1

JAFFER S.S
M.A, (L.L.B)

The code of civil procedure

and
The limitation act
SHORT QUESTIONS

1. Jurisdiction of Civil Court

Section 9 of the Code of Civil Procedure, 1908, confers power/ jurisdiction on the civil
courts to try suits. The courts are empowered to try the cases of civil nature and the
cognizance of which is not expressly barred.
The court shall (subject to the provisions herein contained) have jurisdiction to try all suits of
a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.
Jurisdiction means the authority by which a court has to decide matters that are brought
before it for adjudication. The limit of this authority is imposed by charter, statute or
commission. If no such limit is imposed or defined that the jurisdiction is said to be unlimited.
Limitation of jurisdiction of civil court is basically four kinds:
1. Jurisdiction over the subject matter- to try certain matters by certain court is limited by
statute (Ex. Small cause court- suit for money due under promissory note or a suit for price
of work done)
2. Place of suing or territorial jurisdiction – A territorial limit of jurisdiction for each court is
fixed by Government.
3. Jurisdiction over persons – All person of whatever nationality are subject to the
jurisdiction of the country except foreign state.
4. Pecuniary jurisdiction depending on pecuniary value of suit –There is no pecuniary
jurisdiction of high court and district court.
Jurisdiction may be further classified:
 Original jurisdiction
 Appellate jurisdiction
Criminal and appellate jurisdiction- Supreme Court, High Courts and District courts have both
original and appellate jurisdiction in various matter.

2. Written Statement
The written statement can be considered as the answer to the plaint. It is filed by the
defendant or his agent who has the power of attorney. The plaint and written statements are
part of civil litigation. In a case where there is more than one defendant, each defendant can
submit a different written statement or one. The written statement filed by one defendant is
not binding for other defendants
Order VIII deals with rules relating to written statement. The term written statement has not
been defined in the Code. However, it means the pleadings of the defendant wherein
defendant deals with the facts alleged in the plaint. In it, he also pleads new facts and set up
counter claim and set-off. All the general rules of pleading mentioned in Order VI apply to
written statement.
In the case of Food Corporation of India v. Yadav Engineer & Contractor (1982) 2 SCC 499 it was
held that the expression ‘written statement’ is a term of specific connotation ordinarily
signifying a reply to the plaint filed by the plaintiff.
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.
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 Provided that where the defendant fails to file the written statement within the said period
of thirty days, he shall be allowed to file the same on such other day, as may be specified by
the Court, for reasons to be recorded in writing, but which shall not be later than ninety
days from the date of service of summons
Essentials of Written Statement: A written statement may be divided in to three parts viz.
Part-I The Heading and Tittle
Part-II The body of the written statement.
Part-III Singnature and verification.
Defences, which a defendant can take: A written statement contains the following pleas, which
the defendant can take as a defence.
(i) Admissions and Denials (ii) Dilatory Pleas or Pleas.
(iii) Objection in point of law (iv) Special Defence
(v) Set-off

3. Caveat
Caveat is a Latin term which means 'let a person beware'. In law, it may be understood
as a notice, that certain actions may not be taken without informing the person who filed the
Caveat. In the Code of Civil Procedure, 1908 the provision of lodging Caveat Petition was
inserted under Section 148-A ‘Right to lodge a caveat’ upon the recommendations of Law
Commission of India's 54th Report by the Civil Procedure Code (Amendment) Act 104 of 1976.
Caveator is a person who files a caveat and caveatee is a person who has instituted a suit or is
likely to do so is. The main purpose of caveat is to make sure that the court does not passes ex-
parte orders and that the interests of the caveator are protected. Caveat aids in reducing the
burden of court and reduces the multiplicity of proceedings and brings an end to the litigation.
Caveat is a notice given to the court not to issue any grant or take any step without notice
being given to the party lodging the caveat, A person who suspects to be sued, may lodge
caveat. For instance. The management after retrenching its employee may lodge the caveat as
a precautionary measure, caveat is resorted to.
Essential ingredients to the section to follow the procedure for filling of Caveat Petition:-
Under Clause 1, a caveat petition can be filed by a person who claims to hold the right of
appearing before the court in either of the following situations:
1. Wherein it is expected to make an application,
2. Wherein already the application has been made,
3. In a proceeding or suit which is already instituted,
4. In a proceeding or suit which is going to be instituted.
Time period:
Caveat is lodged, after the court has laid down the judgment or issued an order. However, in
some exclusive cases, a caveat is filed before head the judgment is pronounced or order is
passed. Caveat will be in effect for 90 days from the date of its filing. After 90 days Fresh
Caveat Petition can be filed.

4. Legal Representative
“Legal representative” as defined in Civil Procedures Code, under Section 2(11), means
a person who in law represents the estate of a deceased person and includes any person who
intermeddles with The estate of the deceased and where the party sues or is prosecuted in a
representative manner by the person to whom the estate is transferred upon the death of the
party so suing or sued.
The definition is inclusive and broad in nature, not limited to legal heirs, but rather defines a
person who may or may not be the heir, who is eligible to inherit the deceased’s estate but
who must represent the deceased’s estate. This includes all heirs and individuals holding the
assets either without ownership, even as executors even administrators of the deceased’s
estate. All such persons are covered by the expression “legal representative.” If there are many
heirs, then those in good faith are also entitled to represent the deceased’s estate, without
fraud or collusion.
In the case of Andhra Bank Ltd vs. R. Srinivasan and others, (1962 AIR 232), The supreme court
held that the legal representative is a “Person representing the estate of the deceased” in law,
that the estate does not mean the entire estate, and that even a legatee who obtains only part
of the estate of the deceased under a will can be said to represent the estate of the deceased
and is, therefore, a legal representative under Section 2 (11) CPC.
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5. Res Subjudice
The word 'Res' means, "a thing or matter" and the word 'sub-judice' means, "under
consideration or pending judicial enquiry. The expression "Res sub-judice" means, "pending
litigation or pending adjudication by a Court". Section 10 of the Code of Civil Procedure 1908,
deals with the doctrine of 'Res Sub-judice' or 'Stay of Suits'. When a suit is pending before a
court of competent jurisdiction, such suit between the same parties under the same title shall
not be tried by any court in India.
Example: 'A' sues 'B' as to title of a land in a Court of competent jurisdiction. During the
pendency of the suit (pending adjudication), if 'A', again sued 'B' on the same subject matter in
another court, such court has no power to try except to order for staying of further
proceedings.
In simple words, when a suit is pending before a competent court, it can not be sued
again in the same or any other court of competent jurisdiction. If sued, the subsequent court is
barred to proceed with trial except to order for staying of all further proceedings
The object of Section 10 is to prevent multiplicity of suits It prevents the courts from
trying simultaneously two paralel suits in respect of the same issue. Section 10 is mandatory
The subsequent court can order the stay of all further proceedings at any stage of the suit.
Essentials :
1. Res Subjudice is applied in a matter which is pending.
2. It bars the trial of a suit in which the matter is pending for decision in the previous suit.
3. There must be presence of two suits one which was formerly instituted and other which
was subsequently instituted.
4. Both parties must be litigating under the same title in both the suits.
Conditions:
For application of Section 10, the following conditions are to be satisfied.
1. Two suits : There must be two suits One instituted earlier and the other later Suit includes a
pending appeal also but not an application for leave appeal
2. Same subject matter: The subject matter of the previous (first) suit and subsequent (second)
suit must be one and the same.
3. Same parties: Parties to previous and subsequent suits must be the same.
4. Pendency before competent court: The previously instituted suit should be pending before
the competent court.
5. Duel Competence: The court, which tried the first suit, should also be competent to try the
second suit.
Section 10 also specifies that the former suit must be pending before a court which is competent to
carry out the trial. If the former suit is pending before an incompetent court, no legal effects can
flow from it.
Illustrations:
 ‘X’ and ‘Y’ decide to enter into a contract for the sale of machine. ‘X’ is the seller and ‘Y’
is the purchaser. Y defaulted in paying the amount of the sale to X. X first filed a suit for
recovery of the entire amount in Bangalore. Subsequent to this, X filed another suit at Bombay
High Court demanding Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s
suit should be stayed since both the suits are on similar issue. However court of Bombay held
that since X’s first suit and the second suit have similar issues similar to the first suit, the
subsequent suit is liable to be stayed.
 ‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent then
filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his
negligence in Odisha; while the case was pending in Patna. In this case, Patna court is
precluded from conducting trial and can petition Odisha Court to direct a stay of proceedings
in Patna Court.
The moment the above conditions are satisfied, a court cannot proceed with the
subsequently instituted suit since the provisions contained in Section 10 are mandatory and
the court cannot exercise its discretion. The order of stay can be made at any stage of the
proceedings.

