Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof.

BV YCLC Karad | CPC

DSC – 501 CIVIL PROCEDURE CODE AND LIMITATION ACT (Paper - I)

SYLLABUS
Unit- I: Introduction
1.1 The basic concepts in civil procedure code
1.2 Distinction between decree and judgment and between decree and order
1.3 Jurisdiction of Court
1.4 Suit of civil nature-scope and limits
1.4 Res-subjudice and Resjudicata
1.6 Place of suing
Unit- II: Institution of Suit
2.1 Meaning and essentials of suit
2.2 Institution of suit
2.3 Parties to the suit, Joinder, mis- joinder or non-Joinder of parties
2.4 Representative suit.
2.5 Frame of suit: Importance of cause of action
2.6 Summons and modes of service of summons
Unit- III: Pleadings
3.1Fundamental rules of pleading, signing and verification.
3.2 Plaint: rules and particulars,
3.3 Admission of plaint and return and rejection of plaint
3.4 Written statement: particulars, rules of evidence
3.5 Set off and counter claim distinction and Amendment of pleadings
3.6 Settlement of Issues and Discovery, inspection and production of documents
3.7 Interrogatories
3.8 Privileged documents
3.9 Affidavits
Unit- IV: Appearance, Examination and Trial
4.1 Appearance and Ex-parte procedure
4.2 Summary Suits
4.3 Summary and attendance of witnesses
4.4 Trial
4.5 Adjournments

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4.6 Interest and costs.

Unit – V Interim orders and Miscellaneous:
5.1 Injunction
5.2 appointment of receiver
5.3 commissions
5.4 Arrest or attachment before judgment,
5.5 Transfer of cases
5.6 Caveat
5.7 Inherent powers of Courts
5.8 Judgment : Meaning and essentials
Unit- VI: Execution.
6.1 The concept.
6.2 General principles (Ss.52.54).
6.3 Power for execution of decrees.
6.4 Procedure for execution (Ss.55.54)
6.5 Enforcement, arrest and detection (Ss.55.59 ).
6.6 Attachment (Ss.60-64).
6.7 Sale (Ss.65-97).
6.8 Delivery of property.
6.9 Stay of execution.
Unit- VII: Suits, Appeals, Review, Reference and Revision
7.1 By or against government (Ss.79-82)
7.2 By aliens and by or against foreign rulers or ambassadors (Ss. 83-87 A)
7.3 Settlement of disputes outside the court (S.89)
7.4 Suits by or against firm
7.5 Interpleader suits
7.6 Suits relating to public charities.
7.7 Appeals, Review, Reference and Revision
7.8 Appeals from original decree, appellate decree, Order
Unit- VIII: The Law of Limitation
8.1 Condonation of delay
8.2 Bar of Limitation

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8.3 Expiry of prescribed period when court is closed

8.4 Extension of prescribed period in certain cases
8.5 Legal disability and Continuous running of time
8.6 Computation of period of limitation
8.7 Acquisition of ownership by possession
Books Recommended:
1. Mulla - The Code of Civil Procedure - Tripathi
2. Takwani C. K. - The Code of Civil Procedure, eastern book Company, Lucknow
3. Civil Manual - Issued by the High Court Bombay
4. Ganguly A. C. - Civil Court Practice and Procedure
5. Mitra B. R. - Limitation Act
6. Taxman’s - The Code of Civil Procedure 1908
7. SanjiwaRao - Civil Procedure Code.
8. Justice C. K. Takkar (Takwani) - Code of Civil Procedure.
9. Dr. S.R. Myneni-Code of Civil Procedure and Limitation.
10. B. B. Mitra: Limitation Act, Eastern law House, Allahabad.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

Unit- I: Introduction
1.1 The basic concepts in civil procedure code
1.2 Distinction between decree and judgment and between decree and order
1.3 Jurisdiction of Court
1.4 Suit of civil nature-scope and limits
1.4 Res-subjudice and Resjudicata
1.6 Place of suing

1.1 The basic concepts in civil procedure code

The law can be broadly classified as –
1. Substantive Law, and
2. Procedural Law.
The Substantive Law, whether it is based on statute law or common law, defines what
facts are constituting a fact or liability.[1] To say, in other words, the Substantive law
defines various principles regarding the rights and liabilities. (Example: The Indian
Penal Code, 1860 which describes various offenses punishable under Criminal acts).
the Procedural law or adjective law, on the other hand, prescribes the procedure and
machinery for the enforcement of those rights and liabilities. To say, in other words, the
procedural law is concerned with enforcement of those rights and liabilities determined
in accordance with the rules of the substantive law.[2] (Example: The Code of Civil
Procedure 1908, The Code of Criminal Procedure, 1973 etc).
1. Civil Procedure Code: Historical Background
Till 1859, in India, there was no uniform codified law for the procedures to be followed
in Civil Courts. In those old days, under the British rule, there were Crown Courts in
Presidency towns and Provincial Courts in Mofussils.
For the first time in 1859, a uniform civil procedure Code was introduced by passing
the Civil Procedure Code (Act VII of 1859).
• The Code of 1859 was amended regularly from time to time and was
replaced by passing the Civil Procedure Code, 1877. This code of 1877 was
amended in 1878 and 1879 and the third civil procedure Code was enacted in
1882, which replaced the previous code. The Code of Civil Procedure 1882
was also amended several times and ultimately the present code of Civil
Procedure, 1908 was passed overshadowing the defects of the Code of 1882.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

a) Civil Procedure Court: Meaning and Object

The Law relating to the practices and procedure to be followed in the Civil Courts is
regulated by the Code of Civil Procedure, 1908. The word CODE means ‘a systematic
collection of statutes, body of laws so arranged as to avoid inconsistency and
overlapping‘.
The main object of this civil procedure code is to consolidate and amend the laws
relating to the procedure and practices followed in the Civil Courts in India. As such, it
was enshrined in the preamble of the code that it was enacted to consolidate and amend
the laws relating to the procedure to be followed in the civil courts having civil
jurisdiction in India. The Civil Procedure Code regulates every action in civil courts and
the parties before it till the execution of the degree and order.
The Aim of the Procedural law is to implement the principles of Substantive law.[5]
This Code ensures fair justice by enforcing the rights and liabilities.
Civil Procedure Code: Scheme
The Code has two parts and they are –
1. The Body of the Code
2. The Schedule
The Body of the Code has 12 parts containing 158 sections. The Schedule is the second
part containing orders and rules.
The Body of the Code lays down general principles relating to Power of the court, and
in the case of the second part, that is, the Schedule provides for the procedures, methods
and manners in which the jurisdiction of the court may be exercised.

1.2 Distinction between decree and judgment and between decree and order

Difference between Decree, Judgment and Order

When a Court adjudicates a dispute, after the hearing, it has to either pronounce its
decision by way of a decree or dismiss the case. Such decision is called Decree. While
arriving to such decision, the court will explain the grounds because of which the court
came to such conclusion. Such grounds for the decision is called Judgment.
To constitute a decree, there should be an adjudication by a court in which the rights
or liabilities of the parties have been determined conclusively. It should have been
formally expressed by the Court.
An Order is also a decision of the court but which will not come under the head
‘Decree’.
1. An order will not determine the rights or liabilities of the parties.
2. Any number of orders can be passed in one suit.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

3. The Order can be passed on a suit as well as on application.

4. There are –
• Appealable orders.
• Non-appealable orders.
There are no second appeal for the Appealable orders.
• Order: Defined under Section 2(14) of the Code of 1908, the order simply
provides as to how a case will move forward in a civil court. As the provision
provides, order connotes the formal expression of a Civil Court’s decision, but
expressly excludes a decree.
• Decree: Defined under Section 2(2) of the Civil Procedure Code, 1908, the decree
is also a formal expression of an adjudication that lays down the rights of the
parties in a civil case that are the plaintiff, and the defendant. A decree must have
the following essential; the rights of the parties, the suit, adjudication, conclusive
determination of the decided rights of the parties, and should be in writing.
• Judgment: Defined under Section 2(9) of the Code of 1908, a judgment is a
statement delivered by the Judge in a civil case on the basis of the order, or the
decree previously passed by him, or her, to the parties involved in the case. A
judgment must consist of the statement of facts, the determining points, the
decision of the court, and the reason behind the court’s decision.

1.3 Jurisdiction of Court

Jurisdiction & Important Doctrines

Jurisdiction means the authority through which a court entertain suits, appeals and
applications, and the court administer justice according to the provisions of the law.
Jurisdiction of the Civil Court may be categorized as follows –
1. Territorial or Local Jurisdiction
2. Pecuniary Jurisdiction
3. Jurisdiction over subject matter
4. Original and Appellate Jurisdiction
• Every Court has a territorial limit beyond which it cannot exercise the power vested
upon it. This limit based on the territory is called territorial jurisdiction.
Example: The district judge at East Godavari District can exercise his powers only
within the district of East Godavari. He cannot exercise his powers in any other
district. In the same way, the High Courts will exercise the powers within the state
in which it is situated and the neighboring Union Territories attached with the same
High Court.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

• Pecuniary Jurisdiction: Pecuniary means “involving money“. Civil Courts,

according to their grades, have some limitation to try suits and entertain appeals for
the value of money not exceeding some stipulated amount. The High Courts and the
Court of Sessions have unlimited pecuniary jurisdiction. Junior Civil Judges have
pecuniary jurisdiction of Rs.3,00,000 and Senior Civil Judges have pecuniary
jurisdiction of Rs.10,00,000.
• Jurisdiction over the subject matter: There are civil courts established to try suits
or cases of particular nature. For example, the small cases courts can try only non-
contentious cases, like suits relating to promissory notes etc.
• Similarly, there are Industrial tribunals and labor courts having jurisdiction to try
suits related to industrial and labor disputes only.
• The Administrative tribunals are there to try only the service related matters of the
Government employees. These tribunals are not courts but they have been conferred
judicial powers to try the matters and enforce the orders
• Original and Appellate Jurisdiction:
The Court in which the suit is filed initially and if the court has jurisdiction to try the
original suits (the initial suit regarding the subject matter), such jurisdiction is called
original jurisdiction.
Once the case is decided, the aggrieved party may prefer an appeal in appropriate court.
Such jurisdiction of the court to hear the appeal is called the Appellate jurisdiction. The
Supreme Court, High Court and District Courts are having both original and appellate
jurisdiction and can hear both appeals and original suits.
Important Principles: There are some important principles related to jurisdiction of
courts. These principles are there to improve the efficiency of the courts and to avoid
any delay.
1.4 Suit of civil nature-scope and limits
In the suit, if the principal question relates to the determination of a civil right, then the suit is of
a civil nature.
The expression suit of civil nature covers the private rights and obligations of a citizen. If the
principal question relates to caste or religion, it is not a suit of civil nature.
Section 9 of the CPC covers “the jurisdiction of a Court to try the suit.”
Section 9 clarifies that all civil courts, subject to the provisions of the act, have the
jurisdiction to try all suits of civil nature “except the suit of which cognizance is either
expressly or impliedly barred.”
The term civil denotes rights and “remedies sought by action”. It relates to a suit that is not
criminal in nature and concerns the rights of and wrongs done to individuals regarded as
private persons.
1.4 Res-sub judice and Res judicata
• Res Sub-judice:

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‘Res‘ means “a matter“. ‘Sub-judice‘ means “pending judicial inquiry“. The

expression ‘Res Sub-judice’ means “a matter which is pending judicial enquiry”.
According to Section 10 of the Civil Procedure Code, 1908, when a suit is pending
before a competent court, between the same parties and under the same title then, no
other court in India should entertain and try such suits.
This Section 10 of the Civil Procedure Code, 1908 is based on the principle “Res
Sub-Judice” and the object of this section is to prevent multiple instances of suits
relating to the same issue between same parties. This prevents the courts from trying
two parallel suits simultaneously.
• Res Judicata:
‘Res’ means “a matter”. ‘Judicata’ means “already decided”. The expression ‘Res
Judicata’ means “a matter already decided by a competent court.”
Section 11 of the Civil Procedure Code, 1908 deals with the Res Judicata.
According to Section 11, a court shall not try any issue in which the parties and subject
matter are same and already been decided by a competent court.
This is based on the following principles:
1. A person should not be vexed twice for the same cause.
2. There should be an end to a litigation, in the interest of the state.
3. Every decision of the court must be accepted as correct and conclusive.
Sometimes Res Judicata is considered as a kind of Principle of Estoppel. Estoppel is
related to evidence, and it stops a person from saying some other thing contrary to what
he has said earlier.
1.6 Place of suing
The expression ‘place of suing’ signifies the venue for the trial. The same has nothing
to do with the competency of the court.
Sec 15 to 21-A deals with the place of suing in which sec 15 deals with pecuniary
jurisdiction Sec 16 to 18 deals with the forum of suing for immovable property sec 19
for movable sec 20 is a residuary section 21 talks about the waiving of defects while 21
-A talks about the bar to challenge the decree passed in former suit.
There are basically three kinds of jurisdictions on the basis of which the place of suing
may be determined. These are-
1. Pecuniary Jurisdiction
2. Territorial Jurisdictions, and
3. Subject Matter Jurisdictions
Section 15 of the Code of Civil Procedure, 1908 requires the plaintiff to file a suit in the
court of the lowest grade competent to try it.

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Every suit shall be instituted in the Court of the lowest grade competent to try it.

Territorial jurisdiction
In order to discuss territorial jurisdiction of a court, the four types of suits that are to be
considered are:
1. Suits in respect of the immovable property (Sections 16-18);
2. Suits in respect of the movable property (Section 19);
3. Suits in respect of compensation for wrongs (Section 19);
4. Other suits (Section 20).

Immovable Property: Sec- 16-18

Sections 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
situated.

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 may be instituted in
any Court within the local limits of whose jurisdiction any portion of the property is
situated.
Section 18: Place of institution of suit where local limits of jurisdiction of Courts are
uncertain.
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.

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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: 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.
So, when a suit is related to immovable property, the court within whose local
jurisdiction property is situated have the jurisdiction to try the matte.
Objection to jurisdiction : Section 21 of CPC, 1908
No suit shall lie challenging the validity of a decree passed in a former suit between the
same parties, or between the parties under whom they or any of them claim, litigating
under the same title, on any ground based on an objection as to the place of suing.
Explanation.-The expression "former suit" means a suit which has been decided prior to
the decision in the suit in which the validity of the decree is questioned, whether or not
the previously decided suit was instituted prior to the suit in which the validity of such
decree is questioned.
The purpose of Section 21 is to safeguard honest litigants and to prevent harassment of
plaintiffs who have commenced actions in good faith before a court that is later
determined to lack jurisdiction. This clause cannot be used by dishonest litigants.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

Unit- II: Institution of Suit

2.1 Meaning and essentials of suit
2.2 Institution of suit
2.3 Parties to the suit, Joinder, mis- joinder or non-Joinder of parties
2.4 Representative suit.
2.5 Frame of suit: Importance of cause of action
2.6 Summons and modes of service of summons

2.1 Meaning and essentials of suit

The term ‘suit’ has not been defined in the CPC, 1908. Generally, it is understood as a
proceeding that commences upon the presentation of a plaint in a civil court. A plaint is
a statement in writing of a cause of action in which the relief claimed is set out in detail.
Provisions regarding institution of a suit are specified under Section 26 and Orders I, II,
IV, VI, VII.

Essentials of a suit
There are four essentials of a suit which are explained as follows:
1. Parties (Order I)
In a suit, there must be at least two parties i.e. the plaintiff and the defendant. There is
no bar as to the maximum numbers of plaintiffs or defendants. There are two categories
of parties viz. necessary party and proper party. The significance of the necessary party
in a suit is that the presence of such a party is vital to the constitution of the suit and the
relief is sought against such party and without such party, no effective order can be
passed. A proper party is one in whose absence an effective order can be passed,
nonetheless whose presence is necessary for a complete and final decision on the
question involved in the proceeding.
2. Subject Matter
here must be a subject matter i.e. a set of facts which have to be proved to enable the
plaintiff to get the relief claimed by him. It includes the course of action. The subject-
matter can be movable as well as immovable property and the details regarding the
same has to be given in the plaint by the plaintiff for a successful filing of his plaint and
getting the relief claimed in the plaint.
3. Cause of Action

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It contains a set of facts or circumstances that the plaintiff is required to prove before he
can succeed. It serves as the foundation of the suit. It includes all the essential facts
which constitutes the right of a plaintiff and its alleged infringement and thus it is an
antecedent to the filing or institution of any suit. The facts must be mentioned in clear
and unambiguous terms.
A person is a party to the suit if there lies a cause of action against him. It is important
to note that every plaint must disclose a cause of action or some act done by the
defendant else the Court is under a duty to reject such a plaint as per Order 7, Rule 11.
4. Relief claimed by the plaintiff
Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court will give
relief unless it is specifically claimed by the parties to the suit. There are two types of
reliefs: Specific and Alternative.

2.2 Institution of suit

Institution of suit under CPC
There are various stages of a suit viz. institution of suit or commencement of suit,
service of summons, written statements, first hearing and framing of issues, production
of evidence and final hearing, arguments, judgment, preparation of a decree and its
execution. The focus of this article is to deal with the first stage i.e. Institution of a suit.
The institution of a suit consists of the following steps:
Joinder of Plaintiffs:
Anybody or anyone may join in one suit as plaintiffs as per the required conditions
under Rule 1 of Order 1. These conditions that are necessary to be consummated are the
right to relief claiming to exist in each of the plaintiffs that come out of the same act of
transaction; and the case is such of a character that, if such person got separate suits,
any common question of law or question of fact may arise.
Joinder of Defendants:
Just the opposite to the joinder of plaintiffs, that, a persona can join as a defendant as
per the provisions of Rule 3 of Order 1. The conditions that are necessary to be satisfied
in the case of a defendant is the right to relief claiming to exist against them comes out
of the same act of transaction; and the case is of such a nature that, if separate suits are
brought against such a person, any common question of law or question of fact may
arise.
2.3 Parties to the suit, Joinder, mis- joinder or non-Joinder of parties
The Necessary Parties to a Civil Suit
A necessary party is that party without whom a claim or allegation cannot be settled by
the Honorable Court legally. In layman’s terms, in the absence of a “necessary party”,
no efficacious and absolute decree can be passed by the Court.

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Study Notes on Civil Procedure Code, by Dr. M. S. Khairnar, Asst. Prof. BV YCLC Karad | CPC

Misjoinder of Parties
The joinder or incorporation of any person as a party to a suit, opposite to the provisions
of the Code is known to be a misjoinder. Grounds for a court ruling that there is a
misjoinder incorporate that:
• The parties to the suit do not have the same rights to a judgment.
• They have a conflict of interests.
• The situations in each allegation must be unique or contradictory.
• Even to a bit, the defendants are not involved in the same transaction. In
the case of a criminal prosecution, the most usual cause for misjoinder is
the defendants are found to be involved in various claimed crimes or the
charges are based on separate unique transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of the cause of
action.
Misjoinder of Plaintiffs
Where two or more persons may have joined as Plaintiffs in one suit but the Right to
Relied claimed to exist in each plaintiff, does NOT come out of the same act or same
transaction (or series) and if separate suits were brought by each of the plaintiff, no
common question of fact or question of law may have arisen, there shall be a misjoinder
of plaintiff.
Misjoinder of Defendants
In a similar way, where two or more persons may have joined as Defendants in one suit
but the Right to Relied claimed to exist in each defendant, does NOT come out of the
same act or same transaction (or series) and if separate suits were brought by each of
the defendant, no common question of fact or question of law may have arisen, there
shall be a misjoinder of defendant.
Misjoinder of Cause of Action
This aspect may be coexisting with misjoinder of plaintiffs or misjoinder of defendants.
Hence, the subject may be considered pertaining to the following heads.
Misjoinder of Plaintiffs and Cause of Action
Where there are two or more plaintiffs in a suit and two or more causes of action, the
plaintiffs shall be interested jointly in all the causes of action. If not, the case is one of
misjoinder of plaintiffs and cause of action.
2.4 Representative suit.
Representative suit
Introduction
Generally, in the interests of full and final disposition of the case all interested parties to
a litigation ought to be joined as parties thereto. However, the exception to this rule is

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provided by Order 1 Rule 8 of the Code of Civil Procedure in the form of

Representative suits, where one or more people, can, if there are several persons
similarly interested in the suit, with the permission of the court or upon a direction from
the court, sue or be sued on behalf of themselves and the others
A representative suit is one that is filed by or against one or more people on behalf of
themselves and others who have a vested interest in the outcome of the suit.
Representative suit is based on public policy. It saves time, money, labour and prevents
multiplicity of suits. Order 1 Rule 8 of the Civil Procedure Code deals with
representative suits.
As a general rule, all persons interested in a suit should be joined as parties to it so that
the matter involved therein may be finally adjudicated upon and fresh litigation over the
same matter may be avoided. Rule 8 of Order 1 of the Civil Procedure Code (CPC) is
an exception to this general rule.

Essential Elements of Representative Suit

For the application of Order 1 Rule 8 of the Civil Procedure Code following elements
must be fulfilled:
1. There Should Be Several Parties
The first condition for a representative suit is several parties. The word “several
parties” imply a group of persons and does not mean innumerable persons.
2. They Must Have the Same Interest
Community’s interest is the next essential, and it is the condition precedent for bringing
a representative suit. Hence the interest must be common to all, or they must have a
common grievance they seek to redress. It is not necessary that the interest must have
arisen from the same transaction. The explanation clarifies that the person need not
have the same cause of action.
3. Permission or Direction by the Court Is Necessary
The suit does not become a representative suit until the court grants the permission or
the directions have been given by the court. The proper course is that the permission of
the court must be obtained before the suit is filled.
4. Notice Must Be Given
All interested persons who would be bound by the decree shall be given notice. Notice
may be in person or public. In Kumaravelu Chettiar vs T.P. Ramaswami Ayyar
(1933), the Privy Council held that the issue of notice is peremptory, and if it is not
given, the decree will bind only those parties who are on record.

