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iii. Mesne profit - The ‘Mesne Profits’ has the same meaning both under Section2(12) and Section 144 of the
Code. It means those profits which the person in wrongful possession of property actually received or
might with ordinary diligence have received therefore together with interest there on but shall not include
profits due to improvement by the person in wrongful possession.
In short, it means those profits which a person is entitled from which he has been kept out by the
defendants. [ D. Satyanarayana Murthy v. Bhavanna, AIR 1957 Andh Pra 766] Mesne Profits includes
interest, Salami, Rent when Sale is set aside.
The Rationale behind awarding a decree for Mesne profits is to compensate the person who has not only
been kept out of possession of the property but also deprived of enjoyment of his property even though
he was entitled to the possession of such property. Mesne profits can be awarded only in respect of
wrongful possession of immovable property and not in regard to such property which cannot be deemed
to be immovable property.
iv. Preliminary Decree - A preliminary decree is a decree which does not completely dispose of the suit and
further proceedings are still required in the matter. An adjudication which finally decides the rights of the
parties but does not completely dispose of the suit is a preliminary decree. [Venkata Reddy v. Pethi Reddy,
AIR 1963 SC 992]
It is only a stage in the working out the rights of the Parties which are finally adjudicated by the final
decree. Till then the suit continues. The code contemplates passing of preliminary decree in the following
cases –
a. Suits for possessions and mesne profits (Order 20, Rule 12)
b. Administrative suits (Order 20, Rule 13)
c. Suits for pre-emption (Order 20, Rule 14)
d. Dissolution of partnership (Order 20, Rule 15)
e. Accounts between principal and agent (Order 20, Rule 16)
f. Partition of Property and Separate possession therein (Order 20, Rule 18)
g. Foreclosure of mortgage (Order 34, Rule 2 and 3)
h. Sale of mortgaged property (Order 34, Rule 4 and 5)
i. Redemption of a mortgage. (Order 34, Rule 7 and 8)
List of Suits as referred to above in which preliminary decree may be passed is not exhaustive. Depending
upon the facts of the case, a preliminary decree may be passed in other situation also.
v. What are necessary and proper parties?
a. Necessary Party – A necessary Party is a party whose presence for the suit is absolutely essential and in
whose absence an effective decree cannot be passed. Two tests have been laid down by the full Bench
decision of the Allahabad High Court in [Banaras Bank Ltd. V. Bhagwan Das AIR 1997 All 18], for
determining the question as to who is a necessary party to a proceeding
1. There must be a right to some relief against such party in respect of the matter involved in the
proceedings in question, and
2. It should not be possible to pass an effection decree in absence of such a party.
The above view of the Allahabad High Court was approved by the Supreme Court of India in [Deputy
Commissioner, Hardoi, Incharge of Court of Wards v. Rama Krishna Narain, AIR 1953 SC 521]
b. Proper Party – A person is a proper party if his presence enables the Court to adjudicate upon the
question raised in a suit more effectually and completely. [United Provinces v. Atiqua Begum AIR 1941
FC 16]
In other words, a proper party is one whose presence in the suit is not necessary but whose presence
enables a court to decide the question involved in the proceeding more effectively and completely.
Thus for example where a suit is filed by landlord house owner against the tenant for recovery of the
possession of the House, sub-tenant is a proper party. Similarly, where partition suit is filed by sons
against father, grandsons are the proper party.
vi. Pleadings - Order VI, Rule I defines the term ‘pleading’. It means plaint or written statement. Plaint is
prepared by the plaintiff, while written statement is prepared by the defendant. As such we can say that
pleading means plaint for plaintiff and written statement for the defendant. According to P. C. Mogha –
Pleadings are statements in writing drawn up and filed by each party to a case, stating what his contention
will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in
answer.
The Supreme Court of India, baring its decision in Manphul Singh v. Surinder Singh AIR 1973 SC 2158 laid
down in brief the following objects of pleading –
1. To give each side intimation of the case of the other, so that it may be met.
2. To enable the courts to determine what is really at issue between parties; and
3. To prevent deviations from the course which litigation or particular causes must take.
4. To decide the rights of the parties in the trial.
vii. Set Off - Literal meaning of set-off is a claim set against another. It is also said as a counter claim or
counter balancing debt pleaded by the defendant in an action to recover the money due.
