Code of Civil

Procedure,
1908
 History of the Code
 First code in India by Warren Hastings, on
November 3, 1780
 Efforts by Sir Charles Wood, President of the Board
for affairs of India to make uniform procedure
 1859 – combination of four codes (Madras,
Bombay, North-Western Provinces, Lower
provinces of Bengal)
 1859 Act revised by Dr. Whitley Stokes, Secretary
Govt. of India and Lord Arthur Hobhouse and new
Act of 1877 was passed
 1877 Act was amended in 1879 and later it was
replaced by Act of 1882
 New Draft prepared by Select Committee was
referred to Special Committee headed by Sir Earle
Richards. The committee included Dr. Rashbehary
Ghose resulting in the enactment of Act of 1908
 Scheme of the Code
 Body of the Code
 158 sections
 First Schedule
 51 Orders
 Harmonious construction between two
parts
 Reasons for unique scheme of the
Code

 Multiplicity of Procedures
 Flexibility vis-à-vis Rigidity
 Part X, section 122 & 125
Scope, Object and Interpretation
 Procedural/Adjective Law
 Objective is to Consolidate the procedure
 Interpretation – as a handmaid to the
administration of justice – too technical
construction to be avoided
 Mahadev Govind Gharge & others v. Special Land
Acquisition Officer, Karnataka, AIR 2011 SC 2439

 Procedural laws, like the Code, are intended to control and

regulate the procedure of judicial proceedings to achieve the
objects of justice and expeditious disposal of cases. The
provisions of procedural law which do not provide for penal
consequences in default of their compliance should normally
be construed as directory in nature and should receive liberal
construction. The Court should always keep in mind the
object of the statute and adopt an interpretation which would further
such cause in light of attendant circumstances. To put it simply,
the procedural law must act as a linchpin to keep the
wheel of expeditious and effective determination of dispute
moving in its place. The procedural checks must achieve its end
object of just, fair and expeditious justice to parties without seriously
prejudicing the rights of any of them.
 Amendments to the Code
 Amendments of 1976 (1-2-1977)
 Amendments of 1999 (01-07-2002)
 Amendments of 2002 (01-07-2002)
 Hiearchy of Civil Courts
 Supreme Court
 High Court
 District Court
 Civil Judge (Senior Division)
 Civil Judge (Junior Division) {All India
Judges' Association Case reported in 1993
(6) SLR 37 }
 Decree
 An Adjudication of a Court
 Suit
 Formal Expression
 Determines the rights of the parties with
regard all or any of the matters in controversy
 Conclusive determination
 Decree ………….
 Deemed Decree
 Rejection of a Plaint
 Restitution (144)
 Determination u/s 47 (prior to 1976)
 Parshava Properties Ltd. v. A.K. Bose, AIR 1979
Pat. 308 ; MP High Court – Amendment of No
consequence
 Allahabad, AP, Bombay, Guahati & Punjab – held
otherwise
 Types of Decrees………….
 Preliminary Decree
 Final Decree
 Partly Preliminary and Partly Final
 Exclusions from Decree
 Appeallable Orders
 Dismissal for Default
 ORDER 2(14)
 Adjudication
 Formal Expression
 Which is not a Decree
 Decree & Order
 Decree – Suit  In suit or other
proceedings
 Adjudication is  May or may not be
Conclusive Conclusive
 Preliminary or Final  No such distinction
 One decree  Numerous Orders
generally  Not generally
 Generally appeallable
Appeallable  No Second Appeal
 Second Appeal
 Judgment 2(9)
 Statement of the grounds of Decree/order
 Concise statement of facts
 Points for determination
 Decision thereon
 Reasons for decision (O. XX)
 MESNE PROFITS 2(12)
 Profits derived by person in wrongful
possession
 Actually derived or might have derived
with ordinary diligence
 Interest is part of Mesne Profits
 Does not include profits due to
improvements
 Other Definitions
 Decree Holder 2(3)
 Foreign Court 2(5)
 Foreign Judgment 2(6)
 Judgment Debtor 2(10)
 Legal Representative 2(11)
 Public Officer 2(17)
 SAVINGS – Section 4
 In the absence of any specific provision to
the contrary
 Code shall not limit or affect any special or
local law in force
 Jurisdiction
 Meaning
 Types
 Basis to determine Jurisdiction
 Bank of Baroda v. Moti Bhai, AIR 1985 SC 545
 Abdul Gafur v. State of Uttarakhand, 2008(10 )SCC97 - a plea of bar to
jurisdiction of a civil court has to be considered having regard to the
contentions raised in the plaint. For the said purpose, averments
disclosing cause of action and the reliefs sought for therein must be
considered in their entirety and the court would not be justified in
determining the question, one way or the other, only having regard to
the reliefs claimed de'hors the factual averments made in the plaint.
 Consent and Jurisdiction
 Want of Jurisdiction and Irregular Exercise of Jurisdiction
 Jurisdiction ………….
 Want of Jurisdiction – Effect
 Territorial
 Pecuniary
 Subject Matter
 Jurisdiction of Civil Courts – s.9
 All Suits of Civil Nature
 Civil + Nature
 Right to an office or property is contested
 After 1976 whether such office is religious office or
otherwise. Whether fee attached or not whether
attached to particular place or not
 Unless cognizance expressly or impliedly barred
{Radha Kishan v. Ludhiana Municipality, AIR
1963 SC 1547}
 Express Bar (S. 15 (a) – (e) of Public Premises
(Eviction of Unauthorised Occupants) Act, 1971
 Secretary of State v. Mask & Co.
1940
 The Judicial Committee concluded
...It is settled law that the exclusion of the jurisdiction of
the Civil Courts is not to be readily inferred, but that
such exclusion must either be explicitly expressed or
clearly implied. It is also well settled that even if
jurisdiction is so excluded, the Civil Courts have
jurisdiction to examine into cases where the provisions
of the Act have not been complied with, or the statutory
tribunal has not acted in conformity with the
fundamental principles of judicial procedure.
 Illuri Subbayaa Chetty and Sons v.
State of A.P. (1963) 50 ITR 93 (SC)
 Non-compliance with the provisions of the statute to which
reference is made by the Privy Council must, we think, be non-
compliance with such fundamental provisions of the statute as
would make the entire proceedings before the appropriate authority
illegal and without jurisdiction. Similarly, if an appropriate authority
has acted in violation of the fundamental principles of judicial
procedure, that may also tend to make the proceedings illegal and
void and this infirmity may affect the validity of the order passed by
the authority in question. It is cases of thischaracter where the
defect or the infirmity in the order goes to the root of the order and
makes it in law invalid and void that these observations may
perhaps be invoked in support of the plea that civil court can
exercise its jurisdiction notwithstanding a provision to the contrary
contained in the relevant statute.
 Dhulabhai v. State of M.P.
 (1) Where the statute gives a finality to the orders of the special tribunals the Civil Courts'
jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil
Courts would normally do in a suit. Such provision, however, does not exclude those cases
where the provisions of the particular Act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.
 (2) Where there is an express bar of the jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil court.
 Where there is no express exclusion the examination of the remedies and the scheme of
the particular Act to find out the intendment becomes necessary and the result of the
inquiry may be decisive. In the latter case it is necessary to see if the statute creates a
special right or a liability and provides for the determination of the right or liability and
further lays down that all questions about the said right and liability shall be determined by
the tribunals so constituted, and whether remedies normally associated with actions in Civil
Courts are prescribed by the said statue or not.
 (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before
Tribunals constituted under that Act. Even the High Court cannot go into that question on
a revision or reference from the decision of the Tribunals.
 (4) When a provision is already declared unconstitutional or the
constitutionality of any provision is to be challenged, a suit is open. A writ
of certiorari may include a direction for refund if the claim is clearly within
the time prescribed by the Limitation Act but it is not a compulsory remedy
to replace a suit.
 (5) Where the particular Act contains no machinery for refund of tax
collected in excess of constitutional limits or illegally collected, a suit lies.
 (6) Questions of the correctness of the assessment apart from its
constitutionality are for the decision of the authorities and a civil suit does
not lie if the orders of the authorities are declared to be final or there is an
express prohibition in the particular Act. In either case the scheme of the
particular Act must be examined because it is a relevant enquiry.
 (7) An exclusion of the jurisdiction of the Civil Court is not readily to be
inferred unless the conditions above set down apply.
 Kamala Mills Ltd. v. State of Bombay
(1965) 57 ITR 643(SC) – Seven Judge
Bench
 Mafatlal Industries Ltd. v. Union
of India, (1997) 5 SCC 536
It is clear that actions by way of suits or petitions under Article226 of the Constitution cannot be completely eliminated.
The claims for refund can arise under three broad classes and the issue of ouster of jurisdiction of civil courts can be
understood by focusing on the parameters of these classes which are as follows:
 Class I ; Unconstitutional levy" - where claims for refund are founded on the ground that the provision of the
Excise Act under which the tax was levied is unconstitutional. --- Cases falling within this class are clearly outside
the ambit of the Excise Act. In such cases assessees can either file a suit under Section 72 of the Contract Act,
1872 (hereinafter called "Contract Act") or invoke the writ jurisdiction of the High Court under Article 226 of the
Constitution.
 Class II: "Illegal levy" - where claims for refund are founded on the ground that there is
misinterpretation/misapplication/erroneous interpretation of the Excise Act and the Rules framed thereunder ---
Ordinarily, all such claims must be preferred under the provisions of the Excise Act and the Rules framed
thereunder by strictly adhering to the stipulated procedure. In cases where the authorities under the Excise Act
initiate action though lacking in inherent jurisdiction, the remedy by way of a suit under Section 72 of the Contract
Act or a writ under Article 226 of the Constitution, will lie. Such a conclusion will not frustrate the exclusion of
jurisdiction of civil courts by the Excise Act because the areas where as authority acting under a statute is said to
lack inherent jurisdiction have been clearly demarcated by several decisions of this Court.
 Class III: "Mistake of Law" - where claims for refund are initiated on the basis of a decision rendered in favour of
another assessee holding the levy to be : (1) unconstitutional; or (2) without inherent jurisdiction ---
(1) An Exclusionary Clause using the formula 'an order of the tribunal under this Act shall not
be called in question in any Court' is ineffective to prevent the calling in question of an
order of the tribunal if the order is really not an order under the Act but a nullity.
(2) Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement
of enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal
is not properly constituted, or is disqualified to act; (c) the subject-matter or the parties
are such over which the tribunal has no authority to inquire; and (d) there is want of
essential preliminaries prescribed by the law for commencement of the inquiry.
(3) Cases of nullity may also arise during the course or at the conclusion of the inquiry, These
cases are also cases of want of jurisdiction if the word 'jurisdiction' is understood in a wide
sense. Some examples of these cases are (a) when the tribunal has wrongly determined a
jurisdictional question of fact or law; (b) when it has failed to follow the fundamental
principles of judicial procedure, e.g. has passed the order without giving an opportunity of
hearing to the party affected; (c) when it has violated the fundamental provisions of the
Act, e.g., when it fails to take into account matters which it is required to take into account
or when it takes into account extraneous and irrelevant matters; (d) when it has acted in
bad faith; and (e) when it grants a relief or makes an order which it has no authority to
grant or make; "as also (f) when by misapplication of the law it has asked itself the wrong
question.
Lack of Jurisdiction and Irregular
Exercise
 Anisminic Ltd. v. Foreign Compensation
Commission (1969) 2 AC 147
 Lack of jurisdiction may arise in various ways. There may be an
absence of those formalities or things which are conditions precedent to
the tribunal having any jurisdiction to embark on an enquiry. Or the
tribunal may at the end make an order that it has no jurisdiction to
make. Or in the intervening stage while engaged on a proper enquiry,
the tribunal may depart from the rules of natural justice; or it may ask
itself the wrong questions; or it may take into account matters which it
was not directed to take into account. Thereby it would step outside its
jurisdiction. It would turn its inquiry into something not directed by
Parliament and fail to make the inquiry which the Parliament did direct.
Any of these things would cause its purported decision to be a nullity.
 RES SUB JUDICE – s. 10
 Two suits
 Matters in issue
 Same parties/representatives
 Litigating under the same title
 Same court/competent court
 Previous court competent to grant relief in
the subsequent suit {date of previous
suit}
 RES JUDICATA – s. 11
 S. 11 – not exhaustive
 Principle of Universal Application
 Constitutional Law - Double Jeopardy
 Criminal Law – Autrefois convict
 Applicable to writs {Daryao v. state of U.P., AIR 1961 SC 1457}
Habeas Corpus – {Lallubhai Jogibhai Patel v. Union of India, AIR
1981 SC 728|}
 Ancient Civilisations – Roman, Hindu, Muslims
 Consent Decree – Yes (Subba Rao v. Jagannatdh Rao,
AIR 1967 SC 591) No (Prayya Allaya Hitalamani v. Sri
Prayya Gurulingayya Poojari, AIR 2008 SC)
 RES JUDICATA……..
 Once a res is judicata, it should not be
adjuged again
 Based on three principles
 Nemo debet lis vexari pro una at eadem causa
 Interest Republica ut sit finis litium
 Res Judicata pro vertitate accipitur
 Plea of Res Judicata
 RES JUDICATA……………
 Previous suit and subsequent suit
 Matters Directly and substantially in issue –
same
 Same parties/representatives
 Same Title
 Previous Court is competent to grant the relief
claimed in subsequent suit (read with
explanation VIII inserted in 1976)
 Heard and Finally decided
 Explanation – VIII (1976)
 Courts of Exclusive Jurisdiction
 Courts of Limited Jurisdiction
 Courts of Concurrent Jurisdiction
 Nabin Majhi v. Tela Majhi, AIR 1978 Cal. 440 –
other than ordinary civil courts
 Devoki Amma v. Kunhi Raman, AIR 1980 Ker.
230 – all courts
 Sulochana Amma v. Narayanan Nair, AIR 1994
SC 152
 RES JUDICATA
 Different stages of the same suit
 Y.B. Patel v. Y.L. Patil, AIR 1997 SC 392
 Barkat Ali v. Badri Nath, AIR 2008 SC
 Temporary Injunction – Arjun Singh v. Mohinder Kumar, AIR 1964
SC 992
 Questions of Fact/Mixed Questions
 Two suits tried together
 Question of Law
 Mathura Parsad v. Dossibai, AIR 1971 SC 2355
 Pure question of law unrelated to facts
 Jurisdiction of court to try earlier case
 Decision declared valid a transaction prohibited by law
 Law altered
 Constructive Res Judicata – Exp. IV
 Might & Ought to have been a ground of attack or
defence
 State of U.P. v. Nawab Hussain, AIR 1977 SC 1680
 Devilal v. Sale Tax Officer, AIR 1965 SC 1150
 Home Plantations v. Talaku Land Board (1999) 5 SCC
1990 – Opportunity of controverting a matter should be
taken to be the same thing as if actually controverted
 Bhanu Kumar Jain v. Archana Kumar (2005) 1 SCC 787
 Dada Dayalu Mahasabha, Jaipur v. Mahant Ram Nivas,
AIR 2008 SC
 Res Judicata and Issue Estoppel
 Decision of Court  Act of Parties
 Based on public  Based on Equity
policy  Rule of Evidence
 Ousts the  Prohibits different
jurisdiction things at diff. times
 Prohibits same  Prevents from
thing twice denying what once
 Presumes was truth
conclusiveness of
the decision
 Res Judicata b/w co-defendants
 Munni Bibi v. Triloki Nath , AIR 1931 PC
114
 Brij Narain Singh v. Adya Prasad, AIR
2008 SC (18/02/2008)
 Conflict of interest
 Necessary to decide that conflict
 Actually decided
 Necessary or proper parties
 Res Judicata b/w co-plaintiffs
 Iftikhar Ahmed v. Sayed Meharban Ali,
AIR 1974 SC 749
 Conflict of interest
 Necessary to decide that conflict
 Actually decided
 Necessary or proper parties
 Taxation Matters
 Radha Swami Satsang v. C.I.T. (1992) 1 SCC
659
 Strictly speaking – RJ – Not applicable since
each Assessment year is a separate unit
 But where fundamental aspect permeating
through different AYs has been found as a fact
and parties have allowed it to become final – RJ
is applicable
 Res Judicata & Representative Suits
 Expl. VI
 Litigate Bonafide
 Common right claimed
 Provisions of O. I r. 8 complied with
 Res Judicata become applicable
 Foreign Judgment (S. 13)
 Foreign Judgment conclusive except
 Not by court of competent jurisdiction Gurdial
Singh v. Rajah of Faridkot (1895) 22 Cal. 222
PC
 Not on merits
 Incorrect view of international law or failure to
recognise Indian law wherever applicable (Lex
Loci contractus)
 Obtained by Fraud
 Founded on breach of law in force in India
Foreign Judgment-How Enforced
 By instituting a suit on foreign judgment
 u/s 44 A – By instituting execution
proceedings
 Presumption as to Foreign
Judgments
 When certified copy filed
 Presumption that it was passed by a
competent court
 Presumption can be displaced
 Place of Suing
 Pecuniary Jurisdiction
 Court of Lowest Grade – competent to try (S.
15)
 Valuation of suits by the plaintiff vis-à-vis duty
of the court
 Place of Suing- s. 16
 Territorial Jurisdiction
 Suits relating to Immovable Property
 Recovery
 Partition
 Foreclosure, Sale, Redemption
 Right or interest
 Compensation for wrong to immovable property
 + recovery of movable property actually under attachment
 Where Immovable property is situate
 Place of Suing
 Where immovable property situate within
the jurisdiction of two or more courts (S.
17)
 Any of the courts where any part of the
property is situate and the suit is within the
pecuniary jurisdiction
 Where jurisdiction is uncertain
 Any of the courts after recording the factum
of uncertainty
 Place of Suing
 Compensation or wrongs to persons or
movables (S. 19)
 Where cause of action arose
 Where defendant resides
 Carries on business
 ‘personally’ works for gain
Place of Suing – Other cases (S.20)

