PAPER PRESENTATION

SUBMITTED BY

Sri.D. Vijay Goutam,

V Additional District Judge,
Rajamahendravaram.

FOR FIRST WORK SHOP – 2024

TO BE HELD ON 06-04-2024
AT RAJAMAHENDRAVARAM
ON THE TOPICS

Session No. I

Money Suits & Mortgage Suits:

(a) Limitation, Admissibility and Appreciation of Evidence

vis-a-vis burden of proof and onus of proof.

(b) Costs and interest – Case Law.

(c) Contours of Judgment Writing in Money & Mortgage

Suits – Special reference to operative portion - Precedents.
 1

SESSION-I

Money Suits & Mortgage Suits

D. Vijay Goutam,
V Additional District Judge,
Rajamahendravaram.

(a) Limitation, Admissibility and Appreciation of

Evidence vis-à-vis Burden of Proof and Onus of Proof.

MONEY SUITS:

A suit for recovery of money is a civil relief and acts as an

effective remedy to recover money from the delinquent. Every
person, who has a right to sue, can file a money suit. Suits are
filed in civil court for money recovery subject to (1) territorial
jurisdiction under section 15 to 20 of CPC, (2) pecuniary
jurisdiction under section 16 of The A.P. Civil Courts Act, (3)
subject matter/inherent jurisdiction under section 9 of CPC.

Promissory Note: -

Most of the money suits are on the foot of promissory note.

The word “Promissory Note” is defined in (1) Section 4 of the
Negotiable Instruments Act, (2) Section 2(22) of Stamp Act and
(3) Section 2(k) of Limitation Act.

Burden of proof and Onus of proof: -

Section 101 Evidence Act deals with “Burden of Proof”.

Where the issue was whether the document in

question was genuine or sham or bogus, the party who alleged
 2

that fact had to prove nothing till the party relying upon the
document established its genuineness in the first place. Section
102 Evidence Act deals with onus of proof. It lays down that the
burden of adducing the evidence rests upon the party who would
fail if no evidence at all, or no more evidence, as the case may
be, were adduced by either side. There is an essential distinction
between burden of proof and onus of proof. Burden of proof lies
upon a person who has to prove the fact and which never shifts.
Onus of proof shifts. Such a shifting of onus is a continuous
process in an evaluation of evidence (Abdulla Mohammed
Pagarkar v. State (Union Territory of Goa, Daman and
Diu), (1980) 3 SCC 110; AIR 1980 SC 499). Therefore,
'burden of proof' is static while 'onus of proof' is dynamic.

Limitation: The legal principle as to law of limitation is

limitation does not extinguish the right but only bars the
remedy. Articles 31, 34 to 38 of Schedule of the Limitation Act,
1963 provides the period of limitation regarding promissory
notes. Generally, in most of the cases Article 35 of limitation Act
is applicable. As per Article 35, the period of limitation is 3 years
from the date of promissory note.

Acknowledgment: Section 18 of the Limitation Act deals with

effect of acknowledgment in writing. It provides that 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 whom he derives his title
or liability, a fresh period of limitation shall be computed from
 3

the time when the acknowledgment was so signed.

Acknowledgement of liability must be in writing and unqualified.

Part Payment: Section 19 of the Limitation Act deals with

effect of payment on account of debt or of interest on legacy. It
states that 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.
The payment in order to attract section 19 must proceed from
the debtor.

Under section 18, a fresh period of limitation is allowed

from the date when the acknowledgment of liability is signed.
But under section 19, such fresh period of limitation starts from
the time the payment as mentioned in section 19 is made.
(Jiwanlal vs. Rameshwarlal, AIR 1967 SC 118).

The burden is on the plaintiff to prove that by virtue of

acknowledgment of liability the suit is not barred by limitation
(AIR 1976 Mad. 142).

Receipt: Generally, there may not be suits basing of receipt

but, in several promissory note suits parties file receipts to show
that they discharged debt. Section 2(23) of Stamp Act defines
the word receipt. Article 53 of Schedule 1 provides that the
stamp duty is payable on receipt. In view of section 35(b) of
Stamp Act, receipt can be impounded on payment of penalty of
Rs.3/- by the person tendering it.
 4

Set off: - It is a cross-claim which partly off sets the original

claim. Order 8, Rule 6 CPC deals with set off.

Counter claim: A counter claim may be defined as a claim

made by the defendant in a suit against the plaintiff. One of the
pleas open to a defendant to defeat the relief sought by the
plaintiff against him is a counter claim. Order 8, Rule 6-A to 6-
G CPC deals with counter claim.

MORTGAGE SUITS:

There are six types of mortgages described in section 58

of Transfer of Property Act. Rights of parties are governed by
the terms of the instrument.

Stamp Duty: Section 58 of Transfer of Property Act defines a

mortgage and a mortgage deed. Section 2(17) Stamp Act
defines a mortgage deed. Article 7 of Schedule 1-A provides the
stamp duty payable on agreements relating to deposit of title
deeds, pawn, pledge, hypothecation etc. Article 35 of Schedule
1-A deals with stamp duty payable on mortgage deed.

A hire purchase agreement containing a clause mortgaging

schedule mentioned property as security for payment of money
due under it is chargeable as mortgage (Chief Controlling
Revenue Authority vs. D.S.James, AIR 1973 Mys.105).

Article 45 provides the stamp duty payable on re-

conveyance of mortgaged property.

