the debt and the debtor is prohibited from making
payment  until the further order of the Court; 
 In the case of the share, the person in whose name the share can be prohibited from transferring the same
or receiving any dividend; 
 In the case of the other movable property, the person in possession is prohibited to give the same from
giving it over to the judgment-debtor.

Liability of surety
Section 145 of the Code of Civil Procedure provides rules regarding the enforcement of liability of surety. According
to this Section, any person who has provided security or has given a guarantee for the performance of the decree or
any part of the decree, for the restitution of any property that is taken in execution of the decree and for payment of
any money in the decree is considered as the surety. The surety is liable in the same manner as he is personally liable
and his property that is attached can also be sold for recovering the loss of decree-holder. The surety is also considered
as a party to the suit according to Section 47 of the Code of Civil Procedure.

Enforcement of decree against the legal representative

Section 52 of the Code of Civil Procedure deals with the enforcement of decree against the legal representative. The
legal representative of a deceased can also be considered as a party in certain situations. According to this Section,
when the decree is for the payment of money out of the property of the deceased, it may be executed by the
attachment and sale of any such property. Section 53 of the Code of Civil Procedure deals with the liability of the
ancestral property. According to this Section, the ancestral property in respect of which the decree is passed is
considered as the property of the deceased if it is in possession with the son or any other descendant who is
responsible for payment of debt under the Hindu law.

Decree against corporation

According to Rule 76, where the property to be sold is a negotiable instrument or a share in a corporation, the Court
instead of providing directions for the sale to be made in public auction can authorize a broker to sell such an
instrument or share. Rule 32(2) of the Order XXI provides that the decree of injunction or specific performance passed
against the corporation, then the decree may be enforced by the attachment of the property of the corporation or by the
detention of the directors or important officers of the corporation in the civil prison.

Decree against firm

Rule 50 provides various provisions relating to the execution of a decree against the firm. According to this rule,
When the decree is granted against a firm the execution may be granted against,
 Any property of the partnership;
 Against any person who is adjudged to be the partner of the firm;
 Any person who is considered as a partner and is individually served with the summons and has failed to
appear.

Attachment of decree
Rule 53 of Order XXI deals with the attachment of a decree. According to this rule when the property to be attached is
a decree, then the attachment can be made by the order of Court which passed the decree. There are certain situations
when the decree is passed by other Court and the order is sent to another Court for enforcement then the court which
passes the decree has to provide a notice to the latter Court. The Court after the application of the decree-holder
sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule
shall give notice to the judgment-debtor who is bound by the decree that is attached.

Payment of icons or currency notes

Rule 56 of Order XXI of the Code of Civil Procedure deals with the provisions where the property attached is current
coin or currency notes, the Court at any time during the continuance of the attachment, can direct that such coin or
notes, or a part thereof if it is sufficient to satisfy the decree, to be paid over to the party entitled under the decree.

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Conclusion
It clearly appears from the above discussion, that execution means implementing or enforcing or giving effect to an
order or a  judgment passed by the court of justice. The provisions contained in Order 21 covers different types of
situation and provide effective remedies to the judgment-debtors, claimant objectors and third parties apart from the
decree-holder.
The Code takes care of the rights of judgment-debtors too. Various modes of execution of a decree are also provided
by the Code which includes arrest, detention of the judgment-debtor, delivery of possession, attachment of the
property, by sale, partition, the appointment of receiver and payment of money etc. Thus, the provisions are rendered
effective or capable of giving relief to an aggrieved party.
G Prabhat Bhai natha Bhai VS Pandya Arvind Kumar Ambalal it has been decided that the judgment debtor can
be arrested and put in prison only if it is shown by the decree-holder that 
The judgment debtor has sufficient resources to make the payment, but He does not want to pay
But if payment is made by judgment debtor including all expenses then he will be released. 

8.Attachment of Property

Introduction
A civil suit is instituted against an individual who causes some kind of harm or wrongful act to the plaintiff. Usually,
in a civil suit compensation is awarded to the complainant, the person who suffered harm because of the action of the
defendant. Hence, a civil lawsuit can be brought over a residential eviction after a broken lease, a contract dispute,
injuries caused due to car accidents, or countless other harms or disputes. The main objective of instituting a civil suit
is to compensate for the harm caused to the aggrieved, unlike the criminal suit which emphasizes punishment for the
wrongdoer.
There are three stages of every civil suit. It starts with the institution of a suit, adjudication of a suit and finally the
implementation of a suit. The implementation of the suit is a step in which the results of the adjudication are put into
action, hence this stage is known as execution. In this process, the order or judgement passed by the court is enforced
or given effect. It is the enforcement of the decree and gives the benefit to the decree-holder in whose favour the
decree has been passed. Section 38 of CPC states as to who can execute the decree. A decree may be executed either
by the court which passed it, or by the Court to which it is sent for execution. Section 37 gives further explanation of
certain expressions. In a proceeding for the arrest of Judgment Debtor, if the Decree Holder satisfies the Court that the
Judgment Debtor has sufficient means to satisfy the decree, the Court cannot refuse to order arrest, on the ground that
there is an alternative remedy of attachment available to the Decree Holder for realization of the decretal amount.

The Code of Civil Procedure, 1908 provides various modes of execution of a decree subject to some conditions and
limitations. 
Section 51 of CPC provides the following modes of execution of decrees subject to such conditions and limitations as
may be prescribed.
(a) By delivery of any property specifically decreed;
(b) By attachment and sale or by the sale without attachment of any property;
(c) By arrest and detention in prison for such period not exceeding the period;
(d) In such other manner as the nature of the relief granted may require.
Attachment of property is one of the modes of execution applied by the court of justice. An executing court is
competent to attach the property if it is situated within the jurisdiction of the court. The place where a judgement
debtor carries out his business is not relevant.

Nature, Scope and Objective

Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree, the court may require a
person(defendant) to pay an amount to the decree-holder. In cases where the defendant fails to pay the required sum,
the court can, in the execution of its decree, attach the movable and immovable property of the defendant and recover
the amount which is due by the disposal of these assets. However, there are some assets which cannot be attached to
recover the due amount.

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This article goes through various modes adopted by courts in executing a decree in a suit with special emphasis on
“Attachment of property”. It also examines the various provisions relating to attachment in the Code.

Property which can be attached

Attachment is a legal term which refers to the action of seizing property in anticipation of a favourable ruling for a
plaintiff who claims to owed money by the defendant. Decree Holder is Dominus litis(person to whom the suit
belongs) and he h.as the right to choose the mode of execution from those available to him. Neither the Court nor the
Judgement debtor can force or persuade him to choose a particular mode of execution. This can be referred from the
case V. Dharmavenamma v. C. Subrahmanyam Mandadi.
In the process of attachment, the court at the request of the decree-holder designates specific property owned by the
debtor to be transferred to the creditor or sold for the benefit of the creditor. Sections 60 to Section 64 and Rules 41-57
of Order 21 of CPC 1908, deals with the matter of attachment of property.
Section 60 CPC,1908 describes the property which can and cannot be attached while execution. Several types of
property are liable for attachment and sale in execution of a decree like lands, houses or other buildings, goods,
money, banknotes, checks, bills of exchange, hundis, government securities, bonds or other securities etc., and things
on which he has a disposing power. There is express mention of particulars which shall not be liable for attachment or
sale. The decree as mentioned in this section is only a money decree and it does not include a mortgage decree.
Therefore, it is important that the property not only belongs to the judgement-debtor but also he has disposing power
on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the JUdgement-debtor was liable to be sold for
execution of the decree as his contention of agricultural produce was declined. 
Section 61 grants partial exemption to agricultural produce- The state Government may by general or special order
published in the Official Gazette declare any piece of agricultural land for the purpose until next harvest season for the
due cultivation of land and support of the Judgement-debtor and his family, exempt that property from being attached
or sold in execution of the decree.
Section 62 talks about seizure of property in case of dwelling house. No person executing under the code will enter the
premises of a dwelling house after sunset and before sunrise. No door of such dwelling house can be broken without
the knowledge of the Judgement-debtor. Where a woman resides in such house and she is not allowed to appear in
public. The person executing has to give her a notice to be at liberty to withdraw and also reasonable time to do the
same. Once she withdraws he has the power to enter the premises.
Section 63 says that where the property attached in execution of decree is going on in several courts then the final
decision of the court of higher grade prevails and where the court are at same grades then the court where the case of
attachment came first will hold a higher value.

Property which cannot be attached

Some kind of property which cannot be attached and sold in execution of a decree is expressly mentioned in  Section
60 of the Code of Civil Procedure. Particulars like wearing apparel, cooking vessels, beds, tools of artisans, books of
accounts, any right of personal service, wife and children, stipends and gratuities allowed to pensioners of the
Government etc. and many more.

Modes of attachment
Rule 43 to Rule 54 of Order 21 lays down a proper procedure for attachment for movable and immovable property.
Order XXI Rule 54- The modes of procedure for attachment of immovable property initiates or starts with issuing a
prohibitory order to the debtor and the public generally, this order will prevent the judgment-debtor from transferring
the property to himself or anyone else or charging it. The judgment debtor shall attend the court on the date decided
for deciding the terms of the proclamation of sale. Normally for immovable property, two copies of prohibitory orders
are sufficient. But where the land is such that the revenue accrued from it is paid to the government, three copies of
prohibitory order is prepared. In order to make the attachment lawful, the particulars given in the schedule attached
with the order should be matched to be exactly the same with the details given in the schedules of the property given
in warrant.
Furthermore, the warrant and the prohibitory orders along with the copies shall be submitted to the Nazir. The Nazir
will then endorse the warrant and return it within a defined time before the Court. Where any person delegated by the
Nazir completes the above-mentioned work of attachment of property, a separate document stating how the day and
hour at which he did such an act has to be properly attached.

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Warrant of Attachment of Land.Drum Beating charges- Any customary or usual practice will be carried out for
proclamation of the order, and the copy of it will be affixed on a conspicuous part of the property as well as on the
court. After this, the reader has to record a note stating the fact that all the required formalities dictated by law to be
followed have been complied with. The presiding officer will then take charge of ensuring its truthfulness. The court
also has the obligation to make sure that all the requirements or formalities for a legal attachment have complied with
in order to prevent any sort of material irregularity as it might cause serious trouble and loss to the parties. The civil
courts should also apply proper caution and care in the process of service of warrants of attachment before they take
any action concerning the property.
When the property is movable property, which is not agricultural produce, then the attaching officer can seize the
property and keep it in his custody. But on the other hand if the property seized is of a perishable nature or the cost of
keeping it is likely to exceed its value the attaching officer can sell it immediately. If the attachment officer fails to sell
such property by applying every means, he can at the instance of judgment-debtor or decree-holder or anyone having
an interest in such property leave it in the custody of a respectable person in the village or place where it has been
attached. The custodian will later be can be made liable for the inability to produce such property before the court, or
for any loss or damage caused to it.
When the property is agricultural produce, a copy of the warrant of attachment can be affixed on the land on which
such crops are grown, or where the produce has been cut or gathered, or on the threshing treading floor or fodder-
stack.
Where the property to be attached is a negotiable interest which is not within the custody of a public officer, or
deposited in the court, the process of attachment can be carried out through actual seizure.

Precept
The dictionary meaning of the word Precept is “ a general rule intended to regulate behaviour”, a writ or a command.
According to Section 46 Attachment can be made under percept, under which an interim attachment is provided to the
decree-holder. The sections provided that the court which passed the order may on the request of the decree-holder,
issue a precept to the court within whose jurisdiction the property of the judgement-debtor is lying to be attached to
any property specified in the precept.
Thus, a precept aims at preventing alienation of property of the judgement-debtor not located within the jurisdiction of
the court which passed the decree.

Garnishee order
Rule 46-A to 46-I of Order 21 outlines the procedure in case of garnishee orders. In a Garnishee order, the decree-
holder seeks to reach money or property of the Judgement-debtor in the hands of a third party(another person). Then
the third party may be ordered by the court to pay the judgement creditor the debt from him to the judgement-debtor.
This type of exchange is valid.
A Garnishee is a person who is the debtor of judgement-debtor. He is that person who is under an obligation to pay his
debt to judgement-debtor or to deliver any movable property to him. “Garnishor” is the one in whose favour the
decree is passed i.e., decree-holder (judgement- creditor). He is the person who brings such proceedings to reach
judgement’s debtor money or property held by a third party. A garnishee order helps the debt due by the debtor of the
judgement-debtor to be available to the decree-holder without involving him in the suit.

Determination of attachment
Determination means the status of the attachment at a particular time. In times of cases where the property has been
attached but later on the court passes an order dismissing such an execution, the court will direct the status of the
attachment, i.e, whether the attachment will continue or discontinue to exist. If then the court fails to give clear
direction it is considered implied that the attachment has been ceased.
Order XXI Rules 55-38 explains the circumstances under which the attachment is determined under the Code. 
1. Where the decretal amount is paid or is satisfied;
2. Where the decree is reversed or set aside;
3. Where the court highlights an objection against the attachment and makes an order for releasing the
property; 
4. Where after the attachment the application for execution is dismissed;
5. Where the judgment holder withdraws the attachment;
6. Where the decree-holder fails to do what he was required to do under the decree;

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 7. Where the suit of the plaintiff is dismissed;
8. Where the attachment is ordered before the judgement and the defendant furnishes necessary security;
9. Where there is an agreement or compromise made between the parties;
10. Where the creditor abandons the attachment.

Private alienation of property after attachment

Section 64(1) states that a private alienation of property made after the attachment is void as against the claims
enforceable under the attachment. Section 64(2) says clarifies that this section is not applicable in case of transfer of
property in pursuance of a contract entered into before the attachment. This provision is inserted in the Code to stop
any kind of fraud on decree-holders and to keep the interests of the judgement-creditors who are entitled to be
satisfied out of the assets of the judgement-debtor. This provision in a way interferes with the rights of the owner in
alienating his property and hence is construed strictly. However, since it is for the benefit of the creditor he can waive
this benefit. A private transfer here means a voluntary transfer like sale, lease, gift, mortgage etc. the transfer directed
by the court is not included in private transfer. Therefore a private transfer in contravention of Section 64 is not
wholly void against all other transactions bit is void only against the claims enforceable under the attachment and only
to the extent necessary to meet those claims.

Conclusion
In a civil suit, the decree-holder has the benefit of deciding the mode of execution of a decree passed by the court as
against the judgement-debtor. The judgement-creditor can choose from the various provisions mentioned in the Code.
He cannot be forced or persuaded to choose a particular mode by the court or any other person. Attachment is the first
step in the process of execution and sale of the property will be carried out after the process of attachment. Sometimes,
the sale can be proceeded with, without an attachment of the property as well. This does not make the sale irregular in
nature. But naturally, the correct procedure to be followed is attachment followed by the sale of the property.
Attachment of Property, being one of the modes of execution of a decree recognises the right of the decree-holder.
Various amendments have been carried out in the Code to protect the interest of both Judgement-debtor and
judgement-creditor.
8. Sale of immovable property for execution of a decree

Read from Rega 145

3. What is the effect of setting aside a sale of immovable property?

Where a sale of immovable property is set aside under 92, the purchaser shall be entitled to an order for repayment of
his purchase-money, with or without interest as the Court may direct, against any person to whom it has been paid. An
application under this rule can be filed within three years from the date of the order setting aside the sale.
4. Who may apply for setting aside of a sale?
Under Order XXI , Rule 90, the only persons that may apply for setting aside the sale are:
 the decree-holder
 the purchaser
 any other person entitled to share in a ratable distribution of assests under Section 73; and
 any person whose interests are affected by the sale. This includes the judgment-debtor, the legal
representative of a judgent debtor and a purchaser from the judgment-debtor pendente lite. Etc.