 Where cause of action arose

 Where defendant resides
 Carries on business
 ‘personally’ works for gain
 Objections to Jurisdiction (S.21)
 Pecuniary and Territorial Jurisdiction
 No objection allowed by the appellate or
revisional court unless
 Taken in the court of first instance
 At the earliest possible opportunity/at or before
settlement of issues
 Consequent failure of justice
 Bar of Suit (S. 21 A)
 Inserted in 1976
 No fresh suit challenging territorial
jurisdiction
 Pecuniary jurisdiction not mentioned…..
 Suit – How instituted
 Presentation of Plaint (S. 26 r.w. O. IV)
 Duplicate Plaint (2002)
 Accompanied by an Affidavit (2002)
 To the officer of the court
 Where & When?
 Entry in register of civil suit
 Suit Number
 Parties to Suit {O. I}
 Necessary Parties
 Proper Parties
 Joinder of Plaintiffs (O I, r. 1)
 Right to relief arises from the same act or
transaction
 If separate suits were brought common
questions of law or fact would arise
 Joinder of Defendants (r.3)
 Right to relief arises from the same act or
transaction
 If separate suits were brought common
questions of law or fact would arise
 Power of the Court (r. 2 & 3A)
 If likely to embarrass the trial or cause
delay
 Court may order separate trials
 Court may give judgment against one or
more parties (r.4 )
Effect of Misjoinder/Non Joinder (r.9)
 No suit shall be defeated by non joinder or
misjoinder of proper parties
 Necessary parties – the decision is not
applicable
 Suit in the name of Wrong Plaintiff
(r.10)
 Court can allow the substitution
 At any stage of the suit
 If bonafide mistake
 For determination of real matters in
controversy
 Striking Out or adding of parties
 At any stage of the proceedings
 Suo motto or on application
 On terms as may be just
 Strike out or add the name of any party as plaintiff or
defendant
 Such person ought to be joined as plaintiff or defendant
 Real matters in controversy
 No person can be a plaintiff without his consent
 Person under disability – next friend
 Plaintiff is dominus litis – power to be used sparingly and
judidiciously
 Objections as to misjoinder/non
joinder
 At the earliest possible opportunity/at or
before the settlement of issues
 Unless ground has subsequently arisen
 Objection not so taken shall be deemed to
be waived
Addition or substitution of parties
 Any person may apply on the ground that
suit is improperly conducted and his
interest will be seriously affected
 He may also be substituted – if does not
proceed with due diligence
 Representative Suits (O.1,r8)
 Numerous Persons
 Same Interest
 Leave of the court
 Notice
Withdrawl/Compromise/Abandonmen
t
 Can not be withdrawn/compromised or
abandoned
 Except with the leave of the court
 Notice to all
 Frame of Suit – O. II
 Suit to be framed to enable final decision
 Suit to include whole claim
 Relinquishment of part of claim
 Omission to sue for one of several reliefs
 Joinder of Causes of Action
 If all of them are jointly interested
 IF separate suits were brought common
questions of law or fact would arise
 Cause of action arises from the same act
or transaction
 Joinder in case of immovable
property suits
 Claim for mesne profits
 Damages for breach of contract
 Claims in which relief claimed is based on
the same cause of action
 Objections as to misjoinder
 In the court of first instance
 At the earliest possible opportunity/at or
before the settlement of issues
 Unless grounds have subsequently arisen
 Otherwise they shall be deemed to be
waived
 Pleadings Generally – O. VI
 Pleadings – meaning
 Facts
 Concise statement of facts
 Material facts
 Facta Probanda and not facta probantia
 Facts and not law
 Consecutively numbered
 Divided into paragraphs
 Dates, figures in words also
 Forms in Appendix A to be used
 Particulars to be given
 Misrepresentation
 Fraud
 Breach of Trust
 Wilful Default
 Undue influence
 Other Things to be kept in mind
 Condition precedent to be stated
 Bare denial of contract
 Effect of document to be stated
 In case of Malice, Knowledge, fraudulent
intention, condition of mind – simple
allegations to be made
 Notice- only factum of notice to be stated
 Presumptions of Law
 Other Factors
 Pleading to be signed
 Verified
 Affidavit by the person verifying
 Address for the service of notice
 False or fictitious address
 Striking out of defence
 ModulaIndia v. Kamakshya Singh Deo, AIR
1989 SC 162
 Alternate and inconsistent Pleadings
 Striking out of pleadings
 Unnecessary, frivoulous, scandolous,
 Prejudice or embarrass
 Abuse of the process of the court
 At any stage
Amendment of Pleadings 6(17)

