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Civil Procedure Code

Civil Procedure Code & Limitation Act

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Decree [Section-2 (2)] and Order [Section-2 (14)]

Essential Elements of a decree: The decision of a Court can be termed as

a "decree" upon the satisfaction of the following elements:-

I. There must be an adjudication i.

II. Such adjudication must have been given in a suit ii.
III. It must have determined the rights of the parties iii with
regard to all or any of the matter in controversy in the suit.
IV. Such determination must be of a conclusive nature iv, and
V. There must be formal expression v of such adjudication.

An Adjudication: Adjudication means "the judicial determination of

the matter in dispute". If there is no judicial determination of any
matter in dispute or such judicial determination is not by a Court, it is
not a decree; e.g., an order of dismissal of a suit in default for non
appearance of parties, or of dismissal of an appeal for want of
prosecution are not decrees because they do not judicially deal with
the matter in dispute.

Very Short Answers

2(3) "Decree-Holder" means any person in whose favour a decree has

been passed or an order capable of execution has been made.

2(10) "Judgment-Debtor" means any person against whom a decree has

been passed or an order capable of execution has been made.

2(11) "Legal Representative" means a person who in law represents the

estate of a deceased person, and includes any person who intermediates
with the estate of the deceased and where a party sues or is sued in a
representative character the person on whom the estate devolves on
the death of the party so suing or sued.
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2(12) "Mesne Profits" of property means those profits which the person
in wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together with interest on
such profits, but shall not include profits due to improvements made by
the person in wrongful possession;
The owner of property or any other person who is entitled to have
possession of property has a right to the possession of his property and
when such person is deprived of such a right by any other person,
person, then he is entitled not only to receive back possession of that
property but also to damages for wrongful possession from that person.

The mesne profits are compensation, which is penal in nature.

A decree for mesne profits is to compensate the person who has been
kept out of possession even though he was entitled to possession
thereof.

Against whom Mesne profits can be claimed?

The mesne profits can be claimed with regard to immoveable property

only. Generally, person in wrongful possession and enjoyment of
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immoveable property is liable for mesne profits.

A decree for mesne profit can be passed against a tresspasser or a

person against whom a decree for possession is passed, or against a
mortgagee in possession of property even after a decree for redemption
is passed or against a tenant holding over at will after a notice to quit has
been served him.

To ascertain and provide mesne profits it is not what the plaintiff has lost
by being out of possession but what the defendant gained or might
reasonably and with ordinary prudence have gained by such wrongful
possession. Since interest is an integral part of mesne profits, it has to be
3
allowed in the computation of mesne profits itself.
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Distinction Between Res-judicata & Estoppel

1. Origin: It results from a decision of the Court.

Estoppel flows from the act of parties.

2. Basis : The rule is based upon public policy, viz that there should
be an end to litigation. It bars multiplicity of suits.

It proceeds upon the doctrine of equity; that he who by his

conduct, has induced another to alter his position to his
disadvantage cannot turn round and take advantage of such
alteration of the other's position.

3. Affects the jurisdiction : It ousts the jurisdiction of a court to try a

case and precludes an enquiry in limine.

In other words, estoppel prevents multiplicity of representations.

4. Stop the Party: It prohibits a man averring the same thing twice in
successive litigations.

It is only a rule of evidence and shuts the mouth of a party.

5. Binding effect on party/parties: This rule presumes conclusively

the truth of the decision in the former suit. It binds both the
parties to a litigation.

Estoppel prevents him from saying one thing at one time and the
opposite at another. The rule of estoppel prevents a party from
denying what he has once called the truth. i.e. estoppel binds only
that party who made the previous statement or showed the
previous
conduct.
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FOREIGN JUDGMENT
(A judgment of a Foreign Court)

Meaning: S.2(6) defines the foreign judgment as the "judgment of a

foreign Court". The term foreign Court has been defined in s. 2(5) as a
Court situate outside India and not established or continued by the
authority of the Central Government. The examples of the foreign Courts
are the Courts in England, Pakistan, Ceylon etc.