9. Ex-parte remedies & Grounds:

Remedies Against Ex Parte Decree
1. An Application Under Order 9, Rule 13,
Order 9 Rule 13 states that while setting aside ex-parte decree, the defendant may apply to the Court by which
the decree was passed for an order to set it aside and if the Court is satisfied that the summons were not duly
served, or that he was prevented by any sufficient means from appearing when the suit was called on for
hearing, the Court may make such order setting aside the decree against him as it thinks fit, and shall appoint a
day for proceeding with the suit, provided that the decree was of such a nature that it could not be set aside as
against such defendant but it may be set aside as against all or any of the other defendants also.
 

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 2. Appeal Under Section 96
Section 96-Appeal from original decree
(2) An appeal may lie from an original decree passed ex parte
Unless expressly provided, appeal lies from any decree passed by the court. In cases, where the value of suit
does not exceed Rs.10, 000 appeal can only be filed on question of law. When a decree has been passed
against the Defendant as Ex-Parte appeal lies. In cases headed by two or more judges, the majority decision
shall prevail. In case there is no majority, then the decree of lower court shall be confirmed.
 
3. A Review Application Under Section 114 of C.P.C.
Section 114 states that-
Review- Subject as aforesaid, any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been
preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the
Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.
Section 114 basically 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 Section 114 of the code in terms whereof it is empowered to make such order
as it thinks fit[2]

In another case Kaptur Agro Forest Enterprises V. Union Of India[3] were the question regarding the concession in
respect of and overhead charged was concluded in the earlier writ petition by the allotters and the special leave
petition in a special leave petiole by supreme court also dismissed.

Grounds
Order 9, Rule 13 prescribes two grounds for setting aside an ex-parte decree.
 That the summons was not duly served, or
 That the defendant was prevented by sufficient cause from appearing when the case was called on for hearing.
If either of these conditions is satisfied, the court must set aside the decree and where these conditions are not satisfied
the decree cannot be set aside.

This question has to be decided on the basis of evidence or affidavits:

 Summons not duly served
Prior to proceedings ex parte, a court must record a declaration of due service under Order 5 rule 19 (Issue and
Service of Summons, Examination of serving officer), this is mandatory. Where there is nothing to show due
compliance with rules 13 (Service on agent by whom defendant carries on business) and 20 (Substituted
service) of Order 5, the decree should be set aside. Where the summons has not been duly served, the ensuing
proceedings will be a nullity.

Due service refers to service which effectively brings the claim to the knowledge of the defendant and is
effected in accordance with the provisions of the code relating to service of summons and in time for the
defendant to attend and at the proper address.

By virtue of the proviso, an ex parte decree will not be set aside on the ground of irregularity in the service of
summons, when the court for reasons to be recorded, is satisfied, that notwithstanding such irregularity, the
defendant had knowledge in sufficient time to appear on that date and answer the claim.
 
 Sufficient cause
Where sufficient cause is shown, the decree shall have to be set aside. The term ‘sufficient cause’ is not
susceptible of an exact definition and no hard and fast rule can be laid down to cover all possible cases and
each case is to be judged upon its particular circumstances, and where non-appearance is not intentional, a
strict view should not be taken to put a party out of court. The term sufficient cause means beyond the control

31
 of a party and cannot include cases of extreme negligence.
 
 Upon such terms as to costs; etc.
The rule gives a wide discretion to the court in the matter of imposing conditions upon ordering the setting
aside of an ex parte decree. A court can make an order of restoration subject to fulfillment of conditions, but it
should clearly specify the consequences of non-fulfillment of conditions. The court can also extend the time
for fulfillment of the conditions.
 
 Effect of setting aside
Upon setting aside of an ex parte decree, the status quo ante is restored and the trial commences de nova from
the stage at which the proceedings were taken ex parte. However, where the decree is set aside on the ground
that the claim is fraudulent, the suit cannot be restored and tried.
 
 Dismissal of setting aside application
In appropriate cases restoration can be made u/s 151. An appeal may lie against the dismissal of the
application in default.
 
 Limitation
An application under Order 9 rule 13 must in accordance with the bounds of Art. 164 of the Limitation Act
1908 be made within 30 days of the decree.
 
 Appeal
The following types of orders can be passed under rule 13:
 An order setting aside the decree which is not appealable nor can it be attacked under S. 105.
 An order setting aside the decree on certain terms which is by itself not appealable.
 An order rejecting an application under Order 9 rule 13 is dismissed on merits; it cannot be attacked under S.
105 before the court hearing an appeal against the decree.
 Pending proceedings to set aside the decree, execution can be stayed.
 Revision
An order setting aside an ex parte decree is not a decree. A revision against the order may lie if the conditions
of S. 115 are satisfied, as for instance, where the order is contrary to the provisions of Order rule 13, or where
the court has disposed of the application upon a consideration of the merits of the decree, or has refused to set
aside the decree despite the fact that summons was not duly served or has disposed of the matter on an
erroneous view regarding limitation etc. However, no revision will lie if an alternate remedy is available.

 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.

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.

32
 Thus, a decree may not act as res judicata merely because it was passed ex parte. It therefore acts a res
judicata.

Conclusion:
Where a defendant absents himself from court on date of hearing mentioned in the summons duly served on
him, the court is empowered under Order 9, Rule 6(1)(a) to proceed ex parte and to pass an ex parte decree
against such defendant thereon.
In Great Punjab Agro Industries Ltd. V. Khushian & Ors., (2005) 13 SCC 503, the Supreme Court explained that
if a defendant is residing in Bombay, substituted service by publication in the news papers circulated in Punjab is not a
valid service. An ex-parte decree so passed was set aside.
In the case of Rabindra Singh V. Financial Commissioner, Cooperation Punjab & Ors, (2008) 7 SCC
663, the notice of proceedings was not served upon to the appellant’s address and intentionally sent notice to wrong
address. In such a situation, appellant established his case for setting aside ex-parte decree and appeal was allowed and
exparte decree was set aside.
10. Decree, Judgment and Order under Code of Civil Procedure, 1908

Decree
What is a decree?
A decree as defined under Section 2(2) of Civil Procedure Code, is a formal expression which determines the interest
of both the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Significantly, a decree is
a formal expression of adjudication by which the court determines the rights of parties regarding the matter in a
controversy or a dispute. A set-off or a counterclaim can be obtained on the decree.
A decree shall be deemed to include
 Rejection of a plaint
 Determination of any question under Section 144 of the Act.
The decree might not include
 Any adjudication from which an appeal lies as an appeal from an order
 Any order of dismissal for default
Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs him while B claims
that the said property belongs to him. After hearing all the arguments, the court will rule in the favor of either A or B.
The final decision of the court regarding the above claim i.e. whether the property belongs to A or B, is a decree.
Essential elements of a Decree
Following are the mandatory elements to be fulfilled for the adjudication to be termed as a decree.
1. Formal expression: There must be a formal expression of adjudication. In simple terms 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.
The decree follows the judgement and must be drawn up separately. If a decree has not been drawn up, then there is
absolutely no scope of an appeal from the judgment i.e. No appeal lies against the judgement, if the decree is not
formally drawn upon the judgement.
2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision is of administrative in
nature, then it cannot be considered as a decree. The adjudication must be about any or all of the matters in
controversy in the suit. The court should resolve the matter of controversy through its own, by applying the facts and
circumstances of the case therein.
The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially determined then, it is
not a decree. Also, in Deep Chand v. Land Acquisition Officer, the apex court held that the adjudication should be
made by the officer of the Court, in absence of which it is ought not to be recognized as a decree.
3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint in a civil court.
Without a civil suit there lies no decree. However, there are several specific provisions which enable certain
applications to be treated as suits such as proceedings under the Hindu Marriage Act, the Indian Succession Act,
the Land Acquisition Act, etc. They are regarded as statutory suits and the decision given thereunder are decrees.
In Hansraj Gupta v. Official Liquidators of The Dehra Dun-Missoorie Electric Tramway Co. Ltd., their Lordship of

33
 the Privy Council stated that the word ‘suit’ ordinary means, a civil proceeding instituted by the presentation of a
plaint.”
4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights. Similarly, the parties to
the rights in controversy should be the plaintiffs and defendants and, if an order is passed upon the application made
by a third party who is a stranger to suit then it is not a decree. It must have determined the rights of the parties with
regard to all or any of the matters in controversy in the suit.
An order rejecting the application of a poor plaintiff to waive the 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. Dismissing a suit for default in appearance
of the plaintiff is not a decree. However, dismissing a suit on merits of the case would be a decree.
The disputed matter should be the subject matter of the suit, regarding which the relief is sought. Any question
regarding the status and characters of party suing, the jurisdiction of the court, maintainability of suit or any other
preliminary matter is covered under this subject.
5. Conclusive Determination: The decision must be one which is complete and final as regards the court which
passed it. 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. An interlocutory order which does not finally determine the rights of parties is not considered as a
decree. On the other hand, out of several properties in issue in a suit, the court may make a 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.
The Calcutta High Court in Narayan Chandra v. Pratirodh Sahini, held that the determination should be final and
conclusive regarding the court which passes it.
Types of Decree
The Civil procedure code recognises three kinds of decrees
a) Preliminary decree
b) Final decree
c) Partially preliminary and partially final decree
A. Preliminary Decree
A decree is identified as a preliminary decree when an adjudication decides the rights of parties regarding all or any of
the matter in dispute but it does not dispose of the suit completely. In simple terms, the preliminary decree is passed
when the court is compelled to adjudicate upon a certain matter before proceeding to adjudicate upon the complete
dispute. It is considered to be only a former stage. As held in the case of Mool Chand v. Director, Consolidation, a
preliminary decree is only a stage to work out the rights of parties until the matter is finally decided by the Court and
adjudicated by a final decree.
A preliminary decree can be passed by the court in the following suits as provided by the Code of Civil Procedure,
1908
 Order 20 Rule 12: Suit for possession and Mesne profit
 Order 20 Rule 13: Administration Suits
 Order 20 Rule 14: Suits of pre-emption
 Order 20 Rule 15: Suit filed for dissolution of a partnership
 Order 20 Rule 16: Suits related to accounts between the principal and agent
 Order 20 Rule 18: Suit for partition and separate possession
 Order 34 Rule 2: Suits related to the foreclosure of a mortgage
 Order 34 Rule 4: Suits related to the sale of the mortgaged property
 Order 34 Rule 7: Suits for the redemption of a mortgage
However, in Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in code is not exhaustive and a
court has the right to pass a preliminary decree in cases not expressly provided for, within the code.
Illustration: A files a partition suit against B. During the proceedings, the Court passes a preliminary decree on the
share of A and B. Subsequently, after hearing both the parties and the arguments contended by both, the court passes a
final decree adjudicating upon the said partition.

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 B. Final Decree
A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court passing it is concerned. A
final decree settles all the issues and controversies between the parties to the suit by the court of law. Consideration of
final decree depends on the facts the following facts
 No appeal was filed against the said decree within the prescribed time period.
 The disputed matter in the decree has been decided by the highest court.
 When it completely disposes off the suit.
Primarily, a civil suit contains only one preliminary and one final decrees. However, in Gulusam Bivi v. Ahamadasa
Rowther, the Madras High Court in the light of Order 20 Rule 12 and 18 stated that the code nowhere contemplates
more than one preliminary or final decree. Reinforcing this observation, the Supreme Court in Shankar v.
Chandrakant, finally settled the conflict of opinion and stated that more than one final decree can be passed in a single
suit.
C. Partly preliminary and partly final decree
A decree shall be held as partly preliminary and partly final, when it determines certain disputes but leaves the rest
open for further decision. What is executable is a final decree and the one which is not executable is a preliminary
decree, unless it merges with the final one.
Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court passed a partly preliminary
and partly final decree. So far as final decree is concerned if the court granted possession of the suit property to A; and
it was preliminary as even though mesne profits were awarded. In this case, only the granting of possession of
property to A will be executable; however, preliminary decree will be executable only after the amount due is
determined.
Amendment of Decree
On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure Code, any clerical
errors in the decrees can be changed or corrected by the courts themselves. However, the entitled corrections shall be
only be related to the accidental omission or clerical errors and not any other errors, which may result in gross
negligence. Before the execution of such correction by the courts, it must be satisfied and validly proven that the error
was nothing more than a clerical one or an arithmetical one.
Decree Holder
Under Section 2(3) of the Civil Procedure Code, any person in whose favour a decree or an order capable of execution
has been passed, he/she is referred to as the Decree Holder. Accordingly, any decree passed in favour of a person who
is not even a party to the suit shall also be considered as the Decree holder under the code.

Judgment
What is a Judgment?
Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the grounds of a decree or
an order. It refers to what the judge observes regarding all the issues in matter and the decision on each of the issues.
Hence, every judgment consists of facts, evidence, findings etc. and the conclusion made by the court. In simple
terms, a judgement is the reasoning given by the judge as to why the ‘decree’ was given which explains the legal
reasoning that formed the basis for the decree, along with the citation of the relevant case laws, arguments by the
counsels, and the conclusions reached by the Court. It forms the concluding part of a civil suit and it determines the
rights and liabilities of the parties to the suit.
“Judgment – A Judicial determination putting an end to the action by any award or redress to one party or discharge of
the other as the case may be.”
Rule 3 of Order 20 of the code states that the judgment should be signed and dated by the judge while declaring it in
the open court. It further gives provisions that once signed by the Judge, the Judgment cannot be amended or altered
afterwards, except to correct the clerical or arithmetical errors caused due to accidental slips or omissions, as
mentioned in section 152 of the Code or further during the review.
Essential elements of Judgment
A judgment should possess the essentials of a case, reasoning and basic contention on which it is delivered or the
grounds of the decision.
Judgment of the courts other than that of the Small Causes Court – Rule 4 (2) of Order 20
a) A concise statement of the case
b) The points of determination

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 c) The decision of the court and
d) The reason for such decision by the court
Judgment of the Small Causes Court
a) The points for determination and
b) The decision thereon
Duration in which the judgment has to be pronounced
The court has to pronounce the judgment in an open court after completion of final arguments, either on the same day
or some other day, after giving due notice to parties or their counsel.
Prior to the Amendment of 1976, no such time limit was specified between hearing of arguments and delivery of
judgment. However, because of persistent demands and as per the suggestion of joint committee, it was laid that a
judgment should be delivered within 30 days of the conclusion of the proceedings. Unlike in the case of Anil Rai v.
State of Bihar in which the judgment was pronounced by the High Court after 2 years of the final arguments. The
Supreme Court had strongly deprecated the delay and set the provisions of duration in which the judgment had to be
pronounced. Per contra, there is an exception to this rule in certain extraordinary circumstances, which may extend the
judgment to furthermore 60 days.
Copy of judgment
Copies of judgment shall be made available to the parties immediately after the pronouncement of the judgment for
preferring an appeal on payment of such charges as may be specified by the High Court.
Review of judgment
Review means ‘to examine or to study again’. Thus, the review of judgment is to examine or study again the facts and
judgment of the case. It is the substantive power of review by the court, as specified under Section 114 of the Code.
However, the limitations and conditions for review are provided in Order 47 (Rule 1-9) of the Code. The power to
review is conferred by law, however, the inherent power to review vests alone with the court.
Order 47 of Civil Procedure Code deals with the application for review of the judgment which consist of following
rules: –
Rule 1 – Application for review of judgment
Rule 2 – To whom the application for review has to be made
Rule 3 – Application form for review
Rule 4 – Applications where rejected
Rule 5 – Application for review in the court with more than one judge
Rule 6 – Application where rejected under Rule 5
Rule 7 – Order of rejection not appealable, Objections to order granting application
Rule 8 – Registry of application granted, and order for re-hearing
Rule 9 – Bar of certain application
Grounds for review of Judgment
An application for review can be made on various grounds.
1. When the applicant discovers any new or important evidence which was not known to him/her or due to negligence
not able to provide the evidence while the decree was being passed.
2. When there is an error apparent on the face of the record which is decided judicially on the facts of each case.
However, an application for review cannot be made on the grounds stating an erroneous decision.
3. When any other sufficient grounds have been found which is analogous to those specified in the rules mentioned in
the Code.
4. When a sufficient ground has been established stating the misconception of the court.
Time limit for filing the Review application of Judgment?
As per the Supreme Court Rules, 1966, the Review application shall be filed within the 30 days from the day the
judgment or order passed.
And for appeal against any sentence or judgment in High court, shall be filed within 60 days from the day of
judgment. For the appeal against the death sentence or capital punishment, the limitation period is 30 days from the
passing of order.