In other words, it is a reciprocal acquittal of debts between two persons. Defendant pleading the set-off is
in the position of a plaintiff with regard to the amount claimed by him by way of set off. Conditions for the
applicability of the rule – The defendant may set up a claim of set-off if the following conditions are
satisfied.
1. The suit must be are for the recovery for the money.
2. The sum of money must be ascertained or definite
3. Such sum must be legally recoverable
4. It must be recoverable by the defendant or by all the defendants if more than one.
5. It must be recoverable from the plaintiff or from all the plaintiffs, if more than one.
6. It must not exceed the pecuniary jurisdiction of the Court in which the suit is filed; and
7. Both the parties, must fill, in the defendant’s claim of set-off, the same character as they fill in the
plaintiff’s suit.
viii. Counterclaim - Order 8, Rule 6-A to 6-G, which were added y Civil Procedure Code (Amendement) Act,
1976 deal with provisions relating to counter-claim by the dependant. A counter claim is a cross action by
defendant against plaintiff and secures to defendant the full relief with a separate action at law, provided
that –
1. Such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.
2. Such counter-claim shall have the same effect as a cross-suit so as to enable the court to pronounce a
final judgment in the same suit, both on the original claim and on the counter-claim.
3. The plaintiff shall be at liberty to file written statement in answer to the counter-claim of the
defendant within such period as may be fixed by the Court
4. The counter-claim shall be treated as a plaint and government by the rules applicable to plaints.
5. The effect of preferring a counter-claim is that to its extent the defendant becomes a plaintiff and the
plaintiff becomes a defendant.
ix. Period of limitation - The Limitation Act, 1963 Section 2 (j) defines - “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;
Que. 4. Explain the term. Inherent powers of the court. When can such powers are used by the Court.
Answer. Inherent power of the court - The word “Inherent” is very wide in itself. It means existing and inseparable
from something, a permanent attribute or quality, an essential element, something intrinsic, or essential, vested in or
attached to a person or office as a right of privilege. Hence, inherent powers are such powers which are inalienable
from courts and may be exercised by a court to do full and complete justice between the parties before it.
There are many sections in the CPC that provides for the same i.e. Section 148, 148-A, 149, 150, 151, 152, 153 and
153-A of CPC.
Principle: In the cases where the C.P.C does not deal with, the Court will exercise its inherent power to do justice. If
there are specific provisions of the C.P.C dealing with the specific issue and they expressly or by basic implication,
then the inherent powers of the Court cannot be invoked as inherent powers itself means those which are not
specified in C.P.C.
The section confers on the judges to make such orders that may be necessary to make justice achievable. The Power
can be invoked to support the provisions of the code but not to override or evade other express provisions as C.P.C. is
the basic law which governs the functioning of the courts.
When Can An Inherent Power Be Exercised - Under S. 151 there are two major principles the court must take into
consideration while exercising its inherent powers. The first being that the powers are to be exercised only for the
ends of justice and second, it should be to prevent abuse of process of the court. Such power must not be exercised
when prohibited or excluded by the Code or other statutes and in situations when there exist specific provisions in
the Code applicable to the litigation at hand.
Power To Be Exercised Only For The Ends Of Justice - Courts have inherent power to pass interim orders for ends of
justice or to prevent failure of justice. It has been observed by the Supreme Court that the interests of justice are the
prime consideration in granting or not granting prayers in a petition under S.151 and no rule or procedure can curtail
that power of the court. Where the order of the is in the interest of justice, the higher court can refuse to interfere
under S.115, even if the court below has no jurisdiction to pass such an order. The interference in revision is
discretionary and should be used only in interest of justice and not in a case where it is not. Illustrating example of
this principle can be found in the judgment of the Patna High Court. It held that the fact that the dismissal could be
reviewed or revised under O 47, should not come in the way of exercising power under this section. Likewise,
interference on the grounds of safeguarding the rights of the minor as envisaged by S.31 of the Guardians and Wards
Act 1890 was held necessary. The court can also interfere, in the interest of justice, with an order especially an ex
parte order, which has been issued through its mistake, even suo motu. As in the case of any other case even in such
situation the court cannot grant a relief under inherent jurisdiction, if the same relief can be granted by another
court, under an express provision of the Code.
Power To Prevent Abuse of Process of The Court - According to Mulla the words ‘abuse of process of courts’, is
defined as follows:
Abuse of process of court, is the malicious and improper use of some regular legal proceedings to obtain an unfair
advantage over an opponent. Nothing short of obvious fraud on the part of a debtor would render him liable to have
his petition for insolvency dismissed on the grounds of ‘abuse of process of court. The term is generally used in
connection with action for using some process of court maliciously to the injury of another person.
