Unit- 1

Q.1 What is Decree, Order and Judgment?

Ans Judgement: Under Section 2(9) of the Code of Civil Procedure, 1908 a “judgement”
means the statement given by the Judge on the grounds of a decree or order. Judgement refers
to the reasoning given by the court in order to support the decision. A judgement is said to be
the final decision of the court on the said matter in the form of suit towards parties. Order 20,
Rule 4(2) states that a judgement shall contain a concise statement of a case, point for
determination, the decision thereon and all the reasons for such decisions. Order 20, Rule 3 of
CPC says that the judgement must be signed and dated by the judge while declaring it in the
court. Once it is signed by the judge, the judgement is not allowed to be amended except in
cases where there are arithmetical errors due to accidental omission. The provision for the
same is stated in Section 152 of the Code of Civil Procedure.

Judgement when Pronounced: The Court, after hearing the case shall deliver the judgment
in the open court, soon after the completion of the hearing or on another day fixed by the
court for that purpose, of which due notice will be given to the parties and their pleaders. In
cases, where the judgement is not delivered on the same day, every attempt shall be made by
the Court to pronounce the judgement within 30 days from the date on which the hearing was
concluded. There is an exception to this rule where, under extraordinary circumstances, the
judgment might be extended to 60 days.

Essentials of a Judgement: A judgement should possess all the essentials of the case,
reasoning and the basic contention on which the judgment is delivered.

1. Essentials of the judgment other than that of the Small Causes Court

• A concise statement of the case

• Point for determination
• Decision thereon
• Reason for such decision
• Relief Granted

2. Judgment of Small Causes Court

• Point for determination

• Decision thereon

-Decree: Under Section 2(2) of the Code of Civil Procedure, 1908, “decree” means the
formal expression of an adjudication which conclusively determines the rights of the parties
with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. A decree must include:

• Rejection of a plaint
• Determination of any question under Section 144 of the Code.

A decree shall not include:

 • Any adjudication from which an appeal lies as an appeal from an order
• Any order of dismissal for default.

Essential Elements of a Decree:

• There should be an adjudication: It is the most essential feature of a decree. A

former decision of the Judge on the dispute should be there. In the absence of such
judicial determination, there can be no decree.
• Suit: This proceeding is instituted in the Court of Law by filing a plaint in the civil
court. Similar to adjudication, there is no decree without a civil suit. There are
specific provisions that treat certain applications as suits like proceedings
under Hindu Marriage Act, Indian Succession Act.
• Determining the rights of the parties: The adjudication should determine the rights
of the parties in a dispute. The term parties refer to the plaintiff (person instituting the
suit) and the defendant (person against whom the suit has been filed).
• Determination must be conclusive in nature: The determination held by the Court
should be conclusive relating to the rights of the parties. The provisional decisions are
not considered decree.
• There must be a formal expression: To be a decree, there must be a formal
expression of adjudication. In other words, the court must formally express its
decision in the manner laid down by law.

Types of decrees

Generally, there are 3 classes of decrees, as explained below:

Preliminary decree: Section 2(2) states that a decree may be preliminary. Let us recall what
Section 2(2) of the CPC says about a preliminary decree. The said Section states that a decree
is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such an adjudication completely disposes of the suit. So a
preliminary decree is passed when there is still something that the court needs to decide upon
before conclusively determining the rights and duties of the parties. There may be more than
one preliminary decree in a suit.

Final decree: Section 2(2) states that a decree may be final. A final decree is one which
wholly disposes of a suit and finally settles all disputed matters in the suit. It is issued when
all the hearings of a suit are complete and there is nothing more to decide upon.

The following are characteristics of a final decree:

• It is executable;
• It may be passed without any preliminary decree;
• It conclusively settles the disputed matter, and
• The Court may pass more than one final decree.

Partly preliminary and partly final decree: Sometimes, depending upon the nature of the
suit, the court may pass a partly preliminary and partly final decree. Such a decree may
contain parts that are final, while the majority of the decree may still be preliminary.
For instance, in a suit relating to inheritance, the court may pass a partly preliminary and
partly final decree, in which the determination of whether or not a particular party is entitled
to receive a share in the property may be final in nature; whereas the determination of who
will receive what share in the property is a part of the preliminary decree.

Order- Section 2(14) of the Civil Procedure Code 1908 defines Order as a formal expression
of the Court of Law of any decision which does not constitute a decree.

An order is an official declaration by the Judge after hearing both the parties to a suit on a
particular issue regarding the matter in dispute. It may not necessarily be the final
determination of the rights of the parties, numerous orders can be passed in a suit or in a
proceeding. Orders may be passed both in case of suit instituted by a plaint or a proceeding
commenced by a petition or an application.

Essential Elements of order:

-There must be a formal expression

-The formal expression must not be a decree

-The decision must be pronounced by the civil court.

Types of Order

There are two types of order:

1. Appealable orders: Appealable orders are those orders against which an appeal lies.
Orders mentioned under Section 104 and Order 43 Rule 1 of the Code are appealable orders,
for example, an order returning a plaint to be presented in proper Court, an order rejecting an
application to sue as an indigent person, etc.

2. Non-appealable orders: Non-appealable orders are those orders against which the party
cannot file an appeal, in other words, the orders against which an appeal does not lie is a non-
appealable order.

Classification of Order

Order can also be classified into:

1. Final order – Final order means the order which finally and conclusively determines the
rights of the parties to the suit.

2. Interlocutory Order – Interlocutory orders are the provisional orders or the temporary
orders passed by the Court in the course of litigation. It is also called interim order.
Q. Execution of Decree and Judgment

Ans INTRODUCTION: Suppose A files a suit against B for Rs 100,000/- and obtains a
decree against him. Here A is the judgement-creditor or decree-holder. B is the judgement-
debtor, and the amount of Rs 100,000/- is the judgement-debt or the decretal amount. Since
the decree is passed against B, he is bound to pay Rs 100,000/- to A. Supposedly in spite of
the decree, B refuses to pay the decretal amount to A. Now, what remedy is left with A to
recover his said amount? A can recover the said amount from B by executing the decree
through judicial process. The principles governing execution of decrees and orders are dealt
with in Sections 36 to 74 (substantive law) and Order 21 of the CPC (procedural provisions).
Order 21 contains 106 Rules and is the longest of all Orders in the Code.
EXECUTION: MEANING
The term "execution" has not been defined in the code. In its widest sense, the expression
"execution" signifies the enforcement or giving effect to a judgement or order of a court of
justice. In other words, execution is the enforcement of decrees and orders by the process of
the court, so as to enable the decree-holder to realise the fruits of the decree. In Ghan Shyam
Das v. Anant Kumar Sinha, (1991) 4 SCC 379, dealing with the provisions of the Code
relating to execution of decrees and orders, the Hon'ble Apex Court stated, "So far as the
question of executability of a decree is concerned, the Code contains elaborate and exhaustive
provisions for dealing with it in all aspects. The numerous rules of Order 21 of the Code take
care of different situations providing effective remedies not only to judgement-debtors and
decree-holders but also to claimant objectors. In an exceptional case, where provisions are
rendered incapable of giving relief to an aggrieved party in adequate measure and appropriate
time, the answer is a regular suit in the civil court."
COURTS BY WHICH DECREES MAY BE EXECUTED: SECTION 38
A decree may be executed either by the court which passed it, or by the court to which it is
sent for execution. A court which has neither passed a decree, nor a decree is transferred for
execution, cannot execute it. Section 37 of the Code defines the expression "court which
passed a decree" and the following courts fall within the said expression:
(i) The court of first instance which actually passed the decree;
(ii) The court of first instance in case of appellate decrees;
(iii) Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution and
(iv) Where the court of first instance has ceased to have jurisdiction execute the decree, the
court which at the time of execution would have had jurisdiction to try the suit.
But, sometimes a peculiar situation arises. Suppose court A passed a decree, and thereafter a
part of the area within the jurisdiction of court A is transferred to court B. In such a situation
the following two questions arise:
a) whether court A continues to have jurisdiction to entertain an application for execution? And
b) whether court B (to which the area is transferred) can also entertain an application for
execution without a formal transmission of the decree from court A to B?
The first question must now be answered in the affirmative after the pronouncement of the
Supreme Court in the case of Merla Ramanna v. Nallaparaju, AIR 1956 SC 87, wherein the
court held:
"It is settled law that the court which actually passed the decree does not lose its jurisdiction to
execute it, by reason of the subject-matter being transferred subsequently to the jurisdiction of
another court."
With regard to the second question, the Explanation added to Section 37 by the Amendment
Act of 1976 makes it amply clear that both the courts would be competent to entertain an
application for execution of a decree.
TRANSFER OF DECREE FOR EXECUTION: SECTIONS 39-42; ORDER 21 RULES
3-9
As a general rule, the court which passed the decree is primarily the court to execute it, but
such court may send the decree for execution to another court either suomotu or on the
application of the decree-holder if any of the following grounds exists:
(i) The judgement-debtor actually and voluntarily resides or carries on the business, or
personally works for gain, within the local limits of jurisdiction of such court; or
(ii) The judgement-debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which passed the decree but has property within the
local limits of such court; or
(iii) The decree directs the sale or delivery of immovable property situate outside the local
limits of the jurisdiction of such other court; or
(iv) The court which passed the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court.
The decree-holder has no vested or substantive right to get the decree transferred to another
court. The provisions of Section 39 are not mandatory and the court has discretion to decide
it. Sub-section (3) of Section 39 clarifies that the transferee court must have pecuniary
jurisdiction to deal with the suit in which the decree was passed. Likewise, sub-section (4) of
Section 39 further makes it clear that the court passing decree has no power to execute such
decree against a person or property outside the local limits of its territorial jurisdiction.
However, Section 46 of the Code empowers the court which passed the decree to
issue precept to court which would be competent to execute the decree (within whose
jurisdiction the property of judgement-debtor is lying) to attach any property belonging to the
judgement-debtor. The order passed under Section 46 is interim in nature and can be lasted
for two months only unless the case is covered by proviso. An order of permanent attachment
under Section 46 is, therefore, illegal.
WHO MAY APPLY FOR EXECUTION: RULE 10
The following persons may file an application for execution:
a) Decree-holder.
b) Legal representative of the decree-holder, if the decree-holder is dead.
c) Representative of the decree-holder.
d) Any person claiming under the decree-holder.
e) Transferee of the decree-holder, in case decree has been transferred by an assignment in
writing or by operation of law.
f) One or more of the joint decree-holders, if for benefit of all the decree-holders and
application is made for execution of whole decree and no contrary condition is imposed in the
decree.
g) Any person having special interest.
AGAINST WHOM EXECUTION MAY BE TAKEN OUT
Execution may be taken out against the following persons:
i) Judgement-debtor.
ii) Legal representative of the judgement-debtor, if he is dead. However, they shall be liable to
the extent of the property of the deceased judgement-debtor which has come to their hands.
iii) Representative of or the person claiming under the judgement-debtor.
iv) Surety of the judgement-debtor.
NOTICE OF EXECUTION: RULE 22
Rule 22 provides for the issue of show-cause notices to persons against whom execution is
applied for in certain cases. As a general rule, the law does not require any notice to be issued
for execution. In the following cases only, however, such notice must be issued:
1) Where an application is made two years after date of decree; or
2) Where an application is made against the legal representative of the judgement-debtor; or
3) Where an application is made for the execution of a decree passed by a court of reciprocating
territory; or
4) Where an application is made against the assignee or receiver of insolvent judgement-debtor;
or
5) Where the decree is for payment of money and the execution is sought for arrest and
detention of judgement-debtor; or
6) Where an application is made against a surety; or
7) Where an application is made by the transferee or assignee of the decree-holder.
Omission to give notice is a defect which goes to the root of the proceeding and renders them
null and void and without jurisdiction unless the judgement-debtor waives such notice.
Moreover, Sub-rule (2) of Rule 22 empowers the court to dispense with such notice, if it
would cause unreasonable delay or would defeat the ends of justice.
LIMITATION FOR EXECUTION
The period of limitation for the execution of a decree (other than a decree granting a
mandatory injunction) is 12 years from the date of the decree. The period of limitation for the
execution of a decree for mandatory injunction is 3 years from the date of the decree.
WHEN EXECUTING COURTMAY STAY EXECUTION? : RULE 26
The power to stay the execution of a decree by a transferee court is not similar to the power
of the court which passes a decree. Whereas the transferor court can grant absolute stay, the
transferee court can stay execution for a reasonable time to enable the judgement-debtor to
apply to the transferor court or to appellate court to grant stay against the execution.
Where the judgement-debtor applies for stay of execution, the transferee court must obtain
security from the judgement-debtor or impose such condition as it may think fit. The
provision is thus mandatory and imperative. Rule 28 provides that the transferee court is
bound by an order made by the court which passed the decree or by an appellate court in
relation to execution of such decree.
STAY OF EXECUTION PENDING SUIT: RULE 29
Rule 29 enacts that where a suit by the judgement-debtor is pending in a court against the
decree-holder, such court, may, on the judgement-debtor furnishing security or otherwise as it
thinks fit, stay execution of the decree until disposal of such suit. For this rule to apply, there
must be two simultaneous proceedings in one and the same court. The underlying object of
this provision is twofold, namely, firstly, to enable the judgement-debtor and the decree-
holder to adjust their claims against each other; and secondly, to avoid multiplicity of
execution proceedings.
MODE OF EXECUTION: SECTION 51
The code lays down various modes of execution. After the decree-holder files an application
for execution of a decree, the executing court can enforce execution. The substantive
provision (Section 51) merely enumerates different modes of execution in general terms,
while the conditions and limitations under which the respective modes can be availed of are
prescribed by different provisions under Order 21. The Code provides the following modes
for execution of different types of decrees:
1) Delivery of property.
2) Attachment and sale or by sale without attachment of any property.
3) Arrest and detention in prison for such period not exceeding as specified in Section 58.
4) Appointment of receiver.
5) Other manner as the nature of relief granted may require.
QUESTIONS TO BE DETERMINED BY EXECUTING COURT: SECTION 47
Section 47 is one of the most important provisions in the Code relating to execution. It
applies only to matters arising subsequent to the passing of a decree and deals with objections
to execution, discharge and satisfaction of a decree. It lays down the principle that matters
relating to the execution, discharge or satisfaction of a decree arising between the parties, or
their representatives, should be determined in execution proceedings and not by a separate
suit.
Conditions
In order that this section may apply, the following conditions must be satisfied:
a) The question must be one arising between the parties to the suit in which the decree is passed
or their representatives (not only legal representatives, but also representative-in-interest); and
b) It must relate to the execution, discharge or satisfaction of the decree.
Both the above conditions must be satisfied cumulatively.