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 Grounds for rejection of application for review
An application for review can be rejected on various grounds. A court can reject the review application in the
following circumstances: –
 When the court is satisfied that the application of review is not based on the discovery of new facts, error apparent on
the face of the record or any other sufficient grounds which is analogous to those specified in these rules.
 When the review application has been filed after the expiry of the prescribed time limit for filing of the application
without reasonable excuse.
 When the appeal is already on the reviewed order. There will be no further review of any order or judgment passed on
the review order.
 When the applicant fails to appear before the court on the date fixed for the review without any sufficient reason for
non-appearance.
 When the review application has been made before more than one judge, the decision of majority will be considered.
Judgment Debtor
A person who is liable to pay a debt or damages to the judgment creditor in accordance with a judgment entered by a
court against him, is called Judgment debtor. In simple terms, a person against whom a judgment in respect of
monetary award has been obtained, is regarded as Judgment Debtor. If a court renders a judgment involving money
damages, the losing party must satisfy the amount of the award, which is referred to as judgment debt. Such decision
grants the judgment creditor, the right to recover the debt or award through extraordinary means with the help of the
court.
Section 2 (10) of the Code defines Judgment debtor as any person against whom a decree has been passed or an order
capable of execution has been made.

Order
The term Order has been defined under Section 2(14) of the Code as the formal expression of any decision of a civil
court which is not a decree.
Essential elements of order are as follows:
1. It should be a formal expression of any decision.
2. The formal expression should not be a decree.
3. The decision to be pronounced by a civil court.
Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order of a court is founded on
the objective considerations and as such judicial order must contain a discussion of the question at issue and the
reasons which prevailed the court which led to the passing of the order.
Orders are of two kinds:
1. Appealable orders – Orders against which an appeal lies.
2. Non appealable orders – Orders against which no appeal lies.
Similarly, there are two classes of orders:
1. Final orders – An order that disposes of all of the claims and adjudicates the rights and liabilities of all the parties in
the suit.
2. Interlocutory orders – Interlocutory order only settles an intervening matter relating to the cause. Such orders are
made to secure some end and purpose necessary which are essential for the progress of case. In simple terms, a
temporary order issued during the course of litigation is called Interlocutory order. Also known as the Interim order, is
the decision of the court which does not deal with the finality of the case but rather settles a subordinate issue relating
to the main subject matter.
Difference between Judgment and Decree

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 JUDGMENT DECREE

1. Judgment is defined under Section 2(9) 1. Decree is defined under Section 2(2) of Civil Procedure
of the Civil Procedure code, 1908. code, 1908

2. Judgement means statement given by a 2. Decree is an adjudication conclusively determining the

Judge of the grounds of decree or order. rights of the parties with regards to all or any of the matter
in the controversy.

3. It is not necessary that there should be 3. It is necessary that there must be formal expression of
a formal expression of order in the the decree
judgement

4. Judgement states preciously the relief 4. Decree must determinate the rights of the parties
granted.

5. Judgement contains the grounds of 5. Decree follows the judgment.

decree.

6. Judgment may be passed in civil suits 6. Decree is passed in a civil suit.

as well as in criminal cases.

7. Judgment is not capable of execution. 7. Decree is capable of execution.

Difference between Decree and Order
DECREE ORDER

1. Section 2(2) of the Code of Civil Procedure defines 1. Section 2(14) of the CPC defines
“Decree” “Order”

2. “Decree” means the formal expression of an adjudication 2. According to Section 2(14) of the
which, so far as regards the Court expressing it, conclusively said Code, “order” means the formal
determines the rights of the parties with regard to all or any of expression of any decision of a Civil
the matters in controversy in the suit and may be either Court which is not a decree.
preliminary or final.

3. Decree can only be passed in a suit which commenced by 3. An order may originate from a suit
presentation of a plaint. by presentation of a plaint or may
arise from a proceeding commenced
by a petition or an application.

4. Decree may be preliminary or final or partly preliminary and 4. An order cannot be a preliminary
partly final. order.

5. Every decree is appealable 5. Every order is not appealable

11. Explain Revision. What are the conditions for exercise

Introduction:
Civil Procedure Code, 1908 is a procedural law related to the administration of civil proceedings in India. Section 115
of the Civil Procedure Code, 1908 provides the provisions on the Revision. It empowers the High Court to look into
the cases which have been decided by the subordinate courts. Hence, the High Court has revisional jurisdiction. In

38
other words, the Higher courts exercise the power of supervision on the lower courts. Section 115 limited to errors of
jurisdiction only.
Meaning of Revision:
To revise means to check again or look again. Revision means to go through thoroughly with a careful examination to
correct the mistake. In other words, the court will revise the case and gives correction wherever necessary. The High
court has the power of revision with certain conditions.
Object:
1. The main object of the revision is to prevent the subordinate court from acting arbitrarily or illegally.
2. To empower the High court to look at proceedings of the subordinate court are in accordance with the law and
acting within the jurisdiction of the court.
3. To correct the errors of jurisdiction done by the subordinate courts.
4. To ensure the aggrieved party that if the order passed against them is non-appealable then it can be rectified
by the High Court.
Nature and scope of Revision:
The High Court should satisfy itself on 3 Matters:
1. The order which is passed by the lower court is within the jurisdiction of that court.
2. The case is of such nature that the court is ought to exercise its jurisdiction.
3. That the subordinate court has acted legally, acted within the four corners of law and acted without
committing any error.
If the high court satisfies these three matters then it has no power to interfere. Where there is no question of
jurisdiction the decision cannot be corrected by the High Court. Hence, the question must arise out of jurisdiction.
Who may file?
1. Application by aggrieved party – When the order passed by the subordinate court and the party who is aggrieved
by such order can apply for the revision in the High Court.
2. Suo moto – Under section 115 of the Civil Procedure Code, 1908 the High Court may exercise suo moto action of
revisional jurisdiction. In simple words, the High court may act of its own motion call any record and accordingly pass
the orders.
Grounds of revision under CPC
1. Court has decided the case:
In general Sense, the case must be decided by the court and should not be pending.
In case of Baldevdas Shivlal v. Filmistan Distributors India Pvt ltd, The Apex Court held that a case may be said to
have been decided if the court adjudicates for the purpose of the suit some right or obligation of the parties in
controversy. Every order in the suit cannot be regarded as case decided within the meaning of Section 115 of the code.
2. Such court is subordinate court:
Unless the order is passed by a subordinate court, the High Court cannot exercise the power of revisional jurisdiction.
Therefore, it is necessary that the case should be decided by the subordinate court. The subordinate courts sometimes
known as inferior or lower courts. Here, the court means a court that has civil judicature. In general meaning, the
subordinate court means all courts which are subordinate to the High Court including the Small causes court.
Where it is provided that a matter should be decided by particular court, the presiding officer of such court will act as
a court. But where it is provided that a particular judge should decide a matter the provisions of the statute will have to
be considered for the purpose of determining whether the judicial officer acts as a court or as a persona designate.
3. Non -Appealable order:
Where there are no appeal lies then the revisional jurisdiction invoked. In simple words, If there is no first appeal or
second appeal lies to the High Court then another option arises is revision. Here the word appeal means 1st appeal as
well as 2nd appeal. If the decision itself is not appealable to the High Court then the revisional jurisdiction will be
acted by the High Court.
4. Jurisdictional errors:
According to section 115 of Civil Procedure Code 1908, the Revision is only applicable to the jurisdiction and if there
is no question arises related to jurisdiction the decision cannot be corrected.
On the other hand, the question is of fact or law the revisional power is not competent.

39
a) Exercise of jurisdiction not vested by law –
Here, the assumption of the subordinate court is that it vested some powers but in reality, the subordinate court does
not have such powers and acted beyond its boundaries. In such cases, the High Court is empowered to correct the
decision given by the subordinate court.
e.g.
i. The wrong assumption by the lower court that it has jurisdiction
ii. Entertain an appeal which it has no jurisdiction
iii. Makes an order which it has no jurisdiction
iv. Grants injunction order without considering relevant facts
b) Failed to exercise jurisdiction vested in it –
If the subordinate court having power vested in it but not acting accordingly and declines to exercise its duty or act
then revisional power of the High Court takes place or High can interfere in such case.
e.g.
 Refuse to give summons to deponent for cross examination
 Fails to execute the decree
 Reject the plaint, application etc.
 Rejection of counterclaim
c) Exercise of jurisdiction illegally or with material irregularities:
When the subordinate court does not act legally or acting arbitrarily, capriciously in the exercise of their jurisdiction.
In simple words when the court misuses its powers and in case of errors of jurisdiction committed by the Subordinate
Court, the revisional jurisdiction taken by the High Court.
Limitation:
The period of limitation for preferring a revision application is for 90 days from the decree or order.
Case laws:
1. Balkrishna Udayarvsvasudeva Aiyer
In this case it was held that, it will be observed that section applies to jurisdiction alone, the irregular exercise or non-
exercise of it, or the illegal assumption of it. Section 115 is not directed against the conclusion of law or fact in which
the question of jurisdiction is not involved.
2. Major S S Khanna v. Brig F J Dillon
To interpret the expression ‘case’ as an entire proceeding only and not a part of the proceeding would be imposed
restriction upon the exercise of powers of superintendence which the jurisdiction to issue writs and the supervisory
jurisdiction are not subject to. The power given by section 115 of the code is clearly limited to keeping of the
subordinate courts within the bounds of their jurisdiction.
Once the flaw of jurisdiction is found the High Court need not quash and remit as it is the practice in English law
under the writ of certiorari but pass such order as it thinks fit.
3. Shiv Shakti Co. Op. Housing Society v. Swaraj developers
A plain reading of section 115 as it stands makes it clear that the stress is on the question whether the order in favour
of the party applying for revision would have given finality to suit or other proceeding. If the answer is yes then the
revision is maintainable. The orders which are interim in nature, cannot be the subject matter of revision. Preferring an
application under section 115 of the code is not a substantive right.
4. N.S. Venkatagiri Ayyangar v. Hindu religious endowment board
A distinction between cases in which on a wrong decision the court has assumed jurisdiction which is not vested in it
and those in which in exercise of its jurisdiction the court has arrived at a conclusion erroneous in law or fact. In the
former class of cases, revisional power is permissible while in latter class of cases it is not needed.
5. Joy Chand v Kamalaksha
A revision also lies where a subordinate court has failed to exercise jurisdiction vested in it by law. A court having
jurisdiction to decide a matter, thinks erroneously under a misapprehension of law or fact that it has no such
jurisdiction and declines to exercise it, the High Court can interfere in revision.
Conclusion:

40
It can be concluded that the cases which are decided by subordinate courts and there is no appeal lies the aggrieved
party Revision is competent. The High Court has the power of Revisional jurisdiction if the subordinate court has
acted arbitrarily or illegally. The Court can also exercise suo moto action to correct the decision given by the
subordinate court. Revisional powers can also be exercised when there is a jurisdictional error by the subordinate
courts. Hence, it can be said that Section 115 acts as a remedy and gives justice.
12. Framing of Issues
Framing of Issues:
Order XIV of the code of civil procedure, 1908 states that it is the duty of the court to frame issues from
Material Propositions. Here material propositions means those propositions of law or fact which a Plaintiff
must allege in order to show a right to sue or a Defendant must allege in order to constitute his defence.
Illustration:
In a dispute between husband and wife over allegations of cruelty wherein the wife registers complain before
the police and police unlawfully and without following the due process of law arrest the husband and
therefore if a suit for damages for illegal arrest is to be filed against the state govt. then material facts for the
said suit would be facts of arrest and facts of illegality.
Siddhi Chunilal vs. Suresh Gopkishan (2009(6) BCR 857)
In this case, it was observed that if correct and accurate issues were not framed, it leads to gross injustice, delay and
waste of the court’s valuable time in deciding the matter.
      If defendant makes no defense, framing and recording issue by the Court does not arise, in such a case, a Court
need not frame and record issue in as much as the defendant makes no defense at the first hearing of the suit.

Meaning of Issue:
A single material point of fact or law in litigation that is affirm by the one side and denied by the other side is
called an Issue.
Framing or non-framing of issues in case of Ex-parte decree:
Court should only made issues when defendant has made his defence against the suit through submission of
his written statement. However, court should not frame issues when the defendant has not appeared before the
court.
Kinds of Issue:
There are two types of issues 
1.Issue of Fact
2.Issue of Law.
Object of framing of Issue:
Object is to ascertain the real dispute between the parties by narrowing down the area of conflict and
determining where the parties differ.
Matters to be considered before framing of Issues:
1.The court shall read the plaint and written statement before framing an issue to see what the parties allege in
it.
2.According to Order X, Rule 1 of Code of civil procedure, 1908 it permits the court to examine the parties
for the purpose of clarifying the Pleadings, and the court can record admission and denials of parties in
respects of an allegations of facts as are made in Plaint and written statement.
3.If any party admitted any fact or any document then no issues are to be framed with regards to those matters,
and the court will pronounce judgments respecting matters which are admitted.
4.The court may ascertain upon at what material propositions of law or fact the parties are at varies.
5.The court may examine the witness for the purpose of framing of issues.
6.The court may also in the framing of issues take into consideration the evidence laid in the suit. When a
material point is not raised in the pleadings, and it is noticed by the court during the course of evidence the
court can frame an issue regarding it and try it.
7.Order XIV Rule 4 states that where the Court is of opinion that the issues cannot be correctly framed
without the examination of some person not before the Court or without the inspection of some document not
produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for
the time being in force) compel the attendance of any person or the production of any document by the person
in whose possession or power it is by summons or other process.
Materials on which issues may be framed:

41
 1.Allegations made on Oath: Issues can be framed on the allegations made on oath by the parties or by any
persons present on their behalf or made by the pleader of such parties.
2.Allegations made in Pleadings: Issues can be framed on the basis of allegations made in the pleadings.
3.Allegations made in interrogatories: Where the plaint or written statement does not sufficiently explain the
nature of the parties’ case, interrogatories may be administered to the party and allegation made in answer to
the interrogatories delivered in the suit may be the basis of framing of issues.
4.Content of documents: The court may frame issues on the basis of content of documents produced by either
party.
5.Oral examinations of Parties and Objections: Issues can be framed on the basis of oral examination by the
parties or oral objections.
Amendment or Strike out Framed Issues:
At any time before passing of decree, court can amend framed issues on those terms which it deems fit.
However, such amendments of framed issues would be necessary for determination of matters in controversy
between parties.
At any time before passing of decree, court can amend framed issues specially when it appears to the court
that such issues have been wrongly framed or introduced.
Regarding amendment of framed issues court also has a mandatory power, in fact, court is bound to amend
framed issues especially when such amendments are necessary in determination of matters in controversy,
when framed issues do not bring out point in controversy or where framed issues do not cover entire
controversy.
Court can amend or strike out framed issues at any stage before final disposal of suit.
Conclusion:
Issues are of great importance not only for parties but also for court. Parties are require to prove or disprove
framed issues and not pleadings, and on the other hand, court is bound to give decision on each framed issue
and therefore court is not bound to decide those matters on which no issues have been framed.

