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01 - RES-JUDICATA

Q.1. State essential conditions for applications of res-judicata. (Mar-09)


Q.2. Explain the object of res-judicata. Also explain constructive res-judicata. (Nov-08)
Q.3. Define res-judicata. Distinguish it from Res-subjudice. (Oct-06)
Q.4. Explain in detail, essentials conditions for applications of Res-judicata. (Nov-05)
Q.5. Explain the principle of Res-subjudice. Distinguish between Res-subjudice and Res-
judicata. (April-05)

SYNOPSIS

Introduction
Object
History
Extent and applicability
Section 11: whether mandatory
Section 11: whether exhaustive
Conditions
Conclusion

Introduction:

Section 11 of the Code of Civil Procedure deals with the doctrine of res-judicata
or the rules of conclusiveness of judgment. It enacts that once a matter is finally decided
by a competent court; no court can be permitted to reopen it in a subsequent suit. In
absence of such rule there will be no end to litigation and the parties would be put to
constant trouble, harassment and expenses. The doctrine has been accepted in all
civilized legal system. In the words of Spencer Bower, res-judicata means, "a final judicial
decision pronounced by a judicial tribunal having competent jurisdiction over the cause
or matter in litigation and over the parties thereto."

Section 11 of the Code of Civil Procedure reads as under: -

"No court shall try any suit or issue in which the matter directly and substantially
in issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under the
same title, in a court competent to try such subsequent suit or the suit in which such

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issue has been subsequently raised, and has been heard & finally decided by such
court."

Object:
The doctrine of Res-judicata is based on three maxims: -
a) "nemo debet lis vexari pro uno et eadem causa."
Meaning: No man should be vexed twice for the same cause.
b) "Interest republice ut sit finis litium."
Meaning: It is in the interest of the state that there should be an end to litigation.
c) "Res-judicata pro veritate occipitur."
Meaning: A judicial decision must be accepted as correct.
Thus the object of res-judicata is to put an end to litigation, and it avoids constant
trouble, harassment and expenses of parties.

History:

The rule of res-judicata has a very ancient history. It was well understood by
Hindu lawyers and Mohammeda jurists. It was known to ancient Hindu Law as 'Purva
Nyaya'. Under Roman law, it was recognized that "one suit and one decision was enough
for any single dispute." The doctrine was accepted in commonwealth countries.

Extent and applicability:

The doctrine of res-judicata is a fundamental concept based on public policy and


private interest. It is conceived in the larger public interest which requires that every
litigation must come to an end. It, therefore applies to civil suits, execution proceedings,
arbitration proceedings, taxation matters, industrial adjudication, writ petitions,
administrative orders, interim orders, criminal proceedings, etc.

Section 11 – Whether Mandatory:

Section 11 is mandatory. The plea of res-judicata is plea of law which touches the
jurisdiction of court to try the proceedings. If the requirements of section 11 are fulfilled
then the doctrine of res-judicata will apply.

Section 11 – Whether exhaustive:

It is well established that the doctrine of res-judicata codified in section 11 of the


Code of Civil Procedure is not exhaustive.

Conditions:

It is not every matter decided in a former suit that will operate as res-judicata in a
subsequent suit. To constitute a matter as res-judicata under section 11, the following
conditions must be satisfied.
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a. The matter directly and substantially in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually or
constructively in the former suit.
b. The former suit must have been a suit between the same parties or between parties
under
c. Such parties must have been litigating under the same title in the former suit.
d. The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.
e. The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.

a) Matter directly and substantially in issue:

A matter directly and substantially in issue in a former suit will operate as res-
judicata in a subsequent suit.

Directly means, at once, immediately, without intervention.

Substantially means, essentially, materially or in a substantial manner. It means


"in effect though not in express terms". A matter can be said to be substantially in issue
if it is of importance for the decision of a case.

Illustration:

'A' sues 'B' for rent due. The defense of 'B' is that no is rent due. Here the claim
for rent is the matter in respect of which the relief is claimed. The claim of rent is,
therefore, a matter directly and substantially in issue.

A matter is actually in issue when it is in issue directly and substantially and a


competent court decides it on merit.

b) Same parties:

The second condition of res-judicata is that the former suit must have been a suit
between the same parties or between the parties under whom they or any of them
claim. This condition recognized the general principle of law that judgment and decrees
bind the parties. Therefore, when the parties in the subsequent suit are different from
the former suit, there is no res-judicata.

Illustration:
'A' sues 'B' for rent. 'B' contends that 'C' and not 'A' is the landlord. 'A' fails to
prove his title and the suit is dismissed. 'A' then sues 'B' and 'C' for a declaration of his
title to the property. The suit is not barred as the parties in both the suits are not the
same.

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A 'party' is a person whose name appears on the record at the time of decision.
As a matter may be res-judicata between a plaintiff and defendant, similarly, it may be
res-judicata between co-defendants and co-plaintiffs.

c) Same title:

The third condition of res-judicata is that the parties to the subsequent suit must
have litigated under the same title as in the former suit.

Litigating under the same title means that the demand should be of the same
quality in the second suit as was in the first suit. It has nothing to do with the cause of
action on which he sues or is sued.

Illustration:
a) 'A' sues 'B' for possession of property as an owner basing his claim on title. The
suit is dismissed. A subsequent suit for possession of property on the ground of
adverse possession is barred.

b) 'A' sues 'B' for possession of property as an owner basing his claim on title. The
suit is dismissed. A subsequent suit by 'A' against 'B' for possession of the same
property as mortgagor is not barred.

The test for res-judicata is the identity of title in the two litigations and not the
identity of the subject matter involved in the two case. The term "same title" has
nothing to do either with the cause of action or with the subject matter of two suits.
Where the right claimed in both the suits is the same, the subsequent will be barred
even though the right in the subsequent suit is sought to be established on a ground
different from the one in the former suit. (Sundarbai vs. Devaji, AIR 1934 SC 82)

d) Competent Court:

The fourth condition of res-judicata is that the court which decided the former
suit must have been a competent court to try the subsequent suit. Thus, the decision in
a previous suit by a court, not competent to try the subsequent suit will not operate as
res-judicata.

The expression "competent to try" means "competent to trye the subsequent suit
if brought at the time the first suit was brought.

CASE LAW – Jeevanatha vs. Hanumannath, AIR 1954 SC 9

In the above case the honorable Apex Court held that the relevant point of time for deciding
the question of competence of the court is the date when the former suit was brought and not the date
when the subsequent suit was filed.

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e) Heard and finally decided:

The fifth and final condition of res-judicata is that the matter directly and
substantially in issue in the subsequent suit must have been heard and finally decided by
a court in the former suit. The section requires that there should be a final decision on
which the court must have exercised its judicial mind. The word "heard and finally
decided" means a matter on which the court has exercised its judicial mind and has after
argument and consideration come to a decision on a contested matter.

A matter can be said to have been heard and finally decided notwithstanding that
the former suit was disposed of:-

a) Ex partier.
b) By failure to produce evidence.
c) By a decree on an award.

But if the suit is dismissed on a technical ground such as non-jointer of necessary


party, it would not operate as res-judicata.

A matter may be said to have been heard and finally decided if the decision in the
former suit must have been on merits.

CASE LAW – Krishan Lal vs. State of J & K, AIR 1989 SC 1764

In the above case the honorable Apex Court held that if the former suit was dismissed by a
court for want of jurisdiction, or for default of plaintiffs appearance, or on the ground of non-jointer
or mis-joinder of parties, or on the ground that the suit was not properly framed, or that there was a
technical defect then the decision not being on merits, would not operate as res-judicata in a
subsequent suit.

Illustration:
'A' a partnership firm, filed a suit against 'B' to recover Rs.50,000/-. The suit was
dismissed on the ground that it was not maintainable since the partnership firm was not
registered as required by the provisions of the Indian Partnership Act, 1932. Thereafter,
the firm was registered and the subsequent suit was filed on the same cause of action.
There not barred by res-judicata.

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02 - CONSTRUCTIVE RES-J UDICATA

SYNOPSIS
Constructive res-judicata

Object

Constructive res-judicata:-

The rule of direct res-judicata is limited to a matter actually in issue allege by one
party and either denied or admitted by the other party expressly or impliedly. But the
rule of constructive res-judicata provided in explanation IV to section 11 of the Code is
an 'artificial form of res-judicata', and provides that if a plea could have been taken by a
party in a proceeding between him and his opponent then he should not be permitted
to take that plea against the same party in a subsequent proceedings with reference to
the same subject-matter. Thus it means that if a party in a former suit was having a
ground of defense or attack which ought to have been raised by him, but was not so
made, then such a matter in the eyes of law, to avoid multiplicity of litigation and to
have been constructively in issue and therefore, is taken as decided, and in such
circumstances the rule of constructive res-judicata comes into play.

In other words we can say that if a party to a former suit was having an
opportunity to raise its issue regarding his grounds of defense or attack. But it was not
raised by such party then such party can’t be permitted to raise such issue by filing
another suit in a subsequent proceedings.

Object:-

1. The object of constructive res-judicata is to avoid multiplicity of litigations.

2. To bring finality in it.

Illustration:
1) 'A' sues 'B' for possession of property on the basis of ownership. The suit is
dismissed. 'A' can’t thereafter claim possession of property as mortgagee as that ground
ought to have been taken in the previous suit as a ground of attack.

2) 'A' files a suit against 'B' to recover money on pronote. 'B' contents that the
promissory note was obtained from him by undue influence. The objection is overruled
and suit is decreed. 'B' can’t challenge the promissory note on the ground of coercion or

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fraud in subsequent suit, in as much as he ought to have taken that defense in the
former suit.

In the case of Workmen, C.P. Trust, vs. Board of Trustees, the Supreme Court
explained the principle of constructive res-judicata in the following words: -

'If by any judgment or order any matter in issue has been directly and
substantially decided then the decision operates as res-judicata and bars the trial of an
identical issue in a subsequent proceeding between the same parties. When any matter
which ought to have been made a ground of defense or attack in a former proceeding
but was not so made, then such a matter in the eyes of law, to avoid multiplicity of
litigation and to bring finality in it, is deemed to have been constructively in issue and,
therefore, is taken as decided.'

CASE LAW– State of U.P. vs. Nawab Hussain, AIR 1977 SC 1680

Facts – A Sub-Inspector of Police was dismissed from service by the D.I.G. He challenged the order of
dismissal by filing a writ petition in the High Court on the ground that he was not given a reasonable
opportunity of being heard before the passing of order. The contention was overruled and the petition
was dismissed. He then filed a suit and raised an additional ground that since he was appointed by
I.G.P. then the D.I.G. had no power to dismiss him. The state contended that the suit was barred by
constructive res-judicata. The trial, the first appellate court as well as the High Court held that the
suit was not barred by res-judicata.

Judgment – Allowing the appeal filed by the state, the Supreme Court held that the suit was barred by
constructive res-judicata as the plea was within the knowledge of the plaintiff and could well have
been taken in the earlier writ petition.

The doctrine of res-judicata is of universal application. It is a fundamental concept


in the organization to every rural society. The rule, therefore, should apply even to
criminal proceedings. Once a person is acquitted or convicted by a competent criminal
court, he can’t once again, be tried for the same offence.

CASE LAW – Bhagat Ram vs. State of Rajasthan, AIR 1972 SC 1502

In the above case it was held by the Supreme Court that, the principle of res-
judicata is also applicable to criminal proceedings. However it may be noted that the
principle of res-judicata is also applicable to writ petitions. But in case writ of habeas
corpus it is not applicable. In order to determine the question whether a subsequent
proceeding is barred by res-judicata it is necessary to examine the question with
reference to:-

1) Competency of court.
2) Parties & their representative.
3) Matter in issue.
4) Matter which ought to have been made ground for attack or defense in the
former suit.
5) The final decision.

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03 - RES-SUBJUDICE

SYNOPSIS
Introduction
Section 10
Nature and Scope
Object
Conditions
Test
Suit pending in Foreign Court
Inherent Power to Stay
Consolidation of Suits
Contravention Effect
Difference between Res-Subjudice & Res-judicata
Conclusion

Introduction:

Section 10 of the Code of Civil Procedure deals with the doctrine of res-
subjudice it means stay of civil suits. It provides that no court shall proceed with
the trial of any suit in which the matter in issue is also directly and substantially in
issue in a previously instituted suit between the same parties and that the court in
which the previous suit is pending is competent to grant the relief claimed.

Section 11, on the other hand, related to a matter already adjudicated


upon. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.

Section 10:

Section 10 of the Code of Civil Procedure, 1908 reads as under:-

"No court shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any one of them claim,
litigating under the same title where such suit is pending in the same or any other
court in India having jurisdiction to grant the relief claimed, or in any court beyond

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the limits of India established or constituted by the central Government and
having like jurisdiction or before the Supreme Court."

In simple words we can say that according to section 10 where two suits are
pending between the same parties relating to the same subject matter claiming to
same relief in two different courts of having jurisdiction, competent to grant the
relief claimed then the subsequent court has to stay such subsequent suit. A court
in which the subsequent suit has been filed is restrained from proceeding with the
trial of such suit.

Nature and Scope:

Section 10 declares that no court should proceed with the trial of any suit in
which the matter in issue is directly and substantially in issue in a previously instituted
suit between the same parties and the court before which the previously suit is pending
is competent to grant the relief claimed.

CASE LAW – Indian Bank vs. Maharashtra State Co. Op. Marketing Federation, AIR 1998 SC
1552:

In the above case the honorable Apex Court held that the rules of Res-Judice
which applies to trial of a suit and not the institution thereof. It also does not prevent a
court from passing interim orders, such as, grant of injunction or stay, appointment of
receiver etc.

Object:

The object of the rule provided in section 10 is to prevent court of concurrent


jurisdiction from simultaneously entertaining and adjudicating upon two parallel
litigations in respect of the same cause of action, the same subject matter and the same
relief.

This section intends to protect a person from multiplicity of proceedings and to


avoid of a conflict of decisions.

It also aims to avoid inconvenience to the parties. It is to be remembered that the


section does not bar the institution of a suit, but only bars a trial, if certain conditions
are fulfilled. The suit, therefore, can’t be dismissed by a court, but it required to be
stayed.

Conditions:

For the application of section 10 of the Code, the following conditions must
satisfy:

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a. There must be two suits, one previously instituted and the other subsequently
instituted.

b. The matter in issue in the subsequent suit must be directly and substantially in
issue in the previous suit.

c. Both the suits must be between the same parties or their representatives.

d. The previously instituted, instituted suit must be pending in the same court in
which the subsequent suit is brought or in any other court in India or in any court
beyond the limits of Indian established or constituted by the central Government
or before the Supreme Court.

e. The court in which the previous suit is instituted must have jurisdiction to grant
the relief claimed in the subsequent suit.

f. Such parties must be litigating under the same title in both the suits.

CASE LAW – Manohar Lal vs. Seth Hiralal, AIR 1962 SC 527:

In the above case the honorable Apex Court held that as soon as the above
conditions are satisfied, a court can’t proceed with the subsequently instituted suit since
the provisions contained in section 10 are mandatory, and no discretion is left with
court.

The order staying proceedings in the subsequent suit can be made at any stage.

Test:

The test for applicability of section 10 is whether the decision in a previously


instituted suit would operate as res-judicata in the subsequent suit. If it is so, the
subsequent suit must be stayed.

Suit pending in Foreign Court:

Section 10 provides that there is no bar on the power of an Indian Court to try
subsequently instituted suit if the previously instituted suit is pending in a Foreign Court.

Inherent Power to Stay:

Even where the provisions of section 10 of the Code, do not strictly apply, a civil
court has inherent power under section 151 to stay a suit to achieve the ends of justice.

Consolidation of suits:

Since the main purpose of section 1o is to avoid two conflicting decisions, a court
in an appropriate case can pass an order of consolidation of both the suits.

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Contravention: Effect

CASE LAW – Indian Express Newspapers vs. Basumati (P) Ltd., AIR 1969 Bom. 40:

In the above case the honorable Apex Court held that a decree passed in
contravention of section 10 is not nullity, and therefore, can’t be disregarded in
execution proceedings.

Difference between Res-subjudice and Res-judicata:

No. Res-Sub Judice Res-Judicata


01 Res Sub Judice applies to a matter Res-Judicata applies to a matter
pending trial. adjudicated upon.
02 Res Sub Judice bars trial of a suit Res-Judicata bars the trial of a suit or an
which is pending decisions in a issue which has been decided in a former
previously instituted suit. suit.
03 Section 10 of the Code of Civil Section 11 of the Code of Civil Procedure,
Procedure, 1908 deals with the rule 1908 deals with the rule of Res-
of Res Sub Judice. Judicata.

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04 - PLEADING (ORDER-6)
Q.1. What are the rules of Pleading? (Mar-09)

Q.2. Explain and distinguish set off and counter claim. (Mar-08)

Q.3. Write short note on Rejection of plaint. (Mar-08)

Q.4. What is mean by pleading? State fundamental rules of pleading. (Oct-07)

Q.5. Write short note on Affidavit. (Oct-07)

Q.6. What is plaint? Discuss circumstances when the plaint is returned and rejected. (Mar-
07)

Q.7. Write short note on plaint. (Mar-07)

Q.8. What is meant by pleading? Briefly state the object and fundamental rules regarding
pleadings. (Mar-06)

Q.9. Explain the rules regarding pleadings. Also state particulars to be contained in plaint.
(April-05)

SYNOPSIS

Introduction
Definition/Meaning of Pleading
Object of Pleadings
Basic Rules of Pleadings
Other Rules of Pleadings
Constructive of Pleadings
Striking out Pleadings
Signing and Verification of Pleadings
Variance between Pleading and Proof
Amendment of Pleadings
Conclusion

Introduction:
Order 6 of the Code of Civil Procedure deals with pleadings in general Rule 1
defines pleading, while Rule 2 lays down the fundamental principles of pleadings. Rule 3
to 13 requires the parties to supply necessary particulars Rules 14 and 15 provide for

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signing & verification of pleadings. Rule 16 empowers a court to strike out unnecessary
pleadings. Rule 17 and 18 contains provisions relating to amendment of pleadings.