NOTE: An order under Section 47 does not amount to a decree, it is not appealable under
Section 96 and 100. A revision application under Section 115 of the Code is, therefore,
maintainable provided the conditions laid down in Section 115 are satisfied.

Q. What is Garnishee Order.

Ans Introduction
▪ A Garnishee Order is an order issued by a court under the provisions of Rule 46 of
Order 21 of the Code of Civil Procedure, 1908 (CPC).
o This concept has been introduced by the CPC Amendment Act of 1976.
▪ This term Garnish has been derived from the French word ‘garnir’ which means to
warn or to prepare.
o The word Garnishee means a person who is debtor to the judgment
debtor or against whom a decree has been passed.
• Section 2(10) of CPC defines a judgement debtor as any person
against whom a decree has been passed or an order capable of
execution has been made.

Garnishee Order
▪ A garnishee order is issued by the court of law to the third party in a suit,
compelling him to pay a certain amount directly to the creditor instead of paying it to
the debtor.
▪ A garnishee may be ordered by the court not to pay the debt to his creditor (i.e
judgement debtor) but to deposit the amount in the court. A garnishee order is thus
an order served on garnishee attaching a debt in his hand.
▪ In the case of Krishna Singh v. Mathura Ahir (1980), the Supreme Court held that a
garnishee order plays an important and significant role in the execution of a
decree.
Ways of Stopping a Garnishee Order
Pay Full Debt
▪ The principal debtor can prevent the court from passing a garnishee order if he pays
the full debt of the creditor on the time given by the court of law.
▪ The court can extend the time to pay the debt to the creditor instead of passing
garnishee order. If payment is not made within the time specified by the court, then
the court has an absolute power to pass a garnishee order against him.
Alternative Repayment
▪ The principal debtor can make certain arrangements with the creditor to pay back the
amount in an alternative way which is suitable to both the parties.
▪ The arrangement between the principal debtor and the creditor regarding the due debt
is considered as the best way to avoid a garnishee order.
▪ However, it is not compulsory for the creditor to accept the offer made by the debtor.
It is upon the discretion of the creditor to accept or reject the offer of
arrangement or settlement made by the debtor.
Pay by Instalments
▪ The principal debtor has the power to approach before the court of law assuring
to pay the debt amount by instalments.
▪ If the court accepts the application, the garnishee order will be terminated and the
due shall be paid by the debtor through the instalments.
Bankruptcy
▪ On the declaration of bankruptcy, the provable unsecured debt is no longer payable,
and any garnishee orders related to unsecured debt will immediately cease.

Q.2 What is a Foreign Court and Foreign Judgment?

Ans Introduction- a judgement given by a foreign court is also called a foreign judgement.
And here a foreign court means- a court that is situated outside the territory of India or abroad
or that is not established by the Union of India.

According to section 2(5) and 2(6) of the Code of Civil Procedure, 1908, foreign court means
a court situated outside India and not established or continued by authority of the Central
Government the latter section defines foreign judgement as the judgement of a foreign court.

Jurisdiction of Foreign Court

The following Circumstances would give jurisdiction to foreign courts:

-Where the person is a subject of the foreign court in which the judgment has been obtained.

-Where he was a resident in the foreign country when the action was commenced and
summon was served on him.

-Where the person in the Character of plaintiff selects the foreign court select the forum for
taking action in which forum he issued latter.

Binding Nature of the Foreign Court

Section 13 of the Code has provisions regarding the binding nature of the foreign Judgement.
It states that the Foreign Judgement shall be shall be Conclusive as to any matter thereby
directly adjudicated upon between the same parties under whom they or any of them Claim
litigating the same.

Foreign Judgement When Not Binding

According to the Code of Civil Procedure, a foreign judgement is conclusive as to any matter
directly adjudicated on by it between the same parties or between parties who claim to litigate
under the same title. However, there are some situations when a foreign judgement is not
conclusive in India, and these situations are:

1. Foreign Judgement Not by a Competent Court- It is a fundamental principle of law that

a judgement or order passed by a court with no jurisdiction is null and void. Thus, for a
foreign court’s decision to be binding on the parties in India, it must be rendered by a court of
competent jurisdiction.

2. Foreign Judgement Not on Merits- A foreign judgement on the merits of the case must
have been rendered for it to serve as res judicata. A judgement is said to be given on merits
when, after taking evidence and applying mind to the truth or falsity of the plaintiff’s case,
the judge decides the case one way or the other.

3. Foreign Judgement Against International or Indian Law- A decision based on an

incorrect understanding of international law or a refusal to recognise Indian law where such
law is applicable is not conclusive (which cannot be contradicted). However, the error must
be visible on the surface of the proceedings.

4. Foreign Judgement Opposed to Natural Justice- A court’s decision must be obtained

after the proper judicial procedure has been followed. The minimum requirements of natural
justice must be met, such as the judgement being delivered fairly, without bias, in good faith,
and after both parties have been heard. A judgement rendered without giving the defendant
notice of the suit or allowing him a reasonable opportunity to present his case is contrary to
natural justice.

5. Foreign Judgement Obtained by Fraud- A well-established principle of private

international law is that a foreign judgement obtained through fraud will not serve as res
judicata. It is a well-known proverb that fraud and justice never coexist.

6. Foreign Judgement Founded on a Breach of Indian Law- If a foreign judgement is

based on a violation of any law in force in India, that foreign judgement would not be
enforced in India. Every case heard by an Indian court must be resolved in accordance with
the Indian laws.

In Satya vs Teja Singh (1974), the Supreme Court of India held that it is implicit (implied or
understood) that foreign law and foreign judgement would not offend against the Indian
public policy.

Presumption as to Foreign Judgement

Section 14 of the Civil Procedure Code states that upon producing any document purporting
to be a certified copy of a foreign judgement, the court shall presume that a court of
competent jurisdiction pronounced such judgement unless the contrary appears on the record
or is proven.

Q.3 Doctrine of Res Sub-judice and Res judicata.

Ans Res judicata- Res Judicata is a Latin term that refers to a case that has been decided.
The theory of res judicata prevents or precludes continuing litigation of the same matter
between the same parties when a case has already been resolved and the final judgement has
been rendered such that the matter is no longer subject to appeal. The concept of res judicata
is discussed in Section 11 of CPC. This section specifies that the rule applies to a case that
has already been decided. It prohibits the trial of a suit or an issue in which the directly and
significantly in question topic has already been decided in previous litigation.

An issue that has been determined cannot be brought up again, either in the same court or in a
different court, under the doctrine of Res Judicata. Because it prevents or forbids any
additional claims after the final decision, it is also known as "claim preclusion." It's a
common-law practice that prevents matters from being re-litigated in court between the same
parties.

The goal of Res Judicata is to prevent:

∙ Injustice to the parties in a dispute that was meant to be resolved by a decision that provided
finality and barred any future claims.

∙ Court resources are being used unnecessarily.

∙ Multiplying judgments as additional claims would result in multiple different decisions on

the same issue, causing confusion.

∙ Obtaining damages twice from the defendant for the same harm.

It should be emphasised, however, that this does not include the appeals procedure, which is
regarded as the proper means to contest a decision. The res judicata principle will apply to the
judgement once the appeal procedure has been exhausted or is prohibited by limitation. Even
in a subsequent stage of the same proceedings, the theory of res judicata can be utilised. The
court decided in the matter of Y.B. Patil v. Y.L. Patil1that once an order is made during the
course of the proceedings, it becomes final and is therefore binding on the parties at any later
stage of the same proceedings.

Res Sub-judice: Res Sub judice is a Latin maxim that translates as "under judgement." The
rule of the sub judice is based on public policy, which forbids the plaintiff from filing two
parallel claims on the same subject matter, limiting the possibilities of two courts issuing
contradicting rulings. The theory of Res Sub judice exists to avoid duplication of processes
and to avoid two contradictory rulings.
The concept of res sub judice is discussed in Section 10 of Civil Procedure Code, 1882.
Section -10 establishes the norm for cases to have stayed while they are being considered or
adjudicated by a court.

The principle of res sub-judice discourages a court from proceeding with the trial of any suit
in which the concern in matter is directly or substantially the same as a previously instituted
suit between the same parties, and the court in which the issue was previously instituted has
the power to grant the relief sought. This regulation only applies to the suit's trial, not to the
institution. It has no bearing on the court's ability to issue interim orders such as injunctions
or stays. It does, however, apply to revision and appeals.

The aim of this regulation is to keep courts from being overburdened with cases. It is also
hoped that the plaintiff would not receive two distinct rulings in his favour from different
courts or two conflicting judgments. It also guarantees that the plaintiff is not subjected to
undue harassment. The objective of the law is to limit the plaintiff to a single statute,
avoiding the possibility of two conflicting rulings by the same court in the same case.

The purpose of Section 10 is to prevent two courts from making conflicting rulings in the
same case. To get around this, the courts might compel the two lawsuits to be consolidated. It
was argued in the case of Anurag and Co. and Anr. vs. Additional District Judge and Others
that consolidation of actions is ordered under Section 151 for the sake of fulfilling the
objectives of justice since it saves the party from several lawsuits, delays, and expenditures.
The parties are also spared from having to produce the same evidence again.

Q.4 Define Doctrine of Restitution and Caveat.

Ans Doctrine of Restitution: Section 144 of the CPC (Civil Procedure Code) specifically
deals with doctrine of restitution. It empowers the court to order restitution when a decree or
order is altered or reversed through an appeal, revision or other legal proceedings or when it’s
set aside or modified in a suit. The court has the authority to make various orders for
refunding costs, paying interest, awarding damages, providing compensation, and more, in
order to rectify the situation caused by the incorrect decision.

Who Can Apply for Restitution in CPC?

For someone to be eligible for doctrine of restitution under this section, two conditions must
be met:

• They must be a party involved in the decree or order that was changed or reversed.
• They must have gained some benefit through restitution or by other means from the
decree or order that is being reversed.

Against Whom Can Restitution Be Granted?

Restitution can be ordered not only against the parties directly involved in the legal case but
also against their legal representatives. This includes individuals like transferees pending
litigation, those who have attached the decree, and decree-holders.

Purpose of Restitution in CPC

The doctrine of restitution under CPC is rooted in the principle “actus curiae neminem
gravabit,” which means that the court’s actions should not harm anyone. This doctrine is built
on principles of fairness and equity. In cases involving restitution, the court should issue
orders that uphold justice for both parties involved.

In the case of Jai Berham v. Kedar Nath Marwari (1922 SCC On Line PC 41), the Privy
Council emphasised that it’s the responsibility of the court under Section 144 of the Civil
Procedure Code to place the parties in the position they would have been in if the decree or a
part of it that was reversed or varied had not occurred. This duty and jurisdiction don’t arise
solely from this section; they are inherent in the court’s broader authority to act justly and
fairly given the circumstances and parties.