 Provision existing right from the beginning

 Clarapede & Company v. Commercial Union
Association (1884) Vol XXXII The Weekly
Reporter 262
 ".....The rule of conduct of the court in such a
case is that, however negligent or careless may
have been the first omission, and, however late
the proposed amendment, the amendment should
be allowed if it can be made without injustice to
the other side. There is no injustice if the other
side can be compensated by costs; but, if
the amendment will put them into such a position
that they must be injured, it ought not to
be made....."
 Amendment of pleadings used to be one of the easiest things in the
course of judicial proceedings before the amendments came to be
made in the C.P.C. in the year 1999. It was felt that the provision
for amendment of pleadings (Order 6, Rule 17) was greatly abused
and it was one of the significant sources of delay in the judicial
process. Accordingly, as per the recommendation of the Law
Commission, the provision for amendment of pleadings was
altogether deleted by Act 46/1999. The deletion of the provision
led to widespread protests by lawyers and different legal bodies and
as a result the provision was once again introduced, albeit with a
rider, by Act 22/2002, with effect from July 1, 2002.
 The opening para – at any stage of the proceedings
 But the proviso – no amendment to allowed after the
commencement of the trial unless it could not have been pleaded
inspite of due diligence
 Amendment of Pleadings
 Object of amendment in 2002 is to curb filing of
applications for amendment at later stages, to avoid
surprises to opposite parties and to curb delays in
disposal of civil suits {Chander Kanta Bansal and
Rajinder Singh Anand, AIR 2008 SC (11/03/2008)
 When trial commences??
 Ajendraprasadji N.Pandey & Anr. v. Swami Keshavprakeshdasji
N. & Ors. [2006 (12) SCC 1] it was observed that the date of
settlement of issues is the date of commencement of trial
 Baldev Singh & Ors. V.Manohar Singh & Anr. [2006 (6) SCC 498]
- commencement of trial as used in proviso to Order 6 Rule 17
in the Code of Civil Procedure must be understood in the limited
sense as meaning the final hearing of the suit, examination of
witnesses, filing of documents and addressing of arguments.
 Amendment of Pleadings
 Usha Devi v. Rijwan Ahamd & Ors., AIR 2008 SC
(17/01/2008), the apex court did not make any
comments as to when trial commences after
considering these judgments
 Amendment at appellate stage {Harcharan v.
State of Haryana, (1982) 3 SCC 408}
 State of Maharashtra v. Hindustan Construction
Co. Ltd., (2010) April 1, 2010 – Application for
setting aside Arbitration Award
 Amendment of Pleadings

 Discretion of the court

 Terms as may be fit and just
 Must be necessary for determination of real matters in
controversy
 No injury to the opposite party
 It should not introduce new cause of action or totally different
case
 Should not take away any legal right vested in the other party
 Union of India v. Pramod Gupta (dead) by LRs and Others,
(2005) 12 SCC 1, -delay and laches on the part of the parties to
the proceedings would also be a relevant factor for allowing or
disallowing an application for amendment of the pleadings.
 Amendment of Pleadings
 Should not be allowed to include time barred
claims …………L.J. Leach and Company Ltd.,
v. Jardine Skinner and Co., (1957) SCR 438
 It is no doubt true that courts would, as a rule,
decline to allow amendments, if a fresh suit on the
amended claim would be barred by limitation on the
date of the application. But that is a factor to be
taken into account in exercise of the discretion as to
whether amendment should be ordered, and does not
affect the power of the court to order it, if that is
required in the interests of justice."
 Should not be allowed when other party is
not acting in good faith
 After trial has commenced – only when
the party could not have pleaded that fact
even after the exercise of due diligence
 Decision is not a decree
 Not appellable order
 14 days
 Plaint – O. VII
 Plaint – Meaning
 Particulars to be contained in plaint
 Name of the court
 Name, address, and description of the plaintiff
 Name, address and description of the defendant
 Statement as to minority or unsoundness of mind
 Statement as to representative suit
 Cause of action
 Jurisdictional clause
Particulars to be contained in plaint
 Prayer Clause
 Valuation and Court fee clause
 Amount of set-off
 Precise amount claimed in money suits
 Description of the property in suits relating to
immovable property
 Grounds of exemption from law of limitation
 Interest and liability of the defendant in the
subject matter
Events Happening after the plaint
 Generally plaintiff not entitled to take benefit
 Relief depends upon the facts on the day of the
suit
 Pasupuleti Venkateswarlu v. Motor & General
Traders AIR 1975 SC 1409, cautiously events
happening after the date of the suit may be
taken note of especially when
 Original relief becomes wholly inappropriate
 Justice so demands
 But should not displace the vested rights of the
parties
 Admission of Plaint
 To deposit fee for service of summons
 To present as many copies as there are
defendants within seven days
 Return of Plaint – O. VII, r 10
 At any stage for being presented to the proper court
 If after summons to defendant, the plaintiff may make
an application stating therein
 The court where he proposes to file the suit
 Prayer to fix the date for appearing before the said court and
 Request for notifying the defendant about the same and
 Court may fix the date and notify the defendant and
 There is no need for summoning the defendant by the new court
 Court shall endorse date and time of presentation and
return alongwith the reasons for returning the plaint on
the plaint.
 Rejection of Plaint – O.VII, r.11
 Does not disclose cause of action
 Undervalued
 Insufficiently stamped
 Suit appears to barred
 Not filed in duplicate
 No. of copies not filed
 Plaintiff can file fresh suit
 Rejection of plaint is a deemed decree, therefore
appeal can also be filed
 Documents relied upon in the plaint
 Documents relied upon or upon whom the
plaintiff’s claim is based to be entered in list of
documents and the list to be appended with the
plaint
 The original and copy of the documents to be
filed alongwith the plaint
 Otherwise shall not be received in evidence
except with the leave of the court
 This rule not applicable to Documents required
for cross-examining defendant’s witnesses or
handed over to a witness to refresh his memory
 Summons (O. V, ss. 27-29)
 Summons – an intimation that suit is filed, to
appear and answer the claims
 To appear and answer within 30 days or 90 days
 Prescribed form, Appendix B, First Schedule
 Summons should be signed, sealed
 Summons should be accompanied by copy of
plaint
 Summons may be for appearance in person or
through authorised agent
 When personal appearance can be
asked for (r.4)
 Personal appearance can be called for
 When resident within the jurisdiction of the
court
 When resident beyond the jurisdiction but
within 50 miles from the court
 When resident beyond 50 miles but within
200 miles – if established public transport
system exists for 5/6th of the distance.
 Exemptions from personal
appearance
 When resident beyond the jurisdiction of the court and between 50 – 200
miles but no established public transport system for 5/6th of the distance
 Resident beyond 200 miles
 Exemption under section 132 – Pardanashin lady
 Exemptions u/s 133
 President
 Vice President
 Speaker
 Ministers of the Union
 Judges of SC
 Governors, Administrators
 Chairman of State Legislative Council
 Ministers of States
 Judges of High Court
 Rulers of former Indian States
 What summons should contain
 Name of the court
 Date and time
 Purpose
 Direction to produce documents etc.
 Service on Whom?
 Personal Service
 On the defendant …..serving officer to follow the defendant
 Duly authorised agent
 In case of immovable property – on the agent in charge of
property
 If defendant can not be found and no likelihood of his being
found – any adult member of the family
 Suit in connection with business – on manager or agent in
charge
 If resident outside India and no agent in India – by post, email, fax,
courier service
 If resident in the jurisdiction of other court – summons to be sent to
such other court
 If resident in presidency towns – to small causes court
 If in army, navy or air force – to commanding officer
 If in prison – on SP Jails
 If corpn. – Principal Officer, secretary
 Service by Delivery or tendering a copy of
summons
 Defendant or agent or person served to sign an
acknowledgement as evidence of service
 Serving officer to sign and make an
endorsement regarding time and manner of
service
 If refuses to sign, the serving officer to endorse
this fact on the copy of summons alongwith his
statement and signatures
 Other modes of service
 Approved Courier service
 Fax
 Email
 Registered post acknowledgment due, if
AD lost, valid service
 Speed post
 If defendant refuses to accept post, postal
officer to make an endorsement
 Substituted Service
 At the instance of Serving Officer (r. 17)
 Def. refuses to accept service
 He is absent,
 Can not be found and no likelihood of being found
 No agent
 No other person on whom service can be made
 Copy to be affixed on the outer door or conspicuous part
 Make an endorsement
 If affidavit furnished, serving officer may be examined
 If affidavit not furnished by serving officer, he shall be examined
 At the instance of the court (r. 20)
 Court satisfied
 Def. is avoiding service
 Or for any other reason summons can not be
served in the ordinary manner
 Conspicuous part of the house of def., court
house
 Advertisement in newspaper
 Written Statement – O. VIII
 Meaning
 30 days from the date of service of
summons
 Time limit can be extended upto 90 days
for reasons to be recorded in writing
 Use of word shall
 Kailash v. Nankhu (2005) 4 SCC 480
 The purpose of providing the time schedule for filing the written
statement under Order VIII, Rule 1 of CPC is to expedite and not to
scuttle the hearing. The provision spells out a disability on the
defendant. It does not impose an embargo on the power of the
Court to extend the time. Though, the language of the proviso to
Rule 1 of Order VIII of the CPC is couched in negative form, it does
not specify any penal consequences flowing from the non-
compliance. The provision being in the domain of the Procedural
Law, it has to be held directory and not mandatory. The power of
the Court to extend time for filing the written statement beyond the
time schedule provided by Order VIII, Rule 1 of the CPC is not
completely taken away.
 Kailash v. Nankhu (2005) 4 SCC 480
 Though Order VIII, Rule 1 of the CPC is a part of Procedural Law and hence
directory, keeping in view the need for expeditious trial of civil causes which
persuaded the Parliament to enact the provision in its present form, it is
held that ordinarily the time schedule contained in the provision is to be
followed as a rule and departure therefrom would be by way of exception.
A prayer for extension of time made by the defendant shall not be granted
just as a matter of routine and merely for asking, more so when the period
of 90 days has expired. Extension of time may be allowed by way of an
exception, for reasons to be assigned by the defendant and also be placed
on record in writing, howsoever briefly, by the Court on its being satisfied.
Extension of time may be allowed if it was needed to be given for the
circumstances which are exceptional, occasioned by reasons beyond the
control of the defendant and grave injustice would be occasioned if the time
was not extended. Costs may be imposed and affidavit or documents in
support of the grounds pleaded by the defendant for extension of time may
be demanded, depending on the facts and circumstances of a given case.

