CPC – 5th Semester

LLB 5 t h SEMESTER
CIVIL PROCEDURE CODE

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CPC – 5th Semester

PAPER-I: SYLLABUS
CIVIL PROCEDURE CODE AND LAW OF LIMITATION

Unit-I: Codification of Civil Procedure and Introduction to CPC — Principal features

of the Civil Procedure Code — Suits — Parties to Suit — Framing of Suit — Institution
of Suits — Bars of Suit - Doctrines of Sub Judice and Res Judicata — Place of Suing —
Transfer of suits — Territorial Jurisdiction — ‘Cause of Action’ and Jurisdictional Bars
— Summons — Service of Foreign summons.

Unit-II: Pleadings — Contents of pleadings — Forms of Pleading — Striking out /

Amendment of Pleadings - Plaint— Essentials of Plaint - Return of Plaint- Rejection of
Plaint—Production and marking of Documents-Written Statement — Counter claim —
Set off – Application of Sec. 89 - Framing of issues.

Unit-III: Appearance and Examination of parties & Adjournments — Ex-parte

Procedure -Summoning and Attendance of Witnesses — Examination Admissions —
Production, Impounding, Return of Documents —Hearing — Affidavit — Judgment
and Decree — Concepts of Judgment, Decree, and Interim Orders and Stay —
Injunctions — Appointment of Receivers and Commissions — Costs - Execution —
Concept of Execution —General Principles of Execution — Power of Execution —
Power of Executing Courts — Procedure for Execution — Modes of Execution -- Arrest
and detention — Attachment and Sale.

Unit-IV: Suits in Particular Cases — Suits by or against Government — Suits relating

to public matters;— Suits by or against minors, persons with unsound mind, - Suits by
indigent persons -- Interpleaded suits — Incidental and supplementary proceedings -
Appeals, Reference, Review and Revision — Appeals from Original Decrees — Appeals
from Appellate Decrees — Appeals from Orders — General Provisions Relating to
Appeals.

Unit-V: Law of Limitation — Concept of Limitation — Object of limitation - General

Principles of Limitation — Extension — Condonation of delay — Sufficient Cause —
Computation of limitation -- Acknowledgment and Part -payment- Legal Disability —
Provisions of the Limitation Act, 1963 (Excluding Schedule)

Suggested Readings:
1. Mulla, The Code of Civil Procedure, LexisNexis, Butteworths, Wadhwa.
2. C.K. Takwani: Civil Procedure, Eastern Book Co., Lucknow.
3. Sarkar’s Civil Court Practice and Procedure, LexisNexis.
4. B.B. Mitra: Limitation Act, Eastern Law House, Calcutta, Allahabad.
5. 5.Sanjiva Row: Limitation Act, (in 2 Vols), Law Book Co., Allahabad.
6. Sanjiva Row: Code of Civil Procedure, (in 4 Vols), Law Book Co. Allahabad.
8. AIR Commentaries on Limitation Act, W.W. Chitaley, AIR Ltd., Nagpur.

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CPC – 5th Semester

ANSWERS TO IMPORTANT QUESTIONS

1. Place of suing
Answer: Jurisdiction of Civil Courts and Place of Suing:
Ubi jus ibi remedium – “Where there is a right, there is a remedy”.
The fundamental principle of English Law “that wherever there is a right,
there is a remedy” has been adopted by the Indian legal system. It means,
whenever the rights of a person is infringed or curtailed or the person is
stopped by anyone in enjoying the rights so guaranteed to him, there must
be some judicial forum having authority to adjudicate on the matter and the
rights so guaranteed should be restored or compensated as per the case.
To get the rights restored or claiming compensation or damage sustained,
person has to approach the appropriate forum, which has the authority to
adjudicate on the matter and award the relief so sought. So, the forum must
have jurisdiction to deal with that matter.

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CPC – 5th Semester

Jurisdiction generally means the power or authority of the court of law to

hear and determine a cause or a matter. In other words, jurisdiction is meant
the authority which a court has to decide the matters that are litigated
before it or to take cognizance of matters presented in a formal way for its
decision.
The extent of jurisdiction will be determined with reference to the subject-
matter, pecuniary value and the local limits. So, while the question of
jurisdiction of a court is determined, the nature of the case, the pecuniary
value of the suit, and the territorial limitation of the court need to be taken
into consideration.
Not only that, there may be a situation wherein the forum approached may
have competency to deal with the subject-matter, the suit is falling well
within the pecuniary limitation and within the local limits assigned with that
court as well, but if the court is not competent to grant the relief sought then
also the court cannot be considered as the court having jurisdiction as
observed in Official Trustee V. Sachindra Nath, AIR 1969 SC 823; the supreme
court observed:
“That before a court can be held to have jurisdiction to decide a particular
matter it must not only have jurisdiction to try the suit brought but must also
have the authority to pass the order sought for.”
Jurisdiction of a Civil Court: Section 9 of the Code of Civil Procedure:
The Courts shall (subject to the provisions herein contained) have jurisdiction
to try all suits of a civil nature excepting suits of which their cognizance is
either expressly or impliedly barred.
Explanation I- A suit in which the right to property or to an office is contested
is a suit of a civil nature, notwithstanding that such right may depend
entirely on the decision of questions as to religious rites or ceremonies.
Explanation ll- For the purposes of this section, it is immaterial whether or
not any fees are attached to the office referred to in Explanation I or whether
or not such office is attached to a particular place.
As mentioned under Sec-9 of the Code, the civil courts have jurisdiction to
deal with all matters provided it is a matter of civil nature and it is not
expressly or impliedly barred.
The word civil is not defined in the Code; however as per dictionary meaning
it pertains to the private rights and remedies as distinguished from criminal
and political. The word nature indicates the fundamental quality of a thing or
person, its identity or the essential character. Hence, the suit of civil nature
may be understood as a suit in which the fundamental question for
determination, the matters in controversy primarily relating to the private
rights and obligations, not to be related to political or religious rights and
obligations; and if it is so the civil courts have the jurisdiction provided it is
not expressly or impliedly barred.
However, the court cannot try any suit if its cognizance is either expressly
or impliedly barred. A Suit is said to be expressly barred if it is barred by any
enactment for the time being in force. It is open to the legislature to bar the
jurisdiction of civil court with respect to a particular class of suit keeping
itself within the ambit of power conferred on it by the Constitution of India.
The development of the tribunal has taken away the jurisdiction of the
civil court with respect to the subject matter allotted to that tribunal on the
first stage, however if any question of law so raised, or any provision of the
act which has so created the tribunal that can be looked into by the civil
court. Thus, matters falling within the exclusive jurisdiction of the Revenue
Courts or under the Code of Criminal Procedure or matters dealt with by

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special tribunals under the relevant statutes, e.g. by Industrial Tribunal,

Cooperative Tribunal, Income Tax Tribunal, Motor Accident Claims Tribunal,
etc., are expressly barred from the cognizance of the Civil Courts.
A suit is said to be impliedly barred when it is barred by the general
principle of law. In fact, certain suits, though of a civil nature, are barred
from the cognizance of a civil court on the ground of public policy. The
principle underlying is that a court ought not to countenance matters which
are injurious to and against the public weal. Thus, no suit shall lie for
recovery of costs incurred in a criminal prosecution or for enforcement of a
right upon a contract hit by Section 23 of the Indian Contract Act, 1872; or
against any judge for acts done in the course of his duties, etc.
Kinds of Jurisdiction and Place of Suing: Sections 15 -21
There are basically three kinds of jurisdictions on the basis of which the
place of suing may be determined. These are
1. Pecuniary Jurisdiction (Section 15)
2. Territorial Jurisdiction (Sections 16 – 20)
3. Subject Matter Jurisdiction (Section 21)
4. Original and Appellate Jurisdiction
5. Exclusive and Concurrent Jurisdiction
6. General and Special Jurisdiction, and
7. Legal and Equitable Jurisdiction.
If the matter put forth by the litigant for adjudication in front of the court,
and the court have all these (pecuniary, territorial and Subject-Matter)
jurisdiction, then only that court can try the matters so brought by the
litigants. In case, the court does not have any of the above mentioned
jurisdictions and still try the suit, it will be either termed as
arbitrary/irregular/illegal exercise of jurisdiction or lack of jurisdiction which
may turn the decision void or voidable depending upon the situations.

A. Pecuniary Jurisdiction: Sec-15:

Every suit shall be instituted in the Court of the lowest grade competent to
try it.
The words competent to try indicate the competency of the court with
respect to the pecuniary jurisdiction. It means, the courts of lowest grade
that has the jurisdiction with respect to pecuniary value shall try the suit at
first.
Now, the biggest question is who will determine the valuation of the suit
for the purpose of determining the pecuniary jurisdiction of the court. In
general, it is the valuation done by the plaintiff is considered for the purpose
of determining the pecuniary jurisdiction of the court, unless the court from
the very face of the suit finds it incorrect. So, if the court finds that the
valuation done by the plaintiff is not correct, that is either undervalued or
overvalued, the court will do the valuation and direct the party to approach
the appropriate forum.
So, prima facie, it is the plaintiff’s valuation in the plaint that determines
the jurisdiction of the court and not the amount for which ultimately decree
may be passed. Thus, if the pecuniary jurisdiction of the court of lowest
grade is, say, Rs. 10,000/- and the plaintiff filed a suit for accounts wherein
the plaintiff valuation of the suit is well within the pecuniary jurisdiction of
the court but court latter finds on taking the accounts that Rs. 15,000/- are
due, the court is not deprived of its jurisdiction to pass a decree for that
amount.