Conditions for Applying Restitution under Section 144 of CPC

In the case of Ganesh Prasad v. Adi Hindu Social Service League (AIR 1975 AP 310), it
was ruled that certain conditions must be met before restitution can be ordered under Section
144:

• The restitution requested must pertain to a decree or order that has been reversed or
varied.
• The party seeking restitution must be entitled to benefit under the decree or order that
is being reversed.
• The relief sought must be a proper consequence of the reversal or variation of the
decree or order.
In simpler terms, there should be a mistaken judgment, one party has benefited from this
mistake, and the erroneous judgment has been reversed, varied or set aside. If these conditions
are fulfilled, the court is obligated to grant restitution under CPC.

-Caveat: The caveat is a Latin term that means “let a person be aware” and dates back to the
mid-16th century. A caveat petition follows the rule of Audi Alteram Partem and can be filed
by anyone who believes that civil litigation has been filed or is about to be filed against him.

A caveat is a precautionary measure taken by a person who is worried that someone will file
a case against that person in court. As a result, it is a notice that notifies a person when the
court is about to take legal action against that person. It is filed only in civil matters.

Caveat petition
A caveat petition is commonly referred to as a ‘caveat’. The caveat petition gives a person the
right to be heard before any decision is made against him. No court can make a decision or
issue an order against a person without hearing his or her side.
Example: Assume A owns the land. He builds a house on his land. However, A’s neighbour,
Z, claims that he owns a portion of that land. A now anticipated that Z might file an
application. As a result, A files a caveat against Z, requesting that the court notify him if Z
files any such application.

WHO CAN FILE CAVEAT : A caveat may be filed by any individual who is going to be
affected by an interim order likely to be passed on an application which is anticipated to be
made in a suit or proceeding instituted or about to be instituted in a Court. According to
Section 148A sub Section (1) Where an application is expected to be made or has been made,
in a suit or proceeding instituted, or is about to be instituted, in a Court. Any person claiming
a right to appear before the Court on the hearing of such aforementioned application may
lodge a caveat in respect thereof. In the case of Kattil Vayalil Parkkum Koiloth v. Mannil
Paadikayil Kadeesa Umma AIR 1991 Ker 411, court held that a person who is a stranger to
the proceeding cannot lodge a caveat. Likewise, a person supporting the application for
interim relief made by the applicant also cannot file a caveat. A caveat shall be filed with a
copy by the caveator or by an advocate on his behalf and the same must be registered in the
caveat register maintained by the court in a form of petition or any other form prescribed by
the court.

TIME PERIOD OF CAVEAT: Caveat is lodged, after the court has laid down the judgment
or issued an order. However, in some exclusive cases, a caveat is filed before head the
judgment is pronounced or order is passed. Caveat will be in effect for 90 days from the date
of its filing. After 90 days Fresh Caveat Petition can be filed.

Q. Mesne profits

Ans According to the Legal Dictionary,” Mesne” means intermediate, i.e. middle between
two extremes, a part between the start and the end of a time period. In other words, it can
refer to the profits earned starting from the unlawful possession until the rightful owner gets
back the possession.

The section 2(12) talks about mesne profits. In the words of Delhi High Court, Mesne Profits
refers to “when damages are claimed in respect of wrongful occupation of immovable
property on the basis of the loss caused by the wrongful possession of the trespasser to the
person entitled to the possession of the immovable property, these damages are called mesne
profits”.

From the above statements, it can be interpreted that Mesne Profits are profits or pecuniary
benefits a person has earned or might have received from ordinary diligence by wrongfully
possessing the property of another. And the law gives the owner, the right to claim all the
profits, only when the unlawful possession has caused him to be deprived of benefits and
profits which he might have received otherwise.

Conditions Of Mesne Profits

There are two conditions that need to be fulfilled in order to bring forth a claim for Mesne
Profit. Those conditions are:
 1. Possession of the property must be unlawful and unauthorized.
2. The person must have received some benefits or might have earned profits
through such possession.
It is to be noted that Section 2(12) states any profits received via improvement in the property
by the wrongful possessor are not included as mesne profits. And the possessor is neither
entitled to claim the expenses incurred due to the improvements, from the owner as he is
legally a trespasser. As per Order 2 Rule 4 of the Code, it is necessary that the claim for
mesne profits has to be joined with a suit for recovery for possession of the property and no
separate claim will be entertained.

Against Whom Mesne Profits Can Be Claimed?

An individual becomes liable for mesne profit when he or she possess and enjoy the benefits
derived from an immovable property that doesn’t belong to him or her legally.[5] They could
be:

Tenants- If the tenant refuses to leave even after a service of notice to vacate the property.

Trespassers- The court may hold the trespassers jointly liable and have their respective
rights plead in a separate suit for contribution and ascertain the liability of each of them.

Mortgagor- If the mortgagor continues to possess the mortgaged property after a decree for
foreclosure was passed against them.

Mortgagee- If the mortgagee is still in possession of the property after a decree of

redemption.

Any other person against whom a decree of possession has been passed. However, in a case
where the plaintiff is dispossessed by several persons, then every single one of them will be
held liable to pay mesne profits to the plaintiff, irrespective of whether they are in actual
possession or have received any kind of benefits through the property.

For example, ‘A’ owns a farmhouse. ‘B’, ‘C’, ‘D’ & ‘E’ wrongfully claimed the possession
of that farmhouse and makes some profits with only ‘C’ actually living on the premises. This
has deprived ‘A’ of his right to enjoy the said property, so ‘A’ is entitled to bring forth a suit
for recovery of possession and a claim for mesne profits against all four of them.

Another example, ‘K’ owns a house and ‘M’ claims the possession of the said house and
starts collecting rents. This will be considered as Mesne Profits. After some time, ‘M’ builds
more rooms and rent them out to be converted into a guest house. The profits that will arise
from this improvement are not Mesne Profits.

How Mesne Profits Is Measured?

The Civil Procedure Code doesn’t provide any specific criteria as to how the mesne profits
should be assessed. The provision only states that the interest on such profits is included and
any profits derived because of improvement are ruled out. Also according to the law of
equity, Mesne profits must be in net profits.
As Mesne Profits are a form of damages, the government can’t lay down an invariable rule
for its assessment. So, it’s upon the discretion of the court to determine the quantum of mesne
profits based on the following things:

1.Nature and Condition of the property;

2.Location of the property;
3.Value of the property;
4.The actual profit gained by the possessor or reasonably might have received
with the use of the said property.
The court also measures the mesne profits based on what the defendant has gained or
reasonably might have gained with ordinary diligence by wrongfully possessing the property
and not what the plaintiff has lost because of being deprived of possession.

Unit-2

Q.1 What is Jurisdiction and Place of suing?

Ans Jurisdiction: The Latin words juris, which means "law," and dicere, which means "to
speak," are the origin of the word jurisdiction. The term "jurisdiction" refers to the court's
ability to recognize an offense and ascertain the basis for action.

The case of Hirday Nath v. Ram Chandra established the jurisdiction. According to the High
Court of Calcutta, jurisdiction can be summed up as the legal authority of the Court to hear,
decide, and render judgment on the matter at hand.

The main factors used to determine jurisdiction include –

• Pecuniary value
• Local limits of Court
• The subject matter of Court

So the Court before taking the cognizance of offence, the following points needs to be taken
into consideration:-

• The pecuniary value of the suit

• The nature of the case
• The territorial limits of the court

Section 9

Starting with explaining section 9 of CPC, which reads as follows:

“The civil courts of India have the power to try all civil matters except suits which are expressly
or impliedly bared” We can see that civil court has two conditions based on which they can
decide whether they can or cannot try that matter:

First condition: that the suit must be of a civil nature.

Second condition: that the matter must not be bared by some other law from being tried in a
civil court.

Further section 9 also provides with some explanation as follows:

If the main question arising out of the suit is related to decision of property as in to whom does
the office or the property belong but depends on the question of decision of religious rites or
ceremonies, does not mean that civil court now cannot try that matter because a question of
determination of religion has been involved. This does not Bar the civil court from deciding
the property matter.

Another explanation is in furtherance of explanation 1, that it is also immaterial that whether

or not the office in question has some fee attached to it or whether or not it is attached to a
place.

Explaining Suits of Civil Nature

All civil suits do not necessarily amount that they are also suit of civil nature. The code does
not provide anything further in explanation it is on the courts to decide whether a matter of
civil nature or not. In the case of Bhatia coop. housing society vs. D C Patel, AIR 1953 SC, the
court said that civil court has inherent power to decide its own jurisdiction. Civil suits are
determined on the basis that whether they decide private rights of a person, private rights can
be explained by giving some examples related to it, which are usually handled by court such
as: right to property, right to worship, right to share in offerings, damages for civil wrongs,
specific performance of contracts, damages for breach of contracts, specific relief, restitution
of conjugal rights, for rent, for wrongful dismissal of salaries, etc. such suits are examples of
civil nature suit.

In PMA Metropolitan vs. MM Marthoma[2] the supreme court in explanation off section 9
observed that: this section an be divided into two parts; one part is that the court can not deny
to conduct any matter which is related to civil rights, it is their duty to take all the matters which
re listed under the section but the second part it clearly creates a negating factor under this
section which creates prohibitions by introducing the Bar on the court from trying the matters
which re out of its jurisdictions due to a bar imposed on the court by other section some
examples to explain it would be suit related to religious rights, related to dignity, related to
caste etc. these matters are not criminal but yet not of civil nature, so section 9 Bar civil courts
from this jurisdiction as explained by the court[3].

What is Suit?

According to the CPC, 1908, the word "suit" is not defined. It is generally accepted that it
refers to a process that begins when a civil court is presented with a plaint.
The relief sought is specifically stated in a plaint, which is a written statement of a cause of
action.

What is Place of Suit?

The venue of a lawsuit is crucial since it directly affects the court's ability to provide a ruling.
Choosing a court depends on the information in the complaint that is being filed. It alludes to
the issue of jurisdiction. The courts have the authority to hear all civil lawsuits, with the
exception of those in which their cognizance is expressly or implausibly restricted, according
to Section 9 of the CPC, 1908.

According to Section 15 of the Civil Procedure Code, every lawsuit must be filed in the court
with the lowest competency level to hear it. When a lawsuit is filed, the court must determine
whether it has the authority to hear it.

Section 15 to 20 deal with place of suing-

1.Territorial Jurisdiction

2. Pecuniary Jurisdiction

3. Subject Matter Jurisdiction

If a situation falls under all three categories of jurisdiction, then only a court can hear it.
Inappropriate exercise of jurisdiction, or lack thereof, occurs when a court hears a case.
Depending on the circumstances, this can render the judgment void or voidable. The
categories of jurisdiction are discussed fully in Sections 15-20, and Section 21 discusses
decisions made by courts that lacked authority. Typically, the concerned state enactments on
the subject of civil courts set forth the territorial and financial jurisdiction in civil
proceedings.

Pecuniary Jurisdiction: According to Section 15 of the Code, every lawsuit must be filed in
the court with the lowest competency level. If the total amount or value of the contested
matter does not exceed one lakh rupees, a Munsiff's Court may hear the case. The financial
jurisdiction of a subordinate judge's court is unrestricted. The District Court has unrestricted
financial jurisdiction as well. A district court and subordinate court are therefore qualified to
hear original lawsuits, the value of the subject matter of which may be of any size.

Territorial Jurisdiction: In territorial Jurisdiction, suit may be divided in two types –

Immovable (Sec 16- 18): Courts' jurisdiction is divided horizontally by territorial

jurisdiction. No court is seen as superior to another because they all have the authority to take
notice of a case. The CPC further divides its territorial jurisdiction int −:

Sec 16 Wherever the immovable property is located, the immovable property suit must be
filed.
Sec 17 Cases where the immovable property is located within the local boundaries of the
jurisdiction of various courts.

Sec 18 A place of an institution where the jurisdiction of courts is unclear

Movable (Sec 19): If a defendant resides, conducts business, or personally works for
compensation within the local limits of the jurisdiction of one court but the wrong was
committed against a person or movable property within the local limits of the jurisdiction of
another court, the plaintiff may elect to file suit in either of the said courts.

Other Suits (Sec 20): Section 20 establishes the norm for the venue in personal injury
lawsuits and must be interpreted in accordance with Sections 15 to 19 of the Code. Every
lawsuit must be filed in the court whose local jurisdiction includes the following −

-The origin of the activity, in whole or in part

-The defendant dwells, engages in lucrative personal or professional activities

Subject Matter Jurisdiction

Different courts have the authority to rule on various lawsuit kinds. Certain courts lack the
authority to hear certain types of lawsuits. For instance, the Court of Civil Judges (Junior
Division) is not permitted to provide a ruling in instances involving testamentary succession,
divorce, probate, insolvency, etc. This is referred to as subject matter jurisdiction, where a
case from a particular class of cases can only be pursued if a court has jurisdiction over that
class of cases. With the recent tendency of the Tribunal System, subject matter jurisdiction
has become overly popular.

Q.2 Institution of Suit.

Ans Meaning of Institution of Suit- Institution of suit under CPC refers to the formal
commencement of a legal action or civil suit by a plaintiff against a defendant in a court of
law. The institution of suit initiates the legal process by which the plaintiff seeks a legal
remedy, such as a judgment, order or decree, for a particular issue or dispute.