Registration: All kinds of mortgages, except mortgage by

deposit of title deeds, can be affected only by a registered
 5

instrument signed by the mortgagor, when the principal money

secured is Rs.100/- or above. In case mortgage money is below
Rs.100/-, then mortgage can be affected under registered
instrument or delivery of property except in the case of simple
mortgage.

Attestation: The mortgage deed shall be attested by at least

two witnesses (Section 59). As per Section 68 of Indian
Evidence Act, in order to prove mortgage deed, at least one of
the attestor shall be examined.

Limitation: It is well established principle of law that once a

mortgage, always a mortgage.

Article 61(a) of Schedule of Limitation Act relates to suits

for redemption of mortgages and suits to recover possession of
the immovable property mortgaged. The period of limitation is
thirty years and the limitation commences in the case of suit for
redemption from the date on which the right to redeem arises
or in case of recover of possession, from the date when the right
to recover possession accrues.

Article 62 governs suits to enforce payment of money

secured by mortgage or otherwise charged upon immovable
property. The period of limitation is 12 years and has to be filed
within 12 years from the date when the money becomes due.

Right of usufructuary mortgagor is equitable as well as

statutorily recognized right. Usufructuary mortgage is distinct
from other mortgage. Special right of usufructuary mortgagor
u/s. 62 of Transfer of Property Act to recover possession
commences when mortgage money is paid out of usufructs or
 6

partly out of usufructs and partly on payment by the mortgagor.

Therefore, in case of usufructuary mortgage mere expiry of 30
years does not extinguish the right of the mortgagor and
consequently does not entitle the mortgagee ownership on the
mortgaged property (Singh Ram (D) Thr.L.Rs. Vs. Sheo
Ram & Ors, [2014] 14 S.C.R. 1412).

Procedure: Suit for foreclosure:

Preliminary decree – In 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 principal and interest on the mortgage,
the costs of the suit awarded to him; and other costs, charges
and expenses properly incurred by him; or (b) declaring the
amount so due; and (c) directing that if the defendant pays into
court the said amount, on or before such date fixed or extended
by the court, the plaintiff shall deliver to the defendant all
documents relating to the mortgaged property and retransfer
the property to the defendant free from the mortgage and all
encumbrances created by the plaintiff and put the defendant in
possession thereof. If the payment is not made by the
defendant, the plaintiff shall be entitled to apply for a final
decree debarring the defendant from his right to redeem the
mortgage.

Final decree – Where the defendant makes payment of all

amounts on or before the date fixed or extended by the court
for such payment, the court shall, on an application being made
by him, pass a final decree directing the plaintiff to deliver to
the defendant all the documents referred to in the preliminary
 7

decree, to transfer the property and to put the defendant in

possession thereof. Where no payment has been made by the
defendant on or before the date fixed or extended by the court
for such payment, the court shall on application being made by
the plaintiff pass a final decree declaring that the defendant is
debarred of his right to redeem the mortgage and, if necessary,
by directing the defendant to put the plaintiff in possession of
the mortgaged property. On passing of a final decree, the
defendant shall be deemed to have been discharged from all his
liabilities in respect of the mortgage.

Suit for sale:

Preliminary decree – In a suit for sale, if the plaintiff

succeeds, the court shall pass a preliminary decree in the
manner provided in the suit for foreclosure (same as in
preliminary decree). In case of default by the defendant, the
plaintiff shall be entitled to apply a final decree directing that
the mortgaged property be sold and the sale proceeds be
applied in payment of amount due to plaintiff.

Final decree – Where on or before the day fixed or at any time

before the confirmation of sale, the defendant makes payment
into court all amounts due, the court shall on application being
made by him pass a final decree directing the plaintiff to deliver
to the defendant all the documents referred to in the preliminary
decree, to retransfer the mortgaged property and to put the
defendant in possession thereof. Where the payment has not
been made by the defendant, the court shall, on an application
being made by the plaintiff pass a final decree directing sale of
mortgaged property. If the net proceeds of such sale are less
 8

than the amount due, the court may pass a decree for the
balance if it is legally recoverable from the defendant.

Suit for redemption:

Preliminary Decree – In a suit for redemption, if the plaintiff

succeeds, the court shall pass a preliminary decree in the
manner provided in the suit for foreclosure (same as in
preliminary decree). If the plaintiff does not make the payment,
the defendant shall be entitled to apply for a final decree that
the mortgaged property be sold or that the plaintiff be debarred
of his right to redeem that mortgaged property, depending upon
the nature of the mortgage.

Final decree – Where before a final decree debarring the

plaintiff of his right to redeem the mortgage has been passed or
before the confirmation of sale, the plaintiff pays all amounts
due, the court shall, on application being made by him pass a
final decree directing the defendant to deliver to the plaintiff all
the documents referred to in the preliminary decree, to
retransfer the mortgaged property and to put the plaintiff in
possession thereof. Where no payment has been made by the
plaintiff, the court shall, on application being made by the
defendant, pass a final decree declaring that the plaintiff is
debarred of his right to redeem the mortgage or directing that
the mortgaged property be sold and proceeds thereof be applied
in payment of amount found due to the defendant and the
balance, if any, be paid to the plaintiff. If the net proceeds of
such sale are less than the amount due, the court may pass a
decree for the balance if it is legally recoverable from the
plaintiff.
 9

E.P. basing on preliminary decree is not maintainable: The

Hon’ble High Court of A.P in Namboori Surya Kumari v.
Bandaru Seetamahalakshmi & another, 2023 (4) AmLJ
393, was pleased to hold that “Execution Petition is not
maintainable to execute a mortgage decree on the basis of a
preliminary decree that was passed without obtaining a final
decree.