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CPC – 5th Semester

Usually, a court will accept a valuation of the plaintiff in the plaint and
proceed to decide the matter on merits on that basis, however, that does not
mean that plaintiff in all cases are at liberty to assign any arbitrary value to
the suit, and to choose the court in which he wants to file the suit.
If it appears to the court that the valuation is falsely made in the plaint for
the purpose of avoiding the jurisdiction of the proper court, the court may
require the plaintiff to prove that the valuation is proper.
Next important question is the status of decision given by the court that
does not have the pecuniary jurisdiction in the matter. That is, what if the
Court proceeded with the matter and later come to know that it did not have
the pecuniary jurisdiction. (The matter will be dealt under heading – irregular
exercise of jurisdiction).
Pecuniary jurisdiction in the state of Telangana is prescribed as per Section
16 of the TELANGANA CIVIL COURTS ACT, 1972.
(1) The pecuniary jurisdiction of a District Judge, shall subject to the
provisions of the Code of Civil Procedure, 1908 and the other provisions of
this Act, extend to all original suits and proceedings of a Civil nature
including Land Acquisition original petitions, the amount or value of the
subject matter of which exceeds rupees fifty lakhs.
(2) The pecuniary jurisdiction of a Senior Civil Judge shall extend to all like
suits and proceedings of a Civil nature including Land Acquisition original
petitions not otherwise exempted from his cognizance under any other law
for the time being in force, the amount or value of the subject matter of
which exceeds rupees twenty lakhs but does not exceed rupees fifty lakhs.
(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits
and proceedings, not otherwise exempted from his cognizance under any
other law for the time being in force, the amount or value of the subject
matter of which does not exceed rupees twenty lakhs.
B. Territorial Jurisdiction: Sections 16 to 20
Immovable Property: Sec- 16-18
Section 16: Suits to be instituted where subject-matter situate Subject to the
pecuniary or other limitations prescribed by any law, suits-
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
(d) for the determination of any other right to or interest in immovable
property,
(e) for compensation for wrong to immovable property,
(f) for the recovery of movable property actually under distraint or
attachment, shall be instituted in the Court within the local limits of whose
jurisdiction the property is situate :
Provided that a suit to obtain relief respecting, or compensation for wrong
to, immovable property held by or on behalf of the defendant, may where the
relief sought can be entirely obtained through his personal obedience be
instituted either in the Court within the local limits of whose jurisdiction the
property is situate, or in the Court within the local limits of whose jurisdiction
the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Section 17: Suits for immovable property situate within jurisdiction of
different Courts
Where a suit is to obtain relief respecting, or compensation for wrong to,
immovable property situate within the jurisdiction of different Court, the suit

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may be instituted in any Court within the local limits of whose jurisdiction any
portion of the property is situate:
Provided that, in respect of the value of the subject matter of the suit, the
entire claim is cognizable by such Court.
Section 18: Place of institution of suit where local limits of jurisdiction of
Courts are uncertain
(1) Where it is alleged to be uncertain within the local limits of the
jurisdiction of which of two or more Courts any immovable property is
situate, any one of those Courts may, if satisfied that there is ground for the
alleged uncertainty, record a statement to that effect and thereupon proceed
to entertain and dispose of any suit relating to that property, and its decree
in the suit shall have the same effect as if the property were situate within
the local limits of its jurisdiction: Provided that the suit is one with respect to
which the Court is competent as regards the nature and value of the suit to
exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and
objection is taken before an Appellate or Revisional Court that a decree or
order in a suit relating to such property was made by a Court not having
jurisdiction where the property is situate, the Appellate or Revisional Court
shall not allow the objection unless in its opinion there was, at the time of
the institution of the suit, no reasonable ground for uncertainty as to the
Court having jurisdiction with respect thereto and there has been a
consequent failure of justice.
Movable Property – Section 19: Suits for compensation for wrongs to person
or movables
Where a suit is for compensation for wrong done to the person or to movable
property, if the wrong was done within the local limits of the jurisdiction of
one Court and the defendant resides, or carries on business, or personally
works for gain, within the local limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff in either of the said
Courts.
Illustrations:-
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or
in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B
may sue ‘A’ either in Calcutta or in Delhi.
Other Suits: Section 20
Section 20: Other suits to be instituted where defendants reside or cause of
action arises
Subject to the limitations aforesaid, every suit shall be instituted in Court
within the local limits of whose jurisdiction-
(a) the defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally work for gain, as aforesaid, acquiesce in such
institution; or
(c) the cause of action, wholly or in part, arises.

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Explanation-A corporation shall be deemed to carry on business at its sole or

principal office in India or, in respect of any cause of action arising at any
place where it has also a subordinate office, at such place.
Illustrations:-
(a) A is a tradesman in Calcutta; B carries on business in Delhi. B, by his
agent in Calcutta, buys goods of A and requests A to deliver them to the East
Indian Railway Company. A delivers the goods accordingly in Calcutta. A may
sue B for the price of the goods either in Calcutta, where the cause of action
has arisen or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi, A, B and C being together
at Benaras, B and C make a joint promissory note payable on demand, and
deliver it to A. A may sue B and C at Benaras, where the cause of action
arose. He may also sue them at Calcutta, where B resides, or at Delhi, where
C resides; but in each of these cases, if the non-resident defendant objects,
the suit cannot proceed without the leave of the Court.
So, when a suit is related to immovable property, the court within whose
local jurisdiction property is situated have the jurisdiction to try the matter.
In case when a part of the property is situated in the local limit of the other
courts as well, I mean when the property is situated in more than one
territorial limits of the courts than in that case the courts in whose territorial
limit any portion of the property is situated have the jurisdiction and in such
situation it is the plaintiff who will decide which court to approach. Where it
is not possible to say with certainty that the property is situated within the
jurisdiction of the one or the other of several courts, in such case one of
these several courts, if it is satisfied that there is such uncertainty, may after
recording a statement to that effect proceed to entertain and dispose of the
suit.
When suit is related to movable property, as we know moveable property
follow the person and hence suit may be brought at the option of the plaintiff
either at the place where the wrong is committed or where the defendant
resides, carries on business or personally works for gain. Where such wrong
consists of series of acts, a suit may be filed at any place where any of the
acts has been committed. Similarly, where a wrongful act is committed at one
place and the consequence ensue at another place, a suit may be instituted
at the option of the plaintiff where the action took place or the consequences
ensued.
A suit for compensation for wrong (tort) to a person may be instituted at
the option of the plaintiff either where such wrong is committed, or where
defendant resides, carries on business or personally works for gain.
Section 20 provides for all other cases not covered under any of the
foregoing rules.

C. Jurisdiction as To Subject-Matter:
Different courts have been empowered to decide different types of suits.
Certain courts have no jurisdiction to entertain certain suits. For examples,
suits for testamentary succession, divorce cases, probate proceedings,
insolvency matters, etc. cannot be entertained by a Court of Civil Judge
(Junior Division). This is called jurisdiction as to subject matter.
I mean, every court have been allotted the subject over which the court
can entertain the matter, and the subject which is not within the purview of
the court, that court cannot deal with that matters at all.
The subject matter can be defined as the authority vested in a court to
understand and try cases concerning a special type of subject matter. In

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other words, it means that some courts are banned from hearing cases of a
certain nature. No question of choices can be decided by the court which do
not have subject matter jurisdiction. Section 21 of the Code of Civil Procedure
is related to the stage challenging the jurisdiction. For Example, “Ranveer”, a
resident of Sonipat bought a food item of ‘AA’ brand that was plagued with
pests. He should prosecute ‘ZZ’ company in Sonipat District forum rather
than District Civil Court of Sonipat.

2. Define Sub Judice (Sec 10) and Res judicata (Sec 11) and what the
differences are?
Answer: In the common law, several principles have been laid down which
formed the foundation of the present legal system in India. The purpose of
such doctrines is to assess the Judicial Efficiency and ensure that the
productive pace of getting justice in the court is achieved and maintained.
Two of these principles are discussed in this article, namely, the Doctrine of
Res Sub Judice and Res Judicata.
In Latin, Res Judicata means a matter that has been judged. When a case
has already been decided and the final judgment has been given such that
the matter is no longer subject to appeal, the doctrine of res judicata bars or
precludes continued litigation of such matter between the same parties.
On the other hand, Sub Judice means ‘under judgment’. It implies that a
matter is being considered by court or judge. In a scenario when two or more
cases are filed between the same parties on the same subject matter, the
competent court has the power to stay proceedings. So, the doctrine of Res
Sub Judice means stay of suit.
In order to ensure that the courts’ time is effectively used as well as
justice for all is obtained, these doctrines play an important role. They do this
by ensuring that a suit ends after the judgment is passed and that the same
suit on the same subject matter is not filed multiple times. This ensures
smooth functioning of the judiciary.

Res Sub Judice

When two or more cases are filed between the same parties on the same
subject matter, in two or more different Courts, the competent court has
power to “Stay Proceedings” of another Court. The doctrine of res sub judice
aims to prevent courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigations with respect to the
same cause of action, same subject matter and same relief claimed.

Application of Res Sub Judice in India

Section 10 of Civil Procedure Code defines ‘Stay of suit’ as follows:
“No Court to proceed with trail of any suit in which the matter in issue, is
also directly and substantially in issue. In previously instituted suit between
the same parties, or between parties under whom they or any of them claim,
litigating under the same title, where such suit is pending in same or any
other Court, in India, Having jurisdiction to grant relief claimed. Explanation:
The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India
from, trying a suit founded on same cause of action.”
Scope and Objective of Section 10
Scope: Section 10 deals with the concept of Res Sub Judice.
Objective: The object of Section 10 is to prevent Courts of concurrent
jurisdiction from simultaneously, trying two parallel cases, in respect of same
matter in issue. The two fold objects are:

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 Avoid wasting Court Resources.

 Avoid Conflicting decisions.
 Avoiding unnecessary harassment of parties.
Conditions or essentials
 The matter in issue in both the cases is to be substantially the same
 Previously instituted suit must be pending in the same or any other
court competent to grant:
o Relief claimed in the suit.
o Relief claimed in subsequent the suit.
 Suits to the parties are to be the same or between parties under whom
they or any of them claim, litigating under the same title.
 Pendency of suit in Foreign Court doesn’t activate Section 10 of CPC.
 If suit is pending before a Court and subsequently an application is filed
before a Tahsildar, it doesn’t invoke Section 10 as Tahsildar is not a
“Court”
 For purpose of institution, the date of presentation of plaint and not the
date of admission is considered. The term suit includes appeal.
 Any decree passed in violation of Section 10 is null and void.
Illustration: Papita, an agent of Babita at Delhi agreed to sell Babita’s goods
in Chennai. Papita, the agent files suit for balance of accounts in Chennai.
Babita sues the agent Papita for accounts and his negligence in Delhi; while
case is pending in Chennai. In this case, Delhi Court is precluded from
conducting trail and Papita can petition Chennai Court to direct stay of
proceedings against Delhi Court.
Cases: Escorts Const. Equipment Ltd V Action Const Equipments Ltd 1998
Facts: The defendant had filed for stay of present suit, an application u/s 10
CPC, on ground that the matter in controversy is pending in Jamshedpur
Court also. This was opposed by plaintiff on ground that, the defendants had
raised issue of jurisdiction of Jamshedpur Court to entertain same suit; and
that application u/s 10 CPC can be filed in the present suit, only if objection
with respect to lack of jurisdiction was withdrawn in Jamshedpur Court.
Judgment: Court held that the conditions requisite to invoke Section 10 CPC
are:
 Matter in issue in both the suits to be substantially the same.
 Suit to be between the same parties or parties litigating under them
 Previously instituted suit to be in the same Court or a different Court,
which has jurisdiction to grant the relief asked.
There is nothing to the effect that defendant should not question the
competency of previously Court in the previously instituted suit, and there
remains the fact that the plaintiff in their defence against Section 10 CPC,
had not stated the Jamshedpur Court is competent. Thus relief was granted
to the defendant.
Dees Piston Ltd V State Bank of India 1991: In this case, it was held that.
When a matter is before a competent Civil Court, the National Commission
will not entertain a petition in respect of identical subject matter under
Consumer Protection Act.
Indian Bank V Maharashtra State Co-Operative Marketing Federation 1998:
The court in this case held that, the object of prohibition in Section 10 CPC, is
to, prevent courts of concurrent Jurisdiction from simultaneously trying two
parallel cases avoid inconsistent findings on the matter in issue.