Essentials of a Suit
▪ The Opposing Parties:
o In every suit there must be at least one plaintiff and one defendant.
o There may be more than one plaintiff and more than one defendant where an
act or transaction proceeds from two or more persons or it affects two or
more persons.
▪ The Cause of Action:
o Every suit must contain the cause of action which refers to the cause or the
set of circumstances which leads up to a suit.
• It consists of every fact which is necessary to be proved to entitle the
plaintiff to a decree.
 o In Rajasthan High Court Advocates Association v. Union of India & Ors.
(2000), the SC held that the term cause of action had a judicially established
meaning. It refers to the conditions surrounding the violation of the right or the
direct cause of the conduct.
▪ The Subject Matter:
o It is the right or property claimed in the suit.
o The court adjudicates upon the right of the parties with regard to the subject
matter in a dispute.
▪ The Relief Claimed:
o The relief claimed should be stated specifically in the plaint. It may be stated
in the alternative also.
o The relief claimed must be one which the Court is able to grant.
o When a person is entitled to more than one relief in respect of the same cause
of action, he must sue for all reliefs.

The key components of the institution of suit under CPC typically include:

• Filing a Plaint: The plaintiff starts the process by filing a written statement known as
a “plaint” in the appropriate court. The plaint outlines the facts of the case, the legal
basis for the claim and the relief or remedy sought.
• Court Selection: The plaintiff must choose the correct court with jurisdiction to hear
the case, meaning that the court has the legal authority to handle the specific type of
dispute and is located within the appropriate geographic area.
• Payment of Court Fees: The plaintiff is generally required to pay the prescribed
court fees, which may vary depending on the nature and value of the suit, as per the
Court Fees Act, 1870.
• Service of Summons: After the institution of the suit under CPC the court issues a
summons to notify the defendant of the legal action and require their appearance in
court to respond to the plaintiff’s claims. It can be further divided into two situations
when summons are duly served and when summons are not duty served. When
summons are not duly served the court needs to send a second summon to the
defendant under order 9 rule 6 sub rule 1(6). When the summons are duly served there
are also two conditions in this when the defendant appears and when defendant does
not appears so when the defendant appears he needs to file the written statement
Under the 60 days of issuance of summon it can extend to 90 days also and the
defendant need to specifically deny every paragraph written in the plaint he can also
write down the counter claim in his written statement and when the defendant does
not appear the court orders for ex-parte proceedings under order 9 rule 6 sub rule 1(a)
But the defendant can set aside this order under rule 13. if the defendant does not
appear the court can pass the judgement too under order 8 rule 10 in non appearance.
• Production of documents (order 13): Either parties can produce the documents in
their original form. The parties can produce the documents that are required in their
pleadings before the settlement of issue.
• Examination of parties (order 10): It is the first hearing of the case and court can
ask the parties for admissions and denials about the facts after this the court opens the
option of adr in front of the parties and under section 89 of cpc the parties can opt for
it.
 • Discovery and inspection (order 11): If one party can’t understand any fact or want
to examine a document then they can appoint a interrogatories so they can examine
the parties and can also produce the documents.
• Framing of issues (order 14): It is the backbone of civil suits. An issue is arised
when one party accepts a fact and the other party denies that so if an issue is not
framed correctly then the whole suit will demolish. So this plays an important role in
whole process to frame the issues correctly related to the matter.
• Summoning of witness (order 16): Either parties can provide a list of witnesses and
these witnesses can be examined under Order 18 and all the arguments are in oral and
written form.
• Judgement (Order 20): After the hearing of the cases the judgement is passed and it
is based on the decree. Decree is prepared under the 15 days of the judgement. Decree
and judgement goes together.
• Appeal, revision, review: Any party which is not satisfied by the decision made by
the court can opt for appeal.

In summary, the institution of suit under CPC is the formal initiation of a civil legal action,
marking the beginning of the legal process to address and resolve a specific dispute between
parties through a court of law.

How Institution of Suit under CPC is Done?

Section 26 and Order IV provide the guidelines for initiating legal proceedings. Section 26
specifies that every civil suit must begin by presenting a written statement (called a plaint) in
duplicate or as per the rules set out in the Code of Civil Procedure, to the court or an
authorised officer. The facts presented in the plaint must be supported by an affidavit. To
understand this better, we should also consider Order IV, VI and VII of the first schedule.

Rule 1 of Order IV should be considered alongside Section 26 to expand on the legal

requirements outlined in the section. This rule states that a civil suit is considered officially
started only when a duplicate of the plaint is presented either directly to the court or to a
designated officer. Furthermore, the said plaint must adhere to the regulations outlined in
Order VI and VII.

Section 80 of the CPC mandates that, in cases where the defendant is the government or a
public officer, a legal notice must be delivered before filing a civil suit. However, it’s
important to note that not all civil suits require such a notice. In some situations, lawyers send
legal notices before initiating civil cases to inform the defendant that they are making a final
effort to resolve the dispute. This is typically done as a precautionary measure.

The procedural steps for institution of a suit under CPC include:

-Drafting a plaint (a formal written statement outlining the case)

-Selecting the appropriate court for filing the civil suit (the place of suing)

-Presenting the plaint to the court or a designated officer.

Plaint- This code does not define "plaint" However, the phrase "private memorial tendered to
a Court in which the person sets forth his cause of action, the exhibition of an action in writing"
can be used. Regarding the complaint's format, Order 7 is relevant. According to Rule 1, a
complaint must include the following information −

• Name of the court

• Name and Residence of the Plaintiff
• Name and Residence of the Defendant
• Other Description of both parties

Place of Suing: The filing of a complaint often has to happen during office hours and on a
working day. There is no requirement that it be made at a specific location or time, though.
Because of this, a judge may take a complaint to his home or any other location even after
business hours, though he is not required to do so. If the deadline has passed and it is not
excessively convenient, the judge must accept the complaint.

Presentation of the Plaint: The rules for bringing a lawsuit are found in Section 26 and
Order 4. Rule 1 of Order 4 is as follows −

• The court or the officer it designates in this regard must receive a petition in duplicate
before any litigation may be brought.
• Insofar as they are applicable, the orders in Orders VI and VII must be followed by
every party.
• If the complaint does not meet the standards outlined in sub-rules (1) and (2), it will not
be considered to have been properly instituted. (2).

According to Section 26, every lawsuit must be started with the filing of a complaint or in
another way that may be required. Order 4 Rule 1 outlines the process for instituting a lawsuit,
but it makes no mention of any "other manner" for that purpose. The change makes it quite
clear that the complaint will be regarded as incomplete if it is not filed in triplicate. In order to
avoid needless delays in ensuring that the requirements of sub-rules (1) and (2) are followed
after the filing of the complaint, sub-rule (3) has been added.

The aggrieved individual, his attorney, his designated agent, or any other person lawfully
authorized by him may present the complaint.

Q.3 Pleadings.

Ans The provisions regarding pleadings are found under Order VI of the Civil Procedure
Code (CPC), 1908. A pleading is the written form of a statement that is drawn up by both
parties to a suit. The statements in writing include the contentions and other details that the
opponent needs to know to prepare his/her case for the trial. Statements given by the plaintiff
are called a plaint, and the same given by the defendant is called a written statement.
OBJECT OF PLEADINGS:
The fundamental object of pleading is to provide both parties with a fair opportunity to
understand each other’s case and to allow them to know the points of agreement and
disagreement.
According to Odgers, the Defendant has the right to know the allegations made against them
by the plaintiff, and vice versa. Pleadings include statements and responses that may
introduce new information to the case.
The object of pleadings is to assist the Court and the parties to the dispute in adjudication. Its
function is multi-dimensional and is in various ways. Stable J., in Pinston v. Lloyds Bank
Ltd., has expressed the object of pleading in the following words: “The function of a pleading
is not simply for the benefit of the parties but also and perhaps primarily for the assistance of
a Court by defining with precision the area beyond which without the leave of the court, and
consequential amendment of a pleading, conflict must not be allowed to extend”. The
following are the objects of pleading:
1. The whole object of pleading is to give each party fair notice of the opponent’s case.
2. In legal proceedings, the pleadings reveal the actual issues in dispute between the parties.
Both sides must be aware of each other’s positions and which facts are accepted or disputed
to prepare for the trial adequately.
3. During a trial, pleadings prevent surprises and remove irrelevant matters already admitted
as true. This means that any facts that both parties have admitted don’t need to be proven or
explored further. As a result, pleadings save the parties time, money, and effort by allowing
them to focus on presenting evidence that supports the issues framed by the Court based on
the facts alleged by one party and denied by the other.

BASIC RULES OF PLEADING:

In England, pleading is based on customary law, while in India, it is codified. Sub-rule (I) of
Rule 2 of order 6 lays down the fundamental principles of pleadings. It reads as follows:
2(1). Every pleading shall contain and contain only a statement in a concise form of the
material facts on which the party pleading relies for his claim or defence, as the case may be,
but not the evidence by which they are to be proved.
On the analysis, the following fundamental principles emerge:
1.Pleadings should state facts and not law: Facts should be pleaded upon and not the law.
The four words which can crisply summaries this rule of pleading is “Plead facts, not law”.
Both parties’ counsel should only project the facts in their respective case rather than
suggesting the laws applicable in the particular case. This rule was established in the case of
Kedar Lal v. Hari Lal[7], where it was decided that it is the responsibility of the parties to
present the facts supporting their claims. The court will apply the law to the case, so the
parties should not attempt to do so themselves. If a case involves a combination of factual
and legal issues, it may be appropriate to include this information in the pleadings, as stated
in the case of Ram Prasad v. State of MP[8] .
2. The facts stated in pleadings should be material facts: It is the second fundamental rule
of pleadings. It says that pleadings should contain a statement of material facts only, i.e.,
unnecessary facts should not be pleaded. The question arose in the court of law: what is the
actual scope of “material facts”? In the case Union of India v. Sita Ram Jaiswal[9], the court
said that material facts will include all those facts upon which the plaintiff’s counsel will
claim damages or rights as the case may be or the defendant will put forth his defence. In a
nutshell, “material facts” means all facts upon which the plaintiff’s cause of action or the
defendant’s defence depends.
3. Pleadings should not state the evidence: The third fundamental rule of pleadings states
that statements should include the material facts relied upon by the party but not the evidence
used to prove those facts. This means only Facta probanda (material facts) should be stated,
while Facta probantia (particulars or evidence) should be avoided. The material facts on
which the plaintiff relies for his claim or the defendant relies on his defence are called facta
probanda, and they must be stated in the plaint or in the written statement, as the case may be.
4. Facts in a concise manner should be presented: The fourth and last general principle of
pleadings is that the pleadings should be drafted with sufficient brevity and precision. The
material facts should be stated precisely, succinctly, and coherently. At the same time, it must
be kept in mind that in order to maintain the brevity of facts, one should not miss out on
important facts in the pleadings. Pleadings can be saved from superfluity if one takes care in
syntax. In [10], The words “in a concise form” definitely suggest that briefness should be
adhered to while drafting pleadings. However, necessary facts should not be excluded. Every
pleading should be divided into paragraphs and sub-paragraphs. Each statement should be
written as a separate paragraph, including any relevant dates, numbers or totals in numerical
and written format[11]. It is important to state the facts with certainty, avoiding vague or
ambiguous language. Only include necessary information in a concise summary form while
omitting immaterial and unnecessary details. Ensure that all material allegations and
necessary particulars are included in the document.

Q.4 Explain Appearance and Non-Appearance of Parties.

Ans INTRODUCTION- The fate of any case depends on an important factor i.e., the
appearance and non-appearance of parties in a civil suit. Non-appearance of any party in the
count on a determined day may result in an adverse decision. The provisions of the CPC
(Civil Procedure Code, 1908) states that no proceedings detrimental to the interest of any of
the parties to the suit shall be conducted before the court. The parties must appear in front of
the court on the due date which has been fixed by the court of law. In the case of the non-
appearance of one party to the suit, the judgement may go in favour of the other party
appearing in front of the court.
Rule 1 of Order IX of the Code of Civil Procedure, 1908 states that the parties to the suit need
to attend the court either in person or by their pleaders on the due date which has been fixed
by the court of law. If on the given due date either plaintiff or the defendant do not appear in
the court and neither have the sufficient cause for the non-appearance, the court is
empowered to decide under Rule 12 of Order IX as follows –
a) If the defendant does not appear in the court of law on the due date, the court can dismiss
the suit.
b) If the plaintiff does not appear in the court of law on the due date, the court can pass ex-
parte order.