Application for final decree – Limitation: The Hon’ble

Madras High Court in 2018 (5) CTC 353 was pleased to hold
that “there is no period of limitation for filing application for final
decree in mortgage suits (Discussed in para 28 to 36 of
judgment). This judgment is followed by The Hon’ble Madras
High Court in the judgment between Punjab National Bank
Represented by its Manager, Villupuram Vs.
G.Vijayakumar (C.R.P.(N.P.D).No.2949 of 2016,
Dt.11.02.2021).
 10

(b) Costs and Interest – Case Law

Introduction:

The question of the award of interest in civil proceedings

for payment of money is of most frequent occurrence. However,
the expression “interest” has not been defined in the Code of
Civil Procedure. A person deprived of the use of money to which
he is legitimately entitled has a right to be compensated for the
deprivation. This may be called interest, compensation or
damages according to the principle underlying in Section 34,
CPC. The provision of the Section 34, CPC, invests the courts
with the requisite jurisdiction in that behalf. Before the CPC
(Amendment) Act, 1976, the maximum interest which could be
awarded by a court under this section was six per cent per
annum. In appropriate cases, the court had discretion to award
interest at a lesser rate but in no case, it could exceed six per
cent. A proviso has been introduced by the CPC (Amendment)
Act, 1976 which enables the court to increase post decretal
interest in relation to a liability arising out of a commercial
transaction on the principal sum adjudged. The amendment is
intended to prevent commercial operators from exploiting the
situation by lending money at a rate higher than six per cent
and thereby earning profits.

The award of costs is at the discretion of the court.

Normally, in civil proceedings, “costs shall follow the events”.
The Hon’ble Supreme Court of India in Ashok Kumar Mittal v.
Ram Kumar Gupta and another1, was pleased to hold that the

1
(2009) 2 SCC 656
 11

present system of levying meagre costs in civil matters (or no

costs in some matters), no doubt, is wholly unsatisfactory and
does not act as a deterrent to vexatious or luxury litigation
borne out of ego or greed, or resorted to as a “buying time”
tactic. More realistic approach relating to costs may be the need
of the hour.

Interest Prior to the Date of Institution of Suit:

The claim for interest for the period prior to the institution
of the suit came up for adjudication by the Hon’ble Supreme
Court of India in Union of India v. West Punjab Factories Ltd2,
which arose out of suits for damages for loss of goods which
were destroyed by fire on the railway platform. Disallowing the
claim of plaintiff for interest before the suit and modifying the
decree of the court below on that account, the Hon’ble Supreme
Court referred to some earlier decisions and was pleased to hold
that, “In the absence of any usage or contract, express or
implied, or of any provision of law to justify the award of interest
it is not possible to award interest by way of damages”.

Section 34, CPC, is not concerned with interest prior to

suit. Such interest may be awarded: (i) when there is a contract,
(ii) when there is usage of trade having the force of law, (iii)
when it is contemplated by any provision of substantive law, or
(iv) under the Interest Act, 1978, (v) it may sometimes be
awarded under a rule of equity also.

2
AIR 1966 SC 395
 12

Interest After the Date of Institution of Suit:

The award of interest after the date of institution of the

suit is purely a matter of statutory power of courts under section
34, CPC. Hence, as regards interest due from the date of the
institution of suit to the date of the decree and that due from
the date of decree till the date of realization is governed by the
Section 343. This section applies where the decree is for a
definite sum of “money”. The expression “decree for the
payment of money” as used in this section includes a claim to
unliquidated damages. In money suits, therefore, the question
of interest after the institution of the suit passes from the
domain of contract into that of judgment and a Court has
discretion as to the rate of interest 4. That discretion however, is
a judicial discretion to be exercised on proper judicial grounds
and not arbitrarily.

A three-Judge Bench of the Hon’ble Supreme Court of

India in Madnani Construction Corporation (P) Ltd. v. Union of
India and Ors5., while discussing several aspects of the
arbitration and also the provisions of Section 34 of the Code of
Civil Procedure held: “...Though the said decision deals with the
power of the arbitrator to award interest pendente lite, the
principle of the decision makes it clear that the arbitrator is
competent to award interest for the period commencing with the
date of award to the date of decree or date of realization,
whichever is earlier. This is also quite logical for, while award of
interest for the period prior to an arbitrator entering upon the

3
Madnani Construction Corporation (P) Ltd. v. Union of India and Ors., AIR 2010 SC 383
4
S. Nazeer Ahmed v. State Bank of Mysore and Ors., AIR 2007 SC 989
5
AIR 2010 SC 383
 13

reference is a matter of substantive law, the grant of interest

for the post-award period is a matter of procedure. Section 34
of Code of Civil Procedure provides both for awarding of interest
pendente lite as well as for the post-decree period and the
principle of Section 34 has been held applicable to proceedings
before the arbitrator, though the section as such may not
apply...”.

Costs—- Scope and Ambit:

Sections 35, 35-A, 35-B and Order 20-A, CPC, enables the
court to pass order of costs. An order of costs is entirely in the
discretion of the court, while an order of interest which the court
makes under Section 34 forms part of a dispute between the
parties. The object of awarding costs is to secure to a litigant
the expenses which he has incurred and not to punish the
opposite party. The costs to be awarded under this section are
in the judicial discretion of the Court. This judicial discretion is
to be exercised on sound legal principles. Ordinarily, the
successful party is entitled to his costs. In other words, costs
follow the event. When both the parties are guilty of acts of bad
faith, both may be deprived of their costs. The CPC provides for
the following kinds of costs: (a) General Costs (Section 35), (b)
Miscellaneous Costs (Order 20-A), (c) Compensatory Costs
(Section 35- A), (d) Costs for Causing Delay (Section 35-B).

