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Module III: DEFINITIONS (Section 2)

Decree: Sec. 2(2)

● Formal expression of an adjudication, which as far as regards the court expressing it, conclusively
determines the rights of the party with regards to all or any of the matters in controversy in the suit.
● Can be preliminary or final.
● Term includes rejection of a plaint and determination of any question under sec. 144 (applications
of restitution)
● Decree does not include
○ Any adjudication from which an appeal lies as an appeal from an order
○ Any order of dismissal for default
● Essential
○ There must be an adjudication
i. Judicial determination of the matter in dispute
ii. When a case is dismissed for the default of appearance of the parties, there is no
adjudication therefore no decree
○ Adjudication must have been given in a suit
i. Suit not defined in the code, ordinarily means a civil proceeding instituted by the
presentation of a plaint
ii. A proceeding which does not commence with a plaint is not a suit and therefore
judgements on such proceeding not a decree
○ It must have determined the rights of the parties with regards to all or any of the matters in
controversy in the suit
i. Substantive rights arising between the parties
ii. Order of mere procedure do not affect substantive rights, therefore no decree
● Dismissal for default of appearance not a decree
iii. Such a determination must be a conclusive determination
● Not merely an interlocutory order
iv. Must be formal expression of the adjudication
● All the requirements of the form must be complied with
● Held that following are not decrees
○ An order directing stay of suit
○ Order remanding a suit for fresh disposal
○ Order returning the plaint for presentation to proper court
● Classes of decree
○ Preliminary Decree
i. Determines rights of parties but does not completely dispose of suit and further
proceedings have to be taken before the suit can be completely disposed of.
○ Final Decree
i. Which completely disposes of suit, i.e when nothing further remains to be decided
○ Decree which is partly preliminary and partly final
i. Eg: if a suit if filed by one partner against another for dissolution of partnership,
and for taking the partnership accounts, the court may pass a preliminary decree
declaring the proportionate shares of the parties and directing accounts to be taken
and it may then pass a final decree later on directing the payment of the account due
to them on taking of the accounts.
○ Order rejecting a plain
i. When a plaint is rejected, the order rejecting it is not an order but a decree and is as
such appealable.
○ Determination of a question within Sec. 144

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i. When court determines any question under restitution application, it is deemed to

be a decree (deemed decree)
ii. When court passes an order for restitution of costs, amounts to a decree

Judgement: Sec. 2(8)

● Means the statement given by a judge of the grounds of a decree or order
● Essentials (except for small causes courts)
○ Concise statement of the case
○ The points for determination
○ The decisions thereon
○ The reasons for such decisions
● Essentials for small causes court judgements
○ The points for determination
○ The decisions thereon

Order: Sec. 2(14)

● Means the formal expression of any decision of a civil court which is not a decree
● Adjudication not a decree = order
● An order of the court of law is founded on objective considerations and as such the judicial order
must contain a discussion of the question at issue and reasons which prevailed with the court which
led to the passing of order

Mense Profit: Sec. 2(13)

● Mense profit of property means those profits, which the person in wrongful possession of such
property actually received, or might with ordinary diligence have received therefore, together with
interests on such property.
● Does not include profit due to improvements made by the person in wrongful possession
● Object
○ Is to compensate the person entitled to be in real possession for his having been kept out of
possession and thus deprived of property
○ Compensation paid to the real owner
● Test
○ True measure of mesne profit is not what the plaintiff lost but what the defendant has
gained by his wrongful possession or
○ what he might have reasonably gained by such possession
● Principles
○ No profit by a person in wrongful possession
○ The restoration of status before dispossession of decree-holder
○ Use to which a decree holder would have put the property if he himself was in possession

Affidavit: Sec. 2(17)

● Declaration of facts, reduced to writing and sworn or affirmed before a person having public
authority to administer such oaths (like a magistrate or notary)
● It should be drawn up in first person and contain statements and not inferences

Plaint
● Statement of claim, a document or memorial by the presentation of which a suit is instituted.
● Contains grounds on which the assistance of the court is by a plaintiff.
● It is a pleading of the plaintiff.

Suit
● a civil proceedings initiated in a court of law for redressal of legal injury or enforcement of a civil
right
● Civil proceedings instituted by presentation of plaint
● Pursuance of remedy

Written Statement
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● Reply of a defendant to the plaint filed by a plaintiff

● Pleading of a defendant dealing with every material fact of a plain
● May contain new facts in favour of a defendant or legal objections against the claim of a plaintiff.

Module IV: IMPORTANT CONCEPTS

Res Sub Judice: Sec 10

● States
○ Section 10 states that a court cannot proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously instituted suit:
i. Between the same parities
ii. Between parties under whom they (or any of them) claim, litigating under the same
title
○ Where such a suit is pending in the same or other court in India, having jurisdiction to
grant the relief claimed
● Object is to prevent courts of concurring jurisdiction from simultaneously entertaining and
adjudicating upon parallel litigation in respect to:
○ same cause of action,
○ the same subject matter
○ the same relief
● 4 conditions must be satisfied
○ The matter in issue must be substantially the same
○ The previously instituted suit must be pending in the same court or any other court. Such
court must be competent to grant
i. The relief claimed in the suit
ii. The relief claimed in subsequent suit (the date of presentation of suit and not the
date of its admission is the date of institution).
○ Both the suits must be between same parties or their representatives
○ Such parties must be litigating in both the suits under the same title
● Test for applicability of the section is whether the decision in a previous instituted suit would
operate res judicata in the subsequent suit. If it is so, the subsequent suit must be stayed
● Section only bars trial and not the institution of suit. When the conditions of section 10 are
satisfied, the later suit must be stayed. A court cannot dismiss a suit under this section, only
postpone the trial.
● The section also does not empower one court to stay the proceedings of another court.
● Indian bank v Maharashtra State Coop. Marketing Federation SC- a court in appropriate case
can pass an order of consolidation of both suits.

Res Judicata: Sec 11 (also 12)

● States no court shall try any suit or issue, in which the matter directly and substantially in issue
has been directly and substantially in issue in a former suit between the same parties (or between
parties under whom they or any of them claim, litigating under the same title) in a competent court,
and has been heard and finally decided by such a court
○ Former suits denotes only suits which have been decided prior to the suit in question,
whether or not it was instituted prior
○ Competence of court is to be determined irrespective of any provisions as to a right of
appeal from the decision of such court
○ The matter above referred must, in the former suit, have been alleged by one parties and
either admitted/denied, expressly/ impliedly by the other
○ Any matter which might and ought to have been made ground of defence or attack in such
former suit is to be deemed to have been a matter directly and substantially in issue in such
suit
○ Relief claimed by plaint, is for the purposes of this section, deemed to have been refused
○ Where person litigate bona fide in respect of a public right/private right claimed in
common, for the purposes of this section, such person is deemed to claim under the persons
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so litigating.
○ Applies to a proceeding for the execution of decree
○ Issue decided by competent court of limited jurisdiction, operates as res judicata
● Nemo debet bix vexari pro una et eadent causa- no man should be vexed twice for the same cause
● Conditions
○ The matter directly and substantially in issue in the subsequent suit must be the same
matter which was directly/substantially in issue, either actually or constructively in the
former suit
○ The former suit must have been a suit between the same parties or between the parties
under whom they claim
i. The test of res judicata as among the co-defendants is whether it was necessary, for
the purpose of supporting the actual decision in the prior suit, for the court to decide
any conflicting issue between the co-defendants.
ii. Same for co-plaintiffs
○ In the former suit, the parties must have litigated under the same title
○ The court which decided the former suit must have been competent to try the subsequent
suit
i. The court which decided the former suit, for the suit to operate res judicata, must
have been
● A court of exclusive jurisdiction
● A court of concurrent jurisdiction, competent to try subsequent suit
○ Matter which is directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in former suit
i. It is necessary that the decision in the former suit must have been one on the merits
ii. Matter cannot be said to have been “heard and finally decided” if the former suit
was dismissed
● For want of jurisdiction
● For failure to furnish security for costs
● For default on account of plaintiff’s appearance
● For failure on the part of the plaintiff to produce probate or letters of
administration to entitle him to dcree
○ Sathyadhyan Goshal v. Deorajin Debi, 1967 - An interlocutory order which did not
terminate the proceedings and which had not been appealed from, could be challenged in an
appeal from the final decree or order. Remand was an interlocutory judgment which did not
terminate the proceedings and so the correctness of it can be challenged in an appeal from
the final order.
● Constructive res judicata
○ Artificial form of res judicata
○ Explanation draws no distinction between a claim that was actually made in a suit and a
claim that might and ought to have been made.
○ If the parties has an opportunity to controverting it, it is the same thing as if the matter has
been actually controverted and decided.
○ The rule of res judicata is not limited to matters actually alleged by one party and either
denied or admittedly, expressly or impliedly by the other. It goes further and bars the trial of
subsequent suit on the ground that the matters in issue might and ought to have been made a
ground of attack/defence in the former suit. This is constructive res judicata

Restitution: Sec 144

● The doctrine of restitution implies to bring the aggrieved party to the original position where the
benefit of the erroneous judgment of the court is received by the other party who was not entitled to
such benefit.
● Restitution is not a new concept and Section 144 merely gives statutory recognition to this
principle.
● Section 144 of CPC deals with the application for restitution.
● Section 144 states
○ When a decree or order of the Court has been:
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i. varied/reversed in any appeal, revision or other proceedings;

ii. is set aside/ modified in any suit instituted for that purpose.
○ The Court that passed the decree/order will grant restitution on receiving an application of
the party entitled to the benefit
● Conditions
○ The decree/order must have been varied or reversed in any appeal, revision or is set aside
or modified.
○ The party in respect of the reversed or modified decree/order must be entitled to benefit by
way of restitution or otherwise.
○ The relief claimed by the party must be properly consequential of the variation, reversal,
setting aside or modification of the decree/order.
● A person may apply for restitution who:
○ Was a party to the order or decree being varied, reversed, set aside, or modified.
○ Is entitled to any benefit by way of restitution or otherwise in respect of the order or decree
being varied, reversed, set aside, or modified.
● The court which has passed the original decree or order may grant restitution on an application
being made to it by the party who is entitled to benefit from such reversed or varied decree or order.
● The court under Section 144 can make any orders as a consequence of a decree or order being
varied, reversed, modified, set aside for the refund of costs and for payment of interest, damages,
compensation, and mesne profit.

Caveat: Sec 148a

● Terms means beware
● Section 148A states that where an application is expected to be made or has been made on a suit
or proceeding instituted or about to be instituted in a court, any person claiming a right to appear
before the court on the hearing of such an application may lodge a caveat in respect thereof
● It is a caution in writing given by an interested party to the court, calling upon the court to not
give any relief to another party, without notice or intimation to the party filing caveat
● Such party is referred to as the caveator
● When a caveat has been lodged as above, the caveator must serve a notice of the caveat by
registered post, acknowledgement due, on the person by whom the application has been, or is
expected to be, made. Directory and not mandatory.
● Court must serve a notice of the application on the caveator once caveat has been lodged
● When a notice of a caveat has been served on the applicant, he must forthwith furnish the
caveator, at the caveator’s expense, with a copy of the application made by him, and also with
copies of ancy paper or document which has been, or may be filed by him in support of the
application.
● The caveat does not remain in force after the expiry of 90 days from the date on which it was
lodged, unless another application is made before the expiry of that period
● When a caveat is filed, no order can be passed by the court, ex part without the intitmation to the
caveator
● The object of caveat is 2 fold
○ It is intended to safeguard the interest of the person filing it by ensuring that no order
passed against him behind his back
○ Seeks to avoid multiplicity of legal proceedings as in the absence of such provision, the
affected party would have to take separate legal proceedings to set aside an order which
affects his interested passed without notice.
● Code provides no format

Inherent Power of the Court: Sec 151

● Section lays down that nothing in the cpc is deemed to limit or otherwise affect the inherent power
of the court to make such orders as may be necessary for the ends of justice or to prevent the abuse
of the process of court
● But a court has no power to do what is prohibited by the code
● The inherent powers of the court can be excercised only for
○ For ends of justice

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i. It is in the ends of justice that an injury should be remedied and needless expense
and inconvenience to the parties avoided.
ii. It will not be in the ends of justice to exercise inherent powers if it would interfere
with the rights of 3rd parties or cause mischief or injustice
iii. To prevent the abuse of the process of the court
● Inherent powers when and when not exercised- jhabvala pg 308-309

MODULE V - STEPS IN AN INSTITUTION OF A SUIT ( IMPO)

1. Jurisdiction and place of suing

2. Institution of suits

3. Summons

Jurisdiction

● Extent of authority of the court to administer justice prescribed with reference to the subject
matter, pecuniary value and local limits

● Official trustee v. Sachindra Nath, SC 1969 - “It is clear that before a court can be held to have
jurisdiction to decide a particular matter it must not only have jurisdiction To try the suit brought
but must also have the authority to pass the orders sought for. It is not sufficient that it has some
jurisdiction in relation to the subject-matter of the suit. Its jurisdiction must include the power to
hear and decide the question at issue, the authority to hear and decide the particular
controversy that has arisen between the parties”.

● A.r. Antulay v. R.S. Nayak , 1988 SC

○ The Apex Court stated that Section 406 of the Criminal Procedure Code, 1973 allows
for the transfer of criminal cases and the Supreme Court to move cases and requests.
According to the law, the Court may coordinate a specific case or allure from one High
Court to the next High Court, or from a Subordinate Criminal Court to another Criminal
Court of equivalent or upper-level purview.

○ The Supreme Court lacks the authority to transfer cases to itself. Only the Parliament, by
law, has the authority to create or expand the jurisdiction.

○ “The power to create or enlarge jurisdiction is legislative in character, and parliament

alone can do it by law and no court can enlarge its jurisdiction”

● Decree passed by a court without jurisdiction is nullified as laid out in Kiran Singh v. Chaman
Paswan, SC 1954 ;

○ It is a fundamental principle well-established that a decree passed without jurisdiction is a

nullity, and that its invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in collateral proceedings.

○ A defect of jurisdiction strikes at the very authority of the Court to pass any decret, and

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such a defect cannot be cured even by consent of parties.

● Jurisdiction fact - Jurisdiction of a court will depend upon fulfillment of certain conditions or
upon existence of certain facts called ‘jurisdictional facts’. It is a sine qua non for the assumption of
jurisdiction.

● When the jurisdiction of a court is challenged, the court has inherent jurisdiction to decide the said
question

Types of jurisdiction

● Territorial

○ Section 16-18: immovable property in question

■ Sections 16 deals with

● Suits for recovery of immovable property

● Suits for partition of immovable property

● Suits for foreclosure, sale or redemption

● Suits for determination of any other right or interest

● Suit for tort of immovable property

○ Section 19: moveable property and other sorts

○ Section 20- residuary provisions

○ Local or territorial limits

○ Court has no jurisdiction to try a suit for immovable property situated beyond its limits

○ Limits fixed by the government

○ Places where case can be filed

○ Based on the maxim “Equity acts in personam”

● Pecuniary

○ Section 6 read with section 3&15

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○ Amount or value of subject matter which does not exceed the pecuniary limits of the court

○ Ordinarily plaintiff makes the valuation of the suit in order to determine the pecuniary
limits

○ Ex; Bombay - suit valued less than 1 crore tried in city civil courts, more than 1 crore -
High Court , in some cases presidency small causes court cannot exceed 10,000

○ The valuation for purposes of jurisdiction has to be made under the Suits Valuation Act

○ Suit also needs to be valued to fix the amount of court fees that needs to be paid

○ Pecuniary jurisdiction is not equal to original jurisdiction

○ Presidency courts, established by the charter act of 1862 (Madras, Bombay, Calcutta)
along with Allahabad, Delhi and Himachal HCs have extraordinary civil jurisdiction in
certain matters which are heard by a single judge

○ Extraordinary Civil Jurisdiction are certain matters heard and disposed by single judge
benches

● Subject matter

○ authority of a court to hear cases of a particular type or cases relating to a specific subject
matter.