Rules regarding the appearance and non-appearance of parties under Order IX of the CPC –
-Rule 2 states the consequences regarding the non-deposition of fees by the plaintiff.
-Rule 3&4 states the consequences of non-appearance of both the parties to the suit.
-Rule 8, 9, and 9A deals with the consequences of non-appearance of the plaintiff to the
court of law.
-Rule 6, 13, and 13A deals with the consequences of non-appearance of the defendant to the
court of law.
Appearance of Parties
Appearance means the appearance of the party to the suit before the court of law. This
appearance can be by the party in person or through his advocates or any person along with
the advocates of the party. The appearance of the parties on the date of the first hearing of the
case is mentioned in Rule 1 of Order IX.
When Neither Party Appears
According to Rule 3 & 4 of Order IX of CPC, 1908 states that when both the parties to the
suit does not appear before the court of law on the due date fixed. Rule 3 of Order IX states
that in such a case the suit can be dismissed by the court of law and Rule 4 states that plaintiff
can file a new suit if he satisfies the court the sufficient reason for his non-appearance in
court.

When Only Plaintiff Appears

An ex-parte order can be passed against the defendant when only the plaintiff appears and the
defendant does not appear in the court of law on the due date. The court can proceed for an
ex-parte order against the defendant only when services of the summon are proved in the
court and then the court may pass a decree in favour of the plaintiff. This provision does not
apply for the subsequent hearings but only applies to the first hearing and the same was held
in the case of Sangram Singh v. Election Tribunal.
When Only Defendant Appears
The legal consequences of the non-appearance of the plaintiff and appearance of the
defendant in the court of law are mentioned in Rule 8 of Order IX of the CPC, 1908.
According to this rule, in a case when the defendant appears in the court of law on the due
date and the plaintiff remains absent, then the court has the power to pass an order of
dismissal of the case unless the defendant admits a claim.
Ex-Parte Decree
Rule 6(1)(a) of the CPC, 1908 states that the court has the power to pass any judgement ex-
parte in the case where the defendant does not appear in the court of law on the due date
which has been informed to him by the summon duly served on him of the case. An ex-parte
decree is voidable at the option of one party which may seek the order of annulment of the
decree.
Remedies
The following remedies are available when an ex-parte decree is passed against the
defendant:
1. A suit can be filed on the grounds of fraud.
2. The defendant can apply for a review under Order 47 Rule 1.
3. The defendant can appeal against that decree under section 96(2) of the code, or prefer
revision under section 115 of the code when no appeal lies.
Setting Aside an Ex-Parte Decree
An application should be made by the defendant for setting aside an ex-parte decree. There
are some rules which need to be followed for setting aside an ex-parte decree and when the
defendant satisfies the court with sufficient cause, after that only the ex-parte decree which
has been passed can be set aside.
There is a limitation period for setting aside an ex-parte decree and within that period an
application should be filed i.e. 30 days.
There are certain grounds on which an ex-parte decree can be set aside-
1. When the summon has not been served.
2. Due to any sufficient cause, the defendant could not appear on the day of the hearing.

Q. What is Plaint in CPC?

Ans plaint: A plaint is a legal document that contains the claims made by the plaintiff when
they bring a case to a civil court. It’s the first step in starting a lawsuit. Well, it has all the
important details and things needed for the case, like what the plaintiff is complaining about
and why. Even though it’s not defined in the CPC (Civil Procedure Code), you can find the
rules for it in Order VII of the CPC.
When we talk about the cause of action in a plaint, it has two parts.
First, there’s the legal theory, which is like the facts that show why the plaintiff thinks
they’ve been harmed. Second, there’s the legal remedy, which is what the plaintiff wants the
court to do about it.
A plaint is a big deal because it’s the very first step in starting a lawsuit and it helps figure out
which civil court should hear the case.
Provisions of Plaint in CPC
Order VII of the Code of Civil Procedure is all about the “plaint.” In this order, you’ll find
different rules that cover various aspects of what should be in a plaint. Here’s a breakdown:
Rules 1 to 8: These rules explain what specific details should be included in the plaint.
Rule 9: This rule tells us how the court should admit the plaint.
Rules 10 to 10-B: These rules discuss what happens if the plaint in CPC needs to be returned
and how parties should appear.
Main Rules 11 to 13: These rules lay out the situations in which the court can reject the
plaint.
Section 26 of the Code of Civil Procedure is important because it says that every lawsuit has
to start with the presentation of a plaint in CPC or in a way that the law says. So, it’s clear
that a plaint is essential when you want to begin a case in a civil or commercial court.
From of the Plaint in CPC
A plaint in CPC should follow a specific format, consisting of three essential parts: the
heading and title, the body of the plaint and the relief claimed. Let’s explore these parts in
more detail:
Heading and Title
Name of the Court: The plaint in CPC should begin with the name of the court where the
case is being filed. It is not necessary to mention the name of the presiding officer; specifying
the court’s name is sufficient. For example, “In the Court of the District Judge, Sirsa.”
Parties to the Suit: In every lawsuit, there are typically two parties: the plaintiff and the
defendant. However, there can be more than one plaintiff or defendant. The plaint in CPC
must provide all the necessary particulars about these parties, including their names,
residences, father’s names, ages and any other details required for identification.
If there are multiple parties, their names should be mentioned according to their respective
roles in the case. If one of the parties is a minor or of unsound mind, this information should
also be included in the cause title.
Title of the Suit: The title of the suit should explain the reasons for bringing the matter to
court and indicate the court’s jurisdiction.
Body of the Plaint
The body of the plaint in CPC is where the plaintiff elaborates on their concerns. It should be
organised into short paragraphs, each presenting a single fact or point. The body of the plaint
can be further divided into two main parts:
1. Formal Part:
Date of Cause of Action: The plaint in CPC must include the date when the cause of action
occurred. This date is crucial because it helps determine whether the lawsuit is filed within
the legally specified time limits, known as the period of limitation.
Jurisdiction of the Court: The plaint should clearly state the facts that establish the court’s
pecuniary (financial) and territorial (geographical) jurisdiction over the subject matter of the
lawsuit.
Value of the Subject Matter: The value of the subject matter of the lawsuit should be
properly stated. This is essential both for determining the court’s pecuniary jurisdiction and
for calculating court fees.
Statement Regarding Minority: If any party involved in the case is a minor, this should be
mentioned in the plaint.
Representative Character of the Plaintiff: If the plaintiff is representing others, such as in a
class-action lawsuit or as a legal representative, this should be indicated in the plaint.
Reasons for Claiming Exemptions: If the plaintiff is initiating the suit after the period of
limitation has expired and is seeking an exemption under the law, the reasons for this should
be explained in the plaint.
2. Substantial Portion:
-In this section, the plaint in CPC must include all the essential facts that form the basis of the
lawsuit. This means detailing the grounds on which the plaintiff is pursuing the cause of
action, including any additional legal grounds.
-It should be demonstrated in the plaint that the defendant has a clear interest in the subject
matter of the case, justifying their involvement and the court’s jurisdiction.
-If there are multiple defendants and their liability is not joint, the individual liability of each
defendant should be separately specified in the plaint.
-Similarly, if there are multiple plaintiffs and their causes of action are not joint, this should
also be clearly indicated in the plaint.
Relief- The relief claimed is a crucial part of the plaint. It is where the plaintiff specifies
precisely what they are seeking from the court. This can be a request for compensation
(damages), a demand for specific performance of a contract, an injunction to prevent certain
actions, or any other form of relief. It’s vital to state the relief clearly and accurately in the
plaint because the claims made in the plaint in CPC cannot be supplemented or altered
through oral pleadings later on.
Signature and Verification- At the end of the plaint, the plaintiff’s signature should be
placed. If the plaintiff cannot be present due to a legitimate reason, an authorised
representative’s signature can suffice. The plaint in CPC must also be duly verified by the
plaintiff. If the plaintiff is unable to do so personally, their representative may verify it on
their behalf, after informing the court.
The verification process involves specifying which paragraphs in the pleadings the plaintiff
has personally verified based on their knowledge of the facts and which paragraphs have been
verified based on information received and subsequently believed to be true. The plaintiff or
verifier’s signature, along with the date and place, at the end of the plaint, is essential.
It’s worth noting that the verification process must take place before a competent court or in
front of an Oath Commissioner to ensure the authenticity of the statements made in the plaint
in CPC. This adds credibility to the claims presented in the legal document.
REASONS FOR REJECTION OF PLAINT
Various legal systems around the world have established specific grounds on which a plaint
can be rejected. While these grounds may vary, they generally include:
Lack of Jurisdiction: The court must have the authority to hear and decide the case. If the
court lacks jurisdiction over the subject matter or the parties involved, the plaint can be
rejected.
Non-Compliance with Procedural Formalities: Courts require plaints to adhere to specific
formatting and filing requirements. These may include proper stamping, correct court fees,
and compliance with prescribed forms. Any non-compliance can result in rejection.
Vague or Ambiguous Claims: A plaint must clearly state the facts constituting the cause of
action. If the claims are vague, ambiguous, or lack necessary details, it becomes difficult for
the defendant to respond effectively, and the court may reject the plaint.
Absence of Necessary Parties: All parties that have a direct interest in the dispute must be
included in the lawsuit. Failure to join necessary parties can lead to the rejection of the plaint.
Bar of Limitation: Every legal action must be initiated within a specified time limit. If the
plaintiff files a suit beyond the prescribed limitation period, the plaint can be rejected on the
grounds of being time-barred.
No Cause of Action: The plaint must disclose a legally recognized cause of action. If the
facts mentioned do not establish a valid legal claim, the court may reject the plaint.
Res Judicata or Lis Pendens: If the matter in question has already been decided by a court
or is currently pending before another court, the plaint can be rejected based on the principles
of res judicata (a matter already judged) or lis pendens (a matter already in litigation).
Non-Disclosure of Material Facts: A plaintiff is obligated to present all relevant and
material facts. If crucial facts are omitted, it can lead to the rejection of the plaint.
Matters Exclusively within Executive Jurisdiction: Certain matters fall exclusively within
the purview of executive or administrative authorities. If a plaint seeks relief in matters that
are beyond the scope of the court's jurisdiction, it may be rejected.
Frivolous or Abuse of Process: Courts have the authority to reject plaints that are vexatious,
frivolous, or meant to abuse the legal process. When a plaint is rejected, it does not signify
the dismissal of the underlying dispute. The rejection merely indicates that the plaint does not
meet the required standards. Depending on the grounds of rejection, the plaintiff might be
allowed to rectify the defects and refile the plaint within a stipulated time frame.
Alternatively, the plaintiff may choose to appeal the rejection order.
Q. Written Statement.
Ans Written statement order 8
Introduction: First of all, we should know that what is written statement. Actually, it is a
pleading of the defendant in the answer of the plaint led by the plainti against him. It is a
reply statement of the defendant in a suit specically denying the allegations made against him
by the plainti in his plaint. The provision regarding the written statement has provided in the
Code of Civil Procedure, 1908.
Meaning: The expression Written Statement has not been dened in this code. It is a term of
specic meaning ordinarily signifying a reply to the plaint led by the plainti. In other words, it
is the pleading of the defendant wherein he deals with the material fact alleged by the plainti
in his plaint and also states any new fact in his favour or takes legal objections against the
claim of the plainti.
Who may file written statement:
A written statement may be filed by the defendant or by his duly authorized agent. In the case
of more than one defendants, the common written statement led by them must be signed by
all of them. But it is sucient if it is veried by one of them who is aware of the facts of the case
and is in a position to le an adavit. But a written statement led by one defendant does not bind
other defendants.
Time limit for ling written statement:
A written statement should be led within thirty days from the service of the summons on him.
The said period, however, can be extended up to ninety days,(Rule -1). A defendant should
present a written statement of his defence in the said period.
Defences in written statement:
In written statement defendant can specically deny the allegations made in the plaint by the
plainti against him. Besides this, he also can claim to set-o any sums of money payable by the
plainti to him as a counter defence (Order 8 Rule 6). Further, if the defendant has any claim
against the plainti relating to any matter in the issue raised in the plaint, then he can
separately le a counter-claim along with his written statement. It is provided in Order 8 Rule
6A to 6G of the code.
Set off (Order VIII, Rule 6]
Definition: Where in a suit by the plaintiff for recovery of money and the defendant finds
that he also has a claim of some amount against the plaintiff what he do is he can claim a set-
off in respect of the said amount. This right of the defendant to claim set off has been
recognized under Order 8, Rule 6 of the Code.
Essential Conditions:
-A defendant may claim a set-off, if:
-The suit is for the Recovery of money;
-The sum of money must be ascertained;
-Such sum must be legally recoverable;
-It must be recoverable by the defendant or by all the defendants, if not more than one;
-It must be recoverable by the defendant from the plaintiff(s);
-It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
-Both the parties must fill in the defendant's claim to set-off, the same character as they fill in
the plaintiff's
Effects: When a defendant claims set-off, he is put in the position of the plaintiff as regards
the amount claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he
withdraws, it does not affect the claim for a set-off by the defendant and a decree may be
passed in his favor if he is able to prove his claim.