13.state the procedure for instituting a suit by an indigent person?

Introduction
Taking into consideration the poverty rate of India, it is quite challenging for the deprived section of society to
institute a case in court and bear all the litigation expenses. But simply saying that these vulnerable people don’t stand
a chance in court, is not the solution. One such solution is enshrined under Article 39A of the Indian Constitution that
protects the interests of vulnerable segments of society. It provides free legal aid to the poor and weaker sections of
society and ensures justice for all. Besides Article 39A, Articles 14 and 22 (1) of the Indian Constitution provide that
it is obligatory on the part of the State to ensure equality before the law and provide a legal system that aims at
promoting justice.
The dictionary meaning of the word ‘indigent person’ refers to a person who is suffering from extreme poverty,
impoverishment, or one who lacks the basic resources required in normal life. In legal parlance, an indigent person
does not possess the financial capacity to pay the court fee. With the motive of providing justice to such individuals,
provisions under Order 33 of the Code of Civil Procedure, 1908  were introduced. Any person who wants to represent
as an indigent person is required to file an application before the competent court wherein he declares himself to be an
indigent person. If the court is satisfied with such an application and agrees to the fact that such person has no means
to pay the court fee, then the court will declare such person as an indigent person. Primarily, before the introduction of
the expression “indigent person”, the term “pauper” was used to denote the underprivileged section of society.
However, the latter got substituted by the term “indigent person.”

 Rule 1- 18 of Order XXXIII of the Code of Civil Procedure deals with the suits filed by indigent persons. 

Who is an indigent person?

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are required to submit the
requisite court fees as directed by the Court Fees Act, 1870. However, Order XXXIII of the Code of Civil Procedure
saves indigent persons by way of discharging them from the liability to pay the required court fees. It then allows such

42
individuals to institute the suit in forma pauperis which is subject to some conditions as postulated under the Rule 1 of
Order XXXIII of CPC. 

Discussing the definition of an indigent person in the light of  Union Bank of India v. Khader International

Construction
The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction discussed the definition of
an indigent person. It was observed by the court that an indigent person is one who is not possessed of sufficient
amount (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to
enable him to pay the fee prescribed by law for the plaintiff in such a suit. In case no such fee is prescribed if such
person is not entitled to property worth one thousand rupees other than the property exempt from attachment in
execution of a decree and the subject matter of the suit he would be an indigent person.

A.A. Haja Muniuddin v. Indian Railways

In A.A. Haja Muniuddin v. Indian Railways, the court held that “Access to justice cannot be denied to an individual
merely because he does not have the means to pay the prescribed fee.”
 Rule1 gives us the definition of an indigent person. Any person who does not possess sufficient means to
pay the requisite fee as prescribed by the Court Fee Act. However, Rule 1 also states that while
considering sufficient means, the valuation of the property possessed by an indigent person will be
exempted from attachment in execution of a decree and the subject matter of the suit. Such exempted
property is the basic need of living for the individuals. Thus, as per law, it is not permitted to be attached. 
 In cases where no such fee is prescribed by the Court Fee Act and if the applicant does not possess
property worth one thousand rupees or where the cost of the property is less than one thousand rupees,
then in such case, the person will be considered as an indigent person. However, this rule has the same
exception as mentioned above. It states that while calculating the valuation of the property,  Section 60 of
the Code of Civil Procedure has to be kept in mind.
Following properties are exempted and must not be attached while calculating the valuation of the property possessed
by the indigent person:
(a) The necessary wearing apparel, cooking vessels, beds;
(b) tools of artisans, agriculturist; 
(c) houses and buildings belonging to an agriculturist, labourer or a domestic servant;
(d) books of account;
(e) a mere right to sue for damages;
(f) any right of personal service;
(g) stipends and gratuities allowed to pensioners; 
(h) the wages of labourers and domestic servants;
(i) salary to the extent of the first four hundred rupees and two-third of the remainder in the execution of any decree
other than a decree for maintenance: 
(ia) one-third of the salary in the execution of any decree for maintenance; 
(j) the pay and allowances of persons to whom the Air Force Act, 1950 or the Army Act,; 1950 or the Navy Act (62 of
1957), applies; 
(k) compulsory deposits and sums to which Provident Funds Act, 1925;
(ka)  deposits and sums to which the Public Provident Fund Act applies; 
(kb) all money payable under a judgment debtor’s policy of insurance; 
(kc) the interest of a lessee of a residential building; 
(l) any allowance forming part of the emoluments of any government servant; 
(m) an expectancy of succession by survivorship or other merely contingent or possible right or interest;
(n) a right to future maintenance; 
(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a
decree; and 
(p) where the judgment-debtor is a person liable for the payment of land revenue; any movable property which, under
any law for the time being applicable to him, is exempt from sale for the recovery of arrears of such revenue.
Note: While deciding whether a person is indigent or not, any property which is acquired/purchased/sold by the
indigent person after presenting his application in the competent court for seeking permission to sue as an indigent
person, and if such exchange of property is done before the court makes a decision on the application, then in such

43
case, the properties so acquired/purchased/sold are mandatorily required to be taken into account while deciding the
question of whether or not an applicant is an indigent person.

Legal representative as an indigent

In Lakshmi v Vijaya Bank, R.V. Revanna filed a petition under Order 33 Rule 1 and Rule 7 wherein he represented
himself to be an indigent person. The respondent contended the petitioner to be an indigent person and questioned his
indigency. Before the cross-examination of the petitioner took place, he died leaving behind his wife and children.
Thereafter an application was filed by the petitioner’s wife to permit them to file the suit as a legal representative. The
trial court observed that in case of the death of the applicant, the legal representatives won’t be permitted to substitute
the indigent person as the right to sue as an indigent person is a personal right. However, the high court admitted the
application filed by the legal representative and allowed them to file the petition as indigent persons. 

Inquiry into the means of an indigent person 

Rule 1A of Order 33 states that the Chief Ministerial Officer of the court has the authority to do an inquiry. The
inquiry is conducted in the first instance to know if an applicant is an indigent person or not. It is upon the discretion
of the court whether to accept the report submitted by such an officer or make an inquiry.

Procedure to file a suit as an indigent person 

Before filing a suit as an indigent person begins, it is important to add all the relevant contents in the application
seeking permission to be an indigent person [Rule 2]. As per Rule 2 of Order XXXIII, the application must include the
particulars similar to what is mentioned in the plaint and all movable or immovable properties of the indigent
person/applicant along with its estimated value. 
The indigent person/applicant shall himself in person present the application before the court. In case, such a person is
exempted from appearing in the court, an authorized agent may present the application on his behalf. In certain
circumstances where there are two or more plaintiffs, the application can be presented by any of them.  [Rule 3]. The
suit begins as soon as the application to sue as an indigent person is duly presented before the court. Subsequently, the
indigent person/applicant is examined by the court. However, if the applicant is being represented by his agent, then in
such a case, the court may examine the applicant by the commission [Rule 4]. 

Rejection of application 
As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an application seeking permission to sue as
an indigent person in the following cases:
1. In case when the application is not framed and presented in the prescribed manner. Here, the term
‘prescribed manner’ implies that the application must abide by Rule 2 and Rule 3 of Order XXXIII. Rule 2
and Rule 3 deal with the contents of the application and its presentation respectively. 
2. The application can be rejected by the court in case the applicant is not an indigent person. 
3. The application can be rejected by the court when the applicant has fraudulently disposed of any property
within two months before the presentation of the application. It can also be rejected when the applicant
dishonestly applies only with the motive of just seeking permission from the court to sue as an indigent
person. 
4. The court possesses the power to reject the application filed by an indigent person in an instance where
there is no cause of action.
5. In case, where the applicant has entered into an agreement with any third party and such agreement
pertains to the subject matter of the suit wherein the other party (other than the applicant) obtains interest,
then, it is one of the reasons for rejection of the application. It shows the applicant’s intention to defraud
the court. 
6. Rejection of application is done when the allegations indicate that the suit is barred by any law.
7. Rejection of application is done in cases where any other individual enters into an agreement with the
applicant to help him financially in the litigation. 
 The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of Order 11 Rule 12
involving the discovery of documents would apply to proceedings under Order XXXIII of the Code of
Civil Procedure.
 In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it was returned for
presentation in the court along with proper valuation and court fee. A time of one month was granted for

44
 doing so and the plaintiff filed the plaint within the stipulated period. Subsequently, the plaint was
presented in the Sub-Court along with a petition seeking leave to sue as indigent persons to which the
court observed that though the petition was filed under Order XXXIII Rule 1, one cannot say that the
application filed under Rule 2 seeking permission to file the suit as indigent persons might not be rejected
as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order XXXIII Rule 5 CPC
and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the rejection of plaint, Order XXXIII
Rule 5 deals with the rejection of an application filed for permission to sue as indigent persons. 
 Order 33 Rule 6 provides that the court is required to issue a notice to both the opposite party and the
Government pleader. Following which a day is fixed on which evidence is received. On such a day, the
applicant presents in the form of proof about his indigency. The opposite party or the Government Pleader
can present their evidence opposing the applicant’s indigency. 
 Order 33 Rule 7 provides for the procedure to be followed at hearing of the application. The court shall
examine the witnesses (if any), produced by both the parties and hear arguments on the application or
evidence (if any) admitted by the court. Subsequently, the court will either allow the application or reject
it.
 Order 33 Rule 8 explains the procedure to be followed after the admission of the application. The
application after being admitted has to be numbered as well as registered. Such an application will be
considered as a plaint in a suit. Subsequently, such a suit shall proceed in the same manner as an ordinary
suit does. 
 Order 33 Rule 9 states that the court has an option to revoke the permission granted to the plaintiff to sue
as an indigent person. The court can utilise this discretionary power on receiving the application by the
defendant or by the government pleader, in the following circumstances:
1. Where the applicant is guilty of vexatious or improper conduct in the course of the suit; or
2. Where the applicant’s means are such that he will not continue to sue as an indigent person; or
3. Where the applicant has entered into an agreement under which another person has obtained an interest in
the subject matter of the suit. 
 The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while deciding upon an
application concerning the withdrawal of permission to sue as an indigent person observed that Rule 9 of
Order 33 provides for a situation where the plaintiff, who was initially permitted to sue as an indigent
person, ceases to be an indigent person after the suit is filed. In case a plaintiff ceases to be an indigent
person, the court shall compel him to pay the court fee that he would have paid if he had not been allowed
to sue as an indigent person. It is so plainly a part of an order under Rule 9 of Code directing the plaintiff
to pay the court fee that he would have paid if he had not been allowed to file as an indigent person from
the outset.
 Rule 9A of the Code provides that the court will assist the indigent person by assigning him a pleader. A
pleader is a person who is entitled to appear and plead on behalf of other persons in the court.

Costs associated with the suit

Order XXXII Rule 16 of CPC states that the costs in the suit will include the costs of an application to sue as an
indigent person as well as the cost of inquiry into indigency.
1. When an indigent person succeeds: According to Rule 10 of Order XXXIII, where the plaintiff (indigent
person) succeeds in the suit, the court shall calculate the amount of court fees and costs and recover the
same from the plaintiff in the manner as if he had not been permitted to sue as an indigent person. In case
the plaintiff (indigent person) fails to pay the amount, then in such case, the amount shall be recoverable
by any such party that was ordered by the decree. 
2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order XXXIII where the plaintiff
(indigent person) fails or the permission granted to the indigent person is withdrawn under Rule 9A, or
where the suit is withdrawn or dismissed, the court shall in such case either order him (plaintiff) or a co-
plaintiff to pay court fees and costs in the manner as if he had not been permitted to sue as an indigent
person. Where the suit abates on account of the death of a plaintiff, such court fees would be recovered
from the estate of the deceased plaintiff.
3. The Hon’ble Supreme Court in Union Bank of India v. Khader International Construction, held that Order
33 CPC is an enabling provision that allows the indigent person to file a suit without paying the court fee
at the initial stage. In case the plaintiff succeeds in the suit, the court calculates the amount of court fee
which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person and

45
 that amount would be recoverable by the State from any party ordered by the decree to pay the same.
However, if the suit is dismissed, then also the State would take steps to recover the court fee payable by
the plaintiff and this court fee shall be a first charge on the subject- matter of the suit. 
4. So there is only a provision for the deferred payment of the court fees and this benevolent provision is
intended to help the poor litigants who are unable to pay the requisite court fee to file a suit because of
their poverty.
5. According to Rule 12 of Order XXXIII, the state government possesses the right to apply to the court to
pass an order concerning payment of court fee to be paid under Rule 10. 
6. Rule 13 deals with cases where the state government shall be deemed to be a party to suit. 
7. Rule 14 provides that the court shall recover the court fee by forwarding the order or decree to the
collector who shall then collect the fee in the manner as if it were an arrear of land revenue. 
8. In case if the application to sue as an indigent person is refused, he shall still possess the right to file a suit
in an ordinary manner. However, such a person shall be denied to file an application of similar nature in
respect of the same matter [Rule 15]. 
9. Rule 17 provides that any defendant (indigent person) who wishes to file a set-off or counterclaim shall be
permitted to do so. 
10. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central Government may make
additional provisions for free legal services in respect of indigent persons. 

Conclusion
It has been observed that Order XXXIII, permits the destitute, impoverished, and downtrodden, who meet the criteria
of an indigent person as provided by Order XXXIII, to seek justice by exempting them from paying the required Court
fees. Order XXXIII further authorizes such poor people to file a suit in their own name. The court at the outset itself
while deciding the application must take into account the persons having sufficient means and outrightly reject them
to sue as indigents. The permission to file suit as indigent persons must be carefully given to those who face financial
constraints and lack basic resources as access to justice can sometimes also be in the form of injustice. 
There is a lack of awareness among people regarding such provisions as well as the availability of free legal aid
services. Hence, efforts must be made by every individual to sensitise the vulnerable sections of society regarding free
legal aid services. Moreover, it is believed that aggrieved people would suffer more as free legal aid services would
compromise quality services by the advocates. No doubt, the same is true in some cases where the advocates
appointed by district legal services authorities are unresponsive and dispassionate, however, the same could be
resolved by reporting the grievance to the concerned authority/department.  

13. Revision, Review

Introduction
In order to understand concepts such as Reference, review and revision, as per Code of Civil Procedure, 1908 (CPC),
a party, who is offended by the decision of the court, can reach out to higher court by way of appeal against the
decision given by the trial court/lower court. In case of appeal, the entire judgement is scrutinized and heard again by
the higher authority. However, in the case, where there is a prima facie error on technical or procedural ground, the
parties are not required to file a fresh case and appeal. In such cases, CPC has the provision of reference review and
revision under section 113, 114 and 115 of CPC respectively, which shall be discussed in detail in this article.

Synopsis
Every human being commits a mistake and judges are also human beings. So, the provisions of reference, review and
revision are given under the Civil Procedure Code in order to maintain the fairness and accuracy of the justice system.

Reference
Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision of Section 113, a
lower or subordinate court can reach out to higher court for the doubt in order to avoid the misinterpretation of the law
which is called reference. Parties through an application can move the reference to the High court. Lower Court can
apply the provision of reference suo-moto in case of any doubt with respect to any legal provision. The lower court is
not bound to refer to the High Court other than in case of validity of legal provision. It helps the lower court to avoid

46
commission of error while pronouncing the judgement. The subordinate court can use its right to reference in the
following situation:
1. In case of any question arising in the court at the time of entertaining the suit with respect to the validity of
any act, rules, order, ordinance etc.
2. Where the court has the opinion or feels that any provision of the law is invalid or not in the power of
court (“ultra-virus”).
3. The High Court or Supreme Court must have not made such question on the provision of law invalid. 
4. The court feels that it is important to take the reference of high court for ascertaining the validity of the
provisions mentioned in the law before disposal of any case. 
There can be two types of doubts which need to be referred under this section.
1. In case, the doubt has arisen with respect to any Act or law, it is mandatory for the lower court to take the
reference or opinion from the High court.
2. However, in case the doubt has come up during proceedings, it is not mandatory for the lower court to take
the opinion of the High Court. The lower court can suo-moto refer to the High Court.

