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CODE
OF CIVIL
PROCEDURE,
1908

Adv. Kalichand Govardhan

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Adv. Kalichand Govardhan
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Asst. Professor
Notes – LLB NET/SET JMFC DJ
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Adv. Kalichand Govardhan

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 Page 3 of 62

1. CPC : Introductions, History, Special features SECTION ORDER

2. Preliminary : Section 1-8

3. Jurisdiction of Courts: Section 3, 6, 9-14

3A Res-Subjudice Section 10

3B Res-Judicata Section 11

4. Place of Suing, Objections to jurisdiction, Transfer of Section 15-20

Suits :
4A. Objections to jurisdiction Section 21

4B. Transfer of Suits (Supreme Court) Section 24, 25

5. Service of Summons in Civil Cases : Section 27-32, Order (5)

(Rule 1-30)
6. PARTIES TO SUIT ORDER (1)

7. Frame of Suit ORDER (2)

7A. Cause of Action ORDER (2)

(Rule 2-7)
8. Recognised agents and Pleaders ORDER (3)

9. Institution of Suits Section 26-35 B ORDER (1)

(4)
10. Pleading ORDER (6)
(RULE 1 to
18]
11. Plaint ORDER (7)

12. Written Statement ORDER (8)

13. Set-off and Counter-Claim Order (8)

(Rule 6 &
6A)
14. Appearance of Parties and Consequence of Non- ORDER (9)
Appearance (Rule 1-10)
14A. Setting aside Ex part Decree Art. 123 ORDER (9)
(Limitation Rule (13)
Act)
15. Examination of Parties by the Court ORDER (10)

16. Discovery and Inspection (Interrogatories) Section 30-32 ORDER (11)

17. Admissions ORDER (12)

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18. Production, Impounding & Return Of ORDER (13)

Documents
19. Settlement of Issues & Determination of Suit ORDER (14)
on Issues of Law or on Issues agreed upon

20. Disposal of the Suit at the First Hearing ORDER (15)

21. Adjournment ORDER (17)

22. Hearing of the Suit and Examination of ORDER (18)

Witnesses
23. AFFIDAVITS Section 139 ORDER (19)

24. Judgment & Decree Section 33 ORDER (20)

25. Interest Section 34

26. Costs Sections 35, 35-A ORDER (20-

35-B A)
27. Execution of Decrees and order Section 36-74 ORDER (21)
(Rule 1-106)
28. Arrest & Detention Section 55-59 Order 21
Rules 37-40
29. Attachment Section 60-64 Order 21
Rules 41-57
30. Garnishee order Order 21
(Rule 46A)
31. Sale Section 65-67 Order 21
Rules 64-96
32. Doctrine of Restitution Section 144

33. Death, Marriage and Insolvency or Parties ORDER 22

(Rule 1 –
10A)
34. Withdrawal and Adjustment of Suit Order 23

35. Interim Orders (S. 75 - 78) & Order 24, 25,

(S. 94-95) 26, 38, 39, 40
36. Payment in Court Order 24

37. Security for Costs Order 25

38. Commissions/ Sections 75 to 78 Order 26

Commissioner Order 26 A
39. Attachment & Arrest before Judgment Section 94-95 Order 38

40. Temporary Injunctions & Interlocutory Orders Section 95-96 Order 39

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41. Receiver (Appointment of Receiver) Section 94 Order 40

42. Specific Suits/Suits in Particular Cases Section 79 to 93 Orders 27-37

42A. Suit by OR against Minors and persons of Order 32

Unsound mind
43. Suits by the Indigent Persons OR ORDER 33
PAUPER persons
Appeal by Indigent person Order 44
44. Inter-pleader Suits Section 88 ORDER 35

45. Special proceeding Section 89 - 93 Order 36 - 37

46. Summary procedure. Order 37

47. Appeals Section 96- Order 41

100, 104-109 (Rule 1-
37)
48. Reference Section 113 Order 46

48A. Review Section 114 Order 47

48B. Revision Section 115

49. CAVEAT Section 148 A

50. Inherent Power of Court Section 151

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 Page 6 of 62

INTRODUCTION :
HISTORY OF THE CODE.— To give uniformity to Civil Procedure, (in the direction of
Sir Charles Wood)
Legislative Council of India, enacted Code of Civil Procedure, 1858, which received
the assent of on 23 March 1859.

CPC, 1859
The CPC was not applicable to the Supreme
Court in the Presidency Towns and to the
Presidency Small Cause Courts.

Amended in 1877 and 1882

It was further
superseded by the
present Code of 1908

The present Code of 1908 was amended several times. Necessity was felt then to
make some other changes in the present Code.

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 Page 7 of 62

Recent Amendments in CPC

1. CPC (Amendment) Act 1999 ( Act No 46 of 1999) & CPC (Amendment) Act 2002
(Act No 22 of 2002) (w.e.f. 01/07/2002). Both these Acts were made on the
recommendation of the Malimath Committee. Salem Advocate Bar v. Union Of
India : The legislature in 1999 and 2002 came up with amendments to the Civil
Procedure Code, changing the nature of the Statute. In this case, the Supreme
Court declared these amendments to be constitutional.
2. Civil Procedure Code (Amendment) Act 2015 : Keeping in view the
establishment of Commercial Court and the provisions thereof, Civil
Procedure Code (Amendment) Act, 2016 was enacted. These provisions
are applicable to commercial disputes of specified value. The act clarified that the
provisions of the Civil Procedure Code as amended by the Act would have an
overriding effect over any rules of the High Court or of the amendments made by
the state government concerned.
3. The Code of Civil Procedure, 1908 was further amended in the year 2018

Special features of CPC, 1908

1) Substantive Laws (IPC, 1860; Contract Act, 1872; Partnership Act, 1932; Sale of
Goods Act, 1930, etc.) and
Procedural Laws (CPC, 1908; CrPC, 1973; Evidence Act, 1872, etc.).
The former determines the rights and obligations of the members of the society
whereas the later prescribes the procedure for their enforcement.
2) Not retrospective effect (Mahadeo Prasad Singh & Anr v. Ram Lochan & Ors,
1980)
3) Not exhaustive, but it is exhaustive on subject in respect of which provisions
have been made in the code. But Where on a particular matter, the code is silent,
the Court should decide the matter on the principles of equity, justice and good
conscience. (u/s 152 of CPC)

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 Page 8 of 62

4) Note : CPC is the subject matter of concurrent list.

Judge :- i. when deals with civil matter : District Judge
ii. when deals with criminal matter : Session Judge.
Scope of applicability.— The Code applies to the procedure of all Courts of Civil
Judicature. But it does not affect any special or local law (Savitri Thakurain v Savi,
AIR 1921) . In case of conflict between Civil Procedure Code and a Special law, the
latter prevails over the former.(Mohd Azim Khan v Mumtaz Ali Khan, AIR 1932)
Extension : After coming into force of J&K Reorganisation Act, 2019 w.e.f
31/10/2019, the CPC shall extend to whole of India except the State of Nagaland
& Tribal Areas. (as mentioned u/s 1 of CPC)

Short Title Civil Procedure Code 1908

Citation ACT NO. 5 OF 19081
Date of enactment [21st March, 1908.]
Date of 01/01/1909
enforcement
Chapters XI
Section 158

Omitted Sections 48, 66, 68 -72, 110, 111, 111A

155, 155 156 …….
Order 51
Rules
Scheduled V
Omitted Scheduled II, III, IV, V
Appendix A to H

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 Page 9 of 62

CHAPTERS:—
Sr. No. Contents Sections
PRELIMINARY 1 to 8
Part - I SUITS IN GENERAL 9 to 35B
PART- II EXECUTION 36 to 74
PART — III INCIDENTAL 75 to 78
PROCEEDINGS
PART — IV SUITS IN 79 to 88
PARTICULAR CASES
PART — V SPECIAL 89 to 93
PROCEEDINGS
PART — VI SUPPLEMENTAL 94, 95
PROCEEDINGS
PART — VII APPEALS 96 to 112
PART — VIII REFERENCE, 113, 114, 115
REVIEW AND
REVISION
PART — IX SPECIAL 116 to 120
PROVISIONS
RELATING TO THE
HIGH COURTS NOT
BEING THE COURT
OF A
JUDICIAL
COMMISSIONER
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 Page 10 of 62

PART — X RULES 121 to 131

PART — XI MISCELLANEOUS 132 to 158

Preliminary | Section 1-8

Section 1 of CPC : Short title, Commencement and extent.
1. Short title : The Code of Civil Procedure, 1908.
2. Commencement : It shall come into force on the first day of January, 1909.
3. Extent : CPC shall extend Whole of India except the State of Nagaland & Tribal
Areas.
Provided that the State Government concerned may, by notification in the Official
Gazette, extend the provisions of this Code or any of them to the whole or part
of the State of Nagaland or such tribal areas, as the case may be, with such
supplemental, incidental or consequential modifications as may be specified in the
notification.

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 Page 11 of 62

It has been divided into two divisions

2) First schedule:- 51 Orders and Rules

1) Sec. 158 which are further divided
(Which are prescribed procedures
into 11 parts. (These sections deal
and method that govern civil
with the substantive Rights of
proceedings in India)
parties and jurisdiction)

Can be amended by :- Can be amended by :-

i. Parliament i. Parliament
ii. State ii. State
iii. Legislature
iv. State High
Court

+
APPENDICES
(Appendix A to H)

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 Page 12 of 62

Explanation to the Section 1 of CPC. —In this clause, "tribal areas" means the
territories which, immediately before the 21st day of January, 1972, were included
in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to
the Constitution.
Section 2 of CPC : Definition clause / interpretation clause : Generally, all statutes
contain a section in the beginning wherein words or expressions used in the statute
are defined.
The definition clause is like a dictionary to understand the meaning of the words or
terms used in the statute. The section defining the various words is also called
interpretation clause. The following words are defined in this section.