Object: The judgment of a foreign Court is enforced on the principle that

where a Court of Competent Jurisdiction has adjudicated upon a claim, a
legal obligation arises to satisfy that claim. Section 13 embodies the
principle of res-judicata in foreign judgments. This provision embodies
the principle of private International Law that a judgment delivered by a
foreign Court of competent jurisdiction can be enforced in India.

Example: A sues B in a foreign Court. The suit is dismissed. The judgment

will operate as a bar to a fresh suit by A against B in India on the same
cause of action.

Conclusive Nature: Section 13 of the Code provides that a foreign

judgment shall be conclusive as to any matter thereby directly
adjudicated upon between the same parties or between- parties under
whom they or any of them claim litigating under the same title except as
specified in clauses (a) to (f) of Sec. 13.

When Foreign Judgment Not Binding: According to Section 13 under the

following six cases, a foreign judgment shall not be conclusive -

1) Foreign Judgment not by a Competent Court;

2) Foreign Judgment not on merits;
3) Foreign Judgment against International or Indian Law;
4) Foreign Judgment opposed to Natural Justice; Foreign Judgment obtained
by fraud;
5) Foreign Judgment founded on a breach of Indian Law;
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Precepts.-
(1)Upon the application of the decree-holder the Court which passed the decree
may, whenever it thinks fir, issue a precept to any other Court which would be
competent to execute such decree attach any property belonging to the
judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in
the manner prescribed in regard to the attachment of property in execution of a
decree :

Provided that no attachment under a precept shall continue for more than two
months unless the period of attachment is extended by an order of the Court
which passed the decree or unless before the determination of such attachment
the decree has been transferred to the Court by which the attachment has been
made and the decree-holder has applied for an order for the sale of the such
property.

EXPLAIN THE SCOPE AND OBJECT OF RES-SUBJUDICE.

INTRODUCTION:

This section deals with stay of civil suits. It provides that no court shall proceed
with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the same parties and
that the court in which the previous suit is pending is competent to grant the
relief claimed.

MEANING UNDER SECTION 10:

Section 10 reads as under:

“ No court shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit between the
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same parties, or between parties under whom they or any of them claim litigating
under the same title where such suit is pending in the same or any other court in
India having jurisdiction to grant the relief claimed, or in any court beyond the
limits of India established or constituted by the Central Government and having
like jurisdiction, or before the Supreme Court”.

OBJECT:

 It is to prevent the courts of concurrent jurisdiction from simultaneously

entertaining and adjudicating upon tow parallel litigations in respect of
the same cause of action, the same subject matter and the same relief.
 It obviates the possibility of two contradictory verdicts by one and the
same court in respect of the same relief.
 It protects a person from multiplicity of proceedings and avoids conflict
of decisions.
 It aims to avert inconvenience to the parties and gives effect to the rule
of res-judicata.

CONDITIONS:

In order to attract this section, the following conditions needs to be satisfied:

1. There must be two suits, one previously instituted and

other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly
and substantially in issue in the previous suit.
3. Both the suits must be between the same parties or
their representatives.
4. The previously instituted suit must be pending in the same court in
which the subsequent suit is brought or in any other court in India or
in any court beyond the limits of India established or continued by the
Central Government or before the Supreme Court.
5. The court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.
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CONCLUSION:

If a decree is passed in contravention of section 10 it is not a nullity and

therefore cannot be disregarded in execution proceedings. It is only the
trial and not the institution of the subsequent suit which is barred under
this section. Hence, if the parties waive their right and expressly ask the
court t proceed with the subsequent suit, they cannot afterwards challenge
the validity of the proceedings.

RES JUDICATA

Section 11: of the Civil procedure code embodies the doctrine of res-judicata or
the rule of conclusiveness of judgment. According to this section “No court shall
try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit between the same parties,
or between parties under whom they or any of them claim, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided
by such court.

The doctrine of res-judicata is based on three maxims:-

 Nemo debet lis vexari prop una et eaden causa; no man should be
vexed twice for the same cause.
 Interest republicae ut sit finis litium: it is in the interest of the State
that there should be an end to a litigation and
 Res judicata pro veritate occupitur: a judicial decision must be accepted
as correct.
Thus, the doctrine of res judicata is the combined result of public policy
reflected in maxims 2 and 3 and private justice expressed in maxim 1 and
they apply to all civil and criminal proceedings. Otherwise there would be
no end to litigation and no security for any person, the rights of persons
would be involved in endless confusion and great injustice done under
cover of the law. The principle is founded on justice, equity and good
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conscience.

