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(iii)
(iv)
Decree
It determines the rights of parties finally
and conclusively.
Order
It may not determine the rights of
parties finally and conclusively.
2.
3.
4.
5.
6.
(Merla Ramanna v. Nallaparaju) But, this shall not preclude such latter court from
executing the decree if it has the jurisdiction to try the suit at the time of making
the application for execution. (Explanation to S.37)
8. S.38 states that the decree may be executed by the court which passed it or the
court to which the decree is sent for execution.
9. S.39 deals with transfer of a decree for execution to another Court.
10. This may be done either suo moto by the court passing such decree or on
application made by the decree holder.
11. The application made by the decree holder may be allowed by the Court on any of
the following grounds(a) The judgment-debtor actually and voluntarily resides or carries on
business or personally works for gain within the local limits of jurisdiction
of another Court.
(b) The judgment debtor does not have sufficient immovable property to
satisfy the decree within the local limits of jurisdiction of the Court which
passed the decree and the same is within the jurisdiction of another Court.
(c) Where immovable property which is directed to be sold or delivered lies
within the jurisdiction of another court.
(d) For any other reason which is to be stated by the Court in writing.
12. However, it is upto the Courts discretion whether or not to allow such application
as it is only a procedural and not a substantial/vested right of the applicant.
13. The section also states that the Court to which the decree would be transferred
must have the pecuniary jurisdiction to deal with such suit.
14. Further, the court passing the decree cannot execute a decree against any person
or property outside its local limits of jurisdiction.
15. S.40 states that where the decree is sent to a court in another state for execution,
such execution must be carried out according to the rules applicable in such state.
16. Further, S.41 provides that the court to which the decree is sent, shall certify to
the court which passed the decree, the fact of its execution or if it fails to execute
the same, the circumstances for such failure.
17. The decree may also be executed at more than one place if required. However,
this power must be used sparingly and after giving notice to the judgment debtor.
18. Where a decree is sent to another court for execution, under Order 21 Rule 6, the
following must be sent to the transferee courta. A copy of the decree.
b. A certificate stating that the decree cannot be executed within such
transferor courts jurisdiction and where part satisfaction of the decree has
been obtained, a certificate stating such fact and also stating as to which
part remains unsatisfied.
c. A copy of the order for execution of such decree and where there is no
such order, a certificate to that effect.
19. The transferee court shall them allow the above to be filed without any further
proof, unless for reasons to be recorded in writing. (Order 21 Rule 7)
20. S.42 provides that when a decree is transferred to another court for execution, it
shall be executed by such court as if it were passing the decree itself. Any person
who obstructs such execution shall also be punished in the same manner.
21. The transferee courts powers shall include transferring the decree to another
Court for execution or executing it against the legal representatives of the
judgment debtor or ordering attachment of the decree. If it does exercise such
powers, it must certify the same to the transferor court.
22. However, the transferee court can exercise only such powers as relate to the
procedure regarding executing the decree and not to the substantive rights of
parties. Thus, it cannot exercise powers with respect to such matters as ought to
have been decided only by the transferor court. (execution at the instance of
transferee of decree and execution in case where the judgment debtor is a firm
against a person not in accordance with Order 21 Rule 50)
23. When a court transfers a decree to be executed by another court, it cannot any
exercise any further powers as regards execution of such decree. After transfer of
the decree, it is thus the transferee court which will determine all questions in
execution proceedings. Its jurisdiction remains till it certifies the execution of the
decree to the transferor court.
24. Order 21 Rule 8 provides that where the transferee court is the district court, it can
either execute it or send it to a subordinate court of competent jurisdiction.
25. Order 21 Rule 9 further provides that where the transferee court is the High Court,
it has to execute the decree in the manner in which it exercises it original civil
jurisdiction.
26. Order 21 Rule 3 provides that where execution of a decree involves attachment of
property situate within the jurisdiction of two or more courts, any of such courts
may attach such property in execution of the decree.
27. The executing court cannot look into the legality of a decree or modify such
decree. This is based on the principle that execution of a judgment/decree is
collateral to the main proceedings and therefore there can be no enquiry into its
legality or correctness.
28. When the court which passes a decree lacks the jurisdiction to do so, the decree
will be a nullity. However, the executing court (transferee court) cannot go into
such question.
29. An otherwise valid decree doesnt become inexecutable when the parties die. It is
still enforceable against their legal representatives.
30. When the terms of the decree are vague or ambiguous, the transferee court may
construe the same by not just referring to the judgment but also the pleadings of
the parties.
31. The executing court can go into the question of executability of the decree and
whether due to any subsequent developments, such decree cannot be executed.
32. Also where the decree cannot be executed due to the operation of law and
subsequently an amendment is made which allows such execution, the executing
court shall execute such decree.
33. It shall then be upto the executing to mould the relief granted accordingly.
34. Sections 43, 44, 44-A and 45 deal with execution of decrees passed outside India
or by such courts which do not fall under this code, etc.
35. S. 43 states that where a decree passed by a court in any part of India to which the
jurisdiction of the CPC does not extend or by a court which has been established
by the authority of the Central government outside the territory of India, cannot be
executed within the jurisdiction of such court, it may be executed in a manner
provided under the jurisdiction of a Court within territories governed by the
provisions of the code.
36. S.44 states that the state government may by notification in the official gazette
provide that decrees passed by revenue courts in the country to which the code
does not apply or any other decrees in such category may be executed in the state
as if they had been passed by the courts in that state.
37. S.44-A deals with decrees passed by superior courts in reciprocating territories.
38. It states that a decree passed by a superior court in a reciprocating territory may
be executed by a district court in India if a certified copy of such decree is filed in
the district court.
39. The certified copy may also contain the extent to which the decree has been
satisfied or adjusted in the reciprocating territory and the certificate shall be
conclusive proof of the same.
40. Further, the provisions of S.47 (matters of execution to be dealt with by the
executing court) shall apply in the same manner to such decrees.
41. Also, the District Court shall refuse execution where such decree falls within the
exceptions under S.13.
42. S.13 provides that foreign judgments will be binding on parties to such suit and
will be enforceable in India except under the following circumstances(a) Where it has not been pronounced by a court of competent jurisdiction
(b) Where it has not been decided on the basis of merits
(c) Where it appears that on the face of it that incorrect principles of international
law have been applied or Indian law with respect to such case has not been
recognized where it ought to have been applied
(d) Where proceedings of the judgment are opposed to principles of natural justice
(e) Where the decision has been obtained by fraud
(f) Where the decision has been given to sustain a claim that is founded on a
breach of any law in force in India
43. Reciprocating territory and superior court here would mean such territory and
court as notified in the Official Gazette by the Central Government for the
purposes of this section.
44. Also, under this section, a decree would mean one under which a sum of money is
payable except in the form of a tax or other similar charge, fine, penalty,
arbitration award even where such award may be executed as a decree or
judgment.
45. S.45 further provides that a decree passed by a court in a state may be sent for
execution to any court established under the authority of the Central government
outside India where the state government passes a notification to that effect.
Further, all the provisions of the court regarding transfer of decree for execution
shall be applicable in such case.
46. S.46 states that at the instance of the decree holder, the court which passed the
decree may send a precept to a court competent to execute the decree for
attachment of property of the judgment debtor and mentioned in the precept.
47. Such attachment cannot be for a period longer than 2 months unless the court
which passed the decree extends such period by an order or where before
determination of such attachment, the decree was transferred to the court by
which such attachment has been made and the decree holder has applied for sale
of the property.
48. S. 47 deals with questions relating to determination of questions regarding
execution of the decree between the parties. It states that all such questions shall
be dealt with by the court executing the decree, including any dispute relating to
the representatives of the parties.
49. Parties under this section shall include the following as well(a) A plaintiff whose suit has been dismissed and a defendant against whom a suit
has been dismissed.
(b) A purchaser of such property at a sale of the property in execution of the
decree.
50. Questions relating to delivery of possession of such property to the purchaser or
his representatives would be included in questions relating to execution of the
decree.
51. The main object of the section is to ensure that there is no unnecessary litigation
for enforcement of the decree.
52. The scope of this section is very wide as it covers all matters concerning the
execution, satisfaction or discharge of the decree. Thus, it must be construed
liberally unless there is a matter which is clearly beyond the purview of the
section.
53. It is immaterial whether such questions arise before or after execution of the
decree.
54. The two conditions which must necessarily be satisfied so that such questions are
determined by the court are as follows(a) The question must arise between the parties to the suit or their representatives
in the suit in which it is passed.
(b) It must relate to execution, satisfaction or discharge of the decree passed.
55. Parties to a suit here mean the parties who are opposing each other. Thus, it need
not include just the plaintiff and the defendants but may mean coplaintiffs/defendants opposing each other.
56. The parties must be parties to the suit in which the decree is passed and not parties
to the decree.
57. Also, it is not just the legal representatives of the original parties who will be
taken as being parties to the suit. The term parties to the suit shall include a
representative-in-interest who is basically a transferee of interest of the decree
holder.
58. The tests to determine whether or not a person is a transferee of interest are as
follows-
(a) Whether there has been a transfer of interest by either of the parties to such
person either voluntarily or by operation of law or otherwise.
(b) Whether after such transfer of interest, such transferee has become bound by
the decree.
59. Questions relating to execution, satisfaction and discharge of the decree have not
been defined anywhere but has been decided on the basis of case laws. (for
examples look at pages 453 and 454 if required)
60.
The court may treat a suit as an execution application or an execution
application as a suit. When this is done, the relevant date is taken to mean the date
from which the suit began and not when conversion took place.
61.
The executing court can merely execute the decree and not question its
correctness. Where however the terms of the decree are vague and ambiguous, it
may interpret the decree to find out its meaning.
62.
Also, if the decree is passed by a court which lacks the inherent
jurisdiction to do so, the executing court may refuse to execute the decree.
63.
An objection as to the validity of a decree may be entertained during
execution if the same appears on the face of the record. Where however the same
requires investigation of facts, the objection will not be allowed.
64.
Previously, an order passed under S.47 was deemed to be a decree under
S. 2(2). However, the same was amended by the amendment act of 1976. Thus,
now it is simply treated as an order and thus cannot be appealed against as it has
not been specified under the code to be an appealable order. Nevertheless, if an
order passed under this provision would have the necessary ingredients of a
decree, it would be treated as a decree.
65.
There are 2 main reasons why this rule is followed- (a) reduces delay in
execution (b) carries out the scheme of S.47 as per which there must not be a
separate suit to dispose off the case.
66.
Has the legislators wished that the same be appealable, a provision would
have been made for regarding such an order as an appealable order.
67.
However, the amendment would not apply to pending matters or where
decrees have been passed prior to the amending act.
68.
A revision of the order passed is however allowed, subject to satisfaction
of the provisions of S.115.
69.
S.48 has been repealed.
70. S.49 states that every transferee of a decree shall hold the same subject to equities
which the judgment debtor might have enforced against the decree holder.
71. S.50 states that where the judgment debtor dies, the decree holder may request the
court to proceed against his legal representatives, who shall be held liable only to
the extent of the judgment debtors property which came into his hands and has
not been duly disposed of. The court may even ask such person to produce
necessary accounts for the same.
72. S.51- refer to mode of execution as mentioned in the next unit.
73. S.52 deals with enforcement of a decree against legal representatives.
74. It provides that where a decree is passed against a person acting in the capacity of
the legal representative of the deceased and the decree involves payment of a
certain amount from the property of the deceased, the decree shall be executed by
attachment and sale of such property.
75. Where the property does not remain in the hands of the judgment debtor and he
fails to satisfy the court that he had duly applied such property of the deceased, he
will be liable personally for the amount of the property of which he fails to satisfy
the court. (not important)
76. S.53 provides that where property under Hindu law of any descendant is liable to
be used to pay for debts of the deceased, it shall be deemed that the descendant
has received such property by virtue of being a legal representative of the
deceased. Thus, the property shall be deemed to be of the deceased originally.
77. S.54- refer to notes on mode of execution of a decree.
1.2 Arrest and detention
1.
2.
3.
4.
This deals with arrest and detention of the judgment debtor in a civil prison.
Ss. 51 to 59 and Rules 37 to 41 deal with arrest and detention.
S.51 provides arrest and detention as one of the modes of execution.
However, such execution shall not be ordered until the judgment debtor is allowed
to show cause why he should not be committed to a civil prison, in case of a
decree for money. For this purpose a notice shall be sent to him. (Also provided
under Rule 37)
5. The court will thereafter decide on the matter taking into consideration factors
such as whether the judgment debtor is likely to abscond or leave the local limits
of the courts jurisdiction and where the court is satisfied as regards the same, it
shall order arrest of the person. (Rule 37 and S.51)
6. Where appearance is not made in obedience of the notice, the court shall issue a
warrant for arrest where the decree holder so desires.
7. Rule 40 provides for the proceedings on appearance of the judgment debtor in
court after being sent a notice.
8. In such case, the decree holder shall be heard and all evidence produced by him
shall be recorded.
9. Thereafter, the judgment debtor shall be given an opportunity to be heard.
10. The court shall then conduct an enquiry. The judgment debtor may either be
detained with an officer of the court till the date of decision or he may be allowed
to furnish a security ensuring his appearance at a later date.
11. When the court gives its decision and the judgment debtor is arrested, he shall be
given an opportunity to satisfy the decree before he may be arrested.
12. For the same, he shall be made to remain in the custody of an officer of the court
for a period not exceeding 15 days or he may furnish a security in such case
stating that he shall appear before the court after such period of time.
13. The judgment debtor shall be arrested where he fails to satisfy the decree.
14. Under this provision, his re-arrest is possible.
15. He may even be released in the first instance where the court after enquiry
disallows the application of the decree holder.
16. S.55 pertains to execution by way of arrest and detention.
17. The judgment debtor may be arrested at any point of time in the day whenever it
is practicable.
18. He shall thereafter be detained in the civil prison in the district where the court is
located. However, he may be shifted elsewhere by the state government where
suitable accommodation is not available.
19. Such entry shall not be made at any time after sunset and before sunrise.
20. The doors of the dwelling house shall not be broken open except where the
judgment debtor resists the entry of the officials. However, once the officials are
allowed entry into the house, they may break open the doors of any room if they
suspect that the property is in such room.
21. Where the dwelling house is occupied by a Pardanashin woman (section
mentions- a woman who by the customs of this country does not appear in
public), the officials shall give adequate notice to the woman to withdraw and
thereafter enter the premises after giving her reasonable facilities to withdraw.
22. The arresting officer shall be asked to bring the judgment debtor before the court
as expeditiously as possible unless he pays the required amount to the officer.
(Rule 38)
23. Where the arrest is made with respect to a decree for money and the judgment
debtor pays the arresting officer such amount and the costs for the arrest, he shall
be released immediately.