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Res Judicata: In case of Res Judicata, a matter once decided cannot be raised
again, either in the same court or in a different court. This is why it is also
called as ‘claim preclusion’ as it precludes or prohibits any further claims
after the final judgment. It is a common law practice meant to bar re-
litigation of cases between the same parties in the court.
The doctrine of Res Judicata come from the full maxim ‘Res judicata pro
veritate accipitur’. The concept of Res Judicata evolved from the English
Common Law system, and was derived from the overriding concept of judicial
economy, consistency, and finality. From the common law, it got included in
the Code of Civil Procedure, which was later as a whole was adopted by the
Indian legal system.
Purpose of Res judicata: Res Judicata aims to prevent;
 Injustice to the parties of a case that has been supposedly concluded by
providing closure to a judgment and precluding any further claims
 Unnecessary waste of court resources
 Multiplying of judgments as further claims would lead to several varied
judgments on the same matter which will lead to confusion
 Recovery of damages from the defendant twice for the same injury
Res judicata includes
 Claim preclusion: it focuses on barring a suit from being brought again
on a legal cause of action, which has already been, finally decided
between the parties.
 Issue preclusion: bars the re-litigation of factual issues that have
already been necessarily determined by a judge as part of earlier claim.
Though it must be noted that, this doesn’t include the process of appeal, an
appeal is considered the appropriate way to challenge a judgment. Once the
appeal process is exhausted or barred by limitation, the res judicata will
apply to the decision. Therefore, its application is only on the final decision
post appeals.

Maxims
Doctrine of res judicata or rule of conclusive judgment is based on the
following three maxims:
 Nemo debet lis vexari pro eadem causa– no man to be vexed twice for
the same cause.
 Interest republicae ut sit finis litium– it is in the interest of the state
that there should be end to litigation.
 Re judicata pro veritate occipitur– a judicial decision should be accepted
as correct.
In the case of Ashok Kumar v National Insurance Company 1998, the Supreme
Court observed that the first legal maxim takes care of the private interest
and the next two of the larger interest of the society.
Res Judicata under Indian law
Res judicata or the rule of conclusiveness of the judgment has been
embodied in the Indian law under Section 11 of the Code of Civil Procedure,
1908. 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. Section 11
states that;
“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

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subsequent suit or the suit in which such issue has been subsequently raised,
and has been heard and finally decided by such Court.”
In the case of Satyadhyan Ghosal v. Deorjin Debi, Hon’ble Justice Das Gupta
explained the doctrine of Res Judicata as;
“The principle of res judicata is based on the need of giving finality to judicial
decisions. What it says is that once a res is judicata, it shall not be adjudged
again. Primarily it applies as between past litigation and future litigation.
When a matter, whether on a question of fact or a question of law, has been
decided between two parties in one suit or proceeding and the decision is
final, either because no appeal was taken to a higher Court or because the
appeal was dismissed, or no appeal lies, neither party will be allowed in a
future suit or proceeding between the same parties to canvass the matter
again.”
Ingredients and essentials of Section 11:
According to this section, no court shall try any suit or issue in which:
 The matter in issue (directly and substantially) has been directly and
substantially in issue in a former suit
 Such matter in the former suit had been between the same parties or
between parties claiming under them
 The matter must be litigated under the same title in a court competent
to try such suit or a suit in which the matter has been subsequently
raised and has been heard and finally decided by such court
Mandatory Provision:
Further, it must be noted that Section 11 is a mandatory provision and not
directory in nature. The only exception in which a former suit can be avoided
is by taking recourse of Section 44 of the Indian Evidence Act, 1872 on
grounds of fraud or collusion.
The same was discussed in the case of Beli Ram and Brothers v Chaudri
Mohammad Afzal, where the court held that when it was established that the
guardian of the minor had acted in collusion with the defendant, it doesn’t
operate as res judicata and can be set aside by invoking Section 44 of the
Indian Evidence Act.
Further, in the case of Jallur Venkata Seshayya v. Tahdaviconda Koteswara
Rao, 1937 the court held that, gross negligence in former suit doesn’t amount
to fraud or collusion and thus acts as bar to subsequent suit.
The following are also to be taken into account:
 Former suit denotes a suit which has been decided prior to the suit in
question, and not if it was prior to this suit. I.e. The cut-off is date of
judgment and not the date of institution of the suit.
 Competency of a court is to be decided, irrespective of the right to
appeal from a former suit.
 The matter referred to in this suit must have been alleged by one party
and either accepted or refused by the other party (expressly/impliedly).
 Any matter which might or ought to have been made ground of
attack/defence in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit (constructive res
judicata).
 If any relief was claimed in plaint and was not granted expressly, it
would be deemed to have been refused in such former suit.
 when persons litigate bonafide in respect of a public/private right
claimed in common for themselves and others, all persons interested
for the purpose of section 11, will be deemed as claiming under persons

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CPC – 5th Semester

litigating, it is also to be remembered that, a court of limited

jurisdiction where the former suit was instituted and decided upon,
shall operate as res judicata, even if the court of limited jurisdiction is
not competent to try the subsequent suit. This section 11 applies to
execution proceedings also.
Public Interest Litigations:
In case of res judicata, a Public Interest Litigation can be applicable only
when the former suit was bonafide in nature and that it will not act as a
shield in cases where public good is threatened or questioned.
 In the case of Rural litigation and Entitlement Kendra v State of Uttar
Pradesh, the Supreme Court observed that the writ petition before
them was not an inter-party dispute and the controversy in it was
whether mining was to be allowed or not. Thus it was a matter that
decided the social safety and providing hazardous free environment. It
was further discussed by the court that this matter was of grave public
importance and therefore, res judicata could not be used as a shield.
 Further in the case of Ramdas Nayak v Union of India, court observed
that, by invoking re judicata, it was high time for the court to end
repetitive litigations coming under the grab of public interest
litigations.
 In Slochana Amma v. Narayana Nair 1994, the court held, the doctrine
of res judicata applies to quasi-judicial proceedings before tribunals
also.
 In the case of Govindaswamy v. Kasturi Ammal 1998, it was held by the
court that, the doctrine of res judicata applies to the plaintiff as well as
the defendant.
 The court held in the case of Umayal Achi v MPM Ramanathan Chettiar
that the correctness or otherwise of a judicial decision has no bearing
upon whether or not it operates as res judicata.
Applications of res judicata
The doctrine of res judicata can be invoked even in the subsequent stage of
the same proceedings. In the case of Y.B. Patil v. Y.L.Patil, the court held that
once an order is made in the course of the proceedings, it becomes final and
therefore would be binding upon the parties at any subsequent stages of the
same proceedings.
This doctrine can also apply against co-defendants. In the case of Mahaboob
Sahab v Syed Ismail, the court held the following four conditions must be
satisfied for the application of res judicata:
 There must be a conflict of interest between the defendants concerned.
 it must be necessary to decide such conflicts, in order to give relief to
the plaintiff
 The questions between the defendants to be finally decided.
 Co-defendants to be necessary and proper parties to the suit.
Non-application of res judicata
 Habeas corpus petitions: In the case of Sunil Dutt v Union of India, it
was held that habeas corpus, filed under fresh grounds and changed
circumstances will not be barred by a previous such petition.
 Dismissal of writ petition in limine: In Pujari Bai v Madan Gopal, it was
held res judicata not applicable when dismissed in limine (without
speaking orders) or on grounds of laches or availability of alternate
remedies.

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 Matter collaterally and incidentally in issue doesn’t operate as res

judicata as discussed in the case of Sayed Mohammad v Musa Ummer.
 Public Interest Litigations: As said by SC in Rural Litigation and
Entitlement Kendra vs. State of Utter Pradesh, when the matter is of
grave public importance the res judicata could not be used as a shield.
 When the judgment is influence by fraud and collusion, the judgment
will not attract res judicata as per Section 44 of the Indian Evidence
Act, 1872 on grounds of fraud or collusion.

Conclusion: With the ever-increasing cases in the courts and the heightened
burden on the courts because of several frivolous and repetitive suits, it is
inevitable that to ensure smooth functioning of the judicial system as well as
for providing justice to needy parties that these two doctrines are rigorously
implemented. These doctrines are not and must not be used for the purpose
of avoidance of justice. Rather, the purpose is to make the judiciary more
efficient.
The doctrine of Res Sub Judice operates as a stay from the same subject
matter in issue being parallel instituted in two different Courts and the twin
objectives of Section 10 CPC are:
 Avoiding conflicting decisions and findings.
 Avoiding wastage of Court resources and time.
The doctrine of Res Judicata, on the other hand, aims to ensure that a matter
once closed after exhaustion of all remedies is not re-opened. This is
important as if it was not in place, the cases would go on in perpetuity and
there would be no conclusion in any matter.

The distinction between “Res Sub Judice” and “Res Judicata”

 Res Sub Judice is discussed in Section 10, CPC; while Res Judicata is
discussed in Section 11, CPC.
 Res Subjudice applies to the proceedings pending in the court, i.e.,
matters pending judicial inquiry; while Res Judicata applies to matters
already adjudicated upon.
 Res Subjudice stays the latter suit instituted in the court which has the
same matter directly and substantially in issue in the previous suit;
while Res Judicata bars the trial of a suit in which the matter is directly
and substantially in issue has already been adjudicated upon in a
previous suit.
 In the case of Res Subjudice, the previously instituted suit must be
pending in the same court in which the subsequent suit was brought or
in a different court having jurisdiction to grant the relief claimed; while
in Res Judicata, No such requirement is needed.

3. Who can be joined as parties in a civil suit? (Parties to suit) and effect of
non-joining of a necessary party to a suit?
Answer: In a civil suit, the presence of both the plaintiff, who files the suit,
and the defendant, who is sued, is necessary. In each case there are two
categories; first one is the necessary party and the other is proper party. 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.

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There are some example of the necessary party and proper party:-

Necessary parties:-

 In a suit for partition, all sharers are necessary party,

 In a suit for the declaration to set aside public auction, purchaser of
property in a public auction is a necessary party,
 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.
Proper parties:-
 In a suit for possession, by a landlord against his tenant, a sub-tenant
is only a proper party,
 In a suit for partition, by a son against their father, grandsons are
proper parties to the suit,
 In a land acquisition proceedings, the local authority for whose benefit
land in sought to be acquired by the Government is a proper party.