General Costs— Section 35:

Section 35, CPC, lays down that the costs of an incidental

to all suits shall be in the discretion of the Court. The Court can
order by whom and out of what property, the costs are to be
 14

paid. The section clearly provides that “costs shall follow the
events”. It means that the successful party is entitled to the
costs, unless the Court in its discretion orders otherwise, either
because that party is guilty of misconduct or because there is
some other good cause for not awarding costs to him. Thus,
successful party will not get his costs if he succeeds on a small
part of his claim, but fails on the most important and larger part
of it or if the party has raised an unnecessary issue, or placed a
burden on the defendant which ought not to have in the
litigation, etc. Similarly, a landlord who deliberately mis-states
the areas of the land in a rent suit may be deprived of costs,
though he is successful in his suit6.

The theory on which costs are now awarded to a plaintiff

is that default of the defendant made it necessary to sue him,
and to a defendant is that the plaintiff sued him without cause;
costs are thus in the nature of incidental damages allowed to
indemnify a party against the expense of successfully
vindicating his rights in court and consequently the party to
blame pays costs to the party without fault. These principles
apply, not merely in the award of costs, but also in the award of
extra allowance or special costs. Courts are authorized to allow
such special allowances, not to inflict a penalty on the
unsuccessful party, but to indemnify the successful litigant for
actual expenses necessarily or reasonably incurred in what are
designated as important cases or difficult and extraordinary
cases. In Salem Advocates Bar Association v. Union of India 7,
the Apex Court after noticing that the award of costs is in the

6
U.P. Cooperative Federation Ltd. v. Three Circles, (2009) 10 SCC 374
7
AIR 2005 SC 3353
 15

discretion of the court and that there is no upper limit in respect

of the costs awardable under Section 35 of the Code of Civil
Procedure observed thus: “Judicial notice can be taken of the
fact that many unscrupulous parties take advantage of the fact
that either the costs are not awarded or nominal costs are
awarded against the unsuccessful party. Unfortunately, it has
become a practice to direct parties to bear their own costs. In a
large number of cases, such an order is passed despite Section
35(2) of the Code. Such a practice also encourages the filing of
frivolous suits. It also leads to the taking up of frivolous
defences. Further, wherever costs are awarded, ordinarily the
same are not realistic and are nominal. When Section 35(2)
provides for cost to follow the event, it is implicit that the costs
have to be those which are reasonably incurred by a successful
party except in those cases where the court in its discretion may
direct otherwise by recording reasons therefore. The costs have
to be actual reasonable costs including the cost of the time spent
by the successful party, the transportation and lodging, if any,
or any other incidental costs besides the payment of the court
fee, lawyer’s fee, typing and other costs in relation to the
litigation. It is for the High Courts to examine these aspects and
wherever necessary make requisite rules, regulations or
practice direction so as to provide appropriate guidelines for the
subordinate courts to follow.”

It is clear from the foregoing discussions that normally

costs shall follow the event and it is not the rule that costs
should be left to be borne by the parties. However, the costs
may not be awarded by the Court if it is satisfied in this respect
on account of some good reasons. This means that the
 16

successful party is entitled to costs unless he is guilty of

misconduct or there is some good cause for not awarding costs
to him8.

Miscellaneous Costs— Order 20-A:

Order 20-A9, CPC, makes specific provision with regard to

the power of the court to award costs in respect of certain
expenses incurred in giving notices, typing charges, inspection
of records, obtaining copies and producing witnesses. Under
Order 20-A, the court may award costs in respect of: 1.
expenditure incurred for the giving of any notice required to be
given by law before the institution of the suit;

2. expenditure incurred on any notice which, though not

required to be given by law, has been given by any party to the
suit to any other party before the institution of the suit;

3. expenditure incurred on the typing, writing or printing of

pleadings filed by any party;

4. charges paid by a party for inspection of the records of the

Court for the purpose of the suit;

5. expenditure incurred by a party for producing witnesses, even

though not summoned through Court; and

6. in the case of appeals, charges incurred by a party or

obtaining any copies of judgments and decrees which are
required to be filed along with the memorandum of appeal.

8
Jugra Singh v. Jaswant Singh, (1970) 2 SCC 386.
9
Order 20-A was inserted by CPC (Amendment) 1976 , Section 71 (w.e.f. 1.2. 1977)
 17

Compensatory Costs— Section 35-A:

Section 35-A provides for compensatory costs. This

Section is an exception to the general rule on which Section 35
is based and intended to deal with those cases in which Section
35 does not afford sufficient compensation in the opinion of the
court. Under this provision, if the court is satisfied that the
litigation was inspired by vexatious motive and was altogether
groundless, it can take deterrent action10. Under Section 35-A,
compensatory costs for vexatious claims and defences may not
exceed to Rs. 3,000/-. The principles and practices relating to
levy of costs are matters of administrative law that cannot be
imported mechanically in relation to civil litigation governed by
the CPC. The Apex Court, therefore, held that imposition of
exemplary costs is governed and regulated by Sections 35 and
35-A of CPC and there is no question of exercising inherent
power contrary to the specific provisions of the CPC.

Costs for Causing Delay— Sections 35-A:

Section 35-B, CPC, deals with the law relating to costs

levied for causing delay. Section 35-B was added by the CPC
Amending Act of 1976. It is inserted to put a check upon the
delaying tactics of litigating parties. It empowers the court to
impose compensatory costs on parties who are responsible for
causing delay at any state of the litigation. Such costs would be
irrespective of the ultimate outcome of the litigation.