The High Court has inherent power under S.151, under Letters patent, and under Art 215 of the Constitution to
prevent abuse of its process. For an instance, it is an abuse of the process of the court when the facts germane to the
issue are either not disclosed to the court or are not stated in the true sense of it. Inaccurate facts must be of such
nature so as to enable the plaintiff to obtain the relief which he would not have got had he disclosed the correct facts.
Inaccuracies which did not have such a result would not be sufficient to dismiss the cause.
Where a decree of the first appellate court has become final, by its not having been interfered with in the second
appeal, an application for stay of its execution cannot be granted on the ground, either of abuse of process of court or
in the interest of justice, merely because a review application against such a decree is pending.
Limitations - It can be clearly seen that the inherent powers of the court are extensively wide and residuary in nature.
Though, one cannot rule out the fact that the same inherent powers can be exercised ex debito justitae only in the
absence of express provisions in the code. The restrictions on the inherent powers are not there because they are
controlled by the provisions of the Code, but because of the fact that it shall be presumed that the procedure
provided by the legislature is dictated by ends of justice.
Conclusion - Section 151 CPC is not a substantive provision. Sections 148-153A bestow the courts with very wide and
extensive powers to minimize litigation, avoid multiplicity of proceedings and render full and complete justice
between the parties before them. Sec 151 saves inherent power of the court, which is supposed to be exercised ex
debito justitae, i.e., in the interest of the justice. These powers are not conferred upon the court. In the end, one has
to look up to the judgment of J. Subbarao who made a very poignant observation in the case of Ram Chand P Sons
Sugar Mills Ltd. V. Kanhayalal Bhargava.
“Whatever limitations are imposed by the construction of the provisions of Section 151 of the Code, they do not
control the undoubted power of this court conferred under section 151 of the Code to make a suitable order to
prevent the abuse of the process of the court.”
Que. 6. The Law of limitation does not extinguish the right. It merely bars the remedy. Discuss.
Answer. Extracts from the judgment in the case of Bombay Dyeing and Mfg Co. Ltd. v. State of Bombay AIR 1958 SC
328 :
Section 27 of the Limitation Act provides that when the period limited to a person for instituting a suit for possession
of any property has expired, his right to such property is extinguished. And the authorities have held-and rightly, that
when the property is incapable of possession, as for example, a debt, the section has no application, and lapse of time
does not extinguish the right of a person thereto.
Under Section 25(3) of the Contract Act, a barred debt is good consideration for a fresh promise to pay the amount.
When a debtor makes a payment without any direction as to how it is to be appropriated, the creditor has the right to
appropriate it towards a barred debt. It has also been held that a creditor is entitled to recover the debt from the
surety, even though a suit on it is barred against the principal debtor. And when a creditor has a lien over goods by
way of security for a loan, he can enforce the lien for obtaining satisfaction of the debt, even though an action
thereon would be time-barred.
In American Jurisprudence, Vol. 34, page 314, the law is thus stated:
'A majority of the courts adhere to the view that a statute of limitations as distinguished from a statute which
prescribes conditions precedent to a right of action, does not go to the substance of a right, but only to the remedy. It
does not extinguish the debt or preclude its enforcement, unless the debtor chooses to avail himself of the defence
and specially pleads it. An indebtedness does not lose its character as such merely because it is barred, it still affords
sufficient consideration to support a promise to pay, and gives a creditor an insurable interest.'
In Corpus Juris Secundum, Vol. 53, page 922, we have the following statement of the law: 'The general rule, at least
with respect to debts or money demands, is that a statute of limitation bars, or runs against, the remedy and does not
discharge the debt or extinguish or impair the right, obligation or cause of action. '
The position then is that under the law a debt subsists notwithstanding that its recovery is barred by limitation.
The modes in which an obligation under a contract becomes discharged are well defined, and the bar of limitation is
not one of them. The following passages in Anson's Law of Contract, 19th edition, page 383, are directly in point:
'At Common Law, lapse of time does not affect contractual rights. Such a right is of a permanent and indestructible
character, unless either from the nature of the contract, or from its terms, it be limited in point of duration. But
though the right possesses this permanent character, the remedies arising from its violation are withdrawn after a
certain lapse of time; interest reipublicae ut si finis litium. The remedies are barred, though the right is not
extinguished."