S. 2(1) : Code S. 2(2) : Decree S. 2(3) : decreeholder

S. 2(4) : District S. 2(5) : foreign Court S. 2(6) : foreign
judgment
S. 2(7) : Government S. 2(7A) : High Court S. 2(7B) : India
Pleader
S. 2(8) : Judge S. 2(9) : Judgment S. 2(10) :
Judgmentdebtor
S. 2(11) : Legal S. 2(12) : Mesne S. 2(13) : Movable
representative profits property
S. 2(14) : Order S. 2(15) : Pleader S. 2(16) : Prescribed
S. 2(17) : Public officer S. 2(18) : Rules S. 2(19) : Share in a
corporation
S. 2(20) : Signed

Important definitions under section 2 of CPC

S. 2(1) of CPC : Code : "code" includes rules. It has been held by the Supreme Court
in State of UP v CB Misra, AIR 1980 that the word "Code" includes not only sections,
but also rules in First Schedule and rules made by the High Courts amending the
rules in First Schedule.
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 Page 13 of 62

Decree : Section 2(2) of CPC

The definition of decree is given in section 2(2) of CPC.
Essential elements of a decree:
• There must be a formal expression of adjudication.
• Such adjudication must have been given in a suit.
• It must have determine the rights of parties with regard to all or any of
matter in controversy in suit.
• Such determination must be conclusive nature.
It shall be deemed to include:—
1) rejection of plaint (order 7 rule 11).
2) determination of any question within section 144.
does not include:—
1) any adjudication from which an appeal lies as an appeal from an order.
2) any dismissal for default.
Adjudication : For a decision of the court to a decree, there must be an
adjudication. The matter in dispute should be judicially determined. As held in the
case of Madan Naik v. Hansubala Devi, 1983 if the matter is not judicially
determined then, it is not a decree.
Deep Chand v. Land Acquisition Officer, 1994 : The adjudication should be made by
the officer of the Court and if it is not passed by an officer of the court then it is not
a decree.
Suit : For any decision to be considered as a decree, the adjudication must have
been done in suit. The term“suit” for this context can be understood as “any civil
procedure which has been instituted by the presentation of a plaint”. The decree
can only be in a civil suit. If there is no civil suit, there can be no decree.
Hansraj vs Dehradun Mussoorie Tramways Co. Ltd AIR 1929. : The Privy Council
defined the term suit as a civil proceedings initiated by the presentation of plaint.
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 Page 14 of 62

Decisions considered as a Decisions not considered

decree : as a decree :
The decisions held to be decree are The decisions which are not
as follows: considered as a decree are as
follows:
1. Order of abetment of suit Dismissal of appeal for default;
2. Dismissal of suit or appeal due to Order for remand;
the requirement of evidence or
proof;
3. Dismissal of appeal as time- Appointment of Commissioner in
barred; order to take accounts;

4. Order granting costs and An order refusing the grant of

instalments; interim relief;
5. Rejection of plant due to non- Order granting interim relief;
payment of court fees;
6. An order refusing maintainability Application rejected for
of appeal; condonation of delay;
7. An order refusing costs or Return of plaint in order to present
instalments; it to the proper court;
8. Order denying the survival of right Order holding an application to be
to sue; maintainable;
9. Order stating that there is no Order of refusal to set aside the sale;
cause of action;

Preliminary Decree : A decree is preliminary when further proceedings have to be

taken before the suit can be completely disposed of. Such a decree determine the

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 Page 15 of 62

right of the parties with regard to some or one of the matters in controversy in a
suit, but does not completely dispose of the suit.
Question whether a decision amount to a preliminary decree or not is of great
significance in view of the provisions of section 97 of CPC:
where any party aggrieved by a preliminary decree does not appeal from such
decree, he shall be precluded from disputing it's correctness in any appeal which
may be preferred from the final decree.

Types of Decree

Preliminary
Decree Deemed decree
Order 21 Rule 58
Final
Decree
Partly Preliminary
Decree & Partly
Final Decree
Provisions in the Code for passing of the Preliminary Decrees:
1) A decree for possession and mesne profits (O. XX, rule 12).
2) A decree in administration suit (O. XX, rule 13).
3) A decree in pre-emption suit (O XX, rule 14).
4) A decree in suit for dissolution of partnership (O XX, rule 15).
5) A decree in suit for account between principal and agent (O XX, rule 16).
6) Decree in suit for partition of property or separate possession of a share
therein (OXX rule 18).
7) A decree when set-off is allowed (O XX, rule 19).
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 Page 16 of 62

8) A preliminary decree in foreclosure suit (O XXXIV, rule 2).

9) Final decree in foreclosure suit (O XXXIV, rule 3).
10) A preliminary decree in suit for sale (O XXXIV, rule 4).
11) A final decree in suit for sale (O XXXIV, rule 5).
12) A preliminary decree in redemption suit (O XXXIV, rule 7).
13) A final decree in redemption suit (O XXXIV, rule 8).
Narayanan vs Laxmi Narayan AIR 1953 : In this case, it was said that this list
aforementioned, which is given in the CPC is not exhaustive and that preliminary
decree can be used in other matters as well.

Can there be more than one preliminary decree?

Ans. There is a conflict of opinion regarding this question that whether there can
be more than one preliminary decree in the same suit or not. Some High Courts are
of the view that there can be more than one preliminary decree while some of the
High Courts are against this view.
In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided
that "C.P.C. does not prohibits passing of more that one preliminary decree, if
circumstances justify the same and it may be necessary to do so".
Final Decree: final decree is one which completely disposes of the suit and finally
settles all the questions in controversy between the parties and nothing further
remains to be decided thereafter.
Decree may be said to become final in two ways:
1. When the time for appeal has expired without any appeal being filed, or the
matter has been decided by the decree of the highest Court.
2. When the decree, so far as regards the Court passing it, completely disposes
of the suit.

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 Page 17 of 62

Can there be more than one final decree?

Ans. Ordinarily, in one suit there is one preliminary and one final decree.
In the case of Shankar v. Chandrakant, 1995 the Supreme Court finally settled the
conflict of opinion and stated that more than one final decree can be passed.

Can an appeal against final decree correctness of the

preliminary decree be questioned, when no appeal has
been preferred by aggrieved party against the
preliminary decree ?
Ans. Section 97 provides that - Whether any party aggrieved by a preliminary
decree does not appeal from such decree, he shall be precluded from disputing it's
correctness in any appeal which may be preferred from the final decree.
In Sital Parshad v. Kishori Lal, AIR 1967 SC 1236 it was observed by Supreme Court
that since the passing of preliminary decree is only a stage prior to the passing of
final decree, if an appeal against a preliminary decree succeeds, the final decree
automatically falls to the ground for there is no preliminary decree thereafter in
support of it.

AMENDMENT OF DECREE:
U/S. 152 of the CPC, any clerical errors with regards to decrees can be
corrected by the courts themselves or on application by the plaintiffs.
But according to Section 153, the courts have a general power to amend,
and may, at any time, as it deems fit, amend any error or defect
proceeding in a suit.

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 Page 18 of 62

The corrections that the courts are entitled to make are only relating to
accidental omissions or clerical errors and not other errors which have
been brought about due to gross negligence or mistake.
But before such a move, the court must be satisfied and it must be validly
proven that such an error was something no more than an arithmetic
error or a clerical mistake and nothing that changes or alters the very
functioning of the suit or nothing that is done under malice.
Partly preliminary and partly final decree : A decree passed under the
Code of Civil Procedure may be partly preliminary and partly final. This
happens some part of the decree is preliminary decree while the rest is
a final decree.
Deemed decree : An adjudication which does not formally fall under the definition
of decree stated under section 2(2) of the Code of Civil Procedure but due to a legal
fiction, they are deemed to be decrees are considered as deemed decrees.

Rejection of plaint and determination of the issue of restitution of decree are

deemed decree. Also, an adjudication under order 21 Rule 58, Rule 98 and Rule 100
are also deemed decrees.

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 Page 19 of 62

Difference between decree and order

Difference Decree Order

1. Section It is defined u/s 2(2) of It is defined u/s 2(14) of
CPC. CPC.
2. Initiated It is passed in a suit It can be passed in the
initiated by the suit initiated by
presentation of a presentation of
plaint.
plaint, application or
petition.
3. Rights of parties It deals with It deals with procedural
substantive legal rights legal rights of the
of the parties. parties.
4. Nature It can be preliminary or It is always final.
final or partly
preliminary or
partly final.
5. Number There is only one decree Orders may be passed
in a suit. more than one in the
same
proceedings.
6. Appeal Every decree is Every order is not
appealable except a appealable except as
consent decree. specified in
section 104(1) and O
XLIV, rule I of CPC, 1908.
7. Second appeal There is a provision of a No second appeal lies
second appeal from the even in case of
appealable
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 Page 20 of 62

decree passed in the first orders.

appeal on certain
grounds.

2(3) of CPC : “decree-holder” means any person in whose favour a decree has been
passed or an order capable of execution has been made;
Raja Soap Factory v Santharaj, AIR 1965 : A decree-holder need not be a party to
the suit. If the decree confers upon someone, some enforceable right, he is entitled
to execute the same.
Uchab v Brundaban, AIR 1969 : Even a defendant can be a decree-holder. Thus,
where a decree for specific performance is passed, such decree is capable of
execution both by the plaintiff and the defendant.
S. 2(10) of CPC : “judgment-debtor” means any person against whom a decree has
been passed or an order capable of execution has been made;
S. 2(5) of CPC : “Foreign Court”.— Two conditions must be satisfied in order to
bring a Court within the definition of a "foreign Court", viz.:
(i) it must situate outside India, and
(ii) it must not have been established or continued by the Central Government.
S. 2(6) of CPC : “Foreign judgment” means the judgment of a foreign Court;
S. 2(7) of CPC : “Government Pleader” includes any officer appointed by the State
Government to perform all or any of the functions expressly imposed by this Code
on the Government Pleader and also any pleader acting under the directions of the
Government Pleader;
Note : An Assistant Government Advocate is included in the term "Government
Pleader".
S. 2(15) of CPC : “Pleader” means any person entitled to appear and plead for
another in Court, and includes an advocate, a vakil and an attorney of a High Court;

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 Page 21 of 62

Appointment of Pleaders.—See O III, rule 4 Code of Civil Procedure, 1908.