 Sambaji &Others v. Gangabai &
others, (2008) 15 SCALE 522
 Order 8 Rule 1 CPC after the 1999 amendment, casts an obligation
on the defendant to file the written statement within 30 days from
the date of service of summons on him and within the extended
time falling within 90 days. The provision does not deal with the
power of the court and also does not specifically take away the
power of the court to take the written statement on record though
filed beyond the time as provided for. Further, the nature of the
provision contained in Order 8 Rule 1 is procedural. It is not a part
of the substantive law. Substituted Order 8 Rule 1 intends to curb
the mischief of unscrupulous defendants adopting dilatory tactics,
delaying the disposal of cases, causing inconvenience to the
plaintiffs and the petitioners approaching the court for quick relief
and also the serious inconvenience of the court faced with frequent
prayers for adjournments. The object is to expedite the hearing and
not to scuttle the same. While justice delayed may amount to
justice denied, justice hurried may in some cases amount to justice
buried.
 Particulars in written statement
 New Facts such as suit not maintainable –
limitation, fraud, illegality etc. to be set out in
detail
 Specific denial
 Not evasive denial
 If denial not specific- deemed to be admitted
 Where reliance upon several grounds, they must
be separately stated
 New grounds of defence
 Generally no pleading after written
statement except in case of set-off and
counter claim
 If no written statement filed, court may
pronounce judgment against the
defendant however, it is not mandatory
 Legal Set off – O VIII, r. 6
 Money suit
 Ascertained sum of money
 Legally recoverable
 Not exceeding the pecuniary limits of the
court
 Same capacity
 At the first hearing
 Equitable Set-off
 Not specifically provided in CPC
 O. XX, r. 19(3)
 Doctrine of courts of Equity
 Unascertained sum of money
 Arising from the same transaction or same series
of transactions
 May be money suit or otherwise
 When it is inequitable to derive the defendant to
a separate suit
 May not be legally recoverable
 Legal Set-off : Equitable Set-off
 Money suits  Any suit
 Ascertained sum  Unascertained sum
 Legally recoverable  May not be legally
 Not required to rec.
arise out of the  Must arise out of
same transaction the same
 Available as a right transaction

 Discretion of the
court
 Counter Claim r. 6A-6G
 Introduced in 1976
 Laxmidas v. Nanabhai, AIR 1964 SC 11
 Cross action by the defendant
 Like plaint in cross suit
 Cause of action may arise after the presentation of the plaint but before
written statement
 Shall not exceed pecuniary jurisdiction of the court
 May be for ascertained sum of money
 Generally Courter claim is more than the original claim
 Bollepanda P. Poonacha & Anr v. K.M. Madapa, AIR 2008 SC 2003 ; A right
to file counter claim is an additional right. It may be filed in respect of any
right or claim, the cause of action therefore, however, must accrue either
before or after the filing of the suit but before the defendant has raised his
defence. A belated counter claim must be discouraged.
 Set off : Counter Claim
 Defence  Ground of attack
 Money Suit  Any suit
 Ascertained sum of  May be
money unascertained sum
 Must be of money
Recoverable on the  Must be
date of the suit recoverable on the
 Amount is equal to date of w/s
or less than the  Amount is
original claim generally greater
than the original
Appearance of Parties and consequences
of Non appearance (Order IX)
 To appear in person, if the summons contain
such a direction
 Otherwise to appear in person or through
pleader
 If plaintiff has not deposited the court fee,
postal charges etc., copies of plaint not filed,
and summons could not be served – suit may be
dismissed
 Two options –
 to make an application to set aside such order and
restoration of suit to file
 to file fresh suit
Consequences of non appearance
 If no party appears – may dismiss the suit
 Two options
 to make an application to set aside such order and restoration of
suit to file
 to file fresh suit
 If plaintiff appears and defendant does not appear
 If summons duly served in time – court ‘may’ make an order
that suit be heard ex-parte
 If defendant appears before the next date and shows
reasonable cause, suit to be restored to file
 If summons duly served but not in time
 Adjournment of hearing to a future date
 Notice to be given to the defendant
 If summons not duly served
 Second summons to be issued
 Duty of plaintiff to apply for fresh summons
within seven days (r. 5)
 If application not made within 7 days, suit to be
dismissed qua such defendants unless the court is
satisfied
 Plaintiff made best efforts to locate the defendant
 Defendant is avoiding the service
 Sufficient cause for extending time
If only defendant appears (r. 8,9)
 Suit to be dismissed
 No fresh suit can be filed (r. 9 read with
section 12)
 An application for restoration of suit to file
– if sufficient cause is shown
 Notice of such application to defendant
Setting aside Ex parte decrees (r. 13)
 When ex parte decree passed, various options
 To make an application for setting aside u/r 13 within 30 days
 To file an appeal against the decree
 To file review
 Application u/r 13 and appeal can be taken up simultaneously????
 Application on the following grounds:
 Summons not duly served
 Sufficient cause shown
 Notice to other party
 The court on payment of cost or such terms
 Set aside the ex parte decree and fix day for proceeding with suit in
usual manner
 No decree to be set aside on mere irregularity in service of
summons – if defendant had notice of the proceedings and had
sufficient time
 Examination of the parties by the
Court O. X
 At the first hearing
 With a view to find out the matters in
controversy
 With a view to frame issues
 Oral examination of the party or any person who
accompanied the pleader and who is aquainted
with the facts of the case.
 If pleader/that person refuses to answer, the
court will direct the party to appear within seven
days
 If does not appear within 7 days, court may
pronounce judgment against him
 O. 10 r. 1A
 Inserted in 2002
 With the object of reducing the burden on
the courts
 Court shall direct the parties to opt for one
of the modes of ADRS detailed in s. 89
 Arbitration, Conciliation, Mediation and
Judicial Settlement through Lok Adalats
 Discovery and Inspection O. XI
 Interrogatories
 Set of questions to be put by one party to
another to clarify factual position
 Purpose – to know the case of the opponent;
to obtain admissions etc.
 No interrogatory to know what evidence the
other party has got
 Usually after filing of written statement
 One set of interrogatories usually
Application to be made to the court for leave to
serve interrogatories
Application to contain the particulars of
interrogatories
Which interrogatory to answered by whom
Interrogatories in Appendix C
If opposite party is minor/unsound mind-
interrogatories to be served upon the guardian/next
friend
 Answer to Interrogatories
 By way of an affidavit within 10 days or such extended time
 Answer in Form No. 3, Appendix C
 Party replying may take objections in their affidavit viz., scandalous,
unreasonable, unwarranted at the present stage etc.
 If answer inadequate or insufficient, an application may be made to
the court and court can ask for further answer.
 Application may be made within seven days for setting aside of
interrogatories
 If answer not filed/refusal – if plaintiff suit be dismissed and if
defendant – defence be struck out
 No fresh suit can be filed (O. XI(21)(2) read with section 12
 Discovery of Documents
 Documents annexed with the pleadings – notice, at or before the
settlement of issues, to produce such documents and to take
extracts therefrom. Within 10 days of notice, the reply to be given,
three days to inspect
 Other documents
 Application u/r 12 to know what documents are in possession/power
of the opponent
 If court orders, the other party to file affidavit
 Production of documents
 Inspection of documents
 Premature discovery
 Failure to produce – if plaintiff- dismissal, if defendant – defence to
be struck out. No fresh suit
 Admissions Order XII
 Notice to other party to admit a document within
seven days from date of service
 Notice in Form 9, Appendix C
 If not denied – deemed to be admitted
 Notice to admit facts – not later than 9 days
before the date of hearing
 To be answered within 6 days after service of
notice
 Court may pronounce judgment on the basis of
admissions
 Framing of Issues, O. XIV
 Backbone of a suit (State of Gujarat v. Jaspal Singh
(1994) 35 (1) Gujarat Law Reporter, p. 258)
 Issues – meaning
 Issues of law, fact or mixed issues
 Materials from which issues to be framed
 Plaint, Written Statement, Answers to interrogatories,
Replication, Examination under order X, documents produced by
the parties
 Court may examine witnesses
 First Hearing – Sangram Singh v. Election Tribunal AIR
1955 SC 425
 Court to frame the issues, parties and
counsels to assist the court in framing of
issues
 To pronounce judgment on all issues –
generally (r. 2)
 Power to amend, frame additional issues
and strike out issues at any stage of the
suit
 Agreement between the parties
 Disposal of Suits at the first hearing
(Order XV)
 Parties are not at issue
 When the evidence required to adjudicate on the
issues is sufficient or can be immediately
produced by the parties
 If the summons are for settlement of issues only
– then with the consent of the parties
 If the summons for final disposal and for
producing evidence – party fails without
sufficient cause
 Summoning and Attendance of
Witnesses (O. XVI)
 No person can be summoned as witness unless:
 He resides within the jurisdiction of the court
 He resides beyond such jurisdiction but within 100
KMs
 He resides beyond 100 but upto 500 KMs where 5/6th
of the distance is covered by established public
conveyance system
 Where the air transport is available and air fare is
paid
 List of Witnesses
 List of witnesses to be furnished within 15 days of
settlement of issues
 If a witness’s name not in list, he can not be called as
witness. The court may permit on sufficient cause
after recording reasons.
 The party to obtain summons within five days of
presenting the list of witnesses
 Expenses fixed by the court to be paid into the court
before issue of summons within seven days of
application for obtaining summons
 Party may summon the witnesses without the
intervention of the court whose name is in the list of
witnesses – expenses to be paid
 If amount paid is insufficient
 Further sum to be paid
 If default – attachment and sale of
movable property or discharge the witness
or both
 If witness to be detained for more than
one day – further sum to be paid – on
default – may discharge the witness or
attach and sell movable property or both.
 Summoning of Witness
 Service of summons in the same manner
as is under Order V
 Summons should disclose the particulars
 Summons may be given to the party for
service on witness (r. 7A)
 If summons could not be served by party
or refused, to be served by court in the
ordinary manner.
 If witness does not comply with
summons
 If summons duly served - examination of serving officer
 Court is of the opinion that witness is material
 Witness is intentionally avoiding service or not complying with without
reasonable cause
 Proclamation to be issued
 The court may attach property or issue warrant for arrest
 If witness appears and shows sufficient cause, attachment to be withdrawn
 If he does not appear, the court can proceed u/s 32 i.e. attachment and
sale of property, warrant of arrest, impose fine upto 5000?? Or order him to
furnish security
 No witness to leave unless all the witnesses examined or without the
permission of the court
 If leaves, the court can proceed as if he has not appeared
 Court can summons witnesses on its own motion
 Witnesses lodged in Jail
(Order XVIA)
 If witness is material and jail is within 25 kms.
Form the court house
 If beyond 25 kms, ordinarily no personal
appearance unless the court is of the opinion
that examination on commission would be
inadequate
 Expenses to be paid into court
 The state govt. can exempt certain categories of
prisoners from personal appearance
 Examination on commission
 Adjournments (O. XVII)
 Adjournments for reasons to be recorded in writing
 Not more than three adjournments during the hearing of the suit
 Hearing of the suit to be on day to day basis untill all the witnesses
in attendance are examined
 No adjournment during hearing except for reasons beyond the
control of the party
 Pleader busy in other court – no ground for adjournment
 If pleader is sick – adjournment only when the party could not have
engaged another counsel
 If witness present but party/pleader not present or if present not
ready to examine/cross examine – court may record the statement
and examination and cross examination may be dispensed with
 Hearing of Suit and Examination of
Witnesses (Order XVIII)
 S. 153B trial to be in open court
 Ss. 101-114 of Evidence Act, 1872 – Right to
begin
 The party having right to begin to present his
case/evidence/arguments
 The other party to reply/present his evidence
 The first party to conclude the whole case
 Oral arguments/written arguments
 Where party is to appear as witness, it should
appear first before other witnesses
 Recording of Evidence (r.4)
 Examination in chief- shall be on an affidavit
 Cross examination and re-examination of
witnesses in attendance may be by court or by
the commissioner
 Commissioner to record the objections raised by
the parties and court to decide on those
objections
 Commissioner to submit report within 60 days
 Evidence recorded by the commissioner
alongwith the report shall form part of the
record of the case.
 In appealable cases, the whole of the evidence to be recorded in
the language of the court
 In non appelable cases, only the substance of the evidence to be
recorded.
 Evidence to be read over to the witness who is to sign the
statement
 Evidence in English when English is not the language of the court –
if given in English and taken down in English
 Otherwise, only if, the pleaders/parties do not object
 The questions objected by a party and allowed by court shall be
recorded together with decision on those objections
 Examination de bene esse (r. 16)
 Power to appoint Commission (r. 19 read with Order 26 r. 4A)
 Commission (ss. 75-78, O. XXVI)
 Discretionary Remedy
 Either suo motto or on application of either party
 Power to issue commissions (s.75)
 To examine witnesses (rules 1-8 of O. XXVI)
 To Make Local Investigation (rules 9-10)
 To Examine or adjust accounts (r. 11-12)
 To Make a partition (r. 13-14)
 To Hold scientific, technical and expert investigation (r. 10A)
 To conduct sale of movable property (r. 10C)
 To perform ministerial acts (r. 10B)
 To Examine Witnesses
 Person resident within the jurisdiction of the
court (r. 1)
 When he is exempt from appearance in court
 Paramhansa Ramkrishna v. Trimbak Rajaram, AIR 1978
Bom., 176 (Paramhansa)
 Unable to attend due to sickness or infirmity
 Interest of Justice (r. 4A)
 Expeditious disposal of case (r. 4A)
 Any other sufficient reason (r. 4A)
 Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
 To Examine Witnesses
 Other Cases (r. 4)
 Resides outside the jurisdiction of the court
 Witness is about to leave the jurisdiction of the court
 Government servant – appearance in court will be
detrimental to public interest
 Where personal appearance can not compelled (100
KM to 500 KM and beyond), if examination is
necessary in the interest of justice
 Person is resident outside India and his examination
is necessary (r. 5)
 To Examine Witnesses
 The Evidence collected will be read in evidence
with the consent of the opposite party except
where (r. 8)
 Witness is beyond the jurisdiction of the court
 Witness is dead
 Witness is unable due to sickness or infirmity
 Exempted from personal appearance
 Government servant – detriment to public
 Court authorises
 Local Investigations
 To collect evidence on the spot
 To ascertain market value
 To investigate any dispute
 To investigate mesne profits
 To investigate damages
 To determine net profits
 Report by commissioner alongwith the evidence
shall be the evidence in the suit
 Commissioner may be examined by court or with
the permission of the court by any party
 Commissions on the request of
foreign courts (r. 19-22)
 If HC is satisfied on the
 Certificate signed by consular office through CG
 Letter of request transmitted through CG
 Letter of request produced directly by party in HC
 Suit of civil nature
 Witness is resident within appellate jurisdiction
of the HC
 On application by the party or
 On application by law officer of the state govt.
 General provisions regarding
commissions
 Expenses (r. 15)
 Powers of commissioners (r. 16)
 Examine the parties, witnesses or any other person
 Call for and examine documents
 Enter upon any land or building at reasonable time
 Objections of parties, answers and names to be
reduced into writing
 All powers of a civil court regarding summoning,
attendance and examination of witnesses
 Affidavits (Order XIX)
 An Affidavit per se does not become evidence in the
suits, but it can become evidence only by consent of the
party or where it is specially authorized by particular
provision of law. Affidavits are not included in the
definition of ‘evidence’ as provided in Section 3 of The
Evidence Act, 1872.
 Court may order any fact to be proved by affidavit (r. 1)
 Cross examination
 Affidavit to be confined to matters of personal
knowledge except in interlocutory applications where it
may include statement on his belief
 Judgment and Decree (O. XX)
 Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381
 Judgment in Open Court
 Immediately or as early as practicable
 Notice
 30 days
 Exceptional and extra-ordinary circumstances – endeavour
should be made to pronounce judgment within 60 days
 Anil Bhai v. State of Bihar, AIR 2001 SC 3173
 Bachan Singh v. State of Punjab, AIR 1980 SC 898, Bhagwati
J. (16-08-1982)
 Only the final order to be pronounced
 Judgment to be signed
 Where parties not represented by pleaders, court to inform
about right to appeal, period of limitation
 Contents of Judgment
 Small Cause Courts
 Points for determination
 Decision on those points
 Other Courts
 Concise statement of facts
 Points for determination
 Decision on those points
 Reasons for those decisions
 Decree
 Within 15 days ‘endeavour’ shall be made
 Appeal against decree without filing copy of decree (01-
07-2002)
 Decree date- date of judgment
 Signed by judge
 Contents of decree
 Suit number
 Name of parties
 Addresses
 Particulars of claim
 Relief granted
 Cost of the suit, by whom to be paid
Contents of Decree – Specific Cases
 Decree for recovery of immovable property
 Description of property
 Survey numbers
 Decree for delivery of movable property
 The amount of money as an alternative remedy
 Decree for payment of money
 May order payment in instalments
 May postpone the payment of money
 Order to pay in instalments may be made after the
passing of decree on the application of judgment
debtor with the consent of decree holder
Contents of Decree – Specific Cases
 Decree for possession, rent and mesne profits
 Possession of property
 Rent
 Mesne profit
 Future rent rent and mesne profits
 Specific performance of a contract of sale or
immovable property
 Purchase to be made
 Time period
 Contents of Decree – Specific Cases
 Administration Suit
 Preliminary Decree
 Enquiry into accounts
 Final decree on the basis of preliminary decree
 If the property insufficient – provisions relating to insolvency to be
applicable
 Pre-Emption Suit
 Dissolution of partnership
 Principal and agent
 Partition
 Set off and Counter Claim
 Supplemental Proceedings – ss. 94-95
Arrest before Judgment (O. XXXVIII)
 At any stage of the suit
 Other than suits relating to immovable property
 Intent to delay the plaintiff or to avoid the process of
the court/obstruct or delay the execution of decree -
defendant
 Absconded or left the limits of the jurisdiction
 About to abscond or leave
 Disposed or removed his property or any part
 Defendant is about to leave India
 Court may issue a warrant of arrest – to show cause –
why he should not furnish security
 Arrest before Judgement (O.
XXXVIII)
 If defendant furnishes security - he can not be
arrested
 If does not show cause – shall furnish security
 If does not furnish security – confinement in civil
prison – upto Rs. 50 – 6 weeks
 More than Rs. 50 – 6 months
 If security is in the form of surety – he can give
application for discharge – summons/warrant for
defendant and surety will be discharged on
appearance of defendant
 Attachment before Judgement (O.
XXXVIII)
 At any stage of the suit
 Intent to obstruct or delay the execution
 About to dispose of the property or part
 About to remove the property
 To furnish security or produce and place the property at
the disposal of the court
 If no cause shown or security not furnished –
Attachment
 If security furnished later on – attachment to be
withdrawn
 Agricultural produce – not attahable
 Attachment before Judgement (O.
XXXVIII)
 Premraj v. Maneck Gazi, AIR 1951 Cal. 156 – Principles
 Question of Fact
 Merely because no harm would be caused – no ground
 Merely because he is selling his properties
 Only small portion of properties sold
 Mere transfer not enough – additional facts to be proved
 Defendant in an insolvent condition
 Business closed or turnover reduced
 Sale at undervalue
 Extraordinary remedy
 Utmost care and caution
 Temporary Injuction (O.XXXIX)
Grounds
 Property in dispute is in danger of being
wasted/damaged/alienated/wrongfully sold
 Defendant threatens or intends to remove or
dispose of the property – defrauding creditors
 Defendant threatens to dispossess the plaintiff
 To restrain from committing breach of contract
 Temporary Injunction
 Notice to other party
 Notice may be dispensed with – if the purpose
will be defeated
 Reasons to be recorded
 Copy of the order, application, affidavit, plaint,
and documents are to sent to the opposite party
immediately by regd. Post or delivered
 To file the affidavit on the same day or
maximum next day that these copies have been
sent
 Application within 30 days to be disposed off
 Temporary Injuction – Principles
 Dalpat v. Prahlad, AIR 1993 SC 276
 Mandali Ranganna v. T. Ramchandra, 2008(8) SCALE 277
 Kishorsinh Ratansinh Jadeja v. Maruti Corpn., 2009 (11) SCC 229
 Prime facie case – strong case, needs trial – probability that
applicant is entitled to relief
 Whether on evidence lead, it is possible to arrive at the conclusion in
question and not whether it is the only conclusion
 Irreparable Injury
 Balance of Convenience
 Conduct of the parties
 Delay/laches acquiescence
 Suppressed material facts
 Clean hands
 Interlocutory Orders
 Interim sale
 Detention, preservation and inspection of any property
 Authorise any person to enter upon any immovable
property
 Auhorise samples to be taken, experiment to be
conducted
 Application at any time
 Notice to other party-except where purpose will be
defeated
 Where subject matter is money or other property
capable of delivery – party admits - trustee
 Receiver (O. XL)
 Before or after the decree
 Court can confer powers
 Remuneration to be fixed by the court
 Duties – shall furnish security
 Furnish accounts
 Pay the amount due from time to time
 Responsible for loss due to his wilful default/gross negligence