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Conditions
The Supreme Court in Kalyan Singh v. Chhoti (Kalyan Singh v. Chhoti , AIR 1990
SC 397 ) laid down the prerequisite conditions in order to file a representative suit.
These are:
• the parties must be numerous;
• they must have the same interest in the suit;
• permission or direction to file the representative suit must be given by the court;
• notice must be issued to the parties who are proposed to be represented by the
suit.

Addition or Substitution of Parties

Order 1 Rule 8 sub-rule 3 of the Civil Procedure Code provides that any person on
whose behalf a suit is filed or defended under sub-rule 1 of the Civil Procedure Code
may apply to the court to be added as a party to the suit. Such a person must show that
the conduct of the suit is not in proper hands and that his interest will be seriously
affected by his prejudice if he is not joined as a party to the suit.
Withdrawal or Compromise of Representative Suit
The following provisions are provided regarding withdrawal and compromise of a
representative suit in CPC:
• Under sub-rule 4 of Rule 8 Order 1 of the Civil Procedure Code, no part of the
claim in a representative suit can be abandoned under sub-rule 1 of Rule 8,
Order 1 of the Civil Procedure Code.
• No such suit can be withdrawn under sub-rule 3 of Rule 1 Order 23 of the Civil
Procedure Code.
• Under Order 23 Rule 3 of the Civil Procedure Code, no agreement, compromise
or satisfaction can be recorded in any such suit.

2.5 Frame of suit: Importance of cause of action

Framing of a Suit
Every suit (plaint) should be framed in such a way that will enable the court to find out
the dispute in question and to decide the same judiciously to prevent further litigation.
Order II, Rule 1 CPC reads as under-
“Frame of suit: Every suit shall as far as practicable be framed so as to afford ground
for final decision upon the subjects in dispute and to prevent further litigation
concerning them.”

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The object of the suit is not only to resolve the disputes for the present but to settle the
issue once for all. To achieve this goal, the suit should be perfect and complete. It
cannot be a piecemeal affair. Total relief should be claimed in the suit. We cannot
relinquish a part of claim and reserve your right to file a subsequent suit for
relinquished part of claim some time later as per our convenience.
Order II deals with frame of suit.
It has seven rules-
• Rule 1 generally deals with frame of suit.
• Rule 2 provides that the suit to include the whole claim and all reliefs arising out
of one cause of action and its effect for non-inclusion.
• Rule 3 provides Joinder of causes of action, whereas
• Rule 4 mandates that only certain claims are to be joined for recovery of
immovable property and not others.
• Rule 5 provides that in claims by or against executor, administrator or heir,
personal claims can not be joined.
• Rule 6 empowers the Court to order separate trials (split of suits) in case of
joinder of causes of action.
• Rule 7 mandates that objections as to misjoinder can be taken at the earliest
opportunity.

Structure of Plaint
For a plaint, there are no strict rules or any proforma. But the Civil Procedure Code
provides certain guidelines regarding the particulars to be contained in the plaint. We
find those guidelines in Rule 1, Order VII of Civil Procedure Code which runs as
follows-
Particulars to be contained in Plaint: The plaint shall contain the following
particulars:
1. The name of the court in which the suit is brought;
2. The name, description and place of residence of the plaintiff;
3. The name, description and place of residence of the defendants, so far as they
can be ascertained; and
4. Where the plaintiff or the defendant is a minor or a person of unsound mind,
a statement to that effect;
5. The facts constituting the cause of action and when it arose;
6. The facts showing that the court has jurisdiction;
7. The relief which the plaintiff claims;

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8. Where the plaintiff has allowed a set-off or relinquished a portion of his

claim, the amount so allowed or relinquished;
A statement of the value of the subject-matter or the suit for the purposes of jurisdiction
and the court fees so far as the case admits.
The above guidelines apply to all suits filed under Civil Procedure Code. On the basis
of above guidelines, the structure of the plaint can be broadly divided into four
parts. They are:
1. Heading.
2. Descriptive particulars of the parties.
3. Body of the plaint.
4. Relief portion.

Every suit (plaint) should be framed in such a way that will enable the court to find out
the dispute in question and to decide the same judiciously to prevent further litigation.
Order II, Rule 1 CPC reads as under-
“Frame of suit: Every suit shall as far as practicable be framed so as to afford ground
for final decision upon the subjects in dispute and to prevent further litigation
concerning them.”
The object of the suit is not only to resolve the disputes for the present but to settle the
issue once for all. To achieve this goal, the suit should be perfect and complete. It
cannot be a piecemeal affair. Total relief should be claimed in the suit. We cannot
relinquish a part of claim and reserve your right to file a subsequent suit for
relinquished part of claim some time later as per our convenience.

Importance of Cause of Action

The term Cause of Action refers to a set of facts or allegations that make up the grounds
for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil
Suit, since without a Cause of Action a Civil Suit cannot arise.
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to
obtain money or property, or to justify the enforcement of a legal right against another
party.

Introduction:-
Cause of action is an important aspect of the plaint on which it is based. If there is no
cause of action in the plaint, it will have to be rejected. Without a cause of action, Civil
Suit cannot arise. Therefore, a cause of action is essential to Civil suit by its nature.

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The Cause of Action consists of the set of facts or allegations that make up the grounds
for filing a lawsuit against the defendant. The term Cause of Action has not been
defined in the Code of Civil Procedure.
Cause of Action:-
A Cause of Action, in law, is a bundle of facts sufficient to justify a right to sue to
obtain money, property, or the enforcement of a right against another party. The legal
document which carries a claim is often called a “statement of claim” in English law, or
a ‘complaint in the U.S.
Important of Cause of Action:-
As we have discussed above, that it is an essential part of the lawsuit and consist the
bundle of fact of the claim of the plaintiff from the court against the defendant. It is the
center of the suit. It consists of the following:-
1. Substantive right existing in the plaintiff,
2. The violation of that right by the defendant.

It is a pivot of the entire suit as all the factors such as the settlement of issue, the
evidence to be taken up on and the judgment to be pronounced and also the settlement
of matter in issue etc. is all depends upon the cause of action. Cause of action should be
clearly stated by the plaintiff and the burden of proof also lies upon the plaintiff to
prove his cause of action beyond doubt.

2.6 Summons and modes of service of summons

Summons and modes of service of summons
The word “summons” has not been defined in the Civil Procedure Code. The
intimation sent to the defendant by the court is known as a summons. Order
5 and sections 27 to 29 of the Civil Procedure Code deal with summons under civil
litigation.
A summons is a written notice served on a person under the authority of the court to
appear personally before the court. The concept of summons emanates from the natural
justice principle of audi alteram partem (hear both sides).
In code of civil procedure 1908 summons can be issued to following persons:
Summons To Defendant - Order 5 of Code and Section 27 to 29 of Civil Procedure
1908
When any party (Plaintiff) filed a suit against another party i.e. Defendant. The
Defendant has to be informed that the suit is filed against him and it is necessary to
appear before court of justice to defend himself in such situation the court send an
intimation document to defendant is said to be summons to defendant.

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The summons of Defendant can served for two purposes i.e. Either for settlement of
issues or for final settlement of the suit.

Summons tO Witnesses - Order 16 and Section 27 to 31 of Code of Civil Procedure

The summons shall issue by the Court to any person to give evidence as witness or
produce document which is in his possession before court on particular date such
intimation document is said to be summons of Witness.The summons of Witnesses can
served for two purposes i.e. Either for giving his oral evidence or for final production of
documents.
Object of Issuing Summons
The object of issuing summons is to uphold the idea of natural justice and provide the
defendant with the opportunity to say what he has to say against the prayer made by the
plaintiff.
Essentials of Summons
According to Rule 1 and Rule 2 of Order 5 of the Civil Procedure Code, every
summons shall be signed by the judge or the officer appointed by the court and shall
bear the seal of the court. A plaint must accompany every summons.
There are certain conditions must take into consideration such as:
1. Summons shall be issued by the Court in which the suit is pending before it for
appearance of defendant and opportunity to answer the plaintiff's claim.
2. Summons may be served within within 30 days from institution of suit.
3. Every summons shall be signed by the presiding Judge or its officer with seal of
the court.
4. Copy of plaint should be accompanied with summons.
5. The Summons to defendant must show its purpose of issuance.

Contents of Summons
According to Rule 5 of Order 5 of the Civil Procedure Code, the summons must state
whether the date specified is for the settlement of issues only or for the final disposition
of the suit. The summons should also include an order requiring the defendant to
produce any documents or copies of documents in his possession or control that he
intends to rely on in support of his case.
Service of Summons
The Civil Procedure Code specifies five methods for serving a summons on a
defendant. They are:
1. Personal or Direct Service

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2. Service by Court
3. Service by Plaintiff
4. Substituted Service
5. Service by Post
Let us learn more about these methods of serving summons.
1. Personal or Direct Service
The summons must be served on the defendant in person or by an authorised
representative wherever possible. If the defendant is absent from his residence at the
time of service of summons, the summons may be served on any adult member or
female member of the defendant’s family. A servant cannot be said to be a family
member.
Where there are two or more defendants, the summons should be served on each
defendant.
The service of the summons should be made by delivering a copy of the summons.
After that, the serving officer must make an endorsement on the original summons
regarding the delivery of the summons.
2. Service by Court
When a defendant is residing within the court’s jurisdiction, the summons shall be
served through the court officer or any approved courier service. Where the defendant is
residing outside the court’s jurisdiction, the summons will be served through an officer
of the court within whose jurisdiction such defendant resides.
3. Service by Plaintiff
In addition to the service of summons by the court, the court may allow the plaintiff to
serve the summons.
4. Substituted Service (Order 5 Rule 20)
Substituted service can be done in the following circumstances:
• If the defendant or his agent refuses to sign the acknowledgement, or if the
serving officer is unable to locate the defendant after due diligence and there
appears to be no chance of finding him, the service of summons can be done by
fixing a copy of the summons on the outer door or some conspicuous (noticeable)
part of the house in which the defendant resides or carries on business or
personally works for gain.
• Where the court is satisfied that the defendant is avoiding service of summons or
the summons cannot be served on the defendant in an ordinary way, the service
may be achieved either by affixing a copy of the summons in the conspicuous
place in the courthouse and also where the defendant last resided, carried on a
business, or where he personally worked for gain or in such manner as the court
thinks fit.

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In Basant Singh vs Roman Catholic Mission (2002), the court stated that one must
remember that this is not a regular mode of service. Hence it should not normally be
allowed and should only be used as the last resort.
5. Service by Post
When the court receives an acknowledgement purporting to be signed by the defendant
or his agent, or when the defendant or his agent refuses to accept delivery of the
summons when it is tendered to him, the court issuing the summons shall declare that
the summons had been properly served.
Service Of Summons Through Electronic Message- (Order 5 Rule 9 (3) Of CPC)
It is admissible now a days for expediency and speedy service of summons, The Service
of summons on Defendant can be made by giving a copy of summons to the defendant
through any electronic media such as Emails or Fax under rules prescribed by the High
Court.
Objection to Service of summons
Any objection as to service of summons shall be raised by the party at earliest
opportunity otherwise it deemed to be waived by the party.

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Unit- III: Pleadings

3.1 Fundamental rules of pleading, signing and verification.
3.2 Plaint: rules and particulars,
3.3 Admission of plaint and return and rejection of plaint
3.4 Written statement: particulars, rules of evidence
3.5 Set off and counter claim distinction and Amendment of pleadings
3.6 Settlement of Issues and Discovery, inspection and production of documents
3.7 Interrogatories
3.8 Privileged documents
3.9 Affidavits

3.1 Fundamental rules of pleading, signing and verification.

Introduction
Pleadings is a statement in writing filed by the counsel of plaintiff. It form the foundation
for any case in the court of law.
Code of Civil Procedure (CPC) in order 6, Rule 1 defines pleadings as a written statement
or a plaint.

Objective of pleading
The whole objective behind pleading is to narrow down on the issues and provide a clear
picture of the case.
The object of pleadings are – (i) to bring the parties to definite issues; (ii) to prevent
surprise and miscarriage of justice; (iii) to avoid unnecessary expense and trouble; (iv) to
save public time; (v) to eradicate irrelevancy; and (vi) to assist the Court.
For the proper understanding of rules of pleadings it may be divided into two heads:-
A. Fundamental or Basic Rules; and B. Particular or Other Rules
A. Fundamental or Basic Rules;
Sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908, lays down the
fundamental principles of pleadings. It reads as under:-
“Every pleading shall contain, and contain only a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as the case
may be, but not the evidence by which they are to be proved.”
The plaint is the document filed by the Plaintiff containing his version of material facts
and cause of action against the defendant.

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The written statement is filed by the defendant as a reply to each and every paragraph of
the Plaint either to counter or admit all averments contained therein.
From the above provision it can be said that following are the fundamental or basic
rules of pleadings:-
1. Pleadings should state facts and not law; 2. The facts stated in pleadings should be
material facts; 3. Pleadings should not state the evidence; and 4.The facts in pleadings
should be stated in a concise form.
1. Pleadings should state facts and not law - It is the first fundamental rule of
pleadings. It says that pleadings should state only facts and not law. In the case
of Kedar Lal vs Hari Lal- it was held that it is the duty of the parties to state only the
facts on which they rely upon their claims. It is for the Court to apply the law to the
facts pleaded.

2. The facts stated in pleadings should be material facts - It says that pleadings
should contain a statement of material facts and material facts only. Pleading should
contain only the material facts on which the parties rely to prove their cases.
The term “material facts”- This term has not been defined in the Code of Civil
Procedure, 1908. But the Court defined this term in many judicial pronouncements.
Like in the case of Union o India vs Sita Ram the court said that “material facts” means
all facts upon which the plaintiff’s cause of action or the defendant’s defence depends,
or in other words, all those facts which must be proved in order to establish the
plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written
statement.
Material facts are those facts on the basis of which the parties want to get
relief. Generally, they are decided by the lawyer who drafts the pleadings. She decides
on basis of the material facts after listening to her client.
Particulars of fraud, misrepresentation, undue influence, cheating, defamation, breach
of trust, wilful default, undue influence, etc are material facts.
The facts are of two types:-
a. Facta probanda –the facts required to be proved (material facts); and
b. Facts probantia- the facts by means of which they are to be proved (particulars or
evidence).
Paragraphs should be Numbered
It is advisable to divide the pleading into numbered paragraphs wherein each allegation
being, so far as is convenient, contained in a separate paragraph.
Do not anticipate your opponent’s pleadings and plead to any matter that is not alleged
against you.

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3. Pleading should not Contain any Law

This is one of the fundamental rules of pleading. Pleadings should state only material
facts and not any law which they think might be applicable in the case. In other words,
no provisions of the law should be stated in the pleadings.
It should not contain any evidence or law. It is presumed that the judge already knows
the law and she can appreciate the evidence accordingly once the trial begins. Parties
only need to state the material facts and nothing else.

Why no Evidence in Pleadings?

It is because pleadings are submitted before the trial begins. Evidence is required to
prove the allegations after the framing of issues.
Once the parties have submitted their pleadings, it is the duty of the concerned court to
frame issues and ask parties to lead evidence to prove those issues.
4. Pleadings should be Concise and Definite
One of the fundamental rules of pleading is that it should be concise, precise, certain,
clear, definite, and specific. They should not be vague and abstract.
For this matter, one should avoid pronouns and instead use the Plaintiff or the
Defendant as the case may be.
B. Particular or Other Rules
Besides the fundamental or basic rules of pleadings, there are other or particular rules of
pleadings which are as follows:-
1. Wherever misrepresentation, fraud, breach of trust, willful default or undue influence
are pleaded in the pleadings, particulars with dates and items should be stated. (Rule 4
of Order VI )
2. The performance of a condition precedent need not be pleaded since it is implied in
the pleadings. Non-performance of a condition precedent, however, must be specifically
and expressly pleaded. (Rule 6 of Order VI)
3. Generally departure from pleading is not permissible, and except by way of
amendment, no party can raise any ground of claim or contain any allegation of fact
inconsistent with his previous pleadings. (Rule 7 of Order VI)
4. A bare denial of a contract by the opposite party will be construed only as a denial of
factum of a contract and not the legality, validity or enforceability of such contract.
(Rule 8 of Order VI)
5. Documents need not be set out at length in the pleadings unless the words therein are
material. (Rule 9 of Order VI)
6. Wherever malice, fraudulent intention, knowledge or other condition of the mind of a
person is material, it may be alleged in the pleading only as a fact without setting out
the circumstances from which it is to be inferred. Such circumstances really constitute

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evidence in proof of material facts. (Rule 10 of Order VI)

7. Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice, without setting out the form
or precise term of such notice or the circumstances from which it is to be inferred,
unless they are material. (Rule 11 of Order VI)
8. Implied contracts or relations between persons may be alleged as a fact, and the
series of letters, conversations and the circumstances from which they are to be inferred
should be pleaded generally. (Rule 12 of Order VI )
9. Facts which the law presumes in favour of a party or as to which the burden of proof
lies upon the other side need not be pleaded. (Rule 13 of Order VI)
10. Every pleading should be signed by the party or one of the parties or by his pleader.
(Rule 14 of Order VI )
11. A party to the suit should supply his address. He should also supply address of the
opposite party. (Rule 14-A of Order VI)
12. Every pleading should be verified on affidavit by the party or by one of the parties
or by a person acquainted with the facts of the case. (Rule 15 of Order VI)
13. A Court may order striking out a pleading if it is unnecessary, scandalous, frivolous,
vexatious or tends to prejudice, embarrass or delay fair trial of the suit. (Rule 16 of
Order VI)
14. A Court may allow amendment of pleadings. (Rule 17 of Order VI)
15. Forms in Appendix A of the Code should be used wherever they are applicable.
Where they are not applicable, forms of like nature should be used. (Rule 3 of Order
VI)
16. Every pleading should be divided into paragraphs, numbered consecutively. Each
allegation or averment should be stated in a separate paragraph. Dates, totals and
numbers should be written in figures as well as in words. (Rule 2(2) and 2(3) of Order
VI)

Amendment of pleading
Amendment is the formal revision or addition or alteration or modification of the
pleadings. Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deals with
provisions regarding amendment of pleadings and failure to amend after order
respectively.
Rule 17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any
stage of the proceedings allow either party to alter or amend his pleadings in such
manner and on such terms as may be just, and all such amendments shall be made as
may be necessary for the purpose of determining the real questions in controversy
between the parties.
Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the
Code of Civil Procedure (Amendment) Act, 2002 restricts and curtails power of the
Court to allow amendment in pleadings. “No application for amendment should be

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allowed after the trial has commenced, unless the Court comes to the conclusion that in
spite of due diligence, the party could not have raised the matter before the
commencement of trial.”
Amendment of pleadings when refused
Amendment of pleadings can be refused in many circumstances. Following are the
situations or circumstances when amendment of pleadings can be refused by the Court:-
1. When the proposed amendment is unnecessary.
2. When the proposed amendment causes an injury to the opposite party which cannot
be compensated for by costs.
3. When the proposed amendment changes the nature of the case.
4. When the application for amendment is not made in good faith.
5. When there has been an excessive delay in filing the amendment application.

3.2 Plaint: rules and particulars,

Plaint
A plaint is a legal document which contains the written statement of the plaintiff's
claim.
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. It can be said to be a
statement of claim, a document, by the presentation of which the suit is instituted.
However, the expression “plaint” has not been defined in the code. It is a pleading of
the plaintiff.
Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed.” This section
clearly shows that plaint is very much necessary for the establishment of a suit before
the civil or commercial court.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of
CPC, there are many different rules which deal with different constituents of
plaint. Rules 1 to 8 deal with the particulars of the plaint. Rule 9 of CPC deals with how
the plaint will be admitted and after that Rule 10 to 10-B talks about the return of the
plaint and the appearance of parties. And the main Rules i.e 11 to 13 deal with the
rejection of the plaint and in which circumstances the plaint can be rejected.
Necessary Contents of A Plaint
A plaint is a legal document that contains a lot of necessary contents in the absence of
which, it cannot be considered as a plaint. The contents necessary for a plaint are
mentioned in Rules 1 to 8 of Order VII of CPC. These are mentioned below:
• Plaint should contain the name of the commercial or civil court where a suit
will be initiated.