Definition of Pleadings:

Rule 1 of Order 6 of the Code of Civil Procedure defines the term "Pleadings".
Rule 1 of Order or Order 6, Rule 1:

Definition: Pleading is defined as Plaint or Written Statement,

According to Mogha: "Pleadings are statement in writing drawn up and filed by each
party to case, stating what is his contentions will be at the trial and giving all such details
as his opponent needs to know in order to prepare his case in answer."

Object:

The whole object of pleadings is to bring parties to definite issues and to diminish
(less) expense and delay and to prevent surprise at the hearing. A party is entitled to
know the case of his opponent so that he can meet it. In other words, the sole object of
pleading is to ascertain the real disputes between the parties, to narrow don the area of
conflict and to see where the two sides differ, to prevent one from taking the other by
surprise and to prevent miscarriage of justice.

CASE LAW – Virendra vs. Vinayak, AIR 1999 SC 162:

In the above case the honorable Apex Court held that the object of pleadings is
twofold.

1. First is to give the other side intimation regarding the particular facts of his case.

2. Second is to enable the court to determine what the issues between the parties
are really.

Basic Rules of Pleadings (O-6, R-2):

Sub-rule (1) of Rule 2 of Order 6 of the Code of Civil Procedure, 1908 lays down
the fundamental principles of pleadings. It reads as under:

Rule 2(1) – "Every pleadings shall contain, an contain only a statement in a concise form
of the material facts on which the party pleading relies for his claim or defense, as the
case may be, but not the evidence by which they are to be proved."

On analysis of the above rule, the following general principles emerge:

a. Pleadings should state facts and not law.


b. The facts stated should be material facts.

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c. Pleadings should not state the evidence.
d. The facts should be stated in a concise form

Let us discuss the principles in detail.

a. Pleadings should state facts and not law:

The first principle of pleading is that they should state only facts and not law. It is
the duty of the parties to state only the facts on which they rely upon for their claims. It
is for the court to apply the law to the facts pleaded.

b. The facts stated should be material facts:

The second principle of pleadings is that they should contain a statement of


material facts and material facts only. Though the expression, "material facts" has not
been defined in the Code, it means all facts upon which the plaintiffs cause of action or
the defendant’s defense depends.

CASE LAW – Udhav Singh vs. Madhavrao Scindia, AIR 1976 SC 744

In the above case the Supreme Court has defined the expression "material facts"
in the following words:

"All the primary facts which must be proved at the trial by a party to establish the
existence of a cause of action or his defense are material facts."

Material facts are primary and basic facts which must be pleaded by the party in
support of the case set up by it. Whether a particular fact is or is not a material fact
which is required to be pleaded by a party depends on the facts and circumstances of
each case.

c. Pleadings should not state the evidence:


The pleadings should contain a statement of material facts on which the party
relies but not the evidence by which those facts are to be proved. The facts are of two
types.

i. Facta Probanda:- The facts requires to be proved; and

ii. Facta Probantia:- The facts by means of which they are to be proved.

The pleading should contain only facta probanda and not facta probantia. The
material facts on which the plaintiff relies for his claim or the defendant relies for his
defense are called facta probanda and they must be state in the plaint or in the written
statement, as the case may be. But the facts or evidence by means of which the material
facts are to be proved are called facta probantia and need not be stated in the
pleadings. They are not the facts in issue, but only relevant facts required to be provided
at the trial in order to establish the facts in issue.

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CASE LAW – Borrodaile vs. Hunder.

In the above case, the said principle is well illustrated. 'A' was insured with an
insurance company. One of the terms of the policy was that the policy would be void if
the insured committed suicide by shooting himself with a pistol and thereupon an action
was brought against the company on the policy. The company should only plead that 'A'
committed suicide. This is facta probanda. Other facts, that A was sad for weeks, that he
bought a pistol a day before his death, shot himself with the said pistol and that a letter
was found with him addressed to his wife stating that he intended to kill himself – all
these facts are facta probantia and they need not to be pleaded.

d. The facts should be stated in a concise form:

The fourth and the last general principle of pleading is that the pleadings should
be drafted with sufficient brevity and precision. The material facts should be stated
precisely and coherently.

Other Rules of Pleadings (O.-6 R.-4 to 13):

Over and above the aforesaid basic rules, there are other rules of pleadings
dealing with the case of special nature. They have been laid down in Rules 4 to 13 of
Order 6. They are as follows:

1. Whenever misrepresentation, fraud, breach of trust, willful default or undue


influence are pleaded in the pleadings, particular with dates and items should be
stated.

2. If the particulars stated in the pleadings are not sufficient and specific then the
court should, before proceeding with the trial of the suit, insist upon the
particulars, which given adequate notice to the other side of the case intended to
be set up.

3. The performance of a condition precedent need not be pleaded since it is implied


in the pleadings. Non-performance of a condition precedent, however, must be
specifically and expressly pleaded. (Rule-6)

4. No party can raise any ground of claim or contain any allegation of fact
inconsistent with his previous pleadings. (Rule-7)

5. A bare denial of a contract by the opposite party will be construed or interpreted


as a denial of factum of a contract and not the legality, validity or enforceability of
such contract. (Rule-8)

6. Documents need not be set out at length in the pleadings, unless the words
therein are material. (Rule-9)

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7. Wherever malice, fraudulent intention, knowledge or other condition of the mind
of a person is material then it may be alleged in the pleadings only as a fact
without setting out the circumstances from which it is to be inferred. Such
circumstances really constitute evidence in proof of material facts. (Rule-10)

8. Whenever giving of notice to any person is necessary or a condition precedent,


then pleadings should only state regarding giving of such notice, without setting
out the form of such notice or circumstances from which it is to be inferred,
unless they are material. (Rule-11)

9. Implied contracts or relations between persons may be alleged as fact, and the
series of letters, conversations & the circumstances from which they are to be
inferred should be pleaded generally. (Rule-12)

10. Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded. (Rule-13)

11. Every pleading should be divided into paragraphs, numbered consecutively. Each
allegation should be stated in separate paragraph. (Rule-2[2])

12. Dates totals and numbers should be written in figures as well as in words.

Construction of Pleadings:

It has been uniformly held that pleadings in India should not be construed very
strictly. They have to be interpreted liberally.

Striking out Pleadings (O-6, R-16):

The court is empowered to strike out any pleading if it is unnecessary, vexatious,


or tends to prejudice or deal the fair trial of the suit or is otherwise and abuse of the
process of court.

Signing and Verification of Pleadings (O-6, R-14-15):

As a general rule, every pleading must be signed by the party or by one of the
parties or by his pleader. But if the party is unable to sign the pleading, it can be signed
by any person authorized by him. Similarly, every pleading must be verified by the party
or by one of the party pleading. The person verifying the pleading must specify what
paragraphs he verifies upon his knowledge and what paragraphs he verifies upon
information received by him and believed by him to be true. The verification must be
signed on an affidavit by the person verifying and must contain the date on which and
the place at which it was signed. The person verifying the pleading should also furnish an
affidavit in support of his pleading.

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05 - PLAINT (ORDER-7)

SYNOPSIS
Introduction
Meaning
Particulars
Admission of Plaint
Return of Plaint
Rejection of Plaint
Conclusion

Introduction:

Rule 1 to 8 of Order 7relates to particulars in a paint. Rule 9 lays down procedure


on plaint being admitted. Whereas Rule 10 provides for return of plaint, Rules 11 to 13
deals with rejection of plaint. Rule 14 to 18 contain provisions relating to production of
document.

Meaning:

The expression "plaint" has not defined in the Code. However, it can be said to be
a statement of claim, a document by prescription of which the suit is instituted. Its
object is to state the grounds upon which the assistance of the court is sought by the
plaintiff. It is a pleading of the plaintiff.

Particulars (Order - 7, Rules -1 to 8):

Every plaint should contain the following particulars:

a. The name of the court in which the suit is brought. (Rule-1[a])

b. The name, description and place of residence of the plaintiff and defendant. (Rule-
1[b] [c])

c. Where the plaintiff or defendant is a minor or a person of unsound mind, a


statement to that effect. (Rule-1[d])

d. The facts constituting the case of action and when it arose. (Rule-1[e])

e. The facts showing that the court has jurisdiction. (Rule-1[f])

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f. A statement of the value of the subject matter of the suit for the purpose of
jurisdiction and court. (Rule-1[h])

g. The reliefs claimed by the plaintiff simply or in the alternative. (Rule-1[g])

h. Where the plaintiff has allowed a set off, the amount so allowed. (Rule-1[i])

i. Where the suit is for recovery of money, the precise amount claimed. (Rule-2)

j. The interest and liability of the defendant in the subject matter of the suit. (Rule-
3)

k. Where the plaintiff files a suit in a representative capacity, the facts showing that
the plaintiff has an actual existing interest in the subject matter and that he has
taken steps that may be necessary to enable him to file such a suit. (Rule-4)

l. Where the subject matter of the suit is immovable property a description of the
property sufficient to identify it, e.g. boundaries, survey no. etc. (Rule-5)

m. Where the suit is time barred, the ground upon which the exemption from the
law of limitation claimed. (Rule-6)

Let us consider some important aspects in detail.

a) Parties to Suit:

There must be two parties in every suit, namely the plaintiff and defendants.
There may, however, be more than plaintiff or more than one defendant. All particulars
such as name, fathers name, age, place of residence, etc. which are necessary to identify
the parties, must be stated in the plaint.

b) Cause of action:

Every suit presupposes the existence of a cause of action against the defendant
because if there is no cause of action the plaint will have to be rejected. Even though the
expression "cause of action" has not defined n the Code, it may be described as "a
burden of facts, which it is necessary for the plaintiff to prove before he can succeed."

It is also necessary for the plaintiff to state specifically when such cause of action
arose. This will enable the defendant as well as the court to ascertain from the plaint
whether in fact and in law the cause of action as alleged by the plaintiff in the plaint did
arise or not. The purpose behind the requirement that the plaint should indicate when
the cause of action arose is to help the court in ascertaining whether the suit is not
barred by limitation.

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c) Jurisdiction of Court:

The plaint must state all the facts showing now the court has pecuniary and
territorial jurisdiction over the subject matter of the suit. When the jurisdiction of a
court to entertain the suit is disputed by the defendant, the court may frame the issue
to that effect and decide the same before deciding other issues.

d) Valuation:

The plaintiff must state in the plaint the valuation of the subject matter of the suit
for the purpose of pecuniary jurisdiction of the court and court-fees.

e) Limitation:

Rule 6 provides that where the suit is barred by limitation, it is necessary for the
plaintiff to show the ground of exemption in the plaint. But proviso added by the
Amendment Act, of 1976 empowers the court to permit the plaintiff to rely on a new
ground for exemption if it is not inconsistent with the grounds mentioned in the plaint.

f) Relief:

Every plaint must state specifically the relief claimed by the plaintiff either simply
or in the alternative. Where the relief is founded on separate and distinct, grounds, they
should be so stated. Where the plaintiff is entitled to more than one relief in respect of
the same cause of action, it is open to him to claim all or any of such reliefs. But if he
omits, except with the leave of court, to sue for any particular relief, he will not
afterwards be allowed to sue for the relief so omitted.

It is not necessary to ask for general or other relief. But the general relief is
usually prayed for by the plaintiff in the plaint in the following terms:

"The plaintiff prays for such further or other relief as the nature of the case may
require."

Strictly speaking, this type of prayer is not necessary since such relief may be
granted by the court as if it has been asked for, provided it is not inconsistent with the
specific claim raised in the pleadings.

Admission of Plaint (Order-9):

Rule-9 lays down the procedure when the plaint is admitted by the court. It
provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisites fees for the service of summons on the defendants within seven days.

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Return of Plaint (Rule-10 to 10-B):

Where at any stage of the suit, the court finds that it has no jurisdiction, either
territorial or pecuniary or with regard to subject matter of the suit, it will return the
plaint to be presented to the proper court in which the suit ought to have been filed.

Rule-10(A) prescribes the procedure to be followed by a court before the plaint is


ordered to be returned to be presented to the proper court. An appellate court can also
return the plaint to be presented to the proper court. The judge returning the plaint
should make endorsements on it regarding.

i) The date of presentation.


ii) The date of return.
iii) The name of the party presenting it.
iv) Reasons for returning it.

Rejection of Plaint (Rule-11):

The plaint will be rejected in the following cases:

a) Where plaint does not disclose cause of action.


b) Where the relief claims is undervalued.
c) Where plaint is insufficiently stamped.
d) Where suit is barred by law.
e) Where the plaint is not in duplicate.
f) Where there is non-compliance with statutory provisions.
g) Other grounds.
h) Procedure on rejection of plaint.
i) Effect of rejection of plaint
j) Appeal

a) Where plaint does not disclose cause of action:

If the plaint filed by the plaintiff does not disclose any cause of action, the court
will reject it. But in order to reject the plaint on this ground, the court must look at the
plaint and at nothing else.

The power to reject a plaint on this ground should be exercised only if the court
comes to the conclusion that even if all the allegations set out in the plaint are proved,
the plaintiff would not be entitled to any relief. In that case, the court will reject the
plaint without issuing summon to the defendants.

Finally, the plaint can be rejected as a whole if it does not disclose the cause of
action. A part of it can’t be rejected.

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b) Where the relief claims is undervalued:

Where the relief claim by the plaintiff is undervalued and the valuation is not
corrected within the time fixed or extended by the court, the plaint will be rejected.

c) Where plaint is insufficiently stamped:

Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is
written upon a paper insufficiently stamped and the plaintiff fails to pay the requisite
fees i.e. court fees within the time fixed or extended by the court. In that case, the plaint
will be rejected. However if the requisite court fees is paid within the time extended by
the court then the suit or appeal must be treated as instituted from the date of
presentation of plaint or memorandum of appeal for the purpose of limitation as well as
payment of court fee. If the plaintiff can’t pay the court fees then he may apply to
continue the suit as an indigent person.

d) Where suit is barred by law:

Where the suit appears from the statement in the plaint to be barred by any law
then the court will reject the plaint.

CASE LAW – B.R. Sinha vs. State of M.P., AIR 1969 SC 1256

In the above case honorable Apex Court stated that where in a suit against the
Govt., the plaint does not state that a notice as required by section 80 of the Code has
been given, the plaint will be rejected under this clause.

If the plaint itself shows that the claim is barred by limitation then the plaint can
be rejected. But if the question of limitation is connected with the merits of the case
then the matter requires to be decided along with other issues.

e) Where the plaint is not in duplicate:

The plaint has to be filed in duplicate. If the said requirement is not complied with
the plaint will be rejected.

f) Where there is non-compliance with statutory


provisions:

Where the plaintiff fails to comply with the provisions of Rule-9 then the plaint
will be rejected.

g) Other grounds:

The grounds for rejection of plaint specified in Rule-11 of Order-7 are not
exhaustive. On other relevant grounds also a plaint can be rejected. Thus, if the plaint is

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signed by a person not authorized by the plaintiff and the defect is not cured within the
time granted by the court, the plaint can be rejected. Likewise, where the plaint is found
to be vexatious and meritless, not disclosing a clear right to sue then the court may
reject the plaint under this rule.

h) Procedure on rejection of plaint:

Where a plant is rejected by a court then the judge will pass an order to that
effect and will record reasons for such rejection.

i) Effect of rejection of plaint:

If the plaint is rejected on any of the grounds mentioned above then the plaintiff
is not thereby precluded from presenting a fresh plaint in respect of the same cause of
action.

j) Appeal:

An order rejecting a plaint is a deemed "decree" within the meaning of section


2(2) of the Code, and therefore is appealable.

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06 - SET-OFF & COUNTER CLAIM

Q.1. Explain and distinguish between set-off and counter claim. (Mar-08)

SYNOPSIS

Set-off
Conditions
Effect
Counter-Claim
Object
Nature and Scope
Effect
Difference between Set-off and Counter-claim

Set-off:

Order 8 Rule 6 of the Code of Civil Procedure explains about set-off. Set-off
means a claim set up against another. It is a cross-claim which partly offsets the original
claim. It is an extinction of debts of which two persons are reciprocally debtors to one
another by the credits of which they are creditors to one another. Where there are
mutual debts between the plaintiff and the defendants, one debt may be settled against
the other.

Where in a suit for recovery of money by the plaintiff, the defendant finds that
he has also a claim of some amount against the plaintiff then he can claim a set-off in
respect of the said amount. The doctrine of set-off may be defined as, "the extinction of
debts of which two persons are reciprocally debtors to one another by the credits of
which they are reciprocally creditors to one another." Thus, it is a reciprocal acquittal of
debts between two persons. The right of defendant to claim set-off has been recognized
under Rules. It avoids the necessity of filing a fresh suit by the defendant.

Let us see the following illustration to understand the above doctrine.

a) 'A' sues 'B' for compensation on account of trespass. 'B' holds promissory note
for Rs.1,000 from 'A' and claims to set-off that amount against any sum that 'A'
may recover in the suit. 'B' may do so, for as soon as 'A' recovers, both sums are
definite pecuniary demands.

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b) 'A' sues 'B' on a bill of exchange for Rs.600.'B' holds a judgment against 'A' for
Rs.1000. The two claims being both definite, pecuniary demands may be set-off.