One of the essentials of suit is parties and every suit must have two parties:
 Plaintiff and
 The defendant.
Joinder of Plaintiffs: Plaintiff is the person who brings an action at law by
filing a declaration in the common law procedure, or a complaint under code
procedure.
 According to Rule 1 of Order 1 of the Code of Civil Procedure, all
persons may be joined in one suit as plaintiffs where –
a). any right to relief of , or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist in such persons, whether
jointly, severally or in the alternative, and
b). if such persons brought separate suits, any common question of law or
fact would arise.
 Where the interests of two plaintiffs are identical and not antagonistic
they can sue joint.
 All persons having a common cause of action are entitled to join as
plaintiffs. But separate cause of action in respect of several plaintiffs
could not be joined. Similarly, persons who have individual causes of
action cannot join as plaintiffs.
 Co-plaintiffs may also be joined so as to award relief to one or other of
them.
 Several persons having distinct shares in certain properties can join in
a suit against in possession under a deed of gift sought to be set aside.
 Co-sharer landlords can sue tenants collectively even if they collect rent
separately and the rent refers to different periods.
 All co-owners must join in a suit to recover their property.
 A Hindu widow and her daughters can sue in one suit for maintenance
and for the marriage expenses of the daughters.
 All members of a firm are proper parties to a suit on a pronote in favour
of the firm when the obligation on it was contracted.
 Joint suit by two or more pre-emptors to exclude a stranger from
entering the property, in exercise of their right of pre-emption, is
maintainable.

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Misjoinder of Plaintiffs: Two or more persons may be joined as plaintiffs in

one suit if the right to relief alleged to exist in each plaintiff arises from the
same act or transaction and there is a common question of law or of fact.
Where there are more plaintiffs than one, and they are joined together in one
suit, but the right to relief in respect of or arising out of the same act or
transaction or series of acts or transactions alleged to exist in such persons
does not arise out of the same act or transaction and if separate suits were
brought, no common question of law or fact would arise, it is considered as
‘misjoinder of plaintiffs’.

Joinder of Defendants: Defendant is a person who is being accused or alleged

in a civil action or who is prosecuted in criminal action. According to Rule 3
of Order 1 of the Code of Civil Procedure, all persons may be joined one suit
as defendants where –
a). any right to relief in respect of, or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist against such
persons, whether jointly, severally or in the alternative; and
b). if separate suits were brought against such persons, any common
question of law or fact would arise.
The plaintiff is not obliged to implead a person as a defendant in the suit,
against whom no reliefs is sought. The plaintiff cannot compel to implead
unwanted and unnecessary parties who are neither necessary nor proper
parties for deciding the dispute in the suit. To bring a person as party-
defendant is not a substantive right but one of procedure and the court has
discretion in its proper exercise.
The general principle regarding the joinder of defendants would seem to
be that there must be a cause of action in which all the defendants are more
or less interested, although the relief asked against them may vary; and
separate causes of action against separate defendants cannot be joined in an
action.
Misjoinder of Defendants: Misjoinder of defendants takes place where two or
more persons are joined as defendants in one suit, but the right to relief
alleged to exist against such of them does not arise from the same act or
transaction and there is no common question of law or of fact. A misjoinder
of defendants and causes of action takes place where in a suit there are two
or more defendants and two or more causes of action, but different causes of
action have been joined against different defendants separately.

Effect of non-joining of a necessary party to a suit: In the absence of

necessary parties, the court may dismiss the suit, as it shall not be able to
pass an effective decree. But a suit can never be dismissed due to absence of
non-necessary parties. The underlying logic is that the burden of providing
relief should rest upon all the defendants. It would be unfair if only some of
the defendants had to discharge this burden. Therefore, the plaintiff has to
implead all those parties from whom he is claiming relief to the suit.

4. Counter claim and set off explain and distinguish.

Answer:
Counterclaim under Order 8, Rules 6A to 6G:
 In every lawsuit, there is a plaint by the plaintiff and a written
statement by the defendant. In the written statement defendant can
make a plea of set-off and counterclaim against the plaintiff.

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 A defendant in a lawsuit may, in addition to the right of pleading a set-

off under Order 8 Rule 6, claim a right of counterclaim against the
plaintiff in his written statement.
 Counterclaim means a claim made by the defendant in a suit against
the plaintiff. It is a claim independent of and separable from, the claim
of the plaintiff which can be enforced by a cross-action. Generally, it is a
cause of action against the plaintiff but in favour of the defendant. It is
treated as plaint of the defendant against the plaintiff and governed by
the rules applicable to the plaints. A plaintiff may file a written
statement against the counterclaim of the defendant.
Doctrine of Counterclaim explained: Defendant has a plea to defeat the relief
sought by the plaintiff against him is a counterclaim. Therefore, in addition to
his right of set-off, a defendant in a suit may set up a counterclaim. It may be
set up only in respect of a claim for which the defendant is entitled to file a
separate suit.
The main objects of counterclaim are as follows:-
1. To save the time of the courts,
2. For avoiding the multiplicity of the suit,
3. For excluding the inconvenience to the parties to the litigation,
4. For deciding the all disputes between the same parties to avoid the
multiplicity of the suit,
5. To avoid prolong trials, etc.

Definition of set-off under CPC, 1908:

Set off is the reciprocal acquittal of debts. “Set-off” means a claim set up
against another. It is a cross-claim which partly or wholly offsets the original
claim. It is an 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. It is a plea in defence, available to the defendant. By
adjustment, set-off either wipes out or reduces the plaintiff’s claim in a suit
for recovery of money.
Under order 8 of the code a defendant files a written statement in reply of
the plaint of the plaintiff, in this if any situation arises where the plaintiff
files a suit of recovery of money from the defendant, but at same time
defendant also has some debt on the plaintiff, in this case, the defendant
may claim for the set off the amount against the plaintiff recoverable by him.
For the setting off the amount, the defendant has to state the fact in the
written statement led by him. Provisions regarding the set-off have defined
under Order 8 Rule 6 of CPC.
Set-off means a claim by the defendant against the plaintiff or a plea in
defence available to the defendant. It is a cross-claim between the parties to
the suit regarding their recovery of money. It is the destruction of the debts
of which two persons are reciprocally debtors to one other. As the case may
be where there are mutual debts between the parties (plaintiff and
defendant), one debt may be settled against the other.

Essential conditions for set-off:-

A defendant may claim a set-off if he satisfies the below conditions -
1. The suit must relate to recovery of money;
2. The sum of money must be ascertained or definite;
3. Above said sum must be recoverable legally;
4. The sum of money must be recoverable by the defendant or by all the
defendants, in case of more than one defendant;

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5. It must be recoverable from the plaintiff by the defendant;

6. It must not exceed the pecuniary limits of the court in which the suit is
brought;
7. Both the parties must fill, in the defendant’s claim to set-off, the same
character as they fill in the plaintiff’s suit;
Examples of Set-off:
 ‘A’ sues ‘B’ on a bill of exchange for Rs. 500. ‘B’ holds a judgment
against ‘A’ for Rs. 1000. The two claims being both definite, pecuniary
demands may be set off.
 ‘A’ sues ‘B’ for compensation on account of trespass. ‘B’ holds a
promissory note for Rs. 1,000 from ‘A’ and claims to set off that amount
against any sum that ‘A’ may recover in the suit. ‘B’ may do so, for as
soon as ‘A’ recovers, both sums are definite pecuniary demands.

Effect of set-off:-
In the claim of set-off, there are two suits, one by the plaintiff, and the other
by the defendant against the plaintiff, they are tried together, no separate
suit is necessary. In such a case, when the defendant claims set-off, he will
stand in the position of the plaintiff in regarding to the amount claimed by
him. In such a case, if the plaintiff doesn’t appear and his suit is dismissed
for default, or he withdraws his suit, etc. it does not affect the claim of the
defendant for set-off and a decree may be passed by the court in favour of
the defendant if he is able to prove his claim.
At last, we can say about the set-off, that it is the extinction of debts of
which two persons are reciprocally debtor to one another. For example; if a
person ‘A’ sues ‘B’ for Rs. 2000, ‘B’ claims for Rs. 1000 against the ‘A’, and
here two claims may be set-off, it is an extinction of the debt of the one
person against the other (Rs 1000).

The distinction between set-off and counter-claim may now be noted:

1. Set off is been defined in rule 6 order 8 of CPC whereas counterclaim is
been defined in 6A-6G of order 8.
2. Set off has 2 types, one is equitable set-off and other is legal set off.
Counterclaim has no such classification.
3. Set-off is a statutory defence to a plaintiff’s action, whereas a
counterclaim is substantially a cross-action.
4. Set-off must be for an ascertained sum or must arise out of the same
transaction as the plaintiff’s claim. A counter-claim need not arise out
of the same transaction.
5. Set-off is a statutory ground of defence and has to be pleaded in the
written statement. It can be sued as a shield and not as a sword.
Counter-claim, on the other hand, does not afford any defence to the
plaintiff’s claim. It is a weapon of offence which enables the defendant
to enforce his claim against the plaintiff as effectually as in an
independent action. It is a sort of cross-action.
6. If the statute of limitation is pleaded to a defence of set-off, the
plaintiff in order to establish his plea has to prove that set-off was
barred when the plaintiff commenced the action. It is not enough to
prove that it was barred at the time when it was pleaded. In the case of
a counter-claim, it is enough for the plaintiff to prove that the counter-
claim was barred when it was pleaded.
7. An equitable set-off is a claim by the defendant in defence, which
generally cannot exceed the plaintiff’s claim. A counter-claim the

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defendant may, however, exceed the plaintiff’s claim, being in nature of

the cross action. Under the provision rule 6-F of Order 6, if in any suit a
set off or counter claim is established as a defence against plaintiffs
claim and any balance is found due to the defendant as the case may be
the court may give judgment to the party entitled to such balance.

5. What is Plaint? Essentials of Plaint, Differentiate between return and

rejection of plaint.
Answer: A plaint is a legal document which contains the written statement of
the plaintiff’s claim. A plaint is the first step towards the initiation of a suit.
In fact, in the very plaint, the contents of the civil suit are laid out.
Through such a plaint, the grievances of the plaintiff are spelled out, as
well as the possible causes of action that can arise out of the suit. A plaint
which is presented to a civil court of appropriate jurisdiction contains
everything, including facts to relief that the plaintiff expects to obtain.
Although it hasn’t been defined in the CPC, it is a comprehensive
document, a pleading of the plaintiff, which outlines the essentials of a suit,
and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the
essentials of a plaint implicit in it are those only material facts, and not all
facts or the law as such is to be stated, the facts should be concise and
precise, and no evidence should be mentioned.
Essentials of Plaint: Order 7 rule 1-8 defines the essentials of plaint as
follows:-
1. Plaint should contain name of that court in which suit is brought.
2. Plaint should contain name, description and residence of plaintiff.
3. Plaint should contain name, description and residence of defendant.
4. When plaintiff or defendant is minor or person of unsound mind, plaint
should contain a statement to that effect.
5. Plaint should contain those facts, which have constituted cause of
action. In addition to this, it should also be described in plaint when
cause of action has arisen.
6. Plaint should contain those facts, which show the court has jurisdiction.
7. Plaint should contain that relief, which plaintiff claims.
8. When plaintiff has allowed set off or has relinquished a portion of his
claim, plaint should contain that amount, which has been so allowed or
so relinquished.
9. Plaint should contain statement of value of subject-matter of suit not
only for purpose of jurisdiction, but also for purpose of court-fees.
10. Plaint should contain plaintiff’s verification on oath.