CONDITIONS:
 The matter directly and substantially in issue in the subsequent
suit or issue must be the same manner which was directly and
substantially in issue either actually or constructively in the former
suit.
 The former suit must have been a suit between the same parties
or between the parties under whom they or any of them claim.
 Such parties must have been litigating under the same title in
the former suit.
 The court which decided the former suit must be a court
competent to try the subsequent suit or the suit in which such issue
is subsequently raised.
 The matter directly and substantially in issue in the subsequent suit
must have been heard and finally decided by the court in the
former suit.

STATE THE ESSENTIALS OF A PLAINT/PLEADING, CONTENT/ESSENTIALS OF

PLAINT AND WRITTEN STATEMENT UNDER WHAT CIRCUMSTANCES THE
PLAINT CAN BE REJECTED BY THE COURT?

INTRODUCTION:

According to Mogha “ Pleadings are statements in writing drawn up and filed by

each party to a case stating what his contentions will be at the trial and giving all
such details as his opponent needs to know in order to prepare his case in
answer. Further pleading is defined as plaint or written statement. The plaintiff’s
pleading is his plaint, a statement of claim in which the plaintiff set out his cause
of action with all necessary particulars and the defendant’s pleadings is his
written statement, a defense in which the defendant deals with every material
fact alleged by the plaintiff in the plaint and also states any new facts which tell in
his favor. In total the whole object of pleadings is to bring the parties to definite
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issue and it diminish expense and delay and to prevent surprise at the hearing.

 Rules 1 to 8 of order 7 relate to particulars in a plaint.

 Rule 9 lays down procedure on plaint being admitted.
 Rule 10 provides for return of plaint.
 Rules 11to 13 deals with rejection of plaint.
 Rules 14-18 contains provisions relating to production of documents.

MEANING: a plaint is a statement of claim, a document, by presentation of

which the suit is instituted. Its object is to state the grounds upon which
the assistance of the court is sought by the plaintiff.

ESSENTIALS OF A PLAINT:

The plaint should contain the following particulars: Rules 1-8:

i. The name of the court in which the suit is brought.

ii. The name, description and place of residence of the plaintiff
and defendant.
iii. The facts constituting the cause of action and when it arose.
iv. The facts showing that the court has jurisdiction.
v. A statement of the value of the subject matter of the suit for
the purpose of jurisdiction and court fee.
vi. The relief claimed by the plaintiff.
vii. Where the plaintiff or defendant is a minor or a person of
unsound mind, a statement to that effect.
viii. Where the plaintiff files a suit in the representative capacity, the facts
showing that the plaintiff has an actual interest in subject matter and
that he has taken steps that may be necessary to enable him to file
such a suit.
ix. If the suit is for recovery of money, the precise amount claimed.
x. Where the plaintiff has allowed a set-off or relinquished a portion of his
claim, the amount so allowed or relinquished.
xi. If the suit is for account or mesne profits or for movables in the
possession of the defendant or for debts which cannot be
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determined, the approximate amount or value thereof.

xii. If the subject matter of the suit is immovable property a description
of the property sufficient to identify it; e.g. boundaries, survey
numbers, etc.

xiii. The interest and liability of the defendant in the subject matter of
the suit.
xiv. If the suit is time barred, the ground upon which the exemption
from the law of limitation is claimed.

Written statement:- (Counter) (Order 8)

When copy of plaint is issued to defendant then he has to file written

statement (or) counter within 1month period, if delay is caused then reason to
be given for delay period, if there are more no of defendants then they can file
come written statement (or) separate written statement. It contains following
points.
1. There is same name of the court same suit no & the year & details of
both the parties because written statement is file in same court.
2. Written statement to be written in paragraph & every paragraph to be
given separate serial no.
3. All the points specified in plaint have to be covered in return
statement, every facts to be admitted (or) denied by defendant,
there is no need to proof admitted facts, if defendants denies any
facts then burden of proof is on plaintiff, after admission subsequent
denial is not allowed according to rule of estopeal specified under
section 115 of evidence act.
4. If defendant has no desire to admit (or) denial the fact then he can
mention that particular facts is undisputed (or) it will be argued at
the time of proceeding.
5. In written statement defendant can mention additional facts against
plaintiff which are relevant in particular case, such facts to be
mentioned which he can prove when it is necessary.
6. If defendant have any objection relating to plaint then he can
mention in written statement such as court have no jurisdiction suit
is file after limitation period, court fee paid is insufficient.
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7. Defendant can also claim relief which is generally suit is not tenable
against him (or) suit to be dismissed with courts.