24. Where the decree is for payment of money and the judgment debtor is arrested,
the court shall inform him that he may take the option of being declared an
insolvent and he may be discharged if he has not committed any act in bad faith.
25. The judgment debtor may express his intention to apply to be declared an
insolvent and in such case, he shall be required to furnish some security that he
shall apply for the same within a month and appear before the court when called
upon in connection with the decree.
26. If the judgment debtor fails to appear, the security shall be realized or he shall be
committed to a civil prison.
27. However, the court shall not order the detention of a woman in a civil prison.
(S.56)
28. Other persons who may not be detained in a civil prison include(a) Judicial officers while going to, presiding in or returning from their courts
(b) Parties, their pleaders, mukhtars, revenue agents and recognised agents and
their witnesses acting in obedience to summons, while going to or attending or
returning from court
(c) Members of legislative bodies
(d) The State Government may declare by notification that certain persons whose
arrest is dangerous to the public shall not be carried out otherwise than by
such procedure as may be prescribed by the State Government.
(e) A judgment debtor where the decretal amount does not exceed Rs.2000
29. The State Government may even fix the subsistence allowance payable to
judgment debtors. No judgment debtor shall be arrested till such subsistence
allowance is paid into court by the decree holder.
30. As per Rule 39, the subsistence allowance shall be paid by the decree holder in
advance before the first day of every month to the officer in charge of the civil
prison. However, the first payment of the amount which is for the unexpired
period of a particular month (say where arrest is made in the middle of the month)
shall be payable to an officer of the court.
31. The payment shall be deemed to be costs for the suit. However, the judgment
debtor cannot be detained in prison on account of the amount disbursed in such
manner.
32. S.57 provides the circumstances in which a judgment debtor may be arrested.
33. No arrest shall be made where the sum of money payable on the decree is less
than Rs.2000.
34. When the sum of money payable is between Rs.2000 and Rs.5000, the detention
shall be for a period not more than 6 weeks and where it is for a sum exceeding
Rs.5000, the detention shall be for a period not more than 3 months.
35. However, the judgment debtor may be released in the following circumstances(a) Where he pays the amount to the arresting officer
(b) On the request of the person making the application for arrest
(c) Where the decree against him is fully satisfied
(d) On omission of the person making the application to pay subsistence
allowance
23. Where once the judgment debtor has been arrested for the purpose of execution of
the decree, he cannot be re-arrested for the same decree.
24. Under S.59, a judgment debtor may be released on the ground of illness where a
warrant for his arrest has been issued or where he has been arrested or even after
he has been detained in the civil prison.
25. Where he is detained in the civil prison, he may even be released on account of
some infectious or contagious disease.
26. A judgment debtor who is released may be re-arrested. However, such re-arrest
shall be for a period not longer than the aggregate period as provided in S.58.
27. It is mandatory for the court to record reasons for its satisfaction for detention of
the judgment debtor.
1.3 Attachment
1. A decree may be executed by way of attachment and sale of property or by sale of
property.
2. This has been dealt with under Ss.60-64 and Rules 41 to 57 of Order 21.
3. The executing court may attach only such property as is within the local limits of
its jurisdiction.
4. The CPC does not affect attachment under any other local law. Thus, where
attachment has been ordered under any such law, the judgment debtor cannot
claim any benefit under the CPC.
5. The primary objective of attachment of property is to notify the judgment debtor
not to alienate the property and also to give notice to the general public not to deal
with such property.
6. Further, it is beneficial for the judgment debtor as certain properties are excluded
from being attached and sold.
7. The terms attachment and sale as used in the CPC are disjunctive.
8. Thus, attachment is not a condition precedent to sale.
9. Where sale is carried out without any attachment, it is merely an irregularity
which does not vitiate the sale.
10. S.60 provides that the following property may be attached(a) Lands
(b) Houses and other buildings
(c) Goods
(d) Money
(e) Bank notes
(f) Cheques
(g) Promissory notes
(h) Bills of exchange
(i) Hundis
(j) Government securities
(k) Bonds
(l) Other securities for money, debts, shares in a corporation
(m)All saleable property, movable or immovable, which the judgment debtor is
capable of disposing off or profits from which the judgment debtor is capable
of disposing off for his own benefit. Such property may be held by the
judgment debtor on his own or through a trustee.
11. Property which cannot be attached includes the following (refer to S.60 for the
entire list)(a) Wearing apparel of the judgment debtor, his wife and children
(b) Tools of artisans
(c) Where the judgment debtor is an agriculturist, implements of husbandry, such
cattle and seed grain as the court thinks is necessary to enable him to earn his
livelihood
(d) Wages of labourers and domestic servants
(e) All moneys payable on a life insurance policy of the judgment debtor
12. S.61 provides that the State Government may by notification in the Official
Gazette exempt certain agricultural produce from being attached where it deems it
necessary for the livelihood of the family of agriculturists.
13. S.62 deals with circumstances wherein it becomes necessary to enter a dwelling
house to seize property which has to be attached.
14. Such entry shall not be made at any time after sunset and before sunrise.
15. The doors of the dwelling house shall not be broken open except where the
judgment debtor resists the entry of the officials. However, once the officials are
allowed entry into the house, they may break open the doors of any room if they
suspect that the property is in such room.
16. Where the dwelling house is occupied by a Pardanashin woman (section
mentions- a woman who by the customs of this country does not appear in
public), the officials shall give adequate notice to the woman to withdraw and
thereafter enter the premises after giving her reasonable facilities to withdraw.
17. S.63 provides for situations where the decree is being executed by more than one
courts and thus each of such courts carries out attachment.
18. In such case, the court which receives the property first can order its attachment.
19. If there is a dispute, the court of the higher grade shall get preference. Where all
the courts are of the same grade, the court under whose decree the property was
first attached will get preference.
20. However, this shall not invalidate any other proceeding in any of the courts as
regards the decree.
21. Such proceeding shall not include an order of a court allowing a decree holder to
set-off the amount payable by him on purchase of the property (which is the
subject matter of the suit) at a sale held in execution of the decree. (Check)
22. S.64 makes any private transfer or delivery of the property attached or any interest
in the same void against all claims enforceable under the attachment.
23. This shall however not affect any transfer or delivery to be made on a contract
entered into before the attachment.
24. Further, any debt or dividend or other moneys paid to the judgment debtor which
is contrary to the attachment shall also be void against all claims enforceable
under the attachment.
25. Such claims enforceable under the attachment include the rateable distribution of
assets.
26. A private transfer is one entered into voluntarily as in the case of a sale, mortgage,
etc. and not one by operation of law as in the case of a sale under a decree passed
by court.
27. A private transfer is void only against claims enforceable under the attachment
and only to the extent necessary to meet the claim.
28. Read Rule 41- not important (Read)
29. The following table deals with the mode of attachment of different kinds of
property under the RulesRule
42, 43
43-A
46
Type of Property
Movable property, other
than agricultural produce
in the possession of the
judgment debtor
Movable property
consisting of livestock,
agricultural implements
or other articles which
cannot be conveniently
attached.
Movable property not in
possession of the
Mode of attachment
By actual seizure.
But if such property is perishable or
where the expense of keeping it is
likely to exceed its value, it may be
sold.
By leaving it in the custody of a
respectable person called custodian.
51
46
judgment debtor
Negotiable instrument
which is neither
deposited in court nor in
the custody of a public
officer
Debt not secured by a
negotiable instrument
46
47
Share or interest in
movable property
belonging to the
judgment debtor and
another as co-owners
Salary or allowance of a
public servant or a
private employee
48, 48-A
49
Partnership property
52
Property in custody of
court or public officer
53
Agricultural produce
54
Immovable property
28. Under S.46 (check section), the court executing the decree may on the application
of the decree holder issue a precept to another court which is in a position to
execute the decree to attach the property of the judgment debtor as mentioned in
the precept.
29. The object of a precept is to ensure that the decree holder may be able to enforce
the decree against the judgment debtor who is within the local limits of
jurisdiction of another court.
30. Rules 55 to 58 lay down the following circumstances in which an attachment may
be determined(a) Where the decretal amount is paid or the decree is satisfied
(b) Where the decree is reversed or set aside
(c) Where the court upholds the objection made as regards the attachment and
makes an order releasing the property
(d) Where after attachment, the application is dismissed
11. The Court may also if it deems necessary order execution for the benefit of
persons who may not have been joined in the application.
12. Where the decree has been assigned to another, the assignee may apply for the
execution of the decree by the court. A notice must be sent to the assignor and the
judgment debtor who may object to the execution.
13. Where there is a decree for payment of money against two or more persons and it
is transferred to one of such persons by way of assignment, the assignee cannot
execute the decree against the others.
14. Rule 17 provides for the procedure on receiving an application for execution.
15. In such case the court shall ascertain whether the necessary requirements have
been complied with and the necessary particulars have been mentioned. Where
there is a defect, the same must be remedied else the application will be rejected.
16. Where such defect is as regards the amount of costs or the amount of interest (as
under Rule 11), the court shall decide the same provisionally and order execution
of the decree.
17. Where the application is admitted, a note of the same must be made in the proper
register.
18. Thereafter, the court shall order execution.
19. Rules 18 to 20 have been discussed under cross claims.
20. Rule 21 provides that the court may refuse execution at the same time against the
person and property of the judgment debtor.
21. Where an application for execution is made in the following cases, the court shall
issue a notice to such persons and they shall have to appear and show cause as to
why the decree should not be executed against them(a) More than 2 years after the date of the decree
(b) Against the legal representatives of a party to the decree
(c) In a reciprocating territory as under S.44-A (territory not in India)- check
(d) Against the assignee or receiver of a person who has been adjudged an
insolvent
22. Where any person who has been notified as above (point 21), does not appear to
raise an objection to the execution, the court shall execute the decree against him.
23. However, where he does appear and raise an objection, the court shall consider
the same.
24. This has been provided under Rule 22. (Read Rule 22)
25. Where sale of any property of the judgment debtor has been ordered for the
purpose of execution, it shall not be set aside even where the judgment debtor dies
at any time between the date of proclamation of the sale and the date of actual
sale.
26. In such case, it is immaterial whether the decree holder has failed to substitute the
judgment debtor for his legal representatives.
27. However, the court may set aside the sale where it is of the opinion that it shall be
prejudicial to the interest of the legal representatives.
1.5.
Mode of Execution
Note: The points which have been underlined are the other modes of execution as
provided under sub-point (e) of point 1.
1. S.51 provides for various modes of execution such as:
(a) Delivery of possession
(b) Sale of property, with or without attachment
(c) Arrest/detention of the judgment debtor in a civil prison for a period not
exceeding that which is specified under S.58.
(d) Appointment of a receiver.
(e) Any other manner as the nature of the relief would require.
2. However, the decree holder will generally be allowed to choose only one of these
modes of execution under the CPC, subject to certain conditions and limitations.
3. The section also states that where the decree is for payment of money and if it is
to be executed by arrest/detention of the judgment debtor, the judgment debtor
must be allowed an opportunity of showing cause as to why he must not be
committed to a civil prison.
4. He may thereafter be committed to prison, if the court gives reasons in writing
stating the following:
(a) The judgment debtor with a view to obstruct or delay justice, was likely to
abscond from the local limits of jurisdiction of the court OR at the time of
institution of the suit has dishonestly transferred/concealed/removed the property
involved or a part of it or done any other act in bad faith against such property.
(b) It has been shown that after the passing of the decree, the judgment debtor had
sufficient means to pay for the same or a substantial part of it. Such means shall
exclude any such property of the judgment debtor which has been excluded under
the act for the purpose of payment under a decree.
(c) That the judgment debtor was bound to account for the same under a fiduciary
capacity.
5. There are no restrictions on the court under the court to proceed against the person
of the decree holder as well as his properties at the same time. However, as a
general rule, the facts and circumstances of each case must be looked into and
where the amount to be obtained under a decree has been satisfied by one mode,
the court should not resort to another mode.
6. Thus, the court may refuse simultaneous execution against the person and
property of the judgment debtor.
7. The modes for execution may be discussed as follows.
8. Where the decree is to be executed by delivery of possession, the same may be
done by delivery of movable or immovable property of the judgment debtor as
required to satisfy the decree.
9. Where the decree is for a specific movable, under Rule 31 of Order 21, such
movable or a part of such movable may be seized and delivered to the decree
holder or to such person as he appoints to receive the property.
10. Or the court may attach the property of the judgment debtor or detain/arrest him
or both.
11. Where an order for attachment of the judgment debtors property has been passed
and the decree has not been obeyed by the judgment debtor, the decree holder
may make an application to have such property sold. Such part of the proceeds
out of the sale shall be paid to the decree holder as is due to him under the decree
or as the court deems fit to compensate him. The remaining shall be given to the
judgment debtor on his request.
12. Where the judgment debtor has fulfilled the conditions of the decree or where
within the period of 3 months as mentioned above, an application for sale of the
attached property has not been made by the decree holder, the attachment shall
cease.
13. A decree for money cannot be executed under this Rule.
14. Also, where the property is in possession of a third party, the provisions of this
rule will not apply and there can be no attachment of property.
15. Execution of a decree of immovable property by delivery of the same has been
discussed under Rules 35 and 36 of Order 21. This is to be read with Rules 95 and
96 of the same order which lays down the procedure for delivery of property to
the purchaser in an auction.
16. Rule 35 empowers the court to remove an immovable property from the
possession of a person who does not allow delivery of the same to the decree
holder or any other person appointed by him under the decree.
17. Where the decree is for joint possession of such property, the court shall put up a
warrant as regards the same on any conspicuous place on the property or proclaim
the same by beat of the drum or such other customary practice.
18. Where the immovable property is a building or enclosure and the person in
possession being bound by the decree does not allow access, the court will
through its officers after giving a warning or facility (in case of a woman not
appearing in public due to the customs of the country/ Pardanashin woman),
withdraw, remove or open any lock/bolt or break open a door or do such acts as
may be necessary.
19. Rule 36 provides that where the property is in possession of a tenant or such other
person who is entitled to possession and is not bound by the decree to relinquish
his occupancy, the court shall order that a warrant be put up in a conspicuous
place in the property or proclaim to such person by beat of a drum or other
customary mode, the substance of the decree.
20. Possession delivered under Rule 35 is termed as khas/actual possession and that
delivered under Rule 36 is termed as symbolic/formal possession.
21. Any person bound by the decree would not include just the judgment holder. For
example, eviction of a tenant would lead to eviction of a sub-tenant as well.
22. The court can also award mesne profits as a consequence to unlawful retention of
property.
23. S.51 also provides for execution of a decree by way of attachment of property and
sale thereafter or by sale without attachment.