"And if the law requires that a debtor should get a discharge before he can be compelled to pay, that requirement is
not satisfied if he is merely told that in the normal course he is not likely to be exposed to action by the creditor."
The Bombay High Court in the case of J.K. Chemicals Ltd. v. CIT [1966] 62 ITR 34, again considered the question. The
assesse-company, which kept its accounts on the mercantile system, debited the accounts as and when it incurred
any liability on account of wages, salary or bonus due to its employees even though the amounts were not disbursed
in cash to the employees, and obtained deduction of the amounts so debited in the respective years in computing its
total income. Certain portion of the wages, salary and bonus, so debited, was in fact not drawn by the employees. On
June 30, 1957, a sum of Rs. 5,929 which had remained undrawn but had been allowed to be deducted during the
accounting years 1945 to 1953 was credited to the profit and loss account of the said year. The Department included
this amount in the total income of the accounting year on the ground that the trading liability in respect of which
deduction had been allowed had ceased to exist, and under section 10(2A), the amount in question should be
deemed to be income.
The Bombay High Court held that, in order that an amount may be deemed to be income under section 10(2A), there
must be a remission or cessation of the liability in respect of that amount. The mere fact that more than three years
had elapsed since the accrual of the liability and that the debts had become unenforceable against the assessee under
the general law does not constitute cessation of the trading liability within the meaning of section 10(2A). A mere
entry of credit in the accounts in respect of the amount would also not bring about a remission or cessation of the
liability. Section 10(2A) was not, therefore, applicable and the amount was not liable to be assessed as income of the
accounting year in which the credit entry was made.
Que. 7. What are the main components of a plaint? On which grounds a plaint may be rejected. Explain.
Answer. A plaint is a legal document which contains the written statement of the plaintiff’s claim. A plaint is the first
step towards the initiation of a suit. In fact, in the very plaint, the content of the civil suit is laid out.
Although it hasn’t been defined in the CPC, it is a comprehensive document, a pleading of the plaintiff, which outlines
the essentials of a suit, and sets the legal wheels up and running.
Main components of a plaint - Pleading refers to plaint and written statement. In plaint, plaintiff should allege facts
about his cause of action. In fact, plaint consists of some contents, and it is mandatory that such contents should be
present in plaint. Order 7 Rule 1 of CPC lays down that a plaint must contain the following particulars;-
a) Plaint should contain name of that court in which suit is brought.
b) Plaint should contain name, description and residence of plaintiff.
c) Plaint should contain name, description and residence of defendant, so far as they can be ascertained.
d) When plaintiff or defendant is minor or person of unsound mind, plaint should contain a statement to that
effect.
e) Plaint should contain those facts, which have constituted cause of action. In addition to this, it should also be
described in plaint when cause of action has arisen.
f) Plaint should contain those facts, which show the court has jurisdiction.
g) Plaint should contain that relief, which plaintiff claims.
h) When plaintiff has allowed set off or has relinquished a portion of his claim, plaint should contain that
amount, which has been so allowed or so relinquished and
i) Plaint should contain statement of value of subject-matter of suit not only for purpose of jurisdiction, but also
for purpose of court-fees, so far as the case admits.
In some specific cases, in addition to the above, the plaint should contain the following specific particulars also:-
1. In money suits - If the suit is for recovery of money, the plaint should contain the exact amount claimed. If the
suit is for mesne profit, or for an amount which will be due on taking accounts, or a debt the value whereof
cannot be estimated with reasonable diligence, the approximate amount may be stated instead of the exact
amount.
2. Where the subject-matter of the suit is immovable property - If the suit is for immovable property, the plaint
should contain a proper description sufficient to identify such property along with boundaries, survey
numbers, etc., wherever possible.
3. When plaintiff sues as representative – where the plaintiff sues in a representative character the plaint shall
show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if
any) necessary to enable him to institute a suit concerning it.
4. Defendant’s interest and liability to be shown – the plaint shall show that the defendant is or claims to be
interested in subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand.
5. Grounds of exemption from limitation law – where the suit is instituted after the expiration of the period
prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is
claimed.
6. Relief to be specifically stated – Every plaint shall state specifically the relief which the plaintiff claims either
simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be
given as the court may think just to the same extent as if it had been asked for. And the same rule shall apply
to any relief claimed by the defendant in his written statement.