Conditions:

A defendant may claim a set-off, if the following conditions are satisfied.

a) The suit must be for the recovery of money:

Illustration:

'A' sues 'B' for Rs.10,000. 'B' can’t set-off the claim for damages for breach of contract
for specific performance.

b) The sum of money must be ascertained:

Illustration:

'A' sues 'B' on a bill of exchange for Rs.600.'B' holds a judgment against 'A' for Rs.1000.
The two claims being both definite, pecuniary demands may be set-off.

c) Such sum must be legally recoverable:

Illustration:

'A' sues 'B' for Rs.10,000. 'B' can’t set-off and amount due to him on a promissory note
executed by 'A' before 5 years.

d) It must be recoverable by the defendant or by all the


defendants, if more than one:

Illustration:

'A' sues 'B' and 'C' for Rs.1000. 'B' can’t set-off a debt due to him alone by 'A'.

e) It must be recoverable by the defendant from the plaintiff or


from all the plaintiffs, if more than one:

Illustration:

'A' and 'B' sue 'C' for Rs.1000. 'C' can’t set-off a debt due to him by 'A' alone.

f) It must not exceed the pecuniary jurisdiction of the court in


which the suit is brought:

Illustration:
'A' sues 'B' for Rs.21,000. 'B' can’t set-off an amount of Rs.51,000 if the court in which
the suit is filed by 'A' has pecuniary jurisdiction up to Rs.25,000.
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g) A plead of set-off can’t be raised without filing a written
statement:

Effect:

When a defendant pleads set-off, he is put in the position of plaintiff as the


regards the amount claimed by him. There are two suits – one by the plaintiff against
the defendant and the other by the defendant against the plaintiff, and they are tried
together. A separate suit number, however, is not given to a set-off. Where the plaintiff
does not appear and his suit is dismissed for default, or he withdraws his suit, or he fails
to establish his claim at the trial and his suit is dismissed then it does not affect the claim
for a set-off by the defendant and a decree may be passed in favor of the defendant, if
he is able to prove his claim.

Counter-Claim:

Rule 6-A to 6-G of Order 8 of the Code of Civil Procedure deal with counter claim.
"Counter Claim" may be defined as "a claim made by the defendant in a suit against the
plaintiff." It is a claim independent of and separable from, the plaintiff’s claim which can
be enforced by a cross-action. It is a cause of action in favor of defendant against the
plaintiff. Therefore, a defendant in a suit may, in addition to his Right to plead a set-off,
set-up a counter claim. Thus, counter claim is substantially a cross-action.

CASE LAW – Laxmidas vs. Nanabhai, AIR 1964 SC 11:

Before the Amendment Act, 1976 there was no specific provisions for counter
claim in the Code. The Supreme Court, however, in the above case, held the right to
make a counter claim statutory. It was held that the court has power to treat the
counter claim as a cross-suit and hear the original suit & counter-claim together if the
counter claim is properly stamped.

Object:

Before the Amendment Act, 1976 no counter-claim or set-off could be claimed


except in money suits. The law commission of India however, recommended avoiding
multiplicity of proceedings, right to the defendant to raise a plea of set-off in addition to
a counter-claim in the same suit.

Nature and Scope:

By the Amendment Act, 1976 a specific provisions has been made for counter-
claims by inserting Rules-6-A to 6-G. Under Sub-rule (1) of Rule 6-A, the defendant may
set up by way of counter claim against the claim of plaintiff any right or claim against the
plaintiff either before or after the filing of the suit but before the defendant has

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delivered his defense or before the time fixed for the delivery of his defense has expired.
Such, counter-claim, however, should not exceed the pecuniary limits of the jurisdiction
of court.

Effect:

Such counter-claim has the effect of a cross suit and the court can pronounce a
final judgment both on the original claim and the counter claim. The counter claim of
the defendant will be treated as a plaint and the plaintiff has a right to file a written
statement in answer to the counter claim of the defendant. The effect of the counter-
claim is that even if the suit of the plaintiff is stayed, discontinued, dismissed or
withdrawn, the counter-claim will be decided on merits, and the defendant will have
right to get decree for a counter claim as claimed in the written statement. If the
plaintiff does not file any reply to the counter-claim made by the defendant then the
court may pronounce the judgment against the plaintiff. The counter claim shall be
treated as plaint and will be governed by the rules applicable to plaints. Similarly, a reply
filed in answer to a counter claim shall be treated as a written statement and governed
by the rules applicable to written statement.

Difference between Set-off and Counter-claim:

No. Set-off Counter-claim


01 Set-off is statutory defense to Counter claim is substantially a cross-
plaintiffs action. action.
02 Set-off must arise out of the same A counter claim need not arise out of the
transactions. same transactions.
03 Set-off is a ground of defense, a Counter-claim is weapon of offence, a
shield, which is established, would sword, which enables the defendant to
afford an answer to the plaintiff’s enforce the claim against the plaintiff
claim as a whole or in portion. effectually as an independent action.
04 In the case of a legal set-off, the In the case of counter claim the amount
amount must be recoverable at the must be recoverable at the date of the
date of the suit. written statement
05 Set-off must be for an ascertained Counter claim need not be for an
sum. ascertained sum.

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07 - SUMMONS (ORDER-5)

SYNOPSIS

Introduction
Essentials of Summons
Summons to defendant
Appearance of defendant
Contents of Summons
Mode of Service of Summons
Personal or Direct Service
Service by Court
Service by Plaintiff
Substituted Service
Service by Post
Service in Special Cases

Conclusion

Introduction:

Rule 1 to 30 of the Order-5 of the Code of Civil Procedure, 1908 & section 27 to
29 of the Code deals with issue and service of summons on defendant and witnesses.
When the plaintiff files a suit, the defendant has to be informed that the suit has been
filed against him, and that he is required to appear in the court to defend it. The
intimation which is sent to the defendant by the court is technically known as
'summons'. It is issued to the defendant to appear and answer the claim on the day
specified in the summons. The summons may not be issued when the defendant appear
at the presentation of the plaint and thereby admits the claim of the plaintiff. Summons
is also issued to witnesses.

Essential of Summons:

Every summons shall be signed by the judge or such officer appointed by him and
shall be sealed with the seal of the court and must be accompanied by a plaint.

Summons to defendant:

Order 5 deals with summons to a defendant while Order 16 deals with summons
to witnesses. When a suit has been duly filed by presentation of a plaint, the court must
issue summons to the defendant calling upon him to appear on a day specified therein

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and answer the claim of the plaintiff within 30 days from the institution of the suit by
filing of written statement.

Appearance of Defendant:

A defendant to whom a summons has been issued, may appear (1) in person, or
(2) by a pleader duly instructed and able to answer all material questions relating to the
suit, or (3) by a pleader accompanied by some person able to answer all such questions.

Contents of summons:

The summons must contain a direction whether the date fixed is for settlement of
issues only or for the disposal of the suit.

Mode of Service of Summons:

The Code prescribes five principal modes of serving a summons to a defendant.

Personal or Direct Service


Rules 10 to 16 and 18 deal with personal or direct service of summons upon the
defendant. This is an ordinary mode of service of summons. Here the following
principles must be remembered.

i. Wherever it is practicable, the summons must be served to the defendant in


person or his authorized agent.

ii. Where the defendant is absent from his residence at the time of service of
summons then the summons may be served on any adult male or female member
of the defendants family residing with him.

A servant, however, can’t be said to be a family member.

iii. In a suit relating to any business or work against a person, not residing within the
territorial jurisdiction of the court issuing the summons, it may be served to the
manager or agent carrying on such business or work.

iv. In a suit for immovable property, if the service of summons can’t be made on the
defendant personally and the defendant has no authorized agent, the service of
summons may be made on any agent of the defendant in charge of the property.

v. Where there are two or more defendant service of summons should be made on
each defendant.

Where the service officer delivers or tenders a copy of summons to the defendant
personally or to his agent or other person on his behalf the person to whom the copy is
delivered or tendered must make an acknowledgement of service of summons.

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Service by Court

Summons to defendant residing within the jurisdiction of the court shall be


served through court officer or approved courier service. Summons can also be served
by registered post, speed post, courier service, fax, e-mail or by any other permissible
means of transmission. Where the defendant is residing outside the jurisdiction of court,
the summons shall be served through an officer of the court within whose jurisdiction
the defendant resides.

Service by Plaintiff
The court may also permit service of summons by the plaintiff in addition to
service of summons by the court.

Substituted Service
"Substituted service" means the service of summons by a mode which is
substituted for the ordinary mode of service of summons. There are two modes of
substituted service. They are –
(A) (i) Where the defendant or his agent refuses to sign the acknowledgement;
(ii) Where the serving officer, after due and reasonable diligence can’t find the
defendant who is absent from his residence at the time of service of summons and there
is no likelihood of his being found at his residence within a reasonable time and there is
no authorized agent nor any other person on whom service can be made, the service of
summons can be made by affixing a copy on the outer door or some other conspicuous
part of the house in which the defendant ordinarily resides or carries on business or
personally works for gain.

(B) Where the court is satisfied that there is reason to believe that the defendant
avoids service or for any other reason the summons can’t be served in the ordinary way
the service may be effected –
(i) By affixing a copy of the summons in some conspicuous place of the house in
which the defendant resides.
(ii) In such manner as the court thinks fit.
It, however, must be remembered that this not a regular mode of service and
hence, it should not normally be allowed and can be effected only as a last resort.

Service by Post
In a case where the summons was properly addressed, prepaid and duly sent by
registered post, acknowledgement due; and the acknowledgement is lost or not
received by the court within 30 days from the date of issue of the summons then the
court shall declare that the summons had been duly served on the defendant.

Service in Special Cases


i) Where the defendant resides within the jurisdiction of another court or in
another state. The summons may be sent to the court where he resides. Such court will
serve summons on defendant.

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ii) Where the summons is to be served within the presidency towns of Bombay,
Madras & Calcutta, it may be sent to the court of small causes within whose jurisdiction
it is to be served.

iii) Where the defendant resides out of Indian and has no authorized agent in India
to accept service, the summons should be addressed to the defendant at the place
where he is residing and sent to him by post or courier service or fax message, or
Electronic mail service or by any other appropriate means.

iv) Where the defendant resides in a foreign country, the service of summons may
be affected through the political agent there or a court established there with authority
to serve summons.

v) Where the defendant is a public officer or is a servant of the Railway Company or


local authority the summons may be served through the head of the department in
which the defendant is employed.

vi) Where the defendant is a soldier, sailor or airman, the court shall send the
summons for service to his commanding office.

vii) Where the defendant is in prison, the service of summons is to be made on the
officer in charge of the prison.

viii) Where the defendants are partners in any firm, the summons should be served
upon any one or more of the partners.

Conclusion:

Summons is a document issued from the office of the court, calling upon the
person to whom it is directed to appear before a judge or officer of the court. It is issued
to the defendant to appear and answer the claim on the day specified in the summons.
It denotes the presence of the party, date and time of appearance. Every summons shall
be accompanied by a copy of the plaint. The above mentioned are the various modes of
service of summons.

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08 - APPEARANCE & NON APPEARANCE
OF PARTIES (ORDER-9)
Q.1. State effect of appearance and non-appearance of parties. (Mar-08)
Q.2. Explain in detail the powers and duties of the commissioner appointed by the court.
(Oct-07)
Q.3. Explain the effect of appearance and non-appearance of parties. (Oct-07)
Q.4. Law what is commission? Discuss in detail provision of commission to examine its
witnesses and investigations. (Mar-06)
Q.5. Discuss the effects of appearance and non-appearance of parties to suit. Also state
remedies available to aggrieved party.
Q. 6 When can a court pass order for temporary injunction? (Mar-09) (Mar-07)

SYNOPSIS
Introduction
Appearance of Parties
Where neither party appears
Where only plaintiff appears
Where only defendant appears
Where summons is not served
Ex parte decree
Conclusion

Introduction:

Order 9 of the Code enacts the law with regard to the appearance of the parties
to the suit and the consequences of their non-appearance. It also provides a remedy for
setting aside an order of dismissal of the suit and also the setting aside of an ex parte
decree passed against the defendants.

Appearance of Parties:

Rule 1 of Order 9 requires the parties to the suit to attend the court in person or
by their pleaders on the day fixed in the summons for the defendant to appear. Rule 12
provides that where a plaintiff or a defendant, who has been ordered to appear in
person, does not appear in person or show sufficient cause for non-appearance, the
court may dismiss the suit, if he is the plaintiff, or proceed ex p[arte if he is the
defendant.

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Where neither party appears:

Where neither the plaintiff nor the defendant appears when the suit is called out
for hearing, the court may dismiss it. The dismissal of suit under Rule-3, however, does
not bar a fresh suit in respect of the same cause of action. The plaintiff may also apply
for an order to set aside such dismissal. And if the court is satisfied that there was
sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal
of the suit and shall fix a day for proceeding with the suit.

Where only plaintiff appears:

Where the plaintiff appears and the defendant does not appear, the plaintiff has
to prove service of summons of the defendant. If the service of summons is proved, the
court may proceed ex parte against the defendant and may pass a decree in favor of the
plaintiff, in the plaintiff proves his case.

Where only defendant appears:

Where the defendant appears and the plaintiff does not appear, and the
defendant does not admit the plaintiff claim, wholly or partly, the court shall pass an
order dismissing the suit. But if the defendant admits the plaintiffs claim as a whole or a
part thereof, the court will pass a decree against the defendant upon such admission
and dismiss the suit for rest of the claim. Where there are more plaintiffs than one, and
one or more of them appear, Rule 10 will apply.

Rule 9 of Order 9 of the Code prevents the plaintiff thereafter from filing a fresh
suit on the same cause of action. He may, however, apply for an order to set aside the
order of dismissal. And if the court is satisfied that there was sufficient cause for his non-
appearance the court may set aside the order of dismissal and fix a day for proceeding
with the suit.

Where summons is not served:

If the summons is not served on the defendant or it does not give him sufficient
time to represent his case effectively, no decree can be passed against him.

Rule 2 of Order 9 of the Code provides that the suit may be dismissed where the
summons is not served on the plaintiff’s failure to pay costs for service of summons to
defendant or to present copies of the plant. No, such order, however, can be passed in
spite of such failure by the plaintiff if the defendant appears in person or by his
authorized agent on the day fixed for him to appear. The plaintiff may file a fresh suit
even after dismissal of the suit under Rule 2 in respect of the same cause of action or
may apply for an order to set aside such dismissal. And if the court is satisfied that there
was sufficient cause for such failure the court shall set aside such order of dismissal and
shall fix a day for proceeding with the trial.

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Ex parte decree:

a. Meaning – An ex parte decree is a decree passed in the absence of the defendant.


Where the plaintiff appears and the defendant does not appear when the suit is called
out for hearing and if the defendant is duly served, the court may hear the suit ex parte
and pass a decree against him. Such a decree is both null and void nor in operative but it
merely voidable and unless & until it is annulled on legal and valid grounds.

b. Remedies – The defendant, against whom an ex parte decree has been passed, has
the following remedies available.
1. To apply to the court by which such decree is passed to set aside.
2. To prefer an appeal against such decree.
3. To apply for review.
4. To file a suit on the grounds of fraud.
5. Set aside ex parte decree O-9 R-13.
Rule 13 of Order 9 of the Code deals with setting aside of ex parte decree passed
against the defendant, this rules requires an application by the defendant to set aside an
ex parte decree passed against him if here exist sufficient grounds for it. If the defendant
satisfies the court that –

i) The summons was not duly served; or

ii) He was prevented by any sufficient cause from appearing when the suit was called out
for hearing; the court will set aside the decree passed against him and appoint a day for
proceeding with the suit.

Therefore, if the defendant satisfies the court that the summons was not duly
served upon him, the court must set aside the ex parte decree passed against him.

The expression, "sufficient cause" has not been defined anywhere in the Code. It
is a question to be determined in the facts and circumstances of each case. The
following grounds have been held to be sufficient cause for absence of a party.

a. Bona fide mistake as to the date of hearing.


b. Late arrival of train.
c. Sickness of counsel.
d. Fraud of the opposite party.
e. Mistake of pleader in noting wrong date in diary.
f. Death of relative of a party.
g. Imprisonment of party.
h. Strike of advocate, etc.

An application for setting aside ex parte decree can be made within 30 days from
the date of the decree.

An ex parte decree can’t be set aside without issuing notice to the opposite party
and without giving him an opportunity of hearing.

The court has a very wide discretion in imposing such terms on the defendant as
it thinks fit before setting aside the ex parte decree. Since the Code makes specific

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provisions for setting aside ex parte decree, no inherent power can be exercised to set
aside such decree.

CASE LAW – Rupchand vs. Raghuvanshi, AIR 1964 SC 1889

In the above case the Supreme Court held that where there are more defendants
then the court will set aside the decree only against such defendant or defendants who
had made an application.

The effect of setting aside an ex parte decree is that the suit is restored, and the
court should proceed to decide the suit as it stood before the decree. The ex parte is a
decree under section 2(2) of the Code and, therefore, an aggrieved party can also file an
appeal U/s. 96(2) of the Code.

An order setting aside an ex parte decree is a 'case decided' within the meaning
of Sec. 115 of the Code and is, therefore, revisable (Mali Ram Vs. Gayatri Devi, AIR 1985
Pat. 16)

Since all the remedies against an ex parte decree are concurrent, an aggrieved
party can also file an application for review in the conditions under O-47 R-1 are
satisfied.

A suit to set aside an ex parte decree is not maintainable. But if an ex parte


decree is alleged to have been obtained by the plaintiff by fraud then the defendant can
file a regular suit to set aside such decree.

Conclusion:

On the date fix for the hearing, both plaintiff and defendant shall appear in the
court either in person or through their advocates. In case plaintiff fails to appear, suit is
dismissed for his non-appearance. Plaintiff may apply for restoration of suit on sufficient
grounds. In case defendant was duly served with summons but failed to appear then ex
parte decree be passed against him. A defendant may within limitation period of 30 days
apply to the court for setting aside ex parte decree on the grounds o sufficient cause.

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09 - INTERIM ORDERS - COMMISSIONS

SYNOPSIS

Introduction
Issue of Commission
Purpose of Issue of Commissions
To examine witnesses.
To make local investigation
To adjust accounts
To make partition
To hold investigation
To sell property
To perform ministerial act
Powers
Expenses
Commission for Foreign Tribunals
Conclusion

Introduction:

According to the dictionary meaning, "interim" meaning "for the time being",
"meanwhile", "temporary", "provisional", "not final". Thus, interim or interlocutory
orders are those orders passed by a court during the pendency of a suit or proceeding
which do not determine finally substantive rights and liabilities of the parties in respect
of the subject matter of the suit.