24. A court may attach property that lies within the local limits of its jurisdiction
irrespective of whether or not the judgment debtors place of business is outside
such local limits.
25. Rule 54 provides for attachment of immovable property.
26. S.51 also provides for an option to detain the judgment debtor in a civil prison for
the purpose of execution.
27. This is done primarily so that an amount due to the decree holder may be secured
and where the judgment debtor is not in a position to pay such dues beyond his
control, to protect him in such circumstances.
28. S. 51 also provides for appointment of a receiver for the property. However, this is
upto the discretion of the court and is an exception to the general rule that the
decree holder may choose any mode of execution that he wishes to.
29. A very strong case must be shown so that a receiver may be appointed. What
needs to be seen is whether the receiver is required for both parties and is a more
effective remedy than sale of the property.
30. It must also be shown that there is no alternative remedy available and the
statutory modes of execution cannot be availed of.
31. This provision must however be read with Order 40 Rule 1 which deals with the
powers of the receiver. (Read if possible)
32. S.54 deals with execution by way of a decree for partition or separate possession
of shares in an undivided estate.
33. It stipulates a situation where a decree must be executed by way of partitioning an
undivided estate for payment of government revenue or where it must be
partitioned for the purpose of distribution of shares therein.
34. This shall be done either by the Collector or any other gazetted officer who is
subordinate to the Collector, where such execution is delegated by the Collector to
the subordinate officer.
35. Rules 18, 19 and 20 of Order 21 deal with cross decrees and cross claims.
36. These rules are applicable to ordinary suits, mortgage suits and other suits not
covered under the CPC.
37. Rule 18 deals with cross decrees. It contemplates a situation where two persons
are liable to each other for the payment of a certain amount of money by way of
separate decrees. In such a case, they may set-off the claims they have made
against each other.
38. For e.g. under a decree, A is liable to B for Rs.1000. By way of another decree, B
is liable to A for Rs.1000. Such amounts shall be set-off and the decrees passed
will be treated as cross decrees.
39. Where both amounts are equal, neither of the parties shall be required be pay any
amount and full satisfaction shall be entered into the decree.
40. Where the amount payable than one is lesser than that payable by the other, such
smaller amount shall be set-off against the larger amount and the balance shall be
paid to the party to whom the larger amount is owed.
41. Herein, full satisfaction shall be entered upon the decree in which the smaller
amount is payable and partial satisfaction shall be entered upon the decree in
which the larger amount is payable.
42. For e.g. Where A owes Rs.1000 to B by virtue of a decree and B is liable to pay A
Rs.800 by virtue of another decree, Bs claim is satisfied and gets set-off against
As claim. Thereafter, B shall be liable to pay Rs.200 to A.
43. The essential conditions that must be fulfilled in such case are as follows(a) The decrees must be for payments of different and definite sums of money
(b) The decrees must be passed in separate suits
(c) Each party must be a decree holder in one of the suits and a judgment debtor
in the other
(d) Each party must fill the same character in both suits
(e) Where the decree holder claims from two or more persons jointly and
severally and one or more of such persons holds a decree against him singly, it
shall be treated as a cross decree.
43. For e.g. A and B obtain a decree for payment of Rs.1000 against C. C obtains a
decree for payment of Rs.500 from B. C cannot say that the decree obtained by
him is a cross decree. This is because each party must fill the same character in
both suits and in the second suit B is not being sued alongwith A.
44. For e.g. A, B, C and D are jointly and severally liable to E for payment of
Rs.1000. Thereafter, D obtains a decree for Rs.100 against E and applies for
execution. Herein, E may treat such decree by D as a cross decree to the previous
joint decree. Reason- sub-point (e) under point 42.
45. The rule under Rule 18 shall apply even where either party is an assignee of one
of the decrees. (check)
46. Rule 19 deals with execution of cross claims by way of set-off as part of the same
decree.
47. For e.g. A and B are the litigating parties. In the same suit, a decree is passed
whereby A is liable to pay Rs.1000 to B and B is liable to pay Rs.800 to A. The
claim of B will be set-off and A shall be liable to pay Rs.200 to B.
48. Thus, the contesting parties must have two rival claims against each other.
49. This is done so that the parties do not have to obtain separate decrees for sums
due under the same decree.
50. Execution may also take place by payment of money.
51. Such payment must be made as per the provisions of Rules 1 and 2 of Order 21 by
(a) depositing the decretal amount into court (b) by payment to the decree holder
out of court or (c) by any other manner which the court passing the decree directs.
52. Payment may be made in court or out of court by way of depositing the amount or
by way of a postal money order or by the bank.
53. Where the payment is to be made in court or by any other manner as the court
may direct, notice of the payment must be made to the decree holder by one who
makes the payment.
54. Where such notice is given, the interest payable on the amount shall cease from
the date of service of notice.
55. Where payment has to be made out of court, the decree holder must certify the
payment or adjustment made to the court executing the decree.
56. Where the decree holder does not certify the same, the judgment debtor or any
surety of the judgment debtor may inform the court about such payment.
57. The judgment debtor or his surety as the case may be shall also apply to the court
to send a notice to the decree holder to show cause as to why he did not certify the
payment or adjustment. Where the decree holder fails to show cause the same, the
amount paid shall be recorded as being certified.
58. No payment or adjustment shall be recorded at the instance of the judgment
debtor unless (a) the payment is made in a manner prescribed by rule 1 or (b) the
payment or adjustment is proved by way of documentary evidence or (c) the
payment or adjustment is admitted by the decree holder in reply to any notice sent
to him.
59. Payment or adjustment must be certified or recorded so that it is recognised by the
court executing the decree.
60. Where payment is to be made into court or outside court by way of depositing the
amount or postal money order or by the bank, the following particulars must be
stated(a) The number of the original suit
(b) The names of the parties and where there are more than one
plaintiffs/defendants, the names of the first two plaintiffs/defendants.
(c) The manner in which the money is to be adjusted, i.e. whether towards the
principal or the interest or the costs, etc.
(d) The number of the execution case of the court where the execution is pending
(e) The name and address of the payer
61. Where interest is payable in case of money to be paid outside court, the interest
shall cease on the date of payment.
62. Where the payment is refused by the decree holder or where he avoids
acceptance, interest shall be deemed to have ceased from the day the amount was
tendered to him or would have been tendered to him (in case of avoidance) in the
ordinary course of business.
63. Rule 30 provides that where a decree for payment of money is executed or where
payment is an alternative remedy, the decree may be executed by detention of the
judgment debtor in a civil prison or by attachment of his property or by both.
64. Rule 32 deals with decrees relating to specific performance of contract or
injunctions or restitution of conjugal rights. Restitution of conjugal rights has
been dealt with under Rule 33 as well.
65. Where a decree has been passed against any party for specific performance of a
contract or for performance/non-performance of any act mandated or prohibited
by an injunction, and the judgment debtor has the opportunity to obey the decree
but he fails to do so, he may either be detained in a civil prison or his property
may be attached or both.
66. Where such a decree has been passed against a corporation, the property of the
corporation may be attached or any of its directors or principal officers with the
leave of the court may be imprisoned in a civil prison or both.
67. In case of attachment of property, the decree holder may within 6 months from the
date of attachment apply to the court for having the property sold.
68. Where the property is sold, the sale proceeds shall be adjusted in a manner to
compensate the decree holder and the balance shall be paid to the judgment
debtor.
69. The attachment shall cease where the judgment debtor satisfies the decree passed
within the six month period or where the application to have the property sold
after six months has not been made by the decree holder or where it has been
refused.
70. Where the judgment debtor does not the decree as regards specific performance or
injunction, the court may even order the decree holder or any other person
appointed by the court to perform the acts stipulated in the decree at the cost of
the judgment debtor.
71. Where under Rule 32, a decree has been passed for restitution of conjugal rights
and the judgment debtor willfully disobeys the decree where he had the
opportunity to obey it, the court shall order that the property of the judgment
debtor be attached.
72. The court may even order that such decree be executed as per the provisions of
Rule 33.
73. Under Rule 33, where the husband fails to obey the decree, the court may require
him to make periodical payments which may be altered as regards the amount and
the frequency of payment by the court. The court may even suspend the whole or
part of the payment and may later revive it.
74. The amount payable under this provision shall be recoverable in the same manner
as in the case of money payable under a decree. (Rules 1 and 2)
75. Rule 34 deals with a decree relating to execution of a document or endorsement of
a negotiable instrument.
76. Where the judgment debtor neglects or refuses to obey the decree, the decree
holder may prepare a draft of the document or endorsement in accordance with
the terms of the decree and send it to the court.
77. The court may then send the draft to the judgment debtor alongwith a notice
requiring his objections within such time as may be fixed.
78. The judgment debtor may make his objections in writing and after considering the
same, the court if it deems fit, may make alterations in the draft.
79. Thereafter, the new draft with the alterations shall be presented by the decree
holder to the court. This draft may even be registered where the law requires or
where the decree holder so desires.
80. The execution of the draft shall have the same effect as the execution of a
document ordered by the court originally.
81. Under Rule 42, where a decree is for unascertained rent or mesne profits, the
court may order that the property of the judgment debtor be attached before the
ascertainment of the amount due.
82. However, any interest created prior to such attachment shall not be affected.
83. A decree or liability may even be enforced against a surety.
84. This has been provided under S.145.
85. A surety in such case would mean a person who has furnished any security or
given any guarantee for performance of any decree or any part of the decree OR
for restitution of any property taken in the execution of the decree OR for the
payment of any money for the satisfaction of any condition imposed by the court
in any suit or consequent proceeding.
86. In such case, where the surety has agreed to be personally liable, the decree shall
be satisfied against him to that extent.
87. Where he has furnished any security, the decree shall be satisfied to the extent of
the amount so furnished.
88. If the surety makes himself both personally liable as well as furnishes any
security, the decree shall be satisfied against him in the extent as specified with
respect to the same. (satisfied under both points 86 and 87)
89. Sufficient notice however must be given to the surety in this regard.
90. The surety in such cases shall be deemed to be a party to the suit.
91. Decree against corporation- discussed previously under Rule 32
92. Decree against firm- refer to notes given under 5.2- Rules 49 and 50
93. Attachment of a decree- refer to notes under 1.3- Rule 53
94. Rule 56 provides that where the decree relates to the attachment of coins or
currency notes, the court may decide that at any time during the period of
attachment, there shall be payment of coins or currency notes to the decree holder
in satisfaction of the decree.
1.6 Garnishee
1. Rules 46-A to 46-I deal with a garnishee order.
2. A garnishee means the debt of a judgment debtor.
3. A garnishee is a person who is liable to pay a certain amount or deliver some
movable property to the judgment debtor.
4. By an order, the court may ask the garnishee not pay the judgment debtor as he is
already indebted to the garnisher.
5. For e.g. Where A owes Rs.1000 to B and B owes Rs.1000 to C. The court may
require that A pay the amount to C and not B if C obtains the garnishee order.
Here, A is the garnishee, B is the judgment debtor and C is the garnisher or decree
holder.
6. The object behind such orders is to ensure that the debt due from the garnishee to
the judgment debtor is paid directly to the decree holder in execution without
making him file a suit.
7. S.46-A provides that where the decree holder files an application in court for a
garnishee order, a notice must be given to the garnishee to make payment of the
amount due to the judgment debtor or that which shall satisfy the decree and its
costs into court. If such payment is not made, the garnishee must appear and show
cause as to why he did not make the payment.
8. Where he does not pay the amount or does not show cause any reason for nonpayment, the court may order him to comply with the terms of the notice and such
order will be considered to be a decree against him. (Rule 46-B)
9. At the time of filing the application, the decree holder shall file an affidavit
verifying the facts alleged and stating that he believes the garnishee is indebted to
the judgment debtor.
10. Where the garnishee disputes the claim, the issue shall be tried as if it were an
issue in an ordinary suit. (Rule 46-C)
11. Further, if the application relates to a debt which is more than the pecuniary
jurisdiction of the court, the execution case shall be sent by the court to the
District Court above it which may send it to a higher court.
12. Where it is seen that the debt belongs to a third person or where a third person has
any interest in the debt, the court may order that such third person appear before it
and provide the particulars of his claim and prove the same. (Rule 46-D)
Thereafter the court shall make an order as regards the interest and charge of the
third person, whether or not he appears in court. (Rule 46-E)
13. The payment made by the garnishee shall be a valid discharge for him as against
the judgment debtor or any other person ordered to appear before court in
connection with the debt even though the decree in which it was ordered is set
aside or reversed. (Rule 46-F)
14. Any order made in case of Rules 46-B, C and E shall be appealable.
1.7 Resistance to delivery of possession to decree holder or purchaser
1. This has been dealt with under S.74 and Rules 97 to 106 of Order 21.
2. Where the holder of a decree of immovable property or a purchaser of immovable
property in execution of a decree by sale is obstructed by the judgment debtor or
any other person directed by the judgment debtor to gain possession over the
property without any just cause, he may apply to the court for arrest and detention
of such person obstructing for a period upto 30 days in a civil prison. (S.74 and
Rule 97)
3. The court shall then order that the decree holder or the purchaser be put in
possession of the property.
4. Rule 97 provides that the court shall proceed to adjudicate upon the application of
the decree holder or the purchaser.
5. Upon adjudication, the court may allow the application and direct that the
applicant be put in possession of the property or pass any other order as it deems
fit. (Rule 98)
6. Where the court is of the opinion that the resistance is without just cause and it
continues even after the decree holder or purchaser is put in possession of the
property by the court, it shall order that the judgment debtor or any other person
acting on his behalf or otherwise be detained in a civil prison upto a period of 30
days.
7. Rule 99 allows the judgment debtor to make an application to the court for
adjudication where any person other than him was dispossessed of the property in
question by the decree holder or where such property is sold.
8. Rule 101 provides that where the decree holder or purchaser is dispossessed under
Rule 97 or the judgment debtor is dispossessed under Rule 99, such questions
shall be determined by the court dealing with the application and not separate suit
shall be filed in this regard.
9. In such case, the court may either pass an order confirming the application and
directing that the applicant be put in possession of the property or it may dismiss
the application or pass any other order as it deems fit.
10. However, these provisions shall not be applicable to such person to whom the
judgment debtor transferred the property after institution of the suit in which the
decree was passed. (lis pendens)
11. The orders under these provisions shall be treated as decrees.
12. Every order made under these provisions shall be subject to the result of any suit
pending on the day the proceedings with respect to such orders commenced.
13. Rule 105 deals with hearing of the application.
14. It states that a day shall be fixed for the hearing and where the applicant does not
appear on such day, the application shall be dismissed.
15. Where the opposite party to whom a notice has been issued does not appear, the
application shall be passed against him ex parte.
16. Where an order for dismissal has been made or where an ex parte order has been
made, the aggrieved person shall apply to the court showing that there was
sufficient cause for his non appearance.