Object
The object behind the provisions of Reference is to empower the subordinate court to obtain the opinion of the High
Court in non-appealable cases when there is a question of law so that any commission of error could be avoided which
couldn’t be remedied later on.
As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before passing of the judgement of the
case.

Conditions for seeking reference

Order 46 of CPC mentions the procedure of making a reference. In order to make a reference to High Court,
subordinate court needs to satisfy the condition mentioned in Order 46 of Civil Procedure Code which has been
produced as follows:
1. The suit or appeal must be pending before the court while making a reference and no further appeal from
the order of such suit or decree is lying before the court.
2. The question of the validity of provision of law must have arisen during the pendency of the suit i.e.
during proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen, the court must have been
entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass a contingent order. The
subordinate court, after taking into account the opinion of the high court where such reference has been made, may
pass order or decree.

There are two classes of the question of law on which the subordinate court may entertain the doubt
1. Questions related to the validity of any Act, Ordinance or Regulations.
2. Any other questions.
Under the second condition, reference is optional but in the first condition i.e., a question related to any Act,
Ordinance or Regulations, reference is obligatory. Reference is obligatory in such condition when the following
conditions are fulfilled:
1. In order to dispose of the case, the decision of such question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance or regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or the High Court to
which the court is subordinate to.
A reference can be made by the judge only in the case when the judge who is dealing with that case has a reasonable
doubt about it. When any matter is already decided by the High Court to which the court seeking reference is
subordinate to then it is not considered as a reasonable question of doubt.

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an application made by a party or  suo
moto. As held in the case of Ramakant Bindal v. State of U.P, no reference can be made by a tribunal.

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Powers and duty of the referring court
A reference can be made in a suit, appeal or execution proceeding pending before the court only when there is a doubt
of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was held that the question of law about which
the subordinate court is doubtful, must have actually been called upon in the case for adjudication and it shouldn’t be a
hypothetical question. 
Therefore, no reference can be made on a hypothetical question or a point that may or may not arise in future. But, if
the situation arises it may be considered for reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High Court and while
dealing it the High Court is not bound to decide only the question of law in doubt. As held in the case of S.K. Roy v.
Board of Revenue, the High Court can consider the new aspects of law also if any new aspect arises.
To answer the question for which reference is sought totally upon the discretion of the High Court as discussed
under Order 46 of the Code. The High Court may answer the question and send the case back to the referring court to
dispose of it in accordance with the law. It is also upon the discretion of the High Court to refuse to answer the
question and it has even power to quash it.

Effects of Reference
In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is sought from the High Court and
the decree is confirmed if the High Court answers the question in favour of the plaintiff. If the answer of the High
Court is against him, the suit is dismissed.
Rule 3 of Order 46 states the provision that after hearing the parties if the High Court desires, it shall decide the
referred points and transmits a copy of its judgement to the subordinate court which shall dispose of the case in
reference to said decisions.

Review
Section 114 of Civil Procedure Code defines the provision of review. In case of review, the party who is not happy or
aggrieved with the order of the court can file an application for review in the same court which has passed the decree.
This provision has been made so as to facilitate the court to review their own decree or judgement and rectify the same
in case any error has been made while passing the judgement. 
It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of review is still there
even if the appeal has been dismissed on any ground.
Order 47 of the CPC defines the procedure to be followed in case of review. In the following situation, the application
for review can be filed by the parties:
1. The decree or judgement is appealable however, no appeal has been preferred under the law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or judgement.
3. The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:
1. Where there are new discoveries of the facts, which were not in knowledge or could not produce at the
time of passing of decree due to ignorance.
2. In case, the error is found on the face of the record and does not require the argument of the entire case
again. These errors are not related to wrong decisions made by the court. 
3. Any other case, in which case the delusion of the court can be considered as sufficient ground. 
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4) SCC 595 held that any
other sufficient ground has an expanded meaning. An order passed in case of misinterpretation of the true facts can be
considered as sufficient ground. 
Time limit: Article 124 of Limitation Act provided that once the decree or order is passed, parties shall file the
application within 30 days from the date of passing such decree. The decree or order which is passed after review shall
be final and binding to the parties. It is important to note that the entertaining the application filed by parties for
review is at the discretion of the court. Court can either entertain or reject the application. In case, the court does not
find any sufficient ground to entertain an application, it can reject the same.
As defined in the law, even the Supreme Court can review its judgement under Article 137 of the constitution of
India.

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Object
Any human being can make a mistake or error and so do the judges. So, the procedure of Review has been embedded
in the legal system to correct the mistakes and prevent any miscarriage of justice as held in the case of S.Nagraj v.
State of Karnataka.  The review application is not an appeal or revision made to the superior court, but it is a request
to recall and reconsider the decision made before the same court.

Circumstances when a review petition is maintainable

A review petition is maintainable before the court under the following circumstances:

When no appeal lies in the case

According to section 114 of the code, when no appeal lies from an order or a decree then it can be reviewed by the
Court. In the case of Ganeshi Lal v. Seth Mool Chand, it was held that taking into consideration sub-clause(c) of
Section 114, the application of review against a decree passed by a Small Causes Court is eligible.
Even if an appeal is dismissed on the ground of being incompetent or time-barred, the party can go for review
procedure as held in the case of Ram Baksh v. Rajeshwari Kunwar.

When appeal lies in a case but not preferred

When the provision of appeal is available but it is not preferred by the aggrieved party then also a review petition is
maintainable. As held in the case of Sitaramasastry v. Sunderamma an application for review can be presented before
the court only till no appeal is preferred against that order. The court cannot entertain an application for review when
an appeal is already instituted before making an application for review.

Reference from Small Causes Court

The court may review the judgement on a reference made by the Small Causes Court.

Grounds of Review
There are certain grounds laid down under Rule 1 of Order 47 on which an application made for the review of a
judgement is maintainable:

 On the discovery of new and important matter or evidence

A court can review its judgement when some new and important matter or evidence is discovered by the applicant
which couldn’t be produced or was not available at the time of passing the decree.

 When the mistakes or errors are apparent on the face of the record
When there is an apparent error on the face of record then the court may review its judgement or decree. As decided in
the case of Karutha Kritya v. R. Ramalinga Raju, the error includes an error of fact as well as an error of law.

 Other sufficient reason

The last ground for review is any sufficient reason. Any sufficient ground considered for review by the court comes
under this ground. It could be any reason which the court feels sufficient to review its judgement in order to avoid a
miscarriage of justice.
In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court laid down certain reasons which can be considered
as a sufficient reason for review such as- when there has been any misapprehension of the true state of circumstances,
or when the party has not been given fair chance to produce any statement or evidence, or no notice was sent to the
party, or the court has failed to consider a material fact or evidence, or the court has omitted any statutory provisions. 

The limitation period for Review

The limitation period for filing an application for review as given under Article 124 of the Limitation Act,
1963 is thirty days for a court other than the Supreme Court from the date of decree or order.

Is the power to review an inherent power?

It is a well-settled matter that the power to review is not an inherent power. It is required to be either expressly
conferred by law or by necessary implications. 

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Inherent power to review of a Court  of plenary jurisdiction
The Court of plenary jurisdiction such as a writ court, in order to prevent a miscarriage of justice and to correct grave
errors, has been empowered to review its orders. On the leading case law regarding this context is  Shivdeo Singh v.
State of Punjab in which the same was discussed.
Being the final court of the country who is the last and final to decide on a matter, it has been empowered to review
and to undo injustice. In exceptional circumstances, it can even exercise the power suo moto. 

Who can make a review?

As discussed till now, a review is the reconsideration of the same matter by the same judge who has decided the
matter. If the judge who decided is present in the court, then he alone has jurisdiction to review the matter decided by
him. He is considered to be the best to reconsider the case as only he will be able to remember what arguments were
done and what reason he used to decide that case.
However, if there is a situation that the same “judicial officer” cannot be available and any unavoidable reason might
prevent the judge who decided the case to review it, then in such exceptional circumstances any judge or court of the
concurrent jurisdiction can review it and give decision as held in the case of Reliance Industries Ltd.  v. Pravinbhai.

14.Suits by or against Government or Public Officers in their official capacity

Abstract
Under the Civil Procedure Code, the subject of suits by or against public officers in their official capacity has been
recognized under Section 79, Section 80 and Order 27 of CPC. Firstly, it should be understood that Section 79 of
CPC is a procedural provision and hence, it does not deal with rights and liabilities enforceable by or against the
government [1]. But at the same time, it declares a mode of the procedure when the cause of action arises. On the
other hand, Section-80 of CPC is not a procedural provision but a substantive one [2], the rules involved in it and
working of Section 80 will be discussed further. Lastly, Order 27, includes under its ambit various rules and subjects
like that of recognized agents, attorney general and the procedure to be followed while the suit is being filed by or
against the government or public officers in their official capacity. This article tries to analyze the three sections in
detail and provide an overview of the same in a clear-cut way.

Analysis
Section 79 and 80 are defined as follows under the Procedure of Civil Code-
Section 79- This Section defines the concept of suits by or against the government: Whenever a case is filed against a
government or if it is filed by the government, the plaintiff and the defendant who will be named in the case will be as
provided under:
 Whenever the case is instituted by or against the central government, the Union of India will be
represented as the required plaintiff or defendant respectively.
 Whenever the suit is filed by or against the state government, the state government will be required to act
as the plaintiff or the defendant.
Section 80- This section deals with the concept of Notice. According to this Section, there exists no onus for the
institution of a suit against the government without issuing a notice regarding the same, this includes the state of
Jammu and Kashmir. With respect to institution of a suit against a public officer with respect to the act done by him in
his official capacity, there is again a need for issuance of notice regarding the same. Further, the notice should be
served two months prior to the institution of the suit and it should be made sure that such a notice was delivered or left
at the office of:
 Whenever the case is against the central government, and it does not relate to the railways then, the notice
should be delivered to the secretary of the government.
 Whenever a case has been instituted against the central government and it relates to the railways then, the
notice is to be served to the general manager of that railways.
 Whenever the case is instituted against any of the state governments then, the notice is to be served either
to the secretary to that government or to the collector of the district.

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Scope of Section 79
For the purpose of better understanding of Section 79 of Civil Procedure Code, there arises a need for further
fragmentation of the Section into various subtopics like that of the jurisdiction of Section 79 and the institution of suit
against the railways which will be looked into in the next part of this article.

Section 79
Section 79 lays down the procedure whereby the suits are brought by or against the government but at the same time,
it does not deal with the rights and liabilities enforceable by or against the government body [3]. In the case
of Jehangir v. Secretary of State [4], an important observation was made which was that this section gives no cause of
action but only declares the mode of the procedure when the cause of action arises.

Jurisdiction
Under Section 79, only the court within whose local limits, the cause of action arose, has the jurisdiction to try the suit
and otherwise it cannot. In the case of Dominion of India v. RCKC Nath & Co. [5], it was held that words like ‘dwell’
or ‘reside’ or ‘carry on business’ which are mentioned in Section 18, 19 and 20 of code, do not apply to the
government [6].

Suit against Railway

If the railway is administered by the union of India or a State, then any suit to enforce a claim against railway
administration can be brought against the Union of India or State, and this may not include making the railway
administration a part of the suit. But on the other hand whenever there is a requirement for a suit for freight for
carrying goods, then such a suit can be instituted by the Union of India, and this was held in the landmark case
of Union of India v. RC Jall [7].
In the case of Secretary of State v. Rustom Khan [8], there was a significant observation made regarding the liability
to be sued, under Section 79 of CPC. No suit could lie against the East India Company in respect of the act of state or
acts of sovereignty, and therefore no suit in respect of such acts would be competent.

Section 80
This part of the article will include under its ambit the detailed analysis of Section 80 of Civil Procedure Code, and for
the purpose of better understanding, the subtopics are to be studied by breaking them down under the Section of nature
and liability, contents of the notice, effect of non-compliance and waiver of notice.

Nature and Object

The object laid down by this Section is- there should be an opportunity conferred on the part of the Secretary of the
State or the Public officer to reconsider his legal position in order to make amends or settle down the claim if so
advised. This can further be done without litigation or afford restitution or without recourse to court of law [9].
Whenever a statutory notice is issued to public authorizes, they are required to further take notice in all seriousness
and they are not required to sit over it and force the citizen to the redundancy of litigation.

Contents of the Notice

Notice under Section 80, is required to contain the following aspects: name, description, residence of the plaintiff, the
cause of action and lastly the relief which the plaintiff claims. Also, the notice is required to convey to its recipients,
sufficient information to enable him to consider the claim, which was held in Union of India v. Shankar Stores [10].
The above-mentioned particulars should be given in such a way that, it enables the authorities to identify the person
giving the notice.

Effect of Non-Compliance
Non-compliance with the requisites of this Section or any omission in the plaint which is required would result in the
rejection of the plaint under Order 7, Rule 11.  If the suit is against a public official and a private individual, and no
notice is served on the public officer, the plaint is not to be rejected but the suit is carried on with the name of the
public officer struck off.

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Waiver of Notice
As the requirement of the notice is just procedural and not substantive, and as it is for the benefit of the public officer
or the government, it is open to government and public officers to waive it. If the defendant wants to rely on the
invalidity of the notice, it is for him to raise a specific issue on the point, this was held in the case of  Lalchand v.
Union of India [11].

Order XXVII
1- Suits by or against the government- It should be noted that in any suit by or against the government, the plaint or
the written statement should be signed by such a person, as the government by general or special order, appoint in this
behalf. State of Rajasthan v. Jaipur Hosiery Mills [12], in this case, it was held that the sanction to sign must be prior
to the institution, and if not complied with this, the signing shall be by an incompetent person, and further, issuing of a
retrospective sanction will not preserve the defect.
Government pleader is an agent under the order 27 of CPC. The government pleader acts as an agent for receiving
processes issued against the government. Also he is the only person to intimate the court that he is representing the
government and no stamped power of attorney or vakalatnama is required for the same [13].
Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it was held that when a person other than the
government pleader wants to act as an agent, it is possible only when the government agent intimates the Court that
the former is acting under his directions. Rule 5 of Order 27, has been discussed in the next segment of this article.
2- Attendance of person being able to answer the questions related to suits against the government- The court may, in
any case where government pleader is not accompanied by person on the part of the government and if he is able to
answer the questions relating to suit, the court may direct the attendance of that person [15].

Comments and Suggestions

The amendment made in Section 80 is seen as that of a significant one, as it has acted as an added advantage while
dealing with the case, clause (2) and (3) were added to Section 80 by the amendment of 1976. Sub Clause (2) has been
inserted to permit the institution of the suit without notice, but it must be accepted only after giving a reasonable
opportunity of showing cause in respect of relief claimed [16]. Sub-section (3) on the other hand prohibits the
dismissal of a suit where the notice has been served but suffers from certain technical deficiencies.
It should also be taken into consideration that there exist various instances where there were widespread abuse and
misuse of the concerned section by the government and public officials in order to dispose of the litigation on the
grounds of technicality, and this aspect of the provision should be given more attention in order to overcome the
negative aspects which exist in it. Moreover, sub-section (3) was included in the Section in order to offer a better
clarification that no suit against the government or a public officer can be dismissed merely on the grounds of
existence of defect or error in the notice.