Unit-3
Q. Who is a Receiver. Describe his powers and duties and how he is appointed?
Ans Introduction
In civil litigation, a receiver plays an important role in assisting the court. The Receiver is
considered to be an officer of the court who helps the court to protect and preserve the subject
matter of suit till the time the court decides the matter. Sometimes, the court thinks, it is in
the best interest of both the parties to appoint a receiver who will be responsible for the
management of the subject matter. Receiver is an officer of the Court to whom is given
possession or custody and management of property. He has no power except those which has
been conferred of him expressly or impliedly by the Court. The property dose not vests in the
receiver, the receiver is not the representative or agent of the parties. His holding of property
is holding of the Court. He is also a public officer within the meaning of clause 17 of section
2 of the Code of Civil Procedure (C.P.C).
Receiver: The term receiver has not been defined in the Code of Civil Procedure 1908.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. Receiver is an important person appointed by Court to collect, receive pending the
proceedings, the rents, issue and profit of land or personal estate, which it does not seem
reasonable to the Court that either party should collect or receive, or for enabling the same to
be disbursed among the person entitled.
In other words, the receiver is an indifferent person between the parties to a case, appointed
by the Court to receiver and preserve the property or fund in litigation pendent elite, when it
does seem reasonable to the Court that either party should hold.
What is the Purpose of the Appointment of a Receiver?
When a party in possession of the disputed property exhausts the property or causes
irreparable damages to it, the whole object of the suit gets defeated because the subject matter
ceases to exist or its value gets affected. Therefore, when the court is of the opinion that the
property in dispute must not go to either of the parties, pendente lite, the court appoints a
receiver who is entrusted with the protection and preservation of such property. It is a form of
interim protection which the court provides to the parties who makes the application till the
time the court adjudicates the matter.
Who can Appoint a Receiver?
According to the Civil Procedure Code, 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. It
is within the discretionary power of the court to appoint the receiver. For example, in a suit,
the trial court can appoint a receiver. Whereas, in appeal, the appellate court can appoint a
receiver. However, the discretion is not absolute, arbitrary or unregulated.
Appointment of Receiver
Relief by way of appointment of a receiver is discretionary with the Court. According to
section 44 of the Specific Relief Act 1877, “The appointment of a receiver pending a suit is a
matter resting in the discretion of the Court. The mode and effect of his appointment, and his
rights, powers, duties and liabilities are regulated by the Code of Civil Procedure.”
The Court is competent to appoint a receiver for a disputed property only when the conditions
laid down in Order XL Rule-1 of the Code is fulfilled. According to Order XL Rule-1 of the
Code of Civil Procedure 1908, “Where it appears to the Court to be just and convenient, the
Court may by Order-
a) appointment 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) confer upon the receiver all such powers, as to bringing and defending suits and for the
realization, management, protection, preservation and improvement of the property, the
collection of the rents and profits thereof, the application and disposal of such rents and
profits, and the execution of documents as the owner himself has, or such those powers as the
Court thinks fit.”
Who can Apply for the Appointment of the Receiver?
Generally, a plaintiff files the application for appointment of a receiver but defendants can
also file such application. A third party is not allowed to file the application but if he is
interested in the protection and preservation of the property, he can also make an application
after taking permission from the court.
What are the Powers of the Receiver?
A receiver is an officer of the court and he functions under the direction of the court. The
court may confer all or any of the following powers to the receiver-
-Collection of rents and profits arising out of the property.
-Application and disposal of such rents and profits.
-Execution of documents as the owner himself.
-To institute and defend the suit.
-Such powers as the court may deem fit.
Also, there are indirect powers which a receiver enjoys being the hand of the court. For
example, If a person obstructs or interferes with the receiver’s right to possession, it will
amount to obstruction in a court proceeding and such a person can be made liable for
contempt of court. Similarly, property in the hands of the receiver cannot be attached without
the leave of the court.
The court has the discretionary power to not confer all the rights on the receiver. Even if the
court has given all the powers to him, he should take the advice of the court in all important
decisions related to the property to protect himself.
Without the permission of the court, the receiver cannot:
Grant lease on the property.
Bring suits except for suit for rent. A suit will be dismissed if not permitted by the court.

What are the Duties of the Receiver?

Under order 40 rule (3), duties of a receiver are provided as follows:
-Furnish security to account for what he will receive from the property as income.
-Submit accounts for such period or form as directed by the court. The account basically
includes the income received and expenses incurred for the protection and preservation of the
property.
-Pay the amount due to the court.
-Take responsibility for any reduction in the value of the property because of the receiver’s
willful abandon.
-Discharge the duties personally and should not delegate or assign any of the rights entrusted
to him by the court.
-The receiver has to fulfil all the duties and responsibilities entrusted to him by the court.
Otherwise, the court can take action against him and make him personally liable for any loss
which might occur due to his negligence or willful failure to protect and preserve the
property.

Q. explain Summary Procedure and how it is different from ordinary suit?

Ans Overview: The summary suit is given under XXXVII of the Code of Civil Procedure,
1908. It is used for effectively enforcing a right. Courts pass judgment without hearing the
defense in a summary suit. This appears to be violative of the principle of natural justice Audi
alteram partem (let the other side be heard as well) but this procedure is only followed in
limited cases. It is used in cases where the defendant has no defense and applies to limited
subject matters.
What is the object behind the summary suit?
The object behind the summary suit are:
-To Ensure An Expeditious Hearing.
-To Prevent Unreasonable Delay By The Defendant.
-To Ensure The Defendant Doesn’t Have A Frivolous Defence.
-To Assist Expeditious Disposal Of The Suit.
In the case of Navinchandra Babulal Bhavsar v. Bachubhai Dhanabhai Shah [AIR 1969
Gujrat 124 (128) DB], the Gujarat High Court opined that the purpose of enacting summary
suits is to boost the confidence in commercial cases that their money claims would be
expeditiously decided and their claims will not remain pending for years. The object of the
summary suit is to aid commercial transactions by a swift redressal mechanism.
Where can a summary suit be instituted?
Summary suits can be instituted in Courts of Small Causes, City Civil Courts, High Courts,
and any court notified by the High Court. The High Courts have the power to restrict, enlarge
or vary the categories of suits brought under this order.
Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.
-Bills Of Exchange
-Hundies
-Promissory Notes
-Suit Where The Plaintiff Seeks Only To Recover A Debt
What is the procedure for a summary suit?
Rules 2 and 3 of the Code provide the procedure of summary suits. After the summons has
been issued to the defendant, he is not entitled to defend the summary suit unless he makes an
appearance. If the defendant defaults, the plaintiff will be entitled to an ex parte decree. If the
defendant appears, he must apply for leave to defend within 10 days from the date of service
of summons upon him. Leave will only be granted if his affidavit discloses facts that may
entitle him to defend.
After the institution of a summary suit, the defendant should be served a copy of the plaint
and summons in the prescribed form. The defendant has to make an appearance within 10
days of service of summons. If the defendant makes an appearance, the plaintiff shall serve
him a summons for judgment. Then the defendant has to apply for leave to defend the suit.
Leave may be granted to him unconditionally or what the court deems fit. If the defendant
doesn’t apply for leave to defend, the plaintiff becomes entitled to judgment. If conditions on
which leave was granted did not comply the plaintiff becomes entitled to judgment again.
Order XXXVII Rule 7 provides that procedure in summary suits shall be the same as the
procedure in ordinary suits.

The distinction between a summary suit and an ordinary suit

Point of
Summary suit Ordinary suit
difference

An ordinary suit is registered

Order 37 of CPC provides for summary
Provisions under Section 26, Order VI, Rule 1 of
litigation.
the CPC.

The time limit for submitting a

In a summary suit, the defendant has 10
Time limit written statement in an ordinary suit
days to prove his case.
is 30 days.

Summary suits can only be brought in two

types of cases: Suits based on bills of
exchange, hundies, promissory notes, and Ordinary suits can be brought for any
Purpose promissory notes, and to recover a debt, reason and are not confined to any
liquidated demand payable in money by specific type of suit.
the defendant on a written contract and
on a guarantee.

The defendant does not have any right to

In ordinary litigation, the defendant
Right to defend the summary suit unless the court
has the right to defend the claim and
defend gives conditional or unconditional
no leave to defend is required.
authorization to defend.

An ex-parte decree can be issued to the

In ordinary suits, several summons
Ex-parte plaintiff in summary proceedings if the
are sent to the defendant when an
decree defendant fails to appear in court or
ex-parte decree is issued.
refuses to defend the matter.

What constitutes no defense?

In the case of Precision Steel & Engg. Works v. Prem Deva Niranjan Deva [1983 SCR (1)
498], the Supreme Court held that mere disclosure of facts does not amount to substantial
defence. The substantial defense has to be adduced from the facts and circumstances of each
case. Unconditional leave to defend the suit shall be granted only when the amount due by
the defendant has been deposited in Court.
Q. Explain Interpleader Suit and its provisions.
Ans Interpleader Suits: The main controversy or dispute in an interpleader suit is between
the defendants who inter-plead against each other, rather than between the plaintiff and the
defendant of a case. An interpleader suit is characterized by the fact that the plaintiff of the
case is not especially involved in the subject matter of the case. The primary and most
important purpose of an interpleader suit is to have rival defendants’ claims adjudicated,
since there must be some debt, capital, or other property in dispute between the defendants
only. It basically means that an interpleader suit is initiated against each other to settle a point
regarding a third party.

Legal Provisions related to Interpleader Suits

Section 88 and Order XXXV of the Code of Civil Procedure, 1908 deals with the provisions
related to Interpleader suits.

Section 88 states the guidelines related to where an interpleader suit may be instituted, stating
the following ingredients of an interpleader suit:

1. There may be a similar mortgage, sum of money, or other movable or immovable

property.
2. When two or more parties make claims against each other,
3. The person who is claiming the property must have no interest in it except for
charges or expenses and must be able to pay or deliver it to the rightful claimant.
4. A person who is claiming property may file an interpleader action against all
claimants to decide who will receive payment or delivery and to obtain indemnity
for himself.

The Hon’ble Calcutta High Court held in Asan v. Saroda[1] that a suit is not interpleader if
the defendants do not complain adversely to each other, and the plaintiff does not admit the
title of one of the defendants or is willing to pay or deliver the property to him.

Order XXXV Rule 1 – Plaint in an interpleader suit

This rule requires the interpleader to state in his plaint that the plaintiff has no interest in the
suit’s subject matter or the defendants’ allegations individually. The interpleader must also
claim unequivocally that there is no conspiracy between the complainants and any of the
defendants throughout the case. The interpleader must list all the defendants’ arguments in
the plaint, as well as his willingness to put the property (if it is moveable) before the court.
The Hon’ble Bombay High Court held in Mangal Bhikaji Nagpase vs State of
Maharashtra[2] that the plaintiff must affirm in support of Rule 1 that he has no interest in the
subject matter in dispute other than for charges or costs.

Order XXXV Rule 2 – Payment of the thing claimed into court

This rule talks about the situation where the thing claimed is capable of being paid into court
or placed in the custody of the court, the plaintiff may be obliged to do so before he can be
entitled to any order in the suit. The Hon’ble Patna High Court held in Syed Shamshul
Haque v. Sitaram Singh & Ors.[3] That the court has discretion to make certain orders as to
the subject matter in dispute, and that the party in question must follow the order before
seeking relief from the court.
Order XXXV Rule 3 – Procedure where Defendant is suing the Plaintiff

This rule provides that if either of the defendants in an interpleader suit is suing the plaintiff
in respect of the subject-matter of such suit, the court in which the suit against the plaintiff is
pending must, upon being informed by the court in which the interpleader-suit has been
instituted, stay the proceedings as against him; and his costs in the suit so stayed must be
provided for in such suit.

Order XXXV Rule 4 – Procedure at first hearing

This rule empowers the court to rule that the plaintiff is released from all liabilities at the first
hearing, and as a necessary consequence, the court will grant the plaintiff his costs and
dismiss the case. If the court believes that all parties to the suit must be retained for the sake
of justice, propriety, and convenience, the plaintiff will not be discharged until the suit is
finally resolved. If the court deems it appropriate, it may order that any other issues be
framed and tried concurrently with the suit, and that any complainant (that is, the defendant
in the interpleader suit) be made a plaintiff instead of or in addition to the original plaintiff.

Order XXXV Rule 5 – Who cannot file Interpleader suit?

In the case of Jugal Kishore & Anr. V. Bhagwan Das[4], the court held that an agent cannot
sue his principal, and a tenant cannot sue his landlord for the purpose of forcing those
principals/landlords to interplead with persons other than those claiming through them.

Order XXXV Rule 6 – Charge of Plaintiff’s cost

This last rule of this order states that when an interpleader suit is properly initiated, the court
will compensate for the original plaintiff’s costs to be charged either by charging him a fee
for the item alleged by the defendants or claimants, or by some other similarly successful
process.