17. If the court is satisfied, it shall pass an order setting aside the dismissal or ex parte
order.
18. No order shall be made on the application where the opposite party hasnt been
notified about the same.
19. The application must be made within 30 days from the date of the first order
dismissing the application under Rule 105 or within 30 days from the date when
the applicant had knowledge of the ex parte order.
Unit II- Death, Marriage and Insolvency of Parties
Death1. Where a party to a suit dies or gets married or becomes an insolvent or where he
assigns his rights under the suit, there is a creation, devolution and assignment of
interest in cases of suits and appeals.
2. However, there is no such creation, devolution or assignment of interest in cases
of execution of a decree or order. (Rule 12- Nothing in Rules 3, 4 and 8 shall
apply to execution of a decree or order)
3. Order 22 deals with the same.
4. Where the right to sue survives, there shall be no abatement of the suit where a
party dies. (Rule 1)
5. Where the sole plaintiff dies, his right to sue shall devolve on to his legal
representatives provided the right to sue survives.
6. Where there are several plaintiffs and one of them dies, the court shall make a
record of the same and proceed with the remaining plaintiffs, provided the right to
sue survives. (Rule 2)
7. In cases where the sole plaintiff dies and the right to sue survives (point 5) or
where one out of several plaintiffs dies and the right to sue does not survive as
regards the surviving plaintiffs, the legal representative of the deceased may make
an application to the court within the prescribed period of 90 days, the court shall
cause the legal representative to be made party to the suit. (Rule 3)
8. The suit shall abate where the application is not made within the given period of
time.
9. In such a case, the defendant may apply to the court to award him costs from the
estate of the deceased plaintiff.
10. However, there shall be no abatement of suit after completion of the hearing, in
cases where the judgment is yet to be pronounced. (Rule 6)
11. Where one of several defendants dies and the right to sue survives, the court shall
make a record of the same and proceed with the suit. (Rule 2)
12. Where a sole defendant dies and the right to sue survives or where one of several
defendant dies and the right to sue does not survive as regards the surviving
defendants, on an application made by the legal representatives of the defendant,
within the prescribed period of 90 days, such legal representatives shall be made a
party to the suit as defendants. (Rule 4)
13. It would seem on a reading of the provision, that even the plaintiff may make an
application to the court for substitution of the deceased defendant by the legal
representatives of such defendant. (inference-check)
14. However, the plaintiff shall be exempted from making an application substituting
the legal representatives of the defendant where such defendant has failed to file a
written statement or where he has failed to appear before the court after filing
such statement.
15. In such cases, the court may pronounce judgment against the defendant,
notwithstanding his death. Such judgment shall have the same effect as it would
have had, had the defendant not died.
16. Where the plaintiff could not make an application substituting the legal
representatives of the defendant within the prescribed time period as he was
unaware of the defendants death, he can make an application after the expiry of
the prescribed period of time stating that he was ignorant of the defendants death
and that it was sufficient cause for not making the application.
17. The court shall then consider the application and have due regard to the fact of
ignorance, if proved.
18. The right to sue subsists till the cause of action subsists.
19. However, where the action is personal that is where the relief sought is personal to
the deceased person, the right to sue of the legal representatives does not arise.
20. This is based on the maxim actio personalis moritur cum person which means a
personal action dies with the person.
21. For example, where a person is being sued for breach of contract of singing or
other personal performance.
22. As per Rule 5, any question as to determination of who is a legal representative
shall be decided by the court.
23. Where the question arises before the appellate court, it may direct the subordinate
court to conduct such enquiry. It may even ask the subordinate court to send its
findings, evidence, etc. and based on the same take a decision as regards the
matter.
24. Rule 5 however does not mention about any elaborate enquiry.
25. Further, it is the duty of the pleader of the deceased party to inform the court as
regards his death. (Rule 10-A)
26. This rule has been inserted via amendment so that there is no hardship caused to
the other party which is ignorant of the situation.
27. Generally, the contract of a pleader ceases to exist where the party he represents
dies. However, for the purposes of this provision, the contract between the pleader
and the deceased party shall be deemed to subsist. This is done so as to cast an
obligation on the pleader.
28. Rule 4-A provides that where there is no legal representative, the court may on an
application of any other party to the suit proceed with the suit without anyone
representing the estate of the deceased or it may pass an order providing that the
Administrator General or any officer of the court or any other officer represent the
estate of the deceased.
29. Thereafter, any judgment passed by the court shall affect the estate of the
deceased in the same manner as it would have affected such estate where there
was a personal representative of the deceased.
30. However, before making such order, the court shall ensure that a notice of the
same is sent out to persons who are interested in the estate of the deceased.
31. The court shall also ensure that the person so appointed by it is willing to
represent the estate of the deceased and has no interest which is adverse to that of
the deceased person.
32. As per rule 9, where a suit abates, no fresh suit shall be brought on the same cause
of action. No specific order is required in this regard as the suit abates
automatically.
33. However, the abatement may be set aside by an order where the plaintiff or such
persons claiming to be legal representatives of the plaintiff apply to the court that
they were prevented by sufficient cause from filing the suit.
34. However, nothing shall bar a defence on the facts of the same cause of action in a
later suit. Thus, the abatement of the suit does not operate as res judicata. (check)
35. An application under Rule 9 must be filed within such time period as specified
under S.5 of the Limitation Act.
36. No suit can be filed against a dead person. Such a suit filed is non est.
37. Similarly, no decree can be passed against a dead person.
38. Where a suit is filed by a plaintiff who is ignorant of the death of such person, on
the application of the plaintiff, the court may proceed to bring the legal
representatives of the deceased on record.
39. Such a suit shall be deemed to have been instituted on the day the plaint was
presented.
40. Where in a proceeding, one of several plaintiffs/defendants dies and his legal
representative is already on record in a different capacity, he should also be
described as the legal representative of the deceased. However, failure to do so
will not abate the proceeding.
41. Where a joint and indivisible decree is passed by a subordinate court in favour of
several plaintiffs and one or more such plaintiffs dies, in such case if a defendant
fails to bring to record the legal representatives of the deceased plaintiff(s), the
right to appeal shall abate against all the defendants. (check- pg 259, not
important)
42. A suit filed in a representative capacity does not abate on the death of one or more
of the plaintiffs.
43. Similarly, a suit filed by the Karta of an HUF may be continued after his death by
the succeeding Karta.
44. The suit will not abate on the death of an unnecessary or proforma defendant.
45. The order refusing to set aside abatement is an appealable order and not a decree.
46. Thus, even though the order may be appealed against, no second appeal or letters
patent appeal shall lie in such case.
Marriage (Rule 7)1. Where a female plaintiff or defendant gets married, the suit shall not abate.
2. It shall be proceeded till the judgment is given and where the decree is against
her, it shall be executed against her alone.
3. Where the husband is by law liable to pay the debts of the wife, a decree passed
against the wife may with the permission of the court be executed against the
husband as well.
4. Where a decree is passed in favour of the wife and the husband is entitled to the
subject matter of the same, he may make an application to the court in this regard.
The decree may then be executed in favour of the husband as well with the
permission of the court.
Insolvency (Rule 8)1. Where the plaintiff becomes insolvent and the receiver or assignee might want to
maintain the suit for the benefit of the creditors of the plaintiff, the suit shall not
abate except where the assignee or receiver declines to continue the suit or in
cases where the court directs the assignee or receiver to pay security for costs and
the assignee or receiver declines to or neglects to pay the same.
2. Where the assignee or receiver declines to proceed with the suit or fails to pay
security for the costs within the prescribed time period, the defendant may make
an application to the court for dismissal of the suit.
3. The court may thereafter order that costs be paid to the defendant and the same be
deemed to be a debt against the plaintiffs estate.
4. This rule is not applicable to the insolvency of a defendant. In such cases, the
court may stay the suit or proceedings pending against such defendant.
5. Rule 9 also states that where a suit abates, the assignee and receiver in cases
where the plaintiff becomes insolvent may make an application to the court to set
aside such abatement. (Order not necessary, abatement is automatic)
6. The assignee or receiver must show that there was sufficient cause for not
continuing with the suit and the Court if satisfied with the same may pass an order
in this regard.
7. The application must be filed within such time period as is prescribed by S.5 of
the Limitation Act.
8. Nothing shall however bar a defence on the facts of the same cause of action in a
later suit.
Assignment in other cases1. In any other case where an interest is assigned or created or devolved, the suit
may be proceeded by or against such other person with the permission of the
court.
2. Where there is attachment of a decree pending appeal, the person who has asked
for such an attachment will be deemed to have an interest as per the provisions of
this section.
Unit III- Withdrawal and Adjustment of suits
Withdrawal1. Order 23 deals with withdrawal and compromise of suits.
2. Such withdrawal may be with the leave of the court (qualified) or without the
leave of the court (absolute).
3. Rule 1 deals with both absolute and qualified withdrawal.
4. It provides that any time after the institution of the suit, the plaintiff may
withdraw the suit or a part of the claim, without the leave of the court.
5. An exception to this rule is that withdrawal is not possible where a vested right
gets created before the withdrawal. (case law)
6. Such a right of the plaintiff is unqualified and he may withdraw the suit/part of
the claim against all or any of the defendants.
7. However, the plaintiff shall thereafter be barred from instituting a fresh suit on the
same cause of action.
8. The court may also ask to plaintiff to render costs in such case.
9. This rule is not applicable to minors or persons of unsound mind.
10. Where a suit or part of the claim is to be withdrawn by a minor or a person of
unsound mind, the leave of the court is necessary. In such a case, an affidavit must
be filed by the next friend of such person.
11. Further, where such person is represented by a pleader, a certificate must be filed
by the pleader stating that the withdrawal or abandonment is for the benefit of the
minor or unsound person.
12. Qualified withdrawal is allowed where the court is satisfied that the suit shall fail
by virtue of some formal defect or that there is sufficient cause to grant
withdrawal of the suit or part of the claim and allow institution of a fresh suit.
13. A formal defect is where the defect is one of form or procedure. (E.g. misjoinder
of parties) Such defect must not deal with the merits of the case or must not be
such that it goes to the root of the plaintiffs case (e.g. non-joinder of a necessary
party).
14. Where the court permits the plaintiff to withdraw the suit/part of claim in such
cases, it may allow the same on certain conditions.
15. Further, the plaintiff shall be at the liberty to institute a fresh suit on the subject
matter of the suit or part of the claim.
16. However, in either case (both absolute and qualified withdrawal), the court shall
not allow withdrawal by one plaintiff where there are several plaintiffs involved
without the consent of the other plaintiffs.
17. Rule 1-A provides that where a plaintiff withdraws the suit or abandons a claim,
one of the defendants (where there are many) may apply to the court to be made a
plaintiff in the suit.
18. The court shall thereafter consider the application having due regard to the fact as
to whether the applicant has any substantial question to be decided as against the
other defendants.
19. Where after withdrawal with the permission of the court, a fresh suit is to be
instituted, the period of limitation shall begin from the date of the institution of
the fresh suit as if the first suit never existed. (Rule 2)
20. The provisions of this Order relating to the withdrawal of the suit or abandonment
of a claim are applicable to appeals, revisions and writ petitions.
21. However, they are not applicable to a representative suit. In case of a
representative suit, a person may choose to get out of the suit. But, this shall not
put an end to suit and any other person (who represents the same group of
persons) may continue with the suit.
22. The provisions of Order 23shall not apply to execution proceedings. (Rule 4)
23. Further, the court may not allow a person on application to withdraw execution
proceedings with the right to institute fresh proceedings later. Thus, the person
may abandon the proceedings on his own in such case and institute fresh
proceedings later. (case law)
Agreement/Compromise/Satisfaction1. The Order also provides for Compromise of a suit (Rule 3) (a) Where the court is satisfied that a lawful agreement in writing to that effect (as
regards the entire suit or part of it) has been entered into between the parties
(b) Where the defendant satisfies the plaintiff in respect the whole or part of the
subject matter
2. The court in such cases shall record such agreement or compromise or satisfaction
and shall pass a decree (compromise decree) in this regard provided that it relates
to all the parties to the suit. It is not necessary that such decree relates to the
subject matter of the suit.
3. An agreement which is void or voidable under the Indian Contract Act shall not
be treated as being a lawful agreement for the purposes of this provision.
4. Where any of the party alleges that no compromise or adjustment, etc. has been
arrived at, it shall be left to the court to determine such question.
5. However, no adjournment shall be allowed for the same unless the court deems fit
and provides reasons in writing for such adjustment.
6. Rule 3-A further provides that no suit shall lie to set aside a decree passed in such
cases where it is alleged that the compromise entered into is not lawful.
16. However, the commissioner cannot impose penalties in a case where he is not a
judge of a civil court. But, the court which issued the commission may authorize
the commissioner on application in this regard. (Rule 17) (check)
17. Further, the commissioner may apply to any court other than a High Court within
the local limits of whose jurisdiction the plaintiff resides to issue such process as
may be necessary.
18. Under Rule 18, the court may direct the parties to appear in person before the
commissioner, either in person or by way of their pleaders or agents. Where they
do not appear before the commissioner, he may proceed in their absence.
19. The court may fix the time within which the commission shall be returned to it
after execution. Such date shall not be extended except where the court the court
is satisfied that there is sufficient cause for such extension. (Rule 18-B)
Examination of witnesses1. Please refer to points 4, 5, 6, 7, 8 and 9 of the previous sub-unit dealing with Ss.
76, 77 and 78.
2. Rules 1 and 8 of Order 26 deals with examination of witnesses.
3. Rules 1, 4, 4-A and 5 provide that in the following cases, the court may issue
commissions for the examination of a witness(a) Where a witness residing within the local limits of the courts jurisdiction
cannot be examined as he is exempt from attending the court under the
provisions of the Code or who by reasons of sickness or infirmity cannot
attend the proceedings of the court, the court may issue commissions on
interrogatories to examine the witness. (rule 1) Such examination may be
conducted only when the court gives reasons which are to be recorded.
(b) The court may issue a commission to examine any person on interrogatories
or otherwise residing within the local limits of its jurisdiction where it deems
fit in the interests of justice or for expeditious disposal of the case or for any
other reason. The evidence given by such person should be recorded and read
in evidence. (Rule 4-A)
(c) Where a witness does not reside within the local limits of the courts
jurisdiction (rule 4). In such case examination may take place on
interrogatories or otherwise.
(d) Where a witness is about to leave the local limits of the courts jurisdiction
before he may be examined (rule 4). In such case examination may take place
on interrogatories or otherwise.
(e) Where a person who is in the service of the Government cannot attend the
courts proceedings without detriment to the public service (rule 4). In such
case examination may take place on interrogatories or otherwise.