S. 2(8) of CPC : “Judge” means the presiding officer of a Civil Court;
S. 2(9) of CPC : “Judgment” means the statement given by the Judge of the grounds
of a decree or order;
The word ‘judgement’ is derived after combining two words namely, judge and
statement. It can also be termed as an act of judging. It is the conclusion or the
result of judging. The Judge, whenever passing an order or decree, gives details of
the reasons for passing such decree or order. Such details are called judgment.
The essential element of a judgment is that there should be a statement for the
grounds of the decision Vidyacharan Shukla v.Khubchand Baghel AIR 1964. Every
judgment other than that of a court of small causes should contain:
a. A concise statement of the case
b. The points for determination
c. The decision thereon
d. The reasons for such decision
A judgment in the court of small causes may contain only point b) and c).
A judgement contains facts of the case, the issues involved, the evidence brought
by the parties, finding on issues (based on evidence and arguments). Every
judgement shall include a summary of the pleadings, issues, finding on each issue,
ratio decidendi and the relief granted by the court.
S. 2(11) of CPC : “Legal representative” means a person who in law represents the
estate of a deceased person, and includes any person who intermeddles with the
estate of the deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party so
suing or sued;
The above definition is not exhaustive but illustrative. So, in order to be e a legal
representative under section 2(11) of CPC, it is not necessary that a person should
be a legal heir of a deceased or should have a beneficial interest in the estate.
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 Page 22 of 62

Custodian of Branches BANCO National Ultra Marino v Nalini Bai Naique, AIR
1989 : Legal Representative means a person who represents the estate of the
deceased whether as an heir or as intermeddler; and in case of representative suits,
the person on whom the estate of the deceased person devolves.
The legal representative includes heirs as well as persons who represent the estate
even without title either as executors or administrators in possession of the estate
of the deceased. All such persons are covered by the expression "legal
representative".
Andhra Bank v R Srinivasan, AIR 1962 : The estate does not mean the whole of the
estate. Even a legatee who obtains only a part of the estate of the deceased under
the will can be said to represent the estate and therefore, a legal representative
under section 2(11).
Note : In its strictest sense, the term legal representative is limited to the executors
and administrators only. Its meaning has been extended in the Civil Procedure
Code. Thus, a universal legatee under a will executed by the
deceased is his legal representative. Like-wise, a person on whom the estate of the
deceased devolves would be his legal representative, even if he does not have any
actual possession of the estate.
S. 2(12) of CPC : “Mesne profits” of property means those profits which the person
in wrongful possession of such property actually received or might with ordinary
diligence have received therefrom, together with interest
on such profits, but shall not include profits due to improvements made by the
person in wrongful possession;
In other words, profit (together with interest on such profits) received or could
have been received by a person in wrongful possession of property. but shall not
include profits due to improvements made by the person in wrongful possession;
S. 2(13) of CPC : “movable property” includes growing crops;
Note : Standing timber intended to be cut down and the standing crops have been
held to be movable properties.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 23 of 62

S. 2(14) of CPC : “order” means the formal expression of any decision of a Civil
Court which is not a decree;
Note : Order written by a clerk and signed by the Court is a proper order.
S. 2(16) of CPC : “prescribed” means prescribed by rules;
S. 2(17) of CPC : “public officer” means a person falling under any of the
descriptions In section 2(17) of the Code.
So, every judge, every member of all India services, every gazetted officer of union,
every officer of Court of Justice or of government, a Minister of a State, a Receiver,
a village headman, an officer in the Indian Army, a Sheriff of Bombay, a Bench clerk
of Civil Court, an Inspector of police, a custodian of evacuee property, provident
fund commissioner and advocate engaged by the Government on day fees, an
income tax officer etc are public officers.
But a retired government servant, a Port commissioner, a liquidator under the
cooperative societies act, a chairman of a municipality, a Municipal Councillor, an
officer of a corporation are not public officers.
S. 2(19) of CPC : “share in a corporation” shall be deemed to include stock,
debenture stock, debentures or bonds; and
S. 2(20) of CPC : “signed”, save in the case of a judgment or decree, includes
stamped.
Section 3 of CPC : Subordination of Courts.—For the purposes of this Code, the
District Court is subordinate to the High Court, and every Civil Court of a grade
inferior to that of a District Court and every Court of Small Causes is subordinate to
the High Court and District Court.
The enumeration of Subordinate Courts in this section is not exhaustive and does
not exclude other Courts from the High Court. Thus, a Tribunal under the Displaced
Persons (Debts Adjustment) Act, 1951, or the Motor Accident Claims Tribunal
under the Motor Vehicles Act is a Civil Court subordinate to High Court for the
purposes of this Code.
Section 4 of CPC : Savings.
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 Page 24 of 62

Legal maxim : "generalibus specialia derogant" (Special law should prevail over
general law)
Sub-Section 1 When anything in the CPC is in conflict with :-
i. anything in special or local law; or
ii. any special jurisdiction or power conferred for any special form of
procedure prescribed by or under any other law, the CPC will not (in the
absence of any specific provision to the contrary) prevail so as to override
such inconsistent provisions.
Note: Section 4 does not bar the applicability of the Code where the special or local
law is silent.
The Code applies to the procedure of all Courts of Civil Judicature. But it does not
affect any special or local law
(Savitri Thakurain v Savi, AIR 1921) . In case of conflict between Civil Procedure
Code and a Special law, the latter prevails over the former.(Mohd Azim Khan v
Mumtaz Ali Khan, AIR 1932)
Sub-Section 2) In particular and without prejudice to the generality of the
proposition contained in sub-section ( 1), nothing in this Code shall be deemed to
limit or otherwise affect any remedy which a landholder or landlord may have
under any law for the time being in force for the recovery of rent of agricultural
land from the produce of such land.
Section 5 of CPC : Application of the Code to Revenue Courts.
When local Revenue or Rent Acts are silent on any particular matter of procedure
the provisions of the Code would apply.
Note : Civil Court means courts having original jurisdiction under CPC to try such
suits or proceedings as being
suits or proceedings of a Civil nature., but not Revenue Court. because Revenue
Court is not a part of Civil Court.
Section 6 of CPC : Pecuniary jurisdiction : Save in so far as is otherwise expressly
provided, nothing herein contained shall operate to give any Court jurisdiction over
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 Page 25 of 62

suits the amount or value of the subject matter of which exceeds the pecuniary
limits (if any) of its ordinary jurisdiction.
Note : The expression "subject-matter" refers not to the property involved in the
suit but the relief claimed and it is that which determines the jurisdiction. When a
Court has no jurisdiction in a particular suit, the parties cannot by mutual consent,
confer such jurisdiction on the Court. No amount of consent or waiver can create
jurisdiction.
Furthermore, section 6 refers only to the Court's power to entertain a suit.
Section 7 of CPC : Provincial Small Cause Courts.
Section 8 of CPC : Presidency Small Cause Courts.

Part 1 :- Suits in GGeneral. ( Section 9-35B)

Jurisdiction of Courts and Res judicata ( Section 9-14)

General meaning of Jurisdiction : Jurisdiction is power of court to take cognizance of

an offence and todetermine the cause of action.

Black’s Law Dictionary defines the term as “A court’s power to decide a case or issue a decree.”

Hriday Nath Roy vs Akhil Chandra Roy And Ors. on 1 June, 1928 : The high court of Calcutta
stated that Jurisdiction may be defined as judicial power of court to hear and determine the
cause and adjudicate upon it.

In simple words, it can be described as the power of the court to

settle the matter. Kinds of Jurisdiction : a Civil Court has following

kind of jurisdiction ;

1) JURISDICTION OVER THE SUBJECT MATTER :

2) LOCAL OR TERRITORIAL JURISDICTION :

3) PECUNIARY JURISDICTION : Section 6

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 Page 26 of 62

4) ORIGINAL OR APPELLATE JURISDICTION :

5) Civil And CRIMINAL JURISDICTION

Section 10 of CPC : Stay of Suit. (RES SUB JUDICE)

Conditions for the applicability of section 10:

1. There must be 2 suits, one previously instituted and the other subsequently instituted.

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

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

4. The previously instituted suit must be pending

a) in the same court in which the subsequent suit is brought or

b) in any other court in India or

c) in any court outside India, established or continued by the central govt; or

d) before the Supreme Court

5. The Court in which the previous suit instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.

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

Section 11 of CPC : Res Judicata.

Introduction: The principle of Res Judicata was interpreted by Sir William D. Gray in a
leading suit of "Duchess of Kingston's Case, (1776)". Such interpretation in the above suit
was approved by the Supreme Court of India in the suit of Daryao Singh v. State of U.P. AIR
1961 and the same was followed by the Supreme Court in the case of Satyadhyan Ghosal
v. Deorjin Debi AIR 1960 .

“The principle of res judicata is based on the need of giving a finality to judicial decisions.
What it says is thatonce a res is judicata, it shall not be adjudged again.
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 Page 27 of 62

Meaning of Res judicata : "a thing adjudicated" that is, an issue that is finally settled by judicial decision. Section
11 of CPC states that no Court shall try any suit or issue in which the matter directly and
substantially inissue 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 issue has
been subsequently raised, and has been heard and finally

S.
N. doctrine of Res Judicata Estoppel
1.
S. 11 of CPC deals with the doctrine of S. 115 of the Indian Evidence Act deals
Res Judicata. with Estoppel.
2. It results from the act of a party.
It results from the decision of a Court.
3. It binds both the parties to the litigation. It binds only that party who made
previous statement of conduct.
4. It prevents the parties from raising the It prevents a man from saying one
same issues in the successive litigations. thing at one time and opposite thing at
another time.
5. It prevents the court from trying It shuts the mouth of a party .
adjudged matters.