Q. What is Temporary injunction?

Ans Temporary Injunction: A temporary injunction is a provisional relief that aims to protect
the subject matter in the existing condition, without the defendant's interference or threat. It
aims to protect the plaintiff from getting disposed off, or his property (subject matter) being
destroyed or harmed, or from any injury to the plaintiff. The primary reason behind a
temporary injunction is to protect the interests of an individual or entity, till the final
judgement is passed. A temporary injunction, when granted, continues to remain for a
specified period of time, or till the court deems fit.

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific
period of time or until the court gives further order regarding the matter in concern. They can
be obtained during any stage of the trial and are regulated by the Code of Civil Procedure
(CPC).

• Section 94: The section provides for supplemental proceedings, to enable the court to
prevent the ends of justice from being defeated. Section 94(c) states that a court may grant
temporary injunction and in case of disobedience commit the person guilty thereof to the civil
prison and order that his property be attached and sold. Section 94(e) of the Code enables the
court to make interlocutory orders as may appear to it to be just and convenient.

• Section 95: If it is found by the court that there were no sufficient grounds to grant the
injunction, or the plaintiff is defeated in the suit, the court may award reasonable
compensation to the defendant on his application claiming such compensation.

Types of Injunction

• Perpetual or permanent Injunction: This is not temporary in nature and can be granted
upon filing a suit for perpetual injunction under the provisions of Specific Relief Act. A
perpetual injunction is defined by section 37 (2) of Specific Relief Act as "A perpetual
injunction can only be granted by the decree made at the hearing and upon the merits of the
suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the
commission of an act which would be contrary to the rights of the plaintiff".

• Temporary Injunction: Temporary injunctions are orders enjoining a person to do an act

or refrain from doing an act which last for a particular period of time or till the pendency of
the suit. Sec 37 (1) of Specific Relief Act further defines the temporary injunction as
"Temporary injunctions are such as to continue until a Specific time, or until further order of
court and they may be granted at any stage of a suit and, are regulated by the cpc 1908.

• Prohibitory Injunction: An injunction is prohibitory when a party is refrained from doing

a particular act. Example: injunction stopping a sale, injunction prohibiting removal of some
construction etc.

• Mandatory Injunction: An Injunction in which a party is mandated to do a certain act is

known as a mandatory injunction. Example: an order to restore the building to its original
condition, to remove an obstruction, to remove overhanging branches, destruction of copies
produced by piracy of copyright and of trademarks.

Basic Ingredients of Temporary Injunction

Following are basic ingredients of temporary Injunction:

i. Prima Facie Case: Temporary injunction can be granted when applicant is able to show
that he will get decision of case in his favor. Therefore, first ingredient of temporary
injunction is prima facie case. To grant temporary injunction, court is to assess whether
applicant's case is prima facie or not and applicant is to prove existence of prima facie case in
his own favor.

ii. Irreparable Loss: Temporary injunction can be granted when there is possibility that
applicant will suffer irreparable injury or damage. Therefore, second ingredient of temporary
injunction is irreparable loss. However, temporary injunction cannot be granted when loss is
ascertainable and pecunary compensation 1s avallable for such loss.

jii. Balance of Convenience: Temporary injunction can be granted when balance of

convenience is in favor of applicant. In fact, court is to examine whether applicant will suffer
greater inconvenience in case of withholding of temporary injunction or not. If applicant will
suffer greater inconvenience, court is to grant temporary injunction.
Q. Who is an Indigent person?

Ans Indigent Person: The dictionary meaning of the word ‘indigent person’ refers to a
person who is suffering from extreme poverty, impoverishment, or one who lacks the basic
resources required in normal life. In legal parlance, an indigent person does not possess the
financial capacity to pay the court fee. With the motive of providing justice to such
individuals, provisions under Order 33 of the Code of Civil Procedure, 1908 were introduced.
Any person who wants to represent as an indigent person is required to file an application
before the competent court wherein he declares himself to be an indigent person. If the court
is satisfied with such an application and agrees to the fact that such person has no means to
pay the court fee, then the court will declare such person as an indigent person.

As soon as a civil suit is filed in the court, the plaintiff(s), at the time of filing their plaint, are
required to submit the requisite court fees as directed by the Court Fees Act, 1870. However,
Order XXXIII of the Code of Civil Procedure saves indigent persons by way of discharging
them from the liability to pay the required court fees. It then allows such individuals to
institute the suit in forma pauperis which is subject to some conditions as postulated under
the Rule 1 of Order XXXIII of CPC.

Constituents:

Order 33 consists of several key constituents that play a pivotal role in facilitating indigent
persons’ legal representation and participation in civil litigation. These constituents include:

1. Application for Permission: Indigent persons can apply to the court for permission to sue
or defend a case without bearing the financial burden of legal proceedings.

2. Examination of Application: The court reviews the application and the applicant’s
financial situation to determine whether they qualify as indigent. The court considers factors
like the case’s merits before making a decision.

3. Appointment of a Pleader: If the court grants permission, it may appoint a lawyer to

represent the indigent person throughout the case, ensuring they have legal representation.

4. Waiver of Court Fees: Indigent persons are exempt from paying court fees and other
litigation-related expenses, relieving them of the financial burden.

5. Recovery of Costs: If the indigent person wins the case and is awarded costs, the
government may recover these costs from the opposite party, ensuring the government does
not bear the financial burden entirely.

The aim of Order 33 is to ensure equal access to justice and protect the rights of individuals
who cannot afford legal expenses.

Inquiry into the Means of an Indigent Person

On an application seeking permission to sue as an indigent person filed by the plaintiff, a

details inquiry is to be conducted by the executive magistrate (SDM) of his local area to
verify details of the property of the indigent person. And a report is prepared mentioning the
details of the plaintiff's property. On the basis of this report, the court may decide whether the
applicant is a suitable person to be permitted to file a suit as an indigent person. Rule 1A of
Order 33 of the Code of Civil Procedure provides that every inquiry regarding the indigence
of the person shall be made by the chief ministerial officer of the Court unless the Court
otherwise directs, and the Court may adopt the report of such an officer as its own finding or
may itself make an inquiry into the question.

-Examination of the Applicant: The court may examine the applicant regarding the merits
of the claim and the property of the applicant to verify the details of the property and his
claim given in the application seeking permission to sue as an indigent person.

-Giving an Opportunity to Participate in an Inquiry: The provisions of Rule 6 of Order 33

are intended to give the opposite party (defendant) an opportunity to participate in the inquiry
into indigent status and adduce evidence to establish that the applicant is not a pauper.

-Procedure if Permission Granted: When permission to sue as an indigent person is granted

to the plaintiff, his suit shall be numbered and registered, and the suit shall be proceeded with
like an ordinary suit, except that the plaintiff shall not be liable to pay any court fee.

Withdrawal of Permission to Sue as an Indigent Person

The plaintiff's right to sue as an indigent may be revoked by the court on the defendant's
application; however, the plaintiff has to be given an opportunity to be heard. The plaintiff's
permission to sue as an indigent person may be withdrawn on any of the following grounds −

-That the plaintiff is guilty of vexatious or improper conduct in the course of the suit;

-That he has sufficient means to pay the court fees.

-That the plaintiff has entered into an arrangement with any other person to finance the
litigation, and thereafter he will be given a share of the property under dispute. The person
financing the litigation has sufficient means to pay court fees.

Assignment of a Pleader to the Indigent: The court may assign a pleader to the indigent
person who has not been represented by a pleader before the court after filing a suit under the
provision of Order 33 of the Code of Civil Procedure, 1908.

Legal Representative for Indigent Person: When an applicant who has filed a suit as an
indigent person dies, his legal representatives are not entitled to continue the suit as an
indigent person. The right to sue as an indigent person is a personal right. Therefore, the
entire proceedings come to an end and lapse the moment the applicant dies.

Realization of Court Fees: The exemption from filing the court fee at the time of institution
of the civil suit, as granted to the indigent person under Order 33 of the CPC, is applicable till
the suit is finally disposed of. However, where an indigent person succeeds in a suit, he shall
be required to deposit the court fee out of the property he received as an outcome of the suit.
The court shall make appropriate directions in the decree itself. The state government is
empowered by law to recover court fees from the indigent person as per the directions in the
decree. Where an indigent person fails in the suit, no court fees shall be paid by him.
Unit- 4

Q. What is an Appeal?

Ans An appeal consists of a process where superior court reconsiders the decision of inferior
court. The consideration may be made on the question of fact as well as question of law. The
court while exercising its appellate jurisdiction can confirm, reverse, modify or remand the
matter to lower court for fresh decision in terms of its direction. However, the term ‘Appeal’
is not defined under the Civil law. Appeal is a creature of statute and right to appeal is a
substantive right. It is notable here that suo moto appeal is not possible.

Who can file an appeal?

This is a first and foremost question that stuck in mind of litigants that who is authorized to
file an appeal. Here are the persons who can file appeal before the court of law:-
1. Any party to the suit, who is adversely affected by the decree or the transferee of
interest of such party has been adversely affected by the decree, provided his name is
entered on the record of the suit.
2. If such party is dead who get affected by the decree then its legal representatives can
file an appeal by virtue of Section 146 CPC.
3. An auction purchaser may file appeal against an order in execution of a decree to set
aside the sale on ground of fraud.
4. No other unless he/she is a party to a suit can file appeal.
Howbeit, if any person is prejudicially affected by the decree or order, where he/she was not
a party to the suit may prefer an appeal via special leave of the appellate court.

Who cannot file an appeal?

As per law if any person waives his/her right to file an appeal against decree or order cannot
file it at a later stage. Apart from this, if any party ratifies any decision of the court by
accepting and acknowledging the provisions under it, then may be estopped that party from
appealing that judgement in a higher court.

What are the various forms of appeal under civil law?

There are sub-categories under appeals which are mentioned below:-
1. Appeal from original decree:
2. Appeal from order.
3. Appeal from appellate decree/Second appeal to High Court.
4. Appeal to Supreme Court.

Q. What is reference to high court? Also explain Review and Revision.

Ans REFERENCE: Section 113 of Civil Procedure Code, 1908 provides that a
subordinate court can state and refer a case to the High Court for its opinion and the High
Court may make any order which it deems fit in that case. This is called the reference.

Only a court can refer a case either based on the application of either party to the suit or the
subordinate court can suo motu seek the opinion of a High Court, in any case, pending before
it.

CONDITIONS FOR REFERENCE:

• When the subordinate court finds that the case that is pending before it involves a
question of the validity of an Act, Ordinance, Regulation, or any of their provisions
• Determination of this question is essential for disposing of the case,
• The suit or appeal pending before the subordinate court must be one in which the
decree passed by the subordinate court is not subject to an appeal or a pending
proceeding, execution of such decree.
• When the subordinate court thinks that the Act, Ordinance or Regulation or any of
their provision is invalid or inoperative but is not so declared by its higher court or
Supreme Court.
• A subordinate court must doubt a question of law while trying the suit, appeal, or
during the execution proceedings

OBJECT OF REFERENCE:

The following are the objects of seeking reference of High Court-

• Seeking reference from the higher court in non-appealable cases enables the
subordinate court to take the opinion of the High Court about the question of law so
that they do not commit an error that could not be remedied later on.
• Seeking Reference from a High Court also ensures that the validity of an Act,
Ordinance Regulation is decided by the highest court in the State and not by a
subordinate court.
• The Act of the legislature should be interpreted by the apex court in the State.

POWER AND DUTY OF HIGH COURT ON A CASE REFERRED TO IT:

When a case is sent to High Court for its reference then the jurisdiction of the High Court in
such a case is consultative. The High Court can answer the question of law referred to it and
send the case back to the referring court for disposing of the case. The subordinate court after
receiving the copy of the judgment of the High Court shall dispose of the case according to
the decision of the High Court. The High Court also has the power to refuse to answer the
reference and can even quash it.

While the case is submitted to the High Court for opinion the referring court may either stay
the proceedings or pass a decree contingent upon the decision of the High Court on the
question of law referred. If the question of law is answered by the High Court in favor of the
plaintiff then the decree will be confirmed. If the High court answers against the plaintiff then
the suit will be dismissed.
REVIEW: Section 114 of the Code of Civil Procedure, 1908 provides judicial re-
examination of the same case by the same court and by the same judge. A person who is
aggrieved by the decision of the court may apply for a review of the judgment to the same
court which passed the decree and after reviewing the case the same court may make an order
which it thinks fit.

CONDITIONS FOR REVIEW-

An application for review of a judgment can be filed only when a party to the suit is
aggrieved-

-By a decree or order from which an appeal is allowed by the CPC, but from which no appeal
is preferred

-By a decree or order from which no appeal is allowed by CPC, or

-By a decision on a reference from a Court of Small Causes.

GROUNDS ON REVIEW APPLICATION CAN BE FILED:

• Discovery of new important evidence- A review application is allowed on the ground

of discovery of some new and important evidence by the applicant which he could not
discover or produce even after exercising due diligence as it was not within his
knowledge when the decree was passed by the court.
• Error apparent on the face of the record- The error in the decision of the Court can
be of fact or law. Such error has to be examined judicially on the facts of each case.
Such error has to be on the face of the record and one does not have to travel beyond
the record to find out if the judgment is incorrect or not.
• Any other sufficient reason– A application for review can be filed for some other
reasons like a statement made in the judgment is incorrect, where the party to the suit
was not given notice or fair chance to produce his evidence, the court ignored or
failed to consider some important fact or evidence, etc.