6. Receiver
The main function of the Courts is to protect the legal rights of the individuals in the
society if the right of an individual has already been infinged, he can get his right restored by
filing a suit in a court of competent jurisdiction. When his right is threatened to be infringed, it
can be prevented through an order of the court viz. injunction, appointment of Receiver etc.
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The expression 'Receiver' has not been defined under the Code of Civil Procedure. 'Receiver is
an officer, appointed by the Court to manage the property under litigation/dispute, till the
final decision is given by the Court." He also acts as a representative of the parties to the
dispute.
Appointment of Receiver: Order 40 of the Code of Civil Procedure provides for the
appointment of a 'Receiver by the Court. Order 40 confers wide jurisdiction on the court to
appoint and remove a receiver. The receiver must be impartial i.e. he is not interested in either
of the parties. He can be appointed only before the suit is filed.
The court appoints a receiver according to legal principles and equity.
Power of Receiver: A receiver is an officer or representative of the Court. The court confers on
him the following powers under Order 40, Rule 1(1)(d).
(i) To institute and defend suits.
(ii) To realize, manage, protect, preserve and improve property.
(iii) To collect, apply and dispose of the rents and profits.
(iv) To execute documents, and
(v) Such other powers as it (Court) thinks fit.
Duties of the Receiver: Order 40, Rule 3 of the code speaks about the duties of the Receiver, as
stated below:
(i) He has to maintain the accounts properly.
(ii) He should not delegate his duties/powers.
(iii) He has a duty to act impartially and should not have any interest in the property under
litigation.
Liabilities of the Receiver: If the receiver fails to discharge his duties properly, the court may
attach his properties to make good to the parties interested. If he is guilty of negligence or
willful default, the court may attach his property to indemnify the loss to that effect. He is also
liable to deliver the properties at his disposal at the order of the court.

7. Mesne profits
The right to possession is a sacred right guaranteed to all law-abiding citizens. When a
person is deprived of his possession he is not only entitled to recover possession but also
damages for wrongful possession by another.
According to Section 2(12) of the Code of Civil Procedure, 1908, 'mesne profits' of property
means those profits which the person in wrongful possession of such property actually
received or might with ordinary diligence have received therefrom, together with interest on
such profits, but shall not include profits due to improvements made by the person in
wrongful possession.
The mesne profits are a compensation, which is penal in nature, It is clear from the above
definition that, mesne profits can be claimed in respect of immovable properties and are
awarded in form of damages.
Object: The object of awarding a decree for mesne profits is to compensate the person who has
been kept out of possession and deprived of enjoyment of his property even though he was
entitled to possession thereof.
Conditions: To claim mesne profits the following conditions are to be satisfied.
1. The defendant should be in wrongful possession of the property.
2. The plaintiff should be entitled to actual possession.
Wrongful possession of the defendant is the very essence of a claim for mesne profits.
There is no occasion for mesne profits if possession is not wrongful. The term wrongful means
having no right to possession as against the person claiming it. They are awarded to the
plaintiff by way of compensation for the period that he was ousted from possession if his suit
is decreed. The measure is not what the plaintiff lost. A person in wrongful possession is not
liable for failure to realize the highest possible rates of rent and premium, if a fair rent has
been realised from the land.
Interest is an integral part of mesne profits. The plaintiff can claim interest as a matter of right.
But the rate of interest is in discretionary. It should not exceed 6% per year.

8. Special provision regarding sale of Immovable property.

Sale of immovable property (Rules 82-94): Conducting of Sale of immovable property
is a great task. The procedure for sale of immovable property creates some confusion.
Order 21 of CPC and Civil Rules of Practice, given provisions procedure for conducting sale of
Immovable property. Rules 82 to 94 deal with the sale of immobavle property.
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What Courts may order sales, Postponement of sale to enable judgment- debtor to raise
amount of decree, Deposit by purchaser and re-sale on default, Time for payment in full of
purchase money, Procedure In default of payment, Notification on re-sale, Bid of co-sharer to
have preference and Application to set aside sale on depositor are defined under Rule 82, 83,
84, 85, 86, 87, 88 and 89 of Order XXI of Code of Civil Procedure 1908.
 Rule 82 Order XXI of Code of Civil Procedure 1908 "What Courts may order sales"
 Rule 83 Order XXI of Code of Civil Procedure 1908 "Postponement of sale to enable
judgment- debtor to raise amount of decree"
 Rule 84 Order XXI of Code of Civil Procedure 1908 "Deposit by purchaser and re-sale on
default"
 Rule 85 Order XXI of Code of Civil Procedure 1908 "Time for payment in full of purchase
money"
 Rule 86 Order XXI of Code of Civil Procedure 1908 "Procedure In default of payment"
 Rule 86 Order XXI of Code of Civil Procedure 1908 "Procedure In default of payment"
 Rule 87 Order XXI of Code of Civil Procedure 1908 "Notification on re-sale"
 Rule 88 Order XXI of Code of Civil Procedure 1908 "Bid of co-sharer to have preference"
 Rule 89 Order XXI of Code of Civil Procedure 1908 "Application to set aside sale on
depositor"

9. Concept of Limitation
According to Section2(j) of the Limitation Act, 1963. ‘Period of limitation’ means the
period of limitation prescribed by the Schedule for filing any suit. Appeal or application by the
schedule, and ‘prescribed period’ means the period of limitation conputed in accordance with
the provisions of the Limitation Act.

