THE LIMITATION ACT, 1963

LIMITATION OF SUITS, APPEALS AND APPLICATIONS

3. Bar of limitation.—(1) Subject to the provisions contained in Sections 4 to 24 (inclusive),
every suit instituted, appeal preferred, and application made after the prescribed period shall
be dismissed although limitation has not been set up as a defence.
(prescribed period k baad file kiya toh court dismiss kar dega chahe defendant iss cheez ki plea
le yaa naa le)
4. Expiry of prescribed period when court is closed.—Where 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.
5. 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, 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. (Court has the discretion)
(Yeh section suit pe aur Order 21 pe apply nahi hota)
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.
NOTES ► Introduction.— It is not applicable to applications made under any of the
provisions of Order XXI of the Code of Civil Procedure, 1908 (Execution of decrees and
orders). Again, this section does not apply to suits. It applies only to such appeals or
applications as specified therein.
6. Legal disability.—(1) Where a person entitled to institute a suit or make an application for
the execution of a decree is, at the time from which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the suit or make the application within the same
period after the disability has ceased, as would otherwise have been allowed from the time
specified therefor in the third column of the Schedule.
(2) Where such person is, at the time from which the prescribed period is to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is affected by
another disability, he may institute the suit or make the application within the same period after
both disabilities have ceased, as would otherwise have been allowed from the time so specified.
(3) Where the disability continues up to the death of that person, his legal representative may
institute the suit or make the application within the same period after the death, as would
otherwise have been allowed from the time so specified.
(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of
the person whom he represents, affected by any such disability, the rules contained in sub-
sections (1) and (2) shall apply.
(5) 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 he not died.
Explanation.—For the purposes of this section, ‘minor’ includes a child in the womb.
NOTES ► Introduction.— This section applies to the institution of suit or making application
for the execution of a decree but does not apply to appeals. Again, this section applies only to
cases dealt with by the Act itself and is not applicable to cases for which a period of limitation
is prescribed by other Acts.
► Idiot.— An idiot is a person whose state of mind must be such as to render him affected
and unable to understand the nature and consequences of the act he is entering into. Any kind
of eccentricity or a mere lack of ordinary intelligence will not necessarily be termed as ‘idiocy’.
7. Disability of one of several persons.—Where one of several persons jointly entitled to
institute a suit or make an application for the execution of a decree is under any such disability,
and a discharge can be given without the concurrence of such person, time will run against
them all; but, where no such discharge can be given, time will not run as against any of them
until one of them becomes capable of giving such discharge without the concurrence of the
others or until the disability has ceased.
Explanation I.—This section applies to a discharge from every kind of liability, including a
liability in respect of any immovable property.
Explanation II.—For the purposes of this section, the manager of a Hindu undivided family
governed by the Mitakshara law shall be deemed to be capable of giving a discharge without
the concurrence of the other members of the family only if he is in management of the joint
family property(Karta).
► Discharge by guardian.—A natural or a legal guardian can give a valid discharge on behalf
of his ward. But a de facto guardian cannot give a valid discharge.
8. Special exceptions.—Nothing in Section 6 or in Section 7 applies to suits to enforce rights
of pre-emptions, or shall be deemed to extend, for more than three years from the cessation of
the disability or the death of the person affected thereby, the period of limitation for any suit
or application.
(3 saal se zyada ka time period nahi milega from the cessation of disability. Par agar cessation
k baad 3 saal se zyada ka time bacha hai prescribed period me toh usko kam bhi nahi karenge.
Eg- Agar 1 saal hi bacha hai toh 2 saal add kar denge.)
NOTES ► Introduction.— The present section is ancillary and restrictive of the exceptions
granted in the preceding Sections 6 and 7. It does not provide any privilege.
► Section as proviso to Sections 6 and 7.—The present section adds a proviso to Sections 6
and 7. Under Section 6 a person under disability may sue after the cessation of disability within
the same period as would otherwise have been allowed from the time specified therefor in the
Schedule, but the present section lays down that in no case can the period be extended to
anything beyond three years from the cessation of disability. If a minor acquired a cause of
action to sue but after attaining majority died within the three years allowed by this section, his
legal representative can institute a suit at any time within three years' period which had already
commenced within the lifetime of the deceased.
9. Continuous running of time.—Where once time has begun to run, no subsequent disability
or inability to institute a suit or make an application stop it:
Provided that, where letters of administration to the estate of a creditor have been granted to
his debtor, the running of the period of limitation for a suit to recover the debt shall be
suspended while the administration continues.
NOTES ► Introduction.— The rule of this section is based upon this English dictum: “Time
when once it has commenced to run in any case will not cease to do so by reason of any
subsequent event.” Generally, when any of the statute of limitation has begun to run, no
subsequent disability or inability will stop this running. (Bonning on Limitation.)
► Scope.—The scope of the proposition of law set forth in this section is limited to suits and
applications only and does not apply to appeals. Application in execution also comes within
the scope of this section.
10. Suits against trustees and their representatives.—Notwithstanding anything contained
in the foregoing provisions of this Act, no suit against a person in whom property has become
vested in trust for any specific purpose, or against his legal representatives or assigns (not being
assigns for valuable consideration), for the purpose of following in his or their hands such
property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred
by any length of time.
(No bar of limitation period. Kitne bhi time baad suit file karo who entertain kiya jaaega)
Explanation.—For the purposes of this section any property comprised in a Hindu, Muslim or
Buddhist religious or charitable endowment shall be deemed to be property vested in trust for
a specific purpose and the manager of the property shall be deemed to be the trustee thereof.
PART III
COMPUTATION OF PERIOD OF LIMITATION
General
12. Exclusion of time in legal proceedings.—(1) In computing the period of limitation for
any suit, appeal or application, the day from which such period is to be reckoned, shall be
excluded. (First day exclude karna hai)
(2) In computing the period of limitation for an appeal or an application for leave to appeal or
for revision or for review of a judgment, the day on which the judgment complained of 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.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an
application is made for leave to appeal from a decree or order, the time requisite for obtaining
a copy of the judgment 3[* * *] shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time
requisite for obtaining a copy of the award shall be excluded.
Explanation.—In computing under this section the time requisite for obtaining a copy of a
decree or an order, any time taken by the court to prepare the decree or order before an
application for a copy thereof is made shall not be excluded.
(Ek application file karni padti hai court me to obtain the copy of the judgement. Agar who
application aapne late file ki toh who beech waale din exclude nahi honge under this section.)
13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.—In
computing the period of limitation prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made and rejected, the time during
which the applicant has been prosecuting in good faith his application for such leave shall be
excluded, and the court may, on payment of the court fees prescribed for such suit or appeal,
treat the suit or appeal as having the same force and effect as if the court fees had been paid in
the first instance.
NOTES ► Introduction.— It lays down the rules for the exclusion of the time cases where
leave to sue or appeal as a pauper is applied for.
14. Exclusion of time of proceeding bona fide in court without jurisdiction.—(1) In
computing the period of limitation for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether in a court of first instance or
of appeal or revision, against the defendant shall be excluded, where the proceeding relates to
the same matter in issue and is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation for any application, the time during which the
applicant has been prosecuting with due diligence another civil proceeding, whether in a court
of first instance or of appeal or revision, against the same party for the same relief shall be
excluded, where such proceeding is prosecuted in good faith in a court which, from defect of
jurisdiction or other cause of a like nature, is unable to entertain it.
(3) Notwithstanding anything contained in Rule 2 of Order XXIII of the Code of Civil
Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh
suit instituted on permission granted by the court under Rule 1 of that Order, where such
permission is granted on the ground that the first suit must fail by reason of a defect in the
jurisdiction of the court or other cause of a like nature.
Explanation.—For the purposes of this section,—
(a) in excluding the time during which a former civil proceeding was pending, the day on which
that proceeding was instituted and the day on which it ended shall both be counted;
(b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a
proceeding;
(c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature
with defect of jurisdiction.
NOTES ► Introduction.— This section lays down the rules for the exclusion of time of
proceeding bona fide in court without jurisdiction. It applies to the institution of suits of making
application but is not applicable for the purposes of computation of time for appeals. However,
the principle underlying this section may be applied as constituting a sufficient cause within
the meaning of Section 5 for the purposes of condonation of delay in appeals.
15. Exclusion of time in certain other cases.—(1) In computing the period of limitation for
any suit or application for the execution of a decree, the institution or execution of which has
been stayed by injunction or order, the time of the continuance of the injunction or order, the
day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(2) In computing the period of limitation for any suit of which notice has been given, or for
which the previous consent or sanction of the Government or any other authority is required,
in accordance with the requirements of any law for the time being in force, the period of such
notice or, as the case may be, the time required for obtaining such consent or sanction shall be
excluded.
Explanation.—In excluding the time required for obtaining the consent or sanction of the
Government or any other authority, the date on which the application was made for obtaining
the consent or sanction and the date of receipt of the order of the Government or other authority
shall both be counted.
(3) In computing the period of limitation for any suit or application for execution of a decree
by any receiver or interim receiver appointed in proceedings for the adjudication of a person
as an insolvent or any liquidator or provisional liquidator appointed in proceedings for the
winding up of a company, the period beginning with the date of institution of such proceeding
and ending with the expiry of three months from the date of appointment of such receiver or
liquidator, as the case may be, shall be excluded.
(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in
execution of a decree, the time during which a proceeding to set aside the sale has been
prosecuted shall be excluded.
(5) In computing the period of limitation for any suit the time during which the defendant has
been absent from India and from the territories outside India under the administration of Central
Government shall be excluded.
NOTES ► Introduction.— This section lays down the rules for the exclusion of time in cases
where proceedings are suspended for reasons specified therein. It is applicable to suits and
applications for the execution of decrees for the purposes of computing the period of limitation
but does not apply to appeals.
16. Effect of death on or before the accrual of the right to sue.—(1) Where a person who
would, if he were living, have a right to institute a suit or make an application dies before the
right accrues, or where a right to institute a suit or make an application accrues only on the
death of a person, the period of limitation shall be computed from the time when there is a legal
representative of the deceased capable of instituting such suit or making such application.
(capable matlab Sec 6 waali disabilities nahi honi chahiye)
(2) Where a person against whom (defendant), if he were living, a right to institute a suit or
make an application would have accrued dies before the right accrues, or where a right to
institute a suit or make an application against any person accrues on the death of such person,
the period of limitation shall be computed from the time when there is a legal representative of
the deceased against whom the plaintiff may institute such suit or make such application.
(mere existence of a legal representative is enough. Capable hone ki baat iss sub section me
nahi ki gai)
(3) Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption
or to suits for the possession of immovable property or of a hereditary office. (3 exceptions)
17. Effect of fraud or mistake.—(1) Where, in the case of any suit or application for which a
period of limitation is prescribed by this Act,—
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent;
or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by
the fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been
fraudulently concealed from him;
the period of limitation shall not begin to run until the plaintiff or applicant has discovered the
fraud or the mistake or could, with reasonable diligence, have discovered it, or in the case of a
concealed document, until the plaintiff or the applicant first had the means of producing the
concealed document or compelling its production:
Provided that nothing in this section shall enable any suit to be instituted or application to be
made to recover or enforce any charge against, or set aside any transaction affecting, any
property which—
(i) in the case of fraud, has been purchased for valuable consideration by a person who was not
a party to the fraud and did not at the time of the purchase know, or have reason to believe, that
any fraud had been committed, or
(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the
transaction in which the mistake was made, by a person who did not know, or have reason to
believe, that the mistake had been made, or
(iii) in the case of a concealed document, has been purchased for valuable consideration by a
person who was not a party to the concealment and, did not at the time of purchase know, or
have reason to believe, that the document had been concealed.
(2) Where a judgment-debtor (jiske against judgement hoti hai) has, by fraud or force,
prevented the execution of a decree or order within the period of limitation, the court may, on
the application of the judgment-creditor made after the expiry of the said period extend the
period for execution of the decree or order:
Provided that such application is made within one year from the date of the discovery of the
fraud or the cessation of force, as the case may be.
NOTES ► Introduction.— It lays down the rules as to effect of fraud or mistake on the
computation of the period of limitation for instituting a suit or making an application. The
principle underlying this section is that the right of party depended or under mistake cannot be
affected by lapse of time so long as he remains, without any fault of his own, in ignorance of
the fraud or mistake which has been committed.
18. Effect of acknowledgment in writing.—(1) Where, before the expiration of the prescribed
period for a suit or application in respect of any property or right, an acknowledgment of
liability in respect of such property or right has been made in writing signed by the party against
whom such property or right is claimed, or by any person through whom he derives his title or
liability, a fresh period of limitation shall be computed from the time when the
acknowledgment was so signed.
(2) Where the writing containing the acknowledgment is undated, oral evidence may be given
of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872
(1 of 1872), oral evidence of its contents shall not be received.
Explanation.—For the purposes of this section,—
(a) an acknowledgment may be sufficient though it omits to specify the exact nature of the
property or right, or avers that the time for payment, delivery, performance or enjoyment has
not yet come or is accompanied by refusal to pay, deliver, perform or permit to enjoy, or is
coupled with a claim to set off, or is addressed to a person other than a person entitled to the
property or right,
(b) the word “signed” means signed either personally or by an agent duly authorised in this
behalf, and
NOTES ► Introduction.— It lays down the law as to effect of acknowledgment in writing on
the computation of the period of limitation for institution of a suit or making an application.
19. Effect of payment on account of debt or of interest on legacy.—Where payment on
account of a debt or of interest on a legacy is made before the expiration of the prescribed
period by the person liable to pay the debt or legacy or by his agent duly authorised in this
behalf, a fresh period of limitation shall be computed from the time when the payment was
made:
NOTES ► Introduction.— This section and the preceding section are not mutually exclusive.
They lay down the law in their respective particular spheres. The preceding section only
operates against the person who makes the acknowledgment but this section makes the part-
payment good in favour of any suit on that liability.
► Conditions to claim exemption.—To claim exemption the payment must be made within
the prescribed period of limitation and it must be acknowledged by some form of writing either
in handwriting of payer himself or signed by him. Further, unless there is acknowledgment in
the required form, payment by itself is of no avail, Shanti Conductors (P) Ltd. v. As
20. Effect of acknowledgment or payment by another person.—(1) The expression “agent
duly authorised in this behalf” in Sections 18 and 19 shall, in the case of a person under
disability, include his lawful guardian, committee or manager or an agent duly authorised by
such guardian, committee or manager to sign the acknowledgment or make the payment.
(2) Nothing in the said sections renders one of several joint contractors, partners, executors or
mortgagees chargeable by reason only of a written acknowledgment signed by, or of a payment
made by, or by the agent of, any other or others of them. (Abolishes the doctrine of implied
agency as between co- debtors).