Conclusion
Hence, all the three provisions which bring to light the various procedures and rules involved in the suit by or against
the government or a public officer have been discussed and analyzed in detail. It can be said that the applicability of
these sections must be determined by the law as it stands [17]. Further, if the procedure lay down by the rule in these
sections is not followed, then the court is to proceed with the footing that there is no appearance of government
pleader on behalf of the public officer. And lastly, the rules laid down in Order 27 are to be strictly abided by while
filing a suit.
In addition to all the above-mentioned aspects, the sections regarding suits by or against the government and public
officers also specify the procedure to be followed while filing of a writ and also what steps to be taken when there is
permanent suit on appeal or if there is a revision.
There is also mention of the nature and applicability of Section 80 of the civil procedure code, and this section drags
its attention towards the matter whether the serving of notice is a mere formality or is it a mandatory aspect under the
section. Lastly, the section also deals with the aspect of what acts come under the arena of official capacity.
a) Garnishee Order.
Garnishee means a judgment-debtor’s debtor. He is a person who is liable to pay a debt to a judgment-debtor
or to deliver any movable property to him. A garnishee order is an order passed by a court ordering a garnishee not to
pay money to the judgment-debtor because the latter is indebted to the garnisher.

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Object:-
The primary object of a garnishee order is to make the debt due by the debtor of the judgment-debtor available
to the decree-holder in execution without driving him to suit.

Notice:-
Rule 46-A requires a notice to be issued to a garnishee before a garnishee order is passed against him. If such
notice is not issued and opportunity of hearing is not affordable before passing an order, the order would be null and
void. In the eyes of the law, there is no existence of such an order and any step taken pursuant to or in enforcement of
such an order would also be void.

Effect:-
The payment made by the garnishee into the court pursuant to such notice shall be treated as a valid discharge
to him as against the judgment-debtor. The Court may direct that such amount maybe paid to the decree-holder
towards the satisfaction of the decree and costs of the execution.
Failure to comply:-
Where neither the garnishee makes the payment into the court, as ordered, nor appears and shows any cause in
answer to the court may order the garnishee to comply with such notice as if such order were a decree against him.
Costs:- The costs of garnishee proceedings are at the discretion of the court.
Appeal:- Orders passed in garnishee proceedings are appealable as “decrees”.

14. Discuss the provisions of the civil procedure code 1908 in respect of appeals against decrees.
INTRODUCTION
In the Code of Civil Procedure, there is no concept of appeal, but their Lordships have no doubt that any request by a
party to an appeal court seeking the ruling of a lower court to be set aside or overturned is an appeal beyond the
ordinary acceptance of the term. Therefore, an appeal requires the removal of a case from an inferior court to a
supreme court for the purpose of checking the validity of the inferior court's decision. It is a relief given by statute to
have the lower court's decree set aside. It is an appeal to the higher court stating that the decree passed by the lower
court is unsound and inaccurate. It is a right to enter a superior court and to invoke its support and interposition in
order to resolve an error of the court below.
APPEAL FROM ORIGINAL DECREES 
An appeal can be filed under the Section 96 of the CPC, which states that, unless otherwise provided for in the CPC or
any other statute in effect, an appeal is based on any decree passed by a court exercising original jurisdiction before
the Court of Appeal which is authorized to hear the appeal in the Court's decision.
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It is clearly mentioned in Section 96 that with the consensus of the parties, no appeal lies from appeal decree passed by
the Judge. An appeal can however be focused on original decrees passed ex parte, i.e. without the parties' hearing. If
the sum of the subject-matter does not exceed Rs. 10,000, except on the appeal question of law, no appeal lies against
the decree passed by the small court of cause. Ordinarily, an appeal can be brought either by an appeal party adversely
affected by an appeal decree or by either of its representative in the interest of the appeal party.
ESSENTIALS  
There are three essential elements of any appeal- 
i. a decision (judgment of a judge or an administrative authority);
ii. A person aggrieved (who is often, a party to the original proceeding)  (iii) A reviewing agency that is willing
and ready to hear appeals.
RIGHT OF APPEAL 
A right to appeal is not a right which is natural or intrinsic. It is well settled that an appeal is a contractual body and
there is no right to appeal until a statute offers it explicitly and expressly. Although an appeal is often a matter of right,
it also relies on the decision of the court to which such an appeal rest.  If a specific Act does not give a right to appeal,

53
it can't be declared ultra vires exclusively on that ground as it is a substantive right and not just a matter of procedure.
It is a
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vested privilege which is unique to the litigant and remains as from and on the date on which the lis begins and while
it can indeed be exercised where an adverse judgment is pronounced, the right is to be regulated by the law existing at
the time of the commencement of the case or litigation and not by the law prevailing at the time of its decision or at
the time of the appeal.
Right to appeal is conferred under the Code of Civil Procedure, although it does not prescribe a limitation time for
filing an appeal.
However, the Limitation Act, 1963, specifies the time for filing appeals. It provides that an appeal against a decree or
order can be brought before the High Court within ninety days and before any other court within thirty days of the date
of the appeal against the decree or order.
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GROUNDS OF AN APPEAL
An appeal under the Civil Procedure Code can be made under the following grounds:
i. A decision has already been made by a judicial or administrative authority.
ii. A person is aggrieved of such decision, whether or not he is a party to the proceeding. (iii)     The appeal is
entertained by a reviewing body.
WHO CAN FILE AN APPEAL?
First, any party or his/her legal representatives to the original proceeding. Second, any person claiming under such
party or a transferee of interests of such party. Third, any person appointed by the court as the legal guardian of a
minor and, ultimately, any other aggrieved person after taking leave of the court. The ordinary rule is that an appeal
can be filed only by a party to a suit adversely affected by the decree or any of its representatives in the interest   
However, with the leave of the court, a person who is not a party to a decree or order can prefer an appeal against such
decree or order. which he is either bound or aggrieved by it or is maliciously influenced by it. The test of whether a
party is an aggrieved party would be to see if he has a legitimate case that a judgment has been made that affects his
rights either financially or otherwise unjustly. A judgment cannot be said to adversely impact a party unless in any
future litigation it will act as res judicata against him.   The content of the judgment and decree must be evaluated in
order to decide whether a judgement will act as res judicata and will consequently adversely affect a party, and not the
form, 
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Section 96(2) specifies remedies which are available to the defendant against whom an ex parte order is passed. One is
to file an appeal against such a decree and another is that they can also file a motion for an ex parte decree to be set
aside. The remedies are both simultaneous and can be resorted to concurrently. One should not deter the other. Section
96(3) states that a consent decree cannot be appealed against. This provision is based on the broad principle of
estoppel. It presupposes that, by any lawful agreement or settlement or even by behavior, the parties to a suit may,
expressly or implicitly, forfeit or abandon their right of appeal. The consideration for a consent decree concerning the
agreement is that both parties gave up their right to appeal.
WHO CANNOT FILE AN APPEAL?
i. A party that has given up its right to appeal in compliance with an arrangement which is explicit and
unambiguous.
ii. A party who has benefited from the incentives derived from a decree.
(iii)Parties with a consent decree.
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iv. Parties whose evidence or compromises are or have not been expressed in a dispute.
v. Parties involved in trivial instances.
vi. There shall be no legal representatives allowed file an appeal against a deceased individual.
CHARACTERISTICS OF AN APPEAL
The right to appeal is not implicit and must therefore be established by the statue in express terms. Thus, these rights
vary from the rights found in the act of filing cases. It is a right of substance and not a procedural one. The rights
under this provision accrue from the day of the institution of the suit. Such privileges will not be declared invalid,
except by a statue (either expressly or by implication). The discretion of the appellate authority is conclusive.

54
MEMORANDUM OF APPEAL
The memorandum of appeal is a document which contains the grounds of appeal. A memorandum of appeal would
support any appeal under these conditions. The components of a valid memorandum of appeal shall include: the
grounds for filing an appeal, the appellant's signature, the attachment of a signed copy of the original judgment and the
remittance of the decree or protection amount (money decree). The appellant is not entitled to consider any grounds or
claims other than those stated to in the memorandum. The court can, however, consider such complaints on its own
accord, providing that the opposing party has sufficient opportunity to appeal such grounds. The court is free to refuse
or change any memorandum it deems to be unreasonable. The court will have to document the basis for such a denial.
FORM OF APPEAL: RULES 
In order for an appeal to be validly filed, all the provisions of the Memorandum of Appeal have to be met. Rule 2
prohibits the appellant from applying for any reasons of objection not set out in the memorandum of appeal, but only
with the leave of the court. The underlying intent of this provision is to notify the respondent of the case which he is
expected to meet at the hearing of the appeal. If the memorandum of appeal is not in suitable form, the court may
refuse it or return it to the appellant for the purpose of being amended. Rule 4 states that where a decree proceeds on a
ground common to all the plaintiffs or defendants, each of the plaintiffs or defendants may appeal against the whole
decree, and the court may reverse or vary the decree in favor of all the plaintiffs or defendants.
CONDONATION OF DELAY  
The Amendment Act of 1976 Inserted Rule 3 A. It specifies that if an appeal has been filed after the expiry of the
restriction date specified for that reason, it must be followed by a submission to the effect that the applicant has
reasonable reasons for failure to lodge an appeal within the time limit. The purpose of this clause is twofold: first, to
notify the appellant that the delayed appeal may not be sustained until the delayed appeal is followed by an application
justifying the delay; and secondly, to inform the respondent that it might not be appropriate for the appellant to be
prepared on the merits, as the court must first deal with an application for condonation of the delay as a precedent
condition. However, the clause is a directory and not compulsory.
STAY OF PROCEEDINGS
RULES 5¬8 Rule 5 provides for stay of an execution of a decree or an order. The appeal court may order the stay of
proceedings under the decree or the enforcement of such a decree after an appeal has been lodged. But the
implementation of a decree is not interrupted by the mere filing of an appeal. If appropriate grounds are identified, the
stay can be granted. 
The purpose underlying Rule 5 is to secure the interests of both the issuer of the order and the debtor of the judgment.
Therefore, the following conditions must be met before the stay is issued by the court:
a. The application was submitted without undue delay;
b. The claimant incur significant damages until such an order is made
c. Security has been provided by the applicant for the due performance of the declaration or order. If the
aforementioned conditions are met, the court can also make an ex parte order for a stay of execution pending
the hearing of the appeal.
SUMMARY DISMISSAL 
Rule 11 deals with the trial court's right to summarily deny an appeal. This provision applies to the phase following
the submission of the memorandum of appeal and the filing of the appeal in compliance with Rule 9. Rule 11
embodies the basic principle that if an appeal is preferred, the appeal court, after hearing the appellant or his counsel,
is free to refuse the appeal summarily if there is no merit in the appeal prima facie. Nevertheless, discretion must be
exercised judiciously and not arbitrarily. Such control can be used only in rare situations and rather sparingly.
DOCTRINE OF MERGER 
The doctrine of merger theory is based on the principle that there should not be more than one operating decree
governing the same subject matter at the same time. Therefore, the decree of the trial court ceases to exist under the
context of the statute as soon as an appeal is resolved by an appeal court, which is superseded by a decree by an appeal
court. The decree passed by the trial court, in other words, merges with the appeal court's decree.
CROSS OBJECTIONS
Order 41 Rule 22 is a special provision which allows the respondent who has not appealed against the decree to object
to the decree by filing cross-objections in the appeal filed by the other party.  However, the respondent's filing of
cross- objections is discretionary and voluntary. The provision is permissive and encouraging and not mandatory or
peremptory. An appeal by a respondent in which the plaintiff has little involvement should not be viewed as a cross-
objection. The challenge is brought by the appellant against the respondent, and the cross-objection by the respondent
against the appellant would be an objection. Cross appeals can be filed on the following grounds by the respondent- 
1. if he could have filed an appeal against any part of the decree 

55
 2. if he is aggrieved by a finding in the judgment, even though the decree is in his favor because of some other
finding.
The terms of Order 41 Rule 22 allow for the right to file cross-appeals only where an appeal is filed and even when the
appeal is accepted by the court of appeal and a notice is issued to the respondent. Only after an appeal is accepted and
the court orders notice to be given to the respondent should the process of filing cross-objections begin.
Therefore, no cross objections can be brought where no appeal has been filed by the appellant or an appeal has been
filed but has not been accepted.
POWERS OF APPELLATE COURT
a. Power to decide a case finally- Section 107(l)(a) and Rule 24 of Order 41 enable the appellate court to
dispose of a case finally. Where the proof on record is adequate to allow the appellate court to pronounce a
decision, the case may eventually be decided, notwithstanding that the judgment of the court of appellate court
occurred solely on some other basis than that on which the appellate court continues.
b. Power of remand- Section 107(1)(b), Rule 23 of Order 41 of the Code states that if the trial court has decided
the case on a preliminary point without documenting findings on other issues and if the court of appeal
reverses the decree thus passed, it may send the case back to the court of appellate court to decide other issues
and reach a decision. An appellate court can order the lower court to reconsider and retry the case by passing
an order of remand
c. Power to frame issues and refer them for trial- Section 107 (1)(c), Rules 25 and 26 provides that where the
lower court has omitted to frame any issue or to try any issue or to determine any question of fact, which is
crucial to the just decision of the case  upon merits, the appellate court can frame issues and refer them for
trial to the lower court and direct that court to take the additional evidence required. 
d. Power to take additional evidence- Section 107(1)(d), Rules 27 29, as a general rule, an appeal shall be
decided by the court of appellate court on the facts adduced by the parties before the court of appeal and no
further evidence shall be accepted for the purposes of the appeal. The fundamental principle of admission of
additional evidence is that it should be sufficient for the person demanding admission of additional evidence
to prove that such additional evidence may not have been admitted as evidence at first instance with the best
efforts. There should be an opportunity for the party affected by the admission of additional facts to contradict
such additional evidence. The additional evidence must be relevant for the determination of the issue.
e. Power to modify decree- Rule 33 of Order 41 allows an appellate court to make whatever decision it deems
fit, not only between the appellant and the respondent but also between two respondents. It empowers an
appellate court not only to give or refuse relief to the appellant by allowing or dismissing the appeal, but also
to give any other such relief to the respondents as the case may require.
SECOND APPEAL 
Section 100 of the Code as amended by the Amendment Act of 1976 declares that 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. Such appeal lies also against an appellate decree passed ex parte. The
appellant has to precisely state in the memorandum of appeal the substantial question of law involved in the appeal.
Where the High Court is satisfied that a substantial question of law is involved in the case, it shall formulate such
question. 
It, however, permits the respondent (opposite party) to argue at the hearing of the appeal that the question formulated
by the court as a substantial question of law does not involve such question. The Law Commission in its Fifty fourth
Report reviewed the position and recommended that the right of second appeal should be confined to cases where
substantial question of law is involved.
The appropriate test to decide if the question of law challenged in the case is substantial would be if it is of general
public interest or if it concerns the interests of the parties explicitly and significantly and, if not, if it is still an open
question in the sense that it is not ultimately decided by that court or by the Privy Council or by the Federal Court.  
Thus, it should be argued that where a question is legitimately arguable, or where there is space for a contrary
interpretation, or where an alternate view is similarly probable, or where it is not finally resolved, or where there is no
uncertainty, the question can be said to be a 'substantial question of law.' The following questions are some the
examples of substantial questions of law: 
 A question of law on which there is dispute of judicial opinion; 
 Recording finding without any evidence on record; 
 Non consideration of relevant or admissible evidence; 
 Considering irrelevant or inadmissible evidence; 
 Misconstruction of evidence or documents; 