(f) Where a person cannot be ordered to attend court proceedings as (i) he does
not reside within 100kms from the location of the court house or (ii) where
5/6th of the distance between his house and the court house can be covered by
way of rail or steamer, and he does not reside within 500km from the court
house. (Rule 4 and Order XVI Rule 19). In such case, a commission shall be
issued where the evidence of the person is deemed necessary in the interests
(b)
(c)
(d)
(e)
3.
4.
5.
6.
7.
8.
9.
In such cases, the court shall direct the commissioner to investigate into
the matter and make a report as regards the same.
Where the State Government has made rules as to the persons to whom
commissions shall be issued, the provisions of such rules must be adhered to.
Rule 10 deals with the evidence collected by such commissions.
The commissioner shall prepare a report in writing on the evidence
collected by him.
Such report alongwith the evidence collected by him shall form part of
the evidence in the case and shall be returned to the court issuing the commission.
The court or the parties to the suit may examine the commissioner
personally in open court as regards his report, the matters referred to in his report
or the manner in which the investigation was carried out.
Where the court is dissatisfied with the proceedings of the commission,
it may direct that further enquiry be made in this regard.
(e) The person may be examined personally in open court by the court or by
either of the parties as regards the report, the matter referred to in the report
(matters under Rule 10)
(f) Where the court is dissatisfied with such proceedings of the person, it may
direct further enquiry as it deems fit (matters under Rule 10)
3. Rule 10-A provides for the following (sale of movable property)(a) Where sale of movable property within the custody of the suit needs to be
carried out as the same cannot be conveniently preserved
(b) It may, in the interests of justice and where it thinks the same to be necessary
and expedient, issue commissions to any person as it thinks fit
(c) Such person shall be directed to carry out the sale and report to the court
(d) The person may be examined personally in open court by the court or by
either of the parties as regards the report, the matter referred to in the report
(matters under Rule 10)
(e) Where the court is dissatisfied with such proceedings of the person, it may
direct further enquiry as it deems fit (matters under Rule 10)
(f) Every such sale shall be conducted in the same manner as sale of a movable
property is conducted in execution of a decree
Commissions to examine accounts1. This is dealt with under Rules 11 and 12.
2. Where a suit involves the examination or adjustment of accounts, the court may
issue a commission to any person directing him to do so. (Rule 11)
3. The court shall also furnish such part of the proceedings or instructions to the
commissioner as it deems fit. The instructions may even specify whether the
commissioner is merely to transmit the proceedings as conducted by him or give
his own opinion as regards the same. (Rule 12)
4. The proceedings as well as the report of the commissioner, where there is one
shall form part of evidence in the suit.
5. Where the court is dissatisfied with the proceedings, it may direct an enquiry into
the same.
Commissions to make partitions1. Rules 13 and 14 provide for the same.
2. Where a preliminary decree for partition of immovable property has been passed,
the court may issue commissions to any person(s) it deems fit to make partition or
separation according to the rights as declared in the decree. (Rule 13)
3. Rule 14 deals with the procedure to be adopted by the commissioner.
4. It states that the commissioner shall divide the property into as many shares as
directed by the order. He may also award such amounts as are necessary to give to
equalize the value of the shares.
5. The Commissioner shall then prepare and sign a report stating the division of
shares amongst the sharers and where the order so directs, the report shall
distinguish between the shares by metes and bounds.
6. The report of the Commissioner shall be annexed to the commission and returned
to the court which may confirm, vary or set aside the same.
7. Where the court confirms or varies the same, it shall pass a decree to that effect.
8. However, where the court sets it aside, it shall either direct that another enquiry be
conducted or pass any other order as it deems fit.
Commissions issued at the instance of a foreign tribunal1. Where a proceeding is going on in a foreign court and an application is made to
the High Court by a party to such proceedings or by any law officer of the State
government who is working under the instructions of the State government, that a
commission be issued by the High Court with respect to such proceeding, it shall
proceed with the same, provided(a) The foreign court is one situated in a foreign country which requires the
evidence of a witness for a proceeding
(b) Such proceeding is of a civil nature
(c) Such witness is within the appellate jurisdiction of the High Court
2. Evidence on the issue shall be given as follows(a) By a certificate issued by the highest officer of the Consular of the foreign
country in India and given to the High Court by the Central Government
(b) By a letter of request of the Foreign court given to the High Court by the
Central Government
(c) By a letter of request of the Foreign court given to the High Court by a party
to the proceeding
3. Points 1 and 2 have been given under Rules 19 and 20.
4. As per Rule 21, the foreign court may issue a commission to any court within
whose local limits the witness resides.
5. Where the witness resides within the local limits of the ordinary original civil
jurisdiction of the High Court, the commission may be issued to any person as the
court thinks fit.
6. Where the required evidence has been collected under the commission, the High
Court shall give the same to the Central Government alongwith a letter of request
to transmit the same to the foreign court.
Unit V- Suits in particular cases
5.1.
Provisions under Ss.79 to 82-
1. Ss. 79 to 82 and Order 27 deal with suits by or against the government and public
officers.
2. However, these provisions only deal with the procedural rights and liabilities that
are enforceable against the government and such persons.
3. The substantive rights and liabilities to be followed are those as are provided by
the Constitution.
4. In a suit, the Central Government may sue or be sued as the Union of India and a
State Government as the State.
5. S.80 provides that where a suit is to be instituted against the Government or any
public official for any act purported to be done in his official capacity, the person
filing the suit must give a notice of at least 2 months before filing the suit.
6. The difference in case of a public official is that the suit must be instituted for acts
purported to be done by him in his official capacity. There is no stipulation in the
section as regards suits instituted against the government.
7. Any act purporting to be done in his official capacity includes illegal omissions as
well.
8. It covers future as well as past acts of such official.
9. It means a series of acts and is applicable even in cases of misfeasance or nonfeasance.
10. The act must be such as is done or would have been done in the normal course of
his official duties.
11. The notice must either be served on the person concerned or left at their office.
12. The person entitled to receive the notice in such cases is(a) Where a suit is instituted against the Central Government but not the Railway
department, a Secretary to the Government
(b) Where a suit is instituted against the Central Government and it relates to the
Railway, the General Manager of Railways
(c) Where a suit is instituted against the Government of Jammu and Kashmir, the
Chief Secretary to the Government
(d) Where a suit is instituted against any other State Government, a Secretary to
such Government or the Collector
(e) Where a suit is instituted against any public official, such public official
7. The notice must state the cause of action, the name, description and place of
residence of the plaintiff and the relief sought by him.
8. It must be stated in the plaint that such a notice has been sent.
9. The notice is not a mere formality. It is sent so that the government is given ample
opportunity to decide on the legality of the issue with the help of its advisors and
public money is not wasted.
10. The provision of S.80 as regards notice is mandatory and no exception must be
made.
11. Where however immediate relief is sought, the suit may be instituted without
giving such notice and with the leave of the court. But, no relief shall be granted
without giving the government or public official an opportunity to be heard.
12. The Government or public official concerned may even waive the requirement of
notice.
13. However, where the court feels that no immediate relief is sought after hearing
both parties, it may return the plaint to be presented after complying with the
necessary requirements of notice.
14. No suit instituted under this provision shall be dismissed on the ground that there
is any error or defect in the notice where the notice mentions the name,
description and place of residence of the plaintiff and substantially indicates the
cause of action and the relief sought.
15. For calculating the period of limitation as regards suits instituted against the
government, the period of notice must be excluded.
16. S.81 provides that where a suit is instituted against a public official for act(s)
purported to be done in his official capacity, he shall not be arrested and his
property shall not be attached, unless the same is for execution of a decree.
17. Further, he cannot be called upon to attend the proceedings of the court where the
court is of the opinion that such attendance would be a detriment to public
service.
18. S.82 provides that where a decree is passed against the Government or a public
official, the same shall not be executed except where it remains unsatisfied for a
period of 3 months from the date of passing of the decree.
19. Such a decree shall be executed where it is passed by a court or any other
authority and where the decree is capable of being executed as a decree under the
CPC or any other law in force.
Provisions under Order 271. Rule1 provides that in case of a suit by or against the government, the plaint or
written statement shall be signed by any person appointed by the government in
this regard by way of a general or special order.
2. The plaint or written statement shall be verified by a person appointed by the
government and who is aware of the facts of the case.
3. Rule 2 provides that any person who is ex officio entitled to represent the
government in judicial proceedings or is authorized by the government in this
regard shall be the recognised agent who shall makes appearances, applications
and do acts on behalf of the government.
4. The government pleader shall be the agent of the government for receiving all
court processes. (Rule 4)
5. In fixing the date for the hearing, the court must have due regard to the
communications made to the government, issue of instructions to the government
pleader to appear, etc. (Rule 5)
6. Such time limit may be extended by the court but not beyond 2 months in
aggregate.
7. An extension may also be granted where a public official is the defendant and he
takes leave from the court to make a reference to the government before he
answers the allegations in the plaint. (Rule 7). This is also because in every suit
against a public officer, the government is deemed to have been joined as a party.
(Rule 5-A)
8. Where the government decides to take defence for acts done by a public official,
the government pleader after having been authorized in this regard shall make an
application to the court and the court shall cause his name to be entered into the
register of civil suits. (Rule 8)
9. Where no such application is made by the government pleader on or before the
date of hearing as fixed by the notice, the proceedings shall be deemed to be as
between private parties.
10. However, the public official in such case cannot be arrested or his property cannot
be attached, except where it is for execution of a decree.
11. The court also has the duty to assist the parties in arriving at a settlement where it
is of the opinion that such settlement is possible. It may also grant an adjournment
for such purpose. (Rule 5-B)
12. The court may even direct the attendance of any person who may be able to
answer material questions as regards the matter on behalf of the government
where such person doesnt appear in court without the government pleader. (Rule
6)
13. No security is required to be furnished by the government or the public official.
5.2.
9. In such case, the service shall be made either on (a) one or more of the partners or
(b) at the principal place of business of the firm upon the person who is in charge
of the management of such place at the time.
10. Such service shall be made whether or not any of the partners are in India at the
time.
11. However, where to the knowledge of the plaintiff, the partnership stands
dissolved, service of summons shall be made on any of the persons who are in
India at the time and who are sought to be made liable.
12. Where a summons is served, the person so served must also be given a notice as
regards the capacity in which he is being sued, i.e. whether as a partner or as a
person in charge of the partnership business or both. (Rule 5)
13. Where no such notice is given, the person shall be deemed to have been sued as a
partner.
14. Where summons is served on a person who is in charge of the partnership
business, he need not appear unless he is a partner of the firm which is sued. (Rule
7)
15. The partners shall be required to attend and appear at the proceedings individually
though the proceedings shall be continued in the name of the firm. (Rule 6)
16. Where a partner dies, before the institution of the suit or during its pendency, it
shall not be necessary to join his legal representatives as parties to the suit. (Rule
4)
17. However, this shall not bar such legal representative from exercising his right as
being made a party to the suit or enforcing any claim against any of the surviving
partners.
18. Rule 8 provides that a person who has been served summons under Rule 3 may
appear in protest stating that he was not a partner of the firm when the issue arose.
19. Thereafter, such person or the plaintiff may apply to the court anytime from the
date fixed for the hearing till the date of final disposal of the suit to determine
whether the person was a partner at the material time and whether he is liable.
20. Where the court makes a finding that the person was in fact a partner, the person
shall continue to be sued. However, this shall not mean that the person cannot put
up a defence denying the liability of the firm as regards the matter.
21. If the court makes a finding that he is not a partner, the suit shall proceed as it is
and the plaintiff shall not be allowed to sue such a person.
22. Order 30 also applies to suits instituted by one or more partners against the firm
or between firms having certain common partners. In such case, execution may be
issued only with the leave of the court.
23. Thereafter, the court may even direct accounts and enquiries to be made at the
time of the execution.
24. Order 20 Rule 15 provides for a preliminary decree to be passed for dissolution of
a partnership firm before passing a final decree.
25. Order 21 Rules 49 and 50 deal with execution of decrees against partnership
firms.
26. A decree for attachment of partnership property can be filed only where the
decree is passed against the firm or any of its partners.
27. Where the decree holder applies to the court to charge the interest of any partner
in the firm, the court may continue to do so.
28. It may even appoint a receiver to receive the profits earned from the share of the
partner.
29. A sale may also be ordered of such interest.
30. However, the other partners shall have the option to redeem such interest or to
purchase the interest where is sale is carried out.
31. The decree against the firm may be executed against the following(a) Any property of the firm
(b) Any person who is either a partner or a person in charge of the business of the
firm and summons has been served on such person and he has appeared in the
proceedings
(c) Any partner on whom summons have been served and he has failed to appear
(d) Any other person, where the decree holder applies to the court to grant leave
to sue such person and the same is allowed. In this case, the liability of the
person may either not be disputed or it may be disputed and thus his liability
must first be determined by the court before the decree may be executed
against him.
1. Where a decree is passed against the firm, except where it is passed against its
property, only those partners shall be made liable or be affected by it as were
served the summons to appear and answer.
2. Rule 10 of Order 30 deals with cases where an HUF is carrying on business in any
name or any person is carrying on business in any other name or style other than
his own. In such cases, such person(s) shall sue and be sued in such name as if it
were a firm name. The provisions of Order 30 shall be accordingly made
applicable in such cases.
5.3.
5.4.
1. Order 32 deals with suits by or against minors and persons of unsound mind.
2. This is so that these persons are represented by someone qualified to represent
them.
3. Rule 15 states that the provisions of rules 1 to 14 as regards a minor shall also be
applicable to a person who is adjudged an insolvent before or during the pendency
of proceedings of the court or where the court on an enquiry feels that even
though the person is not adjudged so, because of mental infirmity, such person is
incapable of protecting his rights.
4. The provisions of the order however shall not be applicable to the ruler of any
foreign state who is suing or being sued in the name of such state or where he is
being sued by the Central Government in the name of an agent or in any other
name.
5. This Order shall also not affect the provisions of any local law for the time being
in force relating to minors or persons of unsound mind or lunatics.
6. A minor is a person who has not attained 18 years of age.
7. However, where the court has appointed a guardian or next friend for the minors
person or property or where his property is under the supervision of the Court of
Wards, the age of majority shall be 21 years.
8. Please note the minor shall be represented by a next friend where he institutes a
suit and he shall be defended by a guardian when he defends the suit.
9. A minor shall be represented by his next friend in any suit instituted by him. (Rule
1)
10. This is because a minor is not capable of making informed judgment as per the
law.
11. A minor may bind himself when there is something concerning his benefit.
12. But, where a decree is passed against a minor, it shall be void unless there is a
guardian or next friend of such minor. Similar is the case of a lunatic.