10
Devinder Singh and Ors. v. State of Haryana and Anr., AIR 2006 SC 2850;
 18

(c) Contours of Judgment Writing in Money & Mortgage

Suits – Special reference to Operative portion –
Precedents.

A judgment is the statement given by the Judge, on the

grounds of a decree or order. It is the end product of the
proceedings in the Court. The writing of a judgment is one of
the most important and time-consuming task performed by a
Judge. The making and the writing of a judgment and the style
in which it is written, varies from Judge to Judge and reflects
the characteristic of a Judge. Every Judge, of every rank has his
own distinct style of writing.

The Code of Civil Procedure, 1908 and Code of Criminal

Procedure, 1973 have provided sufficient guidelines for writing
judgment. These, however, are not exhaustive. There is a wide
discretion left with the Judges to choose their style of writing,
language, manner of statement of facts, discussion of evidence
and reasons for the decision.

The judgment writing consumes the major part of Judge ‘s

work. Taking into account the mounting arrears, and the number
of cases in the daily cause list, the burden in judgment writing
sometimes becomes intolerable. The Judges by their
experience, find methods to reduce this burden, by writing brief
opinions. The judgment, however should serve the requirement
of law without compromising with the quality. The judgment is
also a reflection of the conscience of a Judge, who writes it, and
 19

evidences his impartiality, integrity and intellectual honesty. The

judgment writing provides opportunities for judicial officers to
demonstrate his own ability and his worthiness to be a
participant in the high tradition of moral integrity and social
utility.

Before writing a judgment, a Judge must remember that

he is performing a public act of communicating his opinion on
the issues brought before him and after the trial by observing
fair procedures. He is required to tell the parties of the decision,
on the facts brought before him, with application of sound
principles of law, his decision, and what the parties are
supposed to do as a necessary consequent to the judgment or
to appeal against it. It is basically a communication to the
parties coming before him for a decision.

It is worthwhile to keep the following basic rules in mind

while writing a judgment:

(a) Reasoning should be intelligible and logical.

(b) Clarity and precision should be the goal. Prolixity and

verbosity should be avoided. At the same time, brevity to an
extent where reasoning is the casualty should be avoided.

(c) Use of strange and difficult words and complex sentences

should be avoided. The purpose of a judgment is not to
showcase the Judge’s knowledge of language, or legal erudition,
but to decide disputes in a competent manner, and state the law
in clear terms.
 20

(d) A judge cannot use his personal knowledge of facts in a

judgment.

(e) If a judge wants to rely on precedents or decisions

unearthed by the Judge by his own research, he has to give an
opportunity to the parties to comment upon or distinguish the
same.

(f) In civil matters, the judgment should not travel beyond the
pleadings or the issues. Recording findings on issues or matters
which are unnecessary for disposal of the matter should be
resisted.

(g) Findings of fact should be based upon legal testimony. The

decision should rest upon legal grounds. Neither findings of fact
nor the decision should be based upon suspicion, surmises or
conjectures.

(h) All conclusions should be supported by reasons duly

recorded. The exceptions are where an action is undefended or
where the parties are not at issue, or where proceedings are
summary or interlocutory or formal in nature.

(i) The findings and directions should be precise and specific.

(j) A judge should avoid use of disparaging and derogatory

remarks against any person or authority whose conduct arises
for consideration. Even when commenting on the conduct of the
parties or witnesses, a judge should be careful to use sober and
restrained language. It should be remembered that the judge
making the remark is also fallible.
 21

(k) While exercising appellate or revisional jurisdiction,

unnecessary criticism of the trial courts’ conduct, judgment or
reasoning should be avoided.

(l) Before making any adverse remarks, court should consider:

(i) whether the party or the person whose conduct is being

discussed has an opportunity of explaining or defending himself
against such remarks; (ii) whether there is evidence on record
bearing on the conduct justifying the remark; (iii) whether it is
necessary to comment or criticize or censure the conduct or
action of the person, for decision of the case.

THE OPERATIVE PORTION:

A Judge must clearly write the operative portion of the

judgment, which pronounces his conclusion over the issues
brought before him. He must give clear and precise direction
and the manner in which the directions have to be obeyed in
conformity with the prayers made in the plaint. The object of
good judgment is to conclude the dispute and not to leave the
matter undecided. The judgment should leave nothing to be
brought back to the Court. The operative portion of the order
should as far as possible self-executing and self-contained.

Judgment should finally record the result of the

determination either granting relief or refusing to grant such
relief in civil cases and convicting or acquitting the accused in
criminal case and in the case of conviction, clearly indicating the
quantum of sentence both in terms of imprisonment and fine
and consequences of failure to pay fine within the prescribed
time. Even in civil cases, this part of the judgment should be
 22

stated in clear terms, leaving no scope for ambiguity. It should

exactly indicate what the Court requires the parties to do and
how the decision should be executed and which party has to
carry it out, the deadline for execution thereof. If it is a money
decree, the amount of money to be paid, by which party to
whom and if interest is also to be paid, the rate and the period
for which it has to be paid. In civil cases, Order 48 ,Rule 3 of
CPC provides that the forms given in the appendices, which may
be used as a guideline with such variation as the circumstances
of each case may require, for the purpose therein mentioned.