6. Res judicata deals only with the aspect of Estoppel is based upon the rule of
public policy equity

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 28 of 62

S. doctrine of Res Judicata Res sub judice

N.

1. S. 11 of CPC deals with the doctrine of Res S. 10 of CPC deals with the doctrine of Res sub
Judicata. judice.

2. It applies to a decided or adjudicated matter. It applies in a matter which is pending..

3. It prevents the court from trying adjudged It prevents two courts of concurrent jurisdiction
matters. So it bars the Institution of suit from simultaneously proceed to try two parallel
involving adjudged matters. suits in respect of the same matter in issue. It
bars the trial and not the Institution of the suit .

4. The doctrine of Res Judicata is not applied in It applies to only suit including appeal.
appeals. But it
applies to suit and applications.

Foreign Judgment A combined reading of Section 2(5) & Section 2(6) of CPC provide the definition of
foreign judgement in the following words - “Foreign judgment” means the judgment of a Court
situate outside India and not established or continued by the authority of the Central
Government;] ;

Section 13 of CPC : When foreign judgment not conclusive.—

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title , except—

(a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has
not been given onthe merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of international law
ora refusal to recognise the law of India in cases in which such law is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
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 Page 29 of 62

(f) where it sustains a claim founded on a breach of any law in force in India.

Satya v Teja Singh, AIR 1975 : If the judgment falls under any of the clauses (a) to (e) of
section 13, it will ceaseto be conclusive as to any matter thereby adjudicated upon.

Section 14 of CPC : Presumption as to foreign judgments.

The Court shall presume, upon the production of any document purporting to be a certified
copy of a foreignjudgment, that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption may be
displaced by proving want of jurisdiction.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 30 of 62

Place of Suing | Section 15-20

Sections 15 to 20 of the Code deal with the place of suing, that is the forum for institution of
suits in India. These sections regulate the venue within India and apply only to those places
where the Code is in force.

Summons & Discovery | S. 27-32 SERVICE OF SUMMONS IN CIVIL CASES

What is Summons? : A summons is a legal document that is issued by a Court on a person
involved in a legal proceeding.

If the summons is not duly served then no action can be taken against the defendant.

If defendant fails to attend court after receiving summons, he will be ex-parte by the Court.

Provisions relating to Summons in CPC : Section 27 to 32; & Order V, XVI & XVIA of the CPC, 1908
deal with
‘Service of Summons’.

These provisions can be divided into two parts:

1. ‘Summons’ to defendants/Respondents. [S.27 to S.29, Order V of CPC]

2. ‘Summons’ to witnesses [S.31 to 32, Orders XVI & XVIA of CPC]

Adv. Kalichand Govardhan

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(Pursuing – Ph. D in Law)
Asst. Professor
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 Page 31 of 62

Order V of CPC contains Rules 1 to 30. These provisions deal with issue and

service of summons. O. V; R. 1-8 lays down general provisions relating to issuance of

summons.

Rule 1 : Summons.—

(1) When a suit has been duly instituted, a summons may be issued to the defendant to appear and answer
the claim and to file the written statement of his defence, if any, within thirty days from the date of service of
summons on that defendant:

Provided that no such summons shall be issued when a defendant has appeared at the
presentation of plaintand admitted the plaintiff’s claim:

Provided further that where the defendant fails to file the written statement within the
said period of thirty days, he shall be allowed to file the same on such other day as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of service of summons.

ORDER VI Pleading generally (RULE 1 to 18]

Pleadings:

According to Mogha, “Pleadings are statements in writing drawn up and filed by each party to
a case, stating what his contentions will be at the trial and giving all such details as his
opponent needs to know in order toprepare his case in answer.”

Rule 1 of Order VI : Pleading is defined as plaint or written statement.

It is important to know here the meaning of plaint and written statement.

What is Plaint? A plaint is the first step towards the initiation of a suit. It is a legal
document which contains the statement of the plaintiff's claim in writing and it shall contains
all the particulars as are mention in order 7 Rule 1 of CPC.

Objective of Pleading : The object of pleadings are –

(i) to bring the parties to definite issues;

(ii) to prevent surprise and miscarriage of justice;

(iii) to avoid unnecessary expense and trouble;

Adv. Kalichand Govardhan
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 Page 32 of 62

(iv) to save public time;

(v) to eradicate irrelevancy; and

(vi) to assist the Court.

Rule 2 : Fundamental Rules of Pleading:The general rule regarding the pleadings is as under:

1) Pleading must state facts and not law;

2) Only the material facts must be stated;

3) Pleading should not include the evidence, and

4) The facts stated must be in concise form.

5) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each
allegation being, so far as is convenient contained in a separate paragraph.

6) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Now these rules are discussed in details one by one:-

(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It says that
pleadings should state only facts and not law.

The facts are of two types:-

(a) Facta probanda- the facts required to be proved (material facts); and

(b) Facta probantia- the facts by means of which they are to be proved
(particulars or evidence).

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 33 of 62

ORDER VII Plaint

The two well known recognised from of pleading in India are :-
1. Plaint 2. Written statement

What is Plaint? A plaint is the first step towards the initiation of a suit. It is a legal
document which contains the statement of the plaintiff's claim in writing and it shall contains
all the particulars as are mention in order 7 Rule 1 of CPC.

Particulars of A Plaint
• Name of the court where the suit is initiated.
• Name, place, & description of the plaintiff's residence.
• Name, place, & description of the defendant's residence.
• A statement of unsoundness of mind or minority in case the plaintiff or the
defendant belongs to either of the categories.
• Facts which led to the cause of action and when it arose.
• Facts which point out the jurisdiction of the court.
• The plaintiff's claim for relief.
• The amount allowed or relinquished by the plaintiff just in case.
• A statement containing the value of the subject matter of the suit as admitted by
the case.

Written statement
A written Statement is nothing but a reply from the defendant to the plaint led by the
plaintiff. it is the pleading of the defendant where he deals with the material fact
alleged by the plaintiff in his plaint and also elucidates any new fact favouring him or
taking legal objections against the plaintiff's claims in the plaint. In a written statement
defendant can deny the allegations made in the plaint against him. Apart from this, he
can also claim to set off any sums of money payable by the plaintiff to him as a counter-
defence (Order 8 Rule 6). On the other hand, if the defendant has any claim against the
plaintiff concerning any matter in the issue raised in the plaint, he can separately file a
counter-claim alongside his written statement (Order 8 Rule 6A to 6G)

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 34 of 62

Who may file a written statement?

A written statement may be filed by the defendant or by his duly authorized agent. In
the case of more than one defendant, the common written statement led by them must
be signed by all of them. However, it will suffice if it is verified by one of them who is
aware of the facts of the case.

Time limit for written statement

A written statement must be filed within thirty days from the service of the summons
on him. The said period can be extended up to ninety days.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 35 of 62

Difference between Plaint and Written Statement

S. No. Plaint Written Statement

1. A legal document stating the A defence statement comprising
cause of action and other all material facts and other
mandatory particulars supports details against the plaint is a
the plaintiff's claim. “written statement”.
2. It is filed by the plaintiff stating its It is filed by the defendant as a
facts and relief to be claimed by reply to the plaintiff's claims.
the plaintiff.
It contains name of the court, it contains all materials and other
name, place, and description of objections that the defendant
the plaintiff's & defendant’s might place before the court to
residence, a statement of admit or deny the plaintiff's
unsoundness of mind, cause of claim.
action, relief claimed etc.
3. Plaint is the first stage in a civil A written statement must be
suit for institution of suit. filed within 30 days from the
date of receipt of the copy of the
plaint. (extended to 90 days)
4. Generally it is divided in parts A general denial of grounds
like- a heading, the cause title, alleged in the plaint is not
the body, the prayer, signature & sufficient and denial has to be
verification of the plaintiff. specific and must be
substantiated with documentary
evidence.
5. Plaint must contain name, Every allegation of fact in the
description and residence of plaint if not denied specifically
defendant. shall be deemed to be admitted.
6. Order VII of CPC deals with plaint. Order VIII of CPC deals with
written statement.

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(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 36 of 62

ORDER VIII [Written Statement, Set-off and Counter-Claim]

What is Written Statement? : In legal dictionary, the word written statement means a
pleading for defence. Inother words, a written statement is the pleading of the defendant
wherein he deals with every material fact alleged by the plaintiff along with any new facts
in his favour or that takes legal objections against the claim of the plaintiff. Note : It is a
pleading of the Defendant.

Rule 1-5 & 7-10 of Order VIII lays down the general provision relating to written statement.

• services and came across the defendant’s YouTube channel ‘CBN NEWS’,
which was identical to the plaintiff’s trademark. A cease and desist notice
was served on the defendant but to no avail. So, the plaintiff filed a suit.
The defendant had failed to file a written statement. The plaintiff prayed
for a temporary injunction and the Court passed it.
• Another case is Nagaratnam Pillai v. Kamlathammal A (1945), here, there
was a question as to whether Order VIII Rule 10 applies to Order VIII Rule
9. Rule 9 states that the parties cannot file further pleadings after filing a
written statement, other than by way of defense to set-off or
counterclaim. It also states that the Court may at any time require a
written statement or additional written statement from any of the parties
and fix a time that is not beyond thirty days for presenting the same. The
Court decided that it relates to Rule 9.

What does Order VIII Rule 10 of the CPC say?