Interim orders are necessary to deal with and protect rights of the parties in the
interval between the commencement of the proceedings and final adjudication. They
enable the court to grant such relief or to pass such order as may be necessary, just or
equitable. They also prevent any abuse of process during the pendency of proceedings.
Such interim orders may be summarized thus:

a) Commission
b) Arrest before judgment
c) Attachment before judgment
d) Temporary Injunction
e) Interlocutory orders
f) Receiver
g) Security for costs
h) Payment in court

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Sections 75 to 78 deal with the powers of the court to issue commission and
detailed provisions have been made in Order 26 of the Code. The power of the court to
issue commission is discretionary and can be exercised by the court for doing full and
complete justice between the parties. It can be exercised by the court either on an
application by a party to the suit or of suo moto.

Issue of Commission:

Sections 75 to 78 deals with the powers of the court to issue commissions and
details provisions have been made in Order 26 of the Code. The power of the court to
issue commission is discretionary and can be exercised by the court for doing full and
complete justice between the parties. It can be exercised by the court either on
application by a party to the suit or of suo moto.

Purpose of Issue of Commission:

Section 75 of the Code provides that a court may issue a commission for any of
the following purposes.

a. To examine witnesses.
b. To make local investigation
c. To adjust accounts
d. To make partition.
e. To hold investigation
f. To sell property
g. To perform ministerial act

a. To examine witnesses. (Sec. 76-78, O-26, R-1-8):


Oral evidence is recorded by examination of witnesses in the open court but
some witnesses are unable to attend the court because of their sickness or infirmity in
the court and they are to be examined in the court of law. They are important witnesses
and if not examined it will be unjust or detrimental to the interest of the party.

The court has a discretionary power to issue commission to examine witnesses


either on application of the party or suo moto on any other ground which the court
thinks sufficient court may issue commission to examine a witness who resides beyond
the local limits of the jurisdiction of the court or a witness who being a Paramhansa,
always remained in naked condition.

CASE LAW – Vinayak Trading Co. vs. Sham Sundar & Co., AIR 1987 AP 236

In the above case the honorable Apex Court stated that if a party or a witness
apprehends danger to his if he appears before the court then he can be examined on
commission. The power, however, should not be exercised on the ground that the
witness is a man of rank or having social status and it will be derogatory for him to
appear in prison in court. Sections 75 to 78 deal with the powers of the court to issue
commission and details provisions have been made in Order 26 of the Code.

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The court may issue a commission for the examination on interrogatories or
otherwise of any person in the following circumstances.

i) If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction; and a) is exempted under the Code from attending court; or b) is
from sickness or infirmity unable to attend the court; or c) in the interest of justice or for
any other reason, his examination on commission will be proper.

ii) If he resides beyond the local limits of the jurisdiction of the court; or

iii) If he is about to leave the jurisdiction of the court; or

iv) If he is Govt. servant and can’t, in the opinion of the court, attend without
detriment to public service; or

v) If he is residing out of India and the court is satisfied that his evidence is
necessary.

b. To make local investigation (Rule-9 & 10):


The court may, in any suit, issue a commission to such person as it thinks fit
directing him to make local investigation and to report thereon for the purpose of

i) Explaining any matter in dispute; or

ii) Ascertaining the market value of any property or the amount of manse profit or
damages or annual net profits.

The object of local investigation is not to collect evidence which can be taken in
court but to obtain evidence which from its very peculiar nature can be had only on the
spot. Such evidence enables the court to properly & correctly understand and assess the
evidence on record and clarify any point which is left doubtful. It also helps the court in
deciding the question in controversy pending before it, e.g. whether the suit premises is
really occupied by the tenant or by strangers.

c. To adjust accounts (Rule-11 & 12):


If in any suit in which an examination or adjustment of account is necessary then
the court may issue a commission to such person as it thinks fit directing him to snake
such examination or adjustments. The court, for this purpose, shall issue necessary
instructions to the commissioner. The proceedings & the report if any of the
commissioner shall be evidence in the suit.

d. To make partition (Rule-13 & 14):


Where a preliminary decree for partition of immovable property has been passed
then the court may issue a commission to such person as it thinks fit to make partition
or separation according to the rights declared in such decree. The court shall, after
hearing the objections of different parties, make the final allotment.

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e. To hold investigation (Rule-10-A):
Where any question arising in a suit involves any scientific investigation which
can’t, in the opinion of court, be conveniently conducted before the court, the court
may, if it thinks it necessary, issue a commission to such person as it thinks fit, directing
him to inquire into such question and report thereon to the court.

f. To sell property (Rule-10-C):


Where, in an suit, it becomes necessary to sell any movable property which in the
custody of the court, the court may, if is of opinion that it is necessary, issue a
commission to such person as it fit, directing him to conduct such sale and report
thereon to the court.

g. To perform ministerial act (Rule-10-B):


Where any question arising in a suit involves the performance of any ministerial
act which can’t, in the opinion of court, be conveniently performed before the court, the
court may, if, is of opinion that it is necessary, issue a commission to such person as it
thinks fit, directing him to perform that ministerial act and report thereon to the court.

By the Amendment Act, 1976 Rules 10-A to 10-C have been inserted to provide
for issue of commission for scientific investigation, sale of movable property or
performance of ministerial act. Ministerial work means not the office work of the court
but work like accounting, calculation and other work of like nature.

Powers of Commissioner (Rules-16-18):

The commissioner may –

i. Summon and obtain the attendance of parties and their witnesses and examine them.

ii. Call for and examine documents.

iii. Enter into any land or building mentioned in the order.

iv. Proceed ex parte if the parties do not appear before him.

Expenses (Rule-15):

Rule 15 provides that the court may, if it thinks fit, order the party requiring the
commission to deposit the necessary expenses within the fixed period.

Conclusion:

The power of the court to issue commission is discretionary and it can be


exercised by court for doing full and complete justice between the parties. It can be
exercised by the court either on application by a party to the suit or on its own motion.
The provisions to issue commissions under the Code of Civil Procedure are exhaustive
and hence court cannot exercise inherent powers U/Sec. 15 for the purpose.

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10 - TEMPORARY INJUNCTION (ORDER-39)

Q.1. When can a court pass order for Temporary Injunction. (Mar-09)
Q.2. What are the provisions for Temporary Injunction under Civil Procedure Code? (Mar-
07)
Q.3. What is Temporary Injunction? Discuss the grounds for granting Temporary Injunction
by the Court. (Oct-06)

SYNOPSIS

Introduction
Definition of Injunction
Object
Who may apply?
Against whom injunction may be issued
Grounds
Principles
Injunction which may be granted
Injunction which may not be granted
Inherent power to grant injunction
Notice
Ex parte injunction
Appeal
Revision
Breach of injunction
Injunction on insufficient grounds

Introduction:

Injunctions are of two kinds: 1) temporary; and 2) permanent. A permanent


injunction restrains a party forever from doing the specified act and can be granted only
on merits at the conclusion of the trial after hearing both the parties. It is governed by
sections 38 to 42 of the Specific Relief Act, 1963. A temporary injunction, on the other
hand, restrains a party temporarily from doing the specified act and can be granted only
until the disposal of suit. It is regulated by the provisions of order 39 of the Code and
may be granted at any stage of the suit.

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Definition of Temporary Injunction:

"Temporary injunction means an injunction which is granted by court to prevent


wrongful or illegal act till the final disposal of suit."

Object:

The primary purpose of granting interim relief is the preservation of property in


dispute till legal rights and conflicting claims of the parties before the court are
adjudicated.

The underlying object of granting temporary injunction is to maintain and


preserve status quo at the time of institution of the proceeding and to prevent any
change in it until the trial determination of suit. It is granted for preventing future
possible injury.

Who may apply?

It is not the plaintiff alone who can apply for an interim injunction. A defendant
also may make an application for grant of an injunction against the plaintiff.

Against whom injunction may be issued:

An injunction may be issued only against a party and not against a strange or a
third party.

Grounds:

Temporary injunction may be granted by a court in the following cases:

a. Where any property in dispute in a suit is in danger of being wasted, damaged or


alienated by any party to the suit, or wrongfully sold in execution of decree; or

b. Where a defendant threatens, or intends to remove or dispose of his property


with a view to defrauding his creditors; or

c. Where a defendant threatens to dispossess the plaintiff or otherwise cause injury


to the plaintiff in relation to any property in dispute in suit; or

d. Where a defendant is about to commit a breach of contract, or other injury of any


kind; or

e. Where a court is of the opinion that the interest of justice so requires.

Principles:

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


discretion, however, should be exercised, judicially and on sound legal principles.
Injunction should not be lightly granted as it adversely affects the other side. Generally,
before granting the injunction, the court must be satisfied about the following aspects.

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a. Prima Facie case:
The first rule is that the applicant must make out a prima facie case in support of
the right claimed by him. The existence of prima facie case is a condition precedent for
grant of temporary injunction. The burden is on the plaintiff to satisfy the court by
leading evidence.

b. Irreparable Injury:
The applicant must further satisfy the court about the second condition by
showing that he will suffer irreparable injury if the injunction as prayed is not granted,
and that there is no other remedy open to him by which he can protect himself from the
consequences of apprehended injury.

c. Balance of Convenience:
The third condition for granting interim injunction is that the balance of
convenience must be in favor of the applicant. In other words, the court must be
satisfied that the comparative mischief, hardship or inconvenience which is likely to be
caused to the applicant by refusing the injunction will be granted than that which is
likely to be caused to the opposite party by granting it.

d. Other factors:
The above principles and guidelines are merely illustrative and neither exhaustive
nor absolute rules.

In accordance with the above principles, interim injunction of maintaining status


quo, against transfer of property, disposal of goods, making construction, effecting
recovery of dues, attachment of property etc. can be granted by a court.

No temporary injunction causing administrative inconvenience should be granted.


Thus, ordinary no injunction should be granted against recovery of tax, enforcement o
contractual rights & liabilities, interfering with inquiry or investigation.

The court shall, before granting an injunction, give notice to the opposite party
except where it appears that the object of granting the injunction would be defeated by
delay.

Ex parte injunction:

CASE LAW – Morgan Stanley vs. Kartick Das, (1994) 4 SCC 225

In the above case the Supreme Court stated the facts which should be taken into
consideration while granting an ex parte injunction –
a. Whether irreparable loss cause to the plaintiff;
b. Whether the refusal of ex parte injunction would involve grated injustice than grant
of it would involve;
c. the court would except a party applying for ex parte injunction to show utmost good
faith in making the application;
d. even if granted the ex parte injunction would be for a limited period of time;

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e. general principles like prima facie case, balance of convenience and irreparable loss
would also be considered by the court.
When court grant ex parte injunction without issuing notice to opposite party
then the requirement of recording reasons is not a mere formality but a mandatory
requirement.

Appeal:

An order granting or refusing to grant injunction is subject to appeal.

Revision:

An order granting or refusing an injunction is a 'case decided' within the meaning


of Sec. 115 of the Code and, hence a revision lies against such an order.

Breach of injunction:

The penalty may be either arrest of the opponent or attachment of his property
or both. However, the detention in civil prison shall not exceed 3 months and the
attachment of property shall not remain in force for more than one year.

Injunction on insufficient grounds (Section 95):

Where in any suit in which an order of temporary injunction has been obtained by
the plaintiff on insufficient grounds then the court may order the plaintiff to pay such
amount, not exceeding Rs.50,000 as compensation to the defendant.

Conclusion:

Injunction is a judicial process whereby a party is required to do, or to restrain


from doing, any particular act. The primary purpose of granting interim relief by way of
injunction is the preservation of the property in dispute till legal rights and conflicting
claims of the parties before the court are adjudicated. It’s another object is to prevent
future possible injury.

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11 - EXECUTION

Q.1. Describe the provisions for sale of property during execution of decree. (Mar-09)
Q.2. State property which can’t be attached in execution of decree. What is the effect of
attachment of property? (Nov-08)
Q.3. What is mean by execution? Explain the procedure and powers of court for execution of
decree. (Oct-07)
Q.4. Which properties are liable & not liable to attachment and sale in execution of decree?
Discuss. (Mar-07)
Q.5. What question can be determined by the court executing decree? Discuss the questions
which are beyond the scope of determination by the executing court. (Oct-06)
Q.6. Write provisions regarding attachment of property in execution of decree. (Nov-05)

SYNOPSIS
Introduction
Meaning of execution
Courts by which decree may be executed
Powers of executing court
Procedure for execution
Mode of execution
Delivery of property
Attachment and sale of property
Arrest and detention
Appointment of receiver
Partition
Cross decree and cross claims
Payment of money
Specific performance of contract
Injunction
Restitution of conjugal right
Execution of the document
Endorsement of negotiable instrument
Attachment of rent, manse profit

Conclusion

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Introduction:

The term "execution" has not defined in the Civil Procedure Code. The term
"execution" means the enforcement or giving effect to a judgment or order of a court of
justice. In other words, execution is the enforcement of decrees and orders by the
process of the court, so as to enable the decree holder to realize the fruits of the decree.
The execution is complete when the judgment creditor or decree holder gets money or
other thing awarded to him by the judgment, decree or order.

The principle governing execution of decrees and orders are dealt with in sections
36 to 74 and Order-21 of the Code. Order 21 contains 106 Rules.

The definition of decree is given in Sec. 2(2) of Civil Procedure Code, which
provides "decree means the formal expression of an adjudication which, so far as
regards the court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of plaint and the
determination of any question within Sec. 114, but shall not include.

a) Any adjudication from which an appeal lies as an appeal from an order.


b) Any order of dismissal for defaults.

Meaning of execution:

The term "execution" has not defined in the Civil Procedure Code. The term
"execution" means the enforcement or giving effect to a judgment or order of a court of
justice. In other words, execution is the enforcement of decrees and orders by the
process of the court, so as to enable the decree holder to realize the fruits of the decree.
The execution is complete when the judgment creditor or decree holder gets money or
other thing awarded to him by the judgment, decree or order.

Courts by which decree may be executed:

Section 38 of the Code provides that decree may be executed either by the court
which pass it or by the court to which it is sent for execution. Section 39 to 45 provide
for transfer for execution of a decree by the court which passed the decree to another
court.

As a general rule, the court which passed the decree is primarily the court to
execute it but such court may send the decree for execution to another court either suo
moto or on the application of decree holder.

The power of transfer court comes to an end once the court transfers a decree to
another court for its execution and only transfer court has jurisdiction to execute the
same. The transferee court will decide all the questions arising in execution proceedings.

Powers of executing court:

Section 42 of the Civil Procedure Code provides that the executing court gets
same powers as if it had been passed by itself.

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At the same time, the Code requires that the court executing the decree sent to it
does not exercise power in respect of the matter which could be determined by the
court which passed the decree. The executing court cannot convert itself into the court
passing the decree.

General principles dealing with powers and duties of the executing court -

a. No court can execute a decree in respect of property situate entirely outside its local
jurisdiction.
b. An executing court can’t go behind the decree. It means it has to take the decree as
it stands and execute it according to its terms. It has no power to vary, modify its
terms. Moreover, it has no power to question the legality of the decree of the court.
c. When the decree is itself is null and invalid because of inherent lack of jurisdiction,
the decree is not executable.
d. A decree does not become in executable merely on the ground of death of decree
holder or decree debtor but it can be executed against his legal heir.
e. The executing court has power to mould the relief granted to the plaintiff in
accordance with a charged circumstances.

Procedure for execution:

All proceedings in execution commence with the filing of an application for


execution.

a] Application for execution –


Execution is the enforcement of a decree by judicial proceedings which enables
the decree holder to realize the fruits of the decree passed by a competent court in his
favor. Order 21 Rules 10 to 25 and 105 & 106 deals with application for execution. The
following persons may file an application for execution –

a. Decree Holder
b. Legal representative of the decree holder
c. Representative of the decree holder
d. Any person claiming under the decree holder
e. Transferee of the decree holder

b] Against whom execution may be taken out –


Execution may be taken out against the following persons.

a. Judgment-debtor
b. Legal representative of judgment-debtor, if he is dead
c. Representative of the judgment debtor
d. Surety of the judgment-debtor

c] To whom application may be made –


An application for execution may be filed in the court which passed the decree, or
in the court to which the decree has been transferred for execution.

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d] Contents of application –
Except in case of money decree, every application for execution shall be in
writing, signed and verified by the application. It shall contain the necessary particulars
like the number of the suit, the name of the parties, the date of the decree, the amount
of the decree etc.

e] Procedure on receiving application –


i. Admission (Rule-17):

Rule-17 prescribes the procedure to be followed on receiving an application for


execution of a decree. It is a duty of the court to ascertain whether the execution
application complies with the requirements of Rules 11 to 14. If they are complied with,
the court must admit and register the application.

ii. Hearing of Application (Rules-105 & 106):

Rules 105 & 106 have been inserted by the Amendment Act of 1976. Rule 105
provides that the court before which an application is pending may fix a date for hearing
of such application. When the application is called out for hearing and the applicant is
not present, the court may dismiss the application. On the other hand, if the applicant is
present and the opposite party is not present, the court may hear the application ex
parte and pass such order as it thinks fit.

Rule 106 lays down that if the application is dismissed for default or an ex parte is
passed under Rule 105, then the aggrieved party may apply to the court to set aside
such order.

An order rejecting an application under Rule 106(1) is appealable.

iii. Notice (Rule-22):

Rule 22 provides for the issue of show cause notice to persons against whom
execution is applied for in certain cases.

iv. Procedure after notice (Rule-23):

If the person to whom the notice is issued under Rule 22 does not appear, the
court shall, issue process for execution of decree. But where such person offers his
objections against the execution of the decree, the court shall consider them and pass
such order as it thinks fit.

f] Limitation –
The period of limitation for the execution of a decree is 12 years from the date of
the decree.

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Mode of execution:

Civil Procedure Code lays down various modes of execution. After filing of
application for execution of a decree, the executing court can enforce the execution of
the decree. The decree may be enforced by the executing court either by delivery of
property, by attachment and sale or by sale without attachment of any property or by
arrest and detention in civil prison or by appointing receiver, by effecting partition or in
any other manner as the nature of the relief may require. The Code lays down the
following modes for execution of different types of decree.

Delivery of property:
i. Movable property: Sec. 51(a) Rule 31:

Where the decree is for any specific movable property, it may be executed.

a. By seizure and delivery of the property.


b. By detention of judgment-debtor.
c. By attachment & sale of his property.
d. By attachment and detention, both.