Operative portions in money decrees:

As per Order 20, Rule 6 of Code of Civil Procedure,

1908 The decree shall agree with the judgement, it shall
contain the number of the suit, the name and description of
the parties, their registered addresses and particulars of the
claim and shall specify clearly the relief granted or other
determination of the suit. The decree shall also state the
amount of costs incurred in the suit and by whom or out of
what property and in what proportions such costs are to be
paid. Further in money suits the court may direct that the
costs payable to one party by the other shall be set-off against
any sum which is admitted or found to be due from the former
to the latter. As per Order 20, Rule 6A CPC, every endeavour
shall be made to ensure that the decree is drawn up as
expeditiously as possible and in any case within 15 days from
the date on which the judgment is pronounced. A decree is
substantially the operative part of the judgement, whether it
may be money or mortgage. It is the duty of the Judge to
 23

make the operative portion of the judgment specific and

indicative of the intention in which the relief is intended
to be granted. Further it is the bounded duty of the court
to give findings on the issues framed by the court and
the judgement must conclude with the reliefs prayed by
the plaintiff and whether the relief granted or denied by
the court must be very clear to the parties to the suit.
Such operative portion must be executable.

Where a suit is partly decreed, the extent to

which the claim is decreed must be clearly specified with
proportionate costs. When it is intended to award
pending and future interest in money suits, the rate of
interest and the amount on which interest is to run,
should be clearly specified.

As per Order 20, Rule11 CPC, where and in so far

as a decree is for the payment of money, the court may for
any sufficient reason incorporate in the decree, after hearing
such of the parties who had appeared personally or by pleader
at the last hearing, before judgment, an order that payment
of the amount decreed shall be postponed or shall be made
by instalments, with or without interest, notwithstanding
anything contained in the contract under which the money is
payable. Order, after decree, for payment by instalments—
After the passing of any such decree the court may, on the
application of the judgment debtor and with the consent of
the decree holder, Order that payment of the amount decreed
shall be postponed or shall be made by instalments on such
terms as to the payment of interest, the attachment of the
 24

property of the judgment debtor, or the taking of security from

him, or otherwise, as it thinks fit.

As per Andhra Pradesh Amendment, where and

in so far as a decree is for the payment of money, the court
may for any sufficient reason incorporate in the decree, after
hearing such of the parties who had appeared personally or
by pleader at the last hearing, before judgment, an Order that
payment of the amount decreed shall be postponed or shall
be made by instalments, with or without interest,
notwithstanding anything contained in the contract under
which the money is payable.

Order, after decree, for payment by instalments: After

the passing of any such decree the court may, on the
application of the judgment debtor and with the consent of
the decree holder, order that payment of the amount decreed
shall be postponed or shall be made by instalments on such
terms as to the payment of interest, the attachment of the
property of the judgment debtor, or the taking of security from
him, or otherwise, as it thinks fit.

The discretion to order payment of decretal amount

by installments should not be exercised in such a
manner to constitute a virtual denial of the decree
holders’ rights. Whenever installments are granted, the
number of installments and the period for their payment
must have specifically stated. In case of vagueness, it
will create confusion in execution of the decree.
Likewise, it is better to specify what is to happen in case
of default in payment of installments.
 25

Some Model Operative Portions:

Model No.1:

In the result, the suit is decreed with costs.

The plaintiff is entitled to receive a sum of
Rs.10,76,264-33/- from the defendant along
with interest of 6% per annum till the
realization of the entire decretal amount. The
defendant is directed to pay the decretal
amount to the plaintiff within six months from
the date of this order.

Model No.2:

In the result, the suit is decreed with costs

against defendant for Rs. 3,00,000/-, together
with subsequent interest @ 12% p.a. on the
principal amount of Rs.2,00,000/- from the
date of the suit till the date of decree and
thereafter at 6% p.a., till the date of
realization.

Model No.3:

In the result, the suit is decreed ex-parte with

costs. The plaintiff is entitled to receive a sum
of Rs.10,76,264-33/- from the defendant
along with interest of 6% per annum till the
realization of the entire decreetal amount. The
defendant is directed to pay the decreed
 26

amount to the plaintiff within six months from

the date of this order.

In mortgage suits there would be several judgments

basing up on the type of mortgage on which then plaintiff
relies. Accordingly, the operative portions will vary from case
to case. In the appendix appended to the Civil Procedure
Code, 1908 the various models of mortgage decrees are
illustrated. From them the operative portions of judgments in
mortgage suits can be deduced.

Operative portion for the judgments of Mortgage:

Model No.1:

The suit for foreclosure is preliminarily decreed for

recovery of Rs.10,00,000/- (for example) with costs and
interest @ 24% p.a. (contractual rate of interest or in its
absence at discretion of the Court) from the date of suit
till the date of preliminary decree and thereafter @ 12%
p.a. (discretion of the Court) on the principal amount.
Time granted to defendant for redemption is six months.
In default the final decree ordering the sale of
mortgaged property may be sought by the plaintiff.
(Order 34 R.2 of C.P.C.)

Foreclosure of mortgage suits and where accounts

are directed to be taken: -
 27

In the Result the Commissioner to take the accounts

following: — (i) an account of what is due on this date to the
plaintiff for principal and interest on his mortgage mentioned in
the plaint (such interest to be computed at the rate payable on
the principal or where no such rate is fixed, at six per cent. per
annum or at such rate as the Court deems reasonable); (ii) an
account of the income of the mortgaged property received up to
this date by the plaintiff or by any other person by the order or
for the use of the plaintiff or which without the wilful default of
the plaintiff or such person might have been so received; (iii)
an account of all sums of money properly incurred by the
plaintiff up to this date for costs, charges and expenses (other
than the costs of the suit) in respect of the mortgage-security,
together with interest thereon (such interest to be computed at
the rate agreed between the parties, or, failing such rate, at the
same rate as is payable on the principal, or, failing both such
rates, at nine per cent. per annum); (iv) an account of any loss
or damage caused to the mortgaged property before this date
by any act or omission of the plaintiff which is destructive of, or
permanently injurious to, the property or by his failure to
perform any of the duties imposed upon him by any law for the
time being in force or by the terms of the mortgage-deed.