13. Where a suit is instituted by a minor or on behalf of a minor without a next friend,
the defendant may apply to the court to have the plaint removed from the file.
(rule 2)
14. The person who had presented the plaint shall be notified about the application
and he shall have the right to object to the same.
15. After hearing the objections, the court shall make an order on the matter.
16. The court may even order that where a suit is instituted on behalf of the minor by
his next friend, security of costs incurred or likely to be by the defendant be paid
by such person. (rule 2-A)
17. Where the person filing the suit is an indigent person, the security shall include
the court fees payable to the government.
18. Rule 3 deals with instances where a suit is instituted against a minor who is not
represented by a guardian.
19. In such cases, the court shall appoint a competent person as guardian on an
application on behalf of the minor or by the plaintiff.
20. Such person to be appointed must prove that he does not have any interest adverse
to the interests of the minor as regards the matter concerning the suit. Further, he
must prove that he is fit to be appointed so.
21. Before any order appointing a guardian is passed by the court in such cases, a
notice shall be given to the guardian of the minor, if there is any or where there is
no such guardian, to the father of the minor and where there is no father, to the
mother and where there is no mother, to any other natural guardian of the minor.
Where there is no other natural guardian, the notice shall be given to such person
in whose care the minor is.
22. The court shall pass an order appointing the guardian only after hearing the
objections of the person so notified.
23. The court may even give notice to the minor.
24. A person appointed as a guardian under this rule shall continue to represent the
minor in all proceedings including appellate and revision proceedings and
proceedings for execution of a decree.
25. Such person shall continue to represent the minor till his resignation, removal or
death.
26. Rule 3-A further states that no decree passed against a minor shall be set aside on
the ground that the next friend or the guardian had an interest in the subject matter
of the suit which was adverse to the minors interest.
27. However, where the minor is prejudiced due to the acts of the guardian or next
best friend in such situation, the same may be a ground for setting the decree
aside.
28. The minor may even obtain relief for any loss caused to him by the misconduct or
gross negligence on part of the guardian where the suit results in prejudicing the
interests of the minor.
29. Rule 4 states that the following rules for a person to act as guardian or next friend
for a minor(a) Any person who is of sound mind and has attained majority.
(b) Provided such person does not have any interest adverse to that of the minor
as regards the subject matter of the suit
(c) Provided that where he is the next friend, he is not the defendant in the suit
and where he is the guardian, he is not the plaintiff in the suit.
(d) Where any person is appointed by a competent authority as such next friend or
guardian, no other person shall act as the minors next friend or guardian
except where the court is of the opinion that this is required for the welfare of
the minor
(e) No person shall be appointed a next friend or guardian unless he consents to
the same in writing
(f) Where there is no person is fit and willing to act as the guardian or next
friend, the court may appoint any of its officers to act in this regard.
(g) Any costs incurred by such officer shall be payable by either of the parties or
from a fund of the court in which the minor is interested or from the estate of
the minor.
When minor attains majority1. Where the minor attains majority and he is a plaintiff in a suit or where there is an
application pending on his behalf, he may either elect to proceed with the suit or
abandon it.(Rule 12)
2. Where he decides to proceed with the suit, he shall proceed with the same in his
own name and have the next friend discharged.
3. Where he decides to abandon the suit, he shall apply to the court to dismiss the
suit or application on payment of costs.
4. However, notice of such dismissal must be given to the next friend.
5. Further, suits in such cases may even be dismissed ex parte.
6. Rule 13 deals with the situation where the minor is one of the co-plaintiffs.
7. In such a case, where the minor seeks to abandon the suit and the court is of the
opinion that he is not a necessary party, it shall strike his name off as the plaintiff
on payment of certain costs.
8. Notice of the same must be given to the next friend, the other co-plaintiffs and the
defendant.
9. Where the minor is a necessary party, the court may direct that he be made the
defendant.
10. Rule 14 provides that when a minor attains majority, he may even apply to the
court to dismiss the suit stating that it is unreasonable and improper.
11. Where the court is of the opinion that the suit is indeed unreasonable and
improper, it shall direct that the suit be dismissed and costs for the same be paid
by the next friend.
5.5.
1. Such provision has been made so that poor people may seek relief by way of
filing civil suits and they are not made to undergo hardships.
2. These provisions exempt a person from paying the court fee at the time of
presentation of his plaint and allow him to proceed forma pauperis subject to
certain conditions.
3. Order 33 deals with the same.
4. Rule 1 defines an indigent person as one who(a) Does not have sufficient means to pay the court fees prescribed for the suit
(b) Where no court fees is prescribed, such person who is not entitled to property
worth Rs.1000
5. In both these cases, the property which may not be attached for execution of a
decree or the subject matter of the suit shall be exempt while calculating whether
the person is an indigent person.
6. However, property acquired after filing the application to sue as an indigent
person and before the court gives a decision on such application shall be taken
into consideration.
7. Where the plaintiff sues in a representative capacity, the means he possesses in
such capacity shall be considered.
8. The word person in such case shall also include a juristic person. (case law)
9. Every question as to whether or not a person is an indigent person shall be
determined by the chief ministerial officer of the court or in a manner in which the
court directs. The court may either adopt the report of the officer or may make a
separate enquiry. (Rule 1-A)
10. Rule 2 provides that every application to sue as an indigent person should contain
the same particulars as that of a plaint. It must also contain a statement as regards
the immovable and movable property possessed by the person and the estimated
value of the same.
11. This must be signed and verified in the same manner as pleadings are verified.
12. The application may either be presented in person by the applicant or by his
agent, where he is exempted from appearing before the court. (Rule 3)
13. Where the application is in a proper form and has been duly presented, the court
may examine the applicant where he appears in person or his agent as regards the
merits of the claim and the property of the applicant. (Rule 4)
14. The court may even issue commissions for examination of the applicant where he
is exempted from appearance and the application is presented by the agent.
15. The application stands to be rejected in the following cases(a) When it has not been filed in the manner prescribed
(b) When the applicant is not an indigent person
(c) Where the applicant has within 2 months before filing the application
disposed off his property fraudulently or he has done so to be able to sue as an
indigent person. However, where even if the property was not disposed off,
the applicant would have been an indigent person, the application will not be
rejected.
(d) Where the applicant enters into an agreement with another person with respect
to the subject matter of the property and thus such person gets an interest in
the subject matter.
(e) Where any other person has entered into an agreement with him to finance the
litigation.
(f) Where the allegations made in the application shows no cause of action.
(g) Where the allegations made in the application show that it would be barred by
any law for the time being in force.
16. Thereafter, the court shall fix a day where the applicant shall be allowed to put
forth evidence showing that he is an indigent person. (Rule 6)
17. At least 10 days notice must be given to the government pleader and the opposite
party in such cases so that they may try to disprove the applicants claim of being
an indigent person.
18. At the hearing, the court shall examine the parties as well as their witnesses. (Rule
7)
19. The witnesses will only be required to be examined as regards whether or not the
applicant is an indigent person and whether or not the applicant has disposed off
any property fraudulently or to be adjudged an indigent person within 2 months
before the application.
20. The parties shall be examined as regards all matters specified under Rule 5
(grounds for rejection).
21. The parties may also put forth any argument as regards the application or the
evidence adduced.
22. Thereafter, the court shall decide whether to allow or disallow the applicant to sue
as an indigent person.
23. Where the application is allowed, the application shall be treated as the plaint in
the suit and ordinary proceedings as in a suit shall commence. However, the
applicant will not be required to pay the court fees or any other fees as regards
service of any process, appointment of a pleader, etc. (Rule 8)
24. However, under Rule 9, such permission granted may be withdrawn on an
application of the defendant or the government pleader.
25. A clear notice in writing of such withdrawal must be given to the applicant.
26. The application may be withdrawn where(a) It is shown that the applicants conduct was vexatious or improper.
(b) It is shown that the applicant has the required means and is not an indigent
person.
(c) It is shown that the applicant entered into an agreement with a third person as
regards the subject matter of the suit and thus the third person has acquired a
right as regards the property.
27. Where the plaintiff succeeds in the suit, the court fees that would have been paid
by him had he not been adjudged an indigent person shall be paid by such person
as the decree may order to the State Government.
28. Where the plaintiff (a) fails in the suit or (b) the permission granted to him to sue
as an indigent person is withdrawn or (c) where the suit is withdrawn or dismissed
because the summons on the defendant is not served properly due to the failure of
the plaintiff to pay court fees or postal charges or because the plaintiff does not
appear at the time of hearing, the court shall order the plaintiff or his co-plaintiff
to pay the court fees which he would have had to pay had he not been an indigent
person. (rule 11)
29. Where the plaintiff or his co-plaintiff, suing as indigent persons die, the State
Government may recover the court fees from the estate of the deceased. (Rule 11A)
30. In both the abovementioned cases (Rules 11 and 11-A), the amount shall be
recoverable by the Collector when a copy of the order is forwarded to him. (rule
14)
31. Where the application of a person to sue as an indigent person has been refused,
he shall not be allowed to sue in such capacity at a later stage. (rule 15)
32. However, he may institute an ordinary suit provided he pays the costs incurred by
the defendant and the State Government in opposing his application.
33. Such payment must be made either at the time of institution of the suit or at any
other time as may have been specified. The court shall be at the discretion to
extend such time period from time to time.
34. Further, the suit will be deemed to have been instituted on the day the application
to sue as an indigent person was filed.
35. A defendant setting up a counter claim or set-off may even do so in the capacity
of an indigent person. In such case all the provisions applicable to the plaintiff
suing as an indigent person will become applicable to him. (Rule 17)
36. Rule 18 empowers the Central or State governments to make provisions for
providing free legal services to indigent persons.
37. The High Court may implement the same with the leave of the State government.
38. These provisions may state the nature and extent of legal aid, the matters to which
they shall relate, the agencies which shall provide for legal aid, etc.
Unit VI- Interpleader suits
1. To interplead means to litigate with one another to settle a point concerning a
third party.
in an ordinary suit. It may even make any of the defendants the plaintiff in
such case.
14. Rule 5 provides that a where there is a landlord and tenant relationship, the tenant
cannot sue his landlord to interplead with another except where such other claims
through the landlord.
15. Similarly, where there is a principal and agent relationship, the agent cannot sue
the principal to compel him to interplead with a third party except where such
third party claims through the principal.
16. For e.g. where A, the principal deposits his valuables with his agent, B and C, a
third person claims that A had wrongfully obtained the jewels from him and thus
claims them from agent B, the agent cannot interplead A and C.
17. However, where A, the principal deposits his valuables with his agent, B and tells
C that such valuables shall form security for a debt owed to C by A and later
claims that he has satisfied his debt to C and C claims the contrary, B may
institute an interpleader suit between them to decide who is the rightful claimant.
18. What is important is whether in such case, the defendants have rivaling claims.
19. For the purpose of payment of costs to the plaintiff in an interpleader suit, the
court may even give him a charge over the assets claimed. (Rule 6)
Unit VII- Summary Trial
1. The objective of a summary trial is to prevent unnecessary obstruction by a
defendant who has no defence and come to a conclusion in an expeditious
manner.
2. A summary trial is one where the defendant is not be allowed to put up a defence
where he has none.
3. Order 37 deals with the same.
4. Summary trials may be conducted in High Courts, City Civil Courts or Courts of
Small Causes. (rule 1)
5. It may also be conducted in certain other courts. However, the High Court may by
notification in the Official Gazette order that only a particular category of suits
may be tried by such court.
6. Rule 1 also provides the subject matter pertaining to a summary trial.
7. A summary trial shall be allowed only in the following cases(a) Where there are suits upon bills of exchange, hundis and promissory notes
(b) Where there are suits relating to a debt or a liquidated demand for money
based on a written contract OR is fixed by an enactment to be a debt or a fixed
sum of money which is not a penalty OR that which is based upon a guarantee
where the principal debtor is liable only for a debt or a liquidated demand for
money.
7. Rules 2 and 3 deal with the procedure in case of a summary trial.
8. The plaintiff while filing a plaint under this provision shall specifically state so
and shall also state that the relief claimed by him falls within the ambit of the
provision.
9. Thereafter, summons shall be served on the defendant stating that the plaintiff
wishes that the suit be tried summarily. The summons shall be in form 4 in
appendix B or such other form as may be prescribed.
10. The summons shall also be accompanied by the plaint and any other annexure to
the same.
11. The defendant shall be deemed to have been duly served with the summons where
the same is left at the address given by him for such service.
12. The defendant may within 10 days from the date of service of summons enter an
appearance either personally or by way of his pleader.
13. A notice of such appearance shall be given to the plaintiff or his pleader on the
date when the appearance is entered.
14. The plaintiff shall thereafter serve on the defendant, summons for judgment under
Form 4-A stating the cause of action, amount claimed and also stating that he
believes that there is no defence.
15. This summons is returnable within a period of 10 days.
16. The defendant within such period of 10 days may apply to the court on such
summons for leave to defend the suit by stating on affidavit such facts as may
entitle him to defend the suit.
17. The court shall not refuse leave to defend unless where there is no substantial
defence or unless the claim of the defendant is frivolous and vexatious.
18. Where the defendant admits that he is entitled to pay a certain amount claimed by
the plaintiff, the defendant will not be allowed leave to defend unless he deposits
such amount in court.
19. At the hearing of the summons for judgment, where the defendant has not applied
for leave to defend or where he has applied for such leave but the same has been
rejected, the plaintiff shall be entitled to the judgment.
20. Where the defendant is allowed leave to defend, the court shall require him to pay
certain security and if he does not pay such security within the stipulated time
period, the court shall decide in favour of the plaintiff.
21. The court may for sufficient cause shown excuse any delay on the part of the
defendant in entering his appearance or applying for leave to sue.
22. Where the court passes a decree in favour of the plaintiff, it may if it deems
necessary set aside such decree or its execution and give the defendant leave to
defend the suit on terms as it deems fit. (Rule 4)
23. The court may even order that a bill of exchange, hundi or promissory note upon
which the suit is founded be deposited with an officer of the court. (Rule 5)
24. The proceedings may even be stayed till the plaintiff gives security for such bill of
exchange, hundi or promissory note.
25. The holder of a dishonoured bill of exchange or promissory note shall have the
same remedies for expenses incurred by him for noting the non-acceptance or
non-payment caused by the dishonour as that is available in case of recovery of a
certain amount under such negotiable instrument. (Rule 6)
26. The difference between summary suits and ordinary suits is as follows(a) In summary suits, the defendant is not allowed to defend except on the
fulfillment of certain conditions and with the leave of the court
10. The injunction may not be granted where there is delay on the part of the
applicant or where the applicant does not come to the court with clean hands, etc.
11. Order 39 deals with the circumstances under which a temporary injunction may
be granted.