 On failure to perform duties – his property may

be attached and sold
 Receiver (O. XL)
 Discretion
 Protective Relief
 Prima facie case
 Merely because it causes no harm – no
ground
 Conduct of the parties
 Suits Against Government or Public
Servant (Ss. 79-82 and O. XXVII)
 Suits against government
 Suits against public servant in respect of
official duties
 Requirement of Notice (S. 80)
 Two clear months
 Title of the suit
 CentralGovt. --- Union of India
 State Govt. --- The State of ….
 Where and to Whom notice to be
given?
 Suit against Central Govt. – Secretary
 Railways – General Manager
 J & K Govt. – Chief Secretary or
authorised officer
 Other State Govt. – Secretary/Collector
 Public Officer – Such Public Officer
 Notice - Object
 Govt. may reconsider the decision and decide for itself
whether the claim made could be accepted or not
 the advancement of justice and the securing of public
good by avoidance of unnecessary litigation. (Bihari
Chowdhary v. State of Bihar, AIR 1984 SC 1043)
 To alert the State to negotiate a just settlement or
atleast have the courtesy to tell the claimant why the
claim is being resisted (Justice Krishna Iyer in State of
Punjab v. Geeta Iron and Steel Works, AIR 1978 SC
1608)
 ‘Delivered or left at the office of’ – Personal service is
not mandatory
 Notice
 No specific format prescribed
 Must contain (amendments of 1976)
 Name, Description and Address of claimant
 Cause of action
 Relief Claimed
 Notice in writing
 Service of Notice
 Statement in Plaint
 Exemption from Notice {S. 80(2)}
 Service of Notice is mandatory – not an empty formality
 Service of Notice – a condition precedent
 Exemption from notice - s. 80(2) – inserted by
amendments of 1976
 Grounds of exemption – urgent relief required – grave
cases
 Urgency of relief is the criteria and not the merit of the
case
 Grounds to be specifically pleaded
 If court satisfied, it will grant leave to file the suit
without notice
 Only suit to be filed, no relief can be granted without
notice to the government/public officer
 Exemption from notice….