In the result any amount received under clause (ii) or

adjudged due under clause (iv) above, together with interest
thereon, shall first be adjusted against any sums paid by the
plaintiff under clause (iii) together with interest thereon, and
the balance, if any, shall be added to the mortgage-money or,
as the case may be, debited in reduction of the amount due to
 28

the plaintiff on account of interest on the principal sum adjudged

due, and thereafter in reduction or discharge of the principal.

And it is hereby further ordered that the said

Commissioner shall present the account to this Court with all
convenient despatch after making all just allowances on or
before the..............................................................day
of........... and that upon such report of the Commissioner being
received, it shall be confirmed and countersigned, subject to
such modification as may be necessary after consideration of
such objections as the parties to the suit may make.

That the defendant do pay into Court on or before

the................................. day of..............................., or any
later date up to which time for payment may be extended by
the Court, such sum as the Court shall find due, and the sum of
Rs....................... for the costs of the suit awarded to the
plaintiff. (ii) that, on such payment and on payment thereafter
before such date as the Court may fix of such amount as the
Court may adjudge due in respect of such costs of the suit and
such costs, charges and expenses as may be payable under rule
10, together with such subsequent interest as may be payable
under rule 11, of Order XXXIV of the First Schedule to the Code
of Civil Procedure, 1908, the plaintiff shall bring into Court all
documents in his possession or power relating to the mortgaged
property in the plaint mentioned, and all such documents shall
be delivered over to the defendant, or to such person as he
appoints, and the plaintiff shall, if so required, re-convey or re-
transfer the said property free from the said mortgage and clear
of and from all incumbrances created by the plaintiff-or any
 29

person claiming under him or any person under whom he claims

and free from all liability whatsoever or arising from the
mortgage or this suit and shall, if so required, deliver up to the
defendant quiet and peaceable possession of the said property.

In default of payment as aforesaid, the plaintiff shall be at

liberty to apply to the Court for a final decree that the defendant
shall thenceforth stand absolutely debarred and foreclosed of
and from all right to redeem the mortgaged property described
in the schedule annexed hereto and shall, if so required, deliver
up to the plaintiff quiet and peaceable possession of the said
property; and that the parties shall be at liberty to apply to the
Court from time to time as they may have occasion, and on such
application or otherwise the Court may give such directions as
it thinks fit.

Model No.2:

FORECLOSURE (Order XXXIV, Rule 2 CPC—Where the

Court declares the amount due.)

In the result the amount due to the plaintiff on his mortgage

mentioned in the plaint calculated up to this
.................................................day of...................... is
the sum of Rs......................... for principal, the sum of
Rs.................... for interest on the said principal, the sum
of Rs. ........................ for costs, charges and expenses
(other than the costs of the suit) properly incurred by the
plaintiff in respect of the mortgage-security, together with
interest thereon, and the sum of Rs........ for the costs of this
suit awarded to the plaintiff, making in all sum of Rs............
 30

2. (i) that the defendant do pay into Court on or before

the....................................day of............or any later date
up to which time for payment may be extended by the Court
of the said sum of Rs....................,

3. (ii) that, on such payment and on payment thereafter

before such date as the Court may fix of such amount as the
Court may adjudge due in respect of such costs of the suit
and such costs, charges and expenses as may be payable
under rule 10, together with such subsequent interest as
may be payable under rule 11, of Order XXXIV of the First
Schedule to the Code of Civil Procedure, 1908 (5 of 1908),
the plaintiff shall bring into Court all documents in his
possession or power relating to the mortgaged property in
the plaint mentioned, and all such documents shall be
delivered over to the defendant, or to such person as he
appoints, and the plaintiff shall, if so required, re-convey or
re-transfer the said property free from the said mortgage
and clear of and from all incumbrances created by the
plaintiff or any person claiming under him or any person
under whom he claims and free from all liability whatsoever
arising from the mortgage or this suit and shall, if so
required, deliver up to the defendant quiet and peaceable
possession of the said property

3. In default of payment as aforesaid, the plaintiff may apply

to the Court for a final decree that the defendant shall
thenceforth stand absolutely debarred and foreclosed of and
from all right to redeem the mortgaged property described
in the Schedule annexed hereto and shall, if so required,
 31

deliver up to the plaintiff quiet and peaceable possession of

the said property; and that the parties shall be at liberty to
apply to the Court from time to time as they may have
occasion, and on such application or otherwise the Court
may give such directions as it thinks fit.

Model No.3:

Sale (Order XXXIV When the Court declares the amount

due.)

In the result the amount due to the plaintiff on the mortgage

mentioned in the plaint calculated up to this....................
day of.........................is the sum of Rs.................for
principal, the sum of Rs..............................for interest on
the said principal, the sum of Rs........ for costs, charges and
expenses (other than the costs of the suit) properly incurred
by the plaintiff in respect of the mortgage-security, together
with interest thereon, and the sum of
Rs..............................for the costs of the suit awarded to
the plaintiff, making in all the sum of Rs............