Return of Plaint by the Court

The CPC empowers the civil courts to return the plaint to the plaintiff if the
court believes that the plaint is not properly filed. Return is different from
rejection and it needs to be noted. Return of plaint does not connote that the
plaint had mistaken or that the rules for drafting the plaint were not
conformed to.
It simply means that the court is not empowered to try the suit for which
the plaint is filed. On the contrary, the plaint is rejected if the essential
requirements of a plaint are not provided in the plaint or if the certain
elements are vague and ambiguous.
Grounds for Return of Plaint

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According to Order 7 Rule 10(1) of CPC, a plaint is returned on the sole

ground of lack of jurisdiction with the concerned court.
 For instance, a plaint is filed in the city civil court by ‘A’ against his
employer for unlawful retrenchment from a job. Since there are specific
labour courts to deal with these cases, the city civil court does not have
the jurisdiction to adjudge and hence, plaint can be returned by the
court. Under this rule, the court can return the plaint for lack of
jurisdiction but the plaintiff has every right to file the plaint again in
the appropriate forum.

Rejection of Plaint by the Court

Order 7 Rule 1 lays down the contents of a plaint and some of these contents
cannot be missed by the pleader. If such content is missed, the court is
empowered to reject the plaint and the plaintiff has to resubmit the plaint
after making necessary modifications. Rejection, however, is not the first
option before the court.
Law is not to humiliate the victim; it is to give an opportunity to a
vigilante and bona fide victim to claim remedies. Therefore, CPC allows
amendment of the plaint at any time before the judgment is passed so that
the court does not have to reject the plaint.
Grounds for Rejection
Order 7 Rule 11 lays down the specific grounds for rejection of the plaint.
There are six grounds for which a plaint can be rejected under this provision
and they are as follows:

1. When the plaintiff has omitted or abstained from unveiling the cause of
action, i.e. the overt act or omission by the defendant that led the
plaintiff to file this suit.
2. When the plaintiff has intentionally or unintentionally undervalued the
plaint. Undervaluation means showing that the value of a property is
less so that the valuation of the suit is at a lesser amount and the court
can exercise jurisdiction on the matter which, otherwise, could not have
exercised if the suit was correctly valued.
3. Under the Stamps Act, every legal document is required to be drafted
on a stamp paper of the requisite value which depends on several
factors such as nature of the document (whether it is plaint, rent
agreement, etc.), valuation of the suit, etc. If it is not filed on the stamp
paper of the value specified by law, the court may ask the plaintiff to
submit the stamp paper and if he fails to do that, it can be rejected.
4. When the filing of the suit is barred by law and it is evident from the
statement of the plaint, the court shall reject the plaint. For instance,
under the Insolvency and Bankruptcy Code, 2016, when a company is
unable to pay its debts, its creditors can initiate an insolvency process.
It means the company is given time to revive, make profits and repay
its creditors. This period is called moratorium and under Section 13 of
the Code, every suit is barred against the company during the period of
moratorium.
5. It is required to be filed in duplicate. It means the plaintiff has to file
two copies of the plaint, one for the court and other for the defendant.
If the plaintiff has not filed the plaint in duplicate, the court is
empowered to reject it.
6. Order 7 Rule 9(1) requires that the plaintiff submits as many copies as
the court asks for to be submitted to the defendants. It is usually the

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number of copies as there is the number of defendants and such copies

have to be submitted. If the plaintiff fails to submit the required
number of copies of the plaint, it becomes a ground for rejection of the
plaint.
7. Order 7 Rule 9(1A) requires that the plaintiff submits the requisite fees
that will be incurred by the court to serve the summons to the
defendants. In a criminal case, the summons is served at the cost of the
state. However, in a civil suit, the fees need to be paid by the plaintiff.
If such payment is not made within 7 days from the date of order of
payment, the plaint is liable to be rejected.
Differences between rejection and return:
1. Difference as to modes: Rejection of plaint can be on application or Suo
Moto, Return of plaint is always on Suo Moto
2. Difference as to second appeal: In case of rejection of plaint second
appeal can be filed whereas, Second appeal is not allowed where plaint
is returned under order vii rule 10.
3. Difference as to decree: Order rejecting plaint amounts to a decree and
Order returning a plaint is not a decree.
4. Difference as to revision: Where plaint is rejected revision cannot be
filed and Revision can be filed in case of a plaint is returned.
5. Difference as to nature: Order of rejection of plaint is not exhausted in
nature and Order of return of plaint is an exhausted in nature.
6. Written Statement.
Answer: Introduction –
 In legal dictionary, the word written statement means a pleading for
defence.
 However, the expression ‘written statement’ has not been defined in
the code
 And it is a term of specific connotation ordinarily signifying a reply to
the plaint which is filed by the plaintiff.
 In other words, a written statement is the pleading of the defendant
wherein he deals with every material fact alleged by the plaintiff along
with any new facts in his favour or that takes legal objections against
the claim of the plaintiff.
Who may file written statement?
A written statement may be filed by the defendant or his authorized agent.
In case of more than one defendant, the common written statement filed by
them must be signed by all of them.
Time limit for filing written statement:
A written statement should be filed within 30 days from the service of the
summons on him. The said period, however, can be extended up to 90 days
(Rule – 1). A defendant should file a written statement of his defence in the
said period.

6. Modes of Execution of a Decree.

Answer: Introduction:

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When a person obtains a decree from a court of law against another

person, his next step is to get the decree satisfied. The proceeding by which
he moves the court for satisfaction of decree is called execution proceedings.
There are various modes under C.P.C by which a decree can be executed.
The term “execution” has not been defined in the code. The expression
“execution” simply means the process for enforcing or giving effect to the
judgment of the court. The principles governing execution of decree and
orders are dealt with in Sections 36 to 74 and Order 21 of the Civil Procedure
Code.
Meaning:
Execution literally means “Giving effect to or Carrying out”.
Definition:
 According to Oxford Dictionary Execution is the enforcement of the
decree and orders by the process of court, so as to enable the
decree holder to recover the fruits of the judgment.
 Execution means the process by which a decree is adjusted or
satisfied.
Relevant Provisions:
Sections 36 – 74 and order 21 of the C.P.C are the relevant provisions
to the concerned topic.
Modes of Execution of Decree: Following are the different modes of
execution of a decree.
 Decree for Payment of Money: According to Order 21 Rule 30 of C.P.C,
“Every Decree for the payment of money, including a decree for the
payment of money as the alternative to some other relief, may be
executed,
o By detention in the Civil Prison of the judgment Debtor or,
o By the attachment and sale of his property, or
o By both.
 Decree for Specific Movable Property: According to Order 21 Rule 31
Sub Rule 1 of C.P.C, “Where the decree is for any specific movable or for
any share in specific movable property, it may be executed,
o By the seizure if practicable, of movable or share and
o By the delivery thereof to the party to whom it has been
adjudged, or as to such person as he appoints to receive delivery
on his behalf, or
o By the detention in the Civil Prison of the Judgment Debtor, or
o By the Attachment of this property, or
o By both (Prison & attachment of Property)
 Decree for specific performance or restitution of conjugal rights or for
an injunction: According to Order 21 Rule 32 of C.P.C, “Where the party
against whom a decree for the specific performance of a contract, or for
restitution of conjugal rights or for an injunction, stay has been passed,
has had an opportunity of obeying the decree and if he has wilfully
failed to obey it, the decree may be enforced, in the case of a decree
for restitution of conjugal rights,
o By the attachment of his property, or in the case of a decree for
specific performance of a contract or for an injunction.
o By his detention in Civil Prison, or
o By the attachment of his property, or
o By both
 Decree for Immovable Property:

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According to Order 21 Rule 35 Sub-rule-1 of C.P.C, “Where a decree is for the

delivery of an immovable property, possession, thereof shall be delivered to
the party to whom it has been adjudged, or to such person as he may appoint
to receive delivery on his behalf and if necessary,
o By removing / dispossessing any person bound by the decree who
refuses to vacate the property.
Power of Court to enforce Execution:
The provisions of Section 51 of C.P.C, enumerates in general terms the
various modes, in which the court may in its discretion order the execution of
a decree according as the nature of the relief granted may require. This
section states generally the powers of the court in regard to the execution of
decree leaving the detail to be determined by the rules.
Section 51 of C.P.C:
Section 51 of the C.P.C lays down the court may on the application of
decree holder subject to such conditions and limitation as may be prescribed,
the court may on the application of the decree holder order execution of the
decree.
o By delivery of any property specifically decreed.
o By attachment and sale or by sale without attachment of any property.
o By arrest and detention in prison.
o By appointing a receiver.
o In such other manner as the nature of the relief granted may require.
Court by which decree may be executed:
According to Section 38 of C.P.C, a decree may be executed either by
the court which passed it, or by the court to which it is sent for execution.
What decrees may be executed:
o The decree of a court against which no appeal has been made shall be
executed after expiry of the limitation period.
o Where a decree is reversed, modified on appeal, the only decree
capable of the execution is the appellate decree, but exceptionally
where the appellate judgment simply dismisses the appeal. General
rule that the appellate decree alone is to be executed, does not apply
and the court should look at the later decree for the information of its
contents.
Conclusion:
In the conclusion we can say that execution means the process by
which a decree is adjusted or satisfied. Decrees can be executed by various
modes. Decree for payment of money can be executed by the detention in the
civil prison of the judgment debtor, or by attachment and sale of his property
or by both. Similarly various decrees i.e. decree for specific movable
property, for specific performance, for execution of document, for immovable
property can also be executed by above explained modes.

6. Filing E.P for attachment and sale of property and arrest (arrest and
detention).
Properties which can be attached / can't be attached by a Civil Court
under CPC
Answer:
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

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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 judgment 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) By appointing a receiver;
(e) 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 judgment
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 the
required 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.
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 has the right to choose the mode of execution from those
available to him. Neither the Court nor the Judgment 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

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the creditor or sold for the benefit of the creditor. Sections 60 to 64 and Rules
41-57 of Order 21 of CPC 1908, deals with the matter of attachment of
property.
Section 60 of 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, cheques, 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 judgment-debtor but also
he has disposing power on it.
In M. Balarajan vs. M. Narasamma, it was held that the said house of the
Judgment-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 Judgment-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 Judgment-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.
They are 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.

When arrest and detention may be ordered?

Under Section 51(c) of CPC, it is given that when a decree-holder moves the
court for executing a decree, the court can execute such decree by the arrest
and detention of the judgment debtor.
1. Under Rule 30, a decree for the payment of money can be executed by
the arrest and detention of the judgment debtor.
2. Under Rule 31, where the decree is for a specific moveable party, it can
be executed by the arrest and detention of the judgment debtor.
3. Under Rule 32, where the decree is for specific performance of the
contract or an injunction, the court can execute the decree by arrest
and detention of the judgment debtor.