Consequences of not filing a written statement

As per Order VIII Rule 10, if any person who is required to file a written statement
does not do so within the time period prescribed or permitted by the court, the
court shall pronounce the judgement against him or issue an order, and a decree
shall be drawn up on the pronouncement of the judgement. The time period
prescribed for the filing of the written statement in Rule 1 shall not be extended by
the court.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 37 of 62

The court has two alternatives when a written statement has not been filed:

1. Granting of adjournment: The court can grant an adjournment to the

defendant. This grants more time to the defendant to file a written
statement. However, no more than three adjournments can be given to a
party to the suit as per Order VII Rule 1 of the Code. If the party still fails
to file the written statement, the court can move on to the next
alternative, which is the ex parte decree.
2. Pass an ex parte decree: The court can pass an ex parte decree against the
defendant. This is not mandatory but the court has the discretion to do so.
This is usually avoided by the court in the first instance. However, if the
party fails to file a written statement in spite of many adjournments, the
court can resort to passing an ex parte decree against the defendant.

Now that we know the consequences of not filing the written statement during the
prescribed time period, let us look at the provisions of appeal and revision.

Que. :- Discuss the provisions of ADMISSION

and it’s EFFECTS.

A notice of admission has been issued by one party and the other party does
not specifically deny the document or does not admit it in his pleading or reply, it
will be deemed that the document has been admitted. The only exception is where
the opposite party is a disabled person.

Order 12 Rule 3A confers the power on the court to call upon any party to admit a
document and to record the admission or denial of the party.

The proviso to Rule 4 clarifies that admissions made by virtue of a notice under a
particular proceeding cannot be used against the party making the admission in any
other proceedings relating to any other suit.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
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 Page 38 of 62

However, where a party issues a notice to admit such documents which are not
necessary, the costs arising out of such notice will be borne by the party giving the
notice.

Order 12 Rule 6 CPC

Under Order 12 Rule 6, the Courts have the power to make a judgement in regards
to any oral or written admission made by the parties at any stage of the
proceedings. Such admission may be made in the pleading or otherwise.

KINDS OF ADMISSIONS

OF DOCUMENTS ON
OF FACTS NOTICE

During Examination by
Court

In
Pleading
In answer to
Interrogatories
Otherwi
se than
in
EXPRESSLY On Notice (O. 12 R. 4
Pleading
(O. 7 R. 11,

O. 11 R.22)

On Oath (O. 10 R. 2
O. 18 R 3
CONSTRUCTIVEL
Y (O. 8 R.3, 4, 5

O. 12 R. 2-A)
By agreement of Parties
(O.23 R 3)

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LLB LLM NET MA (Eco.) CS(Exe.)
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Asst. Professor
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 Page 39 of 62

Judgment & Decree | Section 33 | ORDER XX

Section 33 of CPC : Judgment and decree.—The Court, after the case has been heard,
shall pronounce judgment, and on such judgment a decree shall follow. (decree shall
be in pursuance of such judgment.)

In Order 20, Rules 1 to 5, deal with Judgment and Rules 6 to 19 provide provisions in relation to
decree.

Costs : Sections 35, 35-A 35-B & ORDER XX-A

According to Black's Law Dictionary “costs is a pecuniary allowance made to the
successful party for his expenses in prosecuting or defending a suit or a distinct
proceeding with a suit”

Cost is a kind of remedy and it shall not be treated as a reward for the winning party and
punishment for the losing party. The primary objective of ordering costs is to provide the
litigant with the expenses incurred by him during the litigation.

The Code of Civil Procedure provides for the following kinds of costs:

1. General costs (Section 35),

2. Compensatory costs (Section 35-A ),

3. Costs for causing delay (Section 35-B),

4. Miscellaneous costs (ORDER XX-A)

Part 2 | Execution | Section 36-74 ORDER 21 Execution of Decrees & Orders

Section 36 to 74 of CPC deals with the substantive law in respect of [execution of decree

Adv. Kalichand Govardhan

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 Page 40 of 62

or order] And its procedural law is provided in Order 21 of CPC.

ORDER 39 Temporary Injunctions and Interlocutory Orders

An injunction is a court order, that requires a person to do or abstain from doing an act that
is necessary interms of justice, and the absence of which would be contrary to good faith and
good conscience.

Basically, the grant of an injunction, aims to restore the violated rights of a party, whereby
monetary or compensatory damages are insufficient. It follows the principles of Natural
Justice and Equity. Power to grant injunction is equitable in nature. The relief can be
granted only if justice, equity and good consciencerequire.

Other Suits (O. 27-A, O. 28, O. 29)

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 Page 41 of 62

ORDER (33) Suits by the Indigent Persons.

Indigent means poor, pauper. Order 33 provides the procedure for filing of suit by an indigent
person, so that no one is denied justice due to lack of money. Because the purpose behind
this order is that poverty should not come in the way of getting justice.

In such a case, the plaintiff will not be granted exemption or release from payment of court
fee, but only thepayment of court fee is postponed.

Who is Indigent Person? : An indigent person is one who does not possess sufficient means
to pay court fees and unable to proceed with any suit If the application is duly
admitted and accepted by the court the suit
will be treated as any other normal suit and court may also provide the applicant a lawyer to
represent him.

ORDER XVIII Hearing of the Suit and Examination of Witnesses

Rule 1 : Right to begin.— The plaintiff has the right to begin unless the defendant admits the facts
alleged by the plaintiff and contends that either in point of law or on some additional facts alleged
by the defendant the plaintiff is not entitled to any part of the relief which he seeks, in which case
the defendant has the right to begin.
Rule 2 : Right to begin Statement and production of evidence.—
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is
adjourned, the party having the right to begin shall state his case and produce his evidence in
support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then
address the Court generally on the whole case.
(3) The party beginning may then reply generally on the whole case.
[(3A) Any party may address oral arguments in a case, and shall, before he concludes the oral
arguments, if any, submit if the Court so permits concisely and under distinct headings written
arguments in support of his case to the Court and such written arguments shall form part of the
record.
(3B) A copy of such written arguments shall be simultaneously furnished to the opposite party.
(3C) No adjournment shall be granted for the purpose of filing the written arguments unless the
Court, for reasons to be recorded in writing, considers it necessary to grant such adjournment.
(3D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case,
as it thinks fit.]

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 42 of 62

Rule 3 : Evidence where several issues.— Where there are several issues and the burden of
proving some of which lies on the other party. In such a case, the party beginning may at his
option:
(i) produce his evidence on those issues, or
(ii) reserve it by way of answer to the evidence produced by the other party. and, in the latter case,
the party beginning may produce evidence on those issues after the other party has produced all
his evidence, and the other party may then reply specially on the evidence so produced by the
party beginning; but the party beginning will then be entitled to reply generally on the whole case.
Rule 3A : Party to appear before other witnesses.— Where a party himself wishes to appear as a
witness, he shall so appear before any other witness on his behalf has been examined, unless the
Court, for reasons to be recorded, permits him to appear as his own witness at a later stage.
In other words Rule 3A states that a party who wishes to be examined as a witness should first
offer himself for examination before the other witnesses are examined.
Rule 4 : Recording of evidence.— (1) In every case, the examination-in-chief of a witness shall be
on affidavit and copies thereof shall be supplied to the opposite party by the party who calls him
for evidence.
Provided that where documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with affidavit shall be subject to the orders
of the Court.
(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose
evidence (examination-in-chief) by affidavit has been furnished to the Court, shall be taken either
by the Court or by the Commissioner appointed by it.
Note : The cross-examination and re-examination of a witness in the High Courts having original
jurisdiction shall be recorded ordinarily by the Commissioner and in Courts subordinate to the
High Court, such evidence shall be recorded either by the Court or by the Commissioner appointed
by it.
Provided that the Court may, while appointing a commission under this sub-rule, consider taking
into account such relevant factors as it thinks fit: Provided further that in a suit tried by the High
Court, the evidence shall ordinarily be recorded by the Commissioner unless the Court directs
otherwise.
(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where
such evidence is recorded by the Commissioner he shall return such evidence together with his
report in writing signed by him to the Court appointing him and the evidence taken under it shall
form part of the record of the suit.
(4) The Commissioner may record such remarks as it thinks material respecting the demeanour
of any witness while under examination :
Provided that any objection raised during the recording of evidence before the Commissioner
shall be recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission
within sixty days from the date of issue of the commission unless the Court for reasons to be
recorded in writing extends the time.
Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 43 of 62

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of
Commissioners to record the evidence under this rule.
(7) The Court may by general or special order fix the amount to be paid as remuneration for the
services of the Commissioner.
(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall
apply to the issue, execution and return of such commission under this rule.
Rule 5 : How evidence shall be taken In appealable cases.— In cases in which an appeal is
allowed, the evidence of each witness shall be,—
(a) taken down in the language of the Court,—
(i) in writing by, or in the presence and under the personal direction and superintendence of the
Judge, or
(ii) from the dictation of the Judge directly on a typewriter; or
(b) if the Judge, for reasons to be recorded, so directs, recorded mechanically in the language of
the Court in the presence of the Judge.
Rule 6 : When deposition to be interpreted.— Where the evidence is taken down in a language
different from that in which it is given, and the witness does not understand the language in which
it is taken down, the evidence as taken down in writing shall be interpreted to him in the language
in which it is given.
Rule 7 : Evidence under Section 138.— Evidence taken down under Section 138 shall be in the
form prescribed by rule 5 and shall be read over and signed and, as occasion may require,
interpreted and corrected as if it were evidence taken down under that rule.
Rule 8 : Memorandum when evidence not taken down by Judge.— Where the evidence is not
taken down in writing by the Judge or from his dictation in the open Court, or recorded
mechanically in his presence, he shall be bound, as the examination of each witness proceeds, to
make a memorandum of the substance of what each witness deposes, and such memorandum
shall be written and signed by the Judge and shall form part of the record.
Rule 9 : When evidence may be taken in English.—
(1) Where English is not the language of the Court, but all the parties to the suit who appear in
person, and the pleaders of such of the parties as appears by pleaders, do not object to having
such evidence as is given in English, being taken down in English, the Judge may so take it down
or cause it to be taken down.
(2) Where evidence is not given in English but all the parties who appear in person, and the
pleaders of such of the parties as appear by pleaders, do not object to having such evidence being
taken down in English, the Judge may take down, or cause to be taken down, such evidence in
English.]
Rule 10 : Any particular question and answer may be taken down.— The Court may, of its own
motion or on the application of any party or his pleader, take down any particular question and
answer, or any objection to any question, if there appears to be any special reason for so doing.
Rule 11 : Questions objected to and allowed by Court.— Where any question put to a witness is
objected to bb a party or his pleader, and the Court allows the same to be put, the Judge shall
Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 44 of 62