8. There is signature of defendant & his advocate if more no of

defendant are filing common written statement then all of them
have to sign it.
9. Defendant have to enclosed affidavit stating that all facts & contains
are true & correct to best of his knowledge & information given by
his counsel.
10. List of relevant documents in support of written statement to be
enclosed.
11. List of witnesses with there address to be enclosed.

REJECTION OF A PLAINT:

The plaint shall be rejected in the following cases:

a) Where plaint does not disclose cause of action: If the plaint does not
disclose any cause of action, the court will reject it. To reject it on this
ground the court must look at the plaint and nothing else. And even if the
court comes to the conclusion that the allegations set out in the plaint
are proved, the plaintiff would not be entitled to any relief. In such a case
the court will reject the plaint without issuing summons to the
defendants.
b) Where relief claimed is undervalued: Where the relief claimed by the
plaintiff is undervalued and the valuation is not correct within the time filed
or extended by the court, the plaint will be rejected. In considering the
question whether the suit is properly valued or not, the court must confine
its attention to the plaint only and should not look at the other
circumstances which may subsequently influence the judgment of the
court as to the true value of the relief prayed for.
c) Where paint is insufficiently stamped: Sometimes the relief claimed by
the plaintiff is properly valued, but the plaint is written upon a paper
insufficiently stamped and plaintiff fails to pay the requisite court fees
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within the time fixed or extended by the court. In that case, the plaint will
be rejected. If the plaintiff cannot pay the court fees, he may apply to
continue the suit as indigent person.

d) Where the suit appears to be barred by law: where the suit appears from
the statements in the plaint to be barred by any law, the court will reject
the plaint. For Eg. Where in a suit against the government, the plaint does
not state that the notice as required under Section 80 of the code has not
been given, then the plaint will be rejected.
CONCLUSION:
Where the plaint is rejected in the court, the judge will pass the order in
the effect and will record reasons for it. If the plaint is rejected on any of
the above grounds, the plaintiff is not thereby precluded from presenting a
fresh plaint in respect of the same cause of action.

EXPLAIN THE ESSENTIAL INGREDIENTS OF SUMMONS. WHAT ARE THE

DIFFERENT MODES OF SERVICE OF SUMMONS TO DEFENDANT?

INTRODUCTION:

When the plaintiff files a suit, the defendant has to be informed that the suit has
been filed against him, and that he is required to appear in the court to defend it.
The intimation which is sent to the defendant by the court is technically known as
summons.

MEANING:

Though the said expression has not been defined in the code the dictionary
meaning of summons is “A summons is a document issued from the office of a
court of justice, calling upon the person to whom it is directed to attend before a
judge or officer of the court for a certain purpose”.
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ESSENTIALS OF SUMMONS:

 Every summons shall be signed by the judge or such officer appointed

by him.
 It shall be sealed with seal of the court.
 It must be accompanied by a copy of the plaint or a concise
statement thereof.

 It must contain a direction whether the date fixed is for settlement of

issue or final disposal of the suit.
 The court must give sufficient time to the defendant to enable him
to appear and answer the claim of the plaintiff on the day fixed.