Section 21. Effect of substituting or adding new plaintiff or defendant.—

(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the
suit shall, as regards him, be deemed to have been instituted when he was so made a party:
Provided that where the court is satisfied that the omission to include a new plaintiff or
defendant was due to a mistake made in good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been instituted on any earlier date.
(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing
to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is
made a defendant or a defendant is made a plaintiff.
Section 22. Continuing breaches and torts.
In the case of a continuing breach of contract or in the case of a continuing tort, a fresh period
of limitation begins to run at every moment of the time during which the breach or tort, as the
case may be, continues.
Section 23. Suits for compensation for acts not actionable without special damage.
In the case of a suit for compensation for an act which does not give rise to a cause of action
unless some specific injury actually results therefrom, the period of limitation shall be
computed from the time when the injury results.
Section 24. Computation of time mentioned in instruments.
All instruments shall for the purposes of this Act be deemed to be made with reference to the
Gregorian calendar. (Christian Calendar)
25. Acquisition of easements by prescription.
(1) Where the access and use of light or air to and for any building have been peaceably enjoyed
therewith as an easement, and as of right, without interruption, and for twenty years, and where
any way or watercourse or the use of any water or any other easement (whether affirmative or
negative) has been peaceably and openly enjoyed by any person claiming title thereto as an
easement and as of right without interruption and for twenty years, the right to such access and
use of light or air, way, watercourse, use of water, or other easement shall be absolute and
indefeasible.
• Acquisition: The term ‘acquisition’ means to acquire or get control of something, or to
receive something. For example, to acquire a house or to get some rights over
something, etc.
• Easement: The term ‘easement’ is a legal term defined under section 2(f), Limitation
Act, 1963, that is used in reference to a situation wherein an individual uses something,
which does not belong to him, as a necessity or otherwise. To understand it more
clearly, then it is like, using your friend’s car without actually owning it. For
example, to use private pathway as a passage to go somewhere, or, to use landowner’s
land to lay railway track or electric wires, etc.
• Prescription: It is a common law (English Law) concept which means that an
individual acquires right, after a fixed period of time, over something, if he or she is
indulged in enjoying that right without disturbance. To understand it easily, assume,
you use a friend’s bat to play cricket and you keep on using it for a fixed period of time,
say twenty years; so, according to the law of prescription, a right over that bat is
established in your favour, as soon as the period of twenty years end, provided your
possession of bat remained undisturbed i.e. your friend did not ask you for his bat.
The diagram below, simply explains the concept of the easement, wherein residents of House
A have an easement right to use the private path of House B to reach the public road.
Essentials of Sub-section (1):