56
  A question on admissibility of evidence;
 Placing burden of proof on a wrong party; 
CHARACTERISTICS OF SECOND APPEAL
A second appeal lies in the High Court and such an appeal is maintainable only on a substantial question of law alone.
A second appeal can also lie against an ex parte decree. No appeal cart be filed on a question of fact, question of law,
or mixed question of fact and law. There is no second appeal in a money decree, where the amount does not exceed
twenty-five thousand rupees. The High Court should formulate a substantial question of law while admitting an
appeal. In certain circumstances, a High Court can also decide an issue of fact.
POWER OF HIGH COURT TO DECIDE ISSUE OF FACT
Section 103 provides that although no second appeal lies on a question of fact when such appeal is before the High
Court and the evidence is sufficient, the Court may decide any issue of fact necessary for the disposal of the appeal.
This is only allowed in two conditions.  Firstly, if such issue has not been determined either by the trial court or by the
appellate court or by both and secondly if the issue has been wrongly decided by such court by reason of its decisions
on a substantial question of law. This provision empowers a High Court to decide even an issue of fact in certain
circumstances.
APPEALS FROM ORDERS
SECTIONS 104 to 108 and Order 43 provides for appeals against orders. They state that certain orders are
appealable and other orders are not appealable. But it is possible to attack such orders in an appeal against the final
decree. These sections also provide the forum for an appeal.  Order can be defined as "the formal expression of any
decision of a civil court which is not a decree"  Therefore, an adjudication by a court that does not come under a
"decree" is an "order". An appeal of an order can be filed within ninety days before the High Court and within thirty
days from the date of the order, before another court.  SECTION 106 states that appeals against orders in cases in
which they are appealable shall be brought before the court to where an appeal would lie from the original suit.   
Some of the instances of appealable orders are- 
i. An order awarding compensatory costs in respect of false or vexatious claims or defence. 
ii. An order refusing leave to institute a suit against public nuisance.
(iii)An order rejecting an application to set aside the dismissal of a suit for default. 
iv. An order rejecting an application to set aside an ex parte decree. 
v. An order dismissing a suit or striking out defense for non- compliance with an order for discovery. 
vi. An order granting or refusing to grant interim injunction.
vii. An order refusing to restore an appeal dismissed for default of appearance by appellant. 
viii. An order refusing to rehear an appeal heard ex parte.
ix. An order of remand.
x. An order granting an application for review 
OTHER ORDERS
Section 105 enacts that every order whether appealable or not, except an order of remand, can be attacked in an appeal
from the final decree on the ground that there is an error, defect or irregularity in the order and that such error, defect
or irregularity affects the decision of the case. The principle underlying Section 105 is that when an interlocutory order
is appealable, the party against whom such order is made is not bound to prefer an appeal against it. There is no such
law which compels a party to appeal from every interlocutory order by which he may feel affected. Section 105 makes
it clear that an order appealable under Section 104 may be questioned under this section in an appeal from the decree
in the suit, even though no appeal has been preferred against the interlocutory order. 
ORDER WITH SUITS BY INDIGENT PERSONS.
Order 44 deals with appeals made by indigent persons.   Any person entitled to file an appeal who is unable to pay the
court fee needed for the memorandum of appeal must file an appeal followed by a memorandum of appeal and then
the Court may permit him to appeal as an indigent person. The present situation is that, on all the grounds applicable to
an ordinary citizen, an indigent person can also file an appeal. Also, an indigent individual can file cross-objections. 
Rule 3 states that if the appellant has been permitted to sue in the trial court as an indigent party, no further
investigation is required if the appellant files an affidavit claiming that he has not ceased to be an indigent person since
the date of the appeal of the decree. . Where the appellant is said to have been an indigent person after the date of the
decree of appeal, the appellant's inquiry shall be carried out by the appellate court or, on its request, by the officer of
that court.   The question to be considered by the court at the point of hearing an appeal is whether the applicant is an
indigent citizen. 
The appeal will be allowed, if he is indigent, and the memorandum of appeal will be registered. If he is not indigent,
the appeal would be denied. The period of limitation for presenting an application for leave to appeal as an indigent

57
person is sixty days (High Court) and to other courts it is thirty days. The limitation starts from the date the decree is
appealed from. 
GENERAL APPEALS TO THE SUPREME COURT 
General appeals to the Supreme Court are laid down under provisions of Articles 132, 133 and 134A of the
Constitution of India with regard to civil matters. An appeal shall lie to the Supreme Court from any judgment, decree
or final order in a civil proceeding of a High Court, if the High Court certifies that— 
a. The case involves a substantial question of law of general importance; and 
b. In the opinion of the High Court the said question needs to be decided by the Supreme Court. 
CONDITIONS
Under Section 109 of the Code, an appeal would lie to the Supreme Court only if the following conditions are
satisfied-
 Judgment, decree or final order- An appeal lies before the Supreme Court only against the High Court's
decision, decree or final order. A verdict, decision or final ruling to which an appeal can be brought before the
Supreme Court must be one aimed at bringing the dispute between the parties to an end. In respect of an
interlocutory order, no certificate can be granted. The test whether the order is final or not will not depend on
whether the controversy is finally over, but whether the controversy raised before the High Court is finally over
or not.
 Substantial question of law of general importance- If the High Court certifies that the dispute concerns a
substantial question of law of general significance, an appeal will fall to the Supreme Court. The substantive
question of law must be such that the general public, aside from the parties to the case, should be involved in
the Supreme Court's resolution of the question, i.e. that it will influence a significant number of people or a
number of cases concerning the same matter.
 Need to be decided by Supreme Court- The High Court must take the view that the Supreme Court has to
decide such a matter. There has to  be a necessity for a Supreme Court ruling on the subject, and the need could
be seen to exist where, for example, two viewpoints on the issue are available and the High Court takes one
view of the views referred to. Such a necessity may also be said to occur where another High Court has held a
different opinion.
APPEALS UNDER CONSTITUTION 
Article 136 of the Constitution confers on the Supreme Court very broad and plenary powers to issue special leave to
appeal against any verdict, decree, opinion, sentence or order (final or interlocutory) passed down by any court or
tribunal. Section 112 of the Code preserves the powers bestowed by the Constitution on the Supreme Court and
declares that those powers will not be impaired by anything in the Code of Civil Procedure.
CASES
Kaleidoscope India Pvt. Ltd. v. Phoolan Devi AIR 1995 Delhi 316
In this case, the Judge of the Trial Court banned the screening of films both in India and abroad. The Session Judge
allowed the film to be shown abroad. A party which moved in appeal subsequently did not have locus standi. It was
overturned by the division bench stating that as he entertained the suit in which party had no locus standi, it is not
reasonable on the part of the judge.
Ram Chandra Abhyankar v. Krishnaji Dalladarya AIR 1970 SC 1
In this case, the Supreme Court established three requirements for the application of the Merger Doctrine:
1. The superlative jurisdiction should be appellate or revisional in nature
2. Jurisdiction should have been exercised after notice had been given.
3. After a complete hearing in the presence of both sides, i.e. on the point where the order of the superior court
goes through the detail of the issue, only the order of the inferior court is combined to that degree.
It would depend on the extent of the authority exercised, the substance of the challenge and the subject matter capable
of being established. The superior court should be able to reverse or alter or affirm the order that has been put in
question before it. The power is not appealed or revisional of written jurisdiction, but it is a collateral disputed on the
principle of natural justice.
R.V. Dev v. Chief Secretary, Govt. of Kerala (2007) 5 SCC 698
In the subsequent case, the Court ruled that 'Order 33 of the Code of Civil Procedure deals with cases brought against
indigent persons, while Order 44 deals with appeals brought against indigent persons. When an application is filed by
a person who is said to be indigent, it is important to take into account those considerations to determine whether that
person is indigent under the context of the clause. An individual who is entitled to sue as an indigent person is
responsible for paying the court fee that he would have paid if he were not allowed to sue in that capacity if he failed

58
in the courtroom or simply without a trial. The payment of court fines, as shown by the policy, is merely postponed. It
is not totally cleaned clean.
In H. Siddiqui (dead) by LRs v. A. Ramalingam, AIR 2011 SC 1492, the apex court held as under “It must be evident
from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind
and decided the case considering the material on record. Being the final court of fact, the first appellate court must not
record a mere general expression of concurrence with the trial court judgment rather it must give reasons for its
decision on each point independently to that of the trial court. Thus, the entire evidence should be done after
formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the
requirements of the said statutory. ”
State of West Bengal & Ors. v. Kamal Sengupta & Anr. (2008) 8 SCC 612
The Supreme Court held that a review on the basis of discovery of fresh and important matter or facts could be taken
into account if the same is of such a type that the judgment under review would have been altered if it had been
generated earlier, and the Court must be sure that the party adducing the new ground did not have the same
information even after due diligence had been exercised. The evident mistake denotes an error that is apparent per se
from the case record and does not require either the evidence or the legal situation to be investigated, examined and
elucidated in detail. In the event that the mistake is not self-evident and that its identification involves a lengthy debate
and thought process, it cannot be viewed as an obvious error on the face of the record for the purpose of analysis.
Garikapati Veeraya v. Subbiah Chaudhary
In the current case, it was held that there appeared to be a pre-existing right of appeal to the Supreme Court, and the
old statute that established such a right still continued to exist. It interpreted the protection of this right while
acknowledging the shift from the Federal Court to the Supreme Court of its judicial machinery. The introduction of
the old laws, however, is subject to the laws of the Constitution.
Chunnilal v. Mehta v. Century Spining and Manufacturing Co. Ltd., AIR 1962 SC 1314 
The facts of this case are that the respondent corporation dismissed the appellants as managing agents well before the
expiry of the contractual term. The appellants filed a complaint seeking damages in the Bombay High Court. In favor
of the respondent corporation, the H.C agreed. By special leave, the Appellants have moved to SC. The concern was
whether the creation of a title document that forms the basis of the parties' rights poses a question of law and does the
interpretation of that document pose a substantial question of law? In an earlier Bombay case, it was argued that no
significant question of law would occur simply because an inference was to be made from a complex decree. Also, in
Nagpur case, it was held that if it is relevant between the parties and the case turns on that, a substantial question of
law exists. SC disagreed with both of these views and agreed with that of the High Court of Madras (R. Subba Rao v.
N. Veeraja) and established following principles of a substantial question of law- 
A) It impacts the interests of the parties explicitly and significantly. It need not be a topic of general significance.
b. It is an open question, not finally resolved by this Court, or there is a doubt as to the legal theory at hand,
whether it calls for alternate opinions to be discussed.
c. Whether the matter is Either well decided, or if the general principles are well settled, and only its application
persists, or if the plea put out is qualitatively unreasonable, that is Not a serious question of law.
Koppi Setty v. Ratnam. V. Pamarti Venka 2009 RLR 27 (NSC) 
Section 100 was amended by the 1973 Recommendation of the Law Commission, which compelled it to formulate a
substantial question of law. For the satisfaction of the failed litigant, an unqualified right of first appeal might be
necessary, but the broad right of 2nd appeal is more a privilege. High courts now only have cases where there is a
substantial question of law and those matters have been specifically formulated in the Memo of Appeal.
15. Temporary Injunction Under CPC
Introduction
An injunction is a restraining writ issued by a court at the request of a party plaintiff, directed to a party defendant in
action, or a party made a defendant for that purpose, barring the other from doing something, or allowing his servants
or agents to do something, that he is threatening or trying to do, or restraining him from continuing to do something,
that is unjust and unfair, harmful to the Plaintiff, and unable to be effectively redressed.
Types of Injunctions
1. Preliminary Injunction
2. Preventive Injunction
3. Mandatory Injunction
4. Temporary restraining order
5. Permanent Injunction

59
Injunctions are documented by several Relief Acts (Specific Relief Act, 1963) and are carried out following the Civil
Procedure Code, 1908.
For example – if the Plaintiff is suing a name and a particular label for his product of, let’s say, pencils to sell them in
the market and found that Defendant has been using the same label and copyrighted name to sell his products of
pencils and stationery then the Plaintiff can file suit demanding Injunction based on trademark infringement or
through intellectual property rights.
Suppose someone is demolishing a building on which another person has rights. In that case, that person may
approach the appropriate Court to order that such person not demolish the property until the claim for the building is
resolved and a judgment is rendered in his favor.
An injunction is a court-issued remedy that prevents the commission of a threat of wrongdoing or the continuance of a
wrongdoing that has already occurred commenced.
Temporary Injunction (based on time)
The Court may impose a temporary restraining order to prevent the Defendant from causing any damage to the
Plaintiff’s property or threatening to sell it. This is an interim relief provided to ensure that Plaintiff’s rights are not
violated. The Court can issue this Injunction at any point throughout the trial, even before the case is resolved. The
Civil Procedure Code of 1908 governs temporary injunctions. The following are the provisions that govern it
Section 94 – This section tries to prevent the defeat of justice. Sub clause (c) refers to awarding temporary injunctions
and, in the event of non-compliance, even condemning the individual to civil prison or ordering the attachment and
sale of his property.
Section 95 – If the Plaintiff’s claim is dismissed, the Court may award the Defendant to compensate if he requests it.
Order 39 of CPC –
1. Order 39, Rule 1 lists the circumstances in which the Court may grant a temporary injunction as a statutory relief,
and they include:-
i. If the property in question is in danger of being squandered, damaged, alienated, or unlawfully sold by one of
the parties to the litigation, the Court may order that it be maintained.
ii. If Plaintiff is threatened with eviction or property damage by Defendant during the property dispute.
iii. Assume Defendant has broken the law or breached a contract. The ground described before is also emphasized
in Order 39, Rule 2 of the CPC, 1908.
iv. Finally, if the Court believes it would be in the best interests of justice, it may issue an injunction.
2. Order 39, Rule 2-A, deals with an individual’s failure to comply with an injunction; they are fined.
i. It stipulates that the person be held in civil prison for a maximum of three months.
ii. It also allows for the attachment of that person’s property for a period of up to a year. If the delinquency
persists, however, the property may be sold.
3. In most cases, the court must notify the opposing party of the injunction request. Even yet, under Order 39, Rule 3,
the Court can issue an ex-parte injunction if it feels the order’s aim will be jeopardized by the delay. In the case
of Union of India v. Era Educational Trust[1](2000), the Supreme Court established precise guiding principles for
courts to follow when deciding on an ex-parte injunction.
i. Will Plaintiff suffer irreparable harm as a result of Defendant’s actions?
ii. Is there a greater risk of injustice if an ex-parte injunction is not granted?
iii. Is it possible that the timing of the application for an ex-parte jurisdiction was chosen with malice?
iv. The courts will also take into account the broad concept of balance as well as irreparable harm.
4. According to Order 39, an injunction may be cancelled, altered, or set aside if any unhappy party files an appeal
against it.
i. The injunction was issued without the participation of the other party, notwithstanding the fact that the injunction
application and supporting documentation contained intentionally false or misleading assertions. As a result, the Court
will lift the injunction. It can, however, keep the injunction in place if it judges – for reasons to be documented – that
it is not essential for the discussion of injustice.
ii. Furthermore, if the party against whom the Injunction is given has endured undue burdens due to a change in
circumstances, the Court may set aside the Injunction.
5. Order 39, Rule 5 emphasizes that if an injunction is given against a corporation or a business, the Court’s authority
extends to the corporation as a whole and the members and executives of the corporation whose personal actions it
wishes to restrain.
Requirements for Temporary Injunctions