But for the execution of decree for the delivery of movable property, the
judgment-debtor must be in possession of property.

ii. Immovable property:

Rule 35 and Order 21 provide for the mode of executing decrees for possession of
immovable property. Where the decree is for immovable property in the possession of
judgment-debtor, it can be executed by removing the judgment-debtor and thereby
delivering the possession to decree holder.

Attachment and sale of property:


Section 51(b) empowers the court to order execution of the decree by
attachment and sale. The court is competent to attach the property if it is situated
within the local limits of the jurisdiction of the court. Sec. 6 to 64 & Rules 51 to 57 of
Order 21 deal with provisions of attachment of property. The primary object of the
attachment of property is to give notice to the judgment-debtor not to alienate any
property to anyone.

A decree may also be executed on the application of the decree-holder by


attachment and sale or by sale without attachment of property. The Code recognizes the
right of the decree-holder to attach the property of the judgment-debtor in execution
proceedings and lays down the procedure to affect attachment section 60 to 64 and
Rules 41 to 57 of Order 21 deal with the subject matter of attachment of property.

The Code enumerates properties which are liable to be attached and sold in
execution of a decree. Likewise, it also specified properties which are not liable to be
attached or sold. The Code also declares that a private alienation of property after
attachment is void.

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 Object:
The primary object of attachment of property is to give notice to the judgment-
debtor not to alienate the property to anyone as also to the general public not to
purchase the property of judgment-debtor attached in execution proceedings.

 Properties which can be attached (Section 60):


Section 60(1) of the Code declares what properties are liable to attachment and
sale in execution of decree; and what properties are executants there from. All saleable
property movable or immovable belonging to judgment-debtor may be attached and
sold in execution of decree against him.

Under Sec. 60 following properties are liable to attach and sale in execution of a
decree –

a. Land.
b. House or other buildings.
c. Goods.
d. Money and bank notes.
e. Cheques, bills of exchange and promissory note.
f. Govt. securities, bond & other securities for money.
g. Shares in corporation (i.e. a company.
h. All other saleable property, movable or immovable belonging to judgment-debtor.

 Properties which cannot be attached (Section 60 & 61)


Section 60(1) also provides that following kinds of property not liable to
attachment or sale.

a. The necessary wearing cloths cooking vessels, bedding of the judgment-debtor, his
wife and children and such personal ornaments as, in accordance with religious
usage, can’t be parted with by any woman.
b. Tools of artisans.
c. Implements of husbandry.
d. Houses of agriculturist.
e. Books of account.
f. A mere right to sue for damages.
g. Any right of personal service.
h. Stipends and gratuities allowed to pensioners of the Govt.
i. The wages of labors and domestic servants, whether payable in money or in kind.
j. Salary to the extent to the first Rs.1000/- (Amendment, 1999, earlier it was Rs.400),
in execution of any decree other than a decree for maintenance.
k. One third of the salary in execution of any decree for maintenance.
l. The pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act,
1950, or the Navy Act, 1950 applies.
m. All moneys payable under a policy of insurance on the life of the judgment-debtor.
n. A right to future maintenance.
o. Any allowance declared by Indian Law to be exempt from liability to attachment or
sale in execution of a decree.

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Section 61 empowers the state Govt. to exempt agriculture produce from
attachment or sale. This provision is intended to enable an agriculturist to continue
agricultural operations even after execution of a decree.

Section 64(1) enacts that a private alienation of property after attachment is void
against the claims enforceable under the attachment.

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12 - SUITS IN PARTICULAR CASES
Q.1. Explain the provisions for suit in forma pauperism. (Oct-05)
Q.2. Write provisions for filing a suit by an indigent person. (Mar-09)
Q.3. State provisions for filing a suit against a public officer. (Nov-08)
Q.4. Who is a pauper? Discuss the relevant provisions for suit in forma pauperism. (Oct-07)
Q.5. Describe the provisions for filing suit against Govt. or public officer. (Mar-07) (Oct-06)
Q. 6 How a suit by a minor or against a minor is instituted? (Nov-05)

SYNOPSIS
Introduction
Object of notice
Essentials
Statutory notice whether empty formality
Statutory notice whether mandatory
Act purporting to be done in official capacity
Waiver of notice
Form of notice
Mode of service
Urgent relief
Title of suit
Statement in plaint
Parties
Procedure
Other privileges
Conclusion

Introduction:

For the purpose of procedure, suits may be divided into two classes, namely, - a)
suits in general; and 2) suits in special cases. We have already discussed in the previous
chapters the proceedings required to be followed in the former class of suits.

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 Suit by or against Govt. or public officers
(Sec.79-82) (Order-27)
Section 79 to 82 and Order 27 of the Code lay down procedure where suits are
brought by or against the Govt. or public officers. The provisions, however, prescribe
procedure and machinery and do not deal with rights and liabilities enforceable by or
against the Govt.

 Requirement of notice (Section 80 [1])


In ordinary suits, i.e. suits between individuals and individuals, notice need not be
given to the defendant by the plaintiff before filing a suit. Section 80 of the Code,
however, declares that no suit shall be instituted against the Govt. or against a public
officer in respect of any act purporting to be done by such public officer in this official
capacity, until the expiration of two months next after notice in writing has been
delivered to, or left at the office of –

a. In the case of a suit against the central Govt., except where it relates to a railway, a
secretary to that Govt.
b. In case of a suit against the central Govt. where it relates to a railway, the General
Manager of the railway.
c. In the case of a suit against the Govt. of state of Jammu & Kashmir, the Chief
Secretary to that Govt.
d. In case of a suit against any other state Govt., a secretary to that Govt. or the
collector of the district.
e. In the case of public officer, such public officer.

Object of notice:

The primary object of section 80 is to give an opportunity to the Govt. or the


public officer to consider the legal position and to settle the claim put forward by the
prospective plaintiff if the same appears to be just and proper. The legislative intend
behind the provision is that public money should not be wasted for unnecessary
litigation.

CASE LAW – Bihari Chowdhary vs. State of Bihar, AIR 1984 SC 1043

In the above case the purpose behind the provision of section 80 has been
highlighted by the Apex Court that, "the object of section 80 is the advancement of
justice and securing of public good by avoidance of unnecessary litigation."

Essentials:

A notice under section 80 must contain –

a. Name, description and place of residence of the person giving notice.


b. A statement of cause of action.
c. Relief claimed by him.

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Statutory notice whether empty formality:

Statutory notice is not an empty formality. The object is to give an opportunity to


the Govt. or a public officer to reconsider the matter and take an appropriate decision in
accordance with law. Such notice has, however, become an empty formality. The
administration is often unresponsive and shows no politeness even to inform the
aggrieved party why his claim is not accepted.

Statutory notice whether mandatory:

The provisions of section 80 are express, explicit and mandatory and admit no
exceptions. They are imperative in nature and must be strictly complied with. They
impose absolute obligation on the court.

CASE LAW - Amar Nath vs. Union of India, AIR 1963 SC 424

In the above case the honorable Supreme Court held that No court entertain a
suit unless the notice is duly served under sub-sec. (1) of Sec. 80. If the section has done
injustice, it is a matter which can be rectified by a legislative and not by a court.

Act purporting to be done in official capacity:

The expression "any act purporting to be done by such public officer in his official
capacity" takes within its sweeps acts as also illegal omission. Likewise, it also covers
past as well as future act.

Waiver of notice:

Though issuance of a notice under section 80 is mandatory & a condition


precedent for the institution of suit, the provision is merely procedural in nature and not
a substantive one. It is, therefore, open to the Govt. or public officer to waive such
benefit.

Form of notice:

A notice under Sec. 80 need not be in a particular form as no form has been
prescribed by the Code for the purpose. It is sufficient if the notice complies with the
requirements of section. It should contain details sufficient to inform the party and basis
of the claim and the relief sought.

Mode of service:

A notice under section 80 of the Code should be delivered to, or left at the office
of the appropriate authority. Hence, such notice can either be served personally or be
sent by registered post.
Urgent relief:
Sub-section (2) of section 80 as inserted by the Code of Civil Procedure
Amendment Act, 1976 enables the plaintiff to institute a suit against the Govt. or public
officer for obtaining urgent or immediate relief with the leave of the court even without
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service notice to the Govt. or public officer. This sub-section, thus, is an exception to the
rule laid down in sub-sec. (1) of Section 80 and allows the plaintiff to obtain urgent relief
in grave cases even without issuing notice.

The object of this provision is to prevent failure or miscarriage of justice in urgent


case.

Title of suit (Section 79):

In a suit by or against the Govt., the authority to be named as plaintiff or


defendant, as the case may be, shall be –

a. In the case of a suit by or against the central Govt., the Union of India.
b. In the case of suit by or against the state Govt., the state.

Statement in plaint:

A plaint can be presented after the expiration of two months of notice, which
must contain a statement that statutory notice under section 80 of the Code, has been
delivered. An omission to make such a statement is fatal and, in its absence, the plaint
will be rejected by court.

Parties:

Where a suit is filed against a public officer in respect of any act purporting to be
done by him in his official capacity, the Govt. should be joined as a party to the suit.

Procedure:

In a suit by or against the Govt., the plaint or written statement shall be signed by
any person appointed by the Govt. persons authorized to act for the Government shall
be deemed to be recognized agent under the Code. A Govt. pleader can receive
summons on behalf of the Govt. A counsel for the state need not file a Vakalatnama.
Reasonable time should be granted to the Govt. for filing a written statement. In all suits
against the Govt. or public officer, it is the duty of the court to assist in arriving at a
settlement.

Other privileges:
Rule 5-A provides that when a suit is filed against a public officer, the Govt.
should be joined as party to the suit.
Section 81 provides that in a suit filed against a public officer, the court shall
exempt him from appearing in person if it is satisfied that he can’t absent himself from
his duty without detriment to the public service. He shall not be liable to arrest, nor his
property shall be liable to be attached otherwise then in execution of decree.
Section 82 enacts that no execution shall be issued on any decree passed against
the Govt. or public officer unless it remains unsatisfied for 3 months from the date of
the decree.
Conclusion:

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13 - INDIGENT PERSON

SYNOPSIS
Nature and Scope
Object
Indigent Person (Order-33 Rule-1)
Contents of application (Rule 2)
Rejection of application (Rule 5)
Inquiry (Rule 1-A)
Where permission is granted (Rule 8 to 9-A)
Where permission rejected (Rule 15 to 15-A)
Revocation of permission (Rule-9)
Realization of court-fees (Rule 14)
Appeals by indigent person (Order-44)
Conclusion

Nature and Scope:


Order 33 provides for filing of suits by indigent persons. It enables persons who
are too poor to pay court fees and allows them to institute suits without payment of
requisite court fees.

Object:

The provisions of Order 33 are intended to enable indigent persons to institute &
prosecute suits without payment of any court fees. Generally, a plaintiff suing in a court
of law is bound to pay court fees prescribed under the Court Fees Act at the time of
presentation of plaint. But a person may be too poor to pay the requisite court fee. This
order exempts such person from paying the court fee at the first instance and allows
him to prosecute his suit in forma pauperism, provided he satisfies certain conditions
laid down in this order.

Indigent Person (Order-33 Rule-1):

A person is an "indigent person" –

a. If he is not possessed of sufficient means to enable him to pay the fee prescribed
by law for the plaint in such suit; or

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b. Where no fee is prescribed, when he is not entitled to property worth one
thousand rupees.

In both the cases, the property exempt from attachment in execution of a decree
and the subject matter of the suit should be excluded.

Explanation II enacts that the property acquired by the applicant after the
presentation of the application for permission to sue as an indigent person and the
decision thereon should also be taken into consideration for deciding the question
whether the applicant is an indigent person.

Contents of application (Rule 2):

Every application for permission to sue as an indigent person should contain the
following particulars.

a. The particulars required to plaints in suit;

b. A schedule of any movable or immovable property belonging to the applicant


with the estimated value thereof; and

c. Signature and verification as provided in Order 6 Rule 14 & 15.

The application should be presented by the applicant to the court in person


unless exempted by the court. Where there are two or more plaintiffs, it can be
presented by any of them. The suit commences from the moment an application to sue
in forma pauperism is presented.

Rejection of application (Rule 5):

The court will reject an application for permission to sue as an indigent person in
the following cases –

a. Where the application is not framed & presented by the prescribed manner.

b. Where the applicant is not an indigent person; or

c. Where the applicant has, within two months before the presentation of the
application, disposed of any property fraudulently or in order to get permission to
sue as an indigent person; or where there is no cause o action; or

d. Where the suit appears to be barred by law; or

e. Where any other person has entered into an agreement with the applicant to
finance the cost of the litigation.

Inquiry (Rule 1-A):

In the first instance, an inquiry into the means of applicant should be made by the
Chief Ministerial Officer of the court. The court may adopt the report submitted by such
officer or may itself make an inquiry.

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Where, the application submitted by the applicant is in proper form & is duly
represented then the court may examine the applicant regarding the merits of the claim
& the property of the applicant. The court shall issue notice to the opposite party and to
the Govt. pleader & fix a day for receiving evidence as the applicant may produce in
proof of his case of indecency or in disproof thereof by the opposite party or by the
Govt. pleader on the day fixed, the court shall examine the witness (if any), produced by
either party, hear their arguments and either allow or reject the application.

Where permission is granted (Rule 8 to 9-A):

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


be a plaint in the suit & shall proceed in the ordinary manner, except that the plaintiff
will not have to pay court fees or process fees. The court may assign a pleader to an
indigent person if he is not represented by a pleader. A defendant can also plead set-off
or counter claim as an indigent person.

Where permission rejected (Rule 15 to 15-A):

Where the court rejects an application to sue as an indigent person, it will grant
time to the applicant to pay court fees. An order refusing to allow an application to sue
as an indigent person shall be bar to a subsequent similar application.

Revocation of permission (Rule-9):

The court may, on an application by the defendant or by the Govt. pleader,


revoke permission granted to the plaintiff to sue as an indigent person in the following
cases.

a. Where he is guilty of improper conduct in the course of the suit; or

b. Where his means are such that he ought not to continue to sue as an indigent
person; or

c. Where he has entered into an agreement under which another person has
obtained an interest in the subject matter of the suit.

Realization of court-fees (Rule 14):

Where an indigent person succeeds in a suit, the state Govt. can recover court
fees from the party as per the direction in the decree.

Appeals by indigent person (Order-44):

A person unable to pay court fees on memorandum of appeal to allow him to


appeal as an indigent person. The necessary inquiry as prescribed in Order 33 will be
made before granting or refusing the prayer. But where the appellant was allowed to
sue as an indigent person in the trial court, no fresh inquiry will be necessary if he files
an affidavit that he continues to be an indigent person.

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Conclusion:

The provisions of Order 33 are intended to enable indigent persons to institute


and prosecute suit without payment of court fees. A person is an indigent if he is not
possessed o sufficient means to enable him to pay the fee prescribed by law for the
plaint in the suit. The Chief Ministerial Officer of the court makes an enquiry into the
means of applicant. The court may adopt the report submitted by such officer or may
itself make an inquiry. When an indigent person succeeds in a suit, the state Govt. can
recover court fees from the party as per the direction in the decree. Where an indigent
person fails in the suit, the court fees shall be paid by him.

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14 - SUIT BY OR AGAINST MINOR

SYNOPSIS

Minor - Meaning / Definition (Rule 1)


Nature and Scope
Object
Suits by minors (Rule 1 to 2-A)
Suit against minors (Rule 3)
Who may be appointed as guardian or next friend? (Rule 4)
Powers and duties of guardian or next friend (Rule 5-7)
Interest of infants of paramount consideration
Retirement, removal or death of guardian or next friends (Rules
8 to 11)

Minor – Meaning / Definition (Rule 1):

According to Sec. 3 and 4 of Indian Majority Act, 1875, a minor is a person who
has not completed the age of 18 years. But in the case of a minor of whose person or
property a guardian or next friend has been appointed by a court, or whose property is
under the superintendence of a court of wards, the age of majority is 21 years.

Nature and Scope:

Order 32 prescribes the procedure of suits to which minors or person of unsound


mind are parties.

Object:

Order 32 has been specifically enacted to protect the interests of minors and
persons of unsound mind and to ensure that they are represented in suits or
proceedings by persons who are qualified to act as such.

CASE LAW – Ram Chandra vs. Man Singh, AIR 1968 SC 954

In the above case the honorable Apex Court held that a decree passed against a
minor or a lunatic without appointment of a guardian is a nullity and is void and not
merely voidable.

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Suits by minors (Rule 1 to 2-A):

Every suit by a minor should be instituted in his name through his guardian or next
friend. Where such minor is a plaintiff, the court may, at any stage of the suit, order his
guardian or next friend, either on the application of the defendant or suo-moto, for
reasons to be recorded, to furnish security for costs of the defendant. This provision
seeks to discourage vexatious litigation by guardians or next friends of minors.

Suit against minors (Rule 3):

Where a suit is instituted against a minor, the court shall appoint a guardian to
defend the suit such appointment should continue throughout all the proceedings
including an appeal or revision and in execution of decree unless it is terminated by
retirement, removal or death of such guardian.

Who may be appointed as guardian or next friend? (Rule 4):

Any person who has attained majority and is of sound mind, may act as a
guardian or next friend, provided his interest is not adverse to that of the minor, who is
not the opposite party in the suit and who gives consent in writing to act as a guardian
or next friend. In the interest of minor, however, the court may permit another person
to act as the next friend or guardian of the minor. In the absence of a fit & willing person
to act as a guardian, the court by appoint any of its officer to be such guardian.

Powers and duties of guardian or next friend (Rule 5-7):

No guardian or a next friend can, without the leave of the court, receive any
amount or movable property on behalf of a minor by way of compromise, nor enter into
any agreement or compromise on his behalf in the suit.

Rules 6 & 7 provide that no next friend or guardian of a minor for the suit shall,
without the leave of the court.

a. receive any money or other movable property on behalf of a minor either by way
of compromise before decree or order in favor of minor.

b. enter into any agreement or compromise on behalf of a minor with reference to


the suit, unless such leave is expressly recorded in the proceedings. The application for
such leave must be accompanied by an affidavit of the next friend or guardian of the
minor to the court that such compromise is in his opinion for the benefit of the minor.
Any compromise entered into without the leave of the court shall be voidable against all
parties other than the minor.