Note:
After the prescribed period of 20 years (in case of private individual) and 30 years (in case of
Government Land by virtue of section 25(3)), the individual must institute a suit for declaration
of easementary rights under section 34, Specific Relief Act, 1963, for his rights to become
absolute and indefeasible.
Explanation of Section 25
If for any reason, the individual’s peaceful enjoyment of easementary rights is restrained or
discontinued, for a continuous period of 1 year, then such individual cannot claim acquisition
of easement by prescription
Essentials of Sub-section 2: It basically talks about the limitation period for declaring such
easementary right in an individual’s favour.
Section 26. Exclusion in favour of reversioner of servient tenement.
Where any land or water upon, over or from which any easement has been enjoyed or derived
has been held under or by virtue of any interest for life or any term of years exceeding three
years from the granting thereof, the time of the enjoyment of such easement during the
continuance of such interest or term shall be excluded in the computation of the period of
twenty years in case the claim is, within three years next after the determination of such interest
or term, resisted by the person entitled, on such determination, to the said land or water.
Illustration
A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he has
enjoyed the right for twenty-five years; but B shows that during ten of these years C, a Hindu
widow, had a life interest in the land, that on C’s death B became entitled to the land, and that
within two years after C’s death he contested A’s claim to the right. The suit must be dismissed,
as A, with reference to the provisions of this section, has only proved enjoyment for fifteen
years.”
2. Scope
This section corresponds to section 16 of the Indian Easements Act. Where appellant had been
in possession of the property in suit for more than 40 years, had constructed the house therein,
possession was open, continuous hostile for more than 30 years, the appellant would perfect
his title by adverse possession against the State Government and the State would have no right
to recover possession of the property from appellant.
3. Exclusive possession of one co-sharer not adverse to other
The principle of law relating to co-ownership applies with equal force to a transferee from a
co-sharer. A transferee from a co-sharer occupies, in the eye of the law, the same position as
his transferor and by the mere fact of obtaining a transfer in his favour and appropriating to his
own use some of the joint land, he does not acquire title by adverse possession as against his
co-owners.
Where the mutation in favour of the transferee from a co-sharer was effected only in the column
of cultivation and not in the column of ownership it was held that he could not become the sole
owner of the portion purchased by him by adverse possession. The principle that there can be
no adverse possession by one co-owner against another co-owner applies equally to the
transferee from a co-owner. Where a co-sharer is in exclusive possession of land which was
not in excess of his share in entire holding; the co-sharer is entitled to decree for exclusive
possession of land of which he had been dispossessed.
4. Dispossessed co-sharer - right of
Where a co-sharer has been in the enjoyment of the right of exclusive possession of joint
property vis-a-vis the other co-sharers and is actually dispossessed by another co-sharer, he is
entitled to be put back into exclusive possession. The fact that the person (tenant in this case)
dispossessing a cosharer in exclusive possession of the property has since acquired the rights
of a co-sharer in the property will not preclude the dispossessed co-sharer from claiming his
right to exclusive possession.
5. Pleading and proof
Where in a suit for a declaration that the defendants have not acquired any right of easement
of light and air over certain plot, the plaintiff contends that the period during which the tenants
or the plaintiff and their predecessors were occupying the plots should be excluded in
computing the prescriptive period, it is necessary for the plaintiff to plead and prove the leases
and their term and their determination within three years of the suit.
27. Extinguishment of right to property.
At the determination of the period hereby limited to any person for instituting a suit for
possession of any property, his right to such property shall be extinguished.
Possession: The term ‘possession’ is interchangeably used with the term ‘ownership’, but the
two are completely different. It can be said that “not all things we possess is ours and not all
things we own is in our possession”. For example, you may have keys of your friend’s car but
that car belongs to your friend. On the other hand, a house belongs to A, but B lives in it as a
tenant.
Extinguishment: It simply mean the destruction of a right or a contract, making it nullified.
Adverse Possession: If any person possesses any property in adverse to the interest of true
owner and true owner fails to file a suit for recovery of possession within a period of limitation,
then the person in possession becomes owner of property by way of adverse possession.
The said provision is an exception to the general principle of law of limitation and origin of
concept of Adverse possession. It reads as, if a person fails to file suit for recovery of
possession, within a period of limitation, his right to recover the possession of that property
also extinguishes. If such situation occurs, a true owner extinguishes his ownership over the
property. But at the same time property cannot left owner less.
It must be in name of any other person or any other person must be entitled to have right over
it. This situation gives origin to the concept of adverse possession. If any person possesses any
property in adverse to the interest of true owner and true owner fails to file a suit for recovery
of possession within a period of limitation, then the person in possession becomes owner of
property by way of adverse possession.
 EXECUTION OF A DECREE
The litigation consists of three stages, initiation of litigation, adjudication of litigation, and
implementation of litigation. The last stage of litigation, that is the implementation of
litigation is known as an execution. Once a decree or judgment is passed by the court, it is
the obligation of the person against whom the judgment is passed (judgment-debtor), to
give effect to the decree so as to enable the decree-holder to enjoy the benefits of the
judgment.
In simple words “execution” means the process of enforcing or giving effect to the decree or
judgment of the court, by compelling the judgment-debtor to carry out the mandate of the
decree or order and enable the decree-holder to recover the thing granted to him by
judgment.
Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be
called the decree-holder, Y is the judgment-debtor, and the amount of Rs 20,000 is the
judgment- debt. Y is bound to pay Rs 20,000 to X, as the decree is passed against him.
Suppose Y refuses to pay the decretal amount to X, X can recover the said amount by
execution through the judicial process. The principles governing the execution of a decree
or order are given in Section 36 to Section 74 (substantive law) and Order 21 of the code
which provides for procedural law.
• Section 36 Application to orders.
The provisions of this Code relating to the execution of decrees (including provisions
relating to payment under a decree) shall, so far as they are applicable, be deemed to apply
to the execution of orders (including payment under an order).
• Section 37 Definition of Court which passed a decree.

Section 37 of the Code further establishes the scope of the expression “court which passed
a decree” with the object of enabling a decree-holder to recover the fruits of the decree.
The courts which fall within the said expression are as follows:
• The court of the first instance;
• The court which actually passed the decree in case of appellate decrees;
• The court which has jurisdiction to try the suit at the time of execution, if the court of
first instance ceased to exist;
• The court which at the time of execution had jurisdiction to try the suit, if the court of
first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute
the decree, provided that the said court had jurisdiction to try the said suit when the
application for execution was made.
• Section 38 Court by which decree may be executed.
A decree may be executed either by the Court which passed it, or by the Court to which it is
sent for execution.
• Section 39 Transfer of decree.
Section 39 provides that when a decree-holder makes an application to the court of the first
instance to send the decree for execution to another court, the court of first instance may
do the same if any of the following grounds exist:
• if the judgment-debtor carries on business, or resides or personally works for gain,
within the jurisdiction of such Court;
• if the property of judgment-debtor does not come under the jurisdiction of the Court
of the first instance but it comes under the local limits of the jurisdiction of such Court;
• if the decree directs delivery or sale of immovable property situated outside the
jurisdiction of the Court which passed the same;
• if the Court which had passed the decree considers that the decree should be
executed by another court, but it shall record the reasons in writing for doing the
same.
Section 39(2) states that the Court of the first instance may suo motu send it for execution
to any subordinate Court of competent jurisdiction.
Section 39 (3) For the purposes of this section, a Court shall be deemed to be a Court of
competent jurisdiction if, at the time of making the application for the transfer of decree to
it, such Court would have jurisdiction to try the suit in which such decree was passed.
Section 39(4) further states that if the execution of the decree is against a person or
property outside the territorial jurisdiction of the court passing the decree, then such Court
has no power to execute the decree.
• Section 51 Powers of Court to enforce execution.
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.
• Order XXI Rule 11(2) (NOT SO IMPORTANT)

THE COMMERCIAL COURT ACT, 2015

• The Commercial Courts Act, 2015 was introduced by the government to reduce the
pendency of the Commercial Disputes which earlier were dealt with under the category
of regular suits. This step taken by the government has well enabled both domestic and
foreign investors to gain trust in the Indian markets.
• The Commercial Courts Act 2015 came into force on 23rd October 2015, section 2(b)
of the Commercial Courts Act, 2015 says that the Commercial Court is what is defined
under section 3(1) of the said act.
• According to this section, the government may constitute commercial courts at the
District level by noti6fication after consultation with the High Court, Commercial
Disputes having a specific value of fewer than 3 lakhs to come under the jurisdiction
of district courts.
Sec. 2(1)(c) commercial dispute” means
a dispute arising out of––
(i) ordinary transactions of merchants, bankers, financiers and traders such as those
relating to mercantile documents, including enforcement and interpretation of such documents;
(ii) export or import;
(iii) issues relating to maritime law;
(iv) transactions relating to aircraft, aircraft engines, aircraft equipment and helicopters;
(v) carriage of goods;
(vi) construction and infrastructure contracts, including tenders;
(vii) agreements relating to immovable property used exclusively in trade or commerce;
(viii) franchising agreements;
(ix) distribution and licensing agreements;
(x) management and consultancy agreements;
(xi) joint venture agreements;
(xii) shareholders agreements
Explanation:
A commercial dispute shall not cease to be a commercial dispute merely because—
(a) it also involves action for recovery of immovable property or for realisation of monies
out of immovable property given as security or involves any other relief pertaining to
immovable property;
(b) one of the contracting parties is the State or any of its agencies or instrumentalities, or
a private body carrying out public functions;
Sec. 3 Constitution of Commercial Courts
1. The State Government, may after consultation with the concerned High Court, by
notification, constitute such number of Commercial Courts at District level
2. The State Government, by notification, set the local limits of the area to which the
jurisdiction of a Commercial Court shall extend.
3. The 4 [State Government may], with the concurrence of the Chief Justice of the High
Court appoint Judge or Judges.
Sec 3A Designation of Commercial Appellate Courts:
Appellate forum at district
Sec 4. Constitution of Commercial Division of High Court (CD of HC)
(1) The Chief Justice of the High Court may, by order, constitute Commercial Division (at
High Court level) having one or more Benches consisting of a single Judge
(2) The Chief Justice of the High Court shall nominate such Judges of the High Court who
have experience in dealing with commercial disputes to be Judges of the Commercial Division
Sec 5. Constitution of Commercial Appellate Division
(1) the Chief Justice of the concerned High Court shall, by order, constitute Commercial
Appellate Division after constituting CC at district and Commercial division of high court
(2) Will appoint judges
Sec 6. Jurisdiction of CC
The Commercial Court shall have jurisdiction to try all suits and applications relating to a
commercial dispute of a Specified Value.
Sec 7. Jurisdiction of CD of HC
All suits and applications relating to commercial disputes of a Specified Value filed in a High
Court having ordinary original civil jurisdiction
Provided that all suits and applications relating to commercial disputes, shall lie in a court not
inferior to a District Court, and filed or pending on the original side of the High Court, shall be
heard and disposed of by the Commercial Division of the High Court:
Sec 8. Bar against revision application or petition against an interlocutory order
no civil revision application or petition shall be entertained against any interlocutory order of
a Commercial Court, including issue of jurisdiction,
It shall be raised only in an appeal against the decree of the Commercial Court.
Sec 10. Jurisdiction in respect of arbitration matters
The matter is of specified value and:
1. If such arbitration is an international commercial arbitration shall be heard and disposed
of by the CD of HC
2. If such arbitration is other than an international commercial arbitration, but has been
filed on the original side of the High Court then CD of HC will hear and dispose the matter
3. If such arbitration is other than an international commercial arbitration, where
application or appeal lies before principal Civil court then it shall fall within the purview of
Commercial Court.
Sec 11 Bar of jurisdiction of Commercial Courts and Commercial Divisions
A Commercial Court or a Commercial Division shall not entertain or decide any suit,
application or proceedings relating to any commercial dispute in respect of which the
jurisdiction of the civil court is either expressly or impliedly barred under any other law
Sec 12 A Pre-Institution Mediation and Settlement
1. Any suit, other than any urgent interim relief under this Act, shall not be instituted
unless the plaintiff exhausts the remedy of pre-institution mediation.
2. The Central Government may, by notification, authorise Legal Services Authorities
Act, 1987 to conduct such mediation
3. Period of such mediation shall be 3 months
Provided
i. Period can be extended or further 2 months
ii. such mediation period not accounted under limitation period
 4. The settlement reached should be reduced in writing
5. The settlement has the status of an arbitral award under sec 30. Of A&C Act.
Amended from CPC
Section 35 Cost
1. For any commercial dispute, the CC and CD, has the discretion to determine:
(a) whether costs are payable by one party to another;
(b) the quantum of those costs; and
(c) when they are to be paid.
Explanation: What is cost
(i) the fees and expenses of the witnesses incurred;
(ii) legal fees and expenses incurred;
(iii) any other expenses incurred in connection with the proceedings.