In case if the application for the review of a judgment is rejected by the court then the said
rejection order is not appealable. Further, the review of the review is not granted by the CPC.

REVIEW BY THE SAME JUDGE:

Review of a judgment has to be done by the same judge who passed that judgment. He alone
has the jurisdiction to reconsider the case and review the former order passed by him in that
case. As the judge had gone through all the aspects of facts and law in that case he is best
suited to remove any mistake or error on the face of the judgment passed by him.

PERIOD OF LIMITATION:

The period of limitation for applying for a review of a judgment passed by a court other than
the Supreme Court is thirty days from the date of the order or decree.
REVISION:

Section 115 of the Civil Procedure Code provides that A High Court can entertain a
revision in any case that has been decided by the subordinate court in certain situations.

CONDITIONS FOR REVISION:

The High Court has the power to call for the record of any case decided by any court that is
subordinate to such High Court and in which no appeal lies thereto in following situations-

• A case must have been decided.

• The case must be decided by a court that is subordinate to the High Court.
• If it appears to the High Court that the subordinate court-
1. Have exercised jurisdiction not vested in it by law, or
2. Have failed to exercise jurisdiction vested in it by law, or
3. Have while exercising its jurisdiction acted illegally or with material irregularity.
• The order passed by the subordinate court must not be appealable

In any of the above situations, the High Court can make such order as it thinks fit.

However, it must be noted that the High Court shall in case of revision vary or reverse any
order made, or any order deciding an issue in course of a suit or other proceeding,

Except where the order, it had been made in favor of the party that has applied for revision
would have finally disposed of the case.

The High Court shall not for revision of a case vary or reverse a decree or order against
which appeal lies to the High Court or any other subordinate court.

A revision proceeding shall not act as a stay of suit or other proceedings before the Court
except when it is stayed by the High Court.

OBJECT OF REVISION: The following are the objects of Revision-

• It prevents all the subordinate courts while deciding cases from acting arbitrarily.
• It prevents the subordinate courts from acting irregularly while exercising their
jurisdiction
• It vests the High Court with the power to check if the proceedings of the subordinate
court are within its jurisdiction and by law for dispensing justice.
• It vests the High Court with the power to correct the jurisdiction errors committed by
the subordinate courts.
• It provides a way for an aggrieved party to the case to obtain rectification of a non-
appealable order.

Any party to the case who is aggrieved from the order of the subordinate court can apply for
revision of such an order in the High Court. Further, the High Court also has the power to
exercise suo motu revisional jurisdiction.
 REVIEW REVISION

1.Review is done by the very court which had passed Revision jurisdiction is exercised only by the High
the order or decree. Court

2.Review application can be filed even in appealable Revision applications can be filed only in non-
cases appealable cases.

3.For review, an application has to be made by the The high court has the power to exercise revisional
aggrieved party. powers suo moto.

4.The order granting review is appealable The order passed in revisional cases is not
appealable.

The exercise of revisional jurisdiction by the High Court is discretionary. The applicant
applying for revision has to show that not only jurisdictional error is committed by the
subordinate court in his case but also that the interest of justice is at stake.

PERIOD OF LIMITATION:

The limitation period for revision application is ninety days from the date of the decree or
order sought to be revised.

DISTINCTION BETWEEN REFERENCE, REVIEW, AND REVISION:

REFERENCE REVIEW

1.The subordinate court itself refers the case to the Review application is made to the High Court by the
High Court. aggrieved party

2.Only High Court has the power to decide the Review is done by the court which had passed the
subject matter of reference decree or made order.

3.Reference is made while pending a suit, appeal, Review applications can be filed only after passing
or execution proceedings. the decree or making the order.

Reference and Revision

Sr.
REFERENCE REVISION
No.
 Under revision, The High Court itself can call for
The subordinate court refers the any record of the case decided by a subordinate
1
case to the High Court. court or on an application of the party applying for
revision.

Reference involves any reasonable

A revision is done by the High Court if there is an
doubt on a substantial question of
2 error of jurisdiction or if there is any material
law or usage having the force of
irregularity on the part of a subordinate court.
law

Q. Appeal.

Ans Normally, one cannot except the final decision in the case. It is natural that any error of
law or procedure might have crept in. for removing such errors, there is one method of
appeal. Provisions have been made about appeal under section 96 to 99, Order 41 of the civil
Procedure Code, 1908.

Where the Appeal can be made?

According to section 96 of the code an appeal shall be from every decree passed by any court
exercising original jurisdiction the court authorized to hear appeals from the decisions of such
court. It means that the appeals against the decree passed by the court can be made to such
court which is authorized to hear such appeals. Examples- the appeal against the decree for
Rs. 30,000 for recovery of money passed by the Civil Court (Senior Division) can be made to
the district court, therefore, such appeal can be made to the court of district judge.It is to be
mentioned here that appeal can be made against the decree passed ex-parte.

Conditions under which appeal cannot be made:

Under sub-section 3 and 4 of section 96, the appeal cannot be made under the following
conditions:

-Where the decree has been passed by the court with the consent of the parties.

-Where the cognizable suit by small causes court is such in which there is no question of law
is involved and the value of the suit does not exceed Rs. 10,000/- and

-Appeal against the final decree where the appeal against preliminary decree has not been
made (Section 97).

Therefore, no appeal can be made in the above three cases. Provision has been made under
sub-section 4 of section 96 that where any party is aggrieved with the preliminary decree but
he does not make appeal against such decree, then he will be precluded from making appeal
against the final decree (Kaushalya Devi Vs Baijnath, A.I.R. 1961, Sc 790).

By whom appeal can be made?

-Appeal can be instituted by the following persons:

-persons who are aggrieved with the judgement and decree;

-on death of such person, by his legal representative;

-by the transfer of the interest of such person provided his name is on record and is bound by
the decree upto the limit of his interest, and

-by the purchaser of the property sold in auction.

Normally, no person is entitled to make appeal unless he is party to the case.

Judgment section 98

After hearing the parties or their pleader, the appellate court shall pronounce the judgment in
open court, either at once or on some future date after giving notice to the parties or their
pleader.

The judgment of the appellate court shall be in writing and shall state:

-the points for determination

-the decision thereon

-the reasons for decisions

-Where the appeal is allowed and decree of the lower court is reversed or varied, the relief to
which the appellant is entitled.

Not to interfere with decree for technical errors section 99

Section 99 of the code enacts that a decree which is otherwise correct on merits and is within
the jurisdiction of the court should not be upset merely for technical and immaterial defects.

Object of section 99

The underlying object of section 99 is to prevent technicalities from overcoming the ends of
justice and from operating as means of circuitry of litigation.

Procedure of Appeal:
Provision has been made for procedure of appeal under order 41 of the code. According to
this:

-Every appeal in the form of memorandum of appeal duty signed by the appellant or his
advocate will be submitted before the competent officer of the court (Order 41, Rule 1). If
signature are put by the advocate on such memorandum, then it is necessary to enclose
Vakalatnama with it (Mrs Parwati V/s Anand Prakash, A.I.R. 1987, Delhi 90).

-The copy of order appealed against must be enclosed with the memorandum of appeal. In
one case, the copy of the order appealed against was not enclosed with the memorandum but
filed after before determination of such appeal. It was accepted by the court (Bhagat Ram Vs
Basant Ram, A.I.R. 1981, NOC 152, Himachal Pradesh).

-In the memorandum of appeal, the objections to the decree will be stated briefly under
different heads, without any detailed particulars and arguments and such grounds will be
numbered. So long as these grounds of objections are not stated in the memorandum, they
will not be emphased and the court will not hear them. It depends upon the discretion of the
court to consider and hear those grounds which have not been mentioned in the
memorandum. But decision will not be made on these grounds till the opportunity of hearing
has been given to the party affected thereby (Order 41, Rule 2).

-It the memorandum of appeal has not been made in the specified manner, then it will be
rejected by the court immediately or may be returned to the appellant for amendment (Order
41, Rule 3).

-If the memorandum of appeal is accepted by the court then the date of submission will be
recorded on it and registered in the register of appeal (Order 41, Rule 9).

-After the institution of memorandum of appeal, the stay order will be passed by the appellant
court to stay the proceedings of subordinate court. But such order may be issued only when
the court decided that there may be a severe loss to the appellant if such order is not issued. If
the execution of decree is stopped then the interest of the public is also to be taken into
account (State of Gujarat Vs Central Bank of Ahmedabad, A.I.R. 1987, Gujarat 113). It is to
mentioned here that the power to stay the proceedings lies with the appellant court and not
with the execution court (Maya Devi Vs M/s Dharampal Madanlal, A.I.R. 1989, NOC 31,
Punjab and Haryana).

-If on the day fixed for hearing or on the day for which the hearing has been postponed, the
appellant such appeal (Order 41, Rule 17).

-If on the day fixed for hearing of appeal, if the appellant does not present himself, the court
may hear it ex-parte. But if the appellant gives sufficient reason for his absence and the court
if convinced may criminal ex-parte order (order 41, Rule 21). Similarly, if sufficient reason is
shown for absence, then the order may be issued to retake the appeal for hearing (Order 41,
Rule 19).
-The court may be take additional evidence in the case provided this evidence is material in
deciding the appeal on the basis of its merits and demerits and thus evidence could not be
made available at the trial of the case (Order 41, Rule 27).

-Finally, the court while giving proper opportunity of hearing to both the parties, the court
will announce its decision on appeal in open court (Order 41, Rule 30). Such decision must
be announced immediately after hearing the appeal. In a particular case, the decision was
announced after five years which was considered unjust. (Bhagwandas fatechand Daswani Vs
HPA International, A.I.R. 2000, SC 775).

Second appeal:

Provision has been made for second appeal under sections 100 to 103 and order 42 of the
code.

According to section 100, the second appeal can be made against decision made in first
appeal under the following conditions:

-where any substantial question of law is involved or

-where ex-parte decree has been passed in first appeal thus it is clear that the second appeal
can be heard on the ground of substantial question of law otherwise not (Monika Pusali Vs
Anjali Amma, A.I.R. 2005 SC 1777). The second appeal cannot be made on the finding of
fact (Kalidas Vs Ram Singh, AI.R. 2995, NOC 103, Himachal Pradesh). In Govind Raju Vs
Mariyamman (A.I.R. 2005, SC 1008), the Supreme Court considered such question as the
question of law

-which is debatable;

-which has not been decided earlier by the law of the land;

-which is affecting the material rights of the parties.

Second appeal on no other grounds (section 101)

No second appeal shall lie except on the ground mentioned in section 100. therefore, it
specifically bars the second appeal on any other ground mentioned in Section 100. The
grounds on which a Second Appeal shall lie are:

-That the appeal should involve a substantial question of law that may either be presented by
the party in a memorandum of appeal or the court may itself formulate such question;

-That the second appeal may be brought forth where the decree was passed ex parte;
Sir Chunilal V. Mehta And Sons, Ltd. vs The Century Spinning And Manufacturing Co., Ltd.
It was held by the court that The proper test for determining whether a question of law raised
in the case is of general public importance or whether it directly and substantially affects the
rights of the parties.

No Second Appeal in certain cases (section 102)

The scope of application of a second appeal has been made limited by Section 102 to the
cases wherein the subject matter of the original suit should exceed three thousand rupees.

Section 102 reads as: No second appeal in certain suits-No second appeal shall lie in any suit
of the nature cognizable by Courts of Small Causes when the amount or value of the subject-
matter of the original suit does not exceed three thousand rupees.

Question of fact: The general rule is that the High Court shall only entertain matters
involving a substantial question of law but Section 103 serves a supplementary to this.

Section 103 states:

Power of High Court to determine issues of fact- In any second appeal, the High Court may,
if the evidence on the record is sufficient, determine any issue necessary for the disposal of
the appeal:

-Which has not been determined by the lower Appellate Court or both by the Court of the
first instance and the lower Appellate Court, or

-Which has been wrongly determined by such Court or Courts reason of a decision on such
question of law as is referred to in section 100.

The particular section talks of two situations when a question of fact can be dealt with by the
court in a second appeal. Firstly, when a necessary issue has not been determined by either
the Lower Court or the Court of the first instance. Secondly, when the necessary issue has
been wrongly determined by the Courts on the substantial question of law which can properly
be the subject matter of the second appeal under Section 100.

In Jadu Gopal Chakravarty v. Pannalal Bhowmick & Ors the question came up before
the court that whether the compromise decree was obtained by fraud. The court held that
though it is purely a question of fact none of the lower courts has dealt with the question
whether the decree was obtained by committing a fraud on the Court and hence, this court
can look into the question of fact by exercising its power under Section 103.