The Law of limitation prescribes a time period within which a right can be enforced in a Court
of Law. The time period for various suits has been provided in the schedule of the Act. 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. As per the Jammu and Kashmir
Reorganisation Act, 2019, provisions of the Limitation Act will now apply to the whole of India.
The Limitation Act, 1963 contains provisions relating to the computation of time for the period
of limitation, condonation of delay, etc. The Limitation Act contains 32 sections and 137
articles and the articles are divided into 10 parts.
For Example: For specific performance of a contract, the period of limitation is 3 years, the
period begins to run on the date fixed for the performance or if no such date is fixed, when the
plaintiff has notice that performance is refused (Article 54).

Section 3 lays down the general rule that if any suit, appeal or application is brought before the
Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal or
application as time-barred. The law of limitation only bars the judicial remedy and does not
extinguish the right. In other words, It means that the statute of limitation prescribes only the
period within which legal proceedings have to be initiated. It does not restrict any period for
setting up a defence to such actions. Hence, the original right to suit is not barred. However,
Section 27 is an exception to this rule.

The Supreme Court in Punjab National Bank and Ors v. Surendra Prasad Sinha held that the
rules of limitation are not meant to destroy the rights of the parties. Section 3 only bars the
remedy but does not destroy the right which the remedy relates to.

10. Suits of Civil nature

The term ‘Suits of Civil Nature’ as any suit which is not coming under the criminal in
nature is can be known as ‘Suits of Civil Nature’. In simple words, it can be defined as if there is
a suit that determines and implement the civil rights of an individual or a group of individuals.
Section 9 of Civil Procedure Code, 1908, The Courts shall (subject to the provisions herein
contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Section 9 of CPC, speaks about the power and jurisdiction of the court to entertain all types of
suits that are of civil nature.
Explanation 1: A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
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Explanation 2: For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation 1 or whether or not such office is attached to a
particular place.
Conditions: A civil court can exercise jurisdiction to try a suit if the following conditions are
satisfied.
(i) The suit must be of civil nature and
(ii) The cognizance of such a suit should not have been expressly or impliedly barred.

I. Civil Nature:
The word 'civil is not defined in the Code. It relates to private rights and remedies of a citizen.
A civil court can exercise jurisdiction over a suit, if it is of civil nature. Suits are of two types:
1. Suits which are of civil nature and
2. Suits which are not of a civil nature.
The civil courts can try only suits, which are of a civil nature. The Courts cannot try the second
type of suits.
Examples: Following are the suits of civil nature:
(i) Suits relating to right to property (vi) Suits for rent
(ii) Suits relating to right of worship. (vii) Suits for restitution of conjugal rights.
(iii) Suits relating to right to share in offering (viii) Suits for dissolution of partnership.
(iv) Suits for damages for civil wrongs. (ix) Suit for or on account.
(v) Suits for specific relief. (x) Suit for damages for breach of contract etc.
However, the following are the suits, which are not of civil nature:
(i) A suit of declaration of a member of a caste refrained from invitation to a caste dinner.
(ii) A suit for expulsion of a member from the caste.
(iii) Suits involving purely religious rites or ceremonies.
(iv) Suits for upholding mere dignity or honour.

II. The cognizance of such a suit should not have been expressly or impliedly barred:
The cognizance of the suit should not have been barred expressly or by necessary implication.
If the jurisdiction is taken away, the Courts cannot entertain such suits. It is specifically
provided by Section 9. The bar of jurisdiction can be of two types:-
(a) Express bar and
(b) Implied bar.
The terms expressly barred means barred by any specific statutory provision. Section 11 of
C.P.C. bars the Court from trying a suit if it is res judicata, it is an express bar Similarly there
are several statutes which specifically bar the suits connected with the subject matter covered
by those statutes, e.g. Income Tax Act, Sales Tax Act, Motor Vehicle Act, Essential Commodities
Act etc.
The jurisdiction to try a suit can also be impliedly barred. For example A suit for the recovery
of the costs incurred in a criminal case cannot be entertained by the civil court. The reason is
that it is barred by implication.

11. Rejection of Plaint

The Civil Procedure Code deals with the procedure and dealing of the civil suits. Under
the CPC nowhere has it been defined that what is ‘rejection of plaint’ but grounds on which a
plaint is rejected are mentioned under Order VII Rule 11. It mentions four grounds on which a
plaint can be rejected.
Grounds on which Plaint is Rejected:
1. Where it does not disclose the cause of action: If the plaintiff fails to mention the facts
which give him right to seek relief against the defendant and the necessary facts that are
required to prove wrong done by a defendant against the plaintiff, then in such cases the
plaint can be rejected.
2. Where the relief claimed by the plaintiff is undervalued, or fails to correct the same on the
direction of the court within a given period.
3. Where plaint is properly valued and relief under it but the plaint gets rejected on the
ground of insufficient papers or papers not properly attested or stamped, where the
plaintiff does not present the plaint in accordance to the Court-fees Act.
4. Where the suit is time-barred.
5. In every suite, a duplicate file of the plaint needs to be filed by the plaintiff. If this
requirement is not fulfilled, the plaint is rejected.
6. Where the plaintiff fails to act in accordance with Order VII and Rule 9 (Procedure on
admitting plaint), the plaint can be rejected.
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Important points to be noted

1. The plaint cannot be partly rejected and partly accepted. It is rejected as a whole.
2. Where an application under Order VII Rule 9 (Procedure on admitting plaint) is filled
with a mala fide intention to cause delay to the proceeding, it is rejected.
3. The order rejecting a plaint is a decree by a court and hence is appealable.
Provision of Rejection of Plaint under the CPC
1. Procedure for rejection of plaint- “for rejection of plaint the judge shall record order
with valid reasons for the passing of such order. Recording reasons is very important when the
judge rejects any plaint.”
Therefore, an order needs to be recorded by the judge in case of rejection of the plaint.
Reasons for such rejection should also be noted by the judge.
2. Where rejection of plaint does not preclude the presentation of fresh plaint- “The
rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its force
preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.”
If the plaint is rejected on any of the grounds mentioned under Order VII Rule 9 (Procedure on
admitting plaint) shall not preclude the plaintiff from presenting a fresh plaint in respect of the
same cause of action.
Modes of Rejection of Plaint
1. At any stage of the proceeding, the defendant can file an application which can be in the
form of an interlocutory application.
2. Under Order VII Rule 1 (Particulars to be contained in plaint), Suo Moto rejection can
be done. A Suo Moto rejection means that if the conditions above stated are fulfilled, the court
can by its own motion try a suit.