DIFFERENT MODES OF SERVICE OF SUMMONS:

The code prescribes three principal modes of serving the summon to a

defendant. They are as follows:

a) Personal or direct service: Rules 10-16, 18

 This an ordinary mode of service of summons
 Wherever it is practicable, the summons must be served to
the defendant in person or to his authorized agent.
 Where the defendant is absent from his residence at the time of
service of summons and there is no likelihood of him being found
at his residence within a reasonable time and he has no
authorized agent, the summons may be served on any adult
male or female member of the defendant’s family residing with
him.
 In a suit relating business or work against a person, not residing
within the territorial jurisdiction of the court issuing the
summons it may be served to the manager or agent carrying on
such business or work.
 In a suit for immovable property if the service of summons
cannot be made on the defendant personally and the defendant
has no authorized agent, the service may be made on any agent
of the defendant in charge of the property.
 Where there are two or more defendants service of
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summons should be made on each defendant.

b) Substituted Service: Rules 17, 19-20:
 Substituted service means the service of summons by a mode
which is substituted for the ordinary mode of service of
summons.
 There are two modes of substituted service. They are
 Where the defendant or his agent refuses to sign
the acknowledgement or

 Where the serving office, after due and reasonable diligence

cannot fine the defendant, who is absent from his residence at
the time of service of summons and there is no likelihood of
him being found at his residence within a reasonable time and
there is no authorized agent nor any person on whom the
service can be made.
 The service may be effected in the following manner
 By affixing a copy of the summons in some conspicuous place
in the court house and also upon some conspicuous part of
the house in which the defendant is known to have last
resided, carried on business or personally worked for gain or
 In such manner as the court thinks fit.
 Where the court orders service by an advertisement in a
newspaper, the newspaper should be a daily newspaper
circulating in the locality in which the defendant is last known
to have actually or voluntarily resided, carried on business or
personally worked for gain.
c) Service by post: Rule 19A
 As per the Amendment Act 1976 issue of summons for service in
the ordinary manner and also through register post
acknowledgement due, addressed to the defendant or his
authorized agent at the place where the defendant or his agent
actually or voluntarily resides or carries on business or
personally works for gain.
 When the acknowledgement purporting to be signed by the
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defendant or his agent is received by the court the defendant

or his agent refused to take delivery of summons when to him.
It is deemed that the summons is served on the defendant.

(b) DISTINGUISH BETWEEN COUNTER CLAIM AND SET OFF:

Rules 6-A-6-G: Counter claim may be defined as a claim made by the

defendant in a suit against the plaintiff. It may be set up in respect of claim for
which the defendant can file a separate suit. Thus a counter claim is
substantially a cross-action.

Rule -6 : The doctrine of set-off may be define d as “the extinction of debts of

which two persons are reciprocally debtors to one another by the credits of
which they are reciprocally debtors to one another by the credits of which
they are reciprocally creditors to one another”. Thus it is a reciprocal acquittal
of debts between two persons.

DISTINCTION BETWEEN COUNTER CLAIM AND SET OFF:

SET-OFF COUNTER-CLAIM

1. Set-off is a statutory defense to Counter claim is substantially a cross

a plaintiff’s action. action.
2. Set-off must be for an ascertained Counter claim need not arise out
of sum or it must arise out of the same transaction.
Same transaction.
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DISTINGUISH BETWEEN MIS-JOINDER AND NON-JOINDER OF PARTIES:

Order-1 deals with the subject of parties to the suit.
 Non-joinder:- where a person who is a necessary or proper party to
the suit has not been joined as a party to the suit, it is a case of
non- joinder.
 Mis-joinder : If two or more persons are joined as plaintiffs or
defendants ion one suit in contravention of order 1 respectively
and they are neither necessary nor proper parties, it is a case of
Mis- joinder of parties.
 That a suit cannot be dismissed only on the ground of non-joinder
or misjoinder of parties. However this rule does not apply in case of
non-joinder of a necessary party.

 If a person is likely to be affected by the decree is not joined as a

party in a suit or appeal, the suit or appeal is liable to be
dismissed on that ground alone.

WHAT IS AN EXPARTE DECREE? STATE THE REMEDIES AVAILABLE AGAINST IT.

INTRODUCTION:

The adjudication of the court of law may be divided into two classes:

1. Decrees
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2. Orders.

MEANING OF DECREE:

Section 2(2) of the Code defines the term decree in the following words:

“ Decree” means the formal expression of an adjudication which, so far as

regards the court expressing it, conclusively determines the rights of the
parties with regard to all or any of the matters in controversy in the suit and
may be either preliminary or final. It shall be deemed to include the rejection
of a plaint and the determination of any question within Section 144.”