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Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and
detention under the various provisions of CPC. Such persons include:
1. Women, as per Section 56,
2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents,
and witnesses acting in obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,
5. Classes of persons, whose arrest according to the State Government,
might be attended with danger or inconvenience to the public, under
Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under
section 58(1A).
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 judgment-
debtor. The judgment-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 Judgment-debtor and
judgment-creditor.

8. Kinds of Appeals (V.Imp. Appeal against Appellate Decree / Second

appeal).
Answer: Introduction:
The judicial process in India depends on the application of ‘judicial mind’ and
‘judicial reasoning’ to decide a dispute. This application of mind is made by
the judge, who hears the case. A judge, though trained to decide such
disputes while applying the correct law and expounding it to fit into the facts,
is ultimately a human being. There is a very famous saying, as ‘a man is to
err’. As the whole judicial system depends on the human being, it is not
immune to errors or mistakes. These errors can only be checked by way of
giving the right of appeals to the parties to the suit. This point outs the
indispensability of ‘appeal’ and vitality of its proper functioning for a judicial
system to survive.
Who may appeal?
An appeal can be filed by any of the following persons having a legal
grievance against a decision:
1. Any party to the suit adversely affected by the decree, or, if such party
is dead, by his legal representative,
2. Any transferee of the interest of such party, who, so far as such interest
is concerned is bound by the decree, provided his name is entered on
the record of the suit.
3. An auction-purchaser may appeal from an order in execution setting
aside the sale on the ground of fraud.
Kinds of Appeal: Appeals can be divided into following four classes according
to the provisions of the Code of Civil procedure.

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1. Appeals from original decrees,

2. Appeals from appellate decrees (Second Appeals),
3. Appeals from Orders, and
4. Appeals to the Supreme Court (Article 132).

1. Appeal from Original Decree

Section 96 of the Code provides that the first way of challenging the decree,
passed by a court exercising the original jurisdiction, is by filing an appeal in
the court ‘authorized to hear appeals’ from the decisions of such court. It
also provides that, an appeal may lie from an original decree passed ex parte,
i.e., without hearing the other party. No appeal will lie from a decree passed
by the Court with the consent of parties.
This kind of appeal is also known as ‘the first appeal’. It is permissible for
the appellate court to re-examine and re-appreciate the evidence, in the first
appeal. The right to institute the suit is an inherent right, but the right of
appeal is statutory. (Baldev Singh v. Surendra Mohan Sharma, AIR 2003 SC
225).
Time Limit for Appeal: Appeal to High Court is 90 days and appeal to any
other court is 30 days, from the date of decree or order.
2. Appeals from Appellate Decrees/Second Appeal
Section 100-103 and 108 of CPC deals with the second appeal. This part of
the code contains provisions relating to appeal from ‘appellate decrees’
unlike from original decree. As the word ‘second appeal’ clearly denotes, it is
an appeal filed against the order of an appellate court. Second here denotes
the number of appeals, in laymen terminology. Section 100 provides 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. It must be noted that second
appeal only lies on the substantial question of law, not on the question of
facts.
In State Bank of India & Ors. v. S.N. Goyal, AIR 2008 SC 2594, the Supreme
Court explained the term ‘substantial question of law’, by observing that,
“The word ‘substantial’ prefixed to ‘question of law’ does not refer to the
stakes involved in the case, nor intended to refer only to questions of law of
general importance, but refers to impact or effect of the question of law on
the decision in the lies between the parties. ‘
Substantial question of law “means not only substantial questions of law
of general importance but also the substantial question of law arising in a
case as between the parties. ….. Any question of law which affects the final
decision in a case is a substantial question of law as between the parties. A
question of law which arises incidentally or collaterally, having no bearing on
the final outcome, will not be a substantial question of law.”
The jurisdiction of the High Court is now confined to entertain only such
appeals as involve a substantial question of law set out in the memorandum
of appeal and formulated by the High Court.
Time Limit: Time limit to file an appeal to High Court is 90 days from the date
of decree or order.
3. Appeals from Orders:
It is a general rule created under the Code that only decrees are
appealable and orders are non-appealable. However, there can be
circumstances where an order can largely affect the rights of the parties to a
suit and therefore, Section 104 was enacted to provide a list of orders from
which an appeal lies.

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4. Appeals to the Supreme Court:

Article 132 provides for an appeal to the Supreme Court of any judgment,
order or decree from civil or criminal cases or any other proceedings.
Supreme Court is the topmost forum in the hierarchy of the Court. It is
primarily the Court of appeal. It is the highest forum for appeal in the
country. The power of appellate jurisdiction is given to the Supreme Court, by
the Indian Constitution under Article 132, 133, 134, 134A.

9. Inter pleader suits.

Answer: Introduction:
Section 88 and order XXXV of the Civil Procedure Code 1908 deals with the
provision of interpleader suit. The interpleader suit is suits in which several
claimants who are claiming the property against each other. In such type of
suit the matter in dispute is the title to the movable or immovable property
or money which is claimed by two or more persons against each other. The
main object of an interpleader suit is to get claims of revel dependent and
dedicated.
For example
"A" dies leaving behind one crore rupees cash in a bank account. He had two
wives and their children. Both claim to recover the said amount. In order to
have genuine claimant, owner, the banker shall file a suit before the court
and will get the order about the real owners.

Meaning and definition of interpleader suit

Dictionary meaning of Interplead is to go to trial with each other in order
to determine a right on which the action of a third party depends. It is a civil
procedure that allows a plaintiff or a defendant to initiate a lawsuit in order
to compel two or more other parties to litigate a dispute

Where interpleader suit may be reinstituted (Section 88 of CPC)

Where two or more persons claim adversely to one another the same
debts, sum of money or other property, movable or immovable, from another
person, who claims no interest therein other than for charges or costs and
who is ready to pay or deliver it to the rightful claimant such other person
may institute a suit of interpleader against all the claimants for the purpose
of obtaining a decision as to the person to whom the payment or delivery
shall be made and of obtaining indemnity for himself:
Provided that where any suit is pending in which the rights of all parties
can properly be decided, no such suit of interpleader shall be instituted.

Object of interpleader suit -

The main object of filing an interpleader suit is to get claims of rival
dependents adjudicated.

Conditions
a. There must be debt, sum of money or other movable or immovable
property in dispute
b. There must be two or more persons claiming it adversely to one
another
c. All defendants can claim each other for the property or money.
d. The person from whom such debt, money or movable or immovable
property is claimed must not be claiming interest therein other than

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charges and cost and he must be ready and willing to pay or deliver it
to the rightful claimant.
e. There must be no suit pending on same subject.
f. This suit cannot be filed twice if the judgment is given in Res judicata.

Who cannot file interpleader suit - (Order XXXL Rule 5)

An agent cannot sue his principal or a tenant his landlord for the
purpose of compelling them to interplead with persons other than persons
claiming through such principles or landlords.

10. Review and Revision.

Answer: 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 judgment and rectify the same in case any error has been
made while passing the judgment.
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 judgment 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 judgment.
3. The Court of Small Causes has passed the decision.

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.
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 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: Section 124 of Limitation Act provided that once the decree or
order is passed, parties shall file the application within 30 days from the date

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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 judgment
under Article 137 of the Constitution of India.

Revision
If we go to the literal meaning, “to revise” stands for “to look again” or “to
look repeatedly at” or “to go through a matter carefully and correct where
necessary”. The High Court has been empowered with the revisional
jurisdiction under Section 115 of the Code of Civil Procedure, 1908.

Object: The object behind empowering the High Court with revisional
jurisdiction is to prevent arbitrary, illegal or irregular exercise of jurisdiction
by the subordinate court. Under Section 115 the High Court is empowered to
keep an eye on the proceedings of subordinate courts that the proceedings
are being conducted in accordance with the law, under its jurisdiction for
which it is bound for and in furtherance of justice as held in the case of Major
S.S Khanna v. Brig. F.J. Dillion.
But, the judges of the subordinate courts have absolute jurisdiction to
decide a case and even when they have wrongfully decided a case, they do
not commit any “jurisdictional error”. With the power of revision, the High
Court can correct the jurisdictional error when committed by the subordinate
court. The provision of revision provides an opportunity to the aggrieved
party to get their non-appealable orders rectified.

Conditions: Section 115 of the Code of Civil Procedure Code lays down all the
conditions when the High Court can exercise its revisional jurisdiction:
1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case
decided by the subordinate court.
3. The subordinate court has decided such case by:
 Exercise of jurisdiction which is not vested to that court by law, or
 It has failed to exercise the vested jurisdiction, or
 Illegal exercise of the vested power or with immaterial irregularity.
The High Court is not entitled to vary or reverse the order or decision of
the subordinate court unless such order is in favour of the party who has
applied for revision. Also, the revisional jurisdiction is not to be exercised if
in that matter appeal lies to the High Court.
So, by analysing Section 115, we can observe that the revision is done
mainly on jurisdictional errors by the subordinate Courts.

11. Grounds for extension of period of limitation? Describe condonation,

when does the condonation comes to an end? (Section 5).
Answer: Law of Limitation in India
The word limitation itself says the meaning. The word limitation in its literal
term means a restriction or the rule or circumstances which are limited. The
law of limitation has been prescribed the time limit which is given for
different suits to the aggrieved person within which they can approach the
court for redress or justice.

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The basic concept of limitation is relating to fixing or prescribing of the

time period for barring legal actions. According to Section 2 (j) of the
Limitation Act, 1963, ‘period of limitation’ means the period of limitation
prescribed for any suit, appeal or application by the Schedule, and
‘prescribed period’ means the period of limitation computed in accordance
with the provisions of this Act.
The Law of Limitation signifies to prevent from the last date for different
legal actions which can take place against an aggrieved person and to
advance the suit and seek remedy or righteous before the court. Where a suit
is initiated after the bar of limitation, it will be hit by the law of limitation.
The main and the fundamental aim of the law of limitation are to protect the
lengthy process of penalizing a person indirectly without doing any offence.
According to the provisions provided under the act, it is the litigation
which is initiated, the Appeal which is entertained and the request which are
made after the specified term which shall be dismissed even though the
limitation is not raised as a defence.
When a court is closed on the expiry date for filing any suit or which may
be initiated on the reopening day of the court. An appeal or application shall
be admitted by the court after the specified period if the litigant convinces to
the court by showing adequate cause for the failure to prepare a pill
application within the specified period then the court can admit his appeal or
application. It is the duty of a litigant to give appropriate cause for his failure
for the filling of a suit, appeal or application. Beside all this, it is the act
which provides that where a person who is having an authority to file any suit
or to make any request for the execution of defence who is a minor or insane
or an idiot during the specified time of filing is to be considered. He may be
initiated to file a suit or application which shall be filed within the same time
after his disability has come to an end, or at the time during which the
specified term is to be considered she may initiate the legal actions or
applications within the same term after both in capacities of disabilities of his
have come to an end. Where else if the incapacity or disability continues of
that person till his death, then the act rest the authorities of that person on
the legal representatives to initiate the legal actions or make any application
after his death within the same period.
Grounds for extension of period of limitation:
Section 5 of the Limitation Act provides that any appeal or any application
other than an application under any of the provisions of Order XXI of the
Code of Civil Procedure, 1908, may be admitted after the prescribed period if
the appellant satisfies the Court that he had sufficient cause for not
preferring the appeal or making the application within such period.
It is the duty of the Court to record the reasons for extending the time
under this section.
In the matter of condonation of delay in extension of prescribed period,
the duration of delay is insignificant. The Court has to take into account
whether there is acceptable explanation or pardonable explanation as
sufficient cause for not preferring an appeal. Court has no power to extend
the period of limitation on equitable grounds.
Section 5 of the Limitation Act provides that an appeal may be admitted
after the prescribed period if the appellant satisfies the Court that he had
sufficient cause for not preferring it within the limitation.