Rule 6 & 7 are designed to safeguard the interest of a minor during the pendency
of a suit against hostile, negligent or collusive acts of a next friend or guardian.

Interest of infants of paramount consideration:

The provisions of the Code have been based on the general principles that the
interest of infants is of paramount consideration. It is therefore, the duty of the court to
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ensure that guardians and next friends act honestly and exercise their discretionary
powers bona fide in the interests of minors.

Retirement, removal or death of guardian or next friends (Rules 8 to 11):

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15 - MANSE PROFITS (S. 2[12])

SYNOPSIS
Manse Profits (Section 2[12]):
Object:
Against whom manse profit can be claimed?
Assessment:
Test:
Deductions:

Manse Profits (Section 2[12]):

"Manse profits" of property means those profit which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received there from, together with the interest of such profits but shall not include
profits due to improvements made by the person in wrongful possession."

Object:

Every person has a right to possess his property. And when he is deprived of such
right by another person then he is not only entitled to restoration of possession of his
property, but also damages for wrongful possession from that person. The manse profits
are thus compensation paid to the real owner.

The object of awarding a decree for manse profit is to compensate the person
who has been kept out of possession and deprived of enjoyment of his property even
though he was entitled to possession thereof.

Against whom manse profit can be claimed?

Thus, a decree for manse profit can be passed against a trespasser, or against a
person against whom a decree for possession is passed, or against a person in
possession of mortgaged property after a decree for foreclosure has been passed
against him, or against a person or mortgagee in possession of property even after a
decree for redemption is passed or against a tenant holding over at will after a notice to
quit has been served upon him.

Assessment:

In assessing the manse profit, usually the court will take into account what the
defendant has gained or reasonably might have gained by his wrongful possession of the
property.

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Test:

The test to find out manse profits is not what profits is not what the plaintiff has
lost by being out of possession but what the defendant gained or might reasonably &
with ordinary prudence have gained by such wrongful possession.

Deductions:

While awarding manse profits, the court may allow deductions to be made from
the gross profits of the defendant in wrongful possession of the property, such as land
revenue, rent, ceases, cost of cultivation & reaping, the charges incurred for collection
of rent etc. In other words, manse profit should be net profit.

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16 - PLACE OF SUING
Q.1. State briefly the provisions of C.P.C. relating to court in which suits can be instituted.
Q.2. Discuss the statement, "Courts shall have jurisdiction to try all suits of civil nature."
Q.3. What is meant by place of suing and explain the relevant provisions of C.P.C.?
Q.4. "Every suit shall be instituted in the court of the lowest grade competent to try it."
Comment.

SYNOPSIS

Introduction
Court in which suits to be instituted (Section 15)
Suits to be instituted where subject matter situates (Sec.16)
Suits for immovable property situate within jurisdiction of different
courts (Section 17)
Place of institution of suit where local limits of jurisdiction of courts
are uncertain (Section 18)
Suits for compensation for wrongs to persons or movables (Section
19)
Other suits to be instituted where the defendant resides or cause of
action arises (Section 21)
Baron suit to set aside decree on objection as to place of suit
(Section 21-A)

Introduction:

A suit or proceedings must be filed by the plaintiff in an appropriate and


competent court and at the same time, it must be convenient to the parties, to lessen
the expenditure, and save the time of the courts, thus the public money. Sections 15 to
21-A of the C.P.C. deal with 'place of suing'.

Section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Section 16 to 18 deals with suits relating to immovable property.
Section 19 applies to suits for compensation for wrong to person or to movable
property. Section 20 is a residuary section and covers all cases not dealt with by sections
15 to 19. Section 21 recognizes the well established principle that the defect as to
territorial or pecuniary jurisdiction can be waived. It forbids appellate or revisional court
to allow objection as to place of suing or pecuniary limits. Section 21-A bars of

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substantive suit for setting aside a decree passed by a court on the ground of want of
territorial jurisdiction.

Court in which suits to be instituted (Section 15):

Every suit shall be instituted in the court of the lowest grade competent to try it.

The rule laid down in this section is a rule of procedure and does not affect the
jurisdiction of the court. Hence, a decree passed by a court of a higher grade can’t be
said to be without jurisdiction. It is merely an irregularity covered by section 99 of the
Code and the decree passed by the court is not a nullity.

Suits to be instituted where subject matter situates (Sec.16):

Subjects to the pecuniary or other limitations prescribed by any law, suits –


a. for the recovery of immovable property with or without rent or profits.
b. for the partition of the immovable property.
c. for foreclosure, sale or redemption in the case of a mortgage of immovable
property.
d. for the determination of any other right to immovable property or interest in
immovable property.
e. for compensation for wrong to immovable property.
f. for the recovery of immovable property actually under distrait or attachment.

Shall be instituted in the court within the local limits of whose jurisdiction the
property is situate.

Provide that a suit to obtain relief respecting or compensation for wrong to


immovable property held by or on behalf of the defendant may where the relief sought
can be entirely obtained through his personal obedience be instituted either in the court
within the local limits of whose jurisdiction the property situate, or in the court within
the local limits of whose jurisdiction the defendant actually and voluntarily resides or
carries on business, or personally works for gain.

Explanation–In this section property means property situate in India.

Suits for immovable property situate within jurisdiction of different courts


(Section 17):

Where a suit is to obtain relief respecting, or compensation for wrong to,


immovable property situate within the jurisdiction of different courts, the suit may be
instituted in any court within the local limits of whose jurisdiction any portion of the
property is situate.

It has provided that in respect of the value of the subject matter of the suit, the
entire claim is cognizable by such court.

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Place of institution of suit where local limits of jurisdiction of courts are
uncertain (Section 18):

i) Where it is alleged to be uncertain within the local limits of whose jurisdiction


of which two or more courts any immovable property is situate, any one of those courts
may if satisfied that there is a ground for the alleged uncertainty, record a statement to
that effect and thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in that suit shall have the same effect as if the property were
situate within the local limits of its jurisdiction.

Provided that the suit is one with respect to which the court is competent as
regards the nature and value of the suit to exercise jurisdiction.

ii) Where a statement has not been recorded under sub-section (1), and an
objection is taken before an appellate or Revisional court that a decree or order in a suit
relating to such property was made by a court not having jurisdiction where the
property is situate, the Appellate or Revisional Court shall not allow the objection unless
in its opinion there was at the time of the institution of the suit, no reasonable ground
for uncertainty as to the court having jurisdiction with respect thereto & there has been
a consequent failure of justice.

Suits for compensation for wrongs to persons or movables (Section 19):

Where an suit is for compensation for wrong done to the person or to movable
property, if the wrong was done within the local limits of the jurisdiction of one court
and the defendant resides or carries on business, or personally works for gain, within the
local limits of the jurisdiction of another court, the suit may be instituted at the option
of the plaintiff in either of the said courts.

Other suits to be instituted where the defendant resides or cause of


action arises (Section 21):

Subject to the limitations aforesaid, every suit shall be instituted in a court within
the local limits of whose jurisdiction-

a. the defendant, or each of the defendants where there are more than one, at the
time of the commencement of the suit, actually and voluntarily resides, or carries on
business or personally works for gain;

b. any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
carries on business, or personally works for gain, provided that in such case either the
leave of the court is given, or the defendants who do not resides, or carry on business,
or personally works for gain, as aforesaid, acquiesce in such institution;

c. cause of action, wholly or in part arises.

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Baron suit to set aside decree on objection as to place of suit (Section
21-A):

No suit shall lie challenging the validity of a decree passed in a former suit
between the same parties, or between the parties under whom they or anyone of them
claim, litigating under the same title, one any ground based an objection as to the place
of suing.

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17 - ATTACHMENT BEFORE JUDGMENT
(ORDER-38)

SYNOPSIS

Introduction
Under Order 38 of C.P.C
Rule – 5 (Where defendant may be called upon to furnish the
security for production of property)
Rule – 6 (Attachment where cause not shown, (or) security not
furnished)
Rule – 7 (Modes of making attachment)
Rule – 9 (Order 38) (Removal of Attachment when the security
furnished (or) suit is dismissed)
Rule – 10 (Attachment before judgment not to affect the rights of
strangers nor a bar decree-holder from applying for sale)
Rule – 11 (Re-attachment in execution)
Rule – 12 (Exemption from attachment)
Attachment on insufficient grounds (Section 95)

Introduction:

Already we have studied about the attachment of property in execution of decree


of judgment-debtor for the purpose to realize the fruits of decree passed in favor of
decree-holder.

In this lecture we are going to discuss about, 'the attachment before judgment'. A
question may frequently arise in mind that – Can a court pass an order of attachment
before judgment?

The answer is obviously – Yes

Yes, a court can attach the property of judgment-debtor before the judgment.

Under Order 38 of C.P.C.:

The primary object of attachment before judgment is to prevent any attempt by


the defendant to defeat, the realization of the decree. That may be passed against the
defendant in any suit.
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In other words, the primary object of attachment before judgment is to unable
the decree holder to realize the amount of decree, if passed, from the defendant’s
property. So, it prevents an attempt of defendant to defeat the realization of a decree
passed in favor of the plaintiff (Decree-holder).

Rule – 5 (Where defendant may be called upon to furnish the security for
production of property):

(i) Where at any stage of a suit pending between the plaintiff & defendant, the
court is satisfied by an affidavit (or) otherwise that the defendant with intention to
obstruct (or) delay in the execution of any decree, that may be passed against him, -

(a) Is about to dispose off the whole on any part of his property, (or)

(b) Is about to remove the whole (or) any part of his property from the local limits of the
jurisdiction of the court,

then the court may direct the defendant to furnish the security in such sum as
may be specified in the order, (or) to produce the property, before the court at the
disposal of suit (or) to deposit the value of property as may be sufficient to satisfy the
decree (or) to appear & show cause why he should not furnish the security?

Rule – 6 (Attachment where cause not shown, (or) security not furnished):

Where the defendant fails to show cause, "Why he should not furnish security?,
(or) fails to furnish the security as required within a time fixed by the court, then the
court may pass an order for the attachment of property which is sufficient to satisfy the
decree which may be passed in the suit."

The court may gives directions of the attachment of the defendant’s property
either the defendant fails to show cause (or) fails to furnish the security.

Rule 6 also says that – where the defendant furnished the required security and
the already the property has been attached, the court shall order the attachment to be
withdrawn (or) make such order as it thinks fit.

Rule – 7 (Modes of making attachment):

The attachment shall be made in the manner (or) procedure provided for the
attachment of property in execution of decree.

Rule – 9 (Order 38) (Removal of Attachment when the security furnished


(or) suit is dismissed):

Where an order is made for attachment before judgment, the court shall order
the attachment to be withdrawn, when the defendant furnishes the security as required
together with the security for the costs of the attachment (or) when the suit is
dismissed.

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Rule – 10 (Attachment before judgment not to affect the rights of
strangers nor a bar decree-holder from applying for sale):

An attachment before judgment shall not affect the rights of persons existing
prior to the attachment, if they are not the parties to the suit, or bar any person holding
a decree against the defendant from applying for the sale of the property under
attachment in execution of such decree.

Rule – 11 (Re-attachment in execution):

Where the property has been attached by the court under the said order before
the judgment & a decree is subsequently passed in favor of the plaintiff. It shall not be
necessary to apply for fresh attachment of the property in execution of a decree.

Rule – 12 (Exemption from attachment):

The court cannot order the attachment (or) production of any property exempted
from the attachment in execution of a decree.

Attachment on insufficient grounds (Section 95):

Compensation for obtaining arrest attachment, (or) injunction on insufficient


grounds –

Where in any suit in which an order of attachment of the property of defendant


has been obtained on insufficient grounds by the plaintiff (or) where the suit of the
plaintiff (or) where the suit of the plaintiff fails & it appears to the court that there was
no reasonable ground for instituting it, then on the application made by the defendant
the court may order the plaintiff to pay the compensation of amount not exceeding
Rs.50,000 to the defendant for the injury caused to the defendant including an injury to
the reputation.

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18 - ATTACHMENT BEFORE JUDGMENT
(ORDER-38)

Nature & Scope:

Generally, when a decree is passed against any person, then such decree is
executed by way of arresting the judgment-debtor (or) by way of attachment of
property of judgment-debtor.

But, under special circumstances, the court can pass the order of arrest before
judgment, (or) attachment before judgment.

Object of arrest before judgment:

It is enable to the plaintiff to realize (or) meet with the decree which may be
passed in his favor and to prevent the attempt of defendant to defeat the execution of
decree, which may be passed against him.

Order- 38, Rule-1 (Grounds, (or) where the defendant may be called
upon to furnish the security for the appeance):

Where, at any stage of the suit the court is sufficient that either by affidavit (or)
otherwise –

(a) That, the defendant with intention to delay the plaintiff (or) to avoid any process
of the court, (or) to obstruct (or) delay the execution of any decree that may be passed
against him, -

(i) Has absconded (or) left the local limits of the jurisdiction of the court; or

(ii) Has disposed off (or) removed from the local limits of the jurisdiction of the
court, his property, (or) any part thereof.

(b) That, the defendant is about to leave the India under circumstances because of
which the plaintiff will be obstructed (or) delayed in the execution of any decree, that
may be passed against the defendant in the suit, the court may issue a warrant to arrest
the defendant & brings him before the court to show cause, ‘why he should not furnish
the security for his appearance.’

However, the defendant shall not be arrested, if he pays to the officer entrusted
with the execution warrant any sum specified in the warrant to satisfy the plaintiff’s
claim.

Conditions:

An application for arrest may be made by the plaintiff at any time after the plaint
is presented.

However, before this extra-ordinary power can be exercised, the court must be
satisfied about the following two conditions.
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(i) The plaintiff’s suit must be bona fide and his cause o action, must be prima
facie made-out.

(ii) The court must have satisfied (or) reason to believe that – if such
extraordinary power is not exercised, then real danger is likely to be caused that the
defendant will remove himself (or) his property from the jurisdiction of this court.

Rule-2 (Security):

(i) Where the defendant fails to show cause – "Why he should not furnish security
for his appearance", the court shall order his either to deposit the money in court (or)
other property against him (or) to furnish the security for his appearance at any time
when called upon while the suit is pending.

(ii) Every surety for the appearance of the defendant shall bind himself, in default
of such appearance to pay any sum of money which the defendant may be ordered to
pay in the suit.

Rule – 3 (Surety procedure on application by to be discharged):

When the surety apply to the court that he is intended to be discharged from his
obligation, on such application the court shall summon to the defendant to appear (or)
issue a warrant for his appearance. On the appearance of the defendant in pursuance of
the summons (or) warrant, the court shall direct to the defendant to find the fresh
security and also shall direct the surety to be discharged from his obligation.

Rule – 4 (Procedure where the defendant fails to furnish the security (or)
finds a fresh security):

Where the defendant fails to comply (or) furnish the security (or) to find a fresh
security then the court may commit his to the Civil Prison until the decision of the suit
(or) where a decree is passed against the defendant until the decree has been satisfied.

It is provided that – No person shall be detained in prison under this rule in any
case for a longer period than (6) six months nor for a longer period than 6 weeks when
the amount (or) value of the subject-matter of suit does not exceed of Rs.50/-.

Where arrest before judgment not allowed:

An order for arrest of a defendant before a judgment cannot be obtained in any


suit for land (or) immovable property specified in clauses – (a) to (d) of the section 16 of
the Code.

Section 16 – suits to be instituted where subject matter is situated.


(a) For the recovery of immovable property with (or) without rent (or) profits.
(b) For the partition of immovable property.
(c) Suit for foreclosure, sale (or) redemption in the case of mortgage.
(d) For the determination of any other right (or) interest in immovable property.

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19 - REFERENCE, REVIEW & REVISION

REFERENCE

Reference to High Court (Sec. 113 & Order 46):

Section 113 of the Code, empower the subordinate court to refer a case for the
opinion of a High Court. Such opinion of High Court can be brought /obtained, when the
court itself feels some doubts about a question of law. On such, reference the High
Court may make such order as it thinks fit. Such opinion can be obtained by the court
when the court trying a suit, an appeal (or) execution proceeding entertains a
reasonable doubt about the question of law.

Meaning:

'Reference', means – a case is referred by a sub-ordinate court to the High Court


for the opinion of a High Court.

Object:

The underlying object of the provision of reference is to enable the sub-ordinate


courts to obtain the opinion of High Court in non-appealable cases about the question of
law for the purpose about the question of law. For the purpose of avoiding the
commission of an error which could not be remitted later on So the reference should be
made before passing of the judgment in the case.

Where on the hearing of a suit (or) appeal in which the decree is not subject to an
appeal, the sub-ordinate court feels any reasonable doubt regarding to the question of
law, the sub-ordinate can refer such case to the High Court for the opinion of a High
Court.

Conditions (What conditions should be fulfilled):

The right of reference is subject to the conditions prescribed by (order-46) Rule 1,


if these conditions are not fulfilled, the High Court cannot entertain the reference from a
sub-ordinate court.

Rule 1 of Order 46 requires that the following conditions should be satisfied to


enable a sub-ordinate court to make a reference.

(i) There should be a suit which is pending (or) appeal in which the decree is not
subject to appeal (or) a pending proceeding in execution of such decree.
(ii) A question of law should arise in such suit (or) appeal proceedings.
(iii) The court trying the suit (or) appeal should entertain a reasonable doubt or
such question.

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Reference of question to High Court (Order-46, Rule-1):

Where before (or) on the hearing of a suit (or) an appeal in which the decree is
not subject to appeal, (or) where in the execution of any such decree, any question of
law arises about which such court entertains a reasonable doubt, the court trying the
suit (or) appeal (or) executing the decree may either of his own motion (or) on the
application of any of the parties drawn up a statement of the facts of the case & the
point (question) on which the doubt is entertained & refer such case to the High Court
for the opinion on the point for its decision.

Who can apply?

Only a court can refer a case either on any application by a party (or) suo-motto.