12. Injunction
Injunction are two Kinds: Temporary and Permanent,
A temporary or interim injunction those injunction which are not permanent. It will continue
only for a specific period or can be granted only until the disposal of the suit or until the
further order of the court. Order XXXIX Rule 1 refers only to temporary injunction.
Permanent Injunction restrains a party forever from doing the specified act and can be
granted only on the merits at the conclusions of the trial after hearing both the parties to the
suit. It is governed by Section-38 to Sec-42 of Specific Relief Act, 1963.

Injunction are also:

(i) Preventive, prohibitive or restrictive i.e. when they prevent, prohibit, or restrain someone
from doing something; or
(ii) Mandatory i.e. when they compel, command or order person to do something.

Both plaintiff and defendant may apply for Injunction against each other. An injunction may be
issued only against a party and not against any stranger or a third party. It also cannot be
issued against a court or judicial officers.
Temporary Injunction: An injunction is judicial process whereby a party is required to do, or
to refrain from doing, any particular act, it is in the nature of preventive relief granted to a
litigant quia timet that is because he fears future possible injury. Its main object is to preserve
the subject matter of the suit in status quo for the time being. And to prevent any change in it
until the final determination of suit.
In such circumstances the Court may grant a temporary injunction to prevent such act.
Interlocutory Order: Order XXXIX, Rule 6-10 of the CPC lay down provisions relating to
Interlocutory orders. This means an order passed by the court during the pendency of suit. It
is an intermediate order passed before the final decision. These orders do not determine the
substantive rights of the parties.
Grounds of Temporary Injunction:
O39 R1 provides that Temporary Injunction may be granted by court:
1. Property in dispute is in danger of being WASTED, DAMAGED or ALIENATED by any party
to the suit, or WRONGFULLY SOLD IN EXECUTION OF DECREE.
2. Where defendant: THREATENS or INTENDS TO REMOVE or DISPOSE OF HIS PROPERTY
with a view to defraud creditors.
3. Where defendant: THREATENS TO DISPOSSESS the plaintiff or otherwise CAUSE INJURY to
the plaintiff in RELATION TO THE PROPERTY IN DISPUTE
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4. Defendant is about to COMMIT BREACH OF PEACE OR CONTRACT OR OTHERWISE (Order

39 Rule 2).
5. Where the court is of opinion that INTEREST OF JUSTICE, so required.
For example – If the Plaintiff is suing a name and a particular label for his product of, let’s say,
pencils to sell them in the market and found that Defendant has been using the same label and
copyrighted name to sell his products of pencils and stationery then the Plaintiff can file suit
demanding Injunction based on trademark infringement or through intellectual property
rights.
And another example is suppose someone is demolishing a building on which another person
has rights. In that case, that person may approach the appropriate Court to order that such
person not demolish the property until the claim for the building is resolved and a judgment is
rendered in his favor.
An injunction is a court-issued remedy that prevents the commission of a threat of
wrongdoing or the continuance of a wrongdoing that has already occurred commenced.

13. Foreign Judgments

Section 2(5) of the Code of Civil Procedure, 1908 defines 'Foreign Court', while Section
2(6) of the Code defines 'Foreign Judgment.
According to Section 2(5), 'foreign court' means, "a court situated outside India and not
established or continued by the authority of the Central Government."
According to Section 2(6) of the code, 'foreign judgment' means, "the judgment of the foreign
court."
Further Sections 13 and 14 of the Code lay down the provisions relating to the foreign
judgments. The provisions under Section 13 and 14 are substantive in nature. Section 13 says
that when the foreign judgment shall not be conclusive, where as Section 14 speaks about
presumption as to foreign judgment.
When Foreign Judgment not conclusive (Section 13): A foreign judgment shall be conclusive as
to any matter thereby directly adjudicated upon between the same parties or between parties
under whom they or any of them claim litigating under the same title except
(a) Where it has not been pronounced by a court of competent jurisdiction,
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of India in cases in which such law is
applicable;
(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) Where it has been obtained by fraud;
(f) Where it sustains a claim founded on a breach of any law in force in India.
Presumption as to Foreign Judgment (Section 14): The Court shall presume, upon the
production of any document purporting to be a certified copy of a foreign judgment, that such
judgment was pronounced by a court of competent jurisdiction, unless the contrary appears
on the record; but such presumption may be displaced by proving want of jurisdiction.

14. Inter pleader suit

An inter pleader suit is not defined in the Code of Civil Procedure, 1908. "To interplead'
means, "to litigate with each other to settle a point concerning a third party". An interpleader
suit is a suit in which the real dispute is not between a plaintiff and a defendant but between
the defendants, who interplead against the each other, unlike in an ordinary suit.
Order XXXV of the Code of Civil Procedure, 1908 lays down the procedure for interparty suits;
and Section 88 of the Code provides for the persons entitled to file Interpleeder suits.
Section 88 of the Code of Civil Procedure provides that where two or more persons claim
adversely to one another the same debts, sum of money or other property, movable or
immovable, from another person, who claims no interest therein other than for charges or
costs and who is ready to pay or deliver it to the rightful claimant, such other person may
institute a suit of interpleader against all the claimants for the purpose of obtaining a decision
as to the person to whom the payment or delivery shall be made and of obtaining indemnity
for himself. However, where any suit is pending in which the rights of all parties can properly
be decided, no such suit of interpleader shall be instituted.
Generally, in a civil suit, the dispute lies between the plaintiff and defendant. There are certain
circumstances in which a plaintiff does not show any interest in matter of the dispute. The real
dispute lies between the defendants only. In other words, "An interpleader suit is a suit, in
which the real dispute lies between the defendants only"
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Example: 'A' holds certain property 'X', in which he has no interest. 'B' and 'C' independently
claim the property as their (B's or C's) own 'A' normally sues 'B' and 'C' to find out court's
decision in favour of a real claimant 'B' or 'C'. In such case, the two defendants 8' and 'C' claim
adversely to each other. Plaintiff 'A' will remain silent as a spectator. The real dispute lies
between the two defendants, 'B' and 'C.
In an Interpleader suit, instead of pleading against the plaintiff, the defendants interplead
themselves.