 State of A.P. v. Pioneer Builders, AIR 2007 SC113

 -service of notice under sub-section (1) is imperative except
where urgent and immediate relief is to be granted by the Court,
in which case a suit against the Government or a public officer
may be instituted, but with the leave of the Court. Leave of the
Court is a condition precedent. Such leave must precede
the institution of a suit without serving notice. Even
though Section 80(2) does not specify how the leave is to be
sought for or given yet the order granting leave must indicate
the ground(s) pleaded and application of mind thereon.
 Who can grant exemption u/s 80(2)
 Court of first instance
 Superior court… Revisional Court
 … when the trial court had refused to grant leave, it was always
open to the revisional court to grant such leave provided it was
satisfied that such a case had been made out. …..the
language of Section 80 (2) of the Code did not restrict its
application to the court of original jurisdiction alone………….
 If leave is refused by the original court, it is open to the
superior courts to grant such leave as otherwise in an
emergent situation a litigant may be left without remedy once
such leave is refused and he is required to wait out the
statutory period of two months after giving notice. (M/s. Bajaj
Hindustan Sugar & Industries Limited v. Balrampur Chini Mills
Ltd. & Ors, AIR 2007 SC 1906)
 Defects in notice {s. 80(3)}
 The court must be satisfied
 Notice contains names, description, address
 Notice shows cause of action, relief claimed
 In writing and duly served
 Suit after two months
 All other defects mere technical and does
not affect the suit
 Procedure
 In case of suit against public servant, govt. to be joined
as a necessary party (r. 1)
 Person appointed by govt. to sign plaint, written
statement etc.. – recognised agent (r.4)
 Government pleader to represent the govt./public officer
 Reasonable time for filing written statement and
extension of time (r. 7)
 Duty of the court to assist in arriving at a settlement (r.
5B – 1976)
 No arrest/attachment before judgment (s. 81)
 No process for execution unless decree remains
unsatisfied for three months (s. 82)
 Section 80 applicable to suits not to writ
petitions
 Provision beneficial to govt. – Govt. may waive
the requirement of notice- Dhian Singh v.
Union of India, AIR 1958 SC 274
 Notice period to be excluded while computing
limitation
 Decision u/s 80 is neither a decree nor an
appellable order
 Decision u/s 80 falls within the expression ‘case
decided’ u/s 115 and thus revision petition lies
 Suits by Aliens (S. 83)
 Alien enemies, residing in India – with the
permission of CG
 Alien friends
 No suit by alien enemies residing without
permission
 No suit by alien enemies residing outside
India
 Suits by or against Foreign
Rulers/Ambassadors/Envoys – Ss. 84 – 87A
 May sue in the name of foreign state
 No suit without the consent of CG
 Opportunity of being heard before consent is denied
 Suit for enforcement of private rights vested in the ruler
of that state
 CG may appoint a counsel (recognised agent) on the
request of foreign ruler
 No execution against them except with the permission of
CG
 No arrest
 Suits against rulers of former Indian
States (S. 87-B)
 Rulers of former Indian States – as
notified by CG
 Suit in respect of cause of action arising
before the commencement of the
Constitution
 Same treatment as if a ruler of a foreign
state
 Suits against Soldiers, sailors and
airmen (O. 28)
 Summoning through CO
 If they are unable to prosecute/defend
 Authorise any other person
 Authority letter to be countersigned by the CO
 Signature by CO to be conclusive evidence that
authority letter has been validly executed
 The person authorised may sue/defend himself
or may appoint a counsel/pleader
 Suits by or against corporations (o.
29)
 Pleadings to be signed by
 Secretary
 Director
 Principal Officer
 Court may require/order personal
appearance of these officers
 Summons to be served at the regd.
Address
Suits by or against partnership firms
(O. 30)
 Section 69, The Partnership Act, 1932
 Suits against firm by partners for enforcing
contractual obligations
 Suits by firm or partners against third parties
for enforcing contractual obligations can not
be filed
 Unless firm is registered
 Name of the partner suing is on the register of
firms as a partner
 Suits by/against firm
 Order 30 is applicable to
 Suits by or against firm
 Suits between co- partners
 Persons carrying on business in other name - proprietorship/HUF
 Suit in the name of firm by two or more persons claiming to be
partners (r. 1)
 All the partners, in India, are necessary parties
 Legal heirs of deceased partner – not necessary parties
 All the partners/defendants to appear in individual names and their
name to be entered on the decree sheet
 Suit to proceed in the name of firm…….
 Party to a suit/defendant may file an application for the
names/description of partners of the firm when the cause of action
arose
 Summons to disclose whether the person is summoned
as partner or as manager/control and management
 If summoned as manager – no need of personal
appearance
 A person summoned as partner may resist that he was
not a partner at the relevant time
 If a person denies the factum of being a partner – this
to be framed as an issued and to be tried first
 If he is found to be partner – he can deny the liability of
the firm
 If it is found that the person sued is not a partner – the
summons can be served on the firm and other partners
 Order XX r. 15 – Preliminary decree
 Execution of decree against partnership
firm
 No execution against the firm in case of
suits between co-partners except with the
leave of the court
 Suits by or against trustees,
executors and administrators (O.31)
 Parties in case of Trust
 Author/Settler
 Trustees
 Beneficiaries
 Trustees – necessary parties in suits between
beneficiaries and outsiders
 All trustees/executors/administrators to be
joined as parties except
 Executors Who have not proved the will of the
testator
 Who are staying outside India
Suits by or against Minors/Persons of
Unsound Mind (O. XXXII)
 Who is a minor?
 Order to protect the minors/unsound mind – Wards of
the Court
 Suit to be instituted through his next friend
 If suit instituted without there being next friend, plaint
to be taken of the file and cost to be borne by the
pleader
 Court can ask for security for costs, suo
motto/application, reasons to be recorded
 Suit against them to be defended through guardian
 Otherwise decree null and void
Who can be guardian/next friend
 Who is major
 Sound mind
 Whose interest is not adverse to that of minor
 Next friend/guardian can retire
 Court can remove a guardian/next friend
 If interest is adverse
 If connection with the opposite party
 Fails to discharge his duty
 Does not stay in India
 Other sufficient cause
 Duties of Next friend/guardian
 No suit to be compromised except with the leave
of the court
 Application for leave
 Affidavit by next friend/guardian
 Certificate by pleader
 Enquiry by the court
 If the above procedure not followed,
agreement/compromise – voidable
 Next friend/guardian can not receive any
money/property except with the leave of the
court
 Attainment of majority - Options
 May proceed with the suit (r. 12)
 May Abandon the suit (12 (4))
 If co-plaintiff – may apply to have his
name struck off (r. 13)
 May apply for dismissal – if suit was
unreasonable/improper (r. 14)
 Suits by indigent persons (O.33)
 Indigent person
 Who is unable to pay court fee – ‘not possessed of sufficient
means’
 Value of property, excluding the subject matter of the suit and
property exempt from attachment, is less than 1000
 Property fraudulently transferred within two months to be taken
into consideration
 Property acquired during the pendency of the suit to be taken
into consideration
 Person used in O. 33 includes not only natural persons
but also juridical persons (Union of India v. Khader
International Construction, AIR 2001 SC 2277
 Application for leave to sue as pauper
 Application to contain all the particulars
required in plaint
 Schedule of property
 Value of property
 Signature and verification
 If leave granted, the suit deemed to be
instituted from the day of application
 In case of representative suit – indigency
in representative capacity to be seen
 In case of death – LR’s indigency to be
separately proved
 Defendant can also file application for
leave to sue as pauper in case of set-off
and counter claim
 Procedure
 Application in person unless exempted
 Examination of the applicant
 The court can reject the application without notice to
other party (r. 5)
 If does not comply with requirement
 If he is not an indigent person
 If fraudulently transferred property within two months before
 No cause of action
 Agreement to finance the suit
 Agreement where other person has acquired some interest in
the subject matter
 Barred
 Notice of not less than ten days (r. 6)
 to opposite party
 To government pleader
 Hearing of parties
 Evidence
 Permission
 If application refusal – no further application (r.
15)
 Court to provide pleader, if unrepresented
 Withdrawl of permission (r.9)
 On application by defendant/govt. pleader
withdraw such permission
 If conduct is improper/vexatious
 Not an indigent person
 If agreement with other person
 Recovery of court fee
 He succeeds (r. 10)
 Cost shall be the first charge on the suit property
 The court to calculate the amount
 May be recovered from either party (discretion)
 If indigent person
 Fails (r.11)
 Permission withdrawn (r.11)
 Suit is abandoned or withdrawn
 Suit is dismissed for (r.11)
 Non service for failure to pay fee for service
 Failure to present copies of plaint
 Does not appear
 R.V. Dev v. Chief Secretary, Govt. of Kerala, AIR 2007 SC 2698 –
Failure and dismissal
 Where Claim partly allowed - Ram Saran and Others v State of Bihar and Others [AIR
1959 Patna 384] – no provision in rule 10 or 11
 Where plaintiff dies – abatement of suit –
court shall order recovery by State govt.
from the estate of the deceased (r. 11A)
 State govt. can make an application
anytime for recovery of costs
 Copy of every order u/r 10, 11, 11A to
collector – he can recover as arrears of
land revenue
 Appeals (S. 96-99A), O. XLI
 Every decree per se appeallable
 All orders not appealable. Only Orders detailed
in section 104 and O. XLIII appealable
 Ex-party decree - 96(2)
 No appeal from consent decree - 96(3)
 Decree of small cause courts – no appeal except
on question of law or where subject matter is
more than 10000
 Appeal
 Meaning – Shankar Ramchandra Abhyankar v.
Krishji Dattatreya Bapat, AIR 1970 SC 1
 Garikapati v. Subbiah Chaudhary, AIR 1957 SC
548
 Continuation of the suit
 Vested, substantive right
 Creature of a statute – not an inherent right (Raj
Kumar Shivhare v. Assistant Director, Directorate of
Enforcement & Another, April 12, 2010)