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• Plaint should contain details of the plaintiff such as the name, address, and
description.
• Plaint should contain the name, residence, and description of the defendant.
• When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
• Plaint should contain the facts due to which cause of action arises and where
the cause of action arises it should also be mentioned.
• Plaint should not only mention facts due to which cause of action arises but
also those facts which help in recognizing the jurisdiction.
• Plaint should also contain about that relief which the plaintiff seeks from the
court.
• When the plaintiff is ready to set off a portion of his claim, the Plaint should
contain that amount which has been so allowed.
• Plaint should contain a statement of the value of the subject-matter of suit not
only for the purpose of jurisdiction but also for the purpose of court-fees.
• At last, the content that should be on plaint is the plaintiff verification on oath.
Particulars of the plaint:

- The name of the particular court where the suit is brought; [R.1(a)];
- The name, place, and description of the plaintiff’s residence; [R.1(b)];
- The name, place, and description of the defendant’s residence; [R.1(c)];
- A statement of unsoundness of mind or minority in case the plaintiff or the defendant
belongs to either of the categories; [R.1(d)];
- The facts that led to the cause of action and when it arose; [R.1(e)];
- That fact that point out to the jurisdiction of the court ; [R.1(f)];
- A statement of the value of the subject-matter of the suit for the purpose of jurisdiction
and court fees; [R.1(i)];
- The relief claimed by the plaintiff, simply or on the alternative; [R.1(g)];
- Where the plaintiff files a suit in a representative capacity the facts showing that the
plaintiff has an actual existing interest in the subject matter and he has taken steps that
may be necessary to enable him to file such a suit; [R. 4];
- Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; [R.1(h)];
- Where the suit is for recovery of money, the precise amount claimed; [R 2]
- Where the suit is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value
thereof; [R. 2]
- Where the subject-matter of the suit is immovable property description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc; [R.3]
- The interest and liability of the defendant in the subject-matter of the suit; [R. 5]

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- Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed; [R. 6 ]

Admission of plaint:
Rule 9 lays down the procedure when the plaint is admitted by the court. It provides for
the filling of copies of the plaint by the plaintiff and also requires him to pay requisite
fees for the service of summons on the defendants within seven days.
Signature and verification:
The signature of the plaintiff put at the end of the plaint. In case the plaintiff is not
present due to any legitimate reason, then the signature of an authorized representative
would suffice.
The plaint should also be duly verified by the plaintiff. Where the plaintiff is unable to
do so, his her representative may do the same after informing the court.
The plaintiff has to specify against the paragraphs in the pleadings, what all he/she has
verified by his/ her own awareness of the facts, and what has been verified as per
information received, and subsequently believed to be true. The signature of the
plaintiff/verifier, along with the date and the place, at the end of the plaint is essential.
The verification can only be done before a competent court or in front of an Oath
Commissioner.

3.3 Admission of plaint and return and rejection of plaint

Rejection of plaint
The Plaint shall be rejected in certain situations when requirements are not fulfilled. Some
of the situations in which the plaint is rejected are as follows:
• The plaint is rejected in a case where the cause of action is not disclosed. If
the cause of action is not disclosed then it is not possible to prove the damage
caused to the plaintiff. To seek relief against the defendant, the facts need to
be mentioned clearly.
• The plaint is also rejected in a case where the plaintiff relief is undervalued
and the plaintiff is requested by the court to correct the valuation within the
given time frame but the plaintiff fails to do so.
• The plaint is rejected in a case where all the documents are not properly
stamped and the plaintiff on being required by the court to supply the required
stamp paper within a time to be fixed by court fails to do so.
• The plaint is mostly rejected due to the statement mentioned in the plaint
secured by any law or statute that doesn’t give any right to the plaintiff to file
the suit.

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• When a duplicate copy of the plaint is not submitted whereas it is mentioned

that it is mandatory to submit the duplicate copy then in that condition plaint
is liable to be dismissed.
• The plaint is rejected when the plaintiff fails to comply with the provisions of
Rule 9 of Order VII of C.P.C.
Provisions on the Rejection of Plaint under C.P.C.
As we have already said in what circumstances the plaint can be rejected and now what
are the provisions that are related to the rejection of the plaint under Code of Civil
Procedure. Some of the provisions regarding the rejection of a plaint are mentioned
below:
1. Order VII Rule 12 of C.P.C states the procedure on rejecting the plaint so that
it can be used as a precedent for future cases.
2. Order VII Rule 13 of C.P.C states that rejection of the plaint does not stop the
presentation or filling of the fresh plaint.
Two modes which are mentioned to show the manner in which the plaint can be rejected:
1. The defendant has the right to file an application in the form of an interlocutory
application at any stage of proceedings for the rejection of the plaint.
2. Suo moto (on its own): The meaning of the suo moto itself defines the way of
rejection of the plaint. Suo moto rejection is under Order 7 Rule 11 which
states Rejection of the plaint. A court can itself try a suit under Order 7 Rule
11 if the plaint fulfills the conditions discussed in the first point.

3.4 Written statement: particulars, rules of evidence

Meaning-
The term written statement has not been defined under the code. But it can be defined as
a pleading of the defendant. In it he deals with every material fact alleged by the
plaintiff in the plaint and also states new facts and legal objections which are in his
favour and against the claim of plaintiff.
A written statement is the statement of the defendant in his defence. In it he either
admits the claims or denies the facts alleged by plantiff in his plaint.
The written statement is filed by the defendant or his duly constituted agent. Where there
are several defendants, they can either file different written statement individually or one
written statement, signed by all of them. But it can be verified by one of them who is
aware of the situation. A written statement filed by one defendant does not binds the other
defendants.
RULE 1: WRITTEN STATEMENT
Order VIII Rule 1 of the civil procedure code provides that, after the service of
summons, the defendant should file the written statement within 30 days.

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The defendant within 30 days from the service of summons has to file the written
statement of his defence. In case the defendant fails to file his written statement within
30 days he can file the same on any other day as the court permits with reasons to be
recorded in writing, but it shall not be later than 90 days from the date of service of
summons.
Characteristics of the written statement
• The defendant has to appear in court on the date mentioned in the summons.
• Before the date of appearing in the court, the defendant needs to file the written
statement in the court.
• The statement should deny or accept the allegations imposed on him. Any
allegations which are not answered by the defendant are deemed to be accepted
by the defendant.
• The statement must contain the verification of the defendant by stating that the
content written in the statement is true and correct as per the knowledge of the
defendant.
• If the defendant fails to submit the written statement before 30 days, he can seek
the court to extend the time, in that case, the court may extend the time period
upto 90 days.

PARTICULARS OF A WRITTEN STATEMENT: RULE 1A-5 & 7-10

1. This rule talks about the protection and production of the document the
defendant relies upon.
Rule 1A casts a duty on defendant to produce documents upon which he relies upon. Like
a plaintiff, a defendant is also bound to produce the documents which are in his possession
and which are in favour of his defence. If the defendant fails to produce these documents
along- with written statement then they shall not be received as evidence except without
the permission of the court. However nothing in this rule is applicable to documents
reserved for cross examination of plaintiff’s witnesses or documents handed over to
witness merely to refresh his memory.
2. Order VIII Rule 2 is related to the new facts which should be pleaded.
Rule 2 provides for new facts to be specifically pleaded. The defendant must state all the
new facts regarding the maintainability and validity of the transaction and all such other
grounds of defence, which if not raised, would take the plaintiff to surprise or would raise
issues of facts not arising out of the plaint such as fraud, limitation, release, payment,
performance or facts showing illegality.
3. Rule 3 provides that denial to be specific. The rule casts a duty on the defendant
that he has to deny the averments of the plaintiff specifically. It shall not be sufficient for
a defendant in his written statement to generally deny the grounds as alleged by the

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plaintiff. The defendant must specifically deal with each and every allegation of fact
which he does not admit as truth, except damages.
4. Rule 4 deals with evasive denial. The rule states that where a defendant denies an
allegation of fact in the plaint, he must not do so evasively, but answer the point of
substance. Thus, if it is alleged that he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how much he received. And if an
allegation is made with diverse circumstances, it shall not be sufficient to deny it along
with those circumstances.
5. Rule 5 provides for specific denial. It provides that every allegation of the plaint if
not denied specifically or by necessary implication or stated not to be admitted shall be
considered to be admitted except against a person with disability. The proviso of this rule
casts a discretion on the court that it may require any fact so admitted to be proved other
than the admission made by the defendant in the written statement.
6. Rule 7 provides for defence founded upon separate grounds. It states that where the
defendant relies upon several distinct grounds of defence or set-off or counter-claim
founded separate and distinct facts, they shall be stated, as far as may be, separately and
distinctly.
7. Rule 8 provides for new grounds of defence. It states that any ground of defence
which has arisen after the institution of the suit or the presentation of a written statement
claiming a set-off or counter-claim may be raised by the defendant in his written
statement.
8. Rule 9 deals with subsequent pleadings. It states that No pleading subsequent to the
written statement of a defendant other than by way of defence to set-off or counter-claim
shall be presented except without the permission of the Court and upon such terms as the
Court thinks fit; but the Court may at any time require a written statement or additional
written statement from any of the parties and fix a time of not more than thirty days for
presenting the same.
9. Rule 10 deals with procedure when a party fails to present written statement called
for by court. In case the defendant fails to present his written statement in time permitted
or fixed by the court, the court will pronounce against him or pass any such other as it
thinks fit and decree shall be drawn upon the said judgment.

3.5 Set off and counter claim distinction and Amendment of pleadings
Meaning and definition of set off
1. The meaning and the definition of set off are not given in the Civil Procedure
Code and are deciphered from the Judicial Interpretation.
2. In simple language, set off is a cross claim against the claim of the plaintiff.

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Order VIII Rule 6 deals with set-off.

Set-off in the written statement is a claim added by the defendant against the plaintiff to
defend himself. Set-off is a cross-claim between plaintiff and defendant in which the
plaintiff is legally liable to pay that money to the defendant.
Essentials of set-off
• The suit filed by the plaintiff must be related to the recovery of money
• The defendant’s claim for set-off must be for a specific amount of
money.
• Money claimed by the defendant in the written statement must be legally
recoverable. For example, the defendant cannot claim any money which
he won in a bet with the plaintiff.
• The amount claimed by the defendant must not exceed the pecuniary
limit of the court. It simply means every court has its own limit that the
court can only deal with the cases where a certain amount of money is in
the issue. The defendant cannot claim his set-off which is beyond the
pecuniary jurisdiction of the court. For example, a court has the
pecuniary jurisdiction of 1 lakh, but the defendant claims a set-off which
is the amount of 5 lakh, in that case, the pecuniary jurisdiction is
exceeding. The defendant cannot claim that set off in that case.
• Both the defendant and plaintiff must fill the same character as they fill
in the plaintiff’s claim. It means, the defendant cannot claim a set-off in
which the plaintiff was not the main party. The defendant cannot claim
money that is recoverable from a person who is in the plaintiff’s
relation.
Purpose of set-off in a written statement
• To prevent the institution of a fresh suit in the court.
• It prevents multiple lawsuits between plaintiff and defendant.
• It prevents the valuable time of the court.

Types of set off

There are more than two types of set off but we are discussing only two types of set off
and these two types of set off are discussed by the courts in different cases.
There are two types of set off:
1. Legal set off
2. Equitable set off

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1. Legal set off

a. The legal set off is provided in the Order VIII Rule 6(1) of the Code of Civil
Procedure, 1908, and all the essential elements present in the Rule 6(1) will
requisite conditions for claiming legal set off.
b. The legal set off is provided in the case where the amount is ascertained.
c. The legal set off shall be pleaded by the defendant within the limitation
period.
d. The defendant has to pay court fees in the legal set off.
2. Equitable Set off
1. The concept of equitable set off comes from “equity, justice, good
conscience”. The equitable set off is not provided in the Code of Civil
Procedure, 1908.
2. It is an independent provision.
3. The equitable set off is given at the discretion of the court.
4. The plea raised by the defendant is not a matter of right of the defendant but
it is a matter of discretion of the court.
5. In equitable set off court fees may or may not be paid.

Difference between legal set off and equitable set off

Particulars Legal Set off Equitable Set off

The concept of legal set off is

The concept of equitable set off is
provided in Order VIII Rule
Concept provided under “equity, justice, good
6(1) under Code of Civil
conscience”.
Procedure, 1908.

The equitable set off is granted on the

The legal set off shall be
Legal aspect facts and circumstances and on the
claimed as a matter of right.
discretion of the court.

In the legal set off the amount

In the equitable set off the amount
which is recovered is
Recovery of which is recovered must be ascertained
ascertained and within the
money and the case is admitted at the
pecuniary jurisdiction of the
discretion of the court.
court.

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In the equitable set off the court fees

In legal set off the court fees
may not be paid by the defendant and it
Court fees are to be paid by the
depends on different facts and
defendant.
circumstances of the case.

The claim for equitable set off is

Limitation It is within the limitation
accepted beyond the limitation period,
period period.
it is at the discretion of the court.

Counter-claim
Concept of counter claim
The counter claim was inserted in the Code of Civil Procedure by the amendment made
in 1976, the concept of counter claim is inserted to reduce the multiplicity of suits filed
by the parties.

Order VIII Rule 6A

Order VIII Rule 6A deals with the Counter-claim. It says that the defendant has the
right to add any claim or right which is arisen by the cause of action against the
plaintiff. This cause of action can be before the institution of the suit filed by the
plaintiff or after the filing of the suit. This claim is known as a counter-claim. The
reason behind adding the counter-claim in the same suit is to prevent the multiplicity of
the suits because the defendant could have instituted a fresh suit for this cause of action,
so the counter-claim was added in the written statement to save the time of court and
parties.
Characteristics of counter-claim
• It should not exceed the limits of the pecuniary jurisdiction of the court.
• Counter-claim is considered as cross-suit. it enables the court to
announce the judgement on the simple suit and counter-claim.
• In the case of counter-claim, the court provides the time period to the
plaintiff to file a written statement
• The counter-claim is treated as a plaint and all the necessary rules of the
plaint shall apply on the counter-claim.
Order VIII Rule 6B
It says that the defendant should have stated the grounds of the counterclaim of which
he is relying upon in the suit.

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Difference between set off and counter claim

Particulars Set off Counter claim

Counter claim is provided

The set off is provided under Order
Legal under Order VIII Rule 6A to
VIII Rule 6 of the Code of Civil
Provision Rule 6G of the code of civil
Procedure, 1908.
procedure, 1908.

The object of set off is to give an

The object of the counter
opportunity to the defendant to set
Object claim is to avoid multiplicity
up his claim for recovery of money
of proceedings.
from the plaintiff’s claim.

The counter claim can be

The set off can be claimed in the claimed in all other suits such
Claim
recovery of money suits only. as title, possession, or in the
injunction.

It has a narrow scope or is related to

Scope It has a wider scope.
money.

The origin of the set off is from The counter claim is a part of
Genesis
“equity”. set off and has a wider scope.

Rule’s Set off the rules relating to written In counter claim rules relating
applicability statements will be followed. to plaint will follow.

3.6 Settlement of Issues and Discovery, inspection and production of documents

Settlement of Issues
Settlements of issues are dealt in Order 14 and Rule 1 of Civil Rules of Practice. Rule
11 of the Civil Rules of Practice describes how issues are to be framed. While framing
the issues usually the following points are kept in view by the Judges.
1. Every material proposition of fact in the same way every proposition of law which is
affirmed by both parties and which is denied by the other party shall be making the
subject of a separate issue.
2. Every issue of fact shall be framed in such a way so that it indicates on whom the
burden of proof lies.

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3. Every issue of law shall be so framed as to indicate either by a statement of admitted

or alleged facts or by reference to pleading or by some documents mentioned therein as
to the precise question of law to be decided.
4. The proposition of fact which is not in itself a material proposition, but is relevant
only to prove a material proposition shall not be made the subject of an issue.
5. No question regarding the admissibility of evidence shall be made in issue.
Example-
The plaintiff is a Muslim wife. She alleges that the husband was treating her cruelly by
beating her. She also claimed that the husband deserted her. She claimed for divorce.
The husband in his written statement alleges that he never treated his wife cruelly and
did not desert her. He contended that the wife left the matrimonial home without
justifiable cause.
ISSUES SO TO BE FRAMED:
1. Whether the plaintiff treated the wife cruelly?
2. Whether the defendant is guilty of desertion?
3. Whether the plaintiff is entitled to the dissolution of her marriage by a decree of
divorce? and
4. To what relief?
Importance of discovery and inspection of documents
Introduction
To understand the concept of discovery and inspection of documents, let us take an
example wherein A (plaintiff) files a civil suit against B (defendant). The case involves
important documents. Some of the documents are possessed by A and others by B. Later,
after the filing of a complaint and written statement (WS) by A and B respectively, A
wishes to access some documents that are possessed by B. Here, A has an option to view
such documents by way of filing an application before the Hon’ble court seeking
discovery of documents that are in possession of B. The reasons for filing such an
application are required to be mentioned by A which either can be for smoother
functioning of the case or for the better understanding of the case or that the discovery of
documents is important for the issues to be framed appropriately so that he can destroy
the case of his adversary at the hearing.
The word ‘document’ in very simple terms means a piece of written matter either in
printed or electronic form that gives some kind of information or acts as a piece of
evidence.
When can one file an application for the discovery of documents?
In a civil suit, the application for discovery of documents must be filed after the plaint
and the written statement are presented before the court. Such an application can be made
either by the plaintiff or defendant.

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Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is
provided.
Order XI: Rule 12-21 discusses the discovery and inspection of documents
Order XI Rule 12: application for discovery of documents
Order XI Rule 12 of the Code empowers the party to make an application for discovery
of documents to the court seeking those documents that are in possession or power of the
other party. This application may be filed without filing any affidavit. If it appears to the
court that such discovery is not required or not important at that stage of the suit, then the
court either rejects the application or adjourns it. The court has a discretionary power to
deal with such application in the sense that it might pass an order that will allow the
party’s access to certain documents only.
Order XI Rule 13: affidavit of documents
The party against whom an application for discovery of a document is made needs to
make an affidavit thereby specifying the documents that he objects to produce and supply
to the other party. This affidavit shall be made under Form No. 5 of Appendix C.
Order XI Rule 14: production of documents
Order XI Rule 14 empowers the court to order the party against whom an application for
production of the document is made to produce such documents in his possession or
power. After such documents are produced before the court, then the court might look
into them fairly and properly. This application can be dealt with by the Court and an order
to the same effect can be passed at any time during the pendency of any suit.
Order XI Rule 15: inspection of documents referred to in pleadings or affidavits
Order XI Rule 15 empowers the parties to serve a notice to the other party seeking
production of those documents that have either been referred to in the pleadings or
affidavit. The party can find such documents by checking the lists that are attached along
with the plaintiff or W.S. The parties serve such notices and seek the production of
documents with the intent to inspect such documents. These notices served by one party
to the other party or their pleader also demand copies of such documents.
Order XI Rule 16: notice to produce
According to this Order XI Rule 16, the notice for production of documents mentioned
in the Plaint or W.S. of the party is required to be made under Form No. 7 of Appendix
C. However, the notice is subject to changes depending upon the facts and circumstances.
Order XI Rule 17: time for inspection when notice given
As per Order XI Rule 17 of the Code, the party to whom the notice to produce a document
is served is required to reply (in the form of notice) to another party within ten days from
the receipt of such notice. Such a party will further provide a timeframe of three days to
the other party to come and check those documents for inspection. These three days will
begin from the date of delivery of the previous notice.

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Order XI Rule 18: order of inspection

Order XI Rule 18(1) of the Code empowers the court to pass an order regarding the
inspection of documents in case the party to whom notice is served under Rule 15 for
inspection of documents fails to give notice of inspection within ten days or put certain
conditions like raises objection to produce the documents or offers the documents to the
party at a place different from the pleader’s office.
Order XI Rule 18(2) of the Code makes it compulsory for the party making an application
for inspection of documents to list down the documents it requires for inspection in the
form of an affidavit.
Order XI Rule 19: verified copies
Order XI Rule 19(1) of the Code states that in case of an application made for inspection
of business books, the court possesses the power to seek a copy of those entries that are
mentioned in such business books.
Order XI Rule 21: non-compliance with the order of discovery
Order XI Rule 21 is one of the most important rules. In a civil suit, if the Plaintiff fails to
comply with the orders of the court, his plaint shall be dismissed, and furthermore,
according to 21(2), the plaintiff will not be able to file a new plaint in a fresh suit on the
same cause of action. In case, Defendant fails to comply with the orders of the court, his
evidence or defense will be struck off and the defendant will not be given a chance to
present his case. Resultantly, the decision shall be passed in favor of Plaintiff.

3.7 Interrogatories
Interrogatories are covered under Section 30 and Order XI Rule 1 to 11, 21 and 22 of
the Code of Civil Procedure, 1908.
Meaning- Interrogatories are a set of questions which a party administers on the
other party with the leave of the Court.
The party to whom interrogatories are administered, must answer them in writing and
on oath. The party to whom interrogatories are administered, discovers or discloses by
his affidavit, in answer to the interrogatories, the nature of its case. This is called
Discovery by Interrogatories.
Interrogatories have to be confined to the facts which are relevant to the matters in
question but not as to conclusions of law, inference from facts or construction of words
or documents.
The Application for leave to administer interrogatories is as a rule made ex parte and
the Court shall decide the said application within 7 days from its filing. (Rule 2)
Interrogatories shall be in Form 2 of Appendix C. (Rule 4)
Purpose of Interrogatories
Interrogatories are allowed for the following purposes:

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1. To ascertain the nature of the opponent's case or the material facts constituting
his case
2. To support one's own case, either-
a. Directly, by obtaining admissions, or
b. Indirectly, by destroying the opponent's case
Which types of Interrogatories may not be allowed
• Interrogatories for obtaining discovery of facts, may not be allowed, which-
o constitute the evidence of the opposite party
o contain any confidential or privileged communication
o involve disclosures injurious to public interests
Consequence of failure to answer interrogatories (Rule 21)
If a party fails to comply with an order to answer interrogatories, then:
• If the failing party is a Plaintiff, its suit is to be dismissed for want of
prosecution
• If the failing party is a Defendant, its defense to be struck out and be placed in a
position as if it had not defended.

3.8 Privileged documents

Privilege is a legal right; one that guarantees a person that he may resist compulsory
disclosure of information or documents.
Privileged documents are those which need not be disclosed to the other party,
neither before nor after the commencement of the trial. Their non-disclosure is
allowed by the law itself and the party having such privilege can claim it as a legal right
of not disclosing the document containing the concerned information.
All privileged documents are confidential but not all confidential documents are
privilege documents.
The Indian Evidence Act of 1972 protects professional communications between
attorneys and clients as private communications. Section 126 of the Indian Evidence
Act prevents attorneys from revealing information to third parties unless they have the
client’s specific permission.
To point out that major reasons for the existence of Privileged Documents under Code
of Civil Procedure are:
• Toprevent confidentiality and exclusiveness of one of the parties getting
affected by sharing of said information.
• To protect rights and ensure free and fair trial to the parties.