2. the general rule is that the unsuccessful party shall be ordered to pay the costs of
the successful party:
3. Consideration before award of cost
(a) the conduct of the parties;
(b) whether a party has succeeded on part of its case
(c) whether the party had made a frivolous
(d) whether any reasonable offer to settle is made by a party
(e) whether instituted a vexatious proceeding wasting the time of the Court.

4. The orders which the Court may make under this provision include an order that a
party must pay––
(a) a proportion of another party’s costs;
(b) a stated amount in respect of another party’s costs;
(c) costs from or until a certain date;
(d) costs incurred before proceedings have begun;
(e) costs relating to particular steps taken in the proceedings;
(f) costs relating to a distinct part of the proceedings; and
(g) interest on costs from or until a certain date.
Order V(1)
Substituting second Proviso
“where the defendant fails to file the written statement within the said period of thirty days, he
shall be allowed to file the written statement on such other day, as may be specified by the
Court, for reasons to be recorded in writing and on payment of such costs, limit is 120 days
from the date of summons”
Order VIII (1)
“where the defendant fails to file the written statement within the said period of thirty days, he
shall be allowed to file the written statement on such other day, as may be specified by the
Court, for reasons to be recorded in writing and on payment of such costs, limit is 120 days
from the date of summons”
Order XV Case Management Hearing
R1. First Case Management Hearing
Within 4 weeks a case management hearing should be undertaken
R2. Orders to be passed
framing the issues---- listing witnesses to be examined by the parties----- fixing the date of of
evidence---- fixing day of the witnesses of the parties to be recorded---- fixing the date written
arguments------fixing the date on which oral arguments--- setting time limits for parties and
their advocates to address oral arguments
R3. Time limit for the completion of a trial
Within 6 months of First case management hearing
R4. Recording of oral evidence on a day-to-day basis
R5. Case Management Hearings during a trial
R6. Powers of the Court in a Case Management Hearing
i. direct parties to file compilations of documents or pleadings relevant and necessary
for framing issues;
ii. extend or shorten the time for compliance
iii. adjourn or bring forward a hearing
iv. direct a party to attend the Court for the purposes of examination under Rule 2 of
Order X; (f)
v. consolidate proceedings; (g)
vi. strike off the name of any witness or evidence that it deems irrelevant to the issues
framed; (h)
vii. direct a separate trial of any issue
viii. decide the order in which issues are to be tried
ix. exclude an issue from consideration;
 x. dismiss or give judgment on a claim after a decision on a preliminary issue;
R7. Adjournment of Case Management Hearing
Cannot be done on sole reason advocate is not present
R8. Consequences of non-compliance with orders.
i. Condone such non-compliance by cost
ii. foreclose the non-compliant party’s right
iii. Dismiss the plaint
 APPEALS UNDER CPC
What is An Appeal?
An appeal is a remedial concept determined as an individual’s right to seek justice against an
unjust decree/order via referring it to a Superior Court.
Types of Appeal:-
1. First Appeal [Section 96, ORDER XLI, Section 107,151]
2. Second Appeal [Section 100-103, ORDER XLII]
3. Appeal from Order [Section 104-106, ORDER XLIII]
4. Appeal to Supreme Court [Section 109 + 112, ORDER XLV]
5. Appeal by Indigent Person [ORDER XLIV]

1. First Appeal [Section 96, ORDER XLI, Section 107,151]

https://blog.ipleaders.in/first-appeals-under-the-code-of-civil-procedure-1908/
Sections 96 to 99A; 107 to 108 & Order 41 of the Code of Civil Procedure, 1908 deal with
appeals from original decrees known as First appeals.
96. Appeal from original decree.—(1) Save where otherwise expressly provided in the body of
this Code or by any other law for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction the Court authorized to hear appeals from
the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed ten thousand rupees.
99. No decree to be reversed or modified for error or irregularity not affecting merits or
jurisdiction. [ORDER 41 RULE 31 DUTY TO PASS SPEAKING ORDER]
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal
on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect
or irregularity in any proceedings in the suit, not affecting the merits of the case or the
jurisdiction of the Court.
[Provided that nothing in this section shall apply to non-joinder of a necessary party.]

ORDER 41 RULES
1. Form of appeal What to accompany memorandum.—(1) Every appeal shall be preferred in
the form of a memorandum signed by the appellant or his pleader and presented to the Court
or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a
copy of the 1 [Judgment].
[3A. Application for condonation of delay.—(1) When an appeal is presented after the expiry
of the period of limitation specified therefore, it shall be accompanied by an application
supported by affidavit setting forth the facts on which the appellant relies to satisfy the Court
that he had sufficient cause for not preferring the appeal within such period.
5. Stay by Appellate Court.—(I) 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.
107. Powers of Appellate Court.—
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power—
(a) to determine a case finally;
(b) to remand a case; [as per Order 41 rule 23 it is Appealable under Rule 1 order 43]
(c) to frame issues and refer them for trial; [Order 41 Rule 25
Not Appealable under Order 43. They are final order only they can be reconsidered.]
(d) to take additional evidence or to require such evidence to be taken. [Exception to the rule
that the appellate courts do not take additional evidence. However, if the court thinks fit and is
satisfied with the fact that evidence was not examined or need re-examination then it shall do
the same under the same clause.
Order 41 Rule 27.]
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein. [Order 41 Rule 33 Inherent Powers to
the appellate court.

2. Second Appeal [Section 100-103, ORDER XLII]

“100. Second appeal:

(1) Save as otherwise expressly provided in the body of this Code or by any other law for
the time being in force, an appeal shall lie to the High Court from every decree passed in appeal
by any Court subordinate to the High Court, if the High Court is satisfied that the case involves
a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any
case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this subsection shall be deemed to take away or abridge the power of
the Court to hear, for reasons to be recorded, the appeal on any other substantial question of
law, not formulated by it, if it is satisfied that the case involves such question.”

Section 101 reads as “Second appeal on no other grounds— No second appeal shall lie except
on the ground mentioned in section 100.” therefore, it specifically bars the second appeal on
any other ground mentioned in Section 100. The grounds on which a Second Appeal shall lie
are:
(i) that the appeal should involve a substantial question of law that may either be presented by
the party in a memorandum of appeal or the court may itself formulate such question;
(ii) that the second appeal may be brought forth where the decree was passed ex parte.
Substantial Question of Law:
A Second Appeal can only be entertained if it involves a substantial question of law. The
expression is not defined in the Code, however, the Supreme Court in Sir Chunilal V. Mehta
And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd. laid down that “The
proper test for determining whether a question of law raised in the case is substantial would, in
our opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question in
the sense that it is not finally settled by this Court or by the Privy Council or by the Federal
Court or is not free from difficulty or call for discussion of alternative views.”
Question of fact:
The general rule is that the High Court shall only entertain matters involving a substantial
question of law but Section 103 serves a supplementary to this.
Section 103 states: “Power of High Court to determine issues of fact— In any second appeal,
the High Court may, if the evidence on the record is sufficient, determine any issue necessary
for the disposal of the appeal,—
(a) which has not been determined by the lower Appellate Court or both by the Court of the
first instance and the lower Appellate Court, or
(b) which has been wrongly determined by such Court or Courts reason of a decision on such
question of law as is referred to in section 100.”
No Second Appeal in certain cases:
Section 102 reads as “No second appeal in certain suits – No second appeal shall lie in any suit
of the nature cognizable by Courts of Small Causes when the amount or value of the subject-
matter of the original suit does not exceed twenty-five thousand rupees.”