○ Ex; presidency small causes court cannot try suit for specific performance, partition of
immovable property

○ Testamentary matters, divorce case,only District judge or Civil Judge ( Senior Division)

Jurisdiction of civil courts - S.9 of CPC ( bridge to CPC)

● S.9. Courts to try all civil suits unless barred.—The Courts shall have jurisdiction to try all suits
of a civil nature except suits of which their cognizance is either expressly or impliedly barred.

● 2 conditions i) suit should be of a civil nature ii) cognizance should not be expressly or impliedly
barred.

(i) Suit of civil nature

● Pertains to private rights and remedies of individuals

● Principle question or fundamental characteristics of the suit go into determination of a civil rights
and its enforcement

● Civil nature is wider than the term civil proceedings and section covers cases where the dispute
was of the characteristic of affecting one’s rights which are not only civil but of a civil nature.

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(P.M.A. Metropolitan v. Moran Mar Marthoma. 1995 SC). ( Both positive and negative dimensions
of suit of civil nature) - Positive - every suit of civil nature , Negative - implied and express bar

○ Suits relating to rights to property

○ Suits relating to right to worship

○ Suits relating to taking out of religious processions

○ Suits relating to religious rights and ceremonies

○ Suits for rights to hereditary office (Bhurinath vs State of J&k)

○ Suits for damages for civil wrongs

○ Suits for specific relief

(ii) Expressly and Impliedly barred

● Expressly barred - when barred by an enactment that is in force

○ Provision of exclusion of jurisdiction must be strictly construed

○ Ex; exclusive jurisdiction of Revenue courts, Income Tax Tribunal, Motor Accidents Claim
Tribunal are expressly barred from the cognizance of a civil court

● Impliedly barred - barred by general principles of law

○ Certain suits, though of a civil nature, are barred from the cognizance of a civil court on
the ground of public policy.

○ the principle underlying is that a court ought not to countenance matters which are
injurious to and against the public policy

○ No suit shall lie for recovery of costs incurred in criminal prosecution or for enforcement
of a right upon a contract hit by section 23 of the Indian Contract Act, 1872

Exclusion of jurisdiciton and exclusive jurisdiction

● If there is an exclusion clause that is a provision providing for exclusive jurisdiction of civil courts
then such exclusion clause will be given strict interpretation - Unichem Labs v. Rani Devi, 2019 SC
, for ex, Income Tax Act express bar to tribunals

● J. Hidayatullah in Dhulabhai v. State of Madhya Pradesh laid out;

○ When statute gives finality of order to special tribunals, civil court’s jurisdiction will be
held to be excluded

○ However these tribunals must provide adequate remedy to do what the civil court would
normally do in a suit

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○ The challenge to the provisions of the particular act as ultra vires cannot be brought before
the tribunals constituted under that act

In the case of Premiere Automobile v. Kamlekar Shantaram, 1976 SC , apex court laid out following
principles are applicable to jurisdiction of civil court in matters of industrial dispute

● If dispute is an industrial dispute arising out of a right or liability under general or common
law and not under the IDA Act, the jurisdiction of a civil court is an alternative

S.15 -20 Place of suing ( 20 is the general clause, then read from 15)

● S.20 - Every suit to be instituted

○ Where defendant resides, personally works for gain, or carries on business

○ Cause of action arises

● Patel Roadways v. Prasad Trading ( Important***) - Even when there is an exclusive

jurisdiction clause stating suit to be tried in Mumbai, the court said that S.20 provides the right to
institute suit where cause of action arises or where the office is there, and it can prevail over the
exclusive jurisdiction clause.

● Dominus litus- the person to whom a suit belongs to

● Based on the maxim “Equity acts in personam”. It is the plaintiff who is seeking equity from the
court by instituting a suit against the defendent and therefore he has to follow the defendant and file
the suit where the defendant resides or carries out business or personally works for gain

● Therefore the plaintiff’s choice is restricted and he can not compel the defendant to come to the
plaintiff’s place for contesting suit.

● Plaintiff can only file cases mentioned in sec 20(b) if there is no common place left in Section
20(a) as it mentions each of the defendant and not any

● Plaintiff can only file in the places mentioned in Sec. 20(b) (any one of the defendant) with the
leave of the court or the defendant’s implied consent

● If any of the three conditions under section 20 (a-c) is not met then court will have no jursidiction

● The jurisdiction of court is to be seen at the time of the institution of suit, that is when the plaintiff
takes the plaint to the filing counter of court

● In case of a company, there is no place of residence or work. Therefore the plaintiff’s choice is
restricted to

○ Place of business

○ Place of cause of action

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● Section 20 defines principle office as head office or hq and subordinate office as branch office.

○ In Patel Roadways v. Prasad Trading, the court also held that

■ If a company has a sole office then that will be the place of business

■ If the company has several branches, then the head office will be the place of
business

■ If the cause of action arises where the branch office also exists, then only that place
will be the place of business and not head office

General principles

● Civil court has jurisdiction in all suits of civil nature unless it is expressly or impliedly barred

● Consent of parties can neither confer or take away jurisdiction

● A decree passed by court without jurisdiction is null

● Validity of such proceeding can be challenged at any stage of the proceedings

● Every court has inherent jurisdiction to decide the question of its own jurisdiction

● Jurisdiction depends on averments made in the plaint

● A statute ousting jurisdiction of a civil court should be strictly construed

Institution of suits

● S. 26 - 35B read with O. IV and Orders 1 to 20 of the Ist schedule deal with procedure
relating to suits

● A suit is a civil proceeding instituted by the presentation of a plaint

● Essentials to a suit i) Opposing parties ( O.I) , ii)Subject-matter in dispute, iii) Cause of action, iv)
Relief

● S.26 of the code lays out institution of a suit -

(1) Every suit shall be instituted by the presentation of a plaint or in such other manner as
may be prescribed.

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(2) In every plaint, facts shall be proved by affidavit;

● O. IV which also deals with institution of a suit and R.1 lays out that every suit shall be instituted
by presenting a plaint

Important steps in institution of a suit

● Preparation of plaint ( Next module)

● Choosing the proper place of suing

● Presentation of plaint (S.26)

○ A plaint must be presented to the court or the officer

○ Then particulars of the plaint will be entered by the court in a book known as register of
civil suits.

○ After this presentation, the plaint will be scrutinized by the stamp reporter

○ Then the suit will be numbered

Representative suit

● Exception to general rule that all persons in a suit ought to be joined as parties to it

● O.I, R.8 provides that when there are a number of persons similarly interested in a suit, one or
more of them can, with the permission of the court or upon a direction from the court, sue or be
sued on behalf of themselves and others.

● Rep suit is a suit filed by or against one or more persons on behalf of themselves and others
having the same interest in the suit.

● Object - to avoid numerous suits being filed for a decision of a common question

● Conditions for a representative suit - i) numerous parties, ii) same interest in suit, iii) permission
must have been granted or direction given by court, iv) notice must be issued to parties whom it is
proposed to actually represent

● A decree passed in this suit is binding on all persons on whose behalf or for whose benefit such
suit is instituted

MODULE VI - PLEADINGS; PLAINT AND WRITTEN STATEMENT

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Pleadings
● O. VI - pleadings
● R.1 - pleadings means plaint and written statement
● R2 - lays out the principle that pleadings should contain statements on material facts which the
parties rely on and not the evidence for the same
● R.17,18 - provisions for amendment of pleadings
● Plaintiff’s pleading will be the plaint - statement of claim in which he sets out of his cause of
action
● Defendant’s pleading is the written statement - deals with every material fact alleged by the
plaintiff in the plaint and also states any new facts which are in his favour
○ In case the defence pleads a set -off (If there is any situation where the plaintiff files a suit
against the defendant for the recovery of money, but at the same time defendant also has
some debt on the plaintiff so here plaintiff may claim for set off the amount), then plaintiff
may file his written statement

Object and importance

● To bring parties to definite issues and avoid any surprises at later stage
● Sole objective is to ascertain the real dispute, to narrow down the area of conflict and to see
where the two sides differ
● Act as a guide through the entire litigation process
● Shows on whom the burden of proof lies on, who has right to open the case
● Lay down the limit of relief that can be claimed - foundation of litigation

Rules of pleadings under R. 2

● General principles
○ (i) pleadings should state facts and not law, (ii) the facts should be material, (iii) Should
not state evidence, (iv) Facts should be concise
● Material fact - all primary facts which must be proved at the trial stage by a party to establish the
existence of a cause of action or his defence are material facts ; Madhavrao Scindia case, SC
● Particulars - details in support of material fact that is pleaded by the parties
● Facts by which the material facts are to be proved which are in the nature of particulars of
evidence need not be set out in the pleadings
● Concise form - Rule 3 lays down that Appendix A of code to be followed

Alternative and Inconsistent Pleadings

● Party can include in his pealdings one or more set of facts and can claim relief in the alternative
● Prevents another litigation in the same matter
● Ex; suit for possession of property is maintainable on the basis of title or on alternative on the
basis of lease
● Inconsistent pleas should be maintainable at law and subject to [Link], R. 16 - Empowers court to
strike matters in the pleadings which may may embarrass a fair trial

Amendment to pleadings ( R.17-18)

● R.17 - The Court may at any stage of the proceedings ( before the trial commences)
○ allow either party to alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made
○ as may be necessary for the purpose of determining the real questions in
controversy between the parties
● Larger interest of justice
● Wide discretion on part of the court
● Power of amendment is inherent to the court and will be covered under S.151 ( saving inherent
power of court) when R.17 does not apply
● Leave to amend will be refused
○ When amendment introduces only technical information and is not necessary for
determining the real question in controversy
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○ When it introduces a totally different, new and inconsistent case altogether by changing
fundamental character of suit
○ When purpose is to take away a legal right that has accrued in the favour of the other party
○ When application of amendment is not made in good faith
● Normally amendments entertained in trial court but appellate, revisional even SC consider it
● When application for amendment is made, notice to be given to the opp party to file objections if
any
● While amendments cannot be made after trial normally
○ The court can exercise due diligence test to see whether the matter could be amended

Plaint

Section 26 of the CPC states: A suit is instituted by the presentation of a plaint. The facts in a plaint shall
be proved by an affidavit.

Order VII, rule 1- A plaint must contain the following things:

1) The name of the court before which the suit is brought

2) The name, description and address of the plaintiff

3) The name, description and address of the defendant

4) If the plaintiff or defendant is of unsound mind, a statement to that effect

5) Facts containing cause of action when it arose.

Cause of action is a bundle of essential facts which the plaintiff must prove and which gives him the
right to relief against the defendant. The plaintiff is also required to state when the cause of action arose
so that the court can determine whether the suit is barred by limitation or not. Eg: In a suit for recovery
of rent, the plaintiff must state since when did he stop receiving the rent.

6) Facts determining the jurisdiction of the court

The plaint must also contain all the facts which prove that the court had pecuniary and territorial
jurisdiction over the matter. If the defendant challenges the jurisdiction, the court may frame issues and
decide on whether it has the jurisdiction to hear the plaint or not.

7) Relief that the plaintiff claims

8) If the plaintiff allows a set-off, the amount that has been relinquished

9) Statement of value of subject matter of suit for jurisdiction purposes and payment of court fees

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Order VII, rule 2- In money suits, the plaint shall mention the exact amount of money which is claimed by
the plaintiff against the defendant.

But if the plaintiff sues for mesne profits, or for movables in possession, or debts the value for which cannot
be precisely determine- the plaint must contain an approximate amount.

When plaintiff claims interest- it must mention (1) rate of interest, (2) date from which it is claimed, (3)
date to which it is claimed, (4) total amount, (5) interest which accrues thereafter.

Order VII, rule 3- when the subject matter of the suit is an immovable property, the plaint must contain
description of the property, sufficient to identify it.

Order VII, rule 4- If the plaintiff sues as a representative, it must show that he has a locus in the claim

Order VII, rule 6- Where the suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from such law is claimed.

Order VII, rule 7- The plaint must contain any and all reliefs sought by the plaintiff. It the plaintiff, is
entitled to more than one relief, it is upon his discretion to claim one ore more reliefs. The relief not
founded on the pleadings cannot be granted. However, if any relief follows as a general rule out of an event,
it may not be specifically mentioned.

Although the general rule is that the court determines the relief based on the position of the plaintiff and
defendant on the date of filing the suit, and the plaintiff may not be entitled to relief for cause of action
occurred subsequent to the filing of the suit, there is an exception to the position. In some cases, the courts
may, in order to do complete justice, may take into consideration the change in circumstances and change in
either the law or the fact, which has made the previous relief, unsatisfactory and obsolete and mould the
relief in light of changing circumstances.

Admission of plaint- Rule 9

Order VII, rule 9- This rule provides for the procedure when the plaint is admitted by the court. The court
mandates the plaintiff to serve as many copies of the plaint as there are defendants and to provide pay the
fees for the service of summons to the defendant within 7 days.

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Return of Plaint: Order VII, Rule 10- Court, on realising it has no jurisdiction, either territorial or
pecuniary or to hear the subject matter, would return the plaint.

Rejection of a Plaint: Order 7, rule 11

The provision mentioned herein is mandatory in nature, if any clause mentioned in part (a) to (e) are met
out, the court is bound to reject the plaint.

(1) When the plaint does not include the cause of action

When on the reading of the plaint, a sufficient cause of action is not disclosed, the court is bound to reject
the plaint. If it is determined that the suit is vexatious in nature or is an abuse of the process of the court, it
must exercise its powers under Order VII, rule 11 and reject the plaint. Even if all the allegations in the
plaint are proved and the plaintiff is not entitled to any relief, the court must reject the plaint.

(2) When the relief claimed is undervalued

When the relief claimed by the plaintiff is undervalued, and the plaintiff, even after the time fixed or
extended, does not rectify the same, the plaint will be rejected.

(3) When relief is sufficient, but plaint is insufficiently stamped

When the plaint is insufficiently stamped and the plaintiff has not paid the court fees even after the time
fixed or extended by the court.

(4) Where the suit is barred by law

Where a suit appears to be barred by law, the plaint will be rejected. Eg: In a suit against the
government, if the plaint does not mention that “notice” to the government is given, the plaint will get
rejected. Similarly if the plaint shows that it was barred by litigation, it would be rejected under law.

(5) Where the plaint is not in duplicate- The plaint has to be filed in duplicate, if the requirement is
not complied with, it would get rejected.

(6) Non-fulfilment of requirement under rule 9

The power of the court to reject a plaint can arise at any stage of the suit.

Order 7 Rule 12- If the judge rejects a plaint, he must pass an order along with the reasons to that effect

Order 7, Rule 13- Rejection of a plaint, does not preclude the plaintiff from presenting another plaint on
the same grounds when matter is not decided on merits

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R.14 -17 - Production of documents by the plaintiff ; Where a plaintiff sues upon a document or relies upon
document in his possession or power in support of his claim, he shall enter such documents in a list, and
shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the
document and a copy thereof, to be filed with the [Link] it will not be received by the court at the
stage of hearing without the court’s permission. This rule does not apply for docs for cross examination
and docs handed over to refresh the memory of a witness.