 No appeal against a dead person

 Appeal
 Memorandum of Appeal
 Grounds of appeal
 Copy of judgment/decree
 No other ground except with leave of the court O. 41(2)
 Money decree – deposit the amount or furnish security
 Memorandum of Appeal may be rejected or returned –
reasons to be recorded
 Application for condonation of delay+ affidavit – shall –
State of Madhya Pradesh v. Pradeep Kumar (2000) 7
SCC 372
Stay of Execution/Proceedings – O 41
(5)
 No automatic stay
 Stay effective from date of communication to
the court of fist instance
 Affidavit by the appellant
 Court of first instance and appellate court – both
competent to grant stay
 Application without unreasonable delay
 Substantial loss, if not stayed
 Security taken for performance of decree/order
 Appeal
 Court from whose decree appeal lies- shall entertain the
appeal (r. 9)
 Date of presentation shall be endorsed
 Shall be entered in register of appeal
 Appeal within 30 days
 Salem Advocate Bar Association v. Union of India, AIR
2003 SC 189
 Appellate court may ask for security, however, if
appellant resides out of India and have no sufficient
immovable property – shall demand security
 Appeal
 Summary dismissal (r. 11)
 Must record reasons
 If appellant does not appear – may dismiss
 Application for re-admission
 Appeal shall be heard within 60 days u/r 11
 If not dismissed u/r 11 – notice to other party
 Notice to be affixed in the appellate court, sent
to the original court and to the respondent or his
pleader
 Memorandum of appeal to accompany the notice
 Procedure on Admission
 Right to begin
 Dismissal for non appearance of appellant
(r. 17)
 Ex- parte (r. 17{2})
 Application for re hearing – notice not
served or sufficient cause (r. 19)
 Discretion to join certain persons as
respondents – limitation period (r. 20)
 Cross Objection (r. 22)
 Within 30 days
 Superintending Engineer v. Subba Reddy, AIR
1999 SC 1747
 Appeal – Substantive Right
 CO – like appeal
 Court Fee
 Appeal is withdrawn
 Second chance to respondent
 Mahadev Govind Gharge & others v. Special Land
Acquisition Officer, Karnataka, 2011 SC (10-5-2011)
 Respondent in an appeal is entitled to receive a notice of hearing of
the appeal as contemplated under Order XLI Rule 22 of the Code
 Cross-objections are required to be filed within the period of one
month from the date of service of such notice or within such further
time as the Appellate Court may see fit to allow depending upon the facts and
circumstances of the given case.
 The limitation of one month for filing the cross-objection as provided under Order
XLI Rule 22 of the Code shall commence from the date of service of notice
on him or his pleader of the day fixed for hearing the appeal.
 Where a respondent in the appeal is a caveator or otherwise puts in appearance
himself and argues the appeal on merits including for the purposes of interim order
and the appeal is ordered to be heard finally on a date fixed subsequently
or otherwise, in presence of the said respondent/caveator, it shall be
deemed to be service of notice within the meaning of Order XLI Rule 22. In
other words the limitation of one month shall start from that date.
 Powers of the Appellate Court (S.
107)
 Remand (r. 23, 23A) (S. 107 [1][b])
 Frame issues and refer them for trial {107(1)(c), r. 25 &
26}
 Final determination {107(1)(a), r. 24)
 Take additional evidence (r. 27)
 Refused to admit evidence
 After Due diligence, evidence was not within the knowledge, or
could not have been produced
 Court requires such evidence
 Sufficient cause
 Reasons to be recorded ‘shall’
 K.Muthuswamy Gounder v. N. Palaniappa Gounder, AIR 1998 SC
3118
 R. 33 – Power of Court
 To do full and complete justice between
parties
 Discretion
 R. 33 is wider than r. 22
 Grounds
 Partiessame
 Questions have arisen out of the judgment of
the lower court
 Pralhad v. State of Maharashtra
2010 (10) SCC 458
 The provision of Order XLI Rule 33 CPC is clearly an
enabling provision, whereby the appellate court is empowered to
pass any decree or make any order which ought to have been
passed or made, and to pass or make such further or other decree or
order as the case may require. Therefore, the power is
very wide and in this enabling provision, the crucial words
are that the appellate court is empowered to pass any order
which ought to have been made as the case may require. The
expression "order ought to have been made" would obviously
mean an order which justice of the case requires to be
made. This is made clear from the expression used in the said
rule by saying"the court may pass such further or other order as the
case may require". This expression "case" would mean the
justice of the case. Of course, this power cannot be exercised
ignoring a legal interdict or a prohibition clamped by law.
 Judgment in Appeal
 Points for determination
 Decision
 Reasons
 Relief
 Decree in Appeal
 Date of presentation
 Date of decree in appeal
 Number of the appeal,
 Names, description of the parties
 Relief
 Costs
 Signed and dated
 Certified copy to the court
 Second Appeal (S. 100) (O. XLII)
 Second Appeal to High Court
 90 days
 From every decree passed in appeal by a court
subordinate to High Court
 Ex Parte decree
 No Second Appeal (value less than 25000) (S.
102)
 Second appeal only on grounds mentioned in
section 100 (Section 101)
 No Letters Patent Appeal (S. 100A)
 Grounds of Appeal
 High Court is satisfied
 Case involves substantial question of law
 Substantial question should be stated in MOA
 High Court shall formulate such question
 Kulwant Kaur v. Gurdial Singh Mann (2001) 4
SCC 262
 Shall be heard only on such question
 Any other substantial question (power of the
High Court)
 Issues of Facts
 Generally second appeal only on issue of
law
 Evidence on record sufficient
 Question has not been determined by
Appellate court and court of first instance
 Question has been wrongly determined
due to decision on substantial question of
law
Appeal to Supreme Court (S. 109, O.
XLV)
 Subject to Chapter IV of Part V of the Constitution
 From judgment, decree of order of a High Court
 Petition to the court whose decree is appealed from
 That court to dispose off the application within 60 days
 Petition shall state
 Grounds of appeal and shall pray for a certificate
 Only if High Court certifies
 Substantial Question of law of general importance
 In the opinion of High Court needs to be decided by the
Supreme Court
 Security and Deposit (r. 7)
 Within 90+60 days or Within 6 weeks
from the date of certificate whichever is
later
 Security in cash or govt. securities for the
cost and expenses of translating etc
 Further security
 If fails to submit
 Powers of the court pending appeal
 Decree not to be stayed automatically
 On special cause shown
 Impound movable property
 Allow execution after taking security
 Stay execution
 Such other order
 Execution of Decree of Supreme
Court
 Petition to High Court + certified copy of
the decree or order
 Such court to transmit the record to the
court of first instance
 Reference – s. 113, O. XLVI
 Suit, appeal or execution proceedings pending
 Question of law, custom or usage having the
force of law arises
 Case is non appealable
 The court trying suit, appeal or execution
entertains reasonable doubt
 Questions relating to validity of any act, ordinance or
regulation – compulsory reference
 Other questions – optional reference
 Act, ordinance, regulation or the
provisions are invalid, inoperative, ultra
vires in the opinion of lower court
 Not declared to be ultra vires by the HC or
SC
 The lower court can make reference suo
motto or on the application by the party
 The lower court to draw a statement of
reference and send to HC
 It can stay the proceedings or pass contingent
decree
 To pass final decree in accordance with the
advise of the HC
 Reference under Section 395 of Cr.PC
 Reference under Article 228 of Constitution of
India
 Review – s. 114 and Order XLVII
 Review – to reconsider or to look again by the
same court by the same judge
 General rule – court become functus officio after
judgment/decree
 Review – an exception and not to be used in
routine
 Review – a statutory right, creation of the courts
of equity
 Person aggrieved can apply for review
 When review lies
 When case is not appealable
 When appealable but appeal not filed
 Review of the judgment on a reference from a
court of small causes
Grounds
 Discovery of new and importance matter or
evidence
 Mistake or error apparent on the face of record
 Other sufficient reason
 Explanation added in 1976
 Limitation – 30 days
 Application to be heard by same judges
 Memorandum of review
 Court can reject application without notice
to other party
 If not rejected, notice to opposite party
 If the applicant does not appear – application to
be rejected
 He can file an application for restoration –
sufficient cause – notice to opposite party
 Order rejecting review – not appealable
 Order granting review –appealable
 Order on review – not reviewable
 Review by HC
 Review by SC
 Revision – s. 115
 Revision lies to HC
 Where no appeal lies
 Case decided by subordinate court
 Revision lies on the jurisdictional grounds
 Exceeded jurisdiction
 Not exercised jurisdiction vested in that court
 Jurisdiction exercised with material irregularity
or illegality
 Suo motto or on an application within 90 days
 Object – Major S.S. Khanna v. Brig. F.J. Dhillon, AIR
1964 SC 497
 No automatic stay of proceedings
 No interference by HC on factual propositions howsoever
erroneous they may be
 Section 115 vis-à-vis Article 227 of the Constitution
 Pandurang Ramchandra Mandlik v. Maruti Ramchandra
Ghatge, AIR 1966 SC 153 – plea of limitation and res
judicata - jurisdiction
 Interlocutory orders
 Other alternative relief
 EXECUTION (Ss. 36-74, O. XXI)
 Execution – Meaning
 Shyam Singh v. Distt. Collector, Hamirpur, 1993 Supp
(1) SCC 693
 General Principles
 A court executing a decree cannot go behind the decree :
between the parties or their representatives it must take the
decree according to its tenor, and cannot entertain any objection
that the decree was incorrect in law or on facts. (Vasudev
Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. 1970 (1) SCC
670 )
 Decree passed by a Court inherently lacking jurisdiction – nullity
– inherent lack must be apparent. (C. Gangacharan v. C.
Narayanan, 2000 (1) SCC 459 and Bhawarlal Bhandari v.
Universal Heavy Mechanical Lifting Enterprises 1999 (1) SCC
558)
 Execution – General Principles
 The Executing Court is required to execute the
decree as it is and it has no jurisdiction to widen
its scope or to add to it unless a specific
question was raised relating to discharge or
satisfaction of the decree as envisaged in
Section 47 of the Code of Civil Procedure. (Vedic
Girls Senior Secondary School Arya Samaj
Mandir, Jhajjar v. Smt. Rajwanti & Ors, AIR
2007 SC (08/03/2007)
 Territorial Jurisdiction
 Decree Vague and Ambiguous
 Change in circumstances
 Court competent to execute decree
(S. 38)
 Court which passed a decree (s. 37)
 Court of First instance
 Appellate decree- Court of first instance
 If court of first instance ceases to exist – the court which would
have jurisdiction on the day of the application to try the suit
 If court of first instance ceases to have jurisdiction - the court
which would have jurisdiction on the day of the application to try
the suit
 Expl. Added in 1976
 Jahar v. Kamini Devi, ILR (1901) 28 Cal. 238
 Ramier v. Mithu Krishna Aiyyer AIR 1932 Mad. 418
 Merala Ramanna v. Nallaparaju, AIR 1956 SC 87
 Court to whom it is sent for execution
 Transfer of Decree (Ss. 39-42)
 On application or suo motto
 Judgment debtor
 actually and voluntarily resides
 Carry on business
 Personally work for gain within the jurisdiction of another court
 No property within the jurisdiction of the court but has
in the jurisdiction of other court
 Decree is for sale or delivery of immovable property
situate in the jurisdiction of another court
 Any other reason to be recorded in writing
 Powers of the transferee court (s.
42)
 Same powers as if passed by the transferee
court itself
 Can execute or transfer for execution
 Power to execute against the LRs of deceased JD
 Power to order attachment etc.
 Limitations on power
 No power to execute the decree on the application of
transferee of a decree
 No power to grant leave to execute the decree
passed against a partnership firm against a person
not summoned as partner
 Execution of Foreign Decrees
(s. 44A)
 Decree of superior court of reciprocating
territory
 Certified copy of decree
 Certificate regarding non satisfaction/part
satisfaction of decree
 Filed in District Court
 To be executed as if District Court has passed
such a decree
 District court to see that the decree not hit by
section 13
 Section 47 applicable
 Precepts (S. 46)
 Command given by a court to another
competent court
 To attach the property (specified in the
order) of the judgment debtor
 Application by DH
 Period – 2 months – can be extended
Garnishee order (O. XXI, r. 46A- 46I)
 Inserted by 1976 amendment
 Garnishee – Judgment debtor’s debtor
 Garnishee order to be issued in case of
debt owed to JD and the debt is other
than mortgage debt or debt secured by a
charge
 Application of the DH/attaching creditor
 Application on an affidavit
 Notice to garnishee
 To pay or show cause
 If he does not pay or show cause – order
against him – such order to be decree against
him
 If he disputes liability – such question to be tried
 Payment by garnishee to be valid discharge
 Garnishee order is appealable as a decree
 Application for execution
 Who can make application
 Decree holder
 Transferee of decree
 LR’s of deceased DH