3. Appeal from Order [Section 104-106, ORDER XLIII]

104. Orders from which appeal lies. [ORDER 43 RULE 1] — (1) An appeal shall lie from the
following orders, and save as otherwise expressly provided in the body of this Code or by any
law for the time being in force, from no other orders.
105. Other orders. — (1) Save as otherwise expressly provided, no appeal shall lie from any
order made by a Court in the exercise of its original or appellate jurisdiction; but where a decree
is appealed from, any error, defect or irregularity in any order, affecting the decision of the
case, may be set forth as a ground of objection in the memorandum of appeal.
[1A. Right to challenge non-appealable orders in appeal against decrees.—(1) Where any order
is made under this Code against a party and thereupon any judgment is pronounced against
such party and a decree is drawn up, such party may, in an appeal against the decree, contend
that such order should not have been made and the judgment should not have been pronounced.
106. What Courts to hear appeals. — Where an appeal from any order is allowed it shall lie to
the Court to which an appeal would lie from the decree in the suit in which such order was
made, or where such order is made by a Court (not being a High Court) in the exercise of
appellate jurisdiction, then to the High Court.

4. Appeal to Supreme Court [Section 109 + 112, ORDER XLV]

Section 109 When appeals lie to the Supreme Court

Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may,
from time to time, be made by the Supreme Court regarding appeals from the Courts of India,
and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any
judgment, decree or final order in a civil proceeding of a High Court, if the High Court
certifies—

(i) that the case involves a substantial question of law of general importance; and
(ii) that in the opinion of the High Court the said question needs to be decided by the
Supreme Court.

Section 112 Savings (1) Nothing contained in this Code shall be deemed—
(a) to affect the powers of the Supreme Court under article 136 or any other provision of the
Constitution; or
(b) to interfere with any rules made by the Supreme Court, and for the time being in force for
the presentation of appeals to that Court, or their conduct before that Court.
ORDER 45 (RELEVANT RULES)
3. Certificate as to value or fitness. —5 [(1) Every petition shall state the grounds of appeal and
pray for a certificate— (i) that the case involves a substantial question of law of general
importance, and (ii) that in the opinion of the Court the said question needs to be decided by
the Supreme Court.] (2) Upon receipt of such petition, the Court shall direct notice to be served
on the opposite party to show cause why the said certificate should not be granted.
7. Security and deposit required on grant of certificate
13. Powers of Court pending appeal
(1) Notwithstanding the grant of a certificate for the admission of any appeal, the decree
appealed from shall be unconditionally executed, unless the Court otherwise directs.
(2) The Court may, if it thinks fit, on special cause shown by any party interested in the suit,
or otherwise appearing to the Court,—
(a) impound any movable property in dispute or any part thereof, or
(b) allow the decree appealed from to be executed, taking such security from the respondent as
the Court thinks fit for the due performance of any order which 1 [the Supreme Court] may
make on the appeal, or
(c) stay the execution of the decree appealed from, taking such security from the appellant as
the Court thinks fit for the due performance of the decree appealed from, or of 2 [any decree
or order] which 1 [the Supreme Court] may make on the appeal, or
(d) place any party seeking the assistance of the Court under such conditions or give such other
direction respecting the subject-matter of the appeal, as it thinks fit, by the appointment of a
receiver or otherwise.

5. Appeal by Indigent Person [ORDER XLIV]

The following appeal is subject to the provisions of ORDER XXXIII i.e. suits by indigent
persons.
3 Rules Under Order 44
1. Order 44 Rule 1 says that if any person entitled to prefer an appeal, who is unable to pay
Court fees required for Memorandum of appeal, may present an application accompanied by a
memorandum of appeal, and may be allowed to appeal as an indigent person.
2. Where an application is rejected under Rule 1 does not mean that the Memorandum of appeal
also rejected. Here it only means that the court is not satisfied with the claim of the applicant
that he is an indigent person and nothing more. Rule 2 empowers the court to grant the time to
the applicant for payment of the court fees within such time as may be fixed by the court or
extended by it from time to time.
3. Under Rule 3 if the appellant was allowed to sue as an indigent person in trial court, then no
fresh inquiry is necessary if the applicant files an affidavit to the effect that he has not ceased
to be an indigent person since the date of the decree appealed from. However, if the government
pleader or the respondent disputes the truth of the statement made in such affidavit, inquiry as
to whether or not the applicant is an indigent person shall be held by the appellate court, or
under its order by an officer of that court.
And in second situation, where the applicant alleged that he became an indigent person
after the date of the decree appealed from, the enquiry into the means of the applicant shall be
made by the appellate court or under its order by an officer of that code, or by the trial court if
appellate court considers it necessary in the circumstances of the case.
107. Powers of Appellate Court.
(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall
have power—
(a) to determine a case finally;
(b) to remand a case; [ORDER 41 RULE 23]
(c) to frame issues and refer them for trial; [Order 41 Rule 25 Not Appealable under Order 43.
They are final order only they can be reconsidered.]
(d) to take additional evidence or to require such evidence to be taken. [Exception to the rule
that the appellate courts do not take additional evidence. However, if the court thinks fit and is
satisfied with the fact that evidence was not examined or need re-examination then it shall do
the same under the same clause.
Order 41 Rule 27.]
(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as
nearly as may be the same duties as are conferred and imposed by this Code on Courts of
original jurisdiction in respect of suits instituted therein. [Order 41 Rule 33 Inherent Powers to
the appellate court.]

6. REFERENCE UNDER CPC [SECTION 113 R/W ORDER XLVI]

Section 113 Reference to High Court

Subject to such conditions and limitations as may be prescribed, any Court may state a case
and refer the same for the opinion of the High Court, and the High Court may make such
order thereon as it thinks fit.
Provided that Such Reference can only be made

1. When the matter is pending before the Court

2. It Involves any question regarding the validity of any Act, Ordinance or Regulation or
of any provision contained in an Act, Ordinance or Regulation.
3. Such provisions must be necessary for determination of the case.
4. The Court is of the opinion that the such Act, Ordinance, Regulation or provision is
invalid or inoperative, but has not been so declared by the High Court to which that Court is
subordinate or by the Supreme Court.

ORDER 46
Rule 1 Reference of question to High Court
Where, before or on the hearing of a suit or
an appeal in which the decree is not subject to appeal, or
where, in the execution of any such decree, any question of law or usage having the force of
law arises, on which the Court trying the suit or appeal, or executing the decree, entertains
reasonable doubt.
The Court may, either of its own motion or on the application of any of the parties, draw up
a statement of the facts of the case and the point on which doubt is entertained, and refer such
statement with its own opinion on the point for the decision of the High Court.
Rule 2 Court may pass decree contingent upon decision of High Court
Rule 3 Judgment of High Court to be transmitted and case disposed of accordingly
Rule 5 Power to alter, etc., decree of Court making reference
When Reference is made to the HC it can either

1. Dismiss the reference.

2. Accept and Give answer of the doubts
3. Accept and Give Answer not only to the question asked but also other question that it
deems fit.

7. Review UNDER CPC [SECTION 114 R/W Order XLVII (47)]

Section 114 of Civil Procedure Code defines the provision of review. In case of review, the
party who is not happy or aggrieved with the order of the court can file an application for
review in the same court which has passed the decree. This provision has been made so as to
facilitate the court to review their own decree or judgement and rectify the same in case any
error has been made while passing the judgement.
Section 114 r/w Order 47 of the CPC defines the procedure to be followed in case of review.
In the following situation, the application for review can be filed by the parties:
1. The decree or judgement is appealable however, no appeal has been preferred under the
law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or
judgement.
3. The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:
1. Where there are new discoveries of the facts, which were not in knowledge or could
not produce at the time of passing of decree due to ignorance.
2. In case, the error is found on the face of the record and does not require the argument
of the entire case again. These errors are not related to wrong decisions made by the court.
3. Any other case, in which case the delusion of the court can be considered as sufficient
ground.
Time limit: Article 124 of Limitation Act provided that once the decree or order is passed,
parties shall file the application within 30 days from the date of passing such decree. The decree
or order which is passed after review shall be final and binding to the parties.

8. Revision Under CPC [Section 115]

If we go to the literal meaning, “to revise” stands for “to look again” or “to look repeatedly at”
or “to go through a matter carefully and correct where necessary”. The High Court has been
empowered with the revisional jurisdiction under section 115 of the Code of Civil
Procedure,1908.
The object behind empowering the High Court with revisional jurisdiction is to prevent
arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section 115
the High Court is empowered to keep an eye on the proceedings of subordinate courts that the
proceedings are being conducted in accordance with the law, under its jurisdiction for which it
is bound for and in furtherance of justice.

9. Conditions

Section 115 of the Code of Civil Procedure Code lays down all the conditions when the
High Court can exercise its revisional jurisdiction either suo moto or an revision
application only when:

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.