15. Legal disability

The expression ‘Disability’ means “inability or incapacity or incompleteness”. “Legal
disability” means ‘not competent to contract according to law”. Section 6 to 9 of the Limitation
Act deals with Legal Disability. A person, who wants to file a suit or to make an application for
execution of decree. Must be competent with the meaning of Section 11 of the Indian Contract
Act, 1872. According to Section 11 of ICA, 1872. A person is competent to contract provided:
(i) He is a major i.e not a minor
(ii) He is of sound mind i.e not of unsound mind- insane, and
(iii) He must not have been disqualified by the law in force to contract. Eg: An insolvent cannot
contract.
Legal disability under Section 6 (Limitation Act 1963) -
The object of provisions of legal disability is to extend the period of limitation laid down by the
schedule to the Limitation Act. Sections 6, 7 and 8 provide disabilities of various kinds for the
benefit of the person to claim legal disability.
Section 6 excuses an insane person, minor and idiot to file suit or make an application for the
execution of a decree within the time prescribed by law and enables him to file the suit or
make an application after the disability has ceased, counting the period of time from the date
on which the disability ceased.
Explanation: the purposes of this section ‘minor’ includes a child in the womb.
Object: Limitation begins to run from the date of accrual of cause of action But section 6 of the
Limitation Act is one of the exceptions to this general rule. Under these exceptional
circumstances, the period of limitation does not run from the date of accrual of the cause of
action but runs from the subsequent date, for example, the date on which disabilities ceases.
Scope:
It is applicable only to suits or application for execution of decrees.
It is not applicable to the cases for which a period of limitation is not prescribed by other Acts.
It is not applied to minors entitled to prefer an appeal.
The disability mentioned under section 6 of the said Act is exhaustive and of any other
disability does not come under this section.

16. Sufficient Cause

Section 5 of the Limitation Act, 1963 provides that any appeal or an application except
an application under the provisions of Order XXI of the Code of Civil Procedure, 1908 may be
admitted beyond the period of limitation if the appellant or the applicant satisfies the court
that, he had sufficient cause for not making the appeal or application.
Section 5 confers discretionary power on the court to condone or waive delay of suing, if there
is a sufficient cause. The reason is the party could not file a suit due to the reason beyond his
control. It is the duty of the Court to record the reasons for extending time under this section
and it has no power to extend the time under equitable grounds. The immunity under Section
5 is not applicable to suits.
The term sufficient cause is not defined under the Limitation Act. It means a cause beyond the
control of the party. It should be interpreted in the light of the definition 'good faith' given in
Section 2(h) of the Limitation Act i.e. 'nothing shall be deemed to be done in good faith which
is not done with due care and attention".
Illustrations: Basing on different judgments, the following are the grounds to condone delay
under sufficient cause.
(i) Personal illness (illness of the party), his wife's or child's etc.
(ii) Delay due to accident was accepted as sufficient cause.
(iii) Delay due to non-supply of information to party by counsel in ex parte decree is sufficient
cause for condonation of delay.
(iv) Delay in getting certified copy of the judgment and decree is sufficient cause to condone
the delay in appeal.
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(v) The imprisonment of a party may constitute a sufficient cause for excusing delay in
preferring an appeal.
(vi) Mistake by a lawyer not due to negligence is a good ground for condoning the delay.
(vii) Mistake of Court is sufficient cause to condone the delay.
(viii) Pendency of writ petition before Apex Court is sufficient ground for condoning the delay
in availing of those remedies.
(ix) Poverty, backwardness, illness are sufficient causes for condonation of delay.
(x) Wrong entry in lawyer's diary is sufficient cause.
Relevant case law: Ramlal vs. Rowa Coal Fields Ltd. AIR 1979 SC 566.
The party in the instant case did not file an appeal till the last day, as he fell ill on the last day
of the period of limitation. He requested the court to condone delay. The respondents
(opposite party) argued that he (appellant) was not deligent to file an appeal before the last
day. The court denied this (respondent's) contention land held that non-deligence will not
disqualify the party (appellant) to pray for condonation.

17. Hearing
Hearing in law, a trial. More specifically, a hearing is the formal examination of a cause,
civil or criminal, before a judge according to the laws of a particular jurisdiction. In common
usage a hearing also refers to any formal proceeding before a court. In reference to criminal
procedure a hearing refers to a proceeding before a magistrate subsequent to the inception of
the case and without a jury, especially a preliminary hearing, in which a magistrate or judge, in
the presence of the accused, determines whether there is sufficient evidence to justify
proceeding with the case.
The first hearing is nowhere defined in the Code of Civil Procedure under the Code of Civil
procedure, the examination of parties by the court towards Order 10 of CPC. The very first
stage in the suit is the first hearing.
The first hearing comes by order 14 of the Code of civil procedure,1908. While Order 10 of the
Code orders the court to examine parties with a view to determining matters in controversy in
the suit. It has been upheld by the Supreme Court that First hearing is the day on which the
court implements its judgment to the case either to formulate issues or for taking evidence.

18. Order
The term “Order” is defined under Section 2 (14) of the code. The bare reading of the
provision’s original context provides that except Decree, all other formal expressions of the
court’s decision are orders. As mentioned at the outset, the Decree is an adjudication that
conclusively determines the rights of the parties, if an order is an adjudication of the court,
which is not a decree, then, an order must be the direction prescribed by the court to the
parties regarding their conduct. For instance, an Interim Injunction Order refrains a party
temporarily from doing a specific act. It is pertinent to note that, unlike Decree, an Order deals
with the procedural rights of the parties such as adjournment, revision, implementation,
amendment, etc. Order is of two types, viz.
1. Appealable Orders: Orders against which an appeal lies. (Section 104 and Order 43, Rule 1
of the code).
2. Non Appealable Orders: Orders against which no appeal lies.
Furthermore, orders can be categorized into two classes, they are:
1. Final Orders: An order that completely disposes of all the claims of the parties to the suit.
2. Interlocutory Orders: A provisional order is issued during the course of litigation to settle
down the adjacent issues, which hinder the progress of the case.
Essential Elements of an Order
1. The decision has to be pronounced by the civil court, not by the administrative tribunal.
2. Such pronouncement should be formal expressed i.e. must be precisely written.
3. That formal expression should not be a Decree.