take down the question, the answer, the objection and the name of the person making it, together
with the decision of the Court thereon.
Rule 12 : Remarks on demeanour of witnesses.— The Court may record such remarks as it thinks
material respecting the demeanour of any witness while under examination
Rule 13 : Memorandum of evidence in unappealable cases.— In cases in which an appeal is not
allowed, it shall not be necessary to take down or dictate or record the evidence of the witnesses
at length; but the Judge, as the examination of each witness proceeds, shall make in writing, or
dictate directly on the typewriter, or cause to be mechanically recorded, a memorandum of the
substance of what the witness deposes, and such memorandum shall be signed by the Judge or
otherwise authenticated, and shall form part of the record.
In non-appealable cases, the judge shall make or dictate directly on a typewriter or cause to be
mechanically recorded, a memorandum of the substance of the deposition of witnesses.
Rule 14 : Omitted by Act 104 of 1976.
Rule 15 : Power to deal with evidence taken before another Judge.—
(1) Where a Judge is prevented by death, transfer or other cause from concluding the trial of a
suit, his successor may deal with any evidence or memorandum taken down or made under the
foregoing rules as if such evidence or memorandum had been taken down or made by him or
under his direction under the said rules and may proceed with the suit from the stage at which
his predecessor left it.
(2) The provisions of sub-rule (1) shall, so far as they are applicable, be deemed to apply to
evidence taken in a suit transferred under Section 24.
Rule 16 : Power to examine witness immediately.— (1) Where a witness is about to leave the
jurisdiction of the Court, or other sufficient cause is shown to the satisfaction of the Court why
his evidence should be taken immediately, the Court may, upon the application of any party or of
the witness, at any time after the institution of the suit, take the evidence of such witness in
manner hereinbefore provided.
(2) Where such evidence is not taken forthwith and in the presence of the parties, such notice as
the Court thinks sufficient, of the day fixed for the examination, shall be given to the parties.
(3) The evidence so taken shall be read over to the witness, and, if he admits it to be correct, shall
be signed by him, and the Judge shall, if necessary, correct the same, and shall sign it, and it may
then be read at any hearing of the suit.
Rule 17 : Court may recall and examine witness.— The Court may at any stage of a suit recall
any witness who has been examined and may (subject to the law of evidence for the time being
in force) put such questions to him as the Court thinks fit.
Rule 18 : Power of Court to inspect.— The Court may at any stage of a suit inspect any property
or thing concerning which any question may arise, and where the Court inspects any property or
thing it shall, as soon as may be practicable, make a memorandum of any relevant facts observed
at such inspection and such memorandum shall form a part of the record of the suit.
Rule 19 : Power to get statements recorded on commission.— Notwithstanding anything
contained in these rules, the Court may, instead of examining witnesses in open Court, direct their
statements to be recorded on commission under rule 4A of Order XXVI.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 45 of 62

ORDER XIX AFFIDAVITS :-

An affidavit is a sworn written official statement of the facts by a person who is familiar with the
facts and circumstances have taken place. The person who makes it and signs it is known as
Deponent. It is administered by a person who has the authority to regulate oaths.
Section 139 of CPC : Oath on affidavit by whom to be administered.—
In the case of any affidavit under this Code—
(a) any Court or Magistrate, or
[(aa) any notary appointed under the Notaries Act, 1952 (53 of 1952); or]
(b) any officer or other person whom a High Court may appoint in this behalf, or
(c) any officer appointed by any other Court which the State Government has generally or specially
empowered in this behalf, may administer the oath to the deponent.
Under Section 30 clause (c) of CPC the court has power to order any fact to be proved by affidavit.
In the affidavit, the contents are true and correct to the knowledge of the person who signed it
and he has nothing concealed material therefrom. It is duly attested by the Notary or Oath
commissioner appointed by the court of law. The duty of the notary and oath commissioner is to
ensure that the signature of the deponent is not forged. The affidavit must be paragraphed and
numbered as per the provision of the code.
The declaration of the affidavit must be made only by an individual; it cannot be created by a
group of individuals or associations or any other companies.
Statement of facts mentioned in the document should not be based on mere assumptions or
interferences, it must relate to the exact facts.
The statement of facts stated in the affidavit must be sworn in the presence of a
magistrate or an officer who has the authority to administer the oaths.
The essential attributes of an affidavit are:
(i) It must be a declaration made by an individual ;
(ii) It must relate to facts;
(iii) It must be in writing;
(iv) It must be in the first person; and
(v) It must have been sworn or affirmed before a Magistrate or any other
authorised officer

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 46 of 62

Garnishee order : Rule 46-A to 46-I of Order 21 outlines the procedure in

case of garnishee orders.
A garnishee order is a common form of enforcing a judgment debt against a
creditor to recover money. Put simply, the court directs a third party that owes
money to the judgement debtor to instead pay the judgment creditor.
The third party is called a ‘garnishee’.
In other words, A Garnishee is a person who is the debtor of judgement-debtor &
under an obligation to pay his debt to judgement-debtor or to deliver any movable
property to him.
“Garnishor” is the one in whose favour the decree is passed i.e., decree-holder
(judgement- creditor). He is the person who brings such proceedings to reach
judgement’s debtor money or property held by a third party.
A garnishee order helps the debt due by the debtor of the judgement-debtor to be
available to the decree holder without involving him in the suit.

Interim order:
The term interim order refers to an order issued by a court during the pendency
of the litigation.
According to the dictionary meaning. "interim" means "for the time being", "in the
meantime", "meanwhile", "temporary", "provisional', "not final", "intervening".
Interim or interlocutory orders are those orders passed by a court during the
pendency of a suit or proceeding which do not determine finally the substantive
rights and liabilities of the parties in respect of the subject matter of the suit or
proceeding.
Such interim orders under CPC may be summarised as:
(i) Payment in Court: Order 24
(ii) Security for Costs: Order 25
(iii) Commissions: Order 26 (Sections 75 to 78)
Supplementary Proceedings (Sections 94 to 95) & (Orders 38 to 40)
(iv) Arrest before Judgment: Order 38, RULES 1-4
(v) Attachment before Judgment: Order 38, RULES 5-13
(vi) Temporary Injunctions: Order 39, RULES 1-5
(vii) Interlocutory Orders: Order 39, RULES 6-10
(viii) Receiver: Order 40

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 47 of 62

ORDER 40 RECEIVER:
A receiver is one who receives money of another and renders account.
Status of Receiver : Madhubhai v UOI, AIR 1962 : A receiver is an officer of the
Court & also "a public servant" within the meaning of S.2(17) of the CPC.
Under order 40 of CPC, The Receiver is an independent and impartial person who
is appointed by the court to administer/manage, that is, to protect and preserve a
disputed property involved in a suit. Such a person should not have any stake in the
disputed property. Generally, parties to the suit are not appointed as receiver by
the court. But in extraordinary circumstances, a party to suit can be appointed as
receiver.
There are provisions in special acts which provides for the appointment of a
receiver by the court.
For example, section 84 of the Companies Act, 2013 provides for the appointment
of a receiver. Similarly, section 69A of the Transfer of Property Act, 1882 also
provides for the appointment.
Who can appoint a receiver? According to the CPC, the court before which the
proceedings are pending can appoint a receiver if it appears just and convenient to
the court to appoint such receiver [section 51(d)].
For example, in a suit, the trial court can appoint a receiver. Whereas, in appeal,
the appellate court can appoint a receiver.
It is within the discretionary power of the court to appoint the receiver. But,
discretion is not absolute, arbitrary or unregulated.
Mahendra H. Patel v. Ram Narayan, (2000) : A court, however, cannot appoint a
receiver suo motu,
The court can appoint a receiver before or after a decree & can remove any person
from the possession or custody of the property & commit the same property in the
custody or management of the receiver.
Objective : The primary objective of appointment of receiver is to protect preserve
and manage the property And safeguard the interest of both the parties of the suit
during the pendency of the litigation.
Rule 1 : Appointment of receivers :
1) Where it appears to the Court to be just and convenient, the Court may by order
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver;
(d) The court may confer upon the receiver any of the following powers:
Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 48 of 62

i) to institute and defend suits;

ii) to realise, manage, protect, preserve and improve the property;
iii) to collect, apply and dispose ofthe rents and profits;

Adjournments. (Order XVII) :-

Meaning of adjournment
The “Adjournment” is not defined in law. But in the ordinary sense, the word
“Adjournment” is to put the matter for another time or day or to put off or to
postpone or suspend or giving “TAREEKH” i.e., fixing the case for the next day.

The term adjournment means the postponement of hearing of a case until further
date. Adjournment may on specified date of for indefinite period. (Sine Die)
If an adjournment is final, it is said to be sine die, "without day" or without a time
fixed to resume the work. It is being marked officially the end of regular session.
It can also be understood as discontinuation of a particular proceeding or hearing
of that particular case is adjourned or postponed.
The provisions relating to adjournment is enumerated in the Civil Procedure Code,
1908 under order XVII but the code does not defines the term adjourn.
The procedure and traits of an adjournment under Rule 1 of Order XVII can be
enlisted as follows:

• The party to the suit must move the motion of adjournment before the court.
It means that when the hearing in a suit commences, the party seeking
adjournment of the hearing shall request the court to adjourn the hearing
for that day. The court has the discretion to adjourn the hearing which means
that the court can choose not to adjourn the hearing which means that the
court can choose not to adjourn the hearing and proceed normally. However,
the court cannot suo motu adjourn a case unless either of the parties or their
pleaders make a request.
• The party seeking adjournment of a hearing shall provide sufficient reasons
for seeking adjournment of the hearing. Date of hearing in a suit is always
fixed at least one month in advance. Therefore, the parties have a huge

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 49 of 62

burden to satisfy the court that adjournment is unavoidable and against the
interest of justice.