12. Rule 1 provides that the court shall issue a temporary injunction where the
following is proved by way of affidavit or otherwise(a) The property in dispute is likely to be destroyed or damaged or alienated by a
party to the suit or wrongfully sold in execution of a decree.
(b) The defendant threatens or intends to remove or dispose off his property in
order to defraud his creditors.
(c) Where the defendant threatens to dispossess the plaintiff or cause injury to the
plaintiff as regards the property in the suit.
11. Granting an injunction being an inherent power of the court, it may even grant for
an injunction on grounds that are not specified in Rule 1.
12. Rule 2 further provides that where the suit has been instituted to remedy the
breach of a contract or to restrain the defendant from committing an injury of any
other kind, the plaintiff may apply to the court for a temporary injunction to
restrain the defendant from committing such breach or injury or any other breach
or injury that is likely to arise from the contract or property in dispute.
13. The court may grant the injunction subject to certain terms such as the duration of
the injunction, keeping an account, giving security, etc.
14. Where the person to whom the injunction is issued under Rules 1 and 2 continues
to commit such breach, injury, etc., the court which ordered the injunction or any
other court to which the suit was subsequently transferred, may require that the
property of the person disobeying the injunction is attached for a period not
exceeding one year after which it may be sold and the amount recovered may be
paid as compensation to the injured party. (Rule 2-A)
15. The court may even order that such person be imprisoned for a period not
exceeding 3 months in a civil prison, unless his release is ordered before such
period.
16. The court may require that before granting an injunction, the person applying for
an injunction notify the opposite party as regards the same. (rule 3)
17. Where the court is of the opinion that the purpose of the injunction would be
defeated due to the delay caused by giving the notice, it shall record the reasons
for the same and allow the injunction subject to the following conditions(a) A copy of the affidavit filed in support of the application be sent to the
opposite party by the applicant on the day the injunction is granted
(b) A copy of the plaint is sent to the opposite party by the applicant on the day
the injunction is granted.
(c) The applicant should send copies of the document he relies upon to the
opposite party on the day the injunction is granted.
(d) The applicant shall file an affidavit stating that the abovementioned copies
have been sent, either on the day the injunction is granted or on the day
immediately after.
17. As a general rule, an ex parte injunction will not be granted except in certain cases
where the applicant shall suffer irreparable loss where the same is not granted,
where refusal to grant such injunction would involve greater injustice than its
grant would involve, etc. (Morgan Stanley v. Kartick Das)
18. Rule 3-A provides that where the court grants an injunction ex-parte, the court
shall dispose off the application within 30 days of grant of injunction. Where it is
delayed beyond such period, the court shall state reasons for the same.
19. Where a party is dissatisfied by an order for injunction, he may apply to the court
which may vary or set aside or discharge such injunction. (rule 4)
20. However, where the party has been given an opportunity to be heard, the court
shall not allow such an application except where the circumstances have changed
or where it is of the opinion that undue hardship has been caused to such party.
21. Where a party obtaining the injunction has knowingly made a false or misleading
statement as regards the injunction and notice of the injunction has not been sent
to the other party, the court shall vacate the injunction unless where it feels that
the same is not required in the interests of justice.
22. Rule 5 stipulates that an injunction against a corporation shall be binding on all
officers and members whose conduct it seeks to restrain.
23. An order granting or refusing an injunction being a case decided, a revision may
be ordered against the same. (case law)
24. S.95 provides that where injunction was obtained by the plaintiff on insufficient
grounds or where the suit of the plaintiff fails and it appears to the court that there
exists no reasonable ground for instituting the suit, the court on an application
made by the defendant may order the plaintiff to pay an amount not exceeding
Rs.50, 000 for the expenses incurred by him or any injury caused to him.
Interlocutory orders1. On an application made to it by a party to the suit, the court may order sale of
property which is the subject matter of the suit. (Rule 6)
2. This is done where such property is susceptible to speedy or natural decay or
where there is any other just or sufficient cause to do so.
3. The court may appoint the person who shall carry out such sale by way of the
order.
4. The plaintiff may file such an application anytime after the institution of the suit
and the defendant may do so anytime after his appearance. (Rule 8)
5. The court may issue a notice to the opposite party in such case except where the
purpose of sale will be defeated due to the delay caused by issuing a notice.
6. The court under Rule 7 may also order that(a) Such property be detained, inspected or preserved.
(b) An officer of the court be authorized to enter any land or building in
pursuance of detention or inspection or preservation of the property.
(c) Samples of such property be taken for observation or experimentation.
7. Rule 9 deals with cases where a land from which the government gets revenue or
a tenure (??) which is liable for sale are the subject matter of the suit.
8. In such a case where a person neglects to pay such revenue or amount due to the
proprietor of the tenure and a sale of the land or tenure is ordered, any party to the
suit who is interested in the land/tenure may after payment of the revenue or
amount due before the sale is ordered shall be put in possession of such
land/tenure.
9. The court may even ask the defaulter to pay the amount due with interest within a
specified time period for the purpose of adjustment of accounts.
10. Rule 10 deals with cases wherein a person holds money or other thing which is
capable of being delivered as a trustee for another party.
11. In such case, the court may ask the person holding the money or other thing to
deposit it with the court.
12. It may even ask the person to subsequently deliver the money or thing to the other
party on whose behalf he holds the property.
13. The order passed by the appellate authority shall be deemed to be final and
operative.
14. The appellate authority may either reverse the decision of the lower court or it
may modify it or it may dismiss the appeal, thereby upholding the decision of the
lower court.
15. The High Courts also possess revisional jurisdiction alongwith their appellate
jurisdiction.
16. The distinction between the two is that in case of an appeal, the court may rehear
the case on the basis of both law and fact, unless either of them is barred by
statute. However, in case of a revision, the court can only go into the matters of
law and decide as to whether the lower court has followed the procedure
established by law.
17. In case of revision, the higher court cannot re-examine the evidence put before the
lower court, unless the same is provided by statute.
18. A first appeal is one passed against a decree of the original court while a second
appeal is one passed against the decree of the first appellate court.
19. In a first appeal, questions of law, fact or both may be brought up while in case of
a second appeal only a substantial question of law may be brought up.
20. A first appeal may be filed in a court which may or may not be a High court while
a second appeal must necessarily be filed in the High court.
21. In case of a letters patent appeal may be filed against the decision of a single
judge of a High court to a division bench. But, there is no letters patent appeal
from the decision of a single judge in case of a second appeal.
22. The court may exercise its inherent powers to pass appropriate orders under
S.151 and allow for conversion of an appeal to a revision and vice versa provided
such revision or appeal has been filed within the time prescribed for filing such
proceedings. There is however no limitation on the application for conversion.
23. S.96 of the CPC provides for the right to appeal from the decree passed by a court
exercising original jurisdiction.
24. It does not however state as to who may file an appeal.
25. However, before filing an appeal, the following 2 things must be kept in mind(a) The subject matter of such appeal must be a decree and thus there must be a
conclusive determination of the rights of parties as regards all or any matters of
controversy in the suit.
(b) The party appealing must have been adversely affected by such decree.
26. The party appealing must thus necessarily be an aggrieved person or his legal
representatives.
27. Such person need not be a party to the suit where he gets the leave of the court in
this regard by showing that he has infact been aggrieved by the decree passed.
28. Thus, it must be shown that he is either bound by the decree or that it prejudicially
affects his interests.
29. This may be decided by examining as to whether or not such decree would
operate as a res judicata against him.
30. Thus, the following persons may file an appeal(a) Any party to the original proceeding or his legal representatives
(b) Any person claiming under such party or a transferee of interests of such party
(c) Any person who has been appointed by the court as the legal guardian of a
minor
(d) Any other aggrieved person after taking the leave of the court
31. A party who agrees not to appeal or waives such right will not be allowed to
appeal later where such agreement is given in clear and unambiguous terms.
32. Also a party who takes the benefits under a decree may be estopped from filing an
appeal thereafter.
33. As per S. 96(2), there may be an appeal even against an ex parte decree.
34. Further, according to S. 96(3), there can be no appeal in case of a consent decree
or a decree which is passed with the consent of the parties.
35. Such consent may be in the form of a lawful agreement or a compromise or it may
even be presumed from the conduct of the parties.
36. However, where it is shown that the factum of the compromise is in dispute or
that the compromise or agreement has not been lawfully arrived at, this provision
shall not apply.
37. S. 96(4) which was inserted by the 1976 amendment introduces a bar against
appeal in petty cases.
38. It states that where a suit is cognizable by the Court of Small Causes and the
subject matter of such suit does not exceed Rs.10,000, an appeal shall only lie on
a substantial question of law and not otherwise.
39. An appeal lies against a preliminary decree. This is simply because the
preliminary decree is merely a stage before complete execution which takes place
in case of a final decree.
40. Hence, if a party fails to appeal from a preliminary decree, he shall be precluded
from appealing against the final decree. (S.97) Conversely , where an appeal
against a preliminary decree is allowed and such decree is set aside, the final
decree automatically falls apart.
41. There is always an appeal against a decree and not against a judgment. However,
where a decree has not been drawn up, an appeal may be filed against a judgment.
(Order 20 Rule 6-A)
42. There can however be an appeal only against a decree or an appealable order
(S.143 r/w Order XLIII Rule1). There can be no appeal against the finding of a
court which is not in the nature of a decree or an appealable order.
43. However, under Order XLI Rule 22, any respondent may file cross objections
against a finding of the court with respect to an issue which ought to have been
ruled in his favour, even where he has not filed an appeal, provided he does so
within a month from the date on which notice fixing the date of hearing of the
appeal has been served against him.
44. Further, even where the decree is wholly or in part in his favour, the respondent
may file cross objections against any finding of the court against him.
45. There can be no appeal against a dead person and an application substituting such
person by his legal representatives must be filed. The appeal will then be taken to
have been filed on such date as the application is made.
46. While filing an appeal, a memorandum of appeal must necessarily be submitted.
been received by the trial court, if the appellant makes a sworn statement on
affidavit that according to his personal knowledge the appellate court has infact
made such order, the proceedings or execution shall be stayed.
60. Rule 5 also states that where an application for stay of execution of a decree has
been made before the expiration of the time for preferring an appeal, the Court
which passes such decree may after showing sufficient cause stay such execution.
61. However, for stay of execution of decree in both these abovementioned cases, the
following must be shown(a) That the party asking for stay would suffer substantial loss if such order is not
passed.
(b) The application for stay has been made without any unreasonable delay.
(c) Security has been given by the given by the applicant for the due performance
of such order/decree as may be binding on him later.
62. The court may also stay the execution ex parte pending the hearing of the
application for stay.
63. However, there shall be no stay if the requisite security amount is not deposited
with the court.
64. Rule 10 states that the court on application made by the respondents may require
the appellant to deposit security for costs to be incurred for the appeal or the
original suit or for both, either before or after the respondent is called upon to
appear and answer.
65. Incase of appellants who are not residents of India and have no substantial
immovable property in the country except probably for the one involved in such
suit, security shall be demanded in all cases.
66. Where such security is not furnished within the requisite time period, the court
shall reject the appeal. However, an application to restore such appeal even after
rejection may be made within a period of 30 days from such rejection.
67. The limitation act provides that the period of limitation for filing an appeal before
the High Court is 90 days from the date of the decree and in case of any other
court, within 30 days from the date of the decree.
68. Rule 3-A of the CPC however states that delay in filing an appeal may be
condoned if an application stating reasons for the same and an affidavit are given
to the court. If the court then wishes to allow the appeal, it shall send out notices
to the defendant.
69. Where an application to condone such delay has been made, the appellate court
shall not stay an execution of a decree unless it decides to hear the appeal as under
Rule 11.
70. Further, under Rule 6, on an application made by the appellant, the appellate court
may either on its own or by directing the lower court order that security be taken
for restitution of any property taken in the execution of the decree or order
payment of value of such property.
71. Also, under this rule where under the original decree, sale of an immovable
property has been ordered, the appellate court may order stay of such sale as
security till the time the appeal is disposed off.
72. The powers conferred under Rules 5 and 6 are exercisable not as regards an
appeal from a decree but an appeal from an order for execution of the decree.
(Rule 8)
73. Rule 11 deals with summary dismissal of appeal by the appellate court after
hearing the appellant or his pleader on the fixed day.
74. The appeal may also be dismissed where the appellant does not appear before the
court on the day so fixed.
75. The dismissal shall be notified to the court which originally passed the decree.
76. Where the appellate court is not the High Court, it shall record its reasons for
dismissing the appeal, give a judgment on the same and draw up a decree.
77. Every appeal under this provision shall be heard within 60 days from the date of
filing the memorandum of appeal. (Rule 11-A)
78. Where the appeal is not dismissed as under Rule 11, a day shall be fixed for
hearing of the appeal under Rule 12.For the same, a notice shall be issued which
shall be affixed to the Appellate court house and shall also be sent to the court
from whose decree or order an appeal has been sought. (Rule 14)
79. The lower court shall then serve the notice on the respondent in the same way as a
summons is served. However, the notice may even be served by the appellate
court itself.
80. The notice shall be accompanied by the memorandum of appeal.
81. It shall not be necessary to serve a notice of any incidental proceedings in the
Appellate court on the respondent unless he was impleaded the first time in the
court or where he has appeared before the court of first instance and filed his
address for service or where he appears in appeal. However, nothing shall bar
such respondent from defending the appeal. (Check-not important)
Procedure of Hearing1. Where the appeal has not been dismissed summarily, a date for hearing the
appellant shall be fixed. Where the Appellate court does not dismiss the appeal at
once, it shall hear the respondent as well.
2. Where the appellant fails to appear on the day fixed, the appeal shall be
dismissed. Where the respondent does not appear, the Appellate court shall decide
against him ex parte. (Rule 17)
3. However, where an appeal has been dismissed under rules 11 or 17, the appellant
may apply to the court to re-admit the appeal and where it is shown that there was
sufficient cause for non-appearance, the court shall allow the appeal to be
admitted again.
4. Where the appeal has been decided ex parte, the respondent may apply to the
court to re-hear the appeal and the court will allow the same where the respondent
proves that the notice was not duly served on him or that he was prevented due to
some other sufficient cause from appearing.
5. Further, where the court is of the opinion that a party to the suit in the lower court,
who is not a party to the appeal, is interested in the appeal, it shall adjourn the
hearing and make such person a respondent in the appeal. (Rule 20)
6. Rule 22 deals with cross objections. (Very important)
7. Where the suit is partly decided in favour of the appellant and partly in favour of
the respondent, and where any of the parties files an appeal, the opposite party
may take the following recourse(a) He may file a cross appeal against the part of the decision which is against
him.
(b) He may file a cross objection against the part of the decision which is against
him.
(c) He may support the decree on the grounds decided in his favour as well as
those against him.