19. Commission
The concept of ‘Commission’ is an important subject matter in the branch of CPC.
Commission is an impartial person who is appointed by the Court and act as an agent of the
Judge. The power of the Court to issued Commission by the Court for doing full and complete
Justice between the parties.
It is the discretionary power of the Court to appoint a Commission and a court may appoint a
Commission either or an application by a party to the suit or its own motion.
 11

Section (76 to 78), Order XXVI, Rules 1 to 8 of the Code of Civil Procedure deals with the
Commission to examine of witness. The court may issue a commission for the examination on
interrogatories or otherwise of any person in the following circumstances: –
1. If the person to be examined as a witness reside within the local limits of the court’s
Jurisdiction.
2. If he resides beyond the local limits of the Jurisdiction of the court, or
3. If he is about to leave the Jurisdiction of the court.
Section 75 of the CPC enacts that the Court may issue a Commission for any of the following
purposes:
1. To examine any Person
2. To make a local investigation
3. To examine or adjust accounts
4. To make a partition
5. To make a scientific investigation
6. To conduct for sale
7. To perform a ministerial act.
20. Suit by the Indigent person
Rule 1- 18 of Order XXXIII of the Code of Civil Procedure deals with the suits filed by
indigent persons
India being a welfare State provides the necessary Legal Aid and assistance to the poor and the
downtrodden. Order XXXIII of the Code of Civil Procedure, 1908, is one such example of Legal
Aid rendered to the Indigent Persons which inter-alia provides for the institution of Civil Suits
by Indigent Persons. Initially, the expression “Pauper” was being used but later it was replaced
with the expression “Indigent Person”.
At the time of institution of a Civil Suit, the Plaintiff(s) i.e. the person(s) instituting the Civil
Suit, is/ are required to pay the requisite Court Fees as prescribed under the Court Fees Act,
1870. However, the poor people do not possess sufficient means to pay the Court Fees.
Therefore, Order XXXIII comes to their rescue, by exempting them from the payment of the
Court Fees at the first instance and allows them to prosecute the suit in forma pauperis subject
to certain conditions as stipulated under the Order.
In the matter of A.A.Haja Muniuddin v. Indian Railways,(1992), the Hon’ble Supreme Court
observed that: " Access to justice cannot be denied to an individual merely because he does not
have the means to pay the prescribed fee."

21. Public Interest litigation

 Public interest Litigation (PIL) means litigation filed in a court of law, for the protection
of “Public Interest”, such as Pollution, Terrorism, Road safety, Constructional hazards etc. Any
matter where the interest of public at large is affected can be redressed by filing a Public
Interest Litigation in a court of law.
 Public interest litigation is not defined in any statute or in any act. It has been
interpreted by judges to consider the intent of public at large.
 Public interest litigation is the power given to the public by courts through judicial
activism. However, the person filing the petition must prove to the satisfaction of the court
that the petition is being filed for a public interest and not just as a frivolous litigation by a
busy body.
 The court can itself take cognizance of the matter and proceed suo motu or cases can
commence on the petition of any public spirited individual.
 Some of the matters which are entertained under PIL are:
i. Bonded Labour matters
ii. Neglected Children
iii. Non-payment of minimum wages to workers and exploitation of casual workers
iv. Environmental pollution and disturbance of ecological balance
v. Food adulteration
vi. Maintenance of heritage and culture
 Any citizen can file a public case by filing a petition:
i. Under Art 32 of the Indian Constitution, in the Supreme Court.
ii. Under Art 226 of the Indian Constitution, in the High Court.
iii. Under sec. 133 of the Criminal Procedure Code, in the Court of Magistrate.
 However, the court must be satisfied that the Writ petition fulfils some basic needs for
PIL as the letter is addressed by the aggrieved person, public spirited individual and a social
action group for the enforcement of legal or Constitutional rights to any person who are not
able to approach the court for redress.
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 A Public Interest Litigation can be filed against a State/ Central Govt., Municipal
Authorities, and not any private party. The definition of State is the same as given under
Article 12 of the Constitution and this includes the Governmental and Parliament of India and
the Government and the Legislature of each of the States and all local or other authorities
within the territory of India or under the control of the Government of India.
 M.C Mehta vs. Union of India In a Public Interest Litigation brought against Ganga water
pollution so as to prevent any further pollution of Ganga water. Supreme Court held that
petitioner although not a riparian owner is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in protecting the lives of the people who
make use of Ganga water.

22. Arrest and detention

Under Section 51(c) of CPC, it is given that when a decree-holder moves to the court for
executing a decree, the court can execute such decree by the arrest and detention of the
judgement debtor.
The decree for arrest and detention may be passed in the following cases given under Order
XXI:
 Under Rule 30, a decree for the payment of money can be executed by the arrest and
detention of the Judgement debtor.
 Under Rule 31, where the decree is for a specific moveable party, it can be executed by the
arrest and detention of the Judgement debtor.
 Under Rule 32, where the decree is for specific performance of the contract or an
injunction, the court can execute the decree by arrest and detention of the judgement
debtor.
There are certain classes of persons that are exempted from arrest and detention under the
various provisions of CPC. Such persons include:
1. Women, as per Section 56,
2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting
in obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 135A,
5. Classes of persons, whose arrest according to the State Government, might be attended
with danger or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under section 58(1A).

23. Appearance of parties

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.
3. 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.
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.
5. 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.
6. If service of the summons is proved then only the court can proceed for an ex-parte against
the defendant and the court may pass a decree in favour of the plaintiff. This provision
applies only for the first hearing and not for the subsequent hearings of the matter and the
same has been held in the case of Sangram Singh v. Election Tribunal.
7. Even while passing an ex-parte order it is the duty of the court to secure the end of justice
even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad, it has been
held by the Supreme Court that -It is the duty of the court to ensure that statements in the
plaint stand proven and the prayers asked before the court are worthy of being granted.
This provision of passing ex parte order cannot be passed when there are more than one
defendants in the case and any of them appears.
 13

24. Pleadings
The term ‘plead’ means to request or ask for something in a polite and humble manner.
Now, such request can be made orally or in written or in any other form that signifies a
request being made by one before another person or entity which is in a position to grant that
request. The contents of such request, in general, is called pleading.

Order 6 Rule 1 of the Code of Civil Procedure, 1908 defines pleadings as “plaint or written
statement”. Plaint is the document submitted by the plaintiff, i.e. the aggrieved party who
states the material facts, reasons for filing the suit and what remedy or relief the aggrieved
person is claiming through the legal proceedings.
Objects of Pleading
1. Pleadings ascertain the actual issues between the parties.
2. Pleadings state the issues to avoid surprise to the other party.
3. Pleadings narrow down the area of conflict.
4. Pleadings state the facts which need to be proved at the trial.
Importance of Pleading
1. Pleading determines the burden of proof.
2. It aids the court in the final decision of the case.
3. Pleading enables the court to decide the right of the parties in the trial.
4. Pleading enables the opposite party to know the case.
Basic rules of Pleading
Basic rules of pleadings are given in Order 6VI Rule 2 of the CPC.
1. Pleading should state the facts.
2. The fact should be material facts.
3. Pleading should not state the evidence.
4. The facts stated in the pleading should be in a concise for
Other rules of Pleading
Other rules of pleadings have been given under Rule 4 to 18 of Order VI of the CPC.
1. Every pleading must be signed by the party or his pleader – Rule 14
2. Particulars with date should be stated, wherever misrepresentation, fraud, breach of trust,
wilful default or undue influence is pleaded in the pleading – Rule 4
3. The effect of the document shall be stated briefly where the contents of any document are
material – Rule 9.