ESSENTIALS ELEMENTS:

In order that a decision of a court may be decree, the following elements must
be present:

 There must be an adjudication.

 Such adjudication must have been given in a suit.
 It must have determined the rights of the parties with regard to all
or any of the matters in controversy in the suit.
 Such determination must be of a conclusive nature and
 There must be a formal expression of such adjudication.

REMEDIES IN CASE OF EX-PARTE DECREE:

An ex parte decree is decree passed in the absence of the defendant. If the

defendant is served with notice and he does not appear on the first hearing
then the court may hear the suit ex parte and pass a decree against him. Such
a decree is neither null and void nor inoperative but is merely voidable and
unless and until it is annulled, it has all the force of a valid decree. The
defendant, against whom an ex-parte decree has been passed, has the
following remedies available to him:

1. To apply to the court by which such decree is passed to set aside

2. To prefer an appeal against such decree.
3. To apply for review
4. To file a suit on the ground of fraud.

1. To apply to the court by which such decree is passed to set aside:

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 Rule 13 deals with setting aside of ex parte decree passed against

the defendant
 This rule requires an application by the defendant to set aside an ex
parte decree passed against him if there exists sufficient grounds for it.
 If the defendant satisfies the court that (i) the summons was not duly
served or (ii) he was prevented by any sufficient cause from
appearing when the suit was called out for hearing
 The court has very wide discretion in imposing such terms on the
defendant as it thinks fit before setting aside the ex parte decree.

 The court may order the payment of costs or may order the defendant
to even deposit the decretal amount in the court in an appropriate case
 The discretion, however must be exercised reasonably and judicially
and not arbitrarily or capriciously.
 The application under rule 13 should be made within 30 days from the
date of the decree or where the summons is not duly served, within 30
days from the date of his knowledge of the decree.
2. To prefer an appeal against such decree:
 Whenever there is appeal against an ex parte decree and that appeal
has been disposed of on any ground other than withdrawal of the said
appeal, no application to set aside such decree can be filed under
Rule 13.
 The effect of setting aside an ex parte decree is that the suit is
restored, and the court should proceed to decide the suit as it stood
before the decree.
 An appeal lies against an order rejecting an application to set aside an
ex parte decree. No appeal, however, lies against an order setting aside
an ex parte decree.
3. To apply for review:
 Since all remedies against an ex parte decree are concurrent,
an aggrieved party can also file an application for review if the
conditions laid down in Order 47 Rule 1 are satisfied.
4. To file a suit on the ground of fraud:
 A suit to set aside an ex parte decree is not maintainable. But if an
ex parte decree is alleged to have been obtained by the plaintiff by
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fraud, the defendant can file a regular suit to set aside such decree
 It is settled law that fraud vitiates the most solemn transactions.
 The onus is on the party who alleges that the ex parte decree
passed against him was fraudulent.

(b) AFFIDAVIT:

An affidavit is a declaration of facts, made in writing and sworn before an officer

having authority to administer oath. It should be drawn up in the first person and
contain the statements and not inferences.

Essentials:
 There must be a declaration made by the deponent
 It must be in writing.
 It must be in the first person and
 It must have been sworn or affirmed before an authorized officer.

Evidence on affidavits:

 The court may order that any fact may be proved by affidavit
 The court can make an order that any fact may be proved by affidavits
subject, however, to the right of the opposite party to have the
deponent produced for cross examination.
 Affidavits should be confined to such facts as the deponent is able to prove
of his personal knowledge except on interlocutory applications, on which
the statement of his belief may be admitted.
 The source of information should be clearly disclosed.
 It is the duty of the counsel to advise his client as to the verification of
the affidavit.

DEFINE INTER-PLEADER SUIT. EXPLAIN THE CONDITIONS AND PROCEDURE

RELATING TO AN INTER PLEADER SUIT.
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INTRODUCTION:

Suits may be divided into two classes

 Suits in general
 Suits in particular cases

With regard to suits in particular cases different procedure is required to be

followed.

MEANING:
Section 88, Order 35: In majority of cases there is dispute between the plaintiff
and the defendant. An inter pleaders suit is a suit in which the real dispute is not
between the plaintiff and the defendant but between the defendants only and
the plaintiff is not really interested in the subject matter of the suit.