Summons

O.V, S.27-29
● After plaintiff files a suit, the intimation that is sent to him by court is summons to appear before it
● Principles of audi alteram partem
● O.V, R.1 - the court must issue summons calling the defendant to appear and answer the claim by
filing a written statement within 30 days from service of summons.
● Can Extended by 60 days (90 days from the date of service of summons) if reasons given to
court in writing
● Appearance i) in person ii) by pleader who is able to answer all material questions
● The summons must contain a direction whether the date fixed is for settlement of issues or for
final hearing of suit
● Mode of service of summons
○ Personal or direct service ( R. 12 & 13)
○ Extended service ( R.15)
○ Service by court - officer of court or through Registered Post, speed post
Acknowledgment due ( RPAD)
○ Service by plaintiff ( Dasti service . R. 9A)
○ Service by post
○ Service by affixation ( R.17)
○ Substituted service ( R. 20 affixation)

Written statement

● Pleadings of defendant
● May be filed by defendant or by duly constituted agent
● Should be submitted within 30 days of issue of summons but can be extended upto 90 days
○ Extension of 90 days laid out in [Link], R.1 is directory - harmonious construction of R.8,
10 laid out in Salem Bar Assn v. Union of India
○ R. 10 - Where any party from whom a written statement is required under rule 1 or rule 9
fails to present the same within the time permitted or fixed by the Court, as the case may be,
the Court shall pronounce judgment against him, or make such order in relation to the suit as
it thinks fit and on the pronouncement of such judgment a decree shall be drawn up

Order VIII, rule 2- All new facts such the claim is not maintainable, or the transaction is void or voidable
and all such defences must be presented by the defendant in his written statement, as if it produced on a
later date, it might come as a surprise to the plaintiff or would raise issues not arising out of the plaint such
as fraud, limitation etc.

Order VIII, rule 3- The denial must be specific. It is not sufficient for the defendant to deny all the
averments in the plaint generally, he must deal with each allegation in the plaint separately which he dies
not admit to. The defendant shall break up each allegation separately and counter it.

Order VIII, rule 4- The denial must not be vague and evasive. Any allegation which the defendant wants
to deny, must be done explicitly rather than vaguely and evasively. Eg: if in a plaint is alleged that the
defendant offered a bribe of 5000 on 15th January, 2002; the written statement cannot merely state that he

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did not offer a bribe of 5000 on 15th January, the written statement must state that that no amount anytime
was offered by the defendant.

Order VIII, rule 5- If any allegation or fact is not expressly denied or denied by necessary implication, it
shall be taken to be admitted against a person except under a person with disability.

Order VIII, rule 7- If the defendant relies upon several different grounds for defence or set off or
counterclaim, and each of those grounds are dependent on different facts, they must be stated separately and
distinctly.

Order VIII, rule 9- No pleadings, except a defence to a set-off or counterclaim can be filed after filing of
the written statement.

Order VIII, rule 10- If the defendant fails to file the written statement within the fixed period or the
extended period, the court will pronounce a judgement against him or decide the suit in any manner they
deem fit and a decree would be drawn up based on the said judgement. However, it has been held that the
court will not pass the decree automatically in the favour of the plaintiff if the written statement has not
been filed.

Set off- Order VIII, rule 6

A set-off means a claim set up against another. It is a cross-claim in which a party offsets an original claim.
Eg: In case of mutual debt, debt of one is settled against the debt of the other. Plea of defence available to
the defendant, wipes out or reduces the claim of the plaintiff.

In a suit for recovery of money, if the defendant finds that a plaintiff owes him some amount, he may claim
for the set-off of the same amount. It is the simultaneous acquittal of debts of two persons against each
other.

It is the extinction of debts of which two persons are reciprocally debtors of each other by the credits of
which they are reciprocally creditors to each other

Order VIII, rule 6 (1)- a set off can be claimed by the defendant at the first hearing of the suit\

Conditions for set-off:

The suit must be for the recovery of money

The sum of money should be ascertained

The sum should be legally recoverable

The sum must be claimed by the defendant or all the defendants against the plaintiff.

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The sum must be recoverable against a plaintiff or all the plaintiffs

The sum must fall within the pecuniary jurisdiction of the court

Both parties must fill in the same character, in the defendant's claim of set off as they fill in the plaintiff's.

When the defendant claims a set-off, he is put in a position as a plaintiff with reference to amount claimed
by him. If the plaintiff withdraws the suit, or fails to substantiate his claim or his suit is dismissed for
default, the claim of set-off of the defendant is not affected.

MODULE VII - HEARING

Appearance and non-appearance of parties

● [Link] - appearance of parties and consequence of non-appearance

● Important rules; R.3 , R.6. R.8, R. 13
○ Rule 1 and 12: Rule 1 requires the parties to the suit to attend court in person or by their
pleaers on dates fixed in the summons for the defendant to appear. Rule 12 states that where
a plaintiff/defendant, who has been ordered to appear in person, does not appear or show
sufficient cause for non-appearcance
○ Rule 3 - Where neither party appears suit to be dismissed.—Where neither party appears
when the suit is called on for hearing, the court may make an order that the suit be
dismissed.
○ R.6 - exparte when plaintiff appears - (1) Where the plaintiff appears and the defendant
does not appear when the suit is called on for hearing, then
[(a) When summons duly served - if it is proved that the summons was duly served, the
Court may make an order that the suit shall be heard ex parte
(b) When summons not duly served - if it is not proved that the summons was duly served,
the Court shall direct a second summons to be issued and served on the defendant;
(c) - when summons are served but not in time - court shall postpone hearing of the suit
○ R.8 - procedure where defendant only appears - either the suit is dismissed, in case the
defendant admits claim, order will be passed with effect to only that claim
○ R. 13 - Setting aside decree ex parte against defendant - defendant may apply to set
aside the order in the same court when i) satisfies the court that summons were not duly
served ii) prevented by any sufficient cause from appearing in court
■ Who may apply?: defendant against whom ex-parte decree was passed. If 2 or more
defendant, any one or more of them can make such application-Mysore HC.
■ Where application lies?:to court which passed the decree. Where such decree is
confirmed/reversed/modified by a superior court- application in that superior court
■ Prevented by sufficient cause -
● Depends on facts and circumstances of case
● “Sufficient cause” must be liberally construed to enable the courts to
exercise powers ex debito justitae
● Burden of proof on defendant
● applicant was vigilant and diligent and there was no gross misconduct or
negligence on his part ( 278 Takhwani)
■ Exception - However, if there has been an appeal against the ex parte decree and it
has been disposed of, the defence cannot set aside the decree, since the matter has
now been dealt with by an appellate court.
■
Ex Parte decree - Decree passed in the absence of the defendant

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● It is enforceable like a regular bi-parte decree but is voidable if there are legal and valid grounds
to challenge it
● When application for setting aside decree is dismissed if its on merits and res judicata apply.
However if dismissal is on grounds of non-appearance or change in circumstances, then another
application will be maintainable
● Remedies against an ex-parte decree
○ To apply to the court to set the ex-parte decree under [Link] Rule 13;
○ To prefer an appeal against such decrees S.96(2) or revision when no appeal lies
○ To apply for review; O. LXVIII, R. I
○ File suit on the grounds of fraud

First hearing - To be read with O.X

● O.X allows the court to examine parties with a view to ascertain matters in controversy
● [Link] deals with Issues
● First hearing of a suit - the day in which the court goes into the pleadings of the party
● The day on which the court frames the issues is considered the first hearing of the issue
○ In cases of small cause suit, where issues don't have to be framed the first hearing would
be start of trial
● Sham Lal v. Atme Nand Jain, SC - The day which court applied its mind to the case either for
framing issues or for taking evidence can be said to be the first day of hearing of the suit.
● O.X, R.1 - Court at the first hearing of suit shall ascertain from each party or his or her pleader
whether they admit or deny allegatio ns or facts made out in the plaint or written statement
● O.X, R 1A, 1B, 1C deal with ADR

Issues – O. XIV

● Issues arise when a material proposition of fact or law is affirmed by one party and denied by
another
● Material propositions are those propositions of law or fact which the plaintiff must allege in order
to show a right to sue or a defendant must allege in order to constitute his defence. (R.1(2))
○ Each proposition will form the subject matter of a distinct issue. (R.1(3))
● R 1(4) issues of 2 kinds (1) of fact, (2) of law
● O.X. R(2) - (1) At the first hearing of the suit, the Court— (a) shall, with a view to elucidating
matters in controversy in the suit examine orally such of the parties to the suit appearing in person
or present in Court, as it deems fit; and (b) may orally examine any person, able to answer any
material question relating to the suit, by whom any party appearing in person or present in Court or
his pleader is accompanied.
● Object of framing issues - J.K. Iron & Steel v. Mazdoor Union - the only point of requiring
pleadings is to ascertain the real disputes between the pirates, to narrow the area of conflict and to
see where the two sides differ.

● R.2 (1) of O.14 - where issues of both law and fact arise in the same suit, notwithstanding that
case may be disposed of on a preliminary issue, the court should pronounce judgement on all
issues
○ But if court is of the opinion that the case or any part maybe disposed of on an issue of
law, it may try the issue first if it relates to i) jurisdiction, ii) bar to suit created by law
● Issue relating to jurisdiction or bar created by law can be treated as preliminary issues
● R.3, O.14 - Materials for framing issues
○ (a) allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;
○ (b) allegations made in the pleadings or in answers to interrogatories delivered in the
suit;
○ (c) the contents of documents produced by either party.
● Duty of court to frame proper issues though non-framing of issues not fatal to suit.
● Issues can be amended at any state of the trial and also be amended by appellate or revisional
court (R5, O. XIV)
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Primary rules for settlement of issues

1. It is issues framed and not the pleadings that guide the parties in matter of leading evidence
2. Court cannot refuse to decide the point on which an issue has been framed even if point is not
mentioned in pleadings
3. Issues must be confined to the material question of fact or law
4. One issue should cover only one fact or law in dispute
5. If a case goes to trial, it must be dealt with by the appellate court on the issues settled for trial.

Referring the matter to ADR - S.89 & O.X R. 1A, 1B, 1C

Part V. of the code deals with special proceedings

● S.89 - Settlement of disputes outside the court
○ (1) Where it appears to the court that there exist elements of a settlement which may be
acceptable to the parties, the court shall formulate the terms of settlement and give them to
the parties for their observations and after receiving the observation of the parties, the court
may reformulate the terms of a possible settlement and refer the same for
○ (a) arbitration; (b) conciliation (c) judicial settlement including settlement through Lok
Adalat; or (d) mediation.
● O.X, R.1A - After recording the admissions and denials, the court shall direct the parties to the
suit to opt either mode of the settlement outside the court as specified in sub-section (1) of section
89. On the option of the parties, the court shall fix the date of appearance before such forum or
authority as may be opted by the parties.
● 1B. Where a suit is referred under rule 1A, the parties shall appear before such forum or authority
for conciliation of the suit.( here conciliation means deciding on suit, not the adr mechanism)
● 1C. - Where a suit is referred under rule 1A, and the presiding officer of conciliation forum or
authority is satisfied that it would not be proper in the interest of justice to proceed with the matter
further, then, it shall refer the matter again to the court and direct the parties to appear before the
court on the date fixed by it.
● Consent in case of arbitration is mandatory - Sc in Afcons held that consent for arbitration and
conciliation is mandatory while it is not necessary in case of mediation, lok adalat and judicial
settlement
● Judicial settlement means a final settlement by way of compromise before a Lok Adalat or
before a suitable institution or person, which shall be deemed to be a settlement before a Lok Adalat
within the meaning of the Legal Services Authorities Act, 1987 (39 of 1987).

( Important)*** M/s. Afcons Infra. Ltd v. M/s. Cherian Varkey, 2010 SC (2J)

Case relevant as it categorised what cases are fit for ADR and what are not fit for ADR.

The following categories of cases are normally considered to be not suitable for ADR process having
regard to their nature :

(i) Representative suits under Order 1 Rule 8 CPC which involve public interest or interest of numerous
persons who are not parties before the court.

(ii) Disputes relating to election to public offices (as contrasted from disputes between two groups trying to

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get control over the management of societies, clubs, association etc.).

(iii) Cases involving grant of authority by the court after enquiry, as for example, suits for grant of probate
or letters of administration.

(iv) Cases involving serious and specific allegations of fraud, fabrication of documents, forgery,
impersonation, coercion etc.

(v) Cases requiring protection of courts, as for example, claims against minors, deities and mentally
challenged and suits for declaration of title against government.

(vi) Cases involving prosecution for criminal offences.

Suits of civil nature and cases generally fit for adr

(i) cases relating to trade, commerce, contracts

(ii) cases arising from strained or sour relationship

(iii) cases where there is a need fro contiunace of pre-exisitng relationship

(iv) cases relating to tortious liability

(v) cases regarding consumer dispute

Important para from Salem Adovcate Bar Ass v. Union of India Apex court case regarding
consent under S. 89

“ It is quite obvious that the reason why Section 89 has been inserted is to try and see that all the cases
which are filed in court need not necessarily be decided by the court itself. Keeping in mind the law's
delays and the limited number of Judges which are available, it has now become imperative that
resort should be had to alternative dispute resolution mechanism with a view to bring to an end
litigation between the parties at an early date. The alternative dispute resolution (ADR) mechanism
as contemplated by Section 89 is arbitration or conciliation or judicial settlement including settlement
through Lok Adalat or mediation. If the parties agree to arbitration, then the provisions of the
Arbitration and Conciliation Act, 1996 will apply and that case will go outside the stream of the court
but resorting to conciliation or judicial settlement or mediation with efforts being made, the case will
ultimately go to trial."

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MODULE VIII, IX INTERIM ORDERS ( Do only O.39 and S.94 - Shivam )

Interim Orders - orders passed by court during pendency of suit or proceedings which do not determine
finally the substantive rights and liabilities of the parties in relation to the subject matter of the suit.

They are necessary to protect the rights of parties between commencement and final adjudication. Interim
orders under the CPC can be summarised under
1. Payment in court - O.14
2. Security for costs - O.25
3. Commissions - O.26
4. Arrest before judgement - O.38
5. Attachment before judgment - O.38
6. Temporary injunctions - O.39
7. Interlocutory injunctions - O.39
8. Receiver - O. 40 ( a person appointed as custodian of a person’s property, finances, general assets,
or business operations)

Temporary injunction - [Link]. R.1-5

● An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any
particular act
○ Prohibitory injunction - order that prohibits party from doing something or continuing to
do a particular act
○ Mandatory injunction - party has to carry out a certain act
● Settled principle of law that interim order can be granted as ancillary to the main relief available
to the parties on the final determination of the suit.
● Object of granting temporary injunction is to maintain and preserve the status quo at the time of
institution of proceedings and to prevent change until final determination
● Permanent injunction covered in S.38 and 42 of SRA, 1963
● S. 94 of CPC that deals with supplemental proceedings allows the court to grant a temporary
injunction and in case of breach of injunction a person may be put in civil prison or property may be
attached. S.94(c)

Injunction can also be

i) ad- interim ; injunction granted without finally deciding application for injunction and operates till
disposal of injunction
ii) interim; normally granted while finally deciding main application and operates till disposal of suit

O.39, R.1 - Cases in which temporary injunction may be granted

1. Where any property in dispute is in danger of being wasted, alienated by party

2. Where defendant threatens to dispose of property with intention to defraud creditors
3. Where defendant aims to deprive plaintiff or cause injury in relation to property dispute
4. Where defendant is about to commit a breach of contract
5. Where court is of the opinion that the interest of justice requires so

3 principles that must be satisfied before granting temporary injunction

A. Whether the plaintiff has a prima facie case?
B. Whether the plaintiff will suffer irreparable injury if prayer for temp inj is not granted
C. Whether the balance of (in)convenience is in his favour

* Discussed in Maria Margarida Sequeria v. Erasmo Jack De Sequeria , 2012 SC and Dalpat Kumar v.
Prahlad Singh, 1992 SC.