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• To make sure that opposing party doesn’t get any undue or advantageous benefit
in the case,
• To assure that the case is solved in lines to natural justice.

Test for a document to be qualified as a privileged document

Generally, it is believed that anything created after the commencement of litigation
would automatically become a privileged document.
The real test for a document to be qualified as a privileged document is if the reason it
came into existence is due to the scrutiny of litigation.
3.9 Affidavits
Order 19 deals with the affidavits. An affidavit is a sworn statement of the facts by a
person who is familiar with the facts and circumstances have taken place. The person
who makes it and signs it is known as Deponent.
In the affidavit, the contents are true and correct to the knowledge of the person who
signed it and he has nothing concealed material therefrom.
It is duly attested by the Notary or Oath commissioner appointed by the court
of law. The duty of the notary and oath commissioner is to ensure that the signature of
the deponent is not forged. The affidavit must be paragraphed and numbered as per the
provision of the code.
Meaning of affidavit:-
Though the expression “affidavit” has not been defined in the
code, it has been commonly understood to mean “a sworn statement in writing made
especially under oath or on affirmation before an authorized officer or Magistrate.”

The essentials attributes of an affidavit are following:

•
It must be a declaration made by a person,
• It must relate to facts and not inferences from the same,
• The affidavit must contain facts and circumstances known to a person and must
not set out the opinions and beliefs of the deponent.
• It must be in the first person,
• It must be in writing, and
• It must be a sworn statement made or affirmed before a Magistrate or any other
authorized officer.
• It must be paragraphed and numbered.
• The person making the affidavit (the deponent) must sign the bottom of each page
in the presence of an authorized person, such as a lawyer.

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• It must contain the full name, address, occupation and signature of the person
(deponent) making such affidavit and the date & place where such affidavit is
made.
Consequences of Filling A false affidavit:-

Filling of a false affidavit before the court of law is an offence under Sections.
191, 193, 195, 199 of IPC (Indian Penal Code), 1860. It is a grave and serious matter
and lenient view is not warranted. Where such an affidavit is filed by an officer of the
government very strict action should be taken. Further, criminal contempt of court
proceedings can be initiated against the person filing a false affidavit.

Unit- IV: Appearance, Examination and Trial

4.1 Appearance and Ex-parte procedure
4.2 Summary Suits
4.3 Summary and attendance of witnesses
4.4 Trial
4.5 Adjournments
4.6 Interest and costs.

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4.1 Appearance and Ex-parte procedure

Every proceeding as far as possible must be carried on in the presence of parties as a

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

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Non-appearance of both parties to the suit

When neither the plaintiff nor the defendant appears before the court when the suit is
called for hearing, then the court is empowered to dismiss the suit under Rule 3 of Order
IX. The dismissal of the suit under this rule does not put a bar on filing a fresh suit on the
same cause of action as per Rule 4.
The plaintiff can also apply for setting aside the dismissal if he is able to satisfy the court
that there was sufficient behind his non-appearance. If the court is satisfied with the cause
of non-appearance then it may set aside the order of dismissal and schedule a day for the
hearing of the suit.
The appearance of the plaintiff
When only the plaintiff appears but the defendant does not appear, then an ex-parte order
can be passed against the defendant. But, the plaintiff has to prove that the summon was
served to the defendant.
If service of the summons is proved then only the court can proceed for an ex-parte
against the defendant and the court may pass a decree in favour of the plaintiff. This
provision applies only for the first hearing and not for the subsequent hearings of the
matter
Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid
down from rule 7-11 of Order IX. When the defendant appears but there is non-
appearance of the plaintiff, then there can be two situations:
1. The defendant does not admit the claim of the plaintiff, either wholly or any
part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for
dismissal of the suit.
Ex-parte Decree
When the defendant is absent on the day of the hearing as fixed in the summon an ex-
parte decree can be passed. The ex-parte order is passed when the plaintiff appears before
the court on the day of the hearing but the defendant does not even after the summon has
been duly served. The court can hear the suit ex-parte and give ex-parte decree against
the defendant.
An ex-parte decree is a valid one and it is not null and void but can be merely voidable
unless it is annulled on a legal and valid ground. An ex-parte can be enforced like a bi-
parte decree and it has all the forces as a valid decree
Remedies against an ex-parte decree
When an ex-parte decree has been passed against a defendant, the following remedies are
available to him.

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1. He can apply to the court under rule 13 of Order IX for setting aside the ex-
parte decree passed by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer
revision under section 115 of the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.
Setting aside an ex-parte decree
For setting aside an ex-parte decree an application may be made by the defendant. An
application to set aside decree can be made to the court passing that decree. There are
certain rules to be followed for setting aside an ex-parte decree and if the defendant
satisfies the court with sufficient reason, then only the ex-parte decree which has been
passed can be set aside.
The limitation period for making an application for setting aside an ex-parte decree
is of 30 days.
The grounds on which an ex-parte decree can be set aside are:
1. When the summons has not been duly served.
2. Due to any “sufficient cause”, he could not appear on the day of the hearing.

4.2 Summary Suits

The summary suit is given under XXXVII of the Code of Civil Procedure, 1908. It
is used for effectively enforcing a right. Courts pass judgment without hearing the
defense in a summary suit.
Summary procedure is a legal procedure used for enforcing a right that takes effect faster
and more efficiently than ordinary methods.
Institution of summary suits
In order to institute a suit under summary procedure, the nature of suit must be among
the following classes:-
Suits upon bill of exchange, hundies and promissory notes
Suits for recovering a debt or liquidated demand in money, with or without interest,
arising:-
1. On a written contract, or
2. On an enactment (the recoverable sum should be fixed in money or it should
be in the nature of a debt other than a penalty), Or
3. On a guarantee (here the claim should be in respect of a debt or liquidated
demand only)
A summary suit is instituted by presenting a plaint in an appropriate civil court.

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Contents of plaint for summary procedure

Apart from facts about the cause of action, the plaint must contain a specific affirmation
that the suit is filed under this order. It should also contain that no such relief has been
claimed which does not fall under the ambit of rule XXXVII of the CPC. In the title of
the suit, following inscription must be there under the number of the suit:-
“(Under Order XXXVII of the Code of Civil Procedure, 1908)” [8]
Procedures after institution of Summary suit
Under summary procedures, the defendant has to get the leave to defend from the court.
A burden is placed upon the defendant to disclose the facts sufficient to entitle him to
defend in the application for leave to defend.
Detailed procedures
• After institution of a summary suit, the defendant is required to be served with
a copy of the plaint and summons in the prescribed form.
• Within 10 days of service of summons, the defendant has to enter an
appearance.
• If the defendant enters an appearance, the plaintiff shall serve on the defendant
a summons for judgment.
• Within 10 days of service of such summons, the defendant has to apply for
leave to defend the suit.
• Leave to defend may be granted to him unconditionally or upon such terms as
may appear to the Court or Judge to be just.
• If the defendant has not applied for leave to defend, or if such an application
has been made and refused, the plaintiff becomes entitled to the judgment
forthwith.
• If the conditions on which leave was granted are not complied with by the
defendant then also the plaintiff becomes entitled to judgment forthwith.
• Sub-rule (7) of Order 37 provides that save as provided by that order the
procedure in summary suits shall be the same as the procedure in suits
instituted in an ordinary manner.
Its object is to summarise the procedure of suits in case the defendant is not having any
defence.
A summary suit can be instituted in High Courts, City Civil Courts, Courts of Small
Causes and any other court notified by the High Court. High Courts can restrict, enlarge
or vary the categories of suits to be brought under this order.
Classes of suits where summary procedure is applied.
Summary suits can be instituted in case of certain specified documents such as a bill of
exchange, hundies, and promissory notes. Summary procedure is applicable to recover a

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debt or liquidated demand in money arising on a written contract, an enactment or on a

guarantee.
Decree in summary suits
The plaintiff is entitled to a decree of a sum not exceeding the sum mentioned in plaint,
together with interest and cost in following conditions:-
1. If the defendant does not enter an appearance (ex parte decree)
2. If the defendant has not applied for leave to defend
3. If the defendant has applied for leave to defend but it is refused
4. If the leave to defend is granted then the suit proceeds as an ordinary suit and
decree is granted as per the CPC.
summary suits are different from ordinary suits
The table given below demonstrates the difference between a summary suit and an
ordinary suit:-

Summary suits Ordinary suits

Only for suits related to bill of

exchange, hundies, promissory
Matter For any matter of civil nature.
notes and contracts, enactments,
guarantees of specified nature.

Not applicable if a summary suit Applicable. One cannot file

Applicability
can be filed on the matter another suit on the matter
of res sub-
directly and substantially in directly and substantially in
judice
issue in a previous ordinary suit. issue in a previous suit.

The right of The defendant will get a chance The defendant has a right to
the defendant to defend only if leave to defend defend the averments made in
to defend is granted. the suit.

In case of non-appearance of the

Multiple summonses are
Ease of getting defendant or refusal of leave to
served to the defendant when
decree defend, the plaintiff is entitled to
ex parte decree is passed.
decree forthwith.

Setting aside More strict and stringent.

Sufficient cause for non-
ex parte Special circumstances for non-
appearance needs to be shown.
decree appearance has to be shown.

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4.3 Summary and attendance of witnesses

Order XVI and Sections 27 to 31 deal with the “summoning and attendance of
witnesses”. Rules 1 to 21 under Order XVI have provisions for the same.
Once a suit of civil nature has been instituted, the next step and a significant one is the
issuing of a summons. It is only after issuing of summons that the witnesses appear and
the statements are recorded and the case goes on.
Attendance of the witnesses
Court has the power to force the individual attendance of any witness living inside the
jurisdiction of the court, or irrespective of the jurisdictional restrictions.

Provisions in Section 27 to 31
Section 27 to 31 mention the aspect of summoning of witnesses in the CPC other than
the Order XVI of CPC. Without the summons to witnesses, the suit cannot move
further.
Section 27 mentions that once the case is instituted, within 30 days of the same, the
summons is given out to the defendant asking them to appear.
Rule 1 Order XVI of Code of Civil Procedure 1908 "List of witnesses and summons
to witnesses"
(1) On or before such date as the Court may appoint, and not later than fifteen days
after the date on which the issues are settled, the parties shall present in Court a list of
witnesses whom they propose to call either to give evidence or to produce documents
and obtain summonses to such persons for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall
file in Court an application stating therein the purpose for which the witness is proposed
to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by
summoning through Court or otherwise, any witness, other than those whose names
appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the
omission to mention the name of such witness in the said list.

(4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be
obtained by the parties on an application to the Court or to such officer as may be
appointed by the Court in this behalf.

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Rule 1A Order XVI of Code of Civil Procedure 1908 "Production of witnesses

without summons"
A Subject to the provisions of sub-rule (3) of rule 1, any party to the suit may, without
applying for summons under rule 1, bring any witness to give evidence or to produce
documents.
Rule 2 Order XVI of Code of Civil Procedure 1908 "Expenses of witness to be paid
into Court on applying for summons"
(1) The party applying for a summons shall, before the summons is granted and within a
period to be fixed, pay into Court such a sum of money as appears to the Court to be
sufficient to defray the traveling and other expenses of the person summoned in passing
to and from the Court in which he is required to attend, and for one day's attendance.

(2) Experts- In determining the amount payable under this rule, the Court may, in the
case of any person summoned to give evidence as an expert, allow reasonable
remuneration for the time occupied both in giving evidence and in performing any work
of an expert character necessary for the case.

(3) Scale of expenses- Where the Court is subordinate to a High Court, regard shall be
had, in fixing the scale of such expenses, to any rules made in that behalf.

(4) Expenses to be directly paid to witnesses- Where the summons is served directly by
the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the
witness by the party or his agent.
Rule 5 Order XVI of Code of Civil Procedure 1908 "Time, place and purpose of
attendance to be specified in summons"
Every summons for the attendance of a person to give evidence or to produce a document
shall specify the time and place at which he is required to attend, and also whether his
attendance is required for the purpose of giving evidence or to produce a document, or
for both purposes; and any particular document, which the person summoned is called on
to produce, shall be described in the summons with reasonable accuracy.
Rule 6 Order XVI of Code of Civil Procedure 1908 "Summons to produce
document"
Any person may be summoned to produce a document, without being summoned to give
evidence, and any person summoned merely to produce a document shall be deemed to
have complied with the summons if he causes such document to be produced instead of
attending personally to produce the same.
Rule 7 Order XVI of Code of Civil Procedure 1908 "Power to require persons
present in Court to give evidence or produce document"
Any person present in Court may be required by the Court to give evidence or to produce
any document then and there in his possession or power.

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4.4 Trial
Stages of the Civil Suit as per the Civil Procedure Code, 1908-
1) Presentation of the plaint (Order 7)
2) Service of summons on defendant ((Order 5)
3) Appearance of parties
4) Ex-party Decree ((Order 9)
5) Filing of written statement by the defendant (Order 8)
6) Production of documents by parties
7) Examination of parties
8) Framing of issues by the court (Order 14)
9) Summoning and Attendance of Witnesses (Order 16)
10) Hearing of suits and examination of witnesses
11) Argument
12) Judgment
13) Preparation of Decree
14) Execution of Decree

A typical Civil case would go through the following stages:

Institution Phase
▪ Institution of suit
▪ Issue and service of summons
▪ Appearance of defendant
▪ Written statement, and set-off claims by defendant
▪ Replication'Rejoinder by Plaintiff
▪ Framing of Issues
Trial Phase
▪ Plaintiff Evidence
▪ Cross-Examination of Plaintiff Evidence
▪ Defendant Evidence
▪ Cross-Examination of Defendant Evidence

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▪ Final Argument
Judgement Phase
▪ Judgement/Decree
▪ Review of Decree
▪ Appeal
▪ Execution of Decree

Civil Trial Process

Civil trials, much like criminal trials, follow a rigid process of events when attempting
to reach a verdict. A civil lawsuit procedure consists of the rules by which courts carry
out civil trials. Following the pre-trial discovery period, jury selection process, and a
continued inability of parties to reach a resolution outside the courts, plaintiff and
defendants will present their contentions before a judge and jury in a civil trial. If you or
someone you know is entering a civil trial, it is important to understand what is a civil
court case, and the process to expect.
The order of events in the process of civil trials includes:
• Opening statements
• Presentation of evidence by plaintiff
• Direct examination of witnesses
• Cross-examination of witnesses
• Dismissal motions, or motion for direct verdict
• Presentation of evidence by defendant
• Rebuttals by plaintiff
• Final motions from defendant and plaintiff
• Closing arguments by defendant and plaintiff
Opening Statements
During the section of a civil trial known as the opening statements phase, plaintiff and
defendants parties will discuss in the courts a number of facts and matters related to the
case at hand and attempt to give all parties present an idea of the disputes in contention.
Throughout a civil trial, plaintiffs will seek to prove, by a preponderance of the
evidence, that defendant parties somehow committed wrongdoing in the dispute being
heard by the judge and jury.

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Plaintiff Evidence Presentations

In attempting to prove by a preponderance of the evidence that a defendant or
defendants committed wrongdoing, plaintiffs have two forms of evidence that are
permissible in the courts, including direct and circumstantial evidence. Factual evidence
is known as direct evidence, which is seemingly prima facie in itself. Circumstantial
evidence, however, attempts to infer or insinuate facts to a judge and jury and may
suggest the wrongdoings of defendant parties.
Direct and Cross Examination of Witnesses
As part of the presentation of evidence by plaintiffs, witnesses will be called to the
stand for direct examination. During this phase, plaintiff attorneys will pose questions
to witnesses surrounding the dispute in contests, as well as in some instances, solicit the
opinions and conclusions of expert witnesses on a specific matter.
During the cross examination of witnesses, defendant attorneys will seek to impeach, or
otherwise discredit, the testimony of witnesses in a number of manners including
questioning their moral turpitude, or history of being honest. Additionally, attorneys
cross-examining witnesses may produce leading questions that will attempt to promote
inconsistencies in a witness' testimony during the direct examination phase.
Presentation of Defense Evidence
At the conclusion of the plaintiff's presentation of evidence, the defense will attempt to
motion for dismissal or a directed verdict of the suit by the judge for the inability of the
plaintiff to produce a preponderance of the evidence proving their liability. Typically, a
judge will deny this motion, and the defense must proceed in presenting their
contentions and evidence. Additionally, defense attorneys in a civil case can present
witnesses, directly examine them, and re-cross examine previous witnesses.
Plaintiff Rebuttal and Closing Arguments
Following the defense presentation of evidence, plaintiffs are afforded to opportunity to
refute these claims through the rebuttal phase of a civil trial. After this phase is
complete, each side, plaintiff and defendant, may make final motions to the judge,
which may request a directed verdict and avoid sending the jury into deliberations.
Generally, however, judges will deny these motions in the vast majority of cases, and
so, both sides will prepare closing arguments to the jury.
In the closing arguments phase, both sides will issues summations, or seek to review
and reiterate are pertinent points of the case to the jury or judge. Additionally, the
lawyers and attorneys cannot introduce anything new during this phase that has not
otherwise been mentioned previously in the civil trial. Typically, the plaintiff will first
issue their closing arguments, followed by the defense's presentation of their closing
arguments. Following this, the plaintiffs have one last opportunity to appeal to the judge
or jury, known as the closing argument rebuttal, which will again seek to refute the
closing arguments of the defense. At this point, both sides rest and the judge will issue
instructions to the jury on rendering a verdict.

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Examination of parties by Court

On the first hearing the court will ask each party whether the allegations are true or
false. This can be asked orally by the judge. The response is recorded by the judge in
writing.
Framing of Issues
At the first hearing of the suit court frames the issues pertaining to the suit. Issues arise
when the allegations of a party are denied by other. Each such allegation (which is
denied by other party) shall be a issue and in the end judgement is given individually on
the issues. Issue can be issue of fact, or issue of law. The court can form the issues by
looking at the plaint and written statement, or it may interrogate the parties, witnesses
and or look at documents in order to determine the issue. For this the court may be
adjourned further unless the court can frame the issues. The issues are formally
recorded by the court. However, if the defendant makes no defense in the first hearing
then issues may not be formed and judgement may be given.
Modification of issues
The court may amend or remove any issues before passing a decree as it seems fit.
Though an application can also be filed with the court by either party for amendment of
issues.
Evidence and Cross-Examination of plaintiff
The plaintiff has the right to begin, whence he/she has to submit the evidence. Unless
the defendant agrees to allegations made by the plaintiff, but disagrees with the relief
sought then defendant has the right to begin. The plaintiff has to state his case in front
of the judge. The plaintiff has to submit the evidence that was earlier marked. If any
evidence was not marked earlier then it will not be considered by the court. The
plaintiff will be cross-examined by the defendant's lawyer. The witnesses from
plaintiff's side also have to appear in the court, who are also cross-examined by the
defendant's lawyer.
Evidence and Cross-Examination of Defendant
The defendant also presents his side of the story supported by the witnesses and
evidence from his side. The evidence needs to be be marked earlier by the court,
otherwise it will not be considered by the court. The plaintiff's lawyer will then cross-
examine the defendant.
Final Argument
Once the evidence has been submitted and cross-examination is conducted by the
plaintiff and defendant, both sides are allowed to present a summary of their case and
evidence to the judge in the Final argument session.

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4.5 Adjournments
The term adjournment means the postponement of hearing of a case until further
date. Adjournment may on specified date of for indefinite period. ( Sine Die) If an
adjournment is final, it is said to be sine die, "without day" or without a time fixed to
resume the work.
Order XVII of the code of civil procedure deals with the provisions of adjournment.
Any party who is willing to file a motion to adjourn has to request it as soon as the
hearing of that day begins. A request for adjournment can be made any time after the
case proceedings have begun and before the day of the judgment.
Order XVII Rule 1 of CPC contemplates that only if sufficient cause is shown at any
stage of the suit, the Court may grant time to the parties and adjourn hearing. The
proviso states that no such adjournment shall be granted more than three times to a
party during hearing of the suit.
Rule 1 (1) of Order XVII of the Code of Civil Procedure (which deals with
adjournments) states that the Court may grant an adjournment to “a party” if “sufficient
cause” is shown. Sub-Rule (2) of that Rule then goes on to say that adjournments are to
be granted only if the circumstances are beyond the control of the party who seeks one;
that the pleader of a party being engaged in another court is not a ground for
adjournment; and that illness of the pleader can be a reason for adjournment, if it can be
shown that the party did not have adequate time to engage another pleader.
4.6 Interest and costs.
Section 35- “Costs”- Section 35 of the Code of Civil Procedure provides for the costs.
The provision grants right to the discretion of the court that it may grant order for
paying the cost to the winning party for the expenses incurred in maintaining the suit or
to pay for the amount that the winning party has incurred while drafting legal notices
and contracts.
Section 35- Costs for Causing Delay- This Section was inserted via amendment act of
1976. This Section provides for the fines that are imposed upon the defendant for
causing delay. As is evident from the present condition of judicial system, one of the
reason for a large number of pending cases is that the lawyers use different tactics to
delay the judicial process.
SECTION 34- THE CODE OF CIVIL PROCEDURE
Section 34 of the Code is a general procedural provision. Its applicability or
inapplicability or extent of applicability would depend on the factual matrix and the
situation of the matter at hand, Central Bank of India v. Ravindra,(2002) 1 SCC 367.
Section 34 of the Civil Procedure Code, as it appeared before Act 104 of 1976, deals
with the topic of interest in three phases. The first stage is interest from the date of
institution of suit to the date of decree, the second stage is interest from the date of

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decree to the date of realisation of the decretal sum, and the third stage is interest from
the date of decree to the date of actualization of the decretal amount.
Section 34 specifies nothing for the first stage, but it does state that the interest to be
granted shall be as the court of law finds fair for the second stage.
The court’s right to grant interest during the third period, from the date of the decree
before actualization, is limited, that means, it cannot be more than 6% per annum
Pre-lite Interest
Pre lite interest consists of that part which should be given before the institution of the
suit. The Interest for the time period prior to the beginning of the case/suit is a subject
of substantive law which can be classified into two parts: I where a contract/
agreement for the payment of interest at a fixed rate of interest already (contract rate)
exists, and (ii) where there is no such proviso/agreement as per statutory provisions
providing a certain rate of interest and in its absence as per the interest Act , from the
date of demand notice, as well as the prevailing market rate of interest as per the
lending banks and financial institutions.
Pendent- Lite Interest/Post Lite Interst
It is the additional interest on the principal sum adjudged or declared due from the date
of the suit, either at contract rate if reasonable or at such rate as the Court deems
reasonable in its discretion.
Penal Interest
Penal interest has to be distinguished from the normal interest and its three forms in the
legal proceedings. Penal interest is an extraordinary responsibility borne by a debtor as
a result of his becoming a wrongdoer for failing to make a payment of his amount
due when it should have been paid in favour of the party wronged, and it is unrelated to
or confined to the damages sustained.