The High Court is not entitled to vary or reverse the order or decision of the subordinate court
unless such order is in favour of the party who has applied for revision. Also, the revisional
jurisdiction is not to be exercised if in that matter appeal lies to the High Court.
So, by analysing section 115, we can observe that the revision is done mainly on jurisdictional
errors by the subordinate Court.
(2) The High Court shall not, under this section, vary or reverse any decree or order against
which an appeal lies either to the High Court or to any Court subordinate thereto
The limitation period for Revision
According to article 131 of the Limitation Act, 1963 for a revision of the decree or order, the
limitation period is 90 days. The revision application is required to be made before the High
Court within the limitation period.
 SPECIFIC SUITS UNDER CPC
SUITS INVOLVING INTERPRETATION OF CONSTITUTION (ORDER XVIIA)

1. Notice to the Attorney General or the Advocate-General.

In any suit in which it appears to the Court that a substantial question of law of interpretation
of constitution is involved on any such question as is referred to [in clause (1) of Article 132,
read with Article 147 of the Constitution, is involved, the Court shall not proceed to determine
that question until after notice has been given to the Attorney General for India if the question
of law concerns the Central Government and to the Advocate-General of the State if the
question of law concerns a State Government.

2. Court may add Government as a party

The Court may at any stage of the proceedings order that the Central Government or a State
Government shall be added as a defendant in any suit involving substantial question, if [the
Attorney General for India] or the Advocate-General of the State, as the case may be, whether
upon receipt of notice under rule 1, or otherwise, applies for such addition and the Court is
satisfied that such addition is necessary or desirable for the satisfactory determination of the
question of law involved.
 SUITS BY OR AGAINST ALIENS, FOREIGN RULES ETC. (Section 83-87A)
Section 83. When aliens may sue.
Alien enemies residing in India with the permission of the Central Government, and alien
friends, may sue in any Court otherwise competent to try the suit, as if they were citizens, but
alien enemies residing in India or elsewhere without such permission, shall not sue in any such
Court.
Section 84. When foreign States may sue.
A foreign State may sue in any competent Court.
Provided that the object of the suit is to enforce a private right vested in the Ruler of such State
or in any officer of such State in his public capacity.
Section 87-
(a) “foreign State” means any State outside India which has been recognised by the Central
Government; and
(b) “Ruler”, in relation to a foreign State, means the person who is for the time being recognized
by the Central Government to be the head of that State.
Section 85. Persons specially appointed by Government to prosecute or defend on behalf
of foreign Rulers.
(1) The Central Government may, at the request of the Ruler of a foreign State or at the request
of any person competent in the opinion of the Central Government to act on behalf of such
Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler.
(2) An appointment under this section may be made for the purpose of a specified suit or of all
such suits as it may from time to time be necessary to prosecute or defend on behalf of such
Ruler.
(3) A person appointed under this section may authorize or appoint any other persons to make
appearances and applications and do acts in any such suit or suits as if he were himself a party
thereto.
Section 86. Suits against foreign Rulers, Ambassadors and Envoys.
(1) No foreign State may be sued in any Court otherwise competent to try the suit except with
the consent of the Central Government certified in writing by a Secretary to that Government.
(2) Such consent may be given with respect to a specified suit or to several specified suits or
with respect to all suits in which the foreign State may be sued, but it shall not be given, unless
it appears to the Central Government that [the foreign State]—
(a) has instituted a suit in the Court against the person desiring to sue, or
(b) by itself or another, trades within the local limits of the jurisdiction of the Court, or
(c) is in possession of immovable property situate within those limits and is to be sued with
reference to such property or for money charged thereon, or
(d) has expressly or impliedly waived the privilege accorded by this section.
(4) The preceding provisions of this section shall apply in relation to—
- any ruler of a foreign State
- any Ambassador or Envoy of a foreign State
- any High Commissioner of a Commonwealth country
- any such member of the staff
(5) they all cannot be arrested u/ this code
(6) opportunity of being heard to the person making such request
SUITS BY OR AGAINST SOLDIERS, SAILORS OR AIRMEN (ORDER XXVIII)
1. Officers, soldiers, sailors or airmen who cannot obtain leave may authorise any person
to sue or defend for them.
(1) Where any officer is a party to a suit, and cannot obtain leave of absence for the purpose
of prosecuting or defending the suit in person, he may authorize any person to sue or defend
in his stead.
(2) The authority shall be in writing and shall be signed by the officer in the presence of
(a) his commanding officer, or the next subordinate officer, if the party is himself the
commanding officer, or
(b) where the officer is serving in military, naval, or air force staff employment, the head or
other superior officer of the office in which he is employed.
(3) When so filed the countersignature shall be sufficient proof that the authority was duly
executed, and that the officer could not obtain leave of absence for the purpose of prosecuting
of defending the suit in person.
2. Person so authorised may act personally or appoint pleader
SUITS BY OR AGAINST CORPORATIONS (ORDER XXIX)

1. Subscription and verification of pleading.

In suits by or against a corporation, any pleading may be signed and verified on behalf of the
corporation by the secretary or by any director or other principal officer of the corporation who
is able to depose to the facts of the case.

2. Service on corporation.
Where the suit is against a corporation, the summons may be served—
(a) on the secretary, or on any director, or other principal officer of the corporation, or
(b) by leaving it or sending it by post addressed to the corporation at the registered office, or if
there is no registered office then at the place where the corporation carries on business.

3. Power to require personal attendance of officer of corporation.

The Court may, at any stage of the suit, require the personal appearance of the secretary or of
any director, or other principal officer of the corporation who may be able to answer material
questions relating to the suit.
SUITS BY OR AGAINST FIRMS (ORDER XXX)
1. Suing of partners in name of firm.
(1) Any two or more persons claiming or being liable as partners and carrying on business
may sue or be sued in the name of the firm (if any) of which such persons were partners at the
time of the accruing of the cause of action.
(2) Signing and verifying of pleading by any one of such persons suing/ being sued will suffice.
2. Disclosure of partners’ names.
(1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader
shall, on demand in writing by or on behalf of any defendant, forthwith declare in writing the
names and places of residence of all the persons constituting the firm on whose behalf the suit
is instituted.
(2) if fail, suit will be stayed.
3. Service.
Where persons are sued as partners in the name of their firm, the summons shall be served
either—
(a) upon any one or more of the partners, or
(b) at the principal place at which the partnership business is carried on within India upon any
person having, at the time of service, the control or management of the partnership business
4. Rights of suit on death of partner.
(1) Where two or more persons may sue or be sued in the name of a firm under the foregoing
provisions and any of such persons dies, whether before the institution or during the pendency
of any suit, it shall not be necessary to join the legal representative of the deceased as a party
to the suit.
(2) unless he has a claim or a right
6. Appearance of partners.
Where persons are sued as partners in the name of their firm, they shall appear individually
in their own names, but all subsequent proceedings shall, nevertheless, continue in the name
of the firm.
7. No appearance necessary except by partners
9. Suits between co-partners.
This Order shall apply to suits between a firm and one or more of the partners therein and to
suits between firms having one or more partners in common.

SUITS RELATING PUBLIC NUISANCE

91. Public nuisances and other wrongful acts affecting the public.
(1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public,
a suit for a declaration and injunction or for such other relief as may be appropriate in the
circumstances of the case, may be instituted,—
(a) by the Advocate-General, or
(b) with the leave of the Court, by two or more persons, even though no special damage has
been caused to such persons.
(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which
may exist independently of its provisions.
SUITS RELATING TO PUBLIC CHARITIES
Section 92. Public charities.
(1) In the case of any alleged breach of any express or constructive trust created for public
purposes of a charitable or religious nature, the Advocate-General, or two or more persons
having an interest in the trust and having obtained the leave of the Court, may institute a suit,
whether contentious or not, in the principal Civil Court of original jurisdiction or in any other
Court empowered by the State Government within the local limits of whose jurisdiction the
trust is situated to obtain a decree:—
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated
to any particular object of the trust.
 SUIT BY OR AGAINST THE GOVERNMENT OR PUBLIC OFFICERS (SECTION
79-82 r/w Order XXVII)
Section 79. Suits by or against Government.
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as
the case may be, shall be—
(a) in the case of a suit by or against the Central Government, [the Union of India], and
(b) in the case of a suit by or against a State Government, the State.
Section 80. Notice.
(1) No suits shall be instituted against the Government or against a public officer in respect of
any act purporting to be done by such public officer in his official capacity, until the expiration
of two months next after notice in writing has been delivered to, or left at the office of the
Secretary of the Respective Govts. or public officer stating the cause of action, the name,
description and place of residence of the plaintiff and the relief which he claims; and the plaint
shall contain a statement that such notice has been so delivered or left.
(2) A suit to obtain an urgent or immediate relief against the Government or any public officer
in respect of any act purporting to be done by such public officer in his official capacity, may
be instituted, with the leave of the Court, without serving any notice but no relief shall be
granted by the Court after giving a reasonable opportunity of showing cause.
(3) No suit instituted against govt. or public officer shall be dismissed merely by reason of any
minor error or defect in the notice.
Section 81. Exemption from arrest and personal appearance.
In a suit instituted against a public officer in respect of any act purporting to be done by him
in his official capacity—
(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in
execution of a decree, and,
(b) where the Court is satisfied that the defendant cannot absent himself from his duty without
detriment to the public service, it shall exempt him from appearing in person.
Section 82 Execution of degrees.
Execution shall not be issued on any such decree unless it remains unsatisfied for the period of
three months computed from the date of such decree.
SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS
(ORDER XXXI)

1. Representation of beneficiaries in suits concerning property vested in trustees etc.

In all suits concerning property vested in a trustee, executor or administrator, where the
contention is between the persons beneficially interested in such property and a third person,
the trustee, executor or Administrator shall represent the persons so interested, and it shall not
ordinarily be necessary to make them parties to the suit.