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A. PRIMA FACIE CASE

Applicants should make out a prima facie case to show that there is a bona fide dispute raised which needs
to be determined on merits and is entitled to relief. Existence of a prima facie right and its infraction is a
condition that needs be satisfied before granting temp inj.

B. IRREPARABLE INJURY

Along with the existence of a prima facie case, the plaintiff should show that he will suffer irreparable
injury if the injunction is prayed for and not granted. Since granting of injunction is an equitable relief, it
will be exercised only when it is absolutely necessary to protect the rights and interests of the applicants.
The injury must be material and where there exists no specific or fixed pecuniary standards for measuring
damages then it will be irreparable injury.

C. BALANCE OF (IN)CONVENIENCE

● Court balances to see if hardship to plaintiff will be greater if injunction is refused compared to
hardship to the opposite party by granting injunction
● Court while exercising discretion weighs substantial mischief or injury likely to be caused

O.39, R.3 - Before granting injunction, court to direct notice to the opposite party
● Notice to be give before granting an injunction
● However injunction can be granted ex parte given that court gives that object behind the same
○ In this case court has to dispose of the application within 30 days
● Morgan Stanley Mutual Fund v. Kartick Das - factors to be considered while granting ex parte
injunction
○ Whether irreparable injury to the plainitff
○ Whether refusal of ex parte injunction would involve greater injustice
○ Party applying for such order such do it in utmost good faith
○ When plaintiff has acquiesced - knowingly stood by even though right was infringed, the
court may not consider granting ex parte order
● While the duration of interim relief is limited until the suit is dismissed or decreed, when interim
relief is given to maintain status quo, it can continue when parties approach a higher court for appeal
or revision
● While interim orders by themselves don't have any precedential value, an order granting or
refusing to grant injunction is subject to appeal

INTERLOCUTORY INJUNCTION - [Link] (R.6-10)

Interlocutory order only settles intervening matter relating to the cause. Such orders are made to secure
some end and purpose necessary and essential to the progress of case and generally collateral to the issues
to be settled by the court in the final judgment.

R.6 - Power to order interim sale : Court has power to order sale of perishable property in certain
circumstances
R.7 - Order for detention, preservation or inspection of any property for which is the subject matter of suit
R.8 - application for orders under R.6, 7 to be made after notice anytime after institution of suit
R.9 - When the property in subject-matter is one against which revenues need to be paid to gov, and the
party fails to do so, the property can be sold immediately on the failure of payment and possession given to
another party
R.10 - If subject matter is money and it needs to be given to a third party, court can direct party to deposit
the money with the court

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MODULE X&XI- SUITS IN PARTICULAR CASES

Suits by or Against Government: Sec 79-82 and Order 27 (VV Imp-Sir)

● Only lays down procedure where suits are brought by or against the Government/Public officers
● Deal with procedure and machinery only and not with Rights and liabilities enforceable by or
against the government.
● Sec. 79: Title of Suit
○ Authority to be named, in case of suit for/against central govt, the Union of India, and in
case of state government, the State.
● Sec 80: Statutory Notice
○ No suit shall be instituted against govt/public officer in relation to any acts done by them
in their official capacity, until the expiration of 2 months notice after:
i. Notice in writing has been delivered to
ii. Or left at the office
○ Object:
i. to afford an opportunity to the govt. To consider the legal position and settle the
claim, if the plaint appears to be just and proper
ii. Govt supposed to be objective and impassionate and take appropriate decision in
public interest by saving public time and money without driving a person to
avoidable litigation.
iii. Held in Bihari Chowdhary v State of Bihar SC.-”the object of the section is the
advancement of justice and the securing of public good by avoidance of unnecessary
litigation”
○ Essential for Notice: Must contain
i. Name, description and place of residence of the person giving notice
ii. A statement of cause of action
iii. Relief claimed by him
○ Not an empty formality. Object is to afford govt opportunity to settle the issue.
○ However, has become empty formality due to govt unresponsiveness. Unresponsiveness
criticized by SC in State of Punjab v Geeta Iron and Brass Works Ltd.
○ Notice mandatory-no exceptions. Provisions must be strictly complied with but it cannot
be overlooked that it is procedural provisions, therefore notice should not be construed in a
pedantic manner divorced from common sense
○ No suit will be dismissed merely on the ground of error or defect in notice- Sec. 80(3)
● Section 83: Suits by aliens- aliens enemies residing in India, with the permission of the Central
Govt. and alien friends, may sue in any court otherwise competent to try a suit, as if they were
citizens of India.
● Section 83-87A:Suits by/Against Foreign Rulers, Ambassadors and Envoys
● 87-B, Suits by or against Rulers of Former Indian States
● Order XXVII
○ Lays procedure
○ R.1- Plaint/written statement signed/verified by a person appointed by govt.
○ R.4- Person authorised to act for the Government shall be deemed to be recognized agents
under the court
○ R.5-fixing date of appearance on behalf of govt.
○ R.5A-where suit is filed against a public officer, the government should be joined as a
party to suit.
○ R.5B-In all suits against the government, duty of the court to assist in arriving at a
settlement
○ 8-A- No security shall be required from govt/public officer
○ 8B. - Definition of Government and Government Pleader (pleader appointed by govt)

Suits by Indigent Person: Order 33

● Enables persons who are too poor to pay court fees and allows them to institute suits without
payment of requisite court fees

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● The order prevents such persons from paying the court fee at the first instance and allows him to
prosecute his suit in forma pauperis, provided that he satisfies certain conditions laid down in the
order
● Triple Purpose
○ To protect bona fide claims of an indigent person
○ To safeguard the interest of revenue and
○ To protect the defendant from harassment
● Rule 1- Meaning of Indigent Person
○ A person is indigent person
i. If he is not possessed of sufficient means to enable him to pay the fee prescribed by
law for the plaint in such suit or
ii. Where no such fee is prescribed, when he is not entitled to property worth 1000
rupees
○ In both cases, the property exempt from attachment in execution of a decree and subject
matter of the suit should be excluded
○ Sufficient means contemplates ability or capacity of a person in ordinary course to raise
money by available lawful means to pay court fee. The property exempted from attachment
in execution of a decree and subject matter shall not be taken into account to calculate ability
of such an indigent person
○ Union Bank of India v Khader International- Judicial Persons are included under the
meaning of this order
● Rule 2: Contents of Application
○ Should contain
i. The particulars required in regards to plaint in suits
ii. A schedule of any movable or immovable property belonging to the applicant with
the estimated value thereof and
iii. The signature and verification as provides in order 6 R.14&15
● Rule 5- Rejection of Application
○ Will be rejected in following cases
i. Where the application is not framed and presented in the prescribed manner
ii. Where the applicant is not an indigent person
iii. Where the applicant has, within two months before the presentation of the
application, disposed of any property fraudulently or in order to get permission to sue
as an indigent person or
iv. Where there is no cause of action
v. Where the applicant has entered into an agreement with reference to the subject
matter of suit under which another person has obtained interests
vi. Where the suit appears to be barred by law
vii. Where any other person has entered into an agreement with the applicant to
finance the costs of litigation
● Rule 1-A- Inquiry
○ In the first instance, an inquiry into the means of the applicant should be made by the chief
ministerial officer of the court.
○ The court may adopt the report submitted by such officer or may itself make the inquiry.
● Rule 4- examination of applicant
○ Where the application submitted by the applicant is in proper form and is duly represented,
the court may examine the applicant regarding the merits of the claim and the property of the
applicant
● Rule 6-7
○ The court shall then issue notice to the opposite party and to the government pleader and
fix a day for receiving evidence as the applicant may adduce in proof of his indigency or in
disproof thereof by the opposite party or by the government pleader. R6
○ On that day so fixed, the court shall examine the witnesses, if any, produced by either
party, hear their arguments and either allow or reject the application. R7
● Rule 8-9A- where permission is granted

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○ Where an application to sue as a indigent person is granted, it shall be deemed to be a

plaint in the suit and shall proceed in the ordinary manner, expect the plaintiff will not have
to pay court fees or process fee
○ The court may assign a pleader to an indigent person if he is not represented by a pleader.
The government may make provisions for the rendering of free legal aid,
○ A defendant can also plead set-off or counterclaim as an indigent person
● Rule 15-15A-Where permission is rejected
○ Where the court rejects an application to sue as an indigent person, it will grant time to the
applicant to pay the court fees.
○ Such order will bar subsequent similar applications
○ Will not debar him from suing in an ordinary manner, provided he pays the cost incurred
by the government pleader and opposite party
● Rule 9- Revocation of Permission
○ Court may revoke permission
i. Where he is guilty of vexatious/improper conduct in the course of suit
ii. Where his means are such that he ought not to continue to sue as indigent person
iii. Where he has entered into an agreement under which another person has obtained
an interest in subject matter of suit

● Appeals by indigent person: Order 44-

○ Person unable to pay court fees on a memorandum of appeal may apply to allow him to
appeal as an indigent person.
○ The necessary inquired under order 33 is enough
○ Appellant was allowed to sue as indigent person in the trial court, no fresh inquiry will be
necessary if he files an affidavit that he continues to be an indigent person

Interpleader Suits: Sec 88 and Order 35

● Intro
○ To interplead means to litigate with each other to settle a point concerning a third
party
○ Interpleader suit is a suit in which the real dispute is not between a plaintiff and a
defendant but between defendants who interplead with each other, unlike in an ordinary suit.
○ Primary object is to get claims of rival defendants adjudicated. It is the process wherein the
plaintiff calls upon the rival claimants to appear before the court and get their respective
claims decided.
● Section 88- Conditions
○ The following conditions must be satisfied before a interpleader suit can be instituted
i. There must be some debt, sum of money, or other property movable or immovable
in dispute
ii. Two or more persons must be claiming it adversely to one another
iii. The person from whom such debt, money or property is claimed must not be
claiming interest therein other than the charges and the costs and he must be ready
and willing to pay or deliver it to the rightful claimant
iv. There must be no suit pending wherein the rights of rival claimants can be
properly adjudicated
○ A person who has no interest in any debt, sum of money or other property, movable or
immovable, except the charges or costs and is ready to pay or deliver the property to the
rightful claimant can file an interpleader suit
○ Test- the court must have regard to all the prayers in the plaint. A suit does not become an
interpleader suit merely because the plaintiff requires the defendant to interplead with each
other as regards to one of the prayers in the plaint.
● Order 35- Procedure
○ R1- In every interpleader suit, in addition to other statements, the plaint must also state
i. That the plaintiff claims no interest in the subject matter in dispute other than the
charges and costs
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ii. The claims have been made by the defendant severally and
iii. There is no collusion between plaintiff and any of the defendants
○ R2- The court may order the plaintiff to deposit the amount or place the property in
custody of the court and (mentioned in r6) provides court incurred by him by giving him a
charge on the thing claimed
○ R4-
i. At the first hearing, the court may declare that the plaintiff is discharged from all
liabilities, award him costs and dismiss him from the suit.
ii. Where it is not possible, the court may direct that an issue or issues between the
parties to be framed and tried, one of the claimants to be made the plaintiff in lieu of
or in addition to the original plaintiff and the suit shall proceed in ordinary manner.
○ Rule 5- an agent can’t sue his principal, or tenant or his landlord, for the purpose of
compelling them to interplead with persons other than person claiming through such
principals or landlords.

Summary Suit: Order 37 (vv imp-Sir)

● Intro
○ Order 37 provides summary procedure in suits based on negotiable instruments or where
the plaintiff seeks to recover debt or liquidated amount.
○ The essence of summary suits is that the defendant is not, as in an ordinary suit, entitled as
of right to defend the suit.
○ He must apply for leave to defend within stipulated period of 10 days
○ The object is to ensure an expeditious hearing and disposal of suit and to prevent
unreasonable obstruction by the defendant who has no defence and to assist the expeditious
disposal of cases
● The discretionary power conferred upon the court under order 37 should be exercised judicially,
judiciously and on well settled principles of natural justice. Wherever the defence raises a triable
issue, leave should be granted unconditionally. If it is not done, leave, may become illusory- Milky
Ram India Pvt Ltd vs Cham Lal Brothers
● Test-
○ is to see whether the defendant raises a real, honest and bona fide dispute and raises a
triable issue or not.
○ If the court is satisfied that the defense has raised a triable issue or a fair dispute has arised,
the leave to defend will not be refused.
○ It is only in cases where the defense is patently dishonest or so unreasonable that it could
not reasonably be expected to succeed that the exercise of discretion to grant unconditional
leave can be refused.
○ Uma Shankar Kamal Narayan vs M.D Overseas Ltd SC- held court will allow leave to
defend if the defendant’s cause is such that if he proves his fact, he wins the case. If the
defendant’s case is moonshine or illusionary then the leave to defend will not be allowed and
court will pass judgement
● Procedure
○ Rule 2- 3
i. Suit is filed by the plaintiff and summons are issued to defendant for first
appearance
ii. After the summons of the suit has been issued to defendant, the defendant must
appear and serve notice to plaintiff about his appearance
iii. 2nd summons are issued for judgement
iv. The defendant may appear and file leave to defend the suit and grounds therein
v. The court will hear the matter to decide if the defendant has possible grounds to
defend and then court will grant leave to defend
vi. If the court grants leave to defend, then it will continue as a normal suit.
vii. If not then court will pass judgement
viii. If the defendant does not appear after 1st/2nd summons, then the court will pass
judgement forthwith.
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● No appeal lies against an order granting or refusing leave to defend- r3

● A decree passed in a summary suit is appealable
● Principles- Kiranmoyee Dassi v J. Chatterjee Cal HC

Suits relating to public nuisance: Sec 91

● Intro
○ Provides for filing of a suit in the case of public nuisance or other wrongful acts affecting
the public at large
○ States such a suit can be instituted for declaration, injunction or such other relief which
may be appropriate in the circumstances of the case
○ The expression public nuisance is not defined in code.
○ Act or omission which causes common injury, danger or annoyance to the public or to the
people in general who dwell or occupy property in the vicinity or which must necessarily
cause injury, obstruction, danger or annoyance to persons who may have occasion to use
public rights- Section 268 IPC
○ Muncipal Council Ratlam v Vardichan SC- Public nuisance is a challenge to the social
justice component of rule of law. In case of public nuisance it is power coupled with the duty
of the government or local authority to take appropriate steps to remove it.
● Who may sue
○ Advocate General
○ Two or more persons with the leave of court
○ Any private person if he has sustained special damage
● Remedies available against public nuisance
○ Person causing nuisance can be punished under IPC
○ Magistrate may remove public nuisance in certain circumstances by exercising summary
powers
○ A suit can be instituted for declaration, injunction or other appropriate relief without proof
of special damage
○ Suit may also be filed by a private individual where he has suffered special damages.
● Appeal lies against an order refusing to grant leave to file a suit for public nuisance or other
wrongful acts affecting the public.

Originating Summons-Friendly Suits: Sec 90, Order 36

● Intro-
○ A friend suit (special case) is a suit where the parties do not approach a court by
presentation of a plaint as is done in ordinary civil litigation.
○ They are, however, interested in the decision of any question of fact or of law.
○ For the said purpose, they enter into an agreement in writing stating such a question in the
form of a case for the purpose of obtaining the opinion of the court. The court may decide
the question if it is satisfied that such a question is fit to be decided.
○ Object is that where parties agree to state a case for the opinion of the court, the court
would try and determine such question by registering it as a suit.
○ Upon the judgement so pronounced, a decree will follow, such decree could be a
compromise decree.
● Conditions
○ The agreement is duly executed by the parties
○ The parties have a bona fide interest in the question stated
○ The case is fit to be decided
● Procedure: Order 32 and 36
○ Rule 1 and 2
i. Taks about form and contents of an agreement
ii. Such agreement duly entered into between the parties should be filed in the court
having jurisdiction to entertain suit
iii. It shall be registered as a suit and shall be heard and disposed of by a judgement
which will be followed by a decree
iv. Thus virtually the decree is a consent decree
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○ No appeal
○ The procedure provided by section 90 and 36 are rarely invoked because a litigant does not
get apparent benefit under it.