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Illustrations of sufficient cause for extension of limitation: Based on different

judgments, the following are the grounds to condone delay under sufficient
cause.
1. Illness of the party may said to be a good excuse for delay in the
presentation of an appeal.
2. Legal disability: If a person was disabled (as he was minor or insane),
the period of limitation will start after the disability is removed.
[Section 6(1)].
3. Illness of his wife and sister-in-law is sufficient cause under the
exceptional circumstances.
4. Remained confined under medical advice, to bed being a patient of
heart disease is sufficient cause for condonation of delay in appeal.
5. Prevention of the appellant from filing the appeal on account of her
having had abortion and consequent haemorrhage is sufficient cause to
condone the delay in appeal.
6. Delay due to accident was accepted as sufficient cause.
7. Delay due to non-supply of information to party by counsel in ex parte
decree is sufficient cause for condonation of delay.
8. Delay in getting certified copy of the judgment and decree is sufficient
cause to condone the delay in appeal.
9. Exigencies of military service are considered as sufficient cause.
10. The imprisonment of a party may constitute a sufficient cause for
excusing delay in preferring an appeal.
11. Mistake by a lawyer not due to negligence is a good ground for
condoning the delay.
12. Mistake of Court is sufficient cause to condone the delay.
13. Pendency of writ petition before Apex Court is sufficient ground
for condoning the delay in availing of those remedies.
14. Poverty, backwardness, illness are sufficient causes for
condonation of delay.

Illustrations of not sufficient causes:

1. Absence of plea of wrong advice in lower court is not sufficient cause to
condone the delay.
2. Absence of counsel is not a sufficient cause.
3. Ignorance of law is not sufficient cause.
4. The business of a party in itself is not a sufficient ground to condone
the delay in appeal.
5. Correspondence not sufficient to condone of delay.
6. Delay on part of State Government due to lack of fund cannot be
considered as sufficient cause.
7. Every negligence or inaction or mistake on the part of an advocate does
not constitute sufficient cause.
8. Failure to apply for copy before the commencement of the vacation
cannot be considered to be a sufficient ground to excuse the delay.
9. Illiteracy by itself is not a ground for condonation of delay.
10. Lack of reasonable skill of legal practitioner is not sufficient
cause.
11. Late discovery of evidence is not sufficient cause.

IMPORTANT CASES
12. Place of Suing:

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A. A contract was signed by ‘A’ and ‘B’ at Hyderabad but ‘A’ is a resident of
Tirupathi and ‘B’ a resident of Bangalore. If ‘A’ wants to file a suit for
enforcement of contract, where can he file the suit against ‘B’? (Jan-2015).
B. ‘A’ is resident of Delhi. ‘B’ is resident of Mumbai. ‘A’ published in
Hyderabad statements defamatory of ‘B’. In which place the suit can be
filed? (Dec-2015).

Issue:
Where the suit should be filed?
Answer: The suit can be filed at the place of the defendant or where the
cause of action arises.

Rule:
CPC Section 19: Suits for compensation for wrongs to person or movables.
Where a suit is for compensation for wrong done to the person or to movable
property, if the wrong was done within the local limits of the jurisdiction of
one Court and the defendant resides, or carries on business, or personally
works for gain, within the local limits of the jurisdiction of another Court, the
suit may be instituted at the option of the plaintiff in either of the said
Courts.
Illustrations
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or
in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B
may sue A either in Calcutta or in Delhi.
Section 20 of the Code of Civil Procedure: Other suits to be instituted where
defendants reside or cause of action arises.
Subject to the limitations aforesaid, every suit shall be instituted in a Court
within the local limits of whose jurisdiction
(a) the defendant, or each of the defendants where there are more than one,
at the time of the commencement of the suit, actually and voluntarily
resides, or carries on business, or personally works for gain; or
(b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain, provided that in such case either the
leave of the Court is given, or the defendants who do not reside, or carry on
business, or personally works for gain, as aforesaid, acquiesce in such
institution; or
(c)The cause of action, wholly or in part, arises.
Explanation-- A Corporation shall be deemed to carry on business at its sole
or principal office in India or, in respect of any cause of action arising at any
place where it has also a subordinate office, at such place.
Illustrations
(a) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his
agent in Calcutta, buys goods of A and requests A to deliver them to the East
Indian Railway Company. A delivers the goods accordingly in Calcutta. A may
sue B for the price of the goods either in Calcutta, where the cause of action
has arisen, or in Delhi, where B carries on business.
(b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together
at Benaras, B and C make a joint promissory note payable on demand, and
deliver it to A. A may sue B and C at Benaras, where the cause of action
arose. He may also sue them at Calcutta, where B resides, or at Delhi, where

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C resides; but in each of these cases, if the non-resident defendant objects,

the suit cannot proceed without the leave of the Court.

Application:
The position with respect to the institution of the trade mark infringement
suit under the provisions of the Code of Civil Procedure, was reiterated
recently by the Hon’ble Delhi High court in the celebrated case of Burger King
Corporation vs Techchand Shewakramani & Ors, where the issue that came up
for consideration of their lordship was with respect to the entertainment of
the suit under Section 20 of the Civil Procedure Code and Section 134 of the
Trade Mark Act, where there is no credible and strong apprehension at the
time of filing of the suit and cause of action is quia timet cause of action
passed on an imminent lounge of franchise by the Defendants in Delhi.
In this case, the court rightly held that Section 134 of the Trade Mark and
Section 62 of the Copyright Act are in addition to and not exclusion of Section
20 of the CPC so far as jurisdictional forums are concerned, and if the plaintiff
is successful in making out the cause of action within the jurisdiction of the
court under Section 20 of the CPC, he is not required to make reference to
Section 134 of the Trade Mark Act.

Conclusion:
 Case A: In the given case the plaintiff can file the case where the
defendant is residing i.e. at Bangalore or at the place of cause of action
i.e. at Hyderabad.
 Case B: In this case the defamatory statements are made in Hyderabad
and the case can be filed in Hyderabad or in Delhi where ‘A’ the
defendant is residing.

13. Jurisdiction:
A. A suit for maintenance is filed in the Junior Civil Judge’s Court. Is it
maintainable? (Jan-2015).
B. ‘A’ filed a suit against ‘B’ for recovery of Rs. 500000/- in Junior Civil Judge’s
Court, based on a negotiable instrument. Is the suit maintainable? (May –
2019 and May - 2016).

Issue:
Case A: Can a suit for maintenance be filed in the Junior Civil Judge’s Court?
No, all the family related cases like maintenance, adoptions, divorce etc. are
dealt in Family Courts (under Subject Matter Jurisdiction).
Case: Can a suit for recovery of 5 lakhs be filed in Junior Civil Judge’s Court?
Yes, this court is competent to deal up to 20 lakhs of amount under pecuniary
jurisdiction.

Rule:
As per Section 16 of the TELANGANA CIVIL COURTS ACT, 1972.
(1) The pecuniary jurisdiction of a District Judge, shall subject to the
provisions of the Code of Civil Procedure, 1908 and the other provisions of
this Act, extend to all original suits and proceedings of a Civil nature
including Land Acquisition original petitions, the amount or value of the
subject matter of which exceeds rupees fifty lakhs.
(2) The pecuniary jurisdiction of a Senior Civil Judge shall extend to all like
suits and proceedings of a Civil nature including Land Acquisition original
petitions not otherwise exempted from his cognizance under any other law

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for the time being in force, the amount or value of the subject matter of
which exceeds rupees twenty lakhs but does not exceed rupees fifty lakhs.
(3) The pecuniary jurisdiction of Junior Civil Judge shall extend to all like suits
and proceedings, not otherwise exempted from his cognizance under any
other law for the time being in force, the amount or value of the subject
matter of which does not exceed rupees twenty lakhs.

Application:
Pecuniary means ‘related to capital.’ It approaches the question of whether
the court is competent to try the case of the financial value. The code allows
analysing the case unless the suit’s value exceeds the financial limit of the
court. Section 15 of the Code of Civil Procedure commands the organisation
of the suit in the court of the lowest grade. It refers to pecuniary jurisdiction
of civil court. It is a course of the method and it does not affect the
jurisdiction of the court. The main objective of establishing pecuniary
jurisdiction is to prevent the court of a higher level from getting burdened
and to provide assistance to the parties. However, the court shall interfere if
it finds the judgment to be wrong. For example, ’A ’wants to accuse ‘B’ due to
a violation of the contract to obtain Rs 5000 in Bombay. The Bombay High
Court has original jurisdiction and small causes court with the jurisdiction up
to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small
causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff filed
a suit in the subordinate court involving an amount of Rs 2950, but the court
rejected the case. Later his next appeal was allowed by the High Court, but it
ordered him to pay the deficit amount. The appellant contested that the
decision of the district court will be a nullity, but the High Court dismissed
the claim. Later the Supreme Court confirmed the decision of the High Court
declaring that the decision of district court won’t be void.

Conclusion:
 Case A: Maintenance like matrimonial issues are dealt in Family Courts,
this case should be filed in a Family Court.
 Case B: As per Section 16 of the Telangana Civil Courts, 1972 the Court
of Junior Civil Judge is competent to deal this case.

Hierarchy of Civil Courts in India

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14. Non-joining of a necessary party:

A. What is the effect of non-joining of a necessary party in a suit? (Jan–2019).
B. ‘X’ failed to include a necessary party in the pleadings and what is the
effect of non-joinder of a necessary party in a civil suit? (May–2016).
Issue:
Can the suit be continued without all necessary parties? No, the court either
may dismiss the suit or allow to add necessary parties to the suit.
Rule:
Rule 9 Order I of Code of Civil Procedure 1908 "Misjoinder and non-joinder"
No suit shall be defeated by reason of the misjoinder or nonjoinder of parties,
and the Court may in every suit deal with the matter in controversy so far as
regards the rights and interests of the parties actually before it:
Provided that nothing in this rule shall apply to nonjoinder of a necessary
party.