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Unit – V Interim orders and Miscellaneous:

5.1 Injunction
5.2 appointment of receiver
5.3 commissions
5.4 Arrest or attachment before judgment,
5.5 Transfer of cases
5.6 Caveat
5.7 Inherent powers of Courts
5.8 Judgment : Meaning and essentials

5.1 Injunction
An injunction is a remedy granted by the court that prohibits the commission of a wrong
threatened or the continuance of a wrongful course of action already begun.
If a party fails to comply with an injunction granted by a court, then the party could face
criminal or civil penalties or contempt of court.
Halsbury defines “An injunction is a judicial process whereby a party in an order to
refrain from doing or to do a particular act or thing”.
Meaning-
An injunction is a judicial order that prohibits a person from commencing or continuing
an action that threatens or infringes on the legal rights of another, or forcing a person to
perform a certain conduct, such as making compensation to an injured party.

Section 94 and Section 95 of CPC provide that there are rules to be framed whereunder
a court can direct injunctive reliefs in a particular case for which rules are prescribed
under Order 39.
Order 39(1) and (2) primarily deals with ex parte interim relief.

Requisites of an Application for Injunction

The applicant can furnish the application for an injunction if:
• The petitioner has a strong prima-facie case, which has the potential to succeed.
• The balance of the convenience or that of inconvenience is in favour of the
petitioner,

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• Non-granting of a temporary or permanent injunction would force the petitioner

to suffer irreparable damage.

The Specific Relief Act, 1963 is to protect and enforce primary rights of parties.
Following types of Injunctions are granted by the Court.
1. Temporary and Permanent Injunctions (Sections 36 & 37)
2. Perpetual Injunctions (Section 38)
3. Mandatory Injunctions (section 39)
4. Damages in lieu of or in addition to Injunction (Section 40)
5. Injunction to perform a negative covenant (section 42)

An injunction is an order of competent court which-

1. Which forbids commission of a threatened wrong, or

2. Forbids the commission of a wrong already began, or
3. Commands the restoration of status quo

Clauses 1 and 2 deal with preventive relief, whereas clause 3 refer to mandatory
injunction, which seeks to rectify the defendants’ wrongful conduct. The Preventive
Injunction will be granted on sole discretion of the court, which will be based and
guided by sound and reasonable judicial principals.
Temporary Injunctions or Interim Injunctions are those which remain in force until
specified time or till date of next hearing of the case, or until further orders of the court.
Such injunctions can be granted at any stage of the suit and are governed by Order 39 of
the Code of Civil Procedure, 1908 and not by Specific Relief Act, 1963.
Permanent Injunctions on the other hand, are contained in a decree passed by the
court after fully hearing the case. Such an injunction perpetually prohibits the
defendants from asserting a right or committing an act which would contrary to the
rights of plaintiff. It is based on end suit. It remains in force for all time to come.
Perpetual Injunctions may be granted, at the discretion of the court, to prevent the
breach of an obligation existing in the plaintiff’s favor, whether expressly or by
implication.
Whenever the defendant invades or even threatens to invade the plaintiff’s right to
property or the enjoyment thereof, the court may grant a Perpetual Injunction to the
plaintiff in the following four cases;
1. Where the defendant is a trustee of the property for the plaintiff.

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2. Where there is no standard for ascertaining the actual damage caused, or likely to be
caused, to the plaintiff, by invasion of his rights.
3. Where the invasion of the plaintiff’s right is such that compensation in money would
not afford adequate relief.
4. Where injunction is necessary to prevent multiplicity of judicial proceedings. If the
payment of damages will not adequately compensate the plaintiff, the court will grant
an injunction, unless there is special reason against it.
The court may refuse injunction and award damage in the following cases, if the
injury is (i) small and (ii) capable of being estimated in money and being adequately
compensated by a sum of money and grant of injunction would be oppressive.
An injunction may also be refused on the ground of the plaintiff’s acquiescence and
delay. Similarly, injunctions should not be granted where they inflict more injury on the
person sought to be injected than advantage on the applicant as decided in the case of
Tituram V. Cohen.
Perpetual Injunction when refused (section 41) -
In following cases perpetual injunction cannot be granted;
1. To restrain any person from prosecuting a judicial proceeding pending at the
institution of the suit in which the injunction is sought, unless such restraint is necessary
to prevent multiplicity of judicial cases.
2. To restraint any person from insulting or prosecuting any proceeding in a court not
subordinate to that from which injunction is sought.
3. To restraint any person from applying any legislative body.
4. To restraint any person from instituting or persecuting any proceeding in a criminal
matter.
5. To prevent breach of a contract, the performance of which would not specifically
enforced.
6. To prevent, on the ground of nuisance, an act of which it is not reasonably clear that
it will be a nuisance.
7. To prevent a continuing breach in which the plaintiff acquiesced.
8. When equally efficacious relief can certainly be obtained by any other usual mode of
proceeding, except in case of breach of trust.
9. When conduct of plaintiff or his agent is such to disentitle him to the assistance of the
court.
10. When the plaintiff has not personal interest in the matter.
The provisions of Section 41 is not exhaustive a refusal of injunction will depend on the
discretion of the court.

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Mandatory Injunctions (section 39) at times it so happens that, in order to prevent the
breach of an obligation, it is necessary to compel the performance of certain acts which
the court is capable of enforcing. In such case the court may in its discretion , grant an
injunction (i) to prevent such breach , and also (ii) to compel the performance of the
requisite acts.
This relief is applicable to the breach of any obligation, whether arising out of a
contract or tort. It may be perpetual or temporary, though in rare cases that of temporary
injunction of this nature will be issued.
An injunction is, in its nature, prohibitory. The defendant is first called up to restore the
place to the position in which it was before the act was done, and then he is restrained ,
when he has so restored it, from doing anything in respect of it which would be breach
of obligation on his part.
The object in every case is to compel the defendant to restore things to their former
condition. This type of injunction will be granted to prevent more injury and damages to
the plaintiff.

Damages in lieu of, or in addition to, injunction ( section 40)

When a plaintiff sues for Perpetual Injunction or a Mandatory Injunction, he may also
claim damages, either in addition to , or in substitution for , the injunction, and the
court, if it thinks fit , award such damages.
An injunction or damage are not alternate remedies but can be granted at the discretion
of the court.
The damages cannot be granted unless the plaintiff has claimed damages in the plaint or
in proceedings he will be allowed to amend the plaint by incorporating clause for
damages.
Injunction to perform a negative covenant (section 42)
some time in a given contract, there may be affirmative agreement to do certain act,
coupled with a Negative Covenant, express or implied, not to do a certain other act.
Now the fact that the court is unable to compel specific performance of the affirmative
part does not mean that it cannot grant an injunction in respect of the negative part.
It is necessary in this case that the plaintiff has performed its part mentioned in the
contract.
Preliminary Injunction
A preliminary injunction, which is also known as an ad-interim injunction, is assigned
to a plaintiff prior to a trial. preliminary injunction preserves the subject matter in its
existing condition to prevent any dissolution of the plaintiff’s rights, and thereby render
him/her the possibility of immediate relief.

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Preventive Injunctions
A preventive injunction is an adjudication that forces an individual to abstain from
doing an action that is preventive, prohibitive or negative. The injunction intends to
prevent a threatened injury, preserve the status quo, and reserve the continued
commission of an ongoing wrong.
Mandatory Injunction
Considered as the most rigorous of all injunctions, a mandatory injunction directs the
defendant to perform an act. For example, if a court orders the removal of a building or
structure due to misplaced construction, then it fits the description of a mandatory
injunction.
Temporary Restraining Order
A temporary restraining order is just what its name suggests, as the same is valid until
the period of restraining order draws to a closure. The court grants it to preserve the
status quo of the subject of the controversy until the hearing of an application for a
temporary injunction. Through it, it also seeks to prevent any instance of unnecessary
and irreparable injury.
Permanent Injunction
At the time of final judgement issues the permanent injunction for granting a final relief
to the applicant. These injunctions remain constant if the conditions that produced them
are permanent.
Contempt of Court
The provisions of an injunction comply with the respective parties, failing which the
defendant is punishable for Contempt of Court after performing the necessary trial or
hearing. Such a scenario would force the defaulter to remit the prescribed penal charge
and/or face imprisonment. The quantum of punishment would be decided by
considering the type of default.
Prohibitory Injunction
A prohibitory injunction when granted by a court, prohibits the defendant from doing a
wrongful act that would be an infringement of the plaintiff’s legal rights. For example,
prohibitory injunctions restrain a breach of contract or to protect the disclosure of
confidential information.
Mandatory Injunction
A mandatory injunction forbids a defendant from continuing a wrong act that has already
occurred at the time when the injunction is issued. The purpose of a mandatory injunction
is to restore a wrongful state of things to the rightful order. For example, a mandatory
injunction makes the defendant deliver possession of a property to its rightful owner.

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When issuing a mandatory injunction, the Courts would take into consideration, whether
the plaintiff could be adequately compensated or whether the grant of an injunction was
necessary to do justice.
Interlocutory or Interim Injunction
An interlocutory injunction is a type of temporary injunction, which is operational during
the pendency of the case before the court. Hence, an interlocutory injunction can compel
or prevent a party from doing certain acts, pending the final determination of the case.
The primary purpose of using an interlocutory injunction is to preserve matters in the
status quo.
The following points are considered by the Courts while refusing or granting an interim
injunction whether the:
• petitioner has made out a prima facie case;
• balance of convenience is in the petitioner’s favour;
• petitioner would suffer irreparable injury.

5.2 appointment of receiver

he Receiver is considered to be an officer of the court who helps the court to protect and
preserve the subject matter of suit till the time the court decides the matter.
Receiver will be responsible for the management of the subject matter. The subject matter
is generally a movable or immovable property.
The Receiver is liable to take care of the property just as a prudent man will take care of
his own personal property. He should follow the directions of the court or else his
property can be attached by the court to recover the amount which is due to him.
Under order 40 of CPC, The Receiver is an independent and impartial person who is
appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit.
The property or fund entrusted to the receiver is considered to be custodia legis i.e. in the
custody of the law.
Purpose of the appointment of a receiver
When a party in possession of the disputed property exhausts the property or causes
irreparable damages to it, the whole object of the suit gets defeated because the subject
matter ceases to exist or its value gets affected. Therefore, when the court is of the opinion
that the property in dispute must not go to either of the parties, pendente lite, the court
appoints a receiver who is entrusted with the protection and preservation of such property.
It is a form of interim protection which the court provides to the parties who makes the
application till the time the court adjudicates the matter.

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Appointment a receiver
As per section 51(d) CPC - the court before which the proceedings are pending can
appoint a receiver if it appears just and convenient to the court to appoint such receiver.
It is within the discretionary power of the court to appoint the receiver.
A receiver should not be appointed unless the plaintiff prima facie proves that he has very
excellent chance of succeeding in the suit.
Powers of the receiver
Under order 40 rule 1(d) powers of the receiver are provided as following:
1. Collection of rents and profits arising out of the property.
2. Application and disposal of such rents and profits.
3. Execution of documents as the owner himself.
4. To institute and defend the suit.
5. Such powers as the court may deem fit.

The court can direct the receiver under Order 40, Rule 1(b) and (c), C.P.C to remove any
person from the possession or custody of the property and take possession of the same
and to manage the same.
Duties of the receiver
Under order 40 rule (3), duties of a receiver are provided as follows:
1. Furnish security to account for what he will receive from the property as
income.
2. Submit accounts (half yearly) for such period or form as directed by the court.
The account basically includes the income received and expenses incurred for
the protection and preservation of the property.
3. Pay the amount due to the court.
4. Take responsibility for any reduction in the value of the property because of
the receiver’s willful negligence.
5. Discharge the duties personally and should not delegate or assign any of the
rights entrusted to him by the court.

Remuneration
Receivers are entitled to remuneration as fixed by the court for the services rendered by
them. Also, a receiver has to be provided for the loss or expenses incurred by him for
maintaining the property.

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Under order 40 rule (2), the court can fix the remuneration to be paid to the receiver for
the services provided by him. The court can pass a general or specific order regarding the
same.

5.3 commissions

Commission is instruction or role given by the Court to a person to act on behalf of the
Court and to do everything that the Court requires to deliver full and complete justice.
Such person who carries out the commission is known as a Court commissioner.
Section 75 to Section 78 of the Civil Procedure Code 1908 deals with the powers of the
court to issue Commission. Detailed provisions have been given in order 26 of the Civil
Procedure Code.
Courts power to issue commission is discretionary, it can be exhausted by the court
either on application by a party to the suit or on its own motion. It cannot be claimed as
of right
Generally, there is a panel of commissioners which is formed by the High Court in
which advocates are selected who are competent to carry out the commission issued by
the Court.
Section 75, provides that “the Court” can issue commission provided the limitations and
restrictions applicable. Therefore, the Court who has to decide the suit can appoint the
commissioner.
Purpose of issue of commission (Section 75 of CPC)

According to Section 75 of the Civil Procedure Code, the Court may issue a
commission for any of the following purposes -

(a) to examine any person;

(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation;
(f) to conduct sale of property which is subject to speedy and natural decay and
which is in the custody of the Court pending the determination of the suit;
(g) to perform any ministerial act.

Order 26 Rule 1-8

The general rule of evidence is to bring the evidence before the Court and must be
recorded in open Court. But in extraordinary circumstances, the appearance of witness is
dispensed and the witness is allowed to depose evidence without appearing in Court.
Appearance is exempted if:

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1. A witness is bedridden or is unable to attend the Court due to sickness or

infirmity, in such circumstances the Court can exempt the appearance of
witness and allow the witness to depose evidence to a commissioner appointed
for the same. Such a witness will have to submit a certificate signed by a
registered medical practitioner as evidence of sickness or infirmity. (Order
XXVI Rule 1, C.P.C.)
1. A witness apprehends danger to his life and informs the Court about such
danger and if the Court thinks that recording evidence of the witness is
necessary, the Court may issue commission to record evidence of such
witness. Where a party accused of fraud seeks himself to be examined with
commission, the Court must not issue commission and avoid person of such
demeanor to abuse the procedure.
2. The witness is a pardanashin lady whose attendance is exempted under Section
132 of the code.
3. The witness is a Civil or Military Officer of the Government, cannot attend
without detriment to the Public Service. (Order XXVI Rule 4)
4. If the Court thinks that it is in the interest of justice or expeditious disposal of
the case or for any other reason, the Court can issue a commission
notwithstanding any of the rules provided in the order. (order 26 rule 4A)
5. A person who cannot be ordered to attend the Court in person under Order 16
rule 19 can be examined by the Court by issuing a commission. (order 26 rule
4 proviso)
6. A commission can be issued for examination of a person detained in prison.
(order 16A rule 7)
The Court will issue an order of commission for examination of a witness on following
grounds if such person: (order 26 rule 4)
• Resides beyond the jurisdiction of the Court. [order 26 rule 3(a)]
• About to leave from the jurisdiction of the Court. [order 26 rule 3(b)]
• A government servant and cannot attend without affecting the public service
[order 26 rule 4(c)].
• Resides outside India and the Court decides that his evidence is necessary.
• The commission will be issued to any other Court within whose local limits
such person is residing and if the person resides within the local limits of the
Court issuing it, a commissioner can be appointed to carry out such
commission.

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To make local investigations: Order 26 Rule 9-10

The Court can appoint commission for local investigation if the Court is of the opinion
that a local investigation is necessary:
1. For proper clarity of any matter in dispute, or
2. In ascertaining the market value of any property, or
3. To know the amount of mens rea or annual net profits.

To adjust accounts: Order 26 Rule 11-12

In a suit, if the Court thinks that it is necessary to verify the accounts involved in the suit,
the Court may issue a commission to make the examination of such accounts and may
appoint a commissioner. (rule 11) The Court takes special care while making such an
appointment. The Court appoints only such a person who is competent to examine such
records. The reports submitted by the commissioner is considered evidence by the Court.
(rule 12)
To make partition: Order 26 Rule 13-14
The Court can issue commission for partition of a suit property. Suppose, the Court has
passed a preliminary decree for partition of the suit property, in such a situation, the Court
can appoint a commissioner to carry out the decree. (rule 13) The commissioner has to
divide the property in shares and distribute it among the parties according to the suit
decree. Commissioner has to submit a report after such partition is completed. (rule 14)
To hold investigation: Order 26 Rule 10-A
When the Court has to conduct a scientific investigation, the Court can appoint a
commissioner who will then be responsible for such investigation. For example, to
identify the substance used as a raw material in the subject matter, the Court may issue
commission to hold scientific investigation. (rule 10-A)
After conducting such investigation the commissioner has to submit the report within the
time prescribed by the Court.
To sell the property: Order 26 Rule 10-C
Suppose the subject matter of a suit is a movable property which cannot be preserved by
the commissioner and if it is not sold, its value cannot be recovered. Therefore, the Court
appoints a commissioner who is given the responsibility to sell the property and submit
a report along with the proceeds received from the sale of such property.
To do ministerial work: Order 26 Rule 10-B
Ministerial work means the administrative work which the Court has to do, but are not of
judicial nature like accounting, calculation, etc. Such work takes a lot of valuable time of
the Court which can be used in other important judicial functions.

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Powers of the commissioner: Order 26 Rule 16-18

Under order 26 rule 16, powers of a commissioner are as follows:
1. Commissioner has the authority to examine the parties and the witnesses and
any other person who the commissioner thinks can give evidence in the matter
referred to him.
2. Commissioner can direct the parties to produce any documents which is
required to be examined.
3. Commissioner also has the power to enter and search any land or building with
the permission of the Court.
4. If the party fails to appear before the commissioner after the order of the Court,
the commissioner can proceed ex parte.

5.4 Arrest or attachment before judgment

So long as judgment and decree are not executed, they are meaningless. Many times,
the defendant try to defeat the execution of judgment and decree of the court. Before
judgment, they make such a plan such as consumption of property, transferring it
elsewhere or running away.

When the defendant becomes successful in doing this, the decree of court becomes
meaningless. Therefore, to defeat such plan of the defendant, provision has been made
under order 38 of Civil Procedure Code 1908 for arrest and attachment before
judgment.
1. Arrest before judgment:

1.Under rules 1 to 4 of order 38 of the code, provision has been made for arrest before
judgment.

a. Demand for security- when at any stage of the case, if it appears from the affidavit
of the court or otherwise that the defendant with the intention of:
i. delaying the trial of the suit;
ii. avoiding the order of the court;
iii. creating obstacles in the execution of the decree being passed against him:

▪ has run away

▪ about to run away
▪ has left the jurisdiction of the court; or
▪ about to leave the jurisdiction of the court; or
▪ remove the property from the jurisdiction of the court; or

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▪ has consumed the property or

▪ about to leave India so that delay or obstacle may be caused in the execution
of the decree.
Then the court will issue warrant of arrest with the intention that he should be brought
before the court and he should explain as to why he should not give security to the
court for his appearance.

If the defendant presents himself in the court and assures the court that he is willing to
give security or deposits the amount of claim of the plaintiff in the court, he will not
be arrested and the warrant of arrest will be cancelled. (order 38, Rule 1).
b. Procedure when be becomes unsuccessful in giving security- if the defendant
remains unsuccessful in giving the desired security then under Rule 4, order 38,
the defendant will be put to civil prison till:
i. The case is decide finally; or
ii. If the decree has been passed against the defendant, the decree is not
satisfied.

The period of detention in civil prison will not exceed six weeks if the value of suit does
not exceed Rs. 50/- and six months, in other cases.
Attachment before judgment
The second method of defeating the obstacles to be created by the defendant in
execution of decree is passing order by the court for attachment of the property before
judgment. Provision has been made in this regard under rules 5 to 13 or order 38 of the
code.

a. Demand for Security: under Rule 5, order 38 of the code, if the court comes to the
conclusion at any stage of the suit either from the affidavit or otherwise, that the
defendant with the intention of creating obstruction in the execution of decree
passed against him:

i. intends to consume his property; or

ii. about to remove that property from the jurisdiction of the court;
then the court will direct the defendant that he should explain why security
should not be taken from him he should surrender that property or its value or
any portion of it at the disposal of the court or to give security for that (Sub rule
2 of Rule 5).

It is to be mentioned that until the court gives direction or passes orders

otherwise, the plaintiff can make demand for attachment of the property (Sub-
rule 2, Rule 5)

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Further, the court can pass order for conditional attachment of any property
(Sub-rule 3 of Rule 5).

b. Procedure in case the defendant remains unsuccessful in giving security:

when the defendant remains unsuccessful in submission of proper security or
could not show any cause for it, then court under Rule 6, Order 38, will attach
the property or any portion of it which can satisfy the claim of the plaintiff (Sub-
rule 1, Rule 6).