MODULE XII - JUDGMENT

After a hearing is complete, the court will pronounce a judgment. R.1 -5 of [Link] deals with judgment. A
judgment is said to be the final decision of the court on the said matter before the court in the form of suit
towards parties and to the world at large by formal pronouncement in open court.

S.2(9) - judgment means the statement given by the judge on the grounds of a decree or order.

● [Link], R.1 - pronouncement of judgment - After hearing is complete the court shall pronounce
the judgment in open court, either at once or on some future day, after giving due notice to the
parties or their pleaders.
○ If not pronounced immediately, the court should make all efforts to deliver judgment
within 30 days, and in extraordinary circumstances, within 60 days.

Pronouncement of judgment is essential for validity of judgment and judgment should be based on the
grounds and points in the pleadings and not outside the case put forward by the parties in their pleadings. A
statement of fact recorded in the judgment is conclusive of facts stated and no one can contest these facts
through an affidavit. The judge need not read the entire judgment and can even read only the final order.
The judges should exercise judicial restraint.

A.M. Mathur Vs. Pramod Kumar Gupta (1990) SC, wherein it was held that, “The duty of restraint, this
humility of function should be a constant theme of our judges. This quality in decision making is as much
necessary for judges to command respect as to protect the independence of the judiciary.

Swaran Lata v. State of UP- Judgement must be on the grounds and points in the pleadings and not outside
the case put forward by the parties in their pleadings. On the one hand the court should record findings on
all the points raised by the parties and on the other, it should not decide any question which does not arise
out of the pleadings of the pirates or is unnecessary.

● R.2. Power to pronounce judgment written by judge’s predecessor

● R.3. Judgment to be signed - in open court
● R.4. Judgment of small causes court -
○ (1)judgment in scc need not contain more than points for determination and the decision
○ (2) judgment of other courts - (i) concise statement of case, (ii) the points for
determination, (iii) the decision thereon, (iv) the reasons for such decision
● R.5. Court to state its decision on each issue - In cases where issues are framed separately, the
court should record findings on each separate issue.
● R.6-b. Copy of Judgement- The copies of the judgement should be made available to the parties
immediately on payment of charges.

A judgment must be a self-contained document from which it should appear as to what were the facts of the
case and what was the controversy which was tried to be settled by the court and in what manner.

Judgement once signed cannot afterwards be amended or altered except

● to correct clerical or arithmetical mistakes or
● errors due to accidental slips or omissions (section 152) or
● On review (section 144)

MODULE XIII - DECREE (Refer to Module 3)

[Link], R.6 - 19 deals with decree

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Decree: Sec. 2(2)

● Formal expression of an adjudication, which as far as regards the court expressing it, conclusively
determines the rights of the party with regards to all or any of the matters in controversy in the suit.
● Can be preliminary or final.
● Term includes rejection of a plaint and determination of any question under sec. 144 (applications
of restitution)
● Decree does not include
○ Any adjudication from which an appeal lies as an appeal from an order
○ Any order of dismissal for default
● Essential
○ There must be an adjudication
i. Judicial determination of the matter in dispute
ii. When a case is dismissed for the default of appearance of the parties, there is no
adjudication therefore no decree
○ Adjudication must have been given in a suit
i. Suit not defined in the code, ordinarily means a civil proceeding instituted by the
presentation of a plaint
ii. A proceeding which does not commence with a plaint is not a suit and therefore
judgements on such proceeding not a decree
○ It must have determined the rights of the parties with regards to all or any of the matters in
controversy in the suit
i. Substantive rights arising between the parties
ii. Order of mere procedure do not affect substantive rights, therefore no decree
● Dismissal for default of appearance not a decree
iii. Such a determination must be a conclusive determination
● Not merely an interlocutory order
iv. Must be formal expression of the adjudication
● All the requirements of the form must be complied with
● Held that following are not decrees
○ An order directing stay of suit
○ Order remanding a suit for fresh disposal
○ Order returning the plaint for presentation to proper court

R.6-A Drawing up of decree

● Decree should be drawn up within 15 days from the date of the judgement. If the decree is not
drawn up, an appeal can be preferred without filing a copy of decree.

R.6. Contents of a decree - The decree shall follow the judgment and agree with in and bear;
1. The number of suit
2. The names and description of parties and their registered address
3. The particulars of the claim
4. The relief granted
5. The amount of costs incurred in the suit and by whom or out of what property and in what
proportion they are to be paid
6. The date on which judgment is pronounced
7. The signature of the judge

R.9 -19 deals with decrees in particular cases.

R.9 - In suit of recovery for immovable property, the decree shall contain a description of such property,
sufficient to identify it, survey numbers, boundaries, maps
R.10 - In decree for delivery of movable property. It must state amount of money to be paid as an
alternative if delivery cannot be made
R.11 - In a decree for payment of money, the court may order that the decretal amount shall be postponed
or shall be made by instalments with or without interest
R.12 - In suit for possession of immovable property , the court may pass a decree for
● (1) possession of property

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● (2)(a) for past rent or mesne profit

● (b) or direct an inquiry as to the rent and mesne profit
● (c) direct inquiry as to future rent and mesne profit
● (3) final decree in accordance with result of such inquiry
R.12-A - A decree for specific performance of contract for sale or lease of immovable property shall
specify the period within which the purchase money or sum is to be paid by the purchaser or lessee
R.13 - In suit for account of any property and for its due administration under the decree of the court,
before passing a final decree, the court should pass a preliminary decree, ordering accounts to be taken
and inquiries to be made. After this only final decree can be passed.
R.14 - In a decree for a pre-emption suit , where purchase money has not been paid to the court, the decree
shall specify date for payment and direct that on such payment, defendant will deliver the property to the
plaintiff
● Right of pre-emption - It is the right of an owner of immovable property to acquire by purchase
another immovable property which has been sold to another person. In other words, under this right,
the owner of an immovable property is entitled to repurchase an adjacent property which has been
sold to someone else.
When court has adjudicated upon rival claims of pre-emption, the decree shall direct
● If claims decreed are equal in degree, then the claim of each pre-emptor will take effect
proportionately
● If claims are different in degree, the claim of the inferior pre-emptor shall not take effect unless
and until superior pre-emptor fails to make payment
R.15 - In suit for dissolution of partnership or taking of partnership accounts, the court before passing a
final decree, may pass a preliminary decree declaring proportionate share of parties, fixing the day on
which partnership shall stand dissolved and directing accounts to be taken
R.16 - In suit of accounts between principal and agent, the court before passing a final decree, shall direct
prelim dec for taking in accounts
R.17- The court can give special directions regarding mode of taking accounts
R.18 - In a decree passed in a suit for partition of property or for the separate possession of a share
therein;
● (1) if estate is assessed as to payment of revenue to the govt, the decree shall declare rights of
several parties interested in the property but shall declare partition or separation to be made by the
collector (S.54)
● (2) in other cases of immovable property, if partition cannot be conveniently made without
inquiry, the court may pass a prelim decree declaring the rights of the parties in the property
and thereafter final decree can be passed.
R.19- A decree where the defendant has been allowed a set-off or counterclaim, against the claim of the
plaintiff, it shall state what amount is due to the plaintiff and what amount is due to the defendant.

Decrees in Special Suits outside [Link]

● Narayan v. Lakshmi Narayan- HELD that the lists below and above is not exhaustive and that
the court has discretion to pass preliminary decree in other suits also, depending on facts and
circumstances of case
● List of Suits
○ Suit related to foreclosure of mortgage- [Link]
○ Suits related to sale of mortgage- [Link] R. 4
○ Suit related to redemption of mortgage- O. XXXIV R7
● Phul Chand v Gopal Lal-
○ that the court can pass any number of preliminary decree before filing a final decree
○ In this case there was a partition suit and one party died. The other parties were at liberty
to approach the court for a second or supplementary preliminary decree seeking modification
to the plaint as per situation
○ However, such situation are absent in suits other than partition suits
○ Therefore the chances of passing more than one preliminary decree are remote
● Reiterated in Gandhuri Kotherweramma v Chakiri Yanadi
○ HELD that cpc creates no impediment for even more than one preliminary decree if after
the passing of preliminary decree, circumstances arise or events take place that necessitates

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the readjustment of shares as declared in preliminary decree (reference to partition and phul
chand)
○ A suit for partition continues after the passing of the preliminary decree and the
proceedings in the suit extinguishes only on the passing of final decree. It is therefore not
correct to state that once a preliminary decree has been passed, it is not capable of
modification

S. Satnam Singh v. Surendra Kaur, 2008 SC

● Following test were laid down to determine whether a order passed by court is an decree or order
○ There should be an adjudication
○ Such adjudication must be in a suit
○ It must determine the rights of the parties in respect to all or any of the questions in
controversy in a suit
○ Such determination must be of conclusive nature
○ There must be a formal expression of such adjudication
■ All 5 tests have to be met

Interest - S. 34

It is a charge that is paid to borrow for use of money. It is a compensation allowed by law to the person who
has been prevented from using the amount to which he was entitled. When decree is for payment of money,
the court may award interest such rate as it deems reasonable on the ‘principal sum adjudged’.

[Link]
judgments/#:~:text=We%20are%2C%20therefore%2C%20of%20the,for%20the%20court%20to%20hold

Division of interest

(i) interest prior to filing of suit

S.34 does not deal with interest prior to filing of suit as it is a purely substantive matter.
B.N. Rly v. Rulia Singh, PC 1938

“The crucial question, however, is whether the Court has authority to allow interest for the period prior to
the institution of the suit; and the solution of this question depends, not upon the Civil Procedure Code, but
upon substantive law. Now, interest for the period prior to the date of the suit may be awarded, if there is an
agreement for the payment of interest at a fixed rate, or it is payable by the usage of trade having the force
of law, or under the provision of any substantive law entitling the plaintiff to recover interest, as for
instance, under section 80, Negotiable Instruments Act, 1881, the Court may award interest at the rate of 6
per cent. per annum, when no rate of interest is specified in the promissory note or bill of exchange."

(ii) Interest pendente lite, i.e, from the date of the suit to the date of the decree

The award of interest from the date of decree is at the discretion of the court. The discretion should be
exercised on sound judicial principles, ideally courts decide based on contractual rate, unless it is unfair to
do so.

(iii) Interest from date of decree to payment

This will also be at the discretion of the court. The section empowers a court to award further interest
from the date of the decree up to the date of payment on the aggregate sum which comprises the
principal sum, with interest. S.34(2) limits the rate of interest which a Court can award on the decretal
amount to six per cent, per annum. A court can grant interest exceeding 6% per annum but not
exceeding contractual rate of interest.

The rate of interest is also at the discretion of the court. If there is an agreement between the parties,
normally the court will adhere to it and will award interests as agreed unless there are reasons to depart
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therefore.

When court grants interest at agreed rate between parties in may not record reason. If it awards rate
lesser than agreed, reason to be recorded. In case of commercial transactions, that deal with industry,
trade or business, grant of interest at contractual rate will be the rule.
Central Bank Of India, Kutch vs P.R. Garments Industries Pvt Gujarat HC-“In Commercial
transactions, the contractual rate of interest should be the rule and departure a rare exception”

Costs - S.35

● General costs - S.35

○ The object of awardings costs to litigant, is to secure to him expenses incurred by him in
the litigation. It neither enables a successful party to make any profit, nor punishes the
opposite party.
○ The general rule regarding cost is that it should follow the event, successful party to get
costs, losing party to pay them.
○ Costs are normally at the discretion of the court but sound legal principle needs to be
applied.
○ Normally costs should follow the event. However, even a successful party will be
deprived of receiving the payment if he is guilty of misconduct or there are other reasons.
S.35(2), that court should record the reason if it does so. The costs should be real and
compensatory and not merely symbolic.

(For other costs under O.20-A and S.35-A, 35-B refer to pg. 414 of Takhwani)

MODULE XIV, XV - EXECUTION

Execution is enforcing or giving effect to the judgment of the court. It is the enforcement of decrees and
orders by the process of court so as to enable the decree holder to realise the fruits of his decree. An
execution is complete when the judgment-creditor or decree-holder gets money or other things awarded
to him by the judgment, decree or order.

If A files a suit against B for Rs.10,000 and obtains a decree against him, A will be the judgment-creditor
or decree holder. B is the judgment-debtor and the amount of Rs.10,000 is the judgment-debt or
decretal amount. Principles governing execution of decrees and orders are covered in S.36-74 & in [Link]

Court passing a decree - S.37

S.37 widens the scope of the decree-holder, and lays out the courts passing a decree as;
● Court of first instance which actually passed the decree
● The court of first instance in case of appellate decrees
● Where the court of first instance has ceased to exist, the court which would have jurisdiction at the
time of execution
● Where the court of first instance ceases to have jurisdiction to execute the decree, the court at the
time of execution which would have the jurisdiction

Courts by which decree may be executed - S.38

S.38 - A decree may be executed either by a court which passed it, or by the court to which it is sent for
execution. A court which neither passed a decree nor a decree is transferred for execution cannot execute it.
Where the court of first instance ceases to have or ceases to exist to execute the decree, the court at the
time of execution which would have the jurisdiction.

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Ex; Suppose court A passes a decree, and a part of the area within the area of jurisdiction of court A is
transferred to court B.

(i) Whether court A continues to have jurisdiction to entertain an application for execution?

Merla Ramanna v. Nallapparaju, 1956 SC - It is settled law that the court which actually passed the decree
does not lose its jurisdiction to execute it, by reason of the subject-matter being transferred
subsequently to the jurisdiction of another court.

(ii) Whether court B can also entertain an application for execution without a formal transmission of decree
from A to B?

Ans: Conflicting judgements

Lachmen Punde v. Madan Mohan, 1881 Cal HC

In this situation both the courts would be competent to entertain an application for execution.

Ramier v. Muthu Krishna Ayyar Mad. HC

In the absence of an order of transfer by court which passed the decree (court A), that court alone can
entertain an application for execution and not the court whose jurisdiction the subject matter has been
transferred to (court B).

Transfer of Decree - S.39

While this is not a mandatory prov and courts have discretion to decide on it, it basically lays out that the
court can suo moto by its own motion transfer the decree or decree-holder can make an application if any of
the following grounds exist;
● The judgment-debtor actually works or resides or carries on business or personally works for gain
within local limit of the other court
● If judgment debtor does not have sufficient property within limits of this court but has property
within local limits of another court
● Decree directs sale of immovable property located outside its limits
● Any other reason recorded in writing

Mahadeo Prasad Singh v. Ram Lochan, SC- Provisions of Section 39 not mandatory
Mammatha Pal Choudhury v. Sarada Prosad Nath- Court has discretion in the matter which will be
judicially exercised by it.

Application for execution - [Link], R.10

[Link], R.10 lays out who may file an application for execution;
1) Decree-holder
2) Legal rep if dec-holder in dead
3) Rep of the dec-holder
4) Any person claiming under the dec-holder
5) Transferee of the dec-holder if following conditions are met; (S.49, O.21, R. 16)
a) The decree must have been transferred in writing or by operation of law
b) The application for execution must have been made in court which passed decree
c) Notice and opportunity of hearing must have been given to transferor
In case of decree in a representative suit, a person who is being represented in the suit may apply for
execution even if he is not on record. In a partition suit, the defendant to the extent of his share, can also
apply for execution. A receiver appointed by a court may apply for execution on behalf of the decree-
holder.