Application:
In the absence of necessary parties, the court may dismiss the suit, as it shall
not be able to pass an effective decree. But a suit can never be dismissed due
to absence of non-necessary parties. The underlying logic is that the burden
of providing relief should rest upon all the defendants. It would be unfair if
only some of the defendants had to discharge this burden. Therefore, the
plaintiff has to implead all those parties from whom he is claiming relief to
the suit.

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Non-joinder can be defined as an omission to join some person as a party

to a suit, whether as plaintiff or as defendant, who ought to have been joined
according to the law. In other words, non-joinder means an omission to join a
party to the suit. The Code does not define non-joinder, but lays down "No
suit shall be defeated by reason of … non-joinder of parties, and the court
may in every suit deal with the matter in controversy so far as regards the
rights and interests of the parties actually before it. " The proviso to this Rule
however excludes its applicability to cases of non-joinder of necessary
parties. Necessary Parties are those parties in the absence of whom no
effective decree can be passed by the court. For instance, in a suit filed
against a partnership firm, all partners would be necessary parties. As
against this, non-necessary parties are those parties in the absence of whom
the court can still adjudicate in an effective manner.
If a suit is dismissed straightaway for a non-joinder of necessary parties,
the plaintiff will have to file the suit again, resulting in multiplicity of
litigation. The Code, through various legal provisions seeks to prevent
multiplicity of litigation. For this reason, the court may add the necessary
parties on its own, or may even direct the plaintiff to do so. However, since
adding necessary parties to the suit is procedural in nature, the same has to
be done at the time of trial, but without prejudice to the plea of limitation of
the parties involved.

Conclusion:
In the absence of a necessary party the court cannot pass an effective
decree. The court will allow the plaintiff to add the necessary parties to the
suit.

15. Execution petition:

A. ‘A’ filed E.P. against ‘B’ and sought for attachment and sale of property of
‘B’. He further prayed for the arrest of ‘B’. Can he do so? (Jan-2020).
B. ‘X’ wants arrest of the defendant in a suit for recovery of immovable
property. Can he do so? Explain. (May-19 and Jan-2018).

Issue:
Can the decree holder choose both attachment and arrest or arrest without
going for attachment? No, he cannot do both at a time, arrest is possible
only after exhausting the other options.
In K.M.Kannu Gounder v. Mahboob Ali Sahib and another [(2003) 2 M.L.J 329],
the Principal Bench of this Court has held that "so far as the choice whether
the decree holder could adopt and file execution petition for attachment or
for arrest is concerned in the recent times, it has been arrived at by the
upper forums of law that prior to embarking upon arrest, the other
procedures kept open, such as attachment, etc., should be exhausted."

Rule:
The various modes in which execution of a decree may be ordered are given
in Section 51 of the Code of Civil Procedure as follows:
(a) By delivery of any property specifically decreed;
(b) By attachment and sale, or by sale, without attachment of any property;
(c) By arrest and detention of the judgment-debtor;
(d) By appointment of a Receiver; or
(e) In such other manner as the nature of the relief may require.

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Rule 37 Order XXI of Code of Civil Procedure 1908 "Discretionary power to

permit judgment debtor to show cause against detention in prison"

(1) Notwithstanding anything in these rules, where an application is for the

execution of a decree for the payment of money by the arrest and detention
in the civil prison of a judgment-debtor who is liable to be arrested in
pursuance of the application, the Court shall, instead of issuing a warrant for
his arrest, issue a notice calling upon him to appear before the Court on a day
to be specified in the notice and show cause why he should not be committed
to the civil prison:
Provided that such notice shall not be necessary if the Court is satisfied,
by affidavit, or otherwise that, with the object or effect of delaying the
execution of the decree, the judgment-debtor is likely to abscond or leave the
local limits of the jurisdiction of the Court.
(2) Where appearance is not made in obedience to the notice, the Court shall,
if the decree- holder so requires, issue a warrant for the arrest of the
judgment-debtor.
Rule 38 Order XXI of Code of Civil Procedure 1908 "Warrant for arrest to
direct judgment-debtor to be brought up"
Every warrant for the arrest of a judgment-debtor shall direct the officer
entrusted with its execution to bring him before the Court with all convenient
speed, unless the amount which he has been ordered to pay, together with
the interest thereon and the costs (if any) to Which he is liable, be sooner
paid.

Rule 39 Order XXI of Code of Civil Procedure 1908 "Subsistence allowance"

(1) No judgment-debtor shall be arrested in execution of a decree unless and
until the decree-holder pays into Court such sum as the Judge thinks
sufficient for the subsistence of the judgment-debtor from the time of his
arrest until he can be brought before the Court.
(2) Where a judgment-debtor is committed to the civil prison in execution of a
decree, the Court shall fix for his subsistence such monthly allowance as he
may be entitled to according to the scales fixed under section 57, or, where
no such scales have been fixed, as it considers sufficient with reference to
the class to which he belongs.
(3) The monthly allowance fixed by the Court shall be supplied by the party
on whose application the judgment-debtor has been arrested by monthly
payments in advance before the first day of each month.
(4) The first payment shall be made to the proper officer of the Court for such
portion of the current month as remains unexpired before the judgment-
debtor is committed to the civil prison, and the subsequent payments (if any)
shall be made to the officer in charge of the civil prison.
(5) Sums disbursed by the decree-holder for the subsistence of the judgment-
debtor in the civil prison shall be deemed to be costs in the suit :
Provided that the judgment-debtor shall not be detained in the civil prison or
arrested on account of any sum so disbursed.

Application:
Ganesh vs Sankaran on 3 April, 2006 Madras High Court: The court given the
below judgment:
The executing court shall hold an enquiry and give a finding as to the correct
means of the judgment debtor to discharge the decree before ordering arrest
under Rule 37 of the C.P.C. The executing court should follow the procedure

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laid down in Rule 39 and 40 of the C.P.C. In these petitions, the Executing
Court did not observe the principles laid down by the High Court in 2000
(II)CTC 168, 1995(II) CTC 20 and by the Supreme Court in AIR 1980 S.C.C.
Hence, the order of the Executing Court is liable to be set aside.

Conclusion:
In the given case the decree holder cannot go for arrest of the debtor, first
he should try to recover the money, if it is not possible he can go for the
arrest of the debtor provided that he should pay the necessary charges for
the arrest and detention.

16. Limitation period:

A. The limitation period for filing a suit is three years. However, the
plaintiff was imprisoned during the period of such three years. Can he
seek condonation of delay in filing the suit after coming out of jail?
Decide. (May-2019).
B. When limitation expires during summer holidays, when the court is
closed then when the suit can be filed? Give reasons. (Jan-2019).
C. A plaintiff, who wants to file a suit in the lower court and whose cause
of action is time barred, files a condone delay petition in the same
court. Is that petition is maintainable? (May-2019).
D. A plaintiff, who wants to file a suit in the Lower Court and whose cause
of action is time barred, files a condone delay petition in the same
court. Is that petition is maintainable? (May-2016).
E. ‘X’ was the owner of immovable property. That property was in
possession of ‘Y’ from the year 1998. ‘X’ filed a suit against ‘Y’ for
recovery of that property on the basis of title in the year 2012, is it
maintainable? (Dec-2015).
F. A lower court passed a decree in a suit on 12.12.2012 but the certified
copy of the decree was taken by the defendant on 30.12.2012. He
wants to file an appeal against it. What is the date from which the
limitation period starts? Explain. (Jan-2015).

Issue:
In case of time barred suits, can the petitioner seek condonation of delay?
Yes, he can, but he has to satisfy the court with sufficient cause for the delay
in filing the suit.

Rule:
The basic concept of limitation is relating to fixing or prescribing of the time
period for barring legal actions. According to Section 2 (j) of the Limitation
Act, 1963, ‘period of limitation’ means the period of limitation prescribed for
any suit, appeal or application by the Schedule, and ‘prescribed period’
means the period of limitation computed in accordance with the provisions of
this Act.
Grounds for extension of period of limitation:
Section 5 of the Limitation Act provides that any appeal or any application
other than an application under any of the provisions of Order XXI of the
Code of Civil Procedure, 1908, may be admitted after the prescribed period if
the appellant or the applicant satisfies the Court that he had sufficient cause
for not preferring the appeal or making the application within such period.
It is the duty of the Court to record the reasons for extending the time
under this section.

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In the matter of condonation of delay in extension of prescribed period,

the duration of delay is insignificant. The Court has to take into account
whether there is acceptable explanation or pardonable explanation as
sufficient cause for not preferring an appeal. Court has no power to extend
the period of limitation on equitable grounds.
Section 5 of the Limitation Act provides that an appeal may be admitted
after the prescribed period if the appellant satisfies the Court that he had
sufficient cause for not preferring it within limitation.

Period as prescribed in Schedule 1 of the Act

The period has been prescribed in Schedule 1 to the Act. Generally, it is as
follows:
1. 3 years time-period for a suit relating to accounts, contracts, suits
relating to movable property, recovery of a lawsuit under a contract,
etc.
2. 12 years time-period for suits relating to possession of the immovable
property, and 30 years time-period for suits relating to the mortgaged
property.
3. One year for suit relating to torts (3 years for compensation in certain
cases). 30 to 90 days in case of appeals under the Civil Procedure Code
and Criminal Procedure Code.

Application:
Condonation of Delay finds its mention in Section 5 of the Act which
elaborates upon Extension of prescribed period in certain cases. According to
it, any appeal or application may be admitted after the prescribed period if
the applicant/appellant is able to satisfy the Court that they had “sufficient
cause” for not instituting the appeal/application in the prescribed period.
What is “Sufficient Cause”?
The term “sufficient cause” isn’t defined explicitly and varies on a case-to-
case basis. The Court has a wide discretion in determining what constitutes
as sufficient cause, depending upon the facts and circumstances of each
case.
In cases regarding non-appearance, adjournment or stay of execution of a
decree, the cause must be just and adequate i.e. “sufficient” otherwise these
provisions will just be a way of incessantly prolonging litigation. This
principle has been advocated in furtherance of pursuance of justice but it
shouldn’t deny someone of justice either.
In the case of G. Ramagowda v. Special Land Acquisition Officer, it was
held that “sufficient cause” is to be interpreted liberally so as to pursue
substantial justice.

Conclusion:
 Case A: Condonation will be allowed because imprisonment of the
petitioner is a good ground.
 Case B: As per the rule of limitation period, when the limitation expires
on any holiday, the next working day will be considered as the expiry
day, so he can file the suit after the holidays of the court.
 Case C: Condonation of delay can be filed in the same court, but there
should be a sufficient cause to convince the court.

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 Case D: The petition for condonation of delay is filed in same court that
is correct and if the court thinks that there is “sufficient cause” it may
allow the petition, the petitioner has to satisfy the court.
 Case E: For immovable property the period for filing a suit is 12 years
as per Schedule 1 (given in the above notes). In the given case it is
exceeding the limitation period of 12 years hence the suit is not
maintainable.
 Case F: The limitation period should be calculated from the date of the
decree/judgment issued not from pronouncement of the same.

*****

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