Powers & Duties of Referring Court:

A Reference U/Sec. 113 & Order 46 can be made only in a suit appeal (or)
execution proceedings pending before the court. Such reference can be made when the
sub-ordinate courts feels a doubt on a question of law.

Nextly, such question should have actually arisen between the parties disputed
before the court & the court is under the obligation to adjudicate it.

Any subordinate court has a power to refer a case to the High Court, when it
entertains any doubt about the question of law during the pendency of such case i.e.
suit (or) appeal. No reference can be made on any hypothetical question. After making
such reference the sub-ordinate court can dispose of such suit (or) appeal according to
the opinion of High Court.

The jurisdiction of High Court in case of reference is consultative in nature. In


deciding the reference the High Court is not confined to the questions referred by the
sub-ordinate court. If a new aspect of law arises, the High Court can consider it.

The High Court may answer the question referred to it & send back the case to
the referring court for disposal according to the law.

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Review

Introduction:

Section 114 of Code of Civil Procedure gives a substantive right of review in


certain circumstance, and on the other hand order 47 explains about the procedure of
review. Review constitutes an exception to the general that – "once the judgment is
signed & pronounced by the court, it ceases to have control over the matter and has no
jurisdiction to alter it."

Meaning:

Review means – to re-consider, to look again (or) re-examine. In a legal sense it is


a judicial re-examination of this case by the same court and by the same judge. In review
a judge who has disposed of the matter reviews an earlier order passed by him in certain
circumstances.

Nature & Scope:

The general principle of law is that – once a judgment is pronounced by the court,
it becomes the final & it cannot be altered. A review of judgment is a serious step & it is
caused for only when there is an apparent omission, patent mistake (or) a grave error
has been caused by the judicial officers.

In other words, we can say that – it is a judicial re-examination of an earlier order


by the same judge, but it is not equal with the original hearing of a case and the finality
of judgment by a competent court cannot be permitted to be reopened (or)
reconsidered unless the earlier judicial view is apparently wrong.

The judge is also a human being & it is possible that he can make the mistakes &
if any mistake has been made by the judge in the judgment, then in such circumstances,
the party aggrieved from such error can apply for the review of such judgment to the
judge who has delivered the judgment.

Object:

The remedy of review which is re-consideration of the judgment by the same


court & by the same judge has been borrowed from the 'court' of equity. If there is an
error due to human failing it cannot be permitted to perpetuate & also to defeat the
justice, such errors should be corrected to prevent the miscarriage of justice, because
the justice is above all. Due to the error of judge, a party should not be suffered.

When Review lies (Section 114):

A review application is maintainable in the following cases, -

(i) When a person considering himself as aggrieved by -

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(a) By a decree (or) order from which an appeal lie, but from which no appeal has
been preferred.

(b) By a decree (or) order from which no appeal is allowed by this code.

Who may apply for Review?

A person aggrieved by a decree (or) order may apply for review of a judgment. A
person aggrieved means – a person who has suffered from the legal injury (or) against
whom a decision has been pronounced by the court.

Grounds for Review:

An application for review of judgment may be made on any of the following


grounds –

(i) Discovery of new & importance of evidence – A review is permissible on the


ground of discovery of some new important evidence by the applicant after the exercise
of due diligence was not within his knowledge (or) could not be produced by him at the
time when decree was passed.

So, the discovery of document containing an admission of liability by the


defendant would be a good ground for review. Similarly, where the decree for the
restitution of the conjugal rights was passed & subsequently it was discovered that the
parties were cousins & therefore, the marriage was void in such cases the review can be
granted.

(ii) Mistake (or) error apparent on the face of the record – Another ground for
review is a mistake (or) an error apparent on the face of the record. What is an error
apparent on the face of the record cannot be defined precisely and it should be
determined on the facts of each & every case.

The following have been held to be the errors apparent on the face of record,

(a) On the ground of omission to try a material issue in a case.

(b) Where the judgment pronounced without the notice to the parties.

(c) Where they want of jurisdiction is apparent on the face of record.

(iii) On sufficient reasons – The last ground for review is any other sufficient
reason. The expression 'any other sufficient reason' has not been defined in the Code.
The following have been held to be the sufficient reasons for granting the review.

(a) Where the statement in the judgment is not correct.

(b) Where a party had no notice (or) fair opportunity to produce his evidence.

(c) Where a court had failed to consider the material issue (or) fact (or) evidence.

(d) Where a party’s evidence has been closed due to the mistake of pleader & the
further evidence is very essential for the purpose to do the justice.

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By whom the Review may be made:

Review is a reconsideration of the same subject-matter by the same court & by


the same judge. If the judge has decided the matter is available, he alone has jurisdiction
to reconsider & review the earlier order passed by him. Moreover, he alone will be liable
/able to remember, "What was not argued?" Therefore, the law insists that, if he is
available he alone should hear the review petition. However, in exception cases his
successor (or) another judge having the same jurisdiction may hear the review
application & decide the same.

Limitation:

The period of Limitation for an application for review of a judgment is 30 days


from the date of decree (or) order.

Appeal:

An order granting the application for review is appealable. But an order rejecting
an application is not appealable.

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Revision

Introduction:

Section 115 of Code of Civil Procedure empowers a High Court to entertain a


'Revision' in any case decided by any subordinate court in certain circumstances. Such
jurisdiction is known as 'Revisional Jurisdiction' of High Court.

Meaning:

Revision means, 'to revise', it means to look again (or) repeatedly, to go through
carefully & correct where necessary, to look-over with a view for the purpose of
improving (or) correcting.

'Revision' means the action of revising, specially the careful examination with the
object of correcting (or) improving.

Under Section 115:

(i) The High Court may call for the record of any case which had been decided by
any court subordinate to such High Court & in which no appeal lies, if such subordinate
court –

(a) Have exercised a jurisdiction not vested in it by the law, (or)

(b) Have failed to exercise a jurisdiction so vested in High Court.

After the satisfaction about the above grounds the High Court may make such
order in the case as it thinks fit.

(ii) Under this section the High Court shall not reverse any decree (or) order
against which an appeal lies either to the High-Court (or) to any court sub-ordinate
thereto.

Nature and Scope:

Section 115 authorizes the High Court satisfy itself on the following matters.

(i) That the order of the sub-ordinate court is within jurisdiction,

(ii) That in exercising the jurisdiction the court has not acted illegally i.e. in breach
of same provisions of law.

If the High Court is satisfied with these matters, it has no power to interfere by
way of revision.

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Object:

The under laying object of section 115 is to prevent the sub-ordinate courts acting
arbitrarily & illegally (or) irregularly in the exercise of their jurisdiction. It empowers the
High Court to see that the proceedings of the sub-ordinate courts are conduct in
accordance with the law within the limits of their jurisdiction & in furtherance of justice.

It enables the High Court to correct the errors of the jurisdiction committed by
the sub-ordinate courts in non-appealable cases.

Who may file?

The person aggrieved by an order passed by a court sub-ordinate to the High


Court may file a revision against such order, but the High Court may suo-moto exercise
Revisional jurisdiction U/Sec. 115 of the Civil Procedure Code.

Conditions:

The following conditions should be satisfied before the revisional jurisdiction can
be exercised by the High Court.

(i) A case should have been decided,

(ii) The court which has decided the case should be court sub-ordinate to the High
Court.

(iii) The order should not be appealable one.

(iv) The sub-ordinate court should have –

(a) Exercised the jurisdiction not vested in it so vested it.

The Revisional jurisdiction of the High Court can be invoked in respect of any case
in which no appeal lies to the High Court.

The word 'Appeal' includes first appeal as well as second appeal. Therefore,
where an appeal lays to the High Court the revision under section 115 does not lie. On
the other hand, where no first (or) second appeal lies to High Court, the revision is
competent.

Exercise the jurisdiction not vested by the law:

Where a sub-ordinate court exercise the jurisdiction not vested in it by law, a


revision lies.

In such cases the sub-ordinate court assumes the jurisdiction which does not
possess by it.

The following cases have been held to be the cases of unauthorized assumption
of jurisdiction by the sub-ordinate court, -

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(i) Where the lower court assumes the jurisdiction which it does not have on the
ground of pecuniary (or) territorial limits (or) by reason of the subject matter of suit.

(ii) Entertains an appeal from an order which is not appealable.

(iii) Entertains the suit which it has no jurisdiction to entertain.

(iv) Grants an injunction without considering whether a prima facie case is made
out.

Failure to exercise jurisdiction:

A Revision lies where a sub-ordinate court has failed to exercise the jurisdiction
vested in it by the law.

The following cases have been held to be the cases of failure to exercise the
jurisdiction by a sub-ordinate court, -

(i) Refusal by the court to summon the deponent of an affidavit for cross
examination,

(ii) Failure on the part of the court in considering the principles for the grant of
ad-interim injunction & refusing to grant it,

(iii) Refusal to entertain an application for rejection of plaint (or) review


application,

(iv) Rejection of counter-claim on the ground that the original suit is dismissed for
default,

However, in the following cases it has been held that the court has exercised its
jurisdiction illegally (or) irregularly, -

(i) Where it decides a case without considering the evidence on record,

(ii) Decides a case without recording the reasons for its judgment.

(iii) Fails to follow a decision of a High Court to which it is sub-ordinate.

(iv) Decides a case in the absence of the party (or) without giving an opportunity
of being heard to the party whose rights are adversely affected by such decision,

(v) Orders the attachment before judgment without following the procedure
under Order 38.

(vi) Passes a decree on the compromises by the guardian without enquiring


whether it was for the benefit of minor.

Limitation:

The period of limitation for preferring a Revisional application is 90 days from the
decree (or) order.

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20 - THE LIMITATION ACT
Q.1 Describe the effects of acknowledgement on limitation period.
Q.2 Define period of limitation. How the period of limitation is computed?
Q.3 Discuss provisions for computing limitation period.
Q.4 Discuss legal disability under The Limitation Act.
Q.5 What is aim & objects of the law of limitation?
Q. 6 What is computation of period of limitation? Discuss.
Q. 7 Discuss the "Sufficient Causes" for the condonation of delay in filing appeal and
application.
Q. 8 What it acknowledgement? Discuss the essential requisites for a valid acknowledgment.
Q. 9 "the law assists the vigilant and not those who sleep over the rights". Discuss.
Q.10 Discuss the sufficient causes for condonation of delay in appeal and applications.
Q.11 Define period of limitation. How is the period of limitation computed?
Q.12 Distinguish latches with acquiescence and prescription.
Q.13 Discuss the aims & objects of law of limitation.
Q.14 Describe the "acknowledgement". State effect of acknowledgement.
Q.15 State effect of death of parties on limitation period.
Q.16 State modes of computation of limitation period.
Q.17 What are the objects of limitation.
Q.18 Write provisions for exclusion of time from computation of limitation.

SYNOPSIS

Introduction
Aims and Objects
Limitation and Right
Onus/Burden of Proof
Limitation and Defendant
State for plea

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Introduction:

Limitation Act, 1963, was passed to consolidate and to amend the law. For the
limitation of suits and also other proceeding for the purpose connected thereto. It
repealed the Indian Limitation Act, 1908. The new Act made through scrutiny & revision
of all existing provisions taken into consideration the changing needs of society. This Act
consists 31 sections which are related to the computation, delay condonation, legal
disability period & also acknowledgement.

Aims and Objects:

The object of the Limitation Act is to prescribe the period within which the
existing rights can be enforced in court of law & not to create cause of action.

By prescribing the period of limitation legislature intends "to quit long


possession."

The doctrine of limitation in founded on considerations of public policy &


expediency.

The interest of state requires that a period should be put to litigation & another
consideration is that a party who is insensible to the value of civil remedies doesn’t
require the aid of the state in enforcing it.

The aim & object of Limitation Act is based on the maxim, "vigilant neither bus
nor dermientibus jura subvention" it means that, the law assist, the vigilant & not those
who sleep over the rights.

The object of legislature in passing the Limitation Act is to quit long possession
and to extinguish state demands. A ground of defense cannot become state or barred by
limitation & it would be therefore open to the defendant to put forward a defense. A
statute of limitation is a statute of repose.

The Act has been passed for the purpose of establishing fixed period after the
lapse of which court will not entertain suits, appeals & applications. The law assists
those who are vigilant & not those who sleep over their rights. Its intention is not to give
a right where there is nothing, but to impose a bar after a certain period to a suit to
enforce an existing right.

Limitation and Right:

The rule of limitation is a rule of procedure. It neither creates nor extinguishes


rights except in case of acquisition of title of immovable property by prescription under
section 27 of the Limitation Act.

It is only a remedy by way of suit that is barred but the right itself continues to
exist & if there is some other remedy by which that right can be enforced, the Limitation
Act cannot come in the way.

Thus, it is clear that, "the statute of limitation bars the remedy but does not
extinguish the right; lapse of time does not extinguish the right of a person."
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Onus / Burden of Proof:

The burden of proof is upon the plaintiff and the must show either that the suit is
a prima facie within time or that by reason of minority, concealed fraud or other facts,
the period of limitation has not really expired & that he is still within time.

Then the onus of proof is shifted to the defendant who may show that particular
circumstances date on which the suit is instituted.

Limitation and Defendant:

The plea of limitation can be raised only as against the plaintiff & not against the
defendant.

The object of this Act is to prevent a person from seeking to enforce stale
demand & not to prevent a person from raising any defense as per his option.

State for plea:

The plea of limitation can be raised at any stage of case, thus the defendant can
raise the plea of limitation at the hearing of suit even after he was not pleaded limitation
in his written statement (W.S.).

It also means that a plea of limitation can take up for first appeal or second
appeal.

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21 - THE LIMITATION ACT
Q.1 Describe the effects of acknowledgement on limitation period.

SYNOPSIS
Introduction
Period of Limitation
Limitations of Suit, Appeals and Applications
Suit when deemed to be instituted
Application by notice of motion
Section 4 – Expiry of prescribed period when the court is
closed

Introduction:

The Limitation Act prescribes a period after the expiry of which a suit cannot be
maintained in a court of justice to enforce a right but it does not destroy the right itself.

The bar of limitation arises only where a suit is instituted or an appeal is preferred
after the prescribed period of limitation.

Period of Limitation:

It means the period of limitation prescribed for any suit, appeal or application &
prescribed period means the period of limitation computed in accordance with the
provisions of this Act.

Limitations of Suit, Appeals and Applications:

Sec. 3 Bar of Limitation – It provides that subject to Sec. 4 to 24, every suit
instituted, appeal preferred & application made after the prescribed period shall be
dismissed, although limitation has not been set up as a defense.

For the purpose of this Act, it is also provided that –

a) A suit is instituted –
i) In an ordinary case, when the plaint is presented to the officer of court,

ii) In the case of pauper – When an application for leave to sue as a pauper is made; and

iii) In case of a claim against a company liquidated when a claimant first sends his claim
to liquidator.

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b) Any claim by way of set-off or counter claim is to be
treated as a separate suit & is deemed to have been
instituted -
i) In case of set-off – On the same date as the suit in which the set off is pleaded.

ii) In case of counter claim – On the date on which counter claim is made in the court.

c) An application by notice of motion in the High Court is


made when the application is presented to the proper
officer of the court,
Section lays down that, every suit, claim etc. must be filed within the time
specified in the first schedule of the Act, and therefore if the suit, claim etc. filed beyond
the prescribed period shall be dismissed although the opposite party has not set up a
defense of limitation.

It is to be noted that, in the case with regard to the plea of limitation, the court is
to raise the point itself & dismiss the case. Sec. 3 is pre-emptor provision & the duty of
the court is to take note of the Act and give effect to it, even though limitation is not
referred to in the pleadings, except where such limitation is extended by the provisions
of Sec. 4 to 24 of Limitation Act.

Therefore the gist of Sec. 3 is that every suit instituted, appeal preferred and
application made after prescribed period must be dismissed. Hence a plea of limitation
though not put up by the defendant in the lower court it can be raised even at the stage
of an appeal.

(4) Suit when deemed to be instituted

A suit is taken as instituted on the date on which the plaint is presented to the
office of court & not on the date when it is accepted.

When a plaint is accompanied by insufficient court fees & time is given by the
court to deposit the deficient fees, such suit shall be deemed to be instituted on the
date on which it is presented & not on the date when the requisite court fees were paid.

(5) Application by notice of motion

An application by notice of motion is presented to the proper officer when the


notice of motion, the supporting affidavits & the affidavit of service are filed with
registrar in compliance with the rules framed by the court.

(6) Section 4 – Expiry of prescribed period when the court is closed

When the prescribed period of any suit, appeal or application expires on a day
when a court is closed, the suit, appeal or application may be instituted or preferred on
the day when the court reopens. Here the court means proper court, where a plaintiff
has filed his application in the wrong court; he is not entitled to the benefit of an
extension, if the proper court at that time remained open.
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22 - THE LIMITATION ACT
EXTENTION OF PRESCRIB ED PERIOD IN CERTAIN CA SES
Q.1 What is period of extension of prescribed period in certain cases?

SYNOPSIS

Section 5
Sufficient Cause/Grounds for Delay Condonation
Duty of Court
Mistake of Counsel
Defect to Vakalatnama
Imprisonment
Infancy
Ignorance of Law
Illness
Poverty
Act of God
Govt. Recommendation
Negotiation
Accidental Loss
Preparation of Certified copies
Other Miscellaneous Ground

Section 5:

Any appeal or any application other than execution application (U/Order 21) may
be admitted after the prescribed period.

If such appellant or applicant satisfies the court that he has sufficient cause for
not preferring the appeal or making the application within such period.

Sec. 5 is applicable to appeals & certain applications mentioned in the section. It


is curtail to note that it does not apply to the suits because the period prescribed for
most of the suits extends from three to twelve years while the period prescribed for
appeals & applications mentioned in this section do not exceed six months.

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Sufficient Cause/Grounds for Delay Condonation:

For the application of this section, an aggrieved person must satisfy the court that
he has sufficient cause for not preferring an appeal or making an application. However
the code does not define the term "sufficient cause", it just means the cause which is
beyond the control of party.