CONDITIONS:

The following conditions must be satisfied before an interpleader suit can be

instituted:
 There must be some debt sum of money or other property movable
or immovable in dispute.
 Two or more persons must be claiming it adversely to one another.
 The person from whom such debt, money or property is claimed must
not be claiming any interest there in other than the charges and costs and
he must be ready to pay or deliver it to the rightful claimant. And
 ]there must be no suit pending in which the rights of the rival claimants
can be properly decided.

PROCEDURE:

 Order 35 lays down the procedure relating to an interpleader suit.

 In every suit the plaint in addition to other statements necessary
for plaints, state
 That the plaintiff claims no interest in the subject- matter in
dispute other than the charges or costs.
 The claims made by the defendants severally and
 There is no collusion between the plaintiff and the defendants.
 The court may order the plaintiff to place the thin claimed in the
 lOMoARcPSD|4273049

custody of the court and provide for costs by giving him a charge on
the thing claimed.
 Where any of the de4fendants in an interpleader suit files a suit against
the plaintiff in another court in respect of the subject matter of the
suit, that court shall stay the proceedings

 At the first hearing, the court may declare that the plaintiff is
discharged from all liability, award him his costs and dismiss him from
the suit or if it thinks that justice or convenience so requires, retain all
parties until the final disposal of the suit.

CONCLUSION:
in an interpleaders suit the agent cannot sue his principal or a tentant his
landlord for the purpose of compelling them to interplead with persons
other than person claiming through such principals or landlords. The
reason for the rule seems to be that ordinarily an agent cannot dispute the
tile of his principal.

TEMPORARY INJUNCTION:

An injunction is judicial process whereby a party is required to do or to

refrain from doing any particular act. The primary purpose of granting interim
relief is the preservation of the property in dispute till legal rights and conflicting
claims of the parties before the court are adjudicated. The object of granting
temporary injunction is to maintain and preserve status quo at the time of
institution of the proceedings and to prevent any change in the final
determination of the suit.

There are two kinds of injunctions, they are:

 Temporary and
 Permanent.

Section 38 to 42: A permanent injunction restrains a party for ever from doing
the specified act and can be granted only on merits at the conclusion of the trial
after hearing both the parties to the suit.
 lOMoARcPSD|4273049

Section 39: A temporary injunction on other hand restrains a party temporarily

from doing the specified act and can be granted only until the disposal of the suit
or until further orders of the court.

PRINCIPLES:

The power to grant a temporary injunction is the discretion of the court.

However, this discretion should be exercise reasonably, judiciously and on sound
legal principles. Injunction should not be granted lightly as it adversely affects the
other side. Before granting the injunction, the court must be satisfied about the
following aspects.

a) Prima facie case:

The first rule is that the applicant must make out a prima facie case in
support of the right claimed by him. The court must be satisfied that
there is a bona fide dispute raised by the applicant, there is a strong
case for trial which needs investigation and a decision on merits and
on the facts before the court there is a profanity of the applicant being
entitled to the relied claimed by him.
b) Irreparable injury:
The existence of prima facie case alone does not entitle the applicant
for a temporary injunction. The applicant must further satisfy the
second condition by showing irreparable injury irreparable injury
means that the injury must be a material one which cannot be
adequately compensated by damages. An injury will regarded as
irreparable where there exists no certain pecuniary standards for
measuring damages.
c) Balance of connivance:
d) The third condition for granting interim injunction is that the balance
of convenience must be in favor of the applicant. The courts must be
satisfied that the comparative mischief, hardship or inconvenience
which is likely to be caused to the applicant by refusing the
injunction will be greater than that which is likely to be caused to the
opposite party by granting it.
 EXPLAIN THE CIRCUMSTANCES IN WHICH THE DELAY WILL BE CONDONED
UNDER THE LIMITATION ACT.