But during this period, if cause is shown by the defendant or security is given,
then the court will withdraw such order (Sub-rule 2 of Rule 6).

Thus under rules 5 and 6 of Order 38 of the code, provision has been made for
attachment of property before judgment.

5.5 Transfer of cases

TRANSFER OF SUIT UNDER CPC:
Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals
from one court to another court. Section 22 read with Section 23 enables the defendant
to apply for transfer of a suit while Section 24 empowers High Court and District Court
and Section 25 empowers Supreme Court to transfer any suit or appeal either upon
application made by the party or Suo motu.
Transfer of Suit:
Section 22: Power to transfer suits which may be instituted in more than one court.
Section 22 allows Defendant to make an application for transfer of a suit.
Section 22 provides that the defendant may apply to the court for transfer of suit to
another court in case a suit may be instituted in any one of two or more courts.
Before transfer is ordered under Section 22, following conditions must be satisfied:
1) Notice is given to the other party.
2) The application must be made at earliest possible opportunity either at before or
settlement of issues.
Hearing of Objections:- After Notice is served to the other party, the court must decide
that application of transfer after hearing of objections of the opposite party.
Section 23 specifies the appropriate court for this purpose.
Section 23- To what court application lies:
1.Where the several Courts having jurisdiction are subordinate to the same appellate
Court, an application under section 22 shall be made to the Appellate Court.

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2.Where such Courts are subordinate to different Appellate Courts but to the same High
Court, the application shall be made tot he said High Court.
3.Where such courts are subordinate to different High Courts, the application shall be
made the High Court within the local limits of whose jurisdiction the Court in which the
suit is brought is situate.

Governing factor as to rule to transfer of an application under Sections 22 & 23. 1.

Balance of convenience is a factor to be look into. 2. Prior notice to the parties i.e.
served notice to the parties and it is based on principle of natural justice

Section 24- General power of transfer and withdrawal:

Section 24 contemplates general power of High Court and District Court for transfer
and withdrawal of civil suits.
1.on the application of any of the parties and after notice to the parties and after hearing
such of them as desired to be heard, or of its own motion without such notice, the High
Court or the district Court may at any stage-7(a) transfer any suit, appeal or other
proceeding pending before it for trial or disposal to any Court subordinate to it and
competent to try or dispose of the same, or (b) withdraw any suit, appeal or other
proceeding pending in any Court subordinate to it, and
a. try or dispose of the same; or
b. transfer the same for trial or disposal to any Court subordinate to it and competent to
try or dispose of the same;
c. Retransfer the same for trial or disposal to the Court from which it was withdrawn
d. Where any suit or proceeding has been transferred or withdrawn under sub-section
(1), the Court which, may subject to any special directions in the case of nay order of
transfer, either retry it or proceed from the point at which it was transferred or
withdrawn.
Section 25- Power of Supreme Court to transfer suits, etc :

The Supreme Court on the application of a party supported by an affidavit, after notice,
and after hearing such of them as desire to be heard may at any stage of the suit, transfer
any suit, appeal or other proceedings from one Civil Court or High Court of one state to
another Civil Court or High Court of another state if it is expedient for the ends of
justice.

1.On the application of a party, and after notice to the parties, and after hearing such of
them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an
order under this section is expedient for the ends of justice, direct that any suit, appeal

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or other proceeding be transferred from a High Court or other Civil Court in one State
to a High Court or other Civil Court in any other State.
2.Every application under this section shall be made by a motion which shall be
supported by an affidavit.
3.The Court to which such suit, appeal or other proceeding is transferred shall, subject
to any special directions in the order of transfer, either retry it or proceed from the stage
at which it was transferred to it.
4.In dismissing any application under this section, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the applicant to pay by
way of compensation to any person who has opposed the application such sum, not
exceeding two thousand rupees, as it considers appropriate in the circumstances of the
case.
5.The law applicable to any suit or other proceeding transferred under this section shall
be the law which the Court in which the suit, appeal or other proceeding was originally
instituted ought to have applied to such suit, appeal or proceeding.
An order to transfer is not appealable; it is open to revision.
5.6 Caveat
Caveat is a request made to the court that no order in a suit or proceeding instituted or
likely to be instituted before it may be passed without hearing the person filing the
caveat.
Caveat is not defined in the Civil Procedure Code, 1908. Though there is no exact
definition for caveat in the Code, section 148A of CPC talks about it. It was added in
1976.
The person who files a caveat is known as caveator.
Through caveat, the caveator claims his right to appear before the court on the hearing
of an application made or likely to be made in a suit instituted or about to be instituted.
The person by whom such an application has been made or expected to be made is
called caveatee.
A caveat remains in force for 90 days.
In simple terms, a caveat implies ‘to give notice before taking any action‘.
Object of Section 148A CPC
I. To safeguard the interest of the caveator.
II. To avoid the multiplicity of proceedings.
Form of Caveat
Caveat is lodged in the form of a petition. A caveat under Section 148A shall be signed
by the caveator or his advocate.
Who May Lodge a Caveat?

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Any person who claims a right to hearing on an application filed or expected to be filed
is competent to lodge a caveat.
To become entitled to lodge a caveat, it is not necessary that the person is a party to the
suit.
When to lodge a Caveat
According to Section 148A, when people apprehend that some case against them is filed
or is about to be filed in any court of law in any manner, they have a right to lodge a
caveat. The Caveat may be lodged in the form of a petition under the following
circumstances:
1. During an ongoing suit or litigation and in that the application is already been
made or is expected to be made;
2. The suit is about to be instituted and in that suit, an application is expected to
be made.
A caveat or a notice given to the court that certain actions may not be taken without
informing the caveator should contain the following information:
1. Name of the caveator;
2. Address of the caveator where the notice would be sent;
3. The name of the court where such caveat is filed;
4. The number of the suit and the number of the appeal if applicable;
5. Brief details about suit or appeal likely to be filed;
6. Name of the probable plaintiffs or appellants and the respondents.
Notice
If subsequent to the filing of a caveat, any application is made in any suit or legal
proceeding, the court is required to give notice about such an application to the caveator.

5.7 Inherent powers of Courts

The Civil Procedure Code does not define the term “inherent power“. They are the
powers granted to the court in addition to those expressly granted by the code to ensure
that justice is served and that the court’s powers are not abused. Inherent powers assist
the court in unforeseen circumstances, as it is hard to anticipate all possible scenarios
that may arise in the litigation.
Section 148 to 153B of the Civil Procedure Code deal with the general powers of the
court-
• Section 148 and 149 provide for grant and enlargement of time.
• Section 151 preserves the inherent power of the court.

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• Section152, 153 and 153A deal with the amendment in judgements, decrees,
orders and other proceedings.
• Section 153B declares a place of trial to be an open court.

According to section 148 of the Civil Procedure Code, when a period is specified or
given by the court for the performance of an act, that period might be extended by the
court even though the original period has elapsed.
Section 149 of the Civil Procedure Code authorises the court to allow a party to make
up for a deficiency in court fees due on a plaint, memorandum of appeal or other
documents even after the term of limitation for bringing such suit, appeal, or other
document has expired.
Section 151 of the Civil Procedure Code preserves the court’s inherent powers to secure
the end of justice and prevent the abuse of the process of the court. Under this section,
the court can:
• recall its own orders,
• correct mistakes,
• can set aside ex-parte order passed against the party,
• can issue a temporary injunction in cases not covered in the provisions
of Order 39 of the Civil Procedure Code,
• can restore the suit and rehear it on merits,
• review its orders, etc.
Section 152 of the Civil Procedure Code provides that clerical or arithmetic errors in
judgments, decrees, or orders resulting from any unintentional slip or omission may be
corrected by the court at any time, either suo motu or on the application of any of the
parties.
Section 153 CPC
Section 153 of the Civil Procedure Code confers a general power on the court to amend
defects or errors in the suit proceedings and make necessary amendments.
Section 153A CPC
The Amendment Act of 1976 added section 153A to the Civil Procedure Code, which
states that if the appellate court may dismiss an appeal summarily under Order 41 Rule
11, the court of the first instance may use the power of amendment under section 152 of
the Civil Procedure Code.

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5.8 Judgment : Meaning and essentials

Judgment is defined in section 2(9) of the C.P.C. which says judgment is the statement
given by the Judge on the grounds of a decree or order. Judgment refers to what the
judge writes regarding all the issues in the matter and the decision on each of the issues.
The word ‘judgement’ is derived after combining two words namely, judge and
statement. It can also be termed as an act of judging. It is the conclusion or the result of
judging.
Section 33 of the Code of Civil Procedure describes the term ‘Judgement and Decree’
together.
Difference between Judgement and Decree
Judgement Decree
A judgement is based upon facts. A decree is based upon judgement.
Judgment is made prior to decree. Decree always follows a judgement.
A judgement contains facts of the case, the A decree contains the outcome of the suit
issues involved, the evidence brought by the and conclusively determines the rights of
parties, finding on issues(based on evidence and the parties with regard to the issues in
arguments). dispute in the suit.
The definition of the word decree given
The definition of the word judgement given in
in section 2(2) of Code of Civil
section 2(9) of the Code of Civil Procedure,
Procedure, 1908 includes the word
1908 does not include the word ‘formal’.
‘formal’.
Section 2(2) of the Code of Civil
Section 2(9) of the Code of Civil Procedure,
Procedure, 1908 describes the term
1908 describes the term judgement.
decree.
Judgement has no types. A decree is divided into three types.
Judgement may result in a preliminary decree or
The decree may be a preliminary or final
a final decree or an order by itself, the
or partly preliminary and partly final.
judgement is always final.
After passing the decree, the suit stands
Judgement leads to the final disposal of the suit
disposed of since the rights of the parties
after the decree is drawn up.
are finally determined by the court.

Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the
parties, finding on issues (based on evidence and arguments).
Contents of the judgement
According to Rule 4 Order XX of Code of Civil Procedure, 1908:
• Judgements of a Court of Small Causes are satisfactory if they contain the
points for determination and the decision thereon.

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• Judgments of other Courts shall contain:

1. Summary of the pleadings which is a concise statement of the case;
2. Issues which are the points for determination;
3. Findings on each issue and the decision thereon;
4. Ratio decidendi (reasons for such a decision); and
5. The remedy, which is the relief granted.
Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or amended if:
• There are arithmetical or clerical errors. (clerical errors refer to the errors made by
clerks and arithmetical errors refer to errors made in numbers such as addition,
subtraction, multiplication and division).
• There are errors due to accidental slips or omissions (these errors take place when
some essential element is left unnoticed) (Section 152) on review (Section 114).
Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree
always follows judgement and is based upon a judgement. It is divided into five types
unlike judgement which is final in itself. A decree may be final or preliminary. It is a
formal declaration or adjudication and is conclusive in nature. A decree is of three kinds
namely, preliminary decree, final decree and partly preliminary & partly final. A decree
may be delivered with an order. The decree contains the outcome of the suit and
conclusively determines the rights of the parties with regard to the issues in dispute in the
suit. After passing the decree, the suit stands disposed of since the rights of the parties
are finally determined by the court.
Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any question
within Section 144 of Code of Civil Procedure,1908 but shall not include:
• any such sentence(adjudication) from which it appears that an appeal lies as
an appeal from an order, or
• any such order of discharge(dismissal) of default.
Kinds of Decrees
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are divided into
three categories:
Preliminary Decree
In general sense, the word preliminary means preparation for the main matter, initial,
introductory, preparatory. In a legal sense, a preliminary decree is a decree where further
proceedings have to take place before the suit can be completely disposed off. It decides

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the rights of the parties in respect to all or any of the matters of discussion but it does not
completely dispose of the suit.
Final Decree
In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In legal
sense, a final decree is a decree which completely disposes of the suit and settles all the
questions in discussion between the parties and nothing is left further for deciding
thereafter. It is only said to be final when such adjudication completely disposes of the
suit.

Unit- VI: Execution.

6.1 The concept.
6.2 General principles (Ss.52.54).
6.3 Power for execution of decrees.
6.4 Procedure for execution (Ss.55.54)
6.5 Enforcement, arrest and detection (Ss.55.59 ).
6.6 Attachment (Ss.60-64).
6.7 Sale (Ss.65-97).
6.8 Delivery of property.
6.9 Stay of execution.

6.1 The concept.

1. Meaning: -
The term execution has not been defined in the code. Execution signifies the enforcement
or giving effect to a judgment or order of a court of justice.
Decree under CPC
A decree is defined under Section 2(2) of CPC, it has the following essential elements:
1. There should be an adjudication;
2. The adjudication should determine the rights of parties regarding the matter in
controversy; and
3. The adjudication should be in a suit and the adjudication should be formal and
conclusive so far as that the court is concerned.

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The last stage of litigation, that is the implementation of litigation is known as an

execution. Once a decree or judgment is passed by the court, it is the obligation of the
person against whom the judgment is passed (judgment-debtor), to give effect to the
decree so as to enable the decree-holder to enjoy the benefits of the judgment.
Execution is the enforcement of decree & order by the process of the court, to unable the
decree holder to realise the fruits of the decree. It is the last stage of civil litigation. The
execution is complete when the judgement-creditor or decree-holder gets money or other
thing awarded to him by the judgement, decree or order.
Provisions Under CPC: -
Section 36 to 74 &Order 21 (Total 106 Rules) deals with the provisions of execution of
Decree.
COURTS WHICH MAY EXECUTE DECREE (Sec.37 to 45)
Section 37: - Court which passed a decree, the following are: -
1. The court actually passed a Decree at first instance.
2. The court in case of appellate Decree at first instance.
3. The court of first instance who passed the decree is ceased to exist, so the court
which have some jurisdiction to stay the suit at the execution.
4. The court of first instance who passed the decree have ceased to have
jurisdiction to execute decree, the court which at the time of execution would
have had jurisdiction to stay the suit.
Section 38: - Court by which Decree may be executed
A decree may be executed by the court which passed it as well as by the court to which
the decree is send for execution.
6.2 General principles (Ss.52.54)
6.3 Power for execution of decrees
6.4 Procedure for execution (Ss.55.54)

PROCEDURE OF EXECUTION
1. A copy of decree
2. A certificate of non-satisfaction or part-satisfaction of the decree.
3. A copy of the order for the execution of decree.
Are given to transferee court to execute decree.
The jurisdiction of the transferor court ends as soon as the execution is transferred to
other court. Once the execution is transferred to the transferee then that court have full
jurisdiction over the subject matter.
Section 51 to 54 of the Code talks about the procedure in execution.

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Section 51
The section states the jurisdiction and power of the court in executing a decree. An
application for execution of the decree can either be oral or written. The court may
execute decree as per the mode of implementation prayed by the decree-holder or as the
court deems fit.
Mode of executing decree
• By delivery of any property (movable or immovable) specifically decreed.
• By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to
attach the property.
• By arrest and detention. However, this mode should not be exercised without
giving a reasonable opportunity to the judgment-debtor, in the form of a show-
cause notice as to why he should not be imprisoned.
• Execution by appointing a receiver
• If any other mode apart from the ones mentioned in clause(a) to (c) needs to
be used in the execution of a decree then clause(e) comes into play.
Section 52
This section deals with the cases where the decree is passed against the legal
representative of the judgment-debtor (deceased). So long as the property of the deceased
remains in the hands of a legal representative, a decree can be executed against the
property, if it is for the payment of money out of the property of the deceased and if the
decree has been passed against the party as the legal representative of the deceased
person.
In a situation where the property which is in the possession of the judgement-debtor came
in the hands of the legal representative and it has not been duly applied by him, the court
will enforce the execution of the decree against him as if the decree was to the extent
passed against him personally.
Section 53
The Section states that when a property is liable for payment of a debt of a deceased
ancestor and it is in the hands of a son and descendant, then the property will be deemed
to be of the deceased which has as his legal representative come into the hands of the son
or other descendants.
Section 54
When a decree has been passed for partition or for the separate possession of a share of
an undivided estate for the payment of revenue to the government, this section comes into
play. The partition of the estate or share needs to be made by the collector, but if the
collector denies making the partition of the revenue paying property, then the civil court

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can do so. To attract the provisions of this section, the plaintiff asking for the division of
government revenue is not deemed as an essential condition.
Mode of executing a decree
• By delivery of any property (movable or immovable) specifically decreed.
• By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power to attach
the property.
• By arrest and detention. However, this mode should not be exercised without giving
a reasonable opportunity to the judgment-debtor, in the form of a show-cause notice
as to why he should not be imprisoned.
• Execution by appointing a receiver.
• If any other mode apart from the ones mentioned in clause(a) to (c) needs to be used
in the execution of a decree then clause(e) comes into play.

6.5 Enforcement, arrest and detection (Ss.55.59)

Provisions dealing with Arrest and Detention
The provision under CPC dealing with arrest and detention for executing a decree are
substantive from Sec. 51 to Sec. 59, read with procedural provisions Order 21 Rule 30 to
Order 21 Rule 40.
Procedure for arrest
A judgement debtor may be arrested in execution of any decree on any day at any hour
with certain conditions to it provided in Section 55 of CPC. The conditions are:
• Must be bought before the court as soon as possible, and his detention may be
in the civil prison of the district.
• No dwelling house to be entered after the sunset or before sunrise.
• No outer door of the dwelling house must be broken to enter the house unless
the house is in possession of judgement debtor and he refuses to open it.
• If the room is in actual possession of women who is barred by customs to be
in public, the officer must give reasonable time to her to withdraw and may
enter the room for the purpose of making arrest.
• If the arrest is made where the decree in execution is a decree of money and
the judgement debtor pays the amount of decree and cost of arrest to the officer
arresting him, the officer must release him at once.
The court before issuing a warrant of arrest must ensure that a notice has been issued to
the judgement debtor providing him with an opportunity to explain the reasons for not
complying with the court orders. If the court is satisfied by any means, that the judgement

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debtor may abscond the jurisdiction of the court and any other reasons which would cause
in delay of execution of decree, then the court may order for arrest of judgement debtor.
Period of detention under Section 58 of CPC
The period of detention in civil prison for execution may be:
• If the amount to be recovered is five thousand or more, the period shall not
exceed than the three months.
• If the amount to be recovered is exceeding the two thousand but below five
thousand, then the period shall not exceed six weeks.
• If the amount to be recovered is less than two thousand, then no order of arrest
to be made.

6.6 Attachment (Ss.60-64).

Attachment of property is one of the modes of execution of a decree in a civil suit.
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.
Section 60 CPC,1908 describes the property which can and cannot be attached while
execution. Several types of property are liable for attachment and sale in execution of a
decree like lands, houses or other buildings, goods, etc.
Section 61 grants partial exemption to agricultural produce- The state Government may
by general or special order published in the Official Gazette declare any piece of
agricultural land for the purpose until next harvest season for the due cultivation of land
and support of the Judgement-debtor and his family, exempt that property from being
attached or sold in execution of the decree.
Section 62 talks about seizure of property in case of dwelling house. No person executing
under the code will enter the premises of a dwelling house after sunset and before sunrise.
No door of such dwelling house can be broken without the knowledge of the Judgement-
debtor. Where a woman resides in such house and she is not allowed to appear in public.
The person executing has to give her a notice to be at liberty to withdraw and also
reasonable time to do the same. Once she withdraws he has the power to enter the
premises.
Section 63 says that where the property attached in execution of decree is going on in
several courts then the final decision of the court of higher grade prevails and where the
court are at same grades then the court where the case of attachment came first will hold
a higher value.

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

6.7 Sale (Ss.65-97).

Attachment & sale of property
One of the modes of execution of a decree of a civil court is either by attachment and
sale, or by sale without attachment, of any property.
The provisions relating to sale of property in an execution proceeding are Sections 65 to
73, and the Rules 64 to 94 of the Order 21, of the Civil Procedure Code, 1908 (CPC).
The Chapter VIII of the Civil Rules of Practice Kerala state the procedural matters
relating to execution. The provisions cover both movable and immovable properties.
Court can attach and sell
The Section 64 of the CPC empowers any court executing a decree to order attachment
of a property and put the sufficient portion of it for sale, and pay the sale proceeds to the
Decree Holder (DH) to satisfy the decree.
The sale shall be confined to the sufficient portion of the property. The court shall, in its
discretion, examine and determine whether the whole of the attached property or a
portion of it alone needs to be put on sale to satisfy the decree. The court must sell only
such portion which is necessary to satisfy the decree. It is a matter of obligation, but not
of discretion. Excessive execution is unwarranted and unlawful.
The sale should be done by public auction by an officer of the court or someone else
appointed by the court.
Court should issue proclamation of sale
The DH can apply for sale of the property along with an affidavit stating the particulars
of the property and other required details and an encumbrance certificate for 12 years (
Order 21 Rule 66).

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Along with the application the DH should produce a Drat Sale Proclamation (DSP) to
be settled and approved by the court. The DSP should carry the following details:-
• Time and place of sale
• Property to be sold
• Revenue arising upon the property
• Encumbrances to the property
• Amounts to be recovered
• Other relevant material particulars the purchaser must know
The court should cause to issue notices to the Judgment Debtor (JD) and DH. The
service of notice on the JD is an indispensable basic step, the failure of which will make
the sale a nullity.
On hearing the DH and other parties and admitting the evidence the parties produce, the
court should settle and approve the Sale Proclamation. The judge should then sign the
proclamation of sale and make order for sale fixing the time, date and place.
Within a week, the DH should pay the expenses of the sale and the fee for the
proclamation and warrant to the court, along with the number of copies of proclamation
as required. In case of failure the court may dismiss the petition.
The proclamation of sale shall be made by beat of drum or other customary practices. A
copy of the proclamation must be affixed on a conspicuous part of the property, the
Courthouse, the District Collector’s office and the office of the Gram Panchayat. If the
court so directs, the proclamation should also be published in the Official Gazette or in
a local news paper. Single proclamation is enough for a property consisting of divided
plots unless it is impractical.
The purpose of issuing proclamation is to protect the interest of both the intending
purchasers (by making all material facts available) and the JD (by exploring a better
sale price). A sale conducted without publication of such a proclamation is not a mere
irregularity but a nullity.
Sale to be concluded within 15/7 days
The sale shall not be conducted before 15 days in case of immoveable property and
before 7 days in case of moveable properties, from the date of proclamation of notice,
without the written consent of the JD. But the sale will be stopped then and there, if the
JD pays the decree amount and other costs to the court or tendered to the officer
conducting the sale.
The court has the discretion to adjourn the sale to a later date. If the adjournment is for
more than 30 days a fresh proclamation is necessary if the JD does not consent to waive
it.