The extension of time under this section is at the discretion of the court & it must
be judicial. There is no other rigid rule to control over the exercise of such discretion.
The "sufficient cause" must be a bona fide cause.

Duty of Court:

The power given to the court for condoning the delay is a discretionary power,
but it has to be exercised in a judicial manner.

A judge must exercise his discretion with reference to special circumstances of


each case.

Mistake of Counsel:

Under Section 5 of the Limitation Act, a mistake of the counsel is no doubt a good
ground for extension but the mistake must be a bonafide.

A lawyer’s mistake if made bonafide is a sufficient cause, bonafide mistake means


a mistake which might have easily occurred even if a reasonable due care & attention
has been exercised by the pleader.

Defect to Vakalatnama:

Where a party intending to engage a pleader executes a Vakalatnama, but by a


pure mistake omits to mention his name in the said vakilpatra and the pleader in his
turn fails to endorse his acceptance. The mistakes are due to accident & do not proceed
from any dishonest intention. There is sufficient cause for accepting or fresh
Vakalatnama complete in every respect after the expiry of the period of limitation.

Imprisonment:

When a party who want to file a case & he is sentenced to criminal jail or
imprisonment under particular offence & limitation is over, under such circumstances
party can mentioned above ground before the court for the purpose of extension of
period, then the court can consider such grounds.

Infancy:

When party is minor and there is no older member or guardian is not appointed &
limitation is over. In these circumstances such party files a matter before court after
attending the age of majority. It means the delay between minority & majority may be
allowed after the satisfaction of court.

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Ignorance of Law:

Generally it is not sufficient ground for extension. Because court may or may not
consider such ground for extension of limitation period. When there is mistake of a
party due to ignorance of law, then the court may consider it for extension of limitation
in rare matters.

Illness:

A mere plea of illness is not sufficient cause for condoning the delay. The effect of
the illness should be reasonable for the delay i.e. if a party has been ill since longtime
due to the serious disease & is admitted in hospital, then the period of illness may be
taken into consideration for extension of limitation.

Poverty:

Poverty is one of the most important reasons to file litigation, because a court fee
of litigation is essential, which is measure according to the nature of suit. Today it is very
high, so poor person cannot file his litigation within a limit due to the poverty. In these
circumstances, if he satisfies the court, then the court may consider extension of
limitation period.

Act of God:

According to this ground, such act created by the God which is beyond control of
human being. If the party to the suit faces or if such act is done regarding the party then
the court consider such ground for the purpose of extension of limitation period.

Govt. Recommendation:

In certain circumstances Govt. creates various Acts, upon situation in the society,
because these Acts are necessary to protect the public & to maintain place in the
society. Due to such reasons if the Govt. recommended, then Act is a sufficient cause &
the court may extend the limitation period.

Negotiation:

Negotiation between parties is a sufficient cause that is negotiations between


parties & refusal by legal representatives of the diseased plaintiff/party to join as party
constitute sufficient ground for condoning delay of the limitation.

Accidental Loss:

Accidental loss of the necessary certified copies is a sufficient cause. Where the
appellant obtained certified copies of the judgment of the decree, which are necessary
to accompany the memorandum of appeal which were lost by misfortune /accident, it
was held that the delay caused by such loss. Therefore it is a sufficient cause for
condoning he delay. But the delay of everyday was to be explained.

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Preparation of Certified copies:

Delay in the preparation of the necessary certified copies by copying department


is a sufficient cause. So delay caused by such department, then court consider such
delay.

Other Miscellaneous Ground:

There are various other miscellaneous grounds which may be deemed as


sufficient cause for condoning the delay. Such as fraud, discovery, lack of stamp duty,
unexpected circumstances etc. Therefore one of the above reason consider for
condoning delay under the miscellaneous grounds.

Delay of each & every day must be explained, it is well settled principle that a
duty has been cast on the court that a delay can be condoned only in those cases
whereby the applicant is in a position to explain the delay of each and every day.

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23 - THE LIMITATION ACT
COMPUTATION OF PERIOD OF LIMITA TION

(1) Introduction:

Section 12 to 18 o the Limitation Act deals with the computation of period of


limitation. In other words we can say that it provides that how the period of limitation is
to be computed. In other words, what days or period have to be excluded from
calculation of period of limitation is pointed out by those sections? No prayer or
application is needed on the part of a party for the exclusion of the period of limitation
by the section itself and it is the duty of court to exclude such time.

(2) Definition of Period of Limitation:

Section 2(i) of Limitation Act, 1963 defines the term period of limitation.

"Period of limitation means the period of limitation prescribed for any suit,
appeal or application by the schedule, and prescribed period means the period of
limitation computed in accordance with the provisions of this Act."

(3) Section 12 – Exclusion of time in legal proceedings:

Section 12 of the Limitation Act, 1963 provides that –

1) In computing the period of limitation of any suit, appeal or application, the day
from which period is calculated, shall be excluded.

2) In computing the period of limitation prescribed for an appeal or an application


for leave to appeal or for revision of limitation of judgment, the following period shall be
excluded, -

a. the day on which the period begins to run;

b. the day on which the judgment was pronounced;

c. the time required for obtaining a copy of the decree, sentence or order;

d. the time required for obtaining a copy of the judgment.

3) In computing the period of limitation for revision or for review, the following
periods shall be excluded, -

a. the day on which the time begins to run;

b. the day on which the judgment was pronounced;

c. the time required for obtaining a copy of the decree;

d. the time required for obtaining a copy of the judgment.

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4) In computing the period of limitation prescribed for an application to set aside an
award, the following period shall be excluded –

a. the day on which the time beings to run;

b. the time required for obtaining a copy of the award;

In computing the period of limitation prescribed for any other application, only
the day on which the time begins to run shall be excluded.

(4) Section 13 – Exclusion of time in cases where leave to sue or appeal


as a pauper is applied for:

Section 13 of the Limitation Act, 1963 provides that in computing the period of
limitation prescribed for any suit or appeal in any case where an application for leave to
sue or appeal as a pauper has been made & rejected, the time during which the
applicant has been prosecuting in good faith his application for such leave shall be
excluded; and the court may, on payment o the court fees prescribed for such suit, treat
the suit or appeal as having the same force & effect as if the court fees had been paid in
the first instance.

(5) Section 14 – Exclusion of time of proceeding "bona fide" in court


without jurisdiction:

Section 14 of the Limitation Act, 1963 provides that,

1. In computing the period of limitation for any suit the time taken to prosecute the
same in a wrong court shall be excluded if it was prosecuted in that court in good faith.

2. In computing the period of limitation for any application the time taken to
prosecute the same in a wrong court shall be excluded if it was prosecuted in that court
in good faith.

(6) Section 15 – Exclusion of time in certain other case:

Section 15 of the Limitation Act, 1963 provides that –

1. In computing the period of limitation for any suit or application for the execution
of a decree, the institution or execution of which has been stayed by injunction or order,
the time of the continuance of the injunction or order, the day on which it was issued or
made and the day on which it was withdrawn, shall be excluded.

2. In computing the period of limitation for any suit for which notice has been given
in accordance with the requirements of in accordance with the requirements of any law
for the time being enforce, the period of such notice shall be exclude.

3. In computing the period of limitation for any suit or application for the execution
of decree by any receiver, the date of appointment of such receiver as the case may be,
shall be excluded.

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4. In computing the period of limitation for a suit for possession by a purchaser at a
sale in execution of a decree, the time during which proceeding to set aside a sale has
been prosecuted shall be excluded.

5. In computing the period of limitation for any suit the time during which the
defendant has been absent from India under the administration of the central Govt.
shall be excluded.

Section 15(5) applies only to suits & not to the applications for the execution of
decrees.

(7) Section 16 – Effect of death on or before the accrual of the right to


sue:

Section 16 deals with the case of the effect of death on or before the accrual of
the right to sue.

According to this section the right to institute the suit must accrue after the death
of person concerned but not because of his death.

The limitation is postponed only in the case where there is no existence of the
person who can institute the suit or the person against whom the suit be instituted.

The period of limitation shall be computed from the time when there is legal
representative of the deceased person against whom the plaintiff may institute the suit.

The limitations will not being to run where there is no person to sue or to be
sued.

(8) Section 17 – Effect of fraud or mistake:

For the applicability of this section it is necessary that to establish that there has
been fraud and the plaintiff was kept away from the knowledge of his right to sue on
account of such fraud. On the proof of this fact time will be extended under this section.

The section will be attracted only if it is proved that the plaintiff has by means of
fraud, has been kept away from the knowledge of his right to sue, and if there was not
fraud on the part of defendant, the plaintiff can’t get benefit of this section.

To invoke the aid of this section plaintiff must establish that there has been fraud
and that, by means of such fraud he has been kept away from the knowledge of his right
to sue.

(9) Section 18 – Effect of acknowledgement in writing:

Section 18 provides that –

1. Where, before the expiration of the prescribed period for a suit or application in
respect of any property or right, an acknowledgement of liability in respect of such
property or right has been made in writing signed by the party against whom such

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property or right is claimed, a fresh period of limitation shall be computed from the time
when the acknowledgement was so signed.

2. Where the writing containing the acknowledgement is undated, oral evidence


may be given of the time when it was signed.

1) Introduction:

The word 'Acknowledgement' means an admission of the truth of one’s liability.


Acknowledgement must be made by a person who is under a liability at the material
time. It is necessary that an acknowledgement should in writing. The acknowledgement
must be signed otherwise it is no acknowledgement in the eyes of law.

2) Definition of Acknowledgement:

1. "Acknowledgement means a definite, clear admission of existing liability."

2. "Acknowledgement means as admission of the truth of one’s liability."

An acknowledgment does not create any new right of action but only enlarges the
time & it has effect of making new period run from the date of acknowledgement.
However, acknowledgement of a time barred debt can’t give fresh period of limitation in
favor of creditors.

3) Essentials of a Valid Acknowledgement:

To give fresh period of limitation i.e. to constitute a valid acknowledgement


following conditions must be fulfilled.

a. Acknowledgement must be made before the expiration


of period of limitation -
The acknowledgement must be made before the expiration of period of
limitation. In other words, the acknowledgement must be made after the period of
limitation has begun to run & while it is actually running.

CASE LAW – Kamta Prasad vs. Gulzari Lal

In the above case it was held that an acknowledgement made after the expiry of
the original period of limitation but within a period as extended by a provincial Act,
should be deemed to be an acknowledgement.

b. Acknowledgement of liability must be in writing -


Another essential condition to constitute a valid acknowledgement is that it must
be in writing, an oral acknowledgement is not sufficient.

c. Acknowledgement must be signed by the person making


the acknowledgement or by his agent duly authorized in
this behalf -

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An acknowledgment not so signed will not be sufficient for the purpose of this
section. Thus, a telegram can’t constitute a sufficient acknowledgement under this
section as telegrams are not signed by the parties sending them.

d. Acknowledgment must be made by the party against


whom any property or right is claimed -
An acknowledgement must be made by the party against whom any property or
right is claimed or by some persons through whom, he derives title or liability.

e. Acknowledgement must be in respect of the particular


property or right claimed in the suit or application -
An acknowledgement of liability must be in respect of the particular property or
right claimed in the suit or application.

4) Modes of Acknowledgement:

1. In Raja vs. Official Liquidator, AIR 1952, it was held that as statement in a
balance sheet submitted as per statutory requirement acknowledging a debt due is
sufficient U/Sec. 18.

2. A receipt may be an acknowledge of the previous debt & be an acknowledgement


within section 18 on the satisfaction of essential conditions of valid acknowledgement.

3. A receiver appointed by court can make an acknowledgement U/Sec. 18 on


behalf of the party of whose properties he is a receiver.

4. An admission made by a pleader in the course of his duties on behalf of his client
may bind the letter as an acknowledgement of liability under this section.

5. In Ram Avtar vs. Beni Singh, Court held that a written statement in a former suit
containing a clear acknowledgement of liability will give a fresh start of limitation.

(10) Section 19 – Effect of payment on account of debt or of interest on


legacy:

Section 19 provides that where payment on account of a debt or of interest on a


legacy is made before the expiration of period by the person liable to pay the debt or
legacy or by his agent duly authorized in this behalf, a fresh period o limitation shall be
computed from the time when the payment was made.

Section 19 is a special provision which enables the creditor to get a fresh period
of limitation when there is an acknowledgement in writing by the debtor.

The principle underlying the section 19 is that such payment implies an admission
of a right & an acknowledgement of the corresponding liability. A payment of interest
implies that there is a principal amount due. A part-payment of principal implies the
admission that a larger amount is due at the time of part payment.

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Essentials of the Section 19:

1. It must be acknowledgement by some form of writing either in handwriting of the


payer himself or signed by him.

2. The payment must be made within the prescribed period of limitation.

Distinction between Section 18 & 19:

1. Section 18 applies to any right or property whereas section 19 applies to debts &
legacies only.

2. An acknowledgement U/sec. 18 need not be addressed to the person entitled


whereas payment U/sec. 19 has to be made to the person entitled.

3. Under section 18 the fresh period of limitation is computed from the date of
signing & verification. Whereas U/sec. 19 the fresh period of limitation is
computed from the date when the payment is made & not from the date when it
is recorded.

(11) Section 20 – Effect of acknowledgement or payment by another


person:

Section 20 deals with the effect of acknowledgement or payment made by


another person.

This section is explanatory as well as supplementary to sec. 18 & 19.

The phrase "agent duly authorized in this behalf" provided in previous sections 18
& 19, has been explained that in case of person under disability, includes his lawful
guardian, committee or manager, or an agent duly authorized to sign the
acknowledgement or to make the payment.

Sub-section (2) read with sub-section (3) provides the effect of acknowledgement
or payment made by one of the joint contractors, partners, executor in respect of the
liability.

The acknowledgement in writing & signed by any of the joint contractors will be
sufficient to keep alive the debt as against him not against the joint contractors.

Sub-section (3) of this section 20 provides that any acknowledgement or payment


made duly authorized agent will be valid against the person on whose behalf it was
done.

(12) Section 22 – Continuing breaches of contracts & torts:

Section 22 provides that a fresh period of limitation arises at every moment of


the time during which there is a continuing breach of contract or a continuing tort.

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24 - THE LIMITATION ACT
LEGA L DISABILITY
Q. 1. Discuss the Legal disability under the Limitation Act? (Oct.06)

Introduction:

Section 6 is one of the provisions which extends the period of limitation laid down
by the schedule. This section does not prevent running of limitation but only extends the
period of limitation. The ground on which the extension is given is the disability of the
person entitled to sue or apply.

Under the Limitation Act Section 6, 7 and 8 are forming one unit and are
supplementary to each other.

Section 6 – Legal disability:

Section 6 of the Limitation Act, 1963 provides that in case o minors, lunatics &
idiots, the period of limitation to be calculated from the date when the disability ceases
to operate.

In other words we can say that section 6 excuses an insane person, minor & idiot
to file a suit or make an application for the execution of decree within the time
prescribed by law and enables them to file the suit or make an application after the
disability has ceased. Continuing the period of time from the date on which the disability
ceased.

This section applies to only suits & applications for execution of decrees. It does
not apply to appeal. Therefore a minor or an insane appellant can’t take advantage of
this section.

The conditions for the applicability of this section 6 are –

a. The person entitled to sue or apply for execution of decree must be under a
disability. The disability is confined (limited) only to minority, insanity or idiocy.

b. The disability must be of a person entitled to sue or apply for execution.

c. The disability must exist at the time from which the period of limitation is to be
calculated.

d. The proceeding in question must be a suit or an application for the execution of a


decree.

e. The period of limitation for the proceeding must be specified in the third column
of the schedule.

Legal disabilities U/Sec. 6 of the Act are minority, insanity & idiocy only. When
any person is affected by any of these disabilities, he is entitled to institute the suit after
the cessation of those disabilities.

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Where any person dies during his disability and his legal representative is also
affected by any such disability, in that case, he is entitled to institute suit after the
cessation of his disability.

The provisions of this section apply also the execution of decrees.

'Minor' for the purpose of this section also includes a child in the womb.

(3) Right o Minor

In Vijay Singh Rao vs. Jeewan Lal, AIR 1963, it was observed that a minor has two
rights, under section 6 of the Limitation Act, -

a. He can bring a suit within a specified time after the termination of his minority;

b. Even during the subsistence of his minority, he can institute a suit through his
next friend.

Minority – "An idiot is a person who has been without understanding."

An insane – "An insane is a person who does not conceive, judge or reasons as the
normal man."

Applicability of Section 6:

This section only applies to suits and execution proceedings. This section does not
apply to following proceedings.

a. Application to set aside ex-parte decree


b. Application for final decree in mortgage suits
c. Application for leave to appeal

Section 7 – Disability of one of several persons:

Section 7 is a supplement to section 6 & 7 provides that where legal relation to


each other of a several persons who are jointly entitled to institute a suit or file an
application for execution is such, that one of them who is free from disability can give a
full discharge of the whole claim or debt without waiting the concurrence of others
whether those others are or are not free from disability, then the minority, insanity or
idiocy will not entitled him or his co-plaintiffs to the extension of any time U/Sec. 6.

The first part of the section provides that if a discharge can be given by one of
several joint creditors of claimants who is free from disability without the concurrence
of his other joint creditors or claimants who are under disability, then there is no
extension of limitation and the ordinary period of limitation alone applies to all the joint
creditors or claimants including those who may be under disability.

The second part of the section provides that if such a discharge can’t be given
without the concurrence of the person or persons under disability, the limitation will be
extended with reference to all the joint creditors or claimants.

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Section 7 provides that the disability of the other persons in the group does not
prevent the running of time, if a person in the group is in existence with a capacity to
give a discharge without the concurrence of others.

Applicability:

Section 7 applies only to case of persons whose substantive rights are joint and
not to a person who substantive rights are several.

Section 8 – Special exceptions:

Section 8 is an exception to section 6 & 7 which provides that nothing shall be


extended for more than 3 years from the cessation of disability, the period of limitation
for any suit or application.

Section 9 – Continuous running of time:

Section 9 is based on this common law principle that once limitation is starts
running it can’t be stopped on account of the disability or inability of the parties. This
section applies to suits as well as to execution applications.

The end

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