INTRODUCTION:

According to section 5, a court may grant extension of period o limitation. This

section applies to appeals and applications other than an application under any of
the provisions of order XXI of the C.P.C. this section does not apply to suits, the
reason is that the period of limitation allowed generally in suits extends from
three to twelve years. Whereas, in appeals and applications it does not exceed
three months. This section applies to criminal appeals and criminal appellate
court has power to excuse delay and admit time barred appeal if sufficient cause
is shown. But the courts shall exercise the discretion to admit or refuse to
admit the proceedings, even if sufficient cause is shown as is made clear by the
words may be admitted.

APPLICATION IN WRITING:

It has been observed that section 5 does not provide that an application in writing
must be filed before relief under the aforesaid provision is granted. In Ram Kali
Kuer v. Indradeo the same was held.

SUFFICIENT CAUSE:

The only circumstances in which the delay may be condoned is the showing of the
sufficient cause for not preferring the appeal or making the application within
such period. It is difficult and undesirable to attempt to define precisely the
meaning of sufficient cause. It must be determined by the circumstances of each
particular case. However, a sufficient cause should fulfill the following essentials:

 It must be a cause which was beyond the control of the party invoking it.
 He must not be guilty of negligence. His diligence and care must be shown.
 His intention must be bona fide.

GROUNDS FOR CONSIDERING THE SUFFICIENT CAUSE:

 Illness: illness may be a sufficient cause, but it must be proved that the
man was utterly disabled to attend to any duty. A mere plea of
sickness is not a sufficient cause, for excusing the delay in filing an
appeal or application. The effect of the illness must be, such as, in the
 circumstances, will afford reasonable excuse for the delay.
 Imprisonment: Imprisonment in the criminal jail may be sufficient
cause and the time spent in jail may be deducted.
 Mistake; Mistake made by the officer of the court in not preparing
correct copies of the judgment and decree is a sufficient cause even
if there was a contributory delay on the applicant’s part in showing
the mistake.
 Mistake of law: Mistake of law which is committed bona fide that is
in spite of due care and attention is regarded as sufficient cause. But
a mere mistake or ignorance of law is not per se sufficient reason for
asking the court to exercise its discretion under this section.
 Poverty: the poverty of the party or his want of funds is not a
sufficient cause within the meaning of this section.
 Mistake of counsel: mistake advice given by a legal practitioner may, in
the circumstances of a particular case, give rise to sufficient cause
within the section there is certainly no general doctrine which saves the
parties from the results of wrong advice.
 Delay in obtaining copies: where delay in obtaining copies was caused
by the officer of the court or by the court’s order itself or by mistake
in practice in obtaining of such copies it was held to be excusable.
 Delay in correspondence: it has been held that where the delay in
filing the appeal occurred on account of correspondence between its
two offices.
 Laches on the part of court: where a memorandum of appeal was
filed five days before expiry of limitation, which was returned due to
omission to deposit court-fees after expiry of period of limitation and
memorandum was refilled on next day after depositing requisite court
fees it was held that he was entitled to the benefit of Section-5.
(b) The court is closed on the last date of limitation period. Z seeks extension
of limitation period on that ground. Will he succeed?

Yes, Z will succeed.

Section 4 does not extend the period of limitation provided by the Act but it
deals with exceptional condition when limitation expires on holiday the court
is closed. Here court means the court where matter is to be instituted.
 A court is not open merely because it is physically open. A court is not merely a
building with rooms in it. A judge in a court may, for certain purposes proceed
with matters where the parties could be heard; but when it comes to the
practical and execution side of the court, it must include not only the judge
who may be available, but the court officers also.

In this case the court is closed and therefore Z can seek for extension of
limitation period on that ground.

LEGAL DISABILITY:

Section -6 of limitation Act speaks about the legal disability. Legal disability is
inability to sue owing to minority, lunacy, or idiocy. Law recognizes no other
ground as sufficient for extending that period of limitation. The effect of legal
disability is that it extends the period of limitation; it does not prevent the period
from running. Once the period of limitation has started no subsequent disability
stops it.

ESSENTIALS OF LEGAL DISABILITY:

 Disability must be continuous. If a person entitled to sue is minor

and becomes insane before he attains majority, time would be
extended.
 The disability must be of a person entitled to sue or apply for execution.
In other words, this privilege is extended only to the plaintiffs and not to
the defendants.
 The person must already been under a disability when the right to
sue accrues or at the time from which the period of limitation is to be
reckoned.