[Link], R.15 lays down those who can file in the case of joint decrees
1. One or more of the joint decree holders provides the following conditions are fulfilled

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a. The decree should not have imposed any condition to the contrary
b. The application must have been made for the execution of the whole decree
c. The application must have been for the benefit of all the joint decree holders.
2. Any person having special interest

Payment under decree - [Link], R.1,2

R.1 - Modes of paying money under decree

A decree for payment of money (even as alternative relief) may be executed by attachment and sale of
property of judgment-debtor or detention in civil prison.
R.1 of the act deals with modes of paying money under the [Link] money payable under the decree
shall be paid by either;
1. Depositing money in executing court
2. Out of the court to the decree-holder
3. As per directions of court which passed the decree
R.1(2) lays out that where payment is being made by depositing the decretal amount in court or by
directions of the court, the judgment-debtor shall give notice of such payment to the decree-holder through
court or directly to him by registered post acknowledgment due (RPAD).

R.1(3) lays out that when payment is made out of court, the following particulars must be stated;
● The number of the original suit
● The names of the parties
● How the money remitted is to be adjusted, towards cost or interest or principal
● The number of the execution case of the court where such case in pending
● The name and address of the payer

A payment in accordance with Rule I of O. 21 discharges the judgment debtor from decretal dues. On the
amount being paid, interest shall cease from the date of payment.

R.2 - Payment out of court

R.2 lays out some procedures that need to be followed in case of payment out of court.
R.2(1) lays out that the court requires a certificate of payment or adjustment by the decree-holder and
recording of such payment or adjustment by the executing court.
R.2(2) lays out that the judgment-debtor may inform the court of payment or adjustment, and apply to the
Court to issue a notice to the decree holder to show cause, on a day to be fixed by the Court, why such
payment or adjustment should not be recorded as certified. If after service of such notice, the decree-
holder fails to show cause why the payment or adjustment should not be recorded as certified, the Court
shall record the same accordingly.

Modes of execution [Link], R.30 -36

After the decree holder files an application for executing a decree, the executing court can enforce a decree.
The substantive provisions under S.51 lay out different modes of execution in general terms while
conditions and limitations under which the respective modes can be availed are under [Link].

S.51 Powers of Court to enforce execution - Subject to such conditions and limitations as may be
prescribed, the Court may, on the application of the decree-holder, order execution of the decree
(a) by delivery of any property specifically decreed;
(b) by attachment and sale or by the sale without attachment of any property;
(c) by arrest and detention in prison
(d) by appointing a receiver; or
(e) in such other manner as the nature of the relief granted may require

Choice of mode of execution

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Mahadeo Prasad Singh v. Ram Lochan, 1980 SC - As a general rule a decree holder has an option to
choose a particular mode of execution and enforce a decree passed by a competent court in his favour.

(1) Delivery of movable property , [Link], R.31

R.31 - When the decree is for specific movable property it may be executed by
1. Seizure and delivery of property
2. Detention of judgment-debtor
3. By attachment and sale of his property
4. By attachment and detention both
Since R.31 deals with specific movable property, it does not include money and a decree for money will not
fall under this rule. Moreover for this rule to be applicable the property must be in possession of the
judgment-debtor. When property is in the hands of a third party, provisions of this rule wont apply and
property cannot be attached.

(2) Delivery of immovable property, [Link], R.35, 36

When decree is for immovable property in the possession of the judgment debtor it can be executed by
removing the judgment-debtor and by delivering possession to the decree holder. If the decree-holder
establishes his identity of decretal property, the decree must be executed by putting him in actual
possession. Possession delivered in this manner is known as khas or actual possession - covered under R.35

But if the property is in the possession of a tenant or other person not bound by the decree, the delivery of
the property should be made by affixing a copy of warrant on some conspicuous place on the property,
making known to the occupant the substance of the decree. This is known as symbolical or formal
possession - covered under R.36.

Shamshuddin v. Abbas Ali, 1971 All

While R.35 and 36 deal with delivery of immovable property, if immovable property is in possession with
the judgment-debtor, actual possession must take palace and property is duly delivered under R.35(1).
Where it is in the possession of a tenant or other person entitled to occupy the same, only symbolic
possession can be delivered and that is to be done under R.36.
(Ref to p.631 Takhwani)

Attachment and sale of property S.51(b)

● Empowers court to order execution of a decree by attachment and sale or by sale without
attachment of any property.
● Court is competent to attach said property if it is within its local limits of jurisdiction
● The primary object of attachment of property is to give notice to the judgment-debtor not to
alienate the property to anyone as also to the general public not to purchase or in any other manner
deal with the property of the judgment-debtor attached in execution proceedings.
● Attachment is not a prerequisite for sale and a sale of said property without being attached does
not make the sale void

Arrest and detention S.51(c)

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When decree is for payment of money, execution by detention in civil prison will not be ordered unless
after giving the judgment-debtor an opp to show cause why he should not be detained, the court comes to
the conclusion that;
● The jud-deb with the aim of obstructing execution,
a. is likely to abscond or leave local limits of court ,
b. has after institution of suit tried to dishonestly conceal property
● Jud-deb has means to pay the money but is not doing so
● The decree is for a sum which the jud-deb was bound in a fiduciary capacity

Appointment of receiver 51(d)

Execution by appointment of a receiver is known as an equitable execution . It cannot be claimed as a right

and is an exception to the rule that decree-holders can choose mode of execution. The court must be
satisfied that the appointment of receiver will benefit both the parties.

Goal of appointing a receiver is to ensure that the property in question is protected. The court appoints an
unbiased person with the objective of safeguarding the suit property until the case is finally settled. During
the course of the proceedings, the appointed receiver has the authority to receive and accept the property's
revenues and earnings. He acts as a court agent.

Stay of execution - [Link],

R.26
● Provisions for stay of execution proceedings, covered in R.26 of O.21.
● R,26(1) - It lays out that an executing court, on sufficient case being shown, and on the jud-deb
furnishing security or fulfilling conditions imposed on him, stay execution of decree for a
reasonable time to enable the jud-deb to apply to the court which has passed decree, or to appellate
court for an order to stay execution.
● The power to stay execution is not the same for a transferee court as it is for a court passing the
decree ( Pls refer to p. 623 of takhwani)
● R.26(2) - Where the property or person of the judgment-debtor has been seized under an
execution, the Court which issued the execution may order the restitution of such property or the
discharge of such person pending the result of the application.
● A transferee court cannot invoke inherent powers to grant stay-Shaukat Hussain v. Bhuneshwari
Devi HC

R.29
● Provides for stay of execution pending suit between the decree holder and the judgement debtor.
● Where a suit by the judgement-debtor is pending in a court against the decree-holder, such court
may, on the judgement-debtor furnishing security or otherwise as it thinks fit, stay the execution of
the decree until disposal of the suit.

Questions to be determined by executing court - S. 47

● S.47 - only deals with matters arising after passing of the decree; deals with objection to
execution, discharge and satisfaction of decree.
● The section enacted with view to obtain adjudication of questions relating to execution without
unnecessary expenses or delay with a fresh suit
● While res judicata deals with the final decisions of the court, S.47 deals with enforcing such
decisions - where there is an executable order, no suit lies for its enforcement
● Exclusive jurisdiction has been given to the executing courts under S.47 to decide on questions on
execution
● States
○ Questions arising between parties relating to execution, discharge or satisfaction of decree,
shall be determined by the court executing the decree and not by a seperate decree

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○ Court will also determined questions arising as to whether any person is/is not the
representative of party
○ Explaination
i. Plaintiff whose suit has been dismissed and defendant against who suit has been
dismissed are parties
ii. Purposes of this section, a purchaser of property at a sale in execution of decree
also party
iii. All questions related to delivery of possession of property shall be deemed to be
questions relating to execution
● The Objective is to provide a cheap and expeditious remedy for determination of certain questions
in execution proceedings without recourse to separate suit and to prevent unnecessary suits.
● Exclusive jurisdiction only on executing court. Executing court should alone determine all
questions in execution proceedings and filing of separate suit is barred.

Two Conditions for application of S.47

1. The question must be one arising between the parties to the suit in which decree is passed or their
reps
a. Explanation 2 of the Section clearly mentions that a purchaser of any property which has
to be sold in execution of a decree is deemed to be a party to the suit in which the decree has
been passed, irrespective of the fact that he or she is a stranger to the suit.
b. The word “parties” neither includes de facto parties nor does it merely include
plaintiff and defendant but also includes opposing parties. For example, in a suit related
to partition, if any question arises between the co-defendants, they will fall under the
category of parties for Section 47
c. Whether a person is or is not a party to the suit should be decided not on the basis whether
he is a party to the decree but whether he is a party to the suit in which the decree is passed
(??)
d. Representatives not only include legal heirs, executors but also a “representative-in-
interest”- any transferee of interest of the decree-holder/judgement-debtor who is
bound by decree.
e. 2 test to identifying representative
i. When any portion of interest of property in discussion, originally vested with
parties in suit, has by act of parties or operation of law vested to another, he can be a
rep
ii. When there is devolution of interest to someone else, he can be a rep
2. In must relate to execution, discharge or satisfaction of the decree
● The expression has not been defined but refers to questions on executability and non-
executability if a decree
● Following questions are held to be related to execution, discharge or satisfaction of
decree
○ Whether a decree is executable
○ Whether property is liable to be sold in execution
○ Whether decree is fully satisfied
○ Whether party is entitled to restitution of property
○ Whether a person is a representative or not in relation to S.47
(For more examples, refer to p. 668 of Takhwani)
● Following questions are not questions relating to the execution, discharge or
satisfaction of decree
● Whether decree is fraudulent or collusive
● Question relating to territorial or pecuniary limits
● An order reopening or refusing to reopen decree
● Question relating to mesne profits
(For more examples, refer to p. 668 of Takhwani)
● Duties of executing court
○ An executing court cannot go behind the decree
○ Has to execute the decree as it is
○ Cannot question the correctness or otherwise of the decree
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○ Where the terms of decree are vague and ambiguous, it is the duty of the executing
court to interpret the decree with a view to find out and ascertain the meaning of the
term used.
○ When there is an inherent lack of jurisdiction on part of the court passing the
decree, the executing court can refuse to execute the decree.

Precepts - S.46

● Precept means a command or an order or a writ or a warrant

● A precept is an order or direction given by court which passed the decree to a court which would
be competent to execute the decree to attach any property belonging to judgment debtor
● Section 46 provides that the court which passed a decree may, upon the application of decree-
holder, issue a precept to that court within whose jurisdiction the property of the judgement-debtor
is lying to attach any property specified in the precept.
● The court to which the precept is issued, is the court within which the jurisdiction of the property
of jud-deb is lying
● A precept aims to prevent alienation of property of judgment debtor not located within jurisdiction
of court which passed decree
● Object is to enable the decree holder to obtain an interim attachment of property of the judgement-
debtor situated within the jurisdiction of another court.
● An order for precept is merely a step taken to facilitate execution, and is not an order
transferring a decree for execution ( already dealt with in S.39)

Garnishee Orders - [Link], R.46 A - I

● Garnishee proceedings are proceedings by which a decree holder, seeks to get the money or
property owed to him by the judgment-debtor, in the hands of a third-party who is actually a debtor
to the judgment-debtor
● An executing court may order a third party to pay the decree holder the debt, he has to originally
repay to the judgment-debtor
● Garnishee is the judgment debtor’s debtor
● Garnisher is the decree holder
● Garnishment is a proceeding by which the decree-holder seeks to get the property of the judgment
debtor
● The payment made by the garnishee, pursuant to the order passed by the executing court, to the
garnisher is a valid discharge to him against his decree holder.
● Garnishee order is an order passed by the court ordering a garnishee not to pay money to the
judgment-debtor because the latter is indebted to the garnisher
● Ex; A owes Rs. 1000 to B. B owes Rs. 1000 to C By a garnishee order, the court may require A
not to pay money to B, but instead to pay C, who has obtained the order
● Rule 46-A requires a notice to be issued to the garnishee before a garnishee order is passed against
him
(Go through bare act R.46.A-I)

MODULE XVI, XVII - APPEALS

An appeal is the judicial examination of the decision by a higher court of the decision of an inferior court. It
is a removal of a cause from an inferior court to a superior court to test the soundness of the inferior court's
decision.

A right of appeal is not a natural or inherent right but is a creature of statute and there is no right of appeal
unless it is given clearly and in express terms by a statute. It is a substantive right and not merely a matter
of procedure. It is vested with rights and accrued to the litigant and exists as on and from the date of the lis
commences and although be actually exercised when the adverse judgement is pronounced, such right is to

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be governed by the law prevailing at the date of institution of suit or proceeding and not by the law that
prevails at the date of its decision or at the date of filing the appeal.

Section 96- Appeals from Original Decree

States that an appeal shall lie from every decree passed by any court exercising original jurisdiction to the
court authorized to hear appeals from the decisions of such court. An appeal may lie from the original
decree passed ex parte too. However no appeal shall lie from decree passed by the court with the consent of
the party.

The section also specifically states that no appeal shall lie except on a question of law, from a decree in any
suit of nature cognisable by small causes court, when the amount or value of the subject matter of the
original suit <=10,000 rupees.

Two conditions under this section

1. The subject-matter of the appeal must be a decree
2. The party appealing must have been adversely affected by the decree
a. A person who is not a party to a decree or order may, with the leave of the court, prefer an
appeal from such decree/order if he is either bound by the order or is aggrieved by it or is
prejudicially affected by it- State of Punjab v Amar Singh
b. A decision cannot be said to adversely affect a person unless it will operate as res judicata
against him in any future suit.

Who may appeal

1. A party to the suit who is aggrieved or adversely affected by the decree, or if such party is dead,
his representatives.
2. A person claiming under a party to suit or a transferred of the interests of such party, who, so far
as such interest is concerned, is bound by the decree, provided his name is on the record of suit
3. A guardian ad litem appointed by the court in a suit by or agaisnt a minor
4. Any other person, with the leave of the court, if he is adversely affected by the decree.

One plaintiff cannot file an appeal against a co-plaintiff unless where the matter in controversy of the suit
form subject-matter of the dispute between the plaintiff per se

A defendant also generally can’t file an appeal against another co-defendant unless the dispute is not
between only the plaintiffs and the defendants but between defendants inter se and such a decision
adversely affect one defendant against the other.

Who cannot appeal

1. If a party agrees not to appeal or waives his right to appeal
a. Bound by agreement if otherwise, such agreement is valid
b. The agreement must be clear and unambiguous
2. Where the party has accepted the benefits under a decree, he can be estopped from questioning
the legality of the decree- Dexters Ltd. v. Hill Crest Oil Co

Appeal against ex parte decree: 96(2)

One of the remedies available to the defendant against whom an ex parte decree is passed is to file an
appeal under section 96(2) though he may also file an application to set aside an ex parte decree.

Both remedies are concurrent and can be restored simultaneously. One does not debar the other.

No Appeal against consent decree: 96(3)

Declares that no appeal shall lie against a consent decree. Based on the principles of estoppel. Presupposes
that the parties to an action can waive their right of appeal by lawful agreement/ compromise/conduct. The
consideration of agreement-both sides gives up the right to appeal.
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No Appeal in petty cases: 96(4)

Bars appeal on facts from decrees passed in petty suits where the amount/value of suit/subject matter in
original suit does not exceed 10,000 rupees.

Appeal against Preliminary Decree: 97

An appeal lies against a preliminary decree. A preliminary decree is as much as a final decree. In fact, a
final decree is but the machinery for the implementation of a preliminary decree. In fact, the final decree
owes its existence to the preliminary decree.