 Representatives of DH
 Any person claiming under the decree
 Any one or more of the joint DHs
 In representative suits, persons represented whether on record or not
 Other persons (receiver, agent, beneficiary etc.)
 Against whom application can be made
 JD
 LRs of deceased JD
 Surety of JD
 Representative of JD
 Person claiming under JD
 Application for execution
 Oral Application (r. 11[1])
 Written application
 Suit number
 Name of parties
 Date of decree
 Whether any Appeal from decree
 Any adjustment or payment out of decree
 If previous application filed – dates and result
 Amount of interest, relief, cross decree etc.
 Cost
 Against whom execution sought
 Application for execution
 Certified copy of the decree to be filed
 Mode of execution
 Delivery of property
 Attachment and sale
 Sale without attachment
 Arrest and detention (grounds to be stated + affidavit)
 Appointment of receiver
 Or other modes
 If application for attachment of movable property not in JD’s
possession – description of the property
 Application for attachment of immovable property – description,
survey numbers, share of the JD
 Court may ask for extracts from Tehsildar’s recordds
 Joint Decree Holders (r. 15)
 Decree passed jointly in favour of some
persons
 Any one or more of such persons
 Application for the execution of whole
decree
 For the benefit of all
 If court satisfied, it can order execution
 Transfer of Decree (O. XXI r.16)
 Decree/order capable of execution can be
transferred by
 Assignment in writing
 Operation of law
 Application for execution only in the court which
passed the decree
 Notice to
 Transferor
 Judgment Debtor
 Procedure on receiving application
 If application is not as per requirements court shall order the compliance (r.
17)
 If defect not remedied – rejection
 Amendment of application
 If application is defect free,
 entry in register
 Date of presentation
 Notice (r. 22)
 No notice ordinarily
 Notice required when
 Application is made after two years
 Application against LRs
 Application u/s 44A
 Application by transferee of decree
 Application against assignee or receiver
 Where decree is for payment of money and execution by arrest and detention (r. 37)
 Application against surety (s. 145)
 Appearance of parties and consequences
of non appearance
 Hearing of the application (r. 105-106)
 Res judicata (Expl. VII)
 Limitation Period
 Mandatory injunction – Three years
 Other decrees - 12 years
 Cross Decrees (r. 18) and cross
claims (r. 19)
 Cross Decree
 Two Decrees in two separate suits
 Decrees for payment of money (ascertained sum)
 Application for execution of both
 Same court
 Same parties
 Same capacity
 Cross Claims
 One suit
 Claims of both
 Stay of Execution (r. 26-29)
 Application to be made
 Court which passed a decree
 Appellate court
 Transferee Court on sufficient cause being shown –
temporary stay
 Security from the JD
 Such terms and conditions
 Where property seized or person under detention, the
court which passed decree may order restitution or
release pending the decision on application
 Stay of Execution
 Suit by JD against the DH
 An application for execution against JD by DH
 ‘Such court’ – same court (Shaukat Hussain v.
Bhuvneshwari Devi, AIR 1973 SC d 528)
 Decree may be stayed till the suit is decided
 Stay by original court and after 1976 also by transferee
court
 If decree for payment of money and no security taken –
reasons to be recorded
 Purpose
 To enable the JD and DH to adjust their claims
 Prevent multiplicity of execution proceedings
 Modes of Execution (s. 51)
 Modes of Execution
 Delivery of property specifically decreed
 Attachment and sale
 Sale without attachment
 Arrest and detention
 Receiver
 Other modes as the relief may require
 Choice of mode of execution
 Simultaneous modes of execution
 Discretion of Court
Decrees and Modes of Execution
 Decree for payment of money = arrest or
attachment or both (r. 2, 30)
 Decree for specific movable property (r. 31)–
seizure and delivery or arrest or attachment or
both –
 If attachment remained for more than 3 months and
JD has not obeyed the decree – application for sale
 If no application made within 3 months, or the decree
satisfied or application refused, the attachment shall
come to an end
 Decree for specific performance – r. 32 – arrest and detention or
attachment or both
 Injunction - arrest and detention or attachment or both
 If decree for doing specific act under decree for specific
performance or injunction and not obeyed, the court can appoint
any person including DH to do such act
 Decree for restitution of conjugal rights – attachment of property
 If decree for restitution against husband – r. 33 - maintainance
 If these decrees are against Corporation – attachment or arrest
(with the permission of court)
 If attachment remained for six months and decree not obeyed – DH
application – Sale
 If no application made within 6 months, or the decree satisfied or
application refused, the attachment shall come to an end
 Decree for execution of document or
endorsement on negotiable instrument –r.34 -
JD neglects or refuses – DH may prepare and
deliver it to court
 Decree for delivery immovable property – r. 35 –
Actual Possession or Symbolic Possession
 Decree for joint possession of immovable
property – affixing notice and beat of drums or
other modes
 Decree against firm – R. 50
 Execution against the property of partnership
 Against any person who appeared as a partner
 Any person who has been adjudged to be a partner
 Any person who has been served as partner but has
failed to appear
 Against other persons – if not summoned/adjudged
as partner – with the leave of court
 Attachment of Decrees
 Decree for payment of money
 Decree for sale in enforcement of mortgage
or charge
 If decrees passed by same court – by
order
 If passed by another court – notice to
such other court
 Arrest and Detention as a mode of
execution (ss. 51, 55-59, rules 37
-40)
 If decree for payment of money (proviso
to S. 51)
 Notice to JD
 Court satisfied – reasons to be recorded –
 JD with the object of delaying or obstructing
 Likely to abscond
 Dishonestly transferred, concealed or removed
 Had the means to pay but neglected or refused
 JD was bound in a fudiciary capacity
 Arrest and Detention
 Exemptions from arrest and detention u/s 135
 Notice u/r 37
 No dwelling house to be entered after sunset and before
sunrise (s. 55)
 No outer door to be broken open unless in the
occupancy of JD and he refuses access thereto
 If the room is in the actual occupancy of pardanashin
lady (not the JD) – reasonable time and
opportunity/facility to withdraw
 Court’s duty to inform that he may apply for being
declared as an insolvent
 Women not to be arrested if decree is for
payment of money – s. 56
 Subsistence allowance – s. 57
 Detention period – s. 58
 Upto 2000 – no arrest
 2000-5000 – six weeks
 Beyond 5000 – three months
 Release of the JD
 Attachment of Property
 Properties liable to attachment (s. 60)
 Lands, houses, buildings, goods, money, bank
notes, cheques, bills of exchange, hundis,
promissory notes, govt. securities, bonds,
other securities, debts, shares in corpn and
All other saleable properties which JD
can dispose of for his benefit
 Properties Exempt from attachment
 Necessary wearing apparels, cooking vessels, beds, bedding of JD,
wife, children
 Personal ornaments – religious usage
 Tools of artisans, agriculturist, implements of husbandry, cattle,
seed grain - necessary to earn livelihood, exempted portion of
agricultural produce
 Houses and buildings of an agriculturist or a labourer, domestic
servant
 Books of account
 Mere right to sue for damages
 Right of personal service
 Stipends and gratuities of pensioners of govt., local authorities
 Wages of laboureres, domestic servants
 Salary – maintenance decree – 1/3
 Salary – other decrees – 1000+2/3
 Pay and allowances of soldiers, airmen, naval men
 CPF, PF
 PPF
 Amount received from LIC
 Allowances from govt., railway company etc.
 Expectancy of succession by survivorship
 Right to future maintenance
 Exempt allowances
 Movable Property exempt from attachment under order for recovery
of land revenue
 Mode of attachment (r, 43-54)
 Movable property – seizure
 Livestock, agricultural implements –
custodian/supurdari basis
 Movable property not in possession of JD –
order of prohibition
 Negotiable instrument – seizure
 Debt- order of prohibition
 Share in capital – order of prohibition
 Share in movable property – notice to the JD
 Salary – notice to DO
 Partnership property – order and
appointment of receiver
 Property in custody of police officer –
notice
 Decree – by notice – r. 53
 Agricultural produce – affixing notice
 Immovable property – order of prohibition
to JD – r. 54
 Determination of attachment
 Decree satisfied – r. 55
 Decree reversed, set aside
 Objections against attachment accepted – r. 58
 Application of execution dismissed (s. 57)
 Attachment withdrawn by the creditor
 Attachment abandoned by the creditor
 Agreement between the parties
 Attachment before judgment – security
furnished
 Sale as a mode of execution ss. 65-
74, rules 64-96
 Application for sale
 Auction
 Proclamation of sale – r. 66
 Notice to DH and JD
 Time of sale – r. 68 – minimum 7 days in case of movable property
and 15 days in case of immovable property from the date of
proclamation
 Adjournment of sale – r. 69
 DH not to bid without permission
 No officer of the court to bid
 Mortgagee not to bid without the leave of the court
 Sale only of that much property which is sufficient to discharge
decree
 S. Mariyappa (Dead) by LRs. And
Ors. v. Siddappa and Anr. (2005 (10) SCC 235).
 "necessary to satisfy the decree". Use of the said expression clearly
indicates the legislative intent that no sale can be allowed beyond the
decretal amount mentioned in the sale proclamation. In all execution
proceedings, Court has to first decide whether it is necessary to bring the
entire property to sale or such portion thereof as may seem necessary to
satisfy the decree. If the property is large and the decree to be satisfied is
small the Court must bring only such portion of the property the proceeds
of which would be sufficient to satisfy the claim of the decree holder. It is
immaterial whether the property is one or several. Even if the property is
one, if a separate portion could be sold without violating any provision of
law only such portion of the property should be sold. This is not just a
discretion but an obligation imposed on the Court. The sale held without
examining this aspect and not in conformity with this mandatory
requirement would be illegal and without jurisdiction. The duty cast upon
the Court to sale only such portion or portion thereof as is necessary to
satisfy the decree is a mandate of the legislature which cannot be ignored.
 M/s. Mahakal Automobiles & Anr
v. Kishan Swaroop Sharma, AIR 2008 SC
(02/04/2008)
 When a property is put up for auction to satisfy a decree of the
Court, it is mandatory for the Court executing the Decree, to comply
with the following stages before a property is sold in execution of a
particular decree:
 Attachment of the Immoveable Property:
 Proclamation of Sale by Public Auction;
 Sale by Public Auction
 Each stage of the sale is governed by the provisions of the Code.
For the purposes of the present case, the relevant provisions are
Order 21 Rule 54 and Order 21 Rule 66. At each stage of the
execution of the decree, when a property is sold, it is mandatory
that notice shall be served upon the person whose property is being
sold in execution of the decree, and any property which is sold,
without notice to the person whose property is being sold is a
nullity, and all actions pursuant thereto are liable to be struck
down/quashed.
Deshbandhu Gupta v. N.L. Anand and Rajinder Singh
[1994(1) SCC 131]
 "The absence of Notice causes irremediable injury to the judgment
debtor. "The Proclamation should include the estimate, if any, given
by either judgment-debtor or decree holder or both the parties.
Service of Notice on judgment-debtor under Order 21 Rule 66 (2)
unless waived by appellants or remained ex-parte, is a fundamental
step in the procedure of the Court in execution, judgment-debtor
should have an opportunity to give his estimate of the property. The
estimate of the value of the property is a material fact to enable the
purchaser to know its value. It must be verified as accurately and
fairly as possible so that the intending bidders are not mislead or to
prevent them from offering inadequate price or to enable them to
make a decision in offering adequate price.
 Auction purchaser to pay 25%
immediately and balance within 15 days
 If he fails, property to be re sold
 Auction purchaser liable for loss
Confirmation of Sale/Setting aside of
Sale
 On deposit (r. 89)
 Within 60 days
 Application by
 JD
 Co-sharer
 Receiver
 Creditor of JD
 Member of HUF
 Mortgagee
 Lessee
 Beneficial owner
 Notice
 Irregularity or fraud – r. 90
 Material irregularity
 Substantial loss
 Application by
 JD
 Auction purchaser
 Share/interest in property
 JD having no saleable interest – r. 91
 Application by auction purchaser
 Confirmation of sale –r . 92
 Confirmation relates back to the date of
sale
 Certificate to purchaser
 Delivery of Property – r. 79-81, 97-
106, section 74
 Movable property seized – by delivery
 Movable property not in possession of JD – by
notice
 Debt not secured – order of prohibition
 Share in corpn. – order of prohibition
 Negotiable instrument – by execution of
document
 Other properties – by order vesting the property
 Immovable property – actual possession/khas
possession
 Symbolic possession
THANK YOU