2. Joinder of trustees, executors and administrators.

Where there are several trustees, executors or administrators, they shall all be made parties
to a suit against one or more of them.

3. Husband of married executrix not to join.

Unless the Court directs otherwise, the husband of a married trustee, administratrix or
executrix shall not as such be a party to a suit by or against her.
SUITS RELATING TO MATTER CONCERNING THE FAMILY (ORDER XXXIIA)
1. Application of the Order.
(1) The provisions of this Order shall apply to suits or proceedings relating to matters
concerning the family.
(2) The provisions of this Order shall apply to the following suits or proceedings concerning
the family, namely:
(a) Matrimonial relief, including a suit or proceedings for declaration as to the validity of a
marriage or as to the matrimonial status of any person;
(b) Declaration as to legitimacy of any person;
(c) Guardianship of the person or the custody of any minor or other member of the family,
under a disability;
(d) Maintenance;
(e) Validity or effect of an adoption;
(f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and
succession;
(g) a suit or proceeding relating to any other matter concerning the family in respect of which
the parties are subject to their personal law.
2. Proceedings to be held in camera- if court/parties desire
3. Duty of Court to make efforts for settlement
5. Duty to inquire into facts
 Interpleader Suit
1. Meaning and Definition
• It is defined in section 88 and order 35 of CPC.

• When the plaintiff on behalf of defendant filed a suit in the court for choosing the actual
owner of the property, then it is called interpleader suit.

• When the plaintiff is not the real owner of the property he file the suit to know the real
owner.

• In an interpleader suit, there were many defendants to claim the property.

Example- A- Plaintiff B- Defendant

A found a box . B and C both claimed the property. Then here A file a suit in the court to decide the
actual owner of the property.

2. Conditions
Section 88 define where on in which condition interpleader suit may be instituted.

1-) debt, assets, property in the dispute is either movable or immovable .

2-) There are two defendants in the action.

3-) But the defendants are entitled to demand the property.

4-) For any interest the person who has to pay the debt, to the defendants is not legitimate.

5-) The compliment is able to pay the defendant the debt, or any sum of money or property .

6-) Suit in this are not pending .

7-) if the judgment is issued in res judicata this suit can not be filed twice.

Here the plaintiff has no interest in the case and who is ready to pay or deliver the property to the real
owner.

3. How to file an interpleader suit?

4. The suit can only be filed by the plaintiff and the plaintiff can be a bank in any subject-
matter of interpleader suit. No landlord can sue to his tenant or no family member can sue
the defendant.

5. All the things are kept in the custody of the court

6. There were many defendants in the interpleader suit

7. An Interpleader suit is filed in the subject-matter of debt, money, property, movable or

immovable property.
 8. The plaintiff from whom the property is claimed, must not claim other charges or cost who is
ready to pay or deliver it to the rightful claimant.

9. Who can not file the suit ?

Defendant can not file the interpleader suit defendants claims the property from the plaintiff.

10. Interpleader suit by tenant

No agent can sue their principle and no tenants can sue there land lord.

11. Order 35
Plaintiff in interpleader suit (Rule-1)
In every suit of interpleader the plaintiff shall mention all the nessecary statement and mention other
thing like

1-) that the plaintiff claim no interest in the subject matter he only pay the cost of the court.

2-) All defendants claim the property separately .

3-) There is no collusion between the plaintiff and any of the defendants.

Procedure of first hearing

a-) court declare that the plaintiff discharge from all his duty related to the case and awarded him his
cost.

b-) if court satisfies that for justice all parties of the suit will required then the court will not discharge
any party.

c-) issued framed between the parties be framed and tried.

d-) that any claimed be made a plaintiff and the suit try in ordinary manner.

Rule-5 agent and tenant may not Institute interpleader suit.

– agent shall not sue against their principal or

– tenants shall not sue against their landlord.

Example- A deposite a box with b as his agent callges that the were wrongfully obtained from him by
b can not institute an interpleader suit.

Ranjan Sharma and other vs labh singh other ( may 6 2011)

It’s was held in the case that tenant and agent shall not file interpleader suit against their land lord.

Change for plaintiff case (rule-6)

After the suit is property Instituted then can’t may provide the cost to plaintiff by giving him change
on the thing chained.

Power to order Interim sale (rule-6)

Court have the power to interim sale. If court satisfies that it is nesscarry to order interimsale of any
movable property which is subject to speedy and natural decay then
also court may under to interim sale on if there reasonable ground to sale then also court under
intermisale .

Situation where court order interim sale-

1-) if court satisfies that the sale is necessary

2-) if the property subject to speedy and natural decay

3-) if there is reasonable ground to sale.

 Summary suit or summary procedure
12. Introduction
• Summary suit or summary procedure is given in order XXXVII (37) of the Code of Civil
Procedure, 1908.

• Summary procedure is a legal procedure used for enforcing a right that takes effect faster
and more efficiently than ordinary methods.

• Its object is to summarise the procedure of suits in case the defendant is not having any
defence.

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

14. The procedure under a Summary suit

a) A summary suit is initiated by presenting the plaint in the appropriate civil court.

b) After the filing of a summary suit, a copy of the plaint and summons must be sent to the defendant
in the recommended format.

c) The defendant will present himself in person or by pleader within 10 days from the order of
summons.

d) The plaintiff shall serve the defendant a summons for judgment, if he presents himself before the
court

e) The defendant has to file an application for leave to defend within 10 days from the order of such
summons.

f) Leave to defend may be acknowledged by the court unconditionally or with any conditions, which
the court may think to be just and lawful.

g) If a defendant has not made an application for leave or such an application has been dismissed or
if the defendant does not comply with the conditions based on which the leave was granted, the
plaintiff is entitled to judgment forthwith.

15. 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.

16. 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.

17. Can a summary suit be tried after the institution of an ordinary suit
on the same cause of action?
According to section 10 of the CPC, a court cannot proceed with the trial of a suit in which the matter
in issue is also directly and substantially in issue in a previously instituted suit between the same
parties. It is called the principle of res sub-judice.The provision contained in the section is mandatory
and no discretion is left with the court.

However, the word trial, in this case, has not been used in its widest sense. The concept of res sub-
judice is not applicable to subsequently instituted summary suits.

The Court or the Judge dealing with the summary suit can proceed up to the stage of hearing the
summons for judgment. Judgment can also be passed in favor of the plaintiff if:-

(a) The defendant has not applied for leave to defend or if such application has been made and
refused, or,

(b) The defendant who is permitted to defend fails to comply with the conditions on which leave to
defend is granted.

18. When a leave to defend is granted

The following principles are applicable in the matter of grant or refusal of leave to defend in summary
suits:

(a) If the defendant satisfies the court that he has a substantial defence, the defendant is entitled to
an unconditional leave of appeal.

(b) If the defendant raises triable issues indicating that he has a fair or reasonable defence, although
not a positively good defence, the defendant is ordinarily entitled to unconditional leave to defend.

(c) Even if the defendant raises triable issues, if a doubt is left with trial judge about the defendant’s
good faith, conditional leave to defend is granted.

(d) If the defendant raises a defence which is plausible but improbable, the trial judge may grant
conditional leave to defend with conditions as to time or mode of trial, as well as payment into court,
or furnishing security.
(e) If the defendant has no substantial defence and raises no genuine triable issue, then no leave to
defend is granted.

(f) Where part of the amount claimed by the plaintiff is admitted by the defendant to be due from
him, leave to defend shall not be granted unless the amount so admitted to be due is deposited by
the defendant in Court.

19. 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.

20. Setting aside decree in summary suits

In the CPC, rule 13 of order IX deals with setting aside the ex parte decree. The defendant has to satisfy
the court that the summons was not duly served or he was prevented by any sufficient cause from
appearing in the hearing. Rule 4 of Order 37 specifically provides for setting aside the decree

21. Difference between sufficient cause and special circumstances

For setting aside ex parte decree in an ordinary suit, the defendant has to satisfy the court
with sufficient cause for his non-appearance. In summary suits, the ex parte decree may be set aside
if the defendant shows special circumstances.

The reasons offered by the defendant to explain the special circumstances should be such that he had
no possibility of appearing before the Court on a relevant day. For instance, there was a strike and all
the buses were withdrawn and there was no other mode of transport. This may constitute “special
circumstances”. But if he were to plead that he missed the bus he wanted to board and consequently
he could not appear before the Court. It may constitute a ‘sufficient cause’, but not a ‘special
circumstance’.
22. How summary suits are different from ordinary suits

23. Why summary suits?

The summary procedure prevents unreasonable obstructions by the defendant who has no defence.
It assists expeditious disposal of cases. Unless the defendant is able to demonstrate that he has a
substantial defence in his case, the plaintiff is entitled to a judgment forthwith.