Therefore, a failure to appeal against a preliminary decree precludes the aggrieved from disputing its
correctness or raising any objection to it in appeal against the final decree. This is provided for in Sec.97.

Order 41

For Memorandum of Appeal

R1:Form of Appeal
1. It must be in the form of a memorandum setting forth the grounds of objections to the decree
appealed from
2. Must be signed by the appellant/his pleader
3. Must be presented to the court or officer appointed by it
4. The memo must be accompanied by a certified copy of the judgement
5. Appeal against money decree- deposit the decretal amount/furnish security in respect thereof as
per the court’s direction.

A memorandum should be prepared after careful consideration of

1. The issues
2. The findings
3. The judgement
4. The decree

R3: Rejection/Amendment of the memorandum: appeal not in proper form- the court may reject it/return
it to appellant for the purposes of amendment

R3A: Condonation of Delay: Appeal presented after expiration of the period of limitation, it shall be
accompanied by application to explain that applicant has sufficient cause for not appealing within the
limitation period.

R9: Registry of the memo: the court from whose decree an appeal lies shall entertain the memorandum of
appeal, shall make an endorsement thereon and shall register the appeal in registers of appeal

R10- Payment of Securities by the appellant: the appellant court, at this discretion, require the appellant
to furnish securities for the cost of appeals/suits/both. Object to secure the respondents from the risk of
having incurred further costs.

For Hearing of Appeal

R5- Stay of Decree: Provides for the stay of execution of a decree or an order. Merely filing of an appeal
does not suspend the operation of the decree, the stay may be granted by the court if sufficient grounds are
established. All these grounds must be fulfilled:
1. The application has been made without unreasonable delay
2. A substantial loss will result to the applicant unless such an order is made
3. Security for the due performance of the decree/order has been given by applicant

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R11 read with 11A- Summary Dismissal:- The stage after the memorandum has been filed and the appeal
registered under R.9. Appellate court to hear every appeal expeditiously and to make all endeavours to
conclude admission hearing within 60 days of institution. The appellate court can, after hearing the
appellant, reject the appeal summarily if no prima facie substance in it.

R12(day of the hearing) and 14(notice)- Admission of appeal: If the appeal is not summarily dismissed,
the appellate court will fix day for the hearing of the appeal and send a notice of such to the respondent
along with a copy of memo

Doctrine of merger- as soon as an appeal is decided by an appellate court, the trial court ceases to exist in
the eye of law and is superseded by a decree of an appellate court. The essential decree of the trial court
merges with the decree of the appellate court.

For Procedure at Hearing

R16- Right to Begin: The appellant has a right to begin. After hearing the appellant in support of the
appeal, if the court finds no substance in appeal, it may dismiss the appeal at once without calling the
respondent. If the court does not dismiss the appeal, the respondent will be called to reply and the appellant
shall then be entitled to reply.

R17: Dismissal for appellant’s default: If the appellant does not appear when appeal is called on for
hearing, court may dismiss the appeal on default. Court cannot dismiss it on the merits. Where the appellant
appears and the respondent does not, the appeal shall be heard ex parte.

R19: Restoration: The appellant may apply for restoration of appeal of the dismissal happens and on
sufficient grounds being shown, the appellate court will restore appeal
R21: Ex parte rehearing: If the respondent satisfies to the court that no notice of appeal was duly
serviced/he was prevented by sufficient cause to appear, court shall rehear appeal.

R22- Cross Objection (Imp):

Cross objections are filed by the respondent against the appellant in an appeal filed by the appellant against
the respondent.

Special provisions permit the respondent who has not filed an appeal against the decree to object to the said
decree by filing a cross-objection in the appeal filed by the opposite party. Filing of cross-objection by the
respondent is optional and voluntary.

Where the suit is partly decided in favour of the plaintiff and partly the defendant, either aggrieved party
can file an appeal and the opposite party may adopt any of the following course
1. Prefer an appeal from that part of the decree which is against him. Thus there may be 2 appeals
against the same decree by both parties and will be known as cross-appeals. Both appeals will be
disposed together
2. He may not file an appeal against the part of the decree passed against him but may take objection
against that part, will be known as cross objection
3. Without filing a cross appeal/objection, he may support the decree
a. On the grounds decided in his favour by trial court
b. Even on the grounds decided against him

Who may file cross objection: The respondent if

1. If he could have filed an appeal against any part of decree
2. If he is aggrieved by a finding in the judgement, even though it it in
his favour

Against whom cross objection may he filed

● Ordinarily against the appellant
● In exceptional cases, one respondent can file cross-objection against another respondent

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○ For instance when an appeal by some of the parties cannot effectively be disposed of
without opening the matter as between respondent inter se
○ case where the objections are common as against the appellant and co-respondent.
● Cross objection cannot be allowed against a person who is not a party to suit.

Rule 22 contemplates the right to file cross-objections only when an appeal is filed and also when such
appeal is admitted by the appellate court and notice is issued to the respondent. No cross objection can be
filed if no appeal is filed or an appeal is filed but not admitted.
Where the respondent has filed cross-objection, even if the original appeal is withdrawn or dismissed, they
will be heard and decided on merits. But where the appeal has been dismissed as time-barred/ has
abased/held not to be maintainable, cross objection cannot be heard.

An appeal filed beyond the period of limitation may be treated as cross-objection under r22.

Cross-objections shall be in the form of a memorandum of appeal and they should be served on the party
affected thereby or his pleader. A respondent can file a cross-objection as an indigent person.

Cross objection can be filed within 1 month from date of service on the respondent of the notice of date
fixed/hearing of the appeal. However, can be extended by appellate court’s discretion.

Once the respondent files a cross objection, cross objection will be heard and decided on merits. Appeal and
cross objection should be heard together and they should be disposed of by a common judgement
incorporating the decision on both.

In absence of cross appeal/objection, the appellate court has no power to disturb the decree of lower court
so far as it is in favour of appellant. The court should decide and dispose of appeal and cross-objection
together by one judgement and such decisions should be incorporated in one decree.

Appeals by Indigent Person: Order 44

Who may apply-Rule 1

● Any person entitled to prefer an appeal, who is unable to pay court fee required for a
memorandum of appeal, may present an application accompanied by a memorandum to appeal as an
indigent person
● Appeal can be on grounds available to ordinary person.

Grant of Time-Rule 2- If application is rejected then court will grant time to pay fee.

Inquiry-Rule 3
● Appellant was allowed to sue as an indigent person in trial court, no fresh inquiry is necessary if
the applicant files an affidavit to the effect that he has not ceased to be an indigent person.
● If the government pleader or respondent disputes the truth of the statement made, inquiry into the
means of applicant shall be made by court or under its order by an officer of court

Second Appeal: Section 100 and Order 42

Section 100-103 and 107-108, along with Order 41 deals with second appeal.

Section 100 (imp)

Provides for the piling of second appeal in the High Court. States that an appeal shall lie to the HC from
every decree passed by any of HC’s subordinate court if it is satisfied that the case is about an substantive
question of law. Ex parte appellate decree can also be appealed.

The scope and ambit of HC’s jurisdiction is narrow and only applies to substantive question of law and
nothing else.

The requirements under section 100

1. HC must be satisfied that its a case about substantive question of law
2. The memorandum of appeal must precisely state these questions
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3. The HC should formulate such question at the time of admitting appeal

4. Appeal only heard on those questions
5. Only after hearing appeal, the respondent argue that the case does not involve such appeal
6. The HC is empowered to hear a second appeal on any other substantial question of law not
formulated by it, if it is satisfied that the appeal involves such question and HC must record the
reason for doing so.

Meaning of Substantive Question of Law: Cannot be confined to a straightjacket and no rule of universal
application can be formulated. The existence of substantive question of law is sine qua non for exercise of
jurisdiction under cpc.

Test- Chunnilal [Link] and Sons Ltd v Century Spg & Mfg. Cos
● Whether it is of general public importance or whether it directly and
● substantially affects the right of the party and if so, whether it is either an open question (not
settled by SC/Privy Council/Federal Court) or is not free from difficulty or calls for discussion of
alt. Views.
○ Point to be noted that substantial question of law may not be of general importance- Law
Commission 54th Report

Formulation of substantial question of law is sine qua non and condition precedent for exercise of HC’s
power but not needed if second appeal is dismissed at admission stage. It is therefore the duty of appellant
to precisely stating in memo of appeal the substantial question of law involved in the case.

The court must also formulate such a question if it is satisfied that a substantial question of law is involved
in the case. This duty is irrespective of the duty cast on the appellant. It is not doubt open to the court to
consider the question stated or formulated by the appellant and be satisfied that it is such a question and
then formulate the question. Usually court takes them verbatim from memo but still nonetheless the section
casts the duty on HC for such formulation.

The section states that appeal shall be heard on the question formulated by HC, preventing appellant from
urging any other ground in appeal without the leave of court. This also allows the respondent to argue that
the question formulated by HC is not involved in the case.

Generally at the time of preliminary hearing of appeal, the respondent who succeeded in the first appeal is
not present in HC and second appeal is heard ex parte. But even if the respondent is present, admission of
appeal is essentially between appellant and HC and the respondent has no right of audience.

The court at this state does not critically/analytically examine the case closely and only have to be prima
facie satisfied. The proviso to the section also preserves the power of the HC taking second appeal for the
final hearing to hear and decide the appeal upon such a question not framed or formulated.

Section 101: No second appeal is maintainable expect of the grounds specified in the code

Section 102: No appeal lies in any suit where the subject matter of original suit for recovery of money
doesn’t exceed 25k.

Section 102: No appeal lies against the decision of a single judge in second appeal

Limitation Act, Sec.116: A second appeal lies to HC within a period of 90 days from the sate of decree
appealed against.

Power of HC to decide Issue of Fact: No second appeal applies on question of fact and when such appeal is
already before HC, and the evidence on record is sufficient, it may decide any issue of fact necessary for
disposal of the appeal if
1. Such a issue has not been determined either by the trial court or by the appellate court or
by both
2. Has been wrongly determined by such court or courts by reason its/their decisions on a
substantial question of law/

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The provisions relating to first appeals regarding procedure at hearing shall apply to second appeals as well-
Order XLII, R2
Appeal to SC: Articles 132, 133 & 134A, Section 109 and 112 read with Order 45

Articles 132, 133 & 134A of the Constitution, Section 109 and 112 of CPC read with Order 45 deal with
appeals to the Supreme Court.

Conditions: Section 109 and Order 45 R.3: Appeal would lie to SC only if all of the following conditions
are fulfilled
1. A judgement/decree/final order must have been passed by the HC
2. A substantive question of law of general importance must have been involved in the case
3. In the opinion of HC, the said question needs to be decided by the SC.

An appeal lies to the SC only against judgement/decree/final order of HC. The test whether the order is
final or not will not depend on whether the controversy is finally over but whether the controversy raised
before HC is finally over or not- Ramesh v. Gendalal Motilal Patni SC

Substantial Question of Law of Gen. Imp: The substantial question of law must be such that, apart from the
parties to the litigation, the general public should be interested in determination of such a question of SC-
Chunilal V. Mehta and Son Ltd. v Century Spg & Mg Co. Ltd.

It is not sufficient that the case involves a substantial question of law of general importance but in addition
to it, the HC must be of the opinion that such questions need to be decided by SC. The words suggest there
has to be a necessity for a decision of SC on that question.

Procedure at Hearing (Order 45- Read Once-Sir)

Application for Leave and Certificate of Fitness

Or. 45 R2: Whoever desires to appeal to SC shall apply by a petition to the court whose decree is sought to
be appealed from. Such a petition should be decided within 60 days from filing of the petition.
R.3: Every petition should state the grounds of appeal and pray for issue of a certificate
1. That the case involves a substantial question of law of general importance and
2. That in the opinion of the court the said question needs to be decided by SC.
After notice to both sides (R3) the court may grant(R7) or refuse to grant the certificate(R6).

Application for Leave and Certificate of Fitness

R.7: When certificate is granted, the applicant should furnish security for the costs of the respondent and
also deposit and expenses for translating, printing, indexing, etc within stipulated time.
R.9: The court may revoke the acceptance of security
R. 11: The court has the power to refund the balance of the deposit after necessary deduction for expenses.

Admission of Appeal:

R.8 : Where the direction regarding furnishing of security and making of deposit are carried out, the court
shall declare the appeal admitted and give notice thereof to the respondents and transmit the record to SC.
R.10: If security/cost deposited appear to be inadequate, the court may order further [Link].
R.11: If appellant fails to comply with order then the proceedings will be stayed and appeal shall not
proceed without an order of the SC.

Admission of Appeal:
R 7,9,12: Pendency of an appeal to SC does not affect the right of the decree-holder to execute a decree
unless the court otherwise directs.
R.13: The court may stay execution after taking sufficient security from the appellant or it may allow the
decree to be executed after sufficient security from the respondent.

Execution of Appeal:

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The appeal will then be heard by the SC and order be made.

R.15: Whoever desires to execute a decree or order of SC shall apply by petition accompanied by copy of
decree or [Link] court shall transmit the record of the SC to trial court or such court as the SC may
direct with necessary direction for execution. The court to which it is transmitted shall execute it it in the
same manner as it executes its own decrees/orders
R.16: Others relating to such execution shall be appealable in the same manner as orders relating to
execution of its own decrees.

Appeal under Constitution: Special Leave Petition

Governed by Articles 132, 133 and 134A.
Article 132 is essentially the same as Section 109 of CPC.
Section 112 of the code saves the power conferred to SC by Constitution and declares nothing in CPC
would affect them.

MODULE XVIII - REFERENCE, REVIEW AND REVISION

● Read O.46 (reference) and O. 47(review) once.

● S.113 [Link] O.46, 114 r.w. O.47, 115 - very very important
● Delhi Admin case
● For difference between all three and appeals, refer to the P.584 of TB

Reference , S.113, [Link]

1. S.113 of the act deals with reference to the High Court - It empowers a subordinate court to
state a case, and refer the same for the opinion of the High Court. The opinion can be referred to
when it involves a substantial question of law.
2. The right to reference is subject to certain conditions prescribed in O.46, R.1. The following
conditions are as follows;
a. There must be a pending suit or appeal in which the decree is not subject to appeal or a
pending proceeding in execution of such decree
b. A question of law or usage having force of law must arise in the court of such suit, appeal
or proceeding
c. The court trying suit or appeal or executing decree must entertain a reasonable question
of law
3. Question of law that the subordinate can entertain are;
a. Those which relate to validity of any Act, Ordinance or Regulations (reference
mandatory when it is necessary to decide on question to dispose suit, or if court believes
such acts are ultra vires, and a superior court has not determined whether it is ultra vires)
b. Any other question of law ( reference is optional)
4. Who may apply - A subordinate court may refer the case with its own opinion on the point to
High Court

● either on its own motion or;

● on the application of any of the parties.

5. A reference can be made only in a suit, appeal or execution proceeding pending before the
court

6. The question of law should have arisen between the parties and a mere hypothetical question of

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law cannot be referred to the High Court

7. The role of a High Court is consultative and here it cannot make any order on the merits of the
case.

8. The High Court can also refuse to entertain reference or even quash it - O.46. R.5

Procedure at hearing

The referring court should draw up a statement of the facts of the case and the point on which doubt is
entertained, and refer to such statement with its own opinion on the point for the decision of the High Court.
(O.46.R.1, 4-A)

The subordinate court can pass a decree or stay proceedings contingent upon a decision of the High Court
on the point referred, which cannot be executed until receipt of a copy of judgment of the HC on reference.
(O.46.R.2)

O.46.R.3 - The HC may answer question referred to it, and send back case to referring court for disposal

Where the referring court has not followed the conditions laid down for making reference, the HC has
power to return a case for amendment.