Rejection of a plaint – Order VII, Rule 11 of CPC enacts that a plaint shall be rejected in six classes of cases mentioned
in clauses (a) to (f). The rule does not envisage the dismissal of the suit, but only rejection of the plaint. The plaint
shall be rejected in the following cases –
(a) Where it does not disclose a cause of action;
(b) Where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the
valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped,
and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be
fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law :
(e) Where it is not filed in duplicate (Ins. By Act 46 of 1999, section 17)
(f) Where the plaintiff fails to comply with provisions of Rule 9 (Subs. By Act 22 of 2002, Section 8)
Rejection of plaint in part is not justified (Roop Lal Sathi v. Nachhattar Singh, AIR 1982 SC 1559). The concept of partial
rejection is inapplicable to the provisions of Order VII, Rule 11, it would have its limited application in regard to the
provisions of Order VI, Rule 16 of the Code. It must be rejected as a whole. The circumstances mentioned in Clauses
(a) to (f) are not exhaustive. A plaint may be rejected on other grounds as well.
Que. 9. What is meant by the Review of Judgment? What are the grounds on which one may apply for review of
Judgment?
Answer. Review of Judgment – Section 114 deals with substantive provisions of review while Order 47 embodies the
procedure therefore. Review means the process under which a court in certain circumstances can reconsider its own
judgment. It is a judicial re-examination of the case by the same Court and by the same judge. Generally the court
which rendered the earlier decision or disposed of the matter earlier should, if available, must review its earlier
decision in as much as he is the best suited to remove any error apparent on the face of its own order.
Section 114. (Review) - Any person considering himself aggrieved-
(a) by a decree or order from which an appeal is allowed, but from no appeal has been preferred,
(b) by a decree or order from which no appeal is allowed, or
(c) by a decision on a reference from a Court of Small Causes,
A judgment is open to review inter alia, there is a mistake apparent on the face of the record under Rule 47 Rule 1
Civil Procedure Code,1908. A review of a judgment is a serious step and reluctant resort to it is proper only where a
glaring omission or patent mistake or like grave error had crept in earlier by judicial fallibility. A review is required to
be confirmed to the grounds mentioned under Order 47 Rule 1 of CPC therein. A review petition has a limited
purpose and cannot be allowed to be “an appeal in disguise”. An error which is not self-evident and has to be
detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the
Court to exercise its power of review under Order 47, Rule 1 C.P.C. Review literally and even judicially means re-
examination or reconsideration.
Grounds for review:- Review can be filed, if there is
i. Discovery of new Evidence - Discovery of New and Important matter or evidence, which, after the exercise of
due diligence was not within the knowledge of the person seeking review or could not be produced by him at
any time when the decree was passed or order made”, it would have an impact and might have altered the
decision. Moreover, absence of such important matter or evidence on record at the time of decision, must not
be the result of negligent attitude of the concerned person and therefore such person applying for Review is
required by law to strictly prove that such matter or evidence was not within his knowledge or could not be
adduced, even after exercising due diligence and unless such proof is given, application shall not be granted
[Indian Oil Corp. Ltd. v. State of Bihar, (1986) 4 SCC 146].
Illustration – “A sued B for a sum of money alleged to be due under an agreement and obtained the decree
for the same, against which B, subsequently filed an appeal in the Privy Council, and while the appeal was
pending, A obtained another decree against B on the strength of the former decree, for another sum of money
alleged by him to have become due under the same agreement and later Privy Council reversed the former
decree in the appeal, on the basis of which B applied to the court which had passed the second decree, for the
Review on the ground of the decision of Privy Council and so was accepted and held by the court to be a new
and important matter”
ii. “Some mistake or error apparent on the face of the record” - The mistake or error should be such, which is
very obvious and visible itself on the face of it, and therefore any error found out from the judgment after a
long reasoning and law based analysis, cannot be said to be one apparent on the face of record, as a ground
for review. However, such mistake or error can be of fact and as well as of law.