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The court sales in Kerala State shall commence at 1.45 pm and will come to a close at
3.15 pm. If any sale is not concluded it shall be adjourned to 1.45 pm on the next court
day.
Sale of moveable property
The sale of all moveable properties shall be held within the jurisdiction of the court. In
case of agricultural produce the sale shall be generally held on or near the land on
which the crop is standing or lying after harvest. In case of a negotiable instrument or a
share in a company the court can order sale through a broker.
The payment shall be paid at the time of the sale. On payment of price, the sale
becomes absolute. In case of default by the purchaser the property will be resold. The
defaulting purchaser will be liable for the deficiency in price if any on resale and all the
expenses of such resale (Order 21 rule 71).
Sale of moveable property cannot be set aside
Sale of a moveable property cannot be set aside on the ground of irregularity in
publishing or conducting the sale. If there is substantial injury the person causing
irregularity can be sued for compensation by the other person.
Sale of immoveable property
The execution court, at its discretion, can postpone sale for a reasonable period to
enable JD to raise the decretal amount by private alienation such as sale mortgage, lease
etc.
Confirmation of sale
A sale of property will become absolute only when no application is made for setting
aside the sale or the court confirms it. The court will confirm the sale only when any
claim to or objection to the attachment of the property in any pending case is disposed
of.
When it is confirmed the title of the auction purchaser related back to the date of sale
(Rule 92).
Certificate of sale
After the sale has become absolute, the court shall grant a certificate in favour of the
purchaser.
The certificate shall bear the date on which the sale has become absolute. It should also
specify the property and the name of the purchaser. The copy of the sale certificate shall
be transmitted to the registering officer within the limits of whose jurisdiction the
property situate.
6.8 Delivery of property.
When a decree is passed by a Court in the favour of a decree-holder, he needs to apply
to the court for execution of the decree. Execution of a decree means the
implementation of a judgement given by the Court. The decree is executed against the

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judgement-holder who has to satisfy the decree when the court orders for such
execution. There are many ways through which a decree can be executed. One such
way is by the delivery of property.
Kinds of property and its mode of delivery
There are two kinds of property:
• Movable; and
• Immovable Property.
There are different modes of delivery depending on the kinds of property.
Movable property
Movable property refers to assets that can be moved from one place to another like
vehicles, jewellery etc.
Order XXI Rule 79 reads that where a moveable property is to be sold, of which actual
seizure has been made, it shall be delivered to the purchaser.
Order XXI Rule 31 provides that where the decree is for any specific moveable
property or for any share in such property, it may be executed by the seizure of that
property or share and by delivery to the party to whom it has been adjudged, or to such
person who is appointed for receiving delivery on his behalf.
Immovable property
Immovable property refers to real estate property that cannot be displaced like house,
factory etc. Order XXI Rule 35 states that where the decree is for delivery of any
immoveable property, possession of such property shall be delivered to the party to whom
it has been adjudged, or to the person who has been appointed by that party to receive the
delivery on his behalf, and, if necessary, by removing any person bound by the decree
who refuses to vacate the land.

6.9 Stay of execution.

A stay of execution is a court order that prevents a judgement or other court order from
being carried out for a period.
It is like a restraining order. A stay can be granted either automatically or
conventionally when the parties in a civil or criminal case agree that no execution will
take place for a certain period. If a party files an appeal, the original courts judgement
may be stayed until the appeal is resolved.
A defendant while fighting a case for recovery of money or recovery of land or rightful
ownership of the land, can use one of the defenses such as stay of execution under the
Civil Procedure Code 1908 (hereinafter as CPC) that describe the procedure to be
followed. There are different provisions of stay on execution under CPC, which are
applicable in different circumstances. These provisions are stated below-

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Legal Provisions
Order-21 Rule-26
“When court may stay execution.- (1) The court to which a decree has been sent for
execution shall, upon sufficient cause being shown, stay the execution of such decree
for a reasonable time, to enable the judgment debtor to apply to the court by which the
decree was passed, or to any court having appellate jurisdiction in respect of the decree
or the execution thereof, for an Order to stay execution, or for any other order relating
to the decree or execution which might have been made by such court of first instance
or Appellate Court if execution had been issued thereby, or if application for execution
had been made thereto,
(2) Where the property or person of the judgment debtor has been seized under an
execution, the court which issued the execution may order the restitution of such
property or the discharge of such person pending the result of the application.
(3) Power to require security from, or Impose conditions upon, judgment debtor: Before
making an order to stay execution or for the restitution of property or the discharge of
the judgment debtor, the court shall require such security from, or impose such
conditions upon, the judgment debtor as it thinks fit”
This rule states that if sufficient cause is shown and the judgment-debtor provides
security or complies with any conditions imposed on him, the executing court may stay
the execution of a decree for a reasonable time to allow the judgment-debtor to apply to
the court that issued the decree or to the appellate court for an order to stay execution.
The power of a transferee court to stay the execution of a decree is not the same as the
power of the court that issued the decree. A transferee court cannot grant a stay based
on inherent power.
This Rule seems to apply to four different courts. The court to which the order has been
submitted for execution, the court that passed the injunction, the appellate court that has
authority over the decree, and the appellate court that has jurisdiction over the execution
of the stay order are the first four courts.
The principle of fair time specified in the clause only extends to the first court, not the
other courts. The clause only states that if adequate cause is shown, the said first court
shall grant a stay of execution for a limited period, and the object of this reasonable
period is to allow a judgment debtor (JD) to seek an injunction from one of the other
three courts.
Order-21 Rule-29
“Stay of execution pending suit between decree holder and judgment debtor – Where a
suit is pending in any court against the holder of a decree of such court or of a decree
which is being executed by such court, on the part of the person against whom the
decree was passed, the court may, on such terms as to security or otherwise, as it thinks
fit, stay execution of the decree until the pending suit has been decided:

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Provided that if the decree is one for payment of money, the court shall, if it grants stay
without requiring security, record its reasons for so doing.”
The suit must be initiated between a judgement debtor and a decree holder. Such a
lawsuit must be ongoing before either the decretal court or the court that is carrying out
the order. The court can grant a stay in such a case. It will be a waste of time to contend
that any suit would suffice. The amount of time for which a stay can be granted is
evident.
According to the clause, the stay will be granted before the pending suit is determined,
suggesting that the outcome of the suit will influence the execution proceedings.
Consequently, the prayer for stay and the pendency of the suit must be linked.
Otherwise, the provision’s condition would not be met. The wording of the clause also
indicates that if a decree is submitted to another court for execution when a case is
pending before the decretal court, the decretal court cannot allow a stay. The use of the
terms “any court” in one location and “such court” in two locations is a direct example
of this proposition. Clearly, this clause restricts the length of time that can be spent in
the country.
Case Law: In the case of Shri Krishna Singh v. Mathura Ahir it was held that a suit at
the instance of the judgment-debtor against the decree-holder.
Order-41 Rule-5(1)
“Stay by Appellate Court – (1) An appeal shall not operate as a stay of proceedings
under a decree or order appealed from except so far as the Appellate Court may order,
nor shall execution of a decree be stayed by reason only of an appeal having been
preferred from the decree; but the Appellate Court may for sufficient cause order stay of
execution of such decree.
Explanation – An order by the Appellate Court for the stay of execution of the decree
shall be effective from the date of the communication of such order to the court to first
instance, but an affidavit sworn by the appellant, based on his personal knowledge,
stating that an order for the stay of execution of the decree has been made by the
Appellate Court shall, pending the receipt from the Appellate Court of the order for the
stay of execution or any order to the country, be acted upon by the court of first
instance.”
The suit must be initiated between a judgement debtor and a decree holder. Such a
lawsuit must be ongoing before either the decretal court or the court that is carrying out
the order. The court can grant a stay in such a case. It will be a waste of time to contend
that any suit would suffice.
The amount of time for which a stay can be granted is evident. According to the clause,
the stay will be granted before the pending suit is determined, suggesting that the
outcome of the suit will influence the execution proceedings. Consequently, the prayer
for stay and the pendency of the suit must be linked. Otherwise, the provision’s
condition would not be met.

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The clause before the decretal court, the decretal court cannot allow a stay. The use of
the terms “any court” in one location and “such court” in two locations is a direct
example of this proposition. Evidently, this clause restricts the length of time that can
be spent in the country.
Order 41 Rule 5(2) CPC
“Stay by court which passed the decree — Where an application is made for stay of
execution of an appealable decree before the expiration of the time allowed for
appealing there from, the court which passed the decree may on sufficient cause being
shown order the execution to be stayed.”
If an application for a stay of execution of an appealable decree is lodged before the
deadline for challenging it, the Court that issued the decree can require the execution to
be stopped if appropriate reason is being shown.
A decretal judge, according to Order 41 Rule-5(2), will grant a stay. The only
stipulation is that the stay claim must be filed before the deadline for filing an appeal.
This situation ends not only when the deadline for filing an appeal passes, but also
when an appeal is favoured. As a result, whether an appeal has been already filed or the
time limit has passed, a decretal court cannot extend a stay in any case. The ability of
those courts to grant a stay is severely restricted.
Order-41 Rule-5(3)
“No order for stay of execution under sub-rule (1) or (2) shall be made until the Court is
satisfied that:
1. substantial loss may result to the party applying for the stay of execution
unless the order is made
2. the application has been made without unreasonable delay; and
3. the applicant has given security for the due performance of any decree or
order.”
Furthermore, ample reason must be shown in order to obtain a stay. What may be a
sufficient reason? For example, Judgement debtor has filed an application for review of
the conviction, the judgment debtor has filed an application to set aside the Ex-parte
decision, or the judgment debtor has been unable to lodge an immediate appeal due to
his weak financial situation, but the decree holder is pushing for immediate execution.
These are only for illustration purposes. It should also be remembered that, under Rule-
5(3), the requisite conditions must be fulfilled before any permission is given.
Section-151 of the Civil Procedure Code, 1908
“Saving of Inherent Powers of Court – Nothing in this Code shall be construed to
impair or otherwise influence the Court’s inherent right to issue orders required for the
administration of justice or to prevent misuse of the Court’s procedure.”

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It empowers the court of law to issue orders in order to achieve justice or deter misuse
of the legal system. As has been developed, this clause has no application where the
CPC includes explicit provisions for executing an act. We can understand that there are
several arrangements that allow us to continue. Consequently, Section-151 will not exist
in the new case.
Conclusion
To say that execution proceedings have become a long-awaited process in which the
parties have not received justice in a timely manner is trite. This delay in the completion
of execution proceedings is in violation of fair trial principles. It is a common
occurrence that execution does not result in the end of litigation, but rather in the
inclusion of several provisions that enable successful execution to be thwarted.
Defendants must be dealt with firm hands, which necessitates a good interpretation of
the rules by litigating attorneys and considerate judges. A stay on execution must be
implemented in different ways in the different litigating circumstances. The courts of
law, along with the lawyers must carefully implement these procedures and make sure
undue advantage is not taken of the said law.

Unit- VII: Suits, Appeals, Review, Reference and Revision

7.1 By or against government (Ss.79-82)
7.2 By aliens and by or against foreign rulers or ambassadors (Ss. 83-87 A)
7.3 Settlement of disputes outside the court (S.89)
7.4 Suits by or against firm
7.5 Interpleader suits
7.6 Suits relating to public charities.
7.7 Appeals, Review, Reference and Revision
7.8 Appeals from original decree, appellate decree, Order

7.1 By or against government (Ss.79-82)

Section 79- This Section defines the concept of suits by or against the government:
Whenever a case is filed against a government or if it is filed by the government, the
plaintiff and the defendant who will be named in the case will be as provided under:
• Whenever the case is instituted by or against the central government, the
Union of India will be represented as the required plaintiff or defendant
respectively.

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• Whenever the suit is filed by or against the state government, the state
government will be required to act as the plaintiff or the defendant.
Section 80- This section deals with the concept of Notice. According to this Section,
there exists no onus for the institution of a suit against the government without issuing a
notice regarding the same, this includes the state of Jammu and Kashmir. With respect to
institution of a suit against a public officer with respect to the act done by him in his
official capacity, there is again a need for issuance of notice regarding the same. Further,
the notice should be served two months prior to the institution of the suit and it should be
made sure that such a notice was delivered or left at the office of:
• Whenever the case is against the central government, and it does not relate to
the railways then, the notice should be delivered to the secretary of the
government.
• Whenever a case has been instituted against the central government and it
relates to the railways then, the notice is to be served to the general manager
of that railways.
• Whenever the case is instituted against any of the state governments then, the
notice is to be served either to the secretary to that government or to the
collector of the district.
Contents of the Notice
Notice under Section 80, is required to contain the following aspects: name, description,
residence of the plaintiff, the cause of action and lastly the relief which the plaintiff
claims.
Effect of Non-Compliance
Non-compliance with the requisites of this Section or any omission in the plaint which is
required would result in the rejection of the plaint under Order 7, Rule 11.

7.2 By aliens and by or against foreign rulers or ambassadors (Ss. 83-87 A)

According to Section 83 of CPC, the alien enemies residing in India, after seeking
permission from the Central Government as well as the alien friends are allowed to sue
as if they were citizens of India.
Section 84 of the code permits the foreign state to institute a suit incompetent court.
Section 85 of the Code states that the government shall appoint specific persons for either
prosecution of the foreign rulers or their defense.
Section 86 further deals with those suits that are instituted against foreign rulers,
ambassadors, and envoys.
Section 87 states the style or patterns of such foreign rulers as parties to suit.

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According to this provision, it is specified that the ruler of a foreign state can both sue
as can be sued, however in the name of their state.
Section 87A that provides definition of a foreign state.

7.3 Settlement of disputes outside the court (S.89)

Arbitration
Section 89 of the CPC, 1908 provides for the settlement of disputes outside the courts.
In cases where the court observes that there is the existence of such elements of a
settlement acceptable and favorable to both parties, then the court refers to such cases
for arbitration, conciliation, Lok Adalat, or mediation.
Section 89(2) provides the procedure followed in different mechanisms of Alternative
Dispute Resolution i.e. arbitration, conciliation, Lok Adalat, or mediation.
7.4 Suits by or against firm
Order XXX deliberates upon the procedural aspects of Suits by or against firms or
persons carrying on business in names other than their own.
The order runs through 10 rules which discuss the various essentials of such litigations,
ranging from service, notice, appearance etc.
7.5 Interpleader suits
Interpleader suits
Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To Interpleader’
implies ‘to litigate with each other to settle a point concerning the third party.
The procedure to institute an Interpleader Suit is given under Order 35 of CPC, 1908.
An interpleader suit is defined as a suit wherein no dispute is between the parties; namely
the plaintiff and the defendant, but the dispute is actually between the defendants
themselves, who inter-plead against each other.
The reason behind filing an interpleader suit is to get the claims of rival defendants
adjudicated.
7.6 Suits relating to public charities.
Suit under Section 92 CPC is of special nature created for the purpose of
protecting the rights of the public in Public Trusts and Charities.
It confers right on a person in case of any alleged breach of any express or constructive
trust created for a public purpose of a charitable or religious nature.
A suit framed under Section 92 of the C.P.C., the only reliefs which the plaintiff can
claim and the Court can grant are those enumerated specially in the different clauses of
the section.

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7.7 Appeals, Review, Reference and Revision

According to the Code of Civil Procedure, 1908, when a party is aggrieved by the
decree passed by the court, he can approach the superior court by way of appeal, against
the decree passed by the trial court.
The first appeal is described under Section 96 of the CPC and it provides that an appeal
shall lie from a decree passed by any Court exercising original jurisdiction to the
authorized appellate courts, except where expressly prohibited.
Sub-section (1) of Section 100 of the CPC states that a second appeal would be
entertained by the High Court only when the High Court is satisfied that the case
'involves a substantial question of law'.
Grounds of an Appeal
An appeal under the Civil Procedure Code can be made under the following grounds:
• A decision has already been made by a judicial or administrative authority.
• A person is aggrieved of such decision, whether or not he is a party to the
proceeding.
• The appeal is entertained by a reviewing body.
Who Can File an Appeal?
Any of the following persons can file an appeal:
• Any party to the original proceeding or his/her legal representatives.
• Any person claiming under such party or a transferee of interests of such party.
• Any person appointed by the court as the legal guardian of a minor.
• Any other aggrieved person after taking leave of the court.
Who Cannot?
• A party which has relinquished its right of appeal as per an agreement which is
clear and unambiguous.
• A party which has availed the benefits under a decree.
• Parties with a consent decree. Consent, in this case, could be a lawful agreement
or compromise, or could even be presumed from the conduct of the parties.
• Parties, whose factum or compromise is in dispute or hasn’t been formulated.
• Parties involved in petty cases.
• No legal representatives are entitled to file an appeal against a deceased person.

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Features of an Appeal
• The rights of appealing are not inherent, and therefore must be created in
express terms by the statue. Thus, these rights differ from the rights of filing
suits, which is inherent in nature.
• It is a substantive right.
• The rights under this provision accrue from the day of the institution of the suit.
• These rights cannot be made void, except through a statue (either expressly or
by implication).
• The discretion of the appellate authority is conclusive.
Appellate Authority – refers to the authority which undertakes and adjudicates
the initial review appeal.
Memorandum of Appeal
Any appeal under these provisions must be supported with a memorandum of appeal,
which is a document comprising of the grounds of appeal. The constituents of a valid
memorandum of appeal include:
• The grounds for filing an appeal.
• Signature of the appellant or his/her pleader.
• The attachment of the certified copy of the original judgement.
• The remittance of the decretal amount or security (in case of a money decree).
The appellant, with respect to this provision, is not entitled to take any grounds or
objection except the ones mentioned in the memorandum. However, the court may
accept such objections on its own accord, provided the opposite party is provided with
adequate opportunities to contest such grounds.
The court has the right to reject or amend any memorandum which it finds to be
inappropriate. The court shall record the reasons for such rejection.
Decretal – “of the nature of a decree.”
Appeals from Original Decrees
• Appeals from original decrees, which is performed by the appellate court, are
preferred in a court which is superior in rank to the Court passing the decree.
• Appeal for such decrees may lie on an original decree passed ex parte.
• No appeals will be placed if the decree is passed with the consent of the parties.
• The appeal from original decrees lies on a question of law.
• No appeal lies in any suit of the nature cognizable by Courts of small causes if
the amount or value of the subject matter of the original suit is confined to a sum
of Rs. 10,000.

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• The appellate court may remand a case to a trial court if the latter has dispensed
of the case without recording any findings.
• The decision of the appellate authority is conclusive.
• If an appeal under this provision is heard by a bench of multiple judges, the
opinion of the majority will be considered.
• In the absence of a majority, the original decree will stay.
• Where the bench digresses on any point of view, the same may be determined
by any number of the remaining judges of the court, and the decision shall be
taken by a majority of the judges hearing the appeal, which includes the judges
who have heard it originally.
• The judgement may confirm, modify or reverse the decree.
Remand of a Case
Remand, in this context, refers to the reverting of a case. The appellate court may revert
the case to the trial court if the latter has disposed the suit on a preliminary point
without recording any findings. The appellate court may also demand the trial court to
admit the suit in its original number in the register of civil suits. The evidence (if any)
recorded in the original suit could be used as evidence if the case is remanded to the
trial court. An order of demand disqualifies the verdict of the lower court and is
appealable.
On the other hand, the appellate court is not entitled to remand a case if the lower court
has misconceived the evidence or, the lower court has provided a verdict on insufficient
material.
Furnishing of Additional Evidence
The general course of law doesn’t allow any parties to an appeal to produce additional
evidence, be it oral or documentary. However, the appellate court may permit the same
under the following circumstances:
• If the lower court declined the acceptance of any evidence despite having the
grounds to accept the same.
• The party adducing the evidence substantiates that the evidence was not within
his/her knowledge despite exercising due diligence earlier.
• If the party substantiates that proper evidence could not be produced by
him/her in spite of exercising due diligence.
• The appellate court finds it essential to examine any document or witnesses to
facilitate the adjudication of the case
Decree of the Appellate Court
Decree refers to the legal implications of a particular act. The decree of the appellate
court shall include:

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• The date of the judgement.