O.46. R.5 The HC may alter, cancel or set aside any decree or order passed or made the court making the
reference and make such order as it thinks fit.

Review , S.114, [Link]

Intro

● S.114 gives substantive right of review and O.47 lays out the procedure

● Review constitutes an exception to the rule that once a judgment is signed and pronounced by a
court, it becomes functus officio (ceases to have control over the matter) and has no jurisdiction to
alter it

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● Review is a judicial re-examination of the case by the same court and by the same judge

● A review of judgement is a reluctant resort and is only called where there is a glaring omission,
patent mistake or grave error through judicial fallibility

● Right of review is substantial ( conferred by law, expressly or impliedly), and procedural (error
through procedural defect ot mathematical or clerical error)

● Rectification of order stems from fundamental principle that justice is above all, a matter of equity

● An application for review is not an appeal or revision to a superior court, but a request to the same
court to recall or reconsider its decisions on limited grounds.

● The same judge hearing the application will ensure that he can appreciate the points in issue
instead of starting from the first

● Only in rare cases like if he dies - his successor can hear the case

● There cannot be successive review petitions

● Period of limitation - for application of review for judgment by court other than SC, its 30 days
from date of decree or order.

● Who may apply

○ A person aggrieved by the order - who suffered legal grievance or against whom a decision
made has wrongfully deprived him of something

○ A third party can only apply for review if he is affected or prejudiced by a judgment or
order

○ A person who is necessary party to suit, yet not joined and order passed in the suit can
affect him, may also seek review

● A review petition is maintainable in the following cases (O.47. R.1) & S.114

○ Cases where no appeal lies - Ex, application for review against a decree of Small Causes
Court is competent. Even when appeal does not lie due to being time-barred, or not

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competent, a review may lie.

○ Cases where appeal lies but not preferred. - When the appeal option is there, but the
aggrieved party does not prefer it. Fact that the order is subject to appeal, is not grounds for
rejecting review. However, when appeal is already instituted before making an application
for review, the court will not entertain a review app. If appeal is preferred and disposed of,
review won't lie. If application for review is preferred, then appeal is filed, jurisdiction of
court to deal with review application remains unaffected.

○ Decisions on reference from court of small cases - allows review of a judgment on a

reference from Court of Small Causes

Grounds of review

The three grounds of review are;

● Discovery of new and important matters of evidence

● Mistake or error apparent on the face of the record

● Any other sufficient reason

1. Discovery of new and important matters of evidence

Review is permissible on grounds of discovery by the applicant of some new and important matter of
evidence, which after exercise of due diligence, was not within his knowledge or could not be produced
by him. Utmost care needs to be exercised. Party seeking review should show that there was no remiss on
his part in adducing all possible evidence during trial. The new evidence must be (i) relevant, (ii) of a
character that if it had been given earlier, it would have altered the judgment.

Ex; Discovery of doc containing admission of liability of defendant, good ground for review. In Mary v.
James Sidney, Pat when a decree for restitution of conjugal rights was passed but it was subsequently
discovered that the parties were cousins, the marriage was to be void, review allowed.

47, R.1 - refers to evidence or other matters in nature of evidence, to review cannot be granted on discovery
of new points of law or authorities which show that decision was not correct. Nor can it be granted on the

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happening of subsequent event or change in law.

2. Error apparent on the face of record

Review allowed when there is an apparent error on the face of record, it can be an error of law or fact. No
error can be apparent, if it is not self-evident and requires argument or examination to establish it. WHen
one has to travel beyond what is on record, then it cannot be reviewed.

Thungabadra v. State of A.P, SC - “Where without any elaborate argument, one could point to the error
and say here is a substantial point of law which stares one in the face, and there could be not two opinions
that can be reasonably entertained, it is a clear case of error apparent on face of record.”

Following held to be error apparent on record

● Judgment without taking into consideration that law was amended retrospectively

● Judgment passed without considering statutory provisions

● Omission to try material issue in case

● Decides against a party on matter not in issue

● Judgment pronounced without notice to party

(For more , refer to p. 570 TB)

3. Other sufficient reason

Recent sufficient on grounds, similar to the rules;

● When statement in judgment is not correct

● Decree or judgment passed under misapprehension of true circumstances

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● Where party had no notice or opp to produce evidence

Following held as not sufficient grounds for review

● Omission to frame issue regarding valuation of suit

● Negligence on part of party or pleader

● Failure of party or pleader to raise a plea

Procedure at hearing

(1) First stage - commences with ex parte application of aggrieved party. O.47, R.4(1) lays out that
the court may reject it at once if there are no sufficient grounds or may issue a rule calling upon the
opposite party to show cause why review should not be granted.

(2) Second stage - R.5 - The application for review is heard by the same court and same judge
unless he is no longer attached to the court or is precluded from hearing matter or absence or other
cause for a period of 6 months.

(3) Third stage - Matter will be reheard on merits. R.8 - After rehearing the case, the court may
either confirm the original decree or vary it.

Revision , S.115

Intro

● S.115 empowers High Court to entertain a revision in any case decided by a subordinate court

● The High Court may call for the record of any case which has been decided by any Court
subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court
appears (section 115(1)(a)-(c))

(a) to have exercised a jurisdiction not vested in it by law, or

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(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High
Court may make such order in the case as it thinks fit:
● While exercising power under S.115, the HC is not competent to go into errors of facts or errors
of law not related to jurisdiction
● A point of law may arise which are related to questions of jurisdiction, like plea of limitation or
plea of res judicata which concerns jurisdiction, and they can fall within purview of S.115
● The object of revision is to prevent subordinate courts from acting arbitrarily, illegally or
irregularly
● Provides means to an aggrieved party for rectification in case on non-appealable orders
● The limitation period for filing an application for revision in 90 days from when said decree or
order is passed
● Order 45 read with section 104- orders for which revision is not allowed

Conditions to be satisfied to exercise revisional jurisdiction of the High Court

1. The case must have been decided
a. Even interlocutory orders fall within the ambit of case decided. Case decided includes any
order made, or any order deciding an issue in course of suit or proceeding.
2. The court which has decided the case, must be a subordinate one
3. The order should not be appealable
a. Includes both first appeal and second appeal
b. When appeal lies to the HC either directly or indirectly, court cannot entertain revision

4. Jurisdiction error
The subordinate court must have (a) to have exercised a jurisdiction not vested in it by law, or (b) to
have failed to exercise a jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction
illegally or with material irregularity.

● The revisional power of the court will not mess with the decision of the subordinate court
on all questions of law and fact that are not touching jurisdiction
● S.115 exercised only when - on a wrong decision the court has assumed jurisdiction which
it is not vested in it
● Ex; On a prelim or jurisdictional fact upon the existence of which its jurisdiction depends,
the subordinate court assumes jurisdiction not vested in it

Exercise of jurisdiction not vested by law 115(a)

When a sub court assumes jurisdiction which it does not actually possess by misconstruing statutory
provisions, wrongly assuming existing of prelim or collateral facts which do not exist.
Ex of unauthorised assumption of jurisdiction
1. Where lower court assumes jurisdiction on account of pecuniary or territorial limits or by subject-
matter
2. Entertains appeal from order which is not appealable
3. entertain suits or appeal which it has no jurisdiction to entertain
4. Makes order which it has no jurisdiction to make

Failure to exercise jurisdiction 115(b)

A court having jurisdiction on the matter, under a misapprehension of law or of fact, that it has no
such jurisdiction and declines it.

Following are cases where court fails to exercise jurisdiction

● Refusal to summon the deponent of an affidavit for cross
● Failure of executing court to construe decree
● Failure of court in considering principles for granting ad-interim order

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● Refusal to entertain or reject it

Exercise of jurisdiction illegally or with material irregularity 115(c)

The errors relate to material defect in procedure and to errors of fact or law.
Following are cases where court exercises jurisdiction illegally or with material irregularity
● Where it decides a case without considering evidence on record
● Decides on evidence which is actually inadmissible
● Decides case without recording reason for judgment
● Does not apply mind to facts and circumstances
● Fails to follow a decision of HC which it is subordinate to

(For more examples of all 3 refer to 598 of TB)

MODULE XIX - COMMERCIAL COURTS DIVISION

The Commercial Courts Act 2015 was introduced by the government to reduce the pendency of the
Commercial Disputes which earlier were dealt with under the category of regular suits. This step taken by
the government has well enabled both domestic and foreign investors to gain trust in the Indian markets.

Commercial Disputes are defined under section 2(c) of the Commercial Courts Act, 2015.

1. In the routine transactions of merchants, bankers, financiers, and traders, there is a debate over the
enforcement and interpretation of papers.

2. Export and import of goods and services.

3. Admiralty and marine law issues.

4. Transactions involving aircraft, aircraft engines, aircraft equipment, and helicopters, such as sales,
leasing, and financing.

5. Carriage of goods is a term that refers to the transportation of things etc..

S.12-A, Pre-Suit mediation

The legislature introduced Chapter IIIA into the Commercial Courts Act, 2015 (“CCA”) through an amendment
in 2018 which inserted Section 12A mandating compulsory pre-institution mediation in case of a commercial
suit of specified value, which does not contain any application for urgent interim relief.

12A. Pre-Institution Mediation and Settlement—(1) A suit, which does not contemplate any urgent interim
relief under this Act, shall not be instituted unless the plaintiff exhausts the remedy of pre- institution
mediation in accordance with such manner and procedure as may be prescribed by rules made by the central
government.

Three aspects stand out in section 12A.

● The first is that mediation will be attempted before a commercial suit is filed.

● The second is the mechanism prescribed by the law for the conduct of mediation, which will be
under the management of the Legal Services Authorities under the Legal Services Authorities Act,
1987.

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● The Commercial Courts (Pre-Institution Mediation & Settlement) Rules, 2018, (PIMS Rules) sets
out the framework for application for mediation and the conduct of the process by the Legal
Services Authorities.

● The third is the exemption from mandatory pre-institution mediation in cases where an urgent
interim relief is contemplated in a case.

Patel Automation v. Rakheja Engineers, 2022 SC

● From the bare perusal of Section 12a, it is crystal clear that the procedure provided is mandatory
and if by applying the said principles, the suit of the plaintiff is rejected, then it would have a
catastrophe effect.

● The court is of the view that the legislature has no intention to frame such stringent provisions in
the said rules.

● The aim and object of Section 12A are to ensure that before a commercial dispute is filed before
the court, alternative means of dissolution are adopted so that the genuine cases come before the
Court.

● Further, it also appears to the court that the said procedure has been introduced to de-congest the
regular courts.

● It is pertinent that the Hon’ble Bombay High Court in the case of Ganga Tara Vazirani (supra),
held that the procedure provided under Section 12A of the Commercial Courts Act is not a penal
enactment for punishment.

● The fact is clear that before filing the suit, the respondent/plaintiff sent an e-mail and legal notice
and despite that, the applicant/defendant failed to make the payment of the dues.

Limitation

Order VIII Rule 1 of CPC prescribes that written statement has to be presented within thirty days from the
date of service of summons, failing which, delay of not more than 90 days (from date of service of
summons) may be condoned by the Court.

Section 16 of the Commercial Courts Act makes an amendment to the provision qua commercial suits of a
specified value to provide that written statement has to be presented within thirty days from the date of
service of summons failing which, delay of not more than 120 days (from date of service of summons) may
be condoned by the Court.

[Link]
suits-a-boon-or-a-bane/

[Link]
condone-delay-written-statement-203235

MODULE XX-XXII-LIMITATION ACT

Section 2, 4, 5, 6, 7, 8, 9, 12, 18, 19, 25, 26, 27

Articles: 65, 67, 51, 52

CONDONATION OF DELAY (Section 3 to Section 5)

Section 3- Bar of limitation.—Subject to the provisions contained in sections 4 to 24 (inclusive), every suit
instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although
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limitation has not been set up as a defence.

For the purposes of this Act,
(a) a suit is instituted,
(i) in an ordinary case, when the plaint is presented to the proper officer;

(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when
the claimant first sends in his claim to the official liquidator;

Section 3 bars the legal remedy, the enforceability of the right accrued whether under a contract or under an
other situation.27 Section 3 only bars the remedy but not does not destroy the right tow which the remedy
relates.28 Section 3 requires that every suit filed after the period of limitation shall be dismissed, and the
same for application also.29 The section is mandatory in its term

Section 4- This section is limited in its applicability to the institution, preferring or making of suits, appeal
or applications where a period of limitation has been prescribed therefore. Thus, the Limitation Act
encompasses not only the suits or appeals, but the applications also. Where the prescribed period for any
suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be
instituted, preferred or made on the day when the court re-opens. A court shall be deemed to be closed on
any day within the meaning of this section if during any part of its normal working hours it remains closed
on that day.

Principle behind Section 4 is

1. The law does not compel a man to do what he cannot possibly perform;

2. An act of court shall not prejudice anyone.

The section 4 of the Limitation Act does not extends the period of limitation. It provides for the contingency
when the prescribed period expires on a holiday and the only contingency contemplated is “when the court
is closed”.

Section 5- Any appeal or any application, other than an application under any of the provisions of Order
XXI of the Code of Civil Procedure, 1908 (5 of 1908), may be admitted after the prescribed period, if the
appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or
making the

The section applies only to

1. Appeals;

2. Application other than execution application under Order XXI , CPC.

The section applies only to an application for leave to the Supreme [Link] section applies to criminal
appeals and the criminal appellant court have the power to excuse delay and admit a time barred appeal, if
the court is satisfied that the appellant has sufficient reason for not preferring the appeal within the
prescribed time.’\

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Exclusion of Time

Section 12 to Section 15 deals with the exclusion of time under the Limitation Act. Section 12 talks about
the time that has to be excluded for computing time of limitation in legal proceedings. Sub-section (1) says
that the day on which the cause of action arises that day shall be excluded while computing the period of
limitation for any suit, appeal or application, the day from which such period is to be reckoned.

The following time has to be excluded from computing the period of limitation:

● The day on which the period of limitation for any suit, appeal or application has been
reckoned.

● In case of an appeal or an application for leave to appeal/revision/review of a judgment:

a. The day on which the judgment complained of was pronounced.

b. Necessary time taken for obtaining a copy of the decree, sentence, order appealed from or
sought to be revised or reviewed.

● In case of decree or order is appealed from or sought to be revised or reviewed or an

application for leave to appeal from a decree:

a. Time requisite for obtaining a copy of the judgment

● In case of application to set aside an award:

○ Time requisite for obtaining a copy of the award

Explanation to this Section states that in computing the time necessary for obtaining a copy of the decree or
order the time taken by the court to prepare the decree or order before an application for a copy of the
decree or order is made shall not be excluded.

Section 18: In case of an acknowledgment of liability in respect of any property or right-a-fresh period of
limitation will be computed from the time acknowledgment was signed.

Section 19: where payment on account of a debt or of interest on legacy- a fresh period of limitation will be

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computed when payment was made.

Section 25: Under Section 25, where a property belonging to the Government over which access and use of
light or any way or watercourse or the use of any water, have been peaceably and openly enjoyed as an
easement and as of a right by any person claiming title thereto, without any interruption for thirty years, the
right to such access and use of light or air, or way or waterway, or use of their easement shall be absolute
and indefeasible, In case of a private property it is twenty years.

Section 27: General Rule that the law of limitation only bars the remedy but does not bar the right itself.
Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession means
someone who is in the possession of another’s land for an extended period of time can claim a legal title
over it. In other words, the title of the property will vest with the person who resides in or is in possession
of the land or property for a long period. If the rightful owner sleeps over his right, then the right of the
owner will be extinguished and the possessor of the property will confer a good title over it. Section 27 is
not limited to physical possession but also includes de jure possession. As per the wordings of this Section,
it applies and is limited only to suits for possession of the property.

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