• The hearing can be adjourned and the request for adjournment can be made
at any time during the hearing of the suit before the court renders the
decree. There is no specific stage for claiming adjournment, nor is there a
bar.

• The court shall record the reasons for adjournment of the hearing for that
day in writing and such written reasons will form part of the record of the
case.

• There can be several reasons for seeking adjournment of a hearing and Rule
1 recognizes one such reason to be to grant time to the parties to the suit to
prepare their respective cases.

• The court cannot grant an adjournment to the same party more than thrice
in a suit. It means the total number of adjournments allowed to be sought
by the parties is six in the complete proceedings.

• The court shall fix another date for hearing in the suit and announce the date
before the parties after passing the adjournment order. Further, while fixing
the date of the next hearing, the court shall also pass an order with respect
to costs that need to be borne because of the postponement of the hearing.

• Adjournment shall be an exception to the normal rule of day to day hearing

until the case is finally disposed of. Adjournment is only the last resort of the
court and should only be granted if the circumstances in the case go beyond
the control of the parties and the case needs to be adjourned. Rule 1
specifically mentions that a pleader cannot plead the excuse of being busy in
another court for the reason of adjournment

GENERAL PROCEDURE OF ADJOURNMENT

Order XVII of CPC deals with the situations when adjournment can occur and the
procedure to be followed by the court during the adjournment of a hearing. Rule 1
of the Order empowers the court to adjourn a hearing in a suit if a party seeking
adjournment shows the court that there is sufficient reason for the adjournment.

The procedure and traits of an adjournment under Rule 1 of Order XVIIcan be

enlisted as follows:

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 50 of 62

1. The party to the suit must move the motion of adjournment before the court.
It means that when the hearing in a suit commences, the party seeking
adjournment of the hearing shall request the court to adjourn the hearing
for that day. The court has the discretion to adjourn the hearing which means
that the court can choose not to adjourn the hearing and proceed normally.
However, the court cannot suo motu adjourn a case unless either of the
parties or their pleaders make a request.

2. The party seeking adjournment of a hearing shall provide sufficient reasons

for seeking adjournment of the hearing. Date of hearing in a suit is always
fixed at least one month in advance. Therefore, the parties have a huge
burden to satisfy the court that adjournment is unavoidable and against the
interest of justice.
3. The hearing can be adjourned and the request for adjournment can be made
at any time during the hearing of the suit before the court renders the
decree. There is no specific stage for claiming adjournment, nor is there a
bar.
4. The court shall record the reasons for adjournment of the hearing for that
day in writing and such written reasons will form part of the record of the
case.

5. There can be several reasons for seeking adjournment of a hearing and Rule
1 recognizes one such reason to be to grant time to the parties to the suit to
prepare their respective cases.

6. The court cannot grant an adjournment to the same party more than thrice
in a suit. It means the total number of adjournments allowed to be sought
by the parties are six in the complete proceedings.
7. The court shall fix another date for hearing in the suit and announce the date
before the parties after passing the adjournment order. Further, while fixing
the date of the next hearing, the court shall also pass an order with respect
to costs that need to be borne because of the postponement of the hearing.
8. Adjournment shall be an exception to the normal rule of day to day hearing
until the case is finally disposed of. Adjournment is only the last resort of the
court and should only be granted if the circumstances in the case go beyond
the control of the parties and the case needs to be adjourned. Rule 1
specifically mentions that a pleader cannot plead the excuse of being busy in
another court for the reason of adjournment.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 51 of 62

Appeals in CPC
Part VII (S. 96-112) of CPC & Order 41-45 of CPC deals with Appeals.

Appeal has not been defined in Civil Procedure Code. It is, in fact, that complaint, which is
made to some superior court against decision of subordinate court. Basic object of appeal is to
test soundness of decision of lower court. Appeal may be filed against original or appellate
decree passed by a court subordinate to High Court.

Appeal only lies against a decree and not against Judgment.

Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 52 of 62

Definition of Appeal : “Judicial examination of the decision by a higher court of the decision of
the inferior court”.

Right of Appeal : Every person has given right of appeal against decree. However, right of appeal
is not an inherent right. Rather it can only be availed where it is expressly granted by law. So Right
of appeal is substantive right & creation of statute.

S. 96-99A Appeal from original decree

S. 96 : Appeal from original decree : Save as otherwise provided,

the first appeal is maintainable against the following—

1) Every decree passed by any Court exercising original jurisdiction.

2) An original decree passed ex-parte.

the first appeal is not maintainable against the following—

3) Consent decree (see S. 44 of India Evidence Act)

4) A decree in any suit of the nature cognizable by Court of small causes When the amount or
value of the subject matter of original suit not exceed 10,000 rupees.

[The decree passed by the Court of small causes can also be appealable, if it fulfils any of the
following condition :

i. amount or value of the subject matter in such decree exceeds 10,000 rupees; or

ii. It involves a question of law. ]

S. 97 : According to Section 97, if the party aggrieved by a preliminary decree does not appeal
from such decree, then he cannot raise any dispute regarding correctness of such decree in the
appeal against the final decree.

S. 98 : Decision where appeal heard by 2 or more judges

Where an appeal is heard by a bench of 2 or more judges, the appeal shall be decided, according
to their majority.

If no majority then decree passed by trial court shall be confirmed.

But where the judge is even in number and there is a difference of opinion on the any point of law,
such a point of law will be heard by one or more of the other judges and now a decision will be
given according to the majority of all of them

S. 98 applies only to the Courts other than chartered High Courts, such as Chief Courts or Judicial
Commissioner's Courts.

According to Section 98 (3), this section will not have any effect on the patent provision of any
High Court.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 53 of 62

S. 99 : No decree to be reversed or modified for error or irregularity not affecting merits or

jurisdiction : No decree shall be

i. reversed or

ii. substantially varied,

nor shall any case be remanded, in appeal on account of

i. any misjoinder or non-joinder of parties or causes of action or

ii. any error, defect or irregularity in any proceedings in the suit,

S. 99-A : General rule is that no appeal lies against any order. But section 99-A is an exception to
this general rule. And section 99-A states that subject to the provisions prescribed in S. 99, An
order passed u/s 47 will be appealable if such order adversely affects the law.

Limitation period for filing appeal : For appeal, in case of a decree passed by
lower court in civil suit, the limitation is :

• Appeal to High Court - 90 days from the date of decree Or order.

• Appeal to any other court - 30 days from the date of Decree or order

Second Appeal: The second appeal has been defined u/s 100 of CPC. An appeal to
the High Court is referred to as the second appeal since the High Court is a second-highest court
of appeal. The second appeal lies undersection 100,103,108 and order 42.

S. 100 : Second Appeal :

1. The decree passed by any subordinate appellate Civil Court in the first appeal, can be
challenged by way of a second appeal before the High Court. If it involves a substantial question
of law .

Note : The second Appeal lies only in the High Court.

2. The second appeal can be filed even against an exparte decree/ judgment of the first appellate
court.

3. Memorandum of appeal shall precisely state the substantial question of law involved.

4. High court shall formulate the question.

5. Appeal shall be heard on questions so formulated and respondent be allowed to argue that no
such question involved

Proviso : The proviso to Section 100(5) gives the court the power to hear questions which
were not formulated by it but they form a part of the substantial question of law if the court is
satisfied that case involves such a question.
Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 54 of 62

The limitation period for filing such second appeal is 90 days as per Article 116(a) in the Schedule
to the Limitation Act, 1963

S. 100-A : Where any appeal from an original or appellate decree or order is heard and decided by
a single judge of a High Court, then it cannot be challenged by way of further appeal to a Division
Bench of the High Court . This Section have been introduced in order to reduce the number of
cases being filed in the High Court thereby reducing the work load.

Further the appeal to a Division Bench against the decision and order rendered by a Single Judge
of the High Court in proceedings under Articles 226 or 227 of the Constitution of India has been
abolished by this provision

S. 101 : This section enacts that no second appeal shall lie except on the grounds mentioned in
S. 100 of the CPC.

S. 102 : The section abolishes the right of second appeal in cases where the subject-matter
does not exceed 25,000 rupees in value.

S. 103 : Power of High Court to determine issue of fact : This section enables the High Court in
2nd appeal to determine the fact, if there is sufficient evidence on the record in the two cases:

(1) where the issues of fact have not been determined by the lower Appellate Court or both by the
Court of first instance and the lower Appellate Court; or

(2) where they have been wrongly determined by the Court. Like :-l

S. 104 : An appeal shall lie from the order which is appealable;

1. It is an order made under section 35A,i.e Compensatory cost.

2. Refusing leave to institute a suit under nature of section 91 and 92.

3. An order under section 95 i.e compensation for obtaining arrest, or injunction on Insufficient
grounds.

4. An order made under this code imposing a fine or directing the arrest.

5. Any order made under rules from which an appeal is expressly allowed by rules.

Orders 43, rule 1 provides a list of such orders which are appeal able. (See O. 43 in your Bareact)

S. 107 : Powers of appellate court – (1) Subject to such conditions and

limitations as may be prescribed, an Appellate Court shall have power a. To determine a case
finally; (An appellate court is entitled to dispose of the case finally, conclusively

determining the rights of the parties involved. Under Order 41, Rule 24, if the court believes that
there is sufficient evidence to decide the case, it may proceed to decide the case finally.)
Adv. Kalichand Govardhan
LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 Page 55 of 62

b. To remand a case; (Remand a case means to send a case back to the subordinate court to be
tried again. Rules 23 and 23A of Order 41 of the Code empowers the appellate court to remand a
case back to the trial court with certain specific issues to be resolved by that court. )

c. To frame issues and refer them for trial; (Under Rule 25 of Order 41, the appellate court is
empowered to frame issues in a suit which it believes that the subordinate court had failed to
frame or try any matter for revealing a fact which has not already been done by the trial court.
Power to refer is different from that of remanding a case back because, in case of remand the
entire record of the case

(the case file) is sent back to the lower court for re-trial while in case of referral, only the specific
issue is sent to be adjudged whereas the case file remains with the appellate court.)

d. To take additional evidence or to require evidence to be taken. (As aforementioned, an

appellate court is not empowered to take additional evidence and for that purpose, it has to be
sent back to the trial court. However, Rules 27 to 29 provide certain exceptional situations when
appeals courts can admit additional evidence:

i. When the trial court refuses to admit an evidence (oral or documentary) without lawful and just

reasons.

ii. When the party bringing the evidence had no knowledge about the evidence at the trial or at
any time before the appeal.

iii. If the party producing additional evidence can satisfy the court that he was unable to produce
the evidence during trial despite exercising due diligence.)