• The number of the appeal.
• The names and description of the parties.
• The grant of relief and any other adjudication made.
• The total cost incurred.
• The property from which the cost was incurred.
• The property from which the cost will be payable.
• The proportion of payment of costs.
• Signature and date of the judges.
Second Appeal
Section 100 of the Civil Procedure Code provides that an appeal can be moved to the
High Court from every decree passed in appeal by any subordinate Court if the High
Court finds that the case includes a substantial question of law.
Taking this into context, the memorandum of appeal must clearly state the substantial
question of law in this appeal. If the High Court deems it to be satisfactory, it may go
on to formulate the pertinent questions, based on which the appeal would be heard.
Also, the High Court may hear the appeal on any other substantial question of law not
formulated by it if it feels that the case involves such question.
It may be noted that a second appeal is only meant for questions of law and hence
cannot be made on the grounds of an erroneous finding of fact. On the same page, in the
absence of any errors or defects in the procedure, the finding of the first appellate court
will be considered as final, if the particular Court produces evidence to support its
findings.
In another important note, second appeals cannot be made for a decree if the subject
matter of the original suit is intended to recover a sum of Rs. 25,000.
Difference Between Second Appeal and Revision
Despite the similarities in outlook, the nature of a second appeal and revision vary, the
likes of which has been elaborated below:

S. No Second Appeal Revision

1 Involves a substantial question of law Involves a jurisdictional error

2 Filed to oppose a decree passed by the Filed in cases where there was not any
appellate court appeal in the first place

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3 The High Court is entitled to rectify a The High Court is not entitled to amend
legal error of the lower court the decision of a lower court even in the
case of a legal mistake

4 The High Court may decide an issue of An issue of fact cannot be decided by
fact the jurisdictional body

5 The High Court is not vested with any The High Court may decline
discretionary powers, and hence it interference on the satisfaction that
cannot refuse to grant relief on equitable substantial justice has been done
grounds

Appeals from Orders

Appeals from orders could be placed with respect to the following pronouncements on
the grounds of any defect or irregularity in law:
• Any orders under Section 35A of the Code allowing special costs, and orders
under section 91 or 92 refusing leave to institute a suit of the kind referred to in
Section 91 or Section 92.
• Any orders under Section 95, which involves the compensation for obtaining
attachment or injunction on insufficient grounds.
• Orders under the code which deals with the imposition of fine, direction of
detention or arrest of any person except in execution of a decree.
• Appealable orders as prescribed under Order 43, R.I. However, appeals cannot
be filed based on any order enlisted in clause (a) and from any order passed in
appeal under Section 100.
Appeals by Indigent Persons
Any person who is not capacitated to remit the fee required to file the memorandum
may file an appeal as an indignant person. If the court declines the application of a
person to appeal in this manner, it may necessitate the applicant to remit the required
court fee within a prescribed time-frame.
Appeals to the Supreme Court
Appeals to India’s highest jurisdictional body can be made if the former considers the
case to be appropriate for an appeal to the Supreme Court or when a special leave is
granted by the Supreme Court itself. Appeals can be filed to the Supreme court by filing
a petition with the court which enacted the decree, upon which the petition would be
heard and disposed of within a period of sixty days. Petitions submitted for this purpose
must state the grounds of appeal. Also, it must include a plea for the issuance of a

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certificate stating that the case involves a substantial question of law which needs to be
decided by the Supreme Court.
The opposite party will be provided with an opportunity for raising any objections
against the issue of such certificate. The petition would be disposed of if the applicant is
denied the certificate. If accepted, the appellant would be required to deposit the
required security and costs within a prescribed time-frame.
After the applicant performs the above obligations, the court from whose decision an
appeal is preferred shall declare the appeal as admitted, an intimation of which will be
addressed to the respondent. Further to this, the jurisdictional body forwards a precise
copy of the record under seal and furnishes the copies of such papers in the suit.
Circumstances for Stay of Execution of Decree
Stay of execution of decree can be made under the following circumstances:
• The party requesting for the stay is likely to incur substantial losses in the
absence of such discretion.
• The application for stay is made without any unreasonable delay.
• The applicant has provided security for the due performance of the particular
order or decree. If the applicant has failed in this commitment due to which the
application gets rejected, the security can still be deposited within a time-frame
of 30 days, upon which the application would be accepted.

Generally, under appeal, the whole dispute is re-heard by the appellate court. But in
cases where there are technical/procedurals errors, the aggrieved party need not take the
pain of approaching the higher court for going through the hassle of contesting another
suit which is in the form of appeal. For the same purpose, the Code of Civil
procedure has introduced the concepts called Reference, Review and Revision under
Sections 113, 114 & 115 respectively.
Reference
Reference is dealt under Section 113 of the Code. It mentions that a subordinate court
can refer a doubt to the High court where the former thinks that there should not be
misinterpretation with regard to any law. This is called a reference.
No party to the suit has the right to apply for reference.
It is only the subordinate court which has the power of reference suo-moto (on its own
motion) when there is doubt regarding the validity of any legal provision.
If there is reasonable doubt regarding the question of law, subordinate courts can
exercise the right of reference under the following situations when:
• A question as to the validity of any act, rule, regulation, ordinance, etc., arises in
the court where the suit is being entertained

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• The court is of the opinion that such act or any other provision of law is invalid
(“ultra vires” means “beyond the powers”) or inoperative
• Such question on the provision of law is never before made invalid either by the
High court or Supreme court
• It is pertinent for determining the validity of such provision of law for disposal
of the suit
Order 46 of the Code lays down the conditions which should be satisfied by the
subordinate court in order to make a reference to the High court.
Object
The object behind the provisions of Reference is to empower the subordinate court to
obtain the opinion of the High Court in non-appealable cases when there is a question of
law so that any commission of error could be avoided which couldn’t be remedied later
on.
Review
A review is mentioned under Section 114 of the Code. An aggrieved party can file an
application for review in the same court where the decree has been passed. This
provision enables the court to review its own judgement in case of any error or mistake
made with regard to the decision rendered, to rectify the same. While Section 114 is a
substantive right, the procedure for the same has been provided for under Order 47 of
the Code. The application for Review can be filed under the circumstances where:
• a decree or order is appealable as provided by the law, but no such appeal has
been preferred
• there is no provision for appeal from certain decree or order
• a decision is passed by the court of Small Causes
The grounds for filing review application are:
• discovery of new facts when there is no knowledge about the same or could not
produce the same due to negligence, prior to the time when the decree was
passed
• the error apparent on the face of the record which means errors which do not
give rise to re-arguments of the whole case and those which are not related to
erroneous decisions
• any other sufficient grounds as provided by the Code, wherein the
misconception of the court can be considered as sufficient ground
The application for review shall be filed within 30 days from the date of order/decree.
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

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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.

Revision
The High court has the power to call for a re-examination of any case which has been
decided by the subordinate court without appropriate jurisdiction. This power of the High
court is called Revisional Jurisdiction of only High court which is mentioned under
Section 115 of the Code. 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:
1. Exercise of jurisdiction which is not vested to that court by law., or
2. It has failed to exercise the vested jurisdiction, or
3. Illegal exercise of the vested power or with immaterial irregularity.
Reference and Review

S.No. Reference Review

The case is referred to the High Court by

For review, the application is made
1. the subordinate court and not by the party
by the aggrieved party.
for reference.

A review is done by the court which

The matter of reference can be decided by
2. has passed the decree or made the
the High Courts only.
order.

Reference can be made only when the

A review can be done only after the
3. suit, appeal or execution proceeding is
decree or order is passed.
pending.

Grounds of reference is different than a

4. Grounds for review are different.
review.

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Reference and Revision

S.No. Reference Revision

For reference, a case is transferred For revision, the application is made to

1. by a subordinate court to the High the High Court either by the aggrieved
Court. party of by High Court suo moto.

The grounds for reference is when

there is reasonable doubt on the The ground for revision is jurisdictional
2.
question of law by the subordinate errors by the subordinate court.
court.

Review and Revision

S.No. Revision Review

Revisional jurisdiction can be A review is done by the court who has

1.
exercised only by the High Court. passed the order or decree itself.

Revisional power is exercised Review of an order or decree can be

2. when no appeal lies to the High done even if an appeal lies to the High
Court. Court.

The High Court can exercise the

For review, an application is required
3. revisional power even suo moto(by
to be filed by the aggrieved party.
its own motion).

The grounds for revision is mainly

4. The grounds for revision are different
on jurisdiction errors.

The order passed on exercising

The order granting the review is
5. revisional jurisdiction is not
appealable.
appealable.

Reference and Appeal

S.NO Reference Appeal

The power of reference is vested The right to appeal is the right which has
1.
in the court. been conferred to the parties.

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An appeal can be made to any court

Reference can always be made to
2. which superior and it does not need to be
the High Court.
only High Court.

The grounds for reference are a

The grounds of appeal are much wider
3. substantial question of law and it
than grounds for reference.
is narrower.

Reference can be made only when An appeal can be filed only after the
4. the suit, order or execution is decree is passed or appealable order has
pending. been made by the subordinate court.

Review and Appeal

S.No. Review Appeal

A review can be made only to the same An appeal can be filed to any superior
1.
court. court.

The review is a procedure of An appeal is the procedure of

2. reconsideration of the same matter by the consideration of the matter by the
same judge of the same court. different judge of the superior court.

Grounds of review are narrower than the Grounds for appeal are wider than the
3.
grounds for appeal. grounds of review.

In an appeal, the provision for the

There is no provision for the second
4. second appeal lies when sufficient
review.
grounds are present.

Revision and Appeal

S.No. Revision Appeal

An appeal can be made to any court

An application for revision lies only to
1. superior to the court passing the decree or
the High Court.
order.

A revisional application can be made to

the High Court for any decision made An appeal lies only from the decree or order
2.
by the subordinate court when no passed by the subordinate court.
appeal lies for such decision.

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Revisional power of the High Court is The right to appeal has been provided by
3.
totally discretionary. the statue as a substantive right.

The grounds for revision is the An appeal lies on the question of fact or
4.
jurisdictional error. question of law or, both.

For revision, filing an application is not For an appeal a memorandum of appeal to

5. necessary. The high court may exercise be filed by the aggrieved party before the
the revisional power as suo moto. superior court is a must.

7.8 Appeals from original decree, appellate decree, Order

Appeal from original decree:
Section 96 of CPC deals with appeals from original decree. Usually, first appeal lies
from every original decree passed by any court. It is marked here that appeal may lie
from an ex-parte decree, but appeal shall not lie from a decree passed with consent of
both parties.
Appeal from order:
Sections 104 to 108 and Order 43 of the CPC talks about appeals against orders.
According to these provisions, certain order are appealable other whereas, appeal could
not be lie against some orders. Order can be defined as “the formal expression of any
decision of a civil court which is not a decree.” An appeal from order can be filed
within ninety days before the concerned High Court and within thirty days from the
date of order, before another court.
Section 106 provides that appeals against orders in cases in which they are appealable
shall be brought before the court to where an appeal would lie from the original suit.
Howbeit, Section 105 states that every whether appealable or not, except an order of
remand can be attacked in an appeal from the final decree on the ground that there is an
error, defect or irregularity in the order and that such error, defect or irregularity affects
the decision of the case.
Appeal from appellate decree:
Section 100 of the CPC provides for second appeal to High Court against decree passed
by appellate court. The procedural right of the second decree is provided to either of the
parties to a civil suit who has been adversely affected by the decree passed by a civil
court. It is notable here that general rule is that second appeal lies to the High Court
only if the court is satisfied that it involves a substantial question of law.
Order
An order is a command by the judge to one of the parties to the suit, educating the
plaintiff party to take (or not take) explicit actions.

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Section 2(14) of the 1908 Code of Civil Procedure characterizes order as “the proper
articulation of any decision of a Civil Court which isn’t a decree.”
An appeal of an order can be filed within ninety days before the High Court and within
thirty days from the date of the order, before another court.
SECTION 106 states that appeals against orders in cases in which they are appealable
shall be brought before the court to where an appeal would lie from the original suit.

Unit- VIII: The Law of Limitation

8.1 Condonation of delay
8.2 Bar of Limitation
8.3 Expiry of prescribed period when court is closed
8.4 Extension of prescribed period in certain cases
8.5 Legal disability and Continuous running of time
8.6 Computation of period of limitation
8.7 Acquisition of ownership by possession

The ''Law of Limitation'' prescribes the time-limit for different suits within, which an
aggrieved person can approach the court for redress or justice. The suit, if filed after the
exploration of time-limit, is struck by the law of limitation.
The main purpose of this Act is to prevent litigation from being dragged for a long time
and quick disposal of cases which leads to effective litigation.
8.1 Condonation of delay
The phrase “condonation” denotes that the offence (ignorance of the Act’s period law)
is impliedly discarded, and the case will proceed as if no offence has occurred.
The condonation of delay is addressed under Section 5 of the Limitation Act.
It provides that the court can accept any appeal or application when filed after the
limitation period if the appellant or applicant shows that he had a sufficient cause for
not filing the appeal or application within the prescribed period.

Instances where condonation can be granted

The following are the instances where condonation can be granted:
• Subsequent changes in the law.
• Illness of the party: It includes the nature and severity of disease and facts
encompassing the failure to act.

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• Imprisonment of the party: However, mere detainment is not sufficient to cause.

Varies on a case-to-case basis.
• Party is a pardanashin woman.
• Party belongs to a minority group with insufficient funds.
• Poverty or paupers.
• Party is a government servant: A government servant may not have an incentive in
fulfilling the task. Therefore, a certain latitude is permissible in such a case.
• Delay due to the pendency of the writ petition.
• Party is illiterate.
• Other adequate grounds: Mistake of Court, Mistake of Counsel, Delay in getting
copies, mislead by rulings, etc.

8.2 Bar of Limitation

The law of limitation finds its root in the maxims “Interest Reipublicae Ut Sit Finis
Litium” which means that in the interest of the state as a whole there should be a limit
to litigation and “vigilantibus non dormientibus Jura subveniunt” which means the law
will assist only those who are vigilant with their rights and not those who sleep upon it.
The law of limitation specifies the statutory time frame within which a person may
initiate a legal proceeding or a legal action can be brought. If a suit is filed after the
expiry of the time prescribed it will be barred by the Limitation.
Section 3: Bar of Limitation
Section 3 of the Act puts a time limitation on the filing of a suit, appeal or application.
Various subsection enumerates the condition in which section 3 operates, which are as
follows;
• Section 3(1) is negative in approach. Whereas it lays down the exception to
section 3, it also debars the filing of a suit, appeal or application beyond the
prescribed period. Subsection 1, in short, covers every kind of suit except which
are expressly declared under section 4 to section 24 of the act. The last part of
this subsection “although limitation has not been set up as a defense’ is of most
important. It states that even when a party does not raise the defense of
limitation, the suit will automatically attract the provision of this act.
• Section 3(2)(a) of the act provides for the time when various suits are instituted.
Different scenarios are given in which the institution of a suit is discussed. Such
as, in an ordinary case, on the date when the complainant presents the
application before the proper officer.
• Section 3(2)(b) talks about the claim by way of set-off or counterclaim. The date
of the institution of the suit the date on which such claim comes before the court

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8.3 Expiry of prescribed period when court is closed

Section 4 of Limitation Act "Expiry of prescribed period when court is closed"
When the prescribed period for any suit, appeal or application expires on a day when the
court is closed, the suit, appeal or application may be instituted, preferred or made on the
day when the court reopens.

Explanation - A court shall be deemed to be closed on any day within the meaning of this
section if during any part of its normal working hours it remains closed on that day.

8.4 Extension of prescribed period in certain cases

Section 5 of Limitation Act "Extension of prescribed period in certain cases"
Any appeal or any application, other than an application under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5 of 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.

Explanation - The fact that the appellant or the applicant was misled by any order, practice
or judgment of the High Court in ascertaining or computing the prescribed period may be
sufficient cause within the meaning of this section.

8.5 Legal disability and Continuous running of time

a. Legal disability [Section 6]: Law of limitation relating to legally disabled
persons is explained below:
i. If a person entitled to institute a suit or make an application is a minor,
insane or idiot at the time of cause of action, the period of limitation to file
a suit or to make an application will start when such disability ceases.
ii. Where one legal disability is followed by another legal disability, the
disabilities are successive and the limitation period will run when all the
legal disabilities are ceased.
iii. If a legal disability continues up to a death, then period of limitation will
run for legal representative (who is not legally disabled) from the date of
death.
iv. Where a person under disability dies after the disability ceases but within
the period allowed to him under this section, his legal representative may
institute the suit or make the application within the same period after the
death, as would otherwise have been available to that person had h e not
died.

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Continuous Running of Time – No subsequent disability or inability to

institute a suit or make an application can stop it
Time for limitation runs when the cause of action accrues. However, certain
exceptions were provided in Sections 4 to 8. Section 4 provides that if the
period prescribed expires on a day when the Court is closed, the application etc,
may be made on the day, the Court reopens. As per Section 5 condonation of
delay is allowed on sufficient grounds. Sections 6, 7& 8 allow extension of time
in certain cases of disability.
Continuous running of time [Section 9]: Once a period of limitation starts no
subsequent disability or inability can stop it. The applicability Section 9 is
limited to suits and applications only and does not apply to appeals unless the
case fell within any of the exceptions provided in the Act itself. Section 9
applies when the cause of action or right to move the Court continues to exist on
the date of making the application. Thus, the time runs, when the cau se of action
accrues. Thus, once time has begun to run, no subsequent disability or inability
stops it.
Example: Manoj died on 3rd August, 2016 before a right to institute a suit
accrued, leaving behind a minor son of the age of 15 years. Decide the time
from where the period of limitation shall be calculated under Limitation Act,
1963.
Section 9 of the Limitation Act, 1963 states that, once time begins to run no
subsequent disability or inability can stop to institute a suit or make an
application. For a given case, the period of limitation will run from the date of
loan (i.e. cause of action). There is no disability at that time and time has begun
to run from the date of loan itself. Subsequent disability i.e. the son was minor
have no use. The limitation period in this case will end after 3 years from the
date of loan (i.e. cause of action).

8.6 Computation of period of limitation

Computation of Period of Limitation
The Limitation Act, 1963 makes specific provisions for exclusion of certain
time in some cases for computation of the prescribed period. These provisions
are follows:
a. In case of any suit, appeal or application, the period of limitation is to be
computed exclusive of the day on which the time begins to run. [Section
12(1)]
b. The day on which the judgment complained or was pronounced and the
time requisite for obtaining a copy of the decree, sentence or order
appealed from or sought to be revised or reviewed shall be
excluded. [Section 12(2)]

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c. Time required for obtaining a copy of the judgment on which the decree
or order is founded shall also be excluded. [Section 12(3)]
d. Time required for obtaining a copy of the award shall be
excluded. [Section 12(4)]
e. Time during which the applicant has been prosecuting in good faith, his
application for “leave to sue or appeal as a pauper is applied for”, shall
be excluded. [Section 13]
f. Civil proceeding relating to the matter in issue had been initiated in a
Court which is unable to entertain it, by lack of jurisdiction or by any
other like cause shall be excluded. [Section 14]
g. Exclusion of time in certain other cases [Sections 15, 16 & 17]:
i. If suit or application for the execution of a decree had been stayed by an
injunction or order then such period of injunction shall be excluded.
ii. Time required obtaining the sanction/consent of the Government shall be
excluded.
iii. The time during which the defendant has been absent from India and
from the territories outside India but administered by the Central
Government, shall be excluded.
iv. Where the suit or application is a based upon the fraud or mistake of the
defendant or respondent or his agent or in other cases as mentioned
in Section 17, the period of limitation shall not begin to run until the
plaintiff or applicant has discovered fraud or mistake subject to certain
exceptions.

8.7 Acquisition of ownership by possession

In India, any person in possession of a property for a period of more than 12 continuous
years may claim unfavourable possession of the property.
Under the doctrine of adverse possession, a person who is not holding the title to the
land but holding the possession of the land owned by someone else for a considerable
period may acquire a valid title to it, provided that the adverse owner is in possession
for a sufficient period as per the Limitations Act.
Elements establishing adverse possession:
1. Continuity in adverse possession: The possession and occupancy of the property
by the claimant/trespasser shall be continuous, uninterrupted and unbroken for the
whole statutory limited length.
2. Hostile possession: It means the claimant/ occupier is occupying the land despite
knowing that he/she doesn’t hold any legal title to occupy or possess the
aforementioned property.

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A person who claims adverse possession ought to show:

• On what date did he come into possession
• What was the character of his possession?
• whether or not the factum of possession was far-famed to the opposite party
• however long his possession has continued and
• His possession was open and undisturbed.
3. Actual possession: the possession should be a possession, as the development of a
house, the erection of a shed or some structure, fencing of a property, the grazing
of cattle on the land, the farming and harvest home of crops on the land for the
complete statutory amount.
4. Exclusive possession: throughout the statutory limitation amount, the applicant
should be within the sole physical possession of the property against the legitimate
right assertion, and also the title of the rightful owner or different claimants. The
building of a house, or the erection of boundary walls area unit are samples of
“exclusive ownership”. It should not be taken possession or of pseudo-
possession.
Acts that do not constitute adverse possession
1. PERMISSIVE POSSESSION: It cannot be reborn into an adverse possession,
notably wherever possession is lawful from the point in time unless alternative
clear actions are committed by the dweller which will have the result of denying
the title of owner. The permissive character of possession is often inferred from
the circumstances of the case, even when there is no clear proof. As shortly
because the complainant shows his intention that the permissive possession would
stop, the permissive soul would stop to enter the property and, if he doesn’t do,
therefore, his continuing presence would be incorrect and would build him at risk
of surrendering possessions with profits.
2. ABSENCE OF RIGHTFUL CLAIM: “In the case of Palaniyandi Malavarayan
v. Dadamalali Vidayan, it was contended before Honorable Andhra Pradesh High
Court about adverse possession by a trust that the right to the trusteeship of a
temple cannot be acquired by adverse possession so long as there is no lawful
trustee who could claim to recover the office from the person who claims to hold
it adversely to him”.
3. ABSENCE OF INTENTION: it’s the intention to assert the exclusive title that
makes possession adverse. Animus possidendi should be established in
conjunction with the style of occupancy by the squatter that once more varies
from sort to sort. it’s a well-known principle within the fiduciary relationship that
the possession of the agent is that the possession of the principle and thus the
prevailing relationship between the parties can not be allowed to be as adverse.

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Adverse possession as a shield:

In Gurudwara Sahib v Gram Panchayat village sirthala, The plaintiff requested a
declaration that he had obtained title to the suit property through adverse possession. In
addition, the plaintiff sought to prevent the defendant from being evicted from the
property.

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