Illustrations – “Non-consideration of the very obvious application of particular law, such as law of limitation or
particular provision to the facts of the case, setting aside of the ex parte decree without being satisfied of the
any of the conditions laid down in Order 9 Rule 13, application of religious law which has not been legally
recognized, wrong interpretation of a settled legal issue, where a commission was issued to examine a witness
in a country where no reciprocal arrangement exists, have been held to be an error apparent on the face of
record” .
iii. “Any other sufficient reason” - Before 1922, the application of the term “Sufficient reason” was unrestricted
and unregulated, finally in that year a principle came to be laid down by the Privy Council in the case
of Chhajju Ram V. Neki AIR 1922 PC 112, which can be summarized as that “the third ground mentioned, is no
doubt giving wide scope to the grounds for review, but at the same time that “sufficient reason” has to be at
least analogous (ejusdem generis) to either of the other two grounds and the mere reason that decree was
passed or order made on erroneous ground that court failed to appreciate the important matter or evidence,
would not make any good ground for review, and therefore in such cases, the appeal and not review, is the
remedy to get such erroneous decree or order corrected”.
Illustrations – Failure to adhere to legal provision which required the court to act in a particular manner would
fall within the meaning of “Sufficient Reason” as analogous to the “Error Apparent on the Face of the Record”.
Order of the dismissal of a suit due to default of the plaintiff, cannot be reviewed on the ground of
misapprehension of the counsel as sufficient reason, but if order was on its face illegal then such order may be
reviewed on the ground as error of the law apparent on the face of the record.
(B) Decree – In a civil suit several facts might be alleged and the court may be required to rule on several claims. In
simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example in a suit
between A and B, A may claim that a particular property P belongs A. After hearing all the arguments, the court will
rule in the favor of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs
to A or B, is a decree.
As per section 2(2) a decree is 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. It
can be final or preliminary.
From the above definition we can see the following essential elements of a decree -
1. There must be an adjudication - Adjudication means judicial determination of the matter in dispute. In other
words, the court must have applied its mind on the facts of the case to resolve the matter in dispute. For
example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But dismissing a
suite on merits of the case would be a decree.
2. There must be a suit - Decree can only be given in relation to a suit. Although CPC does not define what suit
means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council defined the term suit
as “a civil proceeding instituted by the presentation of a plaint”.
3. Rights of the parties - The adjudication must be about any or all of the matters in controversy in the suit. The
word right means substantive rights and not merely procedural rights. For example, an order refusing leave to
sue in forma pauperis (i.e. an order rejecting the application of a poor plaintiff to waive court costs) is not a
decree because it does not determine the right of the party in regards to the matters alleged in the suit.
4. Conclusive Determination - The determination of the right must be conclusive. This means that the court will
not entertain any argument to change the decision. I.e. as far as the court is concerned, the matter in issue
stands resolved. For example, an order striking out defence of a tenant under a relevant Rent Act, or an order
refusing an adjournment is not a decree as they do not determine the right of a party conclusively. On the
other hand, out of several properties in issue in a suit, the court may make a conclusive determination about
the ownership of a particular property. 0uch a conclusive determination would be a decree even though it
does not dispose off the suit completely.
5. Formal expression - To be a decree, the court must formally express its decision in the manner provided by
law. A mere comment of the judge cannot be a decree.
Examples of decisions which are Decrees -Dismissal of appeal as time barred, Dismissal or a suit or appeal for
want of evidence or proof, Order holding appeal to be not maintainable.
Examples of decisions which are not Decrees - Dismissal of appeal for default, order of remand, order
granting interim relief.
(C) Execution of Decree – As per Section 38, a decree may be executed either by the court which passed it or the
court to which it is sent for execution. While executing a decree, several questions and objections may arise as to
the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus,
Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree
should be resolved in execution proceeding itself and not by a separate suit. Section 47 says thus –
47. Questions to be determined by the Court executing decree –
1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and
relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the
decree and not by a separate suit.
2) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for
the purposes of this section, be determined by the Court.
Explanation I. For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against
whom a suit has been dismissed are parties to the suit.
Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be
deemed to be a party to the suit in which the decree is passed; and
(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall
be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of
this section.
The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising at the
time of execution. Institution of new suits would only increase the number of suits and would also be a burden on the
parties. The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in
all the matters regarding the execution. It does not matter whether the matter has arisen before or after the
execution of the decree. Thus, this section should be construed liberally.
Conditions –
1. The question must be one arising between the parties or their representatives to the suit in which the decree
ispassed.
2. The question must relate to the execution, discharge, or satisfaction of the decree.
As held in the case of Arokiaswamy vs Margaret AIR 1982, both the conditions must be satisfied cumulatively.
Submitted By
Pankaj Kumar Rathaur