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1. Prima Facie Case
The basis for a lawsuit is a contested subject. The circumstances in those inquiries suggest that the Plaintiff or
Defendant may be entitled to compensation. A prima facie case does not mean that the Plaintiff or Defendant has
constructed an impregnable case that will almost certainly win in court. Simply put, the case they build for their
Injunction must be strong enough to avoid being rejected immediately.
2. Irreparable Loss
It would be a grave injustice if a person experienced irreparable harm as a result of the lawsuit before his legal
entitlement was determined in court. Situations like frustration over the loss of a sentimental item, on the other hand,
will not be regarded irreparable damage. If the Court does not have a fair or reasonable address, things that can be
repaired by nature will be regarded irreparable damage. When harm is persistent and recurring, or when it can only be
repaired through a series of litigation, it is usually irreversible. The difficulty of determining the level of injury and
inflicted damage is frequently referred to as “irreparable damage.” However, just because it’s difficult to prove injury
doesn’t mean it’s irreversible.
3. Balance of convenience
The Court must weigh the parties’ cases and determine whether the comparative harm or annoyance that would ensue
if the Injunction was not granted is higher than the harm or inconvenience that would result from granting it.
These requirements were laid under the Dalpat Kumar and Another v. Pralhad Singh And Others (1991[2]).
Facts of the case
A total of four litigation were brought in this case under CPC Order 39. On June 14, 1979, the appellant (Dalpat
Kumar) and the respondent (Prahlad Singh) agreed to the acquisition of a residential residence in Jaipur for Rs.
51,000. An action for particular performance was filed by the appellant. The respondent’s wife sought a provisional
injunction for the repossession of the residential house on April 28, 1984. The trial court denied the appellant’s request
for an ad interim injunction in May 1984, but the High Court upheld it on appeal on July 14, 1987.
The sons filed the lawsuit, saying that the residential residence was their joint property and that no property sale would
bind them. Thus they sought partition. They also sought an interim injunction, which the High Court denied on July 7,
1988. The respondent filed the fourth lawsuit on December 7, 1988, alleging that the first appellant had committed
fraud. He then requested an interim order to prevent the residential house from being repossessed. The High Court
granted an interim injunction preventing appellants from taking possession of the residential house in an order dated
February 26, 1991.
Judgment
The Supreme Court ruled that the High Court erred in evaluating the balance of convenience in favour of issuing the
injunction without taking into account any significant circumstances, evidence, or alienation. The Supreme Court
overruled the ruling of the High Court and upheld the judgement of the trial court. The Supreme Court further decided
that the decision to award the respondent a temporary injunction was made without considering all of the standards
and principles outlined in CPC order 39.
Examples where temporary Injunction can be granted
1. When any property in a suit is likely to be wasted, destroyed, and estranged by any party to the suit, or illegally sold
in in the operation of a decree; or
2. When Defendant threatens to deny the Plaintiff of his property or continues to threaten to cause injury to the
Plaintiff in relation with the property in dispute in the suit; or
3. When Defendant threatens to deprive Plaintiff of his property or to inflict injury to him.
4. In every circumstance, to prevent the Defendant from breaching a contract or causing any other harm;
5. Where Sections 38 and 41 of the Specific Relief Act do not allow for the grant of an everlasting injunction or an
obligatory injunction;
6. Where to stay, the implementation of an order for the transfer, suspension, reduction in rank, mandatory retirement,
dismissal, removal, or other termination of employment of any individual appointed to a public service and post in
connection with State matters, including any employee of any corporation owned or controlled by the state State
Government.
7. Where to stay any disciplinary actions, pending or planned, against any person assigned to the public service and to
a post in connection with the State’s business, including any employee of a corporation owned or controlled by the
State’s government; or
8. To place restrictions on any election
9. Where to suspend proceedings for the recovery of any dues receivable as revenue on land until suitable security is
supplied, and any injunction order imposed in violation of these rules shall be null and void.

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Can an injunction be granted to Defendant?
When deciding whether or not to award injunctive relief, the Court considers the ‘Trinity of Principles,’ which include
(I) Balance of convenience;
(ii) Prima facie case; and
(iii) Irreparable harm or injury that cannot be repaid by money.
The Supreme Court recently issued a notice in the case of Tamminedi Ramakrishna Etc. v. N. Jayalakshmi[3]. The
issue was whether the Defendant had any right to seek an injunction under Order XXXIX Rule 1 (c) of the Code.
The SLP challenges the Karnataka High Court’s order affirming the Trial Court’s decision and granted a temporary
injunction under CPC in the Defendant’s favor under Order XXXIX Rule 1 (a), (b), and (c) r/w Section 151 of the
Code. The High Court attempted to separate the three sub-rules of Order XXXIX Rule 1 of the Code, where sub-rules
(b) and (c) provide a remedy limited to the Plaintiff, as opposed to sub-rule (a), which is a general provision, in the
impugned ruling.
The opinions of various High Courts on the subject
The High Court of Travancore and Kochi (erstwhile) took the first position on this issue when it answered the
question of whether the Defendant can petition for an injunction against the Plaintiff without filing a counter-claim.
The Court answered yes in light of authorities in English Law, holding that Defendant can only seek a temporary
injunction under CPC against Plaintiff if their claim arises out of or is incidental to Plaintiff’s cause of action. For
decades, several High Courts have shared this viewpoint.
In Ganga Bricks Udhyog v. Jai Bhagwan Swarup[4], the Allahabad High Court provided interim relief to Defendant
by requiring Plaintiff to provide security for Defendant’s loss in the event of the suit’s defeat. The Court found that the
Defendant’s damage incurred due to the stay orders should also be protected because the defendants would be harmed
if the claim was dropped, dismissed, or if the status quo continued during the suit’s pendency.
Final Interpretation
The Code provides for a variety of ways for a party to seek a temporary injunction under CPC, as has been extensively
debated. The legislature’s aim, in the judgment, is evident from the terms employed in Order XXXIX Rule 1, which
specifically allows for the Plaintiff’s remedy against Defendant’s action/inaction under sub rule (b) and (c) (c). It is
just sub-rule (a) that is written in a non-partisan manner. As a result, the legislature has made an intentional distinction
between Plaintiff and Defendant in terms of the remedies available under the Code. As a result, it would be improper
for the Court to rule in the opposite direction, contrary to the legislature’s objective.
Conclusion
A sort of equitable remedies is an injunction. The Court has complete discretion in granting or denying an injunction.
Regardless of how good the applicant’s reason is, seeking redress as a matter of right is not attainable. As a result,
using the power to issue an injunction requires extreme caution, awareness, and forethought. It is a rare and sensitive
power that has the ability to cause the innocent party to suffer losses or disadvantages. As a result, unlike everything
else in the world, an injunction does not come with a guarantee.
A party cannot merely request a temporary restraining order; it cannot be denied arbitrarily by the Court. The Court
has complete discretion in granting or denying an injunction. The aforementioned ideas reflect the Court’s discretion,
which is exercised in each case depending on the facts and circumstances. Regardless of how good the applicant’s
case is, the relief cannot be sought as a matter of right. As a result, using the power to issue an injunction requires
extreme caution, awareness, and forethought.

16. Who is a receiver under the civil procedure code?

Under order 40 of CPC, The Receiver is an independent and impartial person who is appointed by the court to
administer/manage, that is, to protect and preserve a disputed property involved in a suit.
For example, in a dispute between A and B for an immovable property, if the court thinks that it is in the best interest
of both the parties that possession should be taken from B and given to an independent person, the court may appoint a
receiver who can manage the property till the time the suit is being decided. Such a receiver appointed by the court
would be responsible for the maintenance of the property. He can collect the income accruing like rent or any other
profits and utilize it to maintain the property. After deducting the expenses incurred in maintenance from the income
received from the property, the receiver will have to submit the remaining income, if any, in the court.
He is not representative of either of the parties in the action, is uniformly regarded as an officer of the court working
in the interest of neither plaintiff nor defendant but for the common benefit of all the parties.

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What is the purpose of the appointment of a receiver?
When a party in possession of the disputed property exhausts the property or causes irreparable damages to it, the
whole object of the suit gets defeated because the subject matter ceases to exist or its value gets affected. Therefore,
when the court is of the opinion that the property in dispute must not go to either of the parties, pendente lite, the court
appoints a receiver who is entrusted with the protection and preservation of such property. It is a form of interim
protection which the court provides to the parties who makes the application till the time the court adjudicates the
matter.

What is the role of a receiver?

The Receiver is regarded as an officer of the court and is the extended arm and hand of the court. He is entrusted with
the responsibility to receive disputed property or money given by the court and manage such property or money till
the time a decree is passed or the parties have compromised or any other period as the court deems fit. The property or
fund entrusted to the receiver is considered to be custodia legis i.e. in the custody of the law. The Receiver has no
power other than those entrusted to him by the court while appointing him.

Who can appoint a receiver?

According to the civil procedure code, the court before which the proceedings are pending can appoint a receiver if it
appears just and convenient to the court to appoint such receiver [section 51(d)]. It is within the discretionary power of
the court to appoint the receiver. For example, in a suit, the trial court can appoint a receiver. Whereas, in appeal, the
appellate court can appoint a receiver.  
However, the discretion is not absolute, arbitrary or unregulated. The expression “just and convenient” does not mean
the appointment is based on the whims and wishes of the judge on any grounds which stand against equity.

How does the court decide whether to appoint a receiver or not?

Court has to keep the following principles in mind before appointing a receiver:
1. Appointment of a receiver is a discretionary power.
2. It is a protective relief to the plaintiff. The object is to protect and preserve the disputed property till the
time the suit is pending in the court.
3. A receiver should not be appointed unless the plaintiff shows prima facie that he has a strong case against
the defendant and it is more than likely that he will succeed in the suit.
4. Appointment of a receiver is one of the hardest remedies as it deprives the defendant of his right to
possession before the final decree. Therefore, the
5. court should not resort to it merely on the ground that it will do no harm. There should be strong
apprehension that there is a danger to the property or the plaintiff will be in worse of a situation if the
appointment of a receiver is delayed.
6. The court should appoint a receiver only when there is a possibility of wrong or injury. Also, if it is shown
that the subject matter is not in the possession of any of the parties and it is in the common interest of both
the parties to appoint a receiver for the protection and preservation of the property.
7. The court should look at the conduct of the party who makes the application for appointment of a receiver.
The party should come to the court with clean hands and their conduct should be such that they are not
disentitled to this equitable relief.
The above principles were introduced by the Madras Court in the case of T. Krishnaswamy Chetty vs C. Thangavelu
Chetty And Ors., AIR 1955 Mad 430. These principles are now well established in the Indian jurisprudence.

Who can apply for the appointment of the receiver?

Generally, a plaintiff files the application for appointment of a receiver but defendants can also file such application.
A third party is not allowed to file the application but if he is interested in the protection and preservation of the
property, he can also make an application after taking permission from the court.

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Who can be appointed as a receiver?
A person who is independent, impartial and totally disinterested should be appointed as a receiver. Such a person
should not have any stake in the disputed property. Generally, parties to the suit are not appointed as receiver by the
court. But in extraordinary circumstances, a party to suit can be appointed as receiver.

When can a receiver be appointed?

The court can appoint receiver whenever the court is of the opinion that either party should not hold the property in
dispute. The court can appoint a receiver before or after a decree and can remove any person from the possession or
custody of the property and commit the same property in the custody or management of the receiver.
Under the code itself, the receiver can be appointed to prevent the ends of justice being defeated. [section 94(d)].
Similarly, for the execution of a decree, the court has the power to appoint a receiver. [section 51(d)].
There are provisions in special acts which provides for the appointment of a receiver by the court. For example,
section 84 of the Companies Act, 2013 provides for the appointment of a receiver.  Similarly, section 69A of the
Transfer of Property Act, 1882 also provides for the appointment.

What is the process of appointment of a receiver?

The process of appointment of a receiver is provided by the courts in their respective court rules. The high court has
the power to make rules for the superintendence and control of the subordinate courts.
For instance,
In chapter XIX of the Delhi High Court (Original Side) rules, 1967, the following process is provided:
1. Application for appointment shall be made in writing and shall be supported by affidavit.
2. Receiver other than the official receiver has to give security.
3. The security is to be given to the satisfaction of the registrar.
4. He has to provide personal bonds with the number of surety required by the registrar. The personal bond
will be double the amount of annual rental value of the property or the total value of the property which
the receiver is going to administer.
5. Within a week of appointment, the receiver will have to submit a report providing the details regarding the
property such as inventory of property or books of account etc.
6. The registrar will give directions on where to invest the money received by the receiver from the property.
Generally, such money is submitted in scheduled banks or government bonds.

What are the powers of the receiver?

Under order 40 rule 1(d) powers of the receiver are provided as following:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the court. For example, If a person obstructs
or interferes with the receiver’s right to possession, it will amount to obstruction in a court proceeding and such a
person can be made liable for contempt of court. Similarly, property in the hands of the receiver cannot be attached
without the leave of the court.  
The court has the discretionary power to not confer all the rights on the receiver. Even if the court has given all the
powers to him, he should take the advice of the court in all important decisions related to the property to protect
himself.
Without the permission of the court, the receiver cannot:
 Grant lease on the property.
 Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

What are the duties of the receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:
1. Furnish security to account for what he will receive from the property as income.

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 2. Submit accounts (half yearly) for such period or form as directed by the court. The account basically
includes the income received and expenses incurred for the protection and preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of the receiver’s willful
negligence.
5. Discharge the duties personally and should not delegate or assign any of the rights entrusted to him by the
court.
The receiver has to fulfil all the duties and responsibilities entrusted to him by the court. Otherwise, the court can take
action against him and make him personally liable for any loss which might occur due to his negligence or wilful
failure to protect and preserve the property.    

What are the liabilities of a receiver?

According to Order 40 rule (4), When a receiver fails:
1. To submit the reports as specified by the court or,  
2. To pay the amount due from him as directed by the court or,
3. Causes loss to the property due to gross negligence.
4. Any other duty which court directed him to do,
The court may order the attachment of property of the receiver to recover the loss caused due to his willful default or
negligence.
The court, after recovering all the losses from the proceeds received after selling receiver’s property, will pay the
balance (if any) to the receiver.
The receiver is bound in keeping down the expenses and taking care of the property in his possession as a prudent man
would observe in connection with his own property under similar circumstances.

Will a receiver be entitled to remuneration?  

Receivers are entitled to remuneration as fixed by the court for the services rendered by them. Also, a receiver has to
be provided for the loss or expenses incurred by him for maintaining the property.
Under order 40 rule (2), the court can fix the remuneration to be paid to the receiver for the services provided by him.
The court can pass a general or specific order regarding the same.  
For example, The Delhi high court has provided in Delhi High Court (original side) rules,1967, the  for remuneration
of the receiver as follows:
Rents recovered, outstanding recovered, the value realised on the sale of movable and immovable properties
calculated on anyone estate:
(i) On First Rs. 10,000 : 5 %
(ii) Above Rs. 10,000 up to Rs. 20,000 : 3 %
(iii) Above Rs. 20,000 up to Rs. 50,000 : 2 %
(iv) Above Rs. 50,000 up to Rs. 1,00,000 : 1 %
(v) Above Rs. 1,00,000 : ½ %
Similarly, for taking custody of money, 1 %, for taking custody of Government securities of stocks, shares, 1 % of
the estimated value.
If no remuneration is specified for any work, such remuneration can be granted, as the court may think reasonable, on
the application of the receiver.

Can a collector be appointed as a receiver?

Yes, according to (Order 40 rule 5), a collector can be appointed as a receiver if the revenue generated from the
property is received by the government, the court can appoint a collector as a receiver with his consent if the court
thinks that management of such property by collector will promote the interests of those who are concerned.

Conclusion
Clearly, the receiver plays an important role whenever the court requires the receiver to manage the subject matter in a
suit to protect and preserve it till the time, the court decrees the suit.
The receiver is an officer of the courts and the subject matter managed by him is considered to be in custody of the
law. The court appoints a receiver when the court is of the opinion that neither of the party should manage the

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property till the time the matter is decided. Any person can become a receiver provided they fulfil the requirements set
by the court.
A receiver should be of impartial, independent and indifferent character who has no stake in the subject matter and can
manage the property just as a prudent man will do with his own property. Court have vested certain powers and
responsibilities on the receiver which he should use to manage the property in the best way possible.
The receiver should be careful while making an important decision related to the subject matter as he is personally
liable for any damage to it. He can seek the permission of the court before making such decisions to be safe.

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