Section 112 of the Code saves other powers of the Supreme Court
(As provided under the constitution or otherwise) from getting affected by this code. Section 151
saves ‘inherent powers’ of the court too.

S. 109 : Appeal to the Supreme Court : (See O. 45 of CPC)

An appeal shall lie to the Supreme Court if

i. The case involves a substantial question of law which is of general importance; &

ii. When the High Court thinks themselves the case deemed to be fit and decided by the Supreme
Court.

The provisions relating to appeals in relation to civil matters in the Supreme Court are made in
Articles 132, 133 and 134 of the Constitution of India.

Adv. Kalichand Govardhan

LLB LLM NET MA (Eco.) CS(Exe.)
(Pursuing – Ph. D in Law)
Asst. Professor
Notes – LLB NET/SET JMFC DJ
Advocategovardhan358@gmail.com
 56

REFERENCE - Section 113 and Order 46 of the Code make provisions in this regard.
Meaning : Reference means Referring a case to High Court for the opinion on any question of
law.

No party to the suit has the right to apply for reference. It is only the subordinate court which
has the power of reference suo-moto (on its own motion) when there is doubt regarding the
validity of any legal provision. .

S. 113 : REFERENCE : A subordinate courts can exercise the right of

reference under the following situations when:
• A question as to the validity of any act, rule, regulation, ordinance, etc., arises in the court where
thesuit is being entertained

• The court is of the opinion that such act or any other provision of law is invalid (“ultra vires” means
“beyond the powers”) or inoperative

• Such question on the provision of law is never before made invalid either by the High court
orSupreme court

• It is pertinent for determining the validity of such provision of law for disposal of the suit

Review - Section 114 and Order 47 of the Code make provisions in this regard.
General Rule - Under Order 20 Rule 3, it has been ensured that once the decision has been
signed, no amendment can be made thereafter except section 152 of the Code. Section 114
& Order 47 of the Code, is an exception to Rule 3 of Order 20 under which a signed decision
can also be amended under certain circumstances..
 57

The review is made by the same court which has passed the decree to rectify the
mistake or error on therecord.

S. 114 : REVIEW : The application for Review can be filed by aggrieved party
under the following circumstances where:

1. a decree or order is appealable as provided by the law, but no such appeal has been preferred
2. there is no provision for appeal from certain decree or order
3. a decision is passed by the court of Small Causes

Limitation Period : The application for review shall be filed within 30 days from the date of
order/decree

Revision - Section 115 of the Code make provisions in this regard. Revision application is
made to only High court when the decree passed by subordinate court is not in accordance
with appropriate jurisdictions.

The revision provided in section 115 is like a writ of certiorari.

S. 115 : An application for revision can be made by the parties to the suit under the following
circumstances where the subordinate court has:

1. not exercised jurisdiction as conferred by law (wrongful assumption of the court regarding
thejurisdiction)

2. failed to exercise jurisdiction that is vested in it (non-exercise of jurisdiction by the court)

3. illegally exercised its jurisdiction (irregular exercise of jurisdiction by the court)

Section 115 shall thus prevent subordinate courts or lower courts from acting arbitrarily,
illegally, irregularly or capriciously The High court cannot reverse a judgement where:
A. the whole suit has been disposed of by the parties
B. the reversal of such judgement shall cause irreparable injury/loss against whom it was made Since the
High court only possess the Revisional jurisdiction, the order made
 58

Framing of issues Order. 14 CPC

The most important part of the trail of a civil suit. For a correct and accurate
decision in the shortest possible time in a case, it is necessary to frame the correct
and accurate issues. Inaccurate and incorrect issues may kill the valuable time of
the court.

In Siddhi Chunilal vs. Suresh Gopkishan (2009(6) BCR 857) It was observed that if
correct and accurate issues were not framed, it leads to gross injustice, delay and
waste of the court’s valuable time in deciding the matter.

If defendant makes no defense, framing and recording issue by the Court does not
arise, in such a case, a Court need not frame and record issue in as much as the
defendant makes no defense at the first hearing of the suit.

Definition of issues :

Issues mean a single material point of fact or law in litigation that is affirmed by
one party and denied by the other party to the suit and that subject of the final
determination of the proceedings.

When issues arises?

Issues arise when a material proposition of fact or law is affirmed by one party and
denied by the other party to the suit.

What are the material propositions?

 59

According to Rule 1(2) material propositions are those propositions of fact or law
which a plaintiff must allege in order to show a right to sue or a defendant must
allege in order to constitute his defense.

Object of framing of issues

The main object of framing issues is to ascertain the real dispute between the
parties by narrowing down the area of conflict and determine where the parties
differ.

Section 80 NOTICE
In suits between individuals and individuals notice to defendants by plaintiff before
institution of suit is not required to be given. However, section 80 of the Civil
Procedure Code (CPC) says that before institution of a suit against the government
or against any public officer, in respect of any act purporting to be done by such
public officer in his official capacity, until the expiration of two months next after
the notice in writing has been delivered.

Nature of Section 80:

Section 80 contains a rule of procedure and makes it mandatory to serve a notice

before institution of a suit against the Government or against a public officer.

Thus, this section describes two types of cases:

1. Suit against the Government and

2. Suit against public officers in respect of acts done or purporting to be done by

such public officers in their official capacity.
 60

In State of Maharashtra v. Chander Kant it was observed that notice must be given
in all cases regarding the first class of cases. However, regarding second class cases,
notice is necessary only where the suit is in respect of any act purporting to be
done by such public officer in the discharge of his duty, and not otherwise.

Object of Notice

object of section 80 is to provide an opportunity to the Government or public

officer to consider the legal position and to settle the claim forwarded by the
prospective plaintiff if it appears to be just and proper. It is expected from the
government unlike private parties to consider the matter objectively and make an
appropriate decision in two months after obtaining proper legal advice. It saves
public money and time and is in public interest.

INTERPLEADER SUIT, ITS CONDITIONS AND PROCEDURE

In an interpleader suit, the actual dispute isn’t between the plaintiff and the
defendant but between the defendant who interpleads against each other. It is
unlike an ordinary suit.

conditions must be satisfied before instituting an interpleader suit:

▪ There must be some debt sum of money or other property movable or

immovable in dispute.
▪ There must be two or more persons claiming it against each other.
 61

▪ The person from whom such money or property is being claimed must not
be claiming an interest therein other than the charges and costs.
▪ Such a third person must be ready and willing to pay or deliver it to the
rightful claimant.
▪ There must be no suit pending wherein the rights of the rival claimant can
be properly adjudicated.

Procedure for Interpleader Suit

The procedure to file an interpleader suit has been laid out in Order 35 of the Civil
Procedure Code. The following additional facts must be stated in the plaint of an
interpleader suit:

1. The plaintiff claims no interest in the subject matter in dispute other than
the charges and cost.
2. The claims have been made by the defendants severally.
3. There is no collusion between the plaintiff and any of the defendants.
The Person Who May Not Institute Interpleader Suit (Order 35 Rule 5)

• An agent cannot sue his principal

• A tenant cannot sue his landlord,

Caveat under: Sec. 148-A

To avoiding ex-parte orders or judgments in civil proceedings the CPC has provided
right to a person, called a caveat. Caveat Petition is explained under section 148-A
of the civil procedure code, 1908. Caveat petition is defined as a precautionary
measure taken by a person, one who has a great fear or nervousness, that some of
 62

the other cases against him or her are going to be filed in the court of law relating
to any manner.

Section : 89 :- Settlement of disputes outside the Court:

Where it appears to the Court that there exist elements of a settlement which may
be acceptable to the parties, the Court shall formulate the terms of the settlement
and give them to the parties for their observations and after receiving the
observations of the parties, the Court may reformulate the terms of a possible
settlement and refer the same for-

❖ arbitration;
❖ conciliation;
❖ judicial settlement including settlement through Lok Adalat; or
❖ mediation.

Where a dispute has been referred-

1. arbitration or conciliation, the provisions of the Arbitration and Conciliation

Act, 1996 (26 of 1996) shall apply as if the proceedings for arbitration or
conciliation were referred for settlement under the provisions of that Act;
2. to Lok Adalat, the Court shall refer the same to the Lok Adalat in
accordance with the provisions of sub-section (1) of section 20 of the Legal
Services Authority Act, 1987 (39 of 1987) and all other provisions of that
Act shall apply in respect of the dispute so referred to the Lok Adalat;
3. Judicial settlement, the Court shall refer the same to a suitable institution
or person and such institution or person shall be deemed to be a LokAdalat
and all the provisions of the Legal Services Authority Act, 1987 (39 of 1987)
shall apply as if the dispute were referred to a Lok Adalat under the
provisions of that Act;
4. Mediation, the Court shall effect a compromise between the parties and
shall follow such procedure as may be prescribed.