2. (i) that the defendant do pay into Court on or before

the............... day of............................ or any later date
up to which time for payment may be extended by the Court,
the said sum of Rs..............;

(ii) that on such payment and on payment thereafter before

such date as the Court may fix of such amount as the Court
may adjudge due in respect of such costs of the suit and
such costs, charges and expenses as may be payable under
rule 10, together with such subsequent interest as may be
 32

payable under rule 11, of Order XXXIV of the First Schedule

to the Code of Civil Procedure, 1908, the plaintiff shall bring
into Court all documents in his possession or power relating
to the mortgaged property in the plaint mentioned, and all
such documents shall be delivered over to the defendant, or
to such person as he appoints, and the plaintiff shall, if so
required, re-convey or re-transfer the said property free
from the said mortgage and clear of and from all
incumbrances created by the plaintiff or any person claiming
under him or any person under whom he claims and shall, if
so required, deliver up to the defendant quite and peaceable
possession of the said property. 3. In default of payment as
aforesaid, the plaintiff may apply to the Court for a final
decree for the sale of the mortgaged property; and on such
application being made, the mortgaged property or a
sufficient part thereof shall be directed to be sold; and for
the purposes of such sale the plaintiff shall produce before
the Court or such officer as it appoints all documents in his
possession or power relating to the mortgaged property.

4. The money realised by such sale shall be paid into Court

and shall be duly applied (after deduction herefrom of the
expenses of the sale) in payment of the amount payable to
the plaintiff under this decree and under any further orders
that may be passed in this suit and in payment of any
amount which the Court may adjudge due to the plaintiff in
respect of such costs of the suit, and such costs, charges and
expenses as may be payable under rule 10, together with
such subsequent interest as may be payable under rule 11,
of Order XXXIV of the First Schedule to the Code of Civil
 33

Procedure, 1908, and that the balance, if any, shall be paid

to the defendant or other persons entitled to receive the
same.

If the money realised by such sale shall not be sufficient or

payment in full of the amount payable to the plaintiff as
aforesaid, the plaintiff shall be at liberty (where such remedy
is open to him under the terms of his mortgage and is not
barred by any law for the time being in force) to apply for a
personal decree against the defendant for the amount of the
balance; and that the parties are at liberty to apply to the
Court from time to time as they may have occasion, and on
such application or otherwise the Court may give such
directions as it thinks fit.

Model No.4:

Redemption where on default of payment by

mortgagor a decree for foreclosure is passed.

In the result, the amount due to the defendant on the

mortgage mentioned in the plaint calculated up to this ……..
day of ………… is the sum of Rs. …….…… for principal, the sum
of Rs. ………… for interest on the said principal, the sum of
Rs. ………... for costs, charges and expenses (other than the
costs of the suit) properly incurred by the defendant in
respect of the mortgage-security together with interest
thereon, and the sum of Rs. …...……. for the costs of the suit
awarded to the defendant, making in all the sum of Rs.
……………
 34

2. (i) that the plaintiff do pay into Court on or before

the.………….. day of …………. or any later date up to which time
for payment may be extended by the Court the said sum of
Rs. ……………

(ii) that, on such payment and on payment thereafter before

such date as the Court may fix of such amount as the Court
may adjudge due in respect of such cost of the suit and such
costs, charges and expenses as may be payable under rule
10, together with such subsequent interest as may be
payable under rule 11, of Order XXXIV of the First Schedule
to the Code of Civil Procedure, 1908, the defendant shall
bring into Court all documents in his possession or power
relating to the mortgaged property in the plaint mentioned,
and all such documents shall be delivered over to the
plaintiff, or to such person as he appoints, and the defendant
shall, if so required, re-convey or re-transfer the said
property free from the said mortgage and clear of and from
all incumbrances created by the defendant or any person
claiming under him or any person under whom he claims,
and free from all liability whatsoever arising from the
mortgage or this suit and shall, if so required, deliver up to
the plaintiff quiet and peaceable possession of the said
property.

3. In default of payment as aforesaid, the defendant may

apply to the Court for a final decree that the plaintiff shall
thenceforth stand absolutely debarred and foreclosed of and
from all right to redeem the mortgaged property described
in the Schedule annexed hereto and shall, if so required,
 35

deliver up to the defendant quiet and peaceable possession

of the said property; and that the parties shall be at liberty
to apply to the Court from time to time as they may have
occasion, and on such application or otherwise the Court
may give such directions as it thinks fit.

Model No.5:

The suit is preliminarily decreed for recovery of

Rs.10,00,000/- (for example) with costs and interest @
24% p.a.(contractual rate of interest or in its absence at
discretion of the Court) from the date of suit till the date
of preliminary decree and thereafter @ 12% p.a.
(discretion of the Court) on the principal amount. Time
granted to defendant for redemption is six months. In
default the final decree ordering the sale of mortgaged
property may be sought by the plaintiff. (Ord.34 R.4 of
C.P.C.)

In case the defendant/ mortgagor failed to

deposit the decreed amount within the period of time
granted for redemption the plaintiff/ mortgagee can
file the final decree petition under Ord.34 R.5 of
C.P.C. In such case, the court shall pass a final decree
directing that the mortgaged property or sufficient
part thereof be sold, according to Law.
 36

Model No.6:

The suit is preliminarily decreed for redemption of

mortgaged property subject to payment of
Rs.10,00,000/- (illustrious) with costs and interest
from the date of suit till the period of six months
granted for redemption. In default the defendant/
mortgagee can file petition for final decree for
appropriate relief. (for foreclosure in case of suit for
conditional sale; for sale in case of other suits of
mortgage) (Ord.34 R.7 C.P.C.).