25. Territorial Jurisdiction

Every Court has its local limits. Beyond that limits, it cannot exercise its power. This
limit with regard to area is called as territorial jurisdiction. This will be fixed by the
Government.
For instance: the District Judge of Kurnool has jurisdiction of that district, and he cannot
exercise his powers beyond that district. Similarly the HC has jurisdiction over the whole
territory of the State within which it is situated.
Section 20 of Civil Procedure Code, 1908 (CPC) provides that for any suit, every plaintiff may
file a suit in the court of law within whose local limits the defendant or opponent against
whom claim arises voluntarily resides or carries on his business or is gainfully employed.
The section further provides that the suit may also be filed in a court within whose local limits
the whole or part of cause of action arose. This is the basic principal of law that the suit are
generally filed in court of law within whose jurisdiction the whole or a part of cause of action
arises. Causes of action are the facts in regard to claim, relief that gives the plaintiff the right to
bring a legal action.

26. Affidavit
Order XIX 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.
 14

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.”
Important points about Affidavits:-
I. A Court may order that any fact may be proved by affidavit. Ordinarily, a fact has to be
proved by oral evidence.
II. The definition of the affidavit is not defined under Section 3 of the Evidence Act. It can
be used as evidence only if, for sufficient reason, the court invokes the provisions of Order XIX
of the code.
III. Rule 1 is a sort exception to this rule and empowers the court to make an order that
any particular fact may be proved by affidavit, subject, however, to the right of the opposite
party to have the deponent produced for cross-examination.
IV. An affidavit should be confined to such facts as the deponent is able to prove to his
personal knowledge except on interlocutory applications on which statements of his belief
may be admitted. (R3 of O-XIX)
V. Unless affidavits are properly verified and are in conformity with the rules, they will
be rejected by the court. But, instead of rejecting an affidavit, a court may give an opportunity
to a party to file a proper affidavit.
VI. Ordinarily interlocutory applications such as interim injunctions, the appointment of
the receiver, etc, can be decided on the basis of an affidavit.
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, 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.

27. Execution
The term “execution” has not been defined in the code. The expression “execution”
means enforcement or implementation or giving an effect to the order or judgement passed by
the court of justice. Simply “execution” means the process for enforcing or giving effect to the
judgement of the court.
Execution is the last stage of any civil litigation. There are three stages in litigation:
1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of plaint. Decree means
operation or conclusiveness of judgement. Implementation of a decree will be done only when
parties has filed application in that regard. A decree or order will be executed by court as
facilitative and not as obligation. If a party is not approaching court, then the court has no
obligation to implement it suo-motto. A decree will be executed by the court which has passed
the judgement.
In exceptional circumstances, the judgement will be implemented by other court which is
having competency in that regard. Execution is the medium by which a decree-holder compels
the judgement-debtor to carry out the mandate of the decree or order as the case may be. It
enables the decree-holder to recover the fruits of the judgement. The execution is complete
when the judgement-creditor or decree-holder gets money or other thing awarded to him by
judgement, decree or order.

28. Stay
A stay is a suspension of a case or a suspension of a particular proceeding within a case.
A judge may grant a stay on the motion of a party to the case or issue a stay sua sponte,
without the request of a party. Courts will grant a stay in a case when it is necessary to secure
the rights of a party.
Stay Order: Order 21, Rule 26; Order 41, Rule 5 the CPC, 1908 lat down A stay order means to
temporarily suspend the execution of a court judgment or order. A stay is a suspension of a
case or a suspension of a particular proceeding within a case. Stay order refers to stoppage,
arrest or suspension of judicial proceedings.
Stay of Suits: Section 10 of CPC states that no court will initiate the trial of any suit if the issues
are directly or substantially related to the previously instituted suit between the same parties
or parties litigating on behalf of them under the same title and the matter is pending before
 15

the court having the competent jurisdiction in the territory of India or any court beyond the
limits of India established by central governments having the same jurisdiction or before
supreme court. Section. If parallel suits come before the competent court, section 10 gives the
power to put a stay on the proceedings in another court. Section 10 prohibits the trial of
parallel litigation where the same cause of action arises between the same parties on the same
subject matter. This section is inserted in the CPC with the purpose that the defendant should
not suffer twice for the same offense, its also known as Res Subjudice.

29. Appeal
Before the trial Court, the plaintiff files a suit against the defendant for a cause of action.
The trial Court enquires into the matter and comes to a conclusion and passes a decree either
in favour of the plaintiff or in favour of the Defendant depending upon the evidences produced
before it. If the suit is decreed in favour of Plaintiff, the Defendant can appeal to higher court
against the Decree. In other words the appeal is a complaint made to higher Court by the
aggrieved party. The term 'Appeal' has not been defined in C.P.C. whoever files an appeal is
called 'Appellant'. If the defendant files an appeal he is known as 'Appellant/Defendant. If the
Plaintiff files the appeal before the higher Court, he is known as 'Appellant/Plaintiff. The other
party who has to answer is called 'Respondent', viz. 'Respondent Plaintiff or
'Respondent/Defendant. Appeal is a creature of statute and it is not an inherent right to the
subject. Therefore, an appeal can be filed only where it is expressly provided by a statute,
Contrary to this there is an inherent right in every person to bring a suit of civil nature.
Section 96 of the CPC provides that an aggrieved party to any decree, which was passed by a
Court while exercising its original jurisdiction, is conferred with at least one right to appeal to
a higher authority designated for this purpose, unless the provisions of any statute make an
exception for it. Section 97, 98 and 102 of the CPC enumerate certain conditions under which
no further appeal is permitted, hence attributing to a single right of appeal.
Kinds of Appeals: Appeals may be classified under the following heads:
1. Appeals from Original Decrees (Section 96-99, Order XLI)
2. Appeals from Appellate Decrees or Second Appeals (Section s 100-103, Order XLII)
3. Appeals from Orders (section 104-106, Order 43, Rules 1,2)
4. Appeals to the Supreme Court (Section 109 & 112, Order XLV)
Limitations: For every appeal, there is a limited period, within which appeal should be filed.
Such a limitation is provided under the Limitation Act, 1963. For appeal, in case of a decree
passed by lower court in civil suit, the limitation is :
 Appeal to High Court - 90 days from the date of decree or order.
 Appeal to any other court - 30 days from the date of Decree or order.
 In case there are more than one plaintiffs or defendants, then any one of them can file on
appeal against all of them respectively.