SUITS BY OR AGAINST MINOR OR LUNATICS (ORDER XXXII)

1. Minor to sue by next friend.—Every suit by a minor shall be instituted in his name by a
person who in such suit shall be called the next friend of the minor.
2. Where suit is instituted without next friend, plaint to be taken off the file.—Where a suit is
instituted by or on behalf of a minor without a next friend, the defendant may apply to have the
plaint taken off the file, with costs to be paid by the pleader or other person by whom it was
presented.
2A. Security to be furnished by next friend when so ordered.—(1) Where a suit has been
instituted on behalf of the minor by his next friend, the Court may, at any stage of the suit,
either of its own motion or on the application of any defendant, and for reasons to be recorded,
order the next friend to give security for the payment of all costs incurred or likely to be
incurred by the defendant.
3. Guardian for the suit to be appointed by Court for minor defendants.—(1) Where the
defendant is a minor the Court, on being satisfied of the fact of his minority, shall appoint a
proper person to be guardian for the suit for such minor.
(2) An order for the appointment of a guardian for the suit may be obtained upon application
in the name and on behalf of the minor or by the plaintiff.
(3) Such application shall be supported by an affidavit verifying the fact that the proposed
guardian has no interest in the matters in controversy in the suit adverse to that of the minor
and that he is a fit person to be so appointed.
3A. Decree against minor not to be set aside unless prejudice has been caused to his interests.—
No decree passed against a minor shall be set aside merely on the ground that the next friend
or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to
that of the minor, but the fact that by reasons of such adverse interest of the next friend or
guardian for the suit, prejudice has been caused to the interests of the minor, shall be a ground
for setting aside the decree.
4. Who may act as next friend or be appointed guardian for the suit—(1) Any person who is of
sound mind and has attained majority may act as next friend of a minor or as his guardian for
the suit: Provided that the interest of such person is not adverse to that of the minor and that he
is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a
plaintiff.
(2) Where a minor has a guardian appointed or declared by competent authority, no person
other than such guardian shall act as the next friend of the minor unless the Court orders
(3) No person shall without his consent in writing be appointed guardian for the suit.
(4) Where there is no other person fit and willing to act as guardian for the suit, the Court may
appoint any of its officers to be such guardian.
6. Receipt by next friend or guardian for the suit of property under decree for minor.—(1) A
next friend or guardian for the suit shall not, without the leave of the Court, receive any money
or other movable property on behalf of a minor either—
(a) by way of compromise before decree or order, or
(b) under a decree or order in favor of the minor.
7. Agreement or compromise by next friend or guardian for the suit.— No next friend or
guardian for the suit shall, without the leave of the Court, expressly recorded in the proceedings,
enter into any agreement or compromise on behalf of a minor with reference to the suit in which
he acts as next friend or guardian.
8. Retirement of next friend.—(1) Unless otherwise ordered by the Court, a next friend shall
not retire without first procuring a fit person to be put in this place, and giving security for the
costs already incurred.
(2) The application for the appointment of a new next friend shall be supported by an affidavit
showing the fitness of the person proposed and also that he has no interest adverse to that of
the minor.
9. Removal of next friend.—Where the interest of the next friend of a minor is adverse to that
of the minor or where he is so connected with a defendant whose interest is adverse to that of
the minor as to make it unlikely that the minor's interest will be properly protected by him, or
where he does not do his duty, or, during the pendency of the suit, ceases to reside within India,
or for any other sufficient cause, application, may be made on behalf of the minor or by a
defendant for his removal; and the Court, if satisfied of the sufficiency of the cause assigned,
may order the next friend to be removed accordingly, and make such other order as to costs as
it thinks fit.
10. Stay of proceedings on removal, etc., of next friend.— On the retirement, removal or death
of the next friend of a minor, further proceedings shall be stayed until the appointment of a
next friend in his place.
11. Retirement, removal or death of guardian for the suit.—(/) Where the guardian for the suit
desires to retire or does not do his duty, or where other sufficient ground is made to appear, the
Court may permit such guardian to retire or may remove him, and may make such order as to
costs as it thinks fit.
(2) Where the guardian for the suit, retires, dies or is removed by the Court during the pendency
of the suit, the Court shall appoint a new guardian in his place

SUITS BY INDIGENT PERSONS (ORDER XXXIII)

1. Suits may be instituted by indigent persons.—Subject to the following provisions, any suit
may be instituted by an indigent person.
1A. Inquiry into the means of an indigent person.—Every inquiry into the question whether or
not a person is an indigent person shall be made, in the first instance, by the chief ministerial
officer
2. Contents of application.—Every application for permission to sue as an indigent person shall
contain the particulars required in regard to plaints in suits: a schedule of any movable or
immovable property belonging to the applicant, with the estimated value thereof, shall be
annexed thereto; and it shall be signed and verified in the manner prescribed for the signing
and verification of pleadings.
3. Presentation of application.—The application shall be presented to the Court by the applicant
in person, unless he is exempted from appearing in Court, in which case the application may
be presented by an authorized agent who can answer all material questions relating to the
application.
4. Examination of applicant.—Where the application is in proper form and duly presented, the
Court may, if it thinks fit, examine the applicant, or his agent regarding the merits of the claim
and the property of the applicant.
5. Rejection of application.—The Court shall reject an application for permission to use as 2
[an indigent person]—
(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or
(b) where the applicant is not [an indigent person], or
(c) where his allegations do not show a cause of action, or
(d) where he has entered into any agreement with reference to the subject-matter of the
proposed suit under which any other person has obtained an interest in such subject-matter
6. Notice of day for receiving evidence of applicant’s indigency.—Where the Court sees no
reason to reject the application on any of the grounds stated in rule 5, it shall fix a day for
receiving such evidence as the applicant may adduce in proof of his indigency, and for hearing
any evidence which may be adduced in disproof thereof.
7. Procedure at hearing.—(1) On the day so fixed, the Court shall examine the witnesses (if
any) produced by either party, and may examine the applicant or his agent, and shall record
evidence.
(2) The Court shall then either allow or refuse to allow the applicant to sue as
[an indigent person].
9. Withdrawal of permission to sue as an indigent person.—The Court may, on the application
of the defendant, or of the Government pleader, of which seven days, clear notice in writing
has been given to the plaintiff, order that the permission granted to the plaintiff to sue as an
indigent person be withdrawn—
(a) if he is guilty of vexatious or improper conduct in the course of the suit;
(b) if it appears that his means are such that he ought not to continue to sue as [an indigent
person]; or
(c) if he has entered into any agreement with reference to the subject-matter of the suit under
which any other person has obtained an interest in such subject-matter.
11. Procedure where indigent person fails.—Where the plaintiff fails in the suit or the
permission granted to him to sue as an indigent person has been withdrawn, or where the suit
is withdrawn or dismissed,—
(a) because the summons for the defendant to appear and answer has not been served upon
him in consequence of the failure of the plaintiff to pay the court-fee or postal charges, or
(b) because the plaintiff does not appear when the suit is called on for hearing,
the Court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the
court-fees which would have been paid by the plaintiff if he had not been permitted to sue as
[an indigent person].
SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY (ORDER
XXXIV)
1. Parties to suits for foreclosure sale and redemption.—Subject to the provisions of this Code,
all persons having an interest either in the mortgage-security or in the right of redemption shall
be joined as parties to any suit relating to the mortgage.
2. Preliminary decree in foreclosure suit- In a suit for foreclosure, if the plaintiff succeeds, the
Court shall pass a preliminary decree—
(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree
for—
(i) principal and interest on the mortgage,
(ii) the costs of suit, if any, awarded to him, and
(iii) other costs, charges and expenses properly incurred by him up to that date in respect of his
mortgage-security, together with interest thereon; or
(b) declaring the amount so due at that date; and
(c) directing— that the defendant pays into Court the amount so found or declared due within
six months from the date on which such amount is declared in Court, and thereafter pays such
amount as may be adjudged due in respect of subsequent costs, charges and expenses.
The plaintiff shall deliver up to the defendant all documents in his possession or power relating
to the mortgaged property.
3. Final decree in foreclosure suit.—(1) Where, before a final decree debarring the defendant
from all right to redeem the mortgaged property has been passed, the defendant makes payment
into Court of all amounts due from him, the Court shall, on application made by the defendant
in this behalf, pass a final decree—
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and,
if necessary,—
(b) ordering him to re-transfer at the cost of the defendant the mortgaged property as directed
in the said decree, and, also, if necessary.—
(c) ordering him to put the defendant in possession of the property.
4. Preliminary decree in suit for sale.—(1) In a suit for sale, if the plaintiff succeeds, the Court
shall pass a preliminary decree to the effect mentioned in rule 2, and further directing that, in
default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for
a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the
proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court.
5. Final decree in suit for sale.—(1) Where, on or before the day fixed or at any time before the
confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this
rule, the defendant makes payment into Court of all amounts due from him, the Court shall
pass a final decree or, if such decree has been passed, an order—
(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and,
if necessary,—
(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if
necessary,—
(c) ordering him to put the defendant in possession of the property.
6. Recovery of balance due on mortgage in suit for sale.—Where the net proceeds of any sale
are found insufficient to pay the amount due to the plaintiff, the Court, on application by him
may, if the balance is legally recoverable from the defendant otherwise than out of the property
sold, pass a decree for such balance.