8. The main difference between a cross appeal and a cross objection is that a cross
appeal involves two distinct and independent proceedings while cross objections
are taken in the same proceeding.
9. Cross objections can be filed by a respondent where he could have appealed
against any part of the decree or where he is aggrieved by a finding in the
judgment even though the decree is in his favour due to some other finding.
10. Cross objections are generally filed against an appellant. However, they may also
be filed against co-respondents where the appeal cannot be proceeded with
without deciding issues between respondents inter-se.
11. However, there can be cross objections against a person who is not a party to the
suit.
12. The cross objections may be heard and decided on merits even where the appeal
has been withdrawn or dismissed for default.
13. However, they will not be heard where the appeal has become time barred or has
abated or is not maintainable as they depend on the hearing of the appeal.
14. Cross objections must be in the form of a memorandum of appeal and must be
served on other party or his pleader.
15. A respondent may file cross objections even as an indigent person.
16. The appeal and the cross objections must be heard together as they are part of the
same proceeding. Thereafter, the judgment shall be delivered on both the appeal
and the cross objections.
17. Where no cross appeal or cross objection is filed, the appellate court shall not
disturb the decree of the lower court so far as it is in the favour of the appellant.
18. Court fee is payable on the cross objection in the same manner as it is payable on
the memorandum of appeal.
19. Cross objections must be filed within one month from the date on which notice is
served on the respondent as regards the date fixed for the hearing.
Powers of an Appellate CourtI. To determine a case finally1. This is provided under S.107 and Rule 24.
2. The appellate court may determine the case finally where the evidence on record
is sufficient to enable it to do so.
3. It may or may not resettle issues in such case.
4. It is immaterial that the lower court has proceeded on an entirely different ground.
II. To remand a case1. This has been dealt with under S.107 and Rules 23 and 23-A.
2. Remand means to send back.
3. It is where the trial court has disposed the suit on a preliminary point without
recording any findings and the decree has been reversed in appeal.
4. In such cases, the appellate court shall send back or remand the case to the trial
court to decide other issues and determine the suit.
5. A preliminary point is one on which a decision may be given to dispose off the
entire suit without looking into any other issue.
6. The appellate court may even direct the trial court to admit the suit in its original
number in the register of civil suits.
7. The evidence if any was recorded the original suit shall be used as evidence where
the case is remanded to the trial court.
8. Further, under Rule 23-A, the appellate court may remand a case to the trial court
where it feels retrial is necessary even where the trial court has not disposed the
suit on a preliminary point. This suit must have been reversed on appeal.
9. Thus, reversal is an important factor. An appellate court cannot remand a case
where the judgment of the court is not satisfactory or where the lower court has
misconceived the evidence or that the conclusion has been reached by the lower
court on insufficient material.
10. An order of remand nullifies the decision of the lower court.
11. However, where a appellate court remands a case to the lower court by setting
aside only certain findings, the other findings of the lower court shall not be set
aside.
12. The appellate court shall fix a date for appearance of the parties before the lower
court.
13. An order of remand is appealable.
III. Framing issues and referring them for trial1. This has been dealt with under S.107 and Rules 25 and 26.
2. Where the appellate court is of the opinion that the lower court has omitted to
frame or try any issue or to determine any question of fact as it deems important
for giving the right decision, it may frame such issues and send the case back to
the lower court to try such issues.
3. It may even direct the lower court to take the additional evidence which is
required.
4. Thereafter, the lower court shall try the issues and return the evidence to the
appellate court with its findings within such time as may be prescribed by the
appellate court.
5. The evidence and findings of the lower court shall form part of the record of the
case.
6. Any party may file objections against such findings within the stipulated time
period.
7. Where objections are not filed, the appellate court shall proceed to determine the
appeal.
8. An order under Rule 25 is different from a remand because in case of a remand,
the entire case goes back to the lower court for a decision. However, in case of an
order under Rule 25, the case is retained in the file of the appellate court. Only the
issues are sent back to the lower court for trial and findings.
9. An order for remand is a final order and the appellate court cannot reconsider it
except on review. However, an order under Rule 25 is an interlocutory order
which may be reconsidered by the appellate court which passed it.
10. An order for remand is appealable while an order under Rule 25 is not appealable.
IV. Taking of additional evidence1. This has been dealt with under S.107 and Rules 27 to 29.
2. Additional evidence, oral or documentary may be taken by the appellate court
only in the following circumstances(a) Where the lower court has refused to admit necessary evidence
(b) Where the party adducing the evidence establishes that such evidence was not
within his knowledge even after exercising due diligence at an earlier point of
time
(c) Where such party establishes that even after exercising due diligence he could
not produce such evidence when the original decree was passed
(d) Where the appellate court requires any document or witness to be examined in
order to pass a judgment
3. The appellate court will have to record reasons for the admission.
4. Additional evidence may be taken either by the appellate court or it may direct the
lower court which had passed the decree or any other subordinate court to take
such evidence and send it to the appellate court.
5. The appellate court shall specify the points to which the evidence is restricted and
have the same recorded.
Duties of the Appellate CourtI. To decide the appeal finally
II. Not to interfere with the decree for technical errors (S.99) As per S.99-A, an order
passed by a court executing a decree should not be varied or reversed on account
of any error, defect or irregularity unless the same has prejudicially affected the
decision in the case.
III. Appreciation of evidence
IV. Recording of reasons
Judgment and Decree in Appeal-
20. It shall not be necessary for the dissenting judge to sign the decree.
21. A certified copy of the judgment and decree shall be furnished to the parties on
payment of the requisite amount.
22. A certified copy of the judgment and decree shall also be sent to the lower court.
This shall form part of the original proceedings and shall be entered into the
register of civil suits.
Second Appeals1. Ss.100 to 103, 107 and 108 and Order 42 deal with second appeals.
2. A second appeal can be filed only in case of a decree.
3. It may be filed only with the High Court against a decision in appeal of a court
subordinate to the High Court.
4. A decree passed ex parte in appeal may be appealed against as well.
5. A second appeal shall be allowed only where the case involves a substantial
question of law. The memorandum of appeal shall specifically mention such
substantial question of law.
6. A substantial question of law is one that directly and substantially affects the
rights of parties. It is not a question of general importance but one rising between
the two parties.
7. Where the High Court is satisfied that there is a substantial question of law
involved, it shall formulate such question and hear the appeal on such question.
8. The respondent shall be allowed that argue that such a question is not a substantial
question.
9. However, even where a particular question has not been formulated by the court,
the court may hear it for reasons to be recorded where it is of the opinion that
such a question is a substantial question.
10. The second appeal must be filed within 90 days from the date of the decree which
is being appealed against.
11. S.100-A provides an exception to the rule in S.100.
12. It states that no second appeal shall lie from a decree passed in appeal by a single
judge of a High Court. This shall be irrespective of the letters patent for any High
Court.
13. Another exception is that no second appeal shall lie in case of a decree where the
subject matter of the original suit is for recovery of money less than Rs.25, 000.
14. Under S.103, where there is sufficient evidence on record, the High Court may
determine an issue for the disposal of the appeal which has not been determined
by any of the lower courts or which has been determined wrongly by such lower
courts.
15. Order 42 provides that the provisions relating to first appeals shall be applicable
as far as possible to second appeals.
16. Rule 2 provides that while making an order under Rule 11 of Order 41 (dismissal
of an appeal summarily), the court shall formulate only the substantial question of
law and the appellant shall not urge that any other question be decided except
with the leave of the court.
17. The difference between second appeal and revision may be seen as follows(a) Second appeal involves a substantial question of law. Revision involves a
jurisdictional error.
(b) A second appeal can be filed against a decree passed by an appellate court.
Revision is allowed only when there is no appeal.
(c) In case of a second appeal, the High Court can correct a legal error of the
lower court. In case of revision, the High Court cannot interfere with the
decision of the lower court even when it is legally wrong.
(d) In case of second appeal, the High Court can decide an issue of fact. In case of
revision, an issue of fact cannot be decided.
(e) In case of revision, the High Court may refuse to interfere if it is satisfied that
substantial justice has been done. In case of second appeal, the High Court has
no discretionary power and it cannot decline to grant relief on equitable
grounds.
18. S.108 provides that the powers of the appellate court under S.107 shall be
applicable in case of second appeals and appeals from orders as well.
Appeals from orders1.
2.
3.
4.
5.
6.
7.
8.
9.
seal and furnish copies of such papers in the suit as may be required by the parties
on payment of a certain amount.
11. No notice is required to be sent to the legal representatives of a deceased
respondent or a deceased respondent where such respondent did not appear for
any hearing as regards the decree in the court whose decree is being appealed
against.
12. Where the appellant fails to comply with an order requiring him to furnish
security, the appeal shall not proceed to the Supreme Court.
13. Rule 13 provides that even where a certificate for appeal to the Supreme Court
has been granted, the decree appealed from shall be executed unconditionally.
14. The court where it deems fit on cause shown by any of the parties may impound
any immovable property in dispute, may stay the execution of the decree taking
security from the appellant for due performance of the decree or may execute the
decree taking security from the respondent for due performance of the decree.
15. Where an appeal is heard by the Supreme Court and any decree or order is made,
any party who wishes to execute the order may apply to the court which originally
passed the decision appealed from with a petition accompanied by the decree or
order of the Supreme Court.
16. Such court shall transmit the record of the Supreme Court as the Supreme Court
may decide for execution.
17. The orders relating to such execution shall be appealable in the same manner as
the orders relating to execution of a decree.
Unit X- Revision
1. S.115 empowers the High Court to revise the decision of a subordinate court.
2. Revision is available only in cases where no appeal lies from the decision of the
lower court.
3. The High Court shall revise the decision of a lower court where it appears that(a) The lower court exercised a jurisdiction which is not vested in it by law.
(b) The lower court did not exercise such jurisdiction as it ordinarily should have
as per the law.
(c) The lower court acted illegally (in breach of any law) or with material
irregularity (where the required procedure is not followed) in exercise of its
jurisdiction.
4. Example of cases in which the subordinate court exercises jurisdiction not vested
in it by law- where the lower court assumes pecuniary or territorial jurisdiction
that it does not possess, where it entertains an appeal from an order which is not
appealable, where it grants an injunction without considering whether a prima
facie case is made out, where it passes an order which it has no jurisdiction to, etc.
5. Examples of cases where it fails to exercise jurisdiction vested in it by lawrefusal by the court to summon the deponent of an affidavit for the purpose of
cross examination, an erroneous interpretation of a statutory provision as
obligatory instead of directory, etc.
20. No letters patent appeal lies from an order made in the exercise of revisional
jurisdiction.
21. No revision lies against the decision of a single judge of the High Court as such
single judge cannot be considered as being a subordinate court.
22. A revision may seem to be in the nature of a writ of certiorari. However, it is not
as wide as the writ of certiorari as it can be exercised only where there is a
jurisdictional error and not otherwise.
23. Where a petition has been filed in the High Court under S.115, the petitioner
cannot invoke the jurisdiction of the High Court under Art. 226.
24. S.115 is also different from Art.227 which deals with the power of
superintendence of the High Court over the lower courts.
25. The revisional power of the High Court is restricted by the conditions prescribed
under S.115. However, there are no such restrictions under Art 227.
26. The High Court can exercise both judicial as well as administrative power under
Art. 227. However, S.115 only deals with the judicial power of the High Court.
27. Further, Art. 227 being a constitutional provision, it cannot be taken away by
legislation. On the contrary, S.115 is a statutory provision and thus can be taken
away by legislation.
Unit XI- Review
1. As a general rule, once a judgment is pronounced by a court, it becomes functus
officio or it cannot be altered by such court.
2. Review is an exception to this principle wherein the same court and the same
judge are allowed under special circumstances to review their own judgment.
3. However, this power must be used sparingly and only in cases where there is a
grave or patent error.
4. Review has its basis in the equity principle of Writ of error wherein an error
caused was allowed to be rectified as it was believed that an error caused due to
human failing cannot be allowed to defeat justice.
5. S.114 and Order 47 lay down the general principles as regards review.
6. S.114 states that in the following cases, an aggrieved person may ask for a
review(a) Where a decree or order is passed which is appealable under the CPC and no
appeal is preferred
(b) Where a decree or order is passed which is not appealable under the CPC
(c) Where a decision is given on a reference from a Small Causes Court
7. Further, Order 47 provides that the aggrieved person must also prove that(a) New evidence has been discovered and it was not within his knowledge even
after exercising due diligence or he could not produce the same before the
court at the time the decree was passed. This allegation must be specifically
proved.
(b) Where there is a mistake or error apparent on the face of the record.
(c) Where there is some other sufficient reason to allow for review.
which ought to have been exercised by it, it shall refer the matter to the High
Court where any party to the suit so requires.
19. Thereafter, the High Court shall make such order as it deems fit.
20. Reference to the High Court is dealt with under Art.228 of the Constitution and
S.395 of the CrPC.
Unit XIII- Caveat
1. A caveat is a warning or caution given by a party to the suit to the court not to
take any action or grant any relief to the applicant without notice being given to
the party lodging the caveat.
2. It is very common in testamentary cases proceedings.
3. The objective of a caveat is to protect a person against whom a suit or proceeding
may be instituted.
4. Caveat is applicable to all suits, appeals and other proceedings under the CPC and
any other statutes.
5. S.148-A deals with caveat.
6. A caveat may be lodged by any person who has a right to appear before the court
where an application is expected to be made or has been made in any suit or
proceedings which have been instituted or which are going to be instituted.
7. Generally, a caveat is useful where an interim relief is prayed for by the applicant.
8. The party who has a right to appear before the court may either be a necessary or
a proper party. However, no third party may lodge a caveat.
9. Similarly, a person supporting the application for interim relief may not lodge a
caveat either.
10. The person who has lodged the caveat must serve a notice of the same to the
applicant. (Duty of caveator)
11. However, the court may dispense with such notice where the notice could not be
served due to uncertainty in the fact as regards whether the party is in fact going
to institute a suit.
12. In such cases, the court may allow the caveator to lodge a caveat without naming
the party respondent.
13. Where such notice has been served, the applicant shall provide the person lodging
the caveat or the caveator with a copy of his application as well as such copies of
any document, etc. which he has submitted alongwith the application. (Duty of
the applicant)
14. If after filing of the caveat, any suit or proceeding has been instituted, the court
shall notify the same to the caveator. (Duty of the Court)
15. This has been made a duty of the court so that the caveator may be notified where
an interim relief is granted in favour of the applicant.
16. Where no application has been made, the caveat shall not remain in force till a
period of more than 90 days after it has been issued.
17. A caveat shall be allowed to be lodged only in cases where the caveator is entitled
to be heard before any decision may be taken. It cannot be said to apply to such a
case where no notice needs to be given to the caveator.