30. Decree
A decree is an official order that is drafted and issued by someone in a position of legal
authority, like a judge.
Section 2(2) of the Code of Civil Procedure, 1908 defines Decree as:-
“Decree means the formal expression of an adjudication which, so far as regards the court
expressing it, conclusively determines the rights of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final”.
A decree may be either preliminary or final. A decree is preliminary when a further procedure
has to be taken before the suit can be completely disposed off. When adjudication completely
disposes of the suit such decree is final.
Essentials Elements of Decree:
In Vidyacharan Shukla v. Khubchand Baghel, (AIR 1964 SC 1099), the Supreme Court held that
in order that a decision of a court to be a “decree” the following elements must be present.
 There must be an adjudication;
 Such adjudication must have been given in a suit;
 It must have determined the rights of the parties with regard to all or any of the matters in
dispute in the suit;
 Such determination must be of conclusive nature; and
 There must be a formal expression of such adjudication.

31. Framing of Issues

Order XIV of the code of civil procedure, 1908 states that it is the duty of the court to
frame issues from Material Propositions. Here material propositions means those propositions
 16

of law or fact which a Plaintiff must allege in order to show a right to sue or a Defendant must
allege in order to constitute his defence.

Illustration: In a dispute between husband and wife over allegations of cruelty wherein the
wife registers complain before the police and police unlawfully and without following the due
process of law arrest the husband and therefore if a suit for damages for illegal arrest is to be
filed against the state govt. then material facts for the said suit would be facts of arrest and
facts of illegality.
Meaning of Issue: A single material point of fact or law in litigation that is affirm by the one
side and denied by the other side is called an Issue.
Framing or non-framing of issues in case of Ex-parte decree: Court should only made issues
when defendant has made his defence against the suit through submission of his written
statement. However, court should not frame issues when the defendant has not appeared
before the court.
Kinds of Issue: There are two types of issues:- 1. Issue of Fact, 2. Issue of Law.
Object of framing of Issue: Object is to ascertain the real dispute between the parties by
narrowing down the area of conflict and determining where the parties differ.

32. Ex-party Decree

The expression 'Exparte Decree' means, "decree passed by the Court in the absence of
the defendant" In case of exparte decree, the plaintiff will be directed to make out his case,
otherwise, the suit will be dismissed. The procedure for setting aside an exparte decree has
been laid down in Order IX, Rules 13 and 14 of the Code of Civil Procedure.
Under Order 9, Rule 6(1)(a) the court may proceed ex-parte and pass an ex-parte decree when
it deems fit that the defendant has absent himself from the court on the date of hearing stated
in the summons served to him in accordance with the provisions of the Code.
However, the following remedies are available to the defendant in case of the exparte decree:-
1. To apply to the court by which such decree is passed to set it aside; Order IX, Rule 13 or
2. To prefer an appeal against such decree: Section 96(2) or
3. To apply for review: Order 47, Rule1 or
4. To file a suit on the ground of fraud.

33. Suit by Minors

Order XXXII of the Code of Civil Procedure, 1908 deals with Suits by or against minors contains
special provisions applicable only in cases where either the suit is:
(i) To be instituted at the cause of a minor, (ii) To be instituted against a minor
Suits by or Against Minors:-
 Since a Minor is not capable of entering into a contract, even suit, which is instituted by
him, will be filed in his name by his "next Friend", i.e. any other person who has attained
majority in some way.
 Such "Next Friend" should be closely related to the minor so as to bonafidely ascertain
the interests of the minor, for instance father, mother, brother, sister etc, or guardian. He does
not become a party to the suit but merely represents minor's interest.
 To avoid any discourage vexatious: litigation by such person, the code provides that,
the courts can order the next friend to give security for payment of all the costs incurred or
likely to be incurred by the defendant.
 Any person can be appointed, as the "Next Friend" or guardian of the minor as long as
he is of sound mind, has attained majority, has no interests adverse to that of the minor's and
he is not defendant or plaintiff in the suit.
 Where there is neither any guardian appointed by a competent Authority, nor any other
person fit and willing to act as a guardian for the suit, the Court can appoint any of its officers
as a guardian to the suit.

34. Amendment of pleadings

Pleadings are statement in writing delivered by each party alternately to his opponent,
stating what his contentions will be at the trial, giving all such details as his opponent needs to
know in order to prepare his case in answer. It is an essential requirement of pleading that
material fact and necessary particulars must be stated in the pleadings and the decisions
cannot be based on the grounds outside the pleadings. But many a time the party may find it
necessary to amend his pleadings before or during the trial of the case.
Examples :
 17

 Fresh information has come to hand i.e., subsequent events

 Interrogatories have been fully answered by his opponent.
 Document whose existence was unknown to him have been disclosed which necessitates
reshaping his claim or defence.
 His opponent may have raised some well-founded objections to his pleadings, in which
case it will be advisable for him to amend at once his pleadings before it is too late.
Different kinds of amendments: The occasion for amendment arises in six different ways:-
(i) Section 152 (Amdt of clerical and arithmetical mistakes in judgments, decrees and orders).
(ii) Section 153 (Amdt of proceedings in a suit by the court, whether moves thereto by the
parties or not, for the purpose of determining the real question or issue between the parties).
(iii) Order 1, Rule 10, sub-r (2) (striking out or adding parties).
(iv) Order 22 Rules 3 & 4 (adding legal representatives of deceased party)
(v) Order 6, Rule 16 (amending your opponents pleading: compulsory amendment).
(vi) Order 6, r 17 (amending your own pleading: voluntary amendment)

35. Plaintiff
The party who brings a legal action or in whose name it is brought as opposed to the
defendant, the party who is being sued is called Plaintiff. The term corresponds to petitioner in
equity and civil law and to libellant in admiralty. It is generally applied also to the equity
petitioner, particularly in those jurisdictions in which law and equity are merged. The party
who sues out a writ of error to review a judgment or other proceeding at law is often
denominated the plaintiff in error, irrespective of whether the party was the plaintiff or the
defendant in the lower court proceedings.

36. Sale
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.

37. Cost
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.
This amount is subjected to be paid by the losing party. This remedy shall not to be treated as
any reward to the winning party on one side and as a punishment to the losing party on the
other side All the necessary direction with regard to that shall be given by the court. In cases
where the Court refuses to grant the cost, it shall give in writing for doing so. Costs are at the
discretion of the court. It must be exercised reasonably if the court deems fit to do so and not
by caprice or chance. This discretion of the court must be exercised considering the facts and
circumstances of the case.

Jaffer ss (ex-army),
Student of Sri prasunna law college, Kurnool,